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Public Works


What is the proper purchasing procedure for construction software that would be used by city inspectors?
Reviewed: 03/17

First, you need to determine whether this is a purchase of supplies or of services. The following Q&A is from MRSC’s City Bidding Book:

Is the purchase of computer software a purchase of supplies or a purchase of services?
It depends. If the software is “off-the-shelf” (or predominantly so), then it is a purchase of supplies. If the primary or sole cost is for consultant services to customize the program for the city, it is a purchase of services.

Assuming this is software of a largely “off-the-shelf” variety, it would be a purchase of “supplies, materials, or equipment” and only needs to be bid if the cost of that software is over $7,500 and if the entity is a code city with under 20,000 in population, a second class city or a town. There is no state law requirement for code cities over 20,000 to go out for bids for the purchase of materials, supplies and equipment.

However, a couple exemptions from the competitive bidding requirement may apply, including RCW 39.04.280 (i.e., single source and special market conditions), and the alternative competitive negotiation procedure available under RCW 39.04.270 for software (data processing) purchases. MRSC’s Telecommunications and Data Processing Purchases topic page lists the steps for following this alternative process.

If instead this is a purchase of services, then it is a non A&E service. Therefore, there are no specific statutory requirements to obtain these services for any type of city. For more information, see MRSC’s Personal Services Contracts topic page.

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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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Does state law dictate how many months behind in paying the water bill a utility customer must be before the city can shut off the water?
Reviewed: 06/16

State law does not set out how many months delinquent a resident must be before water service can be terminated for nonpayment. That is up to the city's policy.

The language of RCW 35.21.290 and RCW 35.21.300(1) can confuse things here. The former statute establishes a "lien" for the last four months of water charges due. The latter statute provides that this lien (not a true lien) may be enforced only by shutting off utility service "until the delinquent and unpaid charges are paid." We interpret this to mean that the city can exercise the option of shutting off service only for the last four months charges, because that's all the lien is for. Thus, service must be restored once those last four months changes are paid, even if the delinquency is for more than that. The rest of the bill is still a debt owed the city, but the city loses the shut-off option to enforce collection for those charges more than four months past due. Though, for any new charges, the city retains the option of shutting off service to enforce collection of those new charges.

Therefore, we advise not to let the debt owed for water service exceed four months before terminating water service. The city's water utility policy should identify when it will exercise the shut-off option.

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Can a city extend utilities outside its limits or urban growth area (e.g., to a school)?
Reviewed: 03/16

A city has clear statutory authority to extend its utility services (water and sewer) outside its boundaries, but its authority to do so is limited outside its urban growth area (UGA). With respect to a city's authority to extend water service outside its city boundaries, see RCW 35.92.17 (titled "City may extend water system outside limits"), which states:

When a city or town owns or operates a municipal waterworks system and desires to extend such utility beyond its corporate limits it may acquire, construct and maintain any addition to or extension of the system, and dispose of and distribute water to any other municipality, water-sewer district, community, or person desiring to purchase it.

See also RCW 35.92.180.

With respect to a city's authority to extend sewer service outside its city boundaries, see RCW 35.67.310, which states, in part:

Every city or town may permit connections with any of its sewers, either directly or indirectly, from property beyond its limits, upon such terms, conditions and payments as may be prescribed by ordinance, which may be required by the city or town to be evidenced by a written agreement between the city or town and the owner of the property to be served by the connecting sewer.

As noted above, that authority is, however, limited outside a city's UGA, particularly with regard to sewer service. That is because of the Growth Management Act's general prohibition in RCW 36.70A.110(4) on extending urban-type services outside UGAs:

In general, cities are the units of local government most appropriate to provide urban governmental services. In general, it is not appropriate that urban governmental services be extended to or expanded in rural areas except in those limited circumstances shown to be necessary to protect basic public health and safety and the environment and when such services are financially supportable at rural densities and do not permit urban development.

See definitions of "rural governmental services" and "urban governmental services" in a href="http://app.leg.wa.gov/RCW/default.aspx?cite=36.70A.030">RCW 36.70A.030(17) and (18); sewer service is an urban governmental service, while water service can either be rural or urban. In 1000 Friends of Washington v. Thurston County, WWGMHB No. 05-2-0002, Compliance Order, at 14, (2007), the Growth Management Hearings Board noted that "Under the GMA definitions of types of services, water service can be either an urban service or a rural service," and emphasized that "From these definitions, it is apparent that the critical factor in determining whether the water system is a rural or urban system is the intensity at which water service is provided." (Emphasis added.)

This limitation on extending sewer services outside a UGA applies even if the extension is for a school. So, for example, in this Growth Management Hearings Board decision, The Director of the State Department of Community, Trade and Economic Development v. Snohomish County, CPSGMHB Case No. 03-3-0020, Final Decision and Order (2004), the board concluded that an ordinance that permitted the expansion of urban governmental services (sewers) to schools and churches located in a rural area (outside a UGA) was in violation of RCW 36.70A.110(4).

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What options do we have to collect delinquent payments on unpaid LID assessments?
Reviewed: 02/16

The only method for collection of delinquent LID assessments provided in state law is foreclosure of the property subject to the assessment. The procedure for foreclosure of LID assessments is set out in chapter 35.50 RCW. Note RCW 35.50.030, which states in part as follows:

If on the first day of January in any year, two installments of any local improvement assessment are delinquent, or if the final installment thereof has been delinquent for more than one year, the city or town shall proceed with the foreclosure of the delinquent assessment or delinquent installments thereof by proceedings brought in its own name in the superior court of the county in which the city or town is situate.

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What is the municipality's obligation as to the accumulation of snow and ice on streets?
Reviewed: 02/16

The duty as to ice on streets or roads is discussed in Leroy v. State, 124 Wn. App. 65, 68-69 (2004):

The State has a duty of ordinary care to make its roads reasonably safe for ordinary travel. That duty is conditional, however, for it arises only when the State has notice of, and time to correct, the hazard in question. In short, according to Niebarger v. City of Seattle, [53 Wash. 2d 228 (1958)] the State "must have (a) notice of a dangerous condition which it did not create, and (b) a reasonable opportunity to correct it before liability arises for negligence from neglect of duty to keep the streets safe."

See also, Wright v. Kennewick, 62 Wn.2d 163, 167 (1962) ("Here, the evidence was that the snow had been on the ground no more than 2 days, and the most recent crust of ice had formed only a few hours earlier. It is plain that the city had not had a reasonable opportunity to remove it."); Bird v. Walton, 69 Wn. App. 366, 368-69 (1993) (The Department of Transportation met its obligation to correct the dangerous condition where it "engaged almost continuously in attempting to sand [an icy] highway, up to the moment of the accident.").

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Can a municipal utility charge a late fee to customers who say they didn't receive bill?
Reviewed: 10/15

Nothing in state law that addresses this. But we think it is a defensible (and common) policy, because utility customers, when assessed a late penalty, could otherwise simply state that they did not receive a billing and there would be no way for the utility to prove that they did. Sending all billings through registered mail would be cumbersome and expensive.

We recommend that the utility's policies clearly state this - that failure of customer to receive a billing mailed by the city does not prevent assessment of a late penalty.

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Is there any statute or court decision that states that lateral utility lines connecting a private property to the municipality's main utility line are the responsibility of and owned by the private property owner -- not the city?
Reviewed: 08/15

We are not aware of any statute or case that directly address your question; however, MRSC has advised in the past that lateral utility lines, such as a side sewer, connecting private property to the municipality's main utility line are the responsibility of and owned by the private property owner, even if a portion of that line is located in the right-of-way.

Typically, a city right-of-way is only an easement, with the adjacent property owning the underlying fee title. Also, side sewers are installed at private, not public, expense by the developers/property owners who want sewer service to their private property. These side sewers serve a private, not a public, purpose in that they are benefitting private property interests and not the public sewer system as a whole. If the city assumes responsibility for side sewer repair or replacement, it could be considered a gift of public funds, contrary to article 8, section 7 of the Washington State Constitution, unless the city can show that the private benefit resulting from city improvements to the side sewers is merely incidental to the resulting public benefit, such as increasing sewer capacity. See AGO 2009 No. 5.

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What is ordinary maintenance, and is it considered public work?
Reviewed: 08/15

The definition of "public work" in RCW 39.04.010(4) excludes "ordinary maintenance":

(4) "Public work" means all work, construction, alteration, repair, or improvement other than ordinary maintenance …

However, that’s not the end of the story. “Ordinary maintenance” is not defined by statute, but a regulation adopted by the Department of Labor and Industries (L&I), WAC 296-127-010(7)(b)(iii), defines it as follows, for purposes of prevailing wage requirements:

7(b)(iii) Ordinary maintenance which is defined as work not performed by contract and that is performed on a regularly scheduled basis (e.g., daily, weekly, monthly, seasonally, semiannually, but not less frequently than once per year), to service, check, or replace items that are not broken; or work not performed by contract that is not regularly scheduled but is required to maintain the asset so that repair does not become necessary.

(Emphasis added.) Under this definition, for example, programmatic tree trimming and cleaning catch basins and sewer/storm mains would be ordinary maintenance, if performed by agency forces.

So, what about ordinary maintenance that is contracted out?

Under L&I’s definition above, ordinary maintenance that is contracted out is subject to prevailing wage requirements, which is what L&I cares about. In Spokane v. Department of Labor and Industries, 100 Wn. App. 805, 819-20 (2000), the state court of appeals approved of L&I’s definition and concluded that ordinary maintenance, when performed by contract, is "public work" subject to prevailing wage law.

But, is ordinary maintenance when performed by contract considered a “public work” for all other purposes – bid limits, bonds, and retainage? We think likely so, because there are not really two types of “public work,” one subject only to prevailing wages and the other also subject to all the other requirements that otherwise apply to public works. Although some agencies and their attorneys take the position that contracted ordinary maintenance is not a public work except for prevailing wage purposes, the safer position is, of course, to treat contracted ordinary maintenance as a public work to which the following apply: prevailing wages, bid and performance bonds, retainage, and competitive bidding if above the applicable statutory threshold for bids.

MRSC's position is that agencies should approach all maintenance projects conservatively and treat them as public works, subject to prevailing wages and all other public works requirements. Except for relatively small contracts, competitive bids or quotes are good business practices. And if your agency subscribes to the position that contracted ordinary maintenance is not a public work except for prevailing wage purposes, you lose the protection that bonding and retainage provide.

