Sunday, May 8, 2011

Whatcom County Goes Down In Flames Before the State Supreme Court

In a 6-1 decision that came out on Friday (Whatcom County Fire District No. 21 v. Birch Point Village; click here to read the decision), the Washington Supreme Court found that Whatcom County's "concurrency" requirement means just what it says. The County's decision not to apply its own law to development permits was "clear error."

Let's step back for a minute and talk about concurrency. "Concurrency" is the concept that adequate services should be available at the time that development occurs, or within a reasonable time thereafter. In Washington, a "reasonable" time is six years.

That sounds rational, right? And not only is concurrency rational, but it's one of the goals of the Growth Management Act. Counties are supposed to want to make sure that services are available for their citizens.

Whatcom County currently requires "concurrent" water, sewer, transportation, and fire services. To show that adequate capacity is or will be available, water, sewer, and fire service providers have to give developers letters confirming that there's enough capacity for the project.

What if adequate capacity isn't available? Well, in theory, the project can't be approved until the service will be available. And that means that the unthinkable in Whatcom County becomes possible: developers might actually have to pay some of the basic infrastructure costs of their own projects. Because of concurrency.

(Detour: does that mean that the majority of the current County Council wants to get rid of concurrency -- or at least to "amend" it to the point where it doesn't do anything? You betcha. "Revising" concurrency is on the Council's agenda for this year. Here are three links to the Herald's coverage of Kathy Kershner's concurrency amendment initiative: Link 1; Link 2; Link 3. The Council is already proposing to eliminate concurrency policies in its revision of the Comprehensive Plan, up for final approval on Tuesday. See the proposed revision, page 8, Policy 2EE3: link here.)

Back to the Supreme Court, which drily noted that "the Fire District may reasonably be thought to be in the best position to determine what level of fire protection service is adequate and whether it is capable of providing that level of service." Fire District No. 21 decided that it could not provide adequate service to three projects and refused to issue letters to the developers.

The County's Hearing Examiner concluded that the Fire District was wrong and that it was "more likely than not" that the Fire District had enough money to pay for adequate service. Besides, the County's Plan said that adequate service was available, so it must be true. (This is a paraphrase, obviously -- the Supreme Court quotes the Hearing Examiner on page 2 of the decision.) The County Council upheld the Hearing Examiner, as usual. And then the case went to court.

The Supreme Court found two problems with the Hearing Examiner's reasoning. First, the County's own Code requires a letter from fire service providers, so the County couldn't approve the projects without such a letter. Second, the County's plan may say that there's money available for necessary fire district improvements, but the plan did not, in fact, provide for the funding of these requirements.

The Court just wasn't convinced by a claim that "taxes paid by a growing population" would provide sufficient money. It didn't believe that this simple statement constituted adequate capital facilities planning. (This is on page 5 of the decision.)

And that takes us to the larger problem. Unlike the Supreme Court, a lot of people in Whatcom County -- including those in leadership positions -- seem to believe that "taxes from a growing population" will magically take care of the costs of growth. Unfortunately, it just isn't true, and we've already seen the results: growth subsidized by County taxpayers, and service needs that the County just can't pay for.

So this isn't just a case about the Fire District and service letters. It's a case about how Whatcom County plans for growth.

The County could respond in a couple of ways.

It could say "Let's do real planning and budgeting for the costs of new services, and let's figure out the costs of new growth, and let's make sure that new growth pays a fair share of its costs."

Or it could say "Let's get rid of concurrency -- then we don't have to worry about whether services will be available, or how we'll pay for them. "

If you don't think that the second option is a rational, adult approach to planning for the future, you'll need to pay attention to the County Council this year. And to the three County Council election races that will be decided in November.

UPDATE:  Jean won't let me SPAM Jack Petree off the blog.  So, instead, I offer you this image.  Kinda tasty, huh?


  1. Interesting to note that the inclusion of "impact fees" and "concurrency requirements" in the proposed County Comprehensive plan was decisively defeated (7-2) at the County Planning Commission meeting on April 25, 2011.

    Another policy gift from your new "property rights" Commission majority

    John Lesow

  2. The rationale was -- we don't need no stinkin' concurrency?

    Thanks for bringing it up, at least, John. The "old" Planning Commissioners -- John Lesow and John Belisle -- continue to work for good planning. It's a thankless task, but thank you.


