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Ask MRSC Archives

Below are selected “Ask MRSC” inquiries we have received from local governments throughout Washington State in recent months and years. Click on any question to see the answer; use the drop-down menu to browse inquiries by topic.

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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GO

The entire Council has been invited to a community meeting on homelessness. May a quorum of the council attend?
Reviewed: November 2021

Generally, the OPMA does not apply to a quorum of members attending a meeting not called by their governing body unless “action” is taken, which can include taking public testimony. AGO 2006 No. 6. We think there is a fundamental difference between 1) the council attending a meeting and passively receiving information as mere audience members, and 2) the council attending what is essentially a public listening session. Depending on the specific facts of the meeting, how the session is structured, and whether speakers address their comments directly to the councilmembers, it does run the risk of becoming “public testimony.” At the least, it runs the risk of “appearing” to be a violation of the OPMA even if a court ultimately finds that the facts of the session show there wasn’t technically a violation.

The conservative approach would be to have less than a quorum of the council attend the meeting and report back in a regular open meeting of the council. Alternatively, the community meeting could be noticed as a “special meeting” during which the council will take public testimony on the issue of homelessness.

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Our Mayor has vetoed an ordinance. Is there a time deadline for a Council vote to override the veto? And, does the vote to override the veto have to be by the members who voted on this ordinance?
Reviewed: November 2021

RCW 35A.12.130 says that when the mayor vetoes an ordinance “council shall cause his or her objections to be entered at large upon the journal and proceed to a reconsideration thereof.” But the statute does not specify when the council must take these actions.

We did not find any published Washington court decisions, attorney general opinions, or comments in Roberts Rules of Order on this issue. A respected legal source that our courts often refer to, McQuillin Municipal Corporations, says that if there is no controlling statute it depends on the local agency’s code or rules of procedure.

As for your second question, the council as a body continues even if the members change. There is no statutory language requiring that the same members act on a vetoed ordinance.

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What steps are required for the city to adopt/implement the Home Fund/Housing and Related Services sales tax pursuant to RCW 82.14.530?
Reviewed: November 2021

There are two methods cities may use to impose the tax authorized by RCW 82.14.530. The first is by submitting an authorizing proposition (by passing a ballot measure resolution) that goes before the voters at the next general election (see subsection (1)(b)(i)(A)). The second method dispenses with the need to put the measure before the voters and gives the legislative body the authority to decide whether to impose the tax (see subsection (1)(b)(i)(B)). The option to impose the tax without voter approval was added in 2020.

See our description of this tax—how it’s implemented and how it may be used-- as well as several examples of ordinances and resolutions on the Housing & Related Services Sales Tax section of our Affordable Housing Funding Sources topic page. The Issaquah and Spokane ordinances are examples where the council approved the tax without putting the question before the voters. So, a resolution would be used to put the measure before the voters, followed by adoption of an ordinance implementing the tax if adopted. And only an ordinance implementing the tax would be needed if the city opted not to put the question before the voters.

And here are search results from our Sample Document Library using the term “RCW 82.14.530”.

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Can the city council adopt a medical freedom ordinance contrary to the state vaccine and mask orders?
Reviewed: November 2021

Local governments have no authority to override the state’s requirements for vaccinations for certain employees or for indoor mask requirements.

While there is language in the various state proclamations and orders that allows local officials to implement more stringent requirements than the state, there is no language or statutory authority allowing local officials to circumvent the state requirements or introduce less stringent requirements.

For vaccinations, there are medical and religious exemptions that can be secured, as described in our blog post Vaccine Mandates: Accommodating Disability and Religious Belief Exemptions.

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We recently hired an employee with an address in Oregon. I believe they are going to move here but I do not know when. Will there be any issues with their W-2 for 2021 since Washington does not collect state income tax but Oregon does? Is there something special we should be doing?
Reviewed: November 2021

Generally, there is not an obligation to withhold state income tax for employees living in another state, at least for Oregon residents. An employee that resides in a neighboring state might telecommute temporarily, permanently, or not at all. The employee’s state income tax obligation is triggered by their state of residence and not where they perform their work.

For the State of Oregon, the employer may, but is not required to, withhold state income taxes. Here is an FAQ from the Oregon Department of Revenue:

Q. What about employers located outside of Oregon? Are they required to withhold for Oregon residents working out of state?
A. It isn’t required, but we do ask employers to register and withhold taxes as a convenience to the employee.

