CO Code § 32-1-207 (2021)
2021 Colorado Code|Title 32 - Special Districts|Article 1 - Special District Provisions|Part 2 - Control Act|§ 32-1-207. Compliance - Modification - Enforcement

  Upon final approval by the court for the organization of the special district, the facilities, services, and financial arrangements of the special district shall conform so far as practicable to the approved service plan.      After the organization of a special district pursuant to the provisions of this part 2 and part 3 of this article, material modifications of the service plan as originally approved may be made by the governing body of such special district only by petition to and approval by the board of county commissioners or the governing body of the municipality that has adopted a resolution of approval of the special district pursuant to section 32-1-204.5 or 32-1-204.7 in substantially the same manner as is provided for the approval of an original service plan; but the processing fee for such modification procedure shall not exceed two hundred fifty dollars. Such approval of modifications shall be required only with regard to changes of a basic or essential nature, including but not limited to the following: Any addition to the types of services provided by the special district; a decrease in the level of services; a decrease in the financial ability of the district to discharge the existing or proposed indebtedness; or a decrease in the existing or projected need for organized service in the area. Approval for modification shall not be required for changes necessary only for the execution of the original service plan or for changes in the boundary of the special district; except that the inclusion of property that is located in a county or municipality with no other territory within the special district may constitute a material modification of the service plan or the statement of purposes of the special district as set forth in section 32-1-208. In the event that a special district changes its boundaries to include territory located in a county or municipality with no other territory within the special district, the special district shall notify the board of county commissioners of such county or the governing body of the municipality of such inclusion. The board of county commissioners or the governing body of the municipality may review such inclusion and, if it determines that the inclusion constitutes a material modification, may require the governing body of such special district to file a modification of its service plan in accordance with the provisions of this subsection (2).    Except as otherwise described in paragraph (d) of this subsection (2), a special district shall not furnish domestic water or sanitary sewer service directly to residents and property owners in unincorporated territory located in a county that has not approved the special district's service plan unless the special district notifies the board of county commissioners of the county of its plan to furnish domestic water or sanitary sewer service directly to residents and property owners in the county and receives approval from the board to do so. Within forty-five days of receiving the notification, the board may review the special district's planned action and may, in its own discretion and following notice by the board, require a public hearing prior to giving approval of the planned action, prior to which hearing the governing body of the special district shall provide such information and data as the board reasonably requests. Failure to provide information as requested by the board is grounds for the board to delay the public hearing until the board receives the information. The board shall either approve or deny the proposed action within one hundred twenty days of the public hearing.    Before approving a planned special district action described in paragraph (b) of this subsection (2), the board of county commissioners of a county shall, not less than forty-five days prior to the first meeting of the board at which the approval specified in paragraph (b) of this subsection (2) may be given, provide public notice in the manner that the county requires of the possible approval within the newly described area to be served. The notice is required to include specific notification that any property owner wishing to have his or her property excluded from the proposed area to be served shall, not later than forty days from the first public notice, request that his or her property be excluded from the proposed area to be served by the special district. The board is not limited in its action with respect to exclusion of territory based on the request. A request for exclusion shall include a legal description of the property subject to the request, and the board shall act upon the request before taking final action on the request for approval pursuant to paragraph (b) of this subsection (2).    The requirements detailed in paragraphs (b) and (c) of this subsection (2) do not apply in the following circumstances:   A special district provides domestic water or sanitary sewer service only to private property owners pursuant to written agreement between the special district and the property owners;    A special district provides domestic water or sanitary sewer service within the boundaries of another governmental entity, including, without limitation, a city, a municipality, or another special district, pursuant to an intergovernmental agreement;    A special district provides any storm drainage or storm sewer services or facilities within the county; or    Domestic water service and sanitary sewer service is being provided, or a water or sanitary sewer service area extension has been approved by the county into which the service area is to be expanded, within unincorporated territory located in the county as of May 11, 2012.            