Council OK's new donut agreement

Depending on one’s point of view, the

city took a major step forward or backward in resolving the

long-simmering dispute between Whitefish and Flathead County over

the city’s two-mile planning and zoning “doughnut” area.

The Whitefish City Council on Nov. 15

approved a restatement of the 2005 city-county interlocal agreement

that established the city’s jurisdiction in the doughnut. They also

approved a resolution dismissing the city’s lawsuit against the

county for rescinding the agreement in March 2008.

Both measures were passed by a 3-2

vote, with councilors Ryan Friel and John Muhlfeld in opposition,

and mayor Mike Jenson and councilor Bill Kahle absent. As

resolutions, the measures did not require four votes to pass.

Twenty-six people opposed to the draft

agreement spoke during the public hearing. Some expressed concerns

about protecting highway corridors from sprawl and potential

impacts to water quality if the city’s Critical Areas Ordinance is

changed.

The CAO was cited by the county

commissioners when they voted to rescind the interlocal

agreement.

A number of speakers said they don’t

trust the county. Some urged the councilors not to dismiss the

city’s lawsuit, and others called for council support in creating a

community council to represent doughnut residents.

“I request an up-or-down vote on some

self-representation for us doughnut people,” Ben Cavin said.

One speaker, Whitefish attorney Diane

Smith, a council appointee to the joint committee that worked on

drafting a new interlocal agreement, warned the council about the

potential hazards of litigating to success.

“At the end of the day, if Whitefish

loses the lawsuit — and I know of lots of lawyers who say Whitefish

will lose — you’ll have bet the farm on an outcome you can’t

control,” she said.

Frank Sweeney, a Whitefish attorney who

served on the city-county planning board and city council, noted

that approving the new interlocal agreement and a future memorandum

of understanding (MOU) tied to the agreement would not resolve the

lawsuit.

“If you think we’re buying our peace,

we’re not,” he said. “The intervenors have no intention of going

away.”

Whitefish attorney Sean Frampton, who

represents several individuals who gained intervenor status in the

lawsuit, said his clients will not agree to dismissing the lawsuit

because a key portion, Section 13, was removed from the new

interlocal agreement.

The section, which gave the county veto

power over city-initiated regulations that affect property in the

doughnut, provides representation to doughnut residents, Frampton

said. City and county representatives agreed to remove Section 13

during an Oct. 18 joint work session because the lawyers who helped

draft it later decided it was illegal.

In a Nov. 17 letter to county attorney

Peter Steele and city attorney Mary VanBuskirk, Kalispell attorney

Duncan Scott explained why he didn’t believe the lawsuit could be

settled anytime soon. Without the new agreement, either the city or

the county could appeal a decision by Flathead County District

Court Judge Katherine Curtis to the Montana Supreme Court. If the

intervenors are dismissed from the case, “you can be assured Mr.

Frampton will appeal that decision to the Montana Supreme

Court.”

“In short, under the best scenario,”

Scott said, “the settlement is not final for probably a couple

years. This is not a resolution — it is more lengthy

litigation.”

VanBuskirk, however, reiterated her

position that the intervenors have no standing.

Several speakers expressed concern that

Section 13 was simply being moved from the new interlocal agreement

to a future MOU. A preliminary draft of the MOU provided in the

Nov. 15 council packet, however, contained no language providing

veto power to the county.

The draft MOU, which VanBuskirk wrote

based on directions from the Oct. 18 joint work session, sets

timelines for the city and county to inform each other of proposed

legislation affecting the doughnut area, and offers each a chance

to review the proposed regulations. But each entity would only need

to “give due weight and consideration to the other entity’s

comments and information.” The city and county would also share the

costs of reviewing regulations, although how was not spelled out in

the MOU.

The draft MOU, which the council did

not discuss at their Nov. 15 meeting because they ran out of time,

specifically mentions the Critical Areas Ordinance. The county

would have up to 180 days after the MOU is signed to submit

proposed modifications for the CAO. The two entities also would

meet periodically each year, beginning with a joint meeting in

January focused on the CAO.

VanBuskirk said the purpose of the MOU

is to “memorialize the spirit of cooperation” between the city and

county. The process could go forward without an MOU, she said, and

it’s even possible the draft MOU will not be implemented because

the city and county planning directors have already begun talking

about how to resolve differences over the doughnut.

As for the city’s role in creating a

community council to represent doughnut residents, VanBuskirk

reiterated the city’s and county’s publicly stated positions that

state law governs how neighborhood-type councils — such as land-use

advisory committees (LUACs) — are established.

Doughnut residents need to go to the

county because it’s the county that establishes these types of

committees, she said. Once established, the city could pass a

resolution stating that it would honor the decision of such a

community council, she said.