'Doughnut' intervenors want court ruling

As promised, the intervenors in the city of Whitefish’s lawsuit against Flathead County over control of Whitefish’s two-mile planning “doughnut” have asked Flathead District Court Judge Katherine Curtis to rule on the merits of the lawsuit.

The intervenors’ “notice of nonsettlement” and request for a ruling comes just weeks after the city and county approved a revised interlocal agreement for the doughnut area.

As part of the deal, the city agreed to ask the court to dismiss its lawsuit against the county.

Whitefish attorney Sean Frampton, who represents intervenors Heiko and Elizabeth Arndt and Westridge Investments, said in his written request to the court that “substantial issues involving fundamental rights of citizens remain at issue,” namely the representation issue for doughnut area residents.

The representation issued boiled over when the city passed the critical area ordinance that put new drainage-related laws in place in the doughnut, where residents have to abide by city law but can’t vote in city elections.

That prompted the county to abruptly rescind the interlocation agreement two years ago. The city sued the county and later appealed an adverse District Court ruling to the Montana Supreme Court, which sent the case back to District Court. In the meantime, the District Court put the 2005 interlocal agreement back in force pending the outcome of the lawsuit.

Frampton has said all along that his clients can’t support the revised interlocal agreement because a critical paragraph dealing with representation was removed as the two governing bodies worked toward a compromise.

Instead of providing the county with veto power over city legislation in the doughnut area, the compromise agreement allows the county to review city laws affecting the doughnut. A forthcoming memorandum of understanding will detail exactly how the city and county cooperation will play out.

Frampton pointed out that nearly all of the public comment taken at a Whitefish City Council hearing on Nov. 24 was in opposition to the revised interlocal agreement, largely because of the representation issue.

He maintained that beyond the representation issue, there are other unresolved issues, including:

• Whether the interlocal agreement exceeds the scope of the Interlocal Cooperation Act;

• Whether the doughnut residents’ constitutional rights have been infringed upon by allowing another local government to adopt laws against them;

• Whether the interlocal agreement infringes and renders unavailable the citizens’ constitutionally retained rights of initiative and referendum;

• Whether the agreement fails because it does not provide for an administrator to administer the interlocal activity.

“Perhaps the only issues in the lawsuit that have been resolved are the requirements for an interlocal agreement to have a duration and termination clause,” Frampton said. “However, those issues are not completely resolved because the agreement adopted only becomes effective if this lawsuit is dismissed.”

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