Planning Commission Advances Amendment to Allow Kalispell to Revoke Conditional Use Permits
The city is revisiting the zoning law after a lawsuit with the Flathead Warming Center regarding its conditional use permit
By Zoë Buhrmaster
An amendment updating Kalispell’s zoning laws to allow the city to revoke Conditional Use Permits (CUPs) received unanimous approval from the city’s planning commission at a Wednesday night meeting.
The proposed zoning change comes in the wake of a legal battle the city faced with the Flathead Warming Center (FWC) after revoking its CUP last year. The lawsuit ended in an agreement between the low barrier homeless shelter and the city, with city officials agreeing to pay $140,000 in attorney fees and formally apologizing to FWC Executive Director Tonya Horn for falsely accusing her of perjury during the permit’s application process.
As a result, city staff became aware of holes in the zoning laws and the zoning text amendment would serve as a way to clarify what the CUP application process entails, Interim City Manager Jarod Nygren said.
“Really it’s just trying to add clarity to what the city process could look like in regard to a conditional use permit,” Nygren said.
“A conditional use permit is issued by grace from the council – so I think the key is, can we enforce the condition?” Nygren continued. “We’re addressing a process that has come up – actually, that was brought up that we didn’t have a process [in place] when we went through it with the warming center.”
During public comment, several community members spoke out of suspicion that the amendment was a “back door” to legally revoke the warming center’s permit. Brant Horn, Tonya Horn’s husband, recalled the way the city council relied heavily on public comment instead of evidence during last year’s revocation hearings about the warming center, raising concerns that the amendment would result in similar situations.
The revised zoning text would require city officials to notify the permit holder with a written notice before revoking a permit, allowing the property 15 days to be brought into compliance.
The council would have to identify how conditions were violated that were material to the city’s decision to grant the CUP. Council members would also have to make the decision based on a “preponderance of the evidence” – a common standard of proof in civil cases, meaning evidence would need to suggest that it is more likely than not that conditions were violated. A permit holder would also have the option to seek recourse through Flathead County District Court within 30 days of the council’s decision.
Prior to 2008, city ordinances provided for CUP revocation, Assistant Director of Development Services PJ Sorensen noted during the presentation. When the ordinances were updated later on, the language was replaced by more general wording that allowed for “a wide range of potential action if the property is not being used in compliance with the conditional use permit.”
“Similar language is in the Whitefish ordinance, as well as the Flathead County ordinance,” Sorensen said of the proposed new amendment.
The planning commissioners unanimously approved the amendment, save for Councilor Chad Graham who was not present at the meeting. The amendment will go before the city council on Dec. 1.