Critical-areas law gets mixed reviews

By LYNNETTE HINTZEThe Daily Inter Lake

How well Whitefish's critical-areas ordinance is working depends on whom you ask.

From the city of Whitefish's point of view, the new comprehensive drainage law isn't as acrimonious and heavy-handed as many feared it would be.

But Realtors say they're losing business because the law is too complex, too expensive and makes it impossible to accurately place a value on property within the Whitefish planning jurisdiction.

In the nearly three months since the critical-areas ordinance took effect, the city has processed 60 preliminary applications, the first step in the process.

"There's not a project yet we have denied," Whitefish Planning Director David Taylor said. "It [the critical-areas ordinance] certainly is less restrictive" than the interim ordinance was in regulating construction on slopes.

Taylor said approval also is forthcoming for the home of William and Theodora Walton, the Whitefish couple who sued the city because it denied a reasonable-use permit to build a home on a 45-degree slope in the Houston Point area on Whitefish Lake. The Waltons' attorney, Sean Frampton, couldn't be reached to confirm the city's approval.

RANDY Overton, a senior hydro-geologist with RLK Hydro in Kalispell and the consultant who helped draft the critical-areas ordinance, has conducted the analyses for the majority of the applications that have moved to the next level for screening. Many of the cases he's dealt with have been in the upscale Iron Horse development on Big Mountain.

"I've done quite a few at Iron Horse and a number of others the city probably isn't aware of yet," Overton said. "It's been a mix of people in the process of building and others ready to put their property on the market."

Site screening generally has been "pretty inexpensive" for most applications, he said, typically $500 or less. Only two cases, both beside Whitefish Lake, have required a more detailed analysis, with one of those cases needing geotechnical work that may cost up to $10,000.

Though Overton has handled the lion's share of critical-areas cases to date, the city has a dozen qualified professional firms on its roster. The planning staff on Thursday will conduct training on the critical-areas law for another 11 firms that signed up to be on the list.

"There was a lot of hype, people crying wolf" when the ordinance was adopted, Overton said. "With myself being involved, I never expected any big problems.

"The whole point of analysis was to judge lots individually and take the merits and develop a simple mechanism for lots with no issues," he continued. "I've worked on enough of a cross-section to know that it holds true for the vast majority of the Whitefish area that the vast majority [of lots] will be trouble-free."

Whitefish City Attorney John Phelps said the fact that most applicants have passed the law's matrix and haven't had to do further geotechnical analysis indicates it's working as it was intended.

After getting an update from Overton, Phelps noted that "without the geotechnical analysis required by the critical-areas ordinance," both of the sites that required more study could have had serious slope failures.

"There's been a lot of gloom and doom predicted by some locals, and the truth seems to be that the critical-areas ordinance is allowing people to build what they want, where they want," Phelps said.

REALTORS see a different scenario unfolding.

Greg Carter of Rocky Mountain Real Estate, a vocal critic of the critical-areas ordinance, said he's had two transactions fall through in the last month because of the complexity of the law and the uncertainty it wields.

The Northwest Montana Association of Realtors in April released a critical-areas ordinance disclosure form for members aimed at educating clients and disclosing "the impossibility of accurately placing a value on real property in Whitefish."

The disclosure form requires sellers and buyers to contact the city Planning and Building Department to determine the property's use and to inform buyers that brokers and real-estate agents can't provide an accurate opinion of the property's value because the critical-areas ordinance will affect properties to different degrees.

"People are refusing to sign [the disclosure form] and it's causing people to look in other cities or the county for property," Carter said.

He also pointed to the excessive cost of getting a clean bill of health for certain lots.

Tim Grattan, one of Carter's clients, just paid $30,000 to do site analysis on eight of 12 lots he's developing in Grouse Mountain Estates - lots that previously had been approved via reasonable-use exemptions.

"By the time he's done he'll end up spending $60,000 to $70,000 for 12 lots that have no possibility whatsoever of affecting water quality," Carter said.

Preserving water quality was the impetus for the critical-areas law that imposes stricter regulations for building in drainage-sensitive areas.

The Grouse Mountain Estate lots came into play in the Waltons' lawsuit when Frampton, in making his case that the Waltons' right to equal protection of the law had been violated, noted that Bob Horne, the Whitefish planning director at the time, had granted reasonable-use exemptions to build on 11 Grouse Mountain Estates lots with slopes up to 40 percent.

A jury ruled in favor of the Waltons on that issue, but Carter said the city attorney later unilaterally disapproved the reasonable-use exemptions for those lots.

WHEN THE City Council approved the critical-areas law effective April 2, council members acknowledged the law would be a work in progress, and that changes would be made as time goes on. To that end, the Planning Board last week dealt with 10 minor changes to further clarify the law.

The city also still needs to figure out a way to pay for the cost of administering the critical-areas ordinance. A $50 preliminary application fee doesn't begin to cover the staff time that adds up to several hours in some cases, Taylor said.

"We're getting a lot more preliminary applications than we anticipated," he said. "It's very time-consuming."

Whitefish City Manager Gary Marks has proposed a hiring freeze for the coming fiscal year, anticipating a slower growth rate in the resort town.

Revenue collected from zoning permits and planning fees is down significantly. Zoning-permit collections for the third quarter dropped from $91,200 in 2006 to $59,222 last year. Revenue from planning fees for that same quarter plummeted from $193,021 in 2006 to $77,381 last year.

During a recent budget report, Marks said the slowdown should allow the existing planning staff to handle the critical-areas load, but Taylor hopes to get one more planner on board.

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