Biggers v. City of Bainbridge Island , 162 Wash. 2d 683 ( 2007 )

¶1

J.M. Johnson, J.

Today, we review the city of Bainbridge Island (City) City Council’s adoption of rolling moratoria, which imposed a multi-year freeze on private property development in shoreline areas. The City denied the processing of permit applications for more than three years. There is no state statutory authority for the City’s moratoria or for these multiple extensions. Clearly, this usurpation of state power by the local government disregards article XVII, section 1 of the Washington Constitution, which expressly provides that shorelines are owned by the State, subject only to state regulation. The City is not authorized to adopt moratoria on shoreline development arising out of its police powers under article XI, section 11 of the Washington Constitution, which limits local government to regulation “not in conflict with general laws.” Thus, we affirm both the trial court and the unanimous Court of Appeals decision invalidating the ordinances.

Summary of the Case

¶2 The ultimate subject of this lawsuit is the construction of shoreline structures designed to protect the land of shoreline property owners. These structures are, by definition, improper subjects for city-issued moratoria because inaction leaves all shoreline property defenseless against erosion. See, e.g., RCW 90.58.020 (calling for effective and timely protection for the shorelines of single family residences).¹ Despite the clear violation of property owners’ rights, the City embraced the moratoria as a means to refuse consideration of any permit applications, thereby deferring difficult development decisions.

¶3 Under the City’s scheme, suspension of the application process left private property owners to bear the costs associated with this denial of process (including property erosion and economic loss).² See W. Main Assocs. v. City of Bellevue, 106 Wn.2d 47, 51-52, 720 P.2d 782 (1986) (noting the costs to society where property owners cannot plan developments with reasonable certainty). Clearly, the City’s procrastination resulted in a physical degradation of these private owners’ property without any direct cost to the City.

¶4 In its defense, the City argues that the moratoria were necessary to allow time to update its Shoreline Master Program (SMP). This argument is undercut by an inconvenient truth: the relevant statutes do not require the SMP to be updated until December 1, 2011. RCW 90.58.080(2)(a)(iii). It is unclear whether the City planned to ban applications until 2011, thereby allowing erosion damage to continue unabated for 10 years. Prior to this civil action, the City had years to make any required plan changes but did not do so. The City justified its moratoria actions by arguing that any new construction permitted may harm the shoreline habitat. This rationale cites potential harm rather than actual, demonstrated harm. Standing alone, theoretical harm is not enough to deny private property owners fundamental access to the application review process or protection and use of their property.

¶5 The importance of shorelines of statewide significance is codified in the Shoreline Management Act of 1971 (SMA), chapter 90.58 RCW, and the SMA balanced this policy with the rights of private property owners. See RCW 90.58.020. Under the SMA, the State has the primary authority to manage shoreline development. This is done in a coordinated fashion, in conjunction with local governments. There is no authority in the SMA, express or inherent, which justifies the City’s attempt to impose unilateral moratoria. Municipalities possess only those powers given by the legislature. See Lutz v. City of Longview, 83 Wn.2d 566, 570, 520 P.2d 1374 (1974). Moreover, the SMA does not allow for a city-adopted moratorium, and the SMA cannot be amended by implication.

Pacts and Procedural History

¶6 The city of Bainbridge Island constitutes the entire island, located in Puget Sound and surrounded by approximately 48 miles of shoreline. The City adopted its SMP in 1996 in conjunction with its comprehensive plan under the Growth Management Act (GMA), chapter 36.70ARCW. The City’s SMP identifies environmentally sensitive areas and native vegetation on the island, designates shoreline uses by area, sets out specific shoreline use regulations and plan administration, and includes a map. The parties agree that the City’s SMP does not contain any reference to the use of moratoria on shoreline development.

¶7. In August 2001, city staff requested the city council to adopt a moratorium on shoreline development pending revision of the SMP, ostensibly because the city staff lacked scientific information needed to assess the possible environmental effects of shoreline development on salmon habitat. On August 22, 2001, the City adopted Ordinance 2001-34, which imposed a one-year moratorium on filing “new applications for shoreline substantial development permits, shoreline substantial development exemptions and shoreline conditional use permits.” Clerk’s Papers (CP) at 140. The moratorium did not apply to “applications solely for [the purpose of] normal maintenance, normal repair and emergency repair of existing structures.” Id. The ordinance stated that the City needed additional time to study scientific information and revise its SMP, “during which time significant shoreline habitat that supports a species threatened with extinction could be lost or damaged.” Id. The ordinance referred to authority set out in RCW 35A.63.220 and RCW 36.70A.390 and stated that the City would hold a public hearing within 60 days and prepare findings of fact in accordance with those procedures.

