Colorado § 31-25-503 - What improvements may be made - conditions.

§ 31-25-503. What improvements may be made - conditions.

(1) A district may be created within the boundaries of a municipality and may also include any property in the unincorporated area of the county within which the municipality is situated if such county consents by resolution to such district and the construction or acquisition of improvements therein. In addition, such district may also include any property in another municipality within such county if such municipality consents by ordinance to such district and the construction or acquisition of the improvements therein. If a district includes property within a county by county consent or within another municipality by municipal consent, the municipality shall have full authority to construct or acquire improvements, to assess property within the county or such municipality benefited by such improvements, and to enforce and collect such assessments in the manner provided in this part 5; but:

(a) No improvement, except as provided in paragraph (d) of this subsection (1) and except for sidewalks, water mains, sewers, and sewage disposal works and their appurtenances, shall be ordered under this part 5 unless a petition for the same is first presented. The petition shall be subscribed by the owners of property to be assessed for more than one-half of the entire costs estimated by the governing body to be assessed. Except as specified in this section, nothing in this part 5 shall restrict the right of such owners from securing any particular kind or variety of improvements petitioned for. In any case where a proposed improvement district includes two or more assessment units, the owners of property to be assessed for more than one-half of the entire costs estimated by the governing body to be assessed in each assessment unit shall petition as specified in this part 5.

(b) If the owners of property to be assessed for more than one-half of the entire costs estimated by the governing body to be assessed petition for any particular kind of improvement and for any particular materials to be used in the same, the improvement shall be ordered in accordance with the petition, and the materials so designated shall be used, except as otherwise provided in this section;

(c) If the material petitioned for by the owners of property to be assessed for more than one-half of the entire costs estimated by the governing body to be assessed does not encourage competition, the petitioners shall have the right to state in the petition the maximum price per square yard or linear foot or per unit at which the improvement is desired, and no contract shall be let for any such improvement at a price exceeding the maximum price fixed in said petition, excluding the cost of engineering, collection, inspection, incidentals, and interest;

(d) Any improvement may be initiated directly by the governing body by resolution declaring its intention to construct the improvements. If initiated by such resolution, the governing body shall make a preliminary order as required by subsection (3) of this section in the same manner as if the improvements had been requested by petition. Such preliminary order may be included in the resolution of intention to construct the improvements. However, if written protests are submitted prior to the hearing referred to in subsection (4) of this section subscribed by the owners of property to be assessed for more than one-half of the entire costs estimated by the governing body to be assessed, the governing body shall not proceed with such special improvement district, based on the preliminary order so protested. Such protests shall not prevent the governing body from adopting a subsequent preliminary order for such improvements, subject to notice, hearing, and protest, as provided in this part 5.

(2) The governing body shall encourage competition by advertising for and receiving bids for such construction and, insofar as possible within the limits of the petition, shall describe all materials by standard or quality in the specifications.

(3) Before contracting for or ordering any work to be constructed, a preliminary order shall be made by the governing body, adopting preliminary plans and specifications for the same, definitely describing the materials to be used or stating that one of several specified materials shall be chosen, determining the number of installments and the time in which the cost of the improvement shall be payable, and the property to be assessed for the same, as provided in this part 5, and requiring an estimate of the cost to be made by the municipal engineer or any similar officer or employee, together with a map of the district in which the improvement is to be made and a schedule showing the approximate amounts to be assessed upon the several lots or parcels of property within the district. The cost estimates and approximate amounts to be assessed shall be formulated in good faith on the basis of the best information available to the governing body but shall not be binding.

(4) The clerk shall give notice of the hearing on the construction of the improvements by publication in one issue of a newspaper of general circulation in the municipality, the publication to be at least twenty days prior to the date of the hearing. In addition, notice shall be mailed by first-class mail to each property owner to be assessed for the cost of the improvements who is included within the district. The mailed notice shall be made on or about the date of the publication of the notice of hearing. The notice shall set forth the following information:

(a) The kind of improvements proposed;

(b) The number of installments;

(c) The time in which the cost shall be payable;

(d) Repealed.

