City and county sit down at the table

'Doughnut' transition team finds some common ground

By RICHARD HANNERS / Whitefish Pilot

After losing in court three times in its lawsuit to retain jurisdiction over its two-mile planning and zoning jurisdiction, the city of Whitefish sat down last week with county officials to discuss a way to transition to a new form of organization for the so-called "doughnut" area.

While there was some agreement on lakeshore regulations and corridor studies, the city expressed concern about how the Whitefish City-County Planning Board has been left out of the county's transition strategy.

The county half of the transition team that met in Kalispell on Aug. 28 included county commissioner Gary Hall, county planning board member Mike Mower, "doughnut" resident Diane Smith and Greg Lane, representing Whitefish Mountain Resort. They were assisted by county planning director Jeff Harris.

City representatives included mayor Mike Jenson and councilors John Muhlfeld and Turner Askew. Muhlfeld was absent from the meeting. They were assisted by city planning director David Taylor.

On Tuesday night, Jenson appointed Ian Collins to join their team.

Hall was very enthusiastic about the meeting and called it an "incredible" process. In the past, he has claimed that city officials ignored him during meetings on the city's growth policy and its critical areas ordinance.

"We worked through some tough issues, and we had respect for each other's positions," he said. "We're starting down the path to make the transition and making the best situation for the doughnut residents."

The eight-step plan

The county provided the city with a copy of their eight-step transition strategy, which begins with a public hearing before the commissioners on Sept. 15 from 9:30 to 11:30 a.m. in the commissioners' meeting room in Kalispell.

Thirty days later, the strategy document states, a final resolution will likely be passed, at which point the county "will have a compliant growth policy with jurisdiction over the areas outside Whitefish city limits."

The county conceded, however, that it was not ready to completely take over planning, zoning, subdivision review, and administration of floodplain and lakeshore regulation for the entire "doughnut" area. Instead, the strategy document calls for dividing up the work so the county will handle all land with a county zoning designation and the city will continue to handle all land with a city zoning designation.

Soon after the city took over planning and zoning for the "doughnut" area in 2005, it implemented city zoning on all land within the two-mile area that was unzoned. The result is a patchwork quilt of city and county zoning in the "doughnut" area that the county wants to address.

A new "regulatory subcommittee" of the county planning board has been established to determine the appropriate zoning for "doughnut" land that currently has city zoning. It met for the first time on Aug. 29, and county officials told the city's transition team members that the process could take a year to complete.

The changes will comply with Whitefish's 1996 Master Plan, the strategy document states, and will not allow county zoning where land will require city sewer or water services.

The new regulatory subcommittee will also review existing neighborhood plans, planned-unit developments (PUDs) or overall development plans, such as for Whitefish Mountain Resort, that are nested within city zoning or nested within county zoning but have Whitefish approval.

Developers who have spent millions of dollars creating neighborhood plans and PUDs have kept a watchful eye on how the county proceeds with the transition.

The county is also considering creating some new zoning designations that more closely resemble Whitefish's zoning classifications. For example, the county has suburban-agriculture zoning with five-, 10- and 20-acre minimums, while Whitefish has similar zoning but with one-, 2 1/2- and 15-acre minimums.

City-county debate

The city's transition team sees several problems with the county's strategy. Reverting to the 1996 Master Plan means undoing all the work the city did to bring that document into compliance with state law by creating a new growth policy.

There is also a question about the jurisdiction of Whitefish's planning board. At the county planning board's July 16 meeting at the Armory, Citizens For A Better Flathead executive director Mayre Flowers cited state law that applies when two planning boards have overlapping jurisdiction.

According to MCA Sect. 76-1-503, when an unincorporated area is within the potential jurisdiction of more than one planning board, "then the boundary between the conflicting areas shall be determined by agreement between the planning boards involved with the approval of their respective governing bodies."

City officials note that the county planning board has taken over all the transition work, especially with its new regulatory subcommittee, but so far the city has decided not to sue the county for not involving Whitefish's planning board in this work.

"The Whitefish planning board is the appropriate board to be doing this, but the county doesn't see it this way," Jenson said.

Hall said that after the transition is completed, he'd like to see the Whitefish planning board revert to its former system, where in-city requests are sent on to the city council, and "doughnut" area requests go to the county commissioners.

Jenson said there was no reason that process couldn't come back into play, but he expressed concern that the Whitefish board is not being involved in the transition process.

Hall noted that Jenson had talked about setting up a township government, "but it needs to go back to the way it was before so people in the doughnut area get representation," he said. "That's what caused this to blow up in the first place."

Hall said the county would need to re-appoint Whitefish planning board members, but he thought they'd likely be the same people. On the other hand, city officials note, Hall won't be sitting in the commissioners office after Jan. 1.

Both Jenson and Hall agreed on returning lakeshore protection regulations to how they were enforced prior to 2005 when the interlocal agreement established the "doughnut" area — a city committee reporting to the city council handled regulations for land along Whitefish Lake within the city limits. County property was handled by a county committee.

"I would have liked Whitefish to keep it, but we told the county they need to take the good with the bad," Jenson said. "As long as everyone follows the same rules, it should be OK. I have experience with the past system, and it worked fine."

Many believe stringent environmental regulations in the city's critical areas ordinance precipitated the county's decision to rescind the interlocal agreement, but Hall said some elements are good and should be incorporated into the county's zoning and subdivision regulations. But overall, he said, he'd like to get rid of the CAO and start all over.

"Everyone in the valley believes in protecting water quality, but the CAO has gotten too convoluted," he said. "Now they're talking about 'CAO-lite.' People spent too much time on this and are not willing to walk away from the CAO as it is."

The city and county also share concerns about protecting gateway corridors to Whitefish, such as U.S. Highway 93 south and west and Highway 40 from Columbia Falls.

"If something doesn't happen by early November, we'll continue with the lawsuit," Jenson said. "The state needs to move off dead-center on planning. On the other hand, Whitefish doesn't need to be the test case."