Appeal keeps 'doughnut' door open

Two Whitefish men have filed an appeal with the Montana Supreme Court that preserves the option for the state’s courts to weigh in on jurisdiction of Whitefish’s two-mile planning “doughnut.”

Dan Weinberg and Ed McGrew, who helped organize a successful referendum that rejected a revised 2010 interlocal agreement for the doughnut area, filed their appeal with the state Supreme Court shortly after the referendum passed in November.

They had petitioned Flathead County District Court earlier this year to intervene in the city’s lawsuit against the county over doughnut jurisdiction.

They were denied intervenor status, and the lawsuit was dismissed without prejudice in July. A stipulation of the revised interlocal agreement, signed by both the city and county last year to replace the 2005 interlocal agreement, was to ask the court to dismiss the city’s lawsuit.

Richard Hildner, another referendum organizer who asked to intervene, is not named in the recent appeal to the Supreme Court. He since has been elected to the Whitefish City Council and takes office in January.

Kalispell attorney John Lacey, who represents Weinberg and McGrew, said by passing the referendum on Nov. 8, “Whitefish voters confirmed that this summer’s dismissal of the city’s case was premature.

“This appeal on behalf of referendum supporters preserves the option for Montana’s courts to answer the question that has still never been answered — whether the county was allowed to pull out of the 2005 interlocal agreement,” Lacey said.

The county’s decision to unilaterally rescind the 2005 agreement was at the heart of the city’s lawsuit. A District Court ruling in May 2009 put the 2005 interlocal agreement back in force as the status quo until the outcome of the doughnut lawsuit was decided.

Whitefish officials believe the jurisdiction has reverted to the original 2005 interlocal agreement, which gives the city full planning control for the two-mile area.

County officials argue the 2005 agreement is null and void.

Referendum supporters argued all along that anyone who relied on the 2010 interlocal agreement was doing so prematurely. Weinberg and McGrew maintain that once voters rejected the 2010 agreement, their right to be a part of the city’s case was all the more relevant.

Also, the denial of a motion to intervene is separately appealable, they maintain.

Meanwhile, the county commissioners have begun the process of converting the two-mile doughnut back to county zoning and intend to take control of planning decisions in that area.

Commissioner Jim Dupont recently said he thinks asking city residents to decide an issue by referendum that doesn’t affect them and not allowing doughnut residents to vote on the referendum was the wrong approach.

“City residents have no skin in the game,” he said, “and doughnut people couldn’t vote.”