Whitefish postpones decision on annexation

After a somewhat contentious and complex public hearing, the Whitefish City Council chose to postpone a decision regarding the annexation and zone change for a property at the southeast corner of U.S. 93 and Montana 40 to accommodate a development known as Alpine 93/40.

The council will meet for a work session Oct. 17 and bring the discussion to the regular meeting on Nov. 6. The item has been kept open for public comment.

The approximately 11-acre parcel is currently zoned county B-4 with a highway overlay zone and the Whitefish’s Business Transitional district is being requested.

Whitefish Senior Planner Wendy Compton-Ring explained that this is the third time the council has used the new format where annexation and rezoning happen at the same time with the same public hearing.

“Also included with this annexation and rezone is a development agreement … in a draft state. This is not a requirement for annexation but was a tool that we felt might be helpful for you … to give you a clear sense of what the proposed, possible development could be,” Compton-Ring said.

Councillor Rebecca Norton asked about opportunities for public input down the line. She tried to confirm there would be a public hearing when the developer returns to the council for conditional-use permits for the commercial portion of the project.

Compton-Ring said Senate Bill 245 allows multi-family in all commercial zones, so there will be no more review of multi-family in the proposed area. It was believed early in the meeting that all the other conditional uses in the WBT still apply.

Later, however, Whitefish City Manager Dana Smith and Whitefish City Attorney Angela Jacobs said their reading of the new law basically erases the zoning conditions, making it unclear as to what uses are possible within the development.

“In looking at Senate Bill 245, I think it's a question whether or not we can require a [conditional-use permit] for that commercial portion,” Smith said. “When you read that definition of mixed development, that has to be a permitted use now, due to the state Legislature.”

Senate Bill 245 defines a mixed-use development as a development consisting of residential and nonresidential uses in which the nonresidential uses are less than 50% of the total square footage of the development and are limited to the first floor of the buildings.

“You have a developer agreement with this annexation because we know that Senate Bill 245 has opened up the doors,” Smith said. “If it’s zoned commercial, they can do whatever density they can fit within our setbacks, so what I believe we have to determine is if a [conditional-use permit] is even allowed.”

She said a mixed development applies to the lot, not for each building. Since the amount of housing provided by the developer in this instance exceeds 50% of the project, Smith doesn't think requiring a conditional-use permit would be allowed for this development.

Jacobs said the law states if the nonresidential portion of the development is 50% or less, mixed-use development must be allowed as a use by right.

“Unfortunately, that was the Legislature’s decision,” Jacobs said. “I think that ties our hands as far as this goes, so you folks may not see a [conditional-use permit] application for the commercial portion of [the development] which is 15,000 square feet or less.”

What remained a question was exactly what uses are allowed in the commercial space of this development. The council and staff hope to iron it out at the work session on Oct. 16.

THE DEVELOPMENT agreement proposes no more than 210, one- and two-bedroom apartments, no more than 15,000 feet of commercial space and amenities to the residents.

Lead developer Alberto Valner said the commercial space would be filled with neighborhood-type businesses like coffee shops or small restaurants.

The development is proposing to participate in the Legacy Homes program and supply 10% deed restricted housing, or 21 units, and in exchange, is asking for the 40-foot building height.

The city has outlined two conditions of approval for the annexation. First, the developer must upgrade the portion of Emerald Drive within the annexation area to U.S. 93 South to city standards. The second condition is that the maintenance of the U.S. 93 shared path, the sidewalk on Emerald Drive, the street trees and all internal landscaping is the responsibility of the property owner.

Valner said he was aware that prior proposals for this location have, most recently, included a major retail development.

“We were fully aware that the city did not want to see this or any other gas station or another storage facility, which we can do by right,” Valner said. “To us, housing with a small neighborhood retail component was the obvious answer.

“We do not want to see our community turn into another Jackson Hole or Park City, where people need to drive … to Kalispell or … Columbia Falls for their housing,” Valner continued. “These are not condos, nightly rentals or luxury apartments, but instead these are meant to be attainable and affordable units for our community workforce.”

A presentation by Valner’s team showed landscaped courtyards and two and three-story buildings that feature rooftop gardens alongside covered parking areas and a clock tower on the corner.

The developer has a website to share information about the project at alpine9340.com.

Twenty-two people spoke during the public comment portion of the meeting, 11 of whom were in favor of the project. The rest were either vehemently opposed or voiced strong concerns over traffic and safety issues, and asked the council to deny the annexation or postpone the decision.

Most of the opponents who spoke were residents of the Emerald Heights neighborhood that borders the proposed project.

Jerry LaPrath, president of the Emerald Heights homeowners association, said he felt like the cart was ahead of the horse.

He said he has not seen a traffic study and that the apartment units could cause an additional 800 to 1000 entries and exits on U.S. 93 and Montana 40 each day. Additionally, he said the safety of all drivers will be compromised if speed limits are not reduced.

“I fear collisions and injuries will increase, absent a traffic light or a double-lane roundabout or some function similar at the intersection of 93 and Emerald,” he said. “It’s hard to turn left now and during commute times, I suspect it will be impossible when buildout is complete.”

LaPrath’s daughter-in-law, Shay LaPrath, was emotional as she spoke of the effect she believes the proposed development will have on her family and her home in Emerald Heights, a neighborhood she described as spacious, beautiful and safe.

She said the stand of trees between the proposed development and her neighborhood are not very thick and that the developer will remove more of them. She said there are six homes within 10 feet of the property line.

“What about the community of people who already live here?” she said. “This is a safe group of people who are being asked to be exposed to hundreds of families who will now be able to witness when… we’re home with our children.

“Our safety is gone. The safety of my children is gone,” she added. “Before approving this, please give the development team a chance to… make some changes to this so this works for everybody, especially the people in the Emerald Heights subdivision.”

Jeff Krall of Whitefish spoke in favor of the development.

“Is there ever a perfect spot? Is there ever a perfect solution?” Krall asked. “We ask a lot of people to come into this town and work and to provide for this community but then we say, you can’t really live here.”

Dakota Whitman said that as a young professional in the valley, he feels like he is in a housing limbo. He doesn’t qualify for deed restricted housing but cannot afford a home at market value.

“Seeing a housing development where… I could actually live and stay at long-term is very refreshing and I think brings much needed economic benefits to the area,” Whitman said. “[Many people like me] are just one or two bad breaks away from having to leave the valley … because there’s little to no lateral mobility in the housing market.”

The council and staff discussed traffic at length before the reality of the impotence of the city’s zoning regulations became apparent.

The annexation and zone change for this property and the implications of the new state legislation will be discussed at a work session before the regular City Council meeting on Oct. 16. The council will have another public hearing on Nov. 6.