31-12-116. Review.
Statute text
(1) (a) If any landowner or any registered elector in the area proposed to be annexed, the board of county commissioners of any county governing the area proposed to be annexed, or any municipality within one mile of the area proposed to be annexed believes itself to be aggrieved by the acts of the governing body of the annexing municipality in annexing said area to said municipality, such acts or findings of the governing body may be reviewed by certiorari in accordance with the Colorado rules of civil procedure. Such review proceedings shall be instituted in any district court having jurisdiction of the county in which the annexed area is located. In no event shall such a proceeding be instituted prior to the effective date of the annexing ordinance by the annexing municipality.
(b) If the annexed area is located within two or more counties, review proceedings may be brought in any district court having jurisdiction of any one of such counties. In all such certiorari proceedings under this part 1, the district court shall be presided over by a judge appointed by the chief justice of the supreme court of the state of Colorado, which judge shall not be from the judicial district in which the area proposed to be annexed is located nor from a judicial district contiguous thereto.
(2) (a) (I) All such actions to review the findings and the decision of the governing body shall be brought within sixty days after the effective date of the ordinance, and, if such action is not brought within such time, such action shall forever be barred.
(II) All such actions to review the findings and the decision of the governing body shall be subject to the following requirement, which is a condition precedent to the right to obtain judicial review under this section: Any party bringing such action shall first have filed a motion for reconsideration within ten days of the effective date of the ordinance finalizing the challenged annexation, which motion shall state with particularity the grounds upon which judicial review is sought.
(III) The district court shall schedule such actions for expedited hearing.
(IV) In the event that the person bringing an action pursuant to this section fails to substantially prevail, the court may award the municipality its reasonable attorney fees and costs of defense.
(b) In any action brought within the sixty-day limitation of paragraph (a) of this subsection (2) to review the annexation of an enclave pursuant to section 31-12-106 (1), the court may review the findings and determinations of the governing body in annexing any territory which, in whole or in part, resulted in the creation of the enclave. If the court finds that any such prior annexation resulted in the creation of a municipal boundary that consists of public rights-of-way as set forth in section 31-12-106 (1.1)(a)(I) or occurred without compliance with section 30 of article II of the state constitution as set forth in section 31-12-106 (1.1)(a)(II), it shall declare the annexation of the enclave to be void, but no such finding or decision shall affect the validity of the prior annexation.
(3) Review proceedings instituted under this section shall not be extended further than to determine whether the governing body has exceeded its jurisdiction or abused its discretion under the provisions of this part 1.
(4) Any annexation accomplished in accordance with the provisions of this part 1 shall not be directly or collaterally questioned in any suit, action, or proceeding, except as expressly authorized in this section.
(5) If the hearing has not been stenographically reported as provided in section 31-12-109 (2) and if the court determines, after proper investigation, that the minutes of the hearing are not adequate to form the basis for a determination of the issue in the certiorari proceedings, the court may proceed to try the issue de novo.
(6) All proceedings for judicial review of any annexation proceeding under this part 1 shall be advanced as a matter of immediate public interest and concern and heard at the earliest practical moment. The courts shall be open at all times for the purposes of this part 1.
History
Source: L. 75: Entire title R&RE, p. 1089, 1, effective July 1. L. 81: (2) amended, p. 1511, 2, effective July 1. L. 87: (1)(a) and (2) amended, p. 1221, 7, effective May 28. L. 90: (1)(a) amended, p. 1479, 1, effective March 9. L. 97: (2)(b) amended, p. 996, 6, effective May 27. L. 2006: (2)(b) amended, p. 1008, 2, effective September 1. L. 2010: (1)(a) amended, (HB 10-1259), ch. 211, p. 919, 11, effective August 11.
Annotations
Editor's note: This section is similar to former 31-8-116 as it existed prior to 1975.
Annotations
ANNOTATION
Annotations
Analysis
I. General Consideration.
II. District Court's Jurisdiction.
III. Aggrieved Persons.
IV. Time Limitation.
V. Annexation Enjoined.
I. GENERAL CONSIDERATION.
Law reviews. For article, "One Year Review of Civil Procedure and Appeals", see 40 Den. L. Ctr. J. 66 (1963). For comment on Tanner v. City of Boulder (151 Colo. 283, 377 P.2d 945 (1962)), see 36 U. Colo. L. Rev. 288 (1964). For article, "ADR Techniques in Municipal Annexations", see 18 Colo. Law. 901 (1989).
