Red tape and out-of-control government bureaucracy once again threatened to shoot down a small business in Pagosa Springs (the Flying Burrito on 7th Street), forcing town council to take steps to reign in another one of its subordinate organizations and hope the fire was put out before anyone else got burned.
To put the situation in perspective, first, the Historic Preservation Board placed so many demands on David Stuard that he pulled out of a plan to buy the DeVore house on Lewis St. and put in a high-end restaurant at the old San Juan Supply building next door, then the Town Tourism Committee forced the Chamber of Commerce to back out of running the Visitor Center by shifting funding to external marketing and the Reservoir Hill project. Now, the Pagosa Springs Sanitation and General Improvement District has set its sights on the Flying Burrito.
Gene Tautges, who recently replaced Phil Starks as the PSSGID sanitation supervisor, made the following recommendation at Tuesday’s Town Council meeting: “In accordance with the rules and regulations of the District, the PSSGID staff recommends the board, by motion, approve an additional Equivalent Unit and Plant Investment Fee (PIF) of $4,400 be charged to the owner of record and the additional monthly service fee of $37.50 per month be applied to the account.”
The problem originally came to light at the Oct. 16 meeting of the town planning commission, when Town Planner James Dickhoff informed the commission that Luis Rivas and Christine Salazar had recently purchased the Flying Burrito food business at 574 S. 7th Street and requested a conditional use permit (CUP).
The Flying Burrito has been operating at that location since 2005, under a variance approved by town council that set specific requirements to allow the food service business to exist in a district zoned as residential. This variance was non-transferable in the event of new ownership.
“I would recommend proceeding with a conditional use permit,” Dickhoff explained. “That is a more appropriate mechanism than a variance, mainly because we’ve got some contingencies for that conditional use permit that requires them to maintain those conditions of approval for the length of the operation or we can rescind that permit.”
Dickhoff recommended nine conditions be attached to the permit: maintain the sewer connection agreement with the neighboring property, the grease interceptor, a Town of Pagosa Springs business license, a San Juan Basin Health Department food license, Pagosa Fire Protection District annual inspections, a current trailer license plate registration for the vending vehicle, litter control and cleanliness of the property, ample parking, and that the CUP must undergo an annual review.
Dickhoff confirmed there had been no previous complaints against the business and no concerns raised by neighbors over the continuation of the business, then he read a letter submitted by Lynne Bridges from Seeds of Learning, which is located across the street from the Flying Burrito.
“We support the approval of a variance that would allow the Flying Burrito to operate on 7th Street. The staff and families have come to rely on stopping by to pick up breakfast and for lunch. Parking is not an issue for either Seeds or Flying Burrito when they are open. Please consider approving their variance application.”
Commissioner Ron Maez asked if all of the required conditions were already being met, Dickhoff confirmed they were, and Commissioner Bobby Hart asked for a description of the sewer connection agreement mentioned in the first condition. “I guess the question is, more to the point, are they sharing the same line?” Hart asked. “I mean, do we have separate — I know it’s not a contract — but do they have separate utility fees?”
“They are sharing the same tap,” Dickhoff confirmed.
“I think this is a great thing and this is a great place to have this type of business,” Hart affirmed, “I’m just concerned that if we are allowing neighboring lots to share one tap and only pay one sewer bill, then we may be heading down the wrong direction for the future. Potentially, the town could be losing that operating income for the sewer system.
“I don’t have a problem with them sharing the same line, but I still think both properties should pay a sewer fee, just like every other property in town does when they are attached into the system. We’re talking a thirty-seven dollar fee. I don’t think it’s much. I don’t think we’re asking for a tap fee.”
“I appreciate the point you’re making,” Town Manager David Mitchem replied, “but at the same time, really, it’s the sewer district’s decision, and that’s a separate board. I think there are two independent decision-making processes. I would say that staff has been aware of this relationship.”
“I appreciate that staff is aware of it,” Hart countered, “but it doesn’t mean it’s the right thing to do.” He then went on to make the motion to approve the CUP allowing the continued operation of the Flying Burrito with the original nine conditions, then added, “I would like to amend condition number one to read, ‘Sewer connection agreement with neighboring property must be kept in good standing and billing shall be addressed by sewer board.’”
