Radcliff Props. Ltd. P'ship v. City of Sheridan, 11CA0462.

• Decision Date: 10 May 2012
• Docket Number: No. 11CA0462.,11CA0462.
• Citation: 296 P.3d 310
• Parties: RADCLIFF PROPERTIES LIMITED PARTNERSHIP, LLLP, a Colorado limited liability limited partnership; Radcliff Southeast Properties Limited Partnership, LLLP, Colorado limited liability limited partnership; Hornet Enterprises Limited Partnership, LLLP, a Colorado limited liability limited partnership; and 2150 Radcliff Limited Partnership, LLLP, a Colorado limited liability limited partnership, Plaintiffs–Appellants and Cross–Appellees, v. CITY OF SHERIDAN, Colorado, a Colorado home rule municipality; and City Council of the City of Sheridan, Colorado, Defendants–Appellees and Cross–Appellants.
• Court: Colorado Court of Appeals

296 P.3d 310

RADCLIFF PROPERTIES LIMITED PARTNERSHIP, LLLP, a Colorado limited liability limited partnership; Radcliff Southeast Properties Limited Partnership, LLLP, Colorado limited liability limited partnership; Hornet Enterprises Limited Partnership, LLLP, a Colorado limited liability limited partnership; and 2150 Radcliff Limited Partnership, LLLP, a Colorado limited liability limited partnership, Plaintiffs–Appellants and Cross–Appellees,

v.CITY OF SHERIDAN, Colorado, a Colorado home rule municipality; and City Council of the City of Sheridan, Colorado, Defendants–Appellees and Cross–Appellants.

No. 11CA0462.

Colorado Court of Appeals, Div. V.

May 10, 2012.

Norton, Smith & Keane, PC, J. Michael Keane, Charles E. Norton, Denver, Colorado, for Plaintiffs–Appellants and Cross–Appellees.

Williamson & Hayashi, LLC, William P. Hayashi, David S. Williamson, Mary Lynn Benham, Boulder, Colorado, for Defendants–Appellees and Cross–Appellants.

Opinion by Judge GRAHAM.

¶ 1 Radcliff Properties Limited Partnership, LLLP, Radcliff Southeast Properties Limited Partnership, LLLP, Hornet Enterprises Limited Partnership, LLLP, and 2150 Radcliff Limited Partnership, LLLP (plaintiffs), appeal the district court's order denying their petition for disconnection from the City of Sheridan, Colorado, (Sheridan). Sheridan and its City Council (defendants) cross-appeal certain aspects of the order. We affirm.

I. Background

¶ 2 Plaintiffs own eight parcels of property located within Sheridan, a Colorado home rule municipality. Plaintiffs utilize some of the properties as a vehicle recycling center and lease the remaining properties to tenants. The properties were annexed into Sheridan in 1977, and Radcliff Street (Radcliff) provides the only access to the properties.

¶ 3 On July 6, 2010, plaintiffs filed a petition seeking to disconnect certain of their properties from Sheridan pursuant to section 31–12–119, C.R.S.2011. That statute permits qualifying landowners to disconnect their property from a municipality when the municipality has failed to provide certain essential services. Defendants filed an answer to the petition on August 9, 2010, arguing that plaintiffs did not qualify for disconnection because they failed to meet the statutory requirements, and moved to dismiss the petition.

¶ 4 The district court granted the motion in part, ruling that the original petition was insufficient because it omitted additional elements listed in section 31–12–602, C.R.S.2011 (prescribing the content of the petition). Plaintiffs then filed an amended petition including the additional elements. Defendants filed an amended answer raising the same defense as above and also raising the affirmative defense that plaintiffs' petition was barred by the applicable statute of limitations.

¶ 5 A trial to the court was held on October 28, 2010, and January 11 and 13, 2011. At the close of plaintiffs' evidence, defendantsmoved to dismiss the petition pursuant to C.R.C.P. 41(b)(1) on the ground that plaintiffs had failed to satisfy the demand requirement in section 31–12–119. The district court denied the motion, holding that a letter plaintiffs sent to defendants in 1994 was sufficient to meet the demand requirement.

¶ 6 In its final order dated January 20, 2011, the district court denied plaintiffs' petition, holding that (1) plaintiffs failed to meet the contiguity requirements of the disconnection statute because 8.4% contiguity between their property and Sheridan was not enough; (2) disconnection was inappropriate because “certain other parcels would be isolated if disconnection is allowed [,] leaving an island of land located in Sheridan with no access to any services”; (3) plaintiffs failed to meet the demand requirements of the disconnection statute because the meeting with defendants on “September 2, 2009 was not sufficient notice to Sheridan” ¹; and (4) disconnection was inappropriate because “Sheridan has provided the same municipal services on the same general terms and conditions as the rest of the municipality receives.” Additionally, in a separate order entered on February 25, 2011, the court granted defendants' bill of costs, which consisted of a fee for an expert witness who testified on defendants' behalf.