One thing to consider for your telecommute policy is if you intend to limit it to an employee’s permanent domicile. During the last year or so many people temporarily relocated to different states without permanently moving there. Even a temporary residency could trigger an obligation for the employee to pay income tax in that state, and there is a possibility that state could require withholding. You will want to establish a procedure to verify your obligations for any state you allow your employees to work from.

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Is there a law governing waiting or probationary periods for use of vacation leave or is this at the discretion of the employer?
Reviewed: November 2021

In Washington, employers are not required to provide employees with vacation benefits, either paid or unpaid. WA Dept. of Labor & Industries: Vacation Leave. If an employer chooses to provide such benefits, it must comply with the terms of its established policy or employment contract.

In most instances, employers link the use of accrued vacation time with the completion of the probationary period. This probationary period is particularly important for union-represented and civil service employees, because after this period they can only be let go for cause and have other due process rights.

If employees are union-represented, the probationary period (and how soon accrued vacation leave can be taken) may be established in that document as well. If you have a mix of represented and unrepresented employees, it is possible that the city adopts a standard for unrepresented employees that is consistent with the standard for represented employees just for the ease of tracking.

Again, while a common benefit, there is no legal requirement to provide vacation time. Only a minimum amount of sick time is mandatory under Washington law (1 hour per 40 hours worked), which an employee is entitled to start using no later than 90 days after they start working. (See LNI’s website for more information on the requirements of the Paid Sick Leave Law.) Some jurisdictions are opting to allow the use of accrued sick leave that is in excess of the state minimum as well as accrued vacation time after 90 days – just for the ease of administration – particularly if the employer opts to have all leave in a single PTO bucket.

From a policy perspective, the reasons for shorter versus longer periods preventing the use of accrued vacation time appear to be shifting in the current job market.

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What is the process for lifting a local ban on marijuana retail establishments?
Reviewed: November 2021

The process will depend on how the ban was put into place. If it is part of the zoning or development code, then the city or another party will need to initiate the code amendment process outlined in the local code. Here are some examples of cities that have lifted bans on marijuana-related businesses:

  • Fife Ordinance No. 1957 – In 2017, Fife lifted its marijuana ban on production, processing and retail sales
  • Spokane Valley Ordinance No. 19-011 – In 2019, Spokane Valley amended its municipal code to allow licensed marijuana transporters
  • University Place Ordinance 685 – In 2017, University Place amended its code to make changes if the Council chooses to allow such uses in the future
  • Yakima City Council Meeting Packet - May 17, 2016 – In 2016, Yakima passed a Resolution declaring intent to lift its ban on recreational and medical marijuana production, processing, and directing Planning Commission to develop land use regulations pertaining to locations and regulation of such uses (pg. 100)

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Do you have examples of code provisions and guidance regarding local siting of rehab/substance abuse facilities?
Reviewed: October 2021

Here are three code provisions that address the location and conditions to be applied to substance abuse centers (and other similar uses):

  • Ferndale Municipal Code Section 18.92.050 – Substance abuse treatment facilities are permitted in the RO (residential office) and GB (general business) zones subject to issuance of a conditional use permit. These facilities shall not be located within 350 feet of community centers, public park and recreation facilities, public and private schools, playgrounds, sports fields, and youth camps.
  • Skagit County Municipal Code Section 14.16.600 – Limits In-patient substance abuse, mental health, or secure community transition facilities to rural reserve and rural freeway services districts.
  • Tumwater Municipal Code Section 18.56.140 (A) – Permits conditional use of substance abuse facilities within multifamily zones as well as other specific zones (none of which include single family zones); tied to the city’s EPF regulatory process.

