Click here to skip to main content.
scenic picture from Washington state
MRSC PUBLICATIONS › NEWS › Municipal Research News - March 1991
 

Note: Some of the information on this archival Web page may no longer be current.

Municipal Research News

Resources for Washington Cities and Towns
March 1991

Articles

MRSC Expands Growth Management Information Services

MRSC is expanding its program to include a new specialty area. With the addition of planning consultant Sue Enger, the Center is now geared up to assist both cities and counties with growth management questions.

Sue also will be preparing a model land use inventory for the Department of Community Development (DCD). In addition to providing guidance on how to prepare a land use inventory, the model will provide criteria for designating urban and rural areas, for defining what constitutes appropriate urban densities, for determining vacant developable land, and for dealing with other sticky land use issues.

MRSC already has on hand an extensive collection of plans, ordinances, and agreements from throughout the state as well as books and publications on a variety of planning topics. Through our agreement with DCD, the Center is acquiring additional publications in the areas of planning and growth management. These publications may be borrowed by city and county staff and officials. A list of planning publications held by the MRSC library is available on request. Also, listed below are recently-received growth management related ordinances, which are also available by calling the Center.

In addition, MRSC will continue to act as a clearinghouse for new plans and documents produced under the Growth Management Act. Again, we ask you to help MRSC help you by providing us with copies of any plans, studies, reports and other information you produce which may be helpful to other local governments. DCD has asked us to advise them of any continuing problems cities and counties are encounterring in understanding and implementing the Growth Management Act. Please let us know about any problems you are finding and we will pass them on to DCD.

We look forward to assisting you as you tackle the management of your community's growth and resources.

Sample Growth Management Ordinances

  • Additional 1/4% Real Estate Excise Tax--Marysville Ordinance No. 1820; Mukilteo Ordinance No. 678

  • Public Participation--Resolution No. 418 and Exhibit A, City of Tumwater Comprehensive Planning Public Participation/Intergovernmental Coordination Procedures

  • Development Fees, Impact Fees--Anacortes draft ordinance creating an impact fee service area

  • Park Dedications, Fee-in-Lieu--Arlington Ord. No. 988 establishing park dedication and development fees and processes.

  • Requirements in Support of Schools, Impact Fees--King County Ord. No. 9785 addressing the impact of residential development on schools; providing adequacy standards and an impact fee.

  • Street Finance/Transportation Impact Fees--Anacortes Ord. No. 2165. Adopting local transportation improvement program; imposing transportation impact fees and providing for their disposition.

  • King County Ordinance No. 9747 implementing the Growth Management Act of 1990, & providing method for collecting fees from developers to help fund transportation improvements.

Who is MRSC?

In the first issue of Municipal Research News, the column "What is MRSC?" reviewed the history and current work of the Municipal Research & Services Center. This column will introduce you to the Center's staff. The first installment of "Who is MRSC? features the seven consultant staff members. Subsequent issues will introduce the administrative, support, and library staff members.

Susan C. Enger, A.I.C.P.
Planning Consultant

Sue recently joined MRSC (late February 1991) to assist both cities and counties with planning and growth management information. Through her diverse experiences with small, medium, and large cities and counties, she has developed an understanding of the needs of both urban and rural com munities. Most recently, Sue was a community plans project manager for King County. Sue has also directed planning departments for Jackson, Wyoming and Frisco, Colorado. She has prepared a growth management plan in another state and applied Washington's new Growth Management Act while preparing a community plan for King County. She has also prepared plans, policies, and regulations on a variety of topics including land use, housing, environmental protection, parks and open space, and downtown design. Sue earned her master's degree in urban planning from the University of Washington.

Sue lives in Seattle and, as you may have guessed from past addresses, enjoys skiing and many other forms of outdoor recreation.

Byron Katsuyama
Public Policy Consultant

Byron began work at the Center as a Research Assistant in July 1978. Earlier that year, he also received his B.A. degree in Political Science from the University of Washington. This was followed in 1982 by a Masters degree in Public Administration from the University of Washington's Graduate School of Public Affairs, specializing in policy analysis and urban affairs. After completing his M.P.A., Byron joined MRSC's consulting staff full-time as a Public Policy Consultant concentratingon municipal administration and policy research. Byron is primarily responsible for inquiry research in such areas as planning and zoning, licensing and regulation, personnel, comparative governmental statistics, and general administration. In addition to his consulting duties, Byron is also editor of the Washington City Management Association's Newsletter.

Pat Mason
Legal Consultant

Pat began working for MRSC in March 1976 as a legal consultant. He is a native of Seattle and grad uated from the University of Washington in 1971. He also received his J.D. degree from the University of Washington in 1975. His special projects for MRSC include preparation of the Washington Model Traffic Ordinance publication and a publication containing information on recent cases which are of interest to cities and towns. Pat and his wife, Renee, live in Kent with their children, Jeremy and Brian.

Bob Meinig
Legal Consultant

Bob began working at MRSC in September 1989. He has a law degree from the University of Puget Sound and a B.A. degree from Duke University. Prior to becoming an attorney, Bob worked as a professional photographer. Following law school, he worked for one year as a judicial clerk for Judge Edward Reed at the Washington Court of Appeals, Division II. After his clerkship, Bob was in private practice with a small Seattle firm specializing in land use and environmental law. He now lives in Seattle with his wife, Mary, and their two daughters, Kate and Emma.

