Greenwood Village v. Petitioners, No. 99SA297.

• Docket Nº: No. 99SA297.
• Citation: 3 P.3d 427
• Case Date: June 26, 2000
• Court: Supreme Court of Colorado

3 P.3d 427

CITY OF GREENWOOD VILLAGE, Appellant/Cross-Appellee,
v.
PETITIONERS FOR the PROPOSED CITY OF CENTENNIAL, Appellee/Cross-Appellant

No. 99SA297.

Supreme Court of Colorado, En Banc.

June 26, 2000.

Rehearing Denied July 17, 2000.

3 P.3d 431

Hayes, Phillips & Maloney, P.C., Herbert C. Phillips, Kendra L. Carberry, Denver, Colorado, Attorneys for Appellant/Cross-Appellee

Collins, Cockrel & Cole, P.C., Robert G. Cole, Derek G. Passarelli, Denver, Colorado, Attorneys for Appellee/Cross-Appellant.

Justice HOBBS delivered the Opinion of the Court.

We transferred this appeal from the court of appeals to determine whether the proposed City of Centennial (Centennial) may proceed with its incorporation election or whether the City of Greenwood Village (Greenwood Village) may hold its annexation elections first. On the basis of the 1965 Municipal Annexation Act (1965 Act) and a 1999 amendment thereto (1999 Act), the District Court for Arapahoe County (district court) ruled that the Centennial incorporation election would occur first. It held, nevertheless, that the 1999 Act unconstitutionally impaired a pre-annexation agreement between Greenwood Village and the Highland Park Association (Highland Park) involving a portion of the affected area. We agree with the district court that the Centennial incorporation proceeding may continue, with the Greenwood Village annexation proceedings held in abeyance, pursuant to section 31-12-118, 9 C.R.S. (1999), but we disagree that the 1999 Act unconstitutionally impairs the Highland Park pre-annexation agreement.

I.

Greenwood Village is a home rule city located astride the Highway I-25 corridor in the southeast Denver metropolitan area. Its boundaries extend approximately from the cities of Littleton and Englewood on the west, Cherry Hills Village and the City and County of Denver at East Belleview Avenue on the north, and the Cherry Creek State Park on the east. To the south of Greenwood Village is a rapidly urbanizing unincorporated area of Arapahoe County running east and west of Highway I-25, to which Centennial and Greenwood Village stake their claims.

3 P.3d 432

If approved by the voters, Centennial would extend approximately from the City of Littleton on the west, the City of Greenwood Village at East Orchard Road through Cherry Creek State Park on the north, the City of Aurora on the east, and East County Line Road and the Centennial Airport on the south, with certain exceptions. On the other hand, if the voters first approve the Greenwood Village annexations, much of this area of unincorporated Arapahoe County would become part of Greenwood Village, rendering establishment of the new city unviable

This controversy over incorporation versus annexation commenced in October of 1998. On October 2, 1998, a petition for the Cherry Crest Annexation was filed with the Greenwood Village City Clerk. A petition for the Greenwood South East Annexation followed on October 12, 1998. On October 19, 1998, a petition was filed in the district court for incorporation of Centennial. That same day, Greenwood Village scheduled public hearings for December 7, 1998, regarding the Cherry Crest and South East annexations. On November 16, 1998, an amended Centennial petition for incorporation was filed in the district court.

Following hearings on cross-motions for dismissal under C.R.C.P. 12(b)(1), the district court on December 2, 1998, entered its findings of fact and conclusions of law determining that: (1) the amended Centennial petition was defective on its face and must be dismissed; (2) because of this, the court did not have jurisdiction to authorize the Centennial incorporation election; and (3) judicial review of Greenwood's annexations must await adoption of that city's annexation ordinances.

On December 7, 1998, Greenwood Village adopted resolutions pertaining to the Greenwood South East and Greenwood South West annexations. On December 18, 1998, the district court entered an order for the appointment of election commissioners and the holding of an election on the South East annexation. That same day, Centennial filed a new petition for incorporation in the district court. On December 21, 1998, Greenwood Village adopted its annexation ordinance for the Greenwood South East property. On January 25, 1999, Greenwood Village held its hearing on the Greenwood South West annexation and adopted its ordinance on first reading to annex that property.

On January 19 and February 1, 1999, no annexation election having yet been conducted, the district court held hearings on the sufficiency of the new Centennial incorporation petition. At 1:35 p.m. on February 1, the Governor signed House Bill 99-1099 (the 1999 Act), which amended section 31-12-118 effective immediately to provide for holding an annexation proceeding in abeyance pending a conflicting incorporation proceeding involving a proposed city of over 75,000 inhabitants. See Act approved Feb. 1, 1999, Ch. 1, 1999 Colo. Sess. Laws 1-3.

