Stack, Muhlfeld resign from watchdog panel
Posted: Wednesday, Jun 04, 2008 - 11:08:51 pm MDT
By LYNNETTE HINTZE/Daily Inter Lake
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| A MAINTENANCE worker mows the lawn at Bill Foley’s residence Wednesday near the north end of Whitefish Lake. The lawn was in violation at the county level because previous owners planted and maintained lawn grass in the lakeshore zone. Although the city later determined it wasn’t in violation, Foley has agreed to stop maintaining the lawn once the city passes new lakeshore regulations that will more clearly define the use of grasses in the lakeshore zone, according to Whitefish Lake and Lakeshore Protection Committee chairman Jim Stack. Garrett Cheen/Daily Inter Lake |
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Frustration over a record number of Whitefish Lake lakeshore violations and the city’s lax approach to prosecuting violators have prompted two key members of the Whitefish Lake and Lakeshore Protection Committee to resign. Jim Stack, a committee member for 16 years and chairman for the past decade, said he’ll serve until revised regulations are adopted, but no longer than the end of September. The resignation of John Muhlfeld, a City Council member and hydrologist, was effective May 29.“I cannot defend a process that is not working, and yet I cannot stand idly by and watch it go under,” Stack told the council Monday, explaining his desire to see the city adopt procedural changes and a stronger policy for handling lakeshore violations. Stack pleaded with the council two years ago to take immediate action on the developing crisis regarding lakeshore violations, but he said the city has continued to drag its feet in prosecuting violators. |
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“In the meantime, three-year-old violations sit unresolved in apparent legal limbo land. The newest violations are some of the most flagrant and willful in years — by property owners who are fully aware of the regulations,” he said.
IRONICALLY, the number of lakeshore violations began to increase three years ago when the city took over planning control of all of Whitefish Lake. Prior to the interlocal agreement that created the two-mile planning “doughnut,” Flathead County dealt swiftly and effectively with violators who lived on the outlying two-thirds of the lake.
Muhlfeld has served on the lakeshore committee for 10 years and said in his resignation letter that during the time Flathead County had jurisdiction over two-thirds of the lake, “I never saw a county violation extend beyond three to four months to legal 100 percent resolution.
“In the three years since the city has taken over total jurisdiction of the lake, I cannot say that a single such violation has proceeded to complete legal resolution,” Muhlfeld said.
Stack said a “tight link” between the county planning department, county attorney’s office and the lakeshore protection committee created an effective system for dealing with violators. Under the city’s jurisdiction, however, cases seem to stall when they’re turned over to a contracted independent prosecutor, Stack said.
Both Stack and Muhlfeld lauded the efforts of city planner Nikki Bond, who deals administratively with violators, but said she needs more staff support for a growing workload.
THE SUCCESS of the regulatory process has to be judged on whether all property owners are treated alike, and that didn’t happen under the administrative oversight of former Whitefish planning director Bob Horne, Stack maintained.
He said Horne took a “rogue” approach to administering lakeshore regulations and in doing so, “overrode 20 years of precedence, regulations and interpretation and created problems we’re just now addressing.”
Horne denied the accusation, saying that sometimes there were discrepancies between the committee’s interpretation of the law and what the lakeshore regulations actually said.
“As planning director, I never hesitated to enforce something if it was a violation,” Horne said.
While Stack and the lakeshore committee wanted Horne to take a punitive approach to punishment, Horne said he took his direction from the city manager and city attorney to focus on abatement.
Horne agreed that enforcement of lakeshore regulations has become bogged down at the prosecution level.
LAKESHORE regulation violators include a mix of longtime residents and newcomers. Affluence is a factor.
“Even a $1,000 or $2,500 after-the-fact fine will not deter a wealthy property owner from an intentional violation any more than a $100 fee,” Muhlfeld said. “...it is well known by property owners around the lake that their best solution to a violation is to hire an attorney and stall the issue until the violation is forgotten, negotiated or settled.”
For most violations, Stack said, the city isn’t fining property owners but rather giving them a “slap on the wrist.”
The only true deterrent is a firm violation policy and a legal commitment to follow through to restoration or removal, Stack said.
He pointed to a violation by wealthy venture capitalist Michael Goguen, who cut down 30 trees in the 20-foot lakeshore protection zone. The county forced Goguen to replace one-and-a-half times the number of trees.
“They dealt with it. Boom, it was done,” he said.
Violations run the gamut. Planting and maintaining lawn grass in the protection zone, building decks or other adornments, adding too many dock sections, cutting down trees and constructing vertical retaining walls instead of riprap are among the most common violations.
Enforcement is made more difficult because homes on Whitefish Lake are a blend of old grandfathered structures and newer homes.
One of the latest violations, on the Babiak property, involves the rebuilding of more than 80 percent of a nonconforming structure, Stack said. The law specifies that if more than 50 percent of the structure is replaced, it must be rebuilt outside the protection zone.
Despite a stop-work order placed last fall on the Babiak structure — a covered-deck attachment — the work proceeded to completion.
“This property owner is fully aware of lakeshore regulations, having applied for five previous lakeshore permits,” Stack pointed out.
In another case, a 30-foot dock owned by Tom LaChance, who has an easement on the lake but doesn’t own the property, was ordered out of the lake last fall, but on Wednesday, city officials found a 120-foot dock back in the water.
Violations of the Jim Archer home, where new decks and a corner of the house are in the protection zone, remain unresolved. In that case, Archer, an excavator by trade, excavated his own property to create a new high-water mark to give him more building room, Stack said.
“The difficulty in prosecuting that case is how do you determine where the old lakeshore was?” he asked.
Property owned by finance mogul Bill Foley, the majority owner of Whitefish Mountain Resort, was in violation at the county level because previous owners planted and maintained lawn grass in the lakeshore zone.
When the land came under city control, the city attorney decided not to pursue it as a violation because it couldn’t be determined whether it was lawn or native grasses, and it appeared to be outside the lakeshore protection zone.
Though Foley continues to maintain the lawn, he has agreed to come into compliance once the city passes new lakeshore regulations that will more clearly define the use of grasses in the lakeshore zone, Stack said.
MUHLFELD said he will continue to contribute to the lakeshore committee by having final review of permits and issues at the council level. Stack hopes the regulatory process can be fixed by the time he leaves the committee in four months.
Mayor Mike Jenson told Stack at Monday’s council meeting that he supports his efforts and intends to meet with key city officials to get the ball rolling to correct the enforcement problem.
Features editor Lynnette Hintze may be reached at 758-4421 or by e-mail at lhintze@dailyinterlake.com