ANNEXATION LAW IN COLORADO
Is It A Detriment To Planning?
College of Design and Planning University of Colorado at Denver
Brad L. Schol
COLORADO ANNEXATION LAW IS DETRIMENTAL TO SOUND PLANNING
In Partial Fulfillment of the Requirements for the Degree of Master of Planning and Community Development College of Design and Planning University of Colorado at Denver Professor Herbert H. Smith, Thesis Advisor
- The first step is to break old patterns to begin to think, work and plan for the development of the entire metropolitan areas.
- Lyndon B. Johnson
Annexation has and will continue to be a controversial topic in Colorado. Annexation is seen differently by different groups. It is seen as a tool for economic development, or a growth management tool. Some even think that annexation should be used for growth control. Annexation has been widely criticized and blamed for many urban growth related problems. Annexation does have its problems as a process and municipal function. Primarily those problems are inadequacies in the limited methods of annexation allowed by the state.
Colorado is experiencing strong growth pressures, especially along the Front Range. Those growth pressures create many impacts on the urban area. Many misguided observations label annexation as the problem in managing municipal growth and the annexation patterns and methods of some municipalities may not be founded on sound planning principles. Unfortunately the problems many see associated with annexation are merely symptoms related to the larger issue -rapid growth in Colorado and an inefficient governmental framework to manage it.
Initiatives to further restrict state annexation laws are precisely the opposite of what is needed to correct a worsening situation. Unless annexation
laws can be made less restrictive by eliminating the catostrophic effects of Poundstone II, annexation patterns by most Colorado cities will continue to be detrimental to and in conflict with sound planning principles. Some of those basic planning principles include logical-progressive growth, carefully planned infrastructure, uniform levels of municipal services and fiscal responsibility.
This topic has been of great interest to me to undertake academically. I have several years of first hand experience working with annexations professionally and personally know that under Colorado law, annexation has little regard for orderly and sound planning. I have witnessed the development and growth of an unincorporated ring of urban growth around cities attempting to grow and responsibly manage land use. I have experienced the anger of unincorporated residents upset at the onslaught of urbanization who think that annexation is the basis of the growth. That anger can only be matched by the emotions of the unincorporated businessman who sees annexation as the complete and total ruination of his business by removing the tax advantages he enjoys over his competitor. Seldom do either the resident or the businessman stop to think about the impact and cost they represent to the urban community.
The problems associated with annexation are many and complex. Some are functions of the private sector and the market place. Others are institutional within the structure of the state. Still others are the results of other forms of government acting out their roles in the urban setting. As the problems are multi-faceted and complexly interrelated they cannot be solved broadly and directly. Firstly, the Colorado Legislature must recognize that annexation, as a function, is beneficial to the majority of residents in the state. Once the general assembly recognizes the need for adequate planning above the local, parochial level, then surely they will shed their reactionary and noninnovative ways and deal with Colorado growth issues directly.
I would like to express appreciation to those individuals familiar with this topic who have helped me sift through the many related issues. In particular my discussions with Ed Tepe and Gerald Dahl have been most rewarding. I am disappointed in being rebuffed several times by Freda Pounstone who would not discuss the topic with me. This is truly unfortunate as that viewpoint would have contributed greatly to this report.
Most importantly I recognize my wife Gini for her unwritten contributions to this report that has made it all possible.
TABLE OF CONTENTS
DEMOGRAPHIC AND URBAN PATTERNS
Denver Region History 1-2
Population and Migration Patterns 1-3
Regional Growth Forecast 1-5
Denver Region Physical Urban Pattern 1-5
Special Districts 2-2
Urban Fringe Land Markets Speculation 2-6
Urban Fringe Land Market Dynamics 2-9
Part III ANNEXATION
A Brief Historical Look Back 3-1
Annexation Principles 3-3
Present Annexation Laws, Intent and Purpose 3-5
Methods of Annexation 3-10
Enclave Annexation 3-11
Annexation By Petition 3-12
Annexation Elections 3-13
Eligibility Requirements for Annexations 3-14
Evolution of Annexation Law Since the
1965 Municipal Annexation Act 3-15
Poundstone I 3-15
Poundstone II 3-16
Legislative Amendments 3-18
Judicial Changes 3-18
Trends Affecting the Act 3-19
Flagpole Annexations 3-21
The State of Colorado 4-1
Denver Regional Council of Governments 4-4
Colorado Chapter of the American Planning Association 4-10
Colorado Municipal League 4-12
Special Districts 4-12
Part V SOLUTIONS
Special Districts 5-1
Intergovernmental Agreements 5-3
Regional Functions 5-4
State Planning 5-4
Annexation Laws 5-5
LIST OF FIGURES
Figure 1 Growth Trends and Forecasts in The Denver Region 1940 2010 1-8
Figure 2 Denver Urbanized Area Development Trends 1-9
Figure 3 Denver Region Population and Employment Trends 1-10
Figure 4 Denver Urbanized Area Land Consumption Trends 1-11
Figure 5 Flagpole Illustration: "A Short Flagpole" 3-23
Figure 6 Flagpole Illustration: "A Medium Flagpole" 3-24
Figure 7 Flagpole Illustration: "A Long Flagpole" 3-25
Wayne Schol, Leroy Fields, and Herb Smith,
All of whom have invested considerable time and effort in me as a person and professional.
"annex" ('an-, eks-) vb: to incorporate (as a territory) within a political domain an-nex-a-tion (,an-,ek-'sa-shun) n."(l)
In this the twentieth century, we have witnessed the urbanization of our nation. During this century the character of our nation has changed from rural to urban. Not only has the character of the nation changed from rural to urban, but the majority of the nation's population now lives in urban areas. Colorado, albeit more slowly, has followed this national trend and a majority of Colorado's population now resides in the urban areas of the state's Front Range corridor stretching from Fort Collins on the north to Pueblo on the south.
The cities located in the Front Range area have been the major recipients of this growth, although a significant amount of growth has occurred and is occurring at the fringe of urban areas outside of the cities themselves. This report is mainly about cities in the Denver region although several references are made to and apply to other Front Range cities. The study that is contained in this report contemplates future demands on these cities and examines their scope of ability to manage these demands through several actions chiefly among those is annexation.
Municipalities are by nature, a governmental creature. They are impacted strongly by regional demographic shifts and by regional economic occurrences. Population migration patterns into Colorado, specifically the Denver area,
coupled with dynamic employment and real estate markets are significantly impacting the function and abilities of local governments, particularly cities.
The ability of cities to deal with these impacts and growth pressures are
closely linked to their ability to grow and expand their jurisdiction over
nearby urbanizing areas. Annexation is the method of growth granted to cities
by the state through its delegation sovereign power. This report shall examine
the increasing inadequacy of the current framework by which municipalities grow via annexation.
The Denver region is expected to have grown 500% in the period from 1940 to 2010. Much of this growth (over one million people) will happen in the next twenty-five years. This intense growth pressure demands that we look again at state laws dealing with annexation. An erosion of the ability of cities to annex has occurred precisely at the time when the region has experienced staggering growth.
