Colorado § 31-12-105 - Limitations.

§ 31-12-105. Limitations.

(1) Notwithstanding any provisions of this part 1 to the contrary, the following limitations apply to all annexations:

(a) In establishing the boundaries of any territory to be annexed, no land held in identical ownership, whether consisting of one tract or parcel of real estate or two or more contiguous tracts or parcels of real estate, shall be divided into separate parts or parcels without the written consent of the landowners thereof unless such tracts or parcels are separated by a dedicated street, road, or other public way.

(b) In establishing the boundaries of any area proposed to be annexed, no land held in identical ownership, whether consisting of one tract or parcel of real estate or two or more contiguous tracts or parcels of real estate, comprising twenty acres or more (which, together with the buildings and improvements situated thereon has a valuation for assessment in excess of two hundred thousand dollars for ad valorem tax purposes for the year next preceding the annexation) shall be included under this part 1 without the written consent of the landowners unless such tract of land is situated entirely within the outer boundaries of the annexing municipality as they exist at the time of annexation. In the application of this paragraph (b), contiguity shall not be affected by a dedicated street, road, or other public way.

(c) No annexation pursuant to section 31-12-106 and no annexation petition or petition for an annexation election pursuant to section 31-12-107 shall be valid when annexation proceedings have been commenced for the annexation of part or all of such territory to another municipality, except in accordance with the provisions of section 31-12-114. For the purpose of this section, proceedings are commenced when the petition is filed with the clerk of the annexing municipality or when the resolution of intent is adopted by the governing body of the annexing municipality if action on the acceptance of such petition or on the resolution of intent by the setting of the hearing in accordance with section 31-12-108 is taken within ninety days after the said filings if an annexation procedure initiated by petition for annexation is then completed within the one hundred fifty days next following the effective date of the resolution accepting the petition and setting the hearing date and if an annexation procedure initiated by resolution of intent or by petition for an annexation election is prosecuted without unreasonable delay after the effective date of the resolution setting the hearing date.

(d) As to any annexation which will result in the detachment of area from any school district and the attachment of the same to another school district, no annexation pursuant to section 31-12-106 or annexation petition or petition for an annexation election pursuant to section 31-12-107 is valid unless accompanied by a resolution of the board of directors of the school district to which such area will be attached approving such annexation.

(e) (I) Except as otherwise provided in this paragraph (e), no annexation may take place that would have the effect of extending a municipal boundary more than three miles in any direction from any point of such municipal boundary in any one year. Within said three-mile area, the contiguity required by section 31-12-104 (1)(a) may be achieved by annexing a platted street or alley, a public or private right-of-way, a public or private transportation right-of-way or area, or a lake, reservoir, stream, or other natural or artificial waterway. Prior to completion of any annexation within the three-mile area, the municipality shall have in place a plan for that area that generally describes the proposed location, character, and extent of streets, subways, bridges, waterways, waterfronts, parkways, playgrounds, squares, parks, aviation fields, other public ways, grounds, open spaces, public utilities, and terminals for water, light, sanitation, transportation, and power to be provided by the municipality and the proposed land uses for the area. Such plan shall be updated at least once annually. Such three-mile limit may be exceeded if such limit would have the effect of dividing a parcel of property held in identical ownership if at least fifty percent of the property is within the three-mile limit. In such event, the entire property held in identical ownership may be annexed in any one year without regard to such mileage limitation. Such three-mile limit may also be exceeded for the annexation of an enterprise zone.

(II) Prior to completion of an annexation in which the contiguity required by section 31-12-104 (1)(a) is achieved pursuant to subparagraph (I) of this paragraph (e), the municipality shall annex any of the following parcels that abut a platted street or alley, a public or private right-of-way, a public or private transportation right-of-way or area, or a lake, reservoir, stream, or other natural or artificial waterway, where the parcel satisfies all of the eligibility requirements pursuant to section 31-12-104 and for which an annexation petition has been received by the municipality no later than forty-five days prior to the date of the hearing set pursuant to section 31-12-108 (1):

(A) Any parcel of property that has an individual schedule number for county tax filing purposes upon the petition of the owner of such parcel;

(B) Any subdivision that consists of only one subdivision filing upon the petition of the requisite number of property owners within the subdivision as determined pursuant to section 31-12-107; and

(C) Any subdivision filing within a subdivision that consists of more than one subdivision filing upon the petition of the requisite number of property owners within the subdivision filing as determined pursuant to section 31-12-107.

