Lawyers debate 'doughnut' lawsuit appeals

By RICHARD HANNERS/Whitefish Pilot

According to an e-mail exchange between opposing attorneys, Whitefish's "doughnut" area lawsuit could make two trips to the Montana Supreme Court. As a result, final resolution of the matter could take at least three years.

When the Whitefish City Council gave city attorney John Phelps the OK to file an appeal to Flathead County District Court Judge Katherine Curtis' May 1 ruling, it effectively stopped Curtis from ruling on the merits of the case until after the Supreme Court had ruled on the injunction appeal.

The city sued the Flathead County after the county commissioners voted 2-1 to rescind the interlocal agreement that created the city's two-mile planning and zoning jurisdiction — the so-called "doughnut" area.

Curtis ruled against the city's request for a preliminary injunction, saying the city cannot force the county to abide by the interlocal agreement anymore than the county could force the city to if it chose to unilaterally withdraw.

In a May 7 e-mail, Alan McCormick, the county's Missoula-based attorney, said he was "saddened by the council's decision because it will serve only to prolong a resolution of the merits of the lawsuit."

"What seems to be missed by the news reports I've read is that the court has not — and can not — resolve the merits of the lawsuit yet," McCormick said. "I understand that all relevant arguments have not yet been presented to the court, and I do not presume to know how the merits will be resolved."

McCormick told Phelps in the e-mail about a Supreme Court appeal he had filed for a Ravalli County case.

"The injunction was denied back in July 2007, and the Supreme Court briefing was completed only two weeks ago," he said.

McCormick said the attorneys in that case "would easily have completed summary judgment briefing and received a ruling by now, and the appeal to the Supreme Court could deal with the merits, not a preliminary injunction."

He said it has been a waste of time and resources for all involved, and "unfortunately, the Whitefish City Council is setting up the same scenario in this case."

Phelps replied by pointing out the need for the city to maintain the status quo, noting that "the prospect of the county beginning to disassemble our zoning during the pendency of the action is simply intolerable to the city."

The city cannot wait a number of months for all the issues to be briefed and a summary judgment rendered by the district court, Phelps said — especially if Columbia Falls, which has its own "doughnut" area, is dragged into the lawsuit, and if Whitefish attorney Sean Frampton is successful in filing for intervenor status.

"By that time, the county could have approved projects and developments that the city would never have approved, thereby harming our community even if we ultimately prevail," Phelps said.