County ends talks, disbands planning board

City calls action "illegal," receives welcome advice from former supreme court justice

By RICHARD HANNERS

Whitefish Pilot

In an action that city officials called "unilateral" and possibly illegal, Flathead County has moved to end talks on the transition of the city's two-mile planning jurisdiction " the "doughnut" area " to the county and to disband the Whitefish City-County Planning Board.

The Whitefish City Council took up the issues Monday after the city received two e-mails from the county. They also received good news from a local attorney who served on the Montana Supreme Court.

In a Sept. 30 e-mail sent to mayor Mike Jenson, county commissioner Gary Hall said poor attendance by city officials at the weekly transition-team meetings precipitated his decision.

"It has become very apparent over the past several weeks that you and your team are not interested in working productively with the county on the transition of the doughnut lands," Hall wrote.

Hall claimed Jenson had attended "less than half our meetings' and that Whitefish councilor John Muhlfeld "has attended in person only one meeting." Whitefish has four representatives on the transition team.

Noting the city's interest in protecting highway corridors that are the gateways to Whitefish and other aesthetic regulations, Hall pointed to the need for the city to drop its lawsuit against the county. The city sued after the county rescinded the 2005 interlocal agreement that established the current "doughnut" jurisdiction. Terminating the lawsuit would provide "greater predictability and clarity to the doughnut landowners," Hall said.

"It has become clear, however, that Whitefish prefers a "bet it all" strategy, gambling on a lawsuit outcome that tips in its favor," Hall said. "While this is not a strategy that I find prudent, it is certainly your call to make."

Jenson responded to Hall's e-mail by saying he "had some previously scheduled commitments I wasn't willing to give up." But he pointed out that "based on your feelings toward our group, it appears that moving forward with this process doesn't seem to have much potential for solution."

"More than once, we've been told what is going to happen rather than discuss what could happen," Jenson said.

Muhlfeld echoed that criticism during Monday's council meeting, saying he felt the county had "preconceived notions' at the transition team's first meeting. He said the county set a schedule it wouldn't veer from, and on several occasions Hall made it clear the city needed to drop its lawsuit.

"We gave it our best faith effort," Muhlfeld said.

Three days after receiving Hall's e-mail, the city learned that the county had decided to "disband" the Whitefish City-County Planning Board.

Mary Sevier, at the county planning department, told Whitefish city clerk Necille Lorang in an Oct. 3 e-mail that "after speaking with my boss (county planning director Jeff Harris), he informed me that since there is no longer an agreement, the city-county planning board is basically disbanded."

Sevier said she was instructed to send letters about the decision to the county-appointees on the board " Peggy Sue Amelon, Kerry Crittenden, Ole Netteberg and board chairman Frank Sweeney.

Jenson told the council on Monday that the county's action defies state law. City attorney John Phelps concurred, noting that according to state law, once a city-county planning board is established, it cannot be unilaterally disbanded.

On the other hand, Phelps and the council agreed that filing another lawsuit against the city "was not a good idea."

Meanwhile, the city has received good news from Whitefish attorney and former Montana Supreme Court justice Terry Trieweiler, who Phelps had consulted with about the city's lawsuit.

Phelps was concerned that a favorable ruling by the court 12 to 18 months after the district court ruled against the city "may be too late," Trieweiler wrote in an Oct. 6 letter to the council.

Saying he had read all the district court and supreme court documents "without any preconceived notion," Trieweiler filed a motion requesting the supreme court "suspend its normal procedure and expedite its decision."

Furthermore, Trieweiler said he had "formed a clear impression about the merits of the city's suit and the likelihood of success on appeal."

"My opinion is that that the interlocal agreement is allowed by law in Montana, and that it is well drafted and unambiguous," Trieweiler wrote. "Furthermore, the agreement has clearly been breached by Flathead County. Based on the authorities cited by both parties, I believe that the suit brought by the city was incorrectly decided by the district court."

Trieweiler concluded by noting that "no one can guarantee the outcome of an appeal to the supreme court" because of "numerous subjective factors."

The council thanked Trieweiler for assisting the city.