City attorney: 'Doughnut' agreement is valid

By RICHARD HANNERS / Whitefish Pilot

Whitefish's planning and zoning authority on county land within two miles of city limits is valid, city attorney John Phelps said last week.

Phelps was responding to a Feb. 20 letter sent to the Flathead County commissioners by Tammi Fisher, an attorney working for a new political group called The People Of The Doughnut, which claimed the city-county agreement creating the so-called "doughnut" area is void.

"There's nothing in her letter that worries me," Phelps said.

In an eight-page letter to Fisher, the city attorney described the 40-year-old history of the current interlocal agreement and responded point-by-point to Fisher's analysis.

The impetus for drafting the current interlocal agreement in 2005 included "tensions resulting from the different planning philosophies of the two governing bodies, as well as the county commissioners' unwillingness to approve the latest master plan adopted by the Whitefish City Council," Phelps said.

In the preceding years, the county had unilaterally withdrawn from the Flathead Regional Development Office, which had provided joint planning for the county and the valley's three cities.

In addition, former commissioner Dale Williams had threatened that the county would unilaterally withdraw from the prior interlocal agreement, which had provided Whitefish with a 4 1/2-mile planning jurisdiction and a one-mile zoning jurisdiction.

After Gary Hall defeated Williams, the county took a different tact, offering the city a larger zoning jurisdiction in exchange for shrinking the planning jurisdiction. The city would have authority over planning and zoning, as well as subdivision, lakeshore and floodplain regulations, on county land within two miles of city limits.

The interlocal agreement hammered out by Phelps and deputy county attorney Jonathan Smith also stated that "the duration of this agreement shall be until the parties mutually terminate it."

"One of the key incentives to the city was the permanence that would result from a formal interlocal agreement," Phelps said. "Without this language, the city would not have entered into the interlocal agreement."

Fisher claimed in her letter that the current interlocal agreement is void because it does not provide a duration date or "specific methods to be employed to terminate the agreement."

But the state law Fisher cites never refers to setting a "date," Phelps said, and the method to terminate the agreement is clearly spelled out — both parties must "mutually terminate it."

Fisher also claimed that the city's authority in the "doughnut" area ends when the county adopts a new growth policy, but the county's growth policy does not cover that area, Phelps said.

"By agreement, the county's growth policy stops at the edge of the city's two-mile doughnut," Phelps said. "The city's jurisdiction within the two-mile doughnut, therefore, is not threatened by the county's growth policy."

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

Phelps said he and Smith addressed each of those points one-by-one when drafting the current interlocal agreement.

Group leader has had run-ins with state over erosion issues

By RICHARD HANNERS / Whitefish Pilot

The People Of The Doughnut, a new political group aimed at ending Whitefish's authority over planning and zoning in the two-mile "doughnut" area, is headed up by a local property owner who has had several run-ins with the state over alleged environmental violations.

Whitefish Realtor Tom Thomas, who is also an outspoken critic of the city's critical areas ordinance, was initially investigated after significant landscape modifications were reported at his Pointe Of View Ranch on East Lakeshore Drive.

In 2002, John Schwarz, of Schwarz Engineering, reported that Thomas was "mining a steep hillside that spills sediment into drainages leading to Hellroaring Creek and Whitefish Lake," according to Rod Samdahl, an open-cut mining investigator for the Montana Department of Environmental Quality.

Samdahl investigated the complaint and soon established that a mining operation was not underway. But noticing that "the project is severe, producing intense visual impacts as well as runoff and sedimentation problems for Hellroaring Creek and possibly Whitefish Lake," Samdahl referred the case to DEQ's Water Protection Bureau.

"This activity has caused a substantial scar visible from many locations on and around Whitefish Lake," Samdahl said in a memo at the time.

In 2006, Thomas was fined $34,800 by DEQ for alleged water quality violations. He was also ordered to implement all "best-management practices," as described in the state's stormwater management plan, and properly return or dispose of the sediment that had washed down from his property.

Over the next few months, Thomas negotiated a lesser penalty. In addition to a $13,200 fine, which he paid, Thomas was ordered to hire consultants to inspect the site and recommend erosion-control measures.

Scott McCollough, a DEQ enforcement specialist, said the erosion-control measures Thomas adopted were "not what DEQ wanted" but were close enough to satisfy the conditions of the administrative order. The enforcement case was closed on June 11, 2007.

But Thomas still needed a Montana pollutant discharge elimination system permit for Pointe Of View Ranch, which is considered a construction site.

On July 2, 2007, a DEQ water bureau compliance specialist visited Thomas' property and found several permit violations. A July 30 violation letter reported sediment had flowed off the property, and rock and soil had slid into Hellroaring Creek.

McCollough, who noted there has been a lot of interest in Thomas' case, said the permit violation has not been transferred to the enforcement division.