Opinion
No. 77-427 No. 77-428 No. 77-429 No. 77-430
Decided December 22, 1977.
Trial court voided four annexations of city, and city appealed.
Reversed
1. ANNEXATION — Civil Action — Technically Pending — Areas At Issue — Excluded by Settlement — Election — Not Required. Although civil action seeking annexation election for one large area attempted to be annexed by city was still pending, settlement by two claimant cities had determined that the action could have no effect as to four smaller included areas annexed without an election; thus, the question of annexing those areas has been finally determined, and it would serve no purpose to require that an election be held in those areas.
2. School Board Resolution — Approval of Large Area — Applicable — Small Included Area. Where school board entered resolution approving annexation of one large area, that approval satisfies the statutory requirements requiring such approval for a later annexation of a smaller area included within the larger.
3. Annexation Petition — City Council — Determined — 100% Ownership — No Contrary Evidence — Absence — Supporting Evidence — Without Significance. Where, relative to four attempted annexations, each annexation petition alleged that it was signed by the owner of 100% of the territory to be annexed and the city council of annexing city so found, and where county challenging those annexation petitions did not offer to contest the allegation of 100% ownership, and no evidence appears in the record to contradict the conclusions of the petitions, the city council, or the trial court, the absence of evidence in support of the 100% ownership claim is without significance.
4. Discrepancy — Description of Land — Technical — Insufficient — Set Aside Annexation. Where discrepancy in description of parcel to be annexed differed in petitions for annexation, but that difference was merely one of descriptive terms and reflected the inclusion of a street in one description, that technical conflict in the descriptions cannot serve as a basis for setting aside the annexation.
Appeal from the District Court of Arapahoe County, Honorable John C. Statler, Judge.
Ronald S. Loser, for plaintiff-appellee.
Max P. Zall, City Attorney, Herman J. Atencio, Assistant City Attorney, David J. Hahn, Special Counsel, for defendants-appellants.
This case arises out of several attempted annexations by the City and County of Denver under the Municipal Annexation Act of 1965, § 31-8-101 et seq., C.R.S. 1973 (now § 31-12-101 et seq., C.R.S. 1973 (1977 Repl. Vol.)). Acting on stipulated facts and a certified record, the trial court voided four annexation ordinances of the City and County of Denver on the grounds that the territory sought to be annexed was the subject of a prior annexation proceeding which had not been resolved in accordance with the statute, and on the grounds that there were irregularities in the required school board approval under § 31-8-105(1)(d), C.R.S. 1973. We disagree and reverse.
On February 6, 1973, Aurora received petitions for an annexation election for a tract of land in Arapahoe County. On March 9, 1973, Denver received a petition for an annexation election for a tract of land in Arapahoe County which included the tract described in the petition received by Aurora. Denver also received a resolution from the Denver School District approving this annexation pursuant to § 31-8-105(1)(d), C.R.S. 1973. Because the two tracts overlapped, Denver sent a notice of conflicting annexation claims to Aurora, and on March 28, 1973, Denver petitioned the Arapahoe County District Court for the appointment of commissioners to hold an annexation election under § 31-8-114, C.R.S. 1973.
On July 5, 1973, the district court ordered the overlapping land to be deleted from Denver's petition and dismissed Aurora with prejudice as a party to the action. On August 3, 1973, Denver repealed its resolution accepting the petition for annexation and determined by agreement with Aurora that the overlapping portions of the territory were not capable of being integrated into Denver and that Denver had no community of interest with those portions. This agreement was published as an ordinance by both cities. The City of Aurora then annexed the overlap territory.
In August and September 1973, Denver received petitions for annexation of four small parcels of territory which lay outside the overlap area, but within the larger territory which had been the subject of the previous action. Each petition alleged that the petition was signed by the owner of 100% of the territory proposed to be annexed.
As required by § 31-8-105(1)(d), C.R.S. 1973, three of the approving ordinances were accompanied by resolutions of School District No. 1 approving the annexation; one petition recited the resolution of School District No. 1 which had accompanied the earlier petition for annexation of the large parcel of land. Proceeding under § 31-8-107(1)(g), C.R.S. 1973, Denver annexed these four small territories by ordinances without notice or election. Thereafter, Arapahoe County began this action seeking a C.R.C.P. 106 review of the validity of the annexation of the proposed small parcels.