Roy H. Peterson, P.E.
Public Works Consultant

Roy joined MRSC in 1988 after a career that included over 20 years as a consulting sanitary-civil engineer and 8 years as the Pierce County Director of Utilities. Roy's experience in the design of numerous water supply and distributions systems, as well as wastewater collection and treatment systems, has been a special source of information to the Center's clients. While responsible for the design and implementation of the $190 million Pierce County sewerage system he obtained valuable insight into the planning and funding of major public works projects. Roy is a licensed structural engineer in Illinois and a licensed professional engineer in Washington and eight other states.

Roy and his wife live in Maple Valley but remain active in the Daffodil Festival organization in Tacoma and the Puyallup Valley. A married son, an architect, lives in Baltimore, MD, while a married daughter lives in Federal Way.

Paul Sullivan
Legal Consultant

Before joining the Center in November, 1983, Paul was twice employed as a legislative assistant with the Seattle City Council. Paul has also been employed as an assistant city attorney in Vancouver, apart-time instructor in criminal law at Clark College, a tax specialist, and a VISTA volunteer. Paul has an associate of arts degree from Lower Columbia College and degrees in business administration and law from the University of Washington. In addition to handling daily inquiries, Paul has prepared or updated reports on code cities, towns, annexation, and ordinance drafting. Paul lives in Seattle with his wife, Patricia, and their three children, Jeremy, Catherine, and Sophie.

Judith Cox
Finance Consultant

Judy became a member of the MRSC staff at the beginning of March, filling the position left vacant by Larry Martin's retirement. For the past six years, she was the Urban Economist at the City of Seattle Office of Management and Budget. Her routine duties included revenue forecasting for the City and cash management of the General Fund. In addition, she directed special projects such as preparing the city's presentations to bond rating agencies, measuring the benefits to the corporate city of the Sonics and the Mariners, analyzing the financial history and long-range plans of the city's major arts organizations, evaluating the benefits and costs of a new city hall, and serving as the mayor's advisor for the governor's 1988 tax reform committee.

Before she worked for the city of Seattle, Judy was the Director of Undergraduate Programs in the Department of Economics at the University of Washington and taught courses in Economic theory, public finance, natural resource and environmental Economics, and international Economics. She earned her undergraduate degree in history at Northwestern University and completed all the coursework for a Ph.D in Economics at Stanford University.

Judy lives in Seattle and has a son who is a freshman at the University of California at Santa Cruz. Her favorite relaxation activities are going to the theater and opera and walking on the beach.

Conflicts of Interest

by Robert R. Meinig

Our legal staff frequently receives questions concerning potential or existing conflict of interest situa tions involving municipal officials. Since the law governing such conflicts can be confusing and since questions concerning potential conflicts are often not asked until after the conflicts exist, it is important for all municipal officials to have a general understanding of the basic principles and legal prohibitions concerning conflicts of interest. The consequence of a violation of these legal prohibitions can be serious for an officeholder and may include a fine and forfeiture of office.

The general rule from which the specific prohibitions against conflicts of interest derive is that a public official may not exercise his or her office to confer a personal benefit upon him or herself. This rule is grounded on the fundamental principle that public officers hold a public trust. Under this principle, public officers are held to a standard of behavior that does not undermine, provide an opportunity to undermine, or appear to undermine that trust.

Washington law governing conflicts of interest in municipal government is principally statutory, al-though a basic conflict of interest prohibition is contained in article 11, section 8 and article 30 of the state constitution which together prohibit mid-term or post-election pay increases for officials who fix their own compensation. Thus, under this prohibition, city or town councilmembers may not enact a pay increase for the office of a councilmember which would apply to any of the current councilmembers' terms. (The council could, on the other hand, increase the mayor's salary immediately, as long as the mayor does not vote on the increase.)

Chapter 42.23 Conflicts Involving Contract Interests

The basic statutory prohibitions concerning conflicts of interest concern contractual interests and are contained in ch. 42.23 RCW. The basic purpose of this chapter is, as defined in RCW 42.23.010, in structive:

It is the purpose and intent of this chapter to revise and make uniform the laws of this state concerning the transaction of business by municipal officers, as defined in this act, in conflict with the proper performance of their duties in the public interest; and to promote the efficiency of local government by prohibiting certain instances and areas of conflict while at the same time sanctioning, under sufficient controls, certain other instances and areas of conflict wherein the private interest of the municipal officer is deemed to be only remote, to the end that, without sacrificing necessary public responsibility and enforceability in areas of significant and clearly conflicting interest, the selection of officers may be made from a wider group of responsible citizens of the communities which they are called upon to serve.

The chapter governs only municipal officers, not municipal employees,1 and governs all contracts by such officials, including contracts of employment, sales, lease, or purchase, or any other contract. Whether a particular individual is a municipal officer subject to the statutory conflict of interest provisions may be an issue in a particular instance, but this is an issue beyond the scope of this article, and a question of officer status may be addressed to the city or town attorney and/or to MRSC legal staff.

