Increasing lakeshore violations could lead to stricter regulations

By RICHARD HANNERS

Whitefish Pilot

Philosopher George Santayana warned in "The Life of Reason" that "those who cannot remember the past are condemned to repeat it."

It's also true that governments sometimes react to change by taking a step back to see how things were done in the past.

Fearing that they could be fighting a losing battle to protect Whitefish Lake, the city and its citizen-based watchdog group are taking a long, hard look at the city's lake and lakeshore regulations.

A look at how life on the lake has changed over the past three decades is an important part of that process, as the Pilot recently learned during a cruise around Whitefish Lake.

Changes on the lake

"A lot of people don't know the origin of our lakeshore protection regulations," Jim Stack said as he steered his boat around the northwest corner of Whitefish Lake.

Back in the early 1970s, a developer dredged a channel around his property to create an island near Lazy Creek. A plume of sediment was visible around the site, but the sediment also made its way the length of the lake to City Beach, prompting complaints.

"Bob Brown was in the legislature then, and he helped push through lakeshore regs," Stack said. "The regulations were prompted by owners of lakeshore property — not by government."

Stack is the chairman of the Whitefish Lake and Lakeshore Protection Committee. He has a long history on the lake and is concerned about the cultural changes he's seeing.

"Prior to 1990, lakeshore properties were bought with a generational point of view — to be passed on to their children," he said. "New owners, however, use their property as a transitional second home, and we're seeing a lot of quick flipping for big profits."

Ownership of lakeshore properties on Whitefish Lake is rapidly changing.

"Ten years ago, one could safely say that more than 80 percent of lakeshore properties were owned by Montana residents," he said. "Today, that resident ownership has likely fallen to 50 percent or less."

Along with changing ownership has come changing attitudes and ideals. Soaring property values have also affected lakeshore stewardship.

"No one likes to pay more than $1 million for 50 feet of lake frontage and then be told they can't do something," he said.

Larger homes are being built, crowding side-setbacks and lakeshore frontage. Homes have been built within inches of the 20-foot lakeshore protection zone.

"This means much more constructed surface area and more runoff dumped into the lake," Stack said.

A losing battle

The city annexed Whitefish Lake in August 2005, essentially doubling the city's size. The action gave the city the jurisdiction it needed over planning and zoning to protect the lake and its lakeshore.

A new city ordinance requires a 10-foot buffer zone between new elevated structures and the lakeshore protection zone. Stack said the close proximity of large retaining walls or structures prompted the new ordinance.

In one example, a spec home was built in Carver Bay just north of Houston Point. The home filled the lot, Stack said, and the owner removed every tree except a few inside the lakeshore protection zone.

During construction, there were two violations from sub-contractors who were building elevated stone patios only a foot from the lakeshore zone.

Another new property owner across the lake was required to replant more than 20 trees as replacement for trees illegally removed from the lakeshore protection zone. A new "beach house" has been constructed with a massive 10-foot retaining wall just outside the lakeshore protection zone.

Stack pointed out that one of the purposes for creating the lakeshore protection committee, as stated in the ordinance, is to protect property values.

"We're not an environmental group," he said.

But he fears the city and lakeshore committee are fighting a losing battle — lake bottom algae and water clarity have continued to worsen in recent years, he points out. Part of the problem is the lakeshore regulations themselves — how they're worded and how they're enforced.

"Consistency between permit approvals and violation enforcement needs to be improved," Stack said. "This had become a major issue under the former planning director, and a number of litigious situations or confrontations were created which are still being negotiated to settlement."

Loopholes and lawyers

Many changes and improvements to the lakeshore regulations have been made over the past 15 years, but too many property owners are finding loopholes and then turning to an attorney to get what they want.

"Never before have landowners been so intent on finding loopholes," he said. "We're seeing things we've never seen before."

In one case, the city claims Jim and Denise Archer used rocks and fill to move the high-water mark and then began construction on their home inside the lakeshore protection zone.

"Who would have conceived of someone moving out the high-water mark?" Stack said. "Nobody ever tried to do that before."

Sixteen months after the initial violation, no restoration work has taken place and the case against the Archers is still in negotiation.

"If a violation is not resolved within 60 days, it takes on a life of its own," he said.

In a new twist, according to Stack, on a violation in which protective riprap was not constructed according to the permit, the contractor for the property owner asked for the lakeshore committee's help in staking the high water line.

But as soon as that was done, the property owner was on the phone with the planning office threatening legal action for conducting unlicensed surveys.

Grandfathered structures and lawns

Stack says the city needs to more strictly enforce lakeshore regulations. He cites the case where former city planning director Bob Horne gave verbal approval for a boathouse, owned at the time by Bruce Erickson, to be remodeled by replacing an overhead garage door with sliding patio doors.

"A change of use is prohibited for grandfathered structures inside the lakeshore protection zone," Stack said. "And past planning offices, including Whitefish, have always considered this a change of use."

The lakeshore protection committee and the city council denied Erickson's permit, Stack said, but because the regulations didn't specifically prohibit changing a garage door to patio doors, the city decided the violation was too difficult to prosecute.

Subtle and incremental changes are one route lakeshore property owners take to get what they want. Lawns, for example, are not allowed inside the lakeshore zone, but by mowing native grasses and throwing some seed on the ground, a lawn can be created where one didn't exist before.

That appears to be the case at the Whitefish Lake Ranch, at the north end of the lake. Stack says Flathead County planners had reached an agreement with then-owners Burt Sugarman and Mary Hart to not maintain a lawn inside the 20-foot lakeshore zone.

But the property has since been purchased by Bill Foley, and it appears that the lawn has been maintained and even expanded, Stack said. In a meeting with the city and the lakeshore committee last spring, representatives for Foley indicated they would abide by the former agreement only if it could be produced.

The documents, however, were lost several years ago in the transition to a new Whitefish planning department. Stack said he's concerned the lawn continues to be mowed and maintained in the lakeshore zone.

"This is a very large lawn in a wetlands area of Whitefish Lake," he said. "In an extreme high-water year, major portions of that yard will be underwater, with all the phosphates, fertilizer and pesticide flushing directly into the water that neighboring property owners drink. And there's nothing the city can do without changing the regulations."

The city reacts

To get a handle on lakeshore violations, the city has created an ad hoc committee to study existing regulations and suggest changes. But the overall result is a step backward, Stack said, because the city is reacting to property owners who have violated regulations.

One proposal, for example, is a reaction to the Erickson's modified boat house. Property owners would only be allowed to maintain grandfathered structures inside the lakeshore zone. Extensive remodeling, like the stone facing done by Erickson, would not be allowed.

"It's a difficult balance between property rights and protecting the lake," Stack said.

As for incremental changes, such as creating a lawn or de-limbing trees, another proposed regulation would tie enforcement to archival photographs of the site.

"The lakeshore committee began archiving photos in July 1990," Stack said. "Since then, we've shot digital photos of the entire shoreline. We update the photos about every three years."

The ad hoc committee is about halfway done with its job and has completed its look at enforcement, Stack said.

"The objective is to return to what has worked well in the past," he said. "Violations will be dealt with quickly and decisively, and resolved within 60 days if at all possible."