Planning board struggles with critical area exemptions

By RICHARD HANNERS/Whitefish Pilot

"It depends on what the meaning of the word 'is' is," President Bill Clinton was famously quoted during his 1998 grand jury testimony on the Monica Lewinsky affair.

The Whitefish City-County Planning Board never quite got that far during a work session on the critical areas ordinance Oct. 18, but they had a lot of trouble with the word "reasonable."

Focus of the discussion was the draft ordinance's provision of a reasonable-use exemption (RUE) to ease restrictions for certain projects. Objections have been raised about whether a single person should decide what's reasonable, such as the city planning or public works directors, and whether specific criteria should be included in the ordinance to establish what's reasonable.

Planning board member Kerry Crittenden's comment that the board was "nitpicking" and "playing with semantics" helped move the discussion forward. He noted that no matter what words were used, lawyers would come in and argue against those, too.

Whitefish developer Tim Grattan had noted that phenomenon at the start of the workshop when he asked for a peer review of the draft ordinance.

"You don't want it to be a trial lawyers relief act," he said.

Grattan volunteered the services of Whitefish attorney Sean Frampton to work with other professionals to review the draft ordinance.

Grattan also wanted the board to delay voting on the draft ordinance until after newly elected city councilors were seated. He claimed the current council had prejudiced itself with the brochure it mailed out in response to watchdog group Sensible Land Use, which Grattan helps fund.

"They got too personal. Now I'll get personal," he said. "Councilor Nick Palmer calls the ordinance brilliant. They could pass it out of spite."

Grattan said he didn't mind having his name in the city's brochure, but he resented the council using the word "developer" like a four-letter word.

Leslie Marquardt, a local property owner, echoed Grattan's comments, saying she was offended by the city blaming developers for opposing the draft ordinance. She said the ordinance affects property owners, not just developers, and many of them are concerned about the draft ordinance.

"It was more negative than it had to be," she said.

Frampton, who has appeared at many of the critical areas ordinance meetings, told the board that one of the issues that helped him win the Walton case against the city had to do with "when do you get an RUE and what do you get from it?"

He said that in the legal profession, the word "reasonable" leads to many lawsuits, and he continued his call for better criteria to determine when a reasonable-use exemption is granted.

If the Waltons wanted to build one 7,000-square-foot house on three lots instead of three owners building three 5,000-square-foot homes on separate lots, thereby creating less impermeable surface area, was it reasonable to deny the Waltons a permit because of water quality concerns, Frampton asked.

Realtor Greg Carter expressed concern about the draft ordinance limiting reasonable uses to those which are "consistent with similar uses in the same general area, taking into account the most recent construction trends in the general area," as the draft ordinance states.

He cited the example of a person who purchased three small lakeshore lots at Rest Haven for $3 million with plans to build an 8,000-square-foot home. The proposed ordinance would prevent such plans because the area has historically seen smaller homes.

"What gives the city the right to tell them they can't build after spending $3 million?" he asked.

Board member Frank Sweeney, however, noted that a person couldn't purchase three lots in the middle of the city and build whatever they wanted either.

John Lombard, the consultant hired by the city to help draft the ordinance, noted that the ordinance wouldn't be controversial if some people couldn't do what they want to do.

He also noted that the U.S. Supreme Court has used the phrase "reasonable use" to decide land-use cases, but board member Jack Quatman, a Whitefish attorney, wasn't swayed.

"The Supreme Court gets to use the words 'reasonable use' because they're at the top of the food chain," he said. "For one person, cutting down all the trees is reasonable. For another person, building a 12,000-square-foot home is reasonable."

The board eventually reached a consensus to have RUE requests go first to the planning director, where simple ones could be dealt with more easily, and have appeals go to the planning board instead of the board of adjustment.

No action was taken. The planning board will continue looking at the draft critical areas ordinance during a workshop on Nov. 8 and its regular meeting Nov. 15.