The basic prohibition of the chapter, contained in RCW 42.23.030, prohibits a municipal officer from having a beneficial interest, directly or indirectly, in two types of contracts. The first are contracts that are or may be made by, through, or under the officer's supervision in whole or in part. Where the officer concerned is a councilmember, the basic prohibition is triggered for all contracts because of the council's authority over all city contracts and regardless of whether the councilmember in question votes or not. The sEcond are contracts made for the benefit of the officer's office. In addition, the statute prohibits an officer from accepting any compensation, gift, or award in connection with such contracts from any person having a beneficial interest in them. It is worth noting that the community property interest of one spouse in the earnings of another has been held by the courts to be a sufficient beneficial interest to trigger the prohibition contained in this statute. The interest of other relatives of a city official in a city contract would not, however, trigger the prohibition.

Significantly, the basic prohibition in RCW 42.23.030 is subject to a number of specific contractualexceptions including: the furnishing of utility services by the municipality at the same rates and terms available to the public generally; the designation of public depositaries for municipal funds; the publication of required legal notices, upon competitive bidding or at rates not higher than prescribed by law for members of the public; employment by the municipality of any person for unskilled day labor at wages not exceeding $100 a month; and, perhaps most importantly for purposes of this article, any contract by a municipality, other than a city of the first or sEcond class, where the dollar amount of the contract (and not the officer's interest) does not exceed $750 in any calendar month or $9,000 in the calendar year. This last exception does not include a sale or lease of municipal property to an official, which sales or leases are therefore prohibited regardless of the monetary amount represented by the contract. Also, with respect to this last exception, there is to be public disclosure by having an available list of such purchases or contracts, and if the supplier or contractor is a municipal officer he or she may not vote on the authorization.

A few examples may help to illuminate this last and most significant exception to this conflict of interest prohibition. Under this exception, a councilmember may sell to the municipality computer equipment worth less than $9,000, but that councilmember may not sell the municipality computer equipment worth greater than $9,000 even though his or her commission may be less than $9,000. Thus, the important amount is that amount represented by the contract itself and not by the particular official's interest in the contract. This exception would allow the city to hire the spouse of a councilmember if that spouse is paid less than $9,000 in a year. The city could, on the other hand, hire the spouse of the city clerk for a position which pays more than $9,000 per year because the city clerk has no supervision over the making of the employment contract or over the salary of the position, as would a councilmember.

Chapter 42.23 RCW also provides an exception where the interest is deemed remote. Under RCW 42.23.040, a "remote interest" means:

  1. That of a nonsalaried officer of a nonprofit corporation;

  2. That of an employee or agent of a contracting party where the compensation of such employee or agent consists entirely of fixed wages or salary;

  3. That of a landlord or tenant of a contracting party;

  4. That of a holder of less than one percent of the shares of a corporation or cooperative which is a contracting party.

In the event of such a remote interest in a contract, the municipal officer involved must disclose the extent of his or her interest prior to the formation of the contract, and that person's vote, if any, in authorizing, approving, or ratifying the contract may not be counted. Thus, under this remote interest exception, a city or town may enter into a contract with, for example, the full-time employer of a city councilmember who pays that councilmember a fixed salary of $100,000 per year, as long as the councilmember discloses this fact and does not vote on the contract, or if he or she does vote, that vote is not counted. It should be noted, however, that the remote interest exception does not apply if the officer having the remote interest influences or attempts to influence any other officer of the municipality to enter into the contract.

The penalty for violation of the prohibitions contained in ch. 42.23 RCW is that a contract made inviolation of the chapter is void, and any officer violating its provisions shall be liable to the municipality for a penalty in the amount of $300 and forfeiture of office, whether or not the violation was intentional. Although ch. 42.23 RCW does not itself impose criminal penalties for a violation of its provisions, it recognizes, however, that criminal penalties may be derived from other statutes. Obviously, the consequences for a municipal officer for violation of this statute can be severe.

Other Conflict of Interest Prohibitions

There are other conflict of interest issues of which municipal officials should be aware, although they will not be discussed in detail in this article. These include common law conflict of interest, the doctrine of incompatible offices, and the appearance of fairness doctrine.

The Washington Supreme Court in 1909 recognized the common law doctrine "as old as the law itself" that one should not judge his or her own cause. See Smith v. Centralia, 55 Wash. 573, 104 Pac. 797 (1909) (which invalidated an alley vacation, where one of the voting councilmembers was a petitioner for the vacation). Thus, even if the statutory conflict provisions do not apply, one still must consider whether this court-created doctrine would prohibit a particular vote or action.

The doctrine of incompatible offices is one established by common law to the effect that an individual may not hold multiple offices if those offices are incompatible. Incompatibility may exist, for example, where the functions of the two offices are inconsistent or, more generally, where occupation of both offices is detrimental to the public interest. Perhaps the clearest example of incompatibility is where one office is subordinate to another in some aspect of its functions and duties. The result of violation of this doctrine is that the officer must resign from one of the incompatible offices. It should be noted that, for officers of a code city, there is a statutory prohibition against holding any other public office within the municipality. (RCW 35A.12.030.)