(e.1) The parcels described in subparagraph (II) of paragraph (e) of this subsection (1) shall be annexed under the same or substantially similar terms and conditions and considered at the same hearing and in the same impact report as the initial annexation in which the contiguity required by section 31-12-104 (1)(a) is achieved by annexing a platted street or alley, a public or private right-of-way, a public or private transportation right-of-way or area, or a lake, reservoir, stream, or other natural or artificial waterway. Impacts of the annexation upon the parcels described in subparagraph (II) of paragraph (e) of this subsection (1) that abut such platted street or alley, public or private right-of-way, public or private transportation right-of-way or area, or lake, reservoir, stream, or other natural or artificial waterway shall be considered in the impact report required by section 31-12-108.5. As part of the same hearing, the municipality shall consider and decide upon any petition for annexation of any parcel of property having an individual schedule number for county tax filing purposes, which petition was received not later than forty-five days prior to the hearing date, where the parcel abuts any parcel described in subparagraph (II) of paragraph (e) of this subsection (1) and where the parcel otherwise satisfies all of the eligibility requirements of section 31-12-104.

(e.3) In connection with any annexation in which the contiguity required by section 31-12-104 (1)(a) is achieved by annexing a platted street or alley, a public or private right-of-way, a public or private transportation right-of-way or area, or a lake, reservoir, stream, or other natural or artificial waterway, upon the latter of ninety days prior to the date of the hearing set pursuant to section 31-12-108 or upon the filing of the annexation petition, the municipality shall provide, by regular mail to the owner of any abutting parcel as reflected in the records of the county assessor, written notice of the annexation and of the landowner's right to petition for annexation pursuant to section 31-12-107. Inadvertent failure to provide such notice shall neither create a cause of action in favor of any landowner nor invalidate any annexation proceeding.

(f) In establishing the boundaries of any area proposed to be annexed, if a portion of a platted street or alley is annexed, the entire width of said street or alley shall be included within the area annexed.

(g) Notwithstanding the provisions of paragraph (f) of this subsection (1), a municipality shall not deny reasonable access to landowners, owner of an easement, or the owner of a franchise adjoining a platted street or alley which has been annexed by the municipality but is not bounded on both sides by the municipality.

(h) The execution by any municipality of a power of attorney for real estate located within an unincorporated area shall not be construed to comply with the election provisions of this article for purposes of annexing such unincorporated area. Such annexation shall be valid only upon compliance with the procedures set forth in this article.

(i) For any annexation that will result in annexation of lands within the exterior boundaries of a reservation of a federally recognized Indian tribe located within the state, no annexation pursuant to section 31-12-106 or annexation petition or petition for an annexation election pursuant to section 31-12-107 is valid unless accompanied by a resolution or ordinance of the tribal council or other governing body of the federally recognized Indian tribe within whose reservation the annexation will occur approving the annexation. This subsection (1)(i) applies to annexation of all lands within the exterior boundaries of a reservation of a federally recognized Indian tribe located within the state regardless of the status of the lands sought to be annexed.

Source: L. 75: Entire title R&RE, p. 1078, § 1, effective July 1. L. 87: (1)(e) to (1)(g) added, p. 1218, § 2, effective May 28. L. 96: (1)(h) added, p. 1770, § 69, effective July 1. L. 97: (1)(c) and (1)(d) amended, p. 994, § 1, effective May 27. L. 2001, 2nd Ex. Sess.: (1)(e) amended and (1)(e.1) and (1)(e.3) added, p. 32, § 2, effective November 6. L. 2024: IP(1) amended and (1)(i) added, (SB 24-193), ch. 451, p. 3137, § 2, effective June 6.

Editor's note: This section is similar to former § 31-8-105 as it existed prior to 1975.