Given the decreased ability of cities to annex, the cities have begun utilizing annexation techniques and patterns which exacerbate the problems associated with rapid urbanization rather than properly managing these problems. One of those techniques, the "flagpole" annexation will be closely examined. The main focus of this report will be oriented to the problems of cities and annexation however, other key factors which contribute to the problems will be identified and discussed.
DEMOGRAPHIC AND URBAN PATTERNS
A city can no longer view itself as an island where its own planning is irrevelant to the sea of other jurisdictions that surrounds it.
Governor Richard Lamm
As a prelude to the review of annexation statute short-comings and suggesting revision, it is appropriate to consider many of the key factors driving the issue of annexation. Primary and salient among those factors is the strong growth pressure of the recent past continuing through the foreseeable future. This section of the report will review population, migration, and employment trends; the region's historical growth pattern; and, urban land consumption patterns. The review presented in this section shall document the need for a more reasonable and functional framework of annexation law so that cities can adequately manage the growth expected over the next 25 years.
Denver Region History
The historical growth and development activities of a region often dictate the eventual pattern the region ultimately assumes. Following a region's history, such as Denver, often identifies trends in that region's growth pattern that assists in predicting the future.
In 1858 the settlement of Auraria was founded on Cherry Creek near it's confluence with the South Platte River. During this era Denver experienced growth due to economic and locational factors directly related to a mining boom cycle occurring in the adjacent Rocky Mountains. In 1861 Colorado gained
designation as a territory and later in 1876 Colorado was granted statehood. During the late 1800's mining was the dominant economy of the region (agriculture was also important) and as such, the economy of the Denver region was enigmatic associated with the cylical boom and bust phases common to the mining industry. From the late 1800's Denver experienced fluctuating and sporadic growth swings due to the associated swings of the mining and agricultural economies up to and through World War I.
Sporadic growth in the Denver region continued through the Depression era up until World War II. In 1940 the region was populated by approximately 445,000 people. Employment in the region at this time was estimated to be 167,000 workers.
Population and Migration Patterns
Up to and through the World War II period, the Denver region experienced strong swings in growth. Since World War II however, a strong surge in the region's rate of growth has been established that is expected to continue for the next twenty-five years. A 1940 population estimate of 445,000(2) swelling to a 1985 population estimate of 1,800,000(3) dramatically underscores the bullish growth rate underway in the region since World War II.
Natural population increase (births minus deaths) account for and explain only a fraction of the population growth experienced by the region. Migration of additional population into the region is the apparent and obvious basis for the astounding population increases. More than 50% of the population increase from 1960 to 1970 is directly attributable to net migration and 75% of the population increase from 1970 to 1977 is also a result of in-migration to the Denver region.(4) Clearly, from this illustration it is apparent that migration into the region has been an influencing factor on the high levels of population and
employment growth we are now experiencing.
Migration is an extremely interesting phenomena of our society. Migration is difficult to predict precisely because it is interdependent on many "soft" or nonquantifiable variables. Certainly our society's increased mobility contributes to the ability to move or migrate. While it is not the purpose nor is it within the scope of this report to analyze the underlying socioeconomic factors behind migration patterns into the Denver region, it is reasonable to postulate that there exist some very broad and general factors directing migration to the Denver region. It is also plausible that these factors will continue to direct migration into the Denver region so long as those migration factors continue to make Denver attractive. Although general, it is suggested that the following partial list of factors (be they actual or perceived) have influenced and will continue to influence migration into the Denver region:
- Perceived quality of life,
- Recreational opportunity,
- Presence of federal offices and military installations,
- Employment opportunity,
- Depressed economies in other regions,
Clearly, these factors influencing migration are not thought to be or intended to be inclusive of all of the socioeconomic factors directing migration to Denver. Rather, they provide an illustration and understanding of the types of factors that may affect migration patterns. While prediction of migration patterns tends to be difficult it may be safe to assume that socioeconomic factors, such as those mentioned, will be expected to remain largely the same. Given those factors remaining ostensibly the same, then it is reasonable to expect continued growth for the next twenty-five years.
Regional Growth Forecast
The growth of the Denver region since 1940 has been significant and it has placed, correspondingly, a burden on local governments to provide adequate urban services to this mushrooming population. The cumulative growth expectations of municipalities comprising the Denver region parallel projections made at the regional level for the future. The Denver Regional Council of Governments (DRCOG) predicts that population in the Denver region will reach 2,629,900 by the year 2010. Correspondingly, DRCOG has forecast an employment level of 1,720,700 workers by the year 2010.(5)
Obviously these forecasts assume that net migration continues to be the largest and most influencing factor towards regional population and employment growth. Implicit to understanding the reality of these projections is the fact that most of this population growth will occur within the cities comprising the Denver region. From another perspective, if these forecasts are accurate, each city in the Denver region can expect to grow by 44% in the next twenty-five years. It is the cities which must digest the nearly one million more residents expected in this forecast interval.
Denver Region Physical Urban Pattern
From the time of the founding of the Auraria community until today, the region's growth in terms of population is well documented. Not as well documented, but of similar importance is the rate and amount of land that is converted to urban use in conjunction with the region's growth. Examining the region's growth in terms of physical area brings another important perspective to aid in understanding the implications of urban growth and annexation.
Beginning with the small settlement of Auraria near Cherry Creek, Denver began to develop along the South Platte River and south along the Santa Fe Railroad
line to Hampden Ave. By 1940 Denver had stretched east along Colfax Avenue past Colorado Boulevard and along Federal Boulevard. The development of the area was largely contiguous with the exceptions of small areas around Wheat Ridge, Edgewater and older areas of Lakewood which were also established by this time. The separate freestanding developments of Arvada, Aurora, Littleton, Golden, Boulder and Longmont were already established by this time.
After World War II, the Denver region experienced the influence of the automobile creating the onset of suburbanization. By the 1950's tract housing was being developed and the northern suburbs of Westminster, Northglenn, Broomfield, and Thornton incorporated. Concurrently, Aurora expanded along Colfax Avenue and north and south along the eastern boundary of Denver. Littleton and urbanized portions of Arapahoe county were expanding at this time also. This major expansion, influenced by the automobile, has resulted in a low to moderate population density in the Denver region.
In 1960 when the contiguous Denver urbanized area had a population of approximately 803,624, there existed a corresponding developed/urbanized land area of 167.4 square miles. Ten years later in 1970, the population had increased to 1,047,311 and land area was up to 292.8 square miles. In 1980 population had increased to 1,352,070 and land area was now up to 439 square miles.(6) Astoundingly, while the population of Denver urbanized area had grown 68% over this twenty year period, the area of urbanized land increased a whopping 162% over the same twenty-year period!
