§ 37-45-136 — Inclusion of lands

Colorado § 37-45-136

• Jurisdiction: Colorado
• Title 37: Water and
• Art.: Water Conservancy Districts

Text

(1) The boundaries of any district organized
under the provisions of this article may be changed in the manner prescribed in this
article, but the change of boundaries of the district shall not impair or affect its
organization or its rights in or to property or any of its rights or privileges
whatsoever, nor shall it affect or impair or discharge any contract, obligation, lien,
or charge for or upon which it might be liable or chargeable had such change of
boundaries not been made.

(2) The owners of lands may file a petition with the board, in writing, praying
that such lands be included in the district. The petition shall describe the tracts or
body of land owned by the petitioners, and such petition shall be deemed to give
the assent of the petitioners to the inclusion in said district of the lands described in
the petition, and such petition must be acknowledged in the same manner that
conveyances of land are required to be acknowledged. The secretary of the board
shall cause notice of filing of such petition to be given and published in the county
in which the lands are situated, which notice shall state the filing of such petition,
names of petitioners, descriptions of lands mentioned, and the prayer of said
petitioners, giving notice to all persons interested to appear at the office of the
board at any time named in said notice and show cause in writing why the petition
should not be granted. At the time and place mentioned or at such time to which the
hearing may be adjourned, the board shall proceed to hear the petition and all
objections thereto, presented in writing by any person showing cause why said
petition should not be granted. The failure of any person interested to show cause
shall be deemed an assent on his part to the inclusion of such lands in the district
as prayed for in the petition. If the petition is granted, the board shall make an order
to that effect and file the same with the clerk of the court, and, upon order of the
court, said lands shall be included in the district.

(3) (a) In addition to the method provided in subsections (1) and (2) of this
section, additional areas, either contiguous or noncontiguous to the district, and
including irrigated lands, nonirrigated lands, towns and cities, and other lands and
any one or more of the same, may be included in the district by petition, which
petition shall be filed in the district court of the county in which the petition for
organization of the original district was filed, signed by not fewer than twenty-five
percent of the owners of irrigated lands in said area but not embraced within the
corporate limits of a city or town; and each tract of land shall be listed opposite the
name of the signer. Each such tract together with the improvements thereon shall
have a valuation for assessment of not less than one thousand dollars. The petition
shall also be signed by not fewer than five percent of the owners of nonirrigated
lands or lands embraced within the incorporated limits of a city or town, all situated
in the area embraced in said petition; and each tract of land shall be listed opposite
the name of the signer. Each such tract together with improvements thereon shall
have a valuation for assessment of not less than one thousand dollars. Said petition
shall set forth a general description of the territory in the area sought to be
included in the district, the name of the district in which it is sought to be included,
and a statement that the property sought to be included will be benefited by the
accomplishment of the purposes for which the original district was formed and
shall pray for the inclusion of the area in the district.

(b) No petition with the requisite signatures shall be declared null and void
on account of alleged defects, but the court may permit the petition to be amended
at any time to conform to the facts by correcting any errors in the description of the
territory or in any other particular. However, similar petitions or duplicate copies of
the same petition for the inclusion of the same area may be filed and shall together
be regarded as one petition. All such petitions filed prior to the hearing on the first
petition filed shall be considered by the court the same as though filed with the
first petition placed on file.

(c) In determining whether the requisite number of landowners has signed
the petition, the names as they appear upon the tax roll shall be prima facie
evidence of such ownership.

(d) At the time of filing the petition or at any time subsequent thereto, and
prior to the time of hearing on said petition, a bond shall be filed, with security
approved by the court, sufficient to pay all expenses connected with the
proceedings in case the inclusion of the area is not effected. If at any time during
the proceeding the court is satisfied that the bond first executed is insufficient in
amount, it may require the execution of an additional bond within a time to be fixed
to be not less than ten days distant, and, upon failure of the petitioner to execute
the same, the petition shall be dismissed.

(e) Immediately after the filing of such petition, the court wherein such
petition is filed, by order, shall fix a place and time, not less than sixty days nor
more than ninety days after the petition is filed, for hearing thereon, and thereupon
the clerk of said court shall cause notice by publication to be made of the pendency
of the petition and of the time and place of hearing thereon. The clerk of said court
shall also forthwith cause a copy of said notice to be mailed by registered mail to
the board of county commissioners of each of the several counties having territory
within the area proposed to be included within the district.

(f) No city, or city and county, having a population of more than twenty-five
thousand as determined by the last United States census shall be included within
such area proposed to be included within the district unless by and with the written
consent of the chief executive officer of such city, or city and county, with the
approval of the legislative body of such municipality, and such consent may specify
that the rate of taxation on the valuation for assessment of property within said
city, or city and county, under section 37-45-122, shall not exceed a maximum rate
which may be less than the rates set out in said section 37-45-122, and in such case
the district shall not have power to levy an assessment on the property in said city,
or city and county, at a greater rate than that specified in said consent.

