Whitefish wins Houston Drive annexation lawsuit

The city of Whitefish can legally annex a group of properties along the east shore of Whitefish Lake in the Houston Drive neighborhood.

Flathead District Court Judge Robert Allison has ruled in favor of the city in a lawsuit by a group of homeowners in the neighborhood that claimed the city’s planned annexation would be illegal.

The property owners, known as Houston Lakeshore Tract Property Owners Against Annexation, Inc., filed a lawsuit in district court in 2015 claiming the city could not use the portion of state law that allows the city to annex wholly surrounded properties and that the city is prohibited from annexing more than one property at the same time.

Allison ruled in favor of Whitefish on both points.

The suit claims that Houston Drive isn’t wholly surrounded by the city and can’t be annexed under that method because Whitefish Lake is on one side of the neighborhood. The property owners are represented by Whitefish attorney Sean Frampton.

During a 2014 work session, City Council placed about 50 properties along Houston Drive at the top of its priority list for possible annexation. The city has said it is considering the wholly surrounded method of annexation, which allows annexation if the property is within the city and impossible to reach without crossing through city limits. The Houston Lakeshore Tract and Stocking Addition, and five other parcels, is surrounded by city limits to the north and east, and Whitefish Lake on the west and south.

State law allows cities to annex wholly surrounded properties despite any and all protests.

“Property need not share four common boundaries with the city to qualify; rather, a two-prong test determines whether an area is wholly surrounded by the city for purposes of annexation,” Allison said in his ruling.

Allison cites a 1969 Great Falls court case that determined property wholly surrounded when it meets two criteria — when all lands on the side of the area are within the city and it is impossible to reach the area without crossing through city territory.

In court documents, Frampton said the Houston Lakeshore tracts are not wholly surrounded because they are only surrounded on one side by the city. Also because it is possible to reach the properties without crossing city streets, including traveling over state and county roads and across Whitefish Lake. The suit also alleges that because East Lakeshore Drive was not properly annexed by the city, they do not cross over the city to access their properties.

Allison disagreed saying “it is practically impossible for the city to build infrastructure on Whitefish Lake. Thus, for all pragmatic purposes all of the Houston Lakeshore Area borders that physically touch municipal jurisdiction in fact touch Whitefish territory.”

He said the map provided by the homeowners in the lawsuit shows that to access the Houston Lakeshore area, owners — even if driving on East Lakeshore Drive — must traverse through city jurisdiction because all of the territory touching the north and east boundaries of the Houston Lakeshore area is in city territory.

“Therefore, it is physically impossible to access this area without crossing through city territory,” he said.

The city has cited a need for annexation in a few areas adjacent to city limits as a way to protect the water quality of Whitefish Lake and also to have homeowners pay for the city services they already use.

The city attempted unsuccessfully to annex Houston Drive in 1983 and 2000.

On Monday, City Council gave its authorization to proceed with wholly surrounded annexation of an area around West Lakeshore Drive, which is listed as the city’s second priority for possible areas to bring into the city. The city will hold a formal public hearing process set for this summer on the matter before Council votes on annexing 26 properties.

City Manager Chuck Stearns said because Houston Drive was caught up in litigation, city staff moved to working on the next priority on the list.

The West Lakeshore neighborhood is also on the list because of concerns over protecting water quality in Whitefish Lake. There is concern about septic leachate pollution in nearby Dog Bay, so annexing the area may help spur some new connections to the municipal sewer system, Stearns noted.