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Is there a state law requirement that water customers who are delinquent in paying their water bill be given a hearing before their water can be shut off?
Reviewed: 06/15

The U.S. Supreme Court has held that utility customers have a property interest in continued service that is protected by the Fourteenth Amendment. Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1 (1978). Based on that authority, customers must receive certain due process before such utilities are shut off.

The court in Memphis provided important guidance regarding the minimum due process requirements applicable to such situations. Generally, customers facing disconnection of their utility service must, prior to shut-off, be notified in writing and be given an opportunity for a hearing. The following is a brief description of such a process:

1. Written Notice - The written notice provided by the utility must, in clear, layperson's terms:

Notify customer that their utility service is subject to termination.

Inform the customer of available opportunities to present objections to the bill. Provide a telephone number, address, and department of the person who will handle the complaint.

2. Hearing - The utility must provide an opportunity for an informal hearing for the customer to dispute the charges.

The date of the hearing must be reasonably well in advance of the scheduled shut-off.

The hearing must be before an official or staff member with authority to resolve the dispute (e.g., the authority to review the facts, to correct any errors in the billings, and arrange for payment terms). Such disputes needn't be heard by the city council or other formal board.

Note also that RCW 35.21.300, provides in part, with respect to water and electric service:

(3) The utility shall: (a) Include in any notice that an account is delinquent and that service may be subject to termination, a description of the customer's duties in this section; (b) Assist the customer in fulfilling the requirements under this section; (c) Be authorized to transfer an account to a new residence when a customer who has established a plan under this section moves from one residence to another within the same utility service area; (d) Be permitted to disconnect service if the customer fails to honor the payment program. Utilities may continue to disconnect service for those practices authorized by law other than for nonpayment as provided for in this section. Customers who qualify for payment plans under this section who default on their payment plans and are disconnected can be reconnected and maintain the protections afforded under this chapter by paying reconnection charges, if any, and by paying all amounts that would have been due and owing under the terms of the applicable payment plan, absent default, on the date on which service is reconnected; and (e) Advise the customer in writing at the time it disconnects service that it will restore service if the customer contacts the utility and fulfills the other requirements of this section.

Additional detail and practical suggestions related to how to address utility delinquencies are provided on our Collection Practices for Delinquent Utility Accounts webpage.

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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.)

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Can the county require existing mobile home parks to connect to sewer system when they have existing, functional septic systems?
Reviewed: 12/14

No. Under RCW 35.67.370, the county cannot force a mobile home park with an existing, functional septic system to hook up, "unless the local board of health determines that the septic system is failing." See Parrell-Sisters MHC, LLC v. Spokane County, 147 Wn. App. 356, 362 (2008). 

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May a local government adopt a policy of not taking action to collect on overdue utility bills that are less than the collection costs?
Reviewed: 12/14

Yes, a city council or board of county commissioners may adopt a policy that establishes a de minimis amount that the city or county will not seek to collect. The policy should make clear that if bills accumulate and cause the amount due to go over the minimum, then collection procedures would be followed. The amount should be set at a level that makes sense, figuring in the cost of staff time, postage, etc.

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Is there a provision in state law requiring a ten-day grace period for delinquent utility bills?
Reviewed: 12/14

There is no such provision in state law. Once a utility bill is delinquent, the city may take steps to collect the delinquent utility bill. These steps could include termination of utility service after proper notice has been given.

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Is there a law that affects the ability of a city to collect unpaid utility charges after property is sold?
Reviewed: 12/14

See chapter 60.80 RCW. Unless the purchaser and seller otherwise agree in writing, the seller is responsible for satisfying unrecorded utility liens at closing.

The closing agent for the sale is required to request a final billing from the utility, to which the utility must respond in a certain time period. If the utility does not respond within that time period, the unrecorded lien for charges incurred prior to the closing date is extinguished. If the utility does not receive a written request for a final billing, or if the utility complied and payment of the final billing is not provided, the utility may recover unpaid charges incurred prior to closing from the purchaser or from the seller or the person or persons who actually incurred the charges.

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May a city impose a delinquency charge on an overdue utility account?
Reviewed: 12/14

Cities have wide latitude to regulate utility service rates. (RCW 35.67.020 and 35.92.010) Cities can impose both a late penalty and interest on delinquent payments. Interest would only be allowed up to eight percent for overdue sewer bills (RCW 35.67.200), but there is no similar restriction for other utilities.. There is no particular limit placed on penalties.

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How far back can a city go in correcting for underbilling a utility customer?
Reviewed: 12/14

RCW 4.16.040 provides for a six-year statute of limitations for various actions, including an action upon an account receivable.  As amended effective July 22, 2007, RCW 4.16.040(2) states:

An action upon an account receivable.  For purposes of this section, an account receivable is any obligation for payment incurred in the ordinary course of the claimant's business or profession, whether arising from one or more transactions and whether or not earned by performance.

According to the legislative history of RCW 4.16.040(2), the Legislature amended this provision to define “account receivable.”  It appears that the Legislature acted, at least in part, in response to the Washington Supreme Court, which, in Tingey v. Haisch, 159 Wn.2d 652, 665 (2007), held, in relevant part:

We hold that the plain meaning of "account receivable" as used in RCW 4.16.040(2) is “an amount due a business on account from a customer who has bought merchandise or received services.”

In dissent, the court in Tingey encouraged the Legislature to define the term “account receivable.”  The Legislature did so, through HB 1145 (enacted in April 2007), which, as above mentioned, amended RCW 4.16.040(2).

Therefore, with respect to a situation in which a public utility has undercharged a utility customer and the utility is owed money, presumably such an undercharge would be an “account receivable” subject to the six-year statute of limitations under RCW 4.16.040(2) to the extent the charge, in relevant part, constitutes an obligation for payment incurred in the ordinary course of the utility’s business, arising from one or more transactions, and whether or not earned by performance.

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May a city continue to seek collection of overdue utility bills or other overdue fees from a city resident or city business after receiving legal notice that the person or company has filed for bankruptcy?
Reviewed: 12/14

No. After a city receives formal notice of bankruptcy filing, further collection efforts are prohibited. There are certain actions which the city can take, however, such as requiring a deposit for further utility service. If you are not familiar with the legal restrictions, discuss this issue with your city attorney.

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May a city or county set reasonable limits on the acceptance of loose coins in payment of utility bills, fines, or other amounts due?
Reviewed: 12/14

Yes, in our opinion, it may. A government agency has the right to exercise reasonable administrative discretion in determining the amounts and denominations of coinage and currency it will accept in payment of utility or other charges. Several Washington jurisdictions of which we are aware will accept no more than $2.00 in coinage in payment of personal obligations. In addition, a government may require coinage that can be rolled to be acceptable tender.

Though pennies are legal tender by federal statute, courts have repeatedly held that the statute cannot be interpreted to require acceptance of a particular denomination of coin or currency and that the absolute language of the legal-tender statutes is clearly modifiable by the necessary consideration of what is reasonable under the circumstances. See 53A AmJur2d Money, 15, citing Nemser v. New York City Transit Authority, 140 Misc 2d 369, 530 NYS2d 493. In Davis v. Davis, 254 SE2d 370 (1979), the Georgia Supreme Court upheld a contempt finding against a husband who offered to pay a lump-sum alimony award in pennies and dollar bills. See, also Chappell v. Chappell, 318 SE2d 590 (1984). There is no Washington authority on this issue.

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Upon initial hookup, may a city charge the same water connection fee for each dwelling unit, whether it is a house, apartment or condominium?
Reviewed: 12/14

Yes. Although some cities have lower rates for multifamily buildings, they are not required under state law. RCW 35.92.025 merely provides that the connection charges set by the city be "equitable."

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Do cities have to pay interest on utility deposits?
Reviewed: 12/14

No. The BARS Manual, Vol. I or II, Part III, Ch. 6, p.11, states that interest on utility deposits should be deposited in the general fund. The Auditor's Office also suggests that when a city takes a utility deposit, the receipt provided should state that the city's only obligation to the utility customer is to return the deposit. Such a statement may prevent misunderstandings and save the clerk time in the future.

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Is there a limit on the amount of the surcharge that may be charged by a water utility to outside customers?
Reviewed: 12/14

There is no specific limit set out in state law that authorizes a city to consider location within or outside the city in determining rates. A surcharge of 50 percent was upheld in Faxe v. Grandview, 48 Wn.2d 342 (1956). The court indicated that the surcharge must be just and reasonable but there is a presumption that the rates set by the city are just and reasonable. Many cities charge a 50 percent surcharge on nonresidents and some go considerably higher.

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May a street that abuts a body of water be vacated?
Reviewed: 01/14

State law prohibits a city or town from vacating a street if any portion of the street or alley abuts a body of fresh or salt water unless very specific additional procedures are followed. These procedures are outlined in RCW 35.79.035 and should be checked very carefully before attempting to vacate any such street.

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Is there a statute that provides for an automatic vacation of streets if they are not opened for public travel within a certain time period?
Reviewed: 01/14

Not any longer. There was a statute which was enacted in 1889 which provided for the automatic vacation of county roads which remained unopened for five years after being platted or dedicated. That statute was amended in 1909 so that it no longer applied to platted streets and alleys.

The 1889 statute (sometimes called the "nonuser" statute) only applied to roads which were county roads and remained unopened for five years after dedication during the time period 1889 to 1909. Obviously, this will not apply in very many situations but occasionally situations arise concerning old county roads that were never opened to public use.

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How does a city adjust the required compensation for a street vacation when it reserves part of the vacated property for a utility or other public easement?
Reviewed: 01/14

A city or town council, when vacating a street, may require abutting property owners to pay compensation to the city or town in an amount up to one-half of the appraised value of the property vacated. Often, however, a city or town will reserve a utility or other type of easement from the vacated property. In those situations, the appraised value should reflect the easement reservation. Some cities and towns specifically provide in their street vacation ordinances that the appraisal should consider and adjust for any public easements reserved.

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Must a city adopt the State Building Code each time it is updated?
Reviewed: 12/13

If a city or town has adopted its own ordinance, it is necessary that periodic amendments be made to the local ordinance to keep the local ordinance consistent with state law. Therefore, the most recent version of the State Building Code should be adopted by a city or town in their local ordinance after the state adopts the newly revised codes.

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To what extent can a city or county amend the state building code?
Reviewed: 12/13

Cities and counties can amend the state building code so long as the amendments do not reduce the minimum performance standards of the codes they have adopted. Amendments that affect the construction of single-family or multi-family residential buildings must be reviewed and approved by the State Building Code Council before such amendments can be enforced.