It is also worth considering the adoption of essential public facilities (EPF) provisions within a local zoning code. WAC 365-196-550(3)(b) states that “A local jurisdiction may not include criteria in its land use approval process which would allow the essential public facility to be denied, but may impose reasonable permitting requirements and require mitigation of the essential public facility's adverse effects. [Emphasis added] Here are two good examples of EPF regulations:

 

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Can the city impose a residency requirement for city managers or city administrators?
Reviewed: October 2021

RCW 35.21.200 authorizes cities to establish via ordinance residency requirements for appointed officials and employees, with some limitations:

  • Any city or town may by ordinance of its legislative authority determine whether there shall be any residential qualifications for any or all of its appointive officials or for preference in employment of its employees, but residence of an employee outside the limits of such city or town shall not be grounds for discharge of any regularly appointed civil service employee otherwise qualified: PROVIDED, That this section shall not authorize a city or town to change any residential qualifications prescribed in any city charter for any appointive official or employee: PROVIDED, FURTHER, That all employees appointed prior to the enactment of any ordinance establishing such residence qualifications as provided herein or who shall have been appointed or employed by such cities or towns having waived such residential requirements shall not be discharged by reason of such appointive officials or employees having established their residence outside the limits of such city or town: PROVIDED, FURTHER, That this section shall not authorize a city or town to change the residential requirements with respect to employees of private public utilities acquired by public utility districts or by the city or town.

In addition to the limitations in the statute, the city cannot set a durational residency requirement. In other words, the city can require that the city administrator live within the city (or within a certain area) but cannot require that they have been a resident for a certain amount of time before qualifying for employment. In Eggert v. Seattle, 81 Wn.2d 840 (1973), our state supreme court held that the residence preference there (a 1-year durational residence requirement) restricted applicants’ fundamental constitutional right to travel. Other states have justified a “point in time” residency requirement declaring that “[i]f it is important to develop relations between city employees and citizens, then the employee may be required to live within the geographical confines of the city while that employee holds municipal employment.” Carofano v. Bridgeport, 196 Conn. 623 (1985).

Here are examples of two city codes that include residency requirements adopted pursuant to RCW 35.21.200:

You’ll want to review any proposed ordinance with your city attorney.

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Some residents believe that a candidate for council does not meet the residency requirement. What role, if any, does the city play in vetting the qualifications prior to election?
Reviewed: October 2021

None. Candidates make their declaration to the County Auditor.

There is not a statutory requirement that we are aware of for cities to verify the eligibility of candidates for city council. RCW 29A.24.075 provides that:

  • If a person elected to an office must be nominated from a district or similar division of the geographic area represented by the office, the name of a candidate for the office shall not appear on a primary ballot for that office unless the candidate is, at the time the candidate's declaration of candidacy is filed, properly registered to vote in that district or division. The officer with whom declarations of candidacy must be filed under this title shall review each such declaration filed regarding compliance with this subsection.

So in the case of city council positions, the county auditor will review the declaration of candidacy to determine if the candidate is registered to vote within the city at the time of filing.

Also note that the city could potentially violate PDC / use of public facilities prohibitions if the city attempts to challenge in court the qualifications of a candidate in advance. For more information, see our 2019 blog post Limits on Pre-Election Litigation Involving Local Ballot Initiatives.

See also the following blog: Disqualification: What if a Candidate Doesn’t Meet the Required Qualifications for Office?

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We are currently in the process of updating our sign code. During this process can we stop issuing permits for signage or do we need to abide by our current code?
Reviewed: October 2021

Your current sign code applies until officially amended or interim zoning controls or a moratorium is put in place pursuant to RCW 35A.63.220 or RCW 36.70A.390. Any application will need to be processed under the current regulations.

The city does have discretion whether to enforce against violations of the current sign code if it feels it would be inconsistent with state or federal law. This would have to be determined in consultation with your City Attorney. Again, however, any applications that came in for signs would need to be processed pursuant to your current code.

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How does a town dispose of property that has no monetary value (e.g., carpet remnants, broken office equipment, and obsolete computer equipment)?
Reviewed: September 2021

As a matter of procedure, the council should list and declare these items surplus (usually done through a resolution), and then indicate that the items have de minimis or no monetary value (ideally with some description evidencing this, e.g., outdated, obsolete, broken, etc.). The property could then be destroyed or otherwise disposed of. If your town has adopted procedures for surplusing property, those should be followed. Here are some examples of resolutions that include items of de minimis or no monetary value:

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Can a city require businesses to provide proof of insurance before issuing a business license?
Reviewed: September 2021

The State adopted legislation in 2017 imposing requirements on cities with respect to the issuance of general business licenses. Our City Business License and Fees webpage has an overview of the requirements. In particular, RCW 35.90.080 and 35.90.090 require that cities include certain mandatory provisions in their business license regulations. MRSC has the model ordinance language that addresses the state requirements here.

