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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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After a recorded public meeting, is there a requirement for how quickly we need to make the recording available to the public? And for how long must we make it available online?
Reviewed: August 2022

There is not a specific requirement for how quickly a governing body should make recordings of public meetings available to the public. There is also no requirement to make recordings of public meetings. However, pursuant to recent changes to the Open Public Meetings Act (OPMA), recordings are now “encouraged,” and agencies are also encouraged to make meeting recordings available online. RCW 42.30.220 now provides:

(1) Public agencies are encouraged to make an audio or video recording of, or to provide an online streaming option for, all regular meetings of its governing body, and to make recordings of these meetings available online for a minimum of six months.

(2) This section does not alter a local government's recordkeeping requirements under chapter 42.56 RCW.

This new RCW, effective June 9, 2022, does not indicate how soon an agency should make recordings available online, but includes the guideline for posting them “a minimum of six months.” The statute clarifies that the Public Records Act (PRA) still applies. Further, records retention schedules should be reviewed before any recordings are discarded.

Your agency could adopt a policy with guidelines about when to post meeting recordings, taking into account the resources involved in doing so. A reasonable time may differ depending on the agency in question. If your agency has decided to make audio and/or video recordings of your meetings, then you might want to look at the requirement for meeting minutes to be “promptly recorded.” There is not a specific definition of “promptly.” RCW 42.30.035 provides:

The minutes of all regular and special meetings except executive sessions of such boards, commissions, agencies or authorities shall be promptly recorded and such records shall be open to public inspection.

For more information about the 2022 changes to the OPMA, here are links to recent MRSC blogs: The OPMA Gets an Update from the Legislature and HB 1329: Answers to Your OPMA Questions.

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What are the rules for burning an outdoor recreational fire (e.g., a bonfire or campfire)?
Reviewed: August 2022

Sections 70A.15.5000 through 70A.15.5220 of the Revised Code of Washington (RCW) and Chapter 173-425 of the Washington Administrative Code (WAC) regulate outdoor burning. Both generally forbid outdoor burning unless specifically authorized. WAC 173-425-050(4) says that:

It is unlawful for any person to cause or allow outdoor burning that causes an emission of smoke or any other air contaminant that is detrimental to the health, safety, or welfare of any person, that causes damage to property or business, or that causes a nuisance

WAC 173-425-060(2)(i) requires a permit for any:

Recreational fires with a total fuel area that is greater than three feet in diameter and/or two feet in height (except in the nonurban areas of counties with an unincorporated population of less than fifty thousand; […]

WAC 173-425-060(5) establishes minimum recreational fire conditions. Those include whether a permit is required or just notification. Even for recreational fires, there are conditions. The regulations limit the materials that can be burned and the days and times burning is permitted. They require fifty-foot s eparation from structures and a maximum burn pile of four feet by four feet by three feet.

Because enforcement differs depending on each agency with overlapping jurisdictions (city police, fire department or fire district, and regional clean air agency) I recommend you consult with your fire marshal, your local clean air agency, and your attorney for specific requirements in your city.

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If there is a vacancy on a seven-member council in a code city, and only five members are present at a meeting where the vacancy is scheduled to be filled, is a 3-2 vote sufficient to appoint the new member?
Reviewed: August 2022

Yes, a 3-2 vote would be sufficient for appointment. RCW 42.12.070(1) provides that:

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

The number of votes required for a measure to pass depends on the type of matter on which the council is voting. For example, RCW 35A.12.120 (which applies to mayor-council as well as council-manager code cities under RCW 35A.13.170) requires a vote of the majority of the entire council for the “passage of any ordinance, grant or revocation of franchise or license, and any resolution for the payment of money.” So for those matters you count all seats to determine a majority regardless of whether they are filled or not. MRSC has previously advised that unless it is an action under RCW 35A.12.120, only a majority of members present is required under state law.

We think the same is true with the filling of a vacancy. A majority of those present at the meeting would decide the next appointment, as long as there is a quorum for the meeting. So a 3-2 vote would be sufficient.

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Does the state’s plastic bag ban apply to dog waste bags? If so, what should the city use at its dog waste dispensers at city parks? Do you have examples of other cities’ dog waste policies?
Reviewed: July 2022

The plastic bag ban does not apply to pet waste bags. See RCW 70A.530.020(3)(b), which states that carryout bags provided by a retail establishment do not include “[n]ewspaper bags, mailing pouches, sealed envelopes, door hanger bags, laundry/dry cleaning bags, or bags sold in packages containing multiple bags for uses such as food storage, garbage, or pet waste,” along with other listed types of plastic bags. Some cities use bags with recycled content or biodegradable bags in their pet waste dispensing stations, but it is not required per the plastic bag ban.