¶8 In October 2001, the City held a public hearing and adopted Ordinance 2001-45, which amended Ordinance 2001-34. This ordinance did not amend the one-year term but altered the scope of the moratorium. The moratorium continued to prohibit the filing of new applications for shoreline substantial development permits, exemptions, and shoreline conditional use permits, but applied only to “new overwater structures (piers, docks and floats) and new shoreline armoring (bulkheads and revetments) where none has previously existed.” CP at 147. Ordinance 2001-45 also exempted from the moratorium “shoreline permits for single family residences and their normal appurtenances,” but did not exempt normal maintenance, normal repairs, or emergency repairs as had Ordinance 2001-34. Id. The newest ordinance also provided findings of fact which stated that piers, docks, and bulkheads could potentially have a significant impact on shoreline habitat, and that the moratorium was focused on the “structures that have the greatest potential to impact shoreline habitat.” CP at 146. The ordinance stated that the moratorium was “necessary for the protection of the public health, safety, property, or peace, including the protection of shoreline habitat that supports a species threatened with extinction.” CP at 147.

¶9 Ray and Julie Biggers filed their original complaint after the City enacted Ordinance 2001-45, seeking a declaratory judgment that the moratorium was illegal and void. In their complaint, the Biggerses argued that the moratorium (1) violated article XI, section 11 by conflicting with the general laws of the state; (2) exceeded the scope of the City’s statutory authority under RCW 35A.63.220 and RCW 36.70A.390, which do not permit moratoria for shoreline regulations; (3) was for impermissible purposes; and (4) invalidly amended the City’s SMP.³ While the case was pending, the City reviewed an environmental assessment and prepared a draft revised SMP.

f 10 In August 2002, the City held a public hearing to discuss extending the moratorium. Following the hearing, the City enacted Ordinance 2002-29, extending the moratorium for seven additional months. The ordinance cited the City’s ongoing efforts to revise its SMP and stated that the City would not complete the revisions until early 2003. Like Ordinance 2001-45, Ordinance 2002-29 provided findings of fact to support the moratorium, including a statement that the moratorium was “necessary for the protection of the public health, safety, property, or peace, including the protection of shoreline habitat that supports a species threatened with extinction.” CP at 152. The Biggeress filed an amended complaint, adding allegations relating to Ordinance 2002-29.

¶11 Both parties moved for summary judgment. In their motion for summary judgment, the Biggerses argued that the power to adopt moratoria is not included in the City’s power to regulate shoreline use under the SMA. The City argued that it has authority to adopt moratoria under the express statutory grants of authority in RCW 35A.63.220 and RCW 36.70A.390.

¶12 The trial court issued a memorandum decision granting summary judgment to the Biggerses. The court determined that the moratorium was not a de facto amendment of the City’s SMR The court also concluded that the City did not have implied authority to adopt a moratorium under the SMA. The court reasoned that the legislature granted “ultimate authority to the Department of Ecology to approve decisions made by local governing agencies concerning shorelines.” CP at 785. It further determined that even if the City did have implied authority, the moratorium in this case conflicted with the SMA general law of the State because this moratorium improperly imposed restrictions on shoreline developments that “are exempt from the shoreline management program requirements.” CP at 786. It also concluded that the City had “overstepped its constitutional limits in passing the moratorium ordinance.” CP at 788.

¶13 The City filed a notice of appeal, and the commissioner of the Court of Appeals stayed the judgment pursuant to RAP 8.1(b)(2). While the judgment was stayed, the City enacted Ordinance 2003-34, which extended the moratorium for another year (with slight modifications). It stated that extension was necessary “while the City considers the amendment to the [SMP] and implementing regulations relating to docks and piers in Blakely Harbor, and obtains necessary approvals of the amendments.” City’s Opening Br., App. 10, at 6. At the same meeting, the City adopted Ordinance 2003-30, which proposed amendments to the City’s SMP.