In addition, the following provisions may not be amended:
  • Residential provisions of the State Energy Code (WAC 51-11);
  • Provisions of the Ventilation and Indoor Air Quality Code (WAC 51-13);
  • Provisions of the International Building Code or International Residential Code affecting accessibility; and
  • Standards specifically adopted in Chapters 19.27 and 19.27A RCW.

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Which department enforces the International Fire Code?
Reviewed: 12/13

Section 103 of the 2012 International Fire Code provides for designation of a fire code official and a fire prevention department, which in all practicality means the fire chief and fire department.

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Is the International Fire Code in effect in the city even if it is not adopted in a local ordinance or a copy is not on file with the city/county clerk?
Reviewed: 12/13

First of all, and most important to an analysis of this issue, is RCW 19.27.031. This statute contains the basic reference to the state building code and specifically provides that "there shall be in effect in all counties and cities the state building code which shall consist of the following codes which are hereby adopted by reference..." The statute then lists a number of codes, including the International Building Code and the Interational Fire Code.  These codes, then, are in effect in every city/county in the state and there is no local discretion vested in individual agencies as to whether these codes will apply in their jurisdiction. Agencies do have some authority to amend the codes if the minimum performance standards are not diminished.

In addition to mandating that the state building code will be in effect in every city and town, the state legislature has also created an agency called the state building code council which is appointed by the Governor. The building code council is given authority in RCW 19.27.074(1) to adopt and maintain the codes referenced in RCW 19.27.031. As a part of their duties, the building code council is to regularly review updated versions of the codes such as the International Building Code and the International Fire Code and to adopt or amend them for state-wide applicability.

When the state building code council adopts an updated version of one of the codes that is included in the state building code, then that version becomes effective in every city and town regardless of any local action which may or may not be taken.

So what this means is that even if a city or town did not enact a local ordinance adopting the state building code, or alternatively if they failed to properly adopt a local ordinance adopting the state building code for some reason, the citizens of the city still must comply with the provisions of the state building code. This also means that if a city adopts the state building code but fails to adopt the latest version of the codes, once the state building code council adopts the latest version of a code, then that latest version is immediately in effect in the city or town. The primary reason that we recommend that cities enact a local ordinance specifically adopting the state building code is so the local municipal court will have jurisdiction over violations of the building codes. Otherwise, violations of the state building code will have to be prosecuted in county district court.

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Who owns the vacated property?
Reviewed: 12/13

Normally the abutting property owners own to the centerline of the street. This is because in most situations the street dedication on a plat merely grants an easement to the city for public travel and the underlying fee ownership of the street remains with the abutting property owners.

There may be circumstances in which a city or county has purchased all the right of way from a single owner as part of a street project,  In those instances, the Agency's attorney should be consulted before proceeding with any street vacation request. 

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What if the city owned the underlying fee to the street area?
Reviewed: 12/13

Although this is rare, occasionally a city actually owns the underlying fee to the street area as well as the easement for public travel. If this is the case, the city remains the fee owner of the vacated area. Ownership can be determined by a title search if there is doubt.

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May the city charge the abutting property owners a fee for the street vacation?
Reviewed: 12/13

Yes. Many cities charge an initial fee for the street vacation application. In addition, state law allows the city to require compensation for the vacated easement in an amount that does not exceed one-half the appraised value of the area so vacated. RCW 35.79.030.  See:  /Home/Explore-Topics/Public-Works/Street-and-Road-Vacation-Procedures.aspx

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May a city retain an easement for any underground utilities that may be in a vacated area?
Reviewed: 12/13

Yes. The ordinance vacating the street would provide that the city retains an easement to construct, repair and maintain public utilities in the vacated area.

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Must a vacation be granted by ordinance?
Reviewed: 12/13

Yes, this is required. A certified copy of the ordinance granting the vacation must be recorded by the clerk and a copy sent to the office of the auditor of the county in which the land is located.

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May a portion of a street be vacated?
Reviewed: 12/13

Yes. It is not necessary that the entire street area be vacated. For example, a strip along one side of the street may be vacated if that is all that is desired or needed by the abutting property owner. Also, the full street along part of a block may be vacated.

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What is the board of appeals?
Reviewed: 12/13

The International Building Code calls for establishing a board of appeals to hear appeals of building permit denials. The board of appeals is to consist of members who are qualified by experience and training to pass on matters pertaining to building construction and who are not employees of the jurisdiction.

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May city council or county commission act as board of appeals?
Reviewed: 12/13

While there is no direct prohibition against appointing a city council or county commission to act as the board of appeals, it would appear that they may not have the requisite expertise. We, therefore, recommend against using them as the building code board of appeals. However, if a city/county wishes to establish by ordinance that the council/commission may hear appeals from the board of appeals, it would appear that it could do so and not be in conflict with either the letter or intent of the applicable state law.

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May a hearing examiner be appointed to serve as the building code board of appeals?
Reviewed: 12/13

Yes. There is a requirement in the International Building Code, and in other codes that are part of the state building code, that a board of appeals be appointed to hear and decide appeals that arise under the code. A hearing examiner system may be used in place of this board.

RCW 19.27.060 provides that cities and counties can amend the codes that make up the state building code, including the International Building Code, if the amendments do not reduce the minimum performance standards. An amendment providing for a hearing examiner would not reduce the performance standards. Therefore, such an amendment should be legal.

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Are there any required qualifications for a building inspector?
Reviewed: 12/13

The State of Washington has no certification requirements for building inspectors. There are voluntary examination programs for certification, such as that provided by the International Conference of Building Officials (ICBO). Most agencies in the state include an ICBO certification requirement in their job description for building inspector classification.

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May the building inspector be paid on the basis of the fees paid for the building permit?
Reviewed: 12/13

MRSC has consistently taken the position that the salary of the building inspector should not be based on a percentage of fees collected. There are several problems with this approach. One problem is that it may not satisfy the requirement in RCW 35A.33.050 that the preliminary budget should set out the salary for each officer and employee. This is not possible if it is based on a percentage of fees collected.

A more serious problem is that the building inspector may be placed in a conflict because the inspector has some control over the fees collected on permits by estimating valuation. Finally, on a very expensive project, the fee may be exorbitant in relation to the work performed.

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May a city or county deny a building permit if an applicant has unresolved enforcement issues?
Reviewed: 12/13

Depending upon what the enforcement issues are, the authority to withhold or deny the permit may exist, but, as a general rule, there is no discretion. In Craven v. City of Tacoma, 63 Wn.2d 23, 28 (1963), the state supreme court stated in part:

A property owner has a vested right to use his property under the terms of the zoning ordinance applicable thereto. State ex rel. Hardy v. Superior Court, 155 Wash. 244, 284 Pac. 93. A building or use permit must issue as a matter of right upon compliance with the ordinance. 9 Am. Jur. 203, § 7. . . .

Once the application for a building permit and the plans and specifications filed with it show that the proposed building will conform to the zoning regulations and meet the structural requirements of the building code of the city, the permit shall issue as a matter of right, and the ordinances vest no discretion in the building department of the city to refuse either the application for or to deny the issuance of the building permit. (Our emphasis)

See also Mission Springs v. City of Spokane, 134 Wn.2d 947, 980-81, 954 P.2d 250 (1998).

If the enforcement action at issue relates to the building code, a different result is perhaps possible. Otherwise, in our opinion, if the application is complete and the plans conform to the building code requirements and are consistent with the zoning for the area, there is no discretion and the permit must be issued.

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How long must the city keep building permit records?
Reviewed: 12/13

That depends. The records concerning permit application and approval only need to be kept until completion of the project or issuance of a certificate of occupancy, but the actual building permit, project inspection records, certificate of occupancy, and records concerning administrative decisions, legal actions, variances and special conditions must be kept for the life of the building plus six years. This data is found in the General Records Retention Schedules for All Local Government Agencies - see "Records Category: Land Use Planning, Permits, and Appeals."

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If a city or county issues a building permit that it determines later to be erroneously issued, may it simply revoke the permit?
Reviewed: 12/13

No. According to the state supreme court in Chelan County v. Nykreim, 146 Wn.2d 904 (2002), the Land Use Petition Act (LUPA), chapter 36.70C RCW, changed what had previously been the rule that an improperly approved building permit is void and may be rescinded by the agency that erroneously issued it. Under Nykreim, a city or county that erroneously issues a building permit (or boundary line adjustment such as was issue in the Nykreim case or other ministerial land use decision) must appeal that issuance under LUPA within 21 days - even though the city or county itself issued the permit - or it is foreclosed from challenging it; the city or county has no authority to simply revoke the permit.

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What is the life span of a building permit application?
Reviewed: 12/13

As with a building permit, a building permit application has a 180-day life, with the possibility of an extension of up to another 180 days if the applicant shows "that circumstances beyond the control of the applicant have prevented action [on the application] from being taken."

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Must building permits be obtained for street resurfacing or for water meter installation?
Reviewed: 12/13

No. The International Building Code applies only to work on a building or structure and does not apply to work located primarily in a public way.

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May building permit be transferred?
Reviewed: 12/13

Yes, it would appear so. Although there is no Washington authority on point, a leading land use treatise has concluded that a building permit does not give a personal right to the applicant to whom it is issued but instead creates a right that "attaches" to the land. Building permits pertain to development of the land, irrespective of the identity of the owner, and the permit and the right to act in accordance with it become attributes of the land continuing as such without regard to any change in the land's ownership or the right to its use. It inures to the benefit of any subsequent owner and remains in force subject to its terms.

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How should an agency verify the registration of contractors in accordance with Ch. 18.27 RCW?
Reviewed: 12/13

Agencies are required to verify the registration of the general contractor or specialty contractor listed on a permit application. In addition to copying the contractor's current registration card, this can be done on the Department of Licensing Web site.

An agency is also required to print the contractor registration number on the building permit and must also provide a written notice to the building permit applicant informing them of the contractor registration laws, and the potential risk and monetary liability to the homeowner for using an unregistered contractor.

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What is a city's responsibility if a permit applicant insists that no contractor will be used on the project?
Reviewed: 12/13

L & I advises that a city should file a statement, signed by the applicant, which states that no contractor who is required by law to be registered will be performing any work on the project.

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May the city require a performance bond from a school district which is constructing a building within the city?
Reviewed: 12/13

No, that is specifically prohibited by RCW 35.21.470, which was passed in 1993. It prohibits a city or town from requiring a state agency or unit of local government to secure the performance of a permit requirement with a surety bond or other financial security device as a condition for issuance of a permit for a building construction project. A school district is considered a unit of local government.

