Surprise turnaround in donut disagreement

Settlement of one of the most contentious issues Whitefish has seen in decades my be round the corner, now that the Flathead County Commissioners and Whitefish City Council found common ground on how — and whether — the city handles planning and zoning in its two-mile “doughnut” jurisdiction.

In a joint work session on Oct. 18, the three commissioners and six of the seven councilors agreed to totally eliminate a section of the draft interlocal agreement that would have given the county veto power over new legislation created by the city council that affected property in the doughnut.

“My thought is that we don’t need it,” commissioner Jim Dupont said.

“If we take it out, then we must play nice with each other,” councilor Turner Askew said, noting that some type of framework might still be needed to address remaining concerns by doughnut property owners.

The city sued the county after it unilaterally rescinded the interlocal agreement that created the doughnut area. City and county representatives, assisted by the three attorneys representing parties to the lawsuit, met for several months to hammer out a new interlocal agreement to avoid the consequences of a long, drawn-out lawsuit. But the final product had a problem — two governmental entities had decision-making authority over the same jurisdiction.

“We had the three attorneys draft this and then come back and tell us it’s illegal,” Dupont explained.

In a surprise turnaround, the commissioners, councilors and citizens who sat on the negotiating committee all agreed that three remaining provisions in the draft agreement handle the main concerns raised in the lawsuit — one-year termination, five-year duration and non-binding mediation.

“If we still disagree, then our only option is termination,” Dupont said.

When councilor John Muhlfeld suggested the draft agreement read like a “one-year contract,” commissioner Joe Brenneman said changing the one-year termination clause “would be a deal-breaker.” Councilor Chris Hyatt said the clause addressed the representation issue and “keeps the city and the county honest.”

Dupont noted that the county probably couldn’t afford to take over planning and zoning in the doughnut area.

The commissioners and the councilors assured each other that the doughnut disagreement was never adversarial, and that it was important for both sides to work together.

“I’m excited that for the first time we’re all on the same page,” councilor Ryan Friel said.

Brenneman said it was “imperative” that someone be put back in charge of land-use requests in the doughnut area. But specific concerns remain over the Critical Areas Ordinance, which regulates how development affects stormwater runoff, the Whitefish Growth Policy and the Dark Skies outdoor lighting ordinance

“I was on the Dark Skies committee, so I’ll take the blame for some of it,” Askew said. “Prohibiting a big barn light on a property with 60 acres is unreasonable.”

The commissioners and councilors agreed to address city ordinances considered onerous by doughnut residents by drafting memorandums of understanding limited in scope to specific issues and agreed-upon planning review costs.

“We could publish specific issues for a public hearing and work on them a little at a time,” Dupont said.

Brenneman said that, based on comments they have already received, a list of specific concerns could be sent to the city fairly soon.

While support for creating a community council to represent doughnut residents was heard, it will not be included in the new agreement. Such a council would need to be citizen-initiated, Dupont pointed out, and the doughnut “is a huge area.”

Commissioner Dale Lauman pointed out that the interlocal agreement is “not cast in stone” and is a “working document” that can be changed as necessary.

Brenneman suggested the commissioners and councilors meet again in January. Mayor Mike Jenson suggested giving the draft agreement to city attorney Mary VanBuskirk for changes and then passing it on to the county attorney for review.

VanBuskirk said the city council will take up the draft interlocal again at its Nov. 1 meeting. If the city and the county sign the new agreement and then both stipulate to dismissing the city’s lawsuit, the doughnut matter will be mostly settled.