CO Code § 37-45-136 (2021)
2021 Colorado Code|Title 37 - Water and Irrigation|Article 45 - Water Conservancy Districts|§ 37-45-136. Inclusion of Lands

  The boundaries of any district organized under the provisions of this article may be changed in the manner prescribed in this article, but the change of boundaries of the district shall not impair or affect its organization or its rights in or to property or any of its rights or privileges whatsoever, nor shall it affect or impair or discharge any contract, obligation, lien, or charge for or upon which it might be liable or chargeable had such change of boundaries not been made.    The owners of lands may file a petition with the board, in writing, praying that such lands be included in the district. The petition shall describe the tracts or body of land owned by the petitioners, and such petition shall be deemed to give the assent of the petitioners to the inclusion in said district of the lands described in the petition, and such petition must be acknowledged in the same manner that conveyances of land are required to be acknowledged. The secretary of the board shall cause notice of filing of such petition to be given and published in the county in which the lands are situated, which notice shall state the filing of such petition, names of petitioners, descriptions of lands mentioned, and the prayer of said petitioners, giving notice to all persons interested to appear at the office of the board at any time named in said notice and show cause in writing why the petition should not be granted. At the time and place mentioned or at such time to which the hearing may be adjourned, the board shall proceed to hear the petition and all objections thereto, presented in writing by any person showing cause why said petition should not be granted. The failure of any person interested to show cause shall be deemed an assent on his part to the inclusion of such lands in the district as prayed for in the petition. If the petition is granted, the board shall make an order to that effect and file the same with the clerk of the court, and, upon order of the court, said lands shall be included in the district.      In addition to the method provided in subsections (1) and (2) of this section, additional areas, either contiguous or noncontiguous to the district, and including irrigated lands, nonirrigated lands, towns and cities, and other lands and any one or more of the same, may be included in the district by petition, which petition shall be filed in the district court of the county in which the petition for organization of the original district was filed, signed by not fewer than twenty-five percent of the owners of irrigated lands in said area but not embraced within the corporate limits of a city or town; and each tract of land shall be listed opposite the name of the signer. Each such tract together with the improvements thereon shall have a valuation for assessment of not less than one thousand dollars. The petition shall also be signed by not fewer than five percent of the owners of nonirrigated lands or lands embraced within the incorporated limits of a city or town, all situated in the area embraced in said petition; and each tract of land shall be listed opposite the name of the signer. Each such tract together with improvements thereon shall have a valuation for assessment of not less than one thousand dollars. Said petition shall set forth a general description of the territory in the area sought to be included in the district, the name of the district in which it is sought to be included, and a statement that the property sought to be included will be benefited by the accomplishment of the purposes for which the original district was formed and shall pray for the inclusion of the area in the district.    No petition with the requisite signatures shall be declared null and void on account of alleged defects, but the court may permit the petition to be amended at any time to conform to the facts by correcting any errors in the description of the territory or in any other particular. However, similar petitions or duplicate copies of the same petition for the inclusion of the same area may be filed and shall together be regarded as one petition. All such petitions filed prior to the hearing on the first petition filed shall be considered by the court the same as though filed with the first petition placed on file.    In determining whether the requisite number of landowners has signed the petition, the names as they appear upon the tax roll shall be prima facie evidence of such ownership.    At the time of filing the petition or at any time subsequent thereto, and prior to the time of hearing on said petition, a bond shall be filed, with security approved by the court, sufficient to pay all expenses connected with the proceedings in case the inclusion of the area is not effected. If at any time during the proceeding the court is satisfied that the bond first executed is insufficient in amount, it may require the execution of an additional bond within a time to be fixed to be not less than ten days distant, and, upon failure of the petitioner to execute the same, the petition shall be dismissed.    Immediately after the filing of such petition, the court wherein such petition is filed, by order, shall fix a place and time, not less than sixty days nor more than ninety days after the petition is filed, for hearing thereon, and thereupon the clerk of said court shall cause notice by publication to be made of the pendency of the petition and of the time and place of hearing thereon. The clerk of said court shall also forthwith cause a copy of said notice to be mailed by registered mail to the board of county commissioners of each of the several counties having territory within the area proposed to be included within the district.    