Rooftop hot tub approved for Firebrand Hotel

Despite hearing concerns from neighbors over the potential for an increase in noise coming from the Firebrand Hotel, Whitefish City Council Nov. 21 decided to allow for a rooftop hot tub at the downtown hotel.

Nola Howard, who lives near the hotel, told council that noise coming from the rooftop can be disturbing to the neighborhood.

“I would prefer the hot tub doesn’t exist at all — it’s just going to create noise,” she said.

Councilor Katie Williams noted the hotel is a huge economic driver for town and that a lot of opinions on both side of the issue have been raised.

“When the conditional use permit was put in place part of that was to protect the neighborhood from excess noise by not allowing entertainment on the roof,” she said. “We are just transferring bodies from sitting on a patio to sitting in a body of water.”

City Council unanimously approved the request. Councilor Richard Hildner was absent from the meeting and Councilor Jen Frandsen abstained from voting on the issue saying the hotel is a client of her business.

The hotel requested an amendment to its conditional use permit to install a hot tub on the roof’s patio. It is a request that was denied by the city’s zoning administrator, denied by the Board of Adjustments and recommended for denial by the city Planning Board.

The rooftop hot tub is proposed to be enclosed with a 5-foot glass wall on two sides and an 8-foot tall wood fence on two sides to reduce any noise toward the residential areas. Council chose to limit the hours of operation for the hot tub, saying it must close at 10 p.m. and can operate 365 days per year.

Prior to the vote, Councilor Frank Sweeney expressed concerns about approving the hot tub while ensuring that the noise doesn’t become an issue for the neighborhood.

“I’m concerned about the representations made to the community about dealing with a hotel of this size,” he said. “None of those reasons for the original conditions have changed that and the neighbors continue to express concern about the roof use.”

Neighbors of the hotel that opened in August have continued to raise concern over the noise generated from the hotel since the original conditional use permit for it was approved by the city in 2015.

Leo Rosenthal said the original conditional use permit specified a rooftop patio only because of concerns it would be used for entertainment and thus disturb the neighborhood.

“If they get what they want it flies in the face of all the work of those [original] conditions,” he said.

Sweeney asked if there would be a way to hold the hotel responsible if noise reaches above a certain decibel level.

City Attorney Angela Jacobs said the city only has an ordinance for disturbing the peace, which covers any loud or unusual noise, but she said there is “no objective benchmark” such as a decibel level that is tied to the ordinance.

“It is determined by the officer on site if they are disturbing the peace,” City Manager Chuck Stearns explained.

The request to add a hot tub to the rooftop patio first came before Council at its Nov. 7 meeting. However, developers of the hotel presented council with a letter from their attorney threatening a lawsuit against the city by the Montana Development Group over whether it was required to obtain a conditional use permit to construct the hotel.

The Averill family, which owns The Lodge at Whitefish Lake, does business along with other partners as the Montana Development Group, Averill Hospitality, and the Whitefish Hotel Group, which has been listed as the developer of the Firebrand.

In a four-page letter to the city, attorney William VanCanagan claims that the hotel never should have been required to obtain a conditional use permit to operate. He alleges that the city Planning Department originally said a conditional use permit would not be required for the property and then later changed its position. VanCanagan claimed the city’s alleged misrepresentations cost the developers $3 million.

Sean Averill reviewed the hotel’s position saying not having an outdoor hot tub would be detrimental to their business. He said a pool and hot tub were originally planned as an amenity when the hotel planned to operate as a franchise, but when that was dropped in favor of creating a boutique hotel the outdoor hot tub became necessary.

“We feel generally bad you’re in this position and we appreciate you guys trying to get this right,” Averill told the council. “We think we’ve tried to be a good partner with the city.”

Sweeney said he wanted the hotel to waive further challenges to the requirement for a CUP.

“I want a condition of receiving the amendment to the CUP that the hotel will provide a written waiver of challenge to the CUP for the hotel,” he said.

Jacobs said such a waiver was possible, although she noted that it might not be upheld in court if there were a lawsuit over the issue.

Council approved adding an amendment that requires the hotel owners to sign a waiver preventing further challenges to the city’s conditional use permit that allowed for the construction of the hotel. Following the vote, Averill told council they would agree to the waiver.

Some councilors asked if there was a way to revoke the CUP if the hot tub were granted, but noise became an issue.

Senior Planner Wendy Compton-Ring said the zoning administrator can suspend the permit and council would make the final decision to revoke it.

“We’ve never done that before,” she said.

Stearns pointed out that revoking the permit would mean the hotel would no longer be allowed the exist on the site.

City Council in February 2015 approved the conditional use permit for the hotel. At the time, a condition was added that stipulated that nothing other than a patio could be built on the roof. A rooftop bar was also turned down.

At the time, neighbors voiced concerns related to activities on the roof.

The planning department discovered during the construction process that there were plans to install a hot tub on the roof of the hotel and notified the owner that only a patio was permitted.

Planning Director Dave Taylor, the city’s zoning administrator, in February denied the hot tub after the developer requested an official zoning interpretation that a patio could also include a hot tub.

Whitefish Hotel Group then appealed Taylor’s decision to the Board of Adjustments, but was denied. The hotel group has claimed the hot tub is a common amenity of a patio.