County imposes interim zoning in doughnut

Declaring it an emergency situation, the Flathead County commissioners on Sept. 9 voted unanimously to impose interim county zoning, effective immediately, in the “doughnut” area around Whitefish.

The county was tasked with moving forward with zoning the area around Whitefish following a Montana Supreme Court ruling in July that ceded planning control from the city of Whitefish to the county.

Interim county zoning can be in place for one year, with a one-year extension if needed. It will replace Whitefish city zoning classifications with similar county classifications in most cases.

Deputy County Attorney Tara Fugina told the commissioners that after reviewing Whitefish’s zoning regulations, it would be “almost impossible” to adopt the existing Whitefish zoning in the doughnut area across the board because of city laws that have no county equivalent.

Whitefish’s Dark Skies ordinance regulating lighting was one example she gave. The city critical areas ordinance that oversees drainage and water quality is another such law. Neither of those city laws remain in effect in the doughnut area.

Enacting an interim district with similar county zones seems to be the best option, Fugina said.

“It seemed to me to be the best balance,” she said. “Something had to be done to promote stability in the area ... It’s a stop-gap measure.”

After the court ruling, Whitefish stopped administering zoning in the doughnut, though the city offered to help with planning matters during the transition if a memorandum of understanding could be signed by both governing bodies.

The county commissioners declined Whitefish’s offer.

While interim county zoning is in place, the Flathead County Planning Board will study how to proceed with permanent zoning in the doughnut. Public participation will be part of the process.

“The county always anticipated it (the transition to county zoning) would be a big job if the county won the lawsuit,” Fugina said.

All three commissioners unequivocally said they believe an emergency situation exists without any zoning in place in the doughnut.

“Right now there’s no planning in place that can be administered,” Commissioner Pam Holmquist said. “This gives us time to go through the process.”

Whitefish Planning Director Dave Taylor told the commissioners he wanted to see the county “expedite whatever you need to do to make sure that the former extra-territorial jurisdiction does not remain a zoning free-for-all.”

But Taylor said Whitefish would prefer the county find some way to administer the existing zoning rather than picking zones that are the closest alternatives. He advised the county to be mindful of a couple of areas that potentially could be negatively affected by interim county zoning.

The WB-2 zone along U.S. 93 S., for example, is specifically designed to only allow certain retail uses that need highway frontage, but prohibits retail uses that compete with the downtown district. The WB-2 zone also has “big box” standards that require a conditional-use permit for buildings over 15,000 square feet, so they can be reviewed on a case-by-case basis, Taylor pointed out.

The county’s B-2 zone that now replaces the WB-2 allows all retail sales and services and is incompatible with Whitefish zoning and the city growth policy, he added.

Whitefish’s industrial and warehousing zone is more of a light industrial district where heavier industrial uses require a conditional-use permit. Whitefish wouldn’t want industrial areas such as properties adjacent to the railroad opened up to heavy industrial use, Taylor said.

The county created new zoning designations to replace Whitefish zones — low density resort residential and business service district — that had no county equivalent.

During a public hearing last week several people expressed concern about switching from city to county zoning, even in the interim. Some suggested the county adopt the city zoning that has been in place in the doughnut to give residents a measure of predictability.

County Planning Director BJ Grieve said the interim zoning is simply “placeholder zoning until the county can spend some time to take a closer look” at what will become permanent zoning in the doughnut.