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Request for background information about the business license service provided by the Washington State Department of Revenue, including when and why it started, and the benefits.
Reviewed: 05/18

The State's Business Licensing Service (BLS) system is a division of the Department of Revenue (DOR) and was established to streamline the business licensing process for vendors who need to register in multiple locations. The BLS site provides users the ability to access licensing information and applications for all cities currently registered.

The State legislature asked for a simplification of the business licensing requirements to be addressed by a task force and reported back to the legislature with HB 2959. The report was released 12/31/2016 "Local Tax & Licensing Simplification Task Force .” This report provides an excellent review of the DOR/BLS program as well as the optional business license service called “FileLocal” that was created via an interlocal agreement with the cities of Bellevue, Everett, Seattle, and Tacoma.

As a result of the legislation (HB 2959) and the task force results, the Association of Washington Cities (AWC) was charged with working with cities to develop a “model business license ordinance” that will be required to be adopted by all cities that currently have or will be adopting business licensing requirements. For more information, see AWC’s web page on “Task force on local business tax & licensing simplification.”

The current task force consists of several cities throughout the State and the current timeline has the work group reviewing draft model licensing language in February, release to all cities in March, review of feedback from cities in April, finalizing the model in May and presenting to the cities at the AWC Conference in June with finalization of the model ordinance in July and out-reach to cities throughout the remainder of the year to assure smooth implementation on January 1, 2019.

All cities currently with business license ordinances currently in place will have to modify and implement the new requirements starting in January 2019.

At this time, the primary source of information on the draft model business license ordinance and business licensing services options is AWC. You can contact Victoria Lincoln @ 360-753-4137 or email: victorial@awcnet.org.

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Do you have any information on how other cities are dealing with vacant and foreclosed homes?
Reviewed: 05/18

Please see the following:

  • Ch. 6.10, Bremerton Municipal Code, “Abandoned Property Registration and Maintenance (see also “Abandoned Property Registration”)
  • Ch. 16.16, Everett Municipal Code, “Maintenance of Vacant Commercial Space in the Central Business District”
  • Ch. 15.20, Auburn Municipal Code, “Property Maintenance Code” (see Sec. 15.20.080, Vacant property registration)

You may also be interested in reviewing the following related resources:

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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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Is wholesaling taxable with regards to the City B&O tax?
Reviewed: 04/18

Yes. Here is a link to the Local B&O tax rate table for 2018. You will note that with the exception of Granite Falls and the City of Lacey, all of the remaining B&O tax cities (including Bainbridge Island) have adopted a B&O tax on “wholesale” operations.

The State of Washington uses a different matrix for imposing B&O taxes on operations within the state, however they do impose a tax on wholesalers. Here are the Department of Revenue’s Business and Occupation (B&O) taxc classification definitions, with link to the associated WAC’s and RCW’s.

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How much is a county required to contribute toward the salary of the elected county prosecutor?
Reviewed: 04/18

RCW 36.17.020(11) addresses the salary of the elected prosecuting attorney:

The state of Washington shall contribute an amount equal to one-half the salary of a superior court judge towards the salary of the elected prosecuting attorney. Upon receipt of the state contribution, a county shall continue to contribute towards the salary of the elected prosecuting attorney in an amount that equals or exceeds that contributed by the county in 2008.

So the minimum contribution from the county is what it contributed in 2008. However, this is a minimum requirement and counties have discretion to contribute more than that. Also, under the Washington Constitution (Article XI, Section 9), the salary of a county elected official may not be reduced during his or her term of office.

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How does the council fill a vacancy in a council position if there is a tie vote?
Reviewed: 04/18

While the statutes are not 100 percent clear, MRSC’s legal consultants have taken the position that the mayor can vote to break a tie vote of the council to fill a vacant council position.

RCW 42.12.070 provides that it is the governing body that makes the appointment, not the mayor. RCW 42.12.070(1) states that:

Where one position is vacant, the remaining members of the governing body shall appoint a qualified person to fill the vacant position.

We think that under RCW 42.12.070 (see above) the mayor may not vote initially on filling the vacancy since such votes are limited to members of the city council itself. However, if there is a tie in the votes of the councilmembers, the mayor may exercise their tie-breaking authority and break the tie vote.

The mayor’s authority to break a tie vote is set forth in RCW 35A.12.100, which provides in part:

The mayor shall preside over all meetings of the city council, when present, but shall have a vote only in the case of a tie in the votes of the councilmembers with respect to matters other than the passage of any ordinance, grant, or revocation of franchise or license, or any resolution for the payment of money. . . . The mayor shall have the power to veto ordinances passed by the council and submitted to him or her as provided in RCW 35A.12.130 but such veto may be overridden by the vote of a majority of all councilmembers plus one more vote.