The appearance of fairness doctrine also involves, to some extent, conflict of interest issues. This doctrine, which requires that quasi-judicial proceedings must not only be fair but must also appear to be fair, is violated when a decisionmaker in such proceedings has a conflict that can reasonably be perceived to influence his or her vote (whether or not it actually would). An example of a violation of the appearance of fairness doctrine would be in a situation where a planning commission member votes on a proposed rezone which would enhance the value of property owned by the commissioner. In such a situation, the planning commissioner should not vote on the rezone.

The appearance of fairness doctrine as it applies in land use matters is statutorily governed by ch. 42.36 RCW. The statutory doctrine, as does its common law counterpart, also concerns issues beyond those involving a financial conflict of interest, and decisionmakers in land use hearings should familiarize themselves with its provisions.

Conclusion

All municipal officials should be aware of the general parameters of conflict of interest prohibitions,as violation of these prohibitions can have severe consequences. The purpose of this discussion has been to acquaint municipal officials with the general provisions relating to conflicts of interest and it is not intended to be a complete examination of this complex issue. If, as a municipal officer, you are ever in doubt as to whether the conflict of interest laws prohibit a contemplated action, you should consult with your city attorney. Hopefully, the general principles discussed here will call your attention to those situations which merit concern prior to an impermissible conflict of interest being established.

1For the most part, municipal employees' duties do not create conflict of interest situations involving contracts because an employee generally would not have the decisionmaking or supervisory authority which would create a conflict.

Ask MRSC . . .

This column contains summaries of recent inquiries answered by MRSC consultants. The detailed legal analysis has been simplified, however; if a complete copy of the inquiry response is desired, please contact the Center.

BOARD OF ADJUSTMENT--Is it permissible for board of adjustment members to independently visit sites under consideration?

Although there is no specific statutory prohibition on site visits, this practice should be discouraged because it raises due process and basic fairness concerns. Site visits are contrary to the basic concept that members of a quasi-judicial body should base their decision solely on information presented at the hearing on the matter. This helps to ensure a basic sense of fairness to such a proceeding, despite the fact that each board member comes to the proceeding with his or her own unique knowledge and biases.

Site visitations are not specifically prohibited in the codification of the appearance of fairness doctrine in ch. 42.36 RCW. Ex parte communica-tions with opponents or proponents of a particular project (at a project site or otherwise) are, however, prohibited unless the substance of any such com-munication is placed on the record and a public announcement of the content of the communication and of the parties' right to rebut the substance of the communication is made at each hearing involving the particular project. See RCW 42.36.060. Further, a site visit by a quorum of the board (or, in some circumstances, less than a quorum) would constitute a violation of the Open Public Meetings Act, absent the visit taking place in the context of a public meeting.

The most efficient way of providing site information to board members is to have a staff member report on the site, with photographs and diagrams, at a hearing. If the board deems it necessary to make a site visit, it should do so in the course of a public hearing, with opponents and proponents and members of the public entitled and invited to attend. (MRSC Inquiry No. 90-2289)

COUNCIL MEDICAL BENEFITS--Can council establish a medical benefits program for councilmembers and apply it immediately?

No, medical benefits are considered to be "salary." Establishment of a medical benefits program for councilmembers during the councilmembers' current terms of office would violate the constitutional prohibition against receiving a salary increase during the current term of office. (MRSC Inquiry No. 91-0126)

COUNCIL SALARIES--Can a city or town council enact an annual salary increase for its members based on the Consumer Price Index?

Basing a salary increase for councilmembers on the Consumer Price Index does not appear to violate any legal provisions, as long as that salary increase does not apply to the councilmembers' current terms when enacted. (MRSC Inquiry No. 91-0122)

HOLD HARMLESS--Is a hold harmless agreement a guarantee against potential municipal liability?

No. It is not possible to say with absolute certainty that the use of a hold harmless agreement will protect a city against all potential liability. The effect of a hold harmless agreement might ultimately need to be decided by the courts, which would likely look at all the facts surrounding the situation, including the position of the individual who signs the hold harmless agreement. (MRSC Inquiry No. 88-4059)

HOTEL/MOTEL TAX--What are authorized uses of hotel/motel tax funds?

Municipalities may levy a special excise tax not to exceed two percent on the sale of or charge made for the furnishing of lodging by a hotel, motel, trailer camp, or rooming house.

The uses to which the monies raised by such tax may be put are set out by RCW 67.28.210 (1990 supp.), which includes

". . . paying all or any part of the cost of acquisition, construction, or operating of stadium facilities, convention center facilities, performing arts center facilities, and/or visual arts center facilities or to pay or secure the payment of all poses under this chapter, or to pay for advertising, publicizing, or otherwise distributing such information for the purpose of attracting visitors and encouraging tourist expansion. . . . In addi-tion, such taxes may be used to develop strategies to expand tourism. . . ."

Also, any city may use the proceeds of such taxes for the refurbishing and operation of a steam railway for tourist promotion purposes. Finally, an allowable use with limited applicability authorizes any city within a county which borders upon Grays Harbor to use the proceeds for construction and maintenance of a movable tall ships tourist attraction in cooperation with a tall ships restoration society.