No city, or city and county, having a population of more than twenty-five thousand as determined by the last United States census shall be included within such area proposed to be included within the district unless by and with the written consent of the chief executive officer of such city, or city and county, with the approval of the legislative body of such municipality, and such consent may specify that the rate of taxation on the valuation for assessment of property within said city, or city and county, under section 37-45-122, shall not exceed a maximum rate which may be less than the rates set out in said section 37-45-122, and in such case the district shall not have power to levy an assessment on the property in said city, or city and county, at a greater rate than that specified in said consent.    Not less than thirty days prior to the time fixed by order of court for the hearing on said petition, and not thereafter, a petition may be filed in the office of the clerk of the court wherein the proceeding for inclusion is pending, signed by not fewer than twenty percent of the owners of irrigated lands in said area but not embraced within the incorporated limits of a city or town, who have not signed the petition for inclusion, and also signed by not fewer than five percent of the owners of nonirrigated lands or lands embraced in the incorporated limits of a city or town, all situated in said area proposed to be included within the district, who have not signed the petition for inclusion, protesting the inclusion of said area. The signers of said protesting petition shall state therein the land owned by each and also shall state the value thereof as shown by the last preceding assessment.    In the event a petitioner signs such petition both as owner of irrigated and nonirrigated land situated within a municipality, his name shall be counted only as an owner of irrigated lands.    Upon the day set for the hearing upon the original petition, if it appears to the court that said protesting petition is not signed by the requisite number of owners of lands and of the requisite value, the court shall thereupon dismiss said protesting petition and shall proceed with the original hearing as provided in this section.    If the court finds from the evidence that said protesting petition is signed by the requisite number of owners of lands, and of the requisite values, the court shall forthwith dismiss the original petition for inclusion. The finding of the court upon the question of such valuation, the genuineness of the signatures, and all matters of law and fact incident to such determination shall be final and conclusive on all parties in interest whether appearing or not.    Any owner of real property in said proposed area not having individually signed a petition for the inclusion, and desiring to object to the inclusion, on or before ten days prior to the date set for the cause to be heard, may file objection to the inclusion.    Such objection shall be limited to a denial of the statements in the petition and shall be heard by the court as an advanced case without unnecessary delay.    Any owner of irrigated land in said proposed area who has not individually signed a petition for the inclusion of the area within the district and who desires to have his irrigated lands excluded from said district, on or before ten days prior to the date set for the cause to be heard, may file a petition in said district court asking to have his irrigated lands excluded therefrom. Any petition so filed shall be heard by the district court on the date set for the hearing of the petition for inclusion of the area, and the district court shall exclude such irrigated lands from the area proposed for inclusion within the district.    Upon said hearing, if it appears that a petition for the inclusion has been signed and presented, as provided in this subsection (3), in conformity with this article, and that the allegations of the petition are true, and that no protesting petition has been filed, or if filed has been dismissed by order duly entered of record, the court shall adjudicate all questions of jurisdiction and declare the area included in the district to the same extent and as fully as if said area had been included in the original petition for the organization of the district; except that, prior to the entry of its decree including such area within the district, the court shall obtain the verified consent of the board of directors of the district to the inclusion of such area, which consent shall set forth the terms and conditions upon which said area shall be included, which terms may include the price and value per acre-foot of water to be allotted and contracted for use within said included area and which said terms and conditions shall be embodied in the decree of said court.    