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Legal notice? Use the time machine

Unbeknownst to town residents, staff with the Town of Pagosa Springs apparently have a time machine that allows them to determine events ahead of time and then return to the past in order to report on what happened in the future.

Readers of this week’s edition of The SUN might notice a curious item in the legal notices and Too Late to Classify sections that states, “The first reading of Ordinance No. 769 (Series 2012) was completed at the Pagosa Springs Town Council Meeting held on April 19, 2012 at 12:00 p.m. in the Council Chambers at the Town Hall.”

In case readers missed the masthead of the edition currently read, April 19 is today. And, if readers picked up their copy of this paper just as The SUN offices opened, “12:00 p.m.” is four hours from now.

Of course, the town does not have a time machine, but what it does have, apparently, is a willingness to cut some legislative corners with the assumption that Ordinance 769 will be approved by council on first reading and won’t be tabled or rejected.

Ordinance 769 amends a land lease and geothermal water tap agreement between the town and the Southwest Land Alliance (SLA) following the town’s desire to shift the location of geothermally-heated greenhouses from the 1.8 acres originally allocated for the proposed project to .7 acres in an area just east of that initial location.

Although the greenhouses (domes) are part of a project under the auspices of the Geothermal Greenhouse Partnership (GGP), the SLA assumed fiscal agency for the project back in 2009, assuming the land lease and geothermal water tap agreement.

The town can only provide, assume or amend a lease through council’s approval of an ordinance.

An ordinance is legislation considered by council that requires two votes — one for its first reading and another for a second reading. The ordinance must be passed by council on first reading before moving on to a second reading.

Furthermore, following the approval of an ordinance on first reading, the town is required by law to publish the fact that the ordinance was approved on first reading as well as the title of that ordinance (which must be as descriptive as possible) as well as alert readers that full language of the ordinance is available with the town clerk.

The corners cut by town staff involve a section of the town’s own Home Rule Charter as well as sections of Colorado Revised Statute (C.R.S.) regarding the process and publication of ordinances.

Section 3.9.B of the Town Charter (“Procedure for Ordinances”) states: “Upon approval on first reading, the title only of the ordinance shall be published at least ten (10) days prior to each Council meeting at which it will be considered on second reading.”

The operative term in that section is, “Upon approval on first reading,” meaning that publication of the ordinance follows approval, aligning with C.R.S. 31-16-104-106. Both are clear — publication occurs after the adoption of the ordinance on first reading.

When asked yesterday morning about the notice for Ordinance 769, Pagosa Springs Town Manager first responded, “That is supposed to be a notice that the first reading will take place at the meeting.” However, when SUN staff clarified that the notice submitted read that the ordinance was completed at the Pagosa Springs Town Council Meeting held on April 19, 2012 at 12:00 p.m., Mitchem said he would ask the town clerk about it and would then get back to SUN staff.

About 30 minutes later, Mitchem asked SUN staff to meet with him in Town Hall where he would hand over, “an additional brief.”

That “additional brief” was a revised version of Ordinance 769 that not only amended the lease and tap agreement, but also asks to terminate those standing agreements with the SLA.

Last weekend, the SLA (through its liaison Amelia Whiting) sent an e-mail to Mitchem proposing, “Instead of negotiating and accepting the amended ground lease and water tap agreement from the Town, SLA and the Town would simply terminate the lease and tap agreement, freeing GGP Inc. to sign directly with the Town.”

The transaction proposed by the SLA would essentially eliminate a step in the process that would assign the land lease and geothermal water tap agreement to the GGP (council would still need to approve those transfers by ordinance).

After Mitchem provided the amended ordinance document, SUN staff sat with him and Town Planner James Dickhoff to hear answers regarding the notice publication.

According to Mitchem, a grant that the GGP had applied for was facing a May 1 deadline and, given the 10-day notice period stipulated by town charter and state statute, a second reading of the ordinance would not be heard until the May mid-month meeting (May 17), since publication of the first reading’s approval would not occur until May 26.

“They (the GGP) want to get these matters settled,” Mitchem said. “They believe that their chances of a successful grant application are greatly increased if they complete this by May 1.”

Considering that the GGP had not only been aware of needing to revise its lease as early as mid-January (to accommodate plans for a proposed Fifth Street bridge), but had expressed its willingness to move the project (as reported in the Jan. 19 edition of The SUN), Mitchem was asked why the ordinance had not been introduced weeks or months earlier.

Mitchem replied that the town had been waiting for an agreement between the GGP and SLA. “We were just trying to be responsive to their needs,” he said.

Returning to the issue of publishing news before it happens, both Mitchem and Dickhoff responded that, because The SUN publishes just once a week, timing of presenting notices for ordinances can be problematic, especially when the town desires to expedite matters.

“It’s not an unusual practice for us and it helps us. When someone comes to the town and needs something done, they might have to wait two weeks or more. We’re just trying to be responsive to their needs,” Dickhoff said.

“Historically, the town has published notices in anticipation of a positive vote from council,” Mitchem added, claiming that he knew of only one case when council voted to defer a matter, nullifying the prior notice.

“We had to change that (notice),” Mitchem said.

Both Mitchem and Dickhoff said that the practice of publishing a priori notices had been endorsed by the town’s attorney Bob Cole.

“Other communities do this all the time,” Dickhoff added.

“We had clear direction from council,” Mitchem said. “We anticipate that they will have a positive response on that (the amended agreements).”

Council will be asked to consider Ordinance 769 during the mid-month meeting today at noon in Town Hall. While residents of the town might note that no laws were broken when the town published a notice with a predetermined outcome, fans of Dr. Who may want to enumerate the various time-travel laws violated.

jim@pagosasun.com

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