Council wants to pursue two lakeshore cases

Cases are in the 'doughnut' and under county jurisdiction

By RICHARD HANNERS / Whitefish Pilot

The Whitefish City Council on Nov. 17 directed city attorney John Phelps to research whether the city should continue to pay a contract attorney to sue two landowners who allegedly violated lakeshore regulations on Whitefish Lake.

The city had decided to file civil suits in Flathead County district court in such cases rather then pursue them as misdemeanors in criminal court.

The two properties, however, are outside the city limits, and the county, which will take over jurisdiction of the city's two-mile planning and zoning district — the so-called "doughnut" area, has indicated it will handle such cases in-house, Phelps said.

Jim and Denise Archer, who own a home on East Lakeshore Drive, allegedly used rocks and fill to move the high-water mark and then began construction on their home inside the lakeshore protection zone. The city filed a complaint and petition for preliminary injunction against them in April 2006.

Linda and Tim Babiak, who own lakeshore property on Rest Haven Drive, allegedly replaced more than 80 percent of a two-story deck structure inside the 20-foot lakeshore protection zone and continued the work after they were issued a stop-work order.

Phelps said the city has already spent thousands of dollars on the two cases, and said the county indicated it was willing to allow the city to continue handling the cases.

Councilor Turner Askew, however, noting that a new commissioner will be seated after Jan. 1, asked what assurance Phelps could give that the county would in fact allow the city to take over the two cases.

Phelps said he wasn't sure about Jim Dupont, but both the county attorney's office and the county planning department had indicated they were interested in pursuing lakeshore violations. It could also save the county time and money.

"Whitefish is responsible," Phelps said. "It occurred on our watch, and we dropped the ball by not pursuing the matter."

If successful, a civil suit could force the landowners to restore the lakeshore zone, but the city would not recoup any of the legal costs incurred in bringing the suit to court, Phelps said.

Councilor John Muhlfeld called the Archer and Babiak cases the "most blatant violations" and urged action, even if it cost $90,000.

"We need to get serious about these violations," he said.

Councilor Nancy Woodruff said it might be hard to justify the expenditures to the public, "but we need to nip it in the bud."

Councilor Nick Palmer agreed, noting that otherwise, "people will do whatever they want."