Accordingly, the above-mentioned purposes are the only allowable uses for the two percent hotel/motel tax. The State Department of Revenue is required to collect the hotel/motel tax on behalf of any city or county without charge. The two percent excise is not an additional tax to the taxpayer. It is a credit against the state sales and use tax of 6.5 percent so that, where the local hotel/motel tax is in effect, the state proceeds are reduced to 4.5 percent with the remaining two percent going to the locality where the taxable event of transient lodging takes place. (MRSC Inquiry No. 91-0346)

INITIATIVE AND REFERENDUM--How many cities have initiative and referendum powers?

Of the 268 municipalities in Washington, only first class and optional municipal code cites have powers of initiative and referendum. All ten first class cities have these powers.

There are currently 146 code cites and, of those, 18 are known to have adopted the powers of initiative and referendum. The 84 fourth class and 26 third class municipalities do not have the authority to adopt powers of initiative and referendum.

There are two unclassified municipalities operating under territorial charters which do not have thesepowers.

Thus there are 28 cities in Washington that have the powers of initiative and referendum. (MRSC Inquiry No. 91-0238)

JUNK VEHICLES--How can a city regulate abandoned or junked motor vehicles?

The state statutes relating to abandoned and junk motor vehicles were significantly amended in 1985. RCW 46.55.240 specifically provides that a city may adopt an ordinance establishing procedures for the abatement and removal as a public nuisance of unauthorized junk motor vehicles or parts from private property. Costs of the removal may be assessed against the last registered owner of the vehicle or the cost may be assessed against the owner of the property on which the vehicle is being stored. We caution that RCW 46.55.240(3) contains some notice and hearing conditions that must be included in an ordinance relating to the abatement of junk motor vehicles as a nuisance.

One problem that may not be clearly addressed in the state statutes relates to a situation where the owner of the junk motor vehicles is also the owner of the property on which they are being stored. The Center has samples of ordinances which provide definitions which indicate that the abatement procedures do apply to situations where the owner of the junk motor vehicle is also the owner of the private property on which they are being stored. (MRSC Inquiry No. 91-0353)

PESTICIDES--Who regulates the spraying of pesticides?

The regulation of pesticide spraying is primarily regulated by the state through the Department of Agriculture. The federal law governing pesticides, the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), expressly permits the state to regulate the use of federally registered pesticides, "but only if and to the extent the regulation does not permit any sale or use prohibited by" FIFRA. With respect to state regulation, we invite attention to the Washington Pesticide Application Act (ch. 17.21 RCW), the Washington Pesticide Control Act (ch. 15.58 RCW), and ch. 16-228 WAC pertaining to pesticide regulations. A city or town having questions regarding pesticide spraying may contact the State Department of Agriculture in Olympia at (206) 753-5063.

A city or town, however, appears to be severely restricted in its ability to regulate the use of pesticides. A recent federal court of appeals case held that a municipal ordinance that regulates pesticides or their use is impliedly preempted by FIFRA. The ordinance in question, which was struck down by the court, prohibited aerial spraying of pesticides and limited the land area that could be sprayed. (MRSC Inquiry No. 0585)

REAL ESTATE EXCISE TAX--Can a city or town which is in a county mandated to plan or which chooses to plan under the Growth Management Act impose the additional one-quarter of one percent real estate excise tax authorized under that Act now?

Yes. Cities or towns within counties that are mandated to plan under the Growth Management Act are authorized to impose a real estate tax at a rate not exceeding one-quarter of one percent of theselling price, in addition to the excise tax already authorized in RCW 82.46.010. Those cities and towns in counties which choose to plan under the Act may also impose this additional tax, but only after approval by the voters. The revenues from this additional tax must be used "solely for financing capital projects specified in a capital facilities plan element of a comprehensive plan."

A city or town that is authorized to impose this additional tax may do so now even if at present it does not have in place a capital facilities plan element of a comprehensive plan. The city may not, however, spend such revenues, which are to be deposited in a separate account, until a capital facilities plan element is in place. (MRSC Inquiry No. 91-0359)

RECYCLING--Can city negotiate with vendor or must bids be called for recycling?

State law provides two alternative procedures for the procurement of recycling services. A city or town under 20,000 population may procure such services pursuant to bid procedures under RCW 35.23.352 or may proceed under RCW 35.21.156, which provides an alternative process for the selection of a vendor for recycling or other solid waste handling services. RCW 35.21.156 sets out a detailed procedure for selection which includes: the solicitation, submission, and evaluation of statements of qualifications or proposals; discussions and interviews with qualified vendors; and negotiation with the best qualified vendor or vendors. (Note: Evidently, a first class city or a code city with a population greater than 20,000 may negotiate directly with a vendor, because the bid provisions of RCW 35.22.620 do not apply to the procurement of services and because the selection procedures of RCW 35.21.156 are optional.) (MRSC Inquiry No. 90-1921)

RENTING PUBLIC FACILITIES--How do some cities limit their liability when renting public facilities for private parties?

Many cities, such as Bellingham, Issaquah, and Kent, include a statement similar to the following in their rental agreements:

The undersigned agrees to . . . and to save the City harmless for all liability, accident, injury or loss of property resulting from such use of said facility.

