Couple plan to appeal ruling

A District Court judge has ruled in favor of the city of Whitefish in a lawsuit about regulations that limit construction on slopes greater than 30 percent.

William and Theodora Walton sued the city last year after officials denied the couple's plan to build a 4,900-square-foot home on a 45-degree slope in the Houston Point area overlooking Whitefish Lake. Whitefish Planning and Building Director Bob Horne, acting as zoning administrator, maintained the Waltons could build on a flatter portion of their property and thereby didn't qualify for a "reasonable use" exemption from zoning regulations.

Flathead District Judge Ted Lympus denied seven claims by the Waltons that Whitefish's interim "urgency" ordinance for drainage-sensitive areas was arbitrary and too restrictive.

Whitefish attorney Sean Frampton, who represents the Waltons, said he's disappointed with the ruling. The Waltons will appeal the decision to the state Supreme Court.

Whitefish City Attorney John Phelps is pleased with the ruling and said it will give the City Council and the critical-areas ordinance committee assurance to move forward with drafting a permanent version of the ordinance. Earlier this year, a proposed permanent version of the critical-areas law drew criticism from developers, and the council decided to extend the interim measure another year to allow time to further review and write a final version.

Although Lympus denied the Waltons' claims, the issue of compensating the couple for what they believe is a "taking" of their property remains to be decided.

"We'll talk to the city about trying to appeal before the takings issue is addressed," Frampton said.

That issue is scheduled to go to trial in District Court in June, because the city has not filed a motion to have the claim dismissed.

Both sides had asked for summary judgment in the lawsuit. Because the ordinance was challenged on procedural grounds, the ruling applies not only to the slope issue but also to other elements of the ordinance, such as setbacks to rivers, streams, wetlands and lakes.

THE WALTONS claimed the city didn't give sufficient notice about the urgency ordinance and that a published notice didn't specifically address the slope issue. Lympus said it would be "impracticable" for a notice to describe every element of a proposed law.

Two years ago, the city passed a temporary emergency ordinance restricting development in drainage-sensitive areas until a master stormwater plan could be completed. When the city identified those areas, all other lands, including the Waltons' property, were freed from development restrictions in the emergency measure.

The lawsuit claimed the city's regulatory process was muddied when the city later adopted new interim regulations that included the 30 percent slope restriction "without any scientific evidence to back it."

Lympus sided with the city, arguing that the interim measure was intended to enact the city's stormwater master plan, including the steep-slope building restriction. He cited a 1990 court decision involving the city of Belgrade in saying "a zoning ordinance need not 'provide for the highest or best use of each particular lot or parcel of land within the zones or community, rather it is to benefit the community generally.'"

Lympus also said it was reasonable for the city to believe the slope restriction was relevant to stormwater runoff.