Cline v. City of Boulder

• Decision Date: 10 February 1969
• Docket Number: No. 23573,23573
• Citation: 450 P.2d 335,168 Colo. 112
• Parties: Kenneth E. CLINE and Jean F. Cline, Plaintiffs in Error, v. CITY OF BOULDER, Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 335

450 P.2d 335

168 Colo. 112

Kenneth E. CLINE and Jean F. Cline, Plaintiffs in Error, v. CITY OF BOULDER, Colorado, Defendant in Error.

No. 23573.

Supreme Court of Colorado, En Banc.

Feb. 10, 1969.

Rehearing Denied March 3, 1969.

Reynolds, Connell & Moran, Larry W. Moran, Boulder, for plaintiffs in error.

Walter L. Wagenhals, City Atty., Boulder, for defendant in error.

Charles Howe, Boulder, amicus curiae, for Colorado Municipal League.

DAY, Justice.

This action arises out of the involuntary annexation and rezoning of certain property by the City of Boulder pursuant to the Municipal Annexation Act of 1965, 1965 Perm.Supp., C.R.S. 139--21--1 through 23. The landowners, Kenneth and Jean Cline, were the plaintiffs below and are the plaintiffs in error here.

The land in question is an enclave, being completely surrounded by the City of Boulder. It has been owned by the Clines for several years. The county had zoned a portion of the land as Commercial and the balance as Multi-Family.

The Cline property having been in enclave for the three years as provided in the statute, on January 1, 1967, the City of Boulder instituted proceedings to annex and rezone the property without the consent of the Clines. Thereafter various hearings were held by the City Council and City Planning Board. Kenneth Cline appeared at three of these hearings. On July 11, 1967, the Clines allegedly were granted a Boulder County Building Permit to construct a service station on their property. On July 18, 1967, the Boulder City Ordinance became effective which forcibly annexed and rezoned the Cline property. The property was rezoned MR--2--Multi-Family Residence, which classification precluded the building of the service station.

The Clines challenged the annexation and rezoning ordinances in the district court, which upheld the City's actions.

In the writ of error to this court, the Clines have advanced several arguments for reversal, the most pertinent of which challenged the constitutionality of the Act itself. Therefore, we will first approach that question.

I.

The Clines first generally argue that involuntary or forced annexation is in itself a violation of due process. Their argument in this respect seems to be more concerned with what the law Ought to be rather than what the law Is. In Rogers v. City and County of Denver, 161 Colo. 72, 419 P.2d 648, this court favorably cited general laws as follows:

'Consent of inhabitants.--It is well settled that the legislature may not only originally fix the boundaries or limits of a municipal corporation, but, subject to the constitutional restriction, may subsequently annex, or authorize the annexation of, contiguous or other territory without the consent or even against the remostrance of persons residing therein * * *.' 37 Am.Jur. Municipal Corporations § 30.

Under the prior annexation statute--See C.R.S. 1963, 139--10--2(1)(e)--annexation could be had without consent of the residents in the territory if an enclave was surrounded by the municipality for a period of 20 years or more. The present statute merely reduces this period to three years.

The Clines next contend that the Act is discriminatory in that annexation may not be had without consent in the case of a landowner whose land is greater than 20 acres in size or worth more than $200,000. See 1965 Perm.Supp., C.R.S. 139--21--4(3). However, this section additionally provides that the exemption does not apply to enclaves. Moreover the Cline land is smaller than 20 acres and worth less than $200,000. Consequently they are not in a position to raise the question of the reasonableness of the classification since no property involved in this annexation is subject to any of the exemptions, and the Act as applied to the facts herein does not discriminate against the Clines nor in favor of any other person.

The Clines next argue that section 139--21--5--(1) pertaining to the annexation of enclaves is unconstitutional in that in the sole instance of an enclave such as exists in this annexation proceeding there is no provision in the statute for notice of hearing as is provided in other sections of the Act for other annexation proceedings. However, on the question of notice, we point out that the laws and charter provisions for the publication of notice of ordinances to be enacted were complied with. In addition, we note that Kenneth Cline appeared at three different meetings with City Council or the Planning Board where he there voiced his objection to the annexation and zoning. The Clines are certainly in no different or stronger position than one who makes an appearance and participates in the trial of a civil action without being served with process. It is axiomatic in such case that failure to be served or defective service is waived by the making of a general appearance at or by participation in the trial.

The Clines next argue that section 139--21--16(1), which provides that the annexing municipality shall apply all pertinent ordinances to the annexed area irrespective of any proceedings for judicial review of the annexation, is an unconstitutional infringement on the judiciary in that it precludes the issuance of an injunction or stay order. This section of the Act was recently upheld by this court in City of Westminster v. District Court, Colo., 447 P.2d 537.

II.

The Clines also challenge the zoning of their property on several grounds. They cite the following language from section 139--21--14(1) of the Act:

'(1) An annexing municipality may institute the procedure outlined in state statutes or city charter to make land subject to zoning at any time after a resolution of intent has been passed in accordance with section 139--21--5 * * *. The proposed zoning ordinance shall not be passed on final reading prior to the date when the annexation ordinance...