Judge McElroy quashes Town’s attempted “shoestring” Annexation of Airport

By: Bill Whaley
19 December, 2013

At District Court on Wednesday, December 18, 2013, Judge Jeff McElroy upheld the motion filed by Taos County to quash the Town of Taos’s shoestring annexation of the Taos Airport because the action by the town council violated state statutes.

The “facts” show, according to the judge, that the town did not file a “petition” for annexation as required by statute. As well the town did not file a “map,” with specific boundaries regarding the action taken by ordinance but not by filing a “petition.”

The Judge also said that the action taken by the town’s “non-petition” was not “contiguous” i.e. the boundaries of the town did not touch the boundaries of the airport. Nor did the town obtain “consent” from property owners in the affected area between the town’s boundaries and the airport. Neither the federal government, nor the owners of the Rio Lucero and Acequia Madre del Prado were notified so none of the mentioned entities granted “consent” for the action as required by statute.

In addition, the judge ruled that the town violated “due process” and did not provide an impartial arbiter to hear the non-existent petition from the town, which is the property owner and sought to sit in judgment on its own petition—despite statutes that imply either an independent arbiter or the state boundary commission should hear the petition for annexation.

So the judge granted summary judgment in favor of Taos County and two El Prado acequias to dismiss the Town of Taos action aimed at annexation.

Although town attorney Brian James attempted to argue that the word “petition” was “more a verb” than a noun, suggesting various scenarios, a request from the town’s airport advisory commission for annexation or the town’s passage of an ordinance met the burden of the “petition,” the judge didn’t buy it and said it was a “noun.” Similarly, the attorney referred to “contiguity” as a “legal fiction.” And, given, he said, his experience with the sign code, state highway boundaries and rightaways were difficult to determine. Further he pleaded that a town council or legislative body’s decision should be liberally interpreted. He suggested the judge should not substitute his interpretation of the statute for the statute itself.

County attorney Bob Malone merely asked the judge to follow the plain language of the statute governing annexation, which is what the judge said he did.

During the discussion of “due process, James claimed the citizens and other entities had “notice” and “opportunity” to protest or question the Town’s actions, which occurred. But given the absence of a “petition” and “map” affecting the area, the affected parties couldn’t know what the town’s intentions were in the corridor, which includes the El Prado area and six miles of highway, according to Malone and McElroy.

Judge McElroy himself asked James about the issue of jurisdiction and whether the state police, county sheriff, or town police would assign citations to the municipal court or magistrate court. James seemed befuddled by the question.

Basically, James used broad brush strokes, implying that New Mexicans, in his experience, did not understand fundamental civics lessons and were frequently incapable of discerning the difference between “legal” issues and issues of “equity.” County attorney Bob Malone stuck to the facts and statutes, case law and context, giving a full account of the matter at hand.

One of the more interesting elements that came up during case law analysis by the attorneys, concerned a New Mexico Supreme Court decision, which, in passing, frowned on the issue of “shoestring” annexation, suggesting that an appeal might not go very far.

What Does the Judge’s Decision Mean?

First, if the Town has collected gross receipts taxes at the airport since the now aborted annexation, they will have to repay the County. Second, the decline in projected revenue for the Town means the match for a federal grant aimed at airport expansion is in jeopardy.

Prior to the Town’s attempted annexation the County offered to rebate GRT income and cooperate with the Town, financially, in managing airport operations. Indeed, the County pleaded in an open meeting with the Town to forego annexation for the very reasons, among others, elucidated above by Judge McElroy.

Since the Town has refused to cooperate with the County, not only on the airport issue but also on the issue of E911-Dispatch Command Center, the County has been forced to propose spending an estimated million dollars on its own state of the art emergency system. According to testimony at County meetings, the Town has not kept up “repeaters” as required by the current JPA (Joint Powers Agreement) governing the E911-Dispatch countywide system, thereby endangering the lives of county residents.

County employees say a substantial amount of the reserve fund from the current JPA/E911-Dispatch is unaccounted for or in question. Where has the money gone?

It seems unlikely that the County will support, financially, the Town’s match for federal funds under the current circumstances for airport expansion. While the Town blames the County in the media for its own failed negotiations and actions, whether in the matter of annexation or E911-Dispatch operations, it is obvious that the town has ignored local voters, the statutes governing operations, and best financial practices, whether due to arrogance or wishful thinking.

Elections

Prudent and alert voters are supporting candidate Dan Barrone for mayor, as well as council candidates Fritz Hahn and Judi Cantu. Incumbent Mayor Darren Cordova and former mayor and incumbent councilor Fred Peralta have made hash out of community relations and emptied the town treasury, along with their helpers, Councilors Michael Silva, Andrew Gonzales, and Rudy Abeyta at the Town.

The Town’s executive management team has proven both incompetent and hostile to the community at large, according to both media reports, current and former employees at the town, and, now, a district judge. Both Manager Rodriguez and Attorney Brian James frequently attack community members or ridicule elected officials, even judges and the rule of law. The town’s police department has farmed out enforcement of the sign ordinance to a private tow-truck operator. The Mayor and Councilor Rudy Abeyta have abused an eccentric senior citizen at public meetings.

BarroneThree strikes and you’re out.

It’s time for a change, wherein responsible public servants take the reins and return the Town of Taos to the greater community, meaning cooperation with Taos County. Cooperation among major local entities could reduce the duplication of services, which is costing town and county residents millions of dollars in tax revenue. The use of invective on DMC Broadcasting by the Mayor’s attack dogs has antagonized both elected officials and voters. Fred’s arguments circulate like hot air balloon above the heads of the audience but make little sense. Elect a quiet and hospitable man with a pair of work gloves and let’s get on with governing.

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