Lawsuit Seeks to Overturn Whitefish’s Affordable Housing Provisions

City officials push back against allegations they violated open meeting laws

By Tristan Scott
Whitefish City Hall on May 3, 2017. Greg Lindstrom | Flathead Beacon

Whitefish city leaders are bristling at allegations that they violated open meeting laws when considering, crafting and adopting a plan to help solve the community’s affordable housing crisis, a years-long process the city says involved numerous opportunities for public involvement.

The allegations emerged last month when Mayre Flowers, a Kalispell woman who runs CommUnity Consulting and a fierce advocate for sound land-use planning policy in Whitefish, filed a lawsuit in Flathead County District Court saying the city violated Montana’s right to know and open meeting laws because it didn’t provide public notices for a series of meetings conducted by working groups, which Flowers refers to in her complaint as a “subcommittee.”

However, city officials say these were working groups whose aim was to inform the Steering Committee and meet tight deadlines laid out in the Whitefish Strategic Housing Plan.

The thrust of Flowers’ complaint centers on new zoning rules that took effect in Whitefish July 3, and which require that builders include affordable workforce housing in the majority of future housing developments.

According to the Whitefish Legacy Homes Program adopted by the Whitefish City Council, new residential developments that need a discretionary permit — such as a conditional-use permit or a planned-unit development — must include 20 percent of new housing units as permanently affordable through the Whitefish Housing Authority.

Called “inclusionary zoning,” the requirements are intended to assist working residents with moderate incomes. In Whitefish, a voluntary inclusionary zoning program has been on the books for years, but has produced very little housing.

Leading up to the new provision, Flowers alleges the “IZ Ad Hoc Subcommittee” held a series of “closed-door meetings” that subverted the public process.

“We strongly support the adoption of an affordable housing plan for the City of Whitefish, however, the closed-door process that the city employed in developing this plan was neither open nor balanced,” Flowers wrote in a press release.

Flowers first aired her complaint surrounding the process in a January letter addressed to the Whitefish Strategic Housing Steering Committee and the Whitefish City Council, which prompted a lengthy response from Whitefish City Attorney Angela Jacobs.

“The inclusionary zoning work group does not fall into any of the categories required by statute to hold open meetings,” Jacobs wrote. “Despite some references to the work group as a ‘subcommittee,’ it was not appointed as such by the City Council. No decision-making authority has been delegated to the work group. The work group’s mission was simply to provide information and suggestions to the appointed Steering Committee which the Steering Committee could accept, reject, modify or even throw in the trash and start from scratch, if it so desired.

“The public’s constitutional right to participate has not been compromised in any way by the inclusionary work group.”

The memorandum continues: “The Steering Committee’s meetings are noticed, open and the public, including consultants such as Mayre, had ample opportunity to provide comments regarding inclusionary zoning. Despite the complaint that the public wasn’t given access to recommendations and reports prior to the Steering Committee’s meetings, the inclusionary zoning program and the work group’s progress was the topic of a joint City Council and Planning Board work session last September and comprehensive information was provided in the online packet.”

Whitefish City Manager Adam Hammatt said he was surprised by the complaint as he considers the city’s government to be extremely transparent and open to public discourse. Moreover, he said Flowers offered more verbal and written testimony on the proposed plan than any other member of the public.

“I consider Whitefish to be a shining beacon of open and inclusive government,” he said. “We welcome all sorts of comments. And if you go back and look at our YouTube archives of the meetings, the amount of testimony from Mayre Flowers dwarfs all others combined.”

Hammatt said Jacobs is preparing a response to the lawsuit.

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