Fees approved for critical area ordinance

'Doughnut' area critics call it taxation without representation

By RICHARD HANNERS / Whitefish Pilot

The Whitefish City Council approved a fee system for the new critical areas ordinance at their April 7 meeting.

City planning staff said they arrived at the proposed fee structure after several hours of review.

"We need to actually complete some of the work to see how much it will actually cost," city planner Wendy Compton-Ring said, noting that the fees are probably "on the low side."

"We're trying to be reasonable and affordable," city planning director David Taylor said.

City manager Gary Marks pointed out that if the fees are too low, property taxes paid by city residents will make up the difference.

Councilor Nancy Woodruff confirmed that property owners with no affected critical areas would need to complete a Critical Area Checklist and a Critical Area Compliance Permit.

Both call for no city fees, but some property owners might need professional assistance to complete those requirements.

Noting that 90 percent of lakeshore violations are handled as after-the-fact permits, councilor John Muhlfeld said he wanted a stiffer fee for those types of permits.

City staff had suggested doubling the applicable fees for cases where development proceeds prior to completing analysis or reports as required by the critical areas ordinance.

Muhlfeld pointed out that lakeshore violators are not deterred by misdemeanor penalties of $500 per violation per day and up to 30 days in jail, and he questioned if doubling the fees would be a deterrent for the critical areas ordinance.

Councilor Turner Askew noted that most development near critical areas will take place in the city's two-mile planning and zoning jurisdiction — the so-called "doughnut" area, and councilor Ryan Friel said he was concerned about requiring fees from people who can't vote for city councilors.

Several people drove that point home during the public comment period.

Referring to the city's legal dispute with the county over the city's jurisdiction in the "doughnut" area, Whitefish attorney Sharon Morrison suggested that even if the city could legally zone land outside the city limits, it couldn't collect fees.

"It's taxation without representation," said Larry Campbell, a "doughnut" resident.

Saying he expects the city will lose its lawsuit against the county and the interlocal agreement will be rescinded, Campbell called for putting fees paid by "doughnut" residents into a trust account so they can be refunded at a later date.

City attorney John Phelps, however, maintained his confidence in the city's lawsuit.

"Current state law allows zoning in the 'doughnut' area," he said. "If you can zone, then you can charge a reasonable fee to enforce zoning."

But he pointed out that the lawsuit could be appealed and take more than two years to resolve.

Marks said the city could simply track "doughnut" area fees without setting up a special account, and the council approved that suggestion.

Morrison and Denise Smith, of the Flathead Build-ing and Industry Association, expressed concern about how much professionals could charge for special review of land near critical areas.

"There is no control over how much the experts will charge, and they are retained by the city," Morrison said.

Public works director John Wilson said it's uncertain how much experts might charge for services, but it could range from $1,000 to $6,000. Geotechnical analysis, for example, could require expensive drilling, he said.

"It's a shot in the dark," he said.

When Muhlfeld suggested the city accept the low bid for consultants, Wilson disagreed.

"You should choose people based on their qualifications and then negotiate a fee," he said, saying he opposed a cap.

Councilor Nick Palmer's suggestion to cap consultant fees at $1,500 for single-family homes was defeated 3-2, with Friel joining Palmer.

"If people want to build on difficult lots, the city should not subsidize them," Woodruff said.

The fee system was approved 4-1, with Friel in opposition. Fees for after-the-fact permits and erosion-control plans will be dealt with at a later time. Floodplain fees, which already existed, are not part of the new fee system.