Environmental regs OK'd by council

Controversial critical areas ordinance evolved as it underwent two years of review

By RICHARD HANNERS

Whitefish Pilot

Two years after serious consideration of a critical areas ordinance began, the Whitefish City Council approved a first reading of the controversial environmental regulations Feb. 19.

Beginning as a stormwater utility plan under the city's public works department, with a temporary moratorium on development in specified high groundwater areas, the ordinance grew over time to include regulations for steep slopes and lands near streams, lakes and wetlands.

As the ordinance grew and was implemented temporarily through an urgency ordinance, the city found itself sued by William and Theodora Walton, who were denied a permit to build on a steep slope overlooking the lake.

The Waltons won their jury trial on the claim that the city violated their equal protection rights, but Flathead County District Court Judge Ted Lympus ruled in favor of the city on seven claims by the Waltons that the ordinance was invalid.

On Feb. 20, Lympus ruled that the court could not order the city to issue a building permit to the Waltons for a home on a steep slope. His ruling was based on the writ of mandamus filed by the Waltons' attorney, Sean Frampton. Lympus said that kind of writ is reserved for “drastic and extraordinary” causes.

The city also found itself embroiled in a battle of words with Tim Grattan and Pat Fox, who mailed out several brochures warning property owners in Whitefish and the two-mile planning jurisdiction about the ordinance's potential impacts.

The ordinance has been criticized as too complex, and it received mixed reviews from professionals. Some of the cost of administering the law will be borne by property owners — including permits, consulting fees and undevelopable property — but the city will also pay to put the law into practice.

City staff estimate the costs could include $157,180 per year for two new city employees. Start-up costs could include $120,000 for aerial photography and topographical mapping, $30,000 for ground-truthing the locations of natural stormwater conveyances, and $40,000 for education and training.

Councilor John Muhlfeld noted that the cost to implement the ordinance amounts to less than one percent of the city's budget, but councilor Turner Askew wanted to know about the potential cost of litigation.

“I'm assuming there will be lawsuits,” city attorney John Phelps said, adding that the city is protected through the Montana Municipal Insurance Authority.

As for the criticism that the ordinance is too complex, councilor Nick Palmer noted that the city will create pamphlets and other educational tools to explain every topographical issue in plain English.

Critical area ordinances are common across the U.S., Palmer said — it's not a sign of creeping socialism but a fact of living in a modern society.

Among the latest revisions:

• As recommended by Phelps, the city planning director can approve two one-year extensions for reasonable-use exemptions.

An RUE may be issued by the city planning director when the ordinance prevents legal or reasonable use of a legal lot of record.

For dwelling units, a legal or reasonable use may not disturb more than 3,000 square feet or 10 percent of the lot, whichever is greater.

• At the request of the public works department, the ordinance's restrictions on development within natural stormwater conveyances may be applied on a case-by-case basis for unmapped areas.

Mapping of stormwater conveyances across the city's two-mile extraterritorial planning jurisdiction — the so-called “doughnut” area — has not been completed.

• The streamside buffer for the Whitefish River will extend 75 feet from the high-water mark or to the top of the bank, where evident, whichever is greater. The ordinance previously divided the river at JP Road for setback regulations.

• An erosion-control plan is required for all development activities that create more than 2,500 square feet of impervious surface, or involves clearing and grading more than a quarter-acre, or involves clearing or grading land within 100 feet of a stream, lake or wetland.

The selected best-management practice shall not allow a “predicted increase” of more than a quarter ton of sediment per acre a year from leaving disturbed areas.

But the installation and maintenance of erosion control devices “must be sufficient to retain sediment within the boundaries of the site.” In other words, the quarter ton figure is for modeling purposes, but the intent is not to allow sediment to leave the site.

• The maximum-allowable fill in areas where seasonally-high groundwater can reach within 12 inches of the surface is limited to five feet above the surface.

Packed house gives council an earful

Critical areas ordinance raises wide-range of concerns

By RICHARD HANNERS

Whitefish Pilot

The Whitefish City Council chambers remained packed almost to midnight Feb. 19 as the council took public testimony prior to voting on a first reading of the controversial Critical Areas Ordinance.

More than 30 people addressed the council on issues ranging from cost and fairness to whether the proposed ordinance will effectively protect water quality in the area's lakes, rivers and wetlands.

While many of the people hailing from the city's extraterritorial planning jurisdiction — the so-called “doughnut” area — opposed the ordinance, a handful of county residents said they supported more protection for critical areas.

