Colorado § 31-12-112 - Election - annexation pursuant to election.

§ 31-12-112. Election - annexation pursuant to election.

(1) If the governing body determines that an annexation election is required under the provisions of section 30 (1)(a) of article II of the state constitution and section 31-12-107 (2) or that additional terms and conditions should be imposed upon the area proposed to be annexed, an election shall be called, as provided in this section, to determine whether a majority of the landowners and the registered electors in the area proposed to be annexed approve such annexation, with such terms and conditions, if any, as may attach thereto.

(2) Any landowner owning land in the area proposed to be annexed may vote, irrespective of whether he or she is a registered elector. Any corporate landowner may by resolution designate one of its officers to cast its vote; except that nothing in this part 1 shall invalidate any memorandum of agreement or escrow arrangement voluntarily made by and between the annexing municipality and one or more landowners within the area proposed to be annexed nor require an election for the approval of any terms and conditions to be accomplished or assured in this manner.

(3) The municipality shall forthwith petition the district court of the county in which the area proposed to be annexed or a part thereof is located to hold such election.

(4) Upon receipt of such petition, the court shall appoint three commissioners, one of whom shall be nominated by the municipality, one of whom shall be a landowner of land in the area proposed to be annexed or such landowner's nominee, and the third shall be acceptable to the other two. All of the commissioners shall be residents of the state of Colorado and willing to serve as such commissioners. The appointees, within three days after the date of their appointment, shall take an oath before the court faithfully to perform their duties. In case of disability or failure of any commissioner to act, the court shall forthwith fill his place with some person competent, willing, and able to act.

(5) Such commissioners shall forthwith call an election of all the landowners and the registered electors in the area proposed to be annexed, to be held at some convenient place within the area proposed to be annexed. The commissioners shall establish such polling places within the area proposed to be annexed, or immediately adjacent thereto if such area is vacant and unoccupied, as in their judgment are necessary to afford all of the landowners and the registered electors the opportunity to cast their votes. If more than one polling place is found to be necessary, the court may appoint three additional persons to act as judges or clerks for each additional polling place. Such additional judges and clerks shall meet the same requirements as the original appointees.

(6) Notice of such election shall be given by publication once a week for four weeks in some newspaper of general circulation in the area and published in the county in which such area is located or, if there is no such newspaper in the county, in some newspaper of general circulation published in an adjacent county. Additional notice shall be given by posting a notice at each polling place. The said posting and first newspaper publication shall be not less than four weeks preceding such election. Such notice shall specify the time and place of such election, shall contain a description of the boundaries of the area proposed to be annexed, and shall state that a map or plat thereof is on file in the office of the clerk of the district court in which such area, or a part thereof, is located. Such notice shall also set forth the conditions and requirements proposed by the governing body for annexation of the area, and it shall inform the public that an issue committee is required by law to register with the appropriate officer pursuant to section 1-45-108, C.R.S., within ten calendar days of accepting or making contributions or expenditures in excess of two hundred dollars to support or oppose the annexation question.

(7) Such commissioners and additional appointees provided for in subsection (5) of this section shall act as judges or clerks of the election, shall take the oath required by law for judges of general elections, and shall report the result of the voting in their respective polling places to the court within three days after such election. The court shall allow each judge and clerk a reasonable compensation for his services as such, not exceeding two dollars for each hour necessarily employed in the performance of his duties.

(8) The ballot used in such election shall contain the words "For Annexation" and "Against Annexation". At the time of voting, each voter shall indicate his choice by placing a cross mark (X) opposite one or the other of said groups of words. Voting machines may be used in the same manner as in municipal elections.

(9) If a majority of the votes cast at such election are against annexation or the vote is tied, the court shall order that all annexation proceedings to date are void and of no effect and that the governing body shall proceed no further with the instant annexation proceedings. If a majority of the votes cast at the election are for annexation, the court shall order, adjudge, and decree that such area may be annexed to the municipality upon the terms and conditions, if any, set forth by the governing body, and the municipality, by ordinance, may thereafter annex said area and impose the terms and conditions, if any, as approved by the landowners and the registered electors.

