Attorney challenges legality of Moffat annexation

Courtesy photo Moffat, Colorado

SAGUACHE COUNTY— A Salida attorney claims the Moffat annexation of Potch, LLC fails to meet statutory and constitutional requirements, and in order to avoid legal challenge Saguache County and the Town of Moffat should correct the situation.
(Charles) Cain with Cain and Skanulis, PLLC, issued the notice of failure to meet annexation procedures for land owned by Potch LLC Tuesday to Saguache County attorney Ben Gibbons and Saguache County commissioners, also to the Town Board of Moffat and Mayor Patricia Reigel. In his letter, Cain wrote:
“Our firm was retained by residents of the Town of Moffat and Saguache County to review the Potch LLC annexation. Upon review, we determined Moffat’s annexation of the land owned by Potch LLC did not meet the statutory and constitutional requirements for annexation—significantly as to notice requirements, hearing settings and determinations of eligibility for annexation.
“We believe the failure to meet these requirements may leave the annexation open to legal challenge. We bring these issues to your attention to provide an opportunity to correct any deficiencies and comply with all requirements for future annexations.” Cain then lists the grounds on which the annexation failed to meet statutory and constitutional requirements.
 • The petition submitted by Potch LLC to the Town of Moffat for annexation was not subject to a public hearing as required by law prior to the passage of the resolution May 1, 2018, to annex the property. The annexation resolution was therefore “defective on its face,” Cain states. A public hearing was held, but it did not examine the petition to determine if it met statutory and constitutional requirements.
• “Further, there are specific notice requirements of the clerk, including a publication once a week for four successive weeks, with the first publication at least 30 days before the hearing in a newspaper of general circulation that includes: (1) a copy of the resolution or petition; (2) date, time, and location of the set hearing; and (3) that the purpose of the hearing is to determine and find whether the proposed area meets the applicable constitutional and statutory requirements. See C.R.S. § 31-12-108(2).
“Proof of this publication must be returned once the publication is completed with a certificate by the owner, editor or manager of the newspaper before any hearing is held. Id. This copy of published notice must then be sent to the board of county commissioners and the county attorney. Id. There is no indication of whether Moffat’s clerk published the requisite notice of the hearing 30 days before, for four successive weeks, in a newspaper of general circulation. Currently, we only have documentation of a single publication in the Crestone Eagle in April 2018, prior to the adoption of the Moffat resolution on May 1, 2018.”
• Prior to any hearing for annexation, a municipality is required to prepare an impact report concerning the proposed annexation at least 25 days before the set hearing to consider whether the petition meets constitutional and statutory requirements. Further, a municipality must file one copy with the board of county commissioners governing the area within five days of the set hearing.
“Here, an annexation report was prepared on or about April 17, 2018 — one day after the retroactive hearing designated, not 25 days before. Further, this report was not filed with the Board of Commissioners of the County of Saguache until May 23, 2018 — five days after the retroactive hearing designated and not five days before.
• A series of hearings were never held and several resolutions were never passed regarding various aspects of the annexation. A hearing was not held, for example, to determine whether the petition complies with section 30 of article II of the Colorado State Constitution regarding the owners of the land and the geography of the annexed.
“Further, annexation ordinance 2018-09 does not include the specific findings that the petition is in compliance with the statutory and constitutional requirements for annexation. It only references Moffat’s initial resolution 2018-7 that was limited to findings of petition compliance under section 31 12-107, and expressly stated that Moffat had yet to make a determination as to the eligibility requirements. …[Moffat] approved the annexation in an apparently unnoticed hearing only fifteen days after entering Resolution 2018-7 on May 15, 2018… More concerning, this ordinance is still not published on Moffat’s Town Board and Agendas page, despite being adopted on or about May 15, 2018. And, it was not recorded with the County Clerk’s office until Aug. 15, 2018.”
• “Annexation may only occur when a resolution adopted by the governing body of an annexing municipality pursuant to section 31-12-110 determines that: (1) the constitutional and statutory requirements have been met; (2) an election is not required under section 31-12-107(2); and (3) that no additional terms or conditions must be imposed. See C.R.S. § 31-12-111.
“Further, no annexation shall be effective until the annexing municipality filed for recording three certified copies of the annexation ordinance and map of the area annexed containing the legal description of such area with the county clerk and recorder of each county affected. See C.R.S. § 31-12-113(2)(a)(II)(A). Here, again ordinance 2018-09 does not determine whether the statutory and constitutional requirements for annexation have been met or whether an election is required. See Exhibit E. Further, any recording of this ordinance did not occur until Aug. 15, 2018, months after this ordinance was adopted.”
• “Further, it is important to note, the Supreme Court of Colorado has recognized any jurisdictional time requirements for challenging annexation may be tolled when notice is insufficient. See Val d’Gore, Inc. v. Town Council of the Town of Vail, 566 P.2d 343, 344-45 (Colo. 1977) (finding an error in the property description in the annexation petitions, notices, and ordinance tolled the jurisdictional deadline to file an application for review as they prevented notice to interested parties).” Discrepancies in the maps submitted to the county for the annexation (as well as a number of yet-unconfirmed estimations of the actual acreage annexed in addition to the insufficient notice to Moffat residents) would seem to satisfy the Supreme Court’s specifications here for an application for review.
“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.”

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