Annotator's note. Since 31-12-116 is similar to former 31-8-116 prior to the 1975 repeal and reenactment of this title, and laws antecedent thereto, relevant cases construing a prior provision have been included in the annotations to this section.
No denial of due process in review procedure. The procedures for review in the Colorado act are not so fundamentally unfair as to constitute a denial of due process under the federal constitution. Adams v. City of Colo. Springs, 308 F. Supp. 1397 (D. Colo.), aff'd mem., 399 U.S. 901, 90 S. Ct. 2197, 26 L. Ed. 2d 555 (1970).
This section must be construed as a whole. Green Valley Ranch Venture Co. v. District Court, 186 Colo. 173, 526 P.2d 141 (1974).
Annexation is a legislative function and it is within legislative competence to prescribe who may challenge annexation proceedings, and within what time limits a challenge must be made. City & County of Denver v. District Court, 181 Colo. 386, 509 P.2d 1246 (1973).
Since by statute the general assembly has delegated the power to annex territory to a city, that power remains legislative in character. Bd. of County Comm'rs v. City & County of Denver, 37 Colo. App. 395, 548 P.2d 922 (1976).
Where a landowner or any registered elector seeks review of annexed property also at issue in a quiet title action, the court may stay the review until the quiet title matter is resolved under the common law priority rule. But a court may not vacate the annexation ordinance because the court would then exert control over a strictly legislative function of the municipality. Town of Minturn v. Sensible Hous. Co., 2012 CO 23, 273 P.3d 1154.
Unlimited legislative power over annexation. In the absence of express constitutional provisions to the contrary, the general assembly has unlimited power over annexation of territory by municipalities. Fort Collins-Loveland Water Dist. v. City of Fort Collins, 174 Colo. 79, 482 P.2d 986 (1971).
Read in conjunction with 31-12-120. The legislative intent is clear, and 31-12-113 and this section must be read in conjunction with 31-12-120. Bd. of County Comm'rs v. City & County of Denver, 190 Colo. 347, 547 P.2d 249 (1976).
Review procedure proper for state control. The question of what procedures should be provided for review of annexations is primarily a matter within the discretion of the general assembly, provided that the review procedures are not so arbitrary and unreasonable as to constitute a denial of due process, and since the state has provided and determined the powers, methods, and procedures for annexation of property by municipal corporations and the safeguards thought necessary to protect against abuse, such a subject is a proper one for state control. Adams v. City of Colo. Springs, 308 F. Supp. 1397 (D. Colo.), aff'd mem., 399 U.S. 901, 90 S. Ct. 2197, 26 L. Ed. 2d 555 (1970).
Judicial review of annexations is a special statutory proceeding. Fort Collins-Loveland Water Dist. v. City of Fort Collins, 174 Colo. 79, 482 P.2d 986 (1971).
And is limited. Annexation review is a special statutory proceeding and is limited to a determination of whether the city council has "exceeded its jurisdiction or abused its discretion". Bd. of County Comm'rs v. City & County of Denver, 37 Colo. App. 395, 548 P.2d 922 (1976); Bd. of County Comm'rs v. City of Aurora, 62 P.3d 1049 (Colo. App. 2002).
Judicial review of an annexation is a special statutory procedure and is limited to whether the town's board of trustees exceeded its jurisdiction or abused its discretion. TCD North, Inc. v. City Council, Greenwood Vill., 713 P.2d 1320 (Colo. App. 1985); Midcities Co. v. Town of Superior, 916 P.2d 595 (Colo. App. 1995), aff'd, 933 P.2d 596 (Colo. 1997).
A motion for reconsideration must be filed no later than 10 days after the effective date of the ordinance finalizing the challenged annexation under the language of subsection (2)(a)(II). Bd. of County Comm'rs v. City of Lakewood, 813 P.2d 793 (Colo. App. 1991).
District court does not have jurisdiction to review county petition for judicial review of an annexation when the petition is not timely filed within 10 days of the effective date of annexation. County of Teller v. City of Woodland Park, 2014 CO 35, 333 P.3d 55.
