CO Code § 31-12-603 (2021)
2021 Colorado Code|Title 31 - Government - Municipal|Article 12 - Annexation- Consolidation - Disconnection|Part 6 - Disconnection by Court Decree - Statutory Cities|§ 31-12-603. Hearing - Decree - Proviso

  Upon the filing of such petition in the district court, the judge thereof shall set a date for a hearing, not less than forty days nor more than sixty days thereafter. It is the duty of the clerk of said court to cause a copy of such petition and a notice of the date and the time set for such hearing to be served upon the mayor of the city. The same shall be served at least thirty days prior to the hearing of such petition by the court. Upon the hearing and proof of the facts set forth in said petition, it shall be determined whether said tracts of land should be disconnected from such city, and the court shall enter an order or decree accordingly. When a city has maintained streets, lights, and other public utilities for a period of three years through or adjoining said tracts of land, the owners shall not be entitled to disconnect the land under the provisions of this part 6.    If an area has been annexed to a city for a period of two years and then successful action is undertaken to disconnect such area, the disconnected land shall be made subject to the applicable county's zoning resolution and map and other land development regulations within ninety days after the effective date of the disconnection as described in section 31-12-501 (5).     History. Source: L. 75: Entire title R&RE, p. 1102, § 1, effective July 1. L. 2020: (2) amended,(HB 20-1133), ch. 99, p. 385, § 2, effective September 14.    Editor's note:   This section is similar to former § 31-8-403 as it existed prior to 1975.   ANNOTATION   Analysis     I. GENERAL CONSIDERATION.    II. EFFECT OF MAINTENANCE OF STREETS OR PUBLIC UTILITIES.     I. GENERAL CONSIDERATION.   Annotator's note. Since § 31-12-603 is similar to former § 31-8-403 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.   This section is unambiguous. Master Kraft Bldrs. Corp. v. City of Lakewood, 184 Colo. 254 , 519 P.2d 1188 (1974).   Section grants unequivocal right to disconnect property any time prior to three years acceptance of services. Master Kraft Bldrs. Corp. v. City of Lakewood, 184 Colo. 254 , 519 P.2d 1188 (1974).   No delegation of legislative power. It is settled in this state that laws which vest in courts, political bodies or the people of the community, authority to determine and change, under the provisions of the law, the boundaries of cities and towns, is not a delegation of the power to make laws, and is therefore not violative of the maxim that the power conferred upon the general assembly cannot be delegated by the department to any other body or authority. Town of Edgewater v. Liebhardt, 32 Colo. 307 , 76 P. 366 (1904).   Procedures for disconnection of territory are mandatory. The procedures for disconnection by court decree of territory from a city as provided for in this section are mandatory. Master Kraft Bldrs. Corp. v. City of Lakewood, 44 Colo. App. 90, 615 P.2d 47 (1980).   Duty of court to order disconnection is mandatory where statutory requisites are met. Master Kraft Bldrs. Corp. v. City of Lakewood, 184 Colo. 254 , 519 P.2d 1188 (1974).   This section does not authorize the court to do as it pleases, and the section is mandatory. Town of Edgewater v. Liebhardt, 32 Colo. 307 , 76 P. 366 (1904).   If, upon the trial, it appears that the conditions required to be established by this section have been established, it becomes the duty of the court to enter a decree disconnecting the territory from the city or town. Town of Edgewater v. Liebhardt, 32 Colo. 307 , 76 P. 366 (1904).   Where, after petition in proceeding for disconnection had been filed, petitioners transferred a portion of land, but petitioner's ownership was established by evidence and grantee appeared and was treated as a party to proceeding by trial court, supreme court upheld disconnection. Sheridan v. Fox Metal Prods. Corp., 123 Colo. 94 , 227 P.2d 1003 (1950).   Landowners' petition to disconnect from home rule municipality filed under § 31-12-119 is not precluded by subsection (1) of this section. The record supports the court's denial of landowners' petition because landowners failed to show that municipality did not, upon demand, provide landowners' parcels the same municipal services on the same general terms and conditions as the rest of the municipality received. A petition filed under § 31-12-119 only has to follow the procedures ”set forth in parts 6 and 7“ of this title, not the substantive provisions of those parts. Radcliff Props. v. City of Sheridan, 2012 COA 82 , 296 P.3d 310.   II. EFFECT OF MAINTENANCE OF STREETS OR PUBLIC UTILITIES.   