skip navigation

Ask MRSC Archives

Browse Inquiries By Topic


May candidates for mayor have a "meet and greet your candidates night" at city hall, and, if not, can it be held at the school gym since it is not a school board election?
Reviewed: 05/15

First we want to note that the answer to your question is the same regardless if the event would be held in the city hall or in the school gym, since both the city and the school district are public agencies within the meaning of RCW 42.17A.555, which contains the prohibition on using public office or public agency facilities to support or oppose a candidate or ballot proposition. See definition of "agency" in RCW 42.17A.005(2). It does not matter that this does not involve a school board election.

The Public Disclosure Commission (PDC), the agency that enforces RCW 42.17A.555, has concluded that the "Use of agency meeting facilities is permitted when the facility is merely a 'neutral forum' where the activity is taking place, and the public agency in charge of the facility is not actively endorsing or supporting the activity that is occurring." See Guidelines for Local Government Agencies in Election Campaigns, PDC Interpretation 04-02 (amended May 2013). Often such neutral forums involve the candidates taking turns giving speeches to the attendees, but it could also encompass a "meet and greet" as is contemplated here.

So, yes, the "meet and greet" could take place at the city hall.

(Link to this question)

How many signatures are required on the blanket voucher form if the vouchers have been approved by the city council in a regular meeting?
Reviewed: 05/15

Chapter 42.24 RCW provides for the certification and approval of claims against the municipality. All claims require pre-auditing by the auditing officer and must be certified by the auditing officer as true and just claims against the city. The certification requires signature on either an individual or blanket voucher form that lists the individual claims being certified. The council is required to approve the voucher(s) presented for payment, and, as part of this approval process, the SAO recommends in the BARS Manual that the governing body include appropriate language within the minutes of the meeting to confirm the legislative approval.

The council's signatures on the blanket voucher are not specifically required in the RCW or by the SAO through its prescriptions in the BARS Manual. Council approval in a regularly-scheduled council meeting of vouchers that have been audited, certified, and submitted for approval by the auditing officer on either an individual and/or blanket voucher does not require additional signatures by council on the voucher form. The recording of voucher approval in the minutes is sufficient to meet the requirements of the law.

(Link to this question)

We have a planning commission member who would like to participate in the regular planning commission meeting by teleconference. If she calls in, is she considered a member for purposes of a quorum and can she vote on a motion?
Reviewed: 05/15

Remote participation by a member of a governing body, including a planning commission, can count toward a quorum and for voting purposes if that body - the planning commission here - adopts a policy allowing for such remote participation. State law, including the Open Public Meetings Act (OPMA), chapter 42.30 RCW, doesn't prohibit a planning commission from adopting a policy that allows members to participate in a meeting remotely such as via speakerphone or video conferencing. However, there must be two-way communication -- the person on the phone line or video feed must be able to both hear what's happening at the meeting and also be heard by those present at the meeting. Under such circumstances, this would be considered as attendance at the meeting and that person would count toward the quorum and for voting purposes.

We recommend that the planning commission adopt a policy that specifically addresses the issue. If such a policy isn't in place currently, the commission could vote to approve such a policy at the beginning of the meeting and, if that vote passes, the commissioner at issue could then participate remotely. Generally, it's advisable for such policies to restrict such remote participation to limited circumstances. Under such policies, the planning commission is the one to determine in a particular circumstance whether the policy applies.

(Link to this question)

Do former employees have a right to review their personnel files? Would they be allowed to make copies or have the opportunity to respond to anything in their files?
Reviewed: 05/15

We have opined that an ex-employee has a statutory right, as described below, to review his/her personnel file for a two-year period after his/her employment with the city has terminated. A key provision in this regard is RCW 49.12.250, which provides, in part:

3) A former employee shall retain the right of rebuttal or correction for a period not to exceed two years.

The reference to retaining the right of rebuttal or correction must be considered in the context of the other provisions of RCW 49.12.250, which provide, related to an employee's personnel file:

(1) Each employer shall make such file(s) available locally within a reasonable period of time after the employee requests the file(s).
(2) An employee annually may petition that the employer review all information in the employee's personnel file(s) that are regularly maintained by the employer as a part of his business records or are subject to reference for information given to persons outside of the company. The employer shall determine if there is any irrelevant or erroneous information in the file(s), and shall remove all such information from the file(s). If an employee does not agree with the employer's determination, the employee may at his or her request have placed in the employee's personnel file a statement containing the employee's rebuttal or correction. Nothing in this subsection prevents the employer from removing information more frequently.

