County votes to nix 'doughnut' deal

Flathead County commissioners filed a major salvo in the Whitefish "doughnut" war on Thursday when they voted 2-1 to rescind the interlocal agreement for a two-mile planning zone outside city limits that's controlled by the city.

Commissioners Gary Hall and Dale Lauman voted to rescind the agreement and Joe Brenneman opposed the motion.

A crowd packed the meeting room. When the resolution to rescind the interlocal agreement passed, people applauded and cheered.

Brenneman, however, challenged the decision, saying it was poor public policy and a "fatally flawed" resolution.

"If we adopt this, and I own property in the doughnut, I no longer know who the governing body is. I no longer know what the zoning is," he said. "So it's going to go to court. This in effect stops all growth in the doughnut area until this case gets carried to whatever level of legal procedure it goes through, up to and including the Supreme Court."

Brenneman noted that some cases with the county have lasted for six years.

"Are we really going to say we're willing to stop growth in the doughnut area for six years?" he asked.

Hall, who was the driving force behind the effort to take back county authority over the doughnut area, said the resolution was based on public input, including concern over Whitefish's recently adopted controversial critical-areas law.

Hall contends that between Whitefish's growth policy and new critical areas ordinance, the city already has shut down growth. "I've heard the testimony," Hall said. "I've heard what this [critical areas ordinance] does to the people in the doughnut area. The county residents were absolutely left out of the process. This is an action that must be taken."

WHITEFISH officials have said the county cannot unilaterally withdraw from the agreement that gives the city planning jurisdiction in the doughnut area. Early drafts of the agreement stated that it could be "waived, altered, amended or repealed in whole or in part, or terminated only upon the written consent of all parties to this agreement."

The final draft stated that the county and Whitefish had to jointly determine whether modifications are warranted.

The agreement also states that the city would have sole power to plan, zone and administer its subdivision regulations within the two-mile zone.

Whitefish City Attorney John Phelps said that the commissioners' decision was disappointing but not a surprise.

"My position is that they have no legal right to rescind the agreement," Phelps said. "What they are really trying to do is breach the agreement. It doesn't change anything other than to create a lot of confusion."

Flathead County Deputy Attorney Jonathan Smith had no comment on the situation, but Brenneman said that Smith was not a supporter of the resolution.

In a letter sent to the commissioners on Wednesday, Phelps said that the provisions within the agreement were not controversial when passed in 2005.

"In fact, they were precisely what Gary Hall proposed from the start," Phelps wrote.

Phelps argued that Hall wanted the deal thrown out because Whitefish didn't operate they way Hall wanted.

"There is no valid ground for questioning the agreement," Phelps wrote. "It is a binding contract, plain and simple. Who does not understand what that means?"

Phelps recounts in his letter that when Hall replaced Commissioner Dale Williams, the relationship between the county and Whitefish improved. Six years ago, Williams threatened to have the county unilaterally dissolve the city's extraterritorial planning jurisdiction.

"Gary was interested in calming the waters and re-creating the good faith and cooperation that existed before the Williams era," Phelps wrote. "It is a sad and bitter irony that the man who replaced Dale Williams is now guilty of the same shenanigans that he so frequently practiced. The more things change, the more they stay the same."

BETWEEN Hall's fervent desire to rescind the agreement and Brenneman's insistence that the county keep the doughnut intact, Lauman tried to calm the discussion.

Lauman said the people in the doughnut were being regulated without representation. He said that under the critical areas ordinance, people were losing the ability to use land for which they paid good money.

"I consider that a taking, and I think that's a property-rights issue," Lauman said. "I don't think the agreement is working. I have a file of more than 100 people who are protesting this, and everywhere I go people are tapping me on the shoulder and talking about the doughnut."

Land use within the doughnut is now in limbo. The outcome of the county's decision is unclear, but lawsuits are likely.

"Let Whitefish be Whitefish," Phelps wrote. "Honor your agreements. Work with us to solve mutual problems. But do not underestimate our resolve."

Reporter Michael Richeson may be reached at 758-4459 or by e-mail at mricheson@dailyinterlake.com