doug nelson complaint

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DENNIS D. REYNOLDS LAW OFFICE200 Winslow Way West, Suite 380Bainbridge Island, WA 98110(206) 780-6777(206) 780-6865 (Facsimile)

`

SUPERIOR COURT OF THE STATE OF WASHINGTONIN AND FOR KITSAP COUNTY

WESTERN DEVCO, LLC and DOUGLAS and KARINA NELSON,

Plaintiffs,

v.

CITY OF BAINBRIDGE ISLAND,

Defendant.

No.

COMPLAINT FOR QUIET TITLE AND FOR DAMAGES

I.PARTIES

I.0 Western Devco, LLC is a duly authorized and registered limited liability

company in the State of Washington. Its address is 290 Madison Avenue North,

Bainbridge Island, Washington 98110. Douglas Nelson is its Managing Agent.

I.1 Douglas Nelson and Karina Nelson comprise a marital community. They are

residents of Bainbridge Island and own a waterfront home on Crystal Springs. Mr.

and Mrs. Nelson’s address is 5159 Crystal Springs Drive.

I.2 The City of Bainbridge Island (“City”) is a subdivision of local government of

the State of Washington with certain limited delegated powers, as described in the

Washington State Constitution, Article XI, Section 11, and Title 35, Revised Code of

Washington. The City’s address is 280 Madison Avenue North, Bainbridge Island,

WA 98110.

II.JURISDICTION, VENUE AND STANDING

II.0 The court has jurisdiction pursuant to RCW 2.08.010 et seq., and/or

Chapter 7.28, RCW and/or Article 4, Section 6 of the Washington Constitution.

COMPLAINT FOR QUIET TITLEAND DAMAGES - 1 of 14[90068-1]

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II.1 Venue for this case is properly located in Kitsap County as specified in

RCW 4.12.025.

II.2 Plaintiffs have standing to file this suit because they are directly impacted and

affected by the City’s actions challenged herein.

II.3 No administrative remedies are available because quasi-judicial administrative

bodies do not have jurisdiction or authority to award damages or determine relief in a

quiet title claim.

III.FACTS

III.0 In 2005, Landmark Development Company (Landmark) purchased property on

Crystal Springs, tax account # 322502-4-017-2000 (“the Property”). A legal

description of the Property is set out in Exhibit A hereto, by reference made part of

this Complaint. The Property at the time of purchase was undeveloped waterfront.

Thereafter, Landmark submitted land use applications to the City to construct a single

family home on the Property, Application No. BLD 13574, filed July 13, 2005.

III.1 In October 2006, Landmark transferred ownership of the property to Plaintiff

Western Devco. Landmark remained the permit applicant and Western Devco the

project owner.

III.2 During construction, disagreements arose between Landmark and the City of

Bainbridge Island relating to a shoreline environment sensitive area called a “native

vegetation zone” (NVZ). The Bainbridge Island Municipal Code (“BIMC”) defines

the NVZ as follows:


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a) Definition and Purpose. The native vegetation zone is a required vegetation buffer encompassing all uplands from the OHWM to the dimension specified for that particular shoreline environment. Its purpose is to protect and enhance the Islands natural character, water quality, native plant communities and wildlife habitat along the shoreline.

b) Applicability. The native vegetation zone provisions apply to all shoreline development, uses, and activities, including those which do not require a shoreline permit, and to existing development. Standards for the native vegetation zone are based on the use category and the environment designations and are provided in Part IV, Environment Designations, Table 4-2. In some cases, the standards are further refined by regulations in Part V, Specific Use Regulations. (See specifically BIMC 16.12.260, Residential Development)

BIMC § 16.12.040A.B.

III.3 There are extremely restrictive requirements imposed for waterfront property

within the NVZ. For one, “existing native vegetation” must remain unless specifically

allowed to be altered or removed. BIMC § 16.12.090(C)(2). Two, there are

significant restrictions on development and use. All that is allowed is a path to the

shoreline of not more than four feet in width (constructed by hand), and utility lines if

allowed by the City. BIMC § 16.12.090(C)(7)(8). In the semi-rural environment

(which applies to the Property) the BIMC also allows a stairway to the beach, a tram, a

pier or dock, a boathouse, permeable decks less than 30 inches in height above grade,

and fences not more than four feet in height. BIMC § 16.12.260(B)(9). The boat

house or boat storage deck cannot exceed 200 square feet in size and 12 feet in height.

