I had the privilege of attending law school with some geniuses. Not surprisingly, I wasn’t included in the category. One of the geniuses I admired was dedicated to the education, treated law school like a full-time job, outperformed the 73 other law students in our class, earned the most prestigious post-law school job, and could have gone on to make gobs of money in the legal profession. Instead, she chose a public service career and works for Whitefish as its city attorney. Whitefish is enormously lucky to have an attorney of Angela Jacobs’ talents and intelligence. So when the Whitefish City Council chooses to ignore Ms. Jacob’s advice, Whitefish taxpayers should be concerned.
The Whitefish City Council passed an ordinance attempting to control the proliferation of 30- to 90-day rentals. Apparently, 30- to 90-day rentals are unseemly in Whitefish and somehow negatively affect neighborhoods, even though 30- to 90-day rentals have been present in Whitefish since its incorporation. Ski bums like them, landlords use them in primarily furnished units, and remote workers find three-month stints living in various communities across the United States an adventure. Montana law already addresses 30 day or greater rentals through its Residential Landlord-Tenant Act. As state law already thoroughly covers the landlord-tenant relationship for 30 day or longer tenancies, cities are prohibited from adding further restrictions to state law. And state law couldn’t be any clearer on this: “7-1-111. Powers denied. A local government unit with self-government powers is prohibited from exercising the following: (13) any power that applies to or affects landlords … when that power is intended to license landlords or to regulate their activities with regard to tenants beyond what is provided in [the Residential Landlord and Tenant Act].” Even a lawyer of my caliber can decipher this clear mandate.
Before their vote, Whitefish City Attorney Jacobs informed the Whitefish City Council of the statute’s plain language and that the proposed ordinance violates state law. Instead of listening to the city attorney, the City Council passed the ordinance and bizarrely delayed implementation for a year to adjust the ordinance’s language “as necessary.” For a legislative body to pass an ordinance whose language blatantly violates Montana law is malpractice, but to pass an ordinance – a law – before the language is fixed reflects a lawmaking body prone to knee-jerk reactions versus deliberative and informed decision making.
The City pays Ms. Jacobs to provide high-quality legal advice to avert City (taxpayer) liability. Notwithstanding the hubris associated with plowing ahead despite legal advice to the contrary, the Whitefish City Council’s zeal for control ultimately harms the people it is supposed to represent. This was the painful lesson of the Whitefish Donut litigation; a lesson obviously forgotten by the current city council.
Tammi Fisher is an attorney, former mayor of Kalispell and host of Montana Values Podcast.