HomeMy WebLinkAbout960684.tiff D COL?!TI
7050 Loma Linda Ct. 1��,� ti^ry _ paw t,Qf2
Longmont CO 80504 '
March 25, 1996
Board of Weld County Commissioners CLEF.;;
P.O.Box 756 TO T I i:_ E''' -
Greeley CO 80632
Subject: Annexations by municipalities by the device of poling and flagging
Refutation of statutory defenses erroneously used to justify this procedure
Ladies and Gentlemen:
In my letters of February 1, March 5 and March 12, 1996 I presented arguments that would support the
contention that the use of poling and flagging to establish contiguity between the annexing municipality
and the area petitioned to be annexed to comply with the requirements of C.R.Statutes was invalid. I
would now like to present arguments that those parts of C.R.Statutes that might be construed to support
the contention that poling and flagging are valid in establishing contiguity, in fact,do not. To do so is
erroneous and without foundation,misinterpreting the expressed intent and meaning of the statutes.
The Municipal Annexation Act-of 1965 (Act)repeatedly emphasizes as its intent to support orderly
growth of municpalities and prohibit extending municipal borders in a chaotic fashion not in harmony
with the welfare, economically or socially, of the general area.,for example:
31-12-102(1)"The general assembly hereby declares that the policies and prnrednres in this part 1 are
necessary and desirable for the orderly growth of urban communities in the State of Colorado and to these
ends this part I shall be liberally construed. The general assembly further declares that it is the pupose of
this part 1: (a) To encourage natural and well ordered development of municipalities of the state "
It says the Act shall be liberally construed to seek orderly growth, not disorderly growth which is the
result of annexing by poling.
31-12-104(2)(a)(in part) Because the creation or expansion of disconnected municipal satellites,which
arc sought to be prohibited by this Subsection(2).violates both the purposes of this article as expressed in
section 31-12-102 and the limitations of this article, any boundary in violation of this subsection(2)may
be declared....void (as we know a poled flag is a satellite with the excuse that a 60 foot wide illegally
non-owner petitioned county right of way up to three miles long makes it contiguous to the annexing
municpality.)
31-12-104(c)"Contiguity is hereby declared to be a fundamental element in any annexation,"(in general)
"and this subsection(2)shall not in any way be construed as having the effect of legitimizing in any way
any non contiguous annexation."(in particular)
* * * * * * * * * * * * *
In interpreting the meaning of those parts of the statutes that might, erroneously,be interpreted as
supporting the poling and flagging procedure,the emphasis of the intent of the Article as being orderly
growth must be kept in mind and be the basis for the interpretation of the wording of the Article.
To correctly interpret the mcaningof the Act, its sections must be analyzed firstly,from the Act's explicit
intent as described above and secondly,by breaking certain parts of sections into their elements so they
may be interpreted correctly in the light of that intent, specifically:
1. 31-12-104(1)(a)"Contiguity may be established by the annexation of one or more parcels in a series
(see Statement 1 below),which annexations may be completed simultaneously(see Statement 2 below)and
considered together for the purposes of the public hearing." (see Statement 3 below)
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Cty Commissioners 3/25/96 page 2 of 3
Statement 1. "Contiguity may be established by the annexation of one or more parcels in a series,...". The
word"series"by definition means,things of a kind occurring in a row,following one after another, in
succession.NOT all at once.Therefore, in multiple annexations each part of the series must be considered,
individually, each as one of a series, and each must qualify for annexation on its own merits and
conformity to all the requirements of the Act
As an example using the map enclosed for clarity, the first annexation in the series, labeled"A", is
contiguous to the municpality and its circumference meets the six times contiguity requirement of 31-12-
104(1)(a). However it does NOT meet the requirement of(1)being a parcel on which annexation is
petitioned by the owner of the parcel,as the owner of the ROW is the county which has not applied for
annexation. And(2), neither does the ROW meet the criteria of being usable to effect contiguity between
the municpality and the area to be annexed,labeled"B", as it is NOT CONTIGUOUS to that area
petitioned by its owners to be annexed. As a result the first annexation fails the contiguity requirements of
31-12-104 and 31-12-105 and the use of ROW to establish contiguity requirements of 31-12-105(1)(e).
As a result of the first annexation"A"failing to meet contiguity requirements,the second pole"C"fails
and the flag"B"fails, not being contiguous to the municpality.
Statement 2." Which annexations may be completed simultaneously". The verb"completed" is defined as
meaning: to end or to finish or to conclude,which in this case would mean to complete by acting or
enacting. Thus,the serial annexations must be considered in a series, individually, standing on their own
to qualify,as argued in statement 1 above,but may be completed,ended, acted on, simultaneously,but
NOT have their contiguity established simultaneously. Therefore if all annexations in the series qualify
they may enacted simultaneously. However if any one of them fails to qualify as in Statement 1 above,
then obviously they cannot be enacted simultaneously or individually.
