Last chapter unfolds for drainage law
It's reckoning time for Whitefish's embattled critical-areas ordinance.
The Whitefish City Council will hold a final public hearing on the comprehensive drainage law at 7:10 p.m. Tuesday, and is expected to vote on the first reading of the ordinance. It's the culmination of two years' worth of meetings, hearings and workshops on one of Whitefish's most controversial pieces of proposed legislation.
In December, the Whitefish City-County Planning Board deadlocked on the ordinance and sent it to the council without a recommendation. Most problematic were a complex soil-stability matrix for slope construction and limits for sediment discharge from disturbed areas.
The council spent January working through final questions on a number of elements in the proposal, including wetlands, buffer zones on rivers, reasonable-use exemptions and erosion and sediment control. Among the most significant changes are:
. New language in the buffer and setback section changes the buffer on the Whitefish River to 75 feet from the ordinary high water mark or the top of the bank, whichever is greater for the entire length of the river. Previous language that called for different setbacks on the Whitefish River from Whitefish Lake to JP Road and downstream of JP Road has been removed.
. Extra-wide buffer widths of 125 feet were added to the wetlands section for specific high-quality wetlands.
. Language explaining allowable activities in buffer zones was clarified to note that trails constructed in buffers also are required to comply with erosion control and mitigate for impacts.
. There's extensive new language clarifying erosion and sediment control, but a 0.25 tons per acre sediment discharge level was retained.
If the ordinance passes it will cost the city close to $350,000 to administer during the first year. City staff members have estimated it will take two additional employees to enforce the critical-areas law, at a cost of $157,180 per year. That will be an ongoing cost.
Aerial photography and topography mapping will cost $120,000, but those costs could be shared with other public agencies, senior planner Wendy Compton-Ring said. Stormwater conveyance "ground truthing" will cost $30,000. Ground truthing is the use of a ground survey to confirm the findings of an aerial survey.
Education and training to teach people how to use the slope matrix and understand other elements of the law would cost about $40,000.
WHITEFISH'S critical-areas saga has dragged on for more than two years.
It began in July 2005 when the City Council adopted its first emergency ordinance, putting development on hold in sensitive drainage areas until a stormwater master plan could be completed. That plan was approved in March 2006.
In April 2006 the council moved forward with another emergency ordinance that put interim regulations in place, allowing engineering to proceed on projects delayed by the first emergency ordinance.
By October 2006 the city was ready to proceed with a permanent version of the stormwater ordinance. Then it became a proposed interim ordinance, with a permanent version promised once the growth policy was completed.
The Planning Board rejected the initial proposal for an interim ordinance largely because of a 30 percent slope restriction, and sent it to the City Council in November 2006. A month later the council bounced it back to the Planning Board for further review after two opposite drafts of the law emerged.
Board members spent nearly all of 2007 working through the proposed ordinances, holding hearings and numerous work sessions.
Critics of the proposal have warned the city that it can expect lawsuits challenging the drainage law.
The interim critical-areas law was the focus of a lawsuit two years ago when a Whitefish couple sued the city because their plans to build a home on a 45-degree slope were stymied when the city denied a site plan. City officials wouldn't allow construction under the terms of its "reasonable use" clause because they maintained the couple could build on a flatter portion of their property.
While the court ruled in favor of the city on several procedural claims in the lawsuit, a jury favored the couple on the question of whether or not their right to equal protection had been violated.
The city is scrambling to get the critical-areas ordinance passed before the interim ordinance expires on March 2. If a second reading of the permanent ordinance passes, it will take effect the same day the interim law expires.
Features editor Lynnette Hintze may be reached at 758-4421 or by e-mail at lhintze@dailyinterlake.com