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Public Works and Utilities

Below are selected “Ask MRSC” inquiries we have received from local governments throughout Washington State related to public works and utilities. Click on any question to see the answer.

These questions are for educational purposes only. All questions and answers have been edited and adapted for posting to the MRSC website, and all identifying information, including the inquirer’s name and agency name, has been removed.


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Can a city file a lien on the stormwater utility portion of a utility bill in connection with filing a sewer lien?
Reviewed: 07/20

Yes, stormwater utility service falls within the scope of the definition of “system of sewerage” in RCW 35.67.010, which includes the following:

  1. Sanitary sewage collection, treatment, and/or disposal facilities and services, on-site or off-site sanitary sewerage facilities, inspection services and maintenance services for public or private on-site systems, or any other means of sewage treatment and disposal approved by the city;
  2. Combined sanitary sewage disposal and storm or surface water sewers;
  3. Storm or surface water sewers;
  4. Outfalls for storm drainage or sanitary sewage and works, plants, and facilities for storm drainage or sanitary sewage treatment and disposal, and rights and interests in property relating to the system;
  5. Combined water and sewerage systems;
  6. Point and nonpoint water pollution monitoring programs that are directly related to the sewerage facilities and programs operated by a city or town;
  7. Public restroom and sanitary facilities; and
  8. Any combination of or part of any or all of such facilities.

Therefore, MRSC takes the position that surface water utility charges may be included in a sewer lien, which would follow the processes outlined in RCW 35.67.200 through RCW 35.67.290.

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Can cities temporarily close streets to motor vehicles and allow the streets to be used by pedestrians, non-motor vehicles and for outdoor seating for restaurants that would meet social distancing requirements? If so, what rules would apply to consumption of alcohol in such a seating area?
Reviewed: 06/20

There are a couple of components to your questions. Regarding authority to close streets temporarily to vehicle traffic, the city has broad authority to do so, especially during an emergency. Even in non-emergencies, code cities have broad authority to manage and regulate right of way—see, for example RCW 35A.11.020. Once your county enters into Phase II of the Safe Start COVID-19 recovery plan, we think the city could temporarily restrict certain rights-of-way so they are available only to pedestrians, non-motor vehicles and expanded outdoor restaurants pursuant to an order setting forth the public health and economic basis for doing so. Such an order should contain interim standards that address the circumstances and conditions that will govern the temporary use of the right-of-way.

Ordinarily, use of right-of-way requires the restaurant operator to pay a fee for the use of public property for restaurant purposes. However, under these emergency circumstances, the Washington Attorney General has released guidance that may provide the basis for local governments to incur expenditures (or forego revenue) in light of the COVID-19 emergency.

The Phase II guidance from the governor to restaurants and taverns authorizes outdoor seating at the same 50% capacity and under the same conditions and restrictions as indoor seating.

Consumption of alcohol in outdoor areas not previously authorized by the Washington Liquor and Cannabis Board (LCB) should be avoided, at least until there is guidance from the Board. The LCB has a COVID-19 webpage that summarizes steps taken by them in response to COVID-19. The LCB has not addressed this specific issue, although it has taken a number of actions, including allowing minors to sit in areas normally limited to individuals who are over 21 and allowing sales of beer, wine, and liquor for consumption off premises when purchased with take-out food orders. We are not aware of any proposals by the LCB to allow alcohol consumption in “new” outdoor seating areas. We recommend reaching out to the LCB directly for guidance.

At this time, we are not aware of any Washington cities or counties that have adopted orders to this effect although there is discussion, both in Washington and other parts of the country. Here are some recent articles on the topic:

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When are contractors required to submit Certified Payroll Reports?
Reviewed: 05/20

Effective January 1, 2020, contractors must file weekly certified payroll reports for all prevailing wage jobs (regardless of project amount), and submit them to the Washington State Department of Labor & Industries (L&I) directly. These reports are submitted online through L&I’s Prevailing Wage Intent and Affidavit (PWIA) system. The local government agency has no responsibility to review and check the reports. For more information, the contractor should contact L&I at pw1@Lni.wa.gov.