Filling a vacancy is a “matter other than the passage of any ordinance, grant, or revocation of a franchise, or any resolution for the payment of money. . . .” So, we think that the mayor could break a tie vote to fill a vacant position on council.

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Does a board of county commissioners have authority to eliminate positions under another elected official in the county?
Reviewed: 04/18

A board of county commissioners (BOCC) has the authority to establish positions (RCW 36.16.070) and, as such, also has the authority to abolish positions. In Smith v. Board of Walla Walla County Comm’rs, 48 Wn. App. 303, 307 (1987), the court, in relevant part, held:

It is undisputed that the Board of County Commissioners have the authority to eliminate and establish employee positions in a county department, to reduce department budgets, and to create new departments. See RCW 36.32.120(6); RCW 36.16.070; see also Miller v. Pacific Cy., 9 Wn. App. 177, 179, 509 P.2d 377 (1973). There is also no dispute the County was facing a serious budget shortfall. The Board’s acts in balancing the budget were clearly discretionary. Therefore, mandamus would be appropriate only if the Board’s actions were properly found to be arbitrary and capricious.

In general, it is within the discretion of a BOCC to allocate, as it sees fit, the financial resources of the county as provided in the budget it approves. This principle is well-illustrated in State ex rel. Farmer v. Austin, 186 Wash. 577, 588 (1936):

In the light of the known financial difficulty of the counties and considering the circumstances of the times, the court cannot say that an order reducing the force of deputies in the sheriff’s office from six to four was so capricious and arbitrary as to be void. It may be that the action of the majority of the board of county commissioners was improvident and ill-considered, but, if so, the remedy lies with the electors rather than in the courts. If it be assumed that the business of the sheriff’s office will be hampered by the reduction in force, the harm will not be nearly as great as would be the consequences of the interference by the courts with the executive duties of the board of county commissioners, in whom is reposed the financial management of the county’s affairs.

As such, the courts will interfere with this exercise of discretion only upon the theory that the action is so capricious and arbitrary as to evidence a total failure to exercise discretion and is, therefore, not a valid act. Arbitrary and capricious action has been defined by the courts as “willful and unreasoning action, without consideration and in disregard of facts or circumstances.” See, e.g., Schrempp v. Munro, 116 Wn.2d 929, 938 (1991). See also, Miller v. Pacific County, 9 Wn. App. 177, review denied, 82 Wn.2d 1012 (1973) (“When the [board of county] commissioners, by resolution, show a clear purpose to effect a reduction of a department’s budget, they act within the ambit of the discretionary power granted to them.”)

Of course, the other elected county officials have statutory responsibilities they must carry out, and they need staff and facilities to carry them out, but there will most always be disagreement as to how much money they actually need in their budgets to do so. The statutes vest the BOCC with the authority to make that determination in the county budget. And, absent arbitrary and capricious action by the board in setting the budget, its budgetary decision-making will be upheld by the courts.

Note, however, that once a position has been funded, the authority to hire (or terminate) a particular individual rests with the elected official (not the BOCC). See Osborn v. Grant County, 130 Wn. 2d 615, 621 (1996), quoting Thomas v. Whatcom County, 82 Wash. 113 (1914). Thomas held that, once the board has authorized the hiring of deputies in a county office, "the officer in whose office the deputies are to serve, being responsible on his bond for their conduct, has the absolute right to determine the personnel of such deputies . . . ."

Of particular interest to you may be a recent Attorney General’s Opinion that analyzes the BOCC’s authority relative to the Sheriff’s Office under RCW 36.16.070 and chapter 41.14 RCW. See AGO 2017 No. 3. The opinion addresses several questions, but upholds the principle that the County Commissioners have the authority to ultimately create positions authorized by chapter 41.14 RCW.

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Who has the final say on what goes on the council agenda: the council or the mayor? Can the mayor take off the agenda what a councilmember has the city clerk put on?
Reviewed: 04/18

The city council has the authority to establish the agenda. For a mayor-council code city, the authority stems from RCW 35A.12.120, which provides in part: "The council shall determine its own rules and order of business, and may establish rules for the conduct of council meetings and the maintenance of order."

Often, preparation of the agenda is delegated to the mayor or clerk. Typically, the city’s rules of procedure will address who can add items to the agenda –check your city’s rules to see if it’s addressed there. Our Council Meeting Agenda web page has some good information on council agendas.