    Note that I refrained from referring to you as "the two Johns."

    And of course you're only "old" in Planning Commission years,and only in the sense of accrued wisdom.

  3. "The Supreme Court found two problems with the Hearing Examiner's reasoning." They've obviously not reviewed much of Bobbink's great work.

  4. Concurrency, as I testified to many times in recent years, is to be assured when planning documents are adopted, not at some point in the unknown future. Failing to plan for concurrency when planning is accomplished amounts to "deplanning."

    We did not "Get Whatcom County Planning" when, in 2009, both a pliant planning commission and a County council followed staff advice and ignored the need to adopt fully realized capital facilities plans, i.e. assure concurrency throughout the planning period, when a new comp. plan is adopted.

    Now a new Council will have to do the hard work the old council should have done and use one of the many mechanisms provided for by law to assure concurrency can be achieved in the areas the county decides it is important to develop concurrency plans for.

  5. Jack, oh Jack!

    As a reminder, this new Council just lost a Hearings Board case because they expanded a UGA into an area that didn't have a sewer or fire plan.

    Can you focus on the issue in the blog? Do you think that if they remove concurrency from the ordinance that it will pass GMA or state platting requirements?

    I don't. And, I'll venture a guess that this new council will pass something that will be overturned by the courts, yet again wasting time and resources on issues that could otherwise be put to productive uses.

  6. "...a new Council will have to do the hard work the old council should have done ..."

    Somehow I knew there'd be someone make Bobbink look reasonable.

  7. Mr. Stalheim,

    My point exactly and to the point of the blog.

    November, 2009, the county adopts the plan you wrote and brought forward with full knowledge it was not a compliant plan (see land use chapter page 2-41 for example).

    Then, you challenge, using the same capital facilities plan shortfalls you encouraged the council to adopt.

    So much worry about concurrency today, so little concern then.

  8. Jack,

    Back to fiction writing. I am going to spam you out of this blog. Your fictions attacks on me are no longer worth my time. The recommendations were the Executive's -- not mine. Both the Executive and Council were warned. It was the rebellion from the small city caucus that put forth a plan that could have been challenged.

    Start your own blog, Jack.

  9. Oh, I don't know. I think that Jack is just making himself kind of -- irrelevant.

    I mean, anyone who's interested enough to be reading this blog knows that the reason that David Stalheim is no longer the County Planning Director is not that he urged the County to do too little planning. Nor did the Council majority turf me off the Planning Commission for being "pliant." That's just silliness.

    I wrote the blog, and I know what its purpose was. Its purpose was to discuss planning for concurrency in light of the Supreme Court's decision and the Council's 2011 proposal to gut concurrency. Anybody who wants to talk about these issues -- in 2011, not in some revisionist version of the past -- is welcome.

  10. To me, the most important aspect is still the funding. Who is going to pay for the capital facilities needed to maintain the adopted levels of service concurrently?

    If developers expect existing residents to continue to pony up and subsidize unwanted growth via tax subsidy, I'm afraid that's a non-starter.

    There is nothing more useless than a plan to add capital facilities for which there are no funds to do so. As long as Petree and his ilk oppose impact fees, funding for concurrency will be non-existent.

  11. Spooky,

    Remember that the UGAs have their own capital facility planning requirements, which is different than the county. Many of the cities have impact fees, etc.

    Ferndale just updated their sewer plan, and their fire district will be considering adoption of a plan later this week. Check out the link I provided in the blog about Ferndale, Round 3, if you care about what is happening in that fine city.

  12. David,

    Having an impact fee is quite different than having an adequate impact fee.

    Collecting 25-30% of the costs needed to accommodate growth still results in a 70-75% taxpayer subsidy.

    Do you (or does anyone) have accurate information on what percentage impact fees cover growth's proportionate share of adding infrastructure needed to accommodate growth?

    Until that information is made available to the public, we're all poking in the dark.

  13. Capital facility plans and impact fee ordinances require that this information is available, as impact fees cannot cover all the cost of growth. Fire District 21 has developed a capital facility plan that includes these calculations.