In forecasting land consumption rates to 2010, DRC0G estimates that one square mile of non-urban land is consumed for each 2000 new residents to the region. Based upon this consumption rate and in developing the Regional Development Trends Map, DRC0G estimates the region will add 465 additional square miles of
urbanized land to the Denver region by the year 2010 for a total expected urbanized land area of 925 square miles in the year 2010. Assuming equal step down distributions of regional urban land area increases to all cities in the Denver region, this means that each city can expect to grow nearly 100% in land area over the next twenty-five years.
The immediate conclusions drawn from this examination of demographics and urban patterns for the Denver region strongly imply that continued growth pressure will face the region within the next interval of predictions and forecasts of the future. Migration will be the salient factor causing population increases and land consumption patterns will continue to be dramatic. Equal distribution of population and land consumption however is unlikely and those cities which can most rapidly provide housing, amenities, recreation, and employment will likely capture larger shares of the population and correspondingly will consume larger portions of land for urbanization. Likewise, cities constrained by either political or physical boundaries will likely not grow as rapidly and look more to the options of infill and redevelopment to capture their share of the growth. Inevitably, those municipalities that are adjacent to large tracts of unincorporated land suitable for development will be the cities who will handle the great majority of the region's expected growth and it is here that the role of annexation becomes crucial in adequately managing this predicted growth.
GROWTH TRENDS AND FORECASTS IN THE DENVER REGION 1940 2010
YEAR POPULATION EMPLOYMENT
1940 445,000 167,000
1950 612,000 234,000
1960 921,000 387,000
1970 1,238,300 542,800
1980 1,618,500 880,200
1990 2,028,900 1,206,200
2000 2,340,800 1,466,600
2010 2,629,900 1,720,700
The Denver Region consists of Adams, Arapahoe, Boulder, Denver, Douglas and Jefferson Counties.
Data contained in this table is derived from the Denver Regional Council of Governments (DRCOG) 1978 "Regional Growth and Development Plan for the Denver Region", and 1985 "Regional Development Framework" Publications.
DENVER URBANIZED AREA DEVELOPMENT TRENDS 1960 1980
YEAR POPULATION LAND AREA (sq. mi.) POPULATION DENSITY
1960 803,624 167.4 4,800
1970 1,047,311 292.8 3,577
1980 1,352,070 439.0 3,080
2010 2,562,250 925 2,770
1960-70 243,687 125.4 1,943
1970-80 304,759 146.2 2,085
Source: U.S. Census Bureau & Denver Regional Council of Governments
The Denver urbanized area consists of the freestanding contiguous urban
metroplex of Denver and its adjacent suburbs and excludes Denver Region cities such as Boulder, Brighton or other freestanding communities.
POPULATION and EMPLOYMENT TRENDS
1940 1950 I960 1970 1980 1990 2000 2010
DENVER URBANIZED AREA LAND CONSUMPTION TRENDS
I960 1970 1980 1990 2000 2010
Money talks. At least it seems to be an effective way of calling attention to the need for planning.
As documented in the previous section of this report, growth in Colorado is occurring in and around the Denver area at a strong, if not, unmanageable rate. While the creation of new jobs and the attractiveness of the Colorado Front Range may be implicit to the basis of this growth, it could not occur at past and present levels without some facilitating influences. When enabling statutes were established for cities and counties in Colorado, the state's fathers envisioned the function of cities to provide the services necessary to manage urban gatherings. County governments were seen to be more rural in character and were given less power statutorily.
Unfortunately, more than one hundred years after the founding of this state, more growth is occurring in some unincorporated areas than in many cities. While many factors influence and facilitate growth, two main factors can be identified that combine to facilitate growth at the expense of Colorado municipalities. Special districts play one such role. Providing special urban types of services outside of municipalities has allowed development to occur at urban fringe areas. After the development is completed and basic services are in place, little if any incentive exists for annexation.
Like special districts, land speculation at the urban fringe has created
intense development pressures. Real estate speculation and profit taking activities in the private sector have created intense development pressures where investors seek high value gains in property exchange or turnover.
Separately, and in combination, special districts and land speculation have created a development climate that induces growth at the urban fringe regardless of the planning and growth activities of the adjacent municipalities. While this report is primarily about annexation, it is necessary to acknowledge that other factors coupled with a restrictive annexation environment, create poor and ineffective planning around Colorado cities.
Special districts are governmental entities enabled by and deriving their power from the State of Colorado. Special districts, as a form of government, are designed to carry out specific functions. Most common are the functions of water and sanitation services. Special districts have powers to provide other services too. Fire protection districts are another common manifestation of special districts.(7) Special districts cover geographic areas that are not necessarily similar to the boundaries of other political jurisdictions. Special districts may consist of noncontiguous parcels and may function entirely within, partly within, or entirely outside of a municipality. They may not overlap one another where two districts would provide the same service.(8) Often called "invisible governments", special districts operate through elected boards and levy taxes to finance the installation of capital facilities and to provide ongoing services.
Special districts are reasonably easy to form. Developers holding large tracts of land, contemplating zoning approvals which would allow development, often
use the bonding capabilities of special districts to finance the initial infrastructure improvements foreshadowing the actual development. Special district formation under the Special District Act is fairly simple and works something like this:
A) A group of property owners or developer(s) combine to determine the extent of the service area and the type of services to be provided. All of this is based upon anticipated development. A "service plan" is formulated and submitted to the Board of Commissioners in the resident county.
B) A public hearing is held to allow comment with regard to formation of the district.(9)
C) The county Commissioners approve or disapprove the service plan and the service plan together with a petition of ten percent of the taxpaying electors from within the proposed district is filed with the county District Court.
D) The court holds a hearing and supervises an election of the electors of the district to determine if the special district should be formed.
E) The court declares the district to be formed after the initiative for district formation passes.
Reviewing this simplified creation process and examining the legislative declaration of Title 32 of the Colorado Revised Statutes gives the impression that special districts are designed to fill a void of urban services where those services could not have otherwise been provided. Somehow the use of special districts to foster growth outside of municipalities seems foreign to
the intent of the Colorado Revised Statutes when it is the intent of special districts to:
. . facilitate the elimination of the overlapping of services
provided by local governments and the double taxation which may occur because of annexation or otherwise when all or part of the taxable property of an area lies within the boundaries of both a municipality and special district (emphasis added)(10)
In many counties where urbanization is occurring in conjunction with a strong
and sustained growth rate, the use of special districts, and metropolitan
districts have become an accepted vehicle towards providing urban services to
unincorporated developments. This leniency towards the formation of special
districts and permissive pro-growth county zoning patterns have encouraged
substantial development activity at the edge of many cities. Unfortunately
this growth is not always compatible with the urban patterns existing nearby
within the city, and unfortunately state law does nothing more than allow a
city nonenforceable extraterritorial planning privileges. The extraterritorial
planning by cities is many times a futile effort when special districts fuel
growth at the cities' edge and the counties grant zoning to allow the
Growth patterns at many urban fringe points are largely being assigned by actions of counties and special districts. This is a rather interesting phenomena when the municipality was initially envisioned by the state to manage growth and provide urban services. The net effect of special districts in many cases is anti-city where the provision of basic services to urban fringe areas creates distinct discentives to annexation. When water, sanitation and fire protection (special districts) together with law enforcement and street maintenance (county services) are provided to unincorporated developed areas, it becomes obvious that the municipalities have little to compete with given their added taxes.