In order for the right of rebuttal or correction referenced in RCW 49.12.250(3) to be meaningful, a former employee would need to be able to review the contents of the file to possibly rebut or correct information in that file. So, for a two-year period after an employee has concluded his/her employment with the city, that employee retains the right to review his/her personnel file, in accordance with RCW 49.12.250 (and RCW 49.12.260, - see below).

Note that there are limitations on an employee's right of inspection related to his/her personnel file. Presumably, those same restrictions apply as well to former employees. RCW 49.12.260 provides:

RCW 49.12.240 and RCW 49.12.250 do not apply to the records of an employee relating to the investigation of a possible criminal offense. RCW 49.12.240 and RCW 49.12.250 do not apply to information or records compiled in preparation for an impending lawsuit which would not be available to another party under the rules of pretrial discovery for causes pending in the superior courts.

Once the two-year period referenced in RCW 49.12.250 expires, there's no specific provision allowing a former employee the right to inspect his/her personnel file. The plain meaning of the term "employee" in this context refers to someone working for the city and doesn't seem to include someone who formerly worked for the city. The definition is included in RCW 49.12.005, as follows:

(4) "Employee" means an employee who is employed in the business of the employee's employer whether by way of manual labor or otherwise.

So, after the two-year time period, a former city employee would have the same right of inspection of city records as any other person under the Public Records Act (PRA) (chapter 42.56 RCW). As a practical matter, the city could choose in such a situation to allow a former employee broader access to his/her own personnel file, but the city wouldn't be legally required to.

You also asked whether the city can allow a former employee to make copies of records in his/her personnel file. Based on the provisions referenced above, specifically RCW 49.12.240 and RCW 49.12.250 and RCW 49.12.260, we think the city can make copies of records in a former employee's personnel file and make those records available to that former employee, as long as the city complies with RCW 49.12.250, RCW 49.12.260, and the PRA. If the city is making the records available in response to a PRA request, the city would need to review the records to determine if any exemptions under the PRA apply to any information in any records that are responsive to such a PRA request.

(Link to this question)

May the city sell surplus property to a specific individual (without offering it to all)?            
Reviewed: 04/15

Yes. 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.  Though, 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 (or changed, if need be).

(Link to this question)

Does the removal of the interior lot line between two lots constitute a plat alteration or a boundary line adjustment?
Reviewed: 04/15

The removal of the interior lot line between two lots is generally considered to be a boundary line adjustment. See Island County v. Dillingham Dev. Co., 99 Wn.2d 215, 223 (1983), in which the state supreme court held that combining lots and portions of lots by changing boundaries to form larger lots does not result in the creation of additional lots and is therefore exempt from the platting requirements of chapter 58.17 RCW; the court stated:

Based on the suggestions of the auditor and the prosecuting attorney, the respondents combined 400 Brooklyn and Chicago plat undersized lots by changing boundaries, incorporating lots or half lots to fulfill the minimum requirements of a 60-foot-wide lot and an area of at least 12,500 feet. This was done in accordance with section 6 of the Island County interim zoning ordinance which authorized grouping of undersized lots in sufficient multiples to meet density requirements.

We hold that the Chicago and Brooklyn combinations were boundary line adjustments which did not result in the creation of any additional lots, and were thus exempt from the platting requirements of the local planning commission.

The state supreme court reaffirmed its holding in Dillingham in City of Seattle v. Crispin, 149 Wn.2d 896, 903-04 (2003):

In Dillingham, Island County brought suit against land developers claiming the boundary adjustments in that case resulted in an illegal subdivision because the owners never received permission to make the adjustments. We disagreed and held a reconfiguration of boundary lines without the creation of additional lots was a boundary line adjustment that did not require approval under state or local subdivision laws. Dillingham, 99 Wn.2d at 223. We relied on the exemption in RCW 58.17.040, the same statute applicable in the present case. The land owner in Dillingham had adjusted the boundaries of an old plat to combine what had been substandard lots into fewer, larger lots that met the current zoning requirements. After the adjustment, the lots could then be sold. We held the reconfiguration was a boundary line adjustment exempt from the subdivision process. The interpretation of the statute we adopted in Dillingham established that boundary line adjustments which do not result in the creation of any additional lots are exempt from the platting requirements of local planning commissions and are exempt under the specific language of RCW 58.17.040.

