Attorney encourages city to stick with lawsuit

Former Montana Supreme Court justice Terry Trieweiler weighed in on the "doughnut" issue in a Sept. 17 letter with advice to the Whitefish City Council.

The Whitefish attorney, along with former Whitefish city attorney John Phelps, was a counsel of record in the city's 2008 appeal of Flathead County District Court Judge Katherine Curtis' ruling to the Mon-tana Supreme Court.

"I'm particularly concerned that the council is willing to cede control over territory that is critical to the community's future based simply on legal advice, which I consider misguided, that the city is unlikely to prevail in the current litigation over the 2005 Interlocal Agreement," he said.

Claiming county residents were unfairly treated by city regulations, Flathead County in March 2008 unilaterally rescinded the interlocal agreement that created the two-mile planning and zoning "doughnut" area. The city sued the county to restore the agreement, but Curtis ruled against the city in May 2008.

The state Supreme Court reversed Curtis in a December 2008 ruling, forcing Curtis to issue a preliminary injunction in January 2009 that restored the city's authority over the "doughnut" area. The city's lawsuit is now back in Curtis' courtroom, but the city and county formed a committee several months ago to negotiate an end to the lawsuit.

As an owner of Whitefish Lake property, Trieweiler in his Sept. 17 letter reiterated his concerns about how development is regulated in Whitefish and the doughnut area.

"In a community like Whitefish, whose economy and property values are extremely dependent on the community's appearance to others, nothing is more important than local control of the manner in which the community develops," he said.

Trieweiler emphasized that he was not suggesting what the results of local control should be but 'simply saying that those decisions are best made by the people who are most affected by them." Those people live in Whitefish, he said, and they are represented by the city of Whitefish.

"As we've seen in recent elections, if people are dissatisfied with decisions being made locally, they can replace the people making them," he pointed out.

Based on the merits of the case, Trieweiler said, there's no reason to believe the interlocal agreement will not be enforced. He acknowledged that he doesn't know how Curtis will rule, but that "doesn't really matter" because the issue will be decided in the state Supreme Court, he said.

"I believe it more likely than not that the court will decide in favor of the city, as it did in the previous appeal," he said.

Trieweiler addressed several points raised "by attorneys for private interests' who may have influenced the council's decision to negotiate an end to the lawsuit.

"On its face, the interlocal agreement is perfectly consistent with the requirements of state law," he said.

The draft agreement hammered out by the city-county doughnut negotiating committee sets a duration of five years, but Trieweiler says establishing a duration isn't required by state law. The legislature did not include such a requirement because it "would be detrimental to public agencies."

"Many interlocal agreements are indefinite in length simply because the services that public agencies provide are needed indefinitely," he said.

Trieweiler cited the recent interlocal agreement between Flathead County, Whitefish, Kalispell and Columbia Falls for establishing a joint 911 dispatch center. That agreement states that it will last "until terminated by the law or by mutual agreement of the parties," he said.

"Certainly the county would not enter into agreements that it considers illegal," he said. "Nor, to my knowledge, has it taken that position in this case."

The city-county negotiating committee's draft agreement also includes a method of termination for the parties. State law requires that a method for termination is provided, Trieweiler said, but it does not specify that unilateral termination must be the method.

"The legislature clearly left it up to the parties to determine their choice of method," he said. "Nothing in the statute even suggests that the agreement can be terminated at the whim of either party. If that was the case, all interlocal agreements would be meaningless and unenforceable."

Trieweiler encouraged the city council to pursue a lawsuit and retain authority over the doughnut area.

"In a case which the city is more likely to win than lose, it makes no sense, before even getting a decision, to in effect cede authority over the extra-jurisdictional area to the county while getting nothing in return," he said.

Trieweiler also encouraged the city council to pursue the lawsuit against the county for higher reasons — a ruling on the matter would establish an important point of law.

"Whatever the ultimate result of the litigation, the litigation should be allowed to unfold for the benefit and future guidance of all local governments, who are doing the best they can to manage their affairs through the use of and a reliance on interlocal agreements," he said.

The council will hold a work session on the draft interlocal agreement before its Oct. 4 meeting. A public hearing on the draft will take place during the meeting.