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Must a person file a claim via RCW 4.96.020 before filing a PRA lawsuit against the county?
Reviewed: 02/17

In brief, no. Our position at MRSC has been that the claim filing requirements in RCW 4.96.020 don’t apply to a lawsuit based on an alleged violation of the Public Records Act (PRA). RCW 4.96.020, and chapter 4.96 RCW more generally, addresses tort claims, tortious conduct, and claims for damages, but a PRA lawsuit isn’t a tort claim or a claim for damage.

If an agency is found by a court to have violated the PRA, the court may impose penalties as well as attorney fees and costs, but such remedies are different in kind than damages arising out of tortious conduct as provided for under RCW 4.96.020. See, e.g., Amren v. City of Kalama, 131 Wn.2d 25, 36 (1997) (“Since the award [for a PRA violation] has been treated as a penalty it is not necessary for a party to show actual damages to receive the statutory award.”)

The following excerpt from a more recent decision, Corey v. Pierce County, 154 Wn. App. 752 (2010), also indicates that a tort claim for damages is different in kind that a claim under the PRA. In part, the court explains and concludes (at pp. 765-766):

Case law does not support a tort cause of action for damages due to negligent disclosure of unsubstantiated information. Instead, the concern for privacy noted by the trial court stems from the Public Records Act (PRA). Ch. 42.56 RCW. Under the PRA, an invasion of privacy occurs “if disclosure of information about the person: (1) Would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public.” RCW 42.56.050. In Dawson v. Daly, a prosecutor sought an injunction to prevent the release of a deputy prosecutor’s personnel file. 120 Wn.2d 782, 788, 845 P.2d 995 (1993). The court determined that the disclosure of the prosecutor’s performance evaluations that did not discuss specific instances of misconduct was highly offensive and lacking in legitimate public interest. Id. at 800. The right to privacy was protected through injunction. Nowhere is there a discussion of a tort action for damages in the event of a violation of the right of privacy. Furthermore, the court did not address the proper standard to be applied if the personnel file did include allegations of misconduct.

Based on the legal principles articulated above, because a claim under the PRA wouldn’t be a claim for damages, the claim filing requirements in chapter 4.96 RCW wouldn’t apply to such a PRA claim.

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Does the city council of a code city have to hold a public hearing to extend a moratorium?
Reviewed: 02/17

The relevant statute for moratoria for code cities is RCW 35A.63.220, which states as follows (emphasis added):

A legislative body that adopts a moratorium or interim zoning ordinance, without holding a public hearing on the proposed moratorium or interim zoning ordinance, shall hold a public hearing on the adopted moratorium or interim zoning ordinance within at least sixty days of its adoption, whether or not the legislative body received a recommendation on the matter from the planning agency. If the legislative body does not adopt findings of fact justifying its action before this hearing, then the legislative body shall do so immediately after this public hearing. A moratorium or interim zoning ordinance adopted under this section may be effective for not longer than six months, but may be effective for up to one year if a work plan is developed for related studies providing for such a longer period. A moratorium of [or] interim zoning ordinance may be renewed for one or more six-month periods if a subsequent public hearing is held and findings of fact are made prior to each renewal.

So, based on this provision, a public hearing is required prior to each extension.

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Can a city, through a vote of the people, institute a public safety property tax levy for its own police/fire when the county it is in has already instituted a public safety levy for its own (county) function?
Reviewed: 02/17

Yes. When it comes to property tax levies, the city and the county do not overlap.

RCW 84.52.052 provides the city with the ability to present to the voters an "excess levy" for general government purposes for a one year levy, or, if the city has levy capacity remaining, it can present a levy lid lift to the voters (RCW 84.55.050).

For more information on levy lid lifts, see MRSC’s Levy Lid Lift topic page, as well as MRSC’s Revenue Guide for WA Cities and Towns.

