Chapter 7 - § 7.3 • MUNICIPAL ANNEXATION ACT OF 1965

• Jurisdiction: Colorado

§ 7.3 • MUNICIPAL ANNEXATION ACT OF 1965

§ 7.3.1—Legislative Declaration

• C.R.S. § 31-12-102

The Colorado General Assembly has declared that Part 1 of the Municipal Annexation Act of 1965 shall be liberally construed.⁷ In 1972, the Colorado Supreme Court relied on the liberal construction of this section to declare that the policy of the statute is to encourage natural and well-ordered development of municipalities, not to discourage such development by allowing for last-minute maneuvers designed only to defeat annexation.⁸

§ 7.3.2—Definitions

• C.R.S. § 31-12-103

Twelve different terms are defined in C.R.S. § 31-12-103. Two of the more significant are:

• Landowner: The owner in fee of any undivided interest in a parcel of land. If the mineral estate has been severed, the "landowner," for annexation petition, notice, consent, and election purposes, is the fee owner of the surface estate, not the fee owner of any undivided interest in the mineral estate.
• Registered Elector: A registered elector (pursuant to C.R.S. § 1-1-104(35)) who is a resident of the area proposed to be annexed.⁹

§ 7.3.3—Eligibility for Annexation: Contiguity

• C.R.S. § 31-12-104

C.R.S. § 31-12-104 establishes the basic criteria: any unincorporated territory is eligible for annexation when the governing body of the municipality finds at a public hearing that:

• At least one-sixth of the perimeter of the area proposed to be annexed is contiguous (shares a border) with the annexing municipality. Contiguity is not affected by the existence of streets, alleys, rights-of-way, public lands (except county-owned open space), or water bodies between the annexing municipality and the land proposed to be annexed. Intervening public rights-of-way are ignored for purposes of contiguity even when the underlying fee is privately owned.¹⁰ The one-sixth contiguity may be achieved by the annexation of one or more parcels in a series, which can be considered simultaneously for the purpose of the public hearing and annexation impact report requirements.¹¹
• A community of interest exists between the territory proposed to be annexed and the annexing municipality.¹²
• The territory proposed to be annexed is urban or will be urbanized in the near future, and is integrated or is capable of being integrated with the annexing municipality.¹³ Existence of the one-sixth contiguity is a basis for finding that this and the prior condition (community of interest) exist,¹⁴ unless the municipal governing body at public hearing finds at least two of the following:

? Less than 50 percent of adult residents of the area proposed to be annexed use any of the recreational, civic, social, religious, industrial, or commercial facilities of the municipality and less than 25 percent of these adult residents are employed in the annexing municipality.
? At least one-half of the land proposed to be annexed is agricultural, and landowners constituting at least one-half of the total area express, under oath, an intention to devote the land to such agricultural use for at least five years.
? It is impractical to extend to the proposed area those urban services the municipality provides to all its citizens on the same conditions. This standard does not apply to the extent any portion of an area proposed to be annexed is, or will be within the reasonably near future, provided with service by a quasi-municipal corporation (such as a special district).¹⁵

It is important that the municipal governing body make specific findings showing the property to be eligible for annexation.¹⁶ While the size and shape of a parcel to be annexed is immaterial, and the courts will not read into the annexation statutes limitations relating to unusual or irregular shapes,¹⁷ a recitation of the absolute factual existence of the one-sixth contiguity requirement is mandatory.¹⁸

Litigation between the City of Aurora and Douglas County has limited the ability of the board of county commissioners to create an exception to contiguity. C.R.S. § 31-12-104(1)(a) provides, inter alia, that "[c]ontiguity shall not be affected by the existence of a platted street or alley, a public or private right-of-way, a public or private transportation right-of-way or area, public lands, whether owned by the state, the United States, or an agency thereof, except county-owned open space, or a lake, reservoir, stream, or other natural or artificial waterway between the annexing municipality and the land proposed to be annexed."¹⁹ This "skipping rule" allows the annexing municipality to ignore, for purposes of contiguity, intervening lands of the types described, with the exception of "county-owned open space." The Douglas County Board of County Commissioners, faced with a pending Aurora annexation, promptly adopted a resolution declaring two intervening county roads to be "county-owned open space," in an attempt to destroy the required contiguity. The Colorado Court of Appeals held the two roads were not open space within the meaning of C.R.S. § 31-12-104(1)(a), and that the county's designation was therefore not adequate to block the annexation.²⁰

C.R.S. § 31-12-104(1)(a) was amended in 1987 to confirm as legitimate the long-standing practice of annexing one or more parcels in a series, considered simultaneously, in order to annex property that, taken as a whole, does not have the requisite one-sixth contiguity.