Projects that began prior to January 1, 2020, and that are still in progress will require certified payroll filing for work performed from January 1, 2020 and forward. The reporting is not retroactive for these projects. See RCW 39.12.120.

Contractors must always provide weekly certified payroll reports for federal projects.

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We are considering contracting for general custodial services for our city facilities. Can you please advise if this is a) considered a "public work" and b) subject to prevailing wages?
Reviewed: 04/20

Custodial services are generally considered purchased services subject to prevailing wages. As long as the services provided involve normal cleaning work, this would be the situation. If they are doing any handyman work that involves repairs, upgrades and similar types of improvements, then the work would likely fall in the public works category.

Please note that custodial contracts require annual updates to prevailing wages. See page 55 of the Department of Labor and Industries Prevailing Wage Law booklet.

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When we have outside vendors complete regular or routine maintenance items (less than $1,000 say) is paying prevailing wage rates a requirement?
Reviewed: 11/19

There is no dollar threshold that applies when qualifying work requires prevailing wage. Whether prevailing wage is required depends on the work being performed, not the dollar amount.

To make a determination, one should first look at whether the work involves the hands-on work of “laborers, workers or mechanics” and then whether the work is to perform any “construction, reconstruction, maintenance or repair” (see RCW 39.12.030) or demolition, etc. (WAC 296-127-010(7)(a)).If so, one should then determine whether such work is executed at a cost to the state or of any municipality pursuant to RCW 39.04.010(4).

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Is a courthouse camera security system a public works project?
Reviewed: 10/18

We believe such a project does not require public works competitive bidding under state law because RCW 39.04.270 allows municipalities to acquire technology such as electronic data processing or telecommunication equipment, software, or services through competitive negotiation rather than through competitive bidding. We think an electronic camera security system would fit this description. The statute provides:

(1) The legislature finds that the unique aspects of electronic data processing and telecommunications systems and the importance of these systems for effective administration warrant separate acquisition authority for electronic data processing and telecommunication systems. It is the intent of the legislature that municipalities utilize an acquisition method for electronic data processing and telecommunication systems that is both competitive and compatible with the needs of the municipalities.

(2) A municipality may acquire electronic data processing or telecommunication equipment, software, or services through competitive negotiation rather than through competitive bidding.

(3) "Competitive negotiation," for the purposes of this section, shall include, as a minimum, the following requirements:

(a) A request for proposal shall be prepared and submitted to an adequate number of qualified sources, as determined by the municipality in its discretion, to permit reasonable competition consistent with the requirements of the procurement. Notice of the request for the proposal must be published in a newspaper of general circulation in the municipality at least thirteen days before the last date upon which proposals will be received. The request for proposal shall identify significant evaluation factors, including price, and their relative importance.

(b) The municipality shall provide reasonable procedures for technical evaluation of the proposals received, identification of qualified sources, and selection for awarding the contract.

(c) The award shall be made to the qualified bidder whose proposal is most advantageous to the municipality with price and other factors considered. The municipality may reject any and all proposals for good cause and request new proposals.

(Emphasis added).

For a capital purchase using a request for proposals (RFP) process, you could also include RFQ content in an RFP. Here is a link to MRSC’s Telecommunications and Data Processing Purchases section of the Purchasing Goods, Equipment, Materials and Supplies topic with the steps for following this alternative process. Here is a link to MRSC’s publication County Bidding Book, Washington State.

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When is an RFP required of a City? Currently we’re looking at software needs.
Reviewed: 08/18

An RFP (Request for Proposal) is typically used in soliciting services or products where you are providing preliminary requirements and want the bidder to respond with a specific process and/or products to achieve a desired objective. Responses are analyzed and the most suitable proposal in conjunction with acceptable pricing is selected. An RFP is not to be utilized where a public works bid process is required, which are awarded based on cost.

