Donut committee favoring county role

The joint city-county committee tasked with finding a solution to governance of Whitefish's two-mile planning and zoning jurisdiction took a first look at a draft amendment to the interlocal agreement that created the "doughnut" area on Aug. 31.

Attorneys representing Whitefish, Flathead County and intervenors in the city's lawsuit against the county for unilaterally rescinding the interlocal agreement drafted the amendment after the joint committee met for several months earlier this year and came up with four concepts to be included in a new agreement.

The draft amendment — the third since the interlocal agreement went into effect in 2005 — limits the interlocal agreement to a five-year term and provides a process for either the city or the county to unilaterally withdraw.

Overall, the committee members seemed to be leaning toward providing the county commissioners with some say over city-initiated regulations in the doughnut area as a way to address complaints by property owners of 'regulation without representation." Points of contention remain, however, over the county's role in creating "new" regulations.

In Option A contained within the draft amendment, new regulations enacted by the Whitefish City Council would not become effective in the doughnut area "until the county commissioners have granted consent."

In Option B, the city would provide the county an opportunity to comment on proposed regulations and "give due weight and consideration to the county's comments." The city would provide the county with a written explanation within 15 days of passage of new regulations "describing its decision to accept, reject or modify the county's comments."

Option C would eliminate the section containing these three options. This would effectively leave the city with planning and zoning authority over the doughnut area as it has now, pending its appeal of Flathead County District Court Judge Katherine Curtis' ruling in favor of the county's unilateral rescission.

The three options did not satisfy some of the county representatives on the committee. Not only does Option B prevent the county from stopping new legislation — other than by withdrawing from the agreement entirely — but Option A limits the county's role to "new" legislation.

Two city ordinances that became contentious and led to the county's unilateral withdrawal from the interlocal agreement in March 2008 — the Critical Areas Ordinance and the Whitefish Growth Policy — would remain in effect under Option A. Critics of the city's authority over planning and zoning in the doughnut area claim the two ordinances unfairly impact property values.

City manager Chuck Stearns, who sits on the committee with city councilors Chris Hyatt and Bill Kahle, told the committee Aug. 31 that he preferred Option C but that he "could live with Option A in consensus."

With the county representatives — commissioner Jim Dupont and doughnut residents Lyle Phillips and Diane Smith — calling for review or re-enactment of past ordinances to be included in Option A, the committee discussed the idea of providing the county commissioners a limited time frame to do that, perhaps two years. Stearns and Smith were assigned to work on amended language for Option A.

Whitefish attorney Sean Frampton, who represents intervenors in the city's lawsuit against the county, said he believes every land-use decision made in the doughnut area since 2005 is open to a legal challenge unless the county somehow is able to review and give a "thumbs up or down" to those decisions.

"I don't know if it's 20 or 200 ordinances, but I think everything needs to be reviewed," Frampton said. "There has to be a ratification of what's already passed."

Smith wondered if there's a way to simplify that process. For example, doughnut residents could be polled to determine "the stuff that really ticks you off" and those items could then be reviewed by the county. Frampton, however, said that method "doesn't fly with due process."

Phillips noted that a survey conducted by the Flathead Business and Industry Association indicated 90 percent of respondents wanted to be under county jurisdiction. Some doughnut residents in the audience who favor city control, however, said they didn't return the FBIA survey because it appeared to stack the deck against the city.

The joint committee is tentatively scheduled to meet again in the Whitefish Middle School board room on Tuesday, Sept. 14, at 5:30 p.m.