Here are a few local examples of pet waste programs and other related resources:

 

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If an employee posts a city job opening on their personal LinkedIn profile, is this considered a public record?  
Reviewed: July 2022

Agency-related records on a staff member’s personal LinkedIn profile can be analyzed under the “scope of employment” test. We have an FAQ on our PRA website that addresses this:

Essentially, if the employee on their own initiative decides to post a city job posting on their personal LinkedIn, that is not a public record (it is not within their “scope of employment”). However, if the city manager/mayor or the department director tells (or maybe simply encourages) the employee to post the job posting on their personal LinkedIn, it would be a public record since the agency is directing it.

For hiring tips, see our recent blog post: Recruiting for Local Government Positions.

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We are working on adding "legal lot" code language to our subdivision ordinance. Could you provide examples of other jurisdictions’ legal lot code language?
Reviewed: July 2022

Here are several examples from both cities and counties:

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Chapter 35.80 RCW grants authority for municipalities to assess costs of abatement and penalties/interest against the tax rolls and as a lien against the property when buildings/structures are abated. When no buildings are involved, are cities authorized to assess penalties for nuisance code abatement as an assessment submitted to the county treasurer to be entered upon the tax rolls?
Reviewed: July 2022

Other than RCW 35.80.030, we are aware of no statute that would allow a municipality to create a lien and have the county treasurer enter it on the tax rolls. For all other nuisance abatement costs the municipality would have to get a court judgment and record it against the property. It will not have a higher priority than other liens. See generally, City of Tacoma v. Pierce Cnty., 79 Wash. 2d 361, 485 P.2d 454 (1971).

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Are there any state laws/requirements for advertising employment opportunities for a small special purpose district?
Reviewed: June 2022

Currently, there are no state requirements to 1) advertise for job openings or 2) that dictate what is required to be in a job advertisement.

However, starting January 1, 2023, all employers with 15 or more employees must include in all job postings the wage scale or salary range, and a general description of the benefits and other compensation to be offered to the hired applicant. See ESSB 5761. Assuming your small district has less than 15 employees, this requirement would not apply. For tips on recruiting employees in this tight labor market, see this recent MRSC blog post: Recruiting for Local Government Positions.

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Can the city flag be flown on the same pole as the state flag? We understand that the U.S. flag is highest and the POW/MIA flag would be flown below the U.S. flag.
Reviewed: June 2022

With respect to flag display, there are legal requirements and there is etiquette (which is also very important in this topic area). As we note on our Flag Display webpage, RCW 35A.21.180 requires code cities to display the US and Washington flags at city buildings. In addition, each public entity must display the US, Washington, and POW/MIA flag upon or near its principal building on certain enumerated days pursuant to RCW 1.20.017.

Those are the legal requirements. Regarding flag display etiquette, our webpage has the following:

  • According to the Washington Secretary of State, the Washington State flag should be displayed in the highest position of honor after the U.S. flag and the flags of any other nations. It should be displayed in a higher position of honor than the flags of other states, counties, cities, or any other entity.
  • When the U.S., Washington State, and POW/MIA flags are flown on a single pole, the U.S. flag should be on top, followed by POW/MIA flag and then the state flag. (The state Department of Veterans Affairs changed this protocol in 2017 - previously, the POW/MIA flag was flown under the state flag.) If there are two poles, the POW/MIA flag should be flown under the U.S. flag while the state flag is on the other pole. For more information, see the Department of Veterans Affairs' POW/MIA Flag Display webpage.

Based on that, if the City has more than one flagpole, then we agree that when the POW/MIA flag is flown, it should be flown directly under the U.S. flag in the highest position of honor as detailed in the U.S. Flag Code, 4 U.S.C. Section 7. (The Flag Code has been interpreted by courts as being advisory in nature, which is why it is referred to as etiquette instead of a legal requirement.) The Flag Code provides:

  • When the flags are flown from adjacent staffs, the flag of the United States should be hoisted first and lowered last. No such flag or pennant may be placed above the flag of the United States or to the United States flag’s right.

The State flag would therefore be flown on a different flagpole to the left of the U.S. Flag, with the City flag below the State flag.

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Is there any exemption for municipal corporations from obtaining a minor work permit?  
Reviewed: June 2022

Municipal corporations are excluded from the definition of “employers” that are required to obtain a work permit by RCW 49.12.005(3) and WAC 296-125-015(4). However, the city must comply with the rest of the requirements for employing minors in RCW 49.12.110-.124.