For software purchases, RCW 39.04.270 provides the option for a competitive negotiation process rather than a competitive bid process. Subsections (2) and (3) of this statute state the following:

(2) A municipality may acquire electronic data processing or telecommunication equipment, software, or services through competitive negotiation rather than through competitive bidding.

(3) "Competitive negotiation," for the purposes of this section, shall include, as a minimum, the following requirements:

(a) A request for proposal shall be prepared and submitted to an adequate number of qualified sources, as determined by the municipality in its discretion, to permit reasonable competition consistent with the requirements of the procurement. Notice of the request for the proposal must be published in a newspaper of general circulation in the municipality at least thirteen days before the last date upon which proposals will be received. The request for proposal shall identify significant evaluation factors, including price, and their relative importance.

(b) The municipality shall provide reasonable procedures for technical evaluation of the proposals received, identification of qualified sources, and selection for awarding the contract.

(c) The award shall be made to the qualified bidder whose proposal is most advantageous to the municipality with price and other factors considered. The municipality may reject any and all proposals for good cause and request new proposals.

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RCW 36.32.270 allows counties to waive competitive bidding requirements pursuant to RCW 39.04.280 in the event of emergencies. Is there a similar one for cities?
Reviewed: 08/18

RCW 39.04.280 applies to “municipalities,” which includes cities and towns. That provision exempts competitive bidding when there are:

unforeseen circumstances beyond the control of the municipality that either: (a) Present a real, immediate threat to the proper performance of essential functions; or (b) will likely result in material loss or damage to property, bodily injury, or loss of life if immediate action is not taken.

RCW 35.33.081 applies to towns and authorizes emergency expenditures from a budgetary standpoint.

Both these provisions may be cited if there is an emergency that meets the criteria set forth in the statutes.

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What are the procedures for closing out a public works project with retainage, retainage bond, and notices of completion when the contractor has warranty work to complete and the engineer asks the city to release final payment citing RCW 60.28.011?
Reviewed: 07/18

RCW 60.28.011(b) provides:

Sixty days after completion of all contract work the public body must release and pay in full the amounts retained during the performance of the contract subject to the provisions of chapter 39.12 RCW and this chapter.

The contract for the work may define “completion of all contract work” for purposes of this statute. It may be “final acceptance” or another measure of completion. If there are no claims or liens, then the agency must release the money within 60 days of the request. You will also want to clarify how and when the warranty work will be completed.

See MRSC’s text coverPublic Works Project Closeout page. The stages for completing a public works project are detailed and include final acceptance, sending notices of completion, and retainage release. Many examples of closeout documents are also provided.

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Our municipal code states that utility bills are the responsibility of the "property owner".
If ownership of a property changes, can we pass along unpaid bills to the new property owner,
and withhold services until the old owner's account is current?

Reviewed: 05/18

RCW 60.80 governs the status of unpaid utility bills in the context of property transfer. We have a topic page on Utility Charges and Property Transfers that lays out how this works, as well as this Property Transfers Worksheet. Whether you can withhold services will depend on if the proper steps were followed in the statute. For example, if the city received a request for final billing pursuant to the statute, but fails to respond, it loses its unrecorded lien and may not recover the charges from the buyer. If, on the other hand, no request for final billing is submitted related to the sale, the property remains subject to the unrecorded lien (the buyer is responsible for the unpaid charges).

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Instead of using a tow rotation list, can a city use a service that contacts the nearest tow truck driver?
Reviewed: 01/18

Yes, cities can use such a service. MRSC has been asked several times in recent years about whether cities are required to use tow rotation lists and whether they are subject to RCW 46.55.115. By its terms, RCW 46.55.115 applies only to the State Patrol, and MRSC has consistently taken the position that it is not applicable to cities. Accordingly, we have indicated that a city may enter into an exclusive towing contract with a single towing company for police impounds. In so doing, we have noted that RCW 46.55.240, which relates to local ordinances on towing and impoundment, does not contain a “tow rotation” requirement, and includes the following (at subsection (4)):

A registered disposer under contract to a city or county for the impounding of vehicles shall comply with any administrative regulations adopted by the city or county on the handling and disposing of vehicles.