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How does the city handle the inspection and repair of dangerous buildings?
Reviewed: 12/13

The Uniform Code for the Abatement of Dangerous Buildings, International Code Council provides enforcement procedures . The building official has authority to enter and inspect a building when there is a reasonable belief that there exists a violation of the building code which makes the building or premises unsafe, dangerous or hazardous. If violations exist, the building official is to issue a notice and order to the owner of record.

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Once a city has adopted the Uniform Code for the Abatement of Dangerous Buildings, must it adopt updates for newer editions or is that automatic?
Reviewed: 12/13

The city has adopted the Uniform Code for the Abatement of Dangerous Buildings. However, they adopted the 1985 and have never updated that in their ordinance. The inquirer wondered if this was something that would be automatically updated.

This would not be automatically updated. The Uniform Code for the Abatement of Dangerous Buildings is not a part of the state building code. So there is no mechanism by which this would be automatically updated by the state. It is necessary for each jurisdiction that has adopted this code to update it individually. If the city does not update it, then the edition of the code that is adopted would continue in effect.

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May a city permit the county to perform its building code inspections?
Reviewed: 12/13

Yes. Reference should be made to RCW 19.27.050, relating to the enforcement of the State Building Code. That section indicates that the code "shall be enforced by the counties and cities." It further provides that a city not having a building department shall contract with another county, city or inspection agency for enforcement of the code.

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May city building inspector inspect a new city building under construction?
Reviewed: 12/13

We know of nothing that would prohibit a city building inspector from inspecting the city's own buildings. This is not a conflict of interest.

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Do building inspectors have a right-of-entry upon private property to determine whether a building permit is required?
Reviewed: 12/13

No. The courts have ruled that a building inspector may not enter private property to examine the repair work being performed without the consent of the property owner or without a court order granting such permission.

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Which codes are included in the State Building Code?
Reviewed: 12/13

See https://fortress.wa.gov/ga/apps/sbcc/default.aspx

State Building Code

The State Building Code (SBC) is the minimum construction requirement for the state of Washington and includes:

  • 2012 International Building Code with statewide amendments
  • ICC/ANSI A117.1-09, Accessible and Usable Buildings and Facilities, with statewide amendments
  • 2012 International Residential Code with statewide amendments
  • 2012 International Mechanical Code with statewide amendments
  • 2011 Liquefied Petroleum Gas Code (NFPA 58)
  • 2012 National Fuel Gas Code (NFPA 54) for LP Gas
  • 2012 International Fire Code with statewide amendments
  • 2012 Uniform Plumbing Code with statewide amendments
  • 2012 International Energy Conservation Code/Washington State Energy Code 
  • 2012 International Existing Building Code with statewide amendments found in th IBC
  • National Electrical Code (NFPA 70) -- Please see the Department of Labor and Industries for information on the adoption and amendment of the National Electrical Code.

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Utility rate discounts to low income senior citizens and low income disabled citizens.
Reviewed: 12/13

RCW 74.38.070 provides cities, towns and counties with the authority to establish reduced utility rates for low income senior citizens or low income disabled citizens. The statute provides that "low income senior citizens" and "low income disabled citizens" shall be defined by appropriate ordinance or resolution adopted by the governing body.

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May a city refuse a request for utility service outside its boundaries but within its UGA and where the city's water and sewer service area plan defines the city's water and sewer service area as its UGA?
Reviewed: 12/13

Although the Growth Management Act (GMA) contemplates that a city is the appropriate provider of utility services within its Urban Growth Area (UGA), the city is not obligated by the GMA to so provide at any particular time. A city likely wants to control how and when urban growth occurs within the UGA. So, providing or not providing urban services is a basic tool of this control. There is no language in the GMA that takes this tool away from cities or that obligates cities to provide urban services to an area on demand simply because it is within the UGA.

 

Nevertheless, a city may be obligated to provide utility (water or sewer) service outside its boundaries but within the UGA based on rules developed by case law. The general rule is that, in the absence of a contract, express or implied, a municipality cannot be compelled to supply water outside its boundaries. Brookens v. Yakima, 15 Wn. App. 464, 466 (1976). So, if there is an express contract to provide utility service, a city is contractually obligated to provide that service. An implied contract can arise "where a municipality holds itself out as a public utility willing to supply all those who request service in a general area." Brookens, 15 Wn. App. at 466-67. A city may also have a duty to supply water or sewer service "where a city is the exclusive supplier of sewer or water service in a region extending beyond the borders of the city." Yakima County Fire Prot. Dist. No. 12 v. City of Yakima, 122 Wn.2d 371, 381-82 (1993).

But that duty, if it arises, is not absolute; a city may deny water or sewer services if it lacks the needed capacity. Yakima Fire Prot. Dist., 122 Wn.2d at 382. Also, the duty to provide the service is "subject to such reasonable conditions, if any, as the law may allow." Id. An example of such a reasonable condition, as was presented in the Yakima case, is that the property owner agree to annexation.

A case where a Washington appellate court found a duty to supply utility service within the entire UGA was in Nolte v. City of Olympia, 96 Wn. App. 944 (1999), where the city admitted that it was the sole provider of water and sewer service to the UGA.

The bottom line answer is "it depends." The fact that the city's adopted water and sewer service area plans are defined as their UGA boundaries may be a factor in favor of there being a duty to supply those services.

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Is the city required to pay for the cost of extending sewer or water service within the city?
Reviewed: 12/13

The city is not required to extend sewer or water service to all properties within the city at city expense. Most cities enter into latecomer agree-ments with the developer which include payback agreements for those who initially constructed the sewer or water service extension.

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Is there a mechanism for a city or county to help private property owners pay for a sewer installation and then be reimbursed, with interest, over a time period?
Reviewed: 12/13

Yes. Legislation was passed in 1998 (RCW 35.67.360) implementing the constitutional amendment approved by voters in November 1997 allowing municipal storm water and sewer utilities to make loans for storm water and sewer conservation and efficiency. Counties, cities, towns, and special districts can now use utility operating revenues to assist homeowners and businesses in acquiring and installing materials and equipment that will conserve or allow for more efficient use of municipal storm water and sewer services. The amendment to the state constitution expands the authority already available for energy (weatherization) and water conservation assistance, and establishes that these loans are not an improper loan of public credit.

Go to Sewer and Stormwater Conservation and Efficiency Loans

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What notice must cities provide before increasing solid waste collection rates?
Reviewed: 12/13

RCW 35.21.157.requires cities that contract for solid waste collection service, or provide it themselves, to notify the public of proposed rate increases for that service. The notice may either be mailed to each affected ratepayer or published once a week for two consecutive weeks in a newspaper of general circulation in the collection area. The notice should be provided at least 45 days prior to the proposed effective date of the rate increase.

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May the city impose its system development charges outside the city limits but within its urban growth area?
Reviewed: 12/13

Yes, cities do have the authority to impose systems development charges outside their city limits. RCW 35.92.025 provides cities with the authority to impose such charges in connection with utility hook-ups. There is no limitation in this statute which would prohibit a city from imposing these charges outside the city limits. Cities have clear authority to provide utility service outside their corporate limits.

This opinion is not affected by the case of Nolte v. City of Olympia, 96 Wn. App. 944 (1999), a recent Court of Appeals decision that invalidated impact fees which were imposed by the city on property located outside the city limits. The court held that the city lacked the authority to impose impact fees outside the city limits. The decision is limited to impact fees, which are distinguishable from the systems development charges. The court in Nolte did hold that the city in this case was a public utility in the area in question and had an obligation to provide service but subject to the reasonable conditions imposed by a city that the law allows. A reasonable systems development charge is allowed by the law and so may be imposed outside the city limits even in view of the holding in the Nolte case.

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May a city terminate water utility service to a customer who is delinquent in paying water bills?
Reviewed: 12/13

There is clear authority under state law, RCW 35.21.290 - .300, for a city to terminate water utility service to a customer who is delinquent in paying his water bills. However, in 2010, RCW 35.21.290 was modified to read:

Except as provided in RCW 35.21.217(4), cities and towns owning  their own waterworks, or electric light or power plants shall have a lien against the premises to which water, electric light, or power services were  furnished for four months charges therefor due or to become due, but not for any charges more than four months past due.

 

RCW 35.21.217(4) was also modified.  See:

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May a city terminate water utility service in order to enforce the payment of a delinquent sewer bill?
Reviewed: 12/13

RCW 35.67.290 provides authority for the termination of water utility service in order to enforce the payment of delinquent sewer bills if a city operates its own water system as well as sewer system.

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What procedures must be followed before utility service may be terminated?
Reviewed: 12/13

A decision of the U.S. Supreme Court in Memphis Light, Gas and Water Division v. Craft, 436 U.S. 1, 98 S.Ct. 1554 (1978), indicated that due process considerations require that certain notice procedures must be satisfied before utility service may be terminated. The notice requirements that are mandated by due process are not very burdensome. The basic procedural requirements that must be met may be summarized as follows:

  • The city must give written notice to the customer prior to termination of utility service.
  • All written notices advising of the termination must clearly and in layman's terms inform the customer of the available opportunities to present his objections to the bill to the municipality, and identify the telephone number, address, and department of the person who will handle the complaint. The opportunity for this informal hearing must be available in advance of the termination date.
  • The municipal employee responding to the customer communication as outlined in the written notice must have the authority to review the facts and files, to correct any errors in the billings, and arrange for credit terms.

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If customer has not received notice for termination of utility service, may city terminate service?
Reviewed: 12/13

If the city has followed the procedures required for terminating utility service, including mailing notice to the property owner and posting notice on the property, then, it is our opinion that utility service could be terminated. The city is not responsible for determining in all cases whether notice has actually been received. As long as a sufficient amount of time has elapsed between the notice and the termination, then the city has complied with the applicable rules.

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Is the termination of utility service the only remedy for a delinquent utility bill?
Reviewed: 12/13

No. The authorization to terminate utility service for failure to pay the water bill in RCW 35.21.290 - .300 is an alternative but is not the only available remedy. Other available remedies include small claims court, a collection agency, and use of superior court, if the amount involved is sufficient.

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Are businesses and residences treated differently with respect to city's authority to shut off water service for nonpayment?
Reviewed: 12/13

No. Businesses and residences are not treated differently with respect to the city's authority to shut off water service for nonpayment of charges.

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Must the city notify the Health Department upon termination of water service to a customer for delinquent charges?
Reviewed: 12/13

There is no statutory requirement that the city notify the health department when it has shut off water service to a utility customer because of delinquent utility charges. The city certainly could notify the health department, but it is not statutorily required.

