Court won't force Whitefish to issue building permit

Flathead District Judge Ted Lympus ruled last week that the court cannot force the city of Whitefish to issue a building permit to the couple who sued the city for the right to build on a steep slope.

William and Theodora Walton sued the city two years ago after Bob Horne, then the zoning administrator, denied the couple?s plan to build a home on a steep slope overlooking Whitefish Lake.

Horne maintained that the Waltons could build on a flatter portion of their property and thereby didn?t qualify for a ?reasonable use? exemption from zoning regulations.

While Lympus initially ruled in favor of the city, saying the city?s interim critical-areas ordinance that governed slope construction was constitutional, a jury later decided that the Waltons? right to equal protection of the law had been violated because another developer had been granted reasonable-use exemptions on steep lots.

As part of the Waltons? motion for additional relief in the case, they asked the court for a writ of mandamus to compel the city to issue a building permit.

But Lympus, in his Feb. 20 ruling, said such a writ is not the proper tool to ask the city to ?correct or revise erroneous action already taken.?

A writ of mandamus, Lympus noted, is reserved as a ?drastic and extraordinary? remedy limited to extraordinary causes.

?The court cannot compel the issuance of a building permit without it being shown that the city?s building department has a clear ministerial duty to issue the permit and has not done so,? Lympus wrote.

WHITEFISH City Attorney John Phelps said Lympus? latest ruling is a ?significant victory? from the city?s point of view.

?Despite all the litigation, 06-08 (the interim critical-areas ordinance) is still binding, and the city accomplished its goal,? Phelps said. ?The city?s goal all along has been to enforce 06-08 until we had something better and permanent.?

Sean Frampton, the Waltons? lawyer, said he disputes the notion that Lympus? ruling is a victory for the city. The court simply has said that a writ of mandamus is not the proper vehicle by which to get a building permit, he said.

?Procedurally it means we go back to the city and reapply? for a building permit, Frampton said.

He noted that in the very beginning of the case the Waltons asked the city to identify every basis for which they would deny a permit.

?We never got a response,? he added. ?The city has never come back and said there?s a problem with the permit.?

The Waltons filed for a building permit in August 2006, but the city declined to process the permit application because the couple?s site plan already had been denied.

Now that the City Council has passed the first reading of a permanent critical-areas ordinance, the Waltons will work with the city to see if their plans fit within the parameters of the new law, Frampton said.

In Lympus? latest ruling, he ordered that the city pay the Waltons? attorney fees. Frampton said he will be submitting a bill for about $100,000.

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