Lawsuit alleges city violated state open meeting law

A lawsuit has been filed against the City of Whitefish alleging that officials violated state open meeting laws during the process of creating the recently adopted affordable housing program.

Planning consultant Mayre Flowers, and her company CommUnity Consulting, filed a lawsuit last month in Flathead County District Court claiming that the city’s process in creating its inclusionary zoning program was illegal and contrary to the transparent public process that the Montana Constitution requires. The lawsuit also claims that as a result, the ordinance and resolution implementing the program, known as the Legacy Homes Program, should be found void.

In addition to the city, the lawsuit also lists the Whitefish City Council, the Whitefish Strategic Housing Plan Steering Committee and the inclusionary zoning ad hoc subcommittee as defendants in the case.

Flowers claims in the lawsuit that the city violated her right to know, Montana’s open meeting laws, and violated her right to participate during the process of creating the program.

The lawsuit alleges that the inclusionary zoning ad hoc subcommittee held meetings in 2018 and 2019 that were conducted “without notice to the public, an agenda made available to the public, or the subsequent production of meeting minutes by the subcommittee.” The suit claims that more than 30 closed-door meetings were held over the course of a year.

The suit also alleges that the city refused requests to open the meetings and also refused requests to provide documents used at the meetings, and in addition, failed to keep minutes of those meetings.

According to court documents, Flowers during a Jan. 10 Strategic Housing Steering Committee meeting, asked the city to post the current draft documents for the public to review. “The mayor responded that he would forward the documents to her,” but Flowers says she was not provided with the documents requested.

Flowers said she also requested working documents and agendas for the subcommittee, but the city manager responded by saying that there was no requirement for agendas to be publicly posted.

The housing committee meeting minutes state, “No requirement for working groups agendas to be posted. These are not closed-door meetings, we are just doing research and trying to get the work done. Not required to do public posting. Will take to the next steering committee for discussion.”

In January, Flowers sent a letter to the city outlining concerns that she had been excluded from meetings and was not provided documents as requested.

City Attorney Angela Jacobs responded with a memo to City Council, saying that despite Flowers’ reference to an inclusionary zoning subcommittee as such, it was in fact a work group that was not appointed as a subcommittee by Council.

“The inclusionary zoning work group does not fall into any of the categories required by statute to hold open meeting,” Jacobs wrote.

Jacobs said no decision-making authority was delegated to the work group and its mission was simply to provide information and suggestions to the Strategic Housing Steering Committee. She points out that city staff could have performed the same function of the work group, but the group was created to ease staff workload and provide “unique insight into the issue.”

Jacobs says that the public’s constitutional right to participate was not compromised because the Strategic Housing Plan Steering Committee meetings were noticed, open and the public had the opportunity to provide comments. In addition, she notes, that information accessible on the city’s website was provided prior to City Council and Planning Board meetings, and that the public would have had a “reasonable” opportunity to provide input prior to Council making a final decision, which hadn’t yet occurred at the time the letter was written.

“As always, the city places substantial value upon public participation and strives to maintain transparency in government,” Jacobs wrote in her memo. “It should also be recognized, however, that the Whitefish Strategic Housing Plan tasked the city with an aggressive timeline for implementing inclusionary zoning. The work group was instrumental in keeping the City on-track for success.”

Both Flowers’ letter and Jacobs’ response were provided to Council on Feb. 4 as part of its meeting packet.

The lawsuit also claims that the city violated the law, when Council held a developer and lender forum at its March 7 work session and no minutes were kept of the meeting. Council also held its annual board meeting the same month, the lawsuit says, without noticing the public or producing minutes.

Flowers is requesting that the court declare Council’s decisions as void in approving the ordinances and resolution creating the inclusionary zoning program, and in addition require Council to adopt rules of public participation for all meetings of Council and committees, boards, and authorities and entities of the city to permit and encourage the public to participate in decisions that are of significant interest to the public.

Flowers said that the city’s closed meetings provided the public with only selective information and thus robbed the public of its opportunity for informed and meaningful input prior to the adoption of the affordable housing plan. Flowers says she supports the city’s affordable housing program, but the closed-door process that the city used in developing the plan was neither open nor balanced.

“When these closed door meetings occur with city staff, individual council members, consultants, and/or special interest groups like developers, Realtors, and lenders, to draft and reach consensus on new city policy behind closed doors, the public rightfully asks who are they really going to listen to and does my voice matter?” Flowers said in a prepared release. “And when these things happen for over a year, the required public hearings before the City Council’s final decision become an almost predetermined, hollow and largely uninformed opportunity for public comment.”

City Council on June 3 adopted the Legacy Homes Program, which uses inclusionary zoning to create affordable housing by requiring 20% of most new residential development to provide affordable housing. The program went into effect on July 3.