Summary
In Tanner, et al., v. City of Boulder, 151 Colo. 283, 377 P.2d, the parties objecting to the annexation were residents and property owners of the city of Boulder.
Summary of this case from Smith v. AuroraOpinion
No. 20,220.
Decided December 24, 1962. Rehearing denied February 4, 1963.
Reversed.
1. ANNEXATION — Statute — Aggrieved Persons — Ordinance — Right to Challenge. C.R.S. '53, 139-11-6, authorizing action by aggrieved person to challenge annexation proceedings, is not limited to those entitled to protest as landowners in the area to be annexed under 139-11-3 and 4, where the annexation ordinance is alleged to be void as being in violation of a city charter and the protestant is a taxpayer and resident of the annexing city.
2. Ordinance — Taxpayers — Right to Challenge. Where complaint of taxpayers made a prima facie showing of a violation of city charter in adoption of annexation ordinance, it was error to dismiss such complaint.
3. Ordinance — Validity — Taxpayers — Right to Challenge. An allegedly invalid or illegal ordinance need not go unchallenged because its subject matter is the annexation of land or complaint of taxpayers recites that action is based on statutory right to relief, where facts alleged entitled them to be heard.
Error to the County Court of Boulder County, Hon. Horace B. Holmes, Judge.
Mr. LEONARD M. CAMPBELL, for plaintiffs in error.
Mr. GUY A. HOLLENBECK, for defendants in error.
THE parties will be referred to as plaintiffs and defendants as they appeared in the trial court.
Plaintiffs' complaint in the trial court alleged both an individual and a class action against defendants relating to the asserted invalidity of a combined annexation and zoning ordinance adopted by the Boulder City Council.
The area involved certain unoccupied land owned solely by one Hindry. He had requested that his land be zoned at the same time for commercial purposes.
The complaint also alleged that plaintiffs are both residents and taxpayers of the City of Boulder and that they are adversely affected by the ordinance in dispute. It further alleged that Sec. 16 of the City Charter states:
"All ordinances and resolutions shall be confined to one subject clearly expressed in the title, * * *" (Emphasis supplied.) and that this provision has been violated in the combined ordinance because annexation is and must be considered to be a separate and independent subject from the zoning classification of that same land.
Defendants filed a motion to dismiss upon the ground that plaintiffs are not aggrieved persons within the meaning of C.R.S. '53, 139-11-6 which recites who may protest annexation proceedings. This motion was granted and the propriety of such action is the subject of this writ of error. Thus the sole question is, did the trial court err in granting the motion? We conclude that it did.
Plaintiffs' complaint alleged that they were bringing the action solely under C.R.S. '53, 139-11-6. This section provides:
"Aggrieved person may seek relief — appeal. — Any person aggrieved by any annexation proceedings had under this article, may apply at any time within ninety days after the effective date of the approving ordinance to the county court of the county in which his land is situated for a hearing and appropriate relief. No appeals shall be prosecuted from judgments of the county court in any proceedings under this article, but writs of error to such judgments shall be as in other civil cases."
We note that the statute provides that any persons aggrieved may seek relief in the county court and limits the venue of the action to the county court of the county "in which his land is situated." The learned trial court found in this regard:
"That there is only one property owner of the area annexed to the City of Boulder" and concluded. "That 'aggrieved' persons, * * * are owners who are aggrieved by the annexation as landowners within the area annexed."
Thus the questions arise: (1) is the statute limited to "landowners within the area annexed," and (2) do plaintiffs have a right to relief outside the statute?
I.
We do not believe that this section of the statute must be construed as it was by the trial court for the following reasons:
The chapter on annexation (C.R.S. '53, 139-11-1, et seq.) contains in section 3 detailed procedures relating to petitions by those owners residing within or only owning land within the area to be annexed. Section 4 details how counter petitions may be made by landowners in the area to be annexed. Sec. 8 (Perm. Supp.) defines "landowner" as used in Sec. 3.
What then is the purpose of Sec. 6? Is it limited to those who are entitled to protest as landowners in the area to be annexed, and who have already been heard once by counterpetition and the annexation election pursuant to sections 3 and 4; or does it include any person who shows that he is in fact "aggrieved" by the "approving ordinance"? We deem the latter to be its true intent.
II.
We also conclude, for the reasons hereinafter set forth, that aside from C.R.S. '53, 139-11-6 these plaintiffs had a right to be heard even though their complaint stated it was based upon that statute.
Their complaint made a prima facie showing of a violation of the city charter in the adoption of the questioned ordinance. As taxpayers and residents asserting that they have been adversely affected thereby, they had the right to challenge the ordinance in question. As was said in Howard v. City of Boulder, 132 Colo. 401, 290 P.2d 237 (1955):
"* * * we can conceive of no greater interest a taxpayer can have than his interest in the form of government under which he is required to live, or in any proposed change thereof. In the last analysis, this interest may well exceed any pecuniary interest he may have. The interest and concern of plaintiff as a taxpayer is not primarily confined to himself alone, but is of 'great public concern,' * * *. If a taxpayer and citizen of the community be denied the right to bring such an action under the circumstances presented by this record, then wrong must go unchallenged, and the citizen and taxpayer reduced to mere spectator without redress."
In Denver v. Sweet, 138 Colo. 41, 329 P.2d 441 (1958) the right of qualified citizens and electors of the City and County of Denver to challenge by way of a declaratory action an ordinance calling for a charter election was recognized and upheld. We perceive no difference in principle between Sweet and the present action for both alleged that the ordinance was invalid, although for different reasons.
In Littleton v. Wagenblast, 139 Colo. 346, 338 P.2d 1025, (1959), it is stated:
"* * * the function of the county court in such proceedings (i.e. annexation proceedings) is to provide a forum in order to insure first, that the area is eligible and, secondly, that the procedural requirements of the statute have been fully complied with."
An allegedly invalid or illegal ordinance need not go unchallenged merely because its subject matter is the annexation of land, or because plaintiffs' challenge thereto recites that their action is based upon a statutory right to relief. Thus, even if the annexation statute excluded plaintiffs as aggrieved persons, as we have held it does not, yet under the facts alleged they have the right to have their complaint heard.
The judgment must be reversed with directions to reinstate the complaint and proceed to a hearing on the merits, once the matter is at issue.
MR. JUSTICE MOORE and MR. JUSTICE PRINGLE concur in the result.
MR. JUSTICE McWILLIAMS dissents.