Lawsuit over casino permit dismissed

Shelley Germann's lawsuit against the city of Whitefish and four former City Council members over a casino permit for the Whitefish Downtowner has been dismissed by District Judge Ted Lympus.

Germann's lawyer said Tuesday she will appeal to the Montana Supreme Court.

The former owner of the Downtowner motel complex in downtown Whitefish, Germann sued the city five years ago over the city's refusal to issue a permit for a casino and sports bar she planned to open at the motel.

She later switched lawyers and filed an amended complaint, listing City Council members Jan Metzmaker, Shirley Jacobson, Gary Stephens and Don Nelson as defendants along with the city. None of the four still serve on the council.

In February 2001, Lympus ruled the city was justified in passing an emergency ordinance requiring conditional-use permits for new bars and casinos. That was only one piece of the legal battle, however.

Germann, a U.S. citizen who splits her time between Whitefish and Canada, alleged in the amended complaint that the city violated her civil rights and discriminated against her by refusing to grandfather her remodeling project, for which she had a valid city building permit.

At the same time, the city granted a conditional-use permit for Coaches Corner, a competing bar and casino in downtown Whitefish.

The amendment also addressed her loss of business income and decline in property value because of the inability to operate a bar and casino.

City attorneys argued, and the court ultimately agreed, that Germann never had a right to establish a bar within 600 feet of a church or school - Central School in this case.

Germann maintained the 600-foot law didn't apply in her case because Central School's mailing address is on Second Street and her business was on Spokane Avenue. The law says the physical address of the bar or casino can't be on the same street.

The court agreed with the city's contention that the school's general entrance is on Spokane Avenue.

Lympus said Germann was "insufficient" in establishing her claim of discrimination based on the city's failure to grant her a conditional-use permit.

"Without first having a property right to assert, the plaintiff cannot claim that the city has taken that right from her," Lympus wrote. "Due-process claims alleging uncompensated takings presuppose that the claimant has something of value to take. Here, a state statute prohibited the use of the plaintiff's property as a bar due to its proximity to Whitefish Central School."

Germann had further alleged her project should have moved forward because the city had issued a building permit and hadn't objected to the state Department of Revenue's notice for the Downtowner's beer and wine license application.

Lympus said the city had no power to deny Germann a building permit and has not "reneged" on the permit it issued.

The city adopted the emergency zoning ordinance for new casinos and bars because it did not appear the state was willing to enforce the 600-foot rule, Lympus maintained.

Incidentally, Coaches Corner, the new bar issued a conditional-permit at the same time Germann was pursuing her case, is also within 600 feet of Central School, but no one presented a legal challenge in that case.

Missoula lawyer Michelle Bryan Mudd, one of two attorneys from the Church, Harris, Johnson and Williams law firm, said she believes state law favors Germann's arguments.

"We think under the law that an appeal is very appropriate here," Mudd said.

Features editor Lynnette Hintze may be reached at 758-4421 or by e-mail at lhintze@dailyinterlake.com