Attorneys claim doughnut lawsuit is over

Attorneys for Whitefish and Flathead

County agree in their response to intervenors in the city’s lawsuit

against the county over the two-mile planning and zoning “doughnut”

area that the city’s lawsuit is to all intents over and done.

But in a brief filed Jan. 29, proposed

intervenors Richard Hildner, Dan Wein-berg and Ed McGrew, all city

residents, claim their interests are not represented by the city

and argue their case for continuing the lawsuit.

Flathead County District Court Judge

Katherine Curtis has not yet ruled on whether the three will be

accepted as intervenors in the case.

The city sued the county in March 2008

after the commissioners voted to unilaterally withdraw from the

2005 interlocal agreement that created the doughnut area. In the

past year, however, the two sides have negotiated a restatement of

the interlocal agreement and agreed to end the lawsuit.

Heiko and Elizabeth Arndt and Westridge

Investments LLC, however, recognized intervenors in the city’s

lawsuit, want the lawsuit to proceed. In their “notice of

nonsettlement” and request for a ruling in December, Whitefish

attorney Sean Frampton claimed “substantial issues involving

fundamental rights of citizens remain at issue” — namely

representation for doughnut area residents.

Beyond representation, Frampton

claimed, other unresolved issues remain, including whether the

interlocal agreement exceeds the scope of state law, whether the

doughnut residents’ constitutional rights have been infringed upon

by allowing another local government to adopt laws against them,

whether the interlocal agreement infringes on the citizens’

constitutional rights of initiative and referendum, and whether the

agreement fails because it does not provide for an administrator to

administer the interlocal activity.

In their Jan. 27 response to Arndt and

Westridge Investments’ request for a ruling, Whitefish city

attorney Mary VanBuskirk and Missoula attorney Alan McCormick,

representing the county, claim the intervenors don’t have a

“justiciable” claim. The issues before a court are moot if they

have ceased to exist or if the court is unable to grant effective

relief due to changes in circumstances, they said.

“Despite the intervenors’ attempt to

minimize the 2010 Interlocal Agreement as a mere ‘refinement’ of

the 2005 Interlocal Agreement, the 2010 Interlocal Agreement

includes significant, substantive changes that allow the city and

county to dismiss this lawsuit and move forward,” the response

said. “While all of the intervenors’ questions may not have been

answered, any controversy over the 2005 Interlocal Agreement is now

moot, and any ruling on that agreement is merely academic.”

VanBuskirk and McCor-mick claim the

inclusion of clauses allowing for termination and duration make the

2010 interlocal agreement “substantively different.” Under the new

agreement, the city or the county can withdraw with advance

notice.

“From the county’s perspective, this

clause actually restores representation and statutory authority

which had been lacking in the 2005 Interlocal Agreement,” the

response said.

As to the intervenors’ claim that the

2005 interlocal agreement is contrary to Montana law and

unconstitutional due to issues of representation and delegation of

legislative authority, VanBuskirk and McCormick point out that the

2005 agreement is no longer in effect.

“The city and county agree that the

2010 Interlocal Agreement is in effect and fully operational and

resolves the issues between them,” the city and county’s response

said.

Kalispell attorney John Lacey,

representing Hildner, Weinberg and McGrew, agree with the other

intervenors in calling for the lawsuit to continue — but for

different reasons.

Lacey says his clients want the city to

continue its planning and zoning authority over the doughnut as

provided by the 2005 Interlocal Agreement, rather than hand it off

to the county, in order to protect water quality and “the city’s

small-town character” in the doughnut area.

Hildner, Weinberg and McGrew recently

initiated a petition for a referendum that would repeal the city’s

resolution approving the 2010 Interlocal Agreement. The three are

gathering signatures to get the referendum on the city ballot this

fall and, citing opposition at public hearings, are confident it

will be approved by city voters.

In that case, their motion to intervene

argues, parties to the lawsuit will be confronted with the same

issues. Hildner, Weinberg and McGrew are not advancing any new

arguments, however — they just want the city to stick with the

lawsuit until it is resolved in court.

“As sad as it is to say, the

intervenors intend here and are now able to argue the validity of

the 2005 Interlocal Agreement ‘more vigorously’ than the city

merely by advocating for any substantive ruling from the court that

goes beyond mootness,” their motion to intervene says.