Section 31-12-113 does not control "the effective date of the ordinance" referred to in subsection (2)(a)(II) of this section. The effective date of the ordinance and the effective date of the annexation are distinct from one another. County of Teller v. City of Woodland Park, 2014 CO 35, 333 P.3d 55.
On review, great latitude must be accorded the legislative discretion, and every reasonable presumption in favor of validity of the action of the city must be indulged. Bd. of County Comm'rs v. City & County of Denver, 37 Colo. App. 395, 548 P.2d 922 (1976); Bd. of County Comm'rs v. City of Aurora, 62 P.3d 1049 (Colo. App. 2002).
The court is generally limited to determining whether the act's procedural mandates have been met and must indulge every reasonable presumption favoring the validity of the annexation. Bd. of County Comm'rs v. City of Aurora, 62 P.3d 1049 (Colo. App. 2002).
The rules of civil procedure do not apply insofar as they are inconsistent with special statutory law. City of Westminster v. District Court, 167 Colo. 263, 447 P.2d 537 (1968).
Subsection (1)(a) creates a substantive legal status for review of annexation proceedings and preempts the rules of civil procedure insofar as they are inconsistent with the statute. Berry Props. v. City of Commerce City, 667 P.2d 247 (Colo. App. 1983).
Special review procedure. The general assembly, rather than arrogate unto itself the right to establish an annexation review procedure, has adopted a specific procedure from the rules promulgated by the supreme court. Fort Collins-Loveland Water Dist. v. City of Fort Collins, 174 Colo. 79, 482 P.2d 986 (1971).
Annexation ordinance on review not presumed valid. Under this section, where the question to be determined in an annexation proceeding is whether the land involved has been lawfully annexed, the presumption of the validity of an ordinance does not apply, it being a defense only which shifts the burden of proof to a challenger in the pleadings and trial. People ex rel. City & County of Denver v. County Court, 137 Colo. 436, 326 P.2d 372 (1958).
Findings of ultimate fact by city council are sufficient to support annexation on review when based on uncontradicted evidence. TCD North, Inc. v. City Council of Greenwood, 713 P.2d 1320 (Colo. App. 1985).
Applied in Colo. Land Use Comm'n v. Bd. of County Comm'rs, 199 Colo. 7, 604 P.2d 32 (1979).
II. DISTRICT COURT'S JURISDICTION.
Venue. Review proceedings may be brought in either the district court of the county in which the land was situated prior to annexation or in the district court of the county in which the land is located after annexation. Green Valley Ranch Venture Co. v. District Court, 186 Colo. 173, 526 P.2d 141 (1974).
The district court, composed of all of the district judges, is granted jurisdiction to hear an appeal from an annexation proceeding if the county wherein the annexed territory is located is in the judicial district. Johnston v. City Council, 177 Colo. 223, 493 P.2d 651 (1972).
In this statute the use of the word "such" indicates that an "outside" judge need only be appointed when an annexation proceeding involves property in more than one county. Johnston v. City Council, 177 Colo. 223, 493 P.2d 651 (1972).
Court reviews area eligibility and compliance with procedures. The function of a county court in annexation proceedings is to provide a forum in order to insure first, that the area is eligible and, second, that the procedural requirements of the statute have been fully complied with. City of Littleton v. Wagenblast, 139 Colo. 346, 338 P.2d 1025 (1959).
Only grounds for invalidation. The district court cannot pass upon the wisdom of the annexation itself, nor can it invalidate any annexation for a reason other than a failure to comply with the provisions of the article. City of Englewood v. Daily, 158 Colo. 356, 407 P.2d 325 (1965).
Court hearing due to complexity. Since the annexation proceedings are somewhat intricate this complexity demonstrates the need for a district court hearing for the purpose of testing its sufficiency. City of Littleton v. Wagenblast, 139 Colo. 346, 338 P.2d 1025 (1959).
This section does not vest in a district court plenary powers to grant relief in accordance with the justice or equities of the individual case. City of Littleton v. Wagenblast, 139 Colo. 346, 338 P.2d 1025 (1959).
Nor does this section confer jurisdiction on a district court to hear appeals of individual property owners following annexation and to grant or deny disconnection based upon a county court's uncontrolled discretion. City of Littleton v. Wagenblast, 139 Colo. 346, 338 P.2d 1025 (1959).
