Controversies plague Cortez: Council wrestles with some issues, leaves others to wait for new board

Meetings of the Cortez City Council are generally short and sweet – or so they used to be. Agenda items were addressed rapidly and votes taken speedily. Only a few citizens spoke during public comment.

After an hour and a half or even less, the meetings were adjourned.

But things have changed recently.

The council has been wrestling through a thicket of thorny issues and both the councilors and staff have been facing a barrage of criticism over everything from the length of the meeting minutes (not long enough, one citizen complained, although the city’s minutes are very detailed) to a proposed new land use code to how the board will conduct certain public hearings.

This was exemplified Feb. 25, when the council was supposed to hold a new hearing on a proposed retail marijuana dispensary. The original application by NuVue Pharma LLC, which is based in Pueblo, was rejected by the council on Sept. 11, 2018. The applicants sued, saying the decision was arbitrary.

A district judge agreed, ruling on Nov. 7, 2019, that the city had committed an “egregious error” in denying the application because of the “character of the applicant.”

Judge Todd Plewe said had not followed its own Retail Marijuana Code because, among other things, it had allowed people from all over to speak against the dispensary, even citizens who weren’t city residents and didn’t own property in the neighborhood where the business was proposed. The judge said the city had to hold a new hearing.

But on Feb. 25 of this year, the council had to punt the scheduled new hearing to March because only three members were present who were able to vote, and that did not constitute a quorum.

The seven-member council has been down to six since Jill Carlson resigned last December. She wasn’t immediately replaced because new members will be elected in the April 7 municipal election.

And on Feb. 25, councilors Gary Noyes and Orly Lucero were both unable to attend the meeting. Yet another councilor, Sue Betts, recused herself from the marijuana issue because she had dealings with the law firm representing NuVue, the Whitehair Law Firm of Longmont, Colo.

‘Somebody who owes a lot’

But NuVue owner Dr. Malik Hasan had flown in for the hearing, along with attorneys and witnesses. After the council passed a motion 3-0 to postpone the hearing to either March 10 or March 24, depending on the applicant’s schedule, Hasan was allowed to speak to the council.

Hasan is a retired neurosurgeon living in Pueblo. He said he was born in Delhi, India, but his family had to flee to Pakistan. He eventually went to medical school in London, returned to Pakistan, then emigrated to the United States and became a citizen in 1976.

“I consider myself as somebody who owes a lot to the society in general,” he told the council.

He settled in Pueblo, “a wonderful place where people are very kind, very friendly,” and worked in medicine as well as starting a health insurance plan. He founded the Hasan School of Business at CSU-Pueblo, donating millions of dollars to it and to other philanthropic causes.

He said he has worked with President George W. Bush, who he said “has a very kind heart,” as well as with President Bill Clinton and House Speaker Nancy Pelosi.

In 2015 Hasan entered into the cannabis business, starting Nu- Vue, which now has locations in Colorado Springs and Trinidad as well as Pueblo. He said the Cortez location would be a way to reach people traveling through the Four Corners.

“If I’m wrong, if there is too many stores [in Cortez] and there is no need of it, then my business would fail and I would lose money,” he said.

“He’s not a distant landlord who doesn’t understand the cannabis business,” one of his attorneys, Greg Whitehair, told the council. “He was instrumental in getting institutions of the state to do huge amounts of research” into marijuana. “There’s a lot more here than just trying to open up a store.”

But after Hasan spoke, a local citizen, Duane Cook of Brandon’s Gate on the north side of Cortez, asked to speak on the dispensary issue as well. He said he couldn’t attend either council meeting in March.

That request prompted lengthy discussion.

City attorney Mike Green said allowing Cook to speak would create problems because the actual hearing was not taking place that evening and his comments should be part of the testimony the council would need to consider.

“We’re trying to walk a real narrow line here to be sure that this time everything is done strictly according to the book,” Mayor Karen Sheek told Cook.

She asked whether Cook could give comments during the final public comment session that night. Green said it would not really count as testimony, and recommended against the idea.

“It would be the cleanest way because we are not taking comments at this time about this license application and to do anything that jeopardizes the process at the next hearing I think is ill-advised,” he said.

But Cook was not pleased. “In a democracy, all voices should be heard, right?” he asked.

