Opinion
No. 79CA0708
Decided March 20, 1980.
From a summary judgment for plaintiffs in an action seeking disconnection of a subdivision from town, the town appealed.
Affirmed
1. MUNICIPAL CORPORATIONS — Statute — Petition for Disconnection — Failure — Provide Municipal Services — Continuing Right Created — Estoppel Not Arise — Consent to Annexation. Statutory provision allowing landowners to petition for disconnection from municipality three or more years after annexation if such municipality does not, upon demand, provide municipal services on same general terms and conditions as rest of municipality receives is a provision which creates a continuing right, and estoppel does not arise to bar disconnection merely because petitioner at one time consented to annexation.
2. Landowner — Satisfies Condition — Disconnection from Municipality — Trial Court — Duty — Order Requested Disconnection. If a landowner satisfies the conditions necessary to be entitled to disconnection from municipality three or more years after annexation if such municipality does not, upon demand, provide municipal services on same general terms and conditions as rest of municipality receives, the trial court has the duty to order the disconnection requested.
3. Annexation Condition — Concerning Water Supply — Subdivision — Municipality — Not Relieved — Obligation — Failure — Supply Water — Disconnection — Mandatory. Annexation condition that town would not be required to supply water to landowners in annexed subdivision did not relieve town of its statutory obligation to provide subdivision with same municipal services on same general terms and conditions as rest of municipality received, and thus, since town failed to provide water to subdivision on same basis that water was supplied to other areas of town, disconnection of subdivision from town was mandatory.
Appeal from the District Court of El Paso County, Honorable Joe A. Cannon, Judge.
David C. Mize, for plaintiffs-appellees.
Darrell D. Thomas, for defendant-appellant.
From a summary judgment for plaintiffs on an action seeking disconnection of a subdivision known as Cloven Hoof Estates from the Town of Palmer Lake, defendant appeals. We affirm.
Prior to 1960, the Town of Palmer Lake annexed the Cloven Hoof Estates subdivision. In August 1978, plaintiffs, as owners of property in the Cloven Hoof Estates subdivision, petitioned the Palmer Lake Board of Trustees for disconnection of the subdivision from the Town. The petition was denied. Subsequently, plaintiffs brought this action asserting, inter alia, that by virtue of the Town's failure to provide water to the subdivision, on the same basis that water was supplied to other areas of the town, they were entitled to disconnection under § 31-12-119, C.R.S. 1973 (1977 Repl. Vol. 12). On the basis that there existed no material issue of fact as to the Town's failure to provide municipal services, i.e., water, the court entered summary judgment ordering the disconnection.
Defendant concedes that the Town has never provided water to the subdivision. However, defendant argues that the original annexation of the subdivision was conditioned upon the Town not being required to supply water, and that therefore, plaintiffs are estopped from seeking disconnection under § 31-12-119, C.R.S. 1973 (1977 Repl. Vol. 12). We disagree.
Section 31-12-119, C.R.S. 1973 (1977 Repl. Vol. 12) provides in pertinent part:
"The landowners of any tract or contiguous tracts of land aggregating five acres or more located on a boundary of the municipality at the time of the disconnection action may, three or more years after annexation, petition for disconnection from the municipality if such municipality does not, upon demand, provide the same municipal services on the same general terms and conditions as the rest of the municipality receives. . . ."
[1,2] The right created by this provision is a continuing one, and estoppel does not arise to bar disconnection merely because the petitioner at one time consented to the annexation. Town of Greenwood Village v. Heckendorf, 126 Colo. 180, 247 P.2d 678 (1952); In Re Loretto Literary Benevolent Institution v. Lakewood, 32 Colo. App. 302, 513 P.2d 467 (1973). If petitioner satisfies the conditions necessary to be entitled to disconnection under the statute, it becomes the duty of the court to order the disconnection. In Re Loretto Literary, supra.
[3] Here, there exists no factual dispute as to whether plaintiffs have satisfied the requirements of § 31-12-119, C.R.S. 1973 (1977 Repl. Vol. 12). And, we disagree with defendant's contention that the annexation "condition", that the Town would not be required to supply water, relieves defendant of its statutory obligation to provide plaintiffs with "the same municipal services on the same general terms and conditions as the rest of the municipality receives." See Town of Greenwood Village v. Heckendorf, supra. Therefore, the disconnection of Cloven Hoof Estates from the Town of Palmer Lake was mandatory.
Accordingly, we affirm the order of the court entering summary judgment for plaintiffs and disconnecting the subdivision from the Town.
In view of this conclusion we need not consider defendant's other assignments of error.
Judgment affirmed.
JUDGE SMITH and JUDGE KELLY concur.