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Does the OPMA apply to elected officials before they are sworn in?
Reviewed: 10/17

In Wood v. Battle Ground Sch. Dist., 107 Wn. App. 550 (2001), the Washington Court of Appeals reasoned that the OPMA does not apply to elected officials before they are sworn in:

Washington's OPMA is, at most, ambiguous as to its application to members-elect. Although the OPMA defines “action” broadly, nothing suggests that members-elect have the power to transact a governing body's official business before they are sworn in. Thus, they are not “members” of a governing body with authority to take “action.”

Therefore, under the Wood case, members-elect do not become members of a governing body for the purpose of the OPMA until they are sworn in.

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Does MRSC have any sample code provisions related to urban farms?
Reviewed: 10/17

Here are some sample code provisions from jurisdictions in Washington State:

In addition, the following information may be of interest:

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Can a group of area mayors host a “legislative forum” at a city-owned facility with several candidates for state offices to discuss their views on city issues?
Reviewed: 10/17

In general, use of city facilities in support of a political candidate is prohibited under RCW 42.17A.555. However, under RCW 42.17A.555(3), activities that are part of the normal and regular conduct of the office or agency are permissible.

Accordingly, it is permissible for the city to host in a city facility a “neutral forum” for candidates for elective office to speak and answer questions from the public. The Public Disclosure Commission (PDC) has taken the position that a public agency may, under RCW 42.17A.555, allow its meeting facilities to be used for a neutral forum with respect to a ballot measure or a campaign for elected office, with equal opportunity for both sides of the measure to present their views or for candidates to present themselves to the public. See the PDC’s Guidelines for Local Government Agencies in Election Campaigns (revised May 22, 2013). See also PDC Declaratory Order No. 13, “Use of City Facilities to Broadcast Candidate Forum”; and AGO 1979 No. 3 (“The facilities of a state college or university may be used for a candidates' forum to which candidates for elective office would be invited on a nondiscriminatory basis to appear on campus to present their views and respond to questions from the audience . . . .”).

According to the PDC’s Guidelines for Local Government Agencies in Election Campaigns, the following are permitted uses of public agency facilities:

  • Agency meeting facilities, including audio visual equipment, may be used by campaign committees for activities on the same terms and conditions available to other community groups, subject to the provisions of the agency’s policy.

  • Use of agency meeting facilities is permitted when the facility is merely a “neutral forum” where the activity is taking place, and the public agency in charge of the facility is not actively endorsing or supporting the activity that is occurring.

According to the PDC, here are the factors it considers when determining if the use of agency meeting facilities are the “normal and regular conduct” of the agency and therefore permissible:

  • Can community groups typically use agency facilities?
  • Are facilities made available to all groups on the same terms?
  • Has the agency adopted a policy regarding the distribution of campaign materials on agency property?
  • Is the meeting facility customarily made available on an equal access, nondiscriminatory basis for a variety of uses?

With these considerations in mind, to comply with RCW 42.17A.555, it will be important to invite all declared candidates for the particular state offices to the event. It will also be important to make sure all candidates who attend have an equal opportunity to participate.

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Can real estate excise tax (REET) funds be used for maintenance?
Reviewed: 09/17

Yes, RCW 82.46.015 expands upon the use of REET 1 tax funds to allow for maintenance of capital projects as defined by the REET 1 statute (RCW 82.46.010(6)(b)) subject to both limitation and reporting requirements defined within the statute.

The statute defines maintenance and does not include labor or material cost for routine operations.

The maximum allowed use of REET 1 for maintenance is the greater of $100,000 or 25% of available funds, but not to exceed $1 million per year and a written report that will demonstrate that you have or will have adequate funding from all sources to pay for all capital projects as identified in your capital facilities plan for the succeeding 2 years. Refer to RCW 82.46.015 (3) for complete reporting details.

