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A. Prior to the start of any construction activity on any property adjacent to Whitefish Lake, or Lost Coon Lake, the lakeshore protection zone (LPZ) boundary, as described in section 13-1-1 of this code, shall be established and staked on site by a registered land surveyor licensed to practice in the state of Montana. (Ord. 14-21, 1-5-2015)
B. Prior to the start of any construction activity, an effective siltation barrier shall be installed at the LPZ boundary. This barrier shall be designed and constructed to prevent silt and debris from the construction site from entering the LPZ, and shall be maintained until such time as permanent erosion control and site stabilization are established on the subject property.
C. Any structural element rising above finished grade must be set back a minimum of ten feet (10') measured horizontally from the LPZ boundary. For purposes of this section, structural elements rising above finished grade include, but shall not be limited to, decks, buildings, boathouses, retaining walls, gazebos and similar recreational structures. Patios installed at grade, required safety devices such as handrails, and steps or stairs four feet (4') in width or less, are not subject to this setback. Notwithstanding the provisions of subsection 11-2-3B6 of this title, no part of any structure, including architectural features, eaves, cantilevers, decks, or overhangs of any kind, may encroach into the setback described herein.
D. This minimum setback regulation shall not supersede any slope protection standards or other environmental regulations set forth in this title.
E. No mechanized equipment may operate in the LPZ for any reason unless a lakeshore construction permit is issued pursuant to title 13 of this code. (Ord. 07-09, 4-16-2007)
A. Definitions: In this section, the following terms have the meanings indicated below:
ABANDONED, WRECKED, JUNKED OR DISMANTLED VEHICLE, EQUIPMENT OR MACHINERY: Every vehicle, machine or piece of equipment which is not being used for its manufactured or intended purpose and has been discarded, abandoned, wrecked, stored, junked, dismantled or partially dismantled, including parts thereof.
FIRE HAZARD: Where owing to the existence of solid waste or waste, dried grass, weeds or shrubbery, the condition of the property is likely to cause a fire.
INOPERABLE: With respect to any vehicle, the inability of all significant mechanical and electrical systems on such vehicle to operate properly and dependably, or the absence of any significant parts. With respect to wheeled and/or motorized vehicles, and where applicable, inoperable means the inability of any of the following systems to operate properly and dependably, or the absence of such parts: tires, wheels, brakes, engine, ignition, transmission, suspension, steering, windows, windshield, horn, muffler, rearview mirror, windshield wiper, service brakes, parking brakes, headlights, brake lights, turn signals.
OBJECT: Any material, substance or composition not yet classified as waste, solid waste or a fire hazard but which may subsequently be determined to be waste, solid waste or a fire hazard. Object, though used in the singular term, can also mean the plural when circumstances require.
OWNER: Owner of the title to real property or the contract purchaser of real property as shown in the last available complete assessment roll in the office of the county assessor.
PERSON: Every natural person, firm, partnership, association or corporation.
SHIELDING: Refers to fencing or other fabricated barriers to conceal a facility from public view. It also refers to natural barriers.
SOLID WASTE: All putrescible and nonputrescible waste including, but not limited to, garbage, rubbish, refuse, demolition wastes (including wood, bricks, concrete, used road blacktop and other similar materials), ashes, wastepaper and cardboard, sewage, sludge, septic tank and cesspool pumpage or other sludge, commercial, industrial, construction waste, discarded home and industrial appliances, manure, vegetable or animal solid and semisolid wastes, dead animals and other waste.
UNLICENSED: With respect to any vehicle which is required to be registered under state law with the department of justice, motor vehicle division, the absence of the appropriate license tags and/or stickers attached to such vehicle showing a current registration.
VEHICLE: Any automobile, car, truck, motorcycle, tractor, trailer, pole trailer, bus, camper, motor home, travel trailer, recreational vehicle, boat or other watercraft.
WASTE: Useless or discarded materials.
ZONING ADMINISTRATOR: Includes the zoning administrator and any employee of the city planning and building department that the zoning administrator designates to carry out the responsibilities identified herein.
B. Declaration Of Public Nuisance: The deposit, accumulation, storage, collection, maintenance or display of waste, solid waste; abandoned, wrecked, junked or dismantled vehicles, equipment or machinery; inoperable or unlicensed vehicles; or dried grass, weeds or shrubbery is hereby found to create a condition tending to reduce the value of private property, to promote blight, deterioration and unsightliness, to create fire hazards, to create a harborage for rodents and insects and to be injurious to the health, safety and general welfare of the people. Therefore, the presence of waste, solid waste; abandoned, wrecked, junked or dismantled vehicles, equipment or machinery; inoperable or unlicensed vehicles; or dried grass, dried weeds or dried shrubbery on private or public property is hereby declared to constitute a public nuisance which may be abated in accordance with the provisions of this section.
C. Exemptions: This section shall not apply to vehicles enclosed in a building, covered by a cover specifically designed for covering vehicles, vehicles which are shielded according to the definition set forth in this section, or to any vehicle held in connection with a lawfully operated business enterprise.
D. Entry Upon Private Property:
1. The zoning administrator is authorized at all times to enter upon private property and examine any object for the purpose of determining if it is a public nuisance as defined herein. However, before entering upon private property, the zoning administrator shall obtain consent of the occupant thereof or have a warrant of the appropriate court authorizing his or her entry for the purpose of inspection.
2. No search warrant shall be issued under the terms of this subsection D until an affidavit has been filed with the appropriate court showing probable cause for such inspection by stating the purpose and the extent of the proposed inspection or other specific or general information concerning the object in question and identifying the property on which it is situated.
3. It is unlawful for any person to interfere with or attempt to prevent the zoning administrator from entering upon private premises and inspecting such object when the zoning administrator exhibits a warrant authorizing the entry of or has obtained consent of the occupant of the property.
E. Initial Action:
1. When the zoning administrator determines that a nuisance condition described in this section exists in the city's zoning jurisdiction, the zoning administrator shall make an initial contact with the property owner for the purpose of making said owner aware of the violation. The initial contact shall be in writing, or by telephone followed up in writing. The initial contact shall explain the violation, cite the applicable provision(s) of the code, set a date for compliance and/or abatement, and provide contact information for the Whitefish planning and building department.