Any material departure from the service plan as originally approved or, if the same has been modified, from the service plan as modified, which constitutes a material modification thereof as set forth in subsection (2) of this section, may be enjoined by the court approving the organization of such special district upon its own motion, upon the motion of the board of county commissioners or governing body of a municipality from which a resolution of approval is required by this part 2, or upon the motion of any interested party as defined in section 32-1-204 (1).    No action may be brought to enjoin the construction of any facility, the issuance of bonds or other financial obligations, the levy of taxes, the imposition of rates, fees, tolls and charges, or any other proposed activity of the special district unless such action is commenced within forty-five days after the special district has published notice of its intention to undertake such activity. Such notice shall describe the activity proposed to be undertaken by the special district and provide that any action to enjoin such activity as a material departure from the service plan must be brought within forty-five days from publication of the notice. The notice shall be published one time in a newspaper of general circulation in the district. The district shall also provide notice to the district court. On or before the date of publication of the notice, the district shall also mail notice to the board of county commissioners or governing body of a municipality from which a resolution is required by this part 2.      Any special district created after July 1, 2000, shall file not more than once a year a special district annual report for the preceding calendar year. Unless the requirement is waived or otherwise requested by an earlier date by the board of county commissioners or by the governing body of the municipality in which a special district is wholly or partially located, commencing in 2023 for the 2022 calendar year, the annual report must be provided in accordance with this subsection (3)(c) by October 1 of each year. The annual report must be electronically filed with the governing body that approved the service plan or, if the jurisdiction has changed due to annexation into a municipality, the current governing body with jurisdiction over the special district, the division, and the state auditor, and such report must be electronically filed with the county clerk and recorder for public inspection, and a copy of the report must be made available by the special district on the special district's website pursuant to section 32-1-104.5 (3). (c) (I) Any special district created after July 1, 2000, shall file not more than once a year a special district annual report for the preceding calendar year. Unless the requirement is waived or otherwise requested by an earlier date by the board of county commissioners or by the governing body of the municipality in which a special district is wholly or partially located, commencing in 2023 for the 2022 calendar year, the annual report must be provided in accordance with this subsection (3)(c) by October 1 of each year. The annual report must be electronically filed with the governing body that approved the service plan or, if the jurisdiction has changed due to annexation into a municipality, the current governing body with jurisdiction over the special district, the division, and the state auditor, and such report must be electronically filed with the county clerk and recorder for public inspection, and a copy of the report must be made available by the special district on the special district's website pursuant to section 32-1-104.5 (3).    The report required by this subsection (3)(c) must include, as applicable for the reporting year, but shall not be limited to:   Boundary changes made;    Intergovernmental agreements entered into or terminated with other governmental entities;    Access information to obtain a copy of rules and regulations adopted by the board;    A summary of litigation involving public improvements owned by the special district;    The status of the construction of public improvements by the special district;    A list of facilities or improvements constructed by the special district that were conveyed or dedicated to the county or municipality;    The final assessed valuation of the special district as of December 31 of the reporting year;    A copy of the current year's budget;    A copy of the audited financial statements, if required by the “Colorado Local Government Audit Law”, part 6 of article 1 of title 29, or the application for exemption from audit, as applicable;       Special districts operating under a consolidated service plan or serving the same community may file a consolidated annual report setting forth the information contained in this subsection (3)(c) for each of the special districts. The board of county commissioners or the governing body of the municipality may review the annual reports in a regularly scheduled public meeting, and such review must be included as an agenda item in the public notice for such meeting. A special district is not required to file an annual report for any year in which the special district was in inactive status for the entire year pursuant to section 32-1-104 (3).       