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Commissioners unanimously approve new donut agreement

by Richard Hanners Whitefish Pilot
| December 8, 2010 9:02 AM

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cited by the county commissioners when they rescinded the 2005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.”