Board approves zone changes, Lake Five dock, Creston subdivision

The Flathead County Planning Board on Wednesday recommended the county approve a controversial boat dock on Lake Five, a six-lot subdivision in the Creston area and several rezoning requests that drew objections from neighbors.

The marathon meeting lasted about four and a half hours, ending around 10:30 p.m. The second-floor meeting room of the county's South Campus Building in Kalispell was too small for all the neighbors who showed up to testify on various proposals, so dozens waited in the lobby, monitoring a live video feed of the meeting until it was their turn to walk upstairs and testify.

The board voted 5-0 to forward positive recommendations on five proposals to the Flathead County commissioners. The board held public hearings on two other items but could not take action on them, as one member had to recuse himself due to a conflict of interest. Votes on those items were postponed until next month.

SUSAN DIETZ is seeking a permit to install a floating dock, a boat lift, a stairway and a swim platform off one of two 11.5-acre parcels that make up the Whistlestop Retreat on the west shore of Lake Five. County planning staff reported the T-shaped dock would extend about 43 feet from the shore.

Dietz, an emergency-room doctor in Anchorage, Alaska, purchased the two parcels at 1449 and 1453 Grizzly Spur Road in 2018. Her plans to develop rental cabins on the land have drawn backlash from neighbors, some of whom formed a group called the Friends of Lake Five and sued the county last year. They alleged the county had illegally permitted various structures on Dietz's property, and during litigation the county rescinded a major land-use permit for the retreat.

The parties are working toward a settlement, but two opponents of the project, Mike Kopitzke and Leon Pinski, addressed the board saying a preliminary injunction ordered by District Court Judge Amy Eddy should preclude the Planning Board from approving the boat dock and swim platform.

"There's been a great deal of confusion about docks and this whole proposal," said Kopitzke, who lives with his wife, Kelly Kopitzke, on an adjacent lakeshore property. "We really shouldn't be taking any action on this because the county commissioners have revoked the major land-use permit, and they're right in the middle of litigation."

But planning staff reported Dietz's newer, narrower request is not subject to the lawsuit.

Planning and Zoning Director Mark Mussman told the board he had consulted the county attorney's office, which has contracted outside lawyers to assist with the case, and they determined the new application should be processed.

"If we were advised to put a hold on processing these permits by the attorneys handling the litigation, then we wouldn't be here tonight," Mussman said.

Pinski — who lives in Kalispell and whose wife, Jean Pinski, is listed as the president of the Friends of Lake Five — addressed the board for nearly 20 minutes before board member Greg Stevens asked that Pinski "wrap it up." That prompted a brief, testy exchange in which Pinski asked, "Is that right? You're done?" and Stevens loudly replied, "No, you're done!"

Pinski continued speaking for another two and a half minutes, urging the board to reject the dock proposal.

Later, Stevens said he had interrupted Pinski because everyone who addressed the board on other matters Wednesday night was allotted only three minutes to speak. Stevens also said arguments about the lawsuit are beyond the Planning Board's purview.

"None of us on this board are attorneys," Stevens said. "And when we start talking and talking and talking and talking and talking about legal matters, there's nowhere that we have to go. Because we're not attorneys, we have no basis upon which to make judgments one way or the other. Typically, we rely on our planning staff and our county attorneys for that, and we don't typically get involved too much in them."

The board voted 5-0 to recommend the commissioners approve the permit, adding a requirement that Dietz's swim platform be no more than 8 feet long and 8 feet wide. She has objected to that condition.

BOARD MEMBER Buck Breckenridge recused himself from taking action on two rezoning requests because his father, Rick Breckenridge, was the surveyor representing the two applicants. That forced the board to postpone voting on those items until its May meeting because only five of the board's nine members were present to begin with. When Buck Breckenridge stepped away, there was no quorum.

The board did, however, hold public hearings on the two proposals.

One was a request from Karyl Kim Struck, who is seeking to rezone 28.5 acres at 521 E. Cottonwood Drive in Evergreen, from suburban residential to two-family residential with 5-acre minimum lot sizes. Rick Breckenridge said there are plans to use the farmland for an RV or mobile-home park, and planning staff reported that would be a good use for the property because it sits in a floodplain.

Several neighbors objected to the proposal over concerns about traffic, noise, crime, wildlife and the character of the area. Relatives also aired personal disputes about the wishes of the longtime owner of the property, Struck's husband, who died last fall.

Breckenridge told the board, "We're not here to destroy 90 years of legacy. We're not here to destroy someone's view. We're not here to destroy the place where you walk your dog or view the eagles and the ospreys over on the river."

Between Whitefish and Columbia Falls, Judy Togiai, the Rea Trust and the Bonnie Kent Trust are seeking to rezone nearly 36 acres on Conn Road, just south of Montana 40 along the Whitefish River. They want to change the zoning designation from suburban agricultural with 10-acre minimum lot sizes to rural residential with 2.5-acre minimum lot sizes.

While the applicants insisted they have no plans of selling or attempting to subdivide the property, neighbors objected to the potential for increased housing density along Conn Road, saying additional traffic would create a hazard where drivers turn onto Montana 40. One neighbor referred to that intersection as "profoundly dangerous," and others said there have been fatal wrecks in the area.

Breckenridge said the zoning change is needed to rectify a problem created from a dispute between the county and the city of Whitefish, which fought for years for the authority to zone the area just outside its borders, known as the "doughnut." The Montana Supreme Court gave that authority to the county in 2014, but Breckenridge said the fallout left three parcels split in half by two different zoning classifications, making them less valuable and harder to develop.

"The situation that we're faced with is two different zones on one property … and that is a land-use regulation no-no. We try to avoid that at all costs," said Stevens, the board member. "And so this is an opportunity for the board to rectify a land-use regulation no-no."

Finally, the board forwarded positive recommendations to the county commissioners on several other proposals, including a preliminary plat for a six-lot, 12-acre subdivision at 71 Creston Trail in the Creston area; a rezoning request that would allow several duplexes to be built in the 400 block of Maple Drive in Evergreen; a request to rezone nearly 26 acres at 555 Haskill Basin Road; and a request to rezone a small lot at 121 Poplar Drive in Evergreen for business use.

Reporter Chad Sokol can be reached at 758-4439 or csokol@dailyinterlake.com