Lake committee chairman pans minority report

Whitefish Pilot

Adopting the advice of a “minority report” critical of a proposed update of Whitefish lake and lakeshore regulations would convert them from regulations into guidelines — not only for Whitefish Lake but for 37 other lakes under Flathead County regulations.

That’s the opinion of Whitefish Lake and Lakeshore Committee chairman Jim Stack.

“It would undo almost 30 years of regulatory practice and procedure by both the Flathead County and Whitefish planning offices,” he said.

The proposed updated regulations, which address potential environmental impacts to the lake and the 20-foot wide lakeshore zone, will go to the Whitefish City-County Planning Board on May 21 (tonight). The meeting will take place in the city council chambers at 6 p.m.

The draft the board will take a first look at was approved by the lakeshore committee by a 4-3 vote. Two of the dissenting votes came from new members who recently joined the committee.

One of them is Whitefish attorney Sharon Morrison, who helped draft the minority report. The law firm Morrison works with at one time represented three different lakeshore property owners who had been cited in the past few years for violating lakeshore regulations, Stack said. Two of those cases have not been resolved.

The purpose of the proposed updated regulations is to consolidate and reorganize the text to make it more applicant-friendly and easier to understand, Stack said.

“This has been a frequent complaint from new applicants,” he said.

A secondary objective is to clarify lakeshore regulations to make them more consistent with prior interpretation and enforcement by the city and county planning offices.

“It is important to note that ‘tightening of the regulations’ was not among the objectives,” Stack said. “Instead, the regulations have actually been eased in a number of areas that would benefit both lakeshore property owners and administration by the jurisdictional planning office.”

Complicating the update process was the ongoing dispute between the city and the county over jurisdiction in the city’s two-mile planning and zoning jurisdiction — the so-called “doughnut” area.

As a result, the lakeshore committee decided to draft the updated regulations themselves rather than use an ad hoc committee created by the Whitefish City Council. The lakeshore committee believed it had a good balance of city and county representatives, Stack explained.

Stack points out that in the past 16 years, not a single recommendation for permit approval or denial made by the lakeshore committee has been overridden by either the city or the county. Two variances involving legal liabilities were overriden, and the committee agreed once the matter was explained to them, he said.

“This is a strong testament to the due diligence and consistency of interpretation of the lakeshore regulations by the lakeshore committee,” Stack said.

City attorney John Phelps weighed in on the minority report in a May 14 letter to the planning board. Phelps said most of the comments in the minority report “result from a fundamental misunderstanding of Montana municipal law … a belief that cities may regulate or take action only when a specific state statute confers authority to do so.”

But that belief is 37 years out of date, Phelps said, because “the 1972 Montana Constitution basically overruled the strict narrow statutory interpretation rule.” He also cited several Montana Attorney General opinions supporting that position.

Whitefish adopted a self-government charter in 1981, Phelps said, and the state’s Lakeshore Protection Act itself encourages local government to legislate in the area of lakeshore protection.

“Self-governing cities do not need ‘other statutes’ to authorize them to adopt legislation in the area of lakeshore protection since they share sovereignty with the state,” he said. “Even if the state Lakeshore Protection Act had never been adopted by the state legislature, Whitefish could have lawfully adopted its own independent lakeshore regulations. The state act merely emphasizes the need for, and appropriateness of, such regulations.”