So, these two cases confirm the conclusion that combining lots by eliminating interior lot lines is a boundary line adjustment that is, under RCW 58.17.040(6), exempt from subdivision requirements in chapter 58.17 RCW, including the requirements that apply to the alteration of a subdivision in RCW 58.17.215 or, in the case of short plats, under locally adopted procedures.

(Link to this question)

What should be done with unclaimed warrants that were issued several years ago but never negotiated or presented at our bank?
Reviewed: 04/15

Under RCW 39.56.040, warrants not presented within one year of their issue "shall be canceled by passage of a resolution of the governing body of the municipal corporation." Those canceled warrants then fall under RCW 33.29.190(2)(a), part of the Uniform Unclaimed Property Act, which provides as follows:

Counties, cities, towns, and other municipal and quasi-municipal corporations that hold funds representing warrants canceled pursuant to RCW 36.22.100 and 39.56.040, uncashed checks, and property tax overpayments or refunds may retain the funds until the owner notifies them and establishes ownership as provided in RCW 63.29.135. Counties, cities, towns, or other municipal or quasi-municipal corporations shall provide to the department [of Revenue] a report of property it is holding pursuant to this section. The report shall identify the property and owner in the manner provided in RCW 63.29.170 and the department shall publish the information as provided in RCW 63.29.180.

(Emphasis added.)

RCW 63.29.135, referenced above, provides:

A local government holding abandoned intangible property that is not forwarded to the department of revenue, as authorized under RCW 63.29.190, shall not be required to maintain current records of this property for longer than five years after the property is presumed to be abandoned, and at that time may archive records of this intangible property and transfer the intangible property to its general fund. However, the local government shall remain liable to pay the intangible property to a person or entity subsequently establishing its ownership of this intangible property.

Although RCW 63.29.130 presumes intangible property to be abandoned when it is held by the government (including a city) and is unclaimed for more than two years after becoming payable, we think that warrants canceled under RCW 39.56.040would effectively be presumed abandoned such that the five-year period in RCW 63.29.135 begins upon cancellation of the warrants. Note that abandoned property worth $50 or under need be reported to the Department of Revenue under RCW 63.29.170(2) only in the aggregate.


So, basically, it's our conclusion that, after the expiration of five years after a warrant is canceled by the city council, the funds it represents can be returned to the general fund. It's unfortunate that the road to this conclusion isn't easier.


Note also for future reference that the Department of Revenue has a website on reporting unclaimed property, as well as a resource entitled Washington State Unclaimed Property Local Government Guide

(Link to this question)

May the city pass a distracted driver ordinance that is more restrictive than state law, such as making it a traffic infraction to use cell phones, while driving, in ways that are not currently prohibited in state law?
Reviewed: 04/15

We don't think the city may pass a more restrictive distracted driver ordinance. The Washington courts have strictly interpreted the ability of cities and counties to enact regulatory provisions that are not uniform with the state statutory provisions on motor vehicles. In a prominent case regarding this issue of a city enacting a more stringent traffic ordinance, Seattle v. Williams, 128 Wn.2d 341 (1995), the state supreme court invalidated a city ordinance that defined the offense of driving while intoxicated using a lessor blood alcohol level (0.08) than used in state law (0.10). (The Legislature changed the level to 0.08 in 1998.) The court began its opinion, at 341-42, as follows:

The question presented by this appeal is whether the City of Seattle may enforce an ordinance that defines the offense of driving while intoxicated in a manner that is not in uniformity with a state statute defining the offense of driving under the influence of intoxicating liquor. We hold that it may not, because to allow it to do so would contravene RCW 46.08.020, a statute which requires traffic laws to be "applicable and uniform throughout this state," as well as RCW 46.08.030, a statute which requires traffic laws to be "applicable and uniform upon all persons operating vehicles upon the public highways of this state

A more restrictive distracted driver ordinance effective only in your city would also - by being "more restrictive" than state law - violate this uniformity requirement regarding traffic laws as set out in RCW 46.08.030.

(Link to this question)

What limits are there on city officials lobbying on proposed legislation at the state legislature?
Reviewed: 03/15

Lobbying by local governments on proposed legislation in the state legislature is governed by RCW 42.17A.635, which at subsection (3) provides in part:

Any agency, not otherwise expressly authorized by law, may expend public funds for lobbying, but such lobbying activity shall be limited to (a) providing information or communicating on matters pertaining to official agency business to any elected official or officer or employee of any agency or (b) advocating the official position or interests of the agency to any elected official or officer or employee of any agency. Public funds may not be expended as a direct or indirect gift or campaign contribution to any elected official or officer or employee of any agency. For the purposes of this subsection, "gift" means a voluntary transfer of any thing of value without consideration of equal or greater value, but does not include informational material transferred for the sole purpose of informing the recipient about matters pertaining to official agency business.  