This provision suggests that cities may contract with one or more towing companies instead of using a rotational list. In addition, Citizens for Des Moines, Inc. v. Petersen, 125 Wn. App. 760 (2005), as corrected (Oct. 13, 2005) contains language that suggests cities have discretion in how they arrange for vehicle impounds.

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What liability does the city have for damages done to private structures and utilities by tree roots from trees the city maintains on city right-of-way when those roots invade abutting private property?
Reviewed: 12/17

Let’s start with the rules applicable to tree roots between adjoining properties. The general rule is that a property owner is liable for damage caused by tree roots that extend onto the property of another and cause damage. In Forbus v. Knight, 24 Wn.2d 297, 313 (1945), the Washington Supreme Court stated the following:

It is not the law that the owner of premises is to be charged with negligence if he fails to take steps to make his property secure against invasion or injury by an adjoining landowner. It is the duty of the one who is the owner of the offending agency to restrain its encroachment upon the property of another, not the duty of the victim to defend or protect himself against such encroachment and its consequent injury.

Street right-of-way is different than private property. Cities generally do not own right-of-way—they have an easement for street and utility purposes. See, e.g., Puget Sound Alumni of Kappa Sigma, Inc. v. City of Seattle, 70 Wn.2d 222, 226 (1967). So the mere fact that a tree is in a right-of-way does not make it a tree for which a city is responsible. Abutting owners often plant and maintain trees in the right-of-way—especially the portion that is not part of the improved roadway. A city would not necessarily be liable for damage caused by roots from a tree in the right-of-way if it did not plant and does not maintain the tree.

In one case, an abutting owners were found to have a duty with respect to tree root damage to a sidewalk resulting from trees on their property, but adjacent to the right-of-way line. See Rosengren v. City of Seattle, 149 Wn. App. 565, 575 (2009)(“an abutting land owner has a duty to exercise reasonable care that the trunks, branches, or roots of trees planted by them adjacent to a public sidewalk do not pose an unreasonable risk of harm to a pedestrian using the sidewalk”).

Where the tree is planted and maintained by the city (or planted at the behest of the city in connection with development), then the duties outlined in the Forbus case likely come into play.

In many cases it is difficult to ascertain the source of root damage if there are multiple trees in the area. Many cities have standards for appropriate species to use as street trees. A common criteria is that street trees be species that do not have invasive root systems.

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When can cities charge an annual franchise fee to utilities?
Reviewed: 12/17

Franchise fees are fees levied on private utilities for the right to use city properties, such as streets and alleys, and the term is also often used to describe the fees imposed to recoup the costs of administering the agreements.

MRSC’s Franchising—An Essential Tool for Right-of-Way Management blog post provides a helpful overview of franchising. The authority for code cities to enter into franchise agreements is at RCW 35A.47.040.

RCW 35.21.860 eliminates the city’s authority to impose a franchise fee on light and power, natural gas distribution, and telephone for the use of the city right-of-way. This same statute does however allow:

  • A utility tax to be charged and further states in RCW 35.21.865 a limit on the utility tax rate of 6% for the utilities providing light, power, natural gas, and telephone.
  • A fee to be charged to recover actual administrative expenses incurred by the city that are directly related to approving permits, licenses, and franchises subject to chapter 43.21C RCW (State Environmental Policy Act)
  • A franchise fee to be charged on cable television, with the fee being governed by federal law (RCW 35.21.860(1)(d))
  • A site specific charge (similar to a franchise fee) between the city and personal wireless facilities upon agreement between the parties. (The RCW is a bit more complex on this subject. Agreements between the city and wireless service providers requires legal counsel)

So, while the city can’t impose a charge for the use of the right-of-way for certain utilities, it can recoup the costs of administering the franchise agreement.

