Judge rules against city over 'doughnut'

County moving forward with plans to take over jurisdiction of the area

By RICHARD HANNERS / Whitefish Pilot

County officials have announced they are moving forward with plans to take over jurisdiction of Whitefish's two-mile planning and zoning jurisdiction now that the city's motion to retain control over the so-called "doughnut" area pending appeal has been denied.

Flathead County District Court Judge Katherine Curtis ruled June 20 that the city had not shown it would be irreparably harmed if the county took over jurisdiction of the "doughnut" area.

The city had sued to force the county to honor a February 2005 interlocal agreement that created the "doughnut" area after the Flathead County Commissioners voted to rescind the agreement on March 13.

The commissioners cited growing discontent by county residents inside the "doughnut" area who felt their property rights were harmed by city actions, in particular the city's new growth policy and critical areas ordinance.

Curtis granted the city a temporary restraining order pending a decision on the city's request for a preliminary injunction, which she denied on May 1. Noting that the county wanted to adopt its own growth policy for the "doughnut" area, Curtis cited four points of law in denying the preliminary injunction:

? The interlocal agreement "is not a contract mutually capable of specific performance."

? The city sought to prevent duly-elected county commissioners from executing a public statute for the public benefit.

? Whitefish is not likely to prevail because the termination clause of the interlocal agreement prevents the county from exercising authority granted by the state legislature.

? The city was unable to show it would suffer irreparable harm because state law provides for an orderly transition of the "doughnut" area from city to county jurisdiction.

The city appealed Curtis' decision to the Montana Supreme Court and sought a stay to retain control over the "doughnut" area until the high court rules.

In its argument for the stay, the city cited area newspaper articles as evidence that the county intends to enact a growth policy and zoning regulations that would allow development the city would never allow in the "doughnut" area.

But Curtis said the city's evidence did not go "beyond mere speculation." She noted that the county must follow statutorily prescribed public notices and hearing processes that will provide an orderly transition from city to county jurisdiction.

"The city of Whitefish will almost certainly be a very active participant in the public hearing process," Curtis said. "It would appear that if the harm forecast by the city would otherwise result, thousands of Whitefish city residents would also be participants in the process."

That process is now underway. On June 26, the Flathead County commissioners notified the city that they "have determined that we should consider amending the jurisdictional area," and they scheduled a hearing for a resolution on that issue on July 10 (today) at 10 a.m.

The Flathead County Planning Department has already begun working on amendments to the county growth policy to address the change in jurisdiction. A public hearing on the amendments is scheduled to take place at the Roy Duff Memorial Armory in Whitefish on Wednesday, July 26, at 6 p.m.

A copy of the staff report on the proposed amendments is available online at http://flathead.mt.gov/planning_zoning/downloads.php. Comments may be submitted by e-mail to bgrieve@flathead.mt.gov or by mail to Attn: BJ Grieve, Flathead County Planning Department, Earl Bennett Building, 1035 First Avenue West, Kalispell MT 59901.

The county commissioners have also proposed creating an eight-member advisory or steering committee to work with county planners in changing the county growth policy. In a July 2 letter to the city council, the commissioners proposed that the committee include commissioner Hall, assistant county planning director B.J. Grieve and a county-appointed planning board member.

The commissioners also recommended the advisory committee include Whitefish City-County Planning Board member Peggy Sue Amelon; Whitefish city councilor Ryan Friel; Whitefish Mountain Resort representative Greg Lane; a Whitefish community member submitted by the city of Whitefish for approval by the board, with a preference for Marshall Friedman; and one alternate from the Whitefish area, with a preference for Casey Malmquist.

The city council generally didn't approve of the county's letter, but with the exception of councilor Nick Palmer were willing to have talks with the county about the transition of the "doughnut" area.

Mayor Mike Jenson and several councilors didn't like the county telling the city who to appoint to the advisory committee, and councilor Nancy Woodruff suggested not appointing who the commissioners suggested.

Palmer said he opposed responding to the county, calling the makeup of the advisory committee "a joke" and "a sham."

Meanwhile, Whitefish city attorney John Phelps has requested a stay from the Montana Supreme Court and said he expected a reply within a few weeks. He said talking with the county about transitioning jurisdiction would not hurt the city's case.

A final ruling by the high court could be several years down the line. First the court must rule on Curtis' denial of the city's request for a preliminary injunction to the county's rescinding of the interlocal agreement. Then the case will likely go back to Curtis for a ruling on the actual merits of the case. Her decision could also be appealed back to the Supreme Court.