Whitefish 'doughnut area' talks favor joint control

A committee tasked with finding a solution to governance of Whitefish’s two-mile planning “doughnut area” is leaning toward a plan that would give the county voting power for new zoning and land-use planning legislation in the doughnut.

But there are several issues still up in the air, including whether or not the county should be able to review all planning decisions made in the doughnut since the interlocal agreement was put in place in 2005.

How to deal with the doughnut became a political quagmire after the county rescinded its interlocal agreement with Whitefish in 2008, claiming county residents had no representation when city laws such as the critical-areas ordinance extend to the doughnut.

The city sued the county and later appealed an adverse District Court ruling to the Montana Supreme Court.

Flathead District Judge Katherine Curtis eventually put the 2005 interlocal agreement back in force pending the outcome of the appeal.

Committee members — a mix of city and county representatives — met Tuesday to review a new interlocal agreement drafted by the lawyers involved with the ongoing talks.

The new doughnut draft is similar to the former interlocal agreement, but breaks out three options for county control in new legislation enactments.

Option A gives the county the ability to vote on land-use decisions affecting the doughnut. After passing any new piece of land-use legislation, the city would have to notify the county commissioners, and the commissioners would conduct their own public hearing.

If the commissioners don’t agree with the city’s decision, they would have 10 days to provide the City Council with a written explanation for withholding consent, and the new legislation would be thrown out. The county would be required to weigh in on city decisions affecting the doughnut area within 30 days; otherwise the city’s decisions would hold.

Option B would give the commissioners an opportunity to comment on doughnut land-use legislation but gives voting power to the City Council.

Option C deletes any explanation of how new legislation enactments should be jointly handled.

“From my perspective, [options] B and C don’t get us there,” committee member Diane Smith said. “A is a good start, but it’s perspective only” and deals with new legislation only.

What isn’t addressed in the draft is how to handle the review of existing land-use regulations — such as the controversial critical-areas ordinance for drainage regulations — that were made under the original interlocal agreement.

Whitefish attorney Sean Frampton, who represents intervenors in the city’s lawsuit against the county, said he believes every land-use decision made in the doughnut area since 2005 is open to a legal challenge unless the county somehow is able to review and give a “thumbs up or down” to those decisions.

“I don’t know if it’s 20 or 200 ordinances, but I think everything needs to be reviewed,” Frampton said. “There has to be a ratification of what’s already passed.”

Smith wondered if there’s a way to simplify that process.

For example, doughnut residents could be polled to determine “the stuff that really ticks you off” and those items could then be reviewed by the county. Frampton said that method “doesn’t fly with due process.”

The committee opened discussion to the public and heard from both supporters and opponents of the original interlocal agreement that gives Whitefish full power in the doughnut.

Marilyn Nelson said Frampton’s assumption is that the current interlocal agreement is invalid, even though the Supreme Court has not yet ruled. She fears a county review of land-use decisions made in the past five years would “dishonor” thousands of hours of community work that went into those decisions.

Rebecca Norton said she believes the committee has “circumvented the public process” and is dismayed with the direction the committee seems to be heading.

“It feels like an extremely manipulative process,” she said, adding she doesn’t support the newly drafted agreement. “I want to keep the current interlocal agreement and I’m fine with it going to the Supreme Court.”

But City Council member Bill Kahle, who chairs the committee, said residents of the doughnut area deserve clarity in who represents them.

“We’re trying to put out a fire,” Kahle said. “We have pending litigation ... and in the meantime [doughnut] residents are asking, ‘Who do I go to for answers?’”

Committee member Lyle Phillips pointed to a survey conducted by the Flathead Business and Industry Association that showed 90 percent of respondents want to be under county jurisdiction.

Some doughnut residents in the audience who favor city control said they didn’t return the survey because it stacked the deck against the city.

The committee tentatively will meet again at 5:30 p.m. Sept. 14 at the Whitefish School District board room at the Middle School.

Between now and then City Manager Chuck Stearns and Smith will work together to tweak the draft agreement. A revised draft will be e-mailed to those on the city’s mailing list and will be posted on the city’s website if and when changes are made.

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