Council takes look at 'donut' agreement

Four members of the Whitefish City Council appeared ready to approve a new city-county agreement governing how the city’s two-mile planning and zoning “doughnut” area would function Oct. 4.

But a “typo” that would have wiped out all city regulations in the doughnut and other issues in the draft delayed adoption, and the councilors agreed to wait rather than amend the document.

Forty-seven people addressed the council in the packed council chambers. Thirty-three opposed adoption of the draft agreement and 14 spoke in favor.

A motion by councilor Chris Hyatt to amend the “typo” by changing wording in the section on how to deal with new legislation from “enacted after February 1, 2005” to “enacted after the effective date of this agreement” was passed 5-1 with councilor John Muhlfeld in opposition.

The Flathead County Commissioners, however, had already approved the draft that morning with a 3-0 vote. Commissioner Jim Dupont, who sat on the city-county doughnut committee that hammered out the draft, outlined two reasons for signing the new agreement.

“We want representation for the residents, and we want a way to break (the interlocal agreement) if they go crazy,” he said.

At the close of their work session, the councilors discussed meeting with the commissioners prior to their Nov. 1 meeting, when the matter will be taken up again. A hearing will be scheduled for more public comment at that next meeting.

First look

A work session prior to the Oct. 4 council meeting marked the first time the council as a whole had a chance to look at the city-county doughnut committee’s work product.

Councilor Bill Kahle, who sat on the committee, introduced the draft by noting that it addressed the three goals set by the council — establishing a duration for the interlocal agreement, a way to terminate the agreement and representation for the doughnut residents.

Ryan Friel, the lone councilor to vote against the lawsuit against the county, disagreed. The draft “does not get to representation,” he said.

“The process got sidetracked,” he said. “This agreement gives it all back to the county.”

Kahle responded by noting that the city would still have authority over administering and implementing planning and zoning inside the two-mile area.

“I don’t see the county as having veto power,” he said. “I see them as co-signers.”

Hyatt, also a committee member, noted that the council directed the committee to address the lawsuit. The idea of creating a new community council for the doughnut was not part of that direction.

The city pays for planning but sends legislative authority to the county, Muhlfeld noted. Mayor Mike Jenson agreed.

“We bear all the costs but give the county the hammer,” Jenson said. “The county gets the best of all worlds.”

He asked the councilors if they were willing to hire more planning staff to do the work needed if the county asked for a review of the 65 city ordinances already in effect in the doughnut.

Kahle conceded that language explaining how the county would reimburse the city for review of existing ordinances “needs more work.”

“We punted on this,” he said.

The costs issue could have become a “poison pill,” Kahle said. If the city pushed too hard on costs, the county could turn to the “nuclear option” and withdraw entirely from the agreement. But he agreed that the county should pay “actual” costs rather than “pre-approved” costs.

If $10,000 per review is a reasonable estimate, then looking at 65 ordinances could add up to a lot of money, city manager Chuck Stearns said.

Lawsuit risk

In a nutshell history of the city’s Critical Areas Ordinance, the regulation many cite as the cause for unrest by doughnut residents and the county’s reason for unilaterally rescinding from the interlocal agreement, Muhlfeld explained how the city addressed concerns and created a new version of the ordinance, nicknamed “CAO Lite.”

“That was all done without the county,” he pointed out.

The key issue is representation, Kahle said. If doughnut residents had some say, many of the city ordinances that affect doughnut property would likely be different today. He also noted that all three county commissioners nodded their heads that morning to the idea of someday creating a community council for doughnut residents.

“This is a first step,” he said. “We need to get the lawsuit behind us so we can focus on getting county residents representation.”

Muhlfeld asked if the county already had a role by appointing members to the Lakeshore Protection Committee, the City-County Planning Board and the Board of Adjustment, but Kahle pointed out that only the Board of Adjustment had more than advisory authority.

“Why don’t we want to work with the county?” councilor Phil Mitchell asked. “If there’s no benefit to both sides, then why do it?”

Saying he’s seeing a growing demand by doughnut residents for a community council, Friel said the draft “is not a fix.”

But sticking with the lawsuit is too big a risk, Kahle said, urging them to back the draft.

“Is it perfect? No, but it’s 1,000 percent better than going to court,” he said, warning them about potential impacts to water-quality in the Haskill Creek watershed.

But what would happen to entitlements that developers established through expensive public process, such as Lookout Ridge, Muhlfeld asked.

All property is subject to zoning changes, Stearns said, and the draft excludes site-specific projects from review.

Public comment

Citizens For A Better Flathead executive director Mayre Flowers had concerns about both the draft agreement and the county commissioners meeting. Not only was the meeting not noticed properly, but the commissioners didn’t even have a copy of the draft interlocal agreement with them when they voted, she said.

“This is a good wake-up call on how easily (mistakes can be made) if the documents aren’t in front of them,” she said.

In a 12-page letter to the city council, Flowers outlined a number of concerns she had about the draft. To begin with, language in the section that gives the county commissioners the final say on new city ordinances effective in the doughnut area is not authorized by state statute. The language also contradicts state statutes that already provide a procedure for appealing land-use decisions, she said.

The Interlocal Coopera tion Act authorizes agreements between cities and counties, such as for the countywide library system and the new 911 dispatch system. But the act does not allow parties “to create new powers for local governmental units,” which the draft doughnut agreement does, Flowers said. Furthermore, the draft agreement does not specifically assure the city or the county that the lawsuit is in fact settled.

Flowers also had concerns about how the city-county doughnut committee functioned. Not only had the two city council representatives publicly supported giving authority back to the county, Flowers said, but during one of the meetings, county representative Diane Smith conferred in private with an attorney about a document that was never disclosed.

In her comments to the council, Smith, an attorney in Whitefish, spoke about the need for leadership to settle the lawsuit. If the city opts to pursue the lawsuit right back to the Montana Supreme Court and loses, it could lose control over zoning, lakeshore issues, water quality protection, the look of highway corridors “and a chance for good relations with the county,” she said.

“Whitefish has miscalculated with Mrs. Spoonover’s and the Walton case. Do residents want to lose Whitefish Lake?” Smith asked. “The genie will not go back in the bottle even if people want it to.”

Doughnut resident Judy Campbell reacted to an opponent of the draft who showed up dressed in a clown hat and bow tie.

“This is not a joke,” she said, pointing out that she and her husband Larry were “good stewards of the land.”

City-county planning board member and doughnut resident Ole Netteberg followed up by noting “there’s been a lot of fear-mongering tonight.” Doughnut residents don’t want to gut everything, he said.

“Representation — that’s where it all started,” he said. “That’s all we want.”

Kerry Crittenden, who lives just outside the city, warned about greedy developers taking advantage of an ill-informed electorate to change the face of Whitefish. “So far, Whitefish has been a cash cow for speculators and the 10-percenters,” he said.