¶14 At the Court of Appeals, the City continued to argue that RCW 35A.63.220 and RCW 36.70A.390 are express statutory grants of authority to adopt moratoria. The Biggerses agreed that RCW 35A.63.220 and RCW 36.70A-.390 are express grants of authority but continued to argue that these statutes do not apply to shoreline development. The Biggerses further argued that the authority to adopt moratoria is not part of the City’s police powers if inconsistent with the general state laws (SMA) and argued that the City may not adopt moratoria absent express statutory authority.

¶15 The Court of Appeals affirmed the trial court but ultimately denied the Biggerses’ request for attorney fees under RCW 4.84.370. Biggers v. City of Bainbridge Island, 124 Wn. App. 858, 868, 103 P.3d 244 (2004). The court concluded that while RCW 35A.63.220 and RCW 36.70A.390 are express grants of authority, neither statute applied to shoreline development because shoreline management regulations and SMPs “do not fall within the definition of zoning.” Id. at 866. The court further held that RCW 36.70A.390 is “limited to growth management in selected counties and cities” and “does not apply to shoreline management.” Id. The court reasoned that because the GMA “clearly specifies that [the SMA] governs the unique criteria for shoreline development,” the SMA “trumps the GMA in this area” and the “SMA does not provide for moratoriums on shoreline use or development.” Id. at 867.

¶16 The City petitioned this court to determine whether the Court of Appeals erred in ruling that the City lacks inherent constitutional and/or statutory authority to adopt moratoria. In its petition for review, the City continued to argue that it had statutory authority to adopt moratoria, but only under RCW 36.70A.390. However, the City also argued in its petition that under article XVII, section 1 of the Washington Constitution, it has inherent constitutional authority to adopt moratoria on shoreline development.⁴

¶17 The Biggerses agreed that RCW 36.70A.390 is an express grant of authority to adopt moratoria but argued that this statute applies only to land use actions under the GMA. The Biggerses also sought review of the Court of Appeals denial of attorney fees. We granted review. Biggers v. City of Bainbridge, 156 Wn.2d 1005, 132 P.3d 146 (2006).

¶18 In its supplemental brief to this court, the City argued for the first time that it has authority to adopt moratoria under the state constitution’s broad grant of police power to cities and counties in article XI, section 11. The City abandoned its earlier argument that RCW 36-.70A.390 grants express authority to adopt moratoria, arguing instead that the statute addresses how existing constitutional authority should be exercised. The Biggerses filed a motion to strike the City’s article XI, section 11 argument from the supplemental brief, and the motion was passed to the merits. The City insists that it has fully briefed the argument both at the Court of Appeals and to this court.

Motion To Strike

¶19 The Biggerses’ motion to strike the article XI, section 11 argument of the City’s supplemental brief and related amici briefing was passed to the merits on February 23, 2006. We recognize that this court can review all arguments necessary to “ ‘serve the ends of justice,’ ” including those issues not raised at the trial or appellate court level. Tuerk v. Dep’t of Licensing, 123 Wn.2d 120, 124, 864 P.2d 1382 (1994) (internal quotation marks omitted) (quoting Kruse v. Hemp, 121 Wn.2d 715, 721, 853 P.2d 1373 (1993)); see also Harris v. Dep’t of Labor & Indus., 120 Wn.2d 461, 468, 843 P.2d 1056 (1993). However, we have consistently followed RAP 13.7(b), which states, “the Supreme Court will review only the questions raised in the motion for discretionary review . . . .”⁵ Here, the relevant constitutional argument was not raised in the City’s motion or petition for review. This issue was raised by the Biggerses earlier in the litigation, in the context that any exercise of City authority may not be “in conflict with general laws,” and is cited by the trial court in its order for summary judgment. To this extent, the Biggerses cannot claim they have had insufficient notice of the constitutional provision or that they are unfairly prejudiced by the City’s argument. Thus, we grant the motion to strike to the extent the briefing seeks to extend the issue beyond the arguments raised below and decided herein.

Standard of Review

¶20 When reviewing an order granting summary judgment, we engage in de novo review, taking all facts and inferences in the light most favorable to the nonmoving party. Boag v. Farmers Ins. Co. of Wash., 117 Wn. App. 116, 121, 69 P.3d 370 (2003).