BIMC§ 16.12.260(B)(13). The deck cannot exceed a 120 square feet.

BIMC§ 16.12.260(B)(14). A stairway to the beach cannot exceed 120 square feet.


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BIMC§ 16.12.260 (b)(16). Otherwise, the NVZ must be “maintained” in a natural

state.

III.4 Plaintiffs Nelson’s home on Crystal Springs is within the Semi-Rural shoreline

environment. Within that environment, the NVZ is 50 feet. For the subject parcel, the

NVZ Zone takes up 26 % of the ownership. Mandatory side yard and front yard

setbacks take up additional space from active use and development.

III.5 Western Devco LLC came under pressure to obtain a certificate of occupancy

for sale of the waterfront home. Under duress, at the insistence of the City, Western

Devco LLC recorded a “environmentally sensitive area notice to title” on December

20, 2007. A true and accurate copy of the Notice to Title is annexed hereto as Exhibit

B, by reference made part of this complaint. The Notice of Title was a condition

imposed by the Defendant for issuance of a certificate of occupancy for the home. As

part of the Notice of Title, the City mandated “restoration” of the native vegetation

zone on the Property. The City Code, BIMC Chapter 16.12, does not provide for a

Notice of Title or require restoration and enhancement of the NVZ.

III.6 On December 12, 2007, Western Devco LLC provided the City with a copy of

the recorded Notice of Title, advising the City that this step had been taken “under

protest” as allowed by RCW Chapter 82.02, to preserve its position to contest the

Notice.

III.7 Western Devco had a pending sale of the Property which fell through because

of the restrictions set out in the City’s Notice of Title.


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III.8 The City’s NVZ designation on Plaintiffs Nelson’s property is not related to

any specific harm caused by development or use of the ownership for a single-family

home. It is a generic requirement that prohibits any meaningful use of the shoreline.

Its purpose is to provide public benefits, including the aesthetics of the shoreline.

III.9 The waters of the state in and along Crystal Springs are publicly held. The

NVZ enhances the value of those waters and their use for the general public at the

expense of private property owners. The public’s interests in protecting the aesthetics

of the shoreline and near-shore values are outweighed by the adverse economic impact

on Plaintiffs. Within the NVZ, the City’s shoreline regulations destroy fundamental

attributes of property ownership, including the right to reasonably utilize property for

recreational and other uses associated with a single-family residential use.

III.10 Purchasers of waterfront homes such as Mr. and Mrs. Nelsons have a

reasonable expectation of being able to use their shorelines. The Shoreline

Management Act, RCW 90.58 (“the Act” or the “SMA”), and its implementing

guidelines make construction and use of a single-family waterfront home and

appurtenant structures a preferred use. Residential home construction and use are

exempted from the permitting requirements of the Act. The City’s NVZ requirements

(and the related Notice of Title) significantly impair Plaintiff Nelsons’ use of their

property and the value of their ownership.

III.11 The City through imposition of the NVZ and its regulatory requirements is

essentially obtaining land and/or conservation easements for public benefit without

payment of just compensation to the owners of such lands and property rights as COMPLAINT FOR QUIET TITLEAND DAMAGES - 5 of 14[90068-1]

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required by the Fifth Amendment of the United States Constitution and the

Washington State Constitution, Article I, Section 16. The City’s actions are unduly

burdensome on Plaintiffs Nelson (and other waterfront property owners) by requiring

them alone to bear the burden of creating de facto conservation easements for the

public. The Washington State Office of Attorney General states:

The federal and state constitutions do not require the government to compensate landowners for every decline in property value associated with regulatory activity. However, government action that tends to secure some affirmative public benefit rather than preventing some harm, or that is extremely burdensome to an individual’s legitimate expectations regarding the use of property, or that employs a highly burdensome strategy when other less burdensome options might achieve the same public objective, raises the possibility that the action may be a taking of private property. A useful way to approach this principle is to consider whether there is any substantial similarity between a proposed regulatory action and the traditional exercise of the power to condemn property. When government regulation has the effect of appropriating private property for a public benefit rather than to prevent some harm, it may be the functional equivalent of the exercise of eminent domain. In those cases the payment of just compensation will probably be required.

