Johnston v. City Council of City of Greenwood Village
| Citation | 177 Colo. 223,493 P.2d 651 |
| Decision Date | 07 February 1972 |
| Docket Number | No. 23937,23937 |
| Parties | Richard S. JOHNSTON and M. R. Garrison, Plaintiffs in Error, v. CITY COUNCIL OF the CITY OF GREENWOOD VILLAGE et al., Defendants in Error. |
| Court | Supreme Court of Colorado |
Robert Lee Kessler, Denver, Loye & Bangert, Richard W. Bangert, Wheat Ridge, for plaintiffs in error.
C. Charles Buchler, Victor N. Nilsen, Englewood, for defendants in error.
This case involves the annexation of certain lands east of the town of Greenwood Village. The plaintiffs in error are residents in the territory proposed to be annexed and as plaintiffs contested the validity of the annexation in the court below pursuant to 1965 Perm.Supp., C.R.S.1963, 139-- 21--15. Judgment declaring the annexation valid was entered and review is sought in this court.
One main issue raised by the parties necessitates that the case be reversed and remanded to the lower court to remand to the city council of Greenwood Village for further proceedings. This question concerns whether '* * * less than one-sixth of the perimeter of the area proposed to be annexed is contiguous with the annexing municipality.' Section 139--21--3(2), Supra. Apparently, if a certain 220-acre tract--denominated as the Perry property--is not in the town of Greenwood Village, the annexation must fail as the contiguity requirement will not then be met. While we express no views as to whether such contiguity in fact exists, we hold that city council's failure to make a finding on this vital question rendered the annexation action fatally deficient. It also was error for the trial court on review not to make a finding on this deficiency in the annexation proceeding before the city council.
It is the general rule that in a certiorari proceeding '* * * the reviewing court is to ascertain from (the record of the lower tribunal) alone whether the inferior tribunal regularly pursued its authority, and thereupon pronounce judgment accordingly.' Board v. Handley, 105 Colo. 180, 95 P.2d 823 (1939). However, there are exceptions to this rule. In certain circumstances which we believe to be present in this case, a court, even in a certiorari proceeding, should order a remand to the administrative agency on clear-cut issues involving documentary evidence. In the instant case, such a course would appear to be dictated because the record shows that the City Council acted capriciously and arbitrarily in failing to make specific findings concerning boundaries of Greenwood Village in the territory immediately contiguous to the territory to be annexed.
In Van De Vegt v. Commn'rs, 98 Colo. 161, 55 P.2d 703 (1936), we noted that capricious or arbitrary exercise of discretion can arise where a board neglects to use reasonable care in procuring such evidence as it is authorized by law to consider. No reason appears why this rule should not apply to a city council when it is attempting to employ or administer The Municipal Annexation Act of 1965.
In the instant case, the city council implicitly was authorized to consider all competent evidence with regard to the contiguity requirement simply by virtue of the fact that it Had to make a finding thereon under section 139--21--9(1)(b). Under the rule stated above, however, it also was under a duty to use reasonable diligence in searching for and procuring such evidence. At the hearing before the city council of Greenwood Village, the town clerk made a general statement concerning the contiguous boundary lines. The boundary of the 220--acre tract noted above was included within this description of the contiguous boundary. The town clerk stated that the description was based upon maps made by the 'county surveyor.' The map presented, however, did not certify the boundaries of the city, but purported to show the platted areas within the territory to be annexed and the outer boundaries of such territory.
Thereafter, plaintiff Johnston called attention to the city council that a certain portion, I.e., 990 feet of Holly Street--the western boundary of the proposed annexed territory--was specifically shown as not being within the boundaries of Greenwood Village on the records and maps of the Colorado Highway Department and Arapahoe County Planning Department and Highway Department, this portion apparently being a section of the boundary of the 220-acre tract. After this contention was made, a...
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...Arapahoe County Comm'rs v. City of Greenwood Village, 30 P.3d 846 (Colo. App. 2001).[18] Johnston v. Greenwood Village City Council, 493 P.2d 651 (Colo. 1972).[19] C.R.S. § 31-12-104(1)(a) (emphasis supplied).[20] Douglas County Comm'rs v. City of Aurora, 62 P.3d 1049 (Colo. App. 2002). [21......
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