Council delays vote on donut doc

The Whitefish City Council voted 4-1 on

Nov. 1 to bring back a revised interlocal agreement for the city’s

two-mile extraterritorial planning and zoning “doughnut”

jurisdiction as an action item on the Nov. 15 council meeting’s

agenda. Councilor John Muhlfeld voted in opposition.

Seventeen people addressed the council,

as the draft agreement was up for a vote last week. Sixteen raised

concerns about a draft “memorandum of understanding” that had not

yet been shown to the public. The MOU would provide guidelines for

county review of city ordinances that affect doughnut property

owners.

Other concerns included the one-year

notice for termination, which would allow Flathead County to

withdraw from the agreement if it disagrees with how a city

ordinance affects doughnut property; the need for a community

council to provide doughnut residents with representation; and the

need to pursue the lawsuit all the way to the Montana Supreme Court

if necessary.

Doughnut resident Lyle Phillips also

spoke. He represented the county in recent joint talks aimed at

resolving the city’s lawsuit against the county for unilaterally

rescinding the interlocal agreement.

The one-year termination clause is

needed to provide representation to doughnut residents, Phillips

said. The county representatives on the committee had originally

asked for six months but agreed to a longer time period, he pointed

out.

Whitefish attorney Sean Frampton said

his clients, Heiko and Elizabeth Arndt and Westridge Investments,

the intervenors in the city’s lawsuit, will not stipulate to

dismissing the lawsuit. When city and county representatives agreed

during an Oct. 18 work session to remove Section 13 from the new

interlocal agreement — which gave the county veto power over new

city legislation affecting the doughnut — the “central issue” in

the lawsuit was left “unresolved,” Frampton said.

City attorney Mary VanBuskirk said she

spoke with Flathead County attorney Peter Steele about the

intervenors’ decision, and they agreed that two pieces of “simple

language” should be added that would tie the new interlocal

agreement to dismissal of the lawsuit. If the intervenors refuse to

stipulate to dismiss the lawsuit, the city and county could go

ahead and do so, ending the lawsuit, VanBuskirk said.

“The intervenors don’t have standing,”

she said.

Most of the councilors defended the

draft MOU, pointing out that the city and county attorneys were

directed to draft an MOU during the Oct. 18 work session. The MOU

was a draft, and they had only received it a few days before the

council meeting, the councilors said.

“We’re not sitting on a bunch of secret

documents,” councilor Ryan Friel said.

“The MOU didn’t come out of thin air,”

mayor Mike Jenson said. “It came out of the work session.”

“Things come up at the last minute,”

councilor Chris Hyatt said.

The draft MOU cited the city’s and the

county’s “mutual interests in resolving the current litigation” and

their “wish to develop a process for continuing cooperation and

conversation.”

It called for each party to provide the

other with copies of proposed legislation, staff reports and

recommendations 45 days prior to a first hearing on new legislation

affecting the doughnut. Each party would have up to 30 days to

comment, and each party would “give due weight and consideration”

to the comments.

The draft MOU also gave the county up

to 180 days after the MOU’s signing to provide the city with

proposed modifications to the city’s Critical Areas Ordinance or

any other city ordinance. The impact of the CAO on doughnut

residents’ property rights was cited by the county when it acted to

unilaterally withdraw from the interlocal agreement in March

2008.

According to the draft MOU, the county

will provide the city with a list of suggested modifications to the

CAO 30 days prior to a joint work session in January. Costs to

review these modifications would be shared by the county and the

city.

Councilor John Muhlfeld said he wanted

a more specific list of proposed modifications.

“This isn’t ready,” he said of the

MOU.

As for the draft interlocal agreement,

Muhlfeld said he opposed the right of unilateral withdrawal and the

one-year termination clause.

“If we pass this, we will live to

regret it,” he said.

Councilor Turner Askew said he agreed

that a one-year termination notice was too short for planning

purposes, “but it’s not intended to actually be used.”

“It’s meant to hang over us, like the

Sword of Damocles,” he said.

Hyatt, who represented the city on the

city-county committee that worked on resolving the lawsuit,

defended the draft agreement and draft MOU as part of the overall

process.

“If they weren’t cooperating, I’d be

the first to say, ‘Let’s got to the Supreme Court,’” he said.

The councilors and city staff also

addressed the repeated call for establishing a community council to

represent doughnut residents. VanBuskirk and city manager Chuck

Stearns, who also sat on the joint negotiating committee, said it

was up to the doughnut residents and the county to create a

community council.

The city council could pass a

resolution in support of a community council for the doughnut,

Jenson said, but that’s all. Once it was established, the city

council could use Whitefish’s charter-city powers to adopt a policy

that honored the doughnut community council’s decisions, he

said.

VanBuskirk also suggested scheduling a

neighborhood meeting so doughnut residents could learn how to

establish a community council. Jenson said city facilities could be

used for the meeting.

The council directed city attorney Mary

VanBuskirk to have a version of the interlocal agreement ready for

their Nov. 15 meeting. The MOU will come back to the council later,

in December or January. The city and the county will hold another

joint meeting in January to narrow down which ordinances will be

reviewed.