Advisory Memorandum: Avoiding Unconstitutional Takings of Private Property (December

2006).

IV.LEGAL BASIS FOR REQUESTED RELIEF

IV.0 The Washington State Constitution preserves to every person certain

fundamental rights which are inviolate and which cannot be deprived or infringed.

One fundamental right under the Washington State Constitution, as specified in

Article I, Section 3, is the right to have, hold and enjoy private property, including its


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use and development. In addition, the Washington State Constitution in

Article XXVII, Section 2, incorporates the common law of England in effect at the

time of the enactment of the Constitution, which common law rights included the

unalienable right to have, hold, enjoy the use and develop private property.

IV.1 The Fifth and Fourteenth Amendments of the U.S. Constitution, and Article I,

Sections 3 and 12, entitle individuals to substantive due process and protection against

unduly onerous government regulation.

IV.2 The Washington State Constitution, Article XI, Section 11, prohibits any

municipality from promulgating an ordinance that conflicts with the general laws of

the State.

IV.3 Except as provided in RCW 82.02.050 through 82.02.090, no county, city,

town, or other municipal corporation shall impose any tax, fee, or charge, either direct

or indirect, on the development, subdivision, classification, or reclassification of land.

RCW 82.02.020, however, “does not preclude dedications of land or easements within

the proposed development or plat which the county, city, town, or other municipal

corporation can demonstrate are reasonably necessary as a direct result of the

proposed development or plat to which the dedication of land or easement is to

apply.” (Emphasis added).

IV.4 On July 11, 2002, the Washington State Supreme Court issued an opinion in

the case of Isla Verde International Holdings, Inc. v. City of Camas, 146 Wn.2d 740,

49 P.2d 867 (2002). In the Isla Verde case, the City of Camas approved a project

owner’s subdivision application subject to conditions that the developer set aside 30 COMPLAINT FOR QUIET TITLEAND DAMAGES - 7 of 14[90068-1]

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percent of the subdivision for open space. The Court of Appeals held that the Camas

ordinance requiring that every proposed subdivision retain 30 percent of its area as

open space violated constitutional standards. Isla Verde International Holdings, Inc. v.

City of Camas, 99 Wn. App. 127, 990 P.2d 429 (1999), aff’d in part on other grounds,

146 Wn.2d 740 (2002). The State Supreme Court affirmed the Court of Appeals’

decision to invalidate the 30 percent set-aside condition on the basis that a generic 30

percent set-aside was an illegal in-kind “tax, fee, or charge” on new development, in

violation of the general laws of the state, RCW 82.02.020. Isla Verde International

Holdings, Inc. v. City of Camas, 146 Wn.2d at 765. Isla Verde affirmed the rule that

impact fees, dedications and conditions on development must be reasonably necessary

as a direct result of the specific development, holding that formulas based on the

impacts of development in general, and the needs of the City in general, are unlawful.

Id. at 760-61.

IV.5 The Supreme Court’s opinion in Isla Verde invalidates generic set asides that

are not established through an individualized determination of the actual impacts of

the specific project in question. See also Citizen’s Alliance v. King County.

Bainbridge Island’s Native Vegetation Zone generic buffer and related regulatory

requirements conflicts with and violates RCW Chapter 82.02 as interpreted by the

courts. For this reason, the City’s Notice to Title and its restrictions on use and

development of Plaintiffs’ shoreline is illegal.

IV.6 The SMA only requires that a local government protect shorelines as critical

areas from new harm; it does not require regulations to enhance or restore already COMPLAINT FOR QUIET TITLEAND DAMAGES - 8 of 14[90068-1]

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degraded critical areas. See Swinomish Indian Tribal Cmty.v. W. Wash. Growth Mgmt.

Hearings Bd., 161 Wn.2d 415, 427-31 (2007) (rejecting the argument that protection

of critical areas required that Skagit County “restore habitat functions and values that

no longer exist”).