Many types and kinds of services are provided to urban areas; refuse collection, animal control, libraries, health services, and cultural opportunities name just a few. In spite of the multitude of services that are provided to urban citizens, the simple truth is that water and sewer are the two most influencing services on the type and location of urban development. Growth cannot be supported without water and sewer. Consequently since these services are sometimes limited or scarce "growth follows the pipe". Tomorrow's growth patterns are being determined largely, by today's water and sewer system patterns.(11)
It is evident that many special districts are formulated initially by developers without regard to the district's future impact on adjacent cities. Correspondingly, once formed and operating, special districts promote growth, often outside of cities and at the eventual expense of cities, denying them the chance to grow or control land use. These concerns coupled with others including the "layered" effect of government and lack of accountability have caused the statutes governing special districts to be examined frequently. Most recently in the summer of 1984 a special interim legislative committee was appointed by the Colorado General Assembly to investigate and examine special districts. That committee met several times over the course of the summer. Sixteen legislative proposals resulting from the 1984 Legislative Council Committee on Special Districts were proposed as legislation during the 1985 Legislative Session. The special district lobby in the legislature is powerful and the recommendations of the interim committee did not propose a serious reform effort; looking at disolutions, transfer of functions to other governments, restriction of initial powers, alternative financing methods and further disolution considerations.(12)
Where special districts continue to operate in unincorporated areas (under current regulations) adjacent to municipalities the municipalities' ability to grow and annex into those area will be impaired. Impaired annexation powers result in a direct detriment towards effective planning and growth management in Colorado.
Urban Fringe Land Markets Speculation
Denver's rapid growth rate in the past two decades has precipitated the emergence of sizeable real estate and construction industries. These industries have served to provide the necessary development to accomodate the growth coming to the Front Range. Once established, this industry has become self perpetuating. Much of the activity in the real estate market is speculative in nature gambling on the continued population and employment growth of the area. In turn the new developments create new jobs, lure new residents, and the growth cycle is, at times, artifically supported. This is one of the reasons why the Denver region is thought to be recession proof. Ultimately, though, national economic factors influence the region and the self perpetuating aspects of the local development industry cannot be wholly insulated from them. Primarily the availabilty and cost of money are national factors that most rapidly influence our local economy.
The primary activity of the construction and real estate industry has been to deal in new developments aimed at serving the expanding regional population. This development occurring in the Denver area stimulates annexation interest and activities at the urban fringe. While some development occurs as infill development within incorporated or already urbanized places, the majority of land devlopment activities occur at the edge of cities or at the urban fringe. Some of this development occurs within the cities, and some in the counties.
Much of this fringe growth occurs in the adjacent unincorporated areas.
Preceding the actual construction of development at these fringe areas normally is one or more speculative actions of land transaction. While development occurs at the edge of the urbanized areas, another ring exists for a distance beyond this development area where land speculation occurs in anticipation of future development. This area within the ring of speculation is subject to ownership changes as landowners sell or divide property in expectation of resale or development opportunity. Land speculation can be extremely profitable when rural property is purchased at agricultural prices, held for a period of time, then resold at urban rates. When development activity is brisk at one particular fringe area, so too occurs a greater interest and speculative market in the nonurbanized adjacent areas.
In high growth locations, speculation becomes very competitive among various landowners and investors. This competitive activity towards land in the speculation ring often inflates land values greatly and creates a demand for development sooner than other market factors might have created. The value of land, inflated by one or more speculative exchanges, often requires the landowner to seek quick development in order to retrieve property acquisition costs. The investment of large amounts of funds and the pursuit of zoning or subdivision approvals for property in this speculation ring create strong political pressures in the jurisdictions where the land is located. The pressure influenced on decision makers by members of the local real estate and construction industry is at once compelling and significant.
Few, if any, Front Range cities or counties are growth control oriented (Boulder County and the City of Boulder have taken distinctive stands towards the amount of growth and where it should occur, but they are definately not no
or anti growth). In fact, developer groups, chambers of commerce organizations
and other entities which support continued and sustained growth are assisted whenever possible by local governments. Economic growth is seen as a way to improve local conditions, reduce fiscal shortfalls, improve image and prestige, and address other identified local deficiencies.
Since growth is pursued by most local governments as being beneficial, the influence of the real estate and construction industries becomes considerable. Many land use decisions are then made under the guise of promoting economic growth for the locality at the expense of adjacent areas. The contradiction of land use compatibility and "highest and best use" is documented well in any local planning department. When land use decisions, fueled by speculative pressures, are made in unicorporated areas or at the end of flagpole annexations, it is clear that the objectives of planning in the best interests of the community are often disregarded. The influence brought to bear on the public sector to grant development approvals also often leads to questionable annexations. In circumstances where an unincorporated landowner has a buyer, developer or tenant ready and anticipating a zoning or subdivision approval, the city can accomodate annexation and zoning in a rather short period of time. The prospect of higher employment levels and increased tax revenue often overrides the need for progressive and orderly development that sound planning advocates. The fact that the method of flagpole annexations are so popular explains why spot zonings are granted in outlying areas. Once a property's use moves away from vacant or agrarian use to a more intense urban use, the original use is lost forever and the future character of the area is established.(13)
Urban Fringe Land Market Dynamics
The net effect of speculative activities at the urban fringe is known. Runaway speculation at the edge of the city creates intense development pressures, land use decisions become private sector land use decisions and the vehicle of flagpole annexations complicates the confusion. It should be noted that flagpole annexations are not the culprit in undermining orderly urban development. Annexation laws have become so restrictive that cities cannot capture and control urban development at their boundaries and must rely on the flagpole method as the only method remaining with which the cities can grow to reach developing properties. The dynamics of this speculation ring and the competition among landowners allow cities to indulge in flagpole annexations and spot zonings.
Generally this speculation ring can extend from the citys edge where development is underway, outward twenty to thirty miles to rural areas unlikely even to become urbanized in the next twenty years. Areas closer in and expected to develop within the next ten years identified on the basis of recent patterns of metropolitan growth, planned service infrastructure such as sewers and roadways, and the opinions of planners, local elected officials, real estate brokers and land developers are considered to be under intense development pressure. (14)
Examining the differences between urban fringe areas under intense development pressure and areas more remote from the fringe area and examining the different characteristics of the respective landowners provides insight to land market activities. Prior to transition of the land from rural to urban, rural property is normally held in large ownership tracts usually devoted to agriculture. These owners usually have held the land for some period of time and devote it to personal use such as agriculture. Normally this property is
the primary investment of these individuals. These owners normally do not participate actively in the real estate market but foresee the continued use of their land in agriculture.