In the absence of a specific rule, the city council (and not an individual councilmember) would have final say over what appears on the agenda.

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If a code city council wanted to re-open their city budget to consider some changes/amendments after the budget is passed for 2018, would that take a majority vote (4) or a super majority (5) to make that happen? Is it governed by Roberts Rules of Order if we don't have a specific ordinance/budget policy to guide this?
Reviewed: 03/18

Chapter 35A.33 RCW is the guiding chapter for budgeting in code cities. RCW 35A.33.120 speaks to amendments to the final budget that would be adopted by the council and reads in part:

The city council, upon a finding that it is to the best interests of the code city to decrease, revoke or recall all or any portion of the total appropriations provided for any one fund, may, by ordinance, approved by the vote of one more than the majority of all members thereof, stating the facts and findings for doing so, decrease, revoke or recall all or any portion of an unexpended fund balance, and by said ordinance, or a subsequent ordinance adopted by a like majority, the moneys thus released may be reappropriated for another purpose or purposes, without limitation to department, division or fund, unless the use of such moneys is otherwise restricted by law, charter, or ordinance.

This statutory reference provides the council with the ability to decrease, revoke or recall all or any portion of the budget for any one fund by ordinance. The statute requires a super majority vote which means that it must be approved by 1 more than a majority of all members of the council. Your city has a 7 member council and therefore would need a vote of 5 members.

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What cities offer citizen civics academies to encourage citizen participation?
Reviewed: 03/18

Several cities offer citizen academies that focus on a variety of general government-related topics. Here are some examples:

In addition, here are some additional resources relating to citizen participation and civics academies:

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Who has the final say on what goes on the council agenda: the council or the mayor? Can the mayor take off the agenda what a councilmember has the city clerk put on?
Reviewed: 03/18

The city council has the authority to establish the agenda. For a mayor-council code city, the authority stems from RCW 35A.12.120, which provides in part: "The council shall determine its own rules and order of business, and may establish rules for the conduct of council meetings and the maintenance of order."

Often, preparation of the agenda is delegated to the mayor or clerk. Typically, the city's rules of procedures will address who can add items to the agenda-check your city's rules to see if it's addressed there. Our Council Meeting Agenda page has some good information on council agendas.

In the absence of a specific rule, the city council (and not an individual councilmember) would have final say over what appears on the agenda.

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Is a meal provided for in the price of a conference/meeting registration paid for by the County considered a taxable fringe benefit to the employee attending?
Reviewed: 03/18

If the cost of the meal is included within the conference/meeting registration then the charge associated with the meal is not considered a taxable fringe benefit. Here is a link to the IRS - Fringe Benefit Guide and more specifically the topic of meal expenses associated with Trade or Professional Association Meetings can be found on page 47 and 48. Here is an excerpt from the publication:

Reimbursements for meal expenses directly related to and necessary for attending business meetings or conventions of certain exempt organizations are excludable from wages if the expenses of your attendance are related to your trade or business. These organizations include chambers of commerce, business leagues and trade or professional associations. Reg. §1.274-2(d)(3)

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Is it legal for a jurisdiction to charge a utility tax on its own public utility (e.g., stormwater)? Is it legal and/or appropriate to charge the public utility for the cost of administering the utility in addition to charging a utility tax?
Reviewed: 02/18

We cover this issue on our Utility Tax webpage and in our Revenue Guide on pages 24-25.

Yes, it is legal for a jurisdiction to charge a utility tax on its own public utility. As stated in our Revenue Guide:

Utility taxes may be levied on the gross operating revenues earned by private utilities from operations within the boundaries of a city and by a city’s own municipal utilities. Utilities on which taxes may be levied include electric, water, sewer, stormwater, gas, telephone, cable TV, and steam.

Yes, it is legal to charge the utility the cost of administering the utility in addition to the utility tax. We cover this on our Overhead Cost Allocation webpage.

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Must a public agency respond to an oral request for public records?
Reviewed: 02/18

We believe that a public agency must honor an oral request for a record. The agency could certainly ask that the request be made in writing on an agency-approved form. But, it is our opinion that a public agency cannot require a person to do so.

In the case O'Neill v. City of Shoreline, 145 Wn. App. 913 (2008), the court analyzed several requests for records, including two that were oral requests, and did not make a distinction as to the validity of the oral requests. For example, the court did not indicate that the requestor had to reduce the oral requests to writing to be valid. The court instead looked to whether the city responded in a timely manner to the oral (and the other written) requests.

