Ruling supports city's critical areas ordinance

By RICHARD HANNERS

Whitefish Pilot

Whitefish's critical areas ordinance got a shot in the arm last week when Flathead County District Court Judge Ted Lympus ruled in favor of the city in the Walton case.

William and Theodora Walton filed suit against the city after their plans to build a home on steep slopes overlooking Whitefish Lake were turned down.

According to Lympus' ruling, the Waltons' architect presented a site plan for the Waltons' three lots on Houston Drive to the city planning office on April 25, 2006.

Bob Horne, acting as the zoning administrator, denied their request, noting that the site was "in the neighborhood of 45 percent," clearly in violation of the urgency measure's prohibition of building on slopes exceeding 30 percent.

"We're pleased with the court ruling," city attorney John Phelps said. "This ruling will give the critical areas ordinance committee and the city council confidence that they're on the right track and can proceed without worries and hesitation."

Phelps said both sides had asked for summary judgment. Because the Waltons, represented by Whitefish attorney Sean Frampton, challenged the ordinance on procedural grounds, saying the ordinance was not correctly adopted into law, the ruling applies to the entire ordinance, which calls for setbacks to rivers, streams, wetlands and lakes, Phelps said.

Frampton said the Waltons will appeal the decision.

Altogether, Lympus denied seven claims by the Waltons that the ordinance was invalid. He denied their claim that insufficient notice was made prior to adoption of the urgency ordinance on April 17, 2006.

Notice was made in the Whitefish Pilot more than three weeks in advance, Lympus said, and the city mailed notices to 97 people in the development community 11 days before the ordinance was adopted.

The Waltons also claimed that the published notice did not specifically mention that the urgency ordinance would apply to steep slopes, but Lympus said it would be "impracticable" for a public notice to cover every item in a proposed ordinance.

"It could be argued that to require such a thing would defeat the purpose of a notice in that its very length would make it less likely that people would read it," he said.

In any event, the notice was "reasonably designed" and "was sufficient to alert" the Waltons about an ordinance that would affect their property.

The Waltons also claimed the urgency ordinance violated substantive due process by being unreasonable in it scope, and that the ordinance lacked facts and foundation supporting a 30 percent slope regulation.

Lympus disagreed, saying the urgency ordinance was intended to enact recommendations of the Whitefish Stormwater System Utility Plan, which includes a prohibition of development on steep slopes.

"A zoning ordinance need not 'provide for the highest or best use of each particular lot or parcel of land within the zones or community, rather it is to benefit the community generally,'" Lympus said, citing precedent.

Regarding whether a scientific basis existed to enact the urgency ordinance, "The court concludes that it was reasonable for the city council to believe the recommendation against development on steep slopes was relevant to the problem of stormwater runoff," Lympus said.

He noted that the city acknowledges that the urgency ordinance is meant to temporarily protect critical areas until a permanent ordinance can be enacted.

Lympus also disagreed with the Waltons' claim that the ordinance violated statutory law by containing two subjects and by not stating an urgency existed.

As for the Waltons' vested rights and their claim that the city's public notice provided insufficient time for them to file a site plan before the urgency ordinance was enacted, Lympus took a strict interpretation of the law — they simply hadn't filed their site plan in time. He also was not impressed by the money the Waltons spent on design.

"The amount of money spent by the plaintiffs is not determinative of whether their rights are vested and is not sufficient to sustain their argument," Lympus said.

The ruling does not rule out whether the Waltons might be compensated for loss of their property. The "takings" issue could be brought up in another lawsuit.