HomeMy WebLinkAbout960432.tiff ��. tyr;y7C.h C
V'-'ELD COIF iTY
7050 Loma Linda Ct. r
Longmont CO 80504j
March 5. 1996 !","U ri I I .`'U 9: 34
Board of Weld County Commissioners CLERK
P.O.Box 758 TO THE PH. r .
Greeley CO 80632
Subject:Flag-pole annexations by municipalities
Ladies and gentlemen:
I would appreciate your consideration of additional support to the contention of my letter of February 1,
1996 that the practice of flag-poling is contrary to the Colorado Revised Statutes by presenting a pertinent
precedent from case law.
I refer you to 543 P2d 521 in which the appelate decision the Colorado Supreme Court(Day)ruled, in
part:
"Moreover, it is apparent that the part of the street(pole)which is contiguous to Denver does not lie
`between the annexing municipality and the land to be annexed' (139-21-3(2). Instead it extends at a
perpendicular angle to the 'flag' that is being annexed. The `flag' is wholly in Jefferson County and not
contiguous to Denver. The entire second sentence of this subsection relating to the status of a street
between the municipality and the territory to be annexed has no application to this case."The second
sentence of this subsection referred to in 139-21-3(2),I believe is now 3112-104(1)(a)which states:
"Contiguity shall not be affected by the existence of a platted street or alley, a public or private right-of-
way, between the annexing municpality and the land proposed to be annexed."
This supports the contention of my letter of February 1, 1996,that a ROW between a municipality and the
area to be annexed is exactly that and cannot be interpreted as a pole reaching out perpendicularly from
the flag to the municpality to establish continuity.
The other contention of the City&County of Denver in this suit:that it was sole owner of the area to be
annexed,although part of it(the pole)was in Jefferson County, was fallacious on the face of it. Therefore,
the ruling,above, denying annexation must be based on the illegality of the flag-poling to establish
contiguity to comply with the Statute. (See map attached)Please have the County attorney's office
consider the merits and appropriateness of this decision as a pecedent bearing on the practice of flagpoling
in general.
Enclosed is a copy of my letter of February 1, 1996, so that the Statutory bases for considering flag-poling
as being contrary to the intent,wording and meaning of the Statutes are convenient for reference.
At this point, leaving out the responsibilities of the County and its Commissioners in stopping practices
which I assert are not conforming to the Statutes and which are detrimental to the County and its citizens,
I will rely on the Commissioners and the County attorney's office to pursue by appropriate action a means
to halt this practice of flag-poling. If the course of action required was to file suit, I would consider
contributing$1000.00 to defray some of the County's costs on filing same,no matter what specific flag-
poled annexation was contested. I realize the opposition such a case would provoke from municipalities
and developers and resulting political consequences,but there are principles involved that should be
addressed.
I am aware of the State's and Commisioner's efforts through the I25 Group to bring some control to the
chaotic conflicting annexations of the local municpalities,but must question the sincerity of some of the
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municipalities in achieving this goal. I feel that the elimination of flag-poling would deprive the
municipalities of their strongest weapon in creating this chaos of competitive expansion and would be
instrumental in bringing agreement for growth that would truly be"Smart Growth".
Very truly yours,
John S.Folsom
Enclosures
PC Weld County Attorney
7050 Loma Linda Ct.
Longmont CO 80504
303 833 2992
February 1, 1996
Board of County Commissioners
915 10th Street
Greeley CO 80632
Subject: Request for the Board of County Commissioners intervention to stop
the use of flagpoling and poling by municipalities, in contravention to the
Colorado Revised Statutes.to annex areas remote from the municipality. Request
to the Board County Commissioners to file a "Motion For Reconsideration"to the
Town of Firestone to forestall this type of annexation, specifically,the
Dollaghan annexation.
Dear Ladies and Gentlemen Commissioners:
Simply put, I request that Weld County,of which I am a resident and property
owner, take action to stop the unilateral taking of County property, namely
County roads,by the method of annexation of them to municipalities(flagpoling
and poling)in conjunction with annexations of private lands not contiguous
with those municipalities,which contiguity is required by the Colorado Revised
Statutes. I am supported in this concern by approximately 100 organizing
residents of the County in an area of the county in which this type of
annexation is taking place.