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Must prevailing wages be paid for snow removal contracts?
Reviewed: 02/17

A contract for shoveling sidewalks by hand is a purchased service not subject to prevailing wages or bid laws since it is not a contract for "construction, reconstruction, maintenance or repair" as those words are used in RCW 39.12.030.

In contrast, a contract for shoveling snow off a roof is maintaining the asset (i.e., the building) and is subject to prevailing wages.

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May a code city compensate its planning commissioners?
Reviewed: 02/17

RCW 35.63.030 states that planning commission members for non-code city cities “shall serve without compensation.” There is no similar language in the code city statutes. RCW 35A.63.020 provides that the city “may create a planning agency and provide for its membership, organization, and expenses.” We think that such language (and the lack of prohibition) would allow a code city to pay its planning commission members.

Some code cities have provided for compensation, including the following:

Bonney Lake Municipal Code Sec. 2.26.060:
Each member of the planning commission shall be compensated in the amount of $50.00 per planning commission meeting attended, including joint meetings of the planning commission and the city council; provided, that no planning commission member shall be compensated for attendance at more than two planning commission meetings per calendar month, including attendance at any joint meetings of the planning commission and the city council; and provided further, that the chair or designee of the planning commission shall, in addition, be compensated $25.00 for attendance at a council meeting where such attendance is required by BLMC 2.26.030. (Ord. 875 § 5, 2001).
Duvall Municipal Code Sec 2.15.040:
Beginning on January 1, 1994, each member of the planning commission shall be paid twenty-five dollars ($25.00) for attendance at each regular meeting of the planning commission and twenty-five dollars ($25.00) for attendance at each special meeting of the planning commission but not to exceed three such special meetings for compensation in one calendar year. (Ord. #690, 1993).
Monroe Municipal Code Sec. 2.32.010:
B. The members shall be selected without respect to political affiliations. They may be reimbursed for expenses necessarily incurred in performing their official duties.
C. Salaries of Commissioners. Each city planning commissioner may be paid for attending commission meetings and workshops an amount not exceeding seventy-five dollars per meeting for not more than one meeting each week. (Ord. 013/2015 § 1; Ord. 004/2011 § 3; Ord. 031/2007 § 1; Ord. 022/2004; Ord. 1044, 1994; Ord. 875, 1988; Ord. 666, 1978).

Several code cities only reimburse for expenses, including the following

Goldendale Municipal Code Sec. 2.48.030:
The members of the planning commission shall serve without compensation, but they shall be reimbursed for expenses necessarily incurred in performing their official duties. The city council shall from time to time, as may be necessary, provide by ordinance for funds for the necessary expenditures and costs of operation of such commission. (Prior code §2.24.030)
Kent Municipal Code Sec. 2.57.020:
F. The appointed members of the land use and planning board shall serve without compensation except that reimbursement for authorized travel and subsistence may be made to the extent such may be budgeted for by the city council. Reimbursement for such shall come from the city budget category designated land use and planning board, travel and mileage and subsistence. (Ord. No. 3512, § 14, 6-6-00).
Maple Valley Municipal Code Sec. 2.35.050:
The members of the Planning Commission shall serve without compensation, but necessary expenses of the Commission actually incurred shall be paid from appropriate City funds. (Ord. O-99-80 § 3; Ord. O-97-15 § 5).
Toppenish Municipal Code Sec. 2.30.070:
All members of advisory commissions shall serve without compensation but may be reimbursed actual training expense upon the prior approval of the city manager. (Ord. 2004-4 § 1, 2004).

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Must a fireworks ordinance that is more restrictive than state law actually be in effect on June 28 to be effective the
following 4th of July fireworks season, or would it be enough if it is merely adopted before June 28?

Reviewed: 02/17

RCW 70.77.250(4), relating to local regulations more strict than the state's, says:

Any ordinances adopted by a county or city that are more restrictive than state law shall have an effective date no sooner than one year after their adoption.