Note the definition of "lobbying" in RCW 42.17A.005(30):

Each mean attempting to influence the passage or defeat of any legislation by the legislature of the state of Washington, or the adoption or rejection of any rule, standard, rate, or other legislative enactment of any state agency under the state administrative procedure act, chapter 34.05 RCW.

The expenditure of public funds for lobbying authorized by RCW 42.17A.635(3) must be reported to the PDC, per RCW 42.17A.635(5), which states in part:

Each state agency, county, city, town, municipal corporation, quasi-municipal corporation, or special purpose district that expends public funds for lobbying shall file with the commission, except as exempted by (d) of this subsection, quarterly statements providing the following information for the quarter just completed . . . .

The expenditure of public funds for lobbying is to be reported on PDC Form L-5. Note that "lobbying" for purposes of reporting the expenditure of public funds to the PDC does not include, among other things:

(A) Telephone conversations or preparation of written correspondence;
(B) In-person lobbying on behalf of an agency of no more than four days or parts thereof during any three-month period by officers or employees of that agency and in-person lobbying by any elected official of such agency on behalf of such agency or in connection with the powers, duties, or compensation of such official. The total expenditures of nonpublic funds made in connection with such lobbying for or on behalf of any one or more members of the legislature or state elected officials or public officers or employees of the state of Washington may not exceed fifteen dollars for any three-month period. The exemption under this subsection (5)(d)(v)(B) is in addition to the exemption provided in (d)(v)(A) of this subsection;
(C) Preparation or adoption of policy positions.

RCW 42.17A.635(5)(d)(v). Note that the above subsection also addresses the expenditure of nonpublic funds for lobbying. Expenditures of nonpublic funds over $15 in any three-month period is also to be reported on Form L-5.
We are not aware of any monetary limit on the expenditure of public funds for lobbying. 

(Link to this question)

What is the difference between a contingency fund and a cumulative reserve fund?
Reviewed: 03/15

A contingency fund and a cumulative reserve fund are not the same and are often used to fund completely separate activities.

A contingency fund is a sub-fund of the general fund and it supports general fund activities.  RCW 35A.33.145 (for code cities) provides:

Every code city may create and maintain a contingency fund to provide moneys with which to meet any municipal expense, the necessity or extent of which could not have been foreseen or reasonably evaluated at the time of adopting the annual budget, or from which to provide moneys for those emergencies described in RCW 35A.33.080 and 35A.33.090. Such fund may be supported by a budget appropriation from any tax or other revenue source not restricted in use by law, or also may be supported by a transfer from other unexpended or decreased funds made available by ordinance as set forth in RCW 35A.33.120: PROVIDED, That the total amount accumulated in such fund at any time shall not exceed the equivalent of thirty-seven and one-half cents per thousand dollars of assessed valuation of property within the city at such time. Any moneys in the contingency fund at the end of the fiscal year shall not lapse except upon re-appropriation by the council to another fund in the adoption of a subsequent budget.  

The funds set aside in the contingency fund do not lapse at year end; however, these funds are "not restricted" and can be re-appropriated to another fund in a subsequent budget. It is important to note that the monies set aside in the contingency fund must be expended according to RCW 35A.33.080 (Emergency) or RCW 35A.33.090 (Other Emergencies), both of which require a supermajority vote. RCW 35A.33.090 requires that the public be allowed to be heard for or against the emergency ordinance.

Additionally, the following statute applies to withdrawals from this fund. No money can be withdrawn from the contingency fund except when authorized by a resolution or ordinance of the city council, adopted by majority vote of the entire council and stating the facts constituting the reason for the withdrawal. RCW 35A.33.146 states:

No money shall be withdrawn from the contingency fund except by transfer to the appropriate operating fund authorized by a resolution or ordinance of the council, adopted by a vote of the majority of the entire council, clearly stating the facts constituting the reason for the withdrawal or the emergency as the case may be, specifying the fund to which the withdrawn money shall be transferred.