    What makes the Fire District case more complex is that you have two different governments, and unless they are on the same page, you get stalemate. FD21 has developed the plans and budget to provide fire services at the levels that the local community supported. FD21 doesn't have the tax base to keep those services at that level, so it needs alternative funding sources (impact or mitigation fees) to keep the service running at expected levels.

    Whatcom County's response is that they want to drop any requirement for concurrency. What would happen without funding is that service levels will drop. People will die or get seriously injured. Simple as that. Good planning? I don't think so.

  14. Costs associated with population growth must be examined holistically, not looked at in a vacuum. While I agree that concurrency for Fire District 21 is essential to prevent a critical decline in service levels, FD21 is just a microcosm of the big picture.

    You have repeatedly claimed that “impact fees cannot cover all the cost of growth.” According to research conducted by attorneys with the Municipal Research & Services Center of Washington (MRSC), impact fees can cover 99% of the cost of growth. That’s close enough for me.

    More importantly, impact fees can only cover four aspects of population growth: roads, schools, parks, and fire protection. Impact fees cannot be charged for jails, government buildings, police protection, museums and other fine arts facilities, etc. Even if impact fees covered 99% of roads, schools, parks, and fire protection needed to accommodate growth, they cover 0% of every other cost associated with growth. As it stands, it is estimated that impact fees are covering less than 35% of roads, schools, parks and fire. If nothing else, impact fees for these four items should be increased substantially.

    Investigating each detailed item – as you have with FD21 – is important; however, we cannot lose sight of the forest from the trees. Existing residents are paying a heavy tax subsidy for unwanted growth. Who has a holistic handle on that?

  15. I forgot to mention that impact fees cannot cover the cost of libraries either. Just the cost to acquire the new jail and library will cost existing taxpayers a bundle. These needs are directly related to population growth; however, those who profit from growth won't contribute a dime toward the new jail or library.

  16. Spooky Action,

    You have never heard me say, not once, that impact fees are inappropriate. I have said they need to be fairly calculated and fairly assessed.

    Example: The Bellingham School District's fee is based on student growth of 1,200 persons over the next seven or so years, even as the Sup. of Public Instruction projects a decrease in the number of students in the district over the same time frame.

    Is that rational?

    As to my "revisionist" view regarding the comp. plan action - I gave an example of a deliberate adoption of an inadequate capital facilities plan into our comprehensive plan. How is it revisionist to point to that as the root of a problem the current County Council must struggle to address today?

    At least I have company in the "revisionist" camp. "The recommendations were the Executives, not mine."

    Give me a break.

  17. jack o. petree,

    OK, I'll buy your argument that impact fees need to be fairly calculated and fairly assessed.

    So, is it fair for the existing residents to heavily subsidize those who profit from development because impact fees cover only a small percentage of the proportionate costs associated with growth?

    I conclude that it is not fair to existing residents and taxpayers, and I suspect I have good company.

    Your school district argument is lacking. If the school impact fee covered the proportionate share of growth, existing residents would not be asked to approve bond levies (year after year after year) to buy land for and build new schools needed to accommodate population growth.

  18. Spooky,

    You need to look at the levies more carefully. Most of the money asked for is not for the purchase of land and new schools. Most of the money is for maintainence and updating of existing schools. By way of example, the rebuilding of Bellingham High School a few years ago was paid for by a bond issue but had nothing to do with growth, it had to do with refurbishing an old building and upgrading it with modern communication tools needed to teach using modern methods (computers, etc.).

    Shuksan school was also rebuilt. By tearing down the old structure and rebuilding the district was able to utilize some impact fee funds but, in the main, the school was just old and was not earthquake compliant. The redo had little to do with growth and a lot to do with age.

    Some levy requests come as the result of growth, most do not.

    Keep in mind as well, when a levy passes and residents begin to pay it off, say on a 20 year schedule, new people coming in also participate in paying for that levy even though their arrival has nothing to do with the expenditure the levy was passed to cover. The net effect is to reduce the costs to existing citizens as the levy amount is spread over more people. A new person moving into a new house today pays for levies passed a decade or more ago.

    I did an analysis of the various ways costs of development are calculated as well as analysis of some of the more than 150 cost of development studies I've read over the years. It is in powerpoint form. If you have a way you are comfortable with for me to get you a copy, I'd be glad to pass it along to you. My e-mail address is If you e-mail me and ask I can assure you I will never reveal your identity or, alternatively, I could burn a disk and leave it somewhere for you and never have to know who you are.