(Emphasis added.) Given this, the ordinance could not go into effect until one year after the council votes on the ordinance. So, to be in effect as of the beginning of the 2018 4th of July fireworks season (which begins on June 28), the council must adopt (vote to approve) the ordinance no later than June 27, 2017.

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Does a city have any authority (or say) in what the speed limit should be on a state highway that runs through its boundaries?
Reviewed: 01/17

There is a process for a city to change speed limits set forth in RCW 46.61.415. Note, that in order to reduce the speed limit, an engineering and traffic investigation must be done. In relevant part, RCW 46.61.415(1) states:

Whenever local authorities in their respective jurisdictions determine on the basis of an engineering and traffic investigation that the maximum speed permitted under RCW 46.61.400 or 46.61.440 is greater or less than is reasonable and safe under the conditions found to exist upon a highway or part of a highway, the local authority may determine and declare a reasonable and safe maximum limit thereon which
  1. Decreases the limit at intersections; or
  2. Increases the limit but not to more than sixty miles per hour; or
  3. Decreases the limit but not to less than twenty miles per hour.

But more to the point of the question, this statute also describes the process for changing a speed limit on a state highway that goes through a city. RCW 46.61.415(6) provides (emphasis added):

Any alteration of maximum limits on state highways within incorporated cities or towns by local authorities shall not be effective until such alteration has been approved by the secretary of transportation.

So, if a city council was to lower the speed limit on the portion of a state highway that runs through the city, the change could not go into effect unless and until the state Department of Transportation approves. This approval requirement is in addition to the traffic study described above.

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Our code city has a mayor and five councilmembers. If the mayor and two councilmembers (including the mayor pro-tem) are unable to make the meeting, can the other three councilmembers be a quorum
without a mayor or mayor pro-tem?

Reviewed: 01/17

Yes, three councilmembers of a five-member council will constitute a quorum for purposes of holding a meeting of the council, even if the mayor and mayor pro-tem do not attend the meeting. RCW 35A.12.110 provides, in part (our emphasis):

Meetings of the council shall be presided over by the mayor, if present, or otherwise by the mayor pro tempore, or deputy mayor if one has been appointed, or by a member of the council selected by a majority of the councilmembers at such meeting. Appointment of a councilmember to preside over the meeting shall not in any way abridge his or her right to vote on matters coming before the council at such meeting.

Note, too, that RCW 35A.12.120 states, in part, that "At all meetings of the council a majority of the councilmembers shall constitute a quorum for the transaction of business . . . ."

In the situation you described, the three councilmembers who attend the meeting would constitute a quorum and would, at the start of the meeting, select one of those three councilmembers to be the presiding officer for that meeting. The appointment of that councilmember to be the presiding officer for that meeting "shall not in any way abridge his or her right to vote on matters coming before the council at such meeting."

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Is an Lodging Tax Advisory Committee limited to reviewing funding applications once per year or can this be done on an on-going, case-by-case manner?
Reviewed: 01/17

Reference should be made to RCW 67.28.1817(2):

(2) Any municipality that proposes imposition of a tax under this chapter, an increase in the rate of a tax imposed under this chapter, repeal of an exemption from a tax imposed under this chapter, or a change in the use of revenue received under this chapter shall submit the proposal to the lodging tax advisory committee for review and comment. The submission shall occur at least forty-five days before final action on or passage of the proposal by the municipality. The advisory committee shall submit comments on the proposal in a timely manner through generally applicable public comment procedures. The comments shall include an analysis of the extent to which the proposal will accommodate activities for tourists or increase tourism, and the extent to which the proposal will affect the long-term stability of the fund created under RCW 67.28.1815. Failure of the advisory committee to submit comments before final action on or passage of the proposal shall not prevent the municipality from acting on the proposal. A municipality is not required to submit an amended proposal to an advisory committee under this section.