Analysis

A. Local Government Has Limited Power Over State Shorelines

¶21 We begin our constitutional analysis with article XI, section 11 of the Washington Constitution. Section 11 includes a specific exception to its simple statement of the general police powers of local governments: “Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws.” (Emphasis added); see also, e.g., HJS Dev., Inc. v. Pierce County, 148 Wn.2d 451, 482, 61 P.3d 1141 (2003) (“Local jurisdictions may enact ordinances upon subjects already covered by state legislation if their enactment does not conflict with state legislation.” (citing Lenci v. City of Seattle, 63 Wn.2d 664, 670, 388 P.2d 926 (1964))).

¶22 Any grant of police power to local government is subject to constitutional limitation, which is judicially enforced. “Our cases uniformly state that exercises of the police power are subject to judicial review.” Petstel, Inc. v. County of King, 77 Wn.2d 144, 154, 459 P.2d 937 (1969); see also State ex rel. Brislawn v. Meath, 84 Wash. 302, 313, 147 P. 11 (1915) (observing that if a police power regulation “ “has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the constitution’ ” (quoting Mugler v. Kansas, 123 U.S. 623, 661, 8 S. Ct. 273, 31 L. Ed. 205 (1887))). Courts will not expand the powers of local government beyond express delegations. See City of Spokane v. J-R Distribs., Inc., 90 Wn.2d 722, 726, 585 P.2d 784 (1978); see also Lauterbach v. City of Centralia, 49 Wn.2d 550, 554, 304 P.2d 656 (1956).

¶23 The City belatedly attempted to rely on a new right of local government to issue moratoria on development of private property on shorelines of statewide significance. This argument was based upon a theory of city power that the City did not argue to the trial court or to the Court of Appeals; for good reason, the argument fails. Article XVII, section 1 of the Washington Constitution declares that shorelines were originally owned by the State, and therefore subject to State regulation. Even after sale or lease of shorelines, the State continues to hold remaining sovereign interests of the public. Indeed, the SMA was expressly based on the proposition that shorelines are of “statewide significance.” Local governments do not possess any inherent constitutional police power over state shoreline use.

¶24 The Washington Constitution’s recognition of local government police powers “not in conflict with general laws” must be understood in light of article XVII, section 1. That provision provides:

The state of Washington asserts its ownership to the beds and shores of all navigable waters in the state up to and including the line of ordinary high tide, in waters where the tide ebbs and flows, and up to and including the line of ordinary high water within the banks of all navigable rivers and lakes.

Article XVII, section 1 of the Washington Constitution asserts that powers of the state, in this context, are controlling over any powers of local government. Therefore, the police power question presented in this case involves a simple, bright-line matter of jurisdiction. Under article XVII, section 1, the state has the power to regulate shorelines.

¶25 Under the Washington Constitution, local governments have no broad police power over shorelines. Neither the history of article XVII, section 1 nor its interpretation by the courts of this state suggests it allows local governments permit authority over shoreline development in violation of state law or policies, much less power to declare moratoria on shoreline development. See Rettkowski v. Dep’t of Ecology, 122 Wn.2d 219, 232, 858 P.2d 232 (1993) (“the duty imposed by the public trust doctrine devolves upon the State, not any particular agency thereof”), aff’d in part, rev’d in part on other grounds, 128 Wn.2d 508, 910 P.2d 462 (1996).

¶26 The limitation on local police power over shoreline use and development is reinforced by the public trust doctrine. See Rettkowski, 122 Wn.2d at 232 (holding that the public trust doctrine is “partially encapsulated” in article XVII, section 1). According to the public trust doctrine, the shorelines and state waters are held by the state, in trust for all the people of the state. See Ill. Cent. R.R. v. Illinois, 146 U.S. 387, 455, 13 S. Ct. 110, 36 L. Ed. 1018 (1892) (“The ownership of the navigable waters of the harbor and of the lands under them is a subject of public concern to the whole people of the State.”), aff’d, 154 U.S. 225, 14 S. Ct. 1015, 38 L. Ed. 971 (1894). “The state can no more convey or give away this jus publicum interest than it can ‘abdicate its police powers in the administration of government and the preservation of the peace.’ ” Caminiti v. Boyle, 107 Wn.2d 662, 669, 732 P.2d 989 (1987) (quoting Ill. Cent. R.R., 146 U.S. at 453).

f27 Clearly, the interests of all Washington residents in these shorelines cannot be impliedly abdicated to local governments. A state statute, such as the SMA, may serve to delegate some state power. Thus, regulation of the use and development of shorelines under the SMA is derived from the State, which holds all such shorelines in trust for all people of this state under the constitution.

