Cesario v. City of Colorado Springs, 79
| Decision Date | 02 September 1980 |
| Docket Number | No. 79,79 |
| Citation | 616 P.2d 113,200 Colo. 459 |
| Parties | Betty L. CESARIO, Earnest E. Clemons, Donald H. Goede, Alden L. Marvel, A. W. Mullan, Jr., and Lawrence Strom, Jr., Plaintiffs-Appellees and Cross- Appellants, v. The CITY OF COLORADO SPRINGS, a Municipal Corporation, the City Council of the City of Colorado Springs, and as members of the City Council of Colorado Springs, Robert Isaac, Thomas I. Anderson, Michael C. Bird, Leon Young, Peter M. Susemihl, Katherine N. Loo, George James, Margaret Vasquez and Mary Kyer, Defendants- Appellants and Cross-Appellees, and State of Colorado, Intervenor. SA 517. |
| Court | Colorado Supreme Court |
Cleveland, Wengler & Robbins, P. C., Edward D. Cleveland, Frank E. Robbins, Colorado Springs, for plaintiffs-appellees and cross-appellants.
Gordon D. Hinds, City Atty., M. Allen Ziegler, Jr., Deputy City Atty., Colorado Springs, for defendants-appellants and cross-appellees.
J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., William Morris, Asst. Atty. Gen., Litigation Section, Denver, for intervenor.
Blake T. Jordan, Staff Atty., Wheat Ridge, for Colorado Municipal League, amicus curiae. ERICKSON, Justice.
This is an appeal to review a proceeding to unilaterally annex property by the City of Colorado Springs. Plaintiffs, Betty Cesario, et al., filed suit in the district court seeking a determination that defendant, City of Colorado Springs (City), exceeded its jurisdiction and abused its discretion in annexing an area southwest of the City. The district court held that the annexation was null and void, and ruled that any additional annexation proceedings must start anew. We affirm.
On September 12, 1978, the City commenced a unilateral annexation proceeding by adopting a resolution of intent to annex an area southwest of the City, including portions of the Broadmoor Hotel, Inc. (Broadmoor). Section 31-12-106(2) of the Municipal Annexation Act of 1965, as amended )) (Act), regulates the unilateral annexation of property which is partially surrounded by the annexing municipality, and provides:
Notice was given pursuant to section 31-12-108, and a public hearing was set by the City Council for November 9, 1978 on the proposed annexation. Attached to the notice was a legal description of the area that was to be annexed.
At the November 9 hearing, the city engineer presented a map which identified the proposed southwest annexation area and four other annexations which had occurred during the previous three years. These recently-annexed areas were situated between the southwest annexation area and the City limits as they existed prior to the recent annexations. The city engineer testified that, on the basis of his measurements and his method of computation, the proposed southwest annexation area had over two-thirds boundary contiguity with the City for at least three years as required by section 31-12-106(2).
The plaintiffs appeared at the hearing in opposition to the annexation. They contended that, as a result of a different method of computation, there was less than the two-thirds boundary contiguity with the City for three years. The plaintiffs also alleged that the Broadmoor had not consented in writing to the annexation as required by section 31-12-105(1)(b) of the Act. After hearing all testimony, the City Council adopted a resolution setting forth findings of fact and conclusions thereon regarding the southwest annexation area. This resolution found that there was more than two-thirds boundary contiguity with the City for at least three years, and that the annexation of the southwest area was authorized. The City Council also adopted Ordinance No. 78-219 on first presentation, annexing the southwest area to the City. The district court found that the City Council then adjourned the hearing sine die.
On November 22, 1978, the City Council, without additional notice pursuant to the statute, amended Ordinance No. 78-219 by revising its legal description to remove a portion of City-owned park land from the annexation area. This action reduced the noncontiguous boundary so that, regardless of the method of computation, a contiguous boundary in excess of two-thirds was obtained. The amended ordinance was then passed by the City Council on second presentation.
At a meeting on December 12, 1978, the City Council adopted Ordinance No. 78-219. The effective date of the annexation was December 31, 1978.
On January 4, 1979, plaintiffs instituted this action in the district court, seeking a determination that the City had exceeded its jurisdiction and abused its discretion in annexing the southwest area. Plaintiffs also sought an order to require the City to proceed with an annexation election under section 31-12-112, a declaration that the Annexation Act is unconstitutional, and a general finding that the southwest annexation was null and void.
The district court ruled that the unilateral annexation of the southwest area by the City, purportedly accomplished by Ordinance No. 78-219, as amended, was void, and that any additional annexation proceedings must start anew. The court found that plaintiffs had standing to raise the issue of Broadmoor's consent to the southwest annexation, and further declared that the Broadmoor had not consented to the subject annexation as required by section 31-12-105(1) (b). The court also ruled that a petition for annexation election filed by the plaintiffs on December 11, 1978, was properly rejected by the City Council. The district court concluded that it was unnecessary to rule on the constitutionality of the Annexation Act.
The City appealed to the court of appeals, seeking a reversal of the district court's judgment that the southwest annexation was void. Plaintiffs cross-appealed, seeking a declaration that the petition for annexation election was proper and should not have been rejected. We accepted jurisdiction and took certiorari pursuant to C.A.R. 50. For the reasons set forth below, the judgment of the trial court is affirmed.
We first consider whether, at the hearing on November 9, 1978, the southwest annexation area had more than two-thirds boundary contiguity with the City of Colorado Springs for not less than three years. We hold that it did not.
At the hearing, plaintiffs and the City disagreed over the correct method of measuring boundary contiguity. Plaintiffs presented evidence which demonstrated that, when the four areas annexed within the previous three years were excluded from the measurement, the total boundary of the southwest annexation area measured not less than 141,813.53 feet. The portion of that measurement which had been contiguous to the City for at least three years was 93,578.36 feet. The measurements on boundary contiguity were based upon figures furnished by the city engineer's office and were not disputed by the City. Under the plaintiffs' method of computation, the areas where the southwest annexation area was contiguous to the four recently-annexed areas was excluded as part of the contiguous boundary. This computation resulted in 65.99% boundary contiguity with the City for at least three years, or less than the required two-thirds. Under cross-examination, the city engineer admitted that, using such methods for ascertaining boundary contiguity, the southwest annexation area did not have more than two-thirds boundary contiguity with the City for three years.
The city engineer's office measured the boundary contiguity of the southwest annexation area by including the four recently-annexed areas in its measurement. Essentially, the City's measurements followed the boundaries of those four areas where they were contiguous to the City limits; these measurements were included as part of the contiguous boundary of the southwest annexation area. Under this method, the total measurement of the southwest area was 141,215 feet, and 97,266 feet were contiguous to the City. This computation resulted in 68.88% boundary contiguity-more than the two-thirds requirement of section 31-12-106(2). In...
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... ... OF COUNTY COMMISSIONERS OF THE COUNTY OF ARAPAHOE, State of Colorado, Plaintiff-Appellant, ... CITY OF GREENWOOD VILLAGE; City Council of the ... The County relies on Cesario v. City of Colorado Springs, 200 Colo. 459, 616 P.2d 113 (1980), for the ... ...