Court Upholds City’s Amendment Limiting Harbor Development

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SandBar 8:1, April, 2009 Court Upholds City’s Amendment Limiting Harbor Development Samson v. City of Bainbridge Island, 2009 Wash. App. LEXIS 454 (Wash. Ct. App. Feb. 24, 2009). *Terra Bowling, J.D.* A Washington appellate court upheld a city’s amendment of its Shoreline Master Program (SMP) that allowed the city to limit dock and pier development in a harbor that is less developed than other shorelinesA0of the city. Background Blakely Harbor is one of Bainbridge Island’s four harbors. Land surrounding the harbor was owned by a timber company for over 100 years. Because of this, the harbor remains largely undeveloped, with only six existing docks or piers. Its scenic beauty and intact natural resources make it a favorite of area residents for kayaking, scuba diving, swimming, and fishing. In 2003, the city passed an amendment to its SMP to protect the navigability, scenic visibility, and natural resources of the harbor. The amendment allows the city to prohibit the construction of new single-use private docks in the harbor and to limit dock construction in the harbor to two joint-use docks, one com munity dock, floats, and buoys. The Department of Ecology reviewed the amendment under its existing guidelines and approved it. Several residents, Kelly and Sally Samson and Robert and Joanne Hacker (Samson), appealed the amendment to the Puget Sound Growth Management Hearings Board (Board). The residents claimed that the amendment was inconsistent with the city’s SMP, Com pre hensive Plan Policies, and the Department of Ecology’s new guidelines. The Board upheld the amendment. A superior court upheld the Board’s ruling and Samson appealed. Department Guidelines In considering SMPs, the Shoreline Manage ment Act (SMA) requires the Department to make written findings regarding the consistency of the amendment with the Department’s guidelines and the SMA.1 The Department developed new guidelines regarding SMPs in 2004. When the Department approved the amendment in 2003, it found that the amendment was in compliance with the SMA but did not make findings regarding its draft guidelines. Samson argued that although the new guidelines were not in effect, the Department should have considered its draft guidelines. The court found this argument illogical, given the fact that “there would be no guarantee that the adopted guidelines would contain the same language and requirements.”2 The court dismissed this argument and held that the Department’s guidelines were not applicable to the amendment, because they were not in effect when the amendment was reviewed. Consistency The SMA requires the city to “plan for and foster all reasonable and appropriate uses.”3 Samson argued that by limiting development, the amendment does not “embody a legislatively-determined and voter-approved balance between protection of state shorelines and development.”4 Conversely, the city argued that its amendment promoted the public’s opportunity to enjoy the harbor and protected the public’s interest in navigation while allowing some development in the harbor. The court found that the Board did not erroneously interpret or apply the law in finding that the amendment was consistent with the requirements of the SMA. Samson also argued that the amendment was not consistent with the city’s SMP and Comprehensive Plan, as required by the state’s Growth Management Act.5 Samson cited the fact that prior to the amendment the SMP had allowed dock construction in the harbor. And, furthermore, that the SMP goals and policies give preference to water-dependent and water-related uses. The court disagreed, finding “[t]he amendment protects against interference with navigable waters, protects the public’s use of the shoreline, protects views from adjoining property, and minimizes adverse environmental impacts. Further, the amendment does not prevent all or even most uses of the private properties; it simply limits one type of structure in Blakely Harbor.”6 The court held that Samson failed to establish the amendment as inconsistent with the SMP or Comprehensive Plan. Public Trust Doctrine Samson also contended that the amendment violated the public trust doctrine by prohibiting public access to the waters through the prohibition on private docks. The court disagreed, finding “Samsons’ position would turn the jus publicum doctrine on its head. There is no doubt that the amendment protects the public interest in this navigable waterway more so than allowing the construction of multiple docks and piers would.”7 Conclusion The court summarily rejected Samson’s remaining arguments and affirmed the lower court’s decision. Endnotes 1. Wash. Rev. Code A7 90.58.090(2)(d) (2009). 2. Samson v. City of Bainbridge Island, 2009 Wash. App. LEXIS 454, 12 (Wash. Ct. App. Feb. 24, 2009). 3. Wash. Rev. Code A7 90.58.020 (2009). 4. Samson, 2009 Wash. App. LEXIS 454 at 14, quoting Biggers v. City of Bainbridge Island, 162 Wn.2d 683 (2007). 5. Wash. Rev. Code A7A7 36.70A.040(4), 36.70A.070 (2009). 6. Samson, 2009 Wash. App. LEXIS 454 at 26-27. 7. Id. at 34-35.
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SandBar 8:1, April, 2009

Samson v. City of Bainbridge Island, 2009 Wash. App. LEXIS 454 (Wash. Ct. App. Feb. 24, 2009).