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We want to update our agency’s official flag/logo. Are there any statutory requirements or other considerations we should be thinking about?
Reviewed: June 2022

There are no state laws that specifically allow or prohibit the city from adopting a city flag, so you have a lot of flexibility. Several cities have adopted a seal and a logo.

Sometimes a local government or agency will create a contest to solicit community input into a new design or logo. See the following examples of logo contests and projects:

If you do hold a contest, be sure to include language that, by submitting a logo, the applicant (or their parent or guardian on their behalf) surrenders any trademark or copyright to the logo, and that the agency reserves the right to not use the winning logo. We highly recommend you have your attorney review the terms and conditions of the contest.

Once an agency decides upon a new flag or logo, it can register its logo as a trademark with our state’s Office of the Secretary of State (Corporations Division) if the trademark is to be used exclusively within the state or region. Chapter 19.77 RCW governs trademarks issued by the state. As noted on the Secretary of State’s Trademarks webpage, the broadest protection is available through registration with the U.S. Trademark and Patent Office. The state Trademark Registration Form is available through the Secretary of State’s Registration Forms website. We recommend that you contact the Office of the Secretary of State, Corporations Division, for more information at (360) 725-0377.

Your agency may also want to review the North American Vexillological Association’s “Good Flag, Bad Flag” which “lays out five basic principles for good flag design, and then shows examples of flags that follow them and flags that disregard them, all illustrated in color.” There’s also an interesting and entertaining TED talk video on city flag designs.

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What options have cities used to financially support downtown façade and building improvements?
Reviewed: May 2022

Below are several examples of programs in Washington cities. These examples are a mix of grant and loan programs, but all appear to be funded with non-general fund monies, such as Community Development Block Grant (CDBG) funds.

Here are some additional resources that may be helpful:

  • Main Street Program – Washington’s Main Street Program (MSP) is a state iteration of a nationwide program to revitalize downtown districts. Some examples of cities that participate are Kent, Bellingham, Cle Elum, Puyallup, and Yakima. This program offers funding, networking opportunities, training, and other resources to cities who have an independent 501(c)(3) or 501(c)(6) nonprofit organization dedicated solely to downtown revitalization. Nationally, there are a vast number of cities that participate in this program.
  • USDA Information Center: Downtown Revitalization – Links to a variety of case studies, articles and guides, funding sources, relevant organizations, etc. Some of the topics covered on this site include Business Improvement Districts, community planning, downtown revitalization, and regional rural development.

MRSC staff have noted that an obstacle to building façade improvement loan programs from cities is the state constitutional prohibition on the loaning or gifting of public funds in Article VIII, Section 7 of the State Constitution. Programs that have been successfully implemented appear to have been funded by passing through money from other sources such as the CDBG program or the Economic Development Administration.

For more information, here are links to MRSC’s topic pages Gift of Public Funds and Economic Development in Washington State: An Introduction.

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We are looking for guidance on hosting city-sponsored summer events, such as parades.
Reviewed: May 2022

For general information on regulation of special events, including parades, see our Special Events Permits webpage. MRSC also recently published a blog article: A How-To Guide to Sponsoring Summer Celebrations. And here are a couple of examples of city parade regulations:

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Do you have a list of jurisdictions that have adopted Juneteenth as a holiday?
Reviewed: May 2022

We do not have a comprehensive list of jurisdictions that have adopted Juneteenth as a holiday, but we do have several examples below.

The Washington State Legislature adopted SHB 1016, making Juneteenth (June 19) a paid state holiday, effective July 2021. Because June 19 is a Sunday this year, it will be observed for the first time on Monday, June 20, 2022. President Joe Biden also signed legislation into law making Juneteenth a U.S. federal holiday. The date of June 19 commemorates the day in 1865 when knowledge of the Emancipation Proclamation and the abolishment of slavery reached the last remaining enslaved people in Galveston, Texas.

While local governments are not required to follow either the federal or state legal holiday schedule, many do, and RCW 1.16.050(6) authorizes the local legislative body to set their local government holiday schedules. Some jurisdictions that have adopted Juneteenth as a paid holiday for local government employees include Battle Ground, Bellingham, Bremerton, Burien, Burlington, Centralia, Edmonds, King County, Lynnwood, Renton, Seattle, Sumner, Walla Walla, Woodway, and Yakima. Olympia has an agreement with the International Association of Fire Fighters – Mechanics that includes Juneteenth as a paid holiday. Examples of Juneteenth proclamations are located in MRSC’s Sample Document Library, and include Kirkland's proclamation on Juneteenth and Snohomish County’s resolution.