¶28 The doubtful existence of any “implied” city power over state shorelines is further indicated by its belated discovery years after these moratoria were issued. No prior case or statute is directly cited in support of this argument. The City did not rely upon any “implied” constitutional power when it voted for the ordinance to institute a moratorium or on the numerous occasions it voted for extended moratoria. The City notices of ordinances do not claim such a power. Instead, the City consistently asserted that there was an express statutory grant of authority. See CP at 136 (Ordinance No. 2001-32) (citing RCW 35A.63.220 and RCW 36.70A.390 for authority to adopt moratoria); CP at 139-40 (Ordinance No. 2001-34) (citing RCW 35A.63.220 and RCW 36.70A.390 for authority to adopt moratoria).

¶29 Strikingly, the City also never argued to the trial court that it had any “implied” constitutional authority. Moreover, the City admits it never argued for such “implied” authority to the Court of Appeals. See City’s Reply Br. at 3 (“The City has never argued that it has ‘implied’ powers that gave it the ability to impose the Moratorium.”). The posthoc rationalization made to this court for the offending moratoria is indefensible and inconsistent with the constitution’s limitation on local government. See Wash. Const, article XI, section 11 (granting local government only those powers “not in conflict with general laws”).

B. The SMA Precludes Local Moratoria on Shorelines

¶30 The SMA was enacted by vote of the people in 1971 as Initiative 43B. The vote reflected the decision of the voters choosing between a citizen initiative and the legislature’s alternative (see Wash. Const, art. II, § 1). See Geoffrey Crooks, The Washington Shoreline Management Act of 1971, 49 Wash. L. Rev. 423, 424-25 (1974). The people of this state thus made the SMA. the explicit source of procedures concerning shoreline development. The notion that local governments do not have separate power to issue moratoria on development of state shorelines is reflected in the provisions of the SMA, which delegate only specified powers to local governments. See RCW 90.58.010 through .920. Under the plain terms of the SMA, there is no provision for cities to adopt moratoria. Thus, such moratoria on shoreline development conflict with the general laws of the State.

¶31 The SMA embodies a legislatively-determined and voter-approved balance between protection of state shorelines and development. The State has developed shorelines through improvement of parks and ramps, construction of bulkheads, ferry docks, etc. As part of our careful management of shorelines, property owners are also allowed to construct water-dependent facilities such as single-family residences, bulkheads, and docks. Imposition of a total moratorium conflicts with this regulatory system established by the SMA.

¶32 The SMA also recognized there is an important function performed by structures that protect shorelines. The legislature’s 1992 amendments to the SMA further emphasized this need for certain shoreline structures to provide for the protection of shorelines. This conclusion is illustrated by the SMA’s provisions requiring prompt adoption of SMPs and shoreline structure permit processing.

¶33 The SMA contains an express “preference” for issuing such permits. RCW 90.58.100(6). Thus, the SMA also requires that all SMPs contain methods to achieve “effective” and “timely” protection for shoreline landowners. Id. SMPs must provide for “the issuance of substantial development permits for shoreline protection, including structural methods such as construction of bulkheads . . . .” Id. Permit application to local governments must be processed in a timely manner. See id.

f 34 A permit for substantial development on shoreline “shall be granted” when development is consistent with the applicable SMP and provisions of the SMA. RCW 90-.58.140(2). This is a mandatory provision included in each city-adopted SMP before the Department of Ecology approves: “[e]ach master program shall contain standards governing the protection of single family residences and appurtenant structures against damage or loss due to shoreline erosion.” RCW 90.58.100(6) (emphasis added).

135 The desirability of some shoreline structures is further evidenced by the requirement that SMPs include exemptions from permitting requirements for certain structures. See RCW 90.58.030(3)(e). Activities exempted from the “substantial development” permit requirement include the installation of a protective bulkhead for a single family home, maintenance and repair of existing structures, and construction that is necessary for agricultural activities. See RCW 90.58.030(3)(e)(i)-(iv).

