New hearing sought in Downtowner lawsuit

By LYNNETTE HINTZE

The Daily Inter Lake

A former Whitefish motel owner wants the Montana Supreme Court to reconsider its dismissal of her lawsuit against the city of Whitefish and four former City Council members.

Shelley Germann, former owner of the Downtowner motel, sued the city six years ago after the council denied a permit for a casino and sports bar she planned to open at the motel.

Last week the Supreme Court said she lacked a protected property interest in making her claims.

Germann on Tuesday filed a rehearing request with the state high court, arguing that it did not consider the "material fact of her reliance on local zoning laws."

In its ruling, the Supreme Court stated that federal due-process and takings claims require a plaintiff first to demonstrate that he or she possesses a constitutionally protected property interest. Because she didn't have an approved liquor license at the time, she didn't have a property interest in operating the Downtowner as a bar, the court concluded.

But Germann believes she had a vested property interest to develop her property. She had applied for transfer of a liquor license that was owned by Town Pump, and maintained "that application alone was enough to get a vested right" to proceed with the casino project.

The court, however, disagreed with Germann's assertion that she was entitled to a liquor license; the mere fact she had applied for a liquor license when the city imposed its emergency ordinance didn't guarantee she would receive the license, the ruling said.

Germann also wants the court to reconsider evidence she believes shows she was treated differently than another business owner who also asked for casino approval.

The council imposed an emergency ordinance requiring a conditional-use permit for new bars and casinos just as Germann was finishing a renovation to the building to accommodate her casino. During that same time, the council approved a casino for Coaches Corner, a couple of blocks away.

Germann further alleges the Supreme Court's decision would disallow any future injured party in Montana from separately suing a public official to recover punitive damages.

"This goes beyond me, to our rights being taken away," Germann said. "We're hoping they overlooked some facts. Hopefully when all of the facts are reconsidered, the Montana Supreme Court will change its decision."

Whitefish City Attorney John Phelps said he could not comment on Germann's request for reconsideration since the court will have to rule on her request.

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