City seeks mediation in doughnut appeal

The City of Whitefish has asked the Montana Supreme Court to order mediation in the ongoing planning “doughnut” lawsuit.

The move comes two months after Whitefish decided to appeal a decision handed down by District Court Judge David Ortley that gives Flathead County jurisdiction over the two-mile planning doughnut, and declares invalid a city referendum that threw out a 2010 interlocal agreement.

In a motion filed Sept. 3, the city argues “all parties to this appeal would benefit if an alternative process is made available to resolve their differences.”

While an attempt at mediation failed at the district court level, the city says now that a decision has been handed down, mediation may lead to a mutually-acceptable resolution.

The city also argues mediation will help defray legal expenses levied on city and county taxpayers, as well as the “emotional cost of an appeal.”

“Mediation may provide the parties the means to find a speedy and just resolution of the dispute,” city attorney Mary VanBuskirk wrote in the motion.

In response to Whitefish’s request, plaintiffs in the lawsuit filed a motion of opposition to mediation.

Attorney Duncan Scott, who represents four Whitefish area residents who sued the city to have the referendum thrown out, says that mediation is pointless given Whitefish’s position that any settlement in this case would be subject to referendum.

“In the District Court, Whitefish argued that Montana law allows referendums on legal settlements involving public entities,” Scott wrote in his motion. “Given that position, it is legally impossible, according to Whitefish’s logic, to settle this case with finality by mediation. If the parties to this case reached a settlement, it would be subject to being overturned, again, either by Whitefish or Flathead County voters.”

Scott says the best path to a resolution of the dispute is through the Supreme Court upholding the District Court’s decision to give the county jurisdiction.