As urbanization activities at the fringe move outward, buyers begin to acquire land for investment and development purposes. Usually the land remains in agricultural use but is held by the investor ownership, waiting for land values to increase. Most landowners in this group who have acquired the land from agricultural users/owners, are of an interim nature and hold the land until its value raises satisfactorily or until a favorable offer for purchase is received. Any number of interim investors may purchase a property between the time of ownership of the traditional owner and acquisition by the developer who ultimately urbanizes the property. This transfer of ownership from traditional owners to investors, then to developers is cumulative as land goes from the rural to the urban form. The transition to urbanization can be compared to an ecological succession, where the process of change (land transfers) proceeds until equilibrium is achieved (urbanization).(15)
With each land transfer, value increases until the pressure for development is culminated in urbanization either within the unincorporated areas of counties or within the incorporated areas of cities. Clearly, if development activity is strong enough and development begins occurring at some distance from the existing city, the municipality will find a way to annex it. Such development pressures exist in the market place of the Denver region, spurring the annexation activities of cities to obtain and manage this growth.
I would rather have them dead than annexing.
Freda Poundstone 1974
A Brief Historical Look Back
The Municipal Annexation Act of 1965 substantially improved annexation laws in Colorado in time for the state's cities to begin dealing with the large influx of growth coming to the state. The annexation laws in existence prior to 1965 were badly antiquated and, in effect, made it difficult for municipalities to annex territories in unincorporated areas adjacent to cities.
Prior to the 1965 Municipal Annexation Act, residents of unincorporated areas who did not wish to annex to a neighboring municipality had simply to refuse to sign an annexation petition. Unless there was consent, municipalities could not annex properties adjacent to their boundaries. An exception provided for in the 1963 Colorado Revised Statutes allowed for the unilateral and involuntary annexation of areas completely surrounded by a municipality enclaves. The drawback in this provision was the requirement that the municipality must have had the territory surrounded for a period of twenty years before the annexation could take place. Such a long waiting period, in many cases, allowed the enclaves to incorporate themselves and become immune to the annexation efforts of the surrounding city. Correspondingly, there were no provisions in the pre-1965 regulations to provide for areas nearly surrounded by cities peninsulas. These shortcomings prevented the logical growth patterns of municipalities into adjacent areas where their influence existed.
Also under the pre-1965 law, the provisions of annexation by petition were much more restrictive. Under the old annexation law, the landowner signatures of both fifty-one percent of the land area to be annexed and a majority of the resident landowners were necessary to validate a petition for annexation. Obviously, a few landowners holding large properties, in an area proposed to be annexed could easily prevent the annexation from being accomplished. The gaining of both a majority of land area and resident landowners consenting is a very difficult task for municipalities desiring to annex.
The provisions in effect prior to the Municipal Annexation Act of 1965 did not have any law compelling municipalities to annex areas adjacent to cities who desired to become part of the cities. Under these provisions, annexations were entirely discretionary to the governing bodies and there was no requirement on behalf of petitioning residents to force annexation.
Another deficiency of the old annexation laws in effect prior to 1965 was the lack of provision for competing claims of annexation among two or more municipalities. Conflicts or disputes over territories eligible for annexation sometimes resulted in serious intergovernmental conflicts among jurisdictions which could only be sorted out through litigation. Courts have traditionally been unpredictable and inconsistent regarding annexation and planning related matters in Colorado.
In summary, a review of annexation laws in place prior to enactment of the Muncipal Annexation Act of 1965 included the following important features:
1) Annexation ocurred primarily by petition only and residents not wishing to annex could refuse,
2) The waiting period for unilateral "enclave" annexations was twenty years,
3) No provisions existed for unilateral annexation of areas nearly surrounded by the cities peninsulas,
4) Annexation by petition of some involuntary properties necessitated a consenting majority of both land and residents.
Clearly, the laws pertaining to annexation in Colorado prior to 1965 inhibited annexation by municipalities in the state. Fortunately, the enactment of the 1965 Municipal Annexation Act greatly enhanced the ability of cities to annex and more easily manage growth occurring at urban fringe areas. The Municipal Annexation Act of 1965 has been attacked by both legislative and referenda amendment. The net effect of these incremental changes has been to return the cities of Colorado to the era preceeding 1965 when annexation laws were weak and detrimental to sound planning and urban growth management.
The purpose of annexation across the United States has historically been to foster, promote and efficiently manage urban expansion. Some basic principles apply to an orderly annexation program.
Location and Size of Area to Be Annexed
Annexation should serve the primary purpose of encouraging the orderly growth of a community. The area under consideration for annexation should be contiguous to the existing corporate limits of a municipality. The area under consideration should be part of or located in the path of anticipated growth and expansion of the community. The area proposed for annexation should be no larger than what the municipality is able to serve adequately with capital improvements and basic day to day services of the same or equivalent standard as provided inside the municipality within a reasonable time after annexation.
Existing Land Use and Orderly Growth
The area considered for annexation should be reasonably well developed as commercial or residential areas. Areas less than fifty percent developed should be carefully considered prior to annexation. Generally, areas used primarily for agricultural purposes not anticipating urban development should not be considered for immediate annexation. The area considered
for annexation should be adaptable to anticipated expansion requirements of the municipality for residential or commercial purposes. The general terrain of the area should at least allow for additional future expansion so that utilities may be extended without prohibitive costs.
Benefit to Area Annexed
No area should be annexed unless it will benefit from the annexation. Annexation should not be considered merely for the purpose of raising more revenue, increasing population, or other superficial benefits to the municipality. Annexation should be viewed in terms of desirable levels of municipal services that the city is capable of providing to the proposed area. Unless the proposed area can be provided with new or additional improvements and services or unless existing services can be provided under more efficient and less expensive conditions, then annexation may not be justified.
Municipal Annexation Costs
The costs of providing permanent capital improvements as well as the cost of everyday municipal services should be fully analyzed and determined. In the event the cost of providing basic day to day municipal services and minimum capital improvements within a reasonable time after annexation is more than the citizens inside the city are willing to finance, the municipality should reduce the size of the proposed area or postpone annexation. Services and improvements within the municipality should not be depleted in order to finance services and improvements to the area proposed for annexation.(16)
Fundamental and worthy of repetition is the basic premise that annexation is intended to foster, promote and, above all, manage urban growth. Size, location, area, land use, growth direction, benefit to the area and fiscal impacts all are important factors and principles that merit serious consideration when any annexation by a municipality is contemplated. In order to accomplish proper examination of those factors it is often appropriate to carefully and objectively study and analyze the proposed areas prior to their annexation. The decision on annexation should then be made based upon the detailed analysis and established annexation policies of the municipality. A sample statement and guideline on annexation policies was published in Public Management and reprinted in the Colorado Municipal League's Colorado Annexation Guide":
- State and publicize the annexation policy in clear, concise and meaningful terms bearing a relationship to those to be annexed.
