Slippery slope of inconsistency

For the past two years, Whitefish has been in the throes of developing stricter regulatory measures for construction in drainage-challenged areas.

Building in low-lying areas and places where dense clay soils create sluggish drainage have created problems in the resort community. It seemed reasonable when the city passed a temporary "urgency" ordinance restricting development in drainage-sensitive areas until a master stormwater plan could be completed. Once the city identified areas of critical concerns, all other lands were freed from development restrictions in the emergency measure.

But the interim measure is still on the books as a "critical areas" committee hammers out a permanent version of the law.

Getting a handle on drainage is commendable, but no one - not even the most astute planners - could have anticipated the groundswell of opposition that would erupt over a regulation in the interim measure that restricts construction on slopes in excess of 30 percent.

Clearly, the slope issue has become an unintended consequence of the drainage issue. And in a resort mountain community where views from steep slopes are worth millions, it's a hot-button issue.

Whitefish engineer and developer Greg Carter warned the council earlier this year that the interim law doesn't adequately address vacant property and people who have purchased building lots in Whitefish don't know where they stand when it comes to slopes.

Sure enough, Carter's concerns were validated this week as the Whitefish City Council continued to struggle with the slope issue. In the first lawsuit over slopes (and there likely will be other litigation to come) a District Court jury decided last month that William and Theodora Walton's right to equal protection of the law had been violated because they were denied the same option that was granted to Carter, a developer of Grouse Mountain Estates.

Carter had received "reasonable use" exemptions for a dozen lots with slopes up to 40 percent. The Waltons wanted to build on a slope but had been denied the same kind of reasonable-use exemption; hence the lawsuit.

Now the city staff has proposed a resolution reaffirming city policy on steep slopes that essentially disregards the jury verdict. That resolution, if passed, directs the building department to withhold building permits on Carter's lots if construction is proposed on slopes in excess of 30 percent where flatter building space is available.

The city contends the interim drainage measure didn't empower then zoning administrator Bob Horne to grant such exemptions if flatter building space is available on the lot. And Horne testified at the trial that he believed building permits for the Grouse Mountain lots wouldn't be granted if construction was proposed on a steep slope if other reasonable buildable space was available on the lot.

Suffice it to say, it's a big mess.

To add insult to injury, the City Council abruptly tabled the resolution at a late hour on Tuesday after promising to let citizens speak on the issue. The council moved on to other business at 12:31 a.m. without even acknowledging the waiting audience.

Whatever the outcome of the slope issue, we believe property rights must be respected. Those who have purchased lots or are purchasing property that includes steep slopes need a clear idea of what Whitefish city law dictates for slope construction during this interim period. And they certainly should have the right to be part of the process as the city sorts out the slope saga.