BOARD OF COUNTY COM'RS v. City of Aurora

• Decision Date: 26 September 2002
• Docket Number: No. 01CA1380.,01CA1380.
• Citation: 62 P.3d 1049
• Parties: BOARD OF COUNTY COMMISSIONERS OF DOUGLAS COUNTY, Plaintiff-Appellee and Cross-Appellant, v. CITY OF AURORA, a Colorado municipal corporation; and Gartrell Investment Company, L.L.C., a Colorado limited liability company, Defendants-Appellants and Cross-Appellees.
• Court: Colorado Court of Appeals

62 P.3d 1049

BOARD OF COUNTY COMMISSIONERS OF DOUGLAS COUNTY, Plaintiff-Appellee and Cross-Appellant, v. CITY OF AURORA, a Colorado municipal corporation; and Gartrell Investment Company, L.L.C., a Colorado limited liability company, Defendants-Appellants and Cross-Appellees.

No. 01CA1380.

Colorado Court of Appeals, Div. II.

September 26, 2002.

As Modified on Denial of Rehearing December 5, 2002.

J. Mark Hannen, County Attorney, Kurt G. Stiegelmeier, Assistant County Attorney, Castle Rock, CO; Hayes, Phillips & Maloney, P.C., John E. Hayes, Denver, CO, for Plaintiff-Appellee and Cross-Appellant.

Charles H. Richardson, City Attorney, Robert Rogers, Assistant City Attorney, Robert G. Werking, Assistant City Attorney, Aurora, CO, for Defendant-Appellant and Cross-Appellee City of Aurora.

Otten, Johnson, Robinson, Neff & Ragonetti, P.C., Thomas J. Ragonetti, J. Thomas Macdonald, Munsey L. Ayers, Jr., Denver, CO, for Defendant-Appellant and Cross-Appellee Gartrell Investment Company, L.L.C.

Gorsuch Kirgis, L.L.P., Gerald E. Dahl, Denver, CO; Colorado Municipal League, Carolynne C. White, Denver, CO, for Amicus Curiae Colorado Municipal League.

Hall & Evans, L.L.C., Josh A. Marks, Denver, CO, for Amicus Curiae Colorado Counties, Inc.

Opinion by Judge CASEBOLT.

In this action for review of a land annexation, defendants, the City of Aurora and Gartrell Investment Company, L.L.C. (developer), appeal the judgment in favor of plaintiff, the Board of County Commissioners of Douglas County, voiding the city's annexation of developer's property. The county cross-appeals the court's interpretation and application of an annexation provision. We affirm in part and reverse in part.

Developer filed petitions seeking annexation of three parcels of its land located immediately adjacent to the city's boundary. The county and others objected to the annexation. After the city annexed the property, the county initiated this action seeking judicial review under § 31-12-116, C.R.S. 2002. The county asserted that its designation as "open space" of two county roads between and adjacent to two of the parcels defeated contiguity requirements; that two "special districts" were not given notice of the annexation hearing; that the city's annexation impact report was deficient; and that the annexation petition lacked necessary signatures.

The district court agreed with the first three assertions, held that the city had abused its discretion and exceeded its jurisdiction in annexing the three parcels, and voided the annexation. Rejecting the county's alternative assertion, the court determined that the petitions complied with the signature requirement. This appeal followed.

I.

Defendants contend the court erred in concluding that the county's designation of two roadways as "county-owned open space" precluded the annexation of two parcels. We agree.

The Municipal Annexation Act of 1965(Act), § 31-12-101, et seq., C.R.S.2002, governs annexation. Judicial review of annexation is a special statutory proceeding and is limited to determining whether the governing body that approved the annexation exceeded its jurisdiction or abused its discretion. Section 31-12-116(3), C.R.S.2002; see Town of Superior v. Midcities Co., 933 P.2d 596 (Colo.1997); TCD North, Inc. v. City Council, 713 P.2d 1320 (Colo.App.1985).

On review, the court must accord great latitude to this legislative discretion and must indulge every reasonable presumption favoring the validity of the annexation. The court is generally limited to determining whether the Act's procedural mandates have been met, and it may not pass upon the wisdom of the annexation itself. See Town of Superior v. Midcities Co., supra; City of Englewood v. Daily, 158 Colo. 356, 407 P.2d 325 (1965)

; TCD North, Inc. v. City Council, supra.

Because we are in the same position as the district court in reviewing annexation proceedings, our review is de novo. See City of Colorado Springs v. Bd. of County Comm'rs, 895 P.2d 1105 (Colo.App.1994)

.

