Ordinance 34860006.90000
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ORDINANCE NO. 3486
AN ORDINANCE OF THE CITY OF EDMONDS,
WASHINGTON, AMENDING ECC SECTIONS 5.05.030 AND
5.05.127.1 RELATING TO THE SPAYING AND NEUTERING
OF ANIMALS, AND FIXING A TIME WHEN THE SAME
SHALL BECOME EFFECTIVE.
WHEREAS, certain provisions of the animal control ordinance of the City of
Edmonds were adopted by the Edmonds City Council in response to an initiative petition; and
WHEREAS, normally the provisions of an initiative must be enacted by a Council
without amendment and may not thereafter be amended except by a vote of the people; and
WHEREAS, initiative powers are limited under Washington State law and may
only exercise powers delegated to the City in its corporate capacity in a broad and general
manner, and may not exercise powers specifically delegated to the City Council, particularly
regarding budgetary and other similar specific powers of the City Council; and
WHEREAS, the initiative enacted by the City Council contained language
detailing fees to be charged by the City, and such provisions are not appropriate exercises of the
initiative power, and
WHEREAS, the City Council reserves to itself the sole power to exercise decision
making authority relating to the budget and therefore has enacted this amendment in order to
avoid a gift'of public funds due to the enhancement in value of an adopted pet, and to provide for
a balancing of revenue and expenditure with respect to spaying and neutering of animals; NOW,
THEREFORE,
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THE CITY COUNCIL OF THE CITY OF EDMONDS, WASHINGTON, DO
ORDAIN AS FOLLOWS:
Section 1. The Edmonds City Code 5.05.030 Fees authorized is hereby amended
to read as follows:
5.05.030 Fees authorized.
A. In addition to the cost of publication of any notices required
by this chapter, prior to the release of animals, animals in the
custody of the animal control authority or its agents, to the
registered owners of said animals, the animal control authority
shall charge fees under this chapter as follows:
1. Impound:
2. Impound and room fees
3. All other services:
$20
$15 /day for the first 72 hrs.
of custody (or the actual
cost incurred, whichever is
greater)
Cost incurred
B. Prior to the adoption of animals in the custody of the
animal control authority or its agent, the animal control authority
shall charge fees under this section as follows:
1. Veterinary exam and
spay /neuter fees for male
or female canines or felines
which have not been spayed
or neutered:
2. Adoption administration
fee:
$50 [deposit only, shall be
refundable as provided in
ECC 5.05.127.1(B)]
$15
C. In addition, the contracted animal shelter provider shall be
entitled to collect a reasonable room and board fee.
Section 2. The Edmonds City Code Section 5.05.127.1 ' Spay or neuter of owner-
surrendered and stray animals required is hereby amended to read as follows:
5.05.127.1 Spay or neuter of owner - surrendered and stray
animals required.
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A. Stray dogs and cats at least two months of age from the
city's animal control service area that are placed at and retained by
the city designated shelter, and dogs and cats owned by citizens
residing within the City's animal control service area that are
surrendered at the city's designated shelter, shall be spayed or
neutered, and verification of said surgery shall be provided before
animals are adopted. Provided, however, that any animal which
has not been spayed or neutered, and which is currently licensed
pursuant to ECC 5.05.020 or 5.05.025 shall not be subject to be
spayed or neutered until the notification period of ten (10) days
established by ECC 5.05.126(D) has expired.
B. The city's designated veterinarian(s) shall determine if said
animals are appropriate candidates for surgery. Dogs and cats
determined by the city's designated veterinarian to be permanently
inappropriate candidates for surgery may be adopted without
surgery. Dogs and cats at least two months of age who are
determined to be temporarily inappropriate candidates for surgery,
and dogs and cats under two months of age, may be adopted
without surgery, providing that a $50.00 deposit shall be collected
from the adopter. Said deposit shall be returned to the adopter
upon receipt of written verification that the animal has been spayed
or neutered within six months of adoption. If the spay or neuter
surgery is performed by a city designated veterinarian, the basic
surgical costs will be paid by the city as outlined in ECC
5.05.127.2. If the animal is determined to be a permanently
inappropriate surgical candidate the surgery will not be required.
In such cases the deposit shall be returned to the adopter upon
written verification by a veterinarian of the animal's inappropriate
surgical candidacy. Failure to have the animal spayed or neutered
within the specified time period will result in the forfeiture of the
deposit and the deposit shall be placed in the city of Edmonds'
animal benefit fund.
C. Dogs or cats which have been spayed or neutered at city
expense shall be subject to a fee of $50 as provided in ECC 5.05.
This fee, unlike the deposit provided for in Section B above, shall
not be refundable.
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Section 3. Effective Date. This ordinance, being an exercise of a power specifi-
cally delegated to the City legislative body, is not subject to referendum, and shall take effect
five (5) days after passage and publication of an approved summary thereof consisting of the
title.
