Finding a fix for the 'doughnut' problem

State statute allows creation of 'multijurisdictional' districts

By RICHARD HANNERS / Whitefish Pilot

A possible solution to the regulation-without-representation problem for residents within Whitefish's two-mile planning and zoning jurisdiction was raised at the Feb. 19 Whitefish City Council meeting.

Residents in the so-called "doughnut" area have been vocal in their opposition to the city's critical areas ordinance. Flathead County Commissioner Gary Hall has warned the council several times that something has to be done about representation or the county would sue to nullify the city-county interlocal agreement that created the "doughnut" area.

Shortly after he took the helm as mayor of Whitefish in January, Mike Jenson made it a high priority to find a way for "doughnut" area residents to be represented on the city council.

Talk turned to changing the city charter or lobbying the legislature for the creation of township governments, but city manager Gary Marks said a possible solution recently arose from the process to create a centralized 911 dispatch system in the Flathead.

One of the three principles of a combined-dispatch system is shared governance between the county and the valley's three cities, Marks said, and he asked city attorney John Phelps to look at state statutes to find a way to achieve that end.

Phelps found a 1985 statute providing for the creation of "multijurisdictional service districts" that seemed to fit the bill.

By law, a multijurisdictional service district could provide a wide range of services, including dispatch, health, libraries, dog control, jails, ambulance, recreation programs and road maintenance.

A district could also protect "the environment, including scenic concerns" as well as develop or maintain "any public infrastructure facility, project or service."

Local governments could levy property taxes for administration and cost of services within the district, and a board could be set up to govern the district.

Marks said that, based on comments by Hall and concerned "doughnut" area residents, the district board would need to be split 50-50 between city and county representatives.

He suggested a six-member board, with three appointed by the city council and three elected by the "doughnut" area residents.

Councilor Nick Palmer noted that a six-member board with equal city-county representation might have to vote on something as important as the critical areas ordinance, which the council had just passed on a first reading after a long, contentious public hearing.

Palmer suggested there could be a lot of pressure on a single person to join the other side. He suggested a 10-member board with a 5-5 split might take the pressure off a single board member.

Councilor Nancy Woodruff, however, suggested the council talk to "doughnut" area residents before the council goes down the road saying they have the answer.

The consensus among the councilors was to hold open houses with "doughnut" area residents, as earlier suggested by Jenson, before making concrete suggestions based on multijurisdictional service districts.

Flathead County Commissioner Gary Hall told the Pilot he hadn't read the statute and he preferred to wait until Jenson returned to the Flathead before moving on the idea.

"People think we make decisions quickly," he said. "We take our time and make careful decisions."

Commissioner Joe Brenneman said he had talked to Marks about the statute and thought it had "good potential." He said a new interlocal agreement between the city and county would probably be needed to create the district.

As for the critical areas ordinance, Brenneman said it was "passed by a duly elected body" and "if I was fortunate enough to own land in Whitefish, I'd know what I could do with my land."

"If there'd been a large ground-swell of opposition to this, then the councilors would not have been elected," he noted.

Commissioner Dale Lauman said he's received numerous phone calls from county residents in Hall's district concerned about regulation without representation, which he adamantly opposed.

"It should have been considered when they created the 'doughnut' area," he said. "They can appeal to the council, but they have no voting rights."

Lauman, however, was optimistic.

"If people sit down at the table, they can find ways to provide representation," he said.

Attorney for political group claims 'doughnut' is void

An attorney working for a new political group called The People Of The Doughnut claims the interlocal agreement between Whitefish and Flathead County that created the current extraterritorial planning jurisdiction is invalid.

Tammi Fisher, a former Flathead County prosecutor, told the county commissioners in a Feb. 20 letter that Tom Thomas, the political group's founder, had asked her to analyze the current interlocal agreement.

In her letter, Fisher cites Montana law regarding extension of municipal zoning and subdivision regulations beyond municipal boundaries.

Unless the city of White-fish has a "commission-manager" type of government, Fisher claims, its authority over zoning and subdivision regulations in the so-called "doughnut" area ceases once the county adopts a growth policy.

Flathead County adopted a new growth policy in May 2007, Fisher notes, and Whitefish does not have a "commission-manager" type of government, she claims.

Secondly, Fisher cites Montana law regarding the "detailed contents of interlocal agreements," including duration, organization, purpose and joint administering boards.

Because the current interlocal agreement states that "the duration of this agreement shall be until the parties mutually terminate it," it does not provide a duration date or "specific methods to be employed to terminate the agreement," Fisher said.

She also notes that while the current interlocal agreement maintains a city-county planning board, the board's role is advisory and final decisions are made by the Whitefish City Council — "a council comprised solely of Whitefish city residents."

"Based on the foregoing, I believe a sound argument may be made that the interlocal agreement is void," Fisher said.

City attorney John Phelps was not available by press time to comment on Fisher's analysis.