Judge won't rush decision on doughnut lawsuit

Attorneys representing parties in the lawsuit concerning control of the two-mile planning doughnut around Whitefish gave oral arguments in Flathead District Court Feb. 28.

Judge David Ortley said he would be able to work through the issues and return with a decision.

“It’s obvious the importance of this litigation,” he said. “This will have a long-lasting effect in Montana — there’s no doubt about that. We don’t want to rush a decision, but I think the case was so well presented today that I’m confident that we can get through the issues very quickly.”

A decision could take several weeks, and no definite timeline was set for a ruling. However, no matter the outcome, the decision will likely be appealed to the Montana Supreme Court.

Ortley heard arguments from all parties involved in the case. The lawsuit by four residents against the city of Whitefish seeks to void a voter-approved referendum passed in November 2011. The referendum sought to repeal a 2010 planning agreement between the city and Flathead County regarding the doughnut area.

The city claims the referendum is valid and that the original 2005 planning agreement should go into effect as a result.

County representatives believe the referendum is an illegal repeal of the 2010 interlocal agreement and the county should resume jurisdiction of the doughnut.

All parties in the lawsuit have submitted motions asking for summary judgment, which means they agree on the facts, but dispute the legal effect of those facts.

Attorney Duncan Scott represents plaintiffs Lyle Phillips, Anne Dee Reno, Turner Askew and Ben Whitten. The city is represented by attorney Terry Trieweiler, and attorney Alan McCormick represents the county. Attorney John Lacey spoke on behalf of intervenors, Dan Weinberg, Ed McGrew, Mary Person and Marilyn Nelson.

At the center of the lawsuit is whether the city referendum was illegal and therefore void, and also whether the 2005 interlocal agreement between Whitefish and Flathead County is still in effect. Ultimately, the lawsuit will determine who has planning authority in the doughnut — the city or the county.

The 2005 interlocal agreement initially gave planning control of the doughnut to the city, but the county rescinded that agreement in 2008 based on the fact that doughnut residents have no representation because they can’t vote in city elections. A revised agreement was approved as a compromise in 2010. Then voters then passed the referendum, which repealed the 2010 agreement.

Ortley addressed the attorneys last week asking them to explain what relief they would like to see as a result of the case and their position on the validity of the 2005 interlocal agreement.

Representing the plaintiffs, Scott began his argument by noting that doughnut litigation has gone on for 1,804 days. Scott said his clients believe state law doesn’t allow referendums on legal settlements, which is what they consider the 2010 interlocal agreement to be.

“We ask that you find the referendum illegal and therefore void,” Scott said. “Also that Flathead County has properly terminated the 2010 agreement.”

The plaintiffs claim the 2005 agreement is void, based on a ruling by then-District Judge Kitty Curtis in 2008. The original lawsuit was dismissed as part of the deal for the 2010 agreement.

The city argues the referendum was legal and it threw out the 2010 agreement and the original 2005 agreement is still in effect. Thus, Whitefish should have control in the doughnut area.

Trieweiler said the language in the 2010 agreement says it was merely an amendment to the 2005 document.

“We ask the court to conclude that the referendum was a valid referendum related to zoning, which is purely a legislative issue,” Trieweiler said. “Thus the 2005 agreement exists as before the [2010] amendment.”

Trieweiler said Judge Curtis’ decision in the 2008 case is based on the fact that the parties agreed to dismiss the case. He noted that through her ruling she said the settlement between parties rendered the issues in the case moot, and therefore the city maintains the 2008 case does not have bearing on the current lawsuit.

Representing the county, McCormick said the referendum is illegal. However, if the court rules it as legal, the 2010 agreement is still not in place because the county terminated that agreement.

“The parties should proceed as if the 2010 agreement has been terminated,” he said. “This does not revise the 2005 interlocal agreement. The county should be free to proceed [with planning jurisdiction.]”

McCormick asked that if the court declares the referendum invalid to lift the injunction prohibiting county control of the doughnut area. He said the city’s jurisdiction exists only until the county enacts its own regulations.

Lacey said the challenge of the referendum is untimely because it came 11 months after the election. Any ruling that endorses the “post-election after losing challenge” based on facts that were present prior to the election does a disservice to the Montana constitution, he noted.

He agreed with the city’s position that the referendum repealed the 2010 agreement and the 2005 agreement is in effect.