Realtors decry Whitefish slope law
By LYNNETTE HINTZE
The Daily Inter Lake
The Whitefish City Council on Monday approved a six-month extension of an interim zoning ordinance for stormwater management despite overwhelming opposition from area real-estate agents.
Opposition to the extension focused on a regulation that restricts construction on slopes in excess of 30 percent. A lawsuit challenging the slope regulation was filed in July by William and Theodora Walton, who wanted to build a home on a 45-degree slope in the Houston Point area but were denied a site plan.
City officials wouldn't allow construction under the terms of its "reasonable use" clause because they maintained the couple could build on a flatter portion of their property.
Tim Grattan, who developed both Lion Mountain and Grouse Mountain subdivisions, said he fears the 30 percent restriction could retroactively make lots "unbuildable and unsellable."
"My problem with the reasonable-use exemption is in how you administer a regulation that can be subject to personal bias," Grattan said. "With few exceptions, I don't know of any problems of building homes on slopes" if the architectural and engineering work has been properly done.
"To put something in place that could be perceived as a taking is wading into a real legal swamp," Grattan cautioned. "If you do this, do it so it's clear and flexible."
Several Realtors said they're worried the regulation could discourage land sales if buyers can't be certain whether or not a lot is buildable. The Northwest Montana Association of Realtors passed a resolution against the six-month extension.
The council adopted the interim zoning ordinance governing sensitive stormwater drainage areas in April 2006 to allow city staff the time to refine it and bring it back as a permanent ordinance. Interim laws can be extended for up to two years.
The planning department, on deadline with the city growth policy, didn't have enough time to thoroughly review the interim ordinance by the time it expires on Oct. 3, City Attorney John Phelps said.
"Some argue the slope issue is arbitrary and not based on science, but there was a lot of thought and some good science behind it," Phelps said. "Our [slope ordinance] is more generous than many other cities."
University of Montana law professor John Horwich, who was asked by the Waltons to look at the stormwater regulations, said he believes there's no legal foundation to prohibit building on 30 percent or greater slopes.
The city's original emergency stormwater ordinance passed in July 2005 didn't mention steep slopes and the drainage study areas didn't include slopes, Horwich said. The stormwater master plan that followed also didn't study steep slopes and makes only two references to slopes.
"Where's the urgency?" Horwich asked. "These slopes didn't suddenly become steep."
Sean Frampton, the Waltons' attorney, also pointed out that the purpose of the urgency measure was to protect flatlands.
"The point being missed, is did you do it right in the first place?" Frampton said. "The 30 percent got slipped in on you. There just isn't an urgency…this law is too broad."
Former council member Erik Garberg called the slope regulation a "bait and switch" situation.
"I think it's a bad ordinance," Garberg said. "Let this die and go through the process correctly."
Several audience members spoke in favor of the six-month extension, however. Richard Hildner said the extra time will allow the planning staff to create regulations "that fit."
Council member John Muhlfeld said he knows of many instances in which stormwater runoff on steep slopes causes problems and affects water quality. He also noted that he'd spoken with several architects and Realtors in favor of the ordinance.
"You have to look at it as a watershed," Muhlfeld said about the effect of the interim ordinance. "All land uses have the potential to contribute to water quality."
Features editor Lynnette Hintze may be reached at 758-4421 or by e-mail at lhintze@dailyinterlake.com