WHITEFISH – The Whitefish City Council is reconsidering its decision to keep the same zoning along the commercial strip of U.S. Highway 93.
At a work session on Sept. 20 where no votes were cast, the council indicated it will explore ways to improve business licensing and enforcement standards, and possibly change zoning to include nonconforming businesses in the WB-2 Secondary Business District.
The council agreed that forcing nonconforming or unlawful businesses to close would be improper.
“To shut down businesses, I think we’re going to get lawsuits,” Councilor Phil Mitchell said.
What isn’t clear is exactly how the zoning should be changed and what legal implications there might be. Until a decision is made, the city’s planning and zoning department must continue to operate in a gray area. If an unlawful business is allowed to continue running, how can the city deny a similar business that wants to open?
“It puts us in an awkward situation,” City Planning and Zoning Director Dave Taylor said.
But the city also acknowledges it’s a slippery slope to begin changing zoning laws for a handful of businesses. For example, city officials discussed adding language to the zoning laws that allows sporting goods stores over 8,000 feet, which would make Army-Navy Surplus legal. Sporting goods stores are not currently allowed uses in the WB-2.
Councilor John Muhlfeld said such a move could be viewed as unfair to sporting goods stores that have invested in the downtown district.
“It goes back to my issue of changing zoning to accommodate illegal uses,” Muhlfeld said.
On Aug. 16, council voted against a proposal to change zoning to include more retail uses in the WB-2 district on Highway 93. Council instead directed staff to pursue better enforcement of current zoning and find a way to grandfather in existing nonconforming businesses.
At a Sept. 7 meeting, Councilor Turner Askew said the council had made “a terrible mistake” with its earlier vote by leaving an untenable zoning situation with potential legal implications. Council voted 5-1 to reconsider expanded retail uses in the WB-2 zone, which led to the Sept. 20 work session.
There are five or six businesses in the district that are considered nonconforming or unlawful. City Attorney Mary VanBuskirk said if the city makes concessions for these businesses, other businesses with similar uses could claim lack of due process or unfairness if they’re not also allowed.
“I call them the ‘me too’ businesses,” VanBuskirk said.
The city has identified weaknesses in its zoning enforcement and business licensing standards. Improvements in these areas, city officials believe, could help to solve some of the problems in the WB-2.
But Mayor Mike Jenson said part of the burden falls on the business owners to understand zoning laws and make sure they’re in compliance.
“They can do anything they want until they get caught?” Jenson said. “They have no obligation to research their position in town?”