Chapter 20.75


20.75.010    Findings.

20.75.020    Purpose.

20.75.030    Applicability.

20.75.040    Findings, recommendations, and decisions regarding school capacities.

20.75.050    School concurrency standard.

20.75.060    School district eligibility for impact fees.

20.75.070    Imposition of impact fees.

20.75.080    Calculation of impact fees.

20.75.090    Impact fee credits.

20.75.100    Interlocal agreements.

20.75.110    Expenditure of funds.

20.75.120    Refunds.

20.75.130    Payment under protest.

20.75.140    Adjustment of fee amount.

20.75.150    Appeals.

20.75.010 Findings.

(1) New residential development resulting from forecasted population growth will create additional demand for public school facilities.

(2) While the general community benefits from new public facilities and should continue to pay a substantial portion of facility costs, it is appropriate to require new development to pay its proportionate share of the cost of new facilities.

(3) The Washington State Legislature, with the passage of the Growth Management Act, has removed previously enacted restrictions and authorized development impact fees as an additional source of funding for common school facilities, in addition to local tax revenues and state grants from the common school construction fund.

(4) The Washington State Legislature, through Chapter 82.02 RCW, authorizes cities and counties planning under GMA to impose impact fees on development activity as part of the financing for public facilities to help ensure that adequate facilities are available to serve new growth and development. (Ord. 2007-067 Exh. A, 2007).

20.75.020 Purpose.

The purpose of this chapter is (1) to ensure that adequate school facilities are available to serve new residential growth and development; (2) to require that new growth and development pay a proportionate share of the costs of new school facilities needed to serve new growth and development; and (3) to ensure that school impact fees are administered consistently and fairly. (Ord. 2007-067 Exh. A, 2007).

20.75.030 Applicability.

(1) The terms of this chapter shall apply to all forms of residential development that would result in the creation of new dwelling units.

(2) Reconstruction or remodeling of existing dwelling units or construction of commercial structures are not subject to the provisions of this chapter.

(3) Notwithstanding the above, developments for which a complete application for approval was submitted before the effective date of this chapter or that was subject to a prior State Environmental Policy Act (SEPA) threshold determination that provided for school mitigation are not subject to the provisions of this chapter. (Ord. 2007-067 Exh. A, 2007).

20.75.040 Findings, recommendations, and decisions regarding school capacities.

(1) In making a threshold determination pursuant to SEPA, the director and/or the hearing examiner, in the course of reviewing proposals for residential development including, but not limited to, applications for subdivisions, PUDs, mobile home parks and multifamily building permits, shall consider the school district’s capital facilities plan as adopted by the county council.

(2) County-adopted school facility capital facility plans shall be incorporated into the record in every case without requiring the district to offer such plans and data into the record. The school district is also authorized to present testimony and documents demonstrating a lack of concurrency in the district and the inability of the district to accommodate the students to be generated by a specific development.

(3) Based upon a finding that adequate school facility requirements are not met per the requirements of WCC 20.75.050, the director may require or recommend phasing or provision of the needed facilities and/or sites as appropriate to address the deficiency or deny or condition approval, consistent with the provisions of this chapter, WCC Title 21, the State Subdivision Act, and the State Environmental Policy Act.

(4) Where the county council has not adopted a capital facilities plan and interlocal agreement for a particular school district, the language of this section shall not affect the authority or duties of the \nhearing examiner or the director pursuant to the State Environmental Policy Act or the State Subdivision Act.

(5) Determinations of the hearing examiner or director regarding school facility adequacy may be appealed pursuant to the provisions for appeal of the development permit process for which the determination has been made. (Ord. 2009-006 Exh. 1, 2009; Ord. 2007-067 Exh. A, 2007).

20.75.050 School concurrency standard.

(1) School districts shall set level of service standards through their capital facilities plans. School district capital facilities plans will be considered as an amendment to the Whatcom County Comprehensive Plan.

(2) Schools shall be considered to have been provided concurrently with the development which will impact the schools if:

(a) The permanent and interim improvements necessary to serve the development are planned to be in place at the time the impacts of development are expected to occur based on adopted level of service standards; or

(b) The necessary financial commitments are in place to assure the completion of the needed improvements to meet the district’s level of service standard within six years of the time that the impacts of development are expected to occur.

