Legal questions raised about 'doughnut' initiative

A Kalispell attorney representing various individuals and groups concerned about governance of Whitefish’s two-mile planning “doughnut” is challenging a citizens initiative effort proposed to create an elected community council of doughnut residents.

Duncan Scott sent a letter on behalf of his clients to the Flathead County Attorney’s Office on Thursday, raising several concerns about the effort.

The County Attorney’s Office is reviewing both the citizens initiative proposal and a proposed referendum and is expected to report to the Election Department today, Election Manager Monica Eisenzimer said.

Both the referendum and initiative petitions need approval for form and compliance with state law before collecting signatures can begin. If the petitions are approved, supporters will have 90 days to gather signatures.

The proposed referendum would give Whitefish voters a chance to reject a recently revised city/county agreement on planning control of the doughnut area.

Both citizen-driven efforts come in the wake of approval of the revised interlocal agreement by the Whitefish City Council and Flathead County commissioners.

Scott outlined four major concerns.

First, the subject matter of the proposed initiative is not subject to the power of initiatives, he said. Under state law, local initiatives are limited to legislative jurisdiction and power. A community council has no power, he noted; it can only make recommendations to the Whitefish City Council.

Scott further maintained that under state law the initiative must be voted on by all county residents and signatures must be collected from 15 percent of all county voters. Yet initiative sponsors propose the initiative be signed only by registered voters in the doughnut area.

Scott also alleges the initiative proposes an illegal community council because rather than report to Flathead County, which would create the council, it proposes the community council forward recommendations to the Whitefish City Council.

“Montana law does not allow for this type of local government,” Scott wrote.

A final point in Scott’s letter is that “the sponsors themselves question the initiative’s legality.”

“In an act of refreshing honesty but unusual drafting, the initiative sponsors themselves acknowledge that their proposal has legal flaws,” he said, noting the sponsors call for a state attorney general’s opinion on whether the process is legal, and if so, what changes would be necessary to make it legal.

The idea of a community council representing doughnut residents has been bounced around for months, but the Whitefish City Council maintained such a council was not something it could put in place and that a new state law would be needed to create such a council.

Initiative organizers say they were motivated to pursue an initiative because nothing in the restated interlocal agreement gives doughnut residents a voice in matters affecting their property.

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