Cumulative reserve funds are different. If the city used RCW 35.21.070 to establish the cumulative reserve fund for specific municipal purposes, once the fund has been established, the moneys in the fund may not be expended for any other purpose than those specified, unless authorized by a two-thirds majority vote of the council

Also, RCW 35.21.080 provides

An item for said cumulative reserve fund may be included in the city or town's annual budget or estimate of amounts required to meet public expense for the ensuing year and a tax levy made within the limits and as authorized by law for said item; and said item and levy may be repeated from year to year until, in the judgment of the legislative body of the city or town, the amount required for the specified purpose or purposes has been raised or accumulated. Any moneys in said fund at the end of the fiscal year shall not lapse nor shall the same be a surplus available or which may be used for any other purpose or purposes than those specified, except as herein provided.

RCW 35.21.080 affirms that the city "may" include an annual budget appropriation but is not required to, which allows the fund to build up reserves. The reference to "any moneys in said fund at the end of the fiscal year shall not lapse" refers to the accumulation of funds and not the issue of budget appropriations. 

(Link to this question)

Is a water line extension project exempt from SEPA?
Reviewed: 03/15

Yes, if the line is 12 inches or less in diameter and the water line does not cross any "lands covered by water." WAC 197-11-800 (23)(b).

(Link to this question)

May local governments electronically scan all their invoices and save the electronic version instead of the original paper version from the vendor?
Reviewed: 03/15

Yes, that is legal, provided the requirements of the Washington State Archives' Local Government Common Records Retention Schedule (CORE), Version 3.1 (December 18, 2014), are followed. Section 5.5 (Records Conversion) of the records retention schedule, at GS50-09-14, addresses scanning/digitizing "non-archival records" - which would include invoices - and states that such must occur in accordance with the Washington State Requirements for the Destruction of Non-Archival Paper Records After Imaging, or they may be "Scanned/digitized in accordance with a valid approval by Washington State Archives' legacy processes (Electronic Imaging System (EIS) or Early Destruction After Digitization (DAD)."

(Link to this question)

 What are the records retention schedules?
Reviewed: 03/15

Records retention schedules are issued by the Local Records Committee to serve as the retention schedules and disposition authority for records held by local government agencies. The Local Records Committee is a committee which includes the state archivist, a representative appointed by the state auditor, and a representative appointed by the attorney general.

The records retention schedules may be applied directly by agencies as authority to destroy the records listed after the expiration of their approved retention periods. It requires no further authorization or approval.

The most recent versions of the Local Government Records Retention Schedules are available on the Washington State Archives website. Those documents are updated periodically.

In addition to the general records retention schedule applicable to local government agencies, there are retention schedules for some specific departments of local government agencies. Review the Records Management - Local Government page for further information.

(Link to this question)

Are cities and counties required to create a document when responding to a specific request for public disclosure?
Reviewed: 03/15

No. A Court of Appeals decision has addressed this issue directly: Smith v. Okanogan County, decided 2/8/00.

There is no statute in the state PRA directly addressing this issue, but there is federal law on this issue. . . . Under the Freedom of Information Act, an agency is not required to create a record which is otherwise non-existent. See National Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 161-62, 95 S. Ct. 1504, 44 L. Ed.2d 29 (1975). We agree and determine there is also no such duty under the state PRA.

Also see WAC 44-14-04003.

(Link to this question)

How soon must a city respond to a request for public records?
Reviewed: 03/15

State law requires that responses to requests for public records be made "promptly." Specifically, cities and other governmental agencies must respond in writing within five business days of receiving a request by either: (1) providing the record; (2) providing an internet address and link on the agency's web site to the specific records requested...; (3) acknowledging receipt of the record and providing a reasonable estimate of the time in which a response will be made; or (4) denying the request. Additional response time beyond five days may be based upon a need to clarify the request, to locate and assemble the records requested, to notify people and agencies affected by the request, or to determine whether any of the requested records are exempt from disclosure. RCW 42.56.520. WAC 44-14-04003 discusses the required timely response and provides some commentary on providing a "reasonable estimate" of the time necessary to respond and on asking for a clarification of the request.

(Link to this question)

Does a city have a duty to maintain public alleys? If yes, what is that duty?
Reviewed: 03/15

There appears to be no legal distinction between streets and alleys as to the rules that govern them. Though, Washington statutes do make some definitional distinctions between streets and alleys:
  • RCW 46.04.020 defines an "alley" as "a public highway not designated for general travel and used primarily as a means of access to the rear of the residence and business establishments." (My emphasis.)
  • RCW 46.04.120 defines "city street" as "every public highway, or part thereof located within the limits of cities and towns, except alleys." (My emphasis.)

