Rezoning could leave nonconforming properties

By RICHARD HANNERS

Whitefish Pilot

It was standing room only at the Flathead County Planning Board’s Dec. 17 public hearing on the creation of the Whitefish Area Zoning District, despite several inches of snowfall that night.

The new district is intended to replace Whitefish’s two-mile planning and zoning jurisdiction, the so-called “doughnut” area.

The board unanimously approved the “doughnut” rezoning with little debate, and the county commissioners were scheduled to hold a public hearing on the matter on Jan. 13 at 9 a.m.

But Flathead County Dis trict Court Judge Katherine Curtis may enter a preliminary injunction stopping the county from going ahead with the rezoning before the commissioners meet.

On Dec. 23, the Montana Supreme Court reversed Curtis’ earlier ruling denying the city of Whitefish’s request for a preliminary injunction.

Twenty-seven people addressed the county planning board as it considered changing all Whitefish zoning designations to county designations. Many of them had specific concerns about losing property values by downzoning, but others supported the county taking over planning and zoning in the “doughnut.”

County planner Andrew Hagemeier explained how the board’s Committee B met numerous times and came up with five criteria to decide how to change the zoning — the proposed zoning designation should comply with the county’s 2006 growth policy and the 1996 city-county master plan; it should be closest to the minimum lot size and closely match permitted or conditional uses; and since the county doesn’t provide sewer services, the smallest allowed lot was 20,000 square feet.

In addition, Hagemeier explained, the county wanted all land in the district to be zoned in order to avoid legal liabilities for “spot unzoning.” That included some state school trust lands and a subdivision on Big Mountain.

Whitefish city planning director David Taylor defended Whitefish’s need to be able to plan for orderly growth outside the city limits, noting that Whitefish was the fastest growing city in the state.

Loss of the “doughnut” is a “serious blow to Whitefish’s ability to maintain the attractive qualities and adequate services that make our town such a desirable place to live and visit,” he said.

Taylor also noted that the 1996 master plan, which the county will revert to instead of using the city’s 2007 growth policy, had designated “important farmlands.” Taylor said the county’s proposed 10-acre minimum zoning was not consistent with that intent, and he recommended 20-acre minimums.

County planner BJ Grieves explained that it was the “political will” of the commissioners not to use the city’s growth policy, but that had created “a big black void” the earlier master plan filled.

“All zoning must conform with an applicable plan,” Grieves said.

Denise Smith, executive director of Flathead Business and Industry Association, asked the board to listen to landowners in the “doughnut” area and not to pay attention to talk about lawsuits.

But Whitefish landowner Ben Cavin cited the city’s lawsuit to prevent the county from taking back the “doughnut” and asked, “Why are we in a hurry?”

If the county prevails in the Montana Supreme Court, “What is the harm to wait?” he asked. But if Whitefish wins, it could be a “big waste of taxpayers money” to change everything back.

Whitefish resident Jerry Hanson was one of several speakers concerned that the proposed rezoning would cause him “a serious loss of money” because of its lower density. He noted that he has city sewer and water running in front of his house, and he requested a higher R-4 county designation.

A former Whitefish planning board member, Hanson said he has always opposed extraterritorial zoning, but creating a nonconforming use will create a “nightmare.”

Grieves said Hanson’s request was logical and could be handled by the planning administrator after reviewing 12 criteria.

Many properties could end up with nonconforming uses, Grieves said, including Ptarmigan Village, where overnight vacation rentals would not be allowed under the proposed zoning. Grieves said an owner could present a receipt showing prior rentals and easily be confirmed for that use.

A group of businessmen who spent three years working with the city to create a commercial designation for land at Highway 40 and Dillon Road were concerned their land would revert to an agricultural designation. Collin Sellwood said his land had been used commercially as a used-car lot and for his Blind Man business for 15 years.

The board unanimously approved a motion acknowledging all the work the Highway 40 businessmen had done, but Grieves said they would need to get an amendment to the county growth policy before they could apply for a light industrial zoning designation.

Steve Lorch, a community land planner for the Montana Department of Natural Resources and Conservation, said his office had not been adequately notified. He was also concerned the proposed zoning was not consistent with the neighborhood plan for the 13,000 acres of school trust lands surrounding Whitefish.

Grieves acknowledged the breakdown in communication with DNRC, but the 10-acre suburban-agricultural zoning proposed for the trust lands is “doable,” he said.

Stoltze Land and Lumber Co. was the only party whose specific concern was addressed by the board. Twenty acres of land on Big Mountain was not mapped correctly when Whitefish gave it a city zoning designation. The board unanimously agreed to give Stoltze the resort zoning it requested.

Whitefish Realtor Tom Thomas, representing the grassroots group People Of The Doughnut, said he wanted his land along Hellroaring Creek to return to how it was when he first purchased it — unzoned. He also claimed the city had an agenda — to take control of the “doughnut” area.

“Whitefish went from the fastest growing city to the slowest,” he said, which created a “Depression for Realtors.”

Several other speakers applauded the county for stopping the city’s “regulation without representation,” particularly the critical areas ordinance, which they blamed for slowing real estate sales. Not everyone agreed.

“Of course, the CAO and the city of Whitefish caused the real estate market to slump and lose money,” said Whitefish resident Richard Zoellner. “But who could have anticipated that it would spread so fast through the banking industry, the mortgage companies and the auto industry and cause a global recession?”