Commissioners unanimously approve new donut agreement
More legal advice from local attorneys
and a plea to restore the 2005 interlocal agreement did not sway
the Flathead County Commissioners last week from approving a
revised agreement for Whitefish’s two-mile planning and zoning
“doughnut” area.
In an hour-long meeting held Nov. 30 in
the Whitefish City Council chambers, commissioners Jim Dupont, Dale
Lauman and Joe Brenneman unanimously approved the restated
interlocal agreement.
The Whitefish City Council narrowly
approved the interlocal agreement on Nov. 15 by a 3-2 vote. They
also authorized city officials to ask Flathead County District
Court Judge Katherine Curtis to dismiss the city’s lawsuit against
the county for unilaterally rescinding the earlier agreement in
2008.
Basically, the new agreement includes a
five-year duration and provides a way for the county or city to
unilaterally withdraw with a one-year notice. Language that would
have given the county veto power over city legislation affecting
private property in the doughnut area, Section 13, was removed from
an earlier version because the lawyers that drafted the agreement
later realized it was illegal.
A forthcoming memorandum of
understanding under consideration will lay out how the county can
review new and old city legislation that affects doughnut area
property. The city’s Critical Areas Ordinance, for example, was
cited by the county commissioners when they rescinded the 2005
agreement in 2008.
A draft MOU was written by city
attorney Mary VanBuskirk based on direction given by the city
council and the county commissioners during an Oct. 18 joint work
session. The draft MOU sets timelines for each side to inform the
other of proposed legislation, and offers each a chance to review
the proposed regulations, but the county is not given veto power
over city legislation.
Fourteen people addressed the
commissioners, with some opposing the new agreement for opposite
reasons, and many warning the commissioners about either the
agreement’s inadequacy or its legal shortfalls.
Doughnut resident Larry Campbell, a
vocal critic of Whitefish imposing regulations on residents who
can’t vote for city councilors, said removing Section 13 took the
teeth out of the agreement and eliminated any representation for
doughnut residents.
Campbell said he was concerned city
regulations might mean “I can have three chickens but no rooster
and can’t shoot a bow and arrow.”
“Why should we get treated differently
from other county residents?” he asked, referencing Columbia Falls,
where an interlocal agreement nearly identical to Whitefish’s 2005
version is still in effect.
Sarah Nargi, who owns a medical
business in the doughnut on U.S. 93 South, wanted to know if
approval of a new interlocal agreement will mean her and her
neighbors’ properties would finally be rezoned from residential to
commercial.
Another doughnut resident, Bruce Meyer,
said that by accepting a weaker interlocal agreement, the
commissioners were “leaving us hanging.”
“Why won’t you hang in there with us?”
he asked. “We voted for you.”
Diane Smith, an attorney who
represented the county in a negotiating committee that developed
principles for changing the 2005 agreement and resolving the
lawsuit, said some city ordinances make more sense in downtown
Whitefish than out in the rural doughnut area.
“What’s important is that Whitefish and
the county can get back to negotiating and listening to each
other,” she said. “At the end of the day, this restores the balance
of power to two entities.”
Several city and doughnut residents
spoke against the revised agreement. Some called for restoring the
2005 agreement and then, in the new spirit of cooperation between
city and county, reviewing the disputed ordinances.
Frank Sweeney, a former city councilor
and planning board member and a Whitefish attorney, pointed out
that without the MOU in place, the revised agreement is not
complete and therefore illegal.
Doughnut resident and Whitefish
attorney Sharon Morrison agreed with Sweeney that the revised
agreement was illegal “but for different reasons.” It is against
state law for one governing body to delegate legislative authority
to another entity, she said, and the agreement is unconstitutional
because doughnut residents will lose their right to present
initiatives and referendums.
The commissioners, however, didn’t
waste any time voting.
Dupont, who sat on the city-county
negotiating committee, noted that the split between the city and
county “won’t go away unless we talk to each other.”
Lauman said it was important that the
agreement “will keep lines of communication open” and noted there
has been “too much he said, she said.”
The revised agreement is “not a perfect
document,” Brenneman said, but it’s “a step in the right
direction.”