¶36 As previously noted, our constitution provides that all local police power measures may not conflict with the general law of the state. See Wash. Const, art. XI, § 11; HJS Dev., 148 Wn.2d at 482; Lenci, 63 Wn.2d at 670. Of course, this rule applies equally to procedures found in the SMA.

137 In direct conflict with this constitutional principle, the City’s moratoria on processing applications prohibits what state law permits. See HJS Dev., 148 Wn.2d at 482; Rabon v. City of Seattle, 135 Wn.2d 278, 292, 957 P.2d 621 (1998). Without amending the 1996 SMP, which received the required approval from the Department of Ecology, the City imposed moratoria blocking developments which the SMP approved. See RCW 90.58.090 (a master program or amendment proposed by local government shall be effective when approved by the Department of Ecology). The SMA’s statewide mandates, and the coordinated system established by that act, are thwarted by the City’s rolling moratoria.

¶38 This court has frequently held that local governments possess only those powers expressly delegated or found by necessary implication. See J-R Distribs., 90 Wn.2d at 726; see, e.g., Lauterbach, 49 Wn.2d at 554; Pac. First Fed. Sav. & Loan Ass’n v. Pierce County, 27 Wn.2d 347, 353, 178 P.2d 351 (1947); State ex rel. Hill v. Bridges, 87 Wash. 260, 261, 151 P. 490 (1915). Where there is doubt as to the existence of a state power arguably conferred to a local government, this court will construe the question against local government and against the claimed power. See J-R Distribs., 90 Wn.2d at 726. Here, because the SMA is the exclusive source of shoreline development regulation and because the SMA makes no affirmative grant of moratoria authority, local governments do not have implied power to adopt moratoria. The City’s imposition of moratoria was ultra vires and in conflict with the SMA’s regulatory framework.

¶39 The City’s moratoria also violate the principles of Washington Constitution’s article XVII, section 1 and the public trust doctrine. The authors of our constitution would be surprised by the City’s claim of power, as would the voters who approved the SMA.

¶40 The City’s argument about implied or inherent power is further undermined by the legislature’s adoption of comparable statutes that do contain an express grant of moratoria authority. See Sheehan v. Cent. Puget Sound Reg’l Transit Auth., 155 Wn.2d 790, 797, 123 P.3d 88 (2005). In 1992, the legislature expressly authorized moratoria under multiple statutes: chapter 35.63 RCW (planning commissions); chapter 35.22 RCW (first class cities); chapter 35A.63 RCW (planning and zoning in code cities); chapter 36.70ARCW (growth management); chapter 36.32 RCW (comity commissioners); and chapter 70.05 RCW (local health departments). Strikingly, the legislature did not grant local government moratoria authority in its 1992 amendments to the SMA. This confirms our judgment that such moratorium power does not exist where it is not expressly granted.

¶41 Either the legislature or the people could have conferred moratoria authority to local governments by affirmative enactment. Neither chose to do so when adopting the SMA, or later.

C. The GMA Does Not Establish a Local Moratorium Power over Shorelines

¶42 The GMA does not displace the SMA as the framework for statewide shoreline regulation. Rather, the legislature carefully and explicitly preserved the integrity of the SMA’s adoption and approval procedures. The GMA makes this clear. Subsections of the GMA reiterate that the provisions of the SMA remain the source of adoption procedures for shoreline development.

(2) The shoreline master program shall be adopted pursuant to the procedures of chapter 90.58 RCW rather than the goals, policies, and procedures set forth in this chapter for the adoption of a comprehensive plan or development regulations.

(3) The policies, goals, and provisions of chapter 90.58 RCW and applicable guidelines shall be the sole basis for determining compliance of a shoreline master program with this chapter except as the shoreline master program is required to comply with the internal consistency provisions of RCW 36.70A.070, 36.70A.040(4), 35.63.125, and 35A.63.105.

RCW 36.70A.480; see also Biggers, 124 Wn. App. at 867 (“the GMA states that the provisions of chapter 90.58 RCW take priority over the GMA as long as the provisions are internally consistent with a few specific statutes, none of which apply under these facts”).

