Breternitz v. City of Arvada
| Decision Date | 15 March 1971 |
| Docket Number | No. 24977,24977 |
| Citation | 174 Colo. 56,482 P.2d 955 |
| Parties | Connie and Bill BRETERNITZ and Joyce and Ron Todd, Plaintiffs-Appellees, v. The CITY OF ARVADA, a municipal corporation, Defendant-Appellant, City of Westminster, a municipal corporation, Intervenor-Appellee. |
| Court | Colorado Supreme Court |
David J. Hahn, Denver, for plaintiffs-appellees Breternitz and todd.
Sonheim, Whitworth & Helm, Richard L. Whitworth, Arvada, for defendant-appellant City of Arvada.
Holland & Hart, Warren L. Tomlinson. Edwin S. Kahn, Stitt, Wittenbrink & Roan, James R. Stitt, Denver, for intervenor-appellee, City of Westminster.
This is an appeal from an order of the district court adjudging an attempted annexation of territory to the City of Arvada to be void. We reverse and hold the annexation to be valid.
The tract proposed to be annexed consisted of about 1,000 acres. A portion of this consists of developed Far Horizons Subdivision, which from its relative size on maps, comprises about 150 to 200 acres. Another portion consists of a 720-acre undeveloped tract owned by persons named Jones, who had contracted to sell it to Witkin VII, Inc. This latter tract is referred to as the Jones-Witkin tract. Neither Jones nor Witkin VII, Inc. have been parties to this litigation.
Petition for an annexation election was filed under The Municipal Annexation Act of 1965. 1965 Perm.Supp., C.R.S.1963, 139--21--6(2). It was signed principally by residents of Far Horizons Subdivision, and it was not signed by the Joneses nor Witkin VII, Inc. At the election subsequently held there were 591 votes in favor of annexation and 159 votes against.
Under 1965 Perm.Supp., C.R.S.1963, 139--21--4(3) a tract comprising 20 acres or more which, together with buildings and improvements thereon, has an assessed value in excess of $200,000 shall not be annexed without the written consent of its owners. There was no evidence of the amount of the assessed value of the Jones-Witkin tract. The trial court held that the $200,000 statutory limitation was unconstitutional; that the statute was severable in this respect; and that the 20-acre limitation was valid. The court ruled that since the owners of the Jones-Witkin tract had not consented and since it contained more than 20 acres, the requirement of the statute had not been met and for this reason the annexation was void.
The court concluded that the $200,000 limitation bore no reasonable relation to annexation, and that it is arbitrary, unreasonable, oppressive and unjust. The court relied upon Mountain States Tel. & Tel. Co. v. Animas Mosquito Control District, 152 Colo. 73, 380 P.2d 560 (1963), and Colorado Interstate Gas Co. v. Sable Water District, 152 Colo. 89, 380 P.2d 569 (1963). It further concluded that this denied equal protection of the law by preventing annexation of the wealthy while forcing it upon those who were poor or only moderately well off. Animas District was under a statute which provided for an exclusion. It was indicated that the elimination of such tracts would make it impossible to control mosquitoes in the district. It was held that these property exclusions bore no reasonable relation to the benefits to be obtained by the district and, therefore, were unconstitutional. A similar ruling was made in Sable District involving a water district in which the statute provided for the exclusion of a tract of 20 acres or more.
On the other hand, in District 50 Metropolitan Recreation Dist. v. Burnside, 167 Colo. 425, 448 P.2d 788 (1968), the exclusions of realty used for manufacturing, mining, railroad or industrial purposes of an assessed value in excess of $25,000 or any tract of farm land of 40 acres or more was held not to make the Metropolitan Recreation Districts law unconstitutional.
There is such a vast difference between annexation to a city on the one hand, and the formation of water, mosquito and recreation districts on the other hand, that we find none of these three cases controlling or analogous here.
