Board of County Commissioners v. City & County of Denver

565 P.2d 212, 193 Colo. 211, 1977 Colo. LEXIS 787
CourtSupreme Court of Colorado
DecidedMay 16, 1977
Docket27219
StatusPublished
Cited by11 cases

This text of 565 P.2d 212 (Board of County Commissioners v. City & County of Denver) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Board of County Commissioners v. City & County of Denver, 565 P.2d 212, 193 Colo. 211, 1977 Colo. LEXIS 787 (Colo. 1977).

Opinions

MR. JUSTICE CARRIGAN

delivered the opinion of the Court.

This case involves annexation of unincorporated Jefferson County land to the City and County of Denver. Jefferson County filed a district court action seeking a declaratory judgment and review, under Rule 106, of the annexation’s validity. The court, finding several deficiencies in the procedure followed, voided the annexation. We reverse.

On August 13, 1973, by city ordinance, Denver annexed 441 acres of the 2,429 acre “Grant Farm.” This was the first stage in a planned two-step annexation which eventually was to annex the entire farm to Denver. Nearly two months prior to enactment of the annexation ordinance, the Denver Board of Education, by resolution, had approved the annexation of the entire 2,429 acre farm.

The annexation petition was signed by William Grant and included an allegation that he was the sole owner of the affected land. Neither a hearing nor an annexation election was held prior to approval of the annexation ordinance.

I. SCHOOL BOARD APPROVAL

The trial court ruled that the Denver School Board, by approving addition of the entire 2,429 acre “Grant Farm” to its school district, did not effectively approve annexation of the 441 acre first stage. Denver claims this ruling constituted error. We agree.

In 1967 the Municipal Annexation Act of 19651 was amended to prohibit annexation petitions and elections which would result in detaching territory from one school district and attaching it to another school district “unless accompanied by a resolution of the board of directors of the school district to which such territory will be attached, approving such annex[214]*214ation.” 1967 Perm. Supp., C.R.S. 1963, 139-21-4(5).2 It seems obvious that in enacting this addition, the General Assembly intended to empower school boards to protect themselves against having involuntarily to undertake responsibility for providing educational services in newly annexed areas. Here the school board’s consent to the 2,429 acre annexation includes a consent to the 441 acre annexation. In substance the school board consented to the first stage of the annexation by having consented to the entire two-stage transaction.3

II. ALLEGED PETITION DEFICIENCIES

Jefferson County contends that the annexation is invalid because of a series of alleged defects in the procedures followed. We hold that, while the procedures followed are not to be recommended, none of the procedural errors is fatal to the annexation.

First, Jefferson County claims that no “landowner” signed the annexation petition. The statute provides that if the “owners of one hundred per cent of the property proposed to be annexed, exclusive of streets and alleys . . .” sign the annexation petition, the land may be annexed by ordinance without the notice, hearing or election otherwise required. 1965 Perm. Supp., C.R.S. 1963, 139-21-6(l)(h). William Grant, who signed the petition, was the sole surviving executor of the estate of Gertrude H. Grant. Her estate included all of the 441 acres to be annexed. Jefferson County argues that William Grant was not the “landowner” because title to the land was not in him but in the devisees of Gertrude H. Grant’s will, and the devisees did not sign the petition. We hold that the trial court properly concluded that William Grant was the “landowner” for purposes of this statute.

It is true that upon the death of the owner, the title to real estate descends to his devisees and not to his personal representatives. Fastenau v. Engel, 129 Colo. 440, 270 P.2d 1019 (1954). It is also true that the Municipal Annexation Act of 1965 speaks of landowners as owners in fee. 1965 Perm. Supp., C.R.S. 1963, 139-21-21(8).4 At the time of this annexation, however, no devisees could have been identified, for the will empowered the surviving executor to distribute all the property to any of three trusts and no such distribution had yet been made.

Gertrude H. Grant’s will, however, gave the executors or the surviving executor the full power to manage and sell estate property as well as authority to do any act and carry out any agreement respecting the property, as if the executor were the individual owners. This grant of power evinces the testatrix’s intention that the surviving executor be authorized [215]*215to deal with estate assets as, in his opinion, was in the best interest of the estate. This power included the power to petition for annexation to Denver. See Aspen v. Howell, 170 Colo. 82, 459 P.2d 764 (1969) (Municipal Annexation Act of 1965 should be liberally construed); Hinson v. Smyer, 246 Ala. 644, 21 So.2d 825 (1945) (executor given power to convey is the repository of legal title). Were we to hold otherwise, land held in decedents’ estates under the circumstances here presented could not participate in annexations.

Second, Jefferson County asserts that this annexation is defective because no notice was given, no hearing or election was held, and no court approval was obtained. Because we have determined that the petition was signed by the landowner of one hundred percent of the territory annexed, no notice, hearing, or election is required. 1965 Perm. Supp., C.R.S. 1963, 139-21-6(1 )(h).5 Nor is court approval necessary. 1965 Perm. Supp., C.R.S. 1963, 139-21-19(1).6

Third, we reject the contention that Denver imposed additional terms and conditions upon the area annexed which would require that an election be held pursuant to 1965 Perm. Supp., C.R.S. 1963, 139-21-ll(l)(c).7 The landowner agreed to donate a parcel of land with certain improvements to the school district. This was not, however, an “additional term or condition” imposed “upon the area”; it was a personal obligation undertaken by the landowner in favor of the school district.8 This relatively standard practice under which a landowner donates land to a school district does not trigger the requirement of an election. In the plain words of the statute, no term or condition is thereby imposed upon the area to be annexed.

Further, no terms, conditions or limitations were placed on the annexation by the ordinance. It unconditionally approved the annexation. Denver Ordinance No. 518, Series 1973. See Board of County Comm’rs v. City and County of Denver, 38 Colo. App. 171, 556 P.2d 486 (1976). No election was required by 1965 Perm. Supp., C.R.S. 1963, 139-21-11 (l)(c).

Fourth, Jefferson County asserts that no evidence affirmatively shows that a map of the 441 acre parcel to be annexed was in existence when the annexation ordinance was passed. The statute requires that the petition be accompanied by four copies of an annexation map. 1965 Perm. Supp., C.R.S. 1963, 139-21-6(1 )(e)(i).9 The county apparently concedes, however, that if such a map had been available to the City Council, this would have constituted substantial compliance with the statute. The map [216]*216of the 441 acres, part of the record in this case, is not marked with a date showing when it was filed with the City Council.

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No.
Colorado Attorney General Reports, 1979
Board of County Commissioners v. City & County of Denver
565 P.2d 212 (Supreme Court of Colorado, 1977)

Cite This Page — Counsel Stack

Bluebook (online)
565 P.2d 212, 193 Colo. 211, 1977 Colo. LEXIS 787, Counsel Stack Legal Research, https://law.counselstack.com/opinion/board-of-county-commissioners-v-city-county-of-denver-colo-1977.