(g) Not less than thirty days prior to the time fixed by order of court for the
hearing on said petition, and not thereafter, a petition may be filed in the office of
the clerk of the court wherein the proceeding for inclusion is pending, signed by not
fewer than twenty percent of the owners of irrigated lands in said area but not
embraced within the incorporated limits of a city or town, who have not signed the
petition for inclusion, and also signed by not fewer than five percent of the owners
of nonirrigated lands or lands embraced in the incorporated limits of a city or town,
all situated in said area proposed to be included within the district, who have not
signed the petition for inclusion, protesting the inclusion of said area. The signers of
said protesting petition shall state therein the land owned by each and also shall
state the value thereof as shown by the last preceding assessment.

(h) In the event a petitioner signs such petition both as owner of irrigated and
nonirrigated land situated within a municipality, his name shall be counted only as
an owner of irrigated lands.

(i) Upon the day set for the hearing upon the original petition, if it appears to
the court that said protesting petition is not signed by the requisite number of
owners of lands and of the requisite value, the court shall thereupon dismiss said
protesting petition and shall proceed with the original hearing as provided in this
section.

(j) If the court finds from the evidence that said protesting petition is signed
by the requisite number of owners of lands, and of the requisite values, the court
shall forthwith dismiss the original petition for inclusion. The finding of the court
upon the question of such valuation, the genuineness of the signatures, and all
matters of law and fact incident to such determination shall be final and conclusive
on all parties in interest whether appearing or not.

(k) Any owner of real property in said proposed area not having individually
signed a petition for the inclusion, and desiring to object to the inclusion, on or
before ten days prior to the date set for the cause to be heard, may file objection to
the inclusion.

(l) Such objection shall be limited to a denial of the statements in the petition
and shall be heard by the court as an advanced case without unnecessary delay.

(m) Any owner of irrigated land in said proposed area who has not
individually signed a petition for the inclusion of the area within the district and who
desires to have his irrigated lands excluded from said district, on or before ten days
prior to the date set for the cause to be heard, may file a petition in said district
court asking to have his irrigated lands excluded therefrom. Any petition so filed
shall be heard by the district court on the date set for the hearing of the petition for
inclusion of the area, and the district court shall exclude such irrigated lands from
the area proposed for inclusion within the district.

(n) Upon said hearing, if it appears that a petition for the inclusion has been
signed and presented, as provided in this subsection (3), in conformity with this
article, and that the allegations of the petition are true, and that no protesting
petition has been filed, or if filed has been dismissed by order duly entered of
record, the court shall adjudicate all questions of jurisdiction and declare the area
included in the district to the same extent and as fully as if said area had been
included in the original petition for the organization of the district; except that, prior
to the entry of its decree including such area within the district, the court shall
obtain the verified consent of the board of directors of the district to the inclusion
of such area, which consent shall set forth the terms and conditions upon which
said area shall be included, which terms may include the price and value per acre-foot of water to be allotted and contracted for use within said included area and
which said terms and conditions shall be embodied in the decree of said court.

(o) If the court finds that no petition has been signed and presented in
conformity with this section, or that the material facts are not as set forth in the
petition filed, it shall dismiss said proceedings and adjudge the costs against the
signers of the petition in such proportion as it deems just and equitable. No appeal
or other remedy lies from an order dismissing said proceeding; but nothing in this
article shall be construed to prevent the filing of a subsequent petition for similar
purposes, and the right so to renew such proceeding is expressly granted and
authorized.

(3.5) (a) As an alternative to the procedures set forth in subsections (2) and
(3) of this section, a petition for inclusion and for an election on inclusion of lands
within a water conservancy district may be filed in the district court of the county in
which the petition for organization of the original district was filed. The petition
shall be signed by not less than twenty-five percent of the owners of agricultural
lands of the area embraced by the proposed lands to be included and by not less
than ten percent of the electors of said area embraced by the proposed lands to be
included. The petition shall show that the board of directors of the district has given
its verified approval to the inclusion of such area in the district and shall recite the
terms and conditions upon which said area shall be included, if any, which the board
of directors of the district may have required, in its discretion, as a prerequisite to
the inclusion. The board of directors of the district may require, as one of the
conditions of its approval of the proposed inclusion, that the petitioners post a
sufficient bond to cover the costs of the election. If no bond is so required, the
district shall be deemed to have agreed to pay the costs of the election. The
proposed boundary of the lands to be included within the district may include any
part or all of any county, city, or city and county of any size. Such petition and the
hearing thereon shall otherwise comply with the provisions of this section which are
not inconsistent with the provisions of this subsection (3.5).