I will support this request on three bases as follows:
SECTION I. Give my lay interpretation of how pertinent Statutes from the
Municipal Annexation Act of 1965 (Act)as amended, that bear on this situation,
conflict with the manner in which municipalities are annexing non-contiguous
land.
SECTION II. The importance and necessity of halting this practice because
of the negative repurcussions it produces.
SECTION III. Address a specific case of this process now unfolding,which I
exhort the County to proceed against in a timely manner by filing a"Motion of
Reconsideration".
SECTION I Comments on the Municipal Annexation Act of 1965 as Amended
1. 31-12-104 Eligibility for Annexation: states that contiguity is not affected
by the existence of a public right of way(ROW)between the annexing
municipality and the area to be annexed. However, the statute does not imply
that a public ROW can be used to establish the 1/6 contiguity requirements of
CRS 31-12-104(1)(a)by the method of flagpoling or poling. It refers to a
public ROW that extents laterally between the annexing municipality and the
land to be annexed. This section of the Statute does not mean that a public ROW
may be used merely as a device to connect a municipality with a non-contiguous
area to be annexed where there are stretches of land on either side of the ROW
that are neither part of the municipality or the area to be annexed(flagpoling
and poling)(see sketch attached).The Statute explicitly seeks to prohibit this
situation(31-12-104(2)(c).
2. 31-12-104(2)(b)states that disconnected municipal satellites are sought to
be prohibited. In effect the use of flagpoling creates a satellite, as the
annexed land is not contiguous to the municpality except by using the devious
device of a ROW pole,thus attempting to defeat the explicit intent of the
Statute as stated in this section.
3. 31-12-102(1)(a)The legislative declaration states that the purpose of the
Act is"to encourage natural and well-ordered growth development of
municipalities". It would not seem that an area annexed miles from the annexing
municipality connected only by the thread of a public ROW leapfrogging past
undeveloped areas which have no connection to the municipality can be
interpreted as conforming to the purposes of 31-12-102(c)(d)(e)(f)(g)or can be
considered"necessary and desirable for the orderly growth of urban communities
in the State of Colorado,...".
4. 31-12-104(1)(b)states that an area is eligible for annexation if the
governing body determines that there is a community of interest and is capable
of being integrated with the annexing municipality,all contingent on the
requirements of 31-12-104(1)(a)being satisfied. As argued above,the
contiguity requirements of 31-12-I04(1)(a)have not been satisfied.Therefor,
based only on community of interest and integration alone, eligibility is not
achieved.
5. This paragraph will address specifically the Dollaghan annexation petition
as it is affected by the Act.
31-12-104(1)(a) makes reference to establishing contiguity by simultaneous
annexation of more than one parcel in a series.which is the case with respect
to the Dollaghan annexation,however:
a. Since ROW poling is involved,the petitioners. in effect,are petitioning
annexation of land they do not own,a county ROW. Section 31-12-107(1)(a)
requires that there is an ownship requirement to qualify a petitioner to
petition for annexation. The County and all its residents own the public ROW
and they are not petitioners in this matter.
b. In this CRS section the use of the word"parcel" means an area of privately
owned land, not a public ROW.
c. The Act and Article II of the Colorado Constitution require that an annexing
municipality receive a petition from the owners of the land to be annexed. I
have no knowledge of the owner of the two WCR 15 flags, which is Weld County,
petitioning The Town for their annexation. This taking by the Town is without
due process and is an improper application of eminent domain. Since the ROW
annexation has not been properly petitioned any ordinance annexing it would be
invalid and consequently the non-contiguous land owned by the petitioners could
not be validly annexed. (also see Board of County Commissioners vs City&
County of Denver, 190 Colo. 8, 543P.2D 521 [1975])
In my limited knowledge, I am not aware of any case law precedents that would
defeat these interpretations.
