Town of Moffat & Saguache County put on notice about annexation procedures for Potch LLC

by Lisa Cyriacks

Residents of the Town of Moffat and Saguache County have retained the services of Salida law firm Cain & Skarnulis PLLC to review the Potch LLC annexation. In a letter dated December 3, 2018, the law firm puts the Town and Saguache County on notice that statutory and constitutional requirements for annexation were not met.

The letter details specific deficiencies in the process as conducted by the Town.

Specific requirements and procedures can be found in the Municipal Annexation Act of 1965.  The Act requires specific notice requirements of the town clerk, requiring that public hearings be scheduled not less than 30 days and not more than 60 days once the town council determines by resolution that a petition for annexation substantially complies with statutory requirements for annexation.

The resolution establishing a hearing date was set forward in Moffat Resolution No. 2018-7 dated effective May 1, 2018. However Resolution 2018-7 backdated the public hearing to April 16, 2018 at 6:30pm.  Based on statutory requirements the hearing should have been held between May 31, 2018 and June 30, 2018.

A public hearing is an opportunity for interested individuals to present their views to a board and to participate in an exchange of views with board members. Adequate notice is a very important requirement to allow impacted residents and property owners sufficient

time to ask questions and to bring their concerns to the attention of trustees prior to decisions being made.

A public hearing achieves, at the very least, the exchange of information and opinions on a topic—in this case whether or not annex property owned by Potch LLC. In the petition for annexation, Potch LLC proposed to develop approximately 100 acres for residential, commercial and commercial marijuana use.

Adjoining landowners and residents contend that there was little or no notice of the annexation and the corresponding decision to expand marijuana operations in the Town of Moffat. Details in the letter from Cain & Skarnulis PLLC seem to support this assertion that notice requirements were not met.

The letter goes on to question the process by which the town trustees determined the eligibility of the unincorporated property for annexation. The annexation ordinance adopted by the town does not include the specific findings that the annexation petition is in compliance with the statutory and constitutional requirements for annexation. Further, no annexation is effective until the annexing municipality files three certified copies of the annexation ordinance and map of the area annexed including the legal description of the area with the County Clerk and Recorder. There is no legal proof that the required recordings were made.

The letter concludes: “Ultimately, the Town of Moffat did not comply with the requirements for annexation of the land owned by Potch LLC. This analysis is intended to draw attention to these past deficiencies for correction and to assist with future compliance in annexations. We understand there is a significant amount of development activity occurring at the annexed area and an apparent attempt by the Town of Moffat to expand the number of commercial cultivation farms in the area in question. We are very concerned that this activity is occurring at a time when the annexation is clearly deficient and subject to legal challenge.

“Finally, please note that this letter is not intended to provide a comprehensive list of issues relative to the Potch LLC annexation.”

Mayor Patricia Riegel comments, “I am doing the best that I can.” She goes on to outline the challenges the Town has had with staffing, including legal representation, as the Area 420 project proceeds apace. The Town is currently searching for a new attorney.

This expedited pace of development without apparent consideration for legal requirements is precisely why residents are concerned about the proposed development. They contend that Moffat is pushing forward with plans to expand marijuana business under their own rules and for the benefit of a select few insiders.

The Town of Moffat does not have regulations or other policy guidance for land use development. As acknowledged by the Mayor, there is no planning commission or Master Plan.

Saguache County has not provided any oversight or review of the annexation process as required under statutory rules that ensure coordination with local, county, state and federal regulatory agencies.

The Town’s website reinforces this relationship between the town, county and state by refering applicants for building permits to all three agencies. To quote: “The State of Colorado, County of Saguache and Town of Moffat have certain requirements, which must be met when constructing buildings intended for human occupancy.  The purpose of these requirements is to protect the health, safety and welfare of the occupants and any person who might enter these structures.”

At its December 12, 2018 meeting the Town approved four licenses for hemp cultivation and two additional retail marijuana licenses bringing the total for approved business licenses for retail marijuana cultivations and marijuana-infused products to 16.

A second public hearing for the proposed re-subdivision of parcels within Area 420 is scheduled for January 8, 2019 at 6:30pm. The hearing will be at the Town Hall located at 401 Lincoln in Moffat. For more information or to arrange to review the proposed subdivision changes call 719-256-4538.