What about all those lawsuits?

In a guest opinion a few weeks ago, Eric Payne offered some biting criticism of the Whitefish City Council and its city attorney. He focused primarily on the city's critical areas ordinance and the interlocal agreement with Flathead County that allows the city to make land-use decisions in the two-mile "doughnut."

Much of what Mr. Payne offered were his opinions which, of course, he is entitled to express. Underpinning his opinions, however, was a belief, which he expressed as fact, that the city is losing lawsuits right and left. According to Mr. Payne, the city attorney enters "into legal battles that he can't win" and is "beaten time and time again" by another local attorney.

What about all these land-use lawsuits that the city keeps losing? How many are there? Before counting the lawsuits, let's define what we're talking about. Lawsuits, like ball games, aren't over until they're over. A litigant can win at the district court level, and lose on appeal; or vice versa. To identify a win or loss, you have to wait until the litigation is over.

Of land-use lawsuits against the city that have become final, over the last 10 years, the city has lost exactly — zero. Yes, despite the hoopla that you've all heard, the city has not lost a single land-use lawsuit.

There are six land-use lawsuits that have become final. They are: Jeff Lyon v. Whitefish Board of Adjustment (abandoned in 2001); Peter Tracy v. City of Whitefish (dismissed in 2001); Montana Media, Inc. v. City of Whitefish (dismissed in 2003); Toby Scott v. Whitefish Board of Adjustment (dismissed in 2004); Shelley Germann v. City of Whitefish (dismissed in 2006); Sandy Durko v. City of Whitefish (dismissed in 2007). In all six lawsuits, the city was sued and the plaintiff either dropped the suit or the city prevailed, completely.

But what about all those lawsuits filed against the city over its critical areas ordinances? Well, there is exactly — one. One lawsuit was filed by the Waltons challenging the city's old, and now superseded, critical areas ordinance.

There were 10 theories, or causes of action, in the Waltons' lawsuit. The city prevailed on eight, the Waltons voluntarily dismissed one, and a jury ruled for the Waltons on one. In dismissing eight theories, District Court Judge Ted Lympus ruled that the city's interim critical areas ordinance was lawfully adopted and was enforceable against the Waltons.

A jury later determined that after the ordinance was adopted, a city employee applied it unfairly to the Waltons, resulting in a substantial monetary verdict in their favor. Both sides can appeal, and it will be over when the Supreme Court rules. But that's it. One lawsuit, and one lawsuit only, challenging the critical areas ordinance.

But what of all the other land-use lawsuits pending against the city? There are exactly four; they are all in the very early stages; and they have nothing to do with the critical areas ordinance.

In fact, if you review all six final lawsuits and all five pending lawsuits (including the Waltons' lawsuit), you will find that not one of them yet has found any mistake, misjudgment or misstep on the part of the Whitefish City Council. Not one. Don't take my word for it. Check the court files. They are open to the public.

The city is frequently threatened with land-use lawsuits. For some people, that is the standard way of doing business. The city was threatened with another one this week. But only a fraction of those threats materialize, and when they do, the city has been successful in defending against them.

In summary, in making land-use decisions, the Whitefish City Council has consistently followed the law and has been vindicated by the courts. It has not been beaten "time and time again" in land-use lawsuits.

City councilors are all volunteers, they work very hard, and their job of balancing all the competing development demands and personalities in a growing community is not easy. The community can benefit from a full and fair discussion of different views on the editorial page. But it always helps to have the facts.

John Phelps is the Whitefish city attorney.