If the court finds that no petition has been signed and presented in conformity with this section, or that the material facts are not as set forth in the petition filed, it shall dismiss said proceedings and adjudge the costs against the signers of the petition in such proportion as it deems just and equitable. No appeal or other remedy lies from an order dismissing said proceeding; but nothing in this article shall be construed to prevent the filing of a subsequent petition for similar purposes, and the right so to renew such proceeding is expressly granted and authorized. (3.5)   As an alternative to the procedures set forth in subsections (2) and (3) of this section, a petition for inclusion and for an election on inclusion of lands within a water conservancy district may be filed in the district court of the county in which the petition for organization of the original district was filed. The petition shall be signed by not less than twenty-five percent of the owners of agricultural lands of the area embraced by the proposed lands to be included and by not less than ten percent of the electors of said area embraced by the proposed lands to be included. The petition shall show that the board of directors of the district has given its verified approval to the inclusion of such area in the district and shall recite the terms and conditions upon which said area shall be included, if any, which the board of directors of the district may have required, in its discretion, as a prerequisite to the inclusion. The board of directors of the district may require, as one of the conditions of its approval of the proposed inclusion, that the petitioners post a sufficient bond to cover the costs of the election. If no bond is so required, the district shall be deemed to have agreed to pay the costs of the election. The proposed boundary of the lands to be included within the district may include any part or all of any county, city, or city and county of any size. Such petition and the hearing thereon shall otherwise comply with the provisions of this section which are not inconsistent with the provisions of this subsection (3.5).    On the day fixed for hearing, or at a continuance thereof, the court shall first ascertain, from such evidence which may be adduced, that the required number of electors of the area to be included in the district have signed the petition and that the board of directors has approved the inclusion of lands in the district. Upon said hearing, if it appears that the petition for inclusion has been signed and presented in conformity with this subsection (3.5) and that the allegations of the petition are true, the court, by order duly entered of record, shall direct that the question of the inclusion of lands in the water conservancy district be submitted at an election, to be held for that purpose, of electors of the area embraced within the inclusion petition. Such election shall be conducted by the board of directors of the district in the same manner set forth in sections 37-45-139 to 37-45-141.    At such election the voter shall vote for or against the inclusion of lands in the water conservancy district. If the terms and conditions on inclusion have been set by the board of directors of the district, said terms and conditions shall be identified to the electors. If a majority of votes cast at said election are in favor of inclusion, the court, on the motion of the board of directors of the district, shall declare the area included in the district to the same extent and as fully as if said area had been included in the original petition for the organization of the district; except that, if the proposed inclusion in a district includes any territory within a municipality and a majority of the votes cast by the voters residing within that incorporated area are against inclusion in the district, the governing body of said municipality may, within thirty days after certification of the election results, petition the court for exclusion from the district of such incorporated area, and the court shall exclude such territory from the district. Any order of the court so including lands in a district shall incorporate the terms and conditions, if any, for inclusion which the board of directors of the district has required as a prerequisite to inclusion. (3.6) Whenever a municipality has annexed land into its boundaries and that municipality at the time of annexation previously had lands within its boundaries included within the district, upon consent of the governing body of the municipality, and upon consent by the board of directors of the district, the annexed lands shall be deemed to have been included within the district, subject to terms and conditions as determined by the board of directors of the district that shall not be inconsistent with the terms and conditions of previous applicable inclusion orders relating to that municipality. The municipality shall promptly transmit to the district a certified copy of the municipality's annexation ordinance. Upon receipt of the municipality's annexation ordinance, the board of directors of the district shall promptly act to grant or deny consent to the inclusion of the newly annexed lands into the district. If the board of directors of the district consents to such inclusion, and the municipality agrees to any terms and conditions to the inclusion adopted by the board of directors of the district, the district shall file with the court a certified copy of the municipality's annexation ordinance and a petition of the district for inclusion of the annexed lands that states the terms and conditions of inclusion as determined by the board of directors of the district. Upon the district's filing of a certified copy of the municipality's annexation ordinance and a petition of the district for inclusion of the annexed lands, the court shall enter an order including such lands within the boundaries of the district, upon the terms and conditions set forth in the petition.          As a part of any order entered establishing the inclusion of lands or areas into the district, the court shall designate the division of the district to which such included lands or areas shall be attached or shall, in combination with or in lieu of the foregoing, create a new division from such included lands or areas and appoint the directors therefor; but the total number of directors of the district shall not exceed fifteen.      