Critical areas: Planners ponder what's 'reasonable'

It's difficult to define a subjective word such as "reasonable," the Whitefish City-County Planning Board agreed Thursday as discussion continued on the proposed critical areas ordinance.

The focus of the work session was reasonable-use exemptions, the planning tool that's available if a piece of property is otherwise undevelopable.

Planners have been inching their way toward some level of consensus on the controversial ordinance that calls for tighter regulations in drainage-sensitive areas. Another work session is planned for 6 p.m. Nov. 8 at Whitefish City Hall.

"The RUE (reasonable use exemption) language is not written very well," said Sean Frampton, the Whitefish lawyer involved in a lawsuit against the city over slope construction rules in an interim critical areas ordinance.

It's unclear, Frampton said, when such an exemption should be used and what the property owner gets with the exemption. There also must be more specific criteria for what's declared undevelopable.

As it's currently written, the ordinance states a legal and reasonable use must be "consistent with similar uses in the same general area, taking into account the most recent construction trends in the general area."

But what if someone buys three narrow lakefront lots and wants to build an 8,000-square-foot home in an area where small houses historically have existed on small lots? Is a larger home a reasonable use? Realtor Greg Carter asked.

Carter said he gets several calls a day from other real-estate agents who have clients wondering if and what they'll be able to build on a prospective piece of property. Since the proposed ordinance still is being tweaked, city planners say Realtors can't use it for guidelines yet.

"I don't understand this ordinance and we cannot advise people if we don't understand it," Carter said. "There's something fundamentally wrong with the city if they can't tell us what we can build."

Frampton said the lack of criteria about what a reasonable-use exemption will do for a property owner leaves the matter too fuzzy.

"It gets the city in too much gray area and gray area causes lawsuits," he said.

Washington consultant John Lombard, with Steward and Associates, said a critical areas ordinance by definition will restrict people from using their property in certain ways.

"We've written the most flexible variance language I've ever encountered," Lombard said. "It's intended to provide broad flexibility."

Providing such flexibility by using an exemption that calls for "reasonable" use is difficult, he admitted.

"It's simpler to be specific," he said.

Planning Board member Lisa Horowitz said it may be difficult to truly define "reasonable" until the city begins processing reasonable-use exemptions and gets a feel for how they'll work.

THERE HAVE been questions throughout the work sessions and public meetings about whether it's best to have only one person issuing the exemptions. The draft calls for the city zoning administrator to make the call on granting or denying reasonable-use exemptions.

The board agreed to keep that arrangement in place, but will add language allowing exemption decisions to be appealed to the Planning Board, not the Board of Adjustment. Ultimately the City Council would rule on an exemption if there's a further appeal.

There also was discussion about whether to make a greater distinction between developers and single-lot owners. Grouse Mountain developer Tim Grattan said it makes sense to clearly differentiate between development projects and property that's already been subdivided and has lots of record.

"In the development process we expect to get run through the ringer," Grattan said. "It's part of the deal. But once a lot is developed and Joe Blow owns it, the ordinance" should recognize that.

Grattan, the spokesman for the Sensible Land Use group that formed in opposition to the critical areas ordinance, said changes made recently in some areas of the draft ordinance have been "a real step in the right direction."

A plan to have additional peer review of the ordinance is good, Grattan said, adding that a legal review also is warranted.

"You want to make it as bulletproof as you can," he said. "You don't want it to be a trial lawyer's relief act."

Once it's passed, the ordinance is expected to require at least two new two full-time city staffers: a geotechnical engineer in the Public Works Department and a planner with environment background in the Planning Department.

With the work session planned for Nov. 8 and a possible Planning Board vote on Nov. 15, it's becoming more unlikely that the ordinance will reach the City Council in time for consideration this year. The council has only one meeting scheduled in December and probably would hold its own work sessions before passing the ordinance.

City elections are currently under way for three council seats and the mayor.

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