¶43 The policies and procedures of the SMA predated the GMA and were part of land use laws when the GMA was adopted in 1990. The 1995 amendments to the GMA simply provide that the goals and policies of a city’s shoreline master program shall be considered a part of that city’s GMA comprehensive plan. See RCW 36.70A.480(1). The legislature thus recognized the distinctiveness of shorelines and the need for consistency, and a continuing regulatory regime for shorelines.

¶44 The process for adopting SMPs is different from the process for adopting GMA comprehensive plans and regulations. The SMA did not vest planning authority exclusively in local government, as did the GMA. Instead, the SMA provides for state checks and balances on local authority, including the requirement that the Department of Ecology approve all local shoreline master plans before they become effective. RCW 90.58.090(1). A city may not block implementation of the state-approved SMP through use of local moratoria. To do so would be to put the City in conflict with a mandate imposed by general laws of the State.

¶45 Although the GMA frequently mentions shoreline master programs, the GMA could not alter the provisions of the SMA without express amendment. Article II, section 37 of the Washington Constitution provides: “No act shall ever be revised or amended by mere reference to its title, but the act revised or the section amended shall be set forth at full length.” No such express amendments of the SMA were included in the GMA. Rather, “[t]he GMA clearly specifies that chapter 90.58 RCW (the SMA) governs the unique criteria for shoreline development.” Biggers, 124 Wn. App. at 867.

D. Attorney Fees

¶46 The Biggerses qualify for reasonable attorney fees and costs under RCW 4.84.370(1)(b) because they were “the prevailing party or substantially prevailing party in all prior judicial proceedings” in a matter that qualifies for the award of attorney fees and costs. The City’s moratorium constitutes a “land use ... decision” pursuant to RCW 4.84-.370(1). RCW 4.84.370(1) extends not only to the actions expressly listed but also to other, “similar land use approval[s] or decision[s].” The moratorium denial of permit applications falls within this meaning of the statute. Furthermore, the City’s moratorium was initiated through a site-specific determination. Where local government promulgates a moratorium that bans applications from each site, the application of such a moratorium is a “land use . . . decision” for purposes of RCW 4.84.370(1).

Conclusion

¶47 The protection of Washington’s shorelines for all citizens is an important state constitutional interest reflected in the SMA enacted by the people. No local government may impose regulations that are in conflict with the State’s general laws. Here, the City’s imposition of repeated moratoria was unconstitutional and unlawful. We affirm.

Alexander, C.J., and Sanders and Bridge, JJ., concur.

1 “Alterations of the natural condition of the shorelines of the state, in those limited instances when authorized, shall be given priority for single family residences and their appurtenant structures, ports, shoreline recreational uses including but not limited to parks, marinas, piers, and other improvements facilitating public access to shorelines of the state, industrial and commercial developments which are particularly dependent on their location on or use of the shorelines of the state and other development that will provide an opportunity for substantial numbers of the people to enjoy the shorelines of the state.” RCW 90.58.020 (emphasis added).

2 All institutions, including government, like to keep their options open, but it is often a risky proposition. Increased flexibility normally comes at a higher cost. Here, the City can keep its options open at no cost to itself because virtually the entire risk is imposed on the owners. The private citizen’s risk of loss is a social cost, whether or not it is recognized by the government. See W. Main Assocs. v. City of Bellevue, 106 Wn.2d 47, 51, 720 P.2d 782 (1986).

3 The parties made contradictory arguments as the case progressed. We briefly summarize them at each stage. The Biggerses also made several allegations that they do not raise on appeal and we do not address.

4 Article XVII, section 1 of the Washington Constitution states, in pertinent part, “[t]he state of Washington asserts its ownership to the beds and shores of all navigable waters in the state up to and including the line of ordinary high tide, in waters where the tide ebbs and flows, and up to and including the line of ordinary high water within the banks of all navigable rivers and lakes.”

5 This court routinely declines to accept new case theories which have not been raised in the lower courts. We will not normally consider an issue in absence of adequate argument below. Clearly, all parties deserve sufficient notice regarding possible legal theories, and such issues are most appropriately developed in the Court of Appeals. See Int’l Ass’n of Fire Fighters, Local 46 v. City of Everett, 146 Wn.2d 29, 37, 42 P.3d 1265 (2002).