May 2011

How building a street led to a historic recall election

By Gail Binkly

Tucker Lane, shown here facing west, will provide access between the giant Brandon’s Gate subdivision and Highway 145. The terms of the agreement between the city and a developer whose land Tucker Lane will cross prompted a recall effort against five Cortez City Council members. The election is May 3.Voters in Cortez will go to the polls May 3 to decide whether to oust five of seven members of the city council in response to claims that the council squandered public money and needlessly aided a private subdivision.

The recall question has sparked vociferous debate throughout the city.

Targeted for removal from office are councilors Matt Keefauver, Robert Rime, Betty Swank and Donna Foster, along with Mayor Dan Porter. Keefauver, Foster, and Porter are in their second terms, having been first elected in 2006 and re-elected in 2010.

However, just one person has stepped forward as a replacement candidate. Justin Dodson, an artist, is on the ballot to fill Porter’s shoes if the mayor is recalled.

“Some of the folks we tried to get to run. . . they are holding off to see if the election is successful,” explained Bud Garner, a member of the recall committee, in an interview on KSJD radio that aired April 20. Garner said if the council members are thrown out, those interested in replacing them will then seek to be appointed to the board.

“If you do a petition to be on the ballot you have to file all this ridiculous paperwork as a candidate and report all the income and expenses and all of those campaign finance laws, and they are a monster in and of themselves to try to comply with,” Garner said.

He said it is “easier and cheaper” to be appointed rather than elected, but it was not the recall committee’s preference. “That was their [the potential appointees’] view of how to do it. That is not the committee’s view. . . .The committee’s tried to get people to be on the ballot,” he said.

City Clerk Linda Smith said the requirements for getting onto the ballot as a replacement candidate were to collect 25 signatures from registered voters in the city and to fill out a form at three different times listing campaign contributions of $20 or more.

The other members of the recall committee are Jodie Henley, who is a member of the Cortez Sanitation District Board; Norma “Joyce” Turner; and Richard Biery.

Recall fervor

Recalls are the rage across the country. Time magazine reported in April that 57 mayors were targeted for recall in 2010, up from 23 in 2009, and another 15 have been put in the crosshairs in 2011. Just a quarter of last year’s recall attempts were successful, however. Time blamed the bad economy, the Tea Party movement, and the new power of social media for the surge in recalls.

In Cortez, the first recall attempt in city history was prompted by the council’s approval on Aug. 24, 2010, of the final plat of a small, four-lot subdivision known as Flaugh-Clark. The controversy over the subdivision stems from the fact that the city agreed to pay cash to the developers and make infrastructure improvements in order to acquire the right of way to build a street through their property.

The street, Tucker Lane, will connect the enormous Brandon’s Gate subdivision on the west of Flaugh-Clark with Highway 145 on the east.

Recall proponents call Tucker a “road to nowhere” because Brandon’s Gate is as yet not built out.

But city officials say Tucker Lane was on the city’s 1999 master street plan as a proposed throughway.

Other developers questioned the deal that was being given to developer Don Flaugh. At a public hearing on June 22, 2010, to approve the preliminary plat for Flaugh-Clark, developers Dave Waters and Don Etnier said they did not believe it was fair to make them compete with a developer who was being given so much financial help by the city. However, the council passed the preliminary plat that day on a 6-1 vote and approved the final plat on Aug. 24, 2010, by the same margin.

The lone dissenter, Tom Butler, is not targeted for recall, nor is councilor Bob Archibeque.

According to Garner, the reason the other five councilors were targeted is because they were on the council in May 2008, when the city entered into the contract with Flaugh. Two of those, Keefauver and Foster, voted against approving the contract, Garner said, but they did not do enough to stop it.

“They made no effort that we can determine to bring up the legal issues that were involved,” he said in the KSJD interview, adding that he believes the council in general is too easily led by city staff. “If the city lawyer or the city manager or city building inspector comes up and says, ‘Let’s do this,’ boom! vote on it, it’s done.”

Direct access

But both current City Manager Jay Harrington and former City Manager Hal Shepherd say the agreement with Flaugh, while perhaps too generous, was necessary and not without precedent.

The extension of Tucker Lane westward was needed to provide access to the huge Brandon’s Gate subdivision, they say.

There are other accesses to Brandon’s Gate, including an entrance at its north side onto County Road L and some exits to the south back into the city. But Tucker Lane provides a short, direct route onto Highway 145.

“The access to the south would have been through some very poorly designed streets from the ’50s,” Shepherd said. Shepherd was city manager until his retirement in September 2007. He was present when negotiations were begun with Flaugh but left before the agreement was finalized and has said he wouldn’t have recommended accepting the terms of that agreement.

“We saw the need for Tucker Lane. I certainly thought it was important for traffic circulation because of the poorly drawn streets on the south side. From Tucker you can get onto 145 and zoom right down to Highway 160. It just made sense to get that access for police and fire protection and better circulation.”

