Battle rages over drainage proposal

In the ongoing battle over the proposed critical areas ordinance in Whitefish, the Sensible Land Use citizens group has fired the latest shot - a flier with input from two local engineers who debunk the drainage law.

Sensible Land Use spokesman Tim Grattan said Monday that the organization is mailing the flier to Whitefish residents in response to a flier mailed over the weekend by the city of Whitefish, in which the City Council defends the pending law aimed at protecting drainage-challenged areas.

The controversy has heated up as city government works toward passing the law before the end of the year.

The Whitefish City-County Planning Board will hold its final work session at 7 p.m. today at City Hall and is scheduled to vote on the proposal Oct. 18.

Grattan said he attended the board's first workshop last week and believes planners are having a difficult time coming to grips with a "terribly complex" issue.

Sensible Land Use used testimony from Josh Smith of CMG Engineering and Paul Wells of WMW Engineering to drive home its contention that the proposed ordinance is a "misguided" proposal.

"Both of these experts have carefully reviewed the proposed critical areas ordinance … and point to the incorrect use of technical engineering terms, sections of the law written by people who do not have the correct credentials and instructing experts how to do their job, leading to lawsuits and jeopardizing their professional licenses if they adhere to the law," Sensible Land Use wrote in a letter to the council and Planning Board.

The letter urges the city to delay action on the proposal.

Sensible Land Use first publicly criticized the proposal in mid-September when it mailed out its first brochure, urging citizens to send their comments. This flier also urges the public to comment and get involved.

If the city passes the critical areas ordinance, it creates a conundrum, the group maintains.

"Citizens cannot comply with this law without spending significant amounts of money for experts - and the law can't be enforced by the city without spending huge amounts of taxpayer money," the flier states. "Writing a needlessly complex law with the assumption that the city has unlimited funds to enforce compliance is just plain wrong - and it's wrong to pretend that plenty of money won't be needed to enforce such a complex law."

Smith contends the law wasn't written by a qualified professional and maintains the city uses the wrong methodology for building on slopes.

A matrix, which uses four factors to evaluate the potential instability of a sloped property, isn't adequate for determining slope instability, Smith argues, pointing out there's an extra step in the process that amounts to paying twice for a geotechnical analysis.

The proposal also misuses the term angle of repose, Smith maintained. He said the term refers to the angle at which a loose pile of soil comes to rest, but in slope construction engineers look at soils that have been consolidated and/or compacted over time.

"I couldn't stand behind the matrix analysis in a court of law," he said.

Wells, who has been a civil engineer in Whitefish for 25 years, said the proposed law duplicates federal and state protections already overseen by agencies such as the Army Corps of Engineers, Natural Resources Conservation Service (formerly Soil Conservation Service) and Lakeshore Protection Committee.

Wells maintains the ordinance uses either faulty science or no science to back up its requirements for buffers and setbacks. He also is concerned about how much it could cost citizens wanting to develop their property.

"In practically every paragraph there are provisions that are beyond private property owners' capabilities and they will have to engage someone in order to meet the provisions," Wells states in the Sensible Land Use flier. "These paragraphs could cost hundreds if not thousands of dollars to comply with."

The group continues to argue that the city wrongly used taxpayer money to advertise its viewpoints and support the ordinance.

"The whole ordinance is based on a 'Mother May I,' guilty-until-proven-innocent approach," said Grattan, a longtime Whitefish developer who built out Grouse Mountain and Lion Mountain. "I have dealt with the city for 35 years and I know how bad they can jack you around."

City Attorney John Phelps said it was "perfectly legal and appropriate" for the council to use a mailing to respond to criticism about the proposed ordinance.

"It's one of those inherent powers … in terms of educating people that's pretty legitimate," he said. "They [the council] overlook a lot, such as letters to the editor that are slanted or inaccurate. But when there's something they feel is so wrong, it's legal to spend public money to correct the record."

City Manager Gary Marks agreed with Phelps, saying other lawmakers, such as state and federal legislators advocate for legislation on many occasions.

"People elect them to do just that," Marks said. "The critical areas ordinance is a piece of legislation and the City Council has the right and ability and can advocate in that direction. There's not a question in the law about that."

There are exceptions to such advocating, typically with land-use applications, Marks said. Those are quasi-judicial decisions in which the council acts as a judge, interpreting criteria to grant permission.

GRATTAN SAID he had a hydrologist evaluate how the law would affect a dozen lots he has to develop in Grouse Mountain Estates.

"They all passed the matrix, so I know that under a worst-case scenario" they would be approved, he said. "But I feel it's my civic duty to get involved in this."

Grattan said that not only engineers but also lenders and real-estate appraisers have concerns about how property values will be affected by what he continues to call "a heavy-handed property grab."

The city drafted the critical areas ordinance in response to a recommendation in its stormwater master plan that urged action to protect sensitive drainage areas.

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