Granby sticks to decision to annex to stop pot store
January 15, 2015
U.S. Defense Secretary Chuck Hagel once said, "Democracy is messy."
Tuesday night democracy in action at the Granby Board of Trustees meeting lived up to its billing.
The Board discussed a number of issues including the hot button topic of a recent land annexation done to prevent a retail pot shop from opening in previously unincorporated Grand County.
Board members heard from citizens both pro and con on the issue and debated the legality and the necessity of the annexation. Town Manager Wally Baird sparred verbally with those opposing the annexation, and Town Attorney Scotty Krob gave a full-throated and thorough defense of the Town's actions in legal terms.
During the meeting Tuesday Granby also welcomed new police officer Jeff Heitzenrater to the community and swore in new Court Clerk Karen Newman.
The debate surrounding the land annexation has been ongoing for some time now. In December the Board voted to approve the annexation of the land, located on U.S. Highway 40 near Middle Park Medical Center – Granby. The Board annexed the land to prevent a retail marijuana store from being opened on the property by MMK Limited LLC.
The town of Granby has previously passed regulations preventing the opening of such facilities in town, but they are permitted in unincorporated Grand County.
After the annexation was approved in December, a motion to reconsider was filed with the Town of Granby. Robert Hoban, legal counsel for MMK Ltd., was at that. Board meeting and made it plain to the Board of Trustees that annexing the land would result in the filing a lawsuit.
Tuesday night's discussion began with owner of MMK Limited, Kevin Speier, addressing the board. Speier presented the board with a petition with 96 signatures opposing the annexation.
"I just would hope that you all could put aside moral arguments and pay attention to the law and not use taxpayers' money to take us to court."
Board member Charles LaBrake questioned the validity of the signatures.
"On all these names here that you have on this petition, how many are people that live out there?" he asked.
"Out where?" relied Speier.
"In the area that we are talking about," answered LaBrake.
"Specifically 91 are citizens within the city limits of Granby," said Speier.
"How many live out there?" LaBrake asked again.
"All of them are within a two-mile radius," replied Speier.
"But how many of these people will be affected as a homeowner out there?" LaBrake pressed.
"I honestly can't say," Speier said.
"Because we have a lot of letters and emails that have been sent of the homeowners out there that don't want it," LaBrake said.
"And I have double the constituency of your own city…" said Speier.
"But we have to consider the people that live out there," said LaBrake, cutting Speier off.
"These people live out there. These people live here," said Speier. "These people live in your city. These people live within the radius of the affected area. … Every single one of them except for five. So we have double the constituency…"
"How can you double the constituency, there's only so many people that live here," said Town Manager Wally Baird.
"You all provided 40 emails in order to draft this ordinance and pass this ordinance," responded Speier. "I have provided double the opposition of the citizens of Granby."
Trustee Robin Trainor asked if the signatures had been verified. Town Clerk and Recorder Deb Hess informed her that Speier had given her the petition that evening and she had not had an opportunity to verify the signatures yet.
The Board also wanted to know how Speier had presented the petition to citizens and what specifically he said to them while presenting the petition.
"How many of these are attorneys?" asked Town Manager Wally Baird. "I ask that question because you present the opinion of your attorney. We happen to have an attorney that has a very different opinion. Your surveyor is not an attorney either and he is not qualified to enter a legal opinion on what is or what is not lawful. And several times during your presentation you said, "unlawful annexation."
"Presumed unlawful," interjected Speier.
"You did not say perceived unlawful when you took this petition to people, who have called me and asked me what it was all about. Did you?" asked Baird.
Speier responded saying, "I let them know that according to my attorney …"
"No you said this was an unlawful annexation," said Baird. "You didn't say, 'according to your attorney.' You said this was an unlawful annexation"
"And according to yourself, who is to say it is or isn't because neither one of us is the district judge," replied Speier.
As the rhetorical tenor of the debate escalated, Town Attorney Scotty Krob recommended the Board allow the applicants to make whatever presentation they wanted and informed them he would respond afterwards with his own legal explanation.
Local land surveyor Tim Shenk addressed the board, arguing on behalf of MMK Limited that the land in question cannot be annexed because it falls under a specific annexation exemption. The Board asked Shenk if he was being paid for his testimony Tuesday evening, which he said he was.
That exception referenced by Shenk and featured in the Motion to reconsider reads, "No enclave may be annexed … if … Any part of the municipal boundary or territory surrounding such enclave consists at the time of the annexation of the enclave of public rights-of-way, including streets and alleys, that are not immediately adjacent to the municipality on the side of the right-of-way opposite to the enclave."
Attorney Scotty Krob addressed the legal issues surrounding the annexation, taking special care to discuss the annexation exemption highlighted in the Motion to Reconsider.
"You have been presented with a motion to reconsider that is legally inaccurate and misleading," said Krob. "Likewise, Mr. Shenk's analysis, while his surveying work is fine, his legal analysis is also incorrect and misleading."
Krob addressed the Motion to Reconsider point by point, providing legal arguments in response to those presented to the town in the Motion.
"The statute that relates to enclaves does not use the word contiguous, it does not use to word adjacent or adjoining," said Krob. "It just uses the words, 'that it has to be entirely surrounded by the town's boundaries."
Krob pointed out that neither he nor the legal counsel for MMK Limited has cited a prior case that supports their claims.
"There is no Colorado appellate case; neither the Colorado Court of Appeals or the Colorado Supreme Court has addressed this enclave within an enclave situation," explained Krob. "It has been addressed by one court in Colorado. It is a District Court case out of the City and County of Boulder… The only case we have says the position you (the Board) have taken so far is correct and they are incorrect."
The case referenced by Krob is the "Virginia Hoyle & Ira Hoyle Family Trust versus The City of Louisville". That decision was rendered in 2003.
Krob also addressed arguments related to the annexation exemption.
"You have got our parcel, you have got the Highway 40 right-of-way and across the street you have stuff that is in the county. But this is not the boundary we are counting on to surround that doughnut, Lot 9. The boundary we are counting on is the larger Granby boundary … That is the surrounding boundary. It is the exterior boundary of Granby that has to surround the property … That is why this exception simply doesn't apply."
Krob closed his presentation to the Board saying, "Whether you want to leave the annexation in place or not is a policy decision that you should make. But both the legal arguments that are presented in the memo as well as Mr. Shenk's legal arguments are flawed and I am more than happy to defend your decision to proceed with the annexation."
After Krob's presentation Surveyor Tim Shenk asked whether the annexation exception applied because the Town annexed a single lot and not the entire enclave of unincorporated Grand County directly adjacent to the property.
Krob responded saying, "No because the key wording that you skipped, 'the surrounding boundary' is not Highway 40, whether it's just Lot 9 or the entire enclave. Highway 40 is not part of the surrounding boundary the town relies on."
The Board moved not to reconsider the annexation and the motion was passed unanimously.
After the vote Speier thanked the Board for their time and acknowledgement. The Board thanked Speier and his business partner for their demeanor and professionalism.
Legal Counsel for MMK Limited has stated previously they will be filing a lawsuit against the Town regarding the decision.