However, extending Tucker meant going through Flaugh’s subdivision, which at that time was an inholding not annexed into the city and lacking good street access. Just one of the four lots was developed.

Going around Flaugh’s property would not have been feasible because of conflicts with other properties, Shepherd said.

“I looked at that, but Tucker was the only interface that would work,” he said. “Farther north there are other housing problems and private property and it wouldn’t be as direct.” In addition, the elevation of an irrigation canal that has to be crossed is lower at Tucker, he said.

Harrington agreed. Trying to move the access north of the Flaugh property would have meant skimming very close to existing housing and devaluing that property, he said, and there were conflicts on all other routes. “If we had had a clean right of way to connect to, we would have used it,” he said.

So the city approached Flaugh to ask for a right of way, but it wasn’t negotiating from a strong position because it didn’t want to exercise the right of eminent domain, Shepherd said.

“The council didn’t want to condemn the right of way, I’m not sure why,” he said. “That was what condemnation was designed for – for roadways. I always thought it was questionable to use it for economic development as some cities do, but sometimes it’s necessary for a road.”

Meanwhile, John Stramel, one of the developers of Brandon’s Gate and one of the forces behind the recall, was pushing for the Tucker Lane access to be completed. “Stramel wanted it badly,” Shepherd said. “He called every week.”

The city eventually agreed to spend an estimated $325,000 to provide infrastructure for the Flaugh- Clark subdivision, including building Tucker Lane. Normally, developers pay for infrastructure themselves and then deed the rights of way to the city.

“Flaugh got water lines and a sewer line to the four lots, and a sum of money,” Shepherd said. “The street opened up four lots he’s selling – otherwise they were pretty landlocked. That’s a real benefit for him and to add water and sewer to the lots was going too far. But you don’t have much leverage if you don’t want to force the right of way.”

Harrington agreed. “The city didn’t do a particularly great job in those negotiations but we got too far down the line still needing the right of way to connect to Brandon’s Gate,” he said.

Cities as developers

Harrington said when he presented the agreement to the council, he told them it wasn’t a great deal, but it was the best they could get at that point and they had to weigh it against the potential costs of further delays or pursuing the condemnation process, which is time-consuming and expensive.

However, the deal incensed other developers who had been used to spending their own money on infrastructure in their subdivisions. “I got a call from John Stramel saying, ‘Can we blade in Tucker Lane so people can see where it’s going?’” Harrington recalled.

“I said, ‘We don’t have the right of way yet. Here’s the contract.’ He came back and said, ‘You’re giving him too much. Now I don’t want it’.”

Stramel, along with Etnier and Waters, who spoke against the agreement at the June 2010 public hearing, have supported the recall effort, reportedly providing an office for the committee’s headquarters, administering a website and collecting signatures on petitions. However, members of the recall committee insist they decided independently to push for the recall and are not just doing the bidding of the developers.

Garner told the Free Press he believes a route could have been found to provide eastern access to Brandon’s Gate without requiring condemnation. “There could have been a minor adjustment to the north to avoid any of that,” he said. “This project seems to have the effect of benefiting only that particular individual.”

But Harrington and Shepherd said the project was actually done to benefit not Flaugh but Brandon’s Gate by providing it with a main access other than the one onto Road L. Routing too much traffic onto L would have required revisiting the city’s agreement with the county about road impact fees there, Harrington said.

Shepherd said it is not unprecedented for a city to aid a developer. The city helped Brandon’s Gate with its costs for geotechnical work, its impact fees to the county, and some deeper road base that was required because of the soils at the site, Shepherd said.

Nor is it unheard of for a city to act as a developer, said Shepherd, who has more than 35 years’ experience as manager of different cities. “Normally a developer will build the streets and donate them to the city but I’ve been involved in individual projects where the cities put in streets to get factories built and provide jobs. In this case it was more of a transportation issue.”

The city of Cortez paid to extend Seventh Street westward to Sligo near Walmart to relieve congestion on Main Street. “Cities do it all the time,” Shepherd said. “Seventh Street is a good example. We didn’t do it for those private property owners along there, but it will have a benefit for them.”

No basis for complaint

Garner, however, disagrees. He said the scope of the assistance to Flaugh was unprecedented and the council had a responsibility to stop the agreement from going forward.

“There are certain things the staff can and does present [to the council] that are clearly not a government issue or shouldn’t be and I think that’s where the city council past and present has failed the citizens,” he said. “We’re seeing more and more at all levels of government that government should be the solution to everything and that can’t be the case.”

He said he will be very disappointed if the recall fails. “If the citizens of Cortez think that’s OK, if they find no problem in Flaugh-Clark and they would just as soon not pay attention and let them do what they’re going to do, then my view is they have no further basis upon which to complain about anything, whether city council, state legislature or federal government Just shut up and go on down that road; you have forfeited your right to participate.”