A Flathead District Court jury’s ruling last month against the city of Whitefish brought only a limited degree of closure to the uncertainty and controversy surrounding a temporary critical areas ordinance.
The jury ruled that the city unfairly denied William and Theodora Walton equal protection under the law when it denied the couple a permit to build a house on Houston Point overlooking Whitefish Lake. The jury awarded the Waltons $300,000 in damage fees plus up to $80,000 in attorney fees. Whitefish City Attorney John Phelps said the city may appeal.
“You don’t normally write a check right away,” Phelps said.
Meanwhile a city committee is reaching the final steps in its attempt to draft a permanent critical areas ordinance.
Bob Horne, the former city planner who acted as zoning administrator in deciding the Waltons’ building permit, was one of two main witnesses in the trial along with Phelps. In May, District Judge Ted Lympus ruled against the Waltons, proclaiming the critical areas ordinance to be valid. This time, the Waltons argued that the ordinance was administered unfairly.
Horne said he doesn’t understand how he administered the ordinance unfairly when the Waltons’ land clearly violated the 30-degree slope specification in the ordinance and the board of adjustments unanimously supported his decision.
“It’s unfathomable to me,” Horne said, adding that he and the city “vigorously dispute it.”
The Waltons’ land is flat, Horne said, until it drops off into a slope of more than 40 degrees, well over the ordinance’s 30-degree maximum. The Waltons wanted to build on the slope, he said. They would have been fine if they chose to build where it was flat.
“It doesn’t take a rocket scientist to figure out the permit should be denied,” he said.
Sean Frampton, the Waltons’ attorney, said Horne and the city singled out his clients. He cited 11 reasonable-use exemption (RUE) permits granted for similar lands on Grouse Mountain.
“How (the Waltons) were singled out is unfair,” Frampton said.
Horne said he never approved RUE permits for the Grouse Mountain sites, though he said developer Greg Carter disputes this. Furthermore, it’s impossible to compare the Waltons’ land to Grouse Mountain, he said.
“The properties have absolutely nothing in common,” he said.
Horne also disputes the plaintiffs’ claim that their RUE was the only one he denied. He said he denied one on West Lake Shore in which the owners of an existing house wanted to build patios and other expansions on a steep slope.
Frampton said the temporary ordinance was drawn up in a way that left too much power in the hands of the zoning administrator. He hopes the permanent critical areas ordinance will address this by setting versatile standards, other than a flat 30 percent slope mandate.
“It was really a matter of Bob Horne going to each property,” he said. “And going, undevelopable, developable…who’s to say that it’s not reasonable? It’s reasonable to me.”
The current draft delves into the slope issue with greater care, Frampton said, and this may be due partly to the Walton decision.
“I think if anything,” he said. “(The decision) has made the committee more aware of what they’re drafting.”
Horne said Frampton at times made the Walton trial a personal matter against him.
“Another part of (Frampton’s) approach was to discredit me personally and professionally,” Horne said. “He would ask me, ‘Mr. Horne, is it true you don’t like rich people? Mr. Horne, is it true you think that people shouldn’t have large houses?’”
“No, that’s not true,” he said.
Frampton contends there is evidence that Horne had a bias against big houses and development on Whitefish Lake.
Phelps believes that the Waltons should have waited until the permanent ordinance is completed before taking the matter to court. Even after the ruling, the Waltons still have not been granted permission to build, which is where they were when they started, he said.
“It’s possible that when the smoke clears they’ll be able to build anyway,” he said. “Their lawsuit could have been avoided.”
“It seems that things were moving in a positive direction for them already,” he added.
Phelps said it’s “too early to tell what the total effect” the Walton decision will have on city planning. Horne doesn’t think it will have any long-term effect.
“This was all about one case, one applicant,” Horne said. “That’s all it was.”
Both Phelps and Frampton have looked at the draft, but Horne hadn’t yet at the time of this interview. The critical areas advisory committee is expected to give a final draft to the planning board soon. Phelps knows one thing: people will be paying attention.
“It will be under scrutiny,” Phelps said.
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