Port Angeles Ordinance No. 2405 added a provision to the municipal code to include the requirement that applicants seeking a permit to use the Vern Burton Memorial Community Center for a special event with significant potential liability, as determined by the director, the risk manager, and the city attorney, shall furnish evidence of liability insurance of not less than $300,000 bodily injury per person and $100,000 property damage per incident, covering any bodily injury or property damage arising out of, or in any way connected with, the use of the city facility by the applicants; except claims for damages or personal injuries solely and proximately caused by the city's negligence in maintaining the facility. (MRSC Inquiry No. 91-0341)

TRAFFIC SIGN--What does the sign "WHEN CHILDREN ARE PRESENT" mean when placed beneath a school speed limit sign?

WAC 468-95-060 states: "The supplemental or lower panel of a "SCHOOL SPEED LIMIT 20" signwhich reads "WHEN CHILDREN ARE PRESENT" shall indicate to the motorist that the 20-mile per hour school speed limit is in force under the following conditions:

- School children occupying or walking within the marked crosswalk.

- School children are waiting at the curb or on the shoulder of the roadway and are about to cross the road by way of the marked crosswalk.

- School children are present or walking along the roadway, either on the adjacent sidewalk or, in the absence of sidewalks, on the shoulder within the posted school speed limit zone which extends 300 feet in either direction from the marked crosswalk. MRSC Inquiry No. 89-1739)

ZONING--Has the state preempted zoning for adult homes located within cities?

The state has preempted this area to some extent. The definition of adult family homes is contained in Ch. 70.128 RCW. An adult family home is defined in state law as the regular family abode of a person who is providing personal care and board to more than one but not more than four adults who are not related by blood or marriage to the person providing the service, except that a maximum of six adults may be permitted if the home is of adequate size and meets other standards. The statute states that an adult family home shall be considered a residential use of property for zoning purposes. It requires that adult family homes be a permitted use in all areas zoned for residential or commercial purposes. If a city has a facility which does constitute an adult family home as defined in the state statute, then the state requires that it be allowed as a permitted use in all areas zoned for residential or commercial purposes. MRSC Inquiry No. 91-0706)

Correction . . .

The December 1990 Municipal Research News contained an error on page 5 in the discussion of MRSC Inquiry No. 90-3786, concerning whether a tape recording of a council meeting is subject to public disclosure. The response to this inquiry should read that such a tape "would be a public record that is subject to disclosure." the underlined word "not" was inadvertently inserted in this statement. Although the rest of the discussion of this inquiry did indicate that such a record is to be disclosed, we hope no confusion resulted from this error.-

New MRSC Publications

  • Annexation Handbook

  • Model Traffic Ordinance

  • AWC/MRSC Publications & Resources Directory - 1991 (Available from AWC)

The Center's publications are distributed to all cities and towns without charge.

Gambling Tax

State Supreme Court Upholds City's Gambling Tax Ordinance in Important Decision . . . A Case Summary

The city of Walla Walla has won an important decision regarding use of gambling tax proceeds under the state gambling laws. This case has favorable implications for all cities which impose a gambling tax.

The case involved a proprietor of a facility where gambling was conducted who brought suit against the city alleging that the city's gambling tax was illegal. The proprietor argued that the city did not use the proceeds "primarily" for gambling law enforcement, as required by the state statute. The state supreme court upheld the constitutionality of the gambling tax imposed by the city and included some very favorable language for cities in the decision.

The court recognized that the state statute which relates to the gambling tax does require any city or town which collects the tax on gambling activities to utilize the revenue "primarily" for the purpose of enforcement of the gambling laws. However, the court interpreted the term "primarily" as utilized in this statute to mean only that any such revenue collected must first be used for gambling law enforcement purposes to the extent necessary in that city. If only five percent if such tax revenue is needed for gambling enforcement, then that is all that must be so utilized by that particular city. The court indicated that the term "primarily" does not mean that most or a substantial amount of the gambling tax revenue must be used to directly enforce gambling laws in all circumstances.

The court also indicated that enforcement does not necessarily encompass only that police activity which can be specifically related to enforcement of gambling laws. The court indicated that the general police presence in the community helps to inhibit those who might contemplate engaging in illegal gambling. The city of Walla Walla placed the revenues from the gambling tax in the general police budget, although they did not specifically trace the gambling tax revenues beyond such an allocation. The court upheld this use of the gambling tax funds and indicated that the general presence and continuous activity of police within a community helped to deter illegal gambling and so is a valid utilization of the gambling tax funds.

This case reduces the burden on municipalities of accounting for gambling tax revenues and reduces concerns about how such revenues must be utilized.

If gambling tax revenues are placed in the police budget and used for general police purposes, that appears to satisfy the statutory requirements.

The case citation for this decision is American Legion Post No. 32 v. City of Walla Walla, 116 Wn.2d 1 (1991).

Cable Franchising & Access Channels

by Ann Suter, Program Director
CABLEARN Channel 27
University of Washington

Public access considerations for cities and towns negotiating cable television franchises.

