County votes to rescind 'doughnut' area

Resolution claims city is unfair to county residents

By RICHARD HANNERS / Whitefish Pilot

The Flathead County commissioners approved a resolution to rescind an interlocal agreement between Whitefish and the county that creates a two-mile planning and zoning area under Whitefish jurisdiction, commonly referred to as the "doughnut" area.

The vote was 2-1, with commissioners Gary Hall and Dale Lauman in favor and Joe Brenneman opposed.

Hall, who helped negotiate the interlocal agreement, said the resolution is not commissioner-driven but came from the people.

He said comments by "doughnut" area residents who attended meetings for Whitefish's new growth policy and Critical Areas Ordinance were dismissed.

"I felt so myself," he said. "This is an action that needs to be taken."

Resolution 1783B includes 14 "whereas" statements that support rescinding the interlocal agreement, beginning with a claim that the Whitefish City Council had assured the county commissioners that the "interests" of the "doughnut" area residents "would be protected and their viewpoints would be afforded utmost consideration" in the council's decisions.

But the city council "has violated the spirit" of the interlocal agreement, the resolution claims, and the council "seeks to use the interlocal agreement to impose unfair, burdensome and extreme measures in regulating the county residents" in the two-mile area.

The city council's actions "has now had the effect of disenfranchising" the 7,000-plus residents of the "doughnut" area, the resolution claims, by "preventing them from fully enjoying and protecting their property and imparting disparate treatment" by not providing them with representation.

Noting significant impacts caused by Whitefish's new Critical Areas Ordinance, the resolution claims that "it is highly likely" that "doughnut" area residents or others will file lawsuits challenging the city's "unfortunate actions," and that Flathead County may end up a defendant in those lawsuits.

Brenneman, however, said the commissioners need to look at the facts without emotion or sentimentality and establish good public policy. He wanted to know what the status of the "doughnut" area would be if the interlocal agreement was rescinded.

A property owner in the "doughnut" area knows who the governing board is, what the zoning is and what procedures exist for approving development, Brenneman said, but if the interlocal agreement is rescinded, all of that becomes unclear.

In effect, he said, the commissioners' decision would "stop all growth in the 'doughnut' area" until it is adjudicated — which could take six years if lawsuits are appealed to the Montana Supreme Court.

"I think that's a stretch," Hall said. "I think the Critical Areas Ordinance has already stopped growth."

When Brenneman asked where exactly the ordinance precludes growth, Hall recounted numerous meetings he attended where testimony "by the brightest people I've ever met" indicated the ordinance was not scientific. He then called Whitefish Realtor Greg Carter to speak.

Carter, who has a master's degree in civil engineering and has been involved in the ordinance's public process from the beginning, responded to Brenneman's request to "point to one place in the ordinance" where a requirement was "difficult or impossible" to accomplish.

"You want to start at page one," Carter said, before referring to the section on steep slopes.

Brenneman, who said he had read the ordinance and understood it, debated with Carter over definitions for "angle of repose" and their understanding of how the ordinance's matrix formula would work.

Claiming the ordinance was "arbitrary and capricious," Carter pointed out that property owners would need to hire professionals to complete a "critical area information form and report."

"State law says that an ordinance must be understood by the common citizen," Carter said.

Brenneman summed up his position by saying the "doughnut" area residents need elected representation and the city of Whitefish "has work to do in administering their policies." The city, he said, "needs to get the message out in better working with people."

For Lauman, the most important issue was lack of representation. He said he recently received a call from a person with an expensive piece of property that the caller claimed was "unbuildable" because of the ordinance.

"It's a taking," Lauman said.

Lauman said he was optimistic that by rescinding the agreement, people could work together to make a better arrangement.

Out in the parking lot afterwards, Whitefish attorney Sean Frampton commented on the commissioners' action.

"As far as I'm concerned, the city lost its jurisdiction in the 'doughnut' 10 minutes ago," he said.

Frampton said he's advising his clients to go ahead with projects as if they're under county jurisdiction, not the city.

At this point, the city's options include suing the county to clarify its authority or suing a landowner who doesn't comply with zoning or the Critical Areas Ordinance. A judge could issue a temporary order stopping development, but the burden of proof would then fall on the city to prove its jurisdiction.