Whitefish City Council Edits Growth Policy After State Senator Raises Legal Concerns

Whitefish city councilors this week tweaked the language in a draft of their 20-year growth policy after a Missoula-based legislator threatened legal action, asserting in a letter to city officials that the current version of the document side-steps legal requirements set by the state in what she characterized as an “evasion mechanism.” 

Sen. Ellie Boldman, D-Missoula, outlined in the letter what she deemed to be several legal concerns with the city’s state-mandated update to its 2007 growth policy, noting she would testify in court should the councilors adopt the document and face legal repercussions. 

Boldman, a primary sponsor of the 2023 legislation that mandated the growth policy update, submitted the letter as public comment hours before city council was set to begin deliberations on a document that will guide the city’s growth and development over the next 20 years. The Missoula lawmaker said the city’s draft circumvents state guidelines restricting exclusionary zoning practices and inserts conditions that make it more difficult for developers to build 60-foot buildings “by right” in certain zones of the city.

In the draft document, city staff sought to restrict buildings above 45 feet to full-time residential uses while prohibiting short-term rentals and commercial use. The condition, council and city staff reasoned, aligned with the spirit of the legislation, which is aimed at creating more affordable housing options in communities across the state. However, Boldman asserted that Whitefish, as a municipality designated as an urban area with a population of more than 5,000 people, cannot have a “height restriction less than 60 feet on buildings that are located in downtown commercial, heavy commercial, or industrial” in its zoning regulations. 

In the letter, Boldman highlighted four “specific legal deficiencies” in the proposed growth policy that she believes undermines the state’s legislative intent to address Montana’s housing shortage. Over the past three years, the city has been in the process of updating its 2007 growth policy in response to another piece of 2023 legislation, the Montana Land Use Planning Act (MLUPA), that also aims to address the housing crisis by easing development standards and moving approval of individual projects to a faster, more administrative staff level with less public notice.

Boldman told the city adopting the current version of its growth policy would “constitute an unlawful attempt to circumvent the clear statutory mandates” of Senate Bill 243, saying she is prepared to “provide sworn testimony or a formal affidavit regarding legislative intent in any legal proceeding arising from the adoption of the proposed Growth Policy.”

“I make no challenge to the City’s legitimate authority to regulate land use within the bounds established by state law,” Boldman said in the letter. “However, where municipal action is explicitly designed to evade or undermine state statute, that action is without legal foundation and exposes the City to legal liability.”

As city councilors on Monday night wrapped up the third and final public hearing for the growth policy, they edited the document in a way city staff and consultants believed would appease Boldman’s legal concern.

In the land use chapter, councilors removed much of the language under an implementation strategy entitled “Protect the Character and Scale of Downtown.” Policies removed included form-based standards related to height allowances, such as step backs and lot coverage limits, and redefining the downtown zone into sub-areas to better protect the historic core — two strategies that were directly referenced in Boldman’s letter. 

The changes, however, were made begrudgingly as council members expressed a strong distaste for Boldman’s intervention, saying the state is once again attempting to step in and override the city’s planning capabilities.

“It’s a little confusing and a lot frustrating for me,” councilor Steve Qunell said. “We have a representative from Missoula, which is the third- or fourth-largest town in Montana that has several buildings above 60 feet, already telling us that we need to back off of what the people of our town have been telling us for years and years about what we want to do with our downtown.”

But if the city council didn’t make the edits to the policy document, Councilor Andy Feury suggested the inevitability of a lawsuit, likely coming from a group within the community.

“I think we all know that there’s some well-funded groups in this community that would probably take us to court right away, and I think that that’s the same group that contacted Sen. Boldman, and that’s why we got this letter,” Feury said. “Because I really doubt she was sitting down there in Missoula concerned with what we were doing here in Whitefish with our growth policy update. 

“We end up in the case where we’ve got people making the rules that don’t play the game and, unfortunately, they stack those rules against us all the time.”

Nathan Dugan, executive director of the sustainable growth advocacy group Livable Fathead, affirmed the inevitability of a lawsuit during a March 23 city council workshop to discuss potential new zoning regulations. Dugan is also connected to another local affordable housing organization, Shelter WF, which has been a proponent of MLUPA and a vocal participant throughout Whitefish’s growth policy update process. 

During the workshop’s public comment portion, Dugan expressed legal concerns similar to those outlined in Boldman’s March 27 letter to the city, saying he asked Boldman about whether 60-foot buildings could only be allowed for certain uses. Dugan told councilors her response was, “that is absolutely not what my bill said, nor do I recall any testimony remotely like that.”

“I think the city is in kind of a lose-lose situation,” Dugan said at the March 23 workshop. “I think you guys are going to get sued either way, so I think the question is probably not whether or not you’re going to get sued, but … which lawsuit the city will prevail in? And I think it’s probably the one that takes a literal reading of state law.”

While the city council made what it deemed as necessary changes to the growth policy at its April 6 meeting, councilors also made it clear they will address the matter again when they discuss updating city zoning regulations to complement the new land use plan. 

“I think that we do that in the interim, just to make sure that we can keep our noses clean as long as we can, and we figure out a way to work around it, and I think we need to do that,” Feury said. “Maybe that’s our own personal court challenge from the city. I don’t know how that works, but quite frankly, I’m getting sick of it.”

Qunell advocated for the city council to “take a stand,” saying the 60-foot building requirements in relation to the city’s downtown core may be the “hill to die on” for the city, especially as developers are “licking their chops to put up something big” in the downtown. 

“It seems like our historic downtown that is featured in every single postcard of Whitefish, it’s the picture everybody tries to get in the summer and the wintertime, if we change that viewscape, that changes everything,” Qunell said. “At some point we’re going to have to decide, what hill are we going to die on? And I’m willing to die on this hill and get sued by the state over this if we decide that we’re going to not allow this to go on in our historic downtown, but that’s just me.”

The city council will vote on whether to adopt the growth policy, Vision Whitefish 2045 Community Plan, at its next regular meeting on April 20.