Many local governments provide nonexclusive franchises allowing cable companies the rights to use public rights-of-way and street poles to string or bury cable wiring. Many of these franchise agreements additionally stipulate how the cable company may operate within its jurisdiction including, but not limited to, consumer protection, wiring timetables, channel capacity, and signal quality specifications. While there have been ongoing legal disputes between the cable companies and local jurisdictions, and Congress has been investigating the controls or regulation that local governments should have, one provision has been kept intact - the right of a local government to include the provision of one or more public, educational and government (PEG) channels.

Under the 1984 Cable Act (Public Law 98-549), "A franchising authority may establish requirements in a franchise with respect to the designation or use of channel capacity for public, educational, or governmental use. . ." 47 USC 531 (Sections 611.(a)(b)(c)(d)(e) and (f). These sections further stipulate that "A franchising authority may in its request for proposals require as part of a franchise, and may require as part of a cable operator's proposal for a franchise renewal, subject to section 626, that channel capacity be designated for public, educational, or governmental use, and channel capacity on institutional networks be designated for educational or governmental use, and may require rules and procedures for the use of the channel capacity designated pursuant to this section."

This Federal rulemaking means that a local governing body can require that a cable company, as part of its terms for the franchise or franchise renewal, provide one or more channels dedicated for use by the educational community, the local government, or the general public at large. In fact, many such agreements also call for the cable company to provide television production equipment, facilities, and staff to support the development of programming for these channels.

While this, of course, costs the cable companies money, the rationale behind it holds that the cable companies are using public streets, usually at no expense, to carry on their profit-making business. These channel requirements allow for local voices to be heard by and other programming services to be provided to the local consumer who is paying for the cable service.

In addition, many communities also require cable companies to provide free cable drops and monthly service to public buildings and schools and, in some communities, also negotiate for institutional networks, which allow for video carriage to selected buildings only.

Local governments who are entering into cable franchising or renewal negotiations should seek the services of specialists in the area of cable in order to take advantage of the provisions available underFederal Law. The legal and technical requirements for cable franchises generally necessitate the use of consultants to help a community plan for use of public, educational and government (PEG) channels and carry out negotiations with the cable company.

For more information on PEG channels, contact NATOA, the National Association of Telecommuni-cations Officers and Advisors, at 1301 Pennsylvania Avenue NW, Washington, D.C. 20002; telephone (202) 626-3000. Ms. Sutter can be reached at (206) 543-2927, or CABLELEARN Channel 27, University of Washington, DG-10, Seattle, WA 98195.

View Protection Ordinances

Most Pacific Northwest residents would consider themselves fortunate to have an unobstructed view of the Cascades, the Olympics, or the Puget Sound from their home or office window. For many, just having a view of a nearby stand of trees or a neighborhood park is something to treasure.

One of the worst fears of most such property owners is that someone will build a new home or office building in front of their property, changing their wonderful view of the Cascades to a not so wonderful view of their new neighbor's roof or back wall. In many instances, a high fence, a row of hedges, trees, or other vegetation can have similar degrading effects on views.

For those who live in a planned development governed by private covenants that run with the property, the potential for losing their view will be somewhat lower. Private covenants may, for example, establish limitations on building heights, vegetation, or utility line placement. If a conflict does arise, the parties will at least have some legal recourse to settle their dispute.

In other cases a disgruntled property owner whose view is about to be obliterated may decide to bring the issue before the city council or planning commission. This scenario probably explains the origins of the view protection issue in more than a few cities. The question then arises: what can the city do to protect property owners' views?

Although several Washington cities have enacted various types of view protection regulations, it has not been clearly established in this state whether view protection alone is sufficient to support regulations limiting the height of buildings, trees, or similar view obstructions. The legal uncertainty in this area centers primarily on the question of whether, and to what extent, aesthetic considerations are an appropriate justification for land use ordinances. The general rule at the present time appears to be that while a restriction on the use of property may not be based upon aesthetic considerations alone, such considerations may be taken into account where other elements of public health, safety or welfare are also present.

MRSC has collected a number of view protectection ordinances from Washington cities and from cities in other states which are listed below.

The Center's Library also has additional background information on this subject, including a comprehensive report by the Tacoma Planning Department, View Sensitive Area Study (1988), which discusses various alternatives for protecting views in certain "view sensitive" areas of the city; Adjacent Lands Guidance, Washington State Department of Ecology, April 1982, pp. 43-48, Aesthetics and View Protection; and a Des Moines memorandum dated March 21, 1989 from the council's Building Height Ad Hoc Committee making recommendations on building height regulations and view protection.

Sample Ordinance Provisions

    Chapter 20.10, Edmonds Community Development Code - Design review criteria includes consideration of view blockage of surrounding properties.

    Section 15.08.060, Kent Municipal Code - Regulates the height and location of buildings on hillsides to protect views of adjacent properties.

    Lynnwood Ordinance No. 1582 - Regulates the height of fences to protect neighboring properties' views.

    Sections 18.06.020 and .030, Olympia Municipal Code - Establishing special height districts to protect public views of the state capitol group and establishing "Budd Inlet" height district to minimize view obstructions.

    Seattle Shoreline Master Program Provisions regarding "View Corridors" - Regulates developments other than single-family residences in certain areas adjacent to the downtown waterfront to preserve and enhance views of Elliot Bay and the Olympic Mountains.