- Most annexations should be initiated, financially supported, and promoted by those living within the area, with the sanction of local disinterested but influential groups such as chambers of commerce, labor councils, merchants associations, and the like.
- The monetary effect of annexations on the average homeowner must be fully understood and the city should be prepared to present homeowners costs before and after annexation.
- Program committments made to an area before annexation must be fulfilled at the date and level promised.
- The city should assure, when within its power, that alternatives to annexation special districts, separate incorporation, mutual aid agreements, do not become more attractive either financially or psychologically than annexation.(17)
These policies are important considerations given the need of municipalities to annex in order to keep abreast of the Denver area's high growth rate. The importance of disclosing annexation costs and controlling special districts is as important today 20 years after the Public Management publication as it was in 1965.
Present Annexation Laws, Intent and Purpose
Largely, the annexation laws prevailing today in the State of Colorado came about as a result of the Municipal Annexation Act of 1965. The legislative declaration of this act defined the purpose and intentions of the Colorado State Legislature in 1965. Clearly the act contemplated and intended:
(a) To encourage natural and well-ordered development of municipalities of the state;
(b) To distribute fairly and equitably the costs of municipal services among those persons who benefit therefrom;
(c) To extend municipal government, services, and facilities to eligible areas which form a part of the whole community;
(d) To simplify governmental structure in urban areas;
(e) To provide an orderly system for extending municipal regulations to newly annexed areas;
(f) To reduce friction among contiguous or neigboring municipalities; and
(g) To increase the ability of municipalities in urban areas to provide their citizens with the services they require. "(18)
These legislative declarations are well intentioned and seem to make sense towards furthering rational growth in our state, but the plain truth is the condition our state's prevailing annexation laws subvert each and every one of the stated objectives.
(a) To encourage natural and well-ordered development of municipalities of the state;
As urban fringe areas grow adjacent to the boundaries of cities the growth in many instances is not "well ordered". An inspection of land use patterns in Douglas, Jefferson, Arapahoe and Adams counties demonstrate that the future land use plans of the counties and their resident cities are seldom in harmony. Furthermore the ability to form special districts in most Denver area counties has allowed noncontiguous urbanization at distances from the existing edges of cities. This leapfrog development pattern, promoted by methods of flagpole annexations hardly account for "natural develoment". "Natural and well-ordered" implies to the rational thinker that new growth occurs adjacent or nearby to the existing urban form where it can be harmoniously integrated into existing land use patterns, be connected to existing systems of infrastructure, be provided urban services from the same jurisdiction and assimilate into the community.
(b) To distribute fairly and equitably the costs of municipal services among those persons who benefit therefrom;
Prevailing annexation laws prevent this goal from being accomplished. Encircling the urbanized Denver area are countless rural and urban subdivisions both commercial and residential in use which exist in unincorporated areas. Although unicorporated, they are part of the urban system in every sense of the term in that those subdivisions could not exist but for the presence of the incorporated metropolitan area. The argument advanced by the City and County of Denver against the suburbs relating to inequitable distributions of cost pertaining to many infrastructure and cultural facilities is easily taken a step further regarding developed unincorporated areas adjacent to cities. A double taxation burden is carried by residents of incorporated places where the incorporated residents are taxed twice while unincorporated developed areas enjoy a free ride with respect to many forms of urban services. This is hardly "equitable".
(c) To extend municipal government, services, and facilities to eligible areas which form a part of the whole community;
Community is a sense of being or a particular neighborhood which often does not recognize jurisdictional lines. Annexation laws are decidedly weighted towards these adjacent and contiguous unincorporated developments occurring at the fringes of cities. Once these adjacent unincorporated fringe areas are created and they begin receiving a minimum level of municipal services, it is particularly difficult to convince them to annex into a city. The residents of the area have little to gain in most cases except higher taxes and they will seldom opt for annexation unless there is something to gain. Correspondingly, cities have little power to grow into unincorporated developed areas because of the discretionary powers granted to unincorporated citizens and property owners. This limited ability, then, makes it nearly impossible to "extend municipal government, services, and facilities to eligible areas which form a part of the whole commmunity".
(d) To simplify governmental structure in urban areas;
If anything, our present annexation laws and patterns have served to confuse governmental structure in the Denver area. Trying to figure out the school district, state senate district, representative district and special district in most areas is confusing enough. The patterns that municipalities are now using in annexing consenting property owners has led to spot annexations that are confusing to residents and government alike. Bob Brooks, Arapahoe County Commissioner, addressing the Colorado Chapter of the American Planning
Association cited municipal annexation patterns and the resultant confusion in tax collection and urban services provision as one of the biggest headaches facing local governments in this region. To say that Colorado annexation laws "simplify governmental structure" is pure fiction.
(e) To provide an orderly system for extending municipal
regulations to newly annexed areas;
The existing structure of Colorado annexation laws makes it difficult to annex adjacent developing areas and the result seems to be the antithesis of the
intent of this goal. Different jurisdictions have different regulations and
generally county regulations tend to be more permissive than those of
municipalities. That is not so much a criticism as it is merely an
institutional fact of the enabling statutes for counties and cities
respectively. Under Colorado law, cities are given more power and
correspondingly are more suited to handle the development and maintenance of urban areas. At the same time, counties were not envisioned as providing this same type of "urban" service when the enabling statutes were rafted and
therefore are at a disadvantage. In spite of that disadvantage, most counties
that are part of the Denver urban area are doing a reasonably good job at managing development given their inherent lack of institutional power. That
difference between cities and counties does result in a distinct difference in
the level of governmental regulations applied to urban areas. Regulations of counties (not statutorily designed to provide urban government) are generally more permissive and occassionally inferior to those of cities. That distinct difference in the levels of local government regulations between counties and cities does not appear to be in keeping with an orderly "system ... of regulations".
(f) to reduce friction among contiguous or neighboring municipalities ;
The "Municipal Annexation Act of 1965" does allow for some direction when two municipalities are attempting to annex the same territory. The Act allows for specific instruction when two or more municipalities claim a similar area (C.R.S. 31-12-114). Unfortunately, current annexation law in Colorado, causes competition and creates friction between municipalities. The difficulties involved in annexing close in developed areas makes municipalities look farther out into areas that may cause alarm to other cities and touch off "annexation wars" as each jurisdiction seeks to control its destiny. These annexation battles certainly don't "reduce friction among neighboring municipalities".
(g) To increase the ability of municipalities in urban areas to provide their citizens with the services they require.
The irony of this declaration is that just about everybody can get in the business of providing urban services. The ability to form special districts and metropolitan districts at the county level has precluded the need to look to cities for municipal services. What services are not provided by special and metropolitan districts, such as law enforcement are happily provided by the counties. Certainly, annexation laws as they are on the books today, do not facilitate this objective.
