Doughnut ideas handed off to lawyers

By unanimous vote, the Whitefish City Council agreed on June 21 to move on to the next step in resolving the city's lawsuit against the county for unilaterally rescinding the interlocal agreement that created the city's two-mile planning and zoning "doughnut" area.

As explained by councilor Bill Kahle, three concepts for amending the interlocal agreement will be handed over to three attorneys to fashion into appropriate legal language — Whitefish city attorney Mary VanBuskirk; Missoula attorney Alan McCormick, who represents the county; and Whitefish attorney Sean Frampton, who represents intervenors in the lawsuit.

Mayor Mike Jenson, however, expressed his opposition, noting that the city will bear the burden of paying for planning in the doughnut while the county gets veto power. He also said he wasn't sure what the city-county doughnut negotiating committee had agreed to send on to the attorneys.

"We do all the work and they do nothing," he said. "I never heard what they have ordered, so how do we write a draft?"

Jenson said he had expected the negotiating committee's concepts would be much narrower.

"The attorneys will decide — they'll do the negotiating," he said.

After half an hour of discussion, the council agreed that the duration of the interlocal agreement should be five years, that either party must provide one year's notice to terminate the agreement, and the county must bear some of the costs for planning in the doughnut.

When Kahle told the negotiating committee during its June 23 meeting that a 90-day extension might be needed to further refine the three concepts, Flathead County commissioner Jim Dupont called that excessive.

"The idea was to give it to the attorneys and let them hash out the terms," he said. "If we can't, then it needs to go to mediation. We could sit here and talk forever."

"We're not talking about 'War and Peace' here," doughnut representative Diane Smith said.

Kahle agreed, noting that he had heard that Frampton was already working on draft amendments to the interlocal agreement. He then outlined the council's three issues.

The first, representation for doughnut residents, could most easily be resolved by allowing the Flathead County Commissioners a vote over city ordinances that affected doughnut residents, Kahle said.

Several people, including mayor Mike Jenson, had proposed a township type of government for the doughnut. But, as others have said, that solution might require action by the legislature and delay resolution of the city's lawsuit against the county.

Citizens For A Better Flathead executive director Mayre Flowers noted that where township governments exist in the U.S., they are a municipality. Instead of townships, she suggested creating neighborhood councils similar to the advisory councils in Bigfork and Lakeside, only with more authority.

Doughnut representative Lyle Phillips, however, pointed out that not all doughnut residents would approve of such an intermediary government.

"Many don't even like what we're doing here," he said.

"We already have too much government," Dupont said about townships.

Kahle pointed out that it was not the intention of the committee to create a new layer of government.

"We're taking steps," councilor Chris Hyatt said, "not trying to solve the whole problem at one time."

The second issue was providing duration and termination clauses to the interlocal agreement. Six months is too short for termination notice, Kahle said, but one year would provide adequate time for transition of planning to the county or to provide mediation.

"I thought the reason for six months is to force a resolution," Phillips said.

Kahle explained that the city council was concerned about spending money on planning for the doughnut only to find that it could cease to exist within a year. Accounting for planning costs was the third issue.

"Termination and costs could be bundled," Smith suggested.

Dupont said he understood the city's concerns about termination and costs. He suggested steps could be taken to prevent the commissioners from eliminating the interlocal agreement on a whim.

As for planning costs, "we discussed this, we didn't expect Whitefish to pay for all that," he said. "We'll pay for some costs for planning in the county."

Whitefish attorney Sharon Morrison asked for more information about township governments — would it require buildings and staff, she asked.

"It sounds like an attempt to appease but not solve the problem," she said.

Phillips reiterated the committee's position that township government was beyond the scope of the committee, but Morrison explained that as an option, "it needs to be fleshed out." Flowers followed Morrison's point by saying that now is the time to discuss creating a neighborhood council.

"Nothing we're doing would stop that from happening later," Smith said. "You're working on the assumption that most doughnut people want that type of representation."

"I expect if you took a vote now, you'd get a disappointing result," Phillips said.

The committee agreed to send their suggestions to the three attorneys. The attorneys' completed draft amendments would be put online for public review by July 9.

The city council would hold public hearings on the draft amendments on July 19 and 26, after the negotiating committee had a chance to review what the attorneys had come up with. Public comments could be taken by the city and the county through July.