CO Code § 31-12-106 (2021)
2021 Colorado Code|Title 31 - Government - Municipal|Article 12 - Annexation- Consolidation - Disconnection|Part 1 - Municipal Annexation Act of 1965|§ 31-12-106. Annexation of Enclaves, Partly Surrounded Land, and Municipally Owned Land

  Annexation of enclaves. When any unincorporated area is entirely contained within the boundaries of a municipality, the governing body may by ordinance annex such territory to the municipality in accordance with section 30 (1)(c) of article II of the state constitution, but without complying with section 31-12-104, 31-12-105, 31-12-108, or 31-12-109, if said area has been so surrounded for a period of not less than three years; except that notice of the proposed annexation ordinance shall be given by publication as provided by section 31-12-108 (2) for notices of annexation petitions, and resolutions initiating annexation proceedings, but no public hearing on the proposed annexation ordinance shall be required, and the first publication of notice shall be at least thirty days prior to the adoption of the ordinance. (1.1) Exception to annexation of enclaves.   No enclave may be annexed pursuant to subsection (1) of this section if:   Any part of the municipal boundary or territory surrounding such enclave consists at the time of the annexation of the enclave of public rights-of-way, including streets and alleys, that are not immediately adjacent to the municipality on the side of the right-of-way opposite to the enclave; or    Any part of the territory surrounding the enclave was annexed to the municipality since December 19, 1980, without compliance with section 30 of article II of the state constitution.       In the case of an enclave the population of which exceeds one hundred persons according to the most recent United States census and that contains more than fifty acres, the enclave shall not be annexed pursuant to subsection (1) of this section unless the governing body of the annexing municipality has:   Created an annexation transition committee composed of nine members, five of whom shall reside, operate a business, or own real property within the enclave, two of whom shall represent the annexing municipality, and two of whom shall represent one or more counties in which the enclave is situated; and    Published notice of the creation and existence of the committee, together with its regular mail, electronic mail, or telephonic contact information, in the same manner as provided by section 31-12-108 (2) for notices of annexation petitions and resolutions initiating annexation proceedings.       The duties of the annexation transition committee required by paragraph (b) of this subsection (1.1) shall be to:   Serve as a means of communication between or among the annexing municipality, one or more counties within which the enclave is situated, and the persons who reside, operate a business, or own real property within the enclave regarding any public meetings on the proposed annexation; and    Provide a mechanism by which persons who reside, operate a business, or own real property within the enclave may communicate, whether by electronic mail, telephonic communication, regular mail, or public meetings, with the annexing municipality or any counties within which the enclave is situated regarding the proposed annexation.          (Deleted by amendment,L. 97, p. 995, § 2, effective May 27, 1997.)    Annexation of unincorporated municipally owned land. When the municipality is the sole owner of the area that it desires to annex, which area is eligible for annexation in accordance with section 30 (1)(c) of article II of the state constitution and sections 31-12-104 (1)(a) and 31-12-105, the governing body may by ordinance annex said area to the municipality without notice and hearing as provided in sections 31-12-108 and 31-12-109. The annexing ordinance shall state that the area proposed to be annexed is owned by the annexing municipality and is not solely a public street or right-of-way.    Additional terms and conditions on the annexation. Additional terms or conditions may be imposed by the governing body in accordance with section 31-12-112.    Any municipality that has entered into an intergovernmental agreement, any portion of which addresses issues pertaining to the annexation of enclaves shall, promptly upon execution of the agreement, record the agreement with the clerk and recorder of any county within which any land area addressed in the agreement is situated.     History. Source: L. 75: Entire title R&RE, p. 1079, § 1, effective July 1. L. 81: (1) amended and (1.1) added, p. 1510, § 1, effective July 1. L. 97: (1.1) and (2) amended, p. 995, § 2, effective May 27. L. 2006: (1.1) amended and (5) added, p. 1007, § 1, effective September 1. L. 2010: (1) and (3) amended,(HB 10-1259), ch. 211, p. 914, § 4, effective August 11.    Editor's note:   This section is similar to former § 31-8-106 as it existed prior to 1975.   Cross references:   For annexation of unincorporated areas, see § 30 of article II of the state constitution.   ANNOTATION   Law reviews. For note, “The Permissible Scope of Compulsory Requirements for Land Development in Colorado”, see 54 U. Colo. L. Rev. 447 (1983). For article, “Annexation: Today's Gamble for Tomorrow's Gain -- Parts I and II”, see 17 Colo. Law. 603 (1988). For article, “ADR Techniques in Municipal Annexations”, see 18 Colo. Law. 901 (1989).   Annotator's note. Since § 31-12-106 is similar to former § 31-8-106 prior to the 1975 repeal and reenactment of this title, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.   There is not absolute constitutional right under the due process clause to vote on a proposed annexation, and the state general assembly has the ultimate control of the method of annexing by its agency cities. The general assembly may grant the right to vote in some types of annexation and deny it in others, provided that there is some rational basis for the distinction, and the equal protection clause of the federal constitution does not preclude creation of distinct classes if such classifications are reasonably related to some legitimate state interest and all those within the class created are treated equally. Therefore, within each of the present classes based on the extent of contiguous boundaries all persons residing within the territory to be annexed are treated equally with respect to the right to exercise the franchise, and the distinction recognized by the assembly as to when the franchise may be exercised is reasonable in light of the manifest purpose for the differentiation. Adams v. City of Colo. Springs, 308 F. Supp. 1397 (D. Colo.), aff'd mem., 399 U.S. 901, 90 S. Ct. 2197, 26 L. Ed. 2d 555 (1970).   