Whitefish to fight court ruling

Whitefish's "doughnut" lawsuit is headed to the Montana Supreme Court.

The Whitefish City Council decided late Monday night to appeal a ruling by Flathead County District Judge Kitty Curtis that will allow the county to take control of Whitefish's two-mile planning doughnut area.

Curtis last week denied the city's request for an injunction to block the county from taking control. She ruled that the county's statutory right to plan and zone can not be superseded by an interlocal agreement transferring that authority to the city.

Whitefish and the county created an interlocal agreement three years ago that allowed the city to control growth in the two-mile area outside city limits.

But after Whitefish's controversial critical-areas ordinance passed, imposing drainage-related regulations in that area, the county commissioners voted 2-1 to unilaterally dissolve the agreement.

I believe her ruling is incorrect, Whitefish City Attorney John Phelps told the council. Unless we appeal, the doughnut will go into oblivion over the next several months … her decision doesn't leave us options that are attractive.

Council member Nick Palmer, after moving to appeal, said that without the interlocal agreement, we can kiss the entrance to our city and water quality good-bye.

Phelps argued in court that to lose all zoning control in the doughnut would cause the city irreparable harm.

In her ruling, Curtis said 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.

The county already is taking steps to put a growth policy in place for the doughnut area.

Whitefish will ask the high court to keep the status quo " the interlocal agreement " in place until the court makes a ruling on the appeal.

It's likely they would do that, Phelps said, cautioning that a decision on the appeal could take as long as a year. It would be important to maintain the status quo. Otherwise the county could disassemble our zoning … if you read her [Curtis'] decision, she's cut us off in several different ways.

Beyond the decision to appeal, the council also wants the city to keep an open line of communication with the county. To that end, Mayor Mike Jenson agreed to meet with Commissioner Gary Hall.

Council member Nancy Woodruff reminded her colleagues that the city has worked with the county on joint planning since 1967.

We need to see what we can work out with the county, she said.

Council member Turner Askew, the lone opponent to appealing the doughnut ruling, asked if the city is prepared financially to weather a storm of litigation.

We're about to start down a slippery road, Askew said. I don't think the county is our enemy.

Askew said applying the critical-areas ordinance to the doughnut area was the biggest mistake we ever made and suggested the council reconsider where it applies the new law.

This is going to get expensive, he said.

Phelps he may need additional legal help if the court allows a motion from a Whitefish area couple and holding company to intervene in the city's lawsuit. Otherwise, he can handle it, he said.

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