Judge rules councilor is not a resident

McGrew is out, Askew is sworn in as city councilor

By RICHARD HANNERS / Whitefish Pilot

Martin McGrew lost his seat on the Whitefish City Council. The council's Feb. 4 motion stating that McGrew was not validly elected was upheld in court last week, and Turner Askew took his seat at the council on Tuesday.

McGrew, whose home is not inside the city limits, had filed a lawsuit against the city on Feb. 7 in an attempt to keep his seat on the council.

State law says a person must be a resident of a city for at least 60 days prior to election day to be eligible to run for city council.

In the city's first-ever mail-in election last fall, McGrew tied with Askew for third place, 696-696, following a third recount held two weeks after election day. On Jan. 7, the city council appointed McGrew to fill the empty seat caused by the tied election.

In his complaint for injunctive and declaratory relief, McGrew claimed he's been registered to vote in Whitefish since 1999, that he voted in the 2005 city election, that his home has city water service, and that he's paid city property taxes since a boundary-line adjustment in 1998.

McGrew was also appointed by the city council to sit on the Whitefish City-County Planning Board. He claimed the city has treated him as a resident, and a clerical error that was not his fault should not prevent him from sitting on the council. He considered the lot on Ramsey Avenue "an indivisible whole."

Flathead County District Court Judge Ted Lympus, however, was not swayed by McGrew's arguments.

"Plaintiff McGrew was not a resident of the city of Whitefish at any time before or after the Nov. 6, 2007, election," Lympus ruled Feb. 13. "He could not have, therefore, been a lawful candidate for the city council. In reality, no tie vote occurred because plaintiff was not a lawful candidate."

Both McGrew, represented by Whitefish attorney Frank Sweeney, and city attorney John Phelps stipulated to certain facts describing McGrew's property at 545 Ramsey Avenue. The two parcels were joined together by a boundary line adjustment after McGrew acquired the southern portion in 1998.

But while the northern portion of the lot was annexed by the city in 1997, it is vacant. The southern portion, where McGrew's house is located, has never been annexed into the city.

Lympus cited county and city records in his decision. He noted that the Flathead County tax assessor maintained separate parcel numbers for the northern and southern parcels, and that McGrew received two separate tax bills each year.

The tax bills, which both parties stipulated to, indicate that McGrew paid city taxes on only the northern parcel and not the parcel where his house is located.

As for McGrew's claim about a clerical error, Lympus noted that "annexation is a formal process that does not happen inadvertently or accidentally."

"Plaintiff's assertion that the lack of annexation of his residence resulted from a clerical or paperwork error mistake does not negate the fact that the annexation never occurred," Lympus said.

Furthermore, state law provides a method by which incorrectly mapped properties for which the owner had been paying city taxes may be presumed to be within the city, Lympus pointed out.

But the property in question must satisfy two tests — it must be incorrectly mapped, and the owner must have paid city taxes for at least seven years.

"Plaintiff's residence meets neither of the two tests," Lympus said.

Askew, who was sworn in on Tuesday, told the Pilot he's looking forward to serving.

"Obviously, I provide a different voice," he said. "I'll be asking questions, and if they don't know the answers, we'll need to back up and ask why not."

In a Feb. 15 letter to the Pilot, McGrew claims the media "has failed to grasp" that the council's decision to vote him off "was a very collaborative strategy between the city and me."

"I still believe my residency status was an administrative oversight by the city of Whitefish, and is clearly documented and could have been cleared up years ago when I was first appointed to the planning board, had my residency been verified at that time," he said.

"With that said and given the extremely litigious environment in which our community now operates, John Phelps made the decision to err to conservatism in order to protect the best interests of the city, and that is his job, which I respect, and, if I could be completely dispassionate and dissociated with the situation, I would probably agree," McGrew said.

McGrew said he has filed a petition to the city for annexation of the parcel where his house is located.

"The best interests of our community will always supersede my passion and desire to serve my community," he said.