While typically, we think, a city or county will solicit requests for funding once a year and then have its lodging tax committee review all of the requests before making a funding recommendation to the legislative body, the above statute does not require that. The statute merely requires that final action be delayed for 45 days and that the committee submit its comments before the commission takes its action. We do not read this statute as requiring review of proposals all at one time. Perhaps that would be the fairest way to consider all possible proposals (assuming that funds are limited), but the statute does not require it. Thus in our opinion, the county could consider a proposal (or proposals) throughout the year.

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When does an employee become eligible for unemployment benefits?
Reviewed: 01/17

Regarding eligibility for unemployment benefits, page 9 of the state Employment Security Department’s (ESD) Handbook for Unemployed Workers does a great job summarizing the requirements. According to the ESD, some of the key requirements are that one must be:

  • Employed for at least 680 hours in their base year in covered employment.
  • Unemployed for reasons that are not their fault.
  • Able to and available for work.
  • Actively seeking suitable work.
  • Legally authorized to work in the United States and have been authorized to work during their base year.

The appendix to the handbook then goes on to define the words and terms highlighted in bold above.

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If a road is dedicated to the public in a subdivision within the unincorporated county, does that make the road a county road? Or, does the road still need to the established pursuant to chapter 36.81 RCW?
Reviewed: 01/17

If a road is dedicated to the public in a subdivision within the unincorporated county, that road is a county road. The process in chapter 36.81 RCW would thus not be used. AGLO 1970 No. 46 addresses the methods by which a county road may be established:

In our opinion there are several methods by which a highway may become a county road. One method is, of course, by means of the formal procedure set forth in chapter 36.81 RCW.

A second method is by dedication of roads in a plat duly approved by county authorities.

See also AGO 1952 No. 307 (“When the county commissioners by appropriate action approve a proposed plat without reservation concerning the roads designated therein, those roads become county roads.”).

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May sewer lines cross rural lands to serve another portion of a UGA without violating RCW 36.70A.110(4)?
Reviewed: 01/17

RCW 36.70A.110(4)’s prohibition against extending urban services to rural areas does not prevent a jurisdiction from allowing urban governmental services to traverse a rural area to service another UGA. In Heikkila v. City of Winlock, the Western Washington Growth Management Hearings Board (WWGMHB) addressed a challenge to a jurisdiction’s planning policies that would allow the extension of urban services from one UGA to another UGA that required the infrastructure to pass through rural land. The WWGMHB concluded that such services could pass through rural lands so long as they did not provide service in the rural areas. In relevant part, the WWGMHB wrote:

The prohibition in RCW 36.70A.110(4) does not apply to urban services in urban growth areas. Urban growth areas by definition are allowed to have urban levels of growth and should have the urban services to support that growth. See RCW 36.70A.030(17), (18), and (19). Nor can the statute be read to mean that water service lines cannot pass through rural lands. The reason for the prohibition in RCW 36.70A.110(4) against providing urban services to rural areas is that urban services in the rural areas would create pressure to urbanize the rural areas and create sprawl. Thurston County v. Cooper Point Association, 148 Wn. 2d 1, 57 P. 3d 1156 (2002). If the Winlock water lines just traverse the rural areas and do not serve them, it will not violate RCW 36.70A.110(4).

The Petitioner does not point to any statutory prohibition against providing water services from one UGA to another. The burden is on the Petitioner(s) to demonstrate why the challenged amendments violate the GMA. The legislature has directed the boards to grant deference to counties and cities in how they plan for growth, consistent with the goals and requirements of the GMA. RCW 36.70A.3201. Comprehensive plan amendments are presumed valid upon adoption. RCW 36.70A.320. Here, as the Central Board stated in Gain v. Pierce County, CPSGMHB Case No. 99-3-0019 (Final Decision and Order, April 18, 2000), “Petitioners offer no statutory provisions to support their assertion that sewer [or water] lines must be confined within the boundaries of UGAs and cannot pass through rural areas.” RCW 36.70A.110(4) does not preclude municipalities from providing water service from one UGA to another.