Methods of Annexation
The Municipal Annexation Act of 1965 truly liberalized annexation laws in Colorado allowing towns and cities the opportunity to exercise some influence on the rapid growth beginning in the 1960's. While the 1965 Act substantially liberalized the law governing annexation, a number of protective measures were established to prevent abuse of the law by municipalities. Four basic limitations were established by the 1965 Act to prevent municipal abuse.(19)
31-12-105 (a) prevents a municipality from annexing any part of property held in identical ownership and in effect causing a subdivision of the land through annexation. This prevents cities from drawing boundary lines through parcels of land but requires that city boundaries follow established property lines or dedicated streets.
31-12-105 (b) prevents the involuntary annexation by petition of land parcels together with improvements which have assessed valuations of more than two hundred thousand dollars for ad valorem tax purposes. This prevents municipalities from unfairly manipulating and leveraging majorities of land area and land owners in order to acquire large facilities for property tax purposes.
31-12-105 (c) helps to establish some ground rules pertaining to competing annexation actions of cities over similar territories or areas. When an annexation proceeding is commenced for an area by a municipality, no other municipality's annexation activities are valid. Although this section of Colorado annexation law has helped sort out the problem of competing claims among municipalities it has created a sort of "statutory urgency" compelling competing municipalities to file annexation petitions in order to beat one another's annexation claims in disputed areas. Unfortunately this results in
annexation based upon local manifest destiny more than annexation based upon logical expansion patterns.
31-12-105 (d) prevents annexations that result in changes of school district boundaries. This limitation endeavors to prevent the disruption of communities to the extent that they are defined by school districts.
Basically there are three methods or avenues of annexation under the original provisions of the Municipal Annexation Act of 1965 that any municipality may pursue. One method of annexation involves unilateral action by municipality. There are three situations in which this unilateral method of annexation may be used:
1) When an area or unincorporated territory is completely and entirely surrounded for a period of not less than three years, the surrounding muncicipality may annex the area without consent. It is significant to point out the dramatic difference between this provision of the 1965 Act and the pre 1965 annexation laws which required a twenty year waiting period. Clearly, this change is of benefit to municipalities.
2) When an area or an unincorporated territory is surrounded on two thirds of its perimeter boundary for a period of not less than three years, then the municipality surrounding the peninsula may annex without consent the area surrounded by two-thirds. A hearing prior to annexation is necessary by the governing body. It should be noted that Poundstone II has revised this section of the 1965 Municipal Annexation Act. The substance and impact of that amendment is discussed in later sections.
3) Unincorporated municipally owned land may also be annexed unilaterally by the municipality owning the land. This method of unilateral annexation is somewhat duplicatory of other methods allowing the annexation of petitioning properties in that a city could present itself a petition requesting annexation of city owned land and annexation can be accomplished that way as well.
Annexation by Petition
The most frequently used method of annexation and the most popular in light of recent limitations to Colorado annexation law is the method of annexation by petition. Generally speaking two types of annexation by petition are utilized, voluntary and involuntary annexations.
1) Voluntary annexations allow property owners to voluntarily request or assent to annexation proceedings by signing a petition. The annexation must comply with certain eligibility requirements described later on. The petition process described here as "voluntary" means that 100% of the area or property to be annexed is formally petitioning (requesting) to do so. When an annexation by petition is 100% voluntary, Colorado law allows that certain public hearing requirements may be bypassed.
2) The involuntary aspect of annexation by petition in the original 1965 Municipal Annexation Act provided that more than fifty percent of the property owners of an area to be annexed agree to the annexation. Consequently, up to fourty nine percent of the property owners in an area to be annexed could be taken involuntairly or without their consent. Public hearing requirements and notification procedures exist that must be complied with in involuntary annexations. This original section to the 1965 Act has been recently changed also and those changes are discussed in later sections.
The final and often least desirable method of annexation to municipalities is that of annexation by election where the question of annexation may be decided by a vote of landowners in the area under consideration. Upon receipt of a petition requesting annexation, a municipality commences the initiation of an annexation election. Boundaries for the annexation and election area are established, notice of the election is provided and the voting takes place. Majority votes against and tie votes deny annexations, majority votes in favor of annexation allow municipalities to annex the area where the issue was put to election.
Usually annexation elections are not desirable to municipalities. Reasons for cities disliking of annexation elections are:
- They are more expensive than conventional annexations in that the annexing municipality must bear the cost of the election.
- Residents of unicorporated areas often already have many of the urban services offered by municipalities either through; counties, special districts or metropolitan districts. Annexation has often little to offer many unincorporated residents except higher taxes. Given this lack of instant benefit upon annexation it becomes an unpopular initiative to pursue by election.
- Where annexation proceedings are in process via another method, residents opposing the annexation may force an election in any area by filing election petitions. The lack of immediate benefit to many residents, can cause an election to ultimately kill the annexation.
The infrequency with which annexation elections occur in Colorado document the unattractiveness of this method to municipalities.
Eligibility Requirements For Annexations
Before land can be annexed to a municipality it must meet certain eligibility requirements as outlined in the 1965 Act. There are two basic requirements that
must be met under law prior to annexation. It is necessary for the governing
body of the municipality to make findings that these eligibility requirements are met. The first requirement is a determination that one-sixth of the proposed annexation area be contiguous to the existing city boundaries.
Secondly a "community of interest" must exist between the area to be annexed and the municipality. Community of interest implies that the area proposed for annexation is capable of being integrated into the city. In other words, do adequate similarities in the sense of overall community exist? If this
condition exists, "community of interest" exists and integration is possible.
The one-sixth contiguity provision is important in that it requires a certain proximity to existing city limits. Complying with the statutory contiguity requirements while reaching outward towards unincorporated areas, has led to extensive use of the flagpole method of annexation. Creative in the realm of annexation tools, the flagpole has many detrimental effects on sound planning.
Once it has been determined and provided that one-sixth of an area's perimeter proposed to be annexed is contiguous, then the requirement to prove a community of interest is relatively easy. Generally, once the contiguity requirment is fulfilled, the community of interest requirement too, is fulfilled.
Evolution of Annexation Law Since The 1965 Municipal Annexation Act Since adoption of the 1965 Municipal Annexation Act, annexation laws in Colorado have evolved significantly. Clearer definition and understanding of the 1965 Act has been provided by the courts. Consitutional amendments during general elections have also substantially changed provisions of the original annexation laws of the 1965 Act. Finally, legislative amendments have contributed to the evolution of Colorado annexation law to make it what it is today.
As the City of Denver grew rapidly during the 1950's and 1960's many suburban ring communities incorporated to protect themselves from being annexed by Denver. The desire to retain local identity and remain outside of the Denver political and school systems helped fuel an anti City of Denver sentiment. This ultimately culminated in an amendment to the Colorado constitution during the general election of 1974 which effectively stopped the City of Denver's growth. This amendment was called The Poundstone Amendment after legislative lobbyist Freda Poundstone who supported and sponsored the amendment to the state constitution.
