by Matie Belle Lakish
On August 23, only one day after presiding over the Crestone Fire Protection District Hearing, Judge Martin Gonzales supported the Saguache County Commissioners’ decision to allow approval of the district to proceed to a vote. This means that registered voters in the proposed district will be able to determine whether they choose to support or reject the ballot initiative to form a new Crestone Emergency Services District. The issue will be on the November 1 ballot. In addition to the approval or rejection of the new district, voters will decide whether or not to approve two Tabor Amendment issues, and also choose members for the Board of Directors of the district.
District Judge Gonzales presided over the review in the Saguache County Courtroom on August 22 with numerous community members present. The Judge reminded citizens frequently that, “My job is to review what the Commissioners did and determine whether the Public Hearing was adequate.” Many citizens did not appear to be aware of that role, and brought concerns to the courtroom as though it were the Public Hearing.
Throughout the review, Judge Gonzales referred to the transcript of the Public Hearing held before the Saguache County Commissioners on July 12, a document of well over 100 pages, and used it as the basis for his decision on whether the Commissioners had adequately addressed the issues relevant to the proposed district. He also took testimony from a number of concerned citizens, both those in favor and those opposed. Proponents of the district were represented by Attorney Richard Lyons, Sandra Hammond, and Akia Tanara. Opponents were represented by Jim Hawkins, as well as others from the community, including Christine Chandler and Diane Dunlap. The judge was also asked to rule on an injunction brought by Robert Garnett and Robert Banaszek over the legality of the POA Board’s proposal to transfer POA assets in the form of trucks, equipment and stations to the proposed district, should voters approve the new district in November.
This proposed transfer of assets seemed to be the major sticking point for most of the objectors. Jim Hawkins, in his testimony, outlined the objection when he explained that the Service Plan for the new district relied heavily on an agreement to transfer the trucks and equipment, and that without that equipment, the proposed district is not financially viable. He, and others, contend that the Commissioners should have waited until after the POA membership had voted on the asset transfer before approving the district. Some, especially, Garnett and Banaszek, seem to believe that it is not legal for the POA to transfer the equipment, or even to lease the equipment to the proposed district.
Another issue brought by Diane Dunlap related to the notice given to owners. She noted that owners live all over the world, and that the timeframe between the mailing of the legal notice and the Public Hearing was too short.
After reviewing the transcript of the Public Hearing, and listening to testimony from the public, Gonzales made his decision. In it he noted that, “The Court standard of review is to determine whether the BOCC was ‘arbitrary and capricious and therefore unreasonable.’” Highlights of that decision, quoted in part, with their original numbers, include:
2) “The Petition for Organization was signed by at least 200 of the taxpaying electors of the proposed District.”
3) . . . “The Petition is sufficient and in conformity with the requirements.”
6) “The assertions of the opponents are numerous and in large part are quite simply matters of political or policy disagreements with the proponents and the BOCC decision.”
8) “The Service Plan” . . . “was approved by the Board of County Commissioners of Saguache County” . . . “on July 12, 2011 and was issued timely, being not less than 20 days and duly published in a newspaper of general circulation in the proposed District as required by law.”
13) “Opponents (particularly, Ms. Dunlop and Mr. and Mrs. Chandler) seem to argue that “financial ability” and “capability of providing economical and sufficient” cannot be met without prior approval of Baca Grande Property Owners Association (POA) voters.” . . .  “This issue was specifically addressed by the BOCC who determined this not to be an impediment to approval,” . . . “and must be reviewed in conjunction with the BOCC determinations regarding the establishment of a mill levy.”
14) “The argument that the exclusion of out-of-state property owners from the vote amounts to “taxation without representation” is without merit.  While this Court understands the point, it is contrary to well settled law that this statutory scheme is proper.”
“IT IS HEREBY ORDERED THAT:
1. All requests for exclusion (“opt-out”) filed with the Court are denied as either not being in conformity with Sec. 32-1-305(3), CRS, or, in the alternative, because such requests failed to demonstrate that such exclusions would be in the best public interest as opposed to personal interest.
2. The decision of the Board of County Commissioners of Saguache County was not arbitrary, capricious or unreasonable because such decision, which affirmatively found that the Service Plan met each of the criteria set forth in C.R.S. § 32-1-203.
3. The motion to strike and dismiss the motion for a preliminary injunction against the Property Owner’s Association is granted, such injunctive relief against the Property Owner’s Association is not within the scope of this narrow statutory proceeding.”