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May city terminate water in the winter for nonpayment of water charges?
Reviewed: 12/13

There is no statute or principle of law that would prohibit a city from shutting off the water for nonpayment during the winter.

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May the city terminate water service to a building with a fire sprinkler system?
Reviewed: 12/13

Yes. The fact that a building is protected by a fire sprinkler system does not obligate the city to continue to provide water service if the customer does not pay the water bill. Proper notice before termination must be given.

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May city terminate water service at a house where children live?
Reviewed: 12/13

The fact that children may live in a residence which is subject to water shut-off for nonpayment of water charges has no relevance to the legal ability of the city to shut off service.

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Must water service terminated for nonpayment be restored if the last four months bills are paid?
Reviewed: 12/13

Yes, water service must be restored. This is the intent of the provisions in RCW 35.21.290 - 35.21.300. These statutes indicate that there is a lien for delinquent water charges, although the lien may only be enforced by termination of service. These statutes indicate that this remedy is not available for charges more than four months past due. Therefore, if the last four months water bills are paid, then water service must be restored.

This does not mean that the remainder of the bill is forgiven, but it only limits the remedy that may be utilized to collect the other delinquent charges.

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If a city has sent out a notice regarding termination of water service due to an unpaid water bill, can the city still shut off the water if the customer offers to make a partial payment?
Reviewed: 12/13

Water service can be shut off until the bill is paid in full. RCW 35.21.300 authorizes water service termination until "the delinquent and unpaid charges are paid." However, if more than four months of charges are delinquent, and a "partial payment" covers the unpaid charges for the last four months of water service, then service must be restored upon receipt of this payment. Note, however, that a city cannot refuse to provide water service to new tenants who are not responsible for delinquent, unpaid charges.

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May a city refuse to provide water service to a new tenant because of a prior tenant's delinquent utility bill?
Reviewed: 12/13

No. This is the specific holding in the case of O'Neal v. Seattle, 66 F.3rd 1064 (1995). Refusing to provide utility service to an innocent third party, the new tenant, because of the debt owed by the prior tenant, was held to be unconstitutional. The delinquent bill is still a debt owed the city but this particular remedy to collect is not an option.

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May a city or county, by ordinance, require a utility to bear the costs of undergrounding its existing facilities when undergrounding is for aesthetic purposes only?
Reviewed: 12/13

No, not in our opinion. Although a federal district court summary judgement order in City of Auburn v. U.S. West Communications, No.C98-5595FDB (W.D.WA, November 15, 1999) held that utilities may be required to bear the cost of relocating (or undergrounding) their existing facilities "when required for the convenience of the public" or by reasons of "public necessity," this rule should not apply where the only reason for undergrounding is aesthetic. The required public necessity or convenience is generally found when a city or county is widening a street or changing the grade, and utility relocation or undergrounding is thus necessary. It would appear untenable that a city or county could simply require a utility to bear the cost of undergrounding existing facilities whenever the city or county deems it necessary for aesthetic reasons. That could put an intolerable financial burden on utilities. The Auburn case does not support such a position.

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How can a municipality benefit from water conservation?
Reviewed: 12/13

Water conservation offers these benefits:

  • Reduction in operating costs
  • Reduction in electric energy consumption
  • Extension of existing system without the costs of expansion
  • Compensation for possible water system inadequacies

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Has the state prohibited the sale of some plumbing fixtures?
Reviewed: 12/13

Yes. RCW 19.27.170 adopted state-wide performance standards for plumbing fixtures sold, installed, or approved for installation. Effective July 1, 1993 the following standards apply:

Toilets - 1.6 gals/flush
Faucets - 2.5 gals/min
Urinals - 1.0 gals/flush
Aerators - 2.5 gals/min
Showerheads - 2.5 gals/min

Since the older style toilets may use from 6 to 8 gallons per flush, these new low-flow fixtures will reduce the normal domestic home water usage.

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What is a water-wise garden?
Reviewed: 12/13

Over the years, hundreds of low-water usage plants have evolved. Water-wise gardens use these low-water usage plants that tolerate drought conditions and still maintain their foliage and color. Lists of water-wise plants are available from MRSC.

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May city water utilities offer water reduction devices to their customers?
Reviewed: 12/13

RCW 35.92.017 authorizes a municipal water utility to provide water conservation literature and equipment to its customers to facilitate water conservation. Many utilities, such as Seattle, have distributed water conservation information and water conservation kits to their customers.

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What is an "increasing block schedule" in a water rate?
Reviewed: 12/13

The "inverted" or "increasing block schedule" has been adopted by some water utilities as a form of conservation pricing. Most utilities use a "declining block schedule" that was justified by the fact that the utilities experienced decreasing costs per unit of volume through economics of scale. However, as sources of supply dwindle, and costs of treatment and testing increase, many utilities are unable to safely meet their peak demand periods, due primarily to residential lawn sprinkling.

The "increasing block schedule" has a larger unit cost as the customers demand increases through the specific steps or blocks in volume.

Most water utilities have several steps in their rate structure, with a lesser unit charge as the steps of use increase. However, rather than reducing the cost per unit of water as the volume rises, they are maintaining the same unit cost or only slightly increasing the first step cost, but reducing the quantity in the first step. The unit cost in the second step is increased and the volume also reduced. A third step unit cost is also increased with a slight reduction in quantity.

By applying this "increasing rate schedule" to customers with a 3/4 inch or 1 inch meter, (usually the low-volume residential customers), while maintaining a modified "decreasing rate schedule" for all other meter sizes, the utility might effectively reduce the peak sprinkling demands without penalizing the large industrial water users.

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What are the basic steps in developing a water rate schedule?
Reviewed: 12/13

The basic steps to set a water rate are as follows:

  • Estimate annual system expenses for the coming five years;
  • Estimate annual water volumes to be sold for the coming five years. Allow for reduction due to water conservation measures and low-volume plumbing fixtures required as of July, 1993;
  • Using the present water rate schedule, calculate estimated revenue;
  • Calculate annual shortfall;
  • Determine if rate reduction is to be provided to senior citizens or low income families;
  • Using various rate structures, calculate annual projected revenues;
  • Select the rate structure that best provides the needed income, and is fair and equitable to all customer classifications.

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What factors can a city consider when setting water utility rates?
Reviewed: 12/13

The primary state statute for cities that applies to this subject is RCW 35.92.010. This statute actually gives very broad flexibility to a city in regard to setting water rates for its customers. Water and sewer districts have similar provisions in Chapter 57.08 RCW.

First of all, this statute provides broad authority to a city to construct and operate a water utility system. It also provides that the city has full power to regulate and control the use of water and the distribution and price charged for the water service. The statute does indicate that the rates charged must be uniform for the same class of customers or service.

In regard to classifying customers, the statute gives great discretion to the city council to consider any matter which presents a reasonable difference as a ground for distinction. The statute lists of number of examples such as difference in cost of service to various customers, location of the customers within and without the city, difference in cost of maintenance and repair, different character of service and a number of others which I will not list here. The statute clearly says the city may consider any or all of the factors listed in establishing classifications. Clearly a city has great latitude in establishing classifications of customers for the water utility and then establishing rates for the different classifications.

It is important to note that the statute does provide one limitation on the discretion of the city to establish rates for water use. RCW 35.92.010 specifically provides that no rate shall be charged that is less than the cost of the water and service to the class of customers served.

Your primary focus is apparently establishing rates and charges for the water utility. However, note that RCW 35.67.020 is a very similar statute which applies to a city sewer utility service. Much of the language in RCW 35.67.020 is identical or nearly identical to that in RCW 35.92.010 for water service and the city also has great flexibility is classifying customers and setting rates for the sewer utility.

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What is the minimum allowable water pressure?
Reviewed: 12/13

In the September issue of Municipal Research News, we referenced the provisions of WAC 246-290-420(4) indicating that the minimum allowable water pressure at the customer's service meter must be no less than 20 pounds per square inch (psi) under MID conditions. However, one of our readers, correctly pointed out that WAC 246-290-230, which applies to new water distribution system construction, provides in part:

    (4) New public water systems shall provide a design quantity of water at a minimum pressure of 30 psi during MID conditions, and
    (5) Provide a fire flow at a minimum pressure of 20 psi during MID conditions.

This is a more restrictive requirement than WAC 246-290-420(4) which requires a minimum of 20 psi under MID conditions, excluding fire flow.

Therefore, existing water systems must provide a minimum water pressure of 20 psi at the customer's service meter, or property line under MID conditions per WAC 246-290-420(4); while all new water systems must be designed to provide a minimum water pressure of 30 psi at the service meter or property line per WAC 246-290-230.

MID refers to "maximum instantaneous demand," which means the maximum rate of water use, excluding fire flow, experienced or expected within a defined service area at any instant in time.

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May city close a street to vehicular traffic?
Reviewed: 12/13

Yes. A city may close a street to vehicular traffic. That general conclusion was reached by the court in Mackie v. Seattle, 19 Wn. App. 464, 576 P.2d 414 (1978). The court in Mackie held that the powers to control and regulate highways have been specifically delegated to certain municipalities, which gives them exclusive control of their streets, including the power to close streets to through traffic. (The court reached its decision after looking at the powers given to a first class city; the powers of a code city are just as broad. See RCW 35A.47.020-.030 and 35A.11.020.) The court upheld the closure, noting:

    The record before us includes evidence that development of the industrial zone in recent years had a substantial adverse effect upon the residential community, and the increase in truck traffic to and from the industrial zone, and the speed, noise and dust generated by such traffic, debased the quality of living in the residential neighborhood. A community may restrict the flow of traffic into residential areas in order to reduce noise, traffic hazards and litter.

Another case of some interest is Albee v. Town of Yarrow Point, 74 Wn.2d 453, 445 P.2d 340 (1968). The court there upheld the use of a platted street, which ended at the edge of a lake, for pedestrian uses only, stating:

    Land dedicated as a street is thereby devoted to a general or public use, held in trust for the public and for the convenience of public travel. In addition to this primary purpose, there are other permissible secondary uses which, however, must be consistent with the primary street purpose. State ex rel. York v. Board of Cy. Comm'rs of Walla Cy., 28 Wn.2d 891, 898, 184 P.2d 577, 172 A.L.R. 1001 (1947). See Motoramp Garage Co. v. Tacoma, 136 Wash. 589, 241 Pac. 16, 42 A.L.R. 886 (1925).