Conclusion: RCW 36.70A.110(4) does not prohibit a municipality from extending water service from its own UGA to another GMA-compliant UGA. Because we find that non-compliance has not been proved, there can be no finding of substantial interference with the goals of the GMA based on RCW 36.70A.110(4). . . .

For more information, see Heikkila v. City of Winlock, WWGMHB No. 04-2-0020c. Order on Motions at 6 (Jan. 10, 2005). See also Fallgatter v. City of Sultan, CPSGMHB Case Nos. 06-3-0003, 06-3-0034, 07-3-0017 Combined Order of Compliance at 11 (Nov. 10, 2008) (“[T]he Board has previously found that sewer lines extending beyond the UGA into the rural area to re-connect with the UGA or another UGA is not prohibited under the GMA, so long as connections to such a line in the rural area are prohibited.”).

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Do reelected public officials need to be sworn in?
Reviewed: 01/17

Yes, an elected official must take the oath of office every time he or she is reelected. For purposes of the election statutes, RCW 29A.04.133 defines the term “qualified,” when pertaining to a winner of an election, to mean that for such election:

(1) The results have been certified;

(2) Any required bond has been posted; and

(3) The winner has taken and subscribed an oath or affirmation in compliance with the appropriate statute, or if none is specified, that he or she will faithfully and impartially discharge the duties of the office to the best of his or her ability. This oath or affirmation shall be administered and certified by any officer or notary public authorized to administer oaths, without charge therefore.

We have a very good publication addressing this issue, which will give you more detail. It is called Getting into Office: Being Elected or Appointed into Office in Washington Counties, Cities, Towns, and Special Districts.

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Can the city surplus and sell an old city vehicle as a “direct sale,” or does it legally have to go to bid?
Reviewed: 12/16

A “direct sale” is permissible provided that the city council declares the property to be surplus and authorizes the manner of sale. There is no requirement that surplus city property be offered to all, or put up at auction, or that bids be requested. Cities do not have required procedures for the disposal of surplus property as do counties in chapter 36.34 RCW. The property can be sold to a specific individual, if that is what council wishes to do. However, the council should still declare the property surplus to the city's needs and set a price below which it will not be sold. Obviously, if the council has adopted a policy regarding sale of surplus property, that policy should be followed.

For more information, please see our Sale of Surplus City or Town Property topic page, which includes general information and sample policies.

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Is there a comprehensive list of what type of uses constitute an "essential public facility?"
Reviewed: 12/16

There is a fairly comprehensive description of an “essential public facility” in RCW 36.70A.200(1) (emphasis added):

The comprehensive plan of each county and city that is planning under RCW 36.70A.040 shall include a process for identifying and siting essential public facilities. Essential public facilities include those facilities that are typically difficult to site, such as airports, state education facilities and state or regional transportation facilities as defined in RCW 47.06.140, regional transit authority facilities as defined in RCW 81.112.020, state and local correctional facilities, solid waste handling facilities, and inpatient facilities including substance abuse facilities, mental health facilities, group homes, and secure community transition facilities as defined in RCW 71.09.020.

A more detailed list is set forth in WAC 365-196-550(1), which states in relevant part:

(d) The following facilities and types of facilities are identified in RCW 36.70A.200 as essential public facilities:

(i) Airports;

(ii) State education facilities;

(iii) State or regional transportation facilities;

(iv) Transportation facilities of statewide significance as defined in RCW 47.06.140. These include:

(A) The interstate highway system;

(B) Interregional state principal arterials including ferry connections that serve statewide travel;

(C) Intercity passenger rail services;

(D) Intercity high-speed ground transportation;

(E) Major passenger intermodal terminals excluding all airport facilities and services;

(F) The freight railroad system;

(G) The Columbia/Snake navigable river system;

(H) Marine port facilities and services that are related solely to marine activities affecting international and interstate trade;

(I) High capacity transportation systems.