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Are there special procedures to dispose of a city’s surplus firearms?  
Reviewed: May 2022

Firearms purchased and used by a city police department may be disposed of in the usual way a city surpluses other city property it no longer needs, with some caveats noted below. One option would be to sell the firearms by auction or trade to licensed dealers.

We recommend looking to see if the city has adopted procedures for surplussing city property (either in its code or policies). If it has, then those procedures should be followed. And here is a link to the MRSC webpage on the Surplus City or Town Property that includes practice tips and sample procedures.

Please be aware that some firearms that may be lawful for law enforcement officers to possess, may otherwise be illegal. See RCW 9.41.190. In that case, an option might be to sell them to another police agency or perhaps to disassemble the weapons and sell for parts.

Finally, firearms that are seized and forfeited are treated differently under RCW 9.41.098 (see in particular subsection (2)(a)) and RCW Ch. 63.32 (unclaimed). If you are dealing with forfeited or seized firearms, these provisions should be reviewed carefully.

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We have local ribbon cuttings where city council is invited. May a quorum or more of the council attend without this becoming a meeting subject to the OPMA?
Reviewed: May 2022

A quorum or more of the council can attend a ribbon cutting ceremony without implicating the OPMA, provided no city business is transacted. See RCW 42.30.070 and this FAQ on our website: Are social gatherings or other organizations' meetings subject to the OPMA?

Two things to consider for social functions: a) If the invite is sent to all council members at the city you may want to consider posting a notice somewhere that council has been invited, a majority/quorum of the council may attend, and that they will not be conducting city business at the event; b) Your city attorney may want to conduct some refresher training on the OPMA.

We suggest that if a majority does attend a social event, they should take care to not all sit together (or in a quorum-sized group) and that they make sure to keep the event social, and not discuss city business among themselves while at the event.

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What is the city's obligation to retain voicemails?
Reviewed: April 2022

If you do not convert the voicemail to transcription, the retention period will depend on the content of the call. If you do convert, then we think the retention schedule in CORE DAN GS2016-009 (page 162) would apply. Once the agency has confirmed transcription, it may destroy the recording. The agency will want to be sure it has captured all the relevant data – to and from numbers, time, length, etc.

The state archivist has the following guidance on voicemails: Managing Voicemails - Washington State Archives - WA Secretary of State

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Do you have examples of local policies for use of city/community reader boards?
Reviewed: April 2022

Many local governments allow use of their facilities on a nondiscriminatory, equal access basis to the public, usually for a rental fee and this could include a message on a reader board. Some cities have policies that address how city reader board signs may be used. Here are a few examples:

We recommend working closely with your city attorney in developing such a policy, keeping in mind First Amendment issues. A city reader board should not be used to advertise a political event, especially if the event relates to a political candidate or ballot measure. RCW 42.17A.555 prohibits the use of city facilities to support or oppose political campaigns.

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Does a town automatically change its form of government when its population goes over 1,500?
Reviewed: April 2022

No. Municipalities do not automatically change their form of government based on population. RCW 35.01.040 defines a town as a municipality that “has a population of less than fifteen hundred at the time of its organization and does not operate under Title 35A RCW.” There are several towns that have a population over 1,500 (based on 2021 OFM numbers). These include Coupeville (1,950); Eatonville (2,875); Friday Harbor (2,630); Steilacoom (6,745), and Yacolt (1,670).

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We’re looking for guidance on what substantiating proof is needed from a small business to determine if they experienced a negative economic impact related to COVID-19 before we provide direct or indirect assistance using ARPA funds.
Reviewed: April 2022

One of the main criteria to determine eligible use of ARPA funds is: does the use respond to a negative economic impact of the COVID-19 pandemic?

On page 21 of Treasury’s Overview of the Final Rule, it states that local governments can consider the following criteria for identifying eligible businesses:

  • Decreased revenue or gross receipts
  • Financial insecurity
  • Increased costs
  • Capacity to weather financial hardship
  • Challenges covering payroll, rent or mortgage, and other operating costs

The document goes on to say that the following businesses can be presumed to have been disproportionately impacted by the pandemic:

  • Small businesses operating in Qualified Census Tracts
  • Small businesses operated by Tribal governments on Tribal lands
  • Small businesses operating in the U.S. territories

Additionally, on page 40 of the Final Rule, Treasury states:

  • “As discussed in the section Designating a Negative Economic Impact, in the final rule, recipients must identify an economic harm caused or exacerbated by the pandemic on a small business or class of small businesses to provide services that respond. As discussed above, programs or services in this category must respond to a harm experienced by a small business or class of small businesses as a result of the public health emergency. To identify impacted small businesses and necessary response measures, recipients may consider impacts such as lost revenue or increased costs, challenges covering payroll, rent or mortgage, or other operating costs, the capacity of a small business to weather financial hardships, and general financial insecurity resulting from the public health emergency.” [emphasis added]

Because the Final Rule says that recipients “must identify” and “must respond to a harm experienced by a small business,” a conservative approach would be to require small businesses to show that they experienced an economic harm rather than simply certifying they did. A business that did not experience an economic harm caused by the COVID-19 pandemic should not be receiving ARPA funds. We would recommend having documentation for all businesses that receive or have received any ARPA funds. The city should have documentation that demonstrates eligibility listed above.