The Act requires the governing body to find that at least one-sixth of the perimeter of the area proposed for annexation is contiguous with the boundaries of the annexing municipality. The contiguity provision then excludes certain lands from the determination, as follows:

Contiguity shall not be affected by the existence of a platted street or alley, a public or private right-of-way, a public or private transportation right-of-way or area, public lands, whether owned by the state, the United States, or an agency thereof, except county-owned open space, or a lake, reservoir, stream, or other natural or artificial waterway between the annexing municipality and the land proposed to be annexed.

Section 31-12-104(1)(a), C.R.S.2002.

Here, there is no dispute that the county roads located between the city and the parcels are public rights-of-way within the meaning of the statute. As such, defendants may satisfy the contiguity requirement by ignoring the two county roads.

A.

The county asserts, however, that its designation of those roadways as "open space" in a resolution passed shortly before the annexation hearing prevents exclusion of the roads in determining contiguity. We disagree.

While the county is authorized to own, dispose of, and designate the uses of real property, it has no authority to define terms employed by the General Assembly in state statutes. See Pennobscot, Inc. v. Bd. of County Comm'rs, 642 P.2d 915 (Colo.1982)

; Bd. of County Comm'rs v. Gartrell Inv. Co., 33 P.3d 1244 (Colo.App.2001). Rather, interpretation of the Act is a question of law for the court to decide, and our review is therefore de novo. See United Airlines, Inc. v. Indus. Claim Appeals Office, 993 P.2d 1152 (Colo.2000); Minch v. Town of Mead, 957 P.2d 1054 (Colo.App.1998). Accordingly, in determining whether the roadways at issue are open space for purposes of the Act's contiguity requirement, the county's designation is not binding.

In construing the provisions of the Act, we seek to give effect to the intent of the General Assembly. In doing so, we first look to the statutory language, giving words and phrases their commonly accepted and generally understood meaning. When the language of the statute is plain and its meaning is clear, we need not resort to interpretive rules of statutory construction, but must apply the statute as written. Town of Superior v. Midcities Co., supra; see

§ 2-4-101, C.R.S.2002.

Here, "open space" is not specifically defined by the Act. However, that term is generally understood to mean: "Any parcel or area of land or water essentially unimproved and set aside, dedicated, designated or reserved for public or private use or enjoyment or for the use and enjoyment of owners and occupants of land adjoining or neighboring such open spaces." Black's Law Dictionary 1091 (6th ed.1990).

This definition comports with the General Assembly's use of the term elsewhere. See, e.g., § 29-21-101, C.R.S.2002 (types of open space include floodplains, greenbelts, agricultural lands, and scenic areas); § 39-1-102, C.R.S.2002 (open space includes farmland and forestland). Accordingly, we apply it here. The property designated by the county has been improved through grading and surfacing and serves as public roadways. Because it is not essentially unimproved, the property is not open space within the meaning of § 31-12-104(1)(a).

We reject the county's contention that the property only partly consists of roadway. The record reveals that, while not all the roadway is surfaced, its entire length is graded for vehicular use. Moreover, testimony at the annexation hearing likewise established that the property consists of roadways that carry a substantial volume of vehicular traffic. The county's argument is also belied by the language of its own resolution declaring these roads to be open space, which explicitly and exclusively refers to the county roads by name as the designated open space property.

Because the county roads here are not open space, they do not affect contiguity under the terms of the Act. Hence, the court erred in voiding the annexation of the two parcels for failure to satisfy the contiguity requirement.

Under the circumstances of this case, we need not address whether a parcel of otherwise unimproved property that is traversed by an access road can be described as open space. Limiting our ruling to the facts of this case, we conclude only that a parcel consisting entirely of roadway is not "essentially unimproved" and therefore is not open space.

B.

We reject the county's contention that defendants lack standing to assert that the resolution designating the roads as "open space" is invalid.

Defendants did not bring an action to invalidate the resolution. Instead, they responded to the county's argument, in the course of the annexation challenge, that the city abused its discretion or exceeded its jurisdiction by finding that the contiguity requirement was met despite the county's open space declaration. As parties to the county's claim brought pursuant to the Act, defendants were entitled to respond to the county's argument. See § 31-12-116; Mortgage Inv. Corp. v. Battle Mountain Corp., 56 P.3d 1104 (2001) (traditional standing rules do not apply when a defendant's standing is challenged; once the plaintiff has established standing and the defendants have been brought into court by the plaintiff, the defendants' only role is to defend against the suit).

For similar reasons, Bird v. City of Colorado Springs, 176 Colo. 32, 489 P.2d 324 (1971), in which the court applied a presumption of validity to the city's classification of land, is inapposite. While it is true that a presumption of validity would normally apply to the county's open space designation if a facial challenge to the resolution had been brought, no such challenge was brought here. Moreover, we consider here only the meaning of "open space" as it is used in the Act's contiguity...