(3) Any combination of the following shall constitute the “necessary financial commitments” for the purposes of this section:

(a) The district has received voter approval of and/or has bonding authority;

(b) The district has received approval for federal, state, or other funds;

(c) The district has received a secured commitment from a developer to construct the needed permanent school facility, and the school district has found such facility to be acceptable and consistent with its capital facilities plan; and/or

(d) The district has other assured funding, including but not limited to school impact fees which have been paid. (Ord. 2009-006 Exh. 1, 2009; Ord. 2007-067 Exh. A, 2007).

20.75.060 School district eligibility for impact fees.

(1) A school district becomes eligible to receive school impact fees once the county council adopts the school district’s six-year capital facilities plan (CFP). The school district will remain eligible to receive school impact fees until the timeframe of the adopted CFP elapses or until the date specified in the adopting ordinance, whichever occurs first.

(2) Council adoption of the district’s CFP also constitutes county adoption of the school impact fee schedule specified in the CFP. (Ord. 2007-067 Exh. A, 2007).

20.75.070 Imposition of impact fees.

(1) This chapter shall be uniformly applicable to residential development that occurs within the county pursuant to Chapter 82.02 RCW. Impact fees will be assessed on every new dwelling unit for which the requirements of WCC 20.75.050 have been met.

(2) The school impact fees specified in the district’s school capital facilities plan and adopted by the county council shall constitute the county’s schedule of school impact fees.

(3) Implementation of the fee collection process shall be further detailed by interlocal agreement. No fee will be collected by the county until an interlocal agreement as required in WCC 20.75.100 has been approved by the county and the district.

(4) For nondiscretionary residential building permits, the applicability of school impact fees will be determined at the time of building permit application. The amount of the fee due shall be based on the fee schedule in effect at the time of a complete permit application. Credit amounts and allocation of credits to be applied against the fees shall be determined by the district at the time of permit approval in accordance with WCC 20.75.090.

(5) Residential development activities that are subject to discretionary review by the county such as subdivisions and development agreement contracts shall include in the conditions of approval a determination of the project’s school impact fee obligation under this chapter. Said determination shall include any credits for in-kind contributions provided per WCC 20.75.090.

(6) In all cases, the amount of school impact fees shall be that which is in effect at the time of complete application for building permit. The fee shall be collected by the county at building permit issuance. (Ord. 2009-006 Exh. 1, 2009; Ord. 2007-067 Exh. A, 2007).

20.75.080 Calculation of impact fees.

(1) Separate fees shall be calculated for single-family and multifamily types of dwelling units. For purposes of this chapter, manufactured housing shall be treated as single-family dwellings and duplexes shall be treated as multifamily dwellings.

(2) The calculation of school impact fees shall be based upon the school district’s capital facilities plan, as approved by the county council and adopted by reference into the capital facilities element of the Whatcom County Comprehensive Plan.

(3) The capital facilities plan shall contain the following as a basis for the adoption of school impact fees to be collected by the county:

(a) Inventory of permanent and relocatable classroom facilities;

(b) Student enrollment projections over a six-year period;

(c) Facility needs and planned improvements over a six-year period;

(d) Six-year financing plan; and

(e) Methodology used for the calculation of the fees.

(4) The proposed fee shall be calculated based on the following factors as documented in the capital facilities plan:

(a) The costs of site acquisition;

(b) The costs of facility construction or improvements;

(c) The costs of needed portables;

(d) The proportionate share of the above costs attributable to new development;

(e) The costs of previously constructed facilities that serve new development; provided, that the fee is not used to make up for any existing system deficiencies not related to new growth; and

(f) Credits, or other revenues applied, such as user fees, debt service payments, taxes, or other payments earmarked for or proratable to the particular system improvement.

(5) The impact fee may be discounted by an amount deemed appropriate by the county in order to be consistent with impact fees being required by other jurisdictions within the school district.

(6) An administrative fee may be charged by Whatcom County for the collection and disbursement of school impact fees as set forth in an interlocal agreement with the school district or as set forth in the Unified Fee Schedule. (Ord. 2009-006 Exh. 1, 2009; Ord. 2007-067 Exh. A, 2007).

