A slippery slope

Council stalls on slope issue

By LYNNETTE HINTZE

For the Whitefish Pilot

A group of 20 Whitefish citizens were shut out of discussion about a resolution on steep slopes when the Whitefish City Council abruptly tabled the issue at 12:31 a.m. Tuesday.

Whitefish attorney Sean Frampton, who represented a Whitefish couple in a lawsuit over slope construction, was assured by the council and City Attorney John Phelps that he and others would have a chance to comment on a proposed resolution reaffirming the city’s policy on steep slopes. The resolution was posted at the very end of the agenda, following a closed executive session regarding the slope litigation.

At 11:15 p.m., with 11 agenda items remaining, the council jumped ahead to the executive session, and after more than an hour in seclusion, emerged to table the resolution without any discussion. Frustrated citizens then exited the council chambers.

City Attorney John Phelps said it wasn’t the council’s intention to make the group wait so long.

“They didn’t know until the closed session that tabling would be the result,” he said.

SLOPE CONSTRUCTION emerged as a controversial side effect of a temporary stormwater ordinance passed for critical drainage areas in Whitefish. Part of the ordinance restricted construction on slopes greater than 30 percent, after which William and Theodora Walton sued the city when they were denied a reasonable-use exemption to build on a 45-degree slope.

The jury decided the Waltons’ right to equal protection of the law had been violated because then zoning administrator Bob Horne had granted Grouse Mountain Estates developer Greg Carter reasonable-use exemptions for a dozen lots with slopes up to 40 percent.

At the trial, Carter testified he believed the exemptions granted by Horne would allow building anywhere on the lots.

The city disagreed, maintaining the interim ordinance “does not empower the zoning administrator to grant a reasonable-use exemption allowing construction on slopes exceeding 30 percent” when reasonable flatter building space is available on the lot.

Horne testified at the trial that he believed building permits for the Grouse Mountain lots wouldn’t be granted if construction was proposed on a slope greater than 30 percent if other reasonable buildable space was available on the lot. On Tuesday, Horne noted that the Grouse Mountain Estates plot plans read “OK for RUE (reasonable-use exemption), not “RUE granted.”

THE PROPOSED resolution asks the council to find that the reasonable-use exemptions didn’t authorize construction on slopes over 30 percent on the 12 lots and directs the building department to withhold building permits on the Grouse Mountain lots if construction is proposed on slopes in excess of 30 percent where flatter space is available.

“We disagree completely with the jury verdict, obviously,” Phelps said, adding that the city believes Horne’s explanation is “reasonable, honest and correct.

“The jury didn’t agree,” Phelps added.

Part of the proposed resolution’s intent is to make clear what was granted and to clarify what the city’s position will be on slopes in the future, Phelps said.

“We realize we can’t change the jury verdict,” he said. “And we know what the city intended. The whole thing was an interpretation of what Bob Horne meant when he signed those (reasonable-use exemption) things.”

Frampton, however, contends the resolution essentially disregards the jury decision.

After the council tabled the resolution, Frampton said he believes city officials intentionally tried to avoid discussion on the matter.

“They obviously had a strategy when they came out” of executive session, he said.

The only citizens who spoke on the issue made their comments during the public-comment portion of the council meeting earlier in the evening.

Former council member Erik Garberg said the resolution “sounds like our staff made a mistake and we’re going to correct it.”

Another former council member, Tom Muri, said his interpretation of the resolution was that “basically you’re saying that Bob Horne didn’t understand and apply [the critical areas ordinance], and if Horne could misapply or misunderstand it,” doesn’t that mean it’s “arbitrary and capricious?

“Does a resolution to clarify and correct make the [critical areas] ordinance any better?” Muri asked.

Frampton questioned the motive for the closed session and said it violated state law. Since there is no litigation with Grouse Mountain Estates and the resolution that related to the development appeared on the agenda outside of executive session, the closed-door discussion was out of order.

“When you affect someone’s right, they have a right to participate in the process,” he maintained. “It’s a serious violation in my opinion.”

If the council and city staff were discussing the Walton case, Frampton wondered why their lead attorney on the case, Jim Ramlow, wasn’t part of the discussion. Phelps was a witness during the trial and it would be inappropriate for him to advise the council in his role as city attorney, he added.

Phelps disagreed.

“I’m the city’s attorney at all times,” Phelps said, adding that Ramlow was out of town. “I attended the trial and every step of the litigation, and it’s perfectly appropriate for me to meet with them.”

The council has authorized Phelps to appeal the jury verdict in the Walton case and continue to resist the decision.

The council probably will address the slope resolution at its Aug. 20 meeting, since both Phelps and City Manager Gary Marks will be out of town for the Aug. 6 meeting.