Fearing Fallout, Columbia Falls May Join Doughnut Fray

By Beacon Staff

Columbia Falls might be getting involved in the legal tussle between Whitefish and Flathead County.

Whitefish sued the county last month after county commissioners voted 2-1 to rescind a 2005 interlocal planning agreement. Columbia Falls also has an interlocal agreement with the county, which concerns both City Attorney Eric Kaplan and City Manager Bill Shaw. They are worried that if the court decides Whitefish’s agreement is void, then so is theirs. Kaplan said the city may intervene in court proceedings.

County Commissioner Gary Hall said he contacted Shaw to ensure him that Columbia Falls would be unaffected, though Shaw is skeptical.

“I don’t see how they could give me this assurance,” Shaw said. “They’re essentially saying these agreements are invalid, so I don’t see how ours wouldn’t be.”

Kaplan said existing and future land-use regulations in the city’s extraterritorial planning jurisdiction could be rendered moot if Flathead County wins the lawsuit. But Hall said he discussed the Columbia Falls situation with his attorney and stresses “that there is absolutely no way that anything they’ve done in the past is invalid.” The county’s only concern is Whitefish, Hall said.

Kaplan, however, said he received a letter from Whitefish City Attorney John Phelps discussing the legal implications for Columbia Falls and believes the city will be affected.

“I agree with John Phelps’ assessment that pretty much whatever the court decides with regards to Whitefish would apply to us also,” Kaplan said.

Kaplan is currently examining the costs and consequences of intervening in the lawsuit. He will present his findings to the Columbia Falls City Council at its May 19 meeting.

With the 2005 interlocal agreements, the county handed over final land-use and zoning power to Columbia Falls and Whitefish in roughly two-mile zones surrounding each city. Hall, who initially welcomed the agreement, has argued in recent months that Whitefish abuses its planning power in the so-called “doughnut” area.

Hall called for the county to take the area back under its control, prompting the commissioners’ 2-1 vote to rescind the decision. Whitefish countered by asking for, and being granted, a temporary restraining order that prevents the county from acting outside of the agreement until further court rulings.

Hall said the county appreciates Columbia Falls’ planning and zoning efforts.

“In fact we want to continue that agreement that we have,” Hall said. “We’re pleased with the relationship we have in Columbia Falls.”

On April 23, District Court Judge Katherine Curtis heard Whitefish’s request for a preliminary injunction that would essentially extend the restraining order. As of the Beacon’s print deadline she had not arrived at a decision, but she did rule that the temporary restraining order remain in place until she makes one.

Phelps expressed concern at the hearing for the “irreparable damage” he felt Whitefish would endure if the interlocal agreement were to be nullified. If the agreement is void, Phelps said, so are all of the city’s regulations in the “doughnut area,” including the city’s growth policy and its lakeshore and zoning regulations.

“Those, I believe, would come to a screeching halt,” Phelps said.

Alan McCormick, a land-use attorney from Missoula hired by the county, countered that there isn’t any proof that irreparable damage would happen to the city.

“This is argument of harm, not evidence of harm,” he said.

McCormick said if the injunction is granted, the county won’t rush into wholesale and rapid zoning changes, a point stressed by Hall as well. Hall said the county would adjust its growth policy and regulations accordingly to incorporate the doughnut area, and until that is accomplished, the city would maintain its jurisdiction over the area.

Kaplan said he wants to figure out a few essential details before recommending any action to the council. He wants to make sure that Columbia Falls and Whitefish have identical or nearly identical interlocal agreements, as well as talk with both Phelps and McCormick. Then he will make an evaluation on what effect this case could have on Columbia Falls. He will also provide cost estimates.

Whitefish has faced an onslaught of controversy and lawsuit threats concerning the doughnut area, with many doughnut residents angry that the city has planning jurisdiction over them yet they can’t vote for city officials. Kaplan said Columbia Falls has experienced little controversy, though considerably more tension could arise if current regulations were voided.

“There have been occasional protests about it or occasional letters but certainly nothing compared to what’s gone on in Whitefish,” he said. “We haven’t had any threats of a lawsuit. We haven’t had any really serious attacks on it.”

Related: Court Denies Whitefish’s Request for Injunction

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