2. In the event that a nuisance condition persists after the date given for abatement/compliance as set forth in subsection E1 of this section, the zoning administrator shall issue a second notice requiring abatement/compliance in no more than twenty one (21) calendar days. Should the nuisance condition persist beyond that time period, the zoning administrator shall proceed as set forth in subsection F of this section.
F. Notice Of Nuisance Condition:
1. Mailed Notice:
a. The city planning and building department shall notify the owner and any occupants of the premises by personal service or by certified mail. The notice shall state:
(1) That a hearing will be held concerning the nuisance character of the property.
(2) A description of the property and alleged nuisances.
(3) The time and place of the hearing.
b. A copy of this notice shall be posted on the property.
2. Published And Posted Notices: At least ten (10) days prior to the hearing date, the city shall publish a notice of the hearing in a newspaper of general circulation within the city or post notices in at least three (3) public places in the city.
G. Hearing:
1. Right To Be Heard: At the hearing, the owner or other interested parties shall have the right to be heard.
2. Inspection Of Property: The council may inspect the property and consider the facts observed in determining whether the property is a nuisance.
3. Resolution Of Council:
a. If the council determines that the property is a nuisance, the council may, by resolution, order the property to be made safe and prescribe what must be done to make it safe.
b. In the resolution, the council may set a time, not less than ten (10) days, within which the order must be obeyed.
H. Council Orders; Notice: Notice of the council's determination and orders by the council shall be by personal service or by certified mail to the owner of the property. If the orders are not obeyed and the property is not made safe within the time specified by the order, the council may order the property made safe at the expense of the owner of the property on which it is located.
I. Abatement By City Of Whitefish: If the council orders are not complied with, the council may specify the work to be done and direct that it be undertaken by city personnel and equipment or that the city contract for such work.
J. Assessment For Costs:
1. The city shall forward to the owner, by personal service or by certified mail, a notice stating:
a. The total cost of abatement, including the administrative costs.
b. The costs as indicated will be assessed to and become a lien against the property unless paid within thirty (30) days from the date of the notice.
c. If the owner objects to the costs of the abatement as indicated, a written notice of objection may be filed with the city planning and building department not more than ten (10) days from the date of the notice.
2. No sooner than thirty (30) days after the date of the notice of costs, the council, in the regular course of business, shall hear and make a decision on the objections to the costs assessed.
3. If the costs of the abatement are not paid within thirty (30) days from the date of the notice of costs or if an objection was filed within ten (10) days from the council determination, an assessment of the costs, as stated or as decided by the council, shall be made by resolution, and thereafter recorded with the Flathead County clerk and recorder and/or assessed with other property assessments at which time it shall constitute a lien on the property from which the nuisance was removed or abated.
4. The lien shall bear interest at a rate set by the council at the time of assessment.
K. Summary Abatement: The procedure of this section need not be followed if the condition of the property is unmistakably dangerous and imminently endangers life or property. In this instance, the city manager, zoning administrator or the police chief may summarily abate the nuisance.
L. Errors In Procedure: Failure to conform to the requirements of this section that does not substantially and adversely affect the legal right of a person does not invalidate a proceeding under this section.
M. Penalty: A person convicted of the offense of maintaining a public nuisance under this section is guilty of a misdemeanor punishable by a fine as provided in the general penalty in section 1-4-1 of this code. The city reserves any and all additional remedies available to enforce this section, including, but not limited to, injunction, abatement and cease and desist orders available under this code and state law. (Ord. 07-07, 3-19-2007)
A. Purpose And Intent: It is the purpose of this section to apply development standards to lots or parcels with the greatest chance of affecting water quality:
1. Maintain the community's ability to manage stormwater through protection of "critical conveyances".
2. Protect and improve the quality of the Whitefish area's water bodies, including lakes, streams, and the Whitefish River, which are central to the community's identity and values.
3. Protect public safety, public and private property, and water quality from threats of geologic instability and erosion.
4. Protect and preserve the lawful use and enjoyment of private property.
To accomplish these objectives, this section will set forth a series of standards and regulations to maintain the ability of critical conveyances to carry stormwater; to limit sediment, nutrients and other pollutants entering the area's streams and lakes; to properly condition and, where necessary, prohibit development in geologically unstable areas adjacent to water bodies.
The intent of these regulations is to promote lawful and responsible land development. These regulations allow the restoration of streams, stream banks, slopes, and wetlands; sound forest management; and the clearing and removal of hazardous vegetation to protect life and property.
B. Administration:
1. Applicability: Any new or expanded residential, commercial or industrial development proposal within two hundred (200) horizontal feet of a lake, river, wetland, stream or stormwater conveyance must comply with this section. Any lots or parcels that were created by whatever means prior to April 3, 2006, or after March 3, 2008, are required to comply with this section.
The following developments, activities and associated uses are exempt from the provision of this section:
a. Those activities necessary to prevent an immediate threat to public health, safety, or welfare, or pose an immediate risk of damage to private property and that require remedial or preventive action in a time frame too short to allow for compliance with the requirements of this section. After the emergency, the person or agency undertaking the action must report any impacts to the water quality protection area to the director within five (5) days of the activity. The director may require submittal of a water quality protection area report or geotechnical letter to guide restoration or mitigation for these impacts. Final approval of the report, restoration and mitigation will be in accordance with provisions of this section.
b. Operation, maintenance, repair, modification, or addition to existing structures, infrastructure improvements, utilities, public or private roads, dikes, levees, or drainage systems, if the activity applies best management practices and does not further encroach within a water quality protection area or buffer and there is no increased risk to life or property as a result of the action. As applicable, new facilities must comply with section 11-3-33 (erosion control) of this chapter and subsection 11-7-10E (mitigation for impacts) of this title. Operation and maintenance includes minor landscaping, native plant landscaping, buffer restoration, bank stabilization with native plant landscaping and vegetation management, provided that such management actions are part of regular and ongoing maintenance and do not expand farther into the water quality protection area or buffer.
