Colorado § 31-2-101 - Petition to district court.

§ 31-2-101. Petition to district court.

(1) Whenever the inhabitants of any territory not embraced within the limits of any existing municipality desire to be organized into a city or town, they shall file a petition for incorporation of such city or town with the district court of the county within which such territory, or any part thereof, is situate. The petition shall be signed by not less than one hundred fifty of the registered electors who are landowners and residents within the territory or, in cases where the territory involved is wholly situate in a county having a population of twenty-five thousand or less, signed by forty such registered electors who are landowners and residents and shall:

(a) Describe the territory proposed to be embraced in such city or town, which description shall determine the boundaries thereof;

(b) Have attached thereto an accurate map or plat thereof on a scale no less than one inch to one thousand feet;

(c) State the name proposed for such city or town;

(d) Be accompanied with satisfactory proofs of the number of inhabitants within the territory embraced within the limits of the proposed city or town, which proofs shall be based upon the last preceding federal census, as adjusted according to the records of the county planning office or other county records. At the time of the filing of said petition, the petitioners shall file a bond, in an amount to be determined and approved by the court, to cover the expenses connected with the proceedings in case the incorporation is not effected. In no case shall there be incorporated in such city or town any undivided tract of land consisting of forty or more acres lying within the proposed limits of such city or town without the consent of the owners thereof.

(1.5) The petition may include a request for submission to the electors of the proposed municipality at the incorporation election of any matter permitted to be submitted at the election pursuant to section 31-2-102 (1.5).

(2) No such petition shall be filed where any portion of the boundaries of the proposed city or town is within one mile from the boundaries of any existing municipality, unless the territory proposed to be included within such city or town is composed of three hundred twenty acres or more.

(2.5) (a) In addition to any other notice that may be required under this part 1, whenever the number of registered electors within the area that is the subject of a petition filed pursuant to subsection (1) of this section is less than two thousand five hundred persons, notice of the filing of the petition shall be sent by first-class mail to each person owning real property within the area at the address shown for such owner in the records of the county assessor's office. The cost of mailing the notice required by this paragraph (a) shall be borne by the petitioners.

(b) The notice required by paragraph (a) of this subsection (2.5) shall include the name, address, and telephone number of a contact person who is able to provide information on the petition to the public, the case number of the civil action concerning the petition, and the district court in which the petition is filed. The notice shall also inform the property owner that, if he or she would like to obtain a copy of the petition, the property owner shall submit to the contact person a request for a copy of the petition along with the payment of a fee. The notice shall specify the amount of the fee and instructions as to the manner in which payment shall be made. The fee charged pursuant to this paragraph (b) shall conform to the requirements of section 24-72-205 (5)(a), C.R.S. Upon receipt of payment, the contact person shall mail a copy of the petition to the property owner.

(c) The notice required by paragraph (a) of this subsection (2.5) shall be sent prior to the date on which the district court makes its findings and determination pursuant to section 31-2-102 (1).

(3) (a) No incorporation election shall be held pursuant to section 31-2-102 unless the court finds that the proposed area of incorporation is urban in character and unless the court additionally finds that:

(I) The proposed area of incorporation has an average of at least fifty registered electors residing within the boundaries of the proposed area of incorporation for each square mile of area.

(II) Repealed.

(III) (Repeal provision deleted by revision.)

(b) (I) If the proposed area of incorporation has fewer than five hundred registered electors residing therein, a public hearing shall be held before the board of county commissioners to consider whether the petitioners may hold an incorporation election. Thirty days' notice of the time and place of such hearing shall be given by one publication thereof in a newspaper of general circulation in the county.

(II) After public hearing, the board of county commissioners may refuse to permit the incorporation election to be held if the board finds upon satisfactory evidence that:

(A) Any of the criteria set forth for special districts in section 32-1-203 (2), C.R.S., exist with respect to the area proposed for incorporation;

(B) Annexation to a nearby municipality would avoid unnecessary duplication of the services referred to in sub-subparagraph (A) of this subparagraph (II); and

(C) The proposed incorporation is inconsistent with any applicable county or regional comprehensive plan.

