Opinion
No. 73-425
Decided August 5, 1976. Rehearing denied September 9, 1976. Certiorari denied November 22, 1976.
In action challenging city's annexation of certain land, trial court ruled that annexation was invalid, and city appealed.
Reversed
1. MUNICIPAL CORPORATIONS — Annexation Petition — Signed By All Landowners — Except Annexing City — Annexation — Without Notice or Hearing — Proper. Where all the landowners in area to be annexed signed annexation petition except the annexing city, which owned a 50-foot strip of land that supplied the requisite contiguity of the annexed property of the city, the city did not have to first annex the 50-foot strip or sign the landowner's petition in order to annex the property without notice and public hearing.
2. Annexation Policy — City May Determine — Case-By-Case — May Repeal Prior Policy — By Implication. A city may determine its annexation policy with reference to each annexation and may repeal, by implication, any prior ordinances relative to such annexation policies inconsistent therewith; thus, trial court should not have ruled annexation void because the city did not comply with a prior annexation ordinance.
3. Annexation Petition — School Board Resolution — Not Attached — Defect Not Determinative — Resolution Filed. Defect in landowners' annexation petition which did not have the requisite school board resolution attached was of no consequence since the resolution was filed with the city clerk and the city council may take notice of such information when it is contained within the city's files.
Appeal from the District Court of Jefferson County, Honorable Albert J. Tomsic, Judge.
Patrick R. Mahan, County Attorney, Richard J. Scheurer, Assistant County Attorney, George J. Robinson, for petitioners-plaintiffs-appellees.
Max P. Zall, City Attorney, Herman J. Atencio, Assistant City Attorney, David J. Hahn, for respondents-defendants-appellants.
Pursuant to the remand of the Supreme Court in Denver v. Board of County Commissioners, 191 Colo. 104, 550 P.2d 862 (1976), which reversed our prior decision in Board of County Commissioners v. Denver, 35 Colo. App. 295, 533 P.2d 521 (1975), we have considered the other issues raised in this appeal relative to the validity of an annexation by the City and County of Denver. Finding no merit in the remaining objections to that annexation, we reverse the judgment of the trial court which held the annexation void.
The facts relevant to these issues are not disputed. In February of 1973 a petition for annexation of approximately 90 acres of unincorporated land in Jefferson County was submitted to the City. The petition was signed by all of the owners of the land to be annexed, with the exception of public streets, alleys, and an unannexed 50-foot strip of land along the northern edge of the subject property which was owned in fee by the City. An accompanying map of the area to be annexed included the 50-foot strip owned by the City and described it as a Denver Water Board Flume. The 50-foot strip of land constituted the only portion of the land to be annexed which was contiguous to the City boundary.
The city council adopted a resolution approving and accepting the petition, finding, inter alia, that the petition complied with the applicable procedures of the Municipal Annexation Act of 1965, § 31-8-101 et seq., C.R.S. 1973, (specific sections of which will be referred to by section number only), and the property was eligible for annexation, and that the petition was signed by the owners of 100 percent of the property proposed to be annexed, exclusive of streets and alleys. Subsequently, the council adopted ordinance no. 198 which annexed the subject property "unconditionally," reiterating the finding that owners of 100 percent of the property proposed to be annexed had signed the petition as the basis for not holding a public hearing.
The statute has been repealed, amended in part, and reenacted in § 31-12-101 et seq., C.R.S. 1973 (1975 Cum. Supp.).
Plaintiffs initiated the present action for review by writ of certiorari and for declaratory relief, alleging in the first claim that the City had failed to comply with the provisions of the Act and in its second claim that the Act was unconstitutional.
Plaintiff Jefferson County Board of County Commissioners' standing to challenge the annexation is established by statute. See section 116(1)(a). The standing of the other plaintiffs as landowners in Jefferson County has not been challenged here, but see Clark v. Colorado Springs, 162 Colo. 593, 428 P.2d 359 (1967).
Following a trial to the court and review of the record of the annexation proceedings, the court concluded that the annexation was invalid, inter alia, because the 50-foot strip did not qualify as any type of public right-of-way under section 104(1)(a), had not been annexed as unincorporated city-owned land pursuant to section 106(3), and that to avoid the necessity of a public hearing, the City had to join in the petition for annexation pursuant to section 107(1)(g). We disagree.
Section 107(1)(g) provides, insofar as pertinent, that "when the petition is signed by the owners of one hundred percent of the property proposed to be annexed, exclusive of streets and alleys, the city council may by ordinance annex such territory to the municipality without notice or hearing . . . ." Since the city council must decide whether the annexation will be approved, no purpose would be served by requiring the City as owner of the 50-foot strip to sign a petition addressed to itself. Likewise, to require that since the City has not signed the petition, it must first annex the 50-foot strip pursuant to section 106(3), would be to establish a procedure that does not comport with the legislative mandate that the purpose of the act is to provide for the "orderly growth of urban communities" and that it must be liberally construed to accomplish that purpose. See section 102; Denver v. Board of County Commissioners, supra; see also Aspen v. Howell, 170 Colo. 82, 459 P.2d 764 (1969).
[1] Therefore, we hold that the 50-foot strip was validly annexed as part of the subject property and that, therefore, the necessary contiguity with the City boundary existed. Moreover, since the petition was, in effect, signed by 100 percent of the landowners of the subject property, notice and a public hearing pursuant to section 108 were not required.
[2] We also do not agree with the trial court's ruling that the annexation was void because the City did not comply with its prior ordinance relative to annexation policies and procedures. Ordinance no. 198 expressly stated that the city council had "satisfied itself concerning the conformance of the proposed annexation with the annexation policy of the City and County of Denver." Even assuming that such a determination is subject to review in a certiorari proceeding, a city may determine its annexation policy with reference to each annexation and may repeal, by implication, any prior ordinances relative to such annexation policies inconsistent therewith. See Aurora v. Andrew Land Co., 176 Colo. 246, 490 P.2d 67 (1971).
[3] The trial court determined that the annexation was invalid because the requisite resolution of the City's school board was not attached to the petition for annexation pursuant to section 105(1)(d). However, we consider this defect of no moment since the resolution was filed with the city clerk and the council may take notice of such information when it is contained within the City's files. See Pomponio v. Westminster, 178 Colo. 80, 496 P.2d 999 (1972). Similarly, we must disagree with the trial court's ruling that the annexation was invalid because certain written agreements between the school board and some of the petitioners for annexation were not attached to the school board resolution when it was filed with the city clerk. While the trial court found that these agreements imposed certain conditions upon the annexation, the resolution itself approved the annexation unconditionally. Denver v. Board of County Commissioners, supra. Hence, failure to attach the agreements to the resolution was of no consequence.
We have considered plaintiffs' other contentions in support of the trial court's judgment and find them to be without merit.
Judgment reversed and cause remanded to the trial court for consideration of plaintiffs' claim challenging the constitutionality of the Act.
JUDGE COYTE and JUDGE SMITH concur.