Opinion
No. 71-435
Decided November 21, 1972. Rehearing denied December 12, 1972.
About one year after city's incorporation, owner of approximately 157 acres of land sought decree excluding his property from the city. From judgment denying relief sought, plaintiff appealed.
Reversed
1. MUNICIPAL CORPORATIONS — Consent Required — Large Landowner — Incorporation — Absent Defense — City Precluded — Including Land — City's Boundaries. Statute places upon those who would incorporate territory into a municipality the burden of seeking the consent of owners of forty acres or more; thus, absent laches, equitable estoppel, or the running of an applicable statute of limitations, city's failure to obtain consent of plaintiff precludes city from including his tract of land within city's boundaries.
2. ESTOPPEL — Landowner — Filed Protest — Upon Receipt — First Tax Notice — — No Detrimental Reliance — Preclude Complaint — Inclusion — Land — City's Boundaries. Since plaintiff landowner filed protest regarding inclusion of his land within boundaries of newly incorporated city immediately upon receiving his first tax notice, there is no showing of detrimental reliance such as would preclude plaintiff from complaining regarding that inclusion.
3. MUNICIPAL CORPORATIONS — Notice — Actual or Constructive — Insufficient — Obviate Necessity — Obtain Consent — Landowner — Include Land — City's Boundaries. Although landowner may have had notice (actual or constructive) of the proposed incorporation of defendant city, notice alone is not sufficient to obviate the necessity of city's obtaining consent of landowner in regard to including his land within the city's boundaries.
4. LIMITATION OF ACTIONS — Landowner's Action — Exclude Land — City's Boundaries — Not Barred — Statute — Prohibit Attacks — Legality — City's Formation. Since landowner is not attacking municipality's incorporation procedures as such but is merely seeking to exclude his land from being within city's boundaries, statute of limitation designed to prohibit collateral attacks upon legality of municipality's formation after a period of six months is not applicable to bar landowner's action.
Appeal from the District Court of Jefferson County, Honorable Christian D. Stoner, Judge.
Ireland, Stapleton, Pryor Holmes, P.C., Wilbur M. Pryor, Jr., William Imig, for plaintiff-appellant.
Raymond C. Johnson, City Attorney, Douglas S. Wamsley, Deputy, for defendant-appellee.
Plaintiff-appellant is the owner of approximately 157.6 acres of unimproved, unplatted land in Jefferson County, that was included in territory incorporated into the City of Lakewood in August of 1969. Plaintiff, after receiving a tax notice approximately one year after the incorporation, sought a decree from the district court altering and revising the southerly and easterly limits of the City of Lakewood so as to show that this property was excluded from the city. The city answered the complaint by stating that, since the action was brought more than six months after the date of incorporation, the legality of the formation and organization of the city could no longer be challenged. See C.R.S. 1963, 139-1-8. It also contended that a final decree of a court of competent jurisdiction had been rendered with respect to the validity of the incorporation of Lakewood, and that therefore plaintiff's claim amounted to a collateral attack on that decree, and thus should be denied.
[1] Both parties filed appropriate affidavits and moved for summary judgment. The trial court entered judgment denying plaintiff's motion and granting defendant's. Plaintiff brings this appeal. We reverse.
1969 Perm. Supp. C.R.S. 1963, 139-1-2, provides in part:
"In no case shall there be incorporated in such city or incorporated town any undivided tract of land consisting of forty or more acres lying within the proposed limits of such city or town, without the consent of the owners thereof. . . ."
This statute places upon those who would incorporate territory into a municipality the burden of seeking the consent of owners of forty acres or more. It is undisputed that the consent was not obtained. We hold that, absent laches, equitable estoppel, or the running of an applicable statute of limitations, defendant's failure to obtain the consent of plaintiff in this case precludes it from including this tract of land within the boundaries of Lakewood.
The city argues that this case is controlled by Kelley v. South Jeffco Metropolitan Recreation and Park District, 155 Colo. 469, 395 P.2d 210. We disagree. There, the court, presented with a similar statute that required written consent, found that laches and equitable estoppel precluded the property owner from asserting that his land should not be included in the district. He had paid property taxes for several years on the property and the district, in reliance upon the established boundaries, had initiated extensive plans including preparation of a bond issue. The court concluded that this reliance, coupled with the property owner's failure to make a timely objection to the inclusion of the land within the district, precluded the plaintiff from thereafter complaining.
[2, 3] In the case before us, there is no such showing of detrimental reliance. Indeed, plaintiff filed this protest immediately after receiving its first tax notice. Although plaintiff may have had notice (actual or constructive) of the proposed incorporation, notice alone is not sufficient to obviate the necessity of defendant's obtaining consent from plaintiff.
[4] The city further argues that the statute of limitations set forth in C.R.S. 1963, 139-1-8, would preclude the present action by plaintiff. Again, we disagree. The statute in question is designed to prohibit collateral attacks upon the legality of the municipality's formation after a period of six months. The plaintiff here is not attacking the incorporation procedures as such. Rather, plaintiff is only questioning the boundaries of the city. Plaintiff was entitled to rely on that portion of the incorporation statute which provides that its consent must be obtained before its land is included within the city, and it may make timely application to the court to decree the correct boundaries. Therefore, the statute of limitations contained in C.R.S. 1963, 139-1-8, is not applicable to this action.
Since, under the facts set forth in the affidavits, neither the statute of limitations, laches, nor equitable estoppel is a bar to the action, plaintiff is entitled to have its lands excluded from the boundaries of the city.
Judgment reversed and remanded with directions to enter judgment for plaintiff on its motion for summary judgment.
JUDGE DWYER and JUDGE SMITH concur.