RCW 82.46.037 expands upon the use of REET 2 tax funds to allow for maintenance of capital projects as defined by the REET 2 statute (RCW 82.46.035(5)) subject to both limitation and reporting requirements like those described above. The definition of maintenance has been defined within the statute and does not include labor or materials costs for routine operations.

The maximum allowed use of REET 2 for maintenance is the greater of $100,000 or 25% of available funds, but not to exceed $1 million per year and a written report prepared that demonstrates that you have or will have adequate funding from all sources to pay for all capital projects as identified in your capital facilities plan for the succeeding 2 years. Refer to RCW 82.46.037 (3) for complete reporting details.

Additionally, REET 2 funds may also be used for those capital projects that are defined in REET 1 (RCW 82.46.010(6)(b)) that are not also included in the REET 2 definition, and for a brief period of time (July 1, 2017 to June 30, 2019) REET 2 funds may be used for the acquisition, construction, improvement or rehabilitation of facilities to provide housing for the homeless. Both of these additional options are subject to the same limitation and reporting requirements as required when funds are used for “maintenance.”

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Does a city or county need a vote of the people in order to levy the second quarter percent of the real estate excise tax (REET 2)?
Reviewed: 09/17

It depends. If the city or county is required to plan under the Growth Management Act, then only an affirmative vote of the legislative body is needed to levy this tax. (Don’t forget to notify the county treasurer so that you will begin to receive the second quarter).

However, if the city is located in a county that has voluntarily chosen to fully plan under GMA, this tax may be levied only "if first authorized by a proposition approved by a majority of the voters." RCW 82.46.035(2).

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If an employee is called to active duty and will be gone for several months, must the local government employer continue to pay them and provide benefits while they are away?
Reviewed: 09/17

Under RCW 38.40.060, local government employees are entitled to paid military leave for up to 21 work days. Such military leave is in addition to any vacation or sick leave to which the employee would otherwise be entitled. During the period of military leave, the employee receives his or her normal pay.

Regarding benefits, 38 U.S.C. § 4317 provides that employees who leave their job to perform military service are entitled to continue their employer-based health insurance coverage for up to 24 months while on military leave.

In addition, the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) states that a person who leaves a civilian job to enter active duty is entitled to return to his or her civilian job after discharge or release from active duty. However, there are five basic eligibility requirements under federal law:

  • The person must have been released from service under honorable conditions and must furnish proof of that release;
  • The person must have held a civilian job "other than temporary" at the time he or she entered active duty;
  • The employee must have left the civilian job for the purpose of going into active duty, and must have given notice to his or her employer to that effect;
  • The employee must apply in writing within 90 days of separation or release from training or service (lesser periods apply when the period of service is 180 days or less); and
  • The period of service must not exceed five years.

The reemployment rights are available whether the person is in combat, active duty for training, or inactive duty. For a full list of USERRA regulations issued from the U.S. Department of Labor, see 20 C.F.R. § 1002. For additional information, see MRSC’s Military Leave topic page.

Finally, local governments are free to provide additional leave or benefits for employees who have been called for active service in the military than would otherwise be required by state or federal law. So, be sure to consult your local policies as well.

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What cities and counties can levy the second quarter percent of the real estate excise tax (REET 2)?
Reviewed: 09/17

Any county or city that is required to fully  plan under the Growth Management Act (RCW 36.70A.040(1)) may impose the second quarter percent of the real estate excise tax.

Any county choosing to plan under the Growth Management Act (RCW 36.70A.040(2)) and the cities located in them have the ability to impose the second quarter percent if first approved by the majority of the voters of the taxing district. (RCW 82.46.035(2))

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What is the industry standard for determining gross site area vs. net site area for determining density?
Reviewed: 09/17

Most (but not all) regulations with which we are familiar use a net density calculation that subtracts such factors as on-site natural resources/critical areas and public rights-of-way. Here are some sample code provisions:

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May a city or county use real estate excise tax (REET) revenues to pay debt service on a councilmanic bond?
Reviewed: 09/17

Yes, as long as the project is one for which these revenues may be used. For example, revenues from the second quarter percent (REET 2) can only be spent on projects listed in RCW 82.46.035(5) -- street, water, sewer, and parks (excluding land acquisition) projects . Therefore, these revenues could not be used to pay debt service on a new city hall or county courthouse. Note that if the real estate excise tax receipts fall short of the amount needed to pay debt service, the general fund must make up the difference.

