Validity of Whitefish 'doughnut' questioned

Lawyer claims pact may be void

The lawyer for a new group representing residents of Whitefish's "doughnut" planning area says the city's interlocal agreement with the county may be void.

Tammi Fisher, a former criminal prosecutor for Flathead County who started a private law firm a few months ago, was hired by the newly organized People of the Doughnut to research the interlocal agreement created in February 2005.

That agreement gave Whitefish jurisdiction over an area extending roughly two miles beyond city limits. It has been a source of consternation for residents of the planning area - called the doughnut - who fall under Whitefish's control but can't vote in city elections.

Most recently, Whitefish's doughnut residents felt disenfranchised when the City Council this week passed the first reading of its critical-areas ordinance controlling drainage and slope construction throughout the city's planning area.

Fisher contends that once the county growth policy was adopted in May 2007, Whitefish no longer had control over the doughnut area.

In a letter sent this week to county Commissioner Gary Hall and Whitefish Mayor Mike Jenson, Fisher cited two state laws, arguing that "unless Whitefish's plan of government is a commission-manager plan … municipal zoning and subdivision regulations can be extended beyond the municipal boundaries 'until the county board adopts a growth policy…and accompanying zoning or subdivisions resolutions that include the area.'"

Whitefish has a charter form of government.

Flathead County's new growth policy talks about interlocal agreements, Fisher noted, but doesn't specifically defer to the interlocal agreement as binding, with regard to Whitefish having control over zoning and subdivision resolutions in the doughnut area.

FISHER FOUND other discrepancies with the interlocal agreement in how it complies with state law defining such agreements.

An interlocal agreement must spell out the duration of the agreement, but Whitefish's agreement with the county only provides that its duration is "until the parties mutually terminate it."

"That is not a 'duration' date," Fisher said.

The agreement specifies that no separate legal entity is created, yet appears to make the Planning Board the "one governmental agency" in the doughnut.

"Delegating legislative authority to the Whitefish City-County Planning Board does not account for the fact that implementation of any zoning and planning [in the doughnut area] can only be accomplished by the Whitefish City Council - a council comprised solely of Whitefish city residents," Fisher said. "This may not be a constitutionally valid delegation of authority."

Fisher also pointed out that state law requires an interlocal agreement to specify how it would be terminated, and the Whitefish-county agreement doesn't broach that subject at all.

"I believe a sound argument may be made that the interlocal agreement is void," she concluded.

WHITEFISH-AREA resident Tom Thomas is heading up the new People of the Doughnut group and has spoken against the interlocal agreement at several City Council meetings.

"The people have spoken out in droves and no one is listening," Thomas said on Friday.

Thomas said he and other doughnut opponents wanted to wait and see what happened with the critical-areas ordinance before they decided how to proceed. Now that it appears the controversial ordinance is on the verge of becoming city law, it's time to fight, he said.

"We'll fight to have it [the interlocal agreement] rescinded," Thomas said, "whether it's a lawsuit or a boxing match outside City Hall."

No city officials were available Friday afternoon to comment on Fisher's analysis. City Manager Gary Marks had the day off; City Attorney John Phelps isn't in the office on Fridays and Mayor Jenson was ill.

Commissioner Hall also couldn't be reached for comment.

Though he supported the interlocal agreement when it was formed, he has been a vocal opponent lately of how the city has decided to exert control through regulations such as the critical-areas ordinance. Hall sent a letter to city officials earlier this month saying that the county may sue if the city doesn't remove the doughnut area from the critical-areas law.

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