NWFRS ruling will stall development permits
A decision by Whatcom County hearing examiner Michael Bobbink that certain Birch Bay developments may proceed without having to pay fees the fire department says it needs to service the developments was overturned on appeal in Whatcom County superior court last Monday afternoon.
The ruling effectively halts most if not all of the building permit process in the Birch Bay urban growth area (UGA), according to attorney Jon Sitkin, whose firm represented North Whatcom Fire and Rescue Service (NWFRS). While it does not apply outside the Birch Bay UGA, it stops all permitting for subdivisions and commercial developments until the matter of concurrency is resolved, Sitkin said.
Philip Buri, attorney for the developers, said that no decision has been made about appealing the matter, which in this case would be to the appellate court in Seattle. Until Snyder issues a written ruling in a few weeks the impact of his decision cannot be fully explored.
Sitkin’s legal partner Frank Chmelik, who appeared before the NWFRS commissioners on his behalf, said that Judge Snyder ruled that it’s up to Whatcom County to demonstrate concurrency, that is, that adequate fire protection can be provided for a projected development. Citing section 20.80.212 of the Whatcom County Code, Snyder said that if concurrency cannot be demonstrated or verified by a letter from the fire department then permits for a development may not proceed. The section, passed in 1998, says that no subdivision, commercial development or conditional uses shall be approved without a written finding that:
(1) All providers of water, sewage disposal, schools, and fire protection serving the development have issued a letter that adequate capacity exists or arrangements have been made to provide adequate services for the development.
(2) No county facilities will be reduced below applicable levels of service as a result of the development.
Both the hearing examiner and the county council ruled last year that the proposed 200-unit Horizons Village at Semiahmoo could proceed without having to pay a fee requested by NWFRS that they said they needed to guarantee a level of protection concurrent with the amount of development taking place.
Citing state law, hearing examiner Michael Bobbink found that rural fire departments such as NWFRS, which in this lawsuit was identified as Fire District 21, cannot assess such fees. The county council agreed and approved the development, so Fire District 21 sued in Whatcom County superior court.
Monday afternoon judge Chuck Snyder handed down his verbal opinion in favor of the fire district, saying that impact fees aside, the fire department must furnish a letter of concurrency, and development may not proceed until a way can be found to either increase the service capacity of the fire department or reduce the amount of development.
“We’re not anti-growth,” said NWFRS chief Tom Fields, “but we do want to sit down with the county and the developers and figure this out. It’s not about money so much as it is about our capacity to offer service to all these new homes.”
Last year Fields proposed a fee per building lot that would allow NWFRS to expand its equipment and hire new personnel, and while some developers paid it several resisted, among them Jim Bovenkamp of Lynden, principal backer of Horizons Village at Semiahmoo.
Three other projects, Birch Bay Center/Mayflower Equities, Harborview Road Development and Bay Breeze Cluster Platt, also were named in the lawsuit.
“The issue isn’t money so much as it is our ability to meet what the growth management act (GMA) requires, that the capacity of our ability to serve keeps pace with the amount of service we have to provide,” Fields said. “Fees are one way to do that, but they’re not the only way to do that.”