Ruling: County is in control

An injunction filed to block Flathead County from taking control of Whitefish's two-mile planning "doughnut" was denied Thursday, opening the area to county regulation.

Planning and zoning ordinances passed by the city of Whitefish will remain in effect until a county growth policy is created to replace them, ruled Flathead County District Court Judge Katherine R. Curtis.

The county appears prepared to step in.

"We are prepared in a few days to have the road map defined on where we are going to go," said Flathead County Commissioner Gary Hall. "We'll have a couple of public hearings and change our growth-policy language. When the lawsuit is dismissed, we'll have a plan in place."

The doughnut controversy began when the Whitefish City Council began considering a critical-areas ordinance, imposing regulations in sensitive drainage areas, including areas inside the doughnut.

County commissioners Gary Hall and Dale Lauman opposed the ordinance, claiming that Whitefish was exerting too much control over an area in which residents cannot vote or be elected to the City Council.

When the council approved the critical-areas ordinance in March, commissioners in a 2-1 vote unilaterally dissolved the planning agreement that established the doughnut. Commissioner Joe Brenneman opposed the move.

In response, the city of Whitefish sued the commissioners - alleging the county had no legal right to back out of the agreement - and filed for a preliminary injunction to prevent the doughnut's disintegration.

In an April 23 hearing, Whitefish City Attorney John Phelps argued that the language in the interlocal agreement prohibited either party from unilaterally withdrawing from or terminating the agreement.

He also argued that city and county governments have a wide latitude in constructing such interlocal agreements, and that allowing the county to back out would cause the city of Whitefish irreparable harm.

"To lose all zoning control in the area immediately surrounding your city is, in my point of view, irreparable harm," Phelps said Thursday.

But in her decision, Curtis ruled that the county's statutory right to plan and zone can not be superseded by an interlocal agreement transferring that authority to the city.

"The Legislature clearly intended … that the county retain the ability to at some point in time adopt a growth policy and accompanying zoning and subdivision regulations in an extra-territorial area and, therefore, restricted a city's authority to exercise its jurisdiction over such an area to situations where the county had elected not to do so," wrote Curtis.

The decision to appeal Curtis' ruling will rest with the City Council, which meets Monday, Phelps said.

The critical-areas ordinance will continue to apply to residents of the doughnut until the county overrides it. Hall said Thursday that the county has ordinances on the books to protect water quality.

Reporter Nicholas Ledden can be reached at 758-4441 or by e-mail at nledden@dailyinterlake.com