ATTEST /AUTHENTICATED :
,A� jZ ems,
CITY CLERK, SANDRA S. CHASE
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY:
APPROVED:
MAYOX GAR AAKENSON
Declined — refer to memorandum dated 01/23/2004 (attached)
W. SCOTT SNYDER
FILED WITH THE CITY CLERK: 01/23/2004
PASSED BY THE CITY COUNCIL: 01/27/2004
PUBLISHED: 02/01/2004
EFFECTIVE DATE: 02/06/2004
ORDINANCE NO. 3486
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SUMMARY OF ORDINANCE NO. 3486
of the City of Edmonds, Washington
On the 27th day of January, 2004, the City Council of the City of Edmonds,
passed Ordinance No. 3486. A summary of the content of said ordinance, consisting of the title,
provides as follows:
AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, AMENDING ECC
SECTIONS 5.05.030 AND 5.05.127.1 RELATING TO THE SPAYING AND NEUTERING OF
ANIMALS, AND FIXING A TIME WHEN THE SAME SHALL BECOME EFFECTIVE.
The full text of this Ordinance will be mailed upon request.
DATED this 28th day of January, 2004.
CITY CLERK, SANDRA S. CHASE
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DEN
I rXWE TY
P. L. L. C.
A T T O R N E Y S AT L A W
MEMORANDUM
DATE: January 23, 2004
TO: City Councilmembers
City of Edmonds
FROM: W. Scott Snyder, Office of the City Attorney
RE: Exercise of Initiative Powers - Limitations on the Use of the Power and
Limitations on the Ability of the Council to Amend an Initiative Measure
The initiative power is not generally available to citizens regarding local matters. In order for
the initiative power to be extended on a city -wide basis, it must be authorized either through a
petition/election method or by ordinance by the City Council. In 1985, the City Council adopted
Ordinance 2516 which adopted the initiative and referendum procedures set out in RCW
35A.11.080 through 100.
The purpose of this memo is to review for new councilmembers previous advice regarding
limitations both on the use of the initiative and on the City Council's ability to act with respect to
the initiative.
Limits On The Use Of The Initiative Powers
There are two important restrictions on the ability of citizens to initiate legislation within the
City. First, the action taken must be "legislative" in nature as opposed to "administrative."
Second, the voters may not exercise powers which are specifically granted to the "legislative
authority" -- in this case the City Council. Lince v. City of Bremerton, 25 Wash. App. 309, 311
607 P.2d 329 (1980), citing Leonard v. Bothell, 87 Wn.2d 847. The Washington courts have
consistently used the following test to determine whether an act is legislative in nature:
Actions relating to subjects of a permanent and general character
are usually regarded as legislative, and those providing for subjects
of a temporary and special character are regarded as
administrative ... The test of what is a legislative and what is an
administrative proposition, with respect to the initiative or
referendum, has further been said to be whether the proposition is
one to make new law or to execute law already in existence. The
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City Councilmembers
City of Edmonds
January 23, 2004
Page 2
power to be exercised is legislative in its nature if it prescribes a
new policy or plan;
Whereas, it is administrative in its nature if it merely pursues a
plan already adopted by the legislative body itself or some power
superior to it.
Leonard, 87 Wn.2d at 850.
The Washington courts have consistently applied this test to determine whether a given initiative
or referendum is outside the scope of the initiative power, and frequently the result has been to
invalidate an initiative or referendum. For example:
1. Limitation of a city's continued support of construction of the I -90 project across Lake
Washington was invalid; Seattle Building Council, 94 Wn.2d 740.
2. Initiative to prevent further funding of the Kingdom project was held administrative and
therefore not a proper subject of an initiative; Ruano, 81 Wn.2d 820.
3. Ordinance changing the name of the street was administrative in nature and not subject to
referendum; Heider v. City of Seattle, 100 Wn.2d 874 (1984). and
4. Requiring a public vote for issuance of Convention Center bonds was administrative, not
a legislative function of the City when the bonds continued a previously adopted policy
regarding the Convention Center.
These cases should be contrasted with situations in which the initiative or referendum powers
have been upheld:
1. Ordinance imposing a general B &O tax was legislative. Citizens For Financially
Responsible Government v. City of Spokane, 99 Wn.2d 339 (1983); and
2. Change from lever voting to punchcards was legislative and subject to referendum when
it was a policy decision affecting a permanent change; Ballasiotes v. Gardner, 97 Wn.2d 191
(1982).
A second basis for overturning an initiative is an attempted exercise of powers specifically
delegated to the legislative body. Matters which affect the budget are peculiarly constrained by
the provisions of State statute. The City's budgetary process is established by Chapter 35A.33
RCW and imposes a. specific set of obligations and responsibilities on the City Council, and
constitutes powers to be exercised only by the City Council.