(v) Regional transit authority facilities as defined under RCW 81.112.020;

(vi) State and local correctional facilities;

(vii) Solid waste handling facilities;

(viii) In-patient facilities, including substance abuse facilities;

(ix) Mental health facilities;

(x) Group homes;

(xi) Secure community transition facilities;

(xii) Any facility on the state ten-year capital plan maintained by the office of financial management.

This seems to be a fairly comprehensive list, but this regulation makes clear that the primary components of the definition of an essential public facility is that it (1) provides a public service; and (2) is difficult to site. See WAC 365-196-550(1)(f). Thus, there may be other uses that fall within the definition, even if they do not appear on this list.

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Can cities go out for a Maintenance & Operations (M&O) levy?
Reviewed: 12/16

Yes. There are a few options available to cities with regards to property tax levies:

  • 1 year M&O levy (also known as the excess levy). Here is a link to our Revenue guide and the section on excess levies for general government purposes. You will note that an excess levy can only be run for one (1) year and it requires at least a 60% approval from a voter turnout of 40% of the numbers of people voting in the last general election (or the equivalent of those number of yes votes in the event that you have less than 40% turnout from the last general election).
  • Banked capacity. Does the city have any banked capacity? If it’s unclear, the city should review the DOR’s tax levy detail report for levy year 2015 and discuss the issue with its county assessor.
  • Levy Lid lift. This is another option available to cities in the event that there is no banked capacity available. A levy lid lift requires a vote, but if the city has sufficient levy capacity available to meet the M&O needs the lid lift can be for multiple years rather than just one year like the excess levy. Here is a link to our topic page on levy lid lifts and the various options for the number of years that a levy lid lift may be imposed.

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Can time-limited parking be enforced in ADA parking stalls? We are enacting a three-hour time limit on parking in our downtown area and need to know if that limit may also be applied to ADA stalls.
Reviewed: 12/16

The minimum time limit for a person parking a car with a disability placard or license plate is four (4) hours, and that applies to all nonreserved, on-street parking spaces, whether they are ADA spaces or not. RCW 46.19.050(5).

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We are interested in creating a meal/refreshments policy for employees in local work-related meetings and training; do you have some good sample policies?
Reviewed: 11/16

Please see the following sample policies:

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When a public records request comes in for records related to a specific employee, must the agency notify the employee whose records have been requested of the request?
Reviewed: 11/16

There is no legal requirement under the PRA that an agency notify employees of such a request. However, RCW 42.56.540 gives agencies the option to provide what is referred to as "third party notice" to allow the third party (here, the employee) to seek a court injunction to block disclosure.

Providing third party notice may be advisable in circumstances where it's unclear whether a specific exemption applies because the PRA is to be construed in favor of disclosure, and an agency could be subject to mandatory penalties if a court finds that the agency improperly withheld non-exempt information. So, the purpose of third party notice is to give the third party (e.g., the employee) a chance to seek a court order preventing the disclosure, while reducing the likelihood that the agency will incur penalties under the PRA.

To provide third party notice, an agency would inform the PRA requestor in writing that it will provide the requested records, subject to appropriate redactions, if any, but will delay release of the records (and so inform the requestor) to give the affected parties the opportunity to seek court protection of possibly exempt information under RCW 42.56.540. See also WAC 44-14-040(4), part of the PRA model rules, which states:

Protecting rights of others. In the event that the requested records contain information that may affect rights of others and may be exempt from disclosure, the public records officer may, prior to providing the records, give notice to such others whose rights may be affected by the disclosure. Such notice should be given so as to make it possible for those other persons to contact the requestor and ask him or her to revise the request, or, if necessary, seek an order from a court to prevent or limit the disclosure. The notice to the affected persons will include a copy of the request.

