The Firebrand Hotel in downtown Whitefish will get its rooftop hot tub after all.

The Whitefish City Council on Monday unanimously approved an amendment to the hotel’s conditional-use permit that will allow the owners to install the hot tub. Council member Jen Frandsen excused herself from voting because the Firebrand is a client.

Two additional amendments were added. One will limit hot tub use to no later than 10 p.m., seven days a week, 365 days a year. The other amendment requires partners of the Montana Development Group, which includes members of the Averill family, to sign a waiver preventing them from any further challenges to the city’s conditional-use process that allowed the hotel to be built.

Giving a green light to the rooftop hot tub flies in the face of recommendations from the city zoning administrator, the Board of Adjustment and the Planning Board to deny the rooftop amenity. Neighbors of the hotel opposed the hot tub largely because of the potential noise it would create. The hotel was built on commercial property but adjoins residential neighborhoods.

Earlier this month the developer’s legal counsel, Missoula attorney William VanCanagan, sent a letter to Whitefish regarding a potential lawsuit over the conditional-use permit the city required for the hotel project.

VanCanagan alleged Whitefish Planning Director Dave Taylor, via an email exchange, led the Averills to believe a conditional-use permit would not be required unless the hotel exceeded 15,000 square feet because it was outside the Old Town Central District. Later, Taylor “completely altered his position,” VanCanagan said, by determining the hotel site was within the Old Town Central District.

Sean Averill reiterated the hotel’s economic hardship of operating in a ski town without an outdoor hot tub. An indoor pool and hot tub initially were planned as amenities for a national hotel franchise, but when the lodging facility instead was built as an independent boutique hotel an outdoor hot tub became a necessity for economic survival.

“We feel generally bad you’re in this position and we appreciate you guys trying to get this right,” Averill told the council. “We think we’ve tried to be a good partner with the city.”

During a discussion following the public hearing, some council members wondered if there was a way to revoke the conditional-use permit if the hot tub were granted but the noise became troublesome.

Senior Planner Wendy Compton-Ring said there is a process by which the zoning administrator can suspend a permit immediately, with the council making a final determination.

“We’ve never done that before,” she said.

The council also talked about the matter of policing noise without a city noise ordinance. A disturbing the peace citation is the only mechanism available to the city to control excessive noise.

There are no decibel parameters for disturbing the peace, “no objective benchmark,” Whitefish City Attorney Angela Jacobs pointed out.

Council member Katie Williams said she believes the Firebrand is a “huge economic driver” for downtown Whitefish. She added that while the city has to hold the hotel accountable for not making the hot tub a burden for the neighborhood, she doesn’t believe the hot tub will be a burden.

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