So the first thing to check is whether the City amended its business license regulations in response to these requirements. If not, then RCW 35.90.090 prevents enforcement of the business license regulations.

Cities that impose a general business license must adopt the mandatory provisions of the model ordinance as provided in RCW 35.90.080 by January 1, 2019. A city that has not complied with the requirements of this section by January 1, 2019, may not enforce its general business licensing requirements on any person until the date that the mandatory provisions of the model ordinance take effect within the city.

Even if the City did amend its business license regulations in response to RCW 35.90.080, we don’t think it can require all business license applicants to provide proof of insurance. The decision of whether to buy insurance, what type of insurance, and what policy limits, is generally a business decision. And it is a decision that will vary widely depending on the size and type of business.

Some cities require certain types of businesses to obtain additional regulatory licenses and in some cases may require proof of insurance from a certain type of business. But that is different from the general business license requirements imposed on all businesses doing business within the City. We have more information on that at the webpage linked above.

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A local hospital district is building a new hospital within city limits. They have asked the city for a "reduction, rebate or charitable assistance" on city permit fees set by resolution. Can the city do this?  
Reviewed: September 2021

MRSC has consistently advised that agencies cannot waive permit fees for other public agencies or entities (except for low-income housing, RCW 35.21.685). This is based upon the "local government accountancy act," RCW 43.09.210, which reads in part:

  • All service rendered by, or property transferred from, one department, public improvement, undertaking, institution, or public service industry to another, shall be paid for at its true and full value by the department, public improvement, undertaking, institution, or public service industry receiving the same, and no department, public improvement, undertaking, institution, or public service industry shall benefit in any financial manner whatever by an appropriation or fund made for the support of another (emphasis added).

In our opinion, this statute would require the city department that issues the permits to charge the agency that is proposing the development for the permits. We believe the statute applies to intra-agency permits (e.g., public works department seeking a shoreline permit from planning department), as well as inter-agency permits (e.g., hospital district applying for building permit).

One possible approach is to amend land use/building codes or the fee schedule, providing for a different fee to be paid by all governmental entities. In any case, even if the city were to reduce the amount of the fee, it would still need to recover its costs under RCW 43.09.210.

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Who makes the decision that a member of a governing body cannot participate in a quasi-judicial matter; the member, or can the governing body disqualify them?
Reviewed: September 2021

MRSC has previously said that under RCW 42.36.080, the decision/responsibility to recuse under the appearance of fairness doctrine is the member’s. However, for first class and code cities and charter counties, state law may give the governing body the inherent authority to prohibit a member from participating. MRSC has also said that a governing body may be able to adopt a rule that would allow them to disqualify a member from participating, but we aren't aware of any agency that had done so. Such a rule (or other decision to disqualify) might be upheld since the remedy for a violation of Chapter 42.36 RCW is that the body has to conduct the hearing again without the participation of the disqualified member.

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Does a town council have authority to remove the mayor? 
Reviewed: August 2021

No, a town council does not have legal authority to remove the mayor from office. There is a legal process called “recall” where a registered voter of a jurisdiction may seek a recall petition to be placed before the voters after court review and signature gathering (see Chapter 29A.56 RCW). There is also a legal process called a quo warranto lawsuit that could be used to seek court review if an elected official is claimed to not be qualified to hold office (see Chapter 7.56 RCW) .

The mayor and the councilmembers are all independently elected officials. Absent voluntary resignation, the recall process or a quo warranto lawsuit are the options to try to remove an elected official from office before the official’s term of office ends. If the official runs for reelection, then the eligible voters at the next election would make the decision.

A good resource for information about the roles of the mayor and councilmembers is MRSC’s Mayor and Councilmember Handbook. See, Chapter 9, beginning at page 31.

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What are a local government’s responsibilities under the state’s electric vehicle and alternative fuel procurement rules?
Reviewed: August 2021

Under RCW 43.19.648(2)(a) all Washington local governments are required to satisfy one hundred percent of their fuel usage for operating publicly owned vessels, vehicles, and construction equipment from electricity or biofuel, “to the extent determined practicable by the rules adopted by the department of commerce.”

