Slack v. City of Colorado Springs
| Decision Date | 22 November 1982 |
| Docket Number | No. 81SC84,81SC84 |
| Citation | 655 P.2d 376 |
| Parties | Thomas W. SLACK, June B. Baker and Margaret A. Woodring, A.W. Mullan, Jr. and Merle A. Williams, Plaintiffs-Appellees, v. The CITY OF COLORADO SPRINGS, a municipal corporation, the City Council of the City of Colorado Springs, and as members of the City Council of Colorado Springs, Robert Isaac, George James, Mary Kyer, Lee Duran, Michael C. Bird, Leon Young, Thomas I. Anderson and Peter M. Susemihl, Defendants-Appellants. |
| Court | Colorado Supreme Court |
Cleveland, Wengler & Robbins, Edward D. Cleveland, Frank E. Robbins, Colorado Springs, for plaintiffs-appellees.
James G. Colvin, II, City Atty., Jackson L. Smith, Asst. City Atty., M. Allen Ziegler, Jr., Sr. Deputy City Atty., Michael J. Heydt, Deputy City Atty., Colorado Springs, for defendants-appellants.
This is an appeal from the ruling of the District Court of El Paso County which declared void an attempt by the City Council of Colorado Springs to annex land in the southwest area, commonly known as the Broadmoor, Skyway, Stratton Meadows, Ivywild, and Cheyenne Canyon areas of El Paso County. Both the plaintiffs and the defendants in the trial court appealed the judgment, and this court granted certiorari before judgment pursuant to C.A.R. 50, recognizing that this case involves similar parties and interests as were represented in the case of Cesario v. City of Colorado Springs, 616 P.2d 113 (Colo.1980). In that case we affirmed the trial court's ruling that a prior attempt at annexation was invalid based upon statutory and procedural grounds.
Soon after Cesario was announced, but prior to the issuance of mandate from this court, the City Council of Colorado Springs, appellants here, enacted a resolution expressing the intent to once again annex the southwest area. This court issued its mandate in Cesario on September 24, 1980, establishing that the lands involved in the prior annexation attempt remained unincorporated portions of El Paso County. That same date landowners in the area, Slack, et al., appellees, filed petitions with the city clerk requesting an annexation election to determine whether the southwest area should be annexed. Section 31-12-107, C.R.S.1973 (1977 Repl.Vol. 12). More petitions were filed the following morning.
The city clerk advised the city council of the petition filings on September 25, 1980, and the city council referred the petitions to the clerk for a determination whether they were in substantial compliance with the Municipal Annexation Act of 1965, section 31-12-101, et seq., C.R.S.1973 (1977 Repl.Vol. 12) (Annexation Act). Later that day the city council published notice of its proposed unilateral annexation of the southwest area. See section 31-12-106(2), C.R.S.1973 (1977 Repl.Vol. 12).
On October 6, 1980, Slack filed a complaint and a motion for a preliminary injunction in the district court, contending that the city could not proceed with its proposed annexation because of the filing of the Petitions for Annexation Election. On October 14, the city rejected the Petitions for Annexation Election because they improperly proposed to split city-owned land without the city's permission. Slack filed amended petitions on October 20 in an attempt to correct the deficiencies. On October 21, 1980, the district court denied Slack's request for a preliminary injunction.
The city council held a public hearing on October 27, 1980, to discuss the proposed southwest area annexation. Slack appeared and opposed the annexation. The city council rejected the amended Petitions for Annexation Election because they had been filed after the city had commenced unilateral annexation proceedings, and because all of the area described in the election petitions was included in the city's proposed annexation. The city council then adopted the annexation ordinance as an emergency ordinance.
Statewide elections were held on November 4, 1980, and Amendment No. 3 to the Constitution of the State of Colorado was approved by the electorate. 1 That amendment allows those living within an area proposed to be annexed to vote on whether the land will be annexed. On November 11, 1980, the city council, on second presentation, adopted the annexation ordinance as a non-emergency ordinance.