IV.7 The SMA and its implementing regulations do not authorize the City to place

the burden of shoreline restoration, enhancement or improvement on private property

owners. Instead, the regulations adopted by the Department of Ecology to implement

the SMA provide unequivocally that:

The policy goals of the act, implemented by the planning policies of master programs, may not be achievable by development regulations alone. Planning policies should be pursued through the regulation of development of private property only to an extent that is consistent with all relevant constitutional and other legal limitations (where applicable, statutory limitations such as those contained in chapter 82.02 RCW and RCW 43.21C.060) on the regulation of private property. Local government should use a process designed to assure that proposed regulatory or administrative actions do not unconstitutionally infringe upon private property rights.

WAC 173-26-186(5) (emphasis added). The regulations also state:

Local master programs shall include regulations and mitigation standards ensuring that each permitted development will not cause a net loss of ecological functions of the shoreline; local governments shall design and implement such regulations and mitigation standards in a manner consistent with all relevant constitutional and other legal limitations of the regulation of private property.

WAC 173-26-186(8)(b)(i) (emphasis added). A local government is instructed that if it cannot

meet its “necessary” policy goals under constitutional and statutory limitations on the


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regulation of private property, then it must purchase the property – it cannot simply take the

property. See 90.58.240; WAC 173-26-191(1)(a).

IV.8 Over-sized “no build” buffers such as the City’s NVZ are not necessary to

protect the actual functions and values of shoreline or critical areas, and constitute

enhancement or restoration regulations exceeding the SMA and/or Growth

Management Act (“GMA”) requirements. Swinomish, 161 Wn.2d at 427-31; Ferry

County v. Concerned Friends of Ferry County, 155 Wn.2d 824, 835 (2005); Honesty

in Envtl. Analysis Legislation (HEAL) v. Cent. Puget Sound Mgmt. Hearings Bd., 96

Wn. App. 522, 533-34 (1999); see also Lucas v. South Carolina Coastal Council, 505

U.S. 1003, 1028 (1992); James S. Burling, Private Property Rights and the

Environment After Palazzolo, 30 B.C. Envtl. Aff. L. Rev. 1, 13 (2002) (The Lucas

Court has “refuted the notion that a regulation designed to protect the public interest

by preventing harm is automatically immune from takings liability.”).

IV.9 Both federal and state courts have held buffers subject to a takings analysis.

Dolan v. City of Tigard, 512 U.S. 374, 380, 389 (1994); see also Lucas, 505 U.S. at

1018-19 (conservation easements and similar negative regulation deprive the

landowner of a distinct property interest and may result in a taking); Isla Verde Int’l

Holdings, Inc. v. City of Camas, 146 Wn.2d 740, 752-54 (2002) (invalidating open

space requirement intended to protect the environment and provide critical habitat);

Citizens’ Alliance for Property Rights v. Sims, 145 Wn. App. 649 (2008), rev. denied,

203 P.3d 378 (2009) (invalidating open space set aside intended to protect against

stormwater runoff under state statute incorporating Nollan/Dolan federal COMPLAINT FOR QUIET TITLEAND DAMAGES - 10 of 14[90068-1]

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constitutional takings test). To survive a takings challenge, local government must

demonstrate “a close causal nexus between the burdens imposed by the regulations

and the social costs that would otherwise be imposed by the property’s unregulated

use.” R.S. Radford, Of Course a Land Use Regulation That Fails to Substantially

Advance Legitimate Interests Results in a Regulatory Taking, 15 Fordham Envtl. L.

Rev. 353, 390 (2004) (citing Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 838-39

(1984)); Burton v. Clark County, 91 Wn. App. 505, 521-22 (1998) (To establish nexus,

the County “must show that the development … will create or exacerbate the

identified public problem” and that its proposed condition “tends to solve, or at least to

alleviate, the identified public problem.”). It is this causal connection, “not a means-

ends fit, that offers real protection against the imposition of unjustified or

disproportionate burdens on individual property owners.” Radford, 15 Fordham Envtl.

L. Rev. at 391.

IV.10 Once nexus is shown, local government must show that it engaged in “some

sort of individualized determination that the required dedication is related both in

nature and extent to the impact of the proposed development.” Dolan, 512 U.S. at

391; See also Mark W. Cordes, Legal Limits on Development Exactions: Responding

to Nollan and Dolan, 15 N. Ill. U.L. Rev. 513, 550 (1995) (“[O]ne clear principle that

does emerge from Dolan is that most at risk will be those exactions that are imposed

because the local government has already decided that it wants the land in question

and uses the development approval process as a means to get it.”). Thus, to impose


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buffers on private property, the City must do more than just rely on generalized

studies.

