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?