(III) If the proposed area of incorporation includes more than one county, the board of county commissioners of each county included may meet and devise a procedure for a joint hearing to determine whether the petitioners may hold an incorporation election.

(4) If, at any time between the filing of a petition pursuant to this section and not less than ten days prior to the date of the election thereon, there is filed with the court any subsequent petition which meets the requirements of this part 1 and which embraces any of the territory embraced in the initial petition calling for such election, the court may order that all such proposals contained in the said petitions filed with the court be submitted to the registered electors of the territories embraced by such petitions, to be voted on at one election, in the alternative. The court may order the rescission of any prior call of an election, discharge any commissioners previously appointed, and order the appointment of a new commission to call the election on all such proposals, or the court may order the inclusion of the subsequent proposals in the call of an election by the originally appointed commissioners.

Source: L. 75: Entire title R&RE, p. 1008, § 1, effective July 1. L. 79: (3)(a) amended, p. 1183, § 1, effective June 21. L. 81: (3)(a)(III) amended, p. 1497, § 1, effective May 27; (3)(b)(II)(A) amended, p. 1614, § 14, effective July 1. L. 87: IP(1) amended, p. 325, § 73, effective July 1. L. 94: (1.5) added, p. 1190, § 86, effective July 1. L. 2008: (2.5) added, p. 49, § 1, effective September 1.

Editor's note: (1) This section is similar to former § 31-1-103 as it existed prior to 1975.

(2) Subsection (3)(a)(III) provided for the repeal of subsection (3)(a)(II), effective July 1, 1983, and is therefore deleted by revision as obsolete. (See L. 81, p. 1497.)

ANNOTATION

Annotator's note. Since § 31-2-101 is similar to former § 31-1-103 prior to the 1975 repeal and reenactment of this title, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

Constitutionality of power to determine extent and boundaries. The fact that under this and the following section the power to determine the extent and boundaries of municipal corporations is conferred upon individuals does not make the sections unconstitutional. People ex rel. Rhodes v. Fleming, 10 Colo. 553, 16 P. 298 (1887).

Comprehensive act. The act of 1877 appears to be a comprehensive act upon the subject of municipal corporations, and appears to cover the whole subject matter, and plainly shows an unmistakable intention on the part of the general assembly to make the act of 1877 a substitute for the law of 1868. City of Leadville v. Colo. Mining Co., 29 Colo. 17, 67 P. 289 (1901).

Petitioners must be landowners. Velasquez v. Zimmerman, 30 Colo. 355, 70 P. 419 (1902).

Or else incorporation void. A petition for the incorporation of a town, signed by the requisite number of names, a part of whom were not bona fide electors and landowners so that the number of bona fide electors and landowners signing the petition was less than the number required by this section, would not give the district court jurisdiction, and the incorporation of a town based upon such petition is void. People ex rel. Saunier v. Stratton, 33 Colo. 464, 81 P. 245 (1905).

"Embraced" defined. The familiar and generally accepted meaning of the word "embraced" in the first sentence is: "encircled, enclosed, encompassed". Therefore, an area completely encircled by and enclosed and encompassed within the exterior limits of a city cannot be incorporated. In re Incorporation of Town of Eastridge v. City of Aurora, 41 Colo. App. 299, 590 P.2d 72 (1978), aff'd, 198 Colo. 440, 601 P.2d 1374 (1979).

A petition for incorporation must recite that petitioners are inhabitants of the territory proposed to be incorporated, so where petition filed merely recited that the signatories were "all inhabitants of a part of the county of Boulder, State of Colorado, which is not embraced within the limits of any city or incorporated town", while registered, qualified electors of the territory, the district court was correct in finding that the petition was fatally defective. In re Incorporation of N. Boulder v. Sisson, 167 Colo. 549, 448 P.2d 308 (1969).

Persons accepting deeds as gifts for signing are not landowners. Persons who accept deeds to lots from those who are interested in the incorporation of a town, as a reward for signing the petition for incorporation, are not bona fide landowners within the meaning of this section, and are not entitled to sign the petition. People ex rel. Saunier v. Stratton, 33 Colo. 464, 81 P. 245 (1905); People ex rel. Taylor v. Koerner, 92 Colo. 83, 18 P.2d 327 (1932).