Terra Bowling, J.D.

A Washington appellate court upheld a city’s amendment of its Shoreline Master Program (SMP) that allowed the city to limit dock and pier development in a harbor that is less developed than other shorelinesA0of the city.

Background
Blakely Harbor is one of Bainbridge Island’s four harbors. Land surrounding the harbor was owned by a timber company for over 100 years. Because of this, the harbor remains largely undeveloped, with only six existing docks or piers. Its scenic beauty and intact natural resources make it a favorite of area residents for kayaking, scuba diving, swimming, and fishing. In 2003, the city passed an amendment to its SMP to protect the navigability, scenic visibility, and natural resources of the harbor. The amendment allows the city to prohibit the construction of new single-use private docks in the harbor and to limit dock construction in the harbor to two joint-use docks, one com munity dock, floats, and buoys. The Department of Ecology reviewed the amendment under its existing guidelines and approved it.
Several residents, Kelly and Sally Samson and Robert and Joanne Hacker (Samson), appealed the amendment to the Puget Sound Growth Management Hearings Board (Board). The residents claimed that the amendment was inconsistent with the city’s SMP, Com pre hensive Plan Policies, and the Department of Ecology’s new guidelines. The Board upheld the amendment. A superior court upheld the Board’s ruling and Samson appealed.

Department Guidelines
In considering SMPs, the Shoreline Manage ment Act (SMA) requires the Department to make written findings regarding the consistency of the amendment with the Department’s guidelines and the SMA.1 The Department developed new guidelines regarding SMPs in 2004. When the Department approved the amendment in 2003, it found that the amendment was in compliance with the SMA but did not make findings regarding its draft guidelines. Samson argued that although the new guidelines were not in effect, the Department should have considered its draft guidelines.
The court found this argument illogical, given the fact that “there would be no guarantee that the adopted guidelines would contain the same language and requirements.”2 The court dismissed this argument and held that the Department’s guidelines were not applicable to the amendment, because they were not in effect when the amendment was reviewed.

Consistency
The SMA requires the city to “plan for and foster all reasonable and appropriate uses.”3 Samson argued that by limiting development, the amendment does not “embody a legislatively-determined and voter-approved balance between protection of state shorelines and development.”4 Conversely, the city argued that its amendment promoted the public’s opportunity to enjoy the harbor and protected the public’s interest in navigation while allowing some development in the harbor. The court found that the Board did not erroneously interpret or apply the law in finding that the amendment was consistent with the requirements of the SMA.
Samson also argued that the amendment was not consistent with the city’s SMP and Comprehensive Plan, as required by the state’s Growth Management Act.5 Samson cited the fact that prior to the amendment the SMP had allowed dock construction in the harbor. And, furthermore, that the SMP goals and policies give preference to water-dependent and water-related uses. The court disagreed, finding “[t]he amendment protects against interference with navigable waters, protects the public’s use of the shoreline, protects views from adjoining property, and minimizes adverse environmental impacts. Further, the amendment does not prevent all or even most uses of the private properties; it simply limits one type of structure in Blakely Harbor.”6 The court held that Samson failed to establish the amendment as inconsistent with the SMP or Comprehensive Plan.

Public Trust Doctrine
Samson also contended that the amendment violated the public trust doctrine by prohibiting public access to the waters through the prohibition on private docks. The court disagreed, finding “Samsons’ position would turn the jus publicum doctrine on its head. There is no doubt that the amendment protects the public interest in this navigable waterway more so than allowing the construction of multiple docks and piers would.”7

Conclusion
The court summarily rejected Samson’s remaining arguments and affirmed the lower court’s decision.

Endnotes
1. Wash. Rev. Code A7 90.58.090(2)(d) (2009).
2. Samson v. City of Bainbridge Island, 2009 Wash. App. LEXIS 454, *12 (Wash. Ct. App. Feb. 24, 2009).
3. Wash. Rev. Code A7 90.58.020 (2009).
4. Samson, 2009 Wash. App. LEXIS 454 at *14, quoting Biggers v. City of Bainbridge Island, 162 Wn.2d 683 (2007).
5. Wash. Rev. Code A7A7 36.70A.040(4), 36.70A.070 (2009).
6. Samson, 2009 Wash. App. LEXIS 454 at *26-27.
7. Id. at *34-35.