    The growth only covers 25/35/45% of the costs of growth is a pretty easily dispeled myth.

    By the way, I'm probably more radical about ways to reduce growth in the county than you are. For example, aside from the state highways, why do we need to build paved roads in the county? If people want to build out there why can't they drive on gravel roads and why should they expect urban levels of service in terms of ambulance and fire response?



    1. Paved roads are not what half of the county residents would consider an "urban level of service." I think that's absurd. This isn't a 2nd rate county or a third world country. If the county made such a move, they'd better cut our road taxes to the bone also.

  19. Hi Jack,

    If you don't understand why rural residents might be interested in ambulance and fire response, this power point presentation by the County Fire Marshal will help to explain.

    In a nutshell: avoiding brain death and flashover.

    More fundamnetally, Jack's expressed interest isn't in reducing growth, it's in reducing the instrastructure and services available to people who live outside urban areas. That keeps developers from having to pay fees, but it doesn't keep people from expecting to have roads, bridges, and paramedics.

    Of course, no politician is about to say "If you live outside an urban area, you're not entitled to basic governmental services." Instead, they pretend that these services will be provided and paid for by taxes.

    As the Supreme Court noticed, just saying "taxes" doesn't mean that the county can pay for the services its residents expect (whether Jack wants them to have these services or not).

    Bringing us full circle to the original topic of the blog.

  20. So glad you didn't ban Jack. If he didn't exist, you'd need to create him.

  21. Wow g.h.,

    Paraphrasing Voltaire.


    So, Jean, are you saying people living in the rural areas should have urban levels of service?

    Wow, that would be really expensive.


  22. Jack,

    For what it’s worth, I recommend against beginning any sentence with, “You need to…” In most cases, you’re recommendation – regardless of what it is - will likely be met with resistance.

    I am quite familiar with the school levies. I disagree with your claim that “most” levy requests do not come as the result of growth. Regardless, the fact that there are ANY levies needed to subsidize costs that impact fees fail to cover is prima facie evidence that those who profit from growth are being subsidized.

    Your entire scenario describing how new residents pay off old levies is further evidence that the system is unfair. If impact fees covered the costs associated with growth, there would be no levies associated with growth, and new residents would not be required to participate in paying them off. The best approach is for those who create the need to expand the infrastructure to pay for it. That would be accomplished if impact fees covered the proportionate share of costs associated with population growth.

    As far as reducing growth in the county, that is not my thrust. I am not anti-growth. I am pro growth-paying-its-own-way. Although I consider it poor public policy, I’m convinced that –at some point in the future – most, if not all, of the vested lots in rural areas will be built upon. If someone has the right to do something, eventually they will.

    My concern is that the build-out of these vested lots not require a tax subsidy from the rest of us. The same is true within urban areas. The day of the ‘free lunch’ is over. Subsidies and ‘free lunches’ are a major cause of the boom-and-bust economic cycle. Why would we want to continue down that treacherous road?

  23. Dear Adminstrator,

    My last comment has gone missing. Your assistance in finding it would be greatly appreciated.


  24. Getting back to the original topic of the blog, Fire Dist. 21 was attempting to meet an urban level of service set out for Birch Bay, as established by the Birch Bay Community Plan. That would be because Birch Bay is -- wait for it -- an urban growth area.

    The Planning Commission didn't, in fact, recommend an urban level of fire service for rural areas. The Commission recommended a level of service of 14 minutes 80% of the time for rural areas and 8 minutes 80% of the time for urban areas.

    Some rural dwellers did testify that their fire insurance premiums skyrocket when fire level of service goes down. What it comes down to is that you can either pay for the service or pay the insurance companies.

    The County Council never acted on the Planning Commission recommendation. Of course, that would be because it plans to get rid of concurrency, so it won't need to worry about that sort of thing at all. Brain death, flashover, insurance, whatever.

    Makes me glad to live in Bellingham.

  25. Jean,

    I appreciate your desire to focus on the benefit of the county’s concurrency laws (at least while they’re still on the books). But I continue to stress the essential nature of actually providing funds to meet concurrency. Both are necessary. In the case of Fire District 21, the concurrency laws were needed as a stopgap measure because funding was not provided.

