City Council has duty to follow laws, regulations

| April 28, 2020 1:56 PM

On Monday evening, April 20, the Whitefish City Council approved a conditional use permit for a Town Pump gas station and convenience store at 6045 Highway 93 South (northeast corner of Highway 93 and Montana 40). The approval came after three public hearings at the Planning Board and City Council, and consideration of a significant amount of public input and comment.

It is our duty as a Council to represent the citizens of Whitefish and to effectuate your wishes as best we are able. Equally important, it is our duty to follow the city’s laws and regulations that have been adopted through the public process. These rules and regulations are constantly being analyzed for improvements to better reflect the vision of our community.

We sympathize with all members of the public who opposed the conditional use permit on the basis that they do not want to see a gas station at one of the gateways to our city. However, as a Council, we cannot deny a permit based simply upon our own wishes or those of the public. It is our responsibility, both legally and ethically, to apply the criteria set forth in our city code to the facts presented when deciding whether to approve or deny a permit. If a project meets the criteria, we must approve it. To do otherwise would be arbitrary and capricious and would open the City to legal liability, the cost of which would ultimately be shouldered by you, the taxpayers.

The property at issue has been zoned WB-2, secondary business district, or its equivalent, for almost 40 years. Until last year, gas stations were a use by right in the WB-2, or Highway 93 South business district. One could have been built at this location with nothing more than a building permit and architectural approval with no public input. Last December, Council passed Ordinance No. 19-24 which moved gas stations from a permitted use to a conditional use in the WB-2 zone. We did so in order to gain more control over their development and to allow us to mitigate any adverse impacts they might cause, both to the site itself and to the community as a whole.

The developer went to great lengths to satisfy the conditional use permit criteria including offering four times the required landscaping. The Council, in turn, crafted stringent conditions of approval to mitigate the concerns expressed by many members of the public. We required building setbacks and buffering, electrical vehicle super charging stations, preservation of all mature trees, a separated shared use path on Highway 93, and both recycling and bear resistant containers. We also prohibited internally illuminated neon signs, overnight truck parking, and ensured a casino will never be operated in the gas station. Consistent with current zoning requirements, the development must comply with our sign code and dark skies ordinance.

While this may not be the development some of (or all) the community would like to see on that piece of property, there are other significantly more impactful uses that could move forward without even being subject to Council approval or conditions, including automotive sales and repair, marine sales and repair, large machinery and equipment sales and rental, and chain restaurants. These types of uses are considered “use by right” and simply require obtaining a building permit and approval from the architectural review committee, without any input from the public, Planning Board, or City Council.

As a Council, we deeply appreciate the robust public participation that occurred in response to this proposal, especially during the COVID-19 pandemic. Rest assured, your comments and input were heard and given serious consideration. There were several requests to delay a decision on this matter as a result of the emergency we find ourselves navigating but this was not an option. Any further delay would have resulted in this project being automatically approved given the timelines we are held to by our own zoning code.

Council is often tasked with making difficult decisions that may conflict with both our personal preferences and public opinion and this was one of the most difficult to date.

Mayor John M. Muhlfeld and Deputy Mayor Frank Sweeney