c. Agricultural activities, as defined in Montana Code Annotated 76-2-902. This includes timber harvesting, thinning, and regeneration on land without residential structures. Timber harvesting on forestlands proposed for conversion to other uses must be in compliance with Montana Code Annotated 77-5-301 - 307, the Montana streamside management zone law. Violations of Montana Code Annotated 77-5-301 - 307 must be remediated to the satisfaction of the Montana department of natural resources and conservation prior to submittal of development permits under this section.
d. Educational and research activities that do not degrade the functions and values of a water quality protection area or buffer, and conservation or restoration activities to protect or restore these functions and values.
e. Development of a lot contained within a preliminary plat or planned unit development approved by the Whitefish city council prior to April 2, 2008, pursuant to the approved building site plan or building pad, if the building site plan or building pad are specifically located on the lot, but only to the extent that such development is located within the building site plan or building pad. The zoning administrator may, on a case by case basis, approve minor modifications to the building site plan or building pad. However, this exemption does not exempt a property owner from the requirements of section 11-3-33 of this chapter.
2. Relationship to Other Regulations:
a. These water quality protection regulations apply as an overlay and in addition to zoning and other regulations adopted by the city.
b. Any individual water quality protection area adjoined by another type of water quality protection area will have the buffer and meet the requirements providing the most protection to the water quality protection areas involved. When any provision of this section or any existing regulation, easement, covenant, or deed restriction conflicts with this section, that which provides more protection to the water quality protection areas apply.
c. The city will not approve any permit or otherwise issue any authorization to alter the condition of any land, water, or vegetation, or to construct or alter any structure or improvement in, over, or on a water quality protection area or associated buffer, without first ensuring compliance with the requirements of this section.
d. Compliance with the provisions of this section does not constitute compliance with other federal, state, and local regulations and permits that may be required, nor does it relieve an applicant from the duty to avoid harm to neighboring or downstream properties or create a duty to neighboring or downstream properties on the part of the city. The applicant is responsible for complying with these other requirements and duties, apart from the process established in this section.
3. Administrative Rules: Applicable departments within the city are authorized to adopt such administrative rules and regulations as are necessary and appropriate to implement this section and to prepare and require the use of such forms as are necessary for its administration.
4. Permitting: Development within two hundred feet (200') of a water quality protection area that is not exempt under subsection B1 of this section must obtain a permit prior to the start of any proposed activity pursuant to section 11-7-10 of this title.
5. Reasonable Use Exception: When the requirements of this section, or these requirements in combination with zoning and other development standards, would render a legally existing lot or parcel of record incapable of providing any legal and reasonable use, as defined in this subsection, a reasonable use exception (RUE) will be issued by the director if the criteria in this subsection are met. A “legal and reasonable use” is defined as one allowed by the applicable zoning district and consistent with similar uses in the same general area, taking into account the most recent construction trends in the general area. For dwelling units, a legal and reasonable use may disturb no more than five thousand (5,000) square feet or fifteen percent (15%) of the parcel, whichever is greater, by structures or other land alteration, including grading, utility installations and landscaping, but not including the area used for an on site sewage disposal system.
a. An application for a reasonable use exception must be made to the city and must include a water quality protection area identification form; water quality protection area report or geotechnical letter, as applicable; and any other related project documents, such as permit applications to other agencies. The application must document what can be developed on the property in compliance with the strict provisions of this section and other zoning and development standards, and must explain why this would not permit any reasonable use of the property. It must include the date the applicant purchased the property or otherwise obtained the right to develop or use it, and restrictions or conditions on use or development in existence on that date. The burden of proof is on the applicant to bring forth evidence in support of the application and to provide sufficient information on which any decision has to be made on the application.
b. Following receipt of a complete and accurate submittal, within thirty (30) days the director will grant or deny a request for an RUE in writing with findings of fact pursuant to the determinations set forth in subsection B5c of this section.
c. In reviewing applications for RUEs, the director shall determine that all of the following criteria are met:
(1) The lot, tract, or parcel is a legal lot of record.
(2) All reasonable use of the property is preempted under the strict provisions of this section, or the combination of this section and zoning and development standards, for reasons other than actions by the applicant after the effective date hereof.
(3) There are no reasonable development alternatives readily available to the applicant that meet the standards of these regulations.
(4) The RUE does not pose a threat of significant injury to occupiers of the land, other properties, or the natural resources protected by this section.
(5) Impacts associated with the RUE are the minimum necessary to allow for reasonable use of the property, and will be reasonably and effectively mitigated through conditions of approval.
d. An RUE will not be approved solely to improve views and vistas or proximity to amenities when viable alternatives exist. Preference will be given to modifying or waiving development standards that do not impact water quality protection areas or the safety of the occupiers of the land or other properties.
e. Approval or denial of any RUE may be appealed to the community development board pursuant to section 11-7-5 of this title. An approved RUE must be recorded with the Flathead County clerk and recorder prior to any construction activity. The RUE is valid for three (3) years and the director may approve up to two (2) 1-year extensions, provided the applicant can demonstrate progress is being made on the project. If construction has not begun during the approval period, the RUE will expire.
6. Variances: A variance from the requirements of this section may be authorized through a planned unit development or a neighborhood plan or, in other cases, by the director, in conjunction with the public works department, if the applicant provides clear and compelling evidence that the result would better protect or restore the functions and values of affected water quality protection areas than would application of standard criteria or in the case where these regulations conflict with state or federal regulations.
7. Public Agencies And Utilities: If the application of this section would prohibit a development proposal by a public agency or public utility, the agency or utility may apply for a reasonable use exception, which must follow the procedures and criteria of subsection B5 of this section, as applicable, and demonstrate that application of this section would otherwise unreasonably restrict the ability to provide services to the public.