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City Councilmembers
City of Edmonds
January 23, 2004
Page 3
Applying these two principles to the initiative, the general purpose of the initiative is one which
is subject to the initiative power. The requirement that stray dogs or cats be spayed or neutered,
particularly those which are feral or have been abandoned, is a broad policy decision of the
legislative nature and was intended to be permanent. The administrative details, however,
contained in the initiative, are clearly outside of the initiative process. How and when a dog will
be spayed, the method for collecting and administering a fee program are all clearly
administrative in nature, particularly when they amend an existing City code which is equally
detailed and which implements certain requirements contained in State statute. Further, the
imposition of fees and the setting of fees are temporary in nature -- the City typically changes its
fees on an annual basis. Finally, these provisions are suspect because they impinge on the City
Council's budgetary authority.
Limitations On the Council's Ability to Respond
The initiative process is dictated by State statute. RCW 35A.11.080, et seg. When the City
Council is presented with a petition which has been certified with sufficient signatures, it has
only two options. It may enact the initiative ordinance as presented, or it may place it on the
ballot at the next available election date. When the City Council received the initiative petition
regarding the spaying and neutering of stray animals, it is faced not only with a budget shortage
but also the statutory obligation to place it on a special election ballot. Rather than incur election
costs of tens of thousands of dollars, the City Council chose to enact the ordinance itself. The
difficulty, as was pointed out at the time, is that there is no specific provision authorizing the
City Council to amend an initiative in the State statutory procedures regarding initiative and
referendum at a local level. The State constitutional provision which authorizes initiative at a
State wide level was specifically amended by a constitutional amendment to authorize the State
Legislature to repeal or amend initiatives two years after its vote. Washington State Constitution,
Article II, Section 1 and Section 45. No similar authority has been extended to local
governments by the State Legislature. State statute does, however, permit cities which have
adopted the initiative and referendum to provide that the "exercise of such powers may be
restricted or abandoned" by following the election procedures set forth for a change in
abandoning a plan of government. See RCW 35A.11.080 and RCW 35A.06.030, et M.
The City Council is in a difficult position. The only options authorized by State statute for the
City Council would be to place the initiative on the ballot for amendment or repeal or to place a
matter on the ballot to impose "restrictions" on the initiative and referendum powers. For
example, you could place a matter on the ballot which restricted the initiative powers by
permitting the City Council to amend initiative ordinances after a period of time and to amend
initiatives to delete provisions outside the initiative power. Absent that action, the only way to
remove provisions from the initiative legally would be through a declaratory judgment action in
superior court to have portions of the initiative declared invalid.
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City Councilmembers
City of Edmonds
January 23, 2004
Page 4
In sum, portions of the initiative are flawed. The City Council, however, lacks the statutory
authority to amend matters enacted by initiative -- in this case brought forward as an the
initiative but enacted by the Council. The City Council could seek to individually invalidate a
portion of the initiative. The City Council could also place the issue on the ballot, either directly
by amendment or repeal of the initiative, or indirectly by amending the initiative process in the
City.
The ordinance as presented to the City Council presents a common sense but extra legal
approach. That is, the Council is amending provisions of the initiative which were clearly
administrative in nature and beyond the power of the public to initiate. If the Council's actions
were challenged, you could couple your defense with a counterclaim asking the court to
invalidate those portions of the initiative. As noted, this is a common sense approach, but such a
City Council action is not specifically authorized by State statute.
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Affidavit of Publication
STATE OF WASHINGTON, } S.S.
COUNTY OF SNOHOMISH
SUMMARY—OF _OA D1 NAN CEJNO.-3486
of the City of Edmonds, Washington
On the 27th day of January, 2004, the City Council of the
The undersigned, being first duly sworn on oath deposes and says that she is Principal Clerk
City of Edmonds, passed Ordinance No. 3486. A summary of
of THE HERALD, a daily newspaper printed and published in the City of Everett, County of
tfie content of said ordinance, consisting of the title, provides '
as follows:
Snohomish, and State of Washington; that said newspaper is a newspaper of general
AN ORDINANCE OF THE CITY OF EDMONDS, WASHING-
TON, AMENDING ECC SECTIONS 5.05.030 AND
circulation in said County and State; that said newspaper has been approved as a legal
5.05.127.1 RELATING TO THE SPAYING AND NEUTER- I
newspaper by order of the Superior Court of Snohomish County and that the notice
ING OF ANIMALS AND FIXING A TIME WHEN THE SAME
LFFECTIVE.
SHALL BECOME
The full text of this Ordinance will be mailed upon request.
City of Edmonds
y
-DATED this 28th day of January, 2004.
CITY CLERK, SANDRA S. CHASE
Published : February 1, 2004. �
Summary
S of Ordinance No. 3486
y
RECEIVED
FEB 12 2004
EDMONDS CITY CLERK
a printed copy of which is hereunto attached, was published in said newspaper proper and not
in supplement form, in the regular and entire edition of said paper on the following days and
times, namely:
February 01, 2004
and that said newspaper was regularly distributed to its subscribers during all of said period.
Subscribed and sworn to before me this
day of
Notary Public in and for the State of
County.
2nd
f S'j, '•. 3.29. p� C
rt'`+Ci10F WASN��.
Account Name: City of Edmonds Account Number: 101416 Order Number: 0001129792