    The primary purpose of Haddin Way was for the convenience of the public in traveling, and giving access to Lake Washington. The fact that no pavement or sidewalk has heretofore existed upon the area in question does not control. Compare Burge v. Anderson, 164 Wash. 509, 3 P.2d 131 (1931). And the fact that the current use of the street end is limited to foot traffic is of no particular significance, for "a street used only by pedestrians is nevertheless a public . . . street within the legal meaning of that term." 10 E. McQuillin, Municipal Corporations, SS 30.11 at 644 (3d ed. rev. 1966). Absent a regulation to the contrary, "pedestrians may travel upon any portion of the highway . . . their rights therein, in relation to other classes of traffic or modes of travel, being mutual, equal, and coordinate." 25 Am. Jur. Pedestrians SS 213 at 511-12.

    In the course of the improvements made by the Town of Yarrow, accumulated rubble and brush were cleared out, storm sewers were rebuilt and extended to the water's edge, a concrete stairway was constructed so that pedestrians could get from the end of the pavement down to the shorelands.

So, a city may decide to close a street end to vehicular traffic, if it so chooses. We are assuming that by so doing, the city is not destroying the access to adjacent parcels.

There does not appear to be any particular process that needs to be followed for a city to close a street. However, we would suggest that it be done by ordinance, adopted by majority vote of the city council, after a hearing and notice to those with property in the surrounding area, as well as the public in general.

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Who has responsibility for maintaining the undeveloped portions of the right-of-way?
Reviewed: 12/13

Normally the interest that a city or county has in a right-of-way, whether it is opened or unopened, is a general easement for travel. This means that the underlying fee ownership in both cases lies with the abutting property owner.

There is a general principle that a city or county has a duty to exercise ordinary care in the maintenance of its public highways and must keep them in a condition so that they are reasonably safe for travel by persons using them in a proper manner and exercising ordinary care for their own safety.

However, with an undeveloped right-of-way, the easement for public travel has not been developed and so ordinarily a city or county would exercise little or no responsibility for maintenance of the undeveloped right-of-way. It would be the abutting property owner who has responsibility to maintain this area.

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May a city require property owners to maintain their parking or planting strips?
Reviewed: 12/13

In our opinion, it may. A somewhat similar issue was addressed in the case of Northern Pacific Railway Company v. Adams County, 78 Wash. 53, 138 Pac. 307 (1914). There the court determined that property owners of lands adjacent to a street or highway are responsible for those lands up to the center of the highway, including the responsibility for destroying noxious weeds. The court went on to state that the legislature "may require property owners within the state to cut noxious weeds to the center of highways in front of their property" and such an ordinance would not be unconstitutional as it is part of the government's police powers. The court likened its analysis to the requirement that property owners are responsible for the removal of snow and ice from abutting sidewalks, stating that "the rule which permits the abatement of the one nuisance will also permit the abatement of the other."

In addition, RCW 35.21.310 requires that property owners remove or destroy grass, weeds, etc. which are growing . . . from property owned or occupied by them, which overhang any sidewalk or street or which are growing thereon.

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Who is responsible for snow and ice removal from city sidewalks?
Reviewed: 12/13

Generally, the natural and ordinary accumulation of snow and ice on sidewalks creates no municipal liability for injuries, unless the municipality was somehow negligent by disregarding its obligation to exercise ordinary care to keep its sidewalks in fit condition for usual travel. So normally a city should not be liable for an accident due to a slip on the ice on a sidewalk.

Some cities have ordinances that require abutting property owners to clear their sidewalks of snow and ice. However, this is not statutorily required and probably does not increase or decrease potential city liability.  For sample ordinances, see our compilation on snow and ice removal.   /Home/Explore-Topics/Public-Works/Snow-and-Ice-Removal.aspx

 

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What types of uses are allowed by a street use permit?
Reviewed: 12/13

There are many potential uses of the street area which might be regulated by a street use permit. For example, short-term uses might include excavation under the street, utility installation, scaffolding for construction projects that extend into the right-of-way, and so on. More long-term uses might include bike racks, sidewalk cafes, and newspaper racks. 

Right-of-Way Use Management

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May a street use permit grant a permanent right to a private individual to use the street area?
Reviewed: 12/13

No. If a permanent use of the area is desired, then the street vacation process should be utilized. A street use permit is meant to be temporary, although in some cases it may be long term.  Some cities (Port Angeles, notably) have both short term and long term licenses for street use.

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Is a street use permit required for private landscaping of an unopened right-of-way by an abutting landowner?
Reviewed: 12/13

Most cities do not require a permit in this situation. However, if the full street right-of-way is ever developed, the private landowners must remove their landscaping at their own expense.

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What type of provisions are contained in a street use permit?
Reviewed: 12/13

Typically, the provisions of a local ordinance establishing a street use permit system contain an application fee, insurance and bonding requirements, safety and warning standards, and procedures for issuance requirements. MRSC has sample ordinances available establishing a street use permit system.

Right-of-Way Use Management

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Who may start the street vacation process?
Reviewed: 12/13

There are two methods by which the street vacation process may be started. One is by petition of the property owners that abut the street area to be vacated. The petition must be signed by two-thirds of the property owners that abut the area to be vacated. The petition is presented to the city council. The second method is for the city council to initiate a street vacation by resolution.

See MRSC web page on street vacation procedures:  /Home/Explore-Topics/Public-Works/Street-and-Road-Vacation-Procedures.aspx

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May a county vacate only part of the width of a county road?
Reviewed: 12/13

Yes, the two methods of initiating the vacation of a county road (by resolution of the board of county commissioners or by petition of road frontage property owners) each allow for proposing vacation of a county road or a "portion thereof." (See RCW 36.87.010, .020)

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If a city decides not to require compensation from abutting property owners for a street vacation, why is that not a gift of public funds?
Reviewed: 12/13

The reason has to do with the nature of a public right-of-way. Prior to the statutory authorization to require compensation (and apparently the instigation for that authorization), the state supreme court in Puget Sound Alumni of Kappa Sigma v. City of Seattle, 70 Wn.2d 222 (1967), addressed the authority of Seattle to require compensation in an amount equaling one-half of the appraised value of a street. Noting that the city has but an easement for public travel in a public right-of-way, the court emphasized that a right-of-way may be vacated only if it is no longer useful to the public. "The city has nothing to sell in such case." 70 Wn.2d at 227. The court then held:

 

A municipality is not entitled to compensation for loss of a public easement in streets in which it does not own the fee. It thus follows, where a street is vacated by a court on the application of abutting landowners, the municipality has no such proprietary interest therein as to entitle it to compensation.

Id.
 

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Should sales tax be included in the calculation of retainage for a public works project?
Reviewed: 12/13

No. RCW 60.28.011 provides that there shall be reserved by the public body a percentage from the "moneys earned by the contractor" on the project. "Moneys earned" on the contract do not include sales tax. Therefore, the city should retain only the statutory percentage of the contract price and not any percentage of sales tax.

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What is the procedure for extending the contract completion time?
Reviewed: 12/13

A change order should be prepared and processed to extend the completion time of a public works project. The time extension, whether it involves additional monies or not, is a change to the basic contract and should be processed as a change order.

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Must prevailing wages be paid on a contract with a private party for landscaping services?
Reviewed: 12/13

The case of Spokane v. Department of Labor and Industries, 100 Wn. App. 805 (2000), held that:
  • All public works, including maintenance when performed by contract shall comply with the provisions of the prevailing wage law.

The court interpreted the term maintenance in that sentence to include "ordinary maintenance." So, landscaping services, which are considered to be ordinary maintenance, are subject to prevailing wage if performed by private contract. If the work is done by the city work crew, then prevailing wage need not be paid.

Such work is also subject to the bid law if it is going to be performed by contract with a private party and the amount exceeds the bid law limits. However, if ordinary maintenance is performed by the city work crew, then there is no bid law that applies. That is, the city work crew can perform ordinary maintenance in any amount so long as the work does constitute ordinary maintenance.

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Is a local government required to pay increased labor costs if, after a public works project is completed, it is discovered that the prevailing wage rates that were paid and that were contained in the bid specifications were amended by L&I prior to the bid opening?
Reviewed: 12/13

The wage rates in effect on the date when bids are due apply, except if there is a delay of more than six months between the bid due date and the awarding of the contract. These rates remain in effect for the duration of the contract.

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What are the "Standard Specifications for Road, Bridge, and Municipal Construction"?
Reviewed: 12/13

Prior to 1984, The Washington State Department of Transportation (WSDOT) published a set of standard specifications that governed their construction contracts AND any roadway construction by local agencies using state or federal funds. The Washington State Chapter of the American Public Works Association (APWA) published a separate set of standard specifications for municipal public works construction from the early 1970s to 1981, whose use by local agencies was not required, but became fairly universal. In 1984, the two publications were combined into one document, titled "Standard Specifications for Road, Bridge and Municipal Construction" (2,183 Kb) with insertion of a separate "Division 1-99" to adapt contract administration procedures more closely to local agency preferences and practices.

APWA and WSDOT have standing committees that meet jointly and regularly to propose and adopt modifications to all sections of the Standard Specifications (SS). A new version of the SS is published in written form every two years, but interim changes are always available for incorporation into an agencies contract documents via a GSP (general special provision).

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Have the Standards been adopted or promulgated by the DOT or the Legislature, or any other body having rule making authority?
Reviewed: 12/13

Several state regulations require use of the SS for local projects funded by state agencies, including WSDOT and TIB. The Secretary of Transportation and the Director of Highways and Local Programs issue formal letters adopting each revision of the SS and establishing its date of applicability to ongoing state and local projects using state funds.

There is no requirement, however, that the SS be used for projects whose funding is entirely local.

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May a local jurisdiction modify the standards?
Reviewed: 12/13

Yes. On projects where there is state funding allowable modifications are limited and all proposed modifications must be approved by the state or possibly the federal funding agency. For locally funded projects, the agencies can modify the SS as they see fit. Most agencies (Tacoma, Auburn, for example) adopt the SS as a base and use general and special provisions to modify them. Some agencies, mostly larger, have stand alone SS.

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What are the LID assessment alternatives?
Reviewed: 12/13

RCW 35.44.030 and 35.44.040 relate to the application of the zone and termini method of assessment. Attention should also be given to RCW 35.44.047, which provides that a city or town may use any other method or combination of methods to compute assessments which the city deems to be more fairly reflective of the special benefits to the properties being assessed. Some LID's have used a combination of assessments in the development of a funding program for their project. For example, one district used a method that consisted of three separate charges which were totaled to determine the total assessment.

Sometimes, however, a municipality may determine that the assessments, which must be less than the benefits to the property, can be more uniformly assessed by dividing the total cost by the number of properties involved.