On April 8, 1999, following additional briefing and hearing, the district court entered its findings of fact and conclusions of law, determining that: (1) the Centennial petition filed December 18, 1998, satisfied all of the statutory requirements for an incorporation election; (2) both the 1965 and 1999 Acts provided for the Centennial incorporation election to precede the Greenwood Village annexation elections; (3) the 1999 Act was not unconstitutional special or retrospective legislation; (4) the Centennial incorporation proceeding may continue, with the Greenwood Village annexation proceedings being held in abeyance pursuant to the 1999 Act; and (5) the 1999 Act unconstitutionally impaired a pre-annexation agreement between the Highland Park Association and Greenwood Village.

The district court issued a C.R.C.P. 54(b) certification for immediate appeal of its entire ruling, and stayed implementation of its orders pending appeal. Centennial and Greenwood Village cross-appealed to the court of appeals. The court of appeals then filed with us a request for determination of jurisdiction, pursuant to section 13-4-110(1)(a), 5 C.R.S. (1999), based on its apparent lack of jurisdiction under section 13-4-102(1)(b), 5 C.R.S. (1999), because of the district court's determination that the 1999 Act unconstitutionally impaired the Greenwood Village pre-annexation agreement with Highland Park.

3 P.3d 433

We assumed jurisdiction over the competing appeals of Greenwood Village¹ and Centennial² and now enter our judgment

II.

We hold that Centennial's incorporation proceeding may continue, with the Greenwood Village annexation proceedings being held in abeyance, pursuant to sections 31-12-118 and -118.5, as amended. We determine that: (1) Greenwood Village has standing to contest whether the 1999 Act is special or retrospective legislation or impairs a vested contract right under the city's pre-annexation agreement with Highland Park, contrary to Colorado's constitution, but (2) Greenwood Village does not have standing to contest the 1999 Act on the basis of citizen voting rights. We hold that the 1999 Act does not violate Colorado's prohibitions against special legislation, retrospective legislation, or impairment of contract.

A. Colorado's Incorporation and Annexation Laws

We first review Colorado's incorporation and annexation laws as they apply to this case. We then turn to the standing of Greenwood Village to raise its constitutional challenges to the 1999 Act, the applicable standard of review, and the issues of special and retrospective legislation and impairment of contract.

1. The Setting and Changing of Municipal Boundaries

Providing for the setting of municipal boundaries, whether by incorporation or annexation, is a prerogative of the General Assembly. See Fort Collins-Loveland Water Dist. v. City of Fort Collins, 174 Colo. 79, 82, 482 P.2d 986, 988 (1971). Eleven years after statehood, we held that the legislature may establish general laws for determining the boundaries of towns and cities. See Rhodes v. Fleming, 10 Colo. 553, 556-58, 16 P. 298, 299-300 (1887). In matters of incorporation or annexation, the "legislature may determine absolutely what shall be done, or it may authorize the same thing to be done upon the consent of third parties. It may command, or it may only permit; and in the latter case, as in the former, its acts have the efficacy of law." Id. at 558-59, 16 P. at 301 (internal quotation marks and citation omitted). The role of the judiciary is to respect and carry out the statutes of the General Assembly that prescribe procedures for incorporation and annexation. See Littleton v. Wagenblast, 139 Colo. 346, 353, 338 P.2d 1025, 1028 (1959) (holding that the "power of annexation and disconnection is essentially legislative and absent an express statutory

3 P.3d 434

authorization the court lacked jurisdiction to enter the questioned [annexation] decree").

Accordingly, we have held that: (1) the legislature's power over the setting and changing of municipal boundaries is virtually unlimited, and (2) the legislature may place any requirement or condition thereon, subject only to constitutional restrictions. See Rogers v. City & County of Denver, 161 Colo. 72, 74-75, 419 P.2d 648, 649 (1966). In 1980, through the adoption of Article II, section 30, of the Colorado Constitution, the people of the state provided that no unincorporated area may be annexed to a municipality unless: (1) the question has been submitted to the vote of the landowners and the registered electors in the area proposed to be annexed and the majority of such persons voting on the question have voted for the annexation; (2) the annexation petition has been signed by persons comprising more than fifty percent of the landowners in the area and owning more than fifty percent of the area, excluding public streets, alleys, and any land owned by the annexing municipality; or (3) the area is...