8. Mapping: The city must maintain planning level maps indicating the best available information as to the location of water quality protection areas. In addition to these maps, the following may be used as a guide for locating water quality protection areas:
a. Topographic maps published by the U.S. geological survey;
b. Flood insurance rate maps published by the federal emergency management agency;
c. Surficial geologic map of the upper Flathead River Valley (Kalispell Valley) area, Flathead County, northwestern Montana, published by the Montana bureau of mines and geology;
d. Soil survey of the upper Flathead Valley area, Montana, published by the U.S. soil conservation service; and
e. Soil survey of Flathead National Forest area, published by the U.S. forest service and the natural resource conservation service, in cooperation with Montana agricultural experiment station.
f. Topographic mapping through the Flathead Basin mapping project, 2009, maintained by Montana natural resource information system.
All of these sources are to be used for planning purposes by the city, project applicants and property owners, but may be superseded by new data and do not eliminate the need for on site evaluation for the presence of water quality protection areas.
9. Density Calculation: Density must be calculated based on the gross acreage of the site. Land restricted from development within water quality protection areas or their buffers may be used to meet requirements for open space other than active recreation under section 12-4-11 of this code. Where development is partly prohibited due to the presence of water quality protection areas, as defined in this section, an applicant may be permitted to transfer up to one hundred percent (100%) of the density attributable to the undevelopable area of the property to another portion of the same property, where the director finds this is consistent with the city’s growth policy and that the following standards are met:
a. The increased density does not significantly harm the water quality protection areas on site or on adjacent properties;
b. The increased density does not significantly harm wildlife habitat, including migration corridors;
c. The increased density does not significantly harm the character and qualities of the existing neighborhood; and
d. Where applicable, the increased density makes efficient use of infill property.
Where the above standards are met, the normal standards of the underlying zoning district for minimum lot size, setbacks, and lot coverage may be modified to accommodate the increased density.
10. Enforcement And Penalties:
a. Reasonable access to the site will be provided to the city for the purpose of inspections during any proposal review, restoration, emergency action, or monitoring period. The director must present proper credentials and make a reasonable effort to contact any property owner before entering onto private property. Except in emergencies or when the director determines there may be an imminent threat to environmental resources, such reasonable effort includes written notice by certified letter seven (7) days in advance of a planned site inspection.
b. When a water quality protection area or its buffer has been altered in violation of this section, all ongoing development work must stop and the water quality protection area or buffer shall be restored. The city has the authority to issue a stop work order to cease all ongoing development work, and order restoration, rehabilitation, or replacement measures at the owner’s or other responsible party’s expense to compensate for violation of provisions of this section. All development work must remain stopped until a restoration plan is prepared and approved by the city.
c. If development work continues, the city has the authority to seek all legal and equitable relief necessary to enforce this section. Restoration plans shall be prepared by a qualified professional using the best available science and shall describe how the actions proposed meet the minimum requirements described in subsection B10d of this section. As necessary, the director can, at the violator’s expense, seek expert advice in determining the adequacy of the plan. Inadequate plans will be returned to the applicant or violator for revision and resubmittal.
d. At a minimum, performance standards for restoration are as follows:
(1) For alterations to critical stormwater conveyances, or streams, wetlands, and lakes and their buffers, restoration must return the affected environment to the historic conditions or the conditions existing at the time of the initiation of the project; if that is infeasible, restoration must replace, enhance, or provide substitute resources or environments, following the criteria for mitigation in subsection 11-7-10D of this title, where applicable.
(2) For alterations to steep or unstable slopes, the following minimum performance standards must be met for restoration:
(A) The hazard must be reduced to a level equal to, or less than, the predevelopment hazard;
(B) Any risk to public safety or other water quality protection areas resulting from the alteration must be eliminated or minimized; and
(C) To the extent feasible, the hazard area and buffers must be replanted with native vegetation sufficient to minimize the hazard.
e. Any person convicted of violating any of the provisions of this section will be guilty of a misdemeanor. Each day or portion of a day during which a violation of this section is committed or continued will constitute a separate offense. Any development carried out contrary to the provisions of this section will constitute a public nuisance and may be enjoined as provided by the statutes of the state of Montana. The city may levy civil penalties against any person, party, firm, corporation, or other legal entity for violation of any of the provisions of this section. The civil penalty will be assessed at a maximum rate of one thousand dollars ($1,000.00) per day per violation.
C. Stream, Lake and Wetland Buffers and Setbacks:
1. Standard Buffers And Setbacks: A buffer is an area of land adjacent to a lake, wetland or stream, including the Whitefish River intended to protect the water quality area, while a setback is a smaller area of land adjacent to the buffer intended to protect buffers from human disturbance where structures are prohibited and only limited alterations are allowed.
Except where modified through a reasonable use exception under subsection B5 of this section or a variance under subsection B6 of this section, buffers and setbacks for streams, wetlands, and lakes are hereby established as follows. All buffers include the entire floodplain. Widths will be measured on the horizontal plane perpendicular to the edge of the water quality protection area. Developments in compliance with buffer and setback requirements or allowed uses in this section will not be required to submit a water quality protection area report unless specifically noted below.
Waterbody | Buffer | Setback |
Whitefish River Subsection C1a of this section | 75' or top of bank, whichever is greater | Variable, but no less than 20' |
Other perennial streams Subsection C1b of this section | 100' with 25' increase/decrease for high/low intensity land use | 10' |
Intermittent streams Subsection C1c of this section | 50' | 10' |
Wetlands Subsection C1d of this section | 100', with 25' increase/decrease for high/low intensity land use | 10' |
Whitefish Lake Subsection C1f of this section | 20' with water quality plan to meet performance standard of 75' buffer | 10' |
Other lakes Subsection C1g of this section | 75' | 10' |
a. Whitefish River: The buffer is the top of bank (where evident) or seventy five feet (75') from the ordinary high water mark, whichever is greater. If there is an associated wetland along the river, the seventy five feet (75') is measured from the edge of the wetland. If any structure is proposed within two hundred feet (200') of the buffer on a property that abuts the river, a geotechnical letter consistent with subsection D of this section shall be required. Such an analysis may also be required if the director of public works determines, based on field observation and in consultation with the applicant, that a proposed structure beyond this setback may be damaged by slope failure, slumping or other geologic instability, or that it may contribute to such instability on other properties. Unless an approved geotechnical letter concludes a larger setback is necessary, the setback must equal the rear yard setback in the applicable zone, but in no case will it be less than twenty feet (20').
