Public’s work here is not yet done

In the summer of 2019, I filed a lawsuit against the City of Whitefish. The city was in the process of drafting an affordable housing plan (also referred to as the Inclusionary Zoning or IZ plan), which I supported as a plan the city clearly needed. What I could not support as a long-time community planning advocate, who insists on active and inclusive public participation, was the fact that the city, beginning in late 2017, was drafting this plan contrary to the transparent public process that the Montana Constitution requires. The city held 30 or more closed-door meetings over the course of a year where critical decisions were made that shaped the text and policies of the affordable housing policy. While there were some meetings and final hearings open to the public, the city refused citizen requests to open the dozens of closed-door meetings so the public could observe and meaningfully participate in the process. A recent ruling on this case notes that “It is undisputed that the city did not generally advertise the IZ Group meetings or invite the public to them.”

When I first filed the lawsuit in 2019, I explained the reasons why I was taking on the city and championing public participation this way, “When the Whitefish City Council under the leadership of the City Manager operates without clear publicly available rules and procedures, and allows city committees or work groups, or the council as a whole, to meet behind closed doors, the public becomes distrustful and rightfully asks, what are they trying to hide? 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? 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.”

Last week, more than two and a half years after the case was filed, Flathead District Court Judge Ulbricht dismissed the case – not on the substance of the allegations but on the procedural point that the Montana Legislature had enacted legislation outlawing Whitefish’s affordable housing policy.

Judge Ulbricht did not find that the allocations of an illegal public process alleged in our suit were false, but that our case was moot — meaning that continuing the legal proceedings could have no effect. She based this conclusion in large part on the fact that on April 19, 2021, Governor Gianforte signed into law House Bill 259, which essentially declared any inclusionary zoning program in the state illegal.

Thus, the public’s work here is not yet done. And perhaps it is never done, as defending and insisting on the public’s meaningful right to have timely access to information and to observe the work of our government in making policy and decisions is a right we must always speak up for.

Mayre Flowers and CommUnity Consulting LLC