Draft donut agreement includes current regs

More than 50 people crowded into the Whitefish library's community room on Sept. 14 to hear city and county representatives hammer out what's now called a "Restatement of Interlocal Agreement."

If accepted by the Whitefish City Council and the Flathead County Commissioners, the draft document would replace the 2005 interlocal agreement that established the city's planning and zoning authority over the two-mile extraterritorial "doughnut" area.

The city-county negotiating committee had already reached consensus to move forward with an agreement drafted by the three attorneys involved in the city's lawsuit against the county for unilaterally rescinding the 2005 agreement.

Their consensus included an option that would give the county commissioners 'veto" power over new regulations enacted by the city council that affect doughnut property. What remained an issue was whether the county should have a say over existing ordinances that affect doughnut property.

When county representatives at the Sept. 14 meeting asked for a two-year period in which the county could bring up current ordinances for review, city councilor Chris Hyatt countered with 90 days. Both county planning director BJ Grieve and city planning director David Taylor said 90 days was much too short a period, considering the complexity of the regulations and issues.

A compromise was reached — the county will have up to one year after the new interlocal agreement is signed to request a review of city regulations enacted since Feb. 1, 2005, that affect doughnut property. Existing ordinances would stay in effect while the review process continued.

The county must pay the city's costs to review the county's suggested changes, which would likely include work by city planning staff and the Whitefish City-County Planning Board before going to the city council. The city would have one year from the time the county submitted its request for changes to re-enact the amended legislation.

It was not entirely clear, however, what would happen if the city council opts not to accept the county's proposed changes. City attorney Mary VanBuskirk said it was her understanding from committee discussion that once the city began to undertake review of existing ordinances, it would follow the same process as for new legislation.

That is, the county could use its veto power if the city doesn't approve of the county's requested changes. VanBuskirk said she thought this would apply only to sections of an ordinance, not the entire ordinance, but she said she hadn't yet reviewed the newest version of the draft agreement. The city council will take its first look at the committee's handiwork at its Oct. 4 meeting.

City councilor Bill Kahle, who lobbied for city-county negotiations as a way to end the lawsuit, said he doesn't expect many of the city's existing ordinances to be brought back for review.

"The Critical Areas Ordinance, growth policy and dark skies regulations — those I heard the most about," he said. "But not the sign ordinance, and some people have mentioned lakeshore regulations, but that hasn't been pushed."

Late in the meeting, city manager Chuck Stearns, who sits on the committee with Hyatt and Kahle, tried unsuccessfully to get the committee to support creation of a community council representing doughnut residents.

County representative Lyle Phillips called the idea a distraction, a point that county commissioner Jim Dupont, who also sits on the committee, agrees with.

"It's not part of the committee's purview," Dupont told the Pilot. "There are lots of issues. You can't put that in an interlocal agreement. We'd need to change state law, which would take a long time. The LUACs (land-use advisory committees' in Bigfork and Lakeside are advisory only."

Dupont said neighborhood councils must be created at the grassroots level, not top-down. He also noted that the Whitefish doughnut area is very different from Bigfork and Lakeside, which are smaller in area and have more common interests.

"I'd drop dead if all the doughnut people agreed with this idea," he said. "We're here to fix the interlocal agreement so we can live with it."

Doughnut resident Marilyn Nelson, who represents a group of city and doughnut residents who support creation of a community council, sharply disagreed with Dupont and the direction the committee is taking.

She said it was never her group's intention for the city council to create a community council. The group hoped to gather signatures from 15 percent of doughnut residents and bring the resolution to the county commissioners. But if the draft interlocal is signed, giving the county commissioners 'veto" power, there would be no point in having a community council.

As for whether a community council would be illegal, Nelson said the group presented their resolution to the county attorney's office but never got a reply. She also noted that citizens cannot request an opinion from the Montana Attorney General's Office, which might determine whether the idea would fly.

Creating a community council would address the fundamental issue of the doughnut dispute, Nelson said — representation. By refusing to discuss the idea, the city-county doughnut committee was "moving in an insidious way," she said.

"I don't believe it's ever been about representation," she said. "It's always been about changing the Critical Areas Ordinance and other regulations."

She said that if the city council accepts the new agreement, it will be 'selling Whitefish down the river."

"We'd be selling out to special interests — people who don't want any zoning," she said. "As a result, we all lose. It's a lose-lose for Whitefish. Only a few people would win."