The state auditor shall review the annual report and report any apparent decrease in the financial ability of the district to discharge its existing or proposed indebtedness in accordance with the service plan to the division. In such event, the division shall confer with the board of the special district and the board of county commissioners or the governing body of the municipality regarding such condition. The division may establish a standard form for the annual report that the board of a special district may elect to use.       In the case of a health service district, a change in service by the district is not deemed material unless the change affects the license or certificate of compliance issued by the department of public health and environment. A health service district is exempt from subsection (3)(b) and (3)(c) of this section.     (J) Notice of any uncured defaults existing for more than ninety days under any debt instrument of the special district; and   (K) Any inability of the special district to pay its obligations as they come due under any obligation which continues beyond a ninety-day period.   History. Source: L. 81: Entire article R&RE, p. 1551, § 1, effective July 1. L. 85: (3) amended and (4) added, p. 1102, §§ 8, 9, effective May 3. L. 90: (2) amended, p. 1452, § 11, effective July 1. L. 91: (2) and (3)(c) amended and (3)(d) added, p. 784, § 7, effective June 4. L. 94: (4) amended, p. 2803, § 569, effective July 1. L. 96: (4) amended, p. 473, § 11, effective July 1. L. 2003: (2) and (3)(d) amended, p. 1316, § 3, effective August 6. L. 2009: (3)(d) amended,(SB 09-087), ch. 325, p. 1732, § 2, effective September 1. L. 2012: (2) amended,(HB 12-1239), ch. 175, p. 628, § 1, effective May 11. L. 2021: (3)(c), (3)(d), and (4) amended,(SB 21-262), ch. 368, p. 2428, § 4, effective September 7.    Editor's note:   This section is similar to former § 32-1-209 as it existed prior to 1981. For a detailed comparison, see the table located in the back of the index.   ANNOTATION   Statute not applicable to special districts organized under law preceding the 1965 Special District Control Act. Senior Corp. v. Bd. of Assessment Appeals, 702 P.2d 732 (Colo. 1985).   This section contains no procedure for “reorganization”, and in the absence of any legislatively created procedure for such, the court will not superimpose a judicially crafted “reorganization” procedure. Upper Bear Creek v. Bd. of County Comm'rs, 715 P.2d 799 (Colo. 1986).   When determining whether there was a “material modification”, the word “shall” in the service plan is part of the phrase “shall have the power and authority to finance, design, construct, acquire, install, maintain and provide services” and cannot be construed to relate to the infinitive verb forms of finance, design, construct, acquire, install, maintain, and provide. Thus, “shall” does not obligate the special district to acquire or operate the plan, but, instead, grants unconditional authority to the district to do so. Indian Mtn. v. Indian Mtn. Metro., 2016 COA 118 M, 412 P.3d 881.   It is a material modification of a service plan when a special district expands its sanitation service authority to include water service and thus, pursuant to subsection (2), approval by the boards of county commissioners of the counties in which the special district is located is required. Upper Bear Creek v. Bd. of County Comm'rs, 715 P.2d 799 (Colo. 1986).   This section requires ultimate rather than delegated action by the board of county commissioners for a material modification of a service plan. Approval from other county entities, such as the county attorney, the county planning commission, and the county community and economic development director, do not constitute approval from the board of county commissioners. Bill Barrett Corp. v. Lembke, 2018 COA 134 , __ P.3d __, aff'd on other grounds, 2020 CO 73, 474 P.2d 46.   District's geographic shifts, failure to implement services articulated in the service plan, and action to expand the service constituted material modifications to the service plan. Accordingly, the district must give notice to and seek approval for the modifications. Bill Barrett Corp. v. Sand Hills Metro., 2016 COA 144 , 411 P.3d 1086.   The board of county commissioners' approval was needed for material modification related to unincorporated area of a district whose original plan required approval only by the town within which it was contained entirely. Bill Barrett Corp. v. Sand Hills Metro., 2016 COA 144 , 411 P.3d 1086.   A service plan providing that the special district “will” build specified recreation facilities obligates the special district to build those facilities unless the special district can demonstrate that plan compliance is no longer practicable. Plains Metro. Dist. v. Ken-Caryl Ranch, 250 P.3d 697 (Colo. App. 2010).   Special district's violation of its service plan can be remedied under subsection (3)(a). Although the claims alleging that the special district did not comply with its duty did not specifically allege a statutory cause of action or cite provisions governing “compliance” with and judicial “enforcement” of service plans, the substance of the requested relief was clear and consistent with the statute. Plains Metro. Dist. v. Ken-Caryl Ranch, 250 P.3d 697 (Colo. App. 2010).