A proposal to amend Whitefish’s zoning code drew the scrutiny of the City Council recently when it came to light that the change might be to aid a single business.

The UPS Store recently moved into a new building near Walgreens on East 13th Street. The store, which provides shipping and packaging services, does not meet the standards required to operate in the secondary business district where the building is located.

Council member Richard Hildner first questioned the requested zone change.

“We’re being asked to approve something after the fact,” Hildner said. “We’re being asked to approve a zone change proposal in order to bring a noncompliant act into compliance. It was the responsibility of the owner to come up with the necessary zone compliance.”

City planning staffers initiated the zoning code change to add “business services” to the permitted use in the WB-2 zone. The staff noted that over the years, the city has allowed business services to operate in the WB-2 zone while being considered as professional services, even though that is technically inaccurate. If the code change is approved, the UPS Store would become compliant with zoning.

Business services are considered to be services such as bookkeeping, computer services, mailing, publishing or office equipment rental. Professional services, however, are businesses which are considered a profession and may be licensed by the state such as engineers, lawyers and accountants.

Bill Halama constructed the building that houses the UPS Store. He told the council that businesses services have been permitted elsewhere and that hasn’t had an adverse effect.

“We would have never pulled a building permit without being quite confident that this had been approved by the city,” he said. “This is less than a big change, but more of a cleanup job because these businesses have already come in under the professional services designation.”

Under the proposed change, a variety of of business services would be allowed in WB-2.

Council decided it would prefer to narrow business services to include only “shipping and packaging services” allowed only as a conditional use. The council tabled the issue, directing city staff to return with a new proposal.  

In addition, the council asked that the UPS Store be able to continue to operate until the matter is resolved. The store’s business license remains on hold with the city. If no changes are made to the zoning code, the city could pursue a zoning violation against the business.

Attorney Sean Frampton, who represents Halama, addressed the council prior to the vote.

Frampton read portions of email correspondences between Halama and city planning staff regarding a building permit. In an email, Halama wrote that the building permit was approved by the city’s building inspector but still needed to be signed off by planning staff, so he requested that final approval. The email also mentions that the UPS Store planned to move into the building.

Frampton said Senior Planner Wendy Compton-Ring responded to Halama by email saying, “I just signed off.” Frampton claims the response email was the city giving approval for the UPS Store to be located inside the building.

“We did ask and we got approval with no indication there were zoning issues,” he said.

Planning Director Dave Taylor said the city has not received a business zoning compliance permit application from either Halama or the UPS Store.

Council member Andy Fuery said he is uncomfortable with the way the zoning text amendment came before council. He said the semantics of the email could be interpreted more than one way.

“I really don’t appreciate making a zoning text amendment under threat of lawsuit, which is  essentially what Mr. Frampton was telling us,” he said. “I think it’s bad planning. On the other hand, I’m not going to be the guy that stomps all over the UPS Store. That puts us in a bad position.”

A previous three-year battle over expanding retail uses on the U.S. 93 strip was brought up during the discussion.

In April 2011, the city approved a compromise intended to bring several nonconforming businesses on the strip into compliance. Public sentiment at the time was that increasing the types of businesses allowed in the zone would open the floodgate to box stores. The council eventually adopted a text amendment that allowed for some additional permitted uses in the WB-2 zone.

Rhonda Fitzgerald said that a few years ago the migration of businesses into areas where they were not compliant became a concern and the community expressed its desire to keep the downtown core for business.

“We were assured that the new regulations — requiring a zoning compliance permit and a business license — would tamp down the possibility of this happening,” she said. “For this to come up again so soon is a surprise.”

Frandsen pointed to promises by the 2011 council that a corridor study would be completed on the U.S. 93 strip. She said that study needs to happen.

“I think we’re still in that same spot [as 2011],” she said. “I think we are continuing to perpetuate the problem.”

Desch is a reporter for the Whitefish Pilot.