It’s become hard to tell up from down and defeat from victory with the planning doughnut controversy in Whitefish.
In the past month, two opposing groups of citizens have each claimed losses and declared blows to their particular movements. Yet everybody appears to be in the same place they’ve been for a long time: awaiting a decision from a Flathead County District Court Judge Katherine Curtis.
Whitefish City Attorney Mary VanBuskirk said the city and county are expected to file replies with Curtis on Jan. 28 in response to a third-party intervenor’s claims in a lawsuit disputing who has planning jurisdiction in the doughnut area outside of Whitefish city limits.
While the county and city have agreed to drop their lawsuit, Sean Frampton, an attorney representing several individuals in the third party, is arguing that his clients still have claims in the litigation and do not plan to drop their involvement. After receiving the responses to Frampton from the city and county, Curtis will decide how to move forward with the lawsuit, VanBuskirk said.
After the Whitefish City Council and Flathead County Commission approved a revised interlocal agreement at the end of last year, a group of citizens maintained that the new document failed to address representation for doughnut residents.
Later in the month, the citizens introduced proposals for a ballot referendum and initiative. The referendum seeks to repeal the revised interlocal agreement, while the initiative’s goal is to create an elected community council.
Earlier this month, VanBuskirk gave the green light to a petition that will put the referendum on November’s ballot if its backers obtain 707 signatures – or 15 percent of voters who participated in the last election – by April 12. But around the same time, Flathead County Deputy Attorney Tara Fugina rejected the initiative.
Fugina cited multiple reasons in her rejection. She ruled that the elector pool cannot be limited to the “extra-territorial joint planning jurisdiction outside the city limits of Whitefish” as stated in the sample petition and instead must include all of Flathead County. Fugina also stated that “initiative power is reserved for legislative acts only.”
“The proposed ordinance that is the subject of the initiative is administrative in nature, not legislative,” she wrote.
VanBuskirk said Fugina’s ruling is not a deathblow to the citizens’ attempts at forming a community council. The citizens can still request Flathead County commissioners to consider the council proposal, a lawful option that has always been available to them.
“They can today go knock on the county commissioners’ door and say we’d like to have a community council,” VanBuskirk said.
But Marilyn Nelson, one of the initiative’s sponsors, said “we asked the commissioners last summer and they said ‘no.’” Even if the commissioners were to consider the proposal, Nelson said the initiative is a better method, as it puts the vote directly to the people.
“No one has ever asked the doughnut residents what they want,” Nelson said. “That to me was the advantage or the value to the initiative, because it would have given the residents of the doughnut a vote.”
She added: “We’re still looking at what might be available. This is not an easy nut to crack.”
Referendum sponsors and fellow supporters greeted VanBuskirk’s petition approval as a victory, but several detractors have been publicly critical. Attorney Duncan Scott, who had sent a letter to the Flathead County Attorney’s Office outlining concerns over the initiative that were upheld by Fugina, felt the referendum should have been rejected as well.
Scott said referendums pertain only to legislative – not administrative – acts, just as initiatives do. Settling a lawsuit, he said, is an administrative act. But VanBuskirk, referencing state law, came to a different conclusion after deciding the proposal has enough legislative qualities to allow a vote.
Diane Smith and Lyle Phillips, who served as doughnut representatives during the interlocal settlement process, wrote an editorial in local newspapers describing their disapproval of the referendum, citing fears over continued litigation between the city and county.
“Many people labored mightily for the past year to resolve the ‘doughnut’ lawsuit,” they wrote. “Now, with the announced referendum by some people who want the lawsuit to continue, we fear the proposed settlement is dead.”
Nelson doesn’t agree that the referendum extends litigation and VanBuskirk remains optimistic that the city and county will continue with diplomatic negotiations. Nelson believes residents of the doughnut area should be able to vote on their future.
“The whole referendum and initiative movement,” Nelson said, “is about giving the Whitefish community meaningful say in what happens in their community.”