If an order is entered establishing the inclusion of lands or areas into the district, such order shall be deemed final and no appeal or other remedy lies therefrom, and the entry of such order shall finally and conclusively establish the inclusion of the lands or areas against all persons except the state of Colorado, in an action in the nature of quo warranto commenced by the attorney general within three months after said decree declaring such lands or areas included as provided, and not otherwise. The inclusion of said lands or areas shall not be directly or collaterally questioned in any suit, action, or proceeding except as expressly authorized in this section.    Upon the entry of such decree, the clerk of the court shall transmit, to the division of local government in the department of local affairs and to the county clerk and recorder in each of the counties in which said lands or areas are located, copies of the findings and decree of the court including such lands or areas in the district. The same shall be recorded with said division, and copies shall also be filed in the office of the county clerk and recorder in each county in which a part of the district may be, where they shall become permanent records.        History. Source: L. 37: P. 1348, § 29. CSA: C. 173B, § 43. L. 51: P. 827, § 1. CRS 53: § 149-6-31. L. 61: P. 846, § 3. C.R.S. 1963: § 150-5-31. L. 76: (5)(b) amended, p. 606, § 31, effective July 1. L. 83: (3.5) and (3.6) added, p. 1390, § 1, effective May 16; (5)(b) amended, p. 1228, § 13, effective July 1. L. 99: (3.6) amended, p. 50, § 1, effective August 4. History. Source: L. 37: P. 1348, § 29. CSA: C. 173B, § 43. L. 51: P. 827, § 1. CRS 53: § 149-6-31. L. 61: P. 846, § 3. C.R.S. 1963: § 150-5-31. L. 76: (5)(b) amended, p. 606, § 31, effective July 1. L. 83: (3.5) and (3.6) added, p. 1390, § 1, effective May 16; (5)(b) amended, p. 1228, § 13, effective July 1. L. 99: (3.6) amended, p. 50, § 1, effective August 4.    ANNOTATION   The water conservancy act provides a complete and exclusive procedure for organization of water conservancy districts, as well as the exclusion and inclusion of property therefrom or thereto. People ex rel. Dunbar v. San Luis Water Conservancy Dist., 128 Colo. 193 , 261 P.2d 704 (1953).   It is the duty of the supreme court to construe the water conservancy district act so as to give force and effect to all of its provisions. People ex rel. Dunbar v. San Luis Water Conservancy Dist., 128 Colo. 193 , 261 P.2d 704 (1953).   Jurisdiction is dependent upon the legal sufficiency of the inclusion petition. People ex rel. Dunbar v. San Luis Water Conservancy Dist., 128 Colo. 193 , 261 P.2d 704 (1953).   Any area contiguous or noncontiguous to the district may, by petition, be made a part of the district, and it is not the area but the territory in the area which subsection (2) requires the petition to set forth a general description of the territory in the area sought to be included in the district, the name of the district in which it is sought to be included, a statement that the property sought to be included will be benefited by the accomplishment of the purposes for which the original district was formed, and shall pray for the inclusion of the area in the district. People ex rel. Dunbar v. San Luis Water Conservancy Dist., 128 Colo. 193 , 261 P.2d 704 (1953).   It is apparent that contiguity is not required in the additional areas to be included in the district, and it is equally apparent that the inclusion petition is not to include the area but rather territory in the area. This is made apparent by the provision that the petition shall set forth a general description of the territory in the area. If the area in its entirety was to become a part of the district by the inclusion petition, all the territory therein would necessarily be part of the district. People ex rel. Dunbar v. San Luis Water Conservancy Dist., 128 Colo. 193 , 261 P.2d 704 (1953).   An area is a particular extent of surface. It is rather an elastic term not easily definable; it means a surface or a region or a territory, and, of course, contiguity is not a prerequisite. In subsection (2), area is used in connection with and subordinate to ”district“ and any surface or region or territory on petition of the designated owners and verified consent of the board may properly be included in the district in the absence of the statutory protest provided in the act. People ex rel. Dunbar v. San Luis Water Conservancy Dist., 128 Colo. 193 , 261 P.2d 704 (1953).   There is no necessity for a determination of the sufficiency of the petition prior to the publication of notice. People ex rel. Dunbar v. San Luis Water Conservancy Dist., 128 Colo. 193 , 261 P.2d 704 (1953).   A petition must be dismissed when it takes signatures of owners. Where the protesting petition did not contain the signatures of any owners of irrigated lands in the area described in the inclusion petition, this made it obligatory upon the trial court on the day for the hearing to dismiss the protesting petitions and then left for the court's determination the legal sufficiency of the inclusion petition only. People ex rel. Dunbar v. San Luis Water Conservancy Dist., 128 Colo. 193 , 261 P.2d 704 (1953).   There is provided in the water conservancy act one hearing only on the sufficiency of the petition for inclusion and protests thereto. People ex rel. Dunbar v. San Luis Water Conservancy Dist., 128 Colo. 193 , 261 P.2d 704 (1953).