Minority report rips proposed lakeshore regs

Whitefish Pilot

A controversial update to the Whitefish Lake and Lakeshore Protection Regulations is on the agenda for the May 21 meeting of the Whitefish City-County Planning Board.

Lakeshore Protection Committee members have worked on updating the regulations for about 2 1/2 years to make them easier to understand and in layman’s terms, chairman Jim Stack told the committee at their March 11 meeting.

But three committee members have produced a minority report that questions whether state law supports the 47-page document with its 41 prohibitions.

“It is the position of the minority report that the (regulations), as approved by the committee, are not legally sustainable and, if challenged, will almost certainly be stricken,” Realtor Ken Stein, attorney Sharon Morrison and Lodge At Whitefish Lake manager Scott Ringer said in their minority report.

All three were absent from the committee’s March 12 work session when the committee unanimously agreed to forward their latest draft of the regulations to the planning board. The committee also agreed to defer any major legal questions to the city and county attorneys along with the 10-page minority report.

When Morrison presented the minority report to the committee at its March 11 meeting, city planner Nikki Bond provided an e-mail from city attorney John Phelps expressing his belief that “the regulations in their current form are lawful.”

Stack then noted that “Morrison’s brief should include disclosure of lakeshore violation cases her law firm is currently handling or has recently handled,” according to committee minutes.

The position of the minority members is that state law requires lakeshore protection regulations be “in the form of criteria” that can be used to evaluate permit applications.

“The rule takes on added weight where the lakeshore protection permit function arguably must assign import to preservation of water quality and the right of private property owners to be free of undue government regulations,” the minority report states.

The scope of the regulations should be limited to “any work that will alter or diminish the course, current or cross-sectional area of a lake or its lakeshore,” the minority report claims, citing state law. The draft regulations require a permit for “any work on or alteration or disturbance of a lake, lake bed or lakeshore.”

State law sets forth five types of criteria to evaluate lakeshore permits, according to the minority report — changes that diminish water quality or wildlife habitat, interfere with navigation, create a public nuisance or impact natural scenic values.

But many of the regulations in the updated document violate constitutional or property protections, the minority report claims. Examples include requiring property owners to allow committee members or city staff to enter their property to inspect sites, excluding owners of deeded easements from the permit process, and ordering property owners to restore damaged vegetation even if they’re not responsible for the damage.

“It provides as a punishment for pruning trees a 10-year ‘sentence’ to plant and maintain new trees, whether or not the pruning activity implicates the requirement for a permit,” the minority report states.

The minority report also questions if the city or county has the authority to establish construction standards, regulate lawns, establish setbacks or prohibit overhanging balconies, bay windows or decks in the 20-foot lakeshore zone.

Stein, Morrison and Ringer suggest “scrubbing” the proposed lakeshore regulations of their “inconsistencies, excesses and constitutional violations” and then creating an appendix of guidelines.

The Whitefish City-County Planning Board will meet in the city council chambers on Thursday, May 21, at 6 p.m.