On April 23, I joined a packed house attending the City of Whitefish vs. Flathead County Board of Commissioners hearing before Flathead District Court Judge Kitty Curtis.
The main point of the argument presented by Whitefish attorney John Phelps was that irreparable harm would occur were the county to resume zoning jurisdiction. Flathead County counsel Alan McCormick argued otherwise, of course.
I was especially struck by the discussion over the interlocal agreement’s lack of a termination clause, something found in almost all contracts and partnership agreements.
Furthermore, the basic fight between the city and county is over who has the power to legislate/regulate the proletariat. The city is arguing that the county permanently delegated its legislative authority away. But legislation is impossible without the ability to change laws, especially rotten ones. Binding future legislators permanently to laws passed today is not constitutional.
So excuse me if I question the skills of the lawyers who wrote the interlocal agreement (Flathead County’s Jonathan Smith and Phelps). They clearly neglected some fundamentals of the practice of law.
For now, Judge Curtis continued the temporary restraining order, and Whitefish still rules the doughnut. The growth policy and critical areas ordinance remain in effect. However, I think the city is about to choke on its prize.
After all, the effects of the critical areas ordinance (CAO) will be more fully felt by more people, who probably won’t be delighted by the ever-changing fee structures, or the “free-market” prices that will be charged by the required “qualified professionals.”
The Northwest Montana Realtors have issued an “addendum” to their members that warns buyers and sellers that the value of Whitefish-area property can now only be determined after “the City’s determination of the property’s potential use.” This is not a stunt, but an extension of the fiduciary duty that realtors have to their clients, a breach for which the realtor can be held liable. Even if we accept that only half the value of the property valuation listed by the realtors for the Whitefish area is affected, the “time-value” burden of only one month of CAO process is $1.935 million.
But the delay will probably be much longer. For example, the CAO requires groundwater level monitoring in high-water-table areas. The problem is, the window of opportunity for determining high water is only from May 1 to June 15. A property put on the market in July can’t be cleared for sale for at least a year, and possibly more if the “qualified professional” is booked up.
And while we’re talking about “time-value,” how about the infill requirement in the Whitefish growth policy, forcing years of wait upon doughnut folks before they can realize a gain from their investment? People of modest means will especially be hurt.
Some might say a couple million a month in losses (borne by others) is worth it for “water quality.” But I have yet to hear any explanation of exactly how the CAO improves on the status quo. Does anyone know how many parts per million of additional pollutant or sediment yield in the Whitefish River or Whitefish Lake the CAO will prevent if expected development in the critical areas were to occur under prior law? A zillion? Or none?
The city was given a tremendous opportunity by the county to govern wisely in good faith, and has shamefully thrown it away. If the county succeeds in wresting control of the doughnut away from the city, from then on the only means left to Whitefish for expanding its influence on its surroundings will be through piecemeal, ad-hoc annexation – at best.
I feel it more likely that the Whitefish City Council’s obdurate intransigence has just created another Evergreen. I doubt the city leaders of Whitefish really wanted such a result when they set about codifying their civic “vision,” but I have no doubt it is what they deserve.
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