Regardless of these definitional distinctions, case law considers alleys to be the same as streets, reflecting the general rule as stated in McQuillin, The Law of Municipal Corporations, §30:10 (2014):

Public alleys, like streets, are under the control of municipal authorities, and the prevailing rule is that there is no distinction, in law, between a public street and a public alley, and hence a public alley is governed by the rules applicable to streets...

The only Washington case law that we could find that squarely addresses whether there is any distinction between streets and alleys for purposes of the duty of care owed by a city is Ferguson v. Yakima, 139 Wash. 216, 219-20 (1926), where the court held:

The alleys in a city, platted and dedicated to public use, are as much public highways as are the streets therein. (Rem. Comp. Stat., § 9292 [P. C. § 1181]; Carroll v. Centralia Water Co., 5 Wash. 613, 32 Pac. 609, 33 P. 431.) They are under the control of the public authorities of such city (Rem. Comp. Stat., § 9294) [P. C. § 1267], and it is as much the duty of the city to keep them in repair for public use as it is its duty to keep in repair the highways more commonly called streets. In all instances, whether the highway be a street or alley, reasonable care in this regard must be exercised. What will constitute reasonable care, must, of course, vary with the circumstances. Reasonable care in the upkeep of an outlying and little used street might be gross negligence when applied to the much used streets in the more congested business portion of the city, but the legal duty is the same in every instance, the care exercised must be commensurate with the circumstances. The same rule applies to alleys. Little or no care in one instance might be reasonable care, while in another it would be gross negligence. It is, therefore, incorrect to say, as the trial court did say in the instruction given, that a city is not obliged to keep an alley in the same condition for travel as it is required to keep a street or a sidewalk. There is no such general rule. Instances are present in every city where acts and omissions in the care of an alley would be negligence, while the same acts and omissions would be reasonable care with respect to a street or sidewalk.

Nor is it a general rule that a person who travels upon or across an alley, whether in the night-time or daytime, must exercise a higher and greater degree of care for his own safety than when traveling upon or along a street or sidewalk. The traveler's duty in every instance is to exercise that degree of care the circumstances and conditions require; that is to say, he must exercise that degree of care a reasonably prudent person would exercise under like and similar circumstances.

Citing Ferguson v. Yakima, the court in Burkhard v. Bowen, 32 Wn.2d 613, 620 (1949), stated: "It would seem that this court has, for all practical purposes, treated alleys the same as roads, highways or streets."

In an unpublished court of appeals decision, Skubatch v. City of Seattle, No. 50202-6-I, 2003 Wash. App. LEXIS 72 (2003), the court, also citing Ferguson v. Yakima, held:

The City's standard of care, as enunciated in Keller, is to exercise ordinary care in the maintenance of its roadways in a reasonably safe manner for the foreseeable acts of those using the roadways 8 This same standard applies to the maintenance of alleys. 9

(Emphasis added. Footnote 9 cites Ferguson.)

(Link to this question)

 How is a conditional use permit affected by the sale of the property for which the permit was issued?
Reviewed: 02/15

Although this is not addressed by statute or by case law in this state, our legal staff has opined that a conditional use approval typically runs with the land, rather than being personal to the applicant. Other authority and general principles of land use law support this conclusion. We have cited Rathkopf, The Law of Zoning and Planning, § 61:50 (citing authority from other states).

So, a change of ownership generally would not affect the status of a conditional use permit

(Link to this question)

Must the city council approve a transfer between individual appropriations within one fund or can this be done administratively?


Reviewed: 02/15

Under state law, a transfer within the same fund can be accomplished administratively without council approval, unless your city has adopted specific regulations that limit the ability of the city administration to do this. RCW 35.33.121 provides in relevant part:  

Transfers between individual appropriations within any one fund may be made during the current fiscal year by order of the city's or town's chief administrative officer subject to such regulations, if any, as may be imposed by the city or town legislative body. Notwithstanding the provisions of RCW 43.09.210 or of any statute to the contrary, transfers, as herein authorized, may be made within the same fund regardless of the various offices, departments or divisions of the city or town which may be affected.

For code cities, see RCW 35A33.120.

