Leach & Arnold Homes, Inc. v. City of Boulder

• Decision Date: 16 January 1973
• Docket Number: No. 72--344,72--344
• Citation: 507 P.2d 476,32 Colo.App. 16
• Parties: LEACH & ARNOLD HOMES, INC., Plaintiff-Appellee, v. The CITY OF BOULDER, a municipal corporation, et al., Defendants-Appellants. . II
• Court: Colorado Court of Appeals

Page 476

507 P.2d 476

32 Colo.App. 16

LEACH & ARNOLD HOMES, INC., Plaintiff-Appellee, v. The CITY OF BOULDER, a municipal corporation, et al.,

Defendants-Appellants.

No. 72--344.

Colorado Court of Appeals, Div. II.

Jan. 16, 1973.

Rehearing Denied Feb. 6, 1973.

Certiorari Denied March 26, 1973.

Zook, Love, Torke & Locke, David R. Torke, Boulder, for plaintiff-appellee.

Walter L. Wagenhals, City Atty., Boulder, for defendants-appellants, City of Boulder and Carl K. Chapel, City Clerk.

Peter C. Dietze, Boulder, for defendants-appellants John M. Meadows and others.

COYTE, Judge.

In 1971, plaintiff-appellee, landowner, petitioned the city council of Boulder Colorado, to annex a parcel of land to the City of Boulder. The petition was granted and the land was annexed by Ordinance No. 3797. Within 30 days thereafter a referendum petition for the repeal of Ordinance No. 3797 was filed with the city clerk of Boulder. The clerk ascertained that it contained sufficient signatures and so informed the city council. After a hearing relating to the legality of the referendum petition, the council accepted the petition but deferred any action on the same for approximately 30 days.

In the meantime, plaintiff filed a declaratory judgment action against defendants and all members of the class who circulated or signed the petition, alleging that the referendum petitions were invalid and ineffective and requested that the court order a stay of any further proceedings by the city council on the referendum petition. Upon motion, the court issued an order temporarily staying proceedings on the referendum petition and ordered a citation to issue requiring the city council to forward a complete record of proceedings had in connection with the hearing before the city council on the referendum petition.

After hearing before the court on the record of proceedings had before the city council, the court entered the following order:

'(T)hat the City Charter of the City of Boulder requires that a committee is to be appointed when a referendum petition is filed, but that there is no provision for the appointment of a committee within the City Charter provisions dealing therewith; and that since the procedure under the City Charter is incomplete, the construction must be that reference must be had to the procedure provided by state statute and the failure to comply with the state statutes renders the referendum petitions invalid.'

Defendants contend that the Boulder charter provisions are complete within themselves and that C.R.S.1963, 70--1--7, is thus not applicable. That statute reads, in pertinent part, as follows:

'. . . Each petition shall designate by name and address not less than three nor more than five persons who shall represent the signers thereof in all matters affecting the same.'

We agree that the charter provisions are complete within themselves and reverse the judgment.

The City of Boulder is a home rule city and as such has unlimited authority to reserve to the electors of the City of Boulder the referendum power and the manner of exercising the same. Colo.Const. Art. V, Sec. 1; Burks v. Lafayette, 142 Colo. 61, 349 P.2d 692. The manner of preparing and filing a referendum petition in the City of Boulder is set forth in the Boulder charter. The city council has not adopted any ordinances dealing with the subject. It should be noted that Sec. 38 of the Boulder city charter dealing with 'preparation of initiative petitions' contains the same requirement as C.R.S.1963, 70--1--7. However, there is no such city charter requirement on referendum petitions.

The following charter provisions are complete within themselves for the purpose of filing a referendum petition. The applicable charter provisions are as follows:

'Sec. 43. Power of referendum.

The people shall have power at their option to approve or reject at the polls, any measure passed by the council or submitted by the council to a vote of the electors, . . .. Such power shall be known as the referendum; which power shall be invoked and exercised as herein provided. All measures, save those hereinabove specifically excepted, submitted to the council by initiative petition and passed by the council without change, or passed in an amended form and not required by the committee of the petitioners to be submitted to a vote of the electors, shall be subject to the referendum in the same manner as other measures.'

'Sec. 44. Referendum petition....