(b) On the day fixed for hearing, or at a continuance thereof, the court shall
first ascertain, from such evidence which may be adduced, that the required
number of electors of the area to be included in the district have signed the petition
and that the board of directors has approved the inclusion of lands in the district.
Upon said hearing, if it appears that the petition for inclusion has been signed and
presented in conformity with this subsection (3.5) and that the allegations of the
petition are true, the court, by order duly entered of record, shall direct that the
question of the inclusion of lands in the water conservancy district be submitted at
an election, to be held for that purpose, of electors of the area embraced within the
inclusion petition. Such election shall be conducted by the board of directors of the
district in the same manner set forth in sections 37-45-139 to 37-45-141.

(c) At such election the voter shall vote for or against the inclusion of lands
in the water conservancy district. If the terms and conditions on inclusion have been
set by the board of directors of the district, said terms and conditions shall be
identified to the electors. If a majority of votes cast at said election are in favor of
inclusion, the court, on the motion of the board of directors of the district, shall
declare the area included in the district to the same extent and as fully as if said
area had been included in the original petition for the organization of the district;
except that, if the proposed inclusion in a district includes any territory within a
municipality and a majority of the votes cast by the voters residing within that
incorporated area are against inclusion in the district, the governing body of said
municipality may, within thirty days after certification of the election results,
petition the court for exclusion from the district of such incorporated area, and the
court shall exclude such territory from the district. Any order of the court so
including lands in a district shall incorporate the terms and conditions, if any, for
inclusion which the board of directors of the district has required as a prerequisite
to inclusion.

(3.6) Whenever a municipality has annexed land into its boundaries and that
municipality at the time of annexation previously had lands within its boundaries
included within the district, upon consent of the governing body of the municipality,
and upon consent by the board of directors of the district, the annexed lands shall
be deemed to have been included within the district, subject to terms and
conditions as determined by the board of directors of the district that shall not be
inconsistent with the terms and conditions of previous applicable inclusion orders
relating to that municipality. The municipality shall promptly transmit to the district
a certified copy of the municipality's annexation ordinance. Upon receipt of the
municipality's annexation ordinance, the board of directors of the district shall
promptly act to grant or deny consent to the inclusion of the newly annexed lands
into the district. If the board of directors of the district consents to such inclusion,
and the municipality agrees to any terms and conditions to the inclusion adopted by
the board of directors of the district, the district shall file with the court a certified
copy of the municipality's annexation ordinance and a petition of the district for
inclusion of the annexed lands that states the terms and conditions of inclusion as
determined by the board of directors of the district. Upon the district's filing of a
certified copy of the municipality's annexation ordinance and a petition of the
district for inclusion of the annexed lands, the court shall enter an order including
such lands within the boundaries of the district, upon the terms and conditions set
forth in the petition.

(4) As a part of any order entered establishing the inclusion of lands or areas
into the district, the court shall designate the division of the district to which such
included lands or areas shall be attached or shall, in combination with or in lieu of
the foregoing, create a new division from such included lands or areas and appoint
the directors therefor; but the total number of directors of the district shall not
exceed fifteen.

(5) (a) If an order is entered establishing the inclusion of lands or areas into
the district, such order shall be deemed final and no appeal or other remedy lies
therefrom, and the entry of such order shall finally and conclusively establish the
inclusion of the lands or areas against all persons except the state of Colorado, in
an action in the nature of quo warranto commenced by the attorney general within
three months after said decree declaring such lands or areas included as provided,
and not otherwise. The inclusion of said lands or areas shall not be directly or
collaterally questioned in any suit, action, or proceeding except as expressly
authorized in this section.

(b) Upon the entry of such decree, the clerk of the court shall transmit, to the
division of local government in the department of local affairs and to the county
clerk and recorder in each of the counties in which said lands or areas are located,
copies of the findings and decree of the court including such lands or areas in the
district. The same shall be recorded with said division, and copies shall also be filed
in the office of the county clerk and recorder in each county in which a part of the
district may be, where they shall become permanent records.

Legislative History

Source: L. 37: p. 1348, � 29. CSA: C. 173B, � 43. L. 51: p. 827, � 1. CRS 53: � 149-6-31. L. 61: p. 846, � 3. C.R.S. 1963: � 150-5-31. L. 76: (5)(b) amended, p. 606, � 31, effective July 1. L. 83: (3.5) and (3.6) added, p. 1390, � 1, effective May 16; (5)(b) amended, p. 1228, � 13, effective July 1. L. 99: (3.6) amended, p. 50, � 1, effective August 4.