(Link to this question)

Does the county have the option to withdraw from fully planning under the GMA?
Reviewed: 02/15

The 2014 Legislature amended the GMA to allow certain counties to withdraw, within a limited time frame, from voluntary planning under the GMA. The withdrawal process is set forth in RCW 36.70A.040(2)(b)(i). Until December 31, 2015, counties that have voluntarily chosen to plan under the GMA may adopt a resolution removing the county and the cities located within the county from most GMA requirements, so long as:
1. The county has a population, as estimated by OFM, of 20,000 or fewer inhabitants at any time between 4/1/10 and 4/1/15;
2. The county has previously adopted a resolution indicating its intention to voluntary plan under the GMA; and
3. At least 60 days prior to adopting a resolution for partial planning, the county notifies in writing each city in the county of its intent to adopt a withdrawal resolution.

However, if 60 percent of the cities within the county that have an aggregate population of at least 75 percent of the incorporated county population adopt resolutions opposing the action and provide the county with written notice of the resolutions, the county cannot withdraw.
If the county adopts such a resolution to withdraw, it cannot adopt a resolution to fully comply with the GMA for a minimum of 10 years. 
The term "partial planning" used in this statute refers to the fact that counties/cities not fully planning under the GMA are still subject to certain requirements in the GMA.  As stated in the final bill report: 
The adoption of a resolution, however, does not nullify or otherwise modify requirements of the GMA for counties and cities relating to:
• designating natural resource lands;
• designating and protecting critical areas;
• employing the best available science in designating and protecting critical areas; and
• the rural element of a comprehensive plan.

(Link to this question)

May a city or county amend its building code to provide for a hearing examiner in place of a building code board of appeals? If so, is State Building Code Council approval required for this type of amendment?
Reviewed: 02/15

Yes, it's our opinion that a city or county may amend the building code pursuant to the authority in RCW 19.27.040 to provide for a hearing examiner to perform the role of the board of appeals that is required under the International Building Code (IBC) and the International Fire Code (IFC), which are part of the state building code. That statute provides:

The governing body of each county or city is authorized to amend the state building code as it applies within the jurisdiction of the county or city. The minimum performance standards of the codes and the objectives enumerated in RCW 19.27.020 shall not be diminished by any county or city amendments.    

The IFC, at Sec. 108.1 and Sec. 108.3, provides:    

108.1 Board of appeals established. In order to hear and decide appeals of orders, decisions or determinations made by the fire code official relative to the application and interpretation of this code, there shall be and is hereby created a board of appeals. The board of appeals shall be appointed by the governing body and shall hold office at its pleasure. The fire code official shall be an ex officio member of said board but shall have no vote on any matter before the board. The board shall adopt rules of procedure for conducting its business, and shall render all decisions and findings in writing to the appellant with a duplicate copy to the fire code official

108.3 Qualifications. The board of appeals shall consist of members who are qualified by experience and training to pass on matters pertaining to hazards of fire, explosions, hazardous conditions or fire protection systems, and are not employees of the jurisdiction.

The IBC, at Sec. 113.1 and Sec. 113.3, provides:    

113.1 General. In order to hear and decide appeals of orders, decisions or determinations made by the building official relative to the application and interpretation of this code, there shall be and is hereby created a board of appeals. The board of appeals shall be appointed by the applicable governing authority and shall hold office at its pleasure. The board shall adopt rules of procedure for conducting its business.

113.3 Qualifications. The board of appeals shall consist of members who are qualified by experience and training to pass on matters pertaining to building construction and are not employees of the jurisdiction.

For many jurisdictions, particularly smaller ones, it may be difficult to have on hand qualified, multiple-member appeals boards as set out above. Any hearing examiner appointed in place of a board would, however, need to possess the qualifications as set out in IFC Sec. 108.3 and IBC 113.3, and it think it would likely be necessary to have two separate examiners, one for each code.

We don't think that State Building Code Council approval under RCW 19.27.060(1)(a) is required for an amendment like this. That statute requires that:

No amendment to a code enumerated in RCW 19.27.031 as amended and adopted by the state building code council that affects single-family or multifamily residential buildings shall be effective unless the amendment is approved by the building code council under RCW 19.27.074(1)(b).

Appointing hearing examiners in place of these boards of appeals does not in any way affect the code standards that affect single-family or multifamily residential buildings.

(Link to this question)

May a councilmember vote to approve the minutes for a meeting he or she missed?
Reviewed: 01/15

In our opinion, a councilmember may vote on the approval of minutes for a meeting whether he or she was actually present at the meeting, unless the city council has a specific rule of procedure that provides otherwise. There is no statute that addresses this issue.

Robert's Rules of Order, which many city councils adopt by reference, states at Section 41, page 355:

It should be noted that a member's absence from the meeting for which minutes are being approved does not prevent the member from participating in their correction or approval.

