'Doughnut' lawsuit sent back to local court

The Montana Supreme Court has sent the Whitefish "doughnut" lawsuit back to Flathead District Court for further consideration.

At stake is the city of Whitefish's planning control in the two-mile doughnut outside the city.

When the county earlier this year rescinded its 2005 interlocal agreement that gave the city control of the doughnut, the city sued the county and later appealed an adverse District Court ruling to the state Supreme Court.

In a ruling issued Tuesday, the high court vacated a District Court order denying the city of Whitefish's application for a preliminary injunction and remanded the matter to the lower court for entry of a preliminary injunction to preserve the status quo, pending a trial on the merits of the case.

"Quite simply, by chronologically resolving the merits of the case first and the resulting propriety of the requested preliminary injunction second, the District Court put the cart before the horse," Supreme Court Justice Patricia Cotter wrote in the high court's opinion.

District Court Judge Katherine Curtis determined the city was unlikely to prevail at a trial based on the merits of the case, and that the city had not established irreparable or injury to justify an injunction. But the Supreme Court noted it has consistently held that a District Court should not resolve the ultimate merits of a case when initially analyzing the propriety of a preliminary injunction.

Supreme Court Justice John Warner dissented from the ruling, arguing District Court "had no choice but to consider the ultimate legal issue involved.

"The [Supreme] Court correctly faults the District Court for reaching a decision on the ultimate issue presented before a trial on the merits, but under the circumstances presented here, that mistake is not substantive," Warner said. "There will be no trial on the merits …there is nothing to try."

Neither Whitefish City Attorney John Phelps nor county legal counsel Alan McCormick were available to comment on the ruling.

Since voting to rescind the interlocal agreement, the county commissioners have taken steps to reclaim planning and zoning in the doughnut.

They amended the county growth policy to remove references to the interlocal agreement and are on the verge of approving the Whitefish Area Zoning District that will scrap city zoning and put county zoning in place once again in the two-mile area, using the 1996 Whitefish master plan as a guide. The commissioners are scheduled to vote on the zoning on Jan. 13.

It's somewhat unclear how the status quo will play out in the doughnut as the legal wrangling continues.

In October the county adopted its growth policy, which county proponents allege had the effect of removing roughly 20 percent of the doughnut from Whitefish's jurisdiction and placing it under county control. So at this point, it could be argued that the status quo constitutes county control of 20 percent of the doughnut land.

The Supreme Court implies in its ruling that it cannot order previous actions to be undone, saying "we could not restore the parties to their original positions once the challenged conduct had occurred."

If the county adopts the zoning plan before the District Court issues a ruling, it's possible the county could take control of the remaining 80 percent of the doughnut land, essentially establishing a status quo of full county control.

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