Ask MRSC Archives

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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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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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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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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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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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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For all of MRSC’s coverage of new state legislation, see our New Legislation and Regulations blog category. We also recommend reviewing the Association of Washington Cities session recap and the Washington State Association of Counties legislative bulletins.

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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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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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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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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): 

• 2014 MRSC Webinar slides highlighting city opportunities for solar permitting improvements. 
• 2011 Management Memorandum from the City of Bellevue regarding leasing city property for solar installations.

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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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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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The candidate filing period for 2021 was May 17 through May 21. If no one filed for the elected office during that time, there is a void in candidacy pursuant to RCW 29A.24.141, and there would be a special filing period pursuant to RCW 29A.24.181, which provides in part:

If a void in candidacy occurs following the regular filing period and deadline to withdraw, but prior to the day of the primary, filings for that office shall be reopened for a period of three normal business days, such three-day period to be fixed by the filing officer. The filing officer shall provide notice of the special filing period to newspapers, radio, and television in the county, and online.

If no one files for election after the filing periods are over, there is a “lapse” in the election and no election is held. The officeholder whose term is ending remains in office (“holds over”) until the next election at which the position is voted on. See RCW 29A.24.201:

If after both the normal filing period and special three-day filing period as provided by RCW 29A.24.171 and 29A.24.181 have passed, no candidate has filed for any single city, town, or district position to be filled, the election for such position shall be deemed lapsed, the office deemed stricken from the ballot and no write-in votes counted. In such instance, the incumbent occupying such position shall remain in office and continue to serve until a successor is elected at the next election when such positions are voted upon.

If the incumbent who “holds over” no longer wants to serve, he or she can resign at which point the Council would make an appointment to fill the vacancy pursuant to RCW 42.12.070 (assuming it’s a nonpartisan position that is vacated). See these blog posts for more detailed information about filling vacancies:

1. Filling a Vacancy in City or Town Councils
2. Vacancies in Elected Office – Questions and Answers (Part 1)
3. Vacancies in Elected Office – Questions and Answers (Part 2)

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In 2019 the legislature passed a law requiring copies of competitive bids to be provided promptly (within two days of competitive bid opening) upon request. This may be the recent change you mentioned. This legislation was not part of the Public Records Act (PRA), but is within the public works chapter:

RCW 39.04.105: A new provision is added requiring municipalities to, when requested by a bidder, provide copies of bids received within two days of a competitive bid opening. An award cannot occur until at least two full business days after such documents have been provided.

Under the PRA, bid proposals and contracts would be public records subject to disclosure, although there may be some redactions required if there is protected financial information such as bank account numbers or dates of birth, SSNs, etc.

We recommend consulting with your agency’s legal counsel regarding any specific request for records or information.

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Yes, you should keep the envelopes that bids and statements of qualifications come in. They reflect the postage date which may be important in case of a dispute. The retention schedule for bid documents (both successful and unsuccessful) are on page 110 of the local government records retention schedule, CORE. Unsuccessful bid documentation can be destroyed after 4 years. Successful bid documentation can be destroyed 6 years after completion of the contract.

If you convert all your documentation to digital form, you do NOT need to keep the original paper version. The Archivist has guidance here on how to Go Paperless ("Scan & Toss").

You should work with your public records officer before destroying and tossing any records that have a retention value.

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For Interlocal Agreements (ILAs), as with other contracts, the contracting authority is with the governing body of the county, unless specific contracting authority has been delegated to the executive branch or another officer. It is therefore our opinion that the auditor’s office does not have independent authority to enter into interlocal agreements, absent authorization or approval from the board of county commissioners.

RCW 36.01.030 states that the county's "powers can only be exercised by the county commissioners, or by agents or officers acting under their authority or authority of law." Furthermore, RCW 39.34.030(2), part of the Interlocal Cooperation Act, states in relevant part:

Any two or more public agencies may enter into agreements with one another for joint or cooperative action pursuant to the provisions of this chapter . . . Appropriate action by ordinance, resolution or otherwise pursuant to law of the governing bodies of the participating public agencies shall be necessary before any such agreement may enter into force.

(Emphasis added.)

We have similarly advised that an independently-elected sheriff could not enter into an interlocal agreement on behalf of the county, unless that authority were delegated to the sheriff by the governing body.