Slack challenged the city's actions in the district court and the court ruled that the unilateral annexation proceedings had priority over the petitions for the annexation election. The court also ruled that the alleged ambiguity of the published legal description of the area to be annexed by unilateral action of the city council did not void the annexation ordinance. However, the court held that it was improper for the council to use its emergency powers to accomplish unilateral annexation when the constitutional amendment which would have prohibited such action was to be voted on only a few days later. It also held that the adoption of the annexation ordinance on second reading on November 11, 1980, was without effect because the city had no power to unilaterally annex the area after the passage of Amendment No. 3. Therefore, the annexation attempt failed.
Both plaintiffs and defendants appealed the court's ruling. We reverse.
The city contends that the trial court erred in declaring the annexation ordinance void and unenforceable because of its enactment as an emergency measure. We agree.
The appellees (Slack) argue that the emergency declarations of the ordinance exceeded the city council's legislative power since the ordinance did not define a "genuine emergency." They argue that the threat of an affirmative vote on Amendment No. 3 did not constitute a genuine emergency, and governmental action taken to emasculate the sovereign power of the people must be condemned. We are not persuaded by these arguments.
This court has often held that a legislative declaration of purpose for enacting emergency legislation is conclusive and will not be reviewed in the courts. Board of County Commissioners v. City and County of Denver, 193 Colo. 211, 565 P.2d 212 (1977); Lyman v. Town of Bow Mar, 188 Colo. 216, 533 P.2d 1129 (1975); Shields v. City of Loveland, 74 Colo. 27, 218 P. 913 (1923); Van Kleeck v. Ramer, 62 Colo. 4, 156 P. 1108 (1916). Only upon a showing of bad faith or fraud are legislative judgments reviewable. McCray v. City of Boulder, 165 Colo. 383, 439 P.2d 350 (1968); McCormick v. City of Montrose, 105 Colo. 493, 99 P.2d 969 (1939). The trial court made no finding of fraud or bad faith, but nevertheless the court found that the motive of the council was unlawful in attempting to complete the annexation before the November 4, 1980, election.
There was substantial evidence presented at the hearing before the city council on October 27, 1980, that an emergency existed and that the city should act quickly. The emergency clause included an elaborate, detailed explanation of why, in the judgment of the city council, immediate action should be taken. We hold that the fact that the ordinance was enacted as an emergency measure on October 27, 1980, does not invalidate it. 2 Because of our resolution of this matter, we need not reach the question whether the adoption of the annexation ordinance on second reading on November 11, 1980, was effective.
Slack argues that Amendment No. 3, approved in a statewide election on November 4, 1980, precluded the unilateral annexation. We do not agree. Since the constitutional amendment had not been voted on at the time of the October 27 adoption of the ordinance, the annexation did not violate the provision of Amendment No. 3, which was not retroactive in its effect. Amendment No. 3 did not become effective until the Governor's proclamation announcing the completion of the canvassing was made in December of 1980. See supra note 1; Pugh v. City of Sacramento, 119 Cal.App.3d 485, 174 Cal.Rptr. 119 (1981).
The appellee Slack contends that the district court erred in concluding that the petitions for annexation election in this case do not take precedence over the unilateral annexation proceeding.
At the time of the filing of the petitions, section 31-12-118, C.R.S.1973 (1977 Repl.Vol. 12), provided in relevant part as follows:
The appellee Slack argues that once the city council received the Petitions for Annexation Election, it was expressly prohibited from either commencing or prosecuting the unilateral annexation proceeding. Slack also argues that even if the petitions submitted were not in substantial compliance with section 31-12-107(2) of the Annexation Act because they divided city-owned land without the city's permission, substantial compliance with the Act is not required and section 31-12-118(2), C.R.S.1973 (1977 Repl.Vol. 12) provides that all other proceedings for annexation should cease once petitions are filed.
We cannot agree with this interpretation of the statute. Once the petitions are received, the city council is on notice of the request for the annexation election. However, unless the petitions are found to be in compliance with the provisions of the Annexation Act, they do not trigger a cessation of all other annexation proceedings pursuant to section 31-12-118(2). Since the petitions were found to...
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