Taking a stance on slopes

Council's resolution affirms city position on Walton case

By RICHARD HANNERS

Whitefish Pilot

The Whitefish City Council approved a resolution Monday night that supports the city's interim critical areas ordinance and clarifies the city's position in the William and Theodora Walton lawsuit.

A version of the controversial resolution was tabled by the city council at its July 16 meeting. City attorney John Phelps said the "city's attorneys have concluded that it would aid in their defense of the Waltons' lawsuit" for the council to adopt the resolution.

The jury in the Waltons' lawsuit determined June 28 that former city planning director Bob Horne had violated the Waltons' right to equal protection by not granting them a reasonable-use exemption (RUE), which would have allowed them to build on slopes steeper than 30 percent, while he granted RUEs to the developer of Grouse Mountain Estates.

When originally platted in 2000, all lots in Grouse Mountain were required to have a 40-by-40-foot building site on land with a less-than-30 percent slope.

But on Feb. 12 this year, the resolution states, Greg Carter, a Realtor representing Grouse Mountain Estates developer Tim Grattan, asked for a clarification on 12 of the lots, and Horne marked "OK for RUE" on topographical maps for each of the lots.

The resolution claims that the developer's request was premature because none of the 12 lots had been sold and no building permits had been requested.

Horne had also acted prematurely, the resolution claims, "since he had not been presented with an actual site plan connected to an actual proposed residential structure, and so was not in a position to evaluate the need, or lack of need, for an RUE."

Furthermore, the resolution claims, Horne "had no power or authority to issue an RUE allowing construction of a residence on slopes exceeding 30 percent as long as there was sufficient land for construction of a residence on land having a slope of 30 percent or less."

If Horne had issued an RUE for the 12 lots, it "would be invalid, and of no force and effect, because it would be in excess of the powers granted to the zoning administrator" by the ordinance, the resolution claims.

Grattan had expressed his concern to the city council on Aug. 6 that the 12 lots could not be sold because they had become entangled in the Walton lawsuit.

"Realtors need to disclose all information about a property," he said. "Nobody will look at them."

By that time, the city's resolution had been tabled for three weeks — prime selling season, he noted. But tabling the resolution did not make it go away, Grattan said.

"It's a cloud hanging over these properties," he said. "The letter and resolution need to be withdrawn or voted down."

Grattan said he helped develop the state's first 30 percent slope rule back in 1972, which is contained in the state's subdivision regulations. He proposed requiring a 40-by-40-foot minimum building site on steep slopes to avoid problems he'd seen in other resort areas.

But the rule is only applied in the planning process, he said, not during actual construction.

"Now I'm being hung by my own rope," Grattan said.

Grattan also noted that when Grouse Mountain Estates was first platted, the intent was to site homes so they stayed off the skyline and were reasonably separated from each other.

Phelps responded to Grattan's comments by informing the council that Whitefish attorney Sean Frampton represented both Grattan and the Waltons, which created an unfair situation. Mayor Andy Feury agreed.

"Frampton is arguing two sides," Feury said at the time. "Granting RUEs for the 12 Grouse Mountain Estates lots is unfair to the Waltons, but not granting them is unfair to Grattan."

On Monday, Phelps stressed that to guarantee equal protection for everyone, as Frampton had argued for in the Walton case, then the city must approve the resolution before them.

"Grattan believes he has something no other lots in Whitefish have," Phelps said. "These 12 lots have greater rights than others."

If the city leaves the situation as it stood, others would ask for similar treatment, Phelps said, and the problem could "mushroom."

The threat of lawsuits was brought up over and over again by members of the public who addressed the council.

Pat Fox, who owns a lot on Iron Horse with a building site approved eight years ago, was concerned his construction plans might be affected because his lot has slopes over 30 percent. He also said the resolution is not in the community's interest because it could generate more lawsuits.

Carter recapped testimony from the Walton trial and noted that he never wanted to testify against the city — he was subpoenaed. He, too, was concerned the resolution would lead to more lawsuits against the city.

"Please, please, be careful," he told the councilors.

Frampton also recapped testimony from the Walton trial. He said the jury disregarded Horne's testimony and believed Carter. He also suggested that the city's resolution was in "retaliation" for the trial's outcome.

Feury encouraged the council to back the resolution. He said most of the complaints voiced that night would disappear once the city's new critical areas ordinance was completed.

But some councilors were unsure about the difference between "building envelopes" and "site plans." The documents Horne approved with the words "OK for RUE" were for building envelopes, but the resolution drafted by Phelps says only a site plan can be used to get an RUE.

Councilor Velvet Phillips-Sullivan reminded other councilors that steep slopes were an issue when Grouse Mountain Estates first came up for preliminary plat.

Councilor Nick Palmer, who cast the only vote against the resolution, was concerned about the interim ordinance's vague language, especially that it didn't refer to building envelopes or site plans.

"I'm worried the city will get another black eye in court," he said, proposing different language for the resolution.