SAGUACHE — On Tuesday the Town of Moffat submitted their statute-required impact statement to Saguache County Commissioners for the approval of 277 plus acres for annexation to the town, the third annexation in a little over a year.
If the BoCC approves the property for annexation, it, like the rest of POTCH LLC/Area 420, owned by Whitney Justice, will be used to cultivate residential and commercial marijuana. The original petition to annex was approved by the Town of Moffat on Sept. 16. A request submitted to commissioners to waive the impact statement was denied last month.
The petition approval alleges the main benefit for the town in annexing the property is economic. The impact statement submitted to commissioners, which does not identify the author, is much like the first impact statement presented to commissioners last year.
In its approval of POTCH LLC/420’s petition of annexation, the town of Moffat claims the annexation complies with the Colorado Constitution and that at least one-sixth of the area is contiguous with the town. This is disputed by adjacent property owner Shawn Quick who is challenging the proposed annexation.
Quick presented a map highlighting the requested annexation area that raises questions about the property’s qualification for annexation. Justice and the town employ what some call a “flagpole strategy” to claim contiguity with the town, which would require the county to vacate part of County Road 59 to allow POTCH to connect with its desired annexation area.
Quick owns property on either side of County Road 59 that would be vacated, and she refuses to give her permission to abandon her property rights to comply with the annexation. CRS 31-12-104 (a) requires: “That not less than one-sixth of the perimeter of the area proposed to be annexed is contiguous with the annexing municipality.
“Subject to the requirements imposed by section 31-12-105 (1) (e), contiguity may be established by the annexation of one or more parcels in a series, which annexations may be completed simultaneously and considered together for the purposes of the public hearing required by sections 31-12-108 and 31-12-109 and the annexation impact report required by section 31-12-108.5.
“31-12-104, III, 2 (c) Contiguity is hereby declared to be a fundamental element in any annexation, and this subsection (2) shall not in any way be construed as having the effect of legitimizing in any way any noncontiguous annexation.
“31-12-110. Findings (3) A finding that the area proposed for annexation does not comply with the applicable provisions of section 30 of article II of the state constitution or sections 31-12-104 and 31-12-105 shall terminate the annexation proceeding.
Presentation and comments
During the hearing, Moffat Mayor Patricia Reigel told the board that Moffat won’t be providing any water to the proposed annexed area, which will use adjudicated wells for its water supply. Some questioned after the meeting, however, if the wells usage rights were commercial or agricultural and could be used for this purpose.
Commissioners decided not to approve the impact statement until they have conducted a site visit, set for Nov. 7. Crestone Eagle reporter Sandia Belgrade suggested an environmental impact study should be conducted before the impact statement is approved. Baca Grande resident Lisa Cyriacks asked if there was any plan for disposing of chemicals used to treat the marijuana and was told by POTCH representatives that “nothing considered hazardous” is used on the grows.
Virgil Tafoya, who owns property adjacent to Area 420, tried to explain that as long as the land remains as it is, it is county land and should come under the county’s jurisdiction. County Attorney Ben Gibbons skirted the issue and told Tafoya the town of Moffat has approved the annexation and it is now a matter left to the town. The necessary vacation of the road, which would fall to the county, was not mentioned.
Tafoya also objected that the impact statement was not presented according to time constraints required by statute, and no one had the opportunity to review the statement. Gibbons told Tafoya: “They don’t have to give them anything.” Tafoya has fought for over a year to secure pertinent public records from the town to protect his property rights.
A public hearing on the annexation was set to take place Tuesday evening in Moffat.
In December 2018, Salida attorney (Charles) Cain with Cain and Skanulis, PLLC, issued the notice of failure to meet annexation procedures for the first parcel of POTCH LLC land annexed by the Town of Moffat. The letter written by Cain was addressed 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:
The petition submitted by POTCH LLC to the town of Moffat for annexation was not subject to a public hearing as required by law before 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.
“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.
“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.”