The most common franchise fees and agreements are between cable TV providers and wireless service providers. In these cases, a fee may be charged for use of the city’s right-of-way. Cable franchise fees are governed by the FCC. MRSC maintains an extensive Cable (CATV) Franchise Agreements topic page that you may find helpful. The franchise fee for cable utilities is limited to five percent. The franchise fee is different from the utility taxes a city may impose on utilities. Note the language of 47 USC 542(g)(2)(A), which states (emphasis added):

[T]he term “franchise fee” does not include—

(A) any tax, fee, or assessment of general applicability (including any such tax, fee, or assessment imposed on both utilities and cable operators or their services but not including a tax, fee, or assessment which is unduly discriminatory against cable operators or cable subscribers) . . . .

Here are a few MRSC resources that provide more information on this topic, including sample ordinances:

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What process must a city use to enter into a solid waste collection contract?
Reviewed: 12/17

In general, solid waste collection is considered to be a service, and it is therefore exempt from public works bidding requirements. Many jurisdictions use an RFP process when seeking solid waste collection services. Here is a link to MRSC’s Solid Waste Collection page.

RCW 35.21.156 does set forth an RFP process for solid waste collection. However, it is important to remember that this procedure is not mandatory and that cities may use different procedures to contract for solid waste collection. This is an area where cities have considerable flexibility—there are no mandatory procedural requirements with respect to contracting for solid waste collection.

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Can a jurisdiction waive building permit fees for low-income housing?
Reviewed: 08/17

Yes, there is authority under state law for a city or town to allow building permit fee waivers for low income housing. RCW 35.21.685 provides:

RCW 35.21.685
Low-income housing—Loans and grants.

A city or town may assist in the development or preservation of publicly or privately owned housing for persons of low income by providing loans or grants of general municipal funds to the owners or developers of the housing. The loans or grants shall be authorized by the legislative authority of the city or town. They may be made to finance all or a portion of the cost of construction, reconstruction, acquisition, or rehabilitation of housing that will be occupied by a person or family of low income. As used in this section, "low income" means income that does not exceed eighty percent of the median income for the standard metropolitan statistical area in which the city or town is located. Housing constructed with loans or grants made under this section shall not be considered public works or improvements subject to competitive bidding or a purchase of services subject to the prohibition against advance payment for services: PROVIDED, That whenever feasible the borrower or grantee shall make every reasonable and practicable effort to utilize a competitive public bidding process.

The language of this statute would include waivers of building permit and other types of development fees so long as the project meets the definition of “low income.” If a city or town does waive such fees, it should be done pursuant to a formally adopted policy of the council, preferably in an ordinance or resolution.

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Can a city “piggyback” on a county contract for irrigation services?
Reviewed: 07/17

Yes, a city can piggyback onto an existing county contract for irrigation services, provided that, when entering into the contract, the county: (1) complied with any applicable statutory bidding requirements when entering into the contract; and, if notice was required under state law, (2) either posted the bid or solicitation for the contract on its website or on the state’s web portal.

MRSC’s Intergovernmental Procurement and ‘Piggybacking’ topic page lays out the general process for piggybacking on another local government agency’s contract as follows:

  • The host agency and the piggybacking agency must sign an interlocal agreement and file it with the county auditor or post it online by subject. RCW 39.34.040. Ideally, the agreement should be in place before the purchasing contract is awarded, but this is not mandatory.
  • The host agency must comply with its statutory contracting requirements and post the solicitation online. RCW 39.34.030(5)(b).
  • The vendor must agree to the arrangement, either through the initial solicitation documents or through a request after the fact from the agency hoping to piggyback.

For more information, I recommend reviewing the Intergovernmental Purchases and Bidding section of our City Bidding Book.

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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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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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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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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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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 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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