City takes back the doughnut for now
Whitefish Pilot
The city of Whitefish has regained jurisdiction over the two-mile planning and zoning jurisdiction commonly called the "doughnut" area — at least until the city's lawsuit against the county is finally adjudicated.
Flathead County District Court Judge Katherine Curtis issued a preliminary injunction that restores the city's authority over planning and zoning in the area on May 6.
The Montana Supreme Court on Dec. 23 directed Curtis to preserve the 'status quo" by issuing the preliminary injunction after the city appealed Curtis' denial of a preliminary injunction on May 1 last year.
The city claims Flathead County breached the 2005 interlocal agreement that established the "doughnut" area when the county unilaterally rescinded the agreement in March 2008. The merits of that claim will be decided at a later date.
In the meantime, the city be responsible for planning, zoning, subdivision, lakeshore and floodplain regulations within the two-mile area surrounding the city.
The city and the county were at odds about what the Supreme Court meant by 'status quo," Curtis noted. The county had argued it meant conditions in December, when the Supreme Court remanded the case back to Flathead County District Court.
The county commissioners approved several changes in the nine months since it rescinded the interlocal agreement, including amending the Flathead County Growth Policy to remove references to the interlocal agreement and updating land-use maps, county planner BJ Grieves said.
But while the Flathead County Planning Board approved changing city zoning in the "doughnut" area to county zoning, the proposed changes were never taken to the county commissioners for a vote, Grieves said. As for other planning and zoning issues, property owners in the "doughnut" area were told to wait until a court ruling, he said.
The city argued that preserving the status quo meant restoring the situation to when it first filed its case against the county. After reviewing the Supreme Court's order and pertinent case law, Curtis agreed with the city's argument.
Two specific land-use designations approved by the county, however, will remain in effect, Curtis said — "emergency" lakeshore permits granted to the Gamble family and Roger Rowles.
Curtis expressed sympathy for property owners in the "doughnut" area in her discussion of a friend-of-the-court brief filed by the Northwest Montana Association of Realtors (NMAR).
"The court recognizes the hardships to the property owners within the extra-jurisdictional area as described in the amicus brief, and concurs that in some respects the parties hereto have failed to consider their plight," she said. "However, the Montana Supreme Court made clear its direction to this court that it enter a preliminary injunction as applied for by the city of Whitefish. Additionally, it cannot be said that those property owners will be placed in a position worse than existed under the interlocal agreement."
Whether these affected property owners or any other intervenors should be joined to the case should be decided after either the city or the county submits a motion requesting they be joined, Curtis noted..
As for other issues relating to the merits of the case, Curtis declined to address them for now. These include the "effects and implications' of the city's controversial critical areas ordinance — which the county and NMAR blame for creating the city-county rift in the first place — and any "misinformation" that the city claims NMAR promulgated.
City attorney John Phelps said he expects that because there are few factual issues in dispute, the two parties will submit motions for summary judgment that address the merits of the case rather than ask for a trial.
The motions could be submitted within a few months, he said, but district court is very busy, and it's impossible to know how much time the court will need to rule on the motions.
And if either side appeals Curtis' decision, it could be another 18-24 months before the Montana Supreme Court rules.