C.R.S. § 31-12-104 is one of two bases for the use of what have been termed "flagpole" annexations, in which a right-of-way is used as the "pole" to reach a portion of territory not directly contiguous to the city: the "flag." Because C.R.S. § 31-12-104(1)(a) allows annexations in a series, the one-sixth contiguity requirement may be achieved as the municipality annexes succeeding portions of a right-of-way. This requires a petition from the owner of the road only if the road alone is being annexed. The more common procedure for flagpole annexation is to use the authority to annex the road along with a petitioned private property annexation, in which case the owner of the road need not sign the petition.²¹ For additional discussion of series/simultaneous annexations involving roadways and the degree to which the owner of the roadway must sign the petition, see § 7.3.5, "Series/Simultaneous Annexations."

The Colorado Supreme Court's decision in Jefferson County Comm'rs v. City & County of Denver²² is often raised in support of arguments that flagpole annexations are illegal. In fact, however, the court's holding in that case was to disallow the use of a county road as a "pole" for annexation under the statutory provisions allowing for annexation of municipally owned property without notice or hearing under C.R.S. § 31-12-106(3). This is a separate procedure from the more common flagpole annexation. In the Jefferson County case, the road was owned by Jefferson County, which was not a petitioning landowner. Where petitioning landowners representing ownership of the "flag" are present, whether or not the owner of the "pole" is a petitioner, no violation of the statute occurs, and such a configuration is proper under C.R.S. § 31-12-104. The Colorado Department of Transportation has in the past established specific procedures that must be followed when annexing state highways, but has since repealed them.

Legislation enacted in 1991 amended C.R.S. § 31-12-104 to expressly prohibit "satellite city" annexations, in which no contiguity whatsoever exists between the municipality and the property sought to be annexed, and where none of the statutory exceptions to contiguity is present.²³

§ 7.3.4—Limitations

• C.R.S. § 31-12-105

C.R.S. § 31-12-105 imposes an additional set of limitations on every annexation:

• No land "held in identical ownership" may be divided into separate parcels for annexation without written consent of the landowner, unless the parcels are separated by a dedicated street, road, or other public way.²⁴ This applies even when the land is owned by the federal government,²⁵ although as a result of a 1987 amendment to C.R.S. § 31-12-104(1)(a), federal and state public lands may be ignored for purposes of contiguity.
• No land in identical ownership that comprises 20 acres and that has improvements with an assessed value in excess of $200,000 for ad valorem tax purposes may be included in the annexation without written consent of the landowner, unless the parcel is located entirely within the outer boundaries of the annexing municipality as they exist at the time of annexation.²⁶

• No annexation of an enclave, partly surrounded land, or municipally owned land, and no annexation petition or petition for an annexation election is valid when annexation proceedings have been initiated for the annexation of part of that territory by another municipality.²⁷ In that case, other provisions apply.²⁸ See § 7.3.15, "Conflicting Annexation Claims of Two or More Municipalities."

• If an annexation will result in the detachment of area from one school district and its inclusion in another, the annexation petition or petition for annexation election must be accompanied by a resolution of the board of directors of the school district to which the area will be attached, approving the annexation.²⁹ This requirement protects school districts from having to involuntarily undertake responsibility for providing educational services in newly annexed areas.³⁰ An annexation ordinance is invalid if the required consent is not obtained.³¹

• As a precondition to any valid annexation, the parcel annexed must not have the effect of extending a municipal boundary more than three miles in any direction from any point of such municipal boundary in any one year. The three-mile limit may be exceeded (1) if the limit would have the effect of dividing a parcel of property held in identical ownership, provided that at least 50 percent of the property is within the three-mile limit; or (2) if necessary to annex an enterprise zone. Within this

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