¶ 7 On appeal, plaintiffs contend that the district court erred by (1) holding that 8.4% was “insufficient contiguity” to qualify for disconnection; (2) “holding that if disconnection took place certain other parcels would be isolated[,] ‘leaving an island of land located in Sheridan with no access to any services' ”; (3) holding that plaintiffs “had not given sufficient notice of their demand for services to qualify for disconnection”; (4) holding that “Sheridan has provided the same municipal services on the same general terms and conditions as the rest of the municipality receives”; (5) holding that a petition to disconnect filed pursuant to section 31–12–119 must contain the same statutory elements as a petition to disconnect from a statutory city filed pursuant to section 31–12–601, C.R.S.2011; and (6) making “numerous factual findings that are contradicted by uncontested evidence on the record or not supported by competent evidence, and in refusing certain photographs offered into evidence.” ²

¶ 8 On cross-appeal, defendants argue that (1) the 1994 letter, filed “16 years before the filing of the Petition to Disconnect” is not adequate to meet the demand requirements; (2) “an action for disconnection from a municipality ... [is] barred by the statute of limitations when the proceedings are filed 16 years after the jurisdiction demand ... is given”; and (3) “the Petition to Disconnect [is] precluded by Section 31–12–603(1), C.R.S. [2011].”

II. Petition to Disconnect

A. Standard of Review

¶ 9 When reviewing a mixed question of fact and law, we defer to the trial court's credibility determinations and will disturb its findings of historical fact only if they are clearly erroneous and not supported by the record, and we review the court's application of the governing statutory standards de novo. Joseph v. Equity Edge, LLC, 192 P.3d 573, 577 (Colo.App.2008).

B. Analysis

1. Applicability of Sections 31–12–601 to –603

¶ 10 We first reject plaintiffs' argument that the trial court erred by requiring a petition to disconnect filed under section 31–12–119 to contain all of the statutory elements required in a similar petition filed under section 31–12–601. Additionally, we also reject defendants' argument on cross-appeal that plaintiffs' petition to disconnect is precluded by section 31–12–603(1).

¶ 11 Section 31–12–119 specifically states that a petition for disconnection must follow the procedure “set forth in parts 6 [specifically section 31–12–602] and 7 of this article, insofar as consistent with this section.” § 31–12–119 (emphasis added).³ Plaintiffs argue that part 6 does not apply to their petition to disconnect filed under section 31–12–119 because Sheridan is a home rule municipality and part 6 applies to petitions to disconnect from a statutory city. Since the definition of city found in 31–1–101(2), C.R.S.2011, specifically excludes “any city or city and county which has chosen to adopt a home rule charter,” plaintiffs contend that part 6 has no application. See Allely v. City of Evans, 124 P.3d 911, 913 (Colo.App.2005) (holding that section 31–12–601 does not apply to disconnection from home rule municipalities). We disagree.

¶ 12 While plaintiffs cite Allely in support of their argument, Allely is distinguishable. The petition to disconnect in Allely was filed against a home rule municipality purportedly under section 31–12–601. Allely affirmed dismissal of the petition because petitions to disconnect cannot be filed against home rule municipalities under part 6. That part permits petitions to be filed only against statutory cities, not home rule municipalities. Section 31–12–601 allows for petitions to disconnect territory from cities for any reason. In contrast, plaintiffs filed their petition under section 31–12–119. Section 31–12–119 permits qualifying landowners to disconnect their property from a municipality, which includes home rule municipalities, see§ 31–1–101(6), C.R.S.2011, only where the municipality has failed to provide certain essential services. However, it adopts the procedure to govern such petition as set forth in part 6, section 31–12–602.

¶ 13 Thus, while section 31–1–601 applies to petitions to disconnect from cities, section 31–12–119 applies to petitions to disconnect from municipalities and those petitions must follow the procedures “set forth in part[ ] 6 [section 31–12–602].” Therefore, the trial court did not err by requiring that plaintiffs' petition contain all of the statutory elements required in a petition filed under section 31–12–601 because those procedural elements are incorporated by reference in section 31–12–119.

¶ 14 On cross-appeal, defendants argue that plaintiffs' petition is precluded by section 31–12–603(1). We disagree.

¶ 15 Section 31–12–603(1) precludes a petition to disconnect “[w]hen a city has maintained streets, lights, and other public utilities for a period of three years through or adjoining said tracts of land.” However, this is a substantive bar to filing a petition, whereas a petition filed under section 31–12–119 only has to follow the procedures “set forth in parts 6 and 7,” not the substantive provisions of parts 6 and 7. Therefore, we conclude that plaintiffs' petition to disconnect is not precluded by section 31–12–603(1).

2. Section 31–12–119

¶ 16 Plaintiffs argue that the trial court erred by denying their petition to disconnect for failure to meet the statutory requirements of section 31–12–119. We disagree.

¶ 17 Section 31–12–119 states:

The landowners of any tract or contiguous tracts of land aggregating five acres or more located on a boundary of the municipality at the time of the disconnection action may, three or more years after...