Saguache County legally challenges Moffat annexation

The Crestone Eagle • April, 2020

by Lisa Cyriacks

Citing health and safety concerns, Saguache County Commissioners have filed a legal challenge to the most recent Potch LLC annexation by the Town of Moffat asking for a court review of the annexation.

In November 2019 the Saguache County Commissioners denied the Town’s request for a waiver to submit the usual Impact Report. Over the past couple of months the County Commissioners have questioned whether or not the Impact Report, as submitted, adequately addresses health and safety issues, water supply, utilities, costs of law enforcement and fire protection among other concerns.

County Attorney Benjamin Gibbons, in a letter dated February 25, 2020, put the Town on notice and outlined the County’s concerns about the proposed development of the property for industrial purposes.

The letter reiterates the concerns the Commissioners have expressed for the health and safety of Saguache County citizens related to the proposed development. It also highlights that the stated intention behind the proposed annexation by the Town is to avoid County regulations and County enforcement of anticipated marijuana operations on the annexed property.

The Commissioners have never approved the Impact Report submitted in early December. Additional

information was requested that has not been provided. Specifically the Commissioners have concerns about the Water Resource Agreement would provide adequate water for the 320 acres proposed for development, the impact of the annexation on local schools, and how sites for residential purposes would be developed.

The letter also re-states the Commissioners’ earlier decision that the County will not cede any rights to control of County Road 59 essential to a flagpole annexation.

The letter concludes that the Commissioners contend that the Impact Report does not meet the minimum requirements imposed by statute for annexations nor do the procedures followed by the Town comply with the requirements under statute for annexation.

In a more recent controversy surrounding Colorado Area 420, the Town of Moffat attempted to claim ownership of County Road 59 by filing for the Highway User Tax Funds (HUTF) allocated for maintenance of the road.

Randall Arredondo, Saguache County Road and Bridge Supervisor, reported to the Board of County Commissioners on March 3 that his office had been contacted by CDOT that Moffat had filed for the HUTF for that section of County Road 59. Arredondo notified CDOT that the County had not relinquished any portion of County Road 59.

CDOT agreed to have the Town of Moffat change their report resulting in the County retaining the funds needed to maintain the county road in its entirety.

The Town’s response

At the Town’s January meeting, the Town’s Attorney represented to the Town Trustees that by virtue of the annexation, County Road 59 became a town road. The annexation could proceed without the consent of the owner of the Right-of-Way, i.e. Saguache County.

At that meeting, the Town approved Ordinances 2020-01 and 2020-02 approving the annexation of the Potch LLC property, disregarding the objections by Saguache County.

In December, concerned citizens, organized as The Moffat Group, secured an attorney to formalize their objections to the proposed annexation. Ben Kahn of The Conundrum Group LLP summarized the concerns of The Moffat Group as the belief that Potch LLC hijacked Moffat’s local government for commercial purposes and is pursuing a business plan as a workaround to undermine Saguache County’s marijuana licensing requirements and land use restrictions to the detriment of public health and safety in the county. The letter also explains at great length the legal problems with how the Town proceeded with the three annexations.

Potch LLC manager Whitney Justice and the Town Trustees employed a “flagpole strategy” to claim contiguity with the town, in order to make the annexation legal. The Board of County Commissioners, on January 21, refused to relinquish ownership of County Road 59, apparently calling a halt to the plans for annexation.

At the Town’s March 3 meeting the Trustees decided to ignore the letter from the Saguache County Commissioners asking for reconsideration of the ordinance approving Potch LLC Annexation.

At that same meeting preliminary discussions indicated that Town Trustee Ken Skoglund would be hired to maintain County Road 59 for six months until the Town received HUTF monies to take over maintenance.

The proposed land, 320 acres, is intended for subdivision into commercial entities, “of non-cannabis-related and legal cannabis-related commercial entities”. The property would expand the existing 100-acre Area 420 Commercial Cannabis Park.

At the first public hearing, Moffat and county residents commented for the record about the lack of infrastructure and concerns about being overwhelmed by outside developers.

Parallels that have been drawn to the mining days of tent cities are not too far off. A quick tour of the existing Area 420 reveals canvas plastic fence liners, metal and plastic greenhouses and not much else. Workers appear to be housed in RVs, sheds, shipping containers, and tents or off-site. Nothing is permanent except the fence posts.

The list of concerns goes on and includes: noise from generators that run at night, barking dogs, loss of the views, dust from cleared lots affecting air quality, increased traffic at all hours of the day and night, light pollution, contamination of the water table by waste disposal from essentially industrial greenhouses.

The County is hoping that along with the court filing, a preliminary injunction will be imposed ceasing any development on the most recent annexation until a judge can issue a ruling.