Statutes specify that the assessment per parcel must not exceed the special benefit of the improvement to that parcel, which is defined as the difference between the fair market value of the property before and after the local improvement project. In addition, the assessments must be proportionate to one another. A corollary to these principles is that property not benefitted by the improvements may not be assessed. No matter what assessment method is used - per parcel, front foot, area, zone termini, traffic volumes, special benefit appraisal, etc. - the courts will be concerned only with these criteria. Even if a project lends itself very well to a front footage assessment (i.e., uniform lots, similar zoning) or is not large enough to warrant a full-blown special benefit analysis (see the LID Basics article), it is wise to check a few strategic parcels with a limited appraisal. This will prevent unpleasant surprises at the final assessment roll hearing.

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Are deferral options available for low income and senior citizens?
Reviewed: 12/13

Of legitimate concern are senior citizens and those who are economically disadvantaged. No councilperson wants to vote for a project that will put someone out of their home. Two deferrals are referenced in the statutes. RCW 84.38 provides for assessments to be deferred indefinitely for qualified senior citizens. RCW 35.43.250 and 35.54.100 provide for a deferral of up to four years for economically disadvantaged property owners, as defined in the formation ordinance. In both of these cases, the deferred assessment does not go away, but becomes a lien against the property.

Deferrals and other options for relief should be publicized early in the process, with a concerted effort made to identify those who may need such relief. Elected officials also need to know these options so that they can advise citizens who may call them. Reference these options in the public hearings and enter any documentation available regarding your efforts to identify property owners eligible for deferrals.

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Are LIDs only financing tools?
Reviewed: 12/13

Yes. The most important point to realize about LIDs is that the entire LID process is about financing infrastructure improvements, not constructing them. Nowhere in the LID statutes will you find information on technical feasibility, design, cost estimates, construction management expertise and project closeout requirements. It is assumed that a city will do a superb job of design, estimates and construction management for the infrastructure improvement, just as for any other project not financed by an LID.

LID processes lead, ultimately, to the sale of bonds to investors and the retirement of those bonds via annual payments by the property owners within a district. Goals of the LID process are twofold: to present a bond portfolio to investors that will entice them to invest at as low a rate of return as possible; and to assess property owners as fairly as possible in relation to the special benefit received.

LIDs take money to administer. Interim financing incurs interest costs. Bond sales involve bond counsel, underwriters and other expenses. All these expenditures must be added to the share of project costs that LID participants are expected to assume. Unless reminded at times through the process, LID participants may unfairly compare project costs from other, non-LID projects to the total cost to be assessed.

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What is an LID?
Reviewed: 12/13

Local Improvement Districts (LIDs) are special assessment districts. These districts are formed as a means of assisting benefitting properties in the financing of and payment for needed capital improvements. These special assessment districts are formed to permit the improvements to be financed and paid for over a period of time through assessments on the benefitting properties.

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How are these special assessment districts formed?
Reviewed: 12/13

  • The Resolution of Intention method allows the legislative body of a municipality to initiate an LID, and the
  • Petition method allows property owners to petition their city to initiate an LID.

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What are the general procedures to form an LID by the resolution method?
Reviewed: 12/13

LID's are most often formed by the Resolution of Intention method. The municipality is made aware that a capital improvement project is desired through letters, telephone conversations, public testimony, regulatory requirements, etc. The municipality should evaluate the potential project and its need and estimated costs. Then the general steps leading towards formation by the Resolution of Intention method would be:

  1. Determination of the extent of property owner support through a postcard survey or informal petition.
  2. If support exists, a general informational meeting is held to present the extent of the project, the estimated total cost, and the estimated assessment upon each benefitted property.
  3. An environmental checklist should be prepared to determine the effect of the project on the environment.
  4. A preliminary assessment map and preliminary assessment roll is prepared.
  5. A resolution is prepared declaring the intention of the legislative body to order the improvement, and setting a date for a formation hearing of the proposed LID.
  6. RCW 35.43.140 requires that notice be given by mail at least 15 days prior to the date fixed for the hearing to all benefitted (or assessed) property owners. A period of three to four weeks is normally provided.
  7. The resolution is published for two consecutive weeks in the official newspaper, with the first publication at least 15 days prior to the hearing date.
  8. An ordinance forming the LID is prepared and reviewed by the city attorney and bond counsel.
  9. Usually the formation ordinance is submitted to the legislative body in sufficient time to permit their final action on the formation ordinance at the formation hearing, should they choose to proceed with the project.

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How is an LID formed by the petition method?
Reviewed: 12/13

The petition method permits property owners to initiate the formation of an LID. The steps are essentially the same, except that:

  1. An informal petition of at least 10 percent of the benefitting properties is submitted to the legislative body for its review and approval.
  2. If found to be needed, the city usually prepares a formal petition for circulation by those submitting the initial petition.
  3. The formal petition, when executed by a majority of the assessed property owners in the proposed assessment district, is submitted to the legislative body.
  4. The next procedures are similar to those in item Nos. 3 through 9 under the Resolution of Intention method.
  5. What percentage of property owners may stop an LID formation?

After passing the ordinance creating the LID, there is provided a 30 day protest period, during which written protests may be submitted by the assessed properties. If the owners of the property within the proposed district who are subject to 60 percent of the dollar amount assessed file written protests, the project may not proceed. (RCW 35.43.180).

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What are the criteria for formation of an LID?
Reviewed: 12/13

There are no specific criteria required for the formation of an LID. The general nature of an LID is dependent upon the benefitting properties and the estimated cost of the planned improvement. Cities have wide discretion in establishing boundaries for an LID. Our legal consultants have previously responded to inquiries on this subjec, by stating that they are not aware of any reason why an LID could not be formed even if it was only for one parcel of property. Because an LID is to include all benefitted properties, it is possible that only one parcel of property could be benefitted by a specific improvement.

However, in general, the city should evaluate the cost of the proposed improvement and the estimated charge per benefitted parcel of property. The state statutes specify that the cost per parcel may not exceed the benefit of the improvement to that parcel. If an appraiser estimates that a proposed improvement, such as a sanitary sewer system, would only increase a property's value by $1,500, then an assessment greater than $1,500 on that property should not be considered in evaluating the LID formation.

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What is a ULID?
Reviewed: 12/13

The difference between ULIDs and LIDs is that, in addition to the assessments on the benefitting properties, utility revenues are also pledged to the repayment of the ULID debt.

Statutes provide that a LID can be converted to a ULID after formation; the reverse is not possible.

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If prevailing wage rates change during a public works project, what rates must be paid on the project?
Reviewed: 12/13

The applicable prevailing wage rates for most public works contracts are the rates in effect at the date when bids by prime contractors are due for submission to contracting agencies, and these remain in effect for the duration of the contract. This rule is set forth in WAC 296-127-011(3):

3. The applicable prevailing wage rates for a given public works contract will be determined as follows:

(a) For all public works contracts, except janitorial or building service maintenance contracts, the applicable prevailing wage rates shall be the rates that are in effect on the date when bids by prime contractors are due for submission to contract awarding agencies. These rates shall remain in effect for the duration of the contract.

(b) If contracts are not awarded within six months of the date bids are due, the applicable prevailing wage rates shall be those that are in effect on the date the contract is awarded. These rates shall remain in effect for the duration of the contract.

(c) For work orders issued under job order contracts pursuant to chapter 301, Laws of 2003, the appropriate prevailing wage rates shall be the rates that are in effect on the date when the individual work order is issued.

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Whether Red Flag Rules apply to a city utility where it doesn't take credit cards and bills are due on receipt.
Reviewed: 12/13

Yes, it would still fall within the definition of "creditor" under the Red Flag Rules because it provides services and accepts payment later and because it maintains "covered accounts." The definition of "creditor" applicable to the red flag rules is found in 15 U.S.C. §1691a(d) (via 16 C.F.R. §681.2(b)(4), which refers to the definition in 15 U.S.C. §1681a(r)(5), which, in turn, refers to the definition in 15 U.S.C. §1691a(d)), as follows:

The term "creditor" means any person who regularly extends, renews, or continues credit; any person who regularly arranges for the extension, renewal, or continuation of credit; or any assignee of an original creditor who participates in the decision to extend, renew, or continue credit.

"Credit" is defined in the same statute as follows:

The term "credit" means the right granted by a creditor to a debtor to defer payment of debt or to incur debts and defer its payment or to purchase property or services and defer payment therefor.

A "covered account" is defined in 16 C.F.R §681.2(b)(3) as follows:

An account that a financial institution or creditor offers or maintains, primarily for personal, family, or household purposes, that involves or is designed to permit multiple payments or transactions, such as a credit card account, mortgage loan, automobile loan, margin account, cell phone account, utility account, checking account, or savings account.

(Emphasis added.)

Thus, as stated by Kristin Eick and Phil Olbrechts in their October 20, 2008 memo to "all cities":

Because "covered accounts" specifically include utility accounts, municipalities deferring payment for services such as water, electric, or garbage collection must comply with FACTA [Fair and Accurate Credit Transaction Act of 2003].

So, it does not matter that the utility does not accept credit card payments and that bills are dues "upon receipt," the utility would still be covered under these rules.

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Must a city accept a request for latecomer agreement and extend the length of latecomer agreements to 20 years in view of recent statutory changes?
Reviewed: 12/13

Yes to both questions, effective July 2014.  ESHB in the 2013 legislative session provides:

RCW 35.91.020 provides

1(a) At the owner's request, a municipality must contract with the owner of real estate for the construction or improvement of water or sewer facilities that the owner elects to install solely at the owner's expense. The owner must submit a request for a contract to the municipality prior to approval of the water or sewer facility by the municipality. The owner's request may only require a contract under this subsection (1)(a) in locations where a municipality's ordinances require the facilities to be improved or constructed as a prerequisite to further property development. Water or sewer facilities improved or constructed in accordance with this subsection (1)(a) must be located within the municipality's corporate limits or, except as provided otherwise by this subsection (1)(a), within ten miles of the municipality's corporate limits. Water or sewer facilities improved or constructed in accordance with this subsection (1)(a) may not be located outside of the county that is party to the contract. The contract must be filed and recorded with the county auditor and must contain conditions required by the municipality in accordance with its adopted policies and standards. Unless the municipality provides written notice to the owner of its intent to request a comprehensive plan approval, the owner must request a comprehensive plan approval for a water or sewer facility, if required, and connection of the water or sewer facility to the municipal system must be conditioned upon:

AND

     (2) A contract entered into under this section must also provide, in accordance with the requirements of this section, for the pro rata reimbursement to the owner or the owner's assigns for twenty years, or for a longer period if extended in accordance with subsection (4) of this section. The reimbursements must be: (a) Within the period of time that the contract is effective; (b) for a portion of the costs of the water or sewer facilities improved or constructed in accordance with the contract; and (c) from latecomer fees received by the municipality from property owners who subsequently connect to or use the water or sewer facilities, but who did not contribute to the original cost of the facilities.

