CO Code § 32-1-401 (2021)
2021 Colorado Code|Title 32 - Special Districts|Article 1 - Special District Provisions|Part 4 - Inclusion of Territory|§ 32-1-401. Inclusion of Territory - Procedure

     The boundaries of a special district may be altered by the inclusion of additional real property by the fee owner or owners of one hundred percent of any real property capable of being served with facilities of the special district filing with the board a petition in writing requesting that such property be included in the special district. The petition shall set forth a legal description of the property, shall state that assent to the inclusion of such property in the special district is given by the fee owner or owners thereof, and shall be acknowledged by the fee owner or owners in the same manner as required for conveyance of land.    The board shall hear the petition at a public meeting after publication of notice of the filing of such petition, the place, time, and date of such meeting, the names and addresses of the petitioners, and notice that all persons interested shall appear at such time and place and show cause in writing why the petition should not be granted. The board may continue such hearing to a subsequent meeting. There shall be no withdrawal from a petition after publication of notice by the board without the consent of the board. The failure of any municipality or county which may be able to provide service to the real property therein described or of any person in the existing special district to file a written objection shall be taken as an assent to the inclusion of the area described in the notice.      The board shall grant or deny the petition, in whole or in part, with or without conditions, and the action of the board shall be final and conclusive, except as provided in subparagraph (II) of this paragraph (c). If a municipality or county has filed a written objection to such inclusion, the board shall not grant the petition as to any of the real property to which adequate service is, or will be, available from such municipality or county within a reasonable time and on a comparable basis. If a petition is granted as to all or any of the real property therein described, the board shall make an order to that effect and file the same with the clerk of the court, and the court shall thereupon order the property to be included in the special district. (c) (I) The board shall grant or deny the petition, in whole or in part, with or without conditions, and the action of the board shall be final and conclusive, except as provided in subparagraph (II) of this paragraph (c). If a municipality or county has filed a written objection to such inclusion, the board shall not grant the petition as to any of the real property to which adequate service is, or will be, available from such municipality or county within a reasonable time and on a comparable basis. If a petition is granted as to all or any of the real property therein described, the board shall make an order to that effect and file the same with the clerk of the court, and the court shall thereupon order the property to be included in the special district.    A municipality or county which has filed a written objection to such inclusion and which can provide adequate service to the real property described in the petition within a reasonable time and on a comparable basis may bring an action in the court, commenced within thirty days after entry of the order of the board, to determine whether the action of the board granting the inclusion was arbitrary, capricious, or unreasonable.            In addition to the procedure specified in subsection (1) of this section, the boundaries of a special district may be altered by the inclusion of additional real property by:   Not less than twenty percent or two hundred, whichever number is smaller, of the taxpaying electors of an area which contains twenty-five thousand or more square feet of land filing a petition with the board in writing requesting that such area be included within the special district; but no single tract or parcel of property constituting more than fifty percent of the total area to be included may be included in any special district without the consent of the owner thereof; the petition shall set forth a legal and a general description of the area to be included and shall be acknowledged in the same manner as required for conveyance of land; or    The board adopting a resolution proposing the inclusion of a specifically described area; but no single tract or parcel of property constituting more than fifty percent of the total area to be included may be included in any special district without the consent of the owner thereof.       The board shall hear the petition or resolution at a public meeting after publication of notice of the filing of such petition or adoption of such resolution, the place, time, and date of such meeting, the names and addresses of the petitioners, if applicable, the description of the area proposed for inclusion, and notice that all persons interested and a municipality or county which may be able to provide service to the real property therein described shall appear at the time and place stated and show cause in writing why the petition should not be granted or the resolution not finally adopted. The board may continue such hearing to a subsequent meeting. There shall be no withdrawal from a petition after publication of notice by the board without the consent of the board. The failure of any person in the existing special district to file a written objection shall be taken as an assent on his part to the inclusion of the area described in the notice.    The board shall grant or deny the petition or finally adopt the resolution, in whole or in part, with or without conditions, and the action of the board shall be final and conclusive, except as provided in paragraph (d) of this subsection (2). If a municipality or county has filed a written objection to such inclusion, the board shall not grant the petition as to any of the real property to which adequate service is, or will be, available from such municipality or county within a reasonable time and on a comparable basis.    