A statute is presumed to be constitutional, and to be declared unconstitutional it must be shown clearly to be so. Love v. Bell, Colo., 465 P.2d 118 (1970); and Morgan County Junior College Dist. v. Jolly, 168 Colo. 466, 452 P.2d 34 (1969). We well might question the wisdom of the General Assembly in permitting these limitations in annexations, but we must not lose sight of the fact that the members of the Forty-Fifth General Assembly gave far more thought to the wisdom of this legislation before they adopted it than have we. Without a far better education on the subject than we have received in the briefs filed in this case, we believe the members of the General Assembly were far better qualified to pass upon the wisdom of these exclusions. In other words, a sufficiently convincing showing of arbitrariness, discrimination, denial of equal protection and lack of due process has not been made to us in this case. Absent such a showing we simply are not going to declare this statute unconstitutional because some or all of us in this court might prefer no exclusions or different types of exclusions. The trial court erred in declaring this section of the Act unconstitutional.
The 1965 annexation Act provides for alternate methods of annexing land. See Aspen v. Howell, 170 Colo. 82, 459 P.2d 764 (1969). Under section 139--21--6(1)(d)(iv) of the Act (subsection numbering is that used in 1965 Perm.Supp., C.R.S.1963) the owners of more than 50% Of the area sought to be annexed may petition for annexation, and the municipality may allow annexation without the approval of the electorate. Section 6(2) provides for annexation following an approving election. Section 6(2)(b)(ii) provides that a petition for an Annexation election addressed to the city council in a county the size of the one in question (Jefferson County) '(s)hall be signed by at least seventy-five qualified electors or ten per cent of said electors, whichever is less, who are resident in and who are landowners of the area * * *.'
Section 6(2) further provides as follows:
'(d) (i) The petition for annexation election shall comply with the provisions of subsection (1)(d) of this section, Except that:
'(ii) It shall contain an allegation that the signers of the petition are qualified electors resident in and landowners of the area proposed to be annexed, and
(iii) The petition shall request the annexing municipality to commence proceedings for the holding of an annexation election.' (Emphasis added.)
Because subsection (1)(d)(iv) as noted above refers to '(a)n allegation that the signers of the petition comprise the landowners of more than fifty per cent of the territory included in the area proposed to be annexed, exclusive of streets and alleys' the trial court held that the petitioners for the election must own more than 50% Of the territory. They did not meet that requirement so the court held the annexation election was illegally called and that the annexation was void.
Arvada argues that it is an absurdity to require that the requisite number or percentage of landowner-electors must also own more than 50% Of the land in order to succeed in having an annexation election. We agree. If the provision that either 75 electors or 10% Thereof, whichever is lesser, can petition for an election in which the majority vote will control, it simply does not make sense to add the additional requirement these same petitioners be owners of more than 50% Of the land. Under the trial court's construction, urged by the opponents of the annexation, the election provisions contained in the Act would never be utilized. If the owners of more than 50% Of the land desired annexation, it would be a needless procedure, both time consuming and expensive to petition for annexation election. A mere petition to city council would accomplish the same result without the risk of an adverse vote.
The trial court apparently had difficulty with the use by the legislature of the words 'except that' in subsection (d)(i) of section 6(2), and in puzzling over the meaning came to the conclusion that all of the provisions of section (1)(d), with no exceptions, applied with the requisites of section 6(2) added.
In determining whether a particular use of a word or phrase is not clear, the meaning of the language of the entire statute, or the relevant portions thereof, should be considered. 'In construing a statute it is our duty to give consistent, harmonious and sensible effect to all its parts.' Tobin v. Weed, 158 Colo. 430, 407 P.2d 350 (1965).
Webster defines 'except' to mean 'to take out'; 'to take or leave out (something) from a number or a whole'; 'to exclude or omit.'
We are of the opinion that the legislature intended that subparagraph 6(1)(d) (iv) requiring signatures of more than 50% Of the landowners be excepted, I.e., 'taken out' and excluded from consideration when the requisite number of petitioners sought annexation by the election alternative. We are aided in arriving at this conclusion by the expression of legislative intent to be found in 139--21--6(3). It reads as follows:
The foregoing section, if it is to be given life and meaning, was intended to provide for a voice in the annexation process to be given to People living in the area as opposed to corporate or non-resident owners of larger segments of the land....
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