For me individual rights and property rights are on the same side of the coin; on the other side is the power of government to regulate.  It is not my job to set policy, but it is my job to make sure that our state and local governments act within the constitutional framework established by the people.  I strongly support efforts to protect our environment but my job is to make sure government regulates in a constitutional manner.  When I write for the court, I am constrained to speak for all of us.  But when I write separately, I can speak freely and did so about two years ago where I felt a government was abusing its power.

Let me set the stage.  Washington State’s Shoreline Management Act of 1971 has a centralized approach with the Department of Ecology issuing rules and guidelines that local governments use to create master plans for the development and protection of the state’s shorelines.  When not in conflict with the Shoreline Management Act, Washington States Growth Management Act also affects the development and use of shorelines.

Within the City of Bainbridge Island lies 48 miles of shoreline.  In August 2001, the City of Bainbridge Island adopted a one year moratorium on the filing of new applications for shoreline substantial development permits, shoreline substantial development exemptions, and shoreline conditional use permits.   This moratorium left many property owners along the 48 miles of shoreline in limbo as to how they could use their property while the City of Bainbridge Island developed its master plan.  But after a year, the city hadn’t finished its work so, with some limitations, it extended the moratorium for another year.   Property owners remained in limbo.  At the end of two years, the City of Bainbridge Island still had not completed its work and, limiting its effect further, it extended the moratorium for a third year.

Property owners challenged the statutory and constitutional authority of the City Bainbridge Island to use moratoriums.   Remember that government may regulate property for the good of the public, but it cannot take a person’s property for public use without compensating that person for the property.  This court split four to four on whether or not such moratoriums were authorized by the Constitution, the Shoreline Management Act, or the Growth Management Act.  I wrote separately because although I agreed with four of my colleagues that the city had the authority for one temporary moratorium, I joined the other four colleagues who did not believe the city had authority to issue moratoriums at all in result.  As I read the law, the city had the constitutional authority to pass a temporary moratorium.  I believed it had exceeded its constitutional authority by imposing a rolling moratorium which was, in effect, a permanent moratorium.  The following are excerpts from my concurrence.  The full opinion may be found at  see also Michelle E. DeLappe, The Legality of Washington Shoreline Development Moratoria in the Wake of Biggers v. City of Bainbridge Island, 84 Wash. L. Rev. 67 (2009).   A postscript follows these excerpts.

I write separately in part to state in unequivocal terms my view that the City of Bainbridge Island’s year after year renewal of a shoreline building permit moratorium was an act of a stagnant municipal government.  Those who govern fail the public’s trust when they are unwilling, unable, or simply neglect to roll up their sleeves, gather the information necessary, and make the tough decisions they are elected to make.  Passing annual, rolling moratoria reflects a disregard for those within its geographical limits who wish to fully enjoy the use and benefits of the property they own and the need of individuals to engage in their own critical planning.  People, who have property within the city’s boundaries, perhaps their largest asset in the world, are impacted by a moratorium in their ability to use, improve, or transfer property and their ability to plan for personal, family, and business purposes.  In my view, the city’s failure to meaningfully govern while depriving people of the ability to use or plan for the use of their property was unreasonable and exceeded any constitutional authority it may have had.

That said, I largely agree with Justice Fairhurst’s analysis of the law applicable to this case.  But I respectfully disagree with her that this rolling moratorium enacted by the city was a reasonable use of the city’s power.

While I disagree with the lead opinion’s conclusion that the city lacks authority to impose any shoreline moratoria, I do agree that this moratorium exceeded its lawful power.  A reasonable moratorium may be a valid exercise of a municipality’s power as such an exercise of power may give the city time to create a comprehensive plan.  See generally Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 122 S. Ct. 1465, 152 L. Ed. 2d 517 (2002) (rejecting claims that a 32-month moratorium was a takings); Collura v. Town of Arlington, 367 Mass. 881, 886, 329 N.E.2d 733 (1975) (collecting cases); see also Matson v. Clark County Bd. of Comm’rs, 79 Wn. App. 641, 644-45, 904 P.2d 317 (1995) (citing Richard L. Settle, Washington Land Use and Environmental Law and Practice § 2.13, at 72 (1983)).  But a reasonable moratorium must be in place no longer than necessary to accomplish the necessary planning by a body exercising diligence to accomplish that planning.  Then, the moratorium must be removed.

While no positive grant of authority exists under the SMA [Shoreline Management Act] to impose a moratorium, such an explicit grant is not required in the face of Washington Constitution article XI, section 11’s broad delegation of police power to the local governments.  Cf. Weden v.San Juan County, 135 Wn.2d 678, 690-92, 958 P.2d 273 (1998). Further, the power is clearly implied by the procedural fetters the legislature has placed upon it.  RCW 36.70A.390.  But like any power, it is not substantially limitless.  It must be used in a reasonable manner by a diligent governing body.

I also respectfully disagree with the lead opinion’s conclusion that article XVII of our constitution restricts a municipality’s power to regulate the shorelines and tidelands.  The power to regulate does not ride like a parasite on the State’s title to some of the lands in the state.  Cf. lead opinion at 16-17.  Instead, the State’s power to regulate shore lands comes from the people’s sovereign power to regulate land use to serve the health, safety, and welfare of the citizenry.  See Buechel v. Dept of Ecology, 125 Wn.2d 196, 203, 884 P.2d 910 (1994) ([The legislative policy behind the SMA] contemplates protecting against adverse effects to the public health, the land and its vegetation and wildlife, and the waters of the state and their aquatic life, while protecting generally the public right of navigation and corollary rights incidental thereto.).  Further, this is a power the State has chosen to share with its municipalities.  RCW 90.58.050 (This chapter establishes a cooperative program of shoreline management between local government and the state. (emphasis added)); see also RCW 90.58.140(3) (The local government shall establish a program . . . for the administration and enforcement of the permit system provided in this section.).

This sharing of police power with municipalities is a foundational principle of our State.  See Hugh D. Spitzer, Municipal Police Power in Washington State, 75 Wash. L. Rev. 495, 497-98 (2000).  It is embodied in article XI, section 11 and appears in everything from criminal prosecutions to health and safety regulations.  More specifically, the State has chosen to share its power to regulate with its municipalities through the mandates and guidelines of the SMA.  I agree with Justice Fairhurst that analysis under the local police power provision is proper to resolve this case.

In conclusion, in my view, it is arrogant, high handed, and beyond the pale of any constitutional authority for a stagnant government to deny its citizens the enjoyment of their land by refusing to accept building permits year after year based on a rolling moratorium.  Excessive rolling moratoria frustrate the efficient regulation of land and violate individual rights.  Because I find the citys use of its police power unreasonable, I would affirm the Court of Appeals.  Because the landowners are the prevailing party challenging a land use decision, I agree with the lead opinion that they are entitled to fees and costs under RCW 4.84.370(1).

P.S.  Before I write, I always ask two questions: (1) what do I hope to accomplish with this opinion, and (2) who is my audience?   The city council of the Bainbridge Island is probably more sophisticated than most, but almost all local governments rely almost entirely on the city’s attorney or the county prosecutor for guidance in land use matters so these attorneys were my audience.  Although I believe the founders would have permitted temporary moratoriums as a legitimate tool so that local governments could protect our environment while gathering the necessary information to make an informed decision on land use matters.   My goal was to strike a fair balance between government’s right to regulate and the prohibition of government taking.