Unilateral annexation statute is not violative of due process and equality of rights where persons within territory proposed to be annexed are not allowed to vote on the annexation. Pomponio v. City of Westminster, 178 Colo. 80 , 496 P.2d 999 (1972).   Plain meaning of “unincorporated area” cannot logically include areas which are not being considered for annexation or areas which have already become part of the annexing municipality for the purposes of a unilateral annexation. Cesario v. City of Colo. Springs, 200 Colo. 459 , 616 P.2d 113 (1980).   Commencement of three-year period. The intendment of this section is that the area to be annexed need only be contiguous for a three-year period, the commencement of which can be either before or after the act became effective so long as the total time is three years. Pomponio v. City of Westminster, 178 Colo. 80 , 496 P.2d 999 (1972).   Significance of required two-thirds contiguity. Where the area to be annexed has less than two-thirds contiguity with the annexing city, the interrelationship between the annexed area and the city may not be great enough to warrant a politically undesirable unilateral merger; where, however, the territory to be annexed has over two-thirds contiguity with the annexing city, the interrelationship between the two areas is or can be so close that the city should be allowed to annex despite the unwillingness of the residents of the annexed territory. The law thus recognizes that a municipality such as Colorado Springs is severely handicapped by an annexation law which requires the approval of the property owners and qualified electors of an annexed area, it being unable to deal with groups of citizens who form small tax colonies on the borders of the core city which is the economic base of the urban area and to which the colonies owe their very existence and yet pay nothing for the advantages which the city provides, as these people would seldom consent to the annexation and their nonconsent would threaten the very existence of the core city. Adams v. City of Colo. Springs, 308 F. Supp. 1397 (D. Colo.), aff'd mem., 399 U.S. 901, 90 S. Ct. 2197, 26 L. Ed. 2d 555 (1970).   Annexation power is legislative in nature. Since by statute the general assembly has delegated the power to annex territory to a city, that power remains legislative in character. Bd. of County Comm'rs v. City & County of Denver, 37 Colo. App. 395, 548 P.2d 922 (1976).   Certain preliminary findings are mandated by this section, i.e., that the subject property appears to have had the requisite contiguity for the requisite period prior to the commencement of annexation procedures. Bd. of County Comm'rs v. City & County of Denver, 37 Colo. App. 395, 548 P.2d 922 (1976).   In a unilateral annexation pursuant to subsection (2), the legislative body with annexing authority must make specific findings at a hearing that the proposed area to be annexed has had the requisite boundary contiguity for the requisite period of time before such an area is eligible for annexation by the governing body. Cesario v. City of Colo. Springs, 200 Colo. 459 , 616 P.2d 113 (1980).   The size and shape of a parcel to be annexed is immaterial and is conclusively a legislative problem. Bd. of County Comm'rs v. City & County of Denver, 37 Colo. App. 395, 548 P.2d 922 (1976).   A public way or a portion of a public way can be utilized as a noncontiguous boundary of the annexed territory, since the statute contains no such restriction. Bd. of County Comm'rs v. City & County of Denver, 37 Colo. App. 395, 548 P.2d 922 (1976).   Railroad rights-of-way do not constitute public rights-of-way as the term is used in subsection (1.1), and annexations in question are not void based on the public rights-of-way exception. Sinclair Mktg. Inc. v. Commerce City, 226 P.3d 1239 (Colo. App. 2009).   Streets not exempt from subsection (3). If the general assembly had intended that streets be excluded from the definition of sole ownership, it would have provided an exception to that effect. Bd. of County Comm'rs v. City & County of Denver, 190 Colo. 8 , 543 P.2d 521 (1975).   Determination of sole ownership involving street as only contiguous point. Even though contiguity is not affected by the existence of a street the determination of sole ownership for purpose of annexation under § 31-12-106 (3) is affected by a street owned by an entity other than the annexing authority where that street constitutes the only contiguous land. Bd. of County Comm'rs v. City & County of Denver, 190 Colo. 8 , 543 P.2d 521 (1975).   Measurements for determining boundary contiguity confined to area's perimeter. The measurements for determining boundary contiguity under subsection (2) must be confined solely to the perimeter of the area proposed to be annexed. Cesario v. City of Colo. Springs, 200 Colo. 459 , 616 P.2d 113 (1980).   Where city owns 50-foot strip in land to be annexed. Since the city council must decide whether annexation will be approved under § 31-12-107 (1)(g) where owners of 100%; of the land to be annexed had signed the petition, no purpose would be served by requiring the city, as owner of a 50-foot contiguous strip in the land to be annexed, to sign a petition addressed to itself. Likewise, to require that since the city has not signed the petition, it must first annex the 50-foot strip pursuant to subsection (3), would be to establish a procedure that does not comport with the legislative mandate that the purpose of the act is to provide for the “orderly growth of urban communities”. Bd. of County Comm'rs v. City & County of Denver, 38 Colo. App. 171, 556 P.2d 486 (1976), aff'd, 194 Colo. 252 , 571 P.2d 1094 (1977).   County-owned street may be used as “pole”. It is not permissible to include and use a county street as the “pole” in order to meet the § 31-12-104 (1) contiguity requirement, but to ignore the county ownership of the street for purposes of meeting the subsection (3) sole ownership requirement in a city annexation ordinance. Bd. of County Comm'rs v. City & County of Denver, 190 Colo. 8 , 543 P.2d 521 (1975).   Where plaintiffs fail to go forward to demonstrate any deficiency in boundaries to defeat the contiguity requirement, findings of ultimate fact are substantially in the language of the statute and are sufficient when based on evidence not specifically controverted by other evidence in the record. Adams v. City of Colo. Springs, 178 Colo. 241 , 496 P.2d 1005 (1972).   Applied in McArthur v. Zabka, 177 Colo. 337 , 494 P.2d 89 (1972); Slack v. City of Colo. Springs, 655 P.2d 376 (Colo. 1982).