Doughnut dispute: Whitefish tries to keep councilman from talking

In the legal battle over control of Whitefish’s two-mile “doughnut,” the city of Whitefish has taken court action to prevent City Council member Chris Hyatt from talking about earlier negotiations between the city and Flathead County.

The city on Thursday filed a motion for a protective order for Hyatt, asking the court to restrict him from giving a deposition in a lawsuit over the doughnut.

At the heart of the long-running dispute is which government body — city or county — has planning jurisdiction in the two-mile extraterritorial area surrounding Whitefish.

A year ago four Whitefish-area residents sued the city of Whitefish, asking the court to throw out a referendum passed by voters in November 2011 that repealed a 2010 planning agreement for the doughnut.

The 2010 agreement emerged from the original 2005 interlocal agreement that largely gave Whitefish control of the area. The county had rescinded the 2005 agreement because doughnut residents have no representation since they can’t vote in city elections.

The new agreement was considered a compromise between the city and county, but opponents pushed for a referendum because they contended the pact didn’t give Whitefish enough ability to manage growth in the two-mile area.

Lyle Phillips, Anne Dee Reno, Turner Askew and Ben Whitten are plaintiffs in the lawsuit against the city and are represented by Kalispell attorney Duncan Scott.

The case is headed to trial in April 2013 unless the parties can resolve their differences.

Scott said a mediation session in late July was attended by representatives of the city, the county commissioners and intervenors in the lawsuit.

“It was not successful,” Scott said. “We were looking for meaningful representation [for doughnut residents] but Whitefish had nothing to offer in that regard.”

As the legal wrangling plays out, a preliminary injunction remains in place to stop interim county zoning in the doughnut.

All of the parties involved in the lawsuit recently submitted to Flathead District Court their motions for summary judgment.

Scott’s clients take issue with Whitefish’s allegation in those court documents that the “county refused to meet with the city and work in good faith to resolve” their differences over the 2010 agreement.

“The late [county commissioner] Jim Dupont worked tirelessly” to find common ground, Scott said.

Dupont, who died unexpectedly in March, negotiated on the county’s behalf to keep the 2010 compromise in place, even as the referendum effort to throw out that compromise was taking shape. Once it became clear the city ballot referendum was moving forward, the county commissioners gave a one-year termination notice to scrap the 2010 agreement.

Scott said he believes Hyatt and Dupont continued to talk even after the county gave its termination notice.

“Councilor Hyatt clearly is a witness,” Scott wrote in his motion to compel the deposition of Hyatt. “Second, he is a rebuttal witness ... to Whitefish’s attempt to rewrite history in its motion for summary judgment.”

Scott said his request to depose Hyatt has “greatly upset Whitefish.”

Whitefish’s legal team — City Attorney Mary VanBuskirk and Whitefish attorney Terry Trieweiler — then filed a motion and brief in support of a protective order for Hyatt that, if granted, will prevent Hyatt from sharing his recollections of the city-county negotiations.

The city maintains Hyatt’s testimony isn’t relevant to any issue before the court, based on all parties’ briefings.

“Even if Jim Dupont’s friends were allowed to testify, a single commissioner’s conduct cannot speak for the county’s conduct,” VanBuskirk wrote in the motion for protective order.

Scott has asked the court to extend the summary judgment briefing deadlines while the deposition matter is resolved.

As for the lawsuit, there are two issues to be resolved, Scott said. First: Is the referendum legal?

Scott said he believes the law is clear that a referendum can only address legislation, not an administrative act such as the interlocal agreement.

“Secondly, if the referendum is legal, where are the parties now?” he asked. Do both sides revert to the original 2005 agreement or the 2010 compromise?

“The significance is, if we go back to the 2010 agreement we believe that has been properly terminated,” he said. “For Whitefish to prevail, they have to win” on the first issue and successfully argue that the referendum was indeed legal.

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