    Section 11.19.260, Spokane Municipal Code - Establishing height overlay districts to control building heights under special circumstances including preservation of public views.

    Tacoma Ordinance Nos. 24364 and 24429 - Relating to "view-sensitive overlay zoning district" and limiting building heights to 25 feet in residential zones.

    Tacoma Ordinance No. 24710 - Establishing a procedure to control the pruning or removal of vegetation growing on public property to preserve views.

    Compilation of Ordinances from APA Planning Advisory Service entitled "Zoning Provisions for Scenic View Protection" - Contains view protection ordinances from cities in other states.

Washington News Clips

This column reports on activities of Washington's cities and towns that are of general interest. Most of this issue's news items have been excerpted from newspaper clippings. It is hoped that you will provide new items for the next issue.

  • Bridgeport has a Secret Witness program which is considered to have been effective in reducing crime. The plan was started two years ago in an effort to discourage growing vandalism to city businesses, parks, as well as to discourage burglaries. The program allows persons to anonymously come forward with information relating to a felony crime within the corporate limits. If the information leads to an arrest the individual(s) is paid $100 from a fund originally set up the City Chamber of Commerce. Any act against city owned property warrants an award of an additional $50.00 Brewster Quad City Herald, 12-27-90.

  • Everett has adopted an "Interim Water Conservation Program." The program was adopted by the city council on January 30, 1991. The adopting resolution, Resolution No. 3427, directs the preparation of a long-range conservation plan which the city intends to have completed by June 1992. A copy of the Interim Water Conservation Program is available for loan from the Center's library.

  • Kirkland has been powering several of its vehicles with compressed natural gas (CNG). Since 1983, 13 squad cars have been converted to CNG systems and the city plans to install them in 15 more vehicles this year. Daily Journal of Commerce, 2-8-91.

  • Mercer Island has exceeded the goal set by King County for county residents to recycle half their household and yard wastes by 1995. The city is currently recycling as much as 55 percent of its waste from residences and businesses. Seattle Times, 2-25-91.

  • The Richland City Council sponsored a competition to create a new logo for the city. City officials wanted a new image representing its trust to diversify the Economy and reduce the emphasis on its ties to Hanford. Tri City Herald, 1-14-91.

  • Seattle is using a credit collection agency, Continental Credit Service, to collect from parking scofflaws. The company won a two-year contract from the City of Seattle in January to help recoup $6 million in unpaid parking tickets and fines. Journal American, 2-28-91.

  • While looking at some historical material a clipping was found relating to early recycling efforts in Bellingham. An announcement appeared in the local newspaper for a campaign to collect old magazines, old books, catalogues, etc. by the manager of the General Waste Paper Company of Seattle. Saturday, October 4, 1919 was designated "Waste Paper Day." We note, however, that the recycling of this era appeared to be focused on fire protection rather than resource conservation. A follow-up clipping reported that thirty tons of paper were gathered at three fire departments.

The Center for Urban Water Resources Management

The Center for Urban Water Resources Management has been established at the University of Washington to promote proper management of urban water resources. The Center is supported bya Centennial Clean Water Fund grant from the Washington State Department of Ecology. The initial thrust of the Center is toward the solution of stormwater related problems through the collection and dissemination of information; the conducting of applied research; and the offering of technical training. MRSC has been advised that the services and training seminars will be available to all involved in stormwater management.

To request a brochure describing how you can participate in the Center and receive its benefits, contact the Center for Urban Water Resources Management at (206) 543-2574.

New Acquisitions

Items may be borrowed for a two-week period.

Resource Sharing

The following items have recently been provided by the Center by our cities and towns. We appreciate your cooperation in furnishing documents and other items which might be of interest to city and town officials. From time to time, Center staff members send out letters or call to request items needed to respond to an inquiry. More recently, the Center's library staff has started to use postcards to request items of interest from you. Remember . . . reinventing the wheel is not cost effective--but sharing information is!

General Administrative Manuals

  • Issaquah Administrative Manual.

  • The Purchasing Cookbook: Purchasing Handbook, City of Bellevue, Department of Finance,1990. 117p.

Police Department Policy Manuals

  • Renton Police Department General Orders Manual effective February 1, 1991.

  • Policies and Procedures, Tukwila Police Department.

  • Issaquah Police Department S.O.P. Manual.

Public Works

  • City of Bellevue Capital Improvement Program Plan: 1991-1996. 559 p.

  • Comprehensive Sanitary Sewerage Plan for City of Marysville, prepared by Hammond, Collier & Wade - Livingston Associates, October 1990.

Other Items

  • Capital Facilities Planning: A Tactical Approach, by Joseph H. Brevard. Washington, D.C.: APA Planners Press, 1985. 408 p.

  • Hillside Building: Design and Construction, by Arthur H. Levin. Santa Monica, California: Arts + Architecture Press, 1991. 172 p.

  • Mastering Change: Winning Strategies for Effective City Planning, by Bruce W. McClendon and Ray Quay. Washington, D.C.: Planners Press, 1988. 282 p.

  • Paying for Progress: Perspectives on Financing Environmental Protection. Ellen Fahey, Editor. Washington, D.C.: U.S. Environmental Protection Agency, 1990. 86 p.