Whether there should be new docks
in Blakely Harbor poses a philosophical question:
Who owns the water - adjoining landowners who want to build a
dock over or on it, or the public that objects to visual and
navigational intrusions?
But the resolution is likely to be less philosophical than
legal. And the legal answer is far from clear-cut.
"Having a dock is not a property right," said Iver
MacDougall, a retired attorney and president of the South
Bainbridge Community Association. "You may own the
tidelands, but you do not control the water."
In one sense, MacDougall is clearly correct - there seems to
be little question that the State of Washington has the right
and obligation to control the waterways and the lands underneath
them.
The real question may be whether the state, as owner and
controller of the waterways, has given blanket permission to
build docks.
At one point in time, the answer appeared to be yes. In 1983,
the Washington State Legislature passed a law stating that
"the abutting residential owner to state-owned shorelands,
tidelands, or related beds of navigable water may install and
maintain without charge a dock on such areas if used exclusively
for private recreational purposes."
Opponents challenged that law in court, claiming that under
the ancient "public trust doctrine," the state owned
the tidelands and controlled the waters for the benefit of all
citizens, and could not grant exclusive use to the adjoining
landowner.
The challengers did not prevail. In a 1987 case, the Supreme
Court said that the state was not giving away any property
rights, but simply giving permission to build docks - permission
the state could revoke.
And it said the Legislature was striking a reasonable balance
of interests by allowing private docks, which provide
recreational opportunities for landowners and guests, while not
unduly burdening the non-owning public, who could navigate
around or under the structures.
Later in 1987, the Supreme Court said that what the
Legislature gave, it could take away. It said that an owner who
was denied permission to develop the tidelands could not sue for
compensation, because he had no property "right," only
the opportunity to seek permission.
According to MacDougall, modifying or withdrawing any general
permission to build docks is exactly what the state is doing.
He points to two recent decisions by the state Shoreline
Hearings Board denying dock permits on Hood Canal because of the
visual impact, and because of the possible proliferation of
docks in relatively pristine areas.
Those cases have been appealed to Mason County Superior
Court, but no decisions have been announced.
The Mason County cases, though, were based on that
jurisdiction's specific shoreline regulations. Bainbridge
regulations are different, and the city's planning department is
not sure it can deny permits based on aesthetics or neighborhood
opposition.
"I don't think those things will be an issue,"
planning Director Stephanie Warren said, adding that
environmental issues would be decisive.
MacDougall thinks the Blakely Harbor applications may end up
in court, even though he agrees that environmental concerns are
not terribly significant.
"The cumulative adverse effect on the public interest is
a basis for denial," he said.
"There is considerable community feeling about this.
We're prepared to litigate."