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The city is receiving extensive public records requests from an individual requester that has the potential to interfere with city operations. What are some strategies for dealing with such requests?
Reviewed: March 2022

Here are a few blog articles on dealing with large public records requests:

  • Please Stop: Handling Public Requests (Oct 15, 2019) - Municipal employees sometimes must deal with a variety of requests, and some can be quite challenging. This article looks at what local governments can and cannot broadly do in terms of responding to large public records requests and complaints.
  • BIG Public Records Requests (Mar 3, 2015) - How can local governments respond to large public records requests? In light of some recent public records requests that have made the news, this blog post discusses overbroad requests, identifiable records, and the ability to provide public records in installments.
  • Handling Vague and Complex Public Records Requests: Developing Your Plan of Attack (Feb 28, 2013) - Have you ever seen a public records request that makes you scratch your head and think, "How am I going to respond to that?" Two public records officers from Snohomish County weigh in on strategies for dealing with seemingly impossible requests that are either too vague or too complex.

MRSC’s Public Records Act Basics page has a section with examples of public records policies, including policies that limit the amount of staff time spent on responding.

Finally, there is authority under the PRA for an agency to close a request if a requester fails to review or pay applicable copy charges for requested records. See RCW 42.56.120(4) and WAC 44-14-040 (Attorney General Model Rules).

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Does a building have to be inspected by a licensed inspector before the agency can issue a building permit?
Reviewed: March 2022

There is no state law that requires building inspectors to be licensed. However, agencies are still required by RCW 19.27.050 to enforce the state building code (including any local changes the agency has adopted). This can be done by in-house employees, or by contract with another jurisdiction or private company to act as your building official.

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Does a resolution by a city council adopting findings require review and approval by legal counsel?
Reviewed: March 2022

State law doesn’t require the city attorney to review or approve ordinances or resolutions. Local city policies often require their city attorney to approve ordinances and resolutions “as to form,” but, again, this is not a requirement under state law. In contrast, the city clerk is required to authenticate all ordinances and resolutions by their signature. See RCW 35A.12.150. We have a blog post that provides an overview of how to properly use ordinances, resolutions, motions and proclamations (although it doesn’t address the signature issue): Taking Action Using Ordinances, Resolutions, Motions, and Proclamations

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If a mayor in a code city resigns, does the elected mayor pro-tem automatically assume the position of mayor? Does the mayor pro-tem serve for the remaining term?
Reviewed: March 2022

If the office of mayor becomes vacant, the mayor pro-tem may fill in for a short period of time. See RCW 35A.12.065. However, because the mayor pro-tem (who is a councilmember) fills in as mayor on a temporary basis, there still is a vacancy that must be filled. See RCW 35A.12.050 and RCW 42.12.070. The council, as governing body, appoints the person to fill the vacancy.

The city council has 90 days from the date the vacancy occurred to fill the vacancy. If the council fails to do so, the county commissioners or council make the appointment or appointments. The county has 90 days (180 days from the date of the vacancy’s occurrence) to make an appointment; if it fails to do so, either the county or city or town may petition the governor to make the appointment. Again, see RCW 42.12.070.

Aside from the timing constraints, there is no particular process that must be followed to fill a vacancy. There is no requirement, for example, that the vacancy be advertised, or that resumes or applications be solicited, or that interviews be conducted. However, if interviews are conducted, they must be conducted in public at an open meeting. The governing body may review qualifications in a closed executive session, but the appointment itself must be made during an open meeting. Note that local procedures may establish a process for filling vacancies.

The person appointed to fill the vacancy continues to serve until a qualified person is elected at the next election at which councilmembers are elected.

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Are there any restrictions to shutting water off in the winter?
Reviewed: February 2022

There is no legal prohibition against shutting water off during the winter months. That said, to shut off water, you’ll need to follow precise steps. The best place to start is our Utility Liens and Shut-offs tool, which walks you through the necessary steps on water shut off.

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