Legal Battle Over Whitefish Doughnut to Receive Major Ruling

By Beacon Staff

The long, circuitous and increasingly convoluted battle over jurisdiction of the Whitefish planning “doughnut” is about to receive a court ruling that should answer at least one major legal question on the validity of a voter-approved November 2011 referendum. The ruling could also provide answers to other overriding legal uncertainties.

After hearing oral arguments on Feb. 28, Flathead County District Court Judge David Ortley is considering the merits of a case involving the city of Whitefish, Flathead County and two separate parties of residents seeking different outcomes. Ortley is expected to make a ruling in the coming weeks.

All four parties are asking for summary judgment from the judge. The decision is subject to an appeal to the state Supreme Court.

At stake in the big picture of the squabble is whether Flathead County or the city of Whitefish has authority over the roughly two-mile area outside of city limits known as the extraterritorial planning doughnut.

The lawsuit before Ortley offers an opportunity to bring some clarity to a legal tug-of-war that has been ongoing for more than four years, beginning after the Flathead County Commission voted in 2008 to rescind a 2005 interlocal agreement with Whitefish over jurisdiction of the doughnut.

Whitefish sued in response to the county’s rescindment and the issue has been mostly tied up in some form of litigation since, with an intermittent period when the county and city tried to resolve the matter outside of the courtroom. From those non-litigation efforts arose a new 2010 interlocal agreement, which is a major issue in the current lawsuit.

In November 2011, Whitefish city voters struck down the 2010 interlocal agreement through a referendum vote of 1,444 to 738. Following the referendum, Lyle Phillips, Anne Dee Reno, Ben Whitten and former Whitefish Councilor Turner Askew filed a lawsuit in district court asking Ortley to declare the referendum illegal and void, as it was in regards to an administrative, rather than legislative, act.

The city then responded in January of last year, asking the court to enjoin and include Flathead County in the litigation. Dan Weinberg, Ed McGrew, Mary Person and Marilyn Nelson joined the litigation as intervenors.

Over the past year, the court file has grown to well over 600 pages, loaded with affidavits from city officials, complaints, briefs, motions, amended complaints, counterclaims and responses.

The city and intervenors argue that the referendum was legal and valid. The city maintains that the referendum’s approval meant that the county and Whitefish reverted back to the original 2005 interlocal agreement. Attorneys for the city say the 2010 agreement was an amendment to the original agreement, not a superseding document.

But the county and plaintiffs contend that the referendum was not valid, citing earlier actions by the city in negotiations with the county, specifically a legal settlement. The plaintiffs argue that the parties can’t revert back to the 2005 agreement because that agreement doesn’t exist based on a ruling from former Judge Katherine Curtis.

The county maintains that it terminated the 2010 agreement through proper procedures rather than a referendum, leaving no interlocal agreement in place at all.

McGrew and Weinberg also filed an appeal in the state Supreme Court in 2011 challenging the Curtis decision on which some of the Ortley case’s core arguments are based. Curtis’ ruling dismissed previous litigation between Whitefish and Flathead County.

Representing Whitefish are City Attorney Mary VanBuskirk and Terry Trieweiler from Whitefish’s Treiweiler Law Firm. Kalispell attorney Duncan Scott of Scott & Kienzle is the plaintiffs’ lawyer. Alan McCormick of the Missoula law firm Garlington, Lohn & Robinson is representing the county. And John Lacey of McGarvey, Heberling, Sullivan & McGarvey in Kalispell is the attorney for the intervenors.

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