b. All Other Perennial Reaches of Streams: All other perennial reaches of streams, including, but not limited to, Beaver, Cow, Eagle, Haskill, Hellroaring, Lazy, Smith, Swift, Viking, and Walker Creeks and their tributaries: The buffer must extend one hundred feet (100') from the ordinary high water mark, except that the buffer for Second Creek upstream of the city’s water supply intake must be two hundred feet (200'). These buffers shall be increased by twenty five feet (25') for multi-family, industrial and commercial development; they will be reduced by twenty five feet (25') for passive recreational uses such as parks or for low density residential development on lots 2.5 acres or greater and cannot be subdivided into lots less than 2.5 acres. There will be no permitted reduction in the buffers for Second Creek. The setback will be ten feet (10'), with no encroachment on the buffer allowed.
c. All Intermittent Streams: The buffer must extend fifty feet (50') from the ordinary high water mark. The setback will be ten feet (10'), with no encroachment on the buffer allowed.
d. Wetlands: For single-family residential development, the buffer must be one hundred feet (100') for all wetlands not exempted under subsection C1e of this section. These buffers will be increased by twenty five feet (25') for multi-family, industrial, and commercial development; they will be reduced by twenty five feet (25') for passive recreational uses such as parks or for low density residential development on lots 2.5 acres or greater and cannot be subdivided into lots less than 2.5 acres. The setback will be ten feet (10'), with no encroachment on the buffer allowed.
e. Exempt Wetlands: All isolated wetlands rated as category III or category IV using the Montana wetland assessment method, as developed and updated by the Montana department of transportation, and that are less than one thousand (1,000) square feet shall be exempt from these regulations. All such wetlands between one thousand (1,000) square feet and ten thousand (10,000) square feet shall have no buffer and setback restrictions and may be filled or otherwise degraded, if impacts are fully mitigated based on section 11-7-10 of this title. Existing storm ponds that were former wetlands, provided a fifteen foot (15') setback is maintained from the edge of the pond, are exempt.
f. Whitefish Lake: The buffer and setback will be regulated under title 13 of this code. All development of property within seventy five feet (75') of the lake must submit a water quality protection plan developed by a qualified professional, which must make recommendations regarding stormwater management, impervious surface, grading and filling, and vegetation protection and restoration so that the estimated discharge of sediment, nutrients, and other pollutants to the lake during and after construction would be no greater than if the site had a seventy five foot (75') buffer, using a methodology approved by the director of public works. This plan may reference or incorporate other documentation required by the city. Requirements for a water quality plan may be waived by the public works director for minor disturbances.
g. All Other Lake Shorelines That Are Not Wetlands: The buffer is seventy five feet (75') from the mean annual high water elevation. The setback is ten feet (10'), with no encroachment on the buffer allowed.
2. Restriction on Subdividing: Land located wholly within a wetland or its buffer may not be subdivided. Land located partially within a wetland or its buffer may be divided provided that each resulting lot has sufficient buildable area outside of, and will not affect, the wetland or its buffer.
3. Restoration Incentive: Except for Whitefish Lake, buffer widths may be reduced up to twenty five percent (25%) if the buffer is restored or enhanced from a preproject condition that is disturbed (e.g., dominated by invasive species), so that functions of the postproject buffer are equal or greater. For single-family homes on existing lots of record, the restoration plan must be developed by a qualified professional for the relevant water quality protection area and must be approved by the director. For all other development, the restoration plan must also meet requirements in section 11-7-10 of this title.
4. Buffer Averaging: Except for Whitefish Lake, the director has the authority to average buffer widths on a case by case basis, where a qualified professional demonstrates to the director’s satisfaction that all of the following criteria are met:
a. The total area contained in the buffer after averaging is no less than that contained within the buffer prior to averaging;
b. Decreases in width are generally located where riparian functions may be less sensitive to adjacent land uses, and increases are generally located where riparian functions may be more sensitive to adjacent land uses, to achieve no net loss or a net gain in functions; and
c. The averaged buffer, at its narrowest point, shall never be less than fifty percent (50%) of the standard width or fifty feet (50') for the Whitefish River.
5. Allowed Activities in Buffers: The director may permit the following uses within a stream, wetland, or lake buffer, provided they meet the standards set forth below and are not prohibited by any other applicable law. Certain allowed activities require a water quality protection plan approval. Activities along perennial streams, including the Whitefish River, may also require review and approval from the Flathead conservation district:
a. Authorized Activities: For lake buffers, activities specifically authorized under title 13, “Lake And Lakeshore Protection Regulations”, of this code.
b. Accessory Structures: Detached unoccupied accessory structures, provided they are no greater than one hundred and twenty (120) square feet, have all required permits including a floodplain permit and have impacts mitigated by planting an area with native vegetation at least equal in size to the area disturbed by the structure, preferably in the same buffer.
c. Walkways and Trails: Walkways and trails, provided pathways minimize adverse impacts on water quality. As applicable, trails must comply with section 11-3-33 (erosion control) of this chapter and section 11-7-10 (mitigation for impacts) of this title. Paths should be designed using the best management practices and obtain permits when necessary. Unless required by the Americans with disabilities act or otherwise approved in the city’s adopted master trails plan, they should generally be parallel to the perimeter of the water body, located in the outer twenty five percent (25%) of the buffer area, avoid removal of mature trees, and be limited to pervious surfaces no more than four feet (4') in width. City paths/trails also require approval of a water quality protection permit. A walking path to a lake, stream, or wetland may be permitted for single-family homes on existing lots of record provided impacts are mitigated based on recommendations by a qualified professional for the relevant water quality protection area, which must be approved by the director. For all other developments, mitigation for such a path must also meet requirements in section 11-7-10 of this title.
d. Pesticides and Fertilizers: Pesticides and fertilizers may be applied in buffers under the following conditions:
(1) Pesticides must be applied according to the manufacturer’s label. There are specific materials labeled for appropriate applications in aquatic, ditch bank/edge areas and upland environments. All others are prohibited. The applicator must ensure that the pesticide application is applied in accordance with the restrictions of the label for its intended use, targeted vegetation and/or area being treated.
