Committee Leaning Toward Joint Control of ‘Planning Doughnut’

By Beacon Staff

WHITEFISH – After discussing several options for how to best solve the “planning doughnut” controversy, an ad-hoc committee is zeroing in on a plan that would require approval from both the city and county to enact legislation in the extraterritorial jurisdiction surrounding Whitefish.

The proposal, as currently written, has met some resistance, but committee members are formulating suggested improvements, which will be distributed via the city’s e-mail list and on the city’s website. Then the committee is tentatively scheduled to meet on Sept. 14 at 5:30 p.m. at Whitefish Middle School’s board meeting room.

Bill Kahle, a committee member and Whitefish city councilor, acknowledged at an Aug. 31 meeting at City Hall that there is room for improvement in the current proposal, but said it’s a step in the right direction. Kahle said it’s important to make progress while a lawsuit filed by the city against the county over the interlocal agreement is pending.

“We’re trying to put out a fire,” Kahle said, adding, “the solution won’t be perfect right now but it will allow us to take the next step.”

Sean Frampton, an attorney representing a third-party intervener in the lawsuit between the city and county, expressed skepticism over the plan. Meanwhile, a group of residents is promoting its own alternative plan for a community council, similar to those found in Lakeside and Bigfork.

Marilyn Nelson presented a draft of the community council concept at the Aug. 31 meeting. Nelson said an informal group of residents had put the draft together. The city council was scheduled to discuss the proposal at its Sept. 7 meeting.

“This is a very grassroots effort,” Nelson told the committee, adding that she planned to gather more signatures and public input.

At the meeting, the committee discussed a proposed amendment to the interlocal agreement between the city and county. The amendment was the result of meetings between Whitefish City Attorney Mary VanBuskirk, Frampton and Alan McCormick, who is representing the county.

The committee, which consists of both city and county representatives, has been meeting since March to find a way to give residents in the “doughnut” area proper representation and governance without requiring litigation.

Conversation largely revolved around the amendment’s three options for “new legislation enactments.” There was a general leaning toward Option A, which states that any new zoning or land-use planning legislation implemented by the city must be approved by the Flathead County Commission before it becomes effective within the doughnut.

Under Option A, if county commissioners withhold consent they have 10 days to provide the Whitefish City Council with a written explanation and the legislation won’t be enacted. If the commissioners fail to conduct a hearing within 30 days after receiving notification from the city, consent will be inferred.

Option B keeps voting power in the hands of Whitefish for new land-use legislation, but requires the city to gather input from the county before making its decision. Option C deletes the entire section for “new legislation enactments.”

While Diane Smith and Lyle Phillips promoted Option A, there was some support for Option C on the city’s side. But City Manager Chuck Stearns conceded there were inherent difficulties with Option C and added, “I could live with A.”

“I would probably favor C, but I’m not naïve enough to think that satisfies all of the problems,” Stearns said.

Nobody spoke in favor of B, with Kahle calling it a “watered-down” version of A.

“Everything is gravitating toward Option A,” Kahle added.

Frampton, who was in the small audience, said that “A is the only option” for his clients, though he argued it still fell short. In addition to requirements for new legislation, Frampton said existing legislation – put in place since the interlocal agreement was signed in 2005 – must be addressed.

Frampton filed for, and was granted, third-party status in the lawsuit between Whitefish and the county to raise additional points in the litigation. He has been involved in discussions since the committee began meeting.

“We don’t think the agreement was valid to begin with,” Frampton said. “So how can regulations be valid that weren’t lawfully applied in the doughnut to begin with?”

He added, in reference to laws enacted in the doughnut since 2005: “I think everything has to be reviewed.”

There was concern over how long it would take to review and possibly change existing legislation, with Smith wondering if there’s a way to do it speedily. But Nelson said it’s improper to assume that all legislation enacted in the doughnut since 2005 is unlawful until a court rules that way.

Larry Campbell stood up and identified himself as “doughnut man.” Campbell, who has attended doughnut-related meetings for years, repeated his long-held belief that the best option would be a vote of residents in the area. Ask them, Campbell said, which side they want to represent them.

“That’s the American way,” he said.

But Campbell softened his tone and showed appreciation for the amended interlocal agreement.

“I think it’s a good start anyway,” he said, “but I think it needs some tweaking.”