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Can the county use real estate excise tax (REET) money for a pathway?
Reviewed: 09/17

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

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Does a city council in a noncharter code city have the legal authority to impose term limits on city councilmembers and the mayor?
Reviewed: 09/17

The answer appears to be “yes.” AGO 1991 No. 22 addressed the imposition of term limits on local government elected officials and concluded, in part, that noncharter code cities may impose term limits for their elected officials.

In reaching its conclusion, the AG’s Office differentiated between two types of local governments: those with broad home rule authority, consisting of charter cities and counties and noncharter code cities; and those with no home rule authority, consisting of second-class cities, towns, and noncharter counties. The AG’s Office concluded that only those jurisdictions with broad home rule authority could impose term limits and that noncharter code cities could impose term limits by ordinance.

Here are some examples of noncharter code cities that have adopted term limits:

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Can the real estate excise tax (REET) be levied even though the city or county is not yet allowed to spend it?
Reviewed: 09/17

Yes. The tax can be levied and placed in a municipal or county improvements fund until the city or county completes the capital facilities element of its comprehensive plan.

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Can cities and counties use real estate excise tax (REET) funds for planning?
Reviewed: 09/17

Cities and counties cannot use these funds for planning in the sense of developing a capital facilities element or a capital improvements plan. However, MRSC has advised that cities and counties can use these funds for design costs, engineering costs, surveys, etc. for specific projects in their capital facilities element or capital improvements plan. REET 1 funds may only be used for REET 1 allowed projects and REET 2 funds can only be used for REET 2 allowed projects.

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Is a capital facility plan required before expending Growth Management Act real estate excise tax (REET) funds?
Reviewed: 09/17

Yes. A capital facilities plan is required before expending either the first quarter percent REET funds, authorized by RCW 82.46.010(2) or the second quarter percent REET funds authorized by RCW 82.46.035.  Note that the rate at which it can be levied and the uses to which it may be put differs by city or county size and whether the city or county is planning under the Growth Management Act (GMA). More detailed information is available on our Real Estate Excise Tax webpage. 

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Does MRSC have a summary of the new PRA legislation?
Reviewed: 09/17

HB 1594 and HB 1595 contained the high-profile PRA legislation this session. MRSC has published three blog posts outlining the key provisions in these two bills:

In addition to MRSC’s resources, AWC has prepared a number of great materials related to these changes to the PRA that you may find useful.

Finally, here are the final house bill reports for both HB 1594 and HB 1595, which contain a concise summary of the changes made to the PRA:

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Is a city or county exempt from the real estate excise tax (REET) when purchasing real property?
Reviewed: 09/17

No. The sale of city or county real property is exempt from the real estate excise tax because such a sale is not included within the definition of "sale "for real estate excise tax purposes. However, in 1993 the legislature eliminated the same exemption for purchases of real property by a city, county, or other governmental entity. Thus, purchases of real property by a city or county (other than those by condemnation) are subject to the tax.

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How and when can a city or county that is planning under the Growth Management Act and that has a population of 5,000 or less spend its real estate excise tax (REET) revenues?
Reviewed: 09/17

The receipts from the first quarter percent (REET 1) can be spent on "any capital purpose identified in a capital improvements plan and local capital improvements, including those listed in RCW 35.43.040" (RCW 82.46.010(2)). RCW 35.43.040 lists projects for which local improvement districts (LIDs) may be formed and includes everything from street projects to parks to sewers to swimming pools. For a complete list, consult the statute.