ANNOTATION

I. General Consideration.

II. Land Not to be Divided.

III. Land Comprising 20 Acres or More.

IV. Annexation of School District's Land.

I. GENERAL CONSIDERATION.

Law reviews. For article, "Annexation: Today's Gamble for Tomorrow's Gain — Parts I and II", see 17 Colo. Law. 603 (1988). For article, "ADR Techniques in Municipal Annexations", see 18 Colo. Law. 901 (1989).

Annotator's note. Since § 31-12-105 is similar to former § 31-8-105 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.

A statute is presumed to be constitutional, and to be declared unconstitutional it must be shown clearly to be so. Breternitz v. City of Arvada, 174 Colo. 56, 482 P.2d 955 (1971).

Courts will not read into annexation statutes limitations relating to unusual or irregular shapes or patterns of territory annexed. Bd. of County Comm'rs v. City & County of Denver, 37 Colo. App. 395, 548 P.2d 922 (1976).

Streets, etc., annexed in order to include territory. There is no legislative intent that a municipality may annex streets, roads, or highways only when it is necessary to do so to include territory otherwise eligible for annexation but separated from the annexing municipality by a public right-of-way. Bd. of County Comm'rs v. City & County of Denver, 37 Colo. App. 395, 548 P.2d 922 (1976).

A public way or a portion of a public way can be utilized as a noncontiguous boundary of the annexed territory, since the statute contains no such restriction. Bd. of County Comm'rs v. City & County of Denver, 37 Colo. App. 395, 548 P.2d 922 (1976).

Legal description held to be in substantial compliance with the requirements of this section. Slack v. City of Colo. Springs, 655 P.2d 376 (Colo. 1982).

Subsection (1)(e) is not ambiguous; therefore the court will not consider the legislative history in construing the statute. Bd. of County Comm'rs v. City of Lakewood, 813 P.2d 793 (Colo. App. 1991).

Subsection (1)(e) in no way alters the contiguity requirements of § 31-12-104 (1)(a); it merely provides that contact between a street or an alley and an existing boundary of the annexing municipality may be used to achieve the contiguity requirements of § 31-12-104 (1)(a). Bd. of County Comm'rs v. City of Lakewood, 813 P.2d 793 (Colo. App. 1991).

Deficiency in the notice required by subsection (1)(e.3) was inadvertent where defendant town provided notice 25 days before the hearing, the town mayor and clerk believed timely notice was given in compliance with the statute, and no one appeared at the annexation hearing to testify or object to lack of sufficient notice. Town of Erie v. Town of Frederick, 251 P.3d 500 (Colo. App. 2010).

II. LAND NOT TO BE DIVIDED.

Written consent prerequisite to annexation of divided parcel. This section makes it very clear that no territory owned by the same owner shall be divided into separate parts or parcels without the written consent of the owner thereof. City & County of Denver v. Bd. of County Comm'rs, 151 Colo. 230, 376 P.2d 981 (1962).

Division of tract from rest of federal land requires consent of the United States as owner. Caroselli v. Town of Vail, 706 P.2d 1 (Colo. App. 1985).

Annexation did not effect a separation. Where the owners of a tract own all of a half-section, a railroad track passed diagonally through the northeast corner of this half-section, it was apparent that the triangular piece of land lying north and east of the track was physically separated from the larger parcel, and this piece was not included in the area proposed to be annexed, assuming that this was a right-of-way grant to a railroad by the congress and therefore it was not a mere easement but a limited fee with right of exclusive use and possession, as a result, the triangular tract was effectively separated by the congressional grant and the annexation did not "separate" the half-section within the meaning of subsection (1)(a). Breternitz v. City of Arvada, 174 Colo. 56, 482 P.2d 955 (1971).

III. LAND COMPRISING 20 ACRES OR MORE.

The policy of this enactment is to encourage natural and well-ordered development of municipalities, not to discourage it by providing for last minute maneuvers designed only to defeat annexation. Pomponio v. City of Westminster, 178 Colo. 80, 496 P.2d 999 (1972).

Written consent required. Land held in identical ownership in excess of 20 acres which, together with improvements thereon, has an assessed value in excess of $200,000 for the year next preceding the annexation shall not be included in a unilateral annexation without the written consent of the owner or owners. Pomponio v. City of Westminster, 178 Colo. 80, 496 P.2d 999 (1972).

