HomeMy WebLinkAbout20172807.tiffRESOLUTION
RE: APPOINT COMMISSIONER MIKE FREEMAN AS ELECTOR ON BEHALF OF THE
BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY IN ELECTION ON
AUGUST 15, 2017, AS ORDERED IN WELD COUNTY DISTRICT COURT CASE
NUMBER 16CV30542
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, by Order of District Court Judge Marcelo A. Kopcow, dated March 6, 2017, a
copy of which is attached hereto as Exhibit "A," in Case Number 16CV30542, Town of Timnath,
Colorado, v. Town of Severance, Colorado, Weld County is a landowner for the purpose of a
municipal annexation election to be held on August 15, 2017, between 9:30 a.m. and 2:30 p.m.,
at Timnath Fire Station 8 of the Poudre Fire Authority, located at 4800 Signal Tree Drive, Timnath,
Colorado, and is therefore entitled to one vote, and
WHEREAS, pursuant to Section 3-8(4)(1) of the Weld County Home Rule Charter and
Section 30-11-101(1)(c), C.R.S., the Board has complete authority over the lands owned by Weld
County, and
WHEREAS, the Board deems it advisable to appoint Commissioner Mike Freeman to be
the elector on behalf of the Board in said municipal annexation election.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado, that Commissioner Mike Freeman to be the elector on behalf of the Board of
County Commissioners in the municipal annexation election to be held on August 15, 2017,
between 9:30 a.m. and 2:30 p.m., at Timnath Fire Station 8 of the Poudre Fire Authority, located
at 4800 Signal Tree Drive, Timnath, Colorado.
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 14th day of August, A.D., 2017.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
ATTEST: d1 Xii40• A
Weld County Clerk to the Board
BY: �p•P\L • l \Q
puty Clerk to the Board
APP'• DASTO
oun y Attorney
Date of signature: ci / I N / 1 '7
Julie A. Cozad, Chair
Steve Moreno, Pro-Tem
Sean P. Conway
ke Freeman
r•ara Kirkmeyer
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2017-2807
BC0013
EXHIBIT "A"
DISTRICT COURT, WELD COUNTY, COLORADO
P.O. Box 2038
Greeley, CO 80631
(970) 475-2400
DATE FILED: March 6, 2017 11:
CASE NUMBER: 2016CV30542
♦ Court Use Only •
Petitioner:
TOWN OF TIMNATH, COLORADO, a municipal
corporation
v.
Respondent:
TOWN OF SEVERANCE, COLORADO, a municipal
corporation
Case No. I6CV30542
Division 5
ORDER RE: ELECTORS
THIS MATTER comes before the Court to determine electors under the annexation
election statute. The Court, having considered the Stipulation, Briefs, and Response, and being
otherwise fully advised, HEREBY FINDS and ORDERS as follows:
BACKGROUND
This case arises out of two overlapping annexation petitions. On March 7, 2016. the
Town of Severance ("Severance") accepted an annexation petition from Buffalo Creek including,
in pertinent part, a portion of Weld County Road 78. On April 15, 2016 the Town of Timnath
("Timnath") received a petition to annex the Holloway Property, including a portion of Weld
County Road 78, and on May 10, 2016 Timnath adopted a resolution indicating its intent to
annex the property. On June 6, 2016 Timanth received a petition to annex the Brandt property,
including a portion of Weld County Road 78. Also on June 6, 2016, Severance held a public
15 AM
2017.-2807
hearing and adopted an ordinance annexing the Buffalo Creek property. Based on the overlap in
the various petitions along Weld County Road 78, Timnath filed the present Petition for
Annexation Election and to Hold Annexation Proceedings in Abeyance. Severance moved to
dismiss and the Court denied the motion. The parties then researched the ownership of the
overlapping parcels, filed a stipulated set of facts, and filed briefs arguing their respective
positions.
ANALYSIS
The sole issue before the Court is whether Timnath has alleged sufficient facts to trigger
the annexation election statute, C.R.S. § 31-12-114. Severance argues that the property subject
to the overlapping annexation petitions is a road, and thus cannot be the overlap triggering an
election. Severance also argues that because the overlapping property is a road, no eligible
voters would be able to participate in the election. Timnath responds that the exceptions cited by
Severance are limited, the election statute does not expressly exclude streets or rights of way, the
required contiguity for the petition is created by the street itself, and it is possible to identify
electors. Because the Court finds sufficient facts alleged to identify an overlap triggering the
statute, and to identify possible electors, the Court denies the Motion to Dismiss.
Under C.R.S. § 31-12-114:
(1) At any time during a period of notice given by a municipality pursuant to
section 31-12-108, any other municipality may, subject to compliance with
section 30 of article II of the state constitution, receive a petition for
annexation or a petition for an annexation election pursuant to section 31-12-
107 with the area partly or wholly overlapping the area proposed for
annexation by the first municipality. If this occurs, the respective rights of the
several municipalities shall be determined in accordance with an election as
provided in this section.
(4) All of the landowners and the registered electors in the area claimed by both
municipalities shall be entitled to vote at said election...
"Any landowner owning land in the area proposed to be annexed may vote, irrespective
of whether he or she is a registered elector. Any corporate landowner may by resolution
designate one of its officers to cast its vote." C.R.S. § 31-12-112(2). "'Landowner' means the
owner in fee of any undivided interest in a given parcel of land." C.R.S. § 31-12-103(6).
Severance argues Weld County is the sole owner of the road, and therefore the only
elector in the election. Timnath argues the road is an easement and the land underlying it is
owned by the adjoining landowners. who are therefore the electors.