We recommend that verbal requests be processed in the same manner as any other type of request for public records. The PRA Model Rules state that an agency “should have a public records request form,” and provide several reasons why such requests should be memorialized in writing to protect both the agency and the requestor. See, e.g., WAC 44-14-03006 regarding form of requests. Although the PRA Model Rules are not binding, some courts look to them for guidance. As a practical matter, we think it’s a good idea for an agency to adopt a general policy that PRA requests be made on a standard agency form, and that the agency’s form could briefly explain the advantages to the requestor for having such a policy. However, requiring a requestor, without exception, to complete an agency form for all PRA requests would likely be subject to challenge for the above stated reasons and because the agency is “to provide the fullest assistance to inquirers” under RCW 42.56.100.

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Can a quorum of the governing body take "action" even if the entirety of the quorum is teleconferencing?
Reviewed: 02/18

Yes, a quorum of the governing body may take "action" even if the entirety of the quorum is teleconferencing, provided that:

  • Proper notice is given of the meeting;
  • The speaker phone or video system is provided at the meeting place designated in the notice and at the designated meeting time; and
  • The speaker phone or video system allows attending members of the public to hear all discussion, provide testimony (if testimony is required by state law or council rule), and otherwise be aware of the governing body's steps in takings its official action.

For more information, see our New AGO Opinion Concludes the OPMA Allows a Governing Body to Meet via Telephone or Video Conference blog post.

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The city imposes a utility tax of 6%. I've been advised that this is the maximum we can impose without voter authorization. Is that correct? I've also been told that the public safety sales tax also required voter approval. Is this correct?
Reviewed: 02/18

Yes, any increase in the utility tax (above 6%) on electricity, gas, steam and telephone utilities requires voter approval. For other utilities, a referendum clause may need to be included in the ordinance pursuant to RCW 35.21.706, which provides the option of filing a petition to place the tax increase on the ballot.

With regard to the optional public safety sales tax there are actually two separate amounts that may be imposed.

Under RCW 82.14.340 the county commissioners/council can enact a one tenth of a percent sales tax that is then shared with the cities under a formula in the RCW. If the commissioners/council do enact the tax it is subject to repeal by voter referendum using the procedures provided in RCW 82.14.036 otherwise it goes into effect.

A second option exists under RCW 82.14.450. The city or the county may ask for voter approval for up to three tenths of one percent sales tax. One-third of all money received must be used for “criminal justice purposes, fire protection purposes, or both.” If it is approved countywide then funds are shared with the cities 60/40. If a city adopts it on its own then it is shared with the county 85/15.

So one option must be voter approved and the other might need voter approval if a referendum petition is filed and signatures force it to the ballot.

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Is it possible to make a small change to the zoning ordinance without a comprehensive plan update?
The change involves altering the allowed height of accessory structures. There is no mention of
this issue in the comprehensive plan.

Reviewed: 01/18

RCW 36.70A.130(1)(d) requires that: “Any amendment of or revision to development regulations shall be consistent with and implement the comprehensive plan.” This provision does not require that the comprehensive plan be updated every time the zoning code is amended. If the proposed zoning change is consistent with the comprehensive plan, then no changes to the comprehensive plan are required.

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Can someone spread cremated human remains in a public park?
Reviewed: 01/18

State law allows the scattering of remains in this manner, provided the person seeking to spread the ashes obtains permission. RCW 68.50.130 provides (emphasis added):

Every person who performs a disposition of any human remains, except as otherwise provided by law, in any place, except in a cemetery or a building dedicated exclusively for religious purposes, is guilty of a misdemeanor. Disposition of cremated human remains may also occur on private property, with the consent of the property owner; and on public or government lands or waters with the approval of the government agency that has either jurisdiction or control, or both, of the lands or waters.

Note, that if the scattering is not being done by a close relative (spouse, adult child, parent, sibling) or by an authorized representative of the deceased person, a permit from the state cemetery board is required. See RCW 68.05.195.

Several national parks have information about spreading ashes within a park. There are certain rules one must follow, and a person has to obtain permission to do so. See, e.g., Yosemite National Park’s webpageon scattering cremated remains.

The agency operating the park could consider adopting a formal policy or ordinance regarding the scattering of ashes on its public property, or it could grant permission on a case-by-case basis and ask the person to adhere to any conditions that the agency thinks appropriate. For more information, see MRSC’s Cemeteries and Cemetery Administration topic page.