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Is there a statutory limit on the amount of the utility tax that a city can impose on its own water or sewer utility?
Reviewed: 12/13

There is no statutory limit on utility tax rates that a city can impose on its own water and sewer utility, which is why you will see some of these tax rates at over 20 percent. The limit in RCW 35.21.870 of six percent on electricity, telephone, natural gas, or steam energy businesses does not apply to water and sewer utilities. So, the political arena imposes the only limitation on this utility tax.

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What is the typical rationale for surcharges for water or sewer service outside city limits? Is there any recent case law on this subject?
Reviewed: 12/13

Based upon statutory authority and key court decisions addressing this issue, it is appropriate for a city to consider a utility customer’s location in establishing reasonable rate classifications for customers. Two of those decisions are Geneva Water Corp. v. Bellingham, 12 Wn. App. 856 (1975), and Faxe v. Grandview, 48 Wn.2d 342 (1956).

In terms of typical rationale, the following excerpt from Geneva Water Corp., quoting from Faxe, is on point:

Notwithstanding certain factual distinctions between Faxe and this case, the basic differences between resident and nonresident users of a municipal water system substantially are equally as applicable here as they were in Faxe, where the court stated at page 348-49:

After the city and its citizens had gradually developed the water system over a period of . . . years, [the] nonresidents sought and obtained permission to connect. They found the system a going concern. They were not required to assume any of the past burden or accept any future responsibility, save for providing a lateral connection and the payment of rates. While much of the system within the city is of no direct benefit to [nonresidents], they could not have obtained service had not a financially sound utility been developed.

The cost of rendering service to nonresidents is greater than to residents ...

The city gains an indirect benefit from rendering water service to resident users in the form of higher property valuations. No such indirect benefit is realized from service to nonresidents.

Id. at 866-67.

In light of these decisions, there is a presumption of validity in favor of the city and the burden is on the person challenging the rates to show the rates are improper. Also, specific statutory authorization exists in RCW 35.67.020 (sewerage), RCW 35.92.010 (water), and RCW 35.92.200 (water) for a city to consider the location of the customer within or without the city as a factor in setting rates.

We have opined that a city does not have to conduct extensive studies or compile a lengthy record to justify a higher utility rate for nonresidents. The presumption is that such a surcharge is justified.

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Are federal projects exempt from local building permit and land use requirements?
Reviewed: 12/13

Yes, federal projects are exempt from local land use regulations and building permit requirements. The concept of federal exemption from state and local regulations is based on the supremacy clause of the U.S. Constitution. Article VI of the federal constitution states in relevant part:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

So, neither local zoning regulations nor the local building code apply to a federal building project on federally-owned property. This is also the conclusion of the Office of the Attorney General in AGO 1978 No. 6, dated March 7, 1978. There is one caveat in this AGO, however. Sometimes the Congress might require that a certain building project comply with local building codes and, in that case, the local building code must be followed by the federal agency. Of course, the federal government may always voluntarily subject itself to local zoning and building code regulations if it so desires.

Also see California Planning - "The Essentials of Preemption."

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What is the procedure for renaming streets and designating new addresses in a newly annexed area?
Reviewed: 12/13

There is no statutory procedure or requirement that must be followed by a city when naming or renaming streets, except that the procedure should be established by ordinance. The only statute that deals with street naming and numbering is RCW 58.17.280, which provides that cities "shall, by ordinance, regulate the procedure whereby . . . streets . . . are named and numbered." Here are some city code provisions that deal with notice of street address changes, none of which go into much detail: 

We recommend that at least one public hearing be held prior to adoption of any street name in order to allow public input into the decision. If the name of the street appears in a plat that has been approved and filed with the county auditor, some provision should be made for filing a notice of the name change with the county auditor. Other agencies, such as the post office or the fire district, if one serves your area, should also be notified of the change so they can alter their records.

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Is a public hearing required prior to adoption of a six-year street plan?
Reviewed: 12/13

Yes, a public hearing is required to be held prior to adoption of a six-year street plan. RCW 35.77.010 (which applies to all cities and towns) provides:

The legislative body of each city and town, pursuant to one or more public hearings thereon, shall prepare and adopt a comprehensive transportation program for the ensuing six calendar years.

The statute does not specify how much notice is required for the public hearing - we usually advise a week or ten days. Also, the plan can be revised, but not without a public hearing before the revision occurs.

So the hearing is not just a courtesy - it is a statutory requirement.

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What is the process for changing a street name?
Reviewed: 12/13

There is no process set out in state law as to how a city renames a street. So, my questions to you would be: (1) has the city council previously adopted a procedure? (Probably not, or you wouldn't be asking this question.) (2) How has the council previously renamed streets? I realize the latter may be difficult to determine. Assuming that the council has not previously adopted a process and that there is no guidance in the form of a prior ordinance or the like renaming a street, we would recommend the following: 

  • A public hearing be held, with notice provided to property owners along the street and to the public generally; 
  • Adoption of an ordinance or resolution renaming the street; 
  • Notice of the change provided to the post office and emergency service provider(s); and 
  • If the name of the street appears in a plat or plats, file a notice of the name change with the county auditor.

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Must a city provide utility service to a person who has declared bankruptcy?
Reviewed: 12/13

A city may not refuse to provide service or discontinue service based on the filing of a bankruptcy petition. However, a city should bill for services provided to the customer after the date of the bankruptcy filing. A city can also require a security deposit equal to the charges for two months of service. After the filing of a bankruptcy petition, a city cannot take further action to collect delinquent charges that were due prior to the filing of the petition.  See Utility Billing and Collection Issues, September 12, 2013

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Does RCW 35.79.030 pertaining to street vacations require that cities receive compensation for vacating a street?
Reviewed: 09/13

No. In Greater Harbor 2000 v. Seattle, 132 Wn.2d 267, 282-83 (1997), the state supreme court stated:

RCW 35.79.030 grants municipal corporations the authority to vacate streets and those municipal corporations are authorized to require compensation for street vacations. The authority to require compensation is permissive. Nothing in the statute makes it obligatory for cities or towns to require compensation for street vacations.

So, whether or not the city will require compensation for a street vacation is a policy decision for the council

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Must a city or county adopt the State Building Code?
Reviewed: 05/13

No. The provisions of the State Building Code (SBC) are in effect in all cities, towns and counties of the state regardless of whether they are adopted locally or not. However, MRSC recommends that local governments adopt the state building codes in a local ordinance. By adopting the code in a local ordinance, it is much easier for the city or town to enforce the building code, since cases can be filed by the city or town attorney in the local municipal court and fines and revenues go to the city or town. Also, the state statute does allow a local ordinance to have minor deviations from the state code in order to better reflect unique local conditions. In addition, there are some codes that are not automatically part of the SBC, but that the agency may wish to adopt.

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Can a water-sewer district change the time period for sending an overdue bill to collections from the current 60 days to 30 days?
Reviewed: 04/13

You indicated that the district's current policy provides:

After 60 days, delinquent accounts not paid in full will be turned over to a collection agency.

You indicated further that the district is looking to change this policy so that after 30 days, rather than 60 days, delinquent accounts would be turned over to a collection agency. As explained below, we think the district has the authority to make such a change to this policy.

As an initial matter, water-sewer districts, through RCW 57.08.081 and more generally, have rather broad authority to set reasonable rates, establish reasonable classifications of customers, and establish reasonable policies related to delinquencies. See, e.g., Sudden Vly Cmty. v. Water Dist. No. 10, 113 Wn. App. 922 (2002). More specifically, RCW 57.08.081(3) provides in relevant part:

The commissioners may provide by resolution that where either connection charges or rates and charges for services supplied are delinquent for any specified period of time, the district shall certify the delinquencies to the auditor of the county in which the real property is located, and the charges and any penalties added thereto and interest thereon at the rate of not more than the prime lending rate of the district's bank plus four percentage points per year shall be a lien against the property upon which the service was received, subject only to the lien for general taxes.

We interpret this provision to mean that a district by resolution can determine that an account is regarded as delinquent after "any specified period of time." RCW 57.08.081(3) does not specify a particular period of time at which an account is delinquent, so the district has the authority to make that determination.

On a related matter, note that a water-sewer district has specific authority to shut off water (or sewer) service to a customer for nonpayment of water (or sewer) charges after a delinquency of 30 days. RCW 57.08.081(5) provides:

In addition to the right to foreclose provided in this section, the district may also cut off all or part of the service after charges for water or sewer service supplied or available are delinquent for a period of thirty days.

Additionally, we have opined, regarding penalties, that the district may apply a penalty of up to 10 percent of the charges owing under RCW 57.08.081(3), and that a "penalty" is just that - a penalty. It does not include costs, which are in addition to a penalty.

Note, too, that under RCW 57.08.081(4) the district has the authority to bring a foreclosure action for delinquencies of 60 days:

The district may, at any time after the connection charges or rates and charges for services supplied or available and penalties are delinquent for a period of sixty days, bring suit in foreclosure by civil action in the superior court of the county in which the real property is located. The court may allow, in addition to the costs and disbursements provided by statute, attorneys' fees, title search and report costs, and expenses as it adjudges reasonable. The action shall be in rem, and may be brought in the name of the district against an individual or against all of those who are delinquent in one action. The laws and rules of the court shall control as in other civil actions.

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Must a public hearing be held before a street may be vacated?
Reviewed: 07/11

Yes. Whichever method is utilized to initiate the street vacation, a public hearing must be held. This may be held before the full council or before a subcommittee of the council. If held before a subcommittee, then the subcommittee must report its recommendation to the full council for a final decision.

See:  /Home/Explore-Topics/Public-Works/Street-and-Road-Vacation-Procedures.aspx

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When determining bill delinquency, does a city use the post office cancellation date or the date payment was actually received?
Reviewed: 07/11

RCW 1.12.070 provides that any payment to any political subdivision, which would include cities, by means of the U.S. Mail, shall be deemed filed and received by the receiving agency as of the date shown by the Post Office cancellation mark.

Also, this statute provides that if the date provided for filing a report, claim, tax return or remittance falls upon a Saturday, Sunday, or holiday, then the filing will be considered timely if performed on the next business day.

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