June 16, 2019

Colorado Court of Appeals: Town of Erie, Colorado v. Town of Frederick, Colorado

on June 10, 2010.

Annexation—Proper Notice of Hearings.

The Court of Appeals affirmed the trial court’s approval of annexations by defendant. The Court remanded for calculations of attorney fees and costs.

In January 2007, the mayor of the Town of Frederick (Frederick), Eric Doering, executed four petitions to annex land known as the Yardley Wetlands, which are located in the southwest portion of Frederick’s planning area and are bisected by State Highway 52. Frederick’s Town Board approved the petitions and adopted resolutions in March. In April, the Town of Erie (Erie) submitted four motions for reconsideration regarding the annexations, which the town board denied the next week. However, Frederick repealed the annexations because it had failed to publish proper notice.

In May, after providing notice, Frederick again adopted resolutions adopting the Yardley Wetlands. Erie submitted another set of motions for reconsideration, which again were denied. On May 25, 2007, a group of landowners known as SMT sued Frederick over the annexations. Erie also sued, and the cases were consolidated. SMT was dismissed for lack of subject matter jurisdiction, a trial was held, and judgment was entered in favor of Frederick in April 2009. Erie appealed.

Notice to abutting landowners of an annexation hearing under the Municipal Annexation Act (Act) must be given ninety days before the hearing. An inadvertent failure to comply with this notice provision may be excused. Erie argued the trial court erred in finding that Frederick’s short notice to landowners was inadvertent. The Court disagreed.

One provision of the Act requires that a hearing be held thirty to sixty days after the effective date of a resolution setting an annexation hearing, and that notice be published at least thirty days prior to the hearing. Another provision requires annexations using a public road to achieve contiguity (as was the case here) to provide ninety days’ written notice to abutting landowners. The section also provides: “Inadvertent failure to provide such notice shall neither create a cause of action in favor of any landowner nor invalidate any annexation proceedings.” Only the ninety-day notice was at issue on appeal.

The Court concluded, in affirming the trial court, that the evidence in the record supported the trial court’s finding that the failure to give ninety days notice was inadvertent. The Court also affirmed the trial court’s legal conclusions: (1) that Erie did not have standing to raise issues on behalf of third parties; (2) that contiguity for an annexation is not affected by the existence of a public right-of-way and that consent is not required from the owners of such a public right-of-way; (3) that Frederick’s comprehensive plan, updated annually, satisfied the Act’s requirement for a plan of development even though it was not titled “Three-Mile Plan”; that Frederick’s petitions substantially complied with the Act even though they had minor deficiencies (not having four copies of the annexation maps, not having an address for Frederick’s mayor or a date accompanying his signature). Finally, the Court agreed with Frederick that it was entitled to its reasonable appellate attorney fees and costs.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on June 10, 2010, can be found here.

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