City retains doughnut control until final court decision

An order issued Dec. 10 by the Montana Supreme Court will allow Flathead County to conduct land-use planning in the two-mile “doughnut” around Whitefish, but restricts final adoption of county zoning for that area until the high court has ruled in the case.

The Supreme Court granted the city of Whitefish’s motion for a stay of a Flathead District Court ruling to return planning control of the doughnut to Flathead County.

The high court has yet to weigh in on the jurisdiction battle prompted by an earlier lawsuit.

“We’re certainly glad the stay is put in place, but it is just a procedural step,” Whitefish City Manager Chuck Stearns said. “The more substantive item is in the briefing stage before the Supreme Court.”

 Flathead District Court Judge David Ortley on Dec. 4 did issue an order denying Whitefish’s request for a stay and reinstatement of a preliminary injunction preventing the county from taking control of the doughnut.

However, the Supreme Court’s order overrules the District Court order.

Whitefish and Flathead County have a long-running dispute over which government entity should have the ability to make land-use decisions in the doughnut.

Four Whitefish-area residents sued the city of Whitefish two years ago, asking the court to throw out a city referendum that repealed a 2010 joint planning agreement for the doughnut. The county is a third-party defendant in the lawsuit and several other Whitefish residents joined the case as intervenors.

It’s the second round of legal action over the doughnut and the second time the Supreme Court has been involved. Three years ago the city and county agreed to have the city’s lawsuit against the county dismissed as part of the 2010 interlocal agreement.

In its recent motion for a stay, the city argued  — and the Supreme Court agreed — that because so much time has elapsed and the county might take action that would destroy the status quo, “extraordinary circumstances” allow the Supreme Court to consider the city’s motion.

Kalispell attorney Duncan Scott, who represents the four plaintiffs — Lyle Phillips, Anne Dee Reno, Turner Askew and Ben Whitten — said the high court’s ruling means the county is “free now to start the doughnut zoning process, which we urge it to do.”

The process takes about two to three months, Scott said. The county now can publish notices, hold Planning Board meetings and hold commissioner meetings to consider doughnut zoning. It only is prevented from final adoption of county zoning in the doughnut.

“We expect the Supreme Court to uphold [District] Judge Ortley’s well-reasoned decision, which means the county can be ready to vote on final adoption immediately following the Supreme Court decision,” Scott said. “Once the commissioners adopt zoning, the doughnut will be free from Whitefish control and doughnut property owners finally will enjoy representation.”