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What are some good training materials for our governing body concerning the Public Records Act?
Reviewed: 01/18

Here are some good resources:

Attorney General Training Page. The Office of the Attorney General (OAG) has an Open Government Training page that includes OPMA and PRA videos, each of which are approximately 20 minutes long. This page also has an online training guide for records retention. There is not a specific certificate of completion for the videos or online training, but you can download a certificate of training form at the bottom of the page that can be used to document completion of this (or any other) training. In addition, the Washington State Archives and the OAG offer in-person open government training at various times and locations throughout the state. The training is free and lasts approximately three hours.

AWC eLearning Modules. The Association of Washington Cities (AWC), in partnership with MRSC, created an online PRA eLearning module, which provides a great overview of the PRA.

Knowing the Legal Territory. You can also access AWC’s Knowing the Legal Territory video series, featuring attorney Steve DiJulio. This video series is slightly over two hours long and covers the OPMA, PRA, and records retention. It also includes other important topics, including: municipal authority, governance, ethics and conflicts of interest. AWC offers a training certificate that you can download, sign, and date upon completion.

If completed by a member of your governing body, the above trainings will also satisfy the required PRA (RCW 42.56.150) training requirements.

In addition, MRSC has numerous resources related to the PRA, including the following:

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Does an interfund loan need to be approved by ordinance or resolution? What if the loan is from an enterprise fund to a governmental fund?
Reviewed: 01/18

Regardless of whether an interfund loan (IFL) is from an enterprise fund to a governmental fund or vice a versa, an IFL needs to be approved at the highest level of authority of the legislative body. For cities this would be an ordinance and for counties it may be either an ordinance or resolution depending upon whether it’s a charter or non-charter county.

While local government has the authority to adopt an IFL there should be some considerations given to whether the lending fund has the ability to loan monies without impacting current or future financial needs, commitments or obligations. As part of the consideration of adopting an IFL, evaluate whether the lending fund has funds clearly in excess of current needs, the financial ability to commit the funds for the proposed loan period and will not be postponing scheduled capital improvement projects because of the IFL. Funds must be both legally available and excess of anticipated cash needs throughout the duration of the loan. It is for these reasons that an IFL should be short term in nature (less than 3 years is recommended).

The IFL ordinance/resolution should include the SAO-BARS manual recommended minimum procedures provided in Section 3.9.1, Interfund Activities, Loans (Note: Cash and GAAP manuals provided identical guidance). In summary the SAO requirements address loan duration, interest rate, and repayment schedules.

While not considered an exception to BARS, local governments may adopt by ordinance/resolution a financial policy that allows management to use IFLs under limited and specifically authorized circumstances without separate legislative action. These IFL policies are typically for cash flow needs and can be equated to a line of credit with a bank. They are frequently short term in nature (less than a year) and should include a requirement for reporting to the legislative body all IFLs made under the provisions of the IFL policy. An IFL policy is typically addressed in the entity’s Debt Management policies but it’s important to note that any form of IFL authority provided within a fiscal policy must still address the requirements of the BARS manual Interfund Activity Loan Section 3.9.1. (Note: the SAO does not agree that the legislative body can delegate its authority for limited IFL loans via fiscal policy. Caution should be used when considering the adoption of such a policy).

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Can an employee take FMLA leave to care for his unmarried partner in connection with the birth of their child?
Reviewed: 01/18

Under the FMLA (29 CFR 825.120), it is clear that both parents may take FMLA leave in connection with the birth of a child regardless of whether they are married. In addition, an employee may take FMLA leave to care for a pregnant spouse under 29 CFR 825.120(5). However, the FMLA definition of spouse does not apply to unmarried couples, so I agree with you that under the FMLA, the employee would not be eligible to take leave to care for an unmarried partner who is pregnant. Any FMLA leave would begin with the birth of the child. Under Washington’s Family Leave Act (FLA), the result is the same. The entitlement to leave provisions are set forth in RCW 49.78.220, which provide for leave in the event of the birth of an employee’s child. That statute also provides for leave to care for a “family member.” Under RCW 49.78.020, "Family member" means a child, parent, spouse, or state registered domestic partner of an employee. It does not extend to unmarried couples. Therefore, the FLA does not authorize leave for an employee to care for an unmarried partner during her pregnancy. Please note that the Legislature recently passed SSB 5975, which repeals much of the current FLA and replaces it with a paid leave system. However, the definition of “family member” is substantially similar to the definition in RCW 49.78.020 and was not expanded to include unmarried partners. See SSB 5975 Section 2.

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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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