Property owners ask about regulations aimed at protecting streams, lakes and wetlands

By RICHARD HANNERS

Whitefish Pilot

Pros and cons on the city’s proposed critical areas ordinance were aired last week. About 200 people showed up at the O’Shaughnessy Sept. 13 for a forum on the draft regulations.

The controversial ordinance will replace an emergency stormwater ordinance that has been in place since 2006. Aimed at protecting water quality and natural resources, it will establish regulations for land around lakes, streams and wetlands and on steep slopes.

Consultants John Lombard and Randy Overton joined city staff and members of the Whitefish City Council, Whitefish City-County Planning Board and Critical Areas Advisory Committee in explaining the legal and technical aspects of the ordinance.

Councilor Nick Palmer admitted that technical discussions like these typically make his “eyes glaze over,” “but the more you get into the proposed ordinance, the more you realize how brilliant it is.”

By combining science with site-by-site interpretation, the proposed ordinance “allows the maximum amount of land to be developed while at the same time providing the most protection to water quality,” he said.

Noting that Lake Tahoe’s critical areas regulations run to 1,500 pages, Palmer called the city’s 24-page draft “elegant.”

As for how much it might cost property owners to hire experts to shepherd them through the regulations, Palmer said property owners typically need to hire other experts when they sell their property.

“It’s like hiring an appraiser,” he said.

Most land around Whitefish is expected to score well on the matrix created to analyze steep slopes, Palmer claimed.

Realtor Greg Carter, who is a member of the advisory committee, presented “the other side of the story.” Carter said the consultants wrote the draft ordinance, not the committee, and there wasn’t much public involvement because of time constraints.

He was also concerned about the need for a good map showing intermittent streams so Realtors could explain the limitations of a property to prospective buyers. With 25-foot buffers and 50-foot setbacks proposed, an intermittent stream could cut a 150-foot wide swath through a property, he said.

“We have two vital constitutional rights — the right to clean air and water and the right to quiet enjoyment of our property,” Carter said. “Both sides were not treated the same.”

Planning board member Frank Sweeney, who also served on the advisory committee, agreed that the consultants wrote the draft ordinance, but the committee read every line and reached a consensus on every word, he said.

Among the issues raised by the public:

? Several lakeshore property owners on Whitefish Lake were concerned about whether the proposed ordinance would tack on a 75-foot setback to the existing 20-foot lakeshore protection zone and the 10-foot setback recently enacted to keep construction equipment out of the protection zone.

The draft ordinance states that anyone seeking to develop their lakeshore property must submit a water quality protection plan developed by a qualified professional “so that the estimated discharge of sediment, nutrients and other pollutants to the lake during and after construction would be no great than if the site had a 75-foot buffer.”

Lombard said lakeshore property owners might have to pump stormwater runoff from impervious surfaces away from the lake to meet that standard, but they could develop land within that area.

? Property owners concerned about setbacks proposed for the Whitefish River wanted to know why the JP Road bridge was chosen as a dividing point. Upstream, the buffer will extend to the top of the bank, while downstream, it will extend to the top of the bank or 75 feet from the high-water mark, whichever is greater, the draft ordinance states.

“Is that a scientific or political decision?” Terry Nelson asked.

Noting earlier that it was a “controversial decision” on the part of the advisory committee, Lombard said it was a practical choice, not a political one.

Lombard said the science behind protecting the river would call for using the stricter downstream regulations in both directions, but there is too much development upstream from the bridge. He also noted that buffers work better if they are continuous and not changing in width from one property to the next.

? County residents within the city’s planning and zoning jurisdiction raised the issue of regulation without representation.

Planning board chairman Martin McGrew and others pointed out that the draft ordinance emerged out of a public process that included numerous work sessions. Four of the nine planning board members were appointed by the Flathead County commissioners.

? Several people asked how they could make plans for their land if no detailed map existed of stormwater conveyances — natural drainage paths that fill with water during significant rainfall.

Lombard said a draft map recently became available, but city crews will need to truth-test it in the field. The public works director, not the zoning administrator, will determine where the conveyances are located, he said.

The planning board has scheduled a presentation on the ordinance for Thursday, Sept. 20 (today), but the meeting will likely focus mostly on the city’s draft growth policy. The city council has scheduled a public hearing on the ordinance for Oct. 15.