WHITEFISH – The Whitefish City Council seemed to have brought a degree of closure to the protracted “planning doughnut” dispute by approving a revised interlocal agreement, yet lingering uncertainties call into question just how finalized the deal really is.
Around midnight at a public meeting on Nov. 15, the council voted 3-2 to approve a “Restatement of Cooperative Interlocal Agreement” that sets forth stipulations for cooperative land-use management with Flathead County in the extraterritorial jurisdiction surrounding city limits. Council also agreed to drop the city’s lawsuit with Flathead County.
The county must now decide whether to drop the lawsuit and approve the agreement. As of Thursday, it was unclear when the commissioners would make their decision.
Furthermore, both the city and county are considering a memorandum of understanding that outlines protocol for reviewing legislation in the doughnut. The restatement provides no such protocol, though City Attorney Mary VanBuskirk said both parties have discussed meeting periodically to review legislation.
Even if the county agrees to the conditions, it appears a third-party intervenor involved in the lawsuit will not. Sean Frampton, who represents intervenors Heiko and Elizabeth Arndt and Westridge Investments, said the agreement doesn’t address representation for doughnut residents.
If District Court Judge Katherine Curtis concludes Frampton’s clients still have standing, despite what the county and city have agreed upon, legal questions will persist.
VanBuskirk argues that a third party no longer has standing once the main parties agree to drop the lawsuit. But Frampton says his clients have claims in the lawsuit. He added that the city has twice objected to the intervenors’ involvement and both times the judge has overruled. A major point of contention for Frampton is the critical areas ordinance.
Frampton said the interlocal agreement should address three main issues: representation, a termination clause and a duration clause. The current document, he said, discusses termination and duration, but not representation now that Paragraph 13 has been removed.
“One of the big issues is not solved in this lawsuit,” Frampton said.
Voting in favor of the revised interlocal agreement were Turner Askew, Chris Hyatt and Phil Mitchell. John Muhlfeld and Ryan Friel voted in opposition. Mayor Mike Jenson and Councilor Bill Kahle were absent.
Friel and multiple members of the public asked that a decision be postponed until Jenson and Kahle are present, citing the magnitude of the vote.
Of the 26 people who addressed the council during public comment, Diane Smith was the only one who spoke in favor of the agreement. Smith, who worked on the ad-hoc committee that helped draw up the document, said the agreement is a better solution than litigation.
“It is very tough to litigate yourself to success,” Smith said.
Mike Jopek suggested that “special interests” were influencing the process and told council before it made its decision: “You guys are about to roll us.”
“People use this microphone,” Jopek said at the public comment podium. “Special interests use the other door.”
He added: “You know (special interests) have talked to you, don’t you?”
Mitchell later called out Jopek and rebuked him for his statements. Mitchell echoed Smith in describing the agreement as a middle ground, instead of risking the outcome on a judge’s decision.
“If we lose the lawsuit,” Mitchell said, “are you going to accept that you’ve lost everything?”
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