The city of Whitefish is suing Flathead County over the county’s recent approval of a zone change allowing smaller lot sizes on 62 acres of farmland near Whitefish.

Flathead District Judge Ted Lympus signed an alternative writ of mandate in the case, ordering the county commissioners to either revoke the zone change or appear in court at 10 a.m. Aug. 28 to show cause why they shouldn’t throw out the zone change.

In June the county commissioners unanimously OK’d a zone change on Shaw’s property, located north of the intersection of Montana 40 and Whitefish Stage Road. The change shifted zoning from SAG-10, suburban agricultural with a 10-acre development minimum, to SAG-5, suburban agricultural with a 5-acre minimum.

The commissioners’ decision came amid opposition from the city of Whitefish, which contends the zone change is not consistent with the 2007 Whitefish growth policy and land-use map that discourages rezoning areas outside the city until the city meets a 50 percent threshold on its infill policy.

A group of neighbors protested the zone change but fell short of getting the required 40 percent of property owners within the Southeast Rural Whitefish Zoning District to file formal protests. The campaign gathered protests from 31.9 percent of property owners.

Shaw’s property is bordered by the Whitefish city boundary on the west, and on the north, east and southwest by land zoned SAG-10 and agricultural with a 20-acre minimum lot size.

The lawsuit, filed in Flathead County District Court, notes that the county growth policy identifies Shaw’s property as “important farmlands.”

The 1996 Whitefish City-County Master Plan also designates the property as important farmland and “sensitive area,” the lawsuit points out. The property is within the urban growth boundary of the city’s extension of services plan and is directly next to properties served by city utilities.

“As such, rezoning the [Shaw] property to a higher density has the potential to impact city infrastructure and the long-range planning conducted by the city,” the court document states.

The county, however, has planning jurisdiction over the “doughnut” area where Shaw’s property is located, as a result of a Montana Supreme Court ruling that ceded control to the county.

The lawsuit asks for declaratory judgment that the commissioners’ decision was “unlawful, arbitrary and capricious.” It also asks the court to void the county’s approval of the zone change.

The lawsuit further requests that the court direct the commissioners to withdraw their resolutions pertaining to the Shaw zone change and to conduct any further proceeding regarding the zone change in accordance with county and state zoning laws and controlling case law.

Lympus, who is retiring at the end of this month, has asked the Montana Supreme Court to call retired District Judge Kitty Curtis to assume jurisdiction of the lawsuit, and Curtis has agreed to hear the case, according to court documents.

Supreme Court Chief Justice Mike McGrath signed an order recently calling Curtis to active service for the case.

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