(e) The extent of the district to be improved;

(f) The probable cost per front foot or other unit basis which, in the judgment of the governing body, reflects the benefits which accrue to the properties to be assessed, as shown by the estimates of the engineer;

(g) The time, not less than twenty days after the publication, when an ordinance authorizing the improvements will be considered;

(h) That said map and estimate and schedule showing the approximate amounts to be assessed and all resolutions and proceedings are on file and can be seen and examined by any interested person at the office of the clerk, or other designated place, at any time within said period of twenty days; and

(i) That all complaints and objections made in writing concerning the proposed improvement by the owners of any property to be assessed will be heard and determined by the governing body before final action is taken.

(4.5) If the petition for an improvement is signed by one hundred percent of the owners of property to be assessed and contains a request for such waiver, the governing body may, at its discretion, waive all or any of the requirements for notice, publication, and a hearing set forth in subsection (4) of this section.

(5) The finding by ordinance or resolution of the governing body that said improvements were duly ordered after notice duly given and after hearing duly held when such notice and hearing are required pursuant to this section, that such petition was presented, and that the petition was subscribed by all or the required number of owners shall be conclusive of the facts so stated in every court or other tribunal.

(6) Any resolution or order in the premises may be modified, confirmed, or rescinded at any time prior to the passage of the ordinance authorizing the improvements.

(7) The specifications for paving may include sidewalks, curbs, gutters, and grading, and sufficient culverts, sewers, or drains necessary to carry off the surface waters across or along the line of the street improved, and such other incidentals to paving as, in the judgment of the governing body, may be required. The specifications may also provide that bidders shall agree to enter into contract to do the work and maintain the same in good repair for a period of five years, and the contract may be entered into in accordance with such specifications.

(8) If, before any such improvements are made, any piece of real estate or any railway company to be assessed already has an improvement conforming to the general plan or satisfactory to the governing body, an allowance therefor may be made to the owner, and such allowance may be deducted from the owner's assessment and from the contract price.

(9) (a) Any other provision of this part 5 to the contrary notwithstanding, the governing body may create a district for the purpose of acquiring existing improvements of a character authorized by this part 5, in which case, the provisions of this part 5 concerning construction of improvements by the municipality, competitive bidding, and preliminary plans and specifications shall not apply.

(b) Any other provision of this part 5 notwithstanding, the governing body may create an improvement district for the purpose of encouraging, accommodating, and financing renewable energy improvements and energy efficiency improvements of a character authorized by section 31-25-502 (2). Any such district shall include only property for which the owner has executed a contract or agreement consenting to the inclusion of such property within the district, and such consent may occur subsequent to the adoption of the ordinance of the governing body forming the district. The inclusion of such property within the district subsequent to the adoption of the ordinance of the governing body forming the district may be made by the adoption of a supplemental or amending ordinance or resolution of the governing body. For districts formed for the purpose of encouraging, accommodating, and financing renewable energy improvements or energy efficiency improvements, the provisions of subsections (2) and (3) of this section concerning preliminary orders, competitive bidding, and preliminary plans and specifications, of section 31-25-516 concerning contracts for construction, and of section 31-25-518 concerning contract provisions shall not apply.

(c) The contract or agreement shall note the existence of any first priority mortgage or deed of trust on the property, the identity of the record holder thereof, and the penalty for default provided in section 31-25-530 clearly stating that default, like the penalties that exist for default on any mortgage or any other special assessment, may result in the loss of the applicant's home. Within thirty days of a person's submission of an application to the district, the governing body shall provide written notice to the record holder of any first priority mortgage or deed of trust on the real property that the person is participating in the district.

(10) The governing body is authorized to enter into contracts and agreements with any owner of property within the district or any other person concerning the construction or acquisition of improvements, the assessment of the cost thereof, the waiver or limitation of legal rights, or any other matter concerning the district.

(11) At or about the time of publication by the governing body of any ordinance creating a district, a copy of such ordinance shall be provided to the county assessor, the county treasurer, and the division of local government in the department of local affairs. The governing body shall make a good faith attempt to comply with this subsection (11), but failure to comply shall not affect or impair the organization of any district, the construction or acquisition of improvements therein, the levying and collection of assessments, or any other matter pursuant to the provisions of this part 5.

