With the threat of a lawsuit hanging over its heads, the Whitefish City Council voted 5-1 to bring back zoning amendments to the U.S. 93 strip.

The council on Aug. 16 had backed away from a controversial proposal to expand retail uses in the WB-2 zone and instead focus on enforcing zoning which is currently in place. The WB-2 zone was created in order to limit retail uses on the U.S. 93 strip to protect downtown businesses.

City attorney Mary VanBuskirk, however, informed the council at their Sept. 7 meeting of potential legal problems in a memo that was withheld from the public. VanBuskirk cited attorney-client privilege when asked for a copy of the memo. She said the city council was her client.

The Whitefish Pilot cited the legal principle that government meetings must be open to the public and documents must be made public unless the topic is litigation strategy involving a case that has already been filed in court.

VanBuskirk said the contents of the memo would be kept from the public "in anticipation of a lawsuit." The councilors, however, mentioned some points from the memo.

"We have made a terrible mistake," councilor Turner Askew said about the council's Aug. 16 decision. "We left a bad zoning problem."

"We need to start a new process, different from the last," mayor Mike Jenson said.

Discussion of the WB-2 zoning was not on the Sept. 7 agenda. Askew motioned to reconsider the earlier vote, and councilor Phil Mitchell seconded it.

Both councilors served on the ad hoc committee formed in 2008 to study the U.S. 93 strip zoning issues. Since the WB-2 zone was created in 1982, numerous businesses have been established on the strip that are not in compliance with the zoning.

City planning director David Taylor has blamed the situation on staff oversight, noting that the city planning department didn't exist until 2005, and lack of a city zoning permit review process that would look at new businesses before they are established.

The situation along the strip came to a head in the past few years as a sporting goods business that was not in compliance constructed a new building and several strip mall-type buildings were built, offering space for new retail businesses.

"Businesses are there that are legally not allowed to be there," Askew said in support of his motion. "We need to enforce the law or not."

Mitchell said the ad hoc committee tried to expand retail uses allowed on the strip in order to bring certain businesses into compliance.

"If we grandfather all these businesses, it would create a slippery slope," he said. "We can't just grandfather some businesses and tell others they can't compete with them."

The committee was split, however, and the Heart of Whitefish downtown merchants association publicly criticized the committee's recommendation to expand retail uses on the strip. Facing strong public opposition, the council decided Aug. 16 to back away from changing the WB-2 zoning.

Facing a potential lawsuit, however, the councilor voted to bring the matter back on Sept. 20, with a work session prior to the meeting. Councilor Ryan Friel voted in opposition.