Colorado § 32-1-305 - Court hearing - election - declaration of organization.

§ 32-1-305. Court hearing - election - declaration of organization.

(1) Except as otherwise provided in section 32-1-304.5, on the day fixed for the hearing provided in section 32-1-304 or at an adjournment thereof, the court shall first ascertain, from such evidence which may be adduced, that the required number of taxpaying electors of the proposed special district have signed the petition. Notwithstanding any other provision of law, only those signatures obtained after the approval of the service plan pursuant to section 32-1-205 or 32-1-206 or after approval of the petition by the governing body of a municipality pursuant to section 32-1-205 shall be considered by the district court in making the evidentiary finding that the required number of taxpaying electors of the proposed special district have signed the petition in accordance with this subsection (1).

(2) Except as otherwise provided in section 32-1-304.5, upon said hearing, if the court finds that the petition has not been signed and presented in conformity with this part 3, it shall dismiss said proceedings and adjudge the costs against the signers of the petition in the proportion it deems just and equitable. No appeal or other remedy shall lie from an order dismissing said proceedings. Nothing in this subsection (2) shall be construed to prevent the filing of a subsequent petition for similar improvements or for a similar special district, and the right so to renew such proceedings is hereby expressly granted and authorized.

(3) Except as otherwise provided in section 32-1-304.5, anytime after the filing of the petition for the organization of a special district but no later than ten days before the day fixed for the hearing thereon, the owner of any real property within the proposed special district may file a petition with the court stating reasons why said property should not be included therein and requesting that said real property be excluded therefrom. The petition shall be duly verified and shall describe the property sought to be excluded. The court shall hear the petition and all objections thereto at the time of the hearing on the petition for organization and shall determine whether, in the best public interest, the property should be excluded or included in the proposed special district. The court shall exclude property located in any home rule municipality in respect to which a petition for exclusion has been filed by the municipality.

(4) Except as otherwise provided in section 32-1-304.5, upon the hearing, if it appears that a petition for the organization of a special district has been signed and presented in conformity with this part 3 and that the allegations of the petition are true, the court, by order duly entered of record, shall direct that the question of the organization of the special district be submitted at an election to be held for that purpose in accordance with article 13.5 of title 1.

(5) At such election the voter shall vote for or against the organization of the special district and for five electors of the district who shall constitute the board of the special district, if organized.

(6) If a majority of the votes cast at said election are in favor of the organization and the court determines the election was held in accordance with article 13.5 of title 1, the court shall declare the special district organized and give the special district the corporate name designated in the petition, by which it shall thereafter be known in all proceedings, and designate the first board elected. Thereupon the special district shall be a quasi-municipal corporation and a political subdivision of the state of Colorado with all the powers thereof.

(7) If an order is entered declaring the special district organized, such order shall be deemed final, and no appeal or other remedy shall lie therefrom. The entry of such order shall finally and conclusively establish the regular organization of the special district against all persons except the state of Colorado in an action in the nature of quo warranto commenced by the attorney general within thirty-five days after entry of such order declaring such special district organized and not otherwise. The organization of said special district shall not be directly or collaterally questioned in any suit, action, or proceeding except as expressly authorized in this subsection (7).

Source: L. 81: Entire article R&RE, p. 1553, § 1, effective July 1. L. 92: (4) amended, p. 876, § 108, effective January 1, 1993. L. 94: (6) amended, p. 1642, § 65, effective May 31. L. 2007: (1), (2), (3), and (4) amended, p. 1190, § 9, effective July 1. L. 2012: (7) amended, (SB 12-175), ch. 208, p. 881, § 146, effective July 1. L. 2016: (4) and (6) amended, (SB 16-189), ch. 210, p. 783, § 81, effective June 6. L. 2017: (1) amended, (HB 17-1065), ch. 73, p. 232, § 4, effective August 9. L. 2021: (4) and (6) amended, (SB 21-160), ch. 133, p. 538, § 8, effective September 7.

Editor's note: The provisions of this section are similar to provisions of several former sections as they existed prior to 1981. For a detailed comparison, see the comparative tables located in the back of the index.

ANNOTATION

Quo warranto action in subsection (7) is exclusive means of attacking an order declaring a special district organized if an organizational election is used. In re Org. of Upper Bear Creek, 682 P.2d 61 (Colo. App. 1983), aff'd, 715 P.2d 799 (Colo. 1986).

District court statutorily barred under subsection (7) from setting aside order creating special district based on fraud on the court. The statute is specific in providing for review of an action by a district court only in a very narrow and time-constrained procedure that did not occur here. Where the authority of the court to enter an order in the first place emanates solely from a statutory grant from the legislature, as is the case with the organization of a special district, and that statutory grant contains a limitation on the power of the court to review the order once it is entered, court must defer to the legislative determination to place a limit on the review of such an order. Marin Metro. Dist. v. Landmark Towers Ass'n, 2014 COA 40, 412 P.3d 620.

Provision relating to quo warranto action is inapposite where county is an interested and aggrieved party pursuant to §§ 32-1-203, 32-1-206, 32-1-207, and 32-1-1201. County had standing under such sections to attack court's decree. In re Org. of Upper Bear Creek, 682 P.2d 61 (Colo. App. 1983), aff'd, 715 P.2d 799 (Colo. 1986).

Constitutional challenge to subsections (4) through (6) of this section on grounds that denying corporate entities the right to vote on the formation of a special district violates the equal protection clause was premature as no petition for organization was pending before district court. State Farm v. City of Lakewood, 788 P.2d 808 (Colo. 1990).