That’s when the problem began to snowball.
“As it comes back up for review,” Dickhoff explained to town council at its Oct. 25 meeting, referring to the Flying Burrito’s CUP, “I believe there is a recommendation from the sanitation director to move forward and request an actual tap for this particular property, which is a separate lot from the residence, to the sewer line. I believe the connection fee is $4,400.”
After a chance to conduct additional research, Tautges reported, “An approximately .34 acre parcel at 574 S. 7th Street on block 60, lot 11 is owned by White Laurentine (Tautges mistakenly switched the owner’s first and last names) and Mary Jane Chavez, who apparently rents/leases space for a business called the Flying Burrito on that residential property. The sewer service line for the Laurentine/Chavez residence was excavated and tapped to originally serve a motor coach, which is allowed, but only for short periods of time.”
Tautges went on to cite a number of PSSGID rules and regulations, including 4.12 Unauthorized Connection Fee, which states, “Any connection made to the District system without a legally authorized Tap shall be charged an amount equal to twice the PIF for the connection made in conformity with Section 4.5 and 4.6 of these Rules and Regulations plus any and all charges incurred for the collection of this fee, including attorney’s fees, service disconnection, service reconnection, street repair, and other expenses including but not limited to all past due monthly service charges and late fees that have accrued since the time of the illegal or unauthorized connection. Such fines/penalties shall be in addition to any other legal or equitable remedies available to the District.”
“If I understand it right,” Mitchem added, “there is a request to waive the $4,400 on the basis that this has been a long-standing arrangement for quite a number of years. So while the recommendation of staff is to apply the $4,400 fee, there is a request to have it waived.”
“There is a concern here,” Dickhoff said, arguing for at least the monthly service charge, “that a number of property owners have elected to connect once to the sewer line and pay only one sewer fee, but have multiple units. That becomes challenging and the goal here is to clean some of that up.”
Council member David Schanzenbaker asked why PSSGID was even collecting a Plant Investment Fee, considering there is no longer a plan to build a new waste water treatment plant. Tautges explained the fee is now being collected to build the pipeline and lift stations required to send wastewater to the Pagosa Area Water and Sanitation District treatment facility.
Council member Tracy Bunning said, “It sounds to me like a business operation on behalf of the property owner, and I think that probably ought to be where the fees are collected.” Tautges agreed the owner of record is the only person with whom the PSSGID had recourse.
At the Nov. 7 meeting, Tautges stood by his recommendation to charge both the $4,400 fee to connect to the system and the $37.50 monthly service charge.
White then addressed town council and explained, “Ms. Chavez and I are both on fixed incomes. We are not destitute, but we don’t have $4,400 to fix this. I really think at some point the original owner should have done something about it, and should have told the new owners that this was relevant to them developing a viable small business.
“We just don’t have any way to deal with this. I’ve already talked to the new owners and said, ‘If the council is really adamant about this, then you will have to move it somewhere else.’ They have decided that if you’re going to be very adamant about it, they will just shut it down, because neither one of us can afford it.
“I don’t know how we can fix the situation. I know that this is a good little business. I’ve watched it from my window. People come, but they need time to allow it to grow again because it has been closed so long. I think we need every bit of viable industry that we can get.”
At its Dec. 4 meeting, when town council finally made a decision on this matter, the council appeared to agree with White that keeping the business open was more important than collecting the $4,400.
“I think you have whatever power you require,” asserted Town Clerk April Hessman, who is responsible for collecting utility fees for the town, “even if you would like to waive that fee since it was so long ago.”
“I think we should waive the PIF for this owner,” Council Member Darrel Cotton agreed, “Knowing that if it ever changes someone is going to have to cough up the $4,400. We let these people get into the business, and now that we’ve got them we say, ‘Oh, by the way, you’re going to have to come up with four grand.’ I think we have some responsibility.”
Cotton went on to admit the Flying Burrito has an illegal sewer connection, but suggested the right thing to do in this case is to waive the $4,400 fee while still charging the additional $37.50 monthly service charge, one for the property owner’s residence and one for the Flying Burrito.
After some additional discussion about requiring the fee to be paid in the future if the business is ever sold again, council member Lattin finally made the motion to waive the PIF, and the rest of the council agreed.