Council allows developer to pull building permits before recording deed restrictions, to be recorded at certificate of occupancy

The Whitefish City Council on July 28 voted to let the developer of the Alpine 93 & 40 project apply for and receive building permits before the rental-unit deed restrictions required by the Legacy Homes program are recorded, provided the deed restrictions are recorded and in place before certificate of occupancy is granted.

The motion, moved from the dais and seconded by Councilor Caltabiano, responded to a developer request that permit issuance be timed to avoid construction delays while staff, the developer and the Whitefish Housing Authority finalize language and administrative arrangements for how rental deed-restricted units will be administered. The council approved the motion unanimously.

City staff described the Legacy Homes program history and the procedural issues. Angie (planning staff) reminded council that the Legacy Homes program was adopted in 2019 to require or incentivize affordable units with discretionary approvals; state House Bill 259 in 2021 made parts of the program voluntary, and the city has since been using model deed restrictions and administrative procedures to implement rental and ownership restrictions. Under current administrative procedures, the housing authority typically handled income qualification and annual recertification; developers or property managers handled credit and background checks in some arrangements.

Developer Alberto Valner said he submitted draft deed restrictions and worked with city staff on redlines but was concerned that finalizing and recording the documents before pulling building permits would stop site work and delay a project that is ready to begin excavation. Rhys Getz, acting director of the Whitefish Housing Authority, said the authority currently administers several Legacy Homes units (she said 11 units under current contracts) and is open to continuing administration; she said the housing authority can also operate under different administrative-fee structures and is willing to work with the developer and city on a revised process.

Staff proposed a practical compromise: allow building permits to issue now and require the recording of deed restrictions before certificate of occupancy, while also scheduling a follow-up meeting among staff, the housing authority and the developer to align administrative procedures going forward. Councilors who spoke said they supported that approach to avoid holding up construction while ensuring the deed restrictions and enforcement mechanisms are in place before occupancy.

Councilor Andy made the motion to permit the building permits to issue with deed restrictions recorded at certificate of occupancy; the motion carried unanimously after a second. The council directed staff to coordinate with the Whitefish Housing Authority and return with any further changes to the Legacy Homes administrative procedures if needed.

The action is procedural: it does not change the Legacy Homes program requirements, which still mandate deed restrictions and, if the density bonus is invoked, administration consistent with the program's procedures. It does change the timing of when deed restrictions must be recorded in this project so that construction can proceed without delay while protecting the city's ability to enforce affordability before occupancy.