Overall, opinion was generally split over passing the ordinance.

Denise Smith, of the Flat-head Building and Industry Association, said her organization had received calls from property owners concerned about negative impacts to property values.

“We support protecting water quality, but we feel the ordinance does not address water quality but construction,” she said, noting that septic systems and use of de-icer chemicals on city streets was not addressed.

Mayre Flowers, of Citizens For A Better Flathead, however, said studies have proven that property values in areas with strict environmental regulations have increased in value. She also pointed out that addressing environmental impacts afterwards could be more expensive that being pro-active now.

Don Kaltschmidt said he was concerned about how the ordinance was dividing the community. Noting that regulations protecting natural resources are already on the books and the amount of opposition from “doughnut” area residents, he asked if it was really worth it to pass the ordinance.

Greg Carter, a civil engineer and Realtor who has attended many of the meetings on the ordinance over the past two year, said the regulations go far beyond protecting water quality.

“It's not about water quality — it's about control,” he said. “It's about curbing growth.”

Ken Stein, who sits on the Whitefish City-County Planning Board, noted that 12 firms in the Flathead were lined up to do consulting work to implement the ordinance.

“There's money to be made,” he said.

Stein said the cost to the city of administering the ordinance had been “played down.” He said hiring two additional people to handle the work load was “wishful thinking,” and he recommended eliminating the “doughnut” area from the ordinance.

Dave Skinner called the ordinance the “Full Employment For Hydrologists and Lawyers Ordinance,” and he offered a six-word recommendation — “back off, start over or else.”

Bob DePratu said litigation was missing from the ordinance's cost analysis. He was also concerned that Flathead County might sue Whitefish to annul the interlocal agreement that created the “doughnut” area.

“It always bothers me when one government sues another,” he said. “It's such a waste of taxpayers' money.”

Diane Smith, an attorney and self-proclaimed “policy wonk” with experience in Washington, D.C., said she couldn't understand the ordinance. A property owner shouldn't have to hire a consultant and a lawyer just to sell their land, she said.

“We don't want to be a center for litigation,” Smith said. “We all want clean water, but this ordinance is not ready for prime time.”

Paula Sweeney, an attorney who practices in Dallas, Texas, had a different take on potential lawsuits. Saying there was no basis for litigation, she sharply criticized threats by county officials to sue Whitefish.

Richard Hildner, who served on the ordinance's advisory committee, said he didn't get the stricter regulations he wanted, but he encouraged the council to pass the ordinance as written.

Referring to the upcoming “wet basement season” and Flathead County commissioner Gary Hall's election campaign, Hildner called threats of litigation “a red herring” intended to distract the council.

Rebecca Norton agreed with Hildner that the ordinance should be passed even if it wasn't as strong as she wanted.

Civil engineer Ben Cavin also said he wanted stronger regulations. He blamed water quality deterioration in Whitefish Lake on development taking place on steep slopes around the lake.

“The critical areas ordinance will not do the job,” he said. “It's no friend of Whitefish Lake. It's a wolf in sheep's clothing.”

Cavin noted that the urgency ordinance was correct in prohibiting development on slopes exceeding 30 percent. He said the new ordinance's matrix formula for slopes “is a problem, not a solution” because it will help property owners bypass other restrictions.

“Presumably, the city wants to avoid litigation,” he said, recommending the council delete the matrix formula.

Whitefish attorney Sharon Morrison renewed her call for creation of a Water Quality Office rather than a critical areas ordinance, which she described as “too complicated, too burdensome.”

The ordinance puts an unfair burden on properties near riparian areas, she said. The money would be better spent monitoring water quality and then tracking down offenders after deterioration is discovered.

Her law partner, Sean Frampton, supported Morrison's idea, but councilor Nick Palmer noted after the public hearing closed that water quality impacts often originate from nonpoint sources and can't be tracked down. Buffers and setbacks are needed to address nonpoint sources, he said.

Rick Stevens, a Whitefish fisheries biologist and hydrologist, warned the council that the ordinance's goals must be specific, and the regulations must address the goals. In particular, increasing the buffer for special wetlands to 125 feet addressed wildlife habitat concerns, not water quality.

Palmer turned to councilor John Muhlfeld, a professional hydrologist, for advice on Stevens' point. Muhlfeld told Palmer it was not for him to decide, but noting that the council needed to stick with the intent of the ordinance, Muhlfeld motioned to make the buffer 100 feet, the same as for all wetlands.

That amendment and several others were approved before the ordinance was approved 5-1, with Turner Askew voting in opposition.