There exists no inherent power in the courts to grant disconnection of property annexed to a city, such power is essentially legislative, and absent an express statutory authorization the courts possess no power to detach territory from a municipality. City of Littleton v. Wagenblast, 139 Colo. 346, 338 P.2d 1025 (1959).
Problems for legislative correction. The fact that the state statutes did not provide in more detail how to solve the problems of taxation and refunds, voting and building restrictions, where an annexation ordinance was later held to be invalid, were problems better addressed to the general assembly than to the courts. City & County of Denver v. Bd. of County Comm'rs, 141 Colo. 102, 347 P.2d 132 (1959).
III. AGGRIEVED PERSONS.
Only "any landowners or any qualified elector in the territory proposed to be annexed" may seek review. Fort Collins-Loveland Water Dist. v. City of Fort Collins, 174 Colo. 79, 482 P.2d 986 (1971); City of Westminster v. City of Northglenn, 178 Colo. 334, 498 P.2d 343 (1972).
All landowners in an area to be annexed were not indispensable parties to an action challenging the annexation. Bd. of County Comm'rs v. City & County of Denver, 193 Colo. 321, 566 P.2d 340 (1977).
And no standing if excluded from area subject to annexation. Landowners do not have standing to challenge the validity of annexation proceedings where their properties are excluded from the area subject to the annexation, as they cannot complain of the proposed annexation of property owned by others. Richter v. City of Greenwood Vill., 40 Colo. App. 310, 577 P.2d 776 (1978).
It was held that a county had such an interest in the detachment of its territory as to be a "person aggrieved" under the statute where it was charged that the annexation was invalid. City & County of Denver v. Miller, 151 Colo. 444, 379 P.2d 169 (1963); Elkins v. City & County of Denver, 157 Colo. 252, 402 P.2d 617 (1965).
A resident of an unincorporated area, but not of the particular tract to be detached by annexation proceedings, is not a person aggrieved thereby, since such person does not suffer a detriment peculiar to himself as distinguished from detriment shared by all property owners in the governmental unit. City & County of Denver v. Miller, 151 Colo. 444, 379 P.2d 169 (1963); Smith v. City of Aurora, 153 Colo. 204, 385 P.2d 129 (1963).
Initial annexing city not "aggrieved". Where owners of a tract entered into agreements with a city to annex tract and to furnish water service to the land, but on the following day the city council of another city accepted a petition for an annexation election, the city in the position of the first city is not one of those specified in this section who may seek review of the action of city council. Breternitz v. City of Arvada, 174 Colo. 56, 482 P.2d 955 (1971).
Municipality lacked standing to contest annexation because it was not within one mile of the area that was annexed. Town of Berthoud v. Town of Johnstown, 983 P.2d 174 (Colo. 1999).
While municipality within one mile of the proposed annexations that believes itself to be aggrieved has standing to the extent it is actually aggrieved, said municipality does not have unfettered standing to raise issues on behalf of anyone else. Town of Erie v. Town of Frederick, 251 P.3d 500 (Colo. App. 2010).
Plaintiff outside of statutory category lacks standing. This section expressly limits the right of review to certain categories of plaintiffs. Where plaintiffs are not within those categories, they do not have standing to seek review. Berry Props. v. City of Commerce City, 667 P.2d 247 (Colo. App. 1983).
Standing to challenge zoning does not give standing to challenge annexation. Nothing in the annexation act limits the right to judicial review of zoning procedures to landowners or qualified electors within territory annexed under the annexation act. But it does not follow that standing to challenge zoning gives standing to challenge annexation. Snyder v. City Council, 35 Colo. App. 32, 531 P.2d 643 (1974).
Standing to challenge zoning and standing to challenge annexation are quite different matters. City of Thornton v. Bd. of County Comm'rs, 42 Colo. App. 102, 595 P.2d 264 (1979), aff'd, 629 P.2d 605 (Colo. 1981).
IV. TIME LIMITATION.
Annotator's note. In 1987, the general assembly increased the time limitation in subsection (2) from forty-five to sixty days.
The 45-day provision is jurisdictional. Snyder v. City Council, 35 Colo. App. 32, 531 P.2d 643 (1974).
