City attorney's take on Walton decision

By RICHARD HANNERS

Whitefish Pilot

The city of Whitefish may or may not appeal the jury's decision in the Walton case. City attorney John Phelps said that decision must be made by the city council.

"It's my recommendation to resist," he said.

In a unanimous decision June 28, a jury in Flathead County District Court agreed that Whitefish had violated William and Theodora Walton's equal protection rights when the city denied them the right to build a home on a steep portion of their property overlooking Whitefish Lake.

The jury also awarded the Waltons $300,000 in damages, but it hasn't yet been decided whether the city is liable for legal fees or whether the city must issue the Waltons a building permit, Phelps said.

To get a building permit, Sean Frampton, the Waltons' attorney, must file a post-trial motion.

Flathead County District Court Judge Ted Lympus, however, has already ruled that the city's temporary critical areas ordinance, prohibiting building on slopes steeper than 30 percent, is lawful, so it's possible Lympus will not order the city to issue a building permit to the Waltons.

As for the evidence cited by Frampton as crucial in persuading the jury that the city's ordinance was not being fairly applied, Phelps had a different view.

Frampton had argued that former city planning director Bob Horne issued a "reasonable-use exemption" to 11 properties on Grouse Mountain. The sites were similar to the Waltons' property on Houston Drive in that there was sufficient flat land available for construction.

Phelps said the evidence consisted of single-page topographic maps for each of the 11 lots on which Horne had written "RUE granted."

"Horne didn't mean by that that they could build on steep slopes," Phelps said. "He was just reassuring the developer that there was sufficient level land to build."

Phelps said he and Horne both testified to that fact.

"The city would never have allowed the developer to build on steep slopes on those lots," he said.

Phelps noted that none of the 11 lots has sold, and all are still owned by the developer.

"None has applied for a building permit on steep slopes," he said. "No construction has occurred on steep slopes on those lots. No construction has happened period on any of those lots. So from the city's point of view, no discrimination could have yet occurred."

In the meantime, an ad hoc committee continues to work on drafting a permanent critical areas ordinance. One approach under consideration is to exchange an all-encompassing prohibition to a site-specific regulation on steep slopes.

There are two difficulties with the site-specific approach — city staff could find themselves bogged down evaluating hundreds of lots one-by-one, and if the criteria is not specific, the city could find itself facing another lawsuit.

How the permanent ordinance is written could also affect the Walton case. If the permanent ordinance denies them the right to build on steep slopes, they could sue for a takings. But the permanent ordinance could also allow them to build.