City responds to Realtor doughnut brief
By RICHARD HANNERS
Whitefish Pilot
“Nearly all” of the amicus brief filed last week by the Northwest Montana Association of Realtors (NMAR) is irrelevant to the issues involved in the city of Whitefish’s lawsuit against the county over the so-called “doughnut” area, city attorney John Phelps claims in his Feb. 6 response to the Realtors.
Furthermore, NMAR’s brief contains information about the city’s Critical Areas Ordinance (CAO) that is “incorrect, exaggerated or untrue,” Phelps said.
The city has asked Flathead County District Court Judge Katherine Curtis to enter a preliminary injunction stopping the county from taking any further planning or zoning action in the “doughnut,” and to make it effective from May 1, 2008.
NMAR wants the preliminary injunction to be effective beginning Dec. 23, the date when the Montana Supreme Court overturned Curtis and ordered her to enter a preliminary injunction.
The impact of the CAO on property owners within the two-mile planning and zoning jurisdiction was the focus of NMAR’s amicus brief, but Phelps says the city’s lawsuit is a contract dispute over the interlocal agreement between the city and the county that created the “doughnut” area.
“Although the CAO was the reason for Flathead County’s attempt to rescind the interlocal agreement, the CAO is not at issue in this case,” Phelps said.
To support his point, Phelps cited the findings of fact adopted by Curtis on May 1, 2008, which said that “the validity of the CAO is not at issue in this action, and the views of the Flathead County Commissioners concerning the ordinance is irrelevant to this court’s determination of whether or not (the city) is entitled to the preliminary injunction it seeks.”
Phelps also countered NMAR’s claim that the “more than 5,000” property owners in the “doughnut” are indispensable to the case.
“Under our system of government, local government units can enter into interlocal agreements without approval of voters or property owners,” Phelps said.
Phelps also pointed out that the city had warned the court that if the preliminary injunction was denied, planning and zoning actions subsequently approved by the county “might be wasted” if the district court’s ruling was reversed.
“But for the national slow-down in real estate development, the situation would be far worse,” Phelps said.
As for the two “doughnut” area lakeshore permits issued by the county last year, Phelps said the city was willing to validate them even if Curtis restores the status quo back to May 1 last year.
Accompanying Phelps’ response was the affidavit of Whitefish attorney and former Montana Supreme Court justice Terry Trieweiler, who has consulted with the city in the “doughnut” lawsuit.
Trieweiler said he investigated NMAR’s claim that the arguments in the amicus brief represent the interests of its 855 members.
“The individual members of the association have not been polled” about their views on the city’s two-mile planning and zoning jurisdiction, Trieweiler said.
Furthermore, actions by NMAR’s board to discredit city officials over their efforts to enforce regulations in the “doughnut” area “have not been authorized by the general membership and have been the subject of severe criticism by numerous members, particularly those who sell real estate in Whitefish.”
Trieweiler went on to address affidavits by Whitefish Realtor Greg Carter and Whitefish developer Tim Grattan that NMAR included in its amicus brief. Carter is the listing agent for Grouse Mountain Estates Phase 2, which is being developed by Grattan, Trieweiler said. Grattan believes his property has lost value because of the CAO, but he has provided no evidence to prove that point, Trieweiler said.
“In other words, the association’s brief sets forth exclusively the sentiments of two individuals who feel their own economic interest is affected by Whitefish’s land-use policies but includes no information that is actually relevant to the issues in this breach of contract action,” Trieweiler said.
Trieweiler also addressed the third amicus brief affidavit, sworn by Flathead Business and Industry executive director Denise Smith. The affidavit included a copy of a ballot used to poll “doughnut” property owners but failed to include a letter that accompanied the ballot when it was mailed out.
The letter “actually tells residents how to vote and the kind of comments that should be sent,” Trieweiler said. “In light of the misinformation upon which the respondents based their response, it is not surprising that a majority of those who were interested enough to respond opposed Whitefish’s extended jurisdiction.”