Pursuant to RCW 43.325.080, the Washington State Department of Commerce adopted rules in 2016 (effective June 2018) to define what is and is not practicable for compliance with this law. WAC 194-29-020(7) defines “practicable” to mean:

  • ...the extent to which alternative fuels and vehicle technologies can be used to displace gasoline and diesel fuel in vehicles, as determined by multiple dynamic factors including cost and availability of fuels and vehicles, changes in fueling infrastructure, operations, maintenance, technical feasibility, implementation costs, and other factors.

Further, WAC 194-29-030(3) provides:

  • If a local government believes it is not practicable to use electricity or biofuels to fuel police, fire or other emergency response vehicles, including utility vehicles frequently used for emergency response, it is encouraged to consider alternate fuels and vehicle technologies, such as natural gas or propane, to displace gasoline and diesel fuel use. Local governments that opt to exempt emergency response vehicles from these rules must notify the department as part of their annual reporting under WAC 194-29-080.

All local governments are required to comply with the chapter rules adopted by the Department of Commerce, but reporting is required only by local governments that use more than 200,000 gallons of gas or diesel to fuel vehicles annually (WAC 194-29-040). WAC 194-29-080 sets forth the reporting requirements for local governments who are required to report:

  • By July 1 of each year, each local government required to report under WAC 194-29-040 must submit to the department an annual report on a form provided by the department documenting how it is complying with the goal of satisfying one hundred percent of fuel usage for operating vehicles, vessels and construction equipment from electricity or biofuel by June 1, 2018, based on the criteria in WAC 194-29-070, including any reasons for noncompliance and plans for future compliance.

Local governments are not required to retrofit their vehicles or replace them before the end of their useful lives.

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The city's current policy is to require part-time firefighters to be at least 21 years old. Is there a state law that would prevent us from lowering this minimum age to 18?
Reviewed: August 2021

While the city can require a firefighter to be 21-years-of-age, they can also lower that to 18.

Under the state law for civil service, an applicant for a position as a firefighter “must be of an age suitable for the position applied for.” RCW 41.08.070. As well, the Attorney General’s Office stated in an opinion that “there is no statute barring a person over 18 years of age but less than 21 years of age from serving as a law enforcement officer, a prison guard, a firefighter, or a paramedic, provided that the person otherwise meets all qualifications for the job in question.” AGO 1999 No 6.

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Is a child victim’s identity still protected once they reach adulthood?
Reviewed: July 2021

MRSC’s position is that the protections for juvenile identifying information in RCW 10.97.130, RCW 7.69A.030, and RCW 42.56.240(5) continue after the juvenile turns 18.

However, in all matters related to the release or withholding of public records (or information within public records), we recommend you consult with your agency attorney.

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What if the mayor refuses to sign a resolution passed by the city council in a mayor-council code city?  
Reviewed: July 2021

The mayor in a mayor-council code city is not required to sign a resolution. As we noted in our 2020 blog post Taking Action Using Ordinances, Resolutions, Motions, and Proclamations, resolutions are statements of council’s legislative intent, or directives from council to staff. The mayor cannot veto them, and they are effective on passage without signature.

What to do when the mayor declines to sign will depend on your council’s rules of procedure. Your options might include: noting on the resolution the council vote, and that the mayor declines to sign; having the mayor pro-tem sign on behalf of council; or having all councilmembers sign. As mentioned above, the resolution is effective when approved by council, with or without the mayor’s signature.

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May American Rescue Plan Act (ARPA) funds be used to hold a lottery for city residents who show proof of COVID-19 vaccination?  
Reviewed: July 2021

Yes, our understanding is that funds may be used in this manner provided that the costs of administering the lottery are reasonably proportional to the expected public health benefit.

The U.S. Department of Treasure has issued a series of FAQs regarding use of the Local Fiscal Recovery Funds (LFRF) included in the American Rescue Plan Act (ARPA). FAQ 2.12 asks:

  • May recipients use funds to pay for vaccine incentive programs (e.g., cash or in-kind transfers, lottery programs, or other incentives for individuals who get vaccinated)?
  • Yes. Under the Interim Final Rule, recipients may use Coronavirus State and Local Fiscal Recovery Funds to respond to the COVID-19 public health emergency, including expenses related to COVID-19 vaccination programs. See forthcoming 31 CFR 35.6(b)(1)(i). Programs that provide incentives reasonably expected to increase the number of people who choose to get vaccinated, or that motivate people to get vaccinated sooner than they otherwise would have, are an allowable use of funds so long as such costs are reasonably proportional to the expected public health benefit.