(10) All costs and expenses connected with such annexation election, including commissioner fees and all election expenses when incurred, shall be paid by the municipality to which the annexation is proposed.

Source: L. 75: Entire title R&RE, p. 1084, § 1, effective July 1. L. 2009: (6) amended, (HB 09-1153), ch. 174, p. 776, § 3, effective September 1. L. 2010: (1), (2), (5), and (9) amended, (HB 10-1259), ch. 211, p. 917, § 9, effective August 11; (1) amended, (HB 10-1422), ch. 419, p. 2127, § 192, effective August 11.

Editor's note: This section is similar to former § 31-8-112 as it existed prior to 1975.

Cross references: For municipal elections, see article 10 of this title.

ANNOTATION

Law reviews. For article, "Annexation: Today's Gamble for Tomorrow's Gain — Parts I and II", see 17 Colo. Law. 603 (1988).

Annotator's note. Since § 31-12-112 is similar to former § 31-8-112 prior to the 1975 repeal and reenactment of this title, and laws antecedent thereto, a relevant case construing a prior provision has been included in the annotations to this section.

Election code applicable. It is the legislative intent that the term "special municipal elections" as contained in the municipal election code, extends to annexation elections. City of Aspen v. Howell, 170 Colo. 82, 459 P.2d 764 (1969).

The municipal election code applies to elections under the annexation act to the extent that its terms are not inconsistent with the specific provisions of the annexation act. City of Aspen v. Howell, 170 Colo. 82, 459 P.2d 764 (1969).

Nonresident landowner may vote. In view of the specific provision in subsection (2) that a landowner may vote irrespective of whether he is a qualified elector, which entails residency, and the further recognition in subsection (5) that qualified electors and landowners may be two separate groups, both entitled to vote, the supreme court concludes that the general assembly intended to permit a nonresident landowner to vote in an annexation election, because the specific provisions must be held to prevail over the general provisions, and to the extent that this construction conflicts with the residency requirements of the municipal election code, those provisions are held to be superseded by the provisions of the annexation act. City of Aspen v. Howell, 170 Colo. 82, 459 P.2d 764 (1969).

Absentee ballots authorized. Since the municipal election code provides that such code should be construed liberally so that all legally qualified electors may be permitted to vote, we hold that the municipal election code by its terms authorized the absentee ballots in an annexation election. City of Aspen v. Howell, 170 Colo. 82, 459 P.2d 764 (1969).

No election where 100% of landowners have consented. No election is triggered where 100% of the landowners, by petitioning for annexation, have already consented to be governed by the annexing city's preexisting ordinances. Bd. of County Comm'rs v. City & County of Denver, 193 Colo. 325, 566 P.2d 335 (1977).

Or unless annexation ordinance itself imposes terms and conditions. Unless the annexation ordinance itself imposes terms and conditions upon the annexed area, the requirement of an election under subsection (1) is not triggered. Bd. of County Comm'rs v. City & County of Denver, 193 Colo. 325, 566 P.2d 335 (1977).

Preexisting ordinances do not impose additional terms and conditions on the area to be annexed, but are merely general laws which become applicable to new territory upon annexation. Bd. of County Comm'rs v. City & County of Denver, 193 Colo. 325, 566 P.2d 335 (1977).

The relatively standard practice under which a landowner donates land to a school district does not trigger the requirement of an election, since no term or condition is thereby imposed upon the area to be annexed. Bd. of County Comm'rs v. City & County of Denver, 193 Colo. 211, 565 P.2d 212 (1977).

Annexation void because town exceeded its jurisdiction when it failed to hold election to get the consent of the landowner before the annexation. Town of Superior v. Midcities Co., 933 P.2d 596 (Colo. 1997).