IV.11 Constitutional and statutory laws prohibit Bainbridge Island from imposing

excessive and inflexible buffers on shoreline properties, including its NVZ. Any

buffers adopted should include built-in flexibility to respond to site specific

circumstances such that the buffer restrictions are reasonably necessary as a direct

result of the proposed development or use of the property. See Dolan, 512 U.S. 374;

Citizens’ Alliance, 145 Wn. App. 649. The City’s NVZ fails this test.

IV.12 The City’s NVZ and its related restrictions are arbitrary and unreasonable and

deprive Plaintiffs of their substantive due process rights. The City’s Native Vegetation

Zone requirement is unduly oppressive in restricting the reasonable development and

use of Plaintiffs Nelson’s shoreline property. On its face, and as applied to Plaintiffs

Nelson, the City’s Notice of Title and its restrictions on use and development of the

shoreline are illegal and unconstitutional.

IV.13 Plaintiffs’ interest in the ownership, use and development of their real property

is a protected property interest under the Washington State and the United States

Constitutions which cannot be impaired or taken by the City without payment of just

compensation. The City’s exaction/dedication requirements set out in its NVZ

regulations and the Notice of Title deprive Plaintiffs Nelson of their property without

just compensation in violation of the Fifth and Fourteenth Amendments of the U.S.

Constitution, and Article I, Section 3 of the Washington State Constitution. Therefore,


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for this reason as well, the City’s Notice of Title and its restrictions on the use and

development of the shorelines are illegal.

V.FIRST CAUSE OF ACTION – QUIET TITLE

V.0 Plaintiffs reallege all allegations specified in Sections I-IV of this Complaint,

including all subparagraphs specified therein.

V.1 The City’s Notice of Title violates Plaintiffs statutory and constitutional rights

as set out above. The Notice of Title and its use restrictions are unlawful. The Court

should declare the Notice of Title illegal and void, vacate the Notice, and restore

Plaintiffs’ title without restriction or condition.

VI.SECOND CAUSE OF ACTION – PERMANENT TAKING

VI.0 Plaintiffs reallege all allegations specified in Sections I-V of this Complaint,

including all subparagraphs specified therein.

VI.1 Plaintiffs Nelson are unable to use and develop their shoreline property for the

purposes intended because of Defendant’s unlawful conduct by imposition of the NVZ

and its restrictive requirements.

VI.2 The actions of the City in enforcing and applying the NVZ and its

requirements to Plaintiffs, including a Notice of Title, have caused a permanent taking

and damaging of the Nelson’s property under State law without just compensation

having been paid, as required by Article 1 Section 16 of the Washington Constitution.

VI.3 Defendant has proximately caused significant and substantial damage to

Plaintiffs and Plaintiffs Nelson are entitled to compensation for the loss and value of

their shoreline property caused by Defendant’s illegal actions set out herein.COMPLAINT FOR QUIET TITLEAND DAMAGES - 13 of 14[90068-1]

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VII.REQUEST FOR RELIEF

Plaintiffs request that the Court grant the following relief:

VII.0 Declare that the City of Bainbridge Island’s environmentally sensitive area

Notice of Title is void and illegal for one or more of the reasons enumerated in this

Complaint.

VII.1 Quiet Title, vacate the Environmentally Sensitive Area Notice of Title and

order the City to record the Notice of Vacation.

VII.2 In the alternative, award Plaintiffs Nelson damages on their claim for a

permanent taking

VII.3 Award Plaintiffs their reasonable attorneys’ fees and costs incurred herein

pursuant to RCW 8.25.075.

VII.4 Award such further relief as is considered necessary or appropriate pursuant to

the Court’s inherent legal and equitable powers.

DATED this _____ day of June, 2009.

DENNIS D. REYNOLDS LAW OFFICE

______________________________________By Dennis D. Reynolds, WSBA #04762Attorneys for Plaintiffs


doug nelson complaint

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