Additionally, RCW 82.46.015 expands upon the use of REET 1 tax funds to allow for maintenance of capital projects as defined by the REET 1 statute (RCW 82.46.010(6)(b)) subject to both limitation and reporting requirements defined within the statute. The definition of maintenance has been defined within the statute and does not include labor or materials costs for routine operations. The maximum allowed use of REET 1 for maintenance is the greater of $100,000 or 25% of available funds, but not to exceed $1 million per year and a written report prepared that will demonstrating that you have or will have adequate funding from all sources to pay for all capital projects as identified in your capital facilities plan for the succeeding 2 years. Refer to RCW 82.46.015(3) for complete reporting details.

The second quarter percent (REET 2) cannot be spent until the city or county has completed the capital facilities element of its comprehensive plan. This part of the tax has more limited uses. It can only be spent on street projects, water and sewer projects, and parks projects (excluding the acquisition of land). RCW 82.46.035(5).

Like REET 1, REET 2 use has been expanded under RCW 82.46.037 to allow for maintenance of capital projects as defined by the REET 2 statute (RCW 82.46.035(5)) subject to both limitation and reporting requirements like those described above. The definition of maintenance has been defined within the statute and does not include labor or materials costs for routine operations. The maximum allowed use of REET 2 for maintenance is the greater of $100,000 or 25% of available funds, but not to exceed $1 million per year and a written report prepared that demonstrates that you have or will have adequate funding from all sources to pay for all capital projects as identified in your capital facilities plan for the succeeding 2 years. Refer to RCW 82.46.037 (3) for complete reporting details.

Additionally, REET 2 funds may also be used for those capital projects that are defined in REET 1 (RCW 82.46.010(6)(b)) that are not also included in the REET 2 definition, and for a brief period of time (July 1, 2017 to June 30, 2019) for the acquisition, construction, improvement or rehabilitation of facilities to provide housing for the homeless. Both of these additional options are subject to the same limitation and reporting requirements as required when funds are used for “maintenance.”

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When does the city real estate excise tax (REET) apply in an annexed area?
Reviewed: 09/17

The city's REET applies to any real property sold within an annexed area beginning on the effective date of the annexation. The REET - which, as the name clearly states, is an excise tax and not a property tax - is on "each sale of real property in the unincorporated areas of the county for the county tax and in the corporate limits of the city for the city tax . . . ." RCW 82.46.010(2)(a); RCW 82.46.035(2). Upon the effective date of an annexation, the corporate limits of the city include the area annexed.

There is no statutory connection between the REET, which is governed by chapter 82.46 RCW, and the property tax, which is governed by Title 84 RCW. RCW 84.09.030, which sets when "the boundaries of counties, cities, and all other taxing districts shall be the established official boundaries of such districts" applies only "for the purposes of property taxation and the levy of property taxes." That provision has no application to the REET.

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When and how can a city or county that is planning under the Growth Management Act (GMA) and that has a population over 5,000 spend its real estate excise tax revenues?
Reviewed: 09/17

Revenues from the first quarter percent (REET 1) may be spent only on capital projects in a capital facilities plan element of a comprehensive plan. RCW 82.46.010(2). RCW 82.46.010(6) lists these projects and the list seems to include everything a city or county might ever put in a capital facilities element, including the acquisition of land for parks. Since the projects must be in the capital facilities plan, obviously, the plan must be complete before any REET funds can be spent.

Additionally, RCW 82.46.015 expands upon the use of REET 1 tax funds to allow for maintenance of capital projects as defined by the REET 1 statute (RCW 82.46.010(6)(b)) subject to both limitation and reporting requirements defined within the statute. The definition of maintenance has been defined within the statute and does not include labor or materials costs for routine operations. The maximum allowed use of REET 1 for maintenance is the greater of $100,000 or 25% of available funds, but not to exceed $1 million per year and a written report prepared that will demonstrating that you have or will have adequate funding from all sources to pay for all capital projects as identified in your capital facilities plan for the succeeding 2 years. Refer to RCW 82.46.015(3) for complete reporting details.

