MOFFAT — Last week, a letter presented to Saguache County Commissioners by Salida attorney Benjamin Kahn regarding the third annexation proposed by Potch LLC/Area 420 was excerpted in the Center Post-Dispatch for readers and citizen reports on public hearings in Moffat also were noted.
This week will focus on other parts of the 10-page letter detailing problems with the annexations. Kahn’s law group, the Conundrum firm, was retained by the Moffat Group and its members with respect to the Second Annexation Petition, the Third Annexation Petition, the Second Moffat Town Public Hearing and the Saguache County Public Hearing.
The letter describes the Moffat Group as “an informal collective of citizens in the Town of Moffat and Saguache County that are impacted by the latest annexation proposals by Potch, LLC (“Potch”).” The group consists of Shawn Quick, Carlos Silva, Francisco Silva and Robert Tafoya, who own land adjacent to both of the new proposed Potch annexations. Others may join this group in the future.
The Moffat Group objects to the proposed but not yet completed Second Annexation Petition — a small island of privately-owned land — but is not currently challenging it. The focus of Kahn’s letter was to: “memorialize the Moffat Group’s objections to the Second and Third Annexation Petitions …”
The Moffat Group appeared before commissioners at their Nov. 19 meeting to formally request that the Saguache County Planning commission review impact statement for the annexation and the annexation request.
First annexation deficiencies
The First Annexation relied on a plat dated July 13, 1910, which was not examined further to document subsequent changes or exclude possible errors. There was no title review to determine if the original lots included deed restrictions, which would prohibit further subdivision., Kahn observed in his letter. Regardless of these oversights, the area was annexed. Then Potch secured approval from the Town of Moffat to subdivide Area 420 on Feb.5, 2019 (Ordinance No. 2019-02).
Kahn notes that the registered agent for Potch initially was a minor named Lilly Ashton Justice. The registered agent did not change to Whitney Justice as a legal matter until Dec. 13, 2018. So at the time of the First Annexation Petition, Kahn concludes, “Whitney Justice therefore was not the Manager or even Registered Agent of record for Potch. Yet Whitney Justice signed the First Annexation Petition in March 2018 as the purported “Manager” of Potch and claimed legal authority to act on behalf of Potch.”
For all of these reasons, the Moffat Group and its members reserve the right to challenge both the First Annexation on these grounds as well as the subdivision of the Area 420 Annexation “to the extent that the carve-ups violate historic deed limitations.” Other issues related to the annexation are addressed below.
From Kahn’s letter: “The Second Annexation Impact Report concedes that water needs for the second proposed Potch annexation will require the use of Town Well No. 5 and a Water Resources Agreement. The Water Resources Agreement, in turn, provides that Potch will create its own “Private System” immune from Colorado department of public health & Environment design approval standards.
“In addition, Potch negotiated the right to charge its own tap and service fees to customers within the Private System and the Town is precluded from charging such fees to residents within its own annexed territory. And as the Moffat Group understands it, Potch already has extended an illegal water pipeline to the second proposed annexation area.
“But pursuant to the governing Water Resources Agreement dated Oct. 1, 2019, there may not be enough water to satisfy Potch’s growing demand in the Area 420 Annexation alone – in which case ‘Potch and the Town shall mutually agree upon the location(s) of one or more additional wells (whether currently existing or not) . . . .’ Potch essentially has manipulated the Town of Moffat to guarantee its future water supply needs without any type of projected use or feasibility study, while maintaining its right to control water utilities within annexed areas and solidifying its ground as a self-regulating and semi-sovereign entity in the embrace of Moffat.
“Most importantly, the Water Resources Agreement applies only to the ‘Colorado Area 420 subdivision in the Town’ which is not defined in the Agreement but is defined in Ordinance 2019-12 as an area limited to the First Annexation Petition and the Area 420 Annexation. In fact, the Water Resources Agreement does not even envision or account for future annexations like the Second Annexation Petition.
Given the fact there are no fire hydrants in the town, a problem which contributed to the October Moffat fire catastrophe, the above statements are very concerning. The October fire spread quickly and was difficult to extinguish partly because the water supply quickly ran out and water to fight the fire had to be trucked in from various sources.
In addition to the water issues, the letter also explains how the Town failed to meet a statutory condition that it provide an adequate statement regarding the effect of annexation on the local public-school district.
Commissioner obligations to electorate
Kahn reminds Saguache County Commissioners and County Attorney Ben Gibbons that “Commissioners and the Saguache County Sherriff’s Office issued a joint statement on or about March 20, 2018 that marijuana cultivation in the County had led to challenges associated with “environmental degradation, blight and land use violations.”
“The County therefore initiated new land use control measures and requested the support of its local government partners like the Town of Moffat. The County also promised citizens that it would look into increasing its oversight over marijuana cultivation and extraction facilities… any attempt to proceed with the third Potch annexation will simply invite conflict with the Moffat Group’s members or other concerned citizens in Saguache County and/or the Town of Moffat.
“County Commissioner decisions with respect to the proposed Potch annexations are critical to maintaining the culture, way of life, public health and safety of Saguache County residents like your constituents in the Moffat Group. On behalf of the Moffat Group, I therefore urge you to reject the Faustian economic deal offered by Potch and to focus instead on longstanding efforts in the community to improve the overall standards of living and quality of life experienced by Saguache County residents.”
At the second public hearing attended by members of the Moffat group. It was observed that members of the town were all allowed to comment on the desirability of the annexation. Regarding the county’s approval of the annexation, former mayor now town trustee Brian Morgan reportedly commented, “We are a town — we don’t answer to the county.”
Calls last week to the town of Moffat were not returned.