(2) No fertilizer will be applied to any buffer unless suggested as part of a buffer enhancement/mitigation plan. Such plan must provide soils sample analysis indicating a need for the fertilizer and the composition of macronutrients (N, P, K), a schedule of application and measures to ensure the fertilizer does not reach adjacent water bodies. Fertilizer applied must be no more than is needed for plant uptake.
e. Forest Management: Tree removal within the buffer area for the following requires the submittal of a tree removal plan to the zoning administrator for review and approval prior to removing trees:
(1) Tree removal for the health of the stand, including fuel reduction, habitat improvement, removal of diseased wood, and thinning for acceleration of multi-age, multi-story characteristics. Trees planted by the current property owner may be removed at the sole discretion of that property owner and need not be replaced unless they were required as mitigation or through an enforcement action under this section.
(2) Tree removal for limited view enhancement, meaning filtered views and/or view corridors from key vantage points, such as decks, balconies, and picture windows, achieved by pruning or limbing or, as a last resort, limited tree removal. Trees removed must be replaced with additional trees at least three inches (3") in trunk diameter as measured eight inches (8") above ground level, unless installation of such trees would create erosion or slope stability hazards that cannot be adequately controlled or mitigated. Conifers removed must be replaced by conifers. Replacement trees and shrubs shall be located in the same general area of the site as the trees removed, to the extent consistent with purposes for removal, and shall be sufficient in number to provide a comparable area of root coverage, once established.
f. Stream Crossings: Stream crossings, if necessary to provide access to property and if impacts are fully mitigated consistent with an approved water quality protection areas report.
g. Stormwater Management Facilities: Stormwater management facilities may be allowed within the outer twenty five percent (25%) of buffers, provided that:
(1) No other location with less impact is feasible; and
(2) Mitigation for impacts is provided to achieve no net loss or a net gain in functions.
h. Connection Lines To Utilities: Connection lines to utilities, if required by the city or utility, with a restoration plan for disturbed soils and vegetation approved by the director.
i. Stream Bank Stabilization: Bioengineering or soft armoring techniques for stream bank stabilization is preferred.
6. Allowed Activities In Setbacks: In addition to activities identified in subsection C5 of this section, the following uses are allowed in a stream, wetland, or lake setback, provided they are not prohibited by any other applicable law:
a. Activities specifically authorized within lake setbacks under section 11-3-27 of this chapter.
b. Recreational structures such as play apparatus or patios at grade and associated safety devices (railings, steps, etc.).
c. Vehicular access for maintenance or essential emergency services.
d. Lawns, gardens, and the application of associated fertilizers, herbicides, and pesticides are allowed.
e. Incidental outdoor storage of nonhazardous materials.
f. Tree removal is not restricted, but tree retention and management are highly encouraged, as is the planting of native trees.
D. Slopes and Geologic Instability: If a project is proposed on a lot or parcel with slopes greater than ten percent (10%) and is within two hundred feet (200') of a lake, wetland or intermittent or perennial stream, the applicant must submit a geotechnical letter, as described below.
1. Geotechnical Letter:
a. Assessment of Site Conditions: The letter shall include an assessment of the existing geologic and geotechnical site conditions, including surface water runoff, groundwater, soil types, erosion, and slope stability.
b. Conclusions and Recommendations: The qualified professional must prepare conclusions and recommendations for the proposed development and any mitigation necessary to address existing site conditions that may need to be modified due to the proposed development.
c. Maintenance Responsibility: Perpetual maintenance of all stabilization measures and their design effectiveness is the express responsibility of the property owner and all heirs and assigns. Failure to maintain these measures and their design effectiveness shall constitute a violation of this section pursuant to section 11-7-13 of this title.
2. Exemption: For the following residential development applications within two hundred feet (200') of a lake, wetland or stream, the director may waive the requirements of this subsection:
a. An addition less than two hundred (200) square feet in size.
b. Detached unoccupied auxiliary buildings such as garages and sheds six hundred (600) square feet or less.
c. Decks attached to structures where no additional load bearing weight is added to an adjacent slope.
d. Other small or minor disturbances, as determined by the director.
E. Critical Stormwater Conveyances:
1. Restricted Area: No building, structure, excavation, filling, or development of any kind, and no terrain disturbance that would interfere with stormwater flow will be allowed within critical stormwater conveyances, as defined by this section, unless otherwise approved through a reasonable use exception under subsection B5 of this section, a variance under subsection B6 of this section, or by the director of public works as part of a detailed drainage study.
2. Applicability: This section applies only to identified critical stormwater conveyances on the city’s most current maps, or to critical stormwater conveyances identified by the director of public works based on field observation, with the precise location of the conveyance to be determined on a site by site basis, as described in this subsection E.
3. Location: Precise location of critical stormwater conveyance boundaries will be determined on a site by site basis by the director of public works based on estimated flows for a 25-year storm (having a 4 percent chance of occurring in any given year), in consultation with the property owner and/or project proponent and reviewing the most recent city stormwater conveyance mapping, within thirty (30) days of a request by the property owner. The property owner may hire a qualified professional to establish the precise location of the boundaries and submit the determination for the city’s review and approval.
4. Setback: New structures or terrain disturbance that would interfere with stormwater flow are also prohibited within fifteen feet (15') of designated critical stormwater conveyances. Patios, driveways, and landscaping that would not significantly interfere with stormwater flow are allowed.
5. Property Access: Structures necessary for vehicle access are allowed within critical stormwater conveyances and setback areas if they do not reduce conveyance capacity.
6. Pesticide and Fertilizer Application:
a. Pesticides must be applied according to the manufacturer’s label. There are specific materials labeled for use that are appropriate applications in aquatic, ditch bank/edge areas and upland environments. All others are prohibited. The applicator must ensure the pesticide application is applied in accordance with the restrictions of the label for its intended use, targeted vegetation and/or area being treated.
b. Fertilizer applied must be no more than is needed for plant uptake, taking into account the nutrient content of the soils.