For more on Treasury’s guidance, see this blog written by our Finance Consultant, Eric Lowell: Treasury Issues Guidance for Local Fiscal Recovery Funds.

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Do you have examples of city policies intended to incentivize the use of residential solar panels?
Reviewed: July 2021

Below are examples of cities across the state that are employing various tools (e.g. permitting, education and incentives) to encourage residential solar power. 

City of Bellevue  
Bellevue’s solar panel permitting page includes a checklist for residential photovoltaic systems and several other resources. 

City of Bellingham 
Bellingham created the first solar panel building permit exemption program in the state, eliminating permitting and engineering requirements for almost all residential installations. This link includes green building incentives, including those for solar. 

City of Edmonds 
Edmonds is a Northwest Solar Community, which means it works to promote solar energy and reduce some of the costs associated with solar installations. The program includes a flat fee and height exemptions for rooftop solar installations, among other elements. 

City of Issaquah 
Issaquah no longer requires building permits for certain residential solar installations. The city’s checklist for exemption is similar to Langley’s (below).

City of Kirkland 
As part of a federal Department of Energy grant, Kirkland and other grant partners (Seattle, Bellevue) have developed a streamlined process for the permitting of small-scale rooftop-mounted solar installations for single-family residential customers. 

City of Langley 
Langley no longer requires building permits for small roof-mounted systems less than 15kW. The city’s checklist for small roof-mounted systems is here.  

City of Mercer Island 
The Solarize Mercer Island campaign has been in place since 2014. Mercer Island is part of the Solarize Northwest program that provides discounts from participating installers. 

Solarize Snoqualmie – 2016 Municipal Excellence Award winner. Snoqualmie put together a program to help lower costs for solar installations for residents, detailed here. 

And here are a couple additional resources regarding solar power (albeit several years old now): 

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Can a code violation hold up permit approval of an unrelated proposal on that same property?
Reviewed: July 2021

MRSC recommends that agencies not tie the issuance of one permit to fixing an unrelated code violation on the property. One relevant case to consider is Mission Springs, Inc. v. City of Spokane, 134 Wn.2d 947, 960, 954 P.2d 250, 256 (1998) (city councilmembers liable for refusing to issue grading permit when “Issuance of such a permit is not a matter of discretion but is ministerial”). So, depending on the type of permit, if the applicant satisfies all the requirements for issuance (including the payment of fees for that permit), then the city should issue the permit. 

There may be circumstances in which denial of a building permit is appropriate if the code violation is related to the building permit. An example of that would be if the applicant has not satisfied a subdivision or short plat condition of approval that is required prior to issuance of building permits. Your agency attorney should be able to advise you in specific situations where you are not sure how to proceed.

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Can a town appoint a temporary councilmember (or councilmember pro tem) if a sitting councilmember has a prolonged absence due to illness?
Reviewed: June 2021

We are not aware of a provision in chapter 35.27 RCW (which governs towns) that authorizes the town council to appoint a councilmember pro tempore to serve during an extended absence of a councilmember. There is a provision addressing vacancies, RCW 35.27.140, which provides that the council “may declare a council position vacant if that councilmember is absent from the town for three consecutive council meetings without the permission of the council.” We understand in many circumstances this is not a desirable option.

RCW 35.27.280 addresses the town council’s authority to make pro tempore appointments, but that provision doesn’t include reference to the council appointing a councilmember pro tempore. Given this, and the fact there are provisions for other city classifications that allow councils to appoint a councilmember pro tempore (see, e.g., RCW 35A.12.065 for code cities), we interpret the absence of such a provision in chapter 35.27 RCW to mean that a town council doesn’t have such authority.

Depending on circumstances, a councilmember who would otherwise be physically absent could participate in the council meetings remotely. See this blog article as well as these resources for conducting virtual meetings:

  1. Tips for Governing Bodies Meeting Remotely
  2. Engaging in a Pixelated Public Square which discusses technology for public meetings during COVID-19 restrictions.

Of course, we defer to your town legal counsel if they have a contrary interpretation of the statutes.

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