This exemption as to 20 acres, etc., does not apply to enclaves. Cline v. City of Boulder, 168 Colo. 112, 450 P.2d 335 (1969).

Termination of proceedings when tract affects boundaries. Only if there is such a tract as would affect the establishment of the boundaries, i.e., the outer perimeters of the area to be annexed, does this statute cause the annexation proceedings to terminate; if the boundaries of the annexed area are not affected, the excluded tracts of 20 acres or more are not to be included in the annexed territory, but the annexation continues. Adams v. City of Colo. Springs, 178 Colo. 241, 496 P.2d 1005 (1972).

As no reference to tract "within area ...". If the general assembly meant to refer to such tracts "within the area or territory to be annexed" (rather than referring to "establishing the boundaries"), it would have said so as it did in other sections dealing with problems within the territory to be affected. Adams v. City of Colo. Springs, 178 Colo. 241, 496 P.2d 1005 (1972).

IV. ANNEXATION OF SCHOOL DISTRICT'S LAND.

Legislative intent. In enacting subsection (1)(d) of this section, the general assembly intended to empower school boards to protect themselves against having involuntarily to undertake responsibility for providing educational services in newly annexed areas. Bd. of County Comm'rs v. City & County of Denver, 193 Colo. 211, 565 P.2d 212 (1977).

Formal written consent required. This section explicitly requires, in annexation involving school property, "the written consent of the board of education" of the school district involved, and faced with the clear mandate of the statute, we are not at liberty to hold that, in some cases, the giving of the required consent is but a ministerial act, not requiring formal action by the board. Gavend v. City of Thornton, 165 Colo. 182, 437 P.2d 778 (1968).

Ordinance invalid due to lack of consent. Where on the date of final passage of the annexation ordinance here, the effective date thereof, no valid written consent of the board of education had been obtained, the ordinance was invalid when passed, and no action or resolution purporting to ratify the superintendent's consent taken by the board of education thereafter could, in and of itself, breathe life into this dead ordinance. Gavend v. City of Thornton, 165 Colo. 182, 437 P.2d 778 (1968).

Later ratification invalid. The school board's resolution consenting to the annexation of its property and ratifying the action of the superintendent in signing the annexation petition does not satisfy the express requirement that the written consent of the school board be obtained before any territory which includes school property can be annexed. Gavend v. City of Thornton, 165 Colo. 182, 437 P.2d 778 (1968).

Superintendent's signature insufficient. The act of the superintendent of schools in signing the annexation petition without prior formal authorization by the school board was not an act of the board, and could not satisfy the requirement that the "written consent of the board of education" be obtained. Gavend v. City of Thornton, 165 Colo. 182, 437 P.2d 778 (1968).

School board consented to the first stage of an annexation by having consented to the entire two-stage transaction. Bd. of County Comm'rs v. City & County of Denver, 193 Colo. 211, 565 P.2d 212 (1977).

A school board's resolution was not ineffective on the theory that approval was conditional upon obtaining a particular zoning classification where the resolution's "whereas" clauses, rather than expressing conditions, recited the factual circumstances as presented to the board and the "resolved" clauses contained the board's unqualified approval of the annexation. City & County of Denver v. Bd. of County Comm'rs, 191 Colo. 104, 550 P.2d 862 (1976).

Substantial compliance with requirements that documents accompany petition. Where, in its resolution, the city council recited that the annexation petition was accompanied by a map and school board resolution, and these documents were available on file with the Denver clerk and recorder for the city council's inspection and consideration prior to passage of the annexation ordinance, there was substantial compliance with the requirements that the documents accompany the petition. Bd. of County Comm'rs v. City & County of Denver, 193 Colo. 325, 566 P.2d 335 (1977).

While the resolution of a city's school board was not attached to the petition for annexation pursuant to subsection (1)(d), this defect was of no moment since the resolution was filed with the city clerk and the council could take notice of such information when it was contained within the city's files. Bd. of County Comm'rs v. City & County of Denver, 38 Colo. App. 171, 556 P.2d 486 (1976), aff'd, 194 Colo. 252, 571 P.2d 1094 (1977).