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What are the public hearing requirements associated with raising a utility rate?
Reviewed: 11/16

Outside of your typical council procedures for adopting ordinances (which is how rate increases are typically established), there are no state law requirements for notice of, or public hearing or comments regarding, utility rate increases, with the exception of solid waste (detailed below). Although cities often hold public hearings and provide prior notice on utility rate increases, state law does not require published notice and a public hearing. Note that there is one exception to this general rule: RCW 35A.21.152 (also stated in RCW 35.21.157), which requires that the public be notified at least 45 days in advance of a proposed effective date of the rate increase for a solid waste utility, either by mail or by publication once a week for two consecutive weeks.

Although state law may not require it for most utilities, there may be political reasons for holding a public hearing before changing a utility rate.

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How often are cities required to adopt or approve their capital facilities plan?
Reviewed: 11/16

A capital facilities plan should be updated at least every two years. Under the Growth Management Act (GMA), the capital facilities element of the comprehensive plan must include “at least a six-year plan that will finance such capital facilities within projected funding capacities and clearly identifies sources of public money for such purposes.” RCW 36.70A.070(3)(d) As per WAC 365-196-415(2)(c)(ii):

The six-year plan should be updated at least biennially so financial planning remains sufficiently ahead of the present for concurrency to be evaluated. Such an update of the capital facilities element may be integrated with the county's or city's annual budget process for capital facilities.

RCW 35A.63.073 requires plan amendments to be processed the same way as adoption of the plan, and RCW 35A.63.070 requires the "planning agency" (typically a planning commission) to hold a public hearing (at least one) and RCW 35A.63.071 requires the planning agency to forward its recommendations on the plan or amendment to the city council. Generally, amendments to the comprehensive plan may only occur once per year. However, the GMA provides exceptions for the capital facilities plan when “amendment of the capital facilities element of a comprehensive plan . . . occurs concurrently with the adoption or amendment of a county or city budget.” RCW 36.70A.130(2)(a).

You may also find our Capital Facilities Planning topic page helpful as well.

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Do newspaper publishers or distributors have any legal rights to place newsracks or newspaper pay boxes in the public right-of-way? Can the city have them moved or at least placed on private property?
Reviewed: 10/16

The U.S. Supreme Court has held that the placement of newsracks (newspaper pay boxes) on sidewalks is “speech” subject to First Amendment protections. City of Cincinnati v. Discovery Network, Inc. , 507 U.S. 410 (1993); Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988). But, the Supreme Court has not squarely addressed whether a complete prohibition on the placement of newsracks on city sidewalks would be constitutional. See International Caucus of Labor Comms. v.City of Montgomery , 111 F.3d 1548 (1997) (“there is no Supreme Court holding that deals with the constitutional implications of a complete ban of newsracks one way or the other.”). The Washington Supreme Court has also not addressed that question, though in one case it refers to the Cincinnati case as “invalidating city ordinance prohibiting newsracks on public property.” Nelson v. McClatchy Newspapers, Inc. , 131 Wn.2d 523, 537 n. 11 (1997). (The Cincinnati case invalidated a city ordinance that banned only those newsracks that contained certain commercial publications.) That being said, we think it would be constitutionally risky to adopt a complete prohibition on news racks on city sidewalks.

What is clear is that a city may impose reasonable time, place, and manner restrictions on the placement of newsracks on public sidewalks, as long as those restrictions are “content neutral” and are “narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." Plain Dealer Publishing Co. v. City of Lakewood, 794 F. 2d 1139, 1143 (6th Cir. 1986), aff’d, 486 U.S. 750 (1988). The city may, for example require permits for news racks, as long as the permitting authority is guided by objective and definite standards. Licensing fees are permissible if they cover only administrative costs. For more information on permissible requirements, see the IMLA [International Municipal Lawyers Association] Model Newsrack Ordinance (1997), starting at page 11.

Here are some examples of city code provisions regulating newsracks on public sidewalks:

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Are local governments required to maintain specific reserve fund balance levels? Should a local government continue adding to its operating reserve if it has already met the requirement of the policy?
Reviewed: 10/16

This is always a good topic of conversation and the answer is almost always “it depends.” Financial policies are considered a best practice by the GFOA and at the top of the list of recommended financial management policies by the SAO.