7. Restricted Activities: Removal and/or disturbance of existing ground vegetation and trees within critical stormwater conveyances, and filling and excavation of areas adjacent to critical stormwater conveyances, must not be conducted in such a manner as to negatively impact the conveyance through additional runoff, erosion, or sedimentation. No storage or vehicle parking of any kind will be allowed within a critical stormwater conveyance.
(Ord. 12-04, 2-6-2012; amd. Ord. 23-27, 11-20-2023; Ord. 24-07, 7-1-2024)
Conditional use criteria for personal services shall be as follows:
A. When specified as a conditional use, the criteria in section 11-7-8 of this title shall be applied; provided, however, if the use involves an existing structure, an administrative conditional use permit, as provided in subsection 11-7-8M of this title, shall be obtained. Such services with more than two (2) chairs or stations proposed for an existing structure are not eligible for an administrative permit process.
B. The applicant shall meet the following design standards:
1. Total signage shall be as provided in chapter 5 of this title.
2. All parking shall be provided off street according to the sum of the uses on a particular property as follows:
a. Two (2) spaces per residential unit.
b. One space per employee per maximum shift, excluding resident family members.
c. One space for each client, customer or visitor who will be present or arriving during the period of daily activity with a minimum of two (2) spaces required per chair or station.
d. In no case shall required parking be less than that required in chapter 6 of this title under professional offices.
3. All landscaping and parking lot improvements, including asphalt/concrete work, shall be completed prior to occupancy; provided, however, should occupancy occur between November and April, the owner/applicant may delay landscaping and parking lot/driveway hard surfacing until the following May 15 to avoid inclement weather.
4. Any exterior modifications to the building shall be done in a mode architecturally compatible to and in scale with buildings in the adjacent residential neighborhood. Exterior modifications shall not exceed paint, siding, roofing and exterior refurbishment.
C. With the exception of one such item, guides and outfitters cannot openly store equipment such as boats, bikes, rafts, and horse trailers. (Ord. 12-01, 1-17-2012)
Conditional use criteria for music and dance schools and studios shall be as follows:
A. The facility shall adhere to all occupancy, ADA, international building code, and egress requirements.
B. If necessary, prior to operation the facility shall be insulated with sound dampening materials to mitigate noise impacts to adjacent properties.
C. Parking shall be one space for every twenty five (25) students present at a given time on a typical day, plus one space for each employee and teacher on a maximum shift. If a performance/assembly area is present, an additional one space per eight (8) seats plus one space for each one hundred (100) square feet of space without seats shall be provided. Shared parking opportunities shall be evaluated on a case by case basis.
D. A safe student pick up and drop off zone shall be provided where possible with twenty feet (20') of signed loading area for each fifteen (15) students on site during lessons.
E. All landscaping and parking lot improvements shall be completed prior to occupancy unless occupancy occurs between November and April, in which case the owner/occupant may delay landscaping and hard surfacing until May 15 to avoid inclement weather.
F. Access to the facility from an alley rather than the collector street may be allowed with city council approval.
G. Signage requirements shall adhere to residential district requirements (see section 11-5-6-4 of this title).
H. New buildings and exterior modifications to existing buildings shall maintain the residential character of the adjacent neighborhood by being architecturally compatible with and in scale with nearby buildings. (Ord. 09-09, 8-3-2009)
Commercial storage of recreational vehicles, including boats, shall comply with the following standards:
A. Open or enclosed storage areas shall meet primary setbacks of the underlying zone and in no case shall the front yard setback be less than twenty feet (20'). When the storage area is located adjacent to a residential district or use, the minimum setback shall be twenty feet (20').
C. Paving of storage areas shall only be required when the storage area, drive lanes and parking areas are five thousand (5,000) square feet or more. All entrances from a public or private street to the storage areas shall be paved to a depth of no less than forty feet (40') to ensure materials are not tracked onto streets. All unpaved parking areas shall be maintained in a dust free surface and meet the load requirements of the Whitefish fire marshal.
D. All enclosed storage facilities shall receive architectural review approval prior to submitting an application for a building permit. All enclosed facilities shall meet the building height limits in subsection 11-3-2B of this chapter for an accessory structure. (Ord. 09-05, 4-6-2009)
A. Erosion Control Plan Implementation And Compliance: Erosion and sediment control plans are required for all development and redevelopment activities that require a building permit, create more than two thousand five hundred (2,500) square feet of new impervious surface area, result in more than one-fourth (1/4) acre being cleared and graded, or that clears or grades land within one hundred feet (100') of a stream, lake, or wetland. An erosion and sedimentation control plan must be submitted to the Public Works Department at least thirty (30) days before land disturbance begins.
B. Site Sediment Control During Construction: Erosion control measures that are in compliance with an approved erosion control plan must be in place prior to the start of construction or site disturbance. Installation and maintenance of erosion control devices and practices must be sufficient to retain sediment within the boundaries of the site. It shall be the duty of each party in control thereof to prevent soil, mud, rock or debris from such real property being deposited or otherwise transported onto streets, alleys, storm drains, utility facilities, rights- of-way, easements or receiving waters of the City. The erosion and sediment control barriers shall not be removed until all roadways have been paved and a permanent and stable vegetation cover has been established. (Ord. 12-04, 2-6-2012)
Marijuana sales, manufacturing, testing, and cultivation facilities, as allowed and defined under Montana State law, must comply with the following standards:
A. All permitted or conditionally permitted marijuana facilities must be sited and operated in full compliance with Montana law as well as all zoning and building code requirements, parking standards, and any conditions of approval. Marijuana facilities may not be operated as a home occupation.
B. No marijuana facility is permitted from locales within 500' of a building used exclusively as a church or public school. This distance must be measured in a straight line from the center of the nearest public entrance of the place of worship or school to the nearest public entrance of the marijuana facility. A lawfully operating facility shall not be rendered in violation of these provisions by the subsequent location of a church or public school or by amendments to this ordinance. Additionally, no marijuana facility shall be located on Spokane Avenue between Railway Street and East Second Street.
C. No marijuana dispensary may be located within 500' of another marijuana dispensary. This distance must be measured in a straight line from the center of the nearest public entrances.
