19.08.080 Adjustments, waivers, appeals and arbitration.
A. Administrative Adjustment of Fee Amount.
1. An applicant for a building permit or the school district may, within 21 days of acceptance by the city of a complete building permit application, submit a letter to the director requesting an adjustment to the impact fees imposed by this title. The director may adjust the amount or waive the entire fee, in consideration of studies and data submitted by the developer and the district, if one of the following circumstances exists:
a. It can be demonstrated that the school impact fee assessment was incorrectly calculated;
b. Unusual circumstances of the development activity demonstrate that application of the school impact fee to the development would be unfair or unjust;
c. A credit for in-kind contributions by the developer, as provided for under BMC 19.08.060(F), is warranted;
d. Any other credit specified in RCW 82.02.060(1)(b) may be warranted.
2. Upon application by the owner, a partial exemption of not more than 80 percent of school impact fees, with no explicit requirement to pay the exempted portion of the fee from public funds, may be granted to a low-income housing development, as defined below:
a. The director of planning and community development, after approval by the Bellingham School District, may grant an exemption to a low-income housing project listed in an annual consolidated action plan approved by city council.
b. The city council, after approval by the Bellingham School District, may grant an exemption to a low-income housing project not included in an annual consolidated action plan.
c. The decision of the director of planning and community development or the city council, as applicable, to grant, partially grant or deny an exemption shall be based on the public benefit of the specific project, the extent to which the applicant has sought other funding sources, the financial hardship to the project of paying the impact fees, the impacts of the project on school facilities and services, and the consistency of the project with adopted city plans and policies relating to low-income housing.
d. An exemption granted under this subsection must be conditioned upon requiring the developer to record a covenant approved by the director of planning and community development that prohibits using the property for any purpose other than for low-income housing. At a minimum, the covenant must address price restrictions and household income limits for the low-income housing, and require that, if the property is converted to a use other than for low-income housing as defined in the covenant, the property owner must pay the applicable impact fees in effect at the time of any conversion. Covenants required by this subsection must be recorded with the Whatcom County auditor.
e. “Low-income housing” means housing with a monthly housing expense that is no greater than 30 percent of 80 percent of the median family income adjusted for family size, for Bellingham, as reported by the United States Department of Housing and Urban Development.
3. To avoid delay pending resolution of the adjustment or appeal, school impact fees may be paid under protest in order to obtain a development approval.
4. Failure to exhaust this administrative remedy shall preclude appeals of the school impact fee pursuant to subsection (B) of this section.
B. Appeals of Decisions – Procedure.
1. The director’s final impact fee determination may be appealed to the hearing examiner under the provisions of Chapter 2.56 BMC. The appeal provisions of Chapter 16.20 BMC shall govern appeals of mitigation requirements imposed pursuant to this chapter.
2. At the hearing, the appellant shall have the burden of proof, which shall be met by a preponderance of the evidence. The impact fee may be modified upon a determination that it is proper to do so based on the application of the criteria contained in subsection (A) of this section. Appeals shall be limited to application of the impact fee provisions to the specific development activity and the provisions of this title shall be presumed valid.
C. Arbitration of Disputes. With the consent of the developer and the district, a dispute regarding imposition or calculation of a school impact fee may be resolved by arbitration. [Ord. 2015-07-029 § 3; Ord. 2009-04-019; Ord. 2006-03-022].