Whitefish Struggles With Controversial ‘Planning Doughnut’

By Beacon Staff

Whitefish’s “planning doughnut” controversy is a touchy, if not convoluted, ordeal.

Statistics are scattered or don’t exist at all. Residents in the outskirts of town are governed by city land-use regulations but can’t vote for city officials, nor can they apply for county boards. In some ways, they are in limbo. On the other hand, they use city services and don’t pay city taxes. Then throw a sweeping growth policy and a controversial storm water management ordinance into the mix.

The results: angry finger pointing, residents threatening lawsuits and local officials facing a significant and difficult dilemma.

The controversy stems from a 2003 vote by Flathead County Commissioners and the city councils of Whitefish and Columbia Falls that gave city officials unprecedented planning power. Before, zoning regulations and subdivision approvals in a four-and-a-half mile radius outside of each city’s limits were in the hands of county commissioners. The vote, backed in 2005 by formal agreements, gave total planning jurisdiction to the cities for a roughly two-mile radius. Anything outside of that is still the county’s.

To date, Columbia Falls has experienced little jurisdictional bickering, but Whitefish’s heated dilemma has turned sour for many, which Whitefish’s new mayor Mike Jenson recognizes. After being sworn in at a Jan. 7 city meeting, Jenson made it clear he plans to make the extra-territorial jurisdiction issue a top priority. He hopes to be able to reach an agreement with the county and doughnut residents. At that meeting, he proposed a township idea that would give those residents two seats on the council, though the feasibility of such a move is yet to be determined.

But Jenson believes a resolution is within reach.

“Is it realistic?” he said. “Is it not realistic? I happen to think it is.”

County Commissioner Gary Hall and many of his constituents in the doughnut are wary about the township proposal. It’s like “throwing out a bone,” Hall said, because two council seats don’t stack up to the city’s six. Hall, who has long talked about rescinding the 2003 decision that he originally approved, said he is willing to extend negotiations with the city because he is honoring a request Jenson made to him in December.

Nevertheless, Hall, who regrets his vote, said the county is ready to “rescind it at any time” and considers Whitefish’s zoning and land-use regulations to be “a serious breach of intent with the spirit” of the inter-local agreement. Hall has sparred publicly with Whitefish City Councilor Nick Palmer in the past over how the city handles its extended jurisdiction, claiming the council ignores the county and abuses its power. Palmer has said Hall wants “unregulated growth.”

“I will confess that I was naïve enough to think it could work out and we could all work together,” Hall said. “If I had it all to do over again I would not do it at all because all it’s done is divide us as a community. It’s brought division, hard feelings and anger.”

Some doughnut residents, like Realtor Tom Thomas, say litigation is the only solution. Thomas said he took a phone poll of more than 100 area residents and was persuaded to contact land-use attorneys from Billings and Helena. His primary concern is that residents are subject to city regulations but aren’t represented by city officials. He also disagrees with Whitefish’s planning approach. He intends to file a lawsuit.

Whitefish city council members Shirley Jacobson, Ryan Friel, Nick Palmer, Nancy Woodruff, John Muhlfeld and Martin McGrew listen as Mayor Mike Jensen, left to right, address concerns regarding the “planning doughnut” that surrounds Whitefish at the city council’s first meeting in 2008.

“None of that stuff was flying at all when I presented it to different people,” Thomas said of the township proposal. “We’ve pretty much been told that a legal challenge is the only way to get our rights back.”

The doughnut area is far larger than the area within city limits, but the population is smaller. According to U.S. Census Bureau figures, Whitefish had 7,723 city residents in 2006. Bob Horne, Whitefish’s former city planner who was instrumental in drafting the city’s growth policy, said census estimates put the extra-territorial jurisdiction’s population at 4,724 in 2006. According to maps provided by Flathead County’s Geographical Information System, the county’s map-making entity, the entire Whitefish planning jurisdiction is 26,043 acres, 18,864 of which is in the doughnut. The remaining 7,179 acres is within city limits, or 3,801 acres not including Whitefish Lake.

Another twist in the doughnut saga is that its residents can vote for county officials but can’t run for county boards, as Robbie Holman recently found out. Holman was appointed to Flathead County’s planning board but was then told the following day he wasn’t eligible because he lives in the doughnut near Whitefish Lake. Mary Sevier of the county’s planning office said even though Holman lives outside of Whitefish city limits, he can’t run for a county position because he still resides within Whitefish’s planning jurisdiction. Holman was not aware of this.

“I don’t know how it works and I don’t even know if I’m really part of Whitefish,” Holman said.

Rep. Mike Jopek, D-Whitefish, wants to see the jurisdiction issue resolved, as he said it’s one of the most contentious issues he’s seen in Whitefish. He attributes some of the tension to the recent city council election that he called “probably the ugliest I recall seeing anywhere in Montana.” He supports Jenson’s township proposal. And while he said he favors negotiation and believes city and county officials will be able to solve the issue, he’s not ruling out proposing state legislation if necessary.

“People are a little bit hot on the issue and I think we need to talk about it a little more,” Jopek said. “If they can’t come to a solution, I’m willing to force a solution and what I mean by that is introduce legislation.”

To be sure, the Whitefish City-County Planning Board represents both the city and county, with four members coming from each jurisdiction. The planning board, however, doesn’t have final land-use approval power. The city does, which is rare for areas outside of city limits. For example, high growth areas like Kalispell, Missoula and Bozeman give planning power to the city only within city limits. Everywhere else it is in the hands of the county, as it used to be in Whitefish.

Bozeman used to grant zoning power to the city in its doughnut area and gave subdivision approval to the county, said Bozeman’s city planning director Andy Epple. The city’s zoning power outside of city limits at the time stirred up the same controversy as Whitefish is currently experiencing, Epple said, which contributed to the dissolution of the city-county planning board there and the redistribution of zoning power to the county.

“That was kind of the battle cry here – regulation without representation,” Epple said.

Palmer said the city has looked for ways to remedy the representation concerns before. When he first took office in 2006, Palmer said, he immediately went to the late Judge Frank Morrison Jr. and asked him how the city could enfranchise the fringe residents. Morrison told him nothing could be done short of state legislative action. For that reason, Palmer feels Jenson’s township proposal is a good way to meet in the middle. He said he understands that some people might feel the proposal is insufficient, but he feels it’s the best solution within the circumstances.

“I really applaud mayor Jenson’s idea,” Palmer said. “I think they would welcome having a formal voice.

No matter what resolution is reached, Jopek hopes it doesn’t involve litigation.

“Supreme Court rulings tend to lean toward local control,” Jopek said. “But what does that solve? In my mind, nothing. As soon as you do that, as I’ve seen, people become more entrenched.”