Lawsuit targets city of Whitefish

A community planning consultant is suing the city of Whitefish over alleged open-meeting law violations in connection with the city’s newly adopted inclusionary zoning program for affordable housing.

Mayre Flowers and her limited liability company CommUnity Consulting filed the lawsuit in Flathead County District Court against the city of Whitefish, Whitefish City Council, the Whitefish Strategic Housing Steering Committee and Inclusionary Zoning Ad Hoc Subcommittee. She claims the city’s actions in drafting its Legacy Homes program “behind closed doors for well over a year, were illegal, and contrary to the transparent public process that the Montana Constitution requires.

“We strongly support the adoption of an affordable housing plan for the city of Whitefish; however, the closed-door process that the city employed in developing this plan was neither open nor balanced,” Flowers said.

The lawsuit alleges the city provided the public only “selective information” as its housing committees went through the process of drafting the new affordable housing plan, which mandates inclusionary zoning, which means developers who intend to build housing in Whitefish that needs discretionary permit approval must dedicate 20 percent of the dwelling units as permanently affordable.

The lawsuit describes out how the public allegedly was shut out of critical parts of the city’s decision-making process as 30 or more “closed-door meetings” were held over the course of a year. This included meetings of the Ad Hoc Subcommittee, which conducted several meetings “without prior notice to the public, without making the agenda or supporting documents available to the public, and without the subsequent production of meeting minutes by the committee,” according to the complaint.

Flowers said she requested the working documents and agendas for the Ad Hoc Subcommittee so she could attend the meetings and contribute public comments, but was told by the city manager that there was no requirement for the agendas to be publicly posted.

In fact, the housing committee meeting minutes state: “No requirement for working groups’ agendas to be posted. These are not closed-door meetings, we are just doing research and trying to get the work done. Not required to do public posting. Will take to the next steering committee for discussion.”

In January this year Flowers sent a letter the City Council and Housing Committee, alerting the city it had failed to comply with open meeting, notice and minute-keeping requirements under state law. She asserted her request for the information was rooted in a “desire to be supportive, timely and constructive in my public comment, but without compliance with open meetings laws this has become impossible.” Flowers also attached a legal opinion issued in January 2018 by Missoula City Attorney Jim Nugent to the Missoula council that supports her assertions regarding the public’s right to know.

Whitefish City Attorney Angela Jacobs responded to Flowers’ letter through a formal memorandum to the council, stating “the inclusionary zoning work group does not fall into any of the categories required by statute to hold open meetings.

“Despite some references to the work group as a ‘subcommittee,’ it was not appointed as such by the City Council,” Jacobs wrote in her legal opinion to the council. “The work group’s mission was simply to provide information and suggestions to the appointed Steering committee which the Steering Committee could accept, reject, modify or even throw in the trash and start from scratch, if it so desired.”

The lawsuit cites other instances of alleged open records violations by Whitefish’s city government.

The Whitefish City Council held a developer and lender forum at its March 7 work session and did not keep minutes or record the meeting, according to the lawsuit. The council also held its annual board retreat later that month “without prior notice to the public, without making the agenda or supporting documents available to the public and without the subsequent production of meeting minutes.”

Flowers is asking the court to declare that the city’s decisions regarding the affordable housing program violated the right to know under state law, and therefore should be voided. The complaint also asks for an order requiring the Whitefish City Council to adopt rules of public participation for all meetings of the council, committees, boards and other city entities.

“When the Whitefish City Council, under the leadership of the city manager, operates without clear publicly available rules and procedures, and allows city committees or work groups, or the council as a whole, to meet behind closed doors, the public becomes distrustful and rightfully asks, what are they trying to hide?” Flowers said in a prepared statement. “When these closed-door meetings occur with city staff, individual council members, consultants, and/or special interest groups like developers, Realtors, and lenders, to draft and reach consensus on new city policy behind closed doors, the public rightfully asks who are they really going to listen to and does my voice matter?

“And when these things happen for over a year, the required public hearings before the city council’s final decision become an almost predetermined, hollow and largely uninformed opportunity for public comment,” she added.

Whitefish City Manager Adam Hammatt said on Tuesday the city has not yet been served the lawsuit. He said he was surprised to hear about the complaint because he considers Whitefish to be “a shining beacon of open and inclusive government.

“Letting the people have their voice is a paramount concern. We welcome public comment,” Hammatt stressed, adding that he believes the city does “a great job” of providing access to local government.

News Editor Lynnette Hintze may be reached at 758-4421 or lhintze@dailyinterlake.com.