Regarding whether two counties could agree to share elections services and facilities in an emergency, I think they probably could based on the provision in the Interlocal Cooperation Act at RCW 39.34.030(1) that states:

Any power or powers, privileges or authority exercised or capable of exercise by a public agency of this state may be exercised and enjoyed jointly with any other public agency of this state having the power or powers, privilege or authority, and jointly with any public agency of any other state or of the United States to the extent that laws of such other state or of the United States permit such joint exercise or enjoyment. Any agency of the state government when acting jointly with any public agency may exercise and enjoy all of the powers, privileges and authority conferred by this chapter upon a public agency.

We would recommend consulting with state elections officials and the prosecuting attorney’s office on this question, as well.

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Under recent Washington case law, there are potential issues with respect to impoundment of vehicles used for habitation. In June 2020, the Washington Court of Appeals ruled that a vehicle owner who uses their vehicle for habitation has homestead rights in that vehicle (see chapter 6.13 RCW). Impoundment of such a vehicle for violation of parking regulations is not, by itself, prohibited. However, the threat of forced sale of the vehicle (which is typically what happens with unclaimed, impounded vehicles) is a violation of the vehicle owner’s homestead rights. State law provides that real or personal property used as a residence “is exempt from attachment and from execution or forced sale for the debts of the owner up to the amount specified in RCW 6.13.030.”

MRSC published a blog article about the case which contains more analysis and information. The appellate decision was appealed to the Washington Supreme Court who heard oral arguments in the case in March, but it is unclear when an opinion will be issued.

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“Second readings” of ordinances are not required by state law. In fact, there is no state law requirement to have a first or second reading of an ordinance. However, such readings may be a matter of local council practice or procedure. We cover the second reading of ordinances in our Local Ordinances publication as follows:

State statutes are silent as to how ordinances are to be initiated. Thus, absent a charter provision detailing the process, each legislative body may determine the manner that must or should be used. Typically, when an ordinance has originated within the legislative body, the ordinance is presented to the clerk, who reads its title. The clerk’s reading is usually considered to be the “first reading.” The ordinance’s “second reading,” which also is often by title only, usually occurs when the ordinance is up for general discussion by the entire legislative body. There is no statutory requirement that an ordinance be “read.” Similarly, if an ordinance is read, there is no requirement (or limitation) that it be read by title only. Both considerations are frequently covered by local rules. If a local rule has been adopted, that rule should be followed. While there is no requirement that an ordinance be “read,” it nevertheless may be a good idea to do so. A reading provides both the legislative body and members of the public with notice of the topic under consideration. In addition, requiring that an ordinance be “read” helps avoid haste in the body’s deliberations.

As noted in this excerpt, state law doesn’t require a second reading of any ordinance and many city codes are silent on the matter. Your council rules may require a second reading for certain matters such as matters pertaining to taxes, fees, charges, penalties, assessments. So, review your council’s rules about the introduction and consideration of ordinances.

Even if there is a local council rule, a council could waive its rules and choose not to have a second reading on a particular ordinance. Council has the authority to waive its rules and the city’s rules of procedure likely address waiver. Another option would be to amend language in council rules of procedure to not require a second reading in some cases.

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MRSC has consistently advised that for the exemption in RCW 42.56.280 to apply, the draft documents must discuss opinions or the formulation of policy. This exemption does not generally apply to documents submitted as part of the permitting process. We discuss the “draft” and “deliberative process” exemption in our FAQ: Are draft documents exempt from disclosure?, in this blog article, and our MRSC Public Records Act publication, pp. 22-23. To rely on this exemption, an agency must show:

• that the records contain pre-decisional opinions or recommendations expressed as part of a deliberative process;
• that disclosure would be injurious to the deliberative or consultative function of the process;
• that disclosure would inhibit the flow of recommendations, observations, and opinions; and, finally,
• that the materials covered by the exemption reflect policy recommendations and opinions and not the raw factual data on which a decision is based.

See PAWS v. Univ. of Washington (1994) and West v. Port of Olympia (2014).

This exemption is focused on the deliberative and policy-making process within an agency and the exemption disappears once the agency takes final action on the issue.