Like REET 1 revenues, those from the second quarter percent of the real estate excise tax (REET 2) cannot be spent until the capital facilities element is finished. Allowable expenditures are street projects, water and sewer projects, and parks projects (excluding the acquisition of land). RCW 82.46.035(5).

Additionally, REET 2 use has been expanded under RCW 82.46.037 to allow for maintenance of capital projects as defined by the REET 2 statute (RCW 82.46.035(5)) subject to both limitation and reporting requirements like those described above. The definition of maintenance has been defined within the statute and does not include labor or materials costs for routine operations. The maximum allowed use of REET 2 for maintenance is the greater of $100,000 or 25% of available funds, but not to exceed $1 million per year and a written report prepared that demonstrates that you have or will have adequate funding from all sources to pay for all capital projects as identified in your capital facilities plan for the succeeding 2 years. Refer to RCW 82.46.037 (3) for complete reporting details.

Additionally, REET 2 funds may also be used for those capital projects that are defined in REET 1 (RCW 82.46.010(6)(b)) that are not also included in the REET 2 definition, and for a brief period of time (July 1, 2017 to June 30, 2019) for the acquisition, construction, improvement or rehabilitation of facilities to provide housing for the homeless. Both of these additional options are subject to the same limitation and reporting requirements as required when funds are used for “maintenance.”

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When and how can a city or county (of any size) that is not planning under the Growth Management Act spend its real estate excise tax (REET) revenues?
Reviewed: 09/17

The receipts from the first quarter percent (REET 1) can be spent on "any capital purpose identified in a capital improvements plan and local capital improvements, including those listed in RCW 35.43.040." RCW 82.46.010(2). RCW 35.43.040 lists projects for which local improvement districts (LIDs) may be formed and includes everything from street projects to parks to sewers to swimming pools.  These entities may not levy the second quarter percent (REET 2).

Additionally, RCW 82.46.015 expands upon the use of REET 1 tax funds to allow for maintenance of capital projects as defined by the REET 1 statute (RCW 82.46.010(6)(b)) subject to both limitation and reporting requirements defined within the statute. The definition of maintenance has been defined within the statute and does not include labor or materials costs for routine operations. The maximum allowed use of REET 1 for maintenance is the greater of $100,000 or 25% of available funds, but not to exceed $1 million per year and a written report prepared that will demonstrating that you have or will have adequate funding from all sources to pay for all capital projects as identified in your capital facilities plan for the succeeding 2 years. Refer to RCW 82.46.015 (3) for complete reporting details.

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May a city use the first one-quarter percent real estate excise tax (REET) revenues to contribute to the improvement of a school district stadium/athletic field that the city would use for certain city recreational activities?
Reviewed: 09/17

Yes, under certain circumstances. The relevant statute, RCW 82.46.010(2) states as follows:

The legislative authority of any county or any city may impose an excise tax on each sale of real property in the unincorporated areas of the county for the county tax and in the corporate limits of the city for the city tax at a rate not exceeding one-quarter of one percent of the selling price. The revenues from this tax shall be used by any city or county with a population of five thousand or less and any city or county that does not plan under RCW 36.70A.040 for any capital purpose identified in a capital improvements plan and local capital improvements, including those listed in RCW 35.43.040.

After April 30, 1992, revenues generated from the tax imposed under this subsection in counties over five thousand population and cities over five thousand population that are required or choose to plan under RCW 36.70A.040 shall be used solely for financing capital projects specified in a capital facilities plan element of a comprehensive plan and housing relocation assistance under RCW 59.18.440 and 59.18.450.