    If adequate, market based impact fees were in place that provided as close to 100% of the proportionate share of the cost associated with growth as legally possible (99% to be exact), then funds would have been available to meet the county’s concurrency requirements. The Supreme Court finding was based, in large part, on the fact that funding for concurrency was not in place. Adequate, market based, impact fees solve the problem and allow the concurrency laws to serve as the stopgap measures they are designed to be.

  26. This looks like petty larceny compared to the Columbia Valley UGA story. Doesn't it seem an enigma that the prior "progressive majority council" approved continuing the Columbia UGA knowing -- there was never a doubt -- that that area was already woefully "service deficient." The general Foothills public pleaded for concurrency, but no. Even planning's "3 options" supported a UGA with a population of 7,000 population.

    To this day, Columbia grant-writers are still lobbying for a 7,000+ population (could there be more money connected to greater crisis?). I've never seen a bigger concurrency violation and "planning abomination" in the county than that.

    What gives?

  27. Anonymous,

    The growth allocation to Columbia Valley was limited to 5,000. See Land Use element chapter at

    I know it was a very difficult decision for several people to make about whether to support a UGA. Most of the planning commission and council members at that time would have, undoubtedly, not supported the idea of a UGA if there wasn't anything out there. The idea of having an urban population so far from services doesn't make any sense.

    But, they are there -- and they need services and jobs. Without a UGA, you cannot plan for some of the urban services that are needed to make that community better.

    I don't want to see that community expand, but I want to see it survive and become a healthy, vibrant community. So, I would continue to support the Columbia Valley UGA for those reasons.

  28. For those not familiar with the Columbia Valley, you'll get an idea of its population density from this link:

    Columbia Valley is in the top right corner. Its population, estimated at about 4,000 in 2008, is not much smaller than Blaine's population (4,700 in 2010).

    It's true that Columbia Valley is service-deficient. Providing services to a UGA that does not include an incorporated city is extremely difficult, as we all know from Birch Bay's valiant efforts to implement community planning. A number of service providers (water, sewer, fire) are involved, and the County does not control these service providers, although it does need to work with them.

    If Columbia Valley were not a UGA, it would still have deficient services, and it would have fewer prospects for improved services. There may not be any perfect solution to the problems faced by a small "city" that grew up in a relatively isolated area, but the UGA designation at least provides some attention and some organizing principles.

    So, as usual, the Columbia Valley story is more complex than Anonymous lets on. I'm sure that it's a coincidence that Anonymous's comments so closely track Jack Petree's submissions to the County at various times. In any event, there clearly is no limit to the past and unrelated planning issues that Anonymous and Jack can bring up on this blog in order to throw mud at "progressives," be they the former County Council, the fomer Planning Commission, or the former Planning Director!

  29. I think it's important to remember, too, that even with concurrency, any new services established--even if the infrastructure is paid for by the developer--have to be supported and maintained by the County from then on. Any new developments require service increases that ALL County taxpayers foot the bill for. And these days the bills seem to be growing a lot faster than the population.

  30. There is an important fact everyone forgets. Developers simply pass on higher costs to the home owners in the end. This only raises the overall cost of living in Whatcom county, as well as lower the standard of living. Putting the cost of concurrency on developers will only tighten the availability of affordable building lots thus causing a higher demand for buildable lots and causing higher prices. All forms of government needs to operate within their means. How in the world did Americans ever make it here 100+ years ago without all the regulations?

  31. Anonymous,

    While developers pass their costs on to home owners in the end, creating quality living spaces at higher density with access to transit, bike lanes and walking can be done at an affordable price. Market rate housing in downtown Bellingham is affordable for median income households.

    Putting the cost of consurrency on the developer (and buyer) puts the cost of growth where it is caused. I don't know why existing taxpayers are supposed to subsidize development unless there are other public benefits associated with it. Impact fees under State Law cannot cover all the cost of growth, and one of the primary concurrency consultants who came here from Florida (Randy Young) is quoted as saying that was one of the great shortcomings of GMA. After all, how does government live within its means if it also has to subsidize the cost of growth?

    Your point is still well taken that if development is tightened too much then it will cause prices to go up due to supply and demand issues. We are nowhere near that threshold here in Whatcom County. There is plenty, and plenty, and then plenty more supply that the county has enabled over the past twenty years.