Whitefish Asks Judge to Reject Arguments in Open-Meeting Lawsuit

Attorneys for city say inclusionary zoning provisions on affordable housing were crafted with transparency

By Tristan Scott
Whitefish City Hall. Beacon file photo

Attorneys for the city of Whitefish have asked a judge to rule against plaintiffs in a lawsuit alleging officials violated open-meeting laws when crafting 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 against Whitefish surfaced last summer when Mayre Flowers, a Kalispell woman who runs CommUnity Consulting, 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 the aim of the working groups was to inform a Steering Committee established as part of the process, and which met in a forum that was advertised and open to the public. The volunteer working groups were designed to help meet tight deadlines laid out in the Whitefish Strategic Housing Plan, which was established to make headway on the affordable housing crisis, as well as to perform research in an effort to present a clear plan to city officials and members of the public.

“Not every gathering of individuals related to the government is a public body subject to the open meeting laws,” according to a motion for summary judgment in the case filed last month by the city of Whitefish. “Frankly, with programs like this, the City has to be able to do the underlying research and work without public participation or it will not advance to the point of a product worthy of public discussion or agency deliberation. The City created this work group so it could tap into the knowledge of individuals with housing and planning experience to, ultimately, research the ingredients for a better product with the Steering Committee’s guidance and direction.”

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.

According to attorneys for Whitefish, the IZ Group did not work in isolation or secrecy before presenting draft materials to the Steering Committee; instead, they say the city “regularly provided the Steering Committee, Planning Board, City Council and public with information about the program and welcomed extensive input and guidance.”

The Whitefish City Council recently considered and ultimately denied the debut project reviewed under the city’s new inclusionary zoning policy, rejecting a proposal to construct 36 apartment units in a residential neighborhood near several schools. The project received an overwhelming degree of pushback from neighbors and community members who said it was too dense, would exacerbate traffic and was not a good fit for the development site.

The development’s failure serves to illustrate the complicated task ahead for Whitefish as it seeks to build out its inventory of affordable housing while using the new zoning policy as a tool.

Attorneys for the city of Whitefish argue that “forcing the City to go back through and recreate all of the work the IZ Group accomplished merely to enable Plaintiffs to attend its meetings would be incredibly burdensome and of little value.”

“It would unwind an entire year of research and formulation of a program merely to go back through that process with Ms. Flowers in attendance, but no assurance it would yield different result, particularly given Ms. Flowers’ comments and concerns have previously been considered,” attorneys wrote in the motion. “It would also halt the development of much needed affordable housing. Although Plaintiffs purport to advocate for sound planning in the community, they are presently seeking to terminate a program that will provide a benefit to it.”

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