Two members of a committee that drafted a revised interlocal agreement for the Whitefish two-mile planning “doughnut” area have asked the court to grant a joint city-county motion to dismiss a related lawsuit.

They also have asked the court to deny proposed intervenors the opportunity to be a part of the lawsuit.

Lyle Phillips and Diane Smith’s two-part motion, filed Thursday in Flathead County District Court, is the latest move in the ongoing legal wrangling over the doughnut area.

The city and county have been at odds over governance of the two-mile planning area since the county abruptly rescinded the 2005 interlocal agreement more than two years ago. At the time, the county commissioners felt Whitefish was overstepping its planning power with laws such as the critical area ordinance.

The city, in turn, sued the county over its action.

Late last year the two government bodies agreed on a revised interlocal agreement. Part of the deal was dismissing the lawsuit.

In late January Richard Hildner, Dan Weinberg and Ed McGrew — organizers of a proposed referendum to repeal the revised interlocal agreement — filed a motion in court asking to intervene in the lawsuit.

Heiko and Elizabeth Arndt and Westridge Investments LLC, recognized intervenors in the city’s lawsuit, want the lawsuit to proceed. Their attorney, Sean Frampton, claims the representation issue for doughnut area residents remains, along with a question about whether the doughnut residents’ constitutional rights have been infringed upon by allowing another government entity to adopt laws that govern them.

In a Jan. 27 response to the Arndts and Westridge Investments’ request for a ruling, Whitefish City Attorney Mary Van Buskirk and Missoula attorney Alan McCormick, representing Flathead County, claim the intervenors don’t have a justifiable claim.

Despite the intervenors’ attempt to minimize the revised interlocal agreement, the new pact includes “significant, substantive changes that allow the city and county to dismiss this lawsuit and move forward,” the response noted, adding that “any controversy over the 2005 interlocal agreement in now moot, and any ruling on that agreement is merely academic.”

District Judge Katherine Curtis has not yet ruled on the intervenor requests or the city and county’s joint motion for summary judgment.

Now that the city and county have negotiated a revised interlocal agreement and agreed to end the lawsuit, it behooves the court to grant the joint motion for summary judgment and deny the proposed intervenors’ motion to intervene, Phillips and Smith maintain in their motion.

Duncan Scott, the attorney representing Phillips and Smith, said both the city and county agree that the revised interlocal agreement is now enforceable. The new agreement allows termination only upon one year’s notice, along with mandatory mediation. It does not allow immediate unilateral termination.

“If the voters pass the proposed referendum this fall seeking to repeal” the resolution that created the new agreement, “it is our opinion this would not have the effect of terminating the 2010 interlocal agreement, and returning the parties to the 2005 interlocal agreement, as petition sponsors hope,” Scott said.

Instead, voter approval of the referendum would offer the county two options, Scott maintained.

“First, it could concur with Whitefish’s unilateral termination, in which case the 2010 interlocal agreement is terminated by mutual consent and there no longer is an interlocal agreement in effect,” he said. “Or, Flathead County could pursue its cause of action against the city of Whitefish for breach of the 2010 interlocal agreement.”

Features editor Lynnette Hintze may be reached at 758-4421 or by e-mail at lhintze@dailyinterlake.com.