There is no statutory requirement for fund balance levels, nor is there any specific reference within the SAO BARS manual that states that a municipality (whether it’s a county, city, or special purpose district) has to have a specific level of operating reserves (also known as “beginning” or “ending” fund balance). The 15% figure was a previous recommendation made by the GFOA for the general fund. This percentage has since been updated with the 2015 release of the GFOA best practice paper on Appropriate Level of Unrestricted Fund Balance in the General Fund. The recommendations made by the GFOA now speaks of several factors that would lead an entity to adopt a policy that addresses these factors in a way that is specific to them. An excerpt from the best practice paper states:

In establishing a policy governing the level of unrestricted fund balance in the general fund, a government should consider a variety of factors, including:

  1. The predictability of its revenues and the volatility of its expenditures (i.e., higher levels of unrestricted fund balance may be needed if significant revenue sources are subject to unpredictable fluctuations or if operating expenditures are highly volatile);
  2. Its perceived exposure to significant one-time outlays (e.g., disasters, immediate capital needs, state budget cuts);
  3. The potential drain upon general fund resources from other funds, as well as, the availability of resources in other funds;
  4. The potential impact on the entity’s bond ratings and the corresponding increased cost of borrowed funds;
  5. Commitments and assignments (i.e., governments may wish to maintain higher levels of unrestricted fund balance to compensate for any portion of unrestricted fund balance already committed or assigned by the government for a specific purpose). Governments may deem it appropriate to exclude from consideration resources that have been committed or assigned to some other purpose and focus on unassigned fund balance, rather than on unrestricted fund balance.

Depending upon the answer to the above questions, a local government may find that 15% is not adequate to meet their needs. Or to the contrary, a local government may determine that 15% of the operating budget would be more than sufficient.

You additionally asked whether a local government should continue to add to its operating reserve if it has already met the requirement of the policy. This question can only be answered by the policy adopted. You may want to consider expanding your current policy to define such things as “use and replenishment.” You will note that the GFOA best practice paper has a section that speaks to this issue.

Budget is a great time to review financial policies currently in place and to fine tune those policies to meet current fiscal needs.

Here is a link to our Financial/Budget Policies topic page, where you will find some excellent samples of what other jurisdictions are doing in this area of fiscal management. Additionally, here is a link to the SAO - FIT (Financial Intelligence Tool) that will assist in evaluating the financial condition of the county and provide you with fiscal data for your analysis of appropriate fund balance.

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Do you have any examples of city code updates to allow for small cell or distributed antenna systems (DAS)?
Reviewed: 10/16

We have several examples of code provisions adopted pursuant to the new FCC rules stemming from federal legislation requiring local governments to allow for small cell or distributed antenna systems:

A quick look at these examples seems to indicate that they’ve largely followed either the National League of Cities (NLC) and the National Association of Counties (NACo) model ordinance, or the Kenyon Disend PLLC law firm model ordinance.

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Can a city require fencing to limit access to an individual's medical cannabis grow?
Reviewed: 10/16

Cities can require that outdoor medical marijuana grows be fenced or screened in some way if that is necessary to keep the plants from being readily visible. Review RCW 69.51A.260(2), which reads as follows:

Neither the production nor processing of marijuana or marijuana-infused products pursuant to this section nor the storage or growing of plants may occur if any portion of such activity can be readily seen by normal unaided vision or readily smelled from a public place or the private property of another housing unit.

Most medical marijuana patients or designated providers have a natural incentive to screen plants from view so the plants do not become the targets of thieves.

In addition, WAC 314-55-410(1)(k) requires that outdoor medical marijuana production “be enclosed by a sight obscure wall or fence at least eight feet high.” Note, however, that WAC 314-55-410(1)(k) only applies to cooperatives, not to medical marijuana being grown by a sole medical marijuana patient or designated provider.

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