On this appeal, two principal issues are presented for review: whether the four annexations are void because they lie within territory involved in another annexation proceeding and are therefor subject to the requirement of an election to settle the conflicting annexation claims under § 31-8-114, C.R.S. 1973; and, whether the four annexations were approved by School District No. 1 as required by § 31-8-105(1)(d), C.R.S. 1973.
I.
Arapahoe County argues that since the civil action for an annexation election is still pending, an election must be held to determine the status of the previous overlap area. We disagree.
Such an election would be an empty gesture since both municipalities are prevented by their later ordinances from attempting to annex the same piece of territory. Repeal of an annexation procedure, followed by the enactment of another annexation ordinance, is within the powers of municipalities. Board of County Commissioners v. Denver, 190 Colo. 300, 546 P.2d 497. Although the civil action is technically pending, it can have no effect and no further action can be taken under it. The repealing ordinances have made the earlier resolutions dead for all purposes. Elliott v. Fort Collins, 135 Colo. 558, 313 P.2d 316.
On stipulation of Denver and Aurora, the previous annexation proceeding ended with the dismissal, with prejudice, of Aurora as a necessary party, and the exclusion of the overlapping portion of the territory from Denver's petition for an annexation election. This order has not been challenged. Thus, there is now no territory subject to "conflicting annexation claims of two or more municipalities" under § 31-8-114, C.R.S. 1973, and the question of annexing such territory or any part thereof "has been finally determined" under § 31-8-118, C.R.S. 1973.
[1] Consequently, to require Denver to hold an election in the previous overlap area, now disclaimed by Denver and annexed by Aurora, would be an exercise in futility and would in no way further the legislative purpose underlying the Act. See § 31-8-102, C.R.S. 1973.
II.
Under § 31-8-105(1)(d), C.R.S. 1973, annexation resolutions and petitions are required to be "accompanied by a resolution of the board of directors of the school district to which such territory will be attached approving such annexation." In this case, one annexation, No. 31442, was found by the trial court to be properly accompanied by a resolution. In two of the annexations, Nos. 31441 and 31444, the required school board resolutions were adopted before the annexing ordinances, as well as before Denver's consideration of the annexation. Under these circumstances, since the required resolutions were available to the city council before its deliberations, there was substantial compliance with the statutory requirements. See Board of County Commissioners v. Denver, 193 Colo. 211, 565 P.2d 212.
One petition, No. 31443, recites the earlier school board approval originally accompanying the annexation resolution which had included the overlap area with Aurora. This school board resolution applies to an area that includes all four of the small parcels. A similar situation has been dealt with by our Supreme Court in Board of County Commissioners v. Denver, supra, at 565 P.2d, and there a school board's approval of a large area was held to be applicable to a smaller included area.
[2] This case controls the present appeal. The original resolution of School Board No. 1 approving the earlier proposed annexation of the larger area satisfies the requirements of § 31-8-105(1)(d), C.R.S. 1973, for later annexation of the included smaller area.
III.
[3] Arapahoe County also argues that there is no evidence in the record upon which Denver could find that the petitioners own 100% of the territories sought to be annexed. Each petition, however, alleges that it is signed by the owner of 100% of the territory, and the Denver City Council so found. Furthermore, Arapahoe County does not, in fact, offer to contest the 100% ownership, and no evidence appears in the record to contradict the conclusions of the petitions, the city council, or the trial court. Accordingly, the absence of supportive evidence on this matter is without significance.
[4] Finally, Arapahoe County argues that two descriptions of the parcel in the petition for annexation No. 31441 differ. The difference, however, is merely one of descriptive terms and reflects the inclusion of a street in one description. Streets and roadways are excluded when considering whether all of the landowners in an area proposed to be annexed have signed an annexation petition, and, if all other owners are signatories, there are no notice, hearing, or election requirements. Section 31-8-107(1)(g), C.R.S. 1973. Thus, this technical conflict in the descriptions cannot serve as a basis for setting aside the annexation.
The judgment of the trial court is reversed and the cause is remanded with directions to dismiss plaintiff's complaints.
JUDGE ENOCH and JUDGE PIERCE concur.