Doughnut referendum approved
Backers of a petition to put a
referendum on the ballot this fall that would repeal a revised
interlocal agreement for Whitefish’s two-mile planning and zoning
“doughnut” area have until April 12 to gather 707 signatures.
City attorney Mary VanBuskirk informed
the Flathead County election department on Jan. 11 that she had
approved the supporters’ sample petition “as to form” and for
compliance with state law. That started the 90-day clock ticking
for supporters to gather signatures from 15 percent of the city’s
registered voters so the referendum can appear in the Nov. 7
election.
Supporters of an initiative that would
establish a community council for doughnut residents, however,
faced a different outcome. On Jan. 7, deputy county attorney Tara
Fugina informed the election department that the sample petition
for the initiative “is hereby rejected as to form and compliance”
with state law.
According to Fugina, the elector pool
for the proposed initiative cannot be limited to registered voters
in the doughnut area, as stated in the sample petition, because the
local government affected by the initiative is Flathead County. As
a result, all voters in the county should be included in the
elector pool, she wrote.
The sample petition was also rejected,
according to Fugina, because “the initiative power is reserved for
legislative acts only” and “the proposed ordinance that is the
subject of the initiative is administrative in nature.”
Duncan Scott, a Kalispell attorney
whose office “represents various individuals and groups concerned
about the city of Whitefish’s history of heavy-handed control of
the doughnut, when doughnut residents do not enjoy the right to
vote in city elections,” may have had a hand in how the county
attorney’s office ruled.
On Jan. 6, Scott sent a seven-page
letter to the county attorney’s office outlining four reasons why
he believed the initiative should be rejected:
• Citing a Montana Supreme Court test,
Scott argued that the proposed initiative is more administrative
than legislative, and so not in compliance with state law. The
proposed initiative “does not create the community council,” he
said, “but rather, it directs the commissioners to create it.”
• The initiative must be voted on by
all county residents, not just those inside the doughnut area, he
said.
• The proposed initiative calls for the
establishment of an “illegal community council” that would advise
the Whitefish City Council, rather than the county commissioners,
which is in violation of state law.
• By seeking a state attorney general
opinion on the legality of the community council after the election
was over, “the sponsors themselves question the initiative’s
legality,” Scott said.
Marilyn Nelson, one of three doughnut
residents listed as a leader in the initiative effort, said her
group wasn’t sure what their next step would be.
“We’re very disappointed the Flathead
County Attorney’s Office would see our petition that way,” she
said.
For his part, Scott expressed
disappointment that signature-gathering for the referendum was
given the go-ahead.
“I vigorously disagree with the
Whitefish city attorney’s view that the doughnut settlement terms
are subject to referendum,” Scott said. “Initiatives and
referendums are limited to legislative matters, and settling a
lawsuit is an administrative, not legislative function.”
If settlement decisions can be
overturned by referendum, then local governments can’t settle
cases, Scott said.
“The other side will know the
government cannot make a binding decision when it can be overturned
by a later public vote,” he said.
Scott also pointed out that “the city
attorney’s legal view also puts the city in breach of the
warranties it made to Flathead County in settling the lawsuit.”
“Now the city attorney is saying the
agreement she reviewed and approved is not binding on the parties,”
he said. “Instead, it is subject to referendum.”
Part of the city council’s agreement
with the county commissioners included meeting with them in January
to further develop how the new interlocal agreement would
function.
But according to city manager Chuck
Stearns, the city learned about a change of plans from county
administrator Mike Pence on Jan. 12.
“The county commissioners decided it
would be best to wait until after Judge Curtis rules on the pending
motions, as that might clarify the status of the agreement,”
Stearns said.
Those motions could include the city’s
filing to dismiss the lawsuit and the city’s response to objections
by intervenors to the case, he said.
So instead of meeting with the
commissioners, the council met on Tuesday, Jan. 18, in executive
session for its quarterly litigation update by the city attorney,
he said.