Source: L. 75: Entire title R&RE, p. 1190, § 1, effective July 1; (1)(a) and IP(4) amended and (1)(d) added, pp. 1279, 1280, §§ 1, 2, effective May 22. L. 81: IP(1) amended, p. 1456, § 4, effective May 27. L. 84: (4.5) added and (5) amended, p. 839, § 1, effective March 29. L. 86: (1), (3), IP(4), (4)(f), (4)(g), and (4)(i) amended, (4)(d) repealed, and (9) to (11) added, pp. 1044, 1062, §§ 1, 39, effective July 1. L. 90: IP(1) amended, p. 1472, § 6, effective July 1; (11) R&RE, p. 1473, § 7, effective October 1. L. 2002: IP(1) amended, p. 273, § 14, effective August 7. L. 2008: (9) amended, p. 1302, § 24, effective May 27. L. 2010: (9)(c) added, (SB 10-100), ch. 207, p. 904, § 8, effective May 5.

Editor's note: This section is similar to former § 31-25-503 as it existed prior to 1975.

ANNOTATION

Law reviews. For article, "Economic Development Incentives for Colorado Municipalities", see 19 Colo. Law. 239 (1990).

This section must be strictly construed. Kaiser v. City of Lakewood, 33 Colo. App. 239, 517 P.2d 471 (1973).

This section includes "water mains" as a local improvement but nowhere does this or any other section of the act say anything about "supplying water". City of Aurora v. Krauss, 99 Colo. 12, 59 P.2d 79 (1936).

General assembly did not intend use of singular noun "street" to have special significance in subsection (1)(a). Kaiser v. City of Lakewood, 33 Colo. App. 239, 517 P.2d 471 (1973).

Separate streets not required to be considered noncontiguous units. Fact that the general assembly used the singular noun "street" instead of "streets" in subsection (1)(a) did not require that separate streets should be considered as noncontiguous units nor require that the owners of a majority of property abutting each street within the district sign a petition before the district could be created. Kaiser v. City of Lakewood, 33 Colo. App. 239, 517 P.2d 471 (1973).

Owners not burdened by inclusion of two streets in district. Inclusion of two streets in a single improvement district will not result in burdening the owners of property on one street with the substantial costs of creating the larger, undeveloped second street, because assessments are apportioned on the basis of benefit. Kaiser v. City of Lakewood, 33 Colo. App. 239, 517 P.2d 471 (1973).

Purpose of separate signatures from noncontiguous areas. Requirement of subsection (1)(a) that signatures be separately obtained from noncontiguous portions of a district is designed to insure that property owners, unlikely to use or benefit from improvements in one part of a district, need not have their streets improved based upon the desires of property owners from another isolated area. Kaiser v. City of Lakewood, 33 Colo. App. 239, 517 P.2d 471 (1973).

The purpose in requiring the city council to enter this preliminary order and the city clerk to give the preliminary notice, is to permit persons thereby affected to object, if they see fit, to the proposed improvement being made at all, and to settle, in the inception of the enterprise, the regularity of the preliminary steps antecedent to the passage of the ordinance authorizing the proposed improvement. Ellis v. Town of La Salle, 72 Colo. 244, 211 P. 104 (1922).

Under subsection (3) detailed matters may be left to the engineer in charge. Where the nature of a public improvement is such that an accurate predetermination of details in every respect cannot be made, like in the construction of a sewer, such matters as cannot be determined in advance with certainty may be left to the judgment of the engineer in charge under the direction of the lawfully constituted authorities. Hildreth v. City of Longmont, 47 Colo. 79, 105 P. 107 (1909).

Subsection (5) is constitutional. Gillum v. Town of Rifle, 70 Colo. 198, 197 P. 1017 (1921).

Statutory provisions respecting the manner in which protests against public improvements shall be made must be substantially followed in order to avail the protestant. Hildreth v. City of Longmont, 47 Colo. 79, 105 P. 107 (1909).

There is no necessity for persons in response to the preliminary notice to object to the cost of the assessment against them. By failing to respond to the preliminary notice their right to object to the rate of assessment under § 31-25-504 is not affected, but they waive their right to be heard upon any objection they might have to the creation of the proposed improvement. Watson v. City of Ft. Collins, 86 Colo. 305, 281 P. 355 (1929).

Questions as to sufficiency of notice must be raised when objections are presented. Hildreth v. City of Longmont, 47 Colo. 79, 105 P. 107 (1909).

Subsection (5) did not preclude judicial review where the issue to be resolved was whether, under subsection (1)(a), city council properly applied the law in reaching its conclusion that a petition was in conformity with the law and signed by the requisite number of people, and was not a factual determination of whether a petition was properly signed by the requisite number of property owners. Kaiser v. City of Lakewood, 33 Colo. App. 239, 517 P.2d 471 (1973).