20.75.090 Impact fee credits.

Whenever a development includes or is granted approval subject to a condition that the development applicant actually provide a school facility, land dedication, or system improvement that is acceptable to the district and the county and is identified in the district’s capital facilities plan, the development applicant shall be entitled to a credit for the actual cost of providing the facility against the fee that would be chargeable under this chapter. The cost of construction shall be estimated at the time of approval but must be documented and confirmed after the construction is complete to assure that an accurate credit amount is provided. If construction costs are less than the calculated impact fee amount, the difference remaining shall be chargeable as a school impact fee. In the event the amount of the credit is calculated to be greater than the amount of the impact fee due, the development applicant may apply such excess credit toward impact fees imposed on other developments by the applicant within the same service area. (Ord. 2007-067 Exh. A, 2007).

20.75.100 Interlocal agreements.

(1) The school district and the county shall by interlocal agreement provide for the establishment and maintenance of separate accounts by the county finance department and for the expenditure of fees by the district in a timely fashion on appropriate capital projects as required by Chapter 82.02 RCW.

(a) The agreement shall provide for the keeping of records for each such account whereby collected impact fees can be segregated by type of facility.

(b) The agreement shall specify the fees, if any, the county will charge the school district for the collection of the fees authorized in this chapter.

(c) The agreement shall provide for the transfer of collected fees from the county to the district. (Ord. 2007-067 Exh. A, 2007).

20.75.110 Expenditure of funds.

(1) School impact fees may be used by the district only for capital facilities that are reasonably related to the development for which they were assessed and may be expended only in conformance with the district’s adopted school facilities plan.

(2) In the event that bonds or similar debt instruments are issued for the advance provision of capital facilities for which school impact fees may be expended, and where consistent with the provisions of the bond covenants and state law, school impact fees may be used to pay debt service on such bonds or similar debt instruments to the extent that the capital facilities provided are consistent with the requirements of this title.

(3) The responsibility for assuring that school impact fees are used for authorized purposes rests with the district. All interest earned on a school impact fee account must be retained in the account and expended for the purpose or purposes for which the school impact fees were imposed, subject to the refund provisions of WCC 20.75.120.

(4) The district shall provide the county an annual report showing the source and the amount of school impact fees received by the district and the capital facilities financed in whole or in part with those school impact fees. (Ord. 2007-067 Exh. A, 2007).

20.75.120 Refunds.

(1) Current owners of property on which an impact fee has been paid may receive a refund of such fees if the district fails to expend or encumber the impact fees within six years of when the fees were paid or such other period of time established pursuant to WCC 20.75.110.

(a) In determining whether impact fees have been encumbered, impact fees shall be considered encumbered on a first-in, first-out basis.

(b) If funds are not encumbered, the district shall notify the county, and the county shall notify potential claimants by first class mail deposited with the United States Postal Service at the last known address of claimants.

(c) The request for refund money must be submitted to the county finance director in writing within one year of the date the right to claim the refund arises or the date the notice is given, whichever is later. Any impact fees that are not expended within the six-year time limitation, and for which no application for refund has been made within this one-year period, shall be retained and expended on the indicated public facilities. Refunds of impact fees under this subsection shall include interest earned on the impact fees.

(d) A development applicant may request and shall receive a refund, including interest earned on the impact fees, when the building permit for which the impact fee has been paid has lapsed for noncommencement of construction. A partial refund shall be provided where the project for which a building permit has been issued has been altered, resulting in a decrease in the amount of the original impact fee due.

(2) The interlocal agreement required in WCC 20.75.100 shall detail a refund process, as required by Chapter 82.02 RCW. (Ord. 2007-067 Exh. A, 2007).

20.75.130 Payment under protest.

Impact fees may be paid under protest. If the fee is protested, the county shall make final resolution of the protest a condition of the permit. Final occupancy of structures within the development shall not be approved until the protest is resolved. Arbitration may be utilized if agreeable to the county and the applicant. Any costs related to arbitration shall be distributed evenly between the applicant and the subject district. (Ord. 2007-067 Exh. A, 2007).

20.75.140 Adjustment of fee amount.

The county council may adjust the fee if one of the following exists:

(1) An applicant requests reduction, in writing, and submits compelling data demonstrating a lower student generation rate and the district concurs; or

(2) The proposed development will result in the provision of low-income housing as defined by this title. Fees reduced or waived in this circumstance must be replaced with other public funds. (Ord. 2009-006 Exh. 1, 2009; Ord. 2007-067 Exh. A, 2007).

20.75.150 Appeals.

Determinations of the hearing examiner or director regarding the application of the terms of this chapter may be appealed pursuant to the provisions for appeal of the development permit process for which the determination has been made. (Ord. 2007-067 Exh. A, 2007).