'Doughnut' decision delayed again

A proposed agreement over control of Whitefish’s two-mile planning “doughnut” has been tabled again and will go through yet another public hearing on Nov. 15.

The Whitefish City Council held a hearing on Monday and was poised to vote on a interlocal agreement that’s a compromise of how the city of Whitefish and Flathead County will deal with planning issues in the doughnut area.

But after learning that the city attorney wants to add language to the agreement that addresses the city’s lawsuit against the county, the council decided to delay a decision.

“She [City Attorney Mary VanBuskirk] wants language that if the lawsuit isn’t settled, then we’d go back to the original interlocal agreement,” City Manager Chuck Stearns said on Tuesday. The original agreement gives the city control of land-use decisions in the two-mile area.

Also factoring into the council’s decision to delay a doughnut deal was testimony from several people that there hadn’t been enough disclosure of a draft memorandum of understanding that eventually will accompany the new interlocal agreement.

Council members and the county commissioners decided at an Oct. 18 work session that a memorandum of understanding may be the best way to deal with the process by which the county would review city ordinances affecting property owners in the doughnut area. Essentially it will outline how the city and county will communicate, Stearns said.

The council intends to finalize the memorandum sometime later, but even so, more than a dozen citizens testified that the public needs to know what’s in both the final interlocal agreement and memorandum of understanding before the council votes on them.

“This is a shell game,” Mayre Flowers of Citizens for a Better Flathead said after the hearing. “The public got to see only some of what was being considered. Public process-wise, this is disrespectful of the public’s time.”

ANOTHER factor in the continuing doughnut dilemma is a claim from the intervenors in the city’s lawsuit against the county that the representation issue still is unresolved.

The city sued the county two years ago after the county rescinded its interlocal agreement with Whitefish, claiming county residents had no representation when city laws such as the critical-areas ordinance extend to the doughnut.

The city 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.

Whitefish attorney Sean Frampton said his clients — intervenors Heiko and Elizabeth Arndt and Westridge Investments — can’t support a decision made during the recent joint work session to remove a critical paragraph from the proposed interlocal agreement that dealt specifically with providing representation to residents of the doughnut.

“This paragraph was agreed upon by all attorneys involved in the case as a compromise to the parties’ various legal positions,” Frampton said. “Already a compromise, the complete removal of Paragraph 13 leaves the central issue in the lawsuit unresolved.”

Frampton added that a termination clause does not by itself adequately address representation.

“The intervenors will not agree to dismiss the lawsuit if the proposed interlocal agreement does not contain Paragraph 13 or a similar representation clause.”

According to council members, a key reason the paragraph was removed was because it addressed joint city and county control of the doughnut, whereas state law says areas such as planning jurisdictions can be governed only by one entity — either the city or county — but not both.

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