Whitefish council stands firm on slopes

The Whitefish City Council on Monday stood firmly behind a resolution reaffirming city policy on steep slopes, despite warnings from attorneys and developers that it could prompt more litigation over slopes.

Council member Nick Palmer was the lone dissenter. He said he believes the resolution may be flawed and is concerned "the city might get a black eye in court again."

The controversial resolution was drafted by City Attorney John Phelps after a District Court jury sided with a Whitefish couple in a lawsuit against the city over slope construction. William and Theodora Walton sued the city when they were denied a reasonable-use exemption to build on a 45-degree slope.

While the court ruled in favor of the city on several procedural claims in the Walton lawsuit, a jury favored the Waltons on the question of whether or not the Waltons' rights had been violated.

The jury ultimately decided that the Waltons' right to equal protection had been violated because Bob Horne, then the zoning administrator, had granted Grouse Mountain Estates developer Greg Carter reasonable-use exemptions for a dozen lots with slopes over 30 percent.

The city, however, continues to maintain that the interim stormwater drainage ordinance, upon which the lawsuit was based, didn't empower Horne to grant reasonable-use exemptions on slopes over 30 percent when reasonable flatter building space is available on the lot.

Phelps said the resolution aims to clarify that Grouse Mountain Estates "doesn't have something no one else has."

The resolution directs the Planning & Building Department to withhold building permits for any of the Grouse Mountain Estates lots if actual construction is proposed on slopes over 30 percent when flatter building space is available.

Phelps said there is "plenty of precedent" in other court decisions for a city to withdraw or invalidate

building permits that have been improperly issued.

BOTH OPPONENTS and supporters of the resolution were given time to make brief comments before the council voted.

Carter, a broker for Rocky Mountain Real Estate, said the issue has "virtually shut down business in Grouse Mountain Estates in this most productive time of year.

"How can Mr. Phelps in good conscience ask you to find in total opposition to what the jury found in the Walton case," he asked. "A Montana district court and jury found by unanimous opinion that Mr. Horne indeed granted approval and reasonable-use exemptions to build on these slopes in excess of 30 percent."

Carter, on behalf of two real-estate associations, asked Helena lawyer Michael Kakuk to render an opinion on the matter. Kakuk, too, found the resolution flawed and said, "this unveiled attempt to ignore the recent jury decision in Walton violates the basic principals of fairness and due process, and more importantly, makes a mockery of the judicial system."

Pat Fox, who owns a sloped lot in Iron Horse subdivision, said the resolution is troubling and affects his property.

"It's manufacturing evidence for a lawsuit the city has already lost," Fox said.

Several supporters urged the council to stay on track with legislation that will protect Whitefish's critical drainage areas.

"The resolution simply calls for equal protection for all," Frank Sweeney said.

Jan Metzmaker, a Flathead Basin Commission and Whitefish County Water District board member, said water quality is ultimately the issue.

"I hope you have the authority and guts to make sure water quality is kept intact," she said. "You need to keep your eye on the prize."

Most council members agreed the resolution merely re-establishes their commitment to the "critical areas" ordinance that's still a temporary law but soon will become permanent. A committee has spent months drafting a final version, and a public hearing is planned this fall.

"I believe the Iron Horse and Grouse Mountain lots will be approved under 06-08 (critical areas ordinance) when the final version is passed," council member John Muhlfeld said.

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