Judge promises quick decision for Whitefish 'doughnut' injunction
By LYNNETTE HINTZE
The Daily Inter Lake
Following a three-hour hearing Monday, Flathead District Judge David Ortley took under advisement a request by the city of Whitefish for a preliminary injunction to stop county interim zoning in the two-mile planning “doughnut” around Whitefish.
Ortley said he would issue an order “very quickly.”
The hearing proceeded as scheduled, even though attorneys for Flathead County and the city of Whitefish on Friday signed an agreement that, if granted, allows Whitefish to retain planning control of the doughnut and prevents the county commissioners from taking any further action on imposing interim zoning or other county regulations in the doughnut until the merits of pending claims are resolved.
Although the city and county had asked the court to cancel Monday’s hearing in light of the “stipulation” agreement to entry of preliminary injunction, the four plaintiffs who sued the city of Whitefish, asking the court to throw out the referendum that repealed the 2010 interlocal agreement, wanted to present further evidence supporting their claims.
“Our position is if he [Judge Ortley] is going to enter the injunction, we wanted a chance to present evidence for him to consider,” said Duncan Scott, the attorney for the four plaintiffs, Lyle Phillips, Anne Dee Reno, Ben Whitten and Turner Askew.
“Our hope is to push the litigation quickly, because it affects thousands of lives of doughnut residents, and after four years they deserve resolution. We think their wishes should be respected,” Scott said.
Judge Ortley allowed Scott to cross-examine Whitefish Planning Director David Taylor and City Manager Chuck Stearns.
Missoula attorney Alan McCormick, who represents the county in the doughnut case, told the judge the county “wants to get to the merits as soon as possible.”
“We need to get to ruling on the merits,” McCormick said. “The county is not interested in having a fight [over the preliminary injunction] that would cause delays.”
Commissioner Jim Dupont said Monday morning that the county doesn’t intend to oppose the interim county zoning “freeze” in the doughnut “because we know they’d immediately appeal it to the Supreme Court, and that would delay the trial by nine months or more.”
The county was willing to let Whitefish have the lead in jurisdiction in the doughnut as long as the city would agree to not impose any new rules or regulations during that time, Dupont said.
McCormick noted that the city and county have different interpretations about what the county can do during the one-year notice it gave to pull out of the 2010 interlocal agreement. The county, anticipating the outcome of a referendum to throw out the 2010 agreement, gave notice to terminate that agreement last June.
“The county has argued that it can prepare for action to take the jurisdiction back” during that one-year period that ends June 21, McCormick said. “But the county won’t take further action until further order from the court. The county has no plans to undertake public processes” for the doughnut area.
Whitefish attorney Terry Trieweiler, who is representing the city in the doughnut case, said it was important to keep in mind that Monday’s hearing was for the preliminary injunction request, not to argue the merits of the litigation. He said the request for an injunction stopping the county’s interim zoning in the doughnut “is not a radical proposition” because the city has had some measure of jurisdiction in that two-mile ring for more than four decades.
Trieweiler pointed out that the city has invested extensive staff time and money into jurisdictional matters such as zoning, along with lakeshore, subdivision, floodplain and other regulations. The damage of imposing county zoning before the merits of the doughnut litigation have been resolved would cause irreparable damage, he said.
The city has asked the court for a declaratory judgment over the status of the 2005 interlocal agreement. When the referendum voided the 2010 agreement, the city argued the 2005 agreement is still in place, while the county contends it’s null and void.
Trieweiler was successful in having the results of an informal county poll of doughnut residents removed from evidence that was entered into the court record on Monday. The poll asked doughnut residents whether they want the county or city to govern them, and a majority said they wanted county control.
In a separate but related legal matter regarding doughnut litigation, Ortley said he will grant a motion by four referendum supporters to intervene in the lawsuit aimed at throwing out the referendum.
Whitefish residents Dan Weinberg and Ed McGrew, along with Mary Person and Marilyn Nelson, who both live in the two-mile doughnut, asked the court for intervenor status in the lawsuit filed in late December by Phillips, Reno, Askew and Whitten.
John Lacey, the intervenors’ attorney, said his clients support the city’s efforts to retain jurisdiction of the doughnut. He maintained the referendum remains valid until the merits of the doughnut lawsuit have been decided.
Lacey agreed with Trieweiler that putting interim county zoning in place in the doughnut would cause irreparable harm.
“The voters of Whitefish have spoken,” he said, referring to the successful referendum. “The 2010 [agreement] is gone.”
Lacey added that “Whitefish has demonstrated its right to the status quo,” and should be allowed to govern the doughnut under terms of the original 2005 interlocal agreement.
Scott pointed out that while Whitefish voters repealed the 2010 agreement, the county repealed the 2005 agreement five years ago.
“Both were [repealed] unilaterally,” he said. “What’s good for the goose is good for the gander.”
Whitefish and the county have been doing battle over control of the doughnut since 2008, when the county commissioners rescinded the 2005 agreement over concerns the city was imposing regulations in an area where residents can’t vote in city elections.
The 2010 agreement emerged as a compromise between the city and county, and the initial lawsuit filed by the city against the county was dismissed as part of the 2010 revised agreement.
Reporter Shelley Ridenour contributed to this story.
Features editor Lynnette Hintze may be reached at 758-4421 or by email at lhintze@dailyinterlake.com.