Councilor Ty Keel, whose final term is ending in April, argued that Cook should be heard from. “We’ve been a council that has two public-comment periods per meeting,” he said, continuing, “I appreciate hearing from people in this community. . . . I am not a lawyer. I sit on this council as a voice for the people and when we stifle that, I have a problem with that.”

But Whitehair said there is a difference between comments made in a forum and those made during a quasi-judicial hearing such as the dispensary hearing. “When you are making decisions that affect significant business interests. . . you actually are sitting as judges,” he told the council.

Green said people who give testimony during NuVue’s or other such hearings would need to be able to be questioned by the applicants or the council.

Finally the council decided not to let Cook address the pharmacy issue that night.

NuVue isn’t the only tough issue the board has had to deal with recently. It came under fire over a new land use code that was about to be adopted. After Dave and Lana Waters, who don’t live in the city but own property in Cortez, complained about parts of the new code, they persuaded the council to delay its vote, which was set for Oct. 8, 2019.

Then the Waterses were able to organize major resistance to the new code, which led to hundreds of people flocking to the newly scheduled hearing on Jan. 28, 2020, to speak against it. Many volubly bashed the council and staff in their remarks.

The council voted 6-0 that night not to approve the new code. They have left that issue for the new council to deal with.

The April 7 election features 14 candidates running for five vacant seats on the city council. Many of them hope to bring a very different philosophy to the council, one that is strongly anti-regulatory.

The Montezuma County commissioners have been critical of the city, and are eager to see a more conservative council elected. At a recent meeting, Commissioner Larry Don Suckla said he thought relations between the city and council would improve as soon as the new board was in place, indicating that he’s confident about who will win seats.

‘Help me’

Among the other topics the city staff and council have had to mull over recently is panhandling. At the council workshop on Feb. 11, City Manager John Dougherty said the complaints to the city primarily involve people outside Walmart. Dougherty said he had dealt with this issue in two other cities where he was in administration, but both of the ordinances those cities passed “got shot down in the courts.”

Green said people can be prosecuted for specific behaviors, but that “holding up a sign that says ‘Help me’ is probably protected” as free speech.

“We have had problems, but have been able to deal with them without an ordinance,” Green said

Acting Police Chief Andy Brock said there are ordinances in place against blocking doorways or other such problematic behaviors. “Store owners have the opportunity to say they want people trespassed (banned from the property),” he added, and the police can remove people from private property for a specified time.

He said the police had looked through 174 reports regarding complaints about people on the street and “just two” mentioned panhandling specifically. Generally, the complaints are regarding drunk or disorderly behavior or harassment of passersby.

Green said that was probably the best way to handle the situation rather than trying to come up with an ordinance to discourage panhandling.

Sheek said the issue might require some public education. “Just because you don’t like somebody holding up an ‘I need help’ sign isn’t enough reason to complain to the police,” she said.

Freedom of speech

Also at the Feb. 11 workshop, the council discussed public criticism of two members of the city’s Planning and Zoning Commission, Lance McDaniel and Rebecca Levy. Some critics had called for the two to be kicked off the commission for remarks they made on Facebook.

McDaniel made a joke about veterans and the naming of parks back in December, and it was widely misunderstood to mean that he was criticizing veterans instead of being light-hearted. Levy also has been bashed for Facebook remarks defending McDaniel. At the workshop, the specific comments weren’t brought up, but Dougherty said the council should come up with a policy that would advise members of boards and commissions that they are considered to be representing the city even when they speak on social media.

However, he and Green also noted that individuals have freedom of speech.

“You can regulate what people say on company time and using company computers,” Green said. “We lack any kind of guidelines for disciplining boards and commissions in general.”

He said the city’s personnel manual could be rewritten to cover not only employees but members of boards, but generally people are still free to say what they want on their own personal time.

Councilor Mike Lavey said a dialogue on the topic needs to be initiated because it is causing considerable disruption. Green agreed but said it would likely have to be handled by the new council.

Lavey and Lucero are the only two council members whose terms won’t be coming up this year.

Sheek and Keel are both term-limited and will be departing. Carlson has already left. Incumbent Gary Noyes is not seeking a second term, but another incumbent, Sue Betts, is.

In addition to Betts, the candidates are Stephanie Carver, Jason A. Witt, Arlina Yazzie, Raymond Ralph Goodall, Rafe M. O’Brien, Justin Vasterling, David N. Rainey, Rachel Medina, Amy Huckins, Geof Byerly, Joe Farley, Bill Banks and Leroy A. Roberts.

From March 2020.