We see nothing improper with following this approach.

(Link to this question)

How does a town go about selling land it owns? 
Reviewed: 01/15

The procedure for the sale of surplus real property is driven mostly by local policy. The MRSC webpage, Sale of Surplus City or Town Property, has useful information and sample policies, but, generally, here is what MRSC recommends:

  1. Town council passes a resolution declaring the property to be surplus and specifying how the property will be sold.
  2. Town ascertains the fair market value for the property so as not to sell the property for less than its worth (thereby avoiding a gift of public funds issue). 
  3. Proceed with the sale in any commercially reasonable way.

The one caveat to this procedure is that, if the property was originally bought for utility purposes, there is an extra requirement for a public hearing. See RCW 35.94.040.

(Link to this question)

Is the establishment of a transportation benefit district subject to SEPA?
Reviewed: 01/15

No. The categorical exemption in WAC 197-11-800(16) was amended in May 2014 (WSR 14-09-026) to add "special purpose district," to make the following actions exempt from SEPA (underlined words were added):

Local improvement districts and special purpose districts. The formation of local improvement districts and special purpose districts, unless such formation constitutes a final agency decision to undertake construction of a structure or facility not exempted under WAC 197-11-800 and 197-11-880. A special district or special purpose district is a local government entity designated by the Revised Code of Washington (RCW) and is not a city, town, township, or county.

Since a transportation benefit district is a type of special purpose district, its establishment is exempt from SEPA review. 

(Link to this question)

Is a public records officer required to maintain a log of all requests or only in cases where the request is denied? If a general log must be maintained, how detailed must the entries be?
Reviewed: 01/15

Under the Public Records Act (PRA), chapter 42.56 RCW, agencies are required to maintain what's commonly referred to as a privilege or exemption log, but only related to those records for which the agency is claiming an exemption under the PRA. There is no requirement of a "general" log. RCW 42.56.210(3) provides:

Agency responses refusing, in whole or in part, inspection of any public record shall include a statement of the specific exemption authorizing the withholding of the record (or part) and a brief explanation of how the exemption applies to the record withheld.

The courts have interpreted this statute to require a "privilege log" that identifies each of the records withheld, in whole or in part, and that specifies the exemptions claimed together with a brief explanation of how the claimed exemptions apply to the withheld records. See, e.g., Rental Hous. Ass'n of Puget Sound v. City of Des Moines, 165 Wn.2d 525 (2009). With respect to records withheld in their entirety, the courts have stated:

The identifying information need not be elaborate, but should include the type of record, its date and number of pages, and, unless otherwise protected, the author and recipient, or if protected, other means of sufficiently identifying particular records without disclosing protected content. Where use of any identifying features whatever would reveal protected content, the agency may designate the records by a numbered sequence.

Progressive Animal Welfare Society v. University of Washington, 125 Wn.2d 243, 217 n.18 (1994). See also the PRA "Model Rules," at WAC 44-14-04004(4)(b)(ii).

Although the PRA doesn't require an agency to keep a log or index of records provided in response to a PRA request, doing so may be advisable, at least in some circumstances, so the agency has a clear record of what was provided and when it was provided. The same section of the PRA Model Rules referenced above, WAC 44-14-04004, addresses this issue as well, as follows:

(6) Documenting compliance. An agency should have a process to identify which records were provided to a requestor and the date of production. In some cases, an agency may wish to number-stamp or number-label paper records provided to a requestor to document which records were provided. The agency could also keep a copy of the numbered records so either the agency or requestor can later determine which records were or were not provided. However, the agency should balance the benefits of stamping or labeling the documents and making extra copies against the costs and burdens of doing so.

If memorializing which specific documents were offered for inspection is impractical, an agency might consider documenting which records were provided for inspection by making an index or list of the files or records made available for inspection.

Note, too, that records related to public records requests themselves are also public records. 

(Link to this question)

Can the county use real estate excise tax (REET) money for a pathway?
Reviewed: 12/14

The REET 1 statute, RCW 82.46.010(6), includes the term "trail" in its definition of "capital project" for which REET 1 funds may be used, and so that should include a "pathway." The REET 2 statute, RCW 82.46.035(5), on the other hand, does not include the term "trail" - or "path" or "pathway" - in its definition of "capital project," though it does include "sidewalks." So, it's our opinion that REET 1 funds could be used to construct improvements along the pathway, but not REET 2 funds, unless the pathway here could be considered a sidewalk.

(Link to this question)