By Teresa L. Benns
SAGUACHE— After searching through records and data received on the Moffat annexation, Land Use Director/County Administrator Wendi Maez has confirmed the acreage contained in the Moffat annexation deal as 109 total acres.
Acreage estimated on the annexation varied from 65 and 102 to 160 acres. No documents were made available either before or after the annexation was approved that showed the actual proposed annexation acreage.
Maez also released the impact statement presented to the county for approval, written and signed by Whitney Justice, owner of the parcel which was annexed. The impact statement did not mention the number of acres to be annexed, either. Justice intends to use the acreage for retail marijuana cultivation and sales for her business, Potch LLC.
The parcel was annexed to the town to avoid paying excise tax to the county, according to Moffat Mayor Patricia Reigel. The county does not contest the fact that by completing the annexation, the excise tax is no longer owed. This despite the fact that in the original ballot initiative for the excise tax and revenues estimated in that ballot, the area to be charged excise tax is the whole of unincorporated Saguache County.
In her statement to Mayor Reigel and the Moffat trustees, dated March 6, 2018, Justice states the town of Moffat will realize “significant economic benefits, which will improve the quality of life for residents of, and visitors to, the town…
“[The] annexation shall benefit the town economically through local job creation, increased demand for goods and services of local businesses, the fee for the annexation, licensing fees for new businesses and through ongoing tax revenues to the town, which will be beneficial to the town and its residents.”
Justice then goes on to describe other benefits to the town to include, “crafting a mutually beneficial annexation agreement, which will include provisions for improving components of the town’s water system, including the redrilling of at least two old town wells which are currently in disrepair, the purchase of town water at a municipal rate, and that petitioner intends to provide such town improvements at no cost to the town.”
Also free to the town are basic services for road maintenance, trash service and fence construction, to be provided by “the subsequent owner’s association of the described land annexed through this petition.”
According to maps attached to the annexation impact statement, the development on the acreage annexed will include 11 five-acre parcels, one two-acre parcel and 13 one-acre parcels, presumably to serve as housing for individuals living on the site to work the cultivation and/or those also wishing to cultivate/sell marijuana and marijuana products. It is not clear whether the Town of Moffat’s residents were fully aware of all the details of Justice’s planned development at the time the annexation was approved.
But despite Justice’s comment in her impact statement that the annexation satisfied Colorado constitutional law, this may not be the case. According to Colorado’s Constitution, (ARTICLE XI, Sec. 1-2, Public Indebtedness):
Section 1. Pledging credit of state, county, city, town or school district forbidden. Neither the state, nor any county, city, town, township or school district shall lend or pledge the credit or faith thereof, directly or indirectly, in any manner to, or in aid of, any person, company or corporation, public or private, for any amount, or for any purpose whatever; or become responsible for any debt, contract or liability of any person, company or corporation, public or private, in or out of the state.
Section 2. No aid to corporations - no joint ownership by state, county, city, town, or school district. Neither the state, nor any county, city, town, township, or school district shall make any donation or grant to, or in aid of, or become a subscriber to, or shareholder in any corporation or company or a joint owner with any person, company, or corporation, public or private, in or out of the state, except as to such ownership as may accrue to the state by escheat, or by forfeiture, by operation or provision of law; and except as to such ownership as may accrue to the state, or to any county, city, town, township, or school district, or to either or any of them, jointly with any person, company, or corporation, by forfeiture or sale of real estate for nonpayment of taxes, or by donation or devise for public use, or by purchase by or on behalf of any or either of them, jointly with any or either of them, under execution in cases of fines, penalties, or forfeiture of recognizance, breach of condition of official bond, or of bond to secure public moneys, or the performance of any contract in which they or any of them may be jointly or severally interested. Nothing in this section shall be construed to prohibit any city or town from becoming a subscriber or shareholder in any corporation or company, public or private, or a joint owner with any person, company, or corporation, public or private, in order to effect the development of energy resources after discovery, or production, transportation, or transmission of energy in whole or in part for the benefit of the inhabitants of such city or town.
While the law is not always clear on what constitutes violations, it appears that Justice, whose limited liability company contracted with the town, was aided in setting up her business by pushing for the annexation and will benefit from the annexation by escaping the county excise tax. By approving the annexation, in spite of the language in the excise tax ballot initiative, Saguache County is also a party to this agreement.
Following the public hearing held April 16, the Moffat Town Board was required by law, prior to the annexation approval, to determine if Potch LLC met constitutional requirements, decide if an election should be held per state law, and determine whether any additional terms and conditions should be imposed. This was not considered at any public meeting prior to approval.
“If 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 [then the government entity] shall terminate the annexation proceeding.”