City need not be incorporated three years. There is no provision requiring that the city from which disconnection is sought must be incorporated three years. If a city has been incorporated less than three years, it could not have furnished the services for the requisite time and the statute applies. To require three years of incorporation by a city before the petition could be filed would lock the property in and prevent recourse to the statute. Master Kraft Bldrs. Corp. v. City of Lakewood, 184 Colo. 254 , 519 P.2d 1188 (1974).   ”Adjoining“ connotes physical touching or bounding at some point. Master Kraft Bldrs. Corp. v. City of Lakewood, 44 Colo. App. 90, 615 P.2d 47 (1980).   Street lights and public utilities are not ”adjoining“. Street lights, public utilities, and streets situated only in close proximity to land sought to be disconnected are not ”adjoining“. Master Kraft Bldrs. Corp. v. City of Lakewood, 44 Colo. App. 90, 615 P.2d 47 (1980).   Streets. The streets contemplated by this section are those established by the municipality, or maintained primarily for municipal purposes, and the existence of which depends on the continued existence of the town. Morrison v. Town of Lafayette, 67 Colo. 220 , 184 P. 301 (1919).   Public utilities. A public utility, to come within this section, must be capable of benefit to a substantial portion of the premises sought to be discontinued. Morrison v. Town of Lafayette, 67 Colo. 220 , 184 P. 301 (1919).   Street lighting furnished by an independent company under contract with a city is a maintenance of such lighting by the city under the provisions of this section. Town of Englewood v. Jones, 71 Colo. 181 , 204 P. 607 (1922).   It is immaterial that the lights are upon the opposite side of the street from the land, that the street was at one time a county road, and that the amount of work done upon it by the city has been small. Town of Englewood v. Jones, 71 Colo. 181 , 204 P. 607 (1922).   Combination of more than one not required. In order to prevent the disconnection of territory from a city or town under this section, it is not necessary that the city or town shall have maintained ”streets, lights and other public utilities“, all combined and each in the plural, upon the land sought to be disconnected, but it is sufficient to prevent such disconnection if the city or town has for a period of three years exercised supervision over the territory and has in good faith maintained thereon such public improvements or utilities as in the judgment of the town authorities the public interests require, and it is not necessary that more than one street, or more than one light or other public utilities shall have been maintained, if in the judgment of the town authorities the public interests do not require more than one. Anaconda Mining Co. v. Town of Anaconda, 33 Colo. 70 , 80 P. 144 (1905).   Uncontradicted evidence of even a slight expenditure of money in improving a street is sufficient to defeat the petition of a landholder seeking to disconnect a tract of land. Adams v. Town of Gunnison, 62 Colo. 114 , 160 P. 1033 (1916).   Where more than three years prior to the filing of the petition for disconnection, a portion of one of the streets upon which the land abutted, was graded, and a town ditch, extending for two blocks or more along this street, where the lands abutted, had been cleaned, twice in each of the four preceding years; and both this and another street, upon which the land abutted, had been worked, leveled, and cleaned from time to time for more than three years, it was held that under this section the petition must be denied. Town of Kersey v. Ewing, 59 Colo. 239 , 140 P. 619 (1915). See Town of Englewood v. Jones, 71 Colo. 181 , 204 P. 607 (1922).   Where what was relied upon as a street was a county road, existing before the incorporation of the town, and used as such ever since, and the only work done upon it by the town was the ordinary work of repair, the petitioner obtained no additional advantage from the road by the incorporation of the town, or anything done by the town authorities. The petitioner was entitled to the disconnection sought. Morrison v. Town of Lafayette, 67 Colo. 220 , 184 P. 301 (1919); Sheridan v. Fox Metal Prods. Corp., 123 Colo. 94 , 227 P.2d 1003 (1950).   Water pipe line insufficient. Since the purpose of this section is to permit persons owning real estate lying upon the borders to disconnect it from the town, if no part of such property has been duly platted into lots and blocks, to hold that a water pipe line running up to, or even into, such property without conferring any substantial service or advantage thereto, is such a maintenance of a public utility as to prevent detachment of the land, would be to defeat the main purpose of the section in many proceedings of this kind. Morrison v. Town of Lafayette, 67 Colo. 220 , 184 P. 301 (1919).