City studies 'doughnut' representation

Regulation without representation angers county residents in area

By RICHARD HANNERS - Whitefish Pilot

With the Whitefish Growth Policy completed and a critical areas ordinance on the horizon, angry property owners within the city's extraterritorial planning jurisdiction have been clamoring for protection from what they perceive as regulation without representation.

Mayor Mike Jenson addressed the issue at the Whitefish City Council's Jan. 7 meeting, where he proposed a "township" form of government as a possible solution.

Jenson suggested adding two members to the council who would be elected by residents of the city's planning jurisdiction — nicknamed the "doughnut" area. The new members would not be able to vote on city-specific issues, such as the budget, and the council would remain city-led, he said.

The idea is in the conceptual stage, he said, and he "just wanted to let the public know what's happening."

Jenson suggestion got unanimous support from the city council at its Jan. 7 meeting.

"I think it's a great idea," councilor Martin McGrew said. "I heard about this over and over during the campaign."

Councilor John Muhlfeld said he agreed with the general idea, but he wanted to involve Rep. Mike Jopek, D-Whitefish and look at options other than creating a township.

Councilor Nancy Woodruff said it's an important issue that needs to be addressed this year, especially in light of the numerous comments about regulation without representation made in reference to the critical areas ordinance.

A history of regulation

Flathead County and the city of Whitefish had established the planning jurisdiction through joint resolutions since the 1960s, and either side could arguably end the agreement by simply voting to not renew it. The county was considering just that while Dale Williams was a county commissioner, but things changed after Gary Hall defeated Williams in the 2002 election.

In an interlocal agreement hammered out in 2004 between the city and the county, the city expanded its zoning authority from one mile to two miles in exchange for reducing its planning authority from 4.5 miles to two miles. The agreement went into effect Sept. 30, 2005.

As a result, the city took authority over planning, zoning, subdivision review, lakeshore regulation and floodplain regulation within the two-mile "doughnut" area. But language in the agreement makes it practically impossible for one side to unilaterally modify or end the agreement, a point Hall acknowledges.

Section 15 states that provisions "may be waived, altered, amended or repealed in whole or in part, or terminated, only upon the written consent of all parties" and that "the duration of this agreement shall be until the parties mutually terminate it."

The city's annexation of Whitefish Lake in August 2005 vastly increased the size of the "doughnut" area. At the time, city attorney John Phelps made it clear that the city had no intention to use the lake's annexation for future annexations of lakeshore property.

But the city later added a 10-foot buffer to the 20-foot lakeshore protection zone established by state law. Some lakeshore property owners outside the city have harshly criticized the city's action.

After attaching city zoning to all unzoned land within the two-mile area, the city considered two new regulations affecting "doughnut" properties — a "nuisance" ordinance aimed at cleaning up unsightly debris and a regulation requiring a zoning compliance permits for new structures.

Up until several years ago, cities had authority over building permits within one mile of their city limits, but the Montana Legislature eliminated that provision. The city wanted to ensure builders were aware of setbacks and other zoning requirements before starting construction.

The nuisance ordinance was approved, albeit the council advised staff to tread lightly. The zoning compliance permit was made voluntary, but language in the proposed critical areas ordinance would make it mandatory. And opposition to how the proposed critical areas ordinance could impact property values is one of the main driving forces behind the idea of giving county residents more say in the city council.

How it could work

Phelps has been looking at the issue ever since the Whitefish City-County Planning Board requested a presentation by him on how county residents could have more say in planning and zoning. The nine-member board currently has four county-appointed representatives and one from the Flathead County Conservation District.

Putting county representatives on the city council is a different problem. Phelps said creating a "township" might require involvement by the legislature, which could be very difficult, so he's looking at some way to use the city's charter to change the makeup of the council.

"A city charter can take many forms," he said. "It provides cities with a lot of freedom."

Hypothetically, representatives elected by county residents could sit at the council table and discuss issues, but they would only be allowed to vote on the same areas provided for in the city-county interlocal agreement — planning, zoning, subdivision review, lakeshore regulations and floodplain regulations — when they affect the "doughnut" area.

An audit of city ordinances and its committees would be needed, Phelps said. The Board of Adjustment, for example, might have to include some county representatives. He also said he wants a state attorney general's opinion on the charter change.

"A formal attorney general's opinion has the effect of state law unless a court overturns it," Phelps said. "I've researched all the attorney general's opinions on city charters in Montana and haven't found anything like this."

Phelps said he could present an outline of options to the city council by February. A formal opinion from the state attorney general could take six months, so if everything went smoothly, the charter change could go to the city voters for their approval in November.

The county's position

Hall, who faces re-election this year, has harshly criticized the city for how he perceives it has treated the county residents. He cites lost property values along Highway 40 and U.S. Highway 93 caused by language in the city's new growth policy, and he's concerned about the proposed critical areas ordinance.

"I get phone calls every day. People are furious," he said. "If these people can't vote on city issues, then why can the city council vote on county issues? We need to look at how we can best represent people."

Hall emphasizes that he'd like to work things out between the city and the county.

"The city council wants to do what's right for the 'doughnut' residents, too," he said. "We need to sit down together and make it a win-win for everyone."

Nonetheless, Hall said he's considering mailing a ballot to all "doughnut" area residents asking them to choose between three alternatives:

? Some new type of representation on the city council, as proposed by Jenson and studied by Phelps.

? Change the extraterritorial planning jurisdiction's boundary to only include properties that the city is considering annexing in the near future.

"The city should have a concrete written plan showing areas it intends to annex," Hall said.

? Thirdly, rescinding the current interlocal agreement.

"I don't know if I want to include the third alternative because I know how they would vote," he said.

Hall pointed out that county planning has significantly changed in the past few years, and the city has less to worry about when it comes to protecting surrounding county land.

"We have a new growth policy and are finishing up amendments to our subdivision regulations," he said. "We didn't have that when we created the interlocal agreement in 2004. We can do good quality planning in the 'doughnut' area."