If the petition is granted or the resolution finally adopted, the board shall make an order to that effect and file the same with the clerk of the court. A municipality or county which has filed a written objection to the inclusion and which can provide adequate service to the real property described in the petition within a reasonable time and on a comparable basis may bring an action in the court, commenced within thirty days after entry of the order of the board, to determine whether the action of the board granting the inclusion was arbitrary, capricious, or unreasonable. The court shall direct that the question of inclusion of the area within the special district be submitted to the eligible electors of the area to be included and shall order the secretary to give published notice, as provided in part 2 of article 5 and article 13.5 of title 1, of the time and place of the election and of the question to be submitted, together with a summary of any conditions attached to the proposed inclusion. The election shall be held within the area sought to be included and shall be held and conducted, and the results thereof determined, in the manner provided in article 13.5 of title 1. The ballot shall be prepared by the designated election official and shall contain the following words: “Shall the following described area become a part of the .................. district upon the following conditions, if any?    If a majority of the votes cast at the election are in favor of inclusion and the court determines the election was held in accordance with article 13.5 of title 1, the court shall enter an order including any conditions so prescribed and making the area a part of the special district. The validity of the inclusion may not be questioned directly or indirectly in any suit, action, or proceeding, except as provided in article 11 of title 1.    Nothing in this part 4 shall permit the inclusion in a district of any property which could not be included in the district at the time of its organization without the written consent of the owners thereof, unless the owners of such property shall consent in writing to the inclusion of such property in the district as prayed for in said petition or unless such property is no longer excludable pursuant to the provisions of section 32-1-307 (2).    Nothing in this part 4 shall permit the inclusion in a special district of any property if a petition objecting to the inclusion and signed by the owners of taxable real and personal property, which property equals more than fifty percent of the total valuation for assessment of all taxable real and personal property to be included, is filed with the board no later than ten days prior to the public meeting held under paragraph (b) of this subsection (2).       Not more than thirty days nor less than twenty days prior to a meeting of the board held pursuant to paragraph (b) of subsection (1) of this section or paragraph (b) of subsection (2) of this section, the secretary of the special district shall send letter notification of the meeting to the property owners within the area proposed to be included within the special district as listed on the records of the county assessor on the date requested unless the petitioners represent one hundred percent of the property owners. The notification shall indicate that it is a notice of a meeting for consideration of the inclusion of real property within a special district and shall indicate the date, time, location, and purpose of the meeting, a reference to the type of special district proposed for inclusion, the maximum mill levy, if any, or stating that there is no maximum that may be imposed if the proposed area is included within the special district, and procedures for the filing of a petition for exclusion pursuant to section 32-1-203 (3.5). Except as provided in this subsection (3), the mailing of the letter notification to all addresses or post office box addresses within the area proposed to be included within the special district shall constitute a good-faith effort to comply with this section, and failure to notify all electors thereby shall not provide grounds for a challenge to the meeting being held.    Nothing in this part 4 shall be construed to permit the inclusion in a special district of any real property located in a city and county unless the governing body of such city and county has adopted a resolution of approval authorizing such inclusion pursuant to section 32-1-204.5 or waives its right to require such resolution in its sole discretion. Any resolution of approval so adopted or waiver so given shall be appended to any petition filed pursuant to paragraph   of subsection (2) of this section.        (Insert description of area) (Insert accurate summary of conditions)    =sr For inclusion ........ =sr Against inclusion ........”   History. Source: L. 81: Entire article R&RE, p. 1555, § 1, effective July 1. L. 85: (2)(a)(I) amended, p. 1108, § 2, effective March 1; (2)(g) added, p. 1105, § 3, effective July 1; (3) added, p. 1106, § 2, effective January 1, 1986. L. 91: (3) amended, p. 787, § 12, effective June 4. L. 92: (2)(d) and (2)(e) amended, p. 877, § 110, effective January 1, 1993. L. 93: (3) amended, p. 1790, § 78, effective June 6. L. 96: (3) amended, p. 309, § 8, effective April 15. L. 97: (4) added, p. 322, § 1, effective April 14. L. 2016: (2)(d) and (2)(e) amended,(SB 16-189), ch. 210, p. 784, § 82, effective June 6. L. 2021: (2)(d) and (2)(e) amended,(SB 21-160), ch. 133, p. 539, § 9, effective September 7.    Editor's note:   The provisions of this section are similar to provisions of several former sections as they existed prior to 1981. For a detailed comparison, see the comparative tables located in the back of the index.   ANNOTATION   Enactment of new statute could not include railroad property in special park and recreation district without consent in writing by owners because the property could not be included in the district at the time of its formation without such consent and no change had occurred with respect to railroad property. Hyland Hills Park v. Denver R. Co., 850 P.2d 155 (Colo. App. 1992), aff'd, 864 P.2d 569 (Colo. 1993).   Subsection (2)(f) of this section sets forth only two ways in which previously excluded property can later be included in a district. Inclusion without consent is permitted if the property has changed from agricultural use to a different use or if the property has been rezoned; for all other property, consent of the owners is required. Hyland Hills Park & Rec. District v. D. & R.G.W.R. Co., 864 P.2d 569 (Colo. 1993).   The owner of a severed mineral estate is a fee owner for purposes of this section. Lessees of a severed mineral estate, however, are not fee owners for purposes of this section. Bill Barrett Corp. v. Lembke, 2018 COA 134 , __ P.3d __, aff'd on other grounds, 2020 CO 73, 474 P.2d 46.   A mineral estate is not real property capable of being served with facilities of a special district pursuant to this section even though the ownership of the estate is a fee simple interest. Bill Barrett Corp. v. Lembke, 2018 COA 134 , __ P.3d __, aff'd on other grounds, 2020 CO 73, 474 P.2d 46.   To include new territory in a special district through the procedure set out under subsection (1)(a), all of the owners of the surface property to be included must assent, and inclusion is only appropriate if that surface property can be served by the district. The assent of the owners or lessees of subsurface mineral estates underlying that property is not required. Bill Barrett Corp. v. Lembke, 2020 CO 73, 474 P.3d 46.