Critical-areas law a done deal

The Whitefish City Council on Monday gave its final blessing to the beleaguered critical-areas ordinance, although questions lingered with many in the audience about the drainage law's far-reaching effects.

The new law is effective immediately and will include Whitefish's two-mile planning area - the "doughnut."

Although the public hearing on the drainage law concluded last month, many people, both supporters and opponents of the critical-areas ordinance, took the opportunity to make one last plea with the council during the general public-comment portion of Monday's meeting.

In the end, the council passed the law 4-1, with Turner Askew in opposition.

"We may pass this tonight, but we won't be through with it tonight," Askew warned his fellow council members.

Threats of lawsuits already have surfaced from county Commissioner Gary Hall and Tom Thomas of People of the Doughnut, both of whom wanted the city to exclude the doughnut area from the new law.

Realtor Greg Carter made a final attempt to get answers about how the critical-areas ordinance will affect lots he's working to develop in Grouse Mountain Estates. After city staffers inspected the lots, they were asked by City Attorney John Phelps not to render any opinion until the second and final reading of the law had been completed.

Carter maintained that the Grouse Mountain lots, while steep, have "absolutely no possibility" of affecting water quality because of specially designed drainage systems that can be put in place. Yet he said the city declined to answer his two burning questions: Can the property owner build anywhere in the building envelope? How large a home can they build?

"You owe it to yourself to see what staff will say," Carter told the council. "I'd like you to hear me on behalf of the hundreds of property owners" who will be similarly affected.

Council member John Muhlfeld, who worked with Carter to get answers from city staff, said he, too, believed the city should have responded to Carter.

"We can't hold these properties hostage," Muhlfeld said.

But Phelps said it was imperative that the law be passed before decisions were made.

"We will deal with these lots," Phelps promised, "But to do our job right, we need to know what we're adopting."

BRIAN WOOD, who co-owns a half acre near Whitefish Lake that formerly was known as Birch Harbor Resort, said the critical-areas ordinance, in particular its definition of top of river bank for setbacks, makes the site unbuildable.

A couple of years ago when he was asked by the city to grant an easement across the property to accommodate the relocation of a sewer-lift station, he and his partner allowed it. In turn, the easement allowed for completion of the bike path that connects to City Beach.

"We were happy to accommodate the city and do our part to help the path become a reality," Wood said. But as they say, 'No good deed goes unpunished.'"

The new drainage law will allow only 400 square feet of land on the half-acre to be disturbed through redevelopment.

"That is simply unacceptable," he said.

Several council members later sympathized with Wood's plight. "It doesn't seem right to penalize someone who's done us a favor," Deputy Mayor Nancy Woodruff said. She suggested amending the newly passed law to somehow accommodate property owners who have given easements to the city, but Phelps said that might be premature.

"Let him [Wood] approach the staff," Phelps said. "We're hearing this for the first time. No one's had a chance to check it out and the system hasn't even begun to operate."

One crucial amendment suggested by Askew was approved.

For properties that will need a reasonable-use exemption, the reasonable use may now disturb no more than 5,000 square feet or 15 percent of the parcel, whichever is greater. Previously the limit was 3,000 square feet or 10 percent, but there were questions about whether that was enough space for wider driveways to accommodate fire trucks.

To administer the complex law, the city anticipates hiring two employees at a cost of $157,000 a year. Aerial photography and mapping will cost about $150,000 but the city expects to share costs with other government agencies. About $40,000 would be allocated to education and training.

Money to administer the law largely will come from user fees.

Whitefish Senior Project Engineer Karin Hilding said the public-works staff has begun developing a schedule of fees that will be applied to properties as part of implementing the critical-areas ordinance.

Despite the added cost, council members praised the critical-areas ordinance.

"It's really a great ordinance," Nick Palmer said. "It's about social change and accepting responsibility for our actions."

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