To comply with the expenditure restrictions in this statute, the stadium/athletic field would need to be in the capital facilities plan element of the city's comprehensive plan. Nothing appears to prohibit a city from including a school stadium/athletic field in their comprehensive plan, either as part of the school district's capital facilities plan element which could be adopted by reference into the city's comprehensive plan or as a specific capital project in the city's capital facilities plan element. In fact this would be necessary if a jurisdiction were to impose impact fees for schools. RCW 82.02.050(4) provides that

Impact fees may be collected and spent only for public facilities defined in RCW 82.02.090 which are addressed by a capital facilities plan element of a comprehensive land use plan adopted pursuant to the provisions of RCW 36.70A.070 or the provisions for comprehensive plan adoption contained in chapter 36.70, 35.63, or 35A.63 RCW.

"Public facilities" includes school facilities. RCW 82.02.090(7). Also, RCW 82.02.050 contemplates that a city or county could include facilities that may be the responsibility of a special district:

If the capital facilities plan of the county, city, or town is complete other than for the inclusion of those elements which are the responsibility of a special district, the county, city, or town may impose impact fees to address those public facility needs for which the county, city, or town is responsible.

If this requirement of inclusion of the facility in the city's capital facilities plan element or in the school district's plan element adopted by reference by the city is met, these REET revenues could be used for this facility if the expenditure has a city purpose. In AGO 1988 No. 19, the attorney general's office addressed whether REET revenues may be used by a county to fund capital improvements on property owned by a city. Although, this opinion addressed by pre-GMA version of RCW 82.46.010, the opinion still applies to the issue presented in this inquiry. That opinion states:

We believe the critical question, under both the relevant statutes and the state constitution, is whether the capital improvement at issue is to be constructed or operated for a county purpose. The statutes do not establish a per se requirement that the improvement itself or the underlying real property be owned by the county. Where neither factor is present, however, it is highly problematical whether the improvement is truly intended to serve a county purpose. Absent any additional facts indicating that such a purpose would be served by the capital improvements referred to in your question, we conclude that the funding of such improvements would not be authorized.

Since the stadium/athletic field would be used for city recreational programs, it would appear that there exists the requisite city purpose.

We recommend that the city and the school district enter into an interlocal agreement that identifies the city's contribution to the improvement of the facility and what the city's use of the facility will be.

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Is a purchase by a city or county of real property through the condemnation process subject to the real estate excise tax (REET)?
Reviewed: 09/17

No. RCW 82.45.010(3)(g) specifically exempts transfers of property through condemnation proceedings from the definition of "sale" for purposes of the real estate excise tax.

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What is the Multifamily Tax Exemption? Who applies for it, the developer or the city?
Reviewed: 08/17

Under chapter 84.14 RCW, Washington cities with a population of 15,000 or more may establish a tax exemption program to stimulate the construction of new, rehabilitated, or converted multi-family housing within designated areas, including affordable housing. In addition, cities in "Buildable Lands" counties under RCW 36.70A.215 and the largest city in a GMA county where no city has 15,000 or more population may also utilize the tax exemption program.

When a project is approved under this program, the value of eligible multifamily housing improvements is exempted from property taxes for 8 or 12 years. Land, existing improvements, and non-residential improvements are not exempt. Only multiple unit projects with 4 or more units are eligible for either the 8- or 12-year exemption, and only property owners who commit to renting or selling at least 20 percent of units as affordable housing units to low and moderate income households are eligible for a 12-year exemption. If the property use changes in a manner inconsistent with program requirements before the 8- or 12-year exemption ends, back taxes are recovered based on the difference between the taxes paid and the taxes that would have been paid without the tax exemption.

For eligible local governments, it is the city that would adopt such a program and a developer/property owner that would apply to participate in the city’s program.

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Should the chair of a planning commission vote on motions?
 

Reviewed: 08/17

The general rule is that a person who is chairing a meeting retains the basic right to vote on issues at the meeting. So, the chair of a planning commission does not lose his or her rights as a member of the commission when chairing a meeting and this includes the right to make, second, and vote on motions.

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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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