'CAO-lite' and engineered solutions

City looks at ways to exempt platted lots from critical areas ordinance

By RICHARD HANNERS / Whitefish Pilot

Members of the Whitefish City-County Planning Board and the Whitefish City Council met July 7 to discuss ways to exempt existing platted lots and planned-unit developments (PUDs) from the city's new critical areas ordinance.

After batting around issues of fairness, property rights and sticking to the CAO's original intent, the group reached a consensus and directed planning staff to follow up on three options for amending the CAO:

? Allow construction in a platted lot or PUD to proceed without a critical-areas compliance permit so long as building takes place within the approved 40-by-40-foot envelope and according to approved setbacks.

? Create a less stricter version of the CAO for existing lots — nicknamed "CAO-lite." Erosion-control plans would still be required for lots within a certain distance of a lake, stream or other critical area.

? As proposed by councilor Nick Palmer, let builders take a shot at engineering a solution that mitigates any impacts to critical areas. A similar condition exists for properties along Whitefish Lake, which must have an engineered buffer that simulates a 75-foot natural buffer.

"Instead of a choice to build or not to build, let them engineer a solution," Palmer explained.

"I've never heard of anything being engineered cheaply," councilor Ryan Friel noted.

Several planning board members expressed concern about the property rights of owners of existing platted lots.

"If lots have been approved and platted, they should not be stopped," Ken Stein said.

As for how many lots in the city might be affected, "the number of lots should not drive the conclusion," Stein said. "People bought with the assumption they could build within the envelope."

With the CAO "putting a zoning overlay over the entire town," Peggy Sue Amelon asked the councilors if the public should have the right to vote on the issue. And with the high cost of mitigation, couldn't the city provide incentives for property owners who want to protect critical areas but lack the money, she asked.

The Rivers Edge PUD, with 16 lots along the Whitefish River behind the Mountain Mall, was cited as an example of an approved and platted subdivision that runs afoul of the CAO. Each streamside lot would require a reasonable-use exemption from the CAO, and at least one lot was already granted an RUE at no charge because there was no where else to build.

"If RUEs will be granted anyway, then why make city staff do unnecessary work?" city manager Gary Marks asked. "I recommend we exempt approved plats and PUDs."

That sparked a comment from planning board member Ole Netteberg.

"If you've already approved Rivers Edge, then expect many more people to apply," he said. "The cat's out of the bag."

"So do we throw up our hands or try to fit this into the CAO?" councilor Nancy Woodruff asked, saying she supported a "CAO-lite" solution.

Councilor John Muhlfeld agreed.

"To lift the CAO entirely and go 15 years back doesn't cut the mustard with me," he said. "We need to apply the CAO across the board to all lots."

But Muhlfeld was concerned too much attention was being spent on lots that are not near water bodies that could be impacted by erosion.

"We're wasting time on Iron Horse," he said. "We should focus on lakefront properties."

While Woodruff agreed with councilor Turner Askew that property owners should not be required to follow the CAO "as a government exercise," she still wanted the city to apply the CAO.

"But how do we decide who qualifies for 'CAO-lite'?" mayor Mike Jenson asked.

"The fairness issue has me troubled," Askew added.

Woodruff said she was willing to exempt PUDs because they are more carefully planned, "but other lots, I don't know."