On Thursday, May 5, the state Supreme Court issued a decision in Whatcom County Fire District No. 21 v. Whatcom County, which has implications on concurrency determinations for development proposals.  “Concurrency” is captured in the twelfth goal of the growth management act and requires that an adequate level of service should be available at the time of occupancy to meet the needs of development.  The case before the court addressed the question of whether certain local regulations allow providers of public services (e.g., fire districts, water and sewer utilities, and school districts) to essentially veto development proposals over concerns about their ability to serve those development proposals. 

The case involved a dispute between Whatcom County and a local fire district over whether proposed development projects would reduce fire protection services below an adequate level.  The County’s code governing development proposals required a concurrency letter from the fire district prior to approval.  In this case, the County concluded that the development would not reduce fire protection services and issued the approvals despite the fact that the fire district refused to provide the letter over its concerns over the impact of the development on its ability to provide those services.  The fire district appealed.  Ultimately, the case was about costs – the district had earlier proposed issuing the required letter if the developer paid concurrency mitigation fees directly to the fire district to mitigate impacts of the development. 

The Court determined that the failure to obtain the concurrency letter barred the development approval.  According to the court, the county’s regulations “assigned responsibility for assessing the adequacy of fire protection services to the Fire District.” 

The County argued that the County’s Comprehensive Plan was determinative because it assessed concurrency for fire services and that the comprehensive plan should trump over the district’s contrary determination.  While the dissent agreed with the County, the majority concluded that the County’s comprehensive plan provisions were not determinative because they did not include provision for adequate details of the funding for those services.

Based on the decision, local governments may decide to revisit their concurrency regulations to reserve concurrency decision-making power, rather than delegating to a special purpose district.  However, this may be more difficult than it might appear for certain public services.  Several statutes require providers of certain public services to issue letters of availability prior to specific development approvals.  For example, in the platting context, RCW 58.17.100 requires  local governments to include findings that “appropriate provisions” are made for certain public services including schools, water and utility services, while RCW 58.17.150 also requires “recommendations for approval” for final plats from water and sewer utilities.  Finally, RCW 19.27.097 requires “evidence” of adequate water supply, including letters of availability from water utilities, prior to approval of any building permit.  Arguably in these instances, the determination of the provider of those specifically enumerated public services may be entitled to more weight in the development approval process.  The Supreme Court dodged this question in footnote 2, expressly declining to answer whether RCW 58.17.110 requires a concurrency determination for fire protection services.  The Court determined that it was unnecessary to its disposition of the case because the County had chosen to adopt the requirement for concurrency determination, such that the more basic question of whether statutes required the determination was purely hypothetical.