'Doughnut' lawyers lay out their cases

The three attorneys involved in Whitefish's lawsuit against Flathead County over the city's two-mile planning and zoning "doughnut" area presented their cases to city and county representatives and the public last week.

This was the third meeting of the committee, which hopes to negotiate an end to the matter without spending another 2-5 years in court.

District Court Judge Katherine Curtis agreed to delay ruling on the lawsuit for 90 days, city attorney John Phelps explained at the April 28 meeting, but she also said she wouldn't pick up the case again until the three attorneys asked her.

Councilors Bill Kahle and Chris Hyatt and city manager Chuck Stearns sat at the table with Flathead County commissioner Jim Dupont and doughnut residents Lyle Phillips and Diane Smith.

Phelps led off by recapping the history of the doughnut area. In 1967, Whitefish and other Montana cities were granted planning authority up to 4 1/2 miles beyond their city limits, and a city-county planning board was created here, he said.

The legislature in 1971 gave cities authority to extend zoning regulations beyond their city limits, depending on their population. Whitefish could zone up to one mile beyond its city limits, Phelps said, but the legislature said nothing about voting rights for residents in that doughnut area.

Columbia Falls and Kalispell also established doughnut areas, Phelps said, but former county commissioner Dale Williams succeeded in his efforts to eliminate the Kalispell doughnut by 2001.

When Gary Hall defeated Williams in the 2002 election and announced intentions to "make peace with the cities," Whitefish began negotiations to protect its doughnut area, Phelps said. The county had its own reasons for handing zoning authority of the area to Whitefish — passing on the cost of administering regulations there.

An interlocal agreement was signed in 2005, but three years later the county unilaterally rescinded the agreement, claiming the city's Critical Areas Ordinance (CAO) harmed doughnut residents, who had no representation in the Whitefish City Council.

Phelps continued to advise the city to not change the termination clause in the agreement, saying a "good working relationship now" might not exist if new commissioners are elected. The city needs an "ironclad agreement" that won't allow a party to unilaterally withdraw, he said.

Alan McCormick, the Missoula attorney representing Flathead County, cited state statute to argue that an interlocal agreement was never needed. State law allows cities to plan and zone outside their city limits until the county implements its own growth policy and regulations in those areas.

Counties cannot contract away their zoning power through an interlocal agreement, McCormick said. To end the lawsuit, he proposed rewriting the agreement to include a termination clause and setting a timetable when it would come into effect.

Sean Frampton, a local attorney representing intervenors in the city-county lawsuit, said the city did not have the authority to impose the CAO over the doughnut area.

While agreeing with McCormick's "blank slate" interpretation of state law, Frampton also claimed the city used the interlocal agreement for 'strong-arming" rather than "cooperating." The "Interlocal Cooperation Act" was intended to provide services and facilities, he said — in this case, land-use permitting and enforcing, but not creating zoning regulations, which is a legislative function.

Not only did the interlocal agreement take away doughnut residents' constitutional rights to representation, Frampton said, but one government entity cannot give another the right to legislate over it. While he favors the city having some say over planning and zoning in the doughnut area, "the commissioners must have the trump card, they must have the final say," he said.

In response to McCormick and Frampton, Phelps said the city "got the county to agree" not to follow the provisions of state statutes on extraterritorial planning and zoning and on interlocal agreements.

Kahle, who helped organize the talks, said he wasn't worried about one side unilaterally withdrawing if a termination clause was put in a revised interlocal agreement. That would only happen if 'something like the Critical Areas Ordinance comes along," he said.

"I think lawsuits are bad for business," Smith said. "The longer they last, the more bitter they are."

Phillips said he doubted most of the doughnut area would ever be annexed into Whitefish because the city can't afford to extend services to those areas. The intent of the interlocal agreement was "control," he said, and the city's annexation of Whitefish Lake was a case in point.

Both sides agreed that allowing the county commissioners a voice in how doughnut residents are regulated would address the representation issue, but the commissioners didn't need to be involved at the administrative level, just legislative.

They also agreed to come back at their next meeting with proposals for how to word a termination clause in the interlocal agreement and for what kinds of land-use actions should be brought to the county commissioners for review.

Frampton recommended in an April 22 letter to Phelps and McCormick that the parties hire a mediator and hold formal mediation meetings. The city council took that up on May 3.