Lawsuit seeks to void Whitefish 'doughnut' vote

Four Whitefish-area residents have sued the city of Whitefish, asking the court to throw out a recently passed referendum that repealed a 2010 planning agreement for the two-mile “doughnut” area outside of Whitefish.

Doughnut residents Lyle Phillips and Anne Dee Reno are listed as plaintiffs in the lawsuit, along with departing Whitefish City Council member Turner Askew and city resident Ben Whitten. The complaint filed Tuesday in Flathead County District Court asks the court to declare the referendum illegal and therefore void. The case has been assigned to Judge David Ortley.

“This lawsuit is sadly necessary to accomplish what I and the City Council leadership of Whitefish did not do, which is defend publicly the city’s decision to settle the doughnut lawsuit,” Askew said in a prepared statement.

He said the 2010 revised interlocal agreement — considered a compromise between the city and county — “while not perfect, was the only way to move forward into a new era of respectful interlocal cooperation with Flathead County.”

The two parties a year ago agreed to have the city’s lawsuit against the county over jurisdiction of the doughnut dismissed as part of the revised interlocal agreement.

Askew maintained the referendum — proposed not long after the ink was dry on the 2010 agreement — was pushed by a “small group of elite Whitefish residents who will do anything to continue their reign of power over a jurisdiction not theirs.

“The notion that a group of unelected activists can derail the administrative act of two parties settling a lawsuit, a task vital to any local government’s daily operation, is so disturbing as to warrant the immediate intervention of the Court to declare the referendum void.”

The county commissioners, anticipating the outcome of the referendum, in June gave a one-year notice the county would terminate the 2010 agreement, essentially to get a jump-start on taking back full planning control of the doughnut. A hearing is planned in January to begin the process of putting county zoning back in place in the two-mile area.

The city has argued that without the 2010 agreement, the original 2005 interlocal agreement that gives the city planning control remains in effect.

The new lawsuit, however, quotes Judge Katherine Curtis’ ruling in a joint summary judgment motion as saying the 2005 agreement “is void and is clearly superseded by the 2010 agreement. Any dispute any party may have with the 2010 agreement must be brought in a separate proceeding.”

The city and county jointly wrote in their 2010 agreement that remaining claims in the city’s lawsuit “are moot because the 2005 interlocal agreement is no longer in effect.”

 When the commissioners voted in June to give the one-year notice of termination of the 2010 agreement, they predicted passage of the referendum would lead to more litigation.

“The commissioners’ prediction of escalating litigation was spot on,” said Kalispell attorney Duncan Scott, who represents the plaintiffs in the new lawsuit.

Scott pointed to a recent appeal to the Montana Supreme Court by Whitefish residents Dan Weinberg and Ed McGrew — both referendum supporters — that seeks to preserve the option for the state’s courts to weigh in on jurisdiction of the doughnut. Scott estimated it will take at least a year for the high court to decide the appeal.

Scott also said he’s heard that once three new City Council members are sworn in on Jan. 3, one of their first orders of business will be to authorize a new lawsuit against the county.

“As the new year begins, we expect Whitefish or someone else to ask some court for an emergency injunction to stop Flathead County from assuming jurisdiction over the doughnut,” Scott said.

If that happens, it will fly in the face of the commissioners’ survey of doughnut property owners that indicated 72 percent of the respondents want to be governed by the county.

“We are entering an Alice in Wonderland world where every hallway leads to more lawsuits that cannot be settled,” Scott contended. “We will see multiple lawsuits in multiple courts creating years of confusion, with taxpayers funding both sides. Meanwhile, the doughnut property owners, who do not want Whitefish to govern them, will remain in limbo.”

Scott said the only way to “stop this litigation madness” is for the court to declare the referendum void.

“The law is clear that initiatives and referendums can only address legislation, and a lawsuit settlement certainly is not legislation,” he maintained. “It’s an administrative act. For that reason, our clients have filed this lawsuit to declare the referendum void.”

Askew said he fears the animosity created over the doughnut wrangling will cause voters to turn against vital Whitefish projects such as the upcoming school bond election.

“Upset doughnut voters may look for a way to send a message to Whitefish, and it would be a tragedy if the message came in the form of a bond defeat,” Askew said.

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