Temporary residents not entitled to sign. In the incorporation of a town, persons who temporarily move into the territory proposed to be incorporated, for the sole purpose of participating in the election, are not bona fide residents within the meaning of this section, and are not entitled to sign the petition for incorporation; there must not only be a personal presence for the requisite time, but also a concurrence therewith of an intention to make the place a permanent home. People ex rel. Saunier v. Stratton, 33 Colo. 464, 81 P. 245 (1905).

A person who acquires land by the conveyance of a fee-simple title upon condition subsequent is a landowner within the meaning of this section. People ex rel. Taylor v. Koerner, 92 Colo. 83, 18 P.2d 327 (1932).

Allegations as to status of signers material. Allegations in an action in quo warranto, testing sufficiency of incorporation, that signers were not bona fide landowners, residents, and electors are statements of ultimate fact which, if denied, tender issues that not only are material, but vital, because, if proved, the petition would be insufficient, and the incorporation based thereon would be void under this section. Norton v. People ex rel. Rudbeck, 102 Colo. 489, 81 P.2d 303 (1938).

Evidence of good faith admissible. Where it is contended that a petition for the organization of a town under this section is a fraudulent scheme of the signers to defeat the statute, evidence of petitioners' conduct after signing and tending to show good faith is properly admitted. People ex rel. Taylor v. Koerner, 92 Colo. 83, 18 P.2d 327 (1932).

The requirement of accurate maps of the territory has been held to be jurisdictional. Taylor v. Pile, 154 Colo. 516, 391 P.2d 670 (1964).

The petition must contain an accurate description of the boundaries of the proposed municipal corporation, and failure of the petition for incorporation to properly set out the boundary to be incorporated has been held to make void the whole proceeding. Taylor v. Pile, 154 Colo. 516, 391 P.2d 670 (1964).

"Corrections" made after filing improper. Where there was an examination of the petition filed and the admitted fact was that after the petition was fully prepared and signatures affixed thereto changes were made in the description of the property and "corrections" were made in the boundary lines as shown on the map annexed to the petition, these facts lead inescapably to the conclusion that said petition was fatally defective and conferred no jurisdiction upon the court to order an election. Taylor v. Pile, 154 Colo. 516, 391 P.2d 670 (1964).

This statute places upon those who would incorporate territory into a municipality the burden of seeking the consent of owners of 40 acres or more. Hiwan Ranch v. City of Lakewood, 31 Colo. App. 471, 505 P.2d 16 (1972).

Or else tract not included in city. Absent laches, equitable estoppel, or the running of an applicable statute of limitations, city's failure to obtain the consent of an owner of more than 40 acres of land precludes it from including this tract of land within city boundaries. Hiwan Ranch v. City of Lakewood, 31 Colo. App. 471, 505 P.2d 16 (1972).

Mere notice does not obviate consent requirement. Although an owner of more than 40 acres of land may have notice (actual or constructive) of proposed incorporation, notice alone is not sufficient to obviate the necessity of city's obtaining consent from owner as required by statute. Hiwan Ranch v. City of Lakewood, 31 Colo. App. 471, 505 P.2d 16 (1972).

Consent provision as basis for asking a court to decree correct boundaries. Where plaintiff is not attacking incorporation procedures, but is only questioning boundaries of a city, plaintiff is entitled to rely on that portion of the incorporation statute which provides that its consent must be obtained before its land is included within the city, and it may make timely application to the court to decree the correct boundaries, so the statute of limitations contained is not applicable to this action. Hiwan Ranch v. City of Lakewood, 31 Colo. App. 471, 505 P.2d 16 (1972).

Signatories to a petition for incorporation must be registered electors, landowners, and residents of the territory sought to be incorporated. Malmgren v. Copper Mtn., Inc., 873 P.2d 44 (Colo. App. 1994).

Petition for incorporation must contain allegations that signatories are landowners within the territory sought to be incorporated regardless of whether it is filed alone or with a petition for home rule charter. Malmgren v. Copper Mtn., Inc., 873 P.2d 44 (Colo. App. 1994).

Applied in Glennon Heights, Inc. v. Cent. Bank & Trust, 658 P.2d 872 (Colo. 1983).