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Under RCW 36.70A.130(2), cities and counties may consider proposed amendments no more frequently than once per year, with some exceptions, but there is no set date specified by the State. Instead, it is up to the local government to establish when the annual amendment process starts (and ends 12 months later). We recommend that the established time period be clearly stated, made available, and publicized, so as to minimize any confusion or lack of knowledge about it.

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Yes, you are correct. There are not state law term limits for elected officials such as mayors or councilmembers in towns or cities. There are some code cities that have adopted ordinances providing term limits for these elected officials. However, towns do not have the authority to pass a local ordinance imposing term limits. A 1991 opinion of the Attorney General, AGO 1991 No. 22 addresses the issue of term limits for local government elected officials. This opinion has legal analysis about different types of local governments and their constitutional and statutory authority regarding term limits. The opinion concluded that towns, second class cities, and non-charter counties do not have authority to impose term limits on elected local officials, but that charter counties, charter cities and non-charter code cities may pass term limit ordinances.

Term limits imposed on state-wide elective offices by initiative were found unconstitutional in Gerberding v. Munro, 134 Wn. 2d 188 (1998).

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RCW 46.44.080 is the primary source of authority on this, and it does require a city to make a finding that use of the street by trucks over a certain weight will cause damage to the street.

A multi-code search of “truck routes” turns up many examples of city codes that designate local truck routes and prohibit vehicles over a certain weight from using streets that are not part of the truck route.

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MRSC recommends that the city council adopt a policy providing for write-offs, stating the criteria that must be met before the write-off can occur. Such a policy should apply to all types of accounts receivable (water, sewer, garbage, court fines and other fees and charges that the city may impose). The policy should consider the variables for each type of receivable with specific criteria and internal controls in place to ensure that the city’s assets (receivables) are being safeguarded, then staff could write the debt off without further council involvement. There are several cities that have adopted write-off policies. Here are a few examples:

• West Richland Municipal Code, Section 3.09.030 Collection – Write-off
• Lakewood Municipal Code, Section 3.22.020 - Write-off
• Poulsbo Municipal Code, Section 3.72.040 - Uncollectible debts
• Bellevue Municipal Code, Section 3.32.100 - Authority of director regarding delinquent accounts
• Yelm Municipal Code, Section 13.04.290 - Nonpayment of charges

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A Homeowners Association (HOA) Covenants Conditions & Restrictions (CC&Rs) restricting Accessory Dwelling Units (ADUs) would remain in effect and enforceable even if a city passed an ordinance allowing accessory dwelling units (ADUs) in single family residential areas. This is because an HOA’s CC&Rs are private rules that each private homeowner agrees to follow as a condition of purchasing a home in a particular development. So, if the city allows ADUs in single-family areas with CC&Rs, the property owner would first need to negotiate with the HOA to change the applicable CC&R (or perhaps, to obtain an exception) before an ADU could be built.

For example, city zoning might allow a three-story building, but a covenant might only allow two stories; the more restrictive covenant, not the zoning restriction, would control the use of the property. The nature of a CC&R is private and does not involve the city. A city ordinance would not preempt or have legal priority over valid private restrictions, unless the CC&R were contrary to law. Enforcement of a restriction on ADUs would be a civil matter between the property owners. A city has no authority to enforce private covenants. See, for example, Viking Properties, Inc., v. Holm, 155 Wn.2d 112, 120 (2005) ("the City has correctly conceded that it 'has no authority' to enforce or invalidate restrictive covenants . . . ."). See, also, Jones v. Town of Hunts Point, 166 Wn.App. 452 (2012).).

State law does regulate Homeowners’ Associations (HOAs) at Chapter 64.38 RCW. The HOA law places some limitations on what an HOA can privately regulate. The law prohibits an HOA’s governing documents (i.e., CCRs) from excluding solar panels, certain types of drought resistant landscaping, and adult family homes. See RCW 64.38.055 thru .060. Under the law, the governing documents may not prohibit the display of flags or political signs. See RCW 64.38.033 and .034. And RCW 49.60.224 and .227 relate to removal of discriminatory language in deeds and restrictive covenants. RCW 64.38.028 provides a simple process for an HOA board to remove this discriminatory language from its governing documents. While there is no provision limiting private regulation of ADUs in Washington State, I understand this is something the legislature may consider to promote more housing types in communities.

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