D. Marijuana facilities must have a building façade that visually blends in with the design, style, and appearance of adjacent storefronts, including signage, security measures, and lighting, and must be reviewed and approved by the Architectural Review Committee when required.
E. Window signs on marijuana dispensaries are limited to a maximum window sign coverage of 20% of the window area, and otherwise no window shall be covered or made opaque in any way. No security bars, metal screens, grates, or other visible security devices other than door locks and recessed or otherwise discrete security cameras are permitted on the storefront exterior unless required by State law.
F. If the applicant is not the property owner, a notarized authorization executed by the property owner authorizing and consenting to the proposed use of the property as a marijuana facility is required.
G. With the exception of State licensed outdoor cultivation allowed where agricultural uses are permitted, marijuana cultivation must be located within one or more completely enclosed, secure buildings with rigid walls, a roof, and secure doors.
H. Marijuana facilities must at all times be operated in such a way as to ensure the health, safety, and welfare of the public and workers. Marijuana facilities must not create a public nuisance or adversely affect the health or safety of the nearby residents, businesses, or its employees by creating dust, glare, light pollution, heat, noise, noxious gasses, odor, vibration, unsafe conditions or other impacts, or be hazardous due to the use or storage of materials, processes, products, and runoff of water, pesticides or wastes.
I. Marijuana cultivation, manufacturing, and testing facilities must be sited and operated in a manner that prevents marijuana odors from being detected offsite. A sufficient odor absorbing ventilation and exhaust system utilizing negative pressure inside the building must be used so odor generated distinctive to its operation cannot be detected outside the facility or anywhere on adjacent property or public rights-way, nor in interior common area walkways, hallways, foyers, lobby areas or other areas available for use by common tenants or the visiting public. An odor control plan must be submitted as part of any permit application.
J. All marijuana facilities must have sufficient security systems, including surveillance cameras, alarm systems on doors and windows, deadbolt locked exterior doors, and safes to store cash and retail marijuana products when closed.
K. Marijuana remnants and byproducts must be secured and properly disposed of and not be placed within the facility's exterior refuse containers at any business operating pursuant to this section unless rendered unusable. Outdoor storage of marijuana merchandise, raw materials, or other marijuana materials associated with the production of marijuana is prohibited.
L. All signage must meet state licensing requirements as well as the Sign Regulations found in section 11-5 of this Ordinance. (Ord. 12-07, 4-16-2012; amd. Ord. 21-17, 12-6-2021; Ord. 22-17, 12-19-2022; Ord. 23-12, 8-7-2023)
Certain zoning districts such as the WB-3, Resort Residential and Resort Business Districts permit paid short term residential rental accommodation within a legal residential unit. These standards do not apply to bed and breakfasts, hostels, hotels or motels. Short-term rentals are not compatible with other residential areas as there are potential traffic and noise impacts, as well as the diminished availability of long term rental and affordable housing units.
A. Performance Standards:
1. Short-term rentals. Short term rentals, as defined in section 11-9-2 of this title, are allowed in applicable zoning districts provided the following criteria are met. Property owners of each rented unit must:
a. Hold a valid short term rental registration and business license with the City of Whitefish;
b. Conform to the land use provisions of this title and other applicable regulations;
c. Not exceed the allowable dwelling unit density of the underlying zoning district;
d. Meet the standards for off street parking found in chapter 6 of this title;
e. Be inspected by the Fire Marshal to ensure it meets current safety standards once the application is deemed complete and annually thereafter;
f. Provide proof of application for a State of Montana public accommodation license for a tourist home. This license is administered by the Flathead City-County Health Department;
g. Report and remit Resort Tax in conformance with the Resort Tax requirements of title 3, chapter 3, "Resort Tax", of this Code;
h. Provide a name and phone number of a local contact person responsible for handling any problems that may arise with the property, if not a full-time resident;
i. Post an emergency contact notice visible from outside the front door with the owner's name and phone number (or local contact if absentee per subsection A8 A-1-h of this section) and the property's City of Whitefish shortterm rental registration number;
j. Keep the property and buildings maintained and continue to provide trash collection services with approved animal resistant containers if determined by the city to be available;
k. Not display any outside signage advertising the short term rental;
l. Provide verification the property is appropriately registered and meets requirements for State Bed Tax purposes; and
m. The City's short term rental registration number, and hosting site property ID must be listed on any print, internet site, or other medium where the short term rental is marketed or booked.
B. Violations: A violation of any of the performance standards in subsection A of this section, as well as repeated citations of disturbing the peace related to the property may result in suspension and possible revocation of the business license and short term rental registration, as well as possible enforcement action as outlined in this subsection. Operating a short term rental outside of an allowed district or without meeting all the standards listed above is a violation of this Code and shall be deemed a misdemeanor and, upon conviction, punished as set forth in section 1-4-1 of this Code. Operating a short-term rental outside of an allowed district or without meeting all the standards listed above shall also be deemed a municipal infraction and subject to a three hundred dollars ($300) fine for the first violation and a five hundred dollars ($500) fine for each subsequent violation. Each day that a violation remains shall constitute a separate violation. For each separate incident, the city shall elect to treat the violation as a misdemeanor or a municipal infraction, but not both. If a violation is repeated, the city may treat the initial violation as a misdemeanor and the repeat violation as a municipal infraction or vice versa. Advertising the availability of a short term rental unit that is either not in compliance with these standards or is outside one of the zoning districts that permit short term rentals shall be evidence of a violation and may incur enforcement remedies against the property owner, property manager, and/or listing agent. Advertising creates the following presumptions:
1. That the property owner, property manager, and/or listing agent knew the standards and zoning; and
2. That the operator or manager knew the duty to collect, report, and remit Resort Taxes due under title 3, chapter 3 of this Code.
The city will also notify the Flathead County Health Department and State of Montana regarding any illegal rentals. This section does not prohibit the city from seeking any available remedy in law or equity to enforce the standards set forth herein. (Ord. 18-06, 2-20-2018; amd. Ord. 21-20, 1-3-2022; Ord. 22-05, 4-4-2022)
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