Council Appeals Judge’s ‘Doughnut’ Ruling

By Beacon Staff

The Montana Supreme Court will decide the fate of nearly 5,000 disenfranchised residents living in the two-mile Whitefish planning “doughnut” that girds the city center.

In an executive session closed to the public on Monday, July 15, Whitefish City Council voted to appeal a recent decision by Flathead County District Court Judge David Ortley that returned control of the Whitefish planning “doughnut” to Flathead County.

The 4-2 vote followed an hour of discussion, with councilors Phil Mitchell and Chris Hyatt casting votes in opposition to the motion to appeal.

In the same motion, the council reaffirmed a request for a stay of Ortley’s order pending resolution by the high court, according to Whitefish City Manager Chuck Stearns. If the stay is granted, the city will retain planning and zoning authority over the doughnut until the matter is resolved.

The council’s appeal to the Montana Supreme Court is the latest twist in a contentious issue that has been polemic in Whitefish for a dozen years.

The most recent lawsuit, filed less than two years ago by four Whitefish-area residents, challenged the validity of a citizen-initiated referendum passed by Whitefish voters in November 2011. That referendum, which Ortley’s recent ruling declared illegal, struck down a 2010 “interlocal” planning agreement designed as a compromise between city and county officials. In doing so, the referendum shifted full jurisdictional authority of the doughnut area back to Whitefish.

Following passage of the referendum, area residents Lyle Phillips, Anne Dee Reno, Ben Whitten and former Whitefish Councilor Turner Askew filed a lawsuit against the city asking Ortley to declare the referendum illegal and void. The plaintiffs argued the county should maintain authority because the 2010 agreement was an administrative, rather than legislative, act, and was therefore not subject to referendum.

In his July 8 order, Ortley sided with the plaintiffs, granting summary judgment and declaring the referendum invalid.

Whether the 2010 interlocal agreement was an administrative or a legislative act, as Whitefish city officials believe, will be a central argument of the appeal.

The order also lifted an injunction that had prevented the county from applying zoning regulations to the doughnut area while the case was in litigation.

“The county may proceed with the establishment of zoning regulations applicable to the former doughnut area as provided by law,” Ortley wrote.

In requesting the stay, city officials hope to retain authority of the doughnut while the Montana Supreme Court considers the case.

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