Whitefish board approves appeal of hangar permit

The Community Development Board voted in favor of an appeal of the zoning decision related to a permit issued in July for a hangar to be built at the Whitefish airport.  

The board voted 5-2 in favor of the appellants, who claim the zoning administrator, Whitefish City Planner David Taylor, made an error in his interpretation of the ordinance regarding the size of setbacks required for an accessory building to an airport. 

Further, the parties claim they were aggrieved by the error. 

To overturn a zoning administrator’s decision, the board must find that the zoning administrator errored in interpreting the code and that the appellants are specifically aggrieved by that decision. 

At its July 1 meeting, the City Council granted Bill McKinney a conditional use permit to build a 23-foot-high hangar to house four aircraft at the airport near the dog park. 

The council voted 4-1 to approve the permit, with Councilor Rebecca Norton in opposition. Councilor Giuseppe Caltabiano recused himself from the vote. There was robust public opposition to the project and the Community Development Board had recommended denial of the project. 

Robert Horne Jr., Kate McMahon, Phyllis and Jack Quatman filed an appeal of Taylor’s interpretation of an ordinance from 2014 regarding setback requirements for an accessory building at an airport. 

They argued a 300-foot setback should have been applied, not the 20-foot setback applied by Taylor per the WA agricultural zoning requirements. That part of the code reads, “Public and private airports, heliports and helipads must be a minimum of 300 feet from adjacent properties.” 

“This code was basically written for heliports and helipads, not necessarily airports or existing airports,” Taylor said. “When we wrote that, no one was intending it to apply to the existing Whitefish airport.” 

Taylor said the ordinance was intended to say, “runways, heliports and helipads have to be a minimum of 300 feet,” because it was based on where the aircraft would land and that they needed to be at least 300 feet away from a property. 

“Staff determined that accessory buildings only need to have the 20-foot setback and not a 300-foot setback,” Taylor said. “We believe there wasn’t an error in the interpretation. We're OK to not require the airport itself to be 300 feet from an adjacent property or anything within the airport. The airport’s not even 300 feet wide.” 

He said staff did not consider the 300-foot setback applicable to accessory buildings. He said the city previously approved multiple accessory buildings on the site, including a gazebo and a shed that did not meet a 300-foot setback. 

Whitefish City Attorney Angela Jacobs said it is the job of a zoning administrator to interpret city code if it is ambiguous and if someone disagrees, they can come to the board. She added that there is no definition of airport in Whitefish code. 

“In my mind, it’s not relevant whether the statute is ambiguous, as you say or not, because that doesn’t really have anything to do with that one tiny lot [where the hangar would be built],” Board member Scott Wurster said. “If the statute was poorly drawn and you’re interpreting it based on your understanding of what the intent was back at the time, I don’t think that’s the proper perspective from which to interpret that statute.” 

Horne, an appellant, said community planning was his only career; thus, he has extensive experience with zoning codes. He said the appropriate remedy in this case is a code amendment. 

“Our submittal describes onsite and offsite impacts related to the airport operations due to these public health and safety concerns, the board must be very deliberate in determining how to apply the setback requirements,” McMahon said. 

She said the appeal was about the precedent for reviewing future conditional use permits. 

“During the public process for the airport hangar CUP, questions we raised regarding the 300-foot setback were not addressed,” she said.  

She said her questions were presented in a letter on May 13, at a meeting on June 20 and again at a City Council meeting. McMahon distributed a petition, signed by 52 people supporting the appeal, to the board members.  

The appellants outlined five points explaining how they are specifically aggrieved, two of which are being directly impacted by expansion of the airport because they live nearby, and they are regular users of Armory Park, the enjoyment of which will be diminished by the expansion. 

The applicant for the permit, McKinney, said he was not proposing to construct a new airport. When board member Whitney Beckham noted that McKinney had written in the application for the permit he would abide by a 300-foot setback. She said she was confused by that answer and McKinney admitted to being confused, too. 

“This is a camel’s nose under the tent situation,” Wurster said. “If we use this process and this interpretation to approve your CUP ... that does set a precedent that future development or additions to this airport of any can go forward without first considering whether or not we need a plan ... to protect public health, safety and welfare.”  

Wurster moved to grant the appeal. He said the interpretation is not reasonable.  

“Why did the applicant submit an application that said the 300-foot setback requirement was met?” Wurster asked. “Why ... weren’t the questions of the appellants, about a 300-foot setback, answered?" 

He also wondered why this issue didn’t seem to come to the attention of the city until after the CUP was approved. He said he feels “misled.” 

Board Chair Steve Qunell argued the proposed hangar is not an expansion of the airport and that Taylor’s interpretation of the code was “very reasonable.” He said the diminished enjoyment of Armory Park is a valid aggrievance. Since he did not find both elements of the appeal request to be true, he said he would not support the motion. 

The board voted 5-2 in favor of the appellants, with Qunell and board member Mallory Phillips in opposition. 

Jacobs said the issue will be set for a public hearing before the City Council to decide whether to revoke the conditional use permit.