SECTION II Negative Consequences of Flagpoling and Poling
It is difficult to implement a comprehensive plan for municipal growth when
that growth involves unconnected,distant areas of land.
a. It causes strains, inefficiencies and economic burdens on services,either
provided directly by the municipality,by special districts or private
entities. As one out of many possible examples,the sizing water and sewer
mains,gas and power lines is wasteful as follows: If the intervening land
between the annexed flagpole and the municipality is not developed,the service
lines would have been oversized in anticipation of developement of the land. Or
worse,as services must be in place before developement,the flagpole area may
not be developed because of, say, an economic downturn, and these services may
not be used at all. On the other hand,if services are provided only for the
requirements of the flagpoled area they may have to be enlarged at unnecessary
expense to supply the intervening land as it is developed.
b.Zoning problems arise,in that remote areas may have a preponderence of one
zoning in the comprehensive plan which makes sense if the area of all the other
zonings near it are developed concurrently. However,to meet the needs of
isolated annexed areas,zoning changes may have to be made to accommmodate
other uses which compromise the meaningfulness of the original plan when the
intervening land is developed.
c. School district service dislocations and their economic consequences arise.
For instance,a remote annexed area might not be large enough to require a
school. This results in increased busing expenses that would not be required to
serve a truly contiguous area.
d. The municipality incurs greater road construction and maintenance expense
when annexed areas are remote and poled roads are the responsibility of the
municipality as there is no tax input to the municipality from the unannexed
areas along the poles. Such things as speed limits, road surface condition,
governing ordinances,traffic controls, signs and enforcement,etc.become a
hodgepodge.
SECTION III A specific Example of Flagpoling And Poling Now Occurring
Approximately 500 acres of agricultural land in the County(Dollaghan
annexation)has been petitioned by its owners to be annexed to the Town of
Firestone. The area to be annexed is approximately one and three quarter miles
from the nearest point in the Town of Firestone. The petition requests
simultaneous annexations in three steps as follows:
1. The annexation of a pole consisting of the west 30 feet of WCR 15 (in part
contiguous to land in the Town of Firestone)of such length as to comply with
the statutory 6 times contiguity requirement(31-12-104(1)(a). This pole does
not reach the land to be annexed.
2. The annexation of a second pole, starting 30 feet wide,extending along the
east side of WCR15 for a distance so that the circumference of the pole
complies with the six times requirement of the Statute and at the same time its
contiguity is one sixth of the circumference of the area of land to be annexed
as required by Statute.
3. The(previously non-contiguous)private land(flag)to be annexed is then
annexed to this second pole. (see map enclosed)
4. See SECTION I(5)above for Statutory objections to this specific
annexation. (there are others,primarily with inadequacies in conforming to the
requirements of the Annexation Impact Report,that do not involve flagpoling
and poling which I will provide to the Board on request as they further support
the need for a"Motion For Reconsideration" and not included here for the sake
of brevity!)
From the above arguments I hope the Board would find,after conferring with the
Weld County Attorney,that the use of flagpoles and poles to implement
annexations is contrary to the explicit intent, any defensible interpretation
and the spirit of the Statutes as argued in SECTION I of this letter. This,
together with the arguments in SECTION II of this letter,detailing negative
outcomes of the use of flagpoling and poling to annex land, I would further
hope,would convince the Board to take the actions necessary to defeat this
practice even to the extent of filing an action in court and pursuing appeals
to the extent necessary to end this abuse of the Statutes.
Specifically, in the case of the Dollaghan Annexation, I further respectfully
request that the Board file with the Town of Firestone within tens days of
annexation(in all probability 2/8/96)a"Motion For Reconsideration"to
forestall, if possible,this annexation on the merits of the arguments given
above.
I have no knowledge of precedent from case law that supports or defeats my
contentions,but will investigate this to the best of my ability if you so
desire. I apologize for the length of this presentation but feel that all the
arguments against and the negative consequences of flagpoling and poling,that
I am aware of, are so important that they they have to be stated.
Very truly yours.
John S. Folsom
PC: Lee Morrison.Esq., Weld County Attorney
Chris Gorenson,Weld County Dept. of Plannings Services
Attachments
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