The stipulation of facts states the parcels abutting the overlap are owned by 5852 Ranch
LLC ("parcel 38"I), Naaseh-Shahry Hosein ("parcel 8"), Mark and Julie Brandt ("parcels 51 and
52"), Mark, Julie, Joyce, and James Brandt ("parcel 1") and Kappa properties II, LLC ("parcel
7"). The parties further stipulate that the Weld County roads were established by resolution in
1889, and the area of overlap is entirely within Weld County Road 78.
Beyond the stipulation of facts, Timanth attaches the deeds as exhibits, as well as a
quitclaim deed from 1888 wherein the owner of parcels 38, 8, 51, and 52 deeded the portions
underlying the road to Weld County. The Court therefore concludes that Weld County is the
landowner of the portion of these parcels that underlies the road, and is therefore an elector in the
election. The ownership of the remaining two parcels turns on the effect of the resolution
creating the roads.
"Public roads may be created by deed, dedication, a rule and order entered in an eminent
domain proceeding, or by court decree when past public use justifies such declaration." Williams
For eased of reference, the Court refers to the parcels by the last two digits of their assessor parcel number.
v. Town of Estes Park, 43 Colo. App. 265, 267, 608 P.2d 810, 812 (1979). In 1885, the Colorado
General Assembly passed what is now C.R.S. § 43-2-201, allowing declaration of public rights
of way. Shortly thereafter, in 1898, the Colorado Supreme Court adopted the "centerline
presumption," which presumes that where a grantee conveys a deed, it is presumed that the deed
extends to the centerline of any right-of-way overlying the owned property. Olin v. Denver &
R.G.R. Co., 25 Colo. 177, 178, 53 P. 454, 455 (1898).
Similarly, it is a "general rule that a conveyance of a lot which borders upon a highway
presumptively carries the title to the center of the street, if the grantor owns the land on which
the highway is laid out." Overland Mach. Co. v. Alpenfels, 30 Colo. 163, 170, 69 P. 574, 575
(1902). However, these arguments presume ownership in the property underlying the right of
way. Asmussen v. United States, 304 P.3d 552, 558 (Colo. 2013)(citing to Standard Oil Co. v.
Milner, 152 So. 2d 431, 438 (Ala. 1962) for the constitutional implications absent this
ownership).
Here, there are no exclusions or references to the road in the deeds themselves. Other
than the 1888 deed, there is no indication that the land underlying the road was deeded to the
County. Rather, the deeds themselves purport to convey the entirety of the property to the
present owners. The Kappa survey addresses the easement over the north 30 feet of the section,
analyzes past deeds, and determines that those 30 feet have the right-of-way over the top of
them, but the underlying fee ownership remains. Similarly, the Brandt survey indicates parcel 1
extends to the center line of the road, but a right-of-way exists over the south 30 feet of the
property. Therefore the Court concludes the ownership of parcels I and 7 extend to the center of
the road.
Finally, Severance argues it is beyond the Court's jurisdiction to determine who the
electors are. However, under C.R.S. § 31-12-112(4), the Court is required to appoint the three
commissioners, one of which must be a landowner within the proposed annexation. Because this
appointment is not possible without determining the landowners within the area of overlap, and
because courts interpret statutes to avoid absurd results (see In re Marriage of White & Martin,
240 P.3d 534, 537 (Colo. App. 2010), citing Frazier v. People, 90 P.3d 807, 811 (Colo. 2004)),
the Court finds it has the authority to resolve the landowner question.
Based on the deeds and surveys provided, the Court finds and concludes that Weld
County owns the property underlying Weld County Road 78 in parcels 38, 8, 51, and 52; Kappa
properties II, LLC owns the property underlying the road in parcel 7, and Mark, Julie, Joyce, and
James Brandt own the property underlying the road in parcel 1. These landowners are therefore
the electors for the election, and the parties shall designate one of them as the landowner
commissioner under the statute.
Certification Question
Severance requests that, should the Court find that any other than Weld County are
landowners, it certify the question for interlocutory appeal. Timnath opposes certification and
requests that if the Court is inclined to grant certification the parties are given the opportunity to
brief that issue first. The only unsettled question of law addressed in this order is whether the
Court may determine the owners of land underlying an annexation dispute in order to facilitate
an election. The other questions Severance argues were decided in its September 9, 2016 Order,
and the certification request is therefore not timely as to those questions. See C.A.R 4.2 ("The
party seeking to appeal shall move for certification or submit a stipulation signed by all
parties within 14 days after the date of the order to be appealed"). To the extent Severance seeks
certification for review of the Court's authority to determine the landowners under the act, the
Court declines to certify this basic question. Furthermore, although Severance objects to the
expense, the election itself will comprise only 6 individuals: the individual owners of parcel 1,
the corporate representative of parcel 7, and the representative of Weld County. The expenses of
this election should therefore be limited, and do not require interlocutory certification of the
limited issue. The court finds and concludes it would be just and equitable for the cost of the
election to be paid equally between Timnath and Severance pursuant to C.R.S. § 31-12-114(11).
CONCLUSION
The Court therefore FINDS Weld County, Kappa properties II, LLC, and Mark, Julie,
Joyce, and James Brandt are landowners under the statute for purposes of the annexation
election. The parties shall provide the court within thirty (30) days of this Order the names of
three proposed commissioners, one of whom shall be nominated by the municipality, one of
whom shall be a landowner of land in the area proposed to be annexed or such landowner's
nominee, and the third shall be acceptable to the other two, pursuant to C.R.S. § 31-12-112(2).
Dated: March 6, 2017
Marcelo A. Kopcow
District Court Judge
This document was filed pursuant to C.R.C.P. 121, § 1-26. A printable version of the
electronically signed order is available in the Court's electronic file.
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