If an action is not brought within the 45-day time limitation, the court has no jurisdiction to entertain the action. City and County of Denver v. District Court, 181 Colo. 386, 509 P.2d 1246 (1973).
Commencement of an action within the 45-day time period is necessary before a trial court has any jurisdiction to entertain an action which challenges a municipal annexation. Bd. of County Comm'rs v. City & County of Denver, 190 Colo. 300, 546 P.2d 497 (1976).
A complaint filed more than 45 days after the effective date of the ordinance must be dismissed. Val d'Gore, Inc. v. Town Council, 193 Colo. 311, 566 P.2d 343 (1977).
The 45-day period under subsection (2) did not begin to run until the enactment of an ordinance amending the original annexation ordinance where an erroneous property description was repeated throughout the election petitions, the election notices, and the original ordinance, thereby depriving potentially interested parties of an opportunity to contest the annexation of their property. Val d'Gore, Inc. v. Town Council, 193 Colo. 311, 566 P.2d 343 (1977).
Not a statute of limitations. The time limitation provision of subsection (2) is not a true statute of limitations, because the time limitation is jurisdictional, and, unlike other statutes of limitations, as a matter of public policy, it cannot be tolled or waived. Fort Collins-Loveland Water Dist. v. City of Fort Collins, 174 Colo. 79, 482 P.2d 986 (1971); Richter v. City of Greenwood Vill., 40 Colo. App. 310, 577 P.2d 776 (1978); Golden Run Estates, LLC v. Town of Erie, 2016 COA 145, 401 P.3d 87.
In effect, the 45-day provision is a condition precedent to the exercise of the right to challenge an annexation, and when it appears on the face of the complaint, or is admitted, the complaint simply does not state a claim upon which relief can be granted, the claim is barred, and the court has no jurisdiction of the subject matter, and can, for that reason, grant a motion to dismiss on this ground. Fort Collins-Loveland Water Dist. v. City of Fort Collins, 174 Colo. 79, 482 P.2d 986 (1971).
Favors finality. By enacting the 45-day time limitation set forth in this section the general assembly has pursued a deliberate policy of favoring the finality of an annexation even though there may have existed some ground for attacking the annexation. Bd. of County Comm'rs v. City & County of Denver, 190 Colo. 300, 546 P.2d 497 (1976).
Limitation recognizes that boundary lines be expeditiously and finally determined. Implicit in the 45-day time limitation imposed by this section is a recognition of the desirability that municipal boundary lines be expeditiously and finally determined in order that the responsibility for providing municipal services and the applicability of municipal ordinances and regulations may be known to those affected. City and County of Denver v. District Court, 181 Colo. 386, 509 P.2d 1246 (1973).
Applicable to challenge to repeal of annexation ordinance. No legislative intent appears in the municipal annexation act which would exclude from the 45-day time limitation a court challenge involving a municipality's capacity to repeal an annexation ordinance. Bd. of County Comm'rs v. City & County of Denver, 190 Colo. 300, 546 P.2d 497 (1976).
No time waiver. Just as no discretion is afforded the annexing municipality as to the application of ordinances, it has none with reference to the waiver of the time limitation for the challenge to the validity of the annexation ordinance. Fort Collins-Loveland Water Dist. v. City of Fort Collins, 174 Colo. 79, 482 P.2d 986 (1971).
Section (2)(a)(I) is a nonclaim statute that deprives a trial court of subject matter jurisdiction. Like other nonclaim statutes, this section provides that certain claims are forever barred if not brought within statutorily specified periods and its time limits cannot be tolled or waived by a contract or other agreement. Golden Run Estates, LLC v. Town of Erie, 2016 COA 145, 401 P.3d 87.
V. ANNEXATION ENJOINED.
Proceedings by a city to annex territory can only be enjoined where they are in excess of the powers of a city. City & County of Denver v. Bd. of County Comm'rs, 141 Colo. 102, 347 P.2d 132 (1959).
Legislative function cannot be enjoined. The general rule is that a municipal corporation, in the exercise of legislative power with relation to the subjects committed to its jurisdiction, can no more be enjoined than can the general assembly of the state. City & County of Denver v. Bd. of County Comm'rs, 141 Colo. 102, 347 P.2d 132 (1959).