Statement 3 "and considered together for the purposes of the public hearing". The contiguity requirement
for annexation may be ESTABLISHED in a series, individually, as shown in analysis of Statement 1
above,but not CONSIDERED together. This phrase of the statute section means that the serial
annexations,whose contiguity must be established individually as shown in Satement 1 above, may be
considered together as a part of a public hearing,just as any other aspects of the application for
annexation may be considered together as part of the puposes of the public hearing. It means merely that
each annexation applied for serially does not have to be considered at separate public hearings.
2. 31-12-105(1)(e) "Within said three-mile area,the contiguity required by section 31-12-104(1)(a)may
be achieved by annexing a platted street or alley,a public or private right of way...."
This statement does not mean that by annexing a public right of way the other requirements for
annexation do not have to be met. ALL the requirements have to be met, specifically:
In the poling illustration on the enclosed map,the first pole"A" does not establish contiguity as the area
to be annexed is still not contiguous to the annexing municpality or to pole"A", so that contiguity has not
been achieved for the reasons given in Statement 1 above.
3. If the intent of the above quoted sections was to approve the use of poling to establish contiguity,the
legislature would have spelled out clearly this intent. The adherents of this interpretation have arbitrarily
assembled various sections of the act to create a false context that falsely indicates such an intent by the
Act contrary to its explicitly stated intentions as enumerated above.
4. 31-12-104(1(a))states that"Contiguity shall not be affected by the existence of a ...public...right of
way whether owned by the state,United States,or agency there of" If a county is not an agency of the
state, since it is not specifically mentioned here as not affecting contiguity a county owned right of way
might be considered as affecting contiguity if it lies between the municipality and the area petitioned to be
annexed to it.
Cty Commissioners 3/25/96 page 3of 3
5. 31-12-104(1)(a)"Contiguity shall not be affected by a street"does NOT mean that it can be
ESTABLISHED by a street. It merely means that contiguity cannot be defeated by the existence of a street.
6. 31-12-104(1)(1)"In establishing the boundaries of any area proposed to be annexed, if a portion of a
platted street or alley is annexed,the entire width of said street or alley shall be included with in the
annexed area." As shown on the map enclosed in the attempt to establish contiguity for annexation of pole
"B" only one half the width of the right of way can be annexed in annexation of pole"A". And since
annexation"A" must qualify on its own, serially, as established in Statement 1 it fails to meet the
requirement of this section of the Act.
I can find no other sections of the Act or published court precedents that would conceivably support flag-
poling as a legal devise for annexing land to a municipality. There is some precedent for banning
poling(543 P2d 521),but no definitive decision to outlaw it once and for all , apparently because of a lack
of feasance by those entities that have standing in pursuing the matter,even though they show great
concern for the uncontrolled, inappropriate growth of municipalities that results from the practice of flag-
poling.
If we examine those parts of the Act that might erroneously be used to support poling in each of its
elements, as done above,we will find that,by examining them correctly in an elemental manner, they do
not support the concept of poling. That only by prejudging from an attitude of favoring the use of
poling, can they incorrectly be construed to support it. By relying, correctly,on the written expressed
intent of the Act and the statement by statement wording of the Act the real intent and meaning of each
part of the Act is apparent. In general it is impossible to conceive that the Colorado legislature on the one
hand would enact legislation to promote orderly growth and on the the other hand in the same Act intent
to provide a means to promote chaotic growth.
I am certain the county attorney's office can be of assistance in adding to these arguments supporting the
contention that poling is not legal by finding additional arguments from the statutes or case law. If you
have concerns about these contentions I would be pleased to the best of my limited layman's ability to
address them. Then injunctive action or filing of a complaint in the matter of some ongoing poling type
annexation might be considered.
It seems to me this,unfortunately, is the only approach that will stop this destructive practice as:
1. It is my impression that the meetings,between the State and County Commissioners on the one hand
and the officials of various municpalities from the southwest part of the county on the other, has only
resulted in the state and county expending much time and energy devising methods, such as revenue
sharing,to reduce the impulse of the municipalities to expand indiscriminately only have the municpality
representatives come up with other ideas which result in the state and county expending more time and
effort to satisfy these ideas,ad infinitum;or for the municipalities to be persuaded by
the inducements of grants or other devises to reach agreements to create some sensible order to these
annexations,which grants,etc.expend real taxpayer funds on the one hand but achieve only non
enforceable promises by the municpalities on the other hand.
2. The limited recourse I have to the legislature has met with no interest in revision of the statutes to
unequivitably spell out the prohibition of poling and flagging.
Very truly yo ,
John S. Folsom
PC Jeffrey Larson,esq. and to Weld County Attorney
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