Lawsuit seeks to void doughnut referendum

A lawsuit was filed last week asking

the courts to void a recently voter-approved referendum to repeal

the 2010 city-county agreement regarding Whitefish’s two-mile

planning doughnut. The complaint follows predictions by both

Flathead County commissioners and Whitefish’s city attorney that

litigation would likely follow an approved referendum.

The lawsuit was filed Dec. 20 in

Flathead County District Court by doughnut residents Lyle Phillips

and Anne Dee Reno, along with outgoing city councilor Turner Askew

and Whitefish resident Ben Whitten. Kalispell lawyer Duncan Scott

is the attorney representing the plaintiffs. The case was assigned

to Judge David Ortley.

The referendum was passed during the

recent November election with a 1,444 to 738 vote. A majority vote

to repeal the 2010 agreement by law supersedes the council’s

decision in 2010, making the document obsolete, Whitefish city

attorney Mary VanBuskirk said during the election.

The city has argued that without the

2010 agreement, the original 2005 interlocal agreement that gives

the city planning control remains in effect.

Commissioners made a preemptive move in

June and filed a one-year notice that they intend to terminate the

2010 agreement. They said the referendum would lead to years of

litigation.

“The Commissioners’ prediction of

escalating litigation was spot on,” Scott wrote in a prepared

statement.

He noted the recent appeal filed by

Whitefish citizens Dan Weinberg and Ed McGrew challenging a

decision in July that found the 2005 Interlocal Agreement was void

and the city’s lawsuit was moot because of the 2010 agreement.

“The Montana Supreme Court probably

will take at least a year to decide Weinberg’s and McGrew’s

appeal,” Scott said.

It was jointly agreed in late December

last year to have the city’s lawsuit against the county over

jurisdiction of the doughnut dismissed as part of the 2010

interlocal agreement.

The lawsuit argues that referendums are

limited to “matters concerning legislative jurisdiction and power,

not administrative acts.”

The settlement of a lawsuit is an

administrative act, not legislation, it reads.

The complaint goes on to argue that,

“If lawsuit settlements are subject to...referendums, as a matter

of public policy, it will become difficult for local governments to

settle lawsuits because each settlement would be subject to being

overturned by a later public vote. No local entity would have

authority to bind itself.”

In a prepared statement, Askew said the

lawsuit was necessary to “accomplish what I and the city council

leadership of Whitefish did not do, which is defend publicly the

city’s decision to settle the doughnut lawsuit.”

“This settlement, while not perfect,

was the only way to move forward into a new era of respectful

interlocal cooperation with Flathead County.”

Scott alleges that Whitefish councilors

have privately said that when new councilors John Anderson, Richard

Hildner and Frank Sweeney are sworn in, their first order of

business “will be to authorize a new lawsuit against Flathead

County.”

He also expects an emergency injunction

will be requested to stop Flathead County from assuming

jurisdiction over the doughnut.

“We are entering an Alice in Wonderland

world where every hallway leads to more lawsuits that cannot be

settled,” Scott wrote.

“The only way to stop this litigation

madness is for the court to declare the referendum void.”

Askew said the referendum was pushed by

a “small group of elite Whitefish residents who will do anything to

continue their reign of power” over the doughnut.

“The notion that a group of unelected

activists can derail the administrative act of two parties settling

a lawsuit, a task vital to any local government’s daily operation,

is so disturbing as to warrant the immediate intervention of the

court to declare the referendum void,” he said.

He noted the recent county sponsored

survey that showed most doughnut property owners would rather be

governed by the county.

“Yet, these litigation hungry activists

with deep pockets ignore the will of the doughnut residents as they

trample on doughnut residents’ voting and property rights,” Askew

wrote. “They engage in cyber-bullying and arm-twisting at every

turn.”

Some have argued the county’s survey

methodology was skewed. Each property owner in the doughnut was

mailed a survey ballot. If a property owner had multiple parcels of

land, they received multiple ballots.

Askew said he’s concerned that doughnut

residents could turn against the city, which might be reflected in

a possible upcoming school bond election.

“Upset doughnut voters may look for a

way to send a message to Whitefish,” Askew said.