Opinion
No. 73-081
Decided December 26, 1973.
Property owners brought action challenging the inclusion of their property in a special improvement district that had been created by action of the defendant city council. Trial court dismissed the complaint, and plaintiffs appealed.
Affirmed
1. SPECIAL DISTRICTS — Action — Challenging Inclusion — Plaintiff's Properties — Issue Raised — One of Law — City Council's Actions — Subject — Judicial Review. In action challenging the inclusion of plaintiffs' properties in special improvement district, the issue raised by plaintiffs relates to whether the city council properly applied the law in determining that petition for such inclusion was proper, and not to the factual determination of whether the petition was properly signed by the requisite number of property owners; thus, statute making such factual determination conclusive was inapplicable, and the city council's actions in regard to that legal issue are properly subject to judicial review.
2. Statute — Majority Owners — Non-Contiguous Sections — Petition for Inclusion — Not Applicable — Intersecting Streets — Majority on Each Street — Not Required — Sign Petition. Statutory provision relative to creation of special improvement district that requires majority of property owners in each non-contiguous section of the proposed district to petition for inclusion in the district is not applicable in regard to the property owners on two intersecting streets; thus, the owners of a majority of the property abutting each of the two intersecting streets are not required to sign the petition before a district including the property on both streets could be created.
3. Assertion — Inclusion — Two Intersecting Streets — Burden — Owners on One Street — Substantial Costs — Without Merit. Since assessments in special improvement districts are, by statute, to be apportioned on the basis of the benefit derived by each assessed property, and since there are statutory provisions as to notice, hearings, and judicial review of such assessment, the assertion that the inclusion of two intersecting streets in one district would result in burdening owners of property on one street with the substantial cost of improving the other street is an assertion without merit.
4. Contention of Plaintiffs — Petition Insufficient — Determination — City Council — Conclusive — Not Disturbed. Where plaintiffs contend that petition for creation of special improvement district is insufficient because alleged unauthorized agent of the school district signed the petition in favor of the creation of the district, the factual determination by the city council relative to such contention is, by statute, conclusive and thus will not be disturbed.
Appeal from the District Court of the County of Jefferson, Honorable George G. Priest, Judge.
Eugene Deikman, for plaintiffs-appellants.
Raymond C. Johnson, City Attorney, Russell J. Sindt, Deputy City Attorney, for defendants-appellees City of Lakewood.
Plaintiffs, owners of property abutting West Louisiana Avenue in Lakewood, Colorado, challenge the inclusion of West Louisiana Avenue in the Louisiana-Reed Special Improvement District Number Two, which was created by action of defendant city council. Plaintiffs brought this action to enjoin defendant city from proceeding further with the improvement district and from assessing appellants for the proposed improvements on the grounds that the city failed to comply with statutory provisions relative to creation of the district. After considering the showings made by plaintiffs, the trial court denied their claim and dismissed the complaint. We affirm.
The facts require only brief recital. The special improvement district was created to improve an existing portion of West Louisiana Avenue and to open and improve, previously dedicated, Reed Street. West Louisiana Avenue, which runs east and west, terminates at its intersection with Reed Street, which runs north and south. No improvements had been made or assessments ordered at the time this suit was commenced.
I.
Plaintiffs claim that the petition for creation of the improvement district does not comply with C.R.S. 1963, 89-2-2(1)(b). That section provides, in part:
"No improvement . . . shall be ordered under this article, unless a petition for the same is first presented, subscribed by the owners of a majority of the frontage directly abutting on that portion of the street to be improved . . . . In any case where a proposed improvement district includes two or more non-contiguous parts or sections, the owners of a majority of the property in each non-contiguous section shall petition as specified in this article."
Plaintiffs urge that this provision prohibits the inclusion of two or more streets in a single improvement district unless the owners of a majority of the property abutting each street sign the petition. They assert that the petition here under consideration is therefore insufficient because the owners of a majority of property abutting West Louisiana did not sign it.
Initially, defendants argue that review of this issue is precluded by C.R.S. 1963, 89-2-2(5), which provides:
"The finding by ordinance or resolution of the city council . . . that the petition was subscribed by the required number of owners, shall be conclusive of the facts so stated, in every court or other tribunal."
In this case, defendant city council, has resolved that it "has examined said petition and finds the same to be in conformity with the law and signed by the requisite number of people."
[1] The city council's actions in this case are properly subject to judicial review. The issue raised by plaintiffs relates to whether the council properly applied the law in arriving at its conclusion, not to the factual determination of whether the petition was properly signed by the requisite number of property owners.
[2] Plaintiffs assert that special significance should be placed on the fact that the legislature used the singular noun "street" in C.R.S. 1963, 89-2-2(1)(b), and they argue that separate "streets" should be considered as non-contiguous units under that article. It would follow, they contend, that the owners of a majority of property abutting each street within the improvement district should be required to sign the petition before the district could be created.
In support of this theory, plaintiffs cite Baker v. Dahlman, 119 Neb. 425, 229 N.W. 280 (1930); Hutchinson v. City of Omaha, 52 Neb. 345, 72 N.W. 218 (1897) and Whittaker v. City of Deadwood, 23 S.D. 538, 122 N.W. 590 (1909). These cases hold that the opportunity for confiscation of property inherent under special assessment statutes necessitates strict construction of the statute.
We agree that the statute must be strictly construed. However, to attempt to construe the singular use of the word "street" as meaning that all streets, whether intersecting or not, are non-contiguous, unduly strains the wording of this provision. We do not believe the legislature intended the use of the singular noun "street" to have special significance in C.R.S. 1963, 89-2-2(1)(b). To the contrary, the legislature uses the singular and plural forms interchangeably. For example, C.R.S. 1963, 89-2-2(1)(a), provides that improvements authorized under that statutory provision may include "the whole or any part of any street, alley or streets and alleys in such city . . . ." (emphasis added). Further, we note that C.R.S. 1963, 135-1-2(2), which provides legislative guidelines for statutory construction, states that, unless manifestly inconsistent with the legislative intent:
"Every word importing the singular number only may extend to and be applied to one person or thing, or to several persons or things . . . ."
We see little practical distinction in the instant case between an "L" shaped district wherein two separately named streets join and one in which a single street turns at a right angle.
In our view, the requirement of the statute that signatures be separately obtained from non-contiguous 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. The very fact of contiguity of streets, however, implies common benefit and use by those property owners abutting any of the contiguous streets, even though they may live in otherwise distinctly different areas.
II.
[3] Plaintiffs argue that inclusion of two streets in a single district will result in burdening the owners of property on West Louisiana Avenue with the substantial costs of creating the larger, undeveloped Reed Street. This argument is without merit because pursuant to C.R.S. 1963, 89-2-7, assessments are to be apportioned on the basis of the benefit derived by each assessed property from the improvement. The statute further requires notice of the assessment prior to final approval, C.R.S. 1963, 89-2-17(1)(a); provides for hearings before the city council on objections to the apportionment, C.R.S. 1963, 89-2-18; and provides for judicial review on the issue of whether the assessment levied exceeds the benefits received by the specific property assessed, C.R.S. 1963, 89-2-83.
III.
[4] Plaintiffs last contend that the petition is insufficient because an allegedly unauthorized agent of the school district signed the petition in favor of creation of the improvement district. The factual determination by the city council concerning the authorization and that the requisite number of property owners signed the petition is conclusive, and will not be disturbed. C.R.S. 1963, 89-2-2(5).
Judgment affirmed.
JUDGE COYTE and JUDGE PIERCE concur.