The net effect of the Poundstone Amendment of 1974 or Poundstone I as it is now called, was to halt Denver's ability to annex by establishing Denver as a City/County government. The amendment created a six member commission designed to regulate Denver's boundaries. The commission established by Poundstone I is comprised of one county commissioner from each Adams, Arapahoe and Jefferson counties and three members from Denver. The three non-Denver officials, when voting together, can effectively prevent any Denver annexations. This has been the general rule since the passage of the amendment in 1974. The Poundstone I amendment applies to Denver only.
Poundstone I was initially viewed as a municipal tragedy by the City and County of Denver. It has had some beneficial effects to Denver. However, by the time Pounstone I went into effect, Denver was already a central city of prominent size in area and population. The amendment did prevent Denver from effectively growing any further outward. Since that time, Denver has become more introspective looking inward towards a higher degree of quality. This has allowed Denver to; concentrate on improving existing areas, renovate areas, and be more selective about the type of development occurring in it.
Poundstone I accomplished what may have been an eventuality in cutting off Denver's growth. Suburban ring communities in competition with each other and the core city were rapidly closing off Denver's growth avenues. Poundstone I likely prevented Denver from accomplishing a number of badly disfigured "corridor type" annexations before the suburban ring eventually closed.
Fueled by an annexation dispute in the Colorado Springs area, Poundstone II appeared on the general election ballot in 1980. Pounstone II changed the 1965 Municipal Annexation Act by amending sections pertaining to methods of annexation. Pounstone II's impact was broad and severe as it limited substantially all three of the basic methods of annexation; unilateral, petition, and election.
Poundstone II, as approved by the Colorado electorate in November of 1980, completely eliminated provisions of the 1965 Act allowing unilateral annexations of areas (enclaves) having anything less than one hundred percent contiguity or complete encirclement. An enclave could no longer be two-thirds surrounded but must be entirely surrounded before a city could unilaterally annex an area. This added limitation has been detrimental to Colorado municipalities.
Another facet of Poundstone II is that it also added new limitations to the
method of annexation by petition. No longer was a simple numerical majority of landowners adequate to allow other properties (the landowner minority) to be annexed involuntarily. The premise behind this portion of Poundstone II apparently was to prevent municipalities from unfairly leveraging large parcels by obtaining a landowner majority on an annexation petition. The new regulations placed on petition annexations by Poundstone II requires a majority of land area and landowners consenting to the annexation. If this seems reminiscent of regulations in effect prior to the 1965 Act they are strikingly similar, if not exact. Consequently, the petition form of annexation has taken a very large step backwards thanks to Poundstone II. Obtaining majorities in either land area or landowners is difficult and complicated. Linking both landowner and land area majority requirements to annexations by petition where nonconsenting properties are involved, greatly burdens Colorado cities in their ability to grow and conduct sound planning.
The third aspect of Poundstone II, as it affected every method of annexation, was to change "elector" requirements for annexation elections. Qualified "electors" for the purposes of annexation elections previously applied to registered electors who were landowners in prospective annexation areas. Under changes authorized by Poundstone II, a qualified elector was now any landowner in the prospective area of annexation (resident or absentee) and all registered electors in the area (renters). Whether or not this change in the law improves or further restricts the annexation options of cities remains to be seen. Certainly, it seems, most cities would be somewhat skeptical of this change enhancing annexation powers of cities since the prevailing opinion among most Colorado citizens is one of encouraging less government. The prevalent attitude among many unincorporated citizens sometimes known as the "sagebrush rebellion" is easily exported to other unincorporated areas and is a popular theme.
Legislative initiatives to the 1965 Municipal Annexation Act have been almost exclusively aimed at restricting the Act and further limiting the abilities of cities to annex. Most legislative amendments have been reactive to the annexation efforts and patterns of cities. The section of the Act pertaining to enclave annexations was amended to prevent municipalities from creating artifical enclaves by annexing strips of rights of way. Other reactionary types of legislative have been initiated at various times, all aimed at further limiting the 1965 Act.
As annexations occur and disputes arise it is inevitable that lawsuits occur. Since the passage of the original 1965 Municipal Annexation Act, a preponderance of case law has been established. While it is not uniformly consistent in its interpretation of the law, a review of the annotated Colorado Revised Statutes shows that many areas of the law have been examined and interpreted by the courts.
It is very interesting, to read a portion of a U.S. Supreme Court opinion upholding a Colorado Springs annexation pertaining to the two-thirds contiguity rule:
Where the territory to be annexed has over two-thirds contiguity with the annexing city, the interrelationship between the two areas is or can be so close that the city should be allowed to annex despite the unwillingness of the residents of the annexed territory. The law thus recognizes that a municipality such as Colorado Springs is severely handicapped by an annexation law which requires the approval of the property owners and qualified electors of an annexed area. It is unable to deal with groups of citizens who form small tax colonies on the borders of the core city which is the economic base of the urban area and to which the colonies owe their very existence and yet pay nothing for the advantages which the city provides. These people would seldom consent to the annexation and their non-consent would threaten the very existence of the core city.(20)
The reasoning and argument of the court is quite compelling. So compelling, in fact, that it leads onto believe that the Colorado general electorate was duped into approving Poundstone II by a media barrage aimed at "reducing government". It seems rather strange such an amendment would be approved when it's net effect is detrimental and anti-city given that an overwhelming majority of the state's population lives in cities.
Trends Affecting the Act
As described earlier in this study while examining the evolution of the 1965 Municipal Annexation Act, the foreseeable trend in annexation law changes is to impose further limitations to the Act.
Senate Bill 177 presented to the State Legislature recently proposed to further limit annexation laws by; 1) making contiguity requirements more specific and limited, 2) disallowing creation of enclaves, and 3) preventing the creation of a strip of unincorporated area consisting solely of public rights of way. S.B. 177 was clearly an attempt to limit annexation powers and was opposed by the Colorado Municipal League for the following reasons:
1. Current annexation law already requires the consent of property owners prior to annexation (except for enclave areas). Current law
also prevents use of rights-of-way to create enclaves (C.R.S. 31-12-106 [1.1]). As long as property owners and the municipality agree and there is some contiguity, additional restraints on annexation are unnecessary and undesirable.
2. Annexation is an essential tool if economic development is to continue.
3. S.B. 177 eliminates landowner freedom of choice freedom to choose to annex and develop, or not to annex.
4. S.B. 177 impedes the ability of municipalities to plan for, guide, and finance sound urban development. These principles are set forth in the current annexation law's legislative declaration at C.R.S. 31-12-102. S.B. 177 is inconsistent with that declaration.
5. Restricting annexations, as proposed by S.B. 177 could lead to the further proliferation of special districts in order for necessary public services to be provided.(21)
Recent flagpole annexations by the city of Aurora, incorporating land at some distance from existing city limits may soon precipitate further restrictive limitations on municipal annexations. Namely, using the technique of flagpole annexations. As annexations continue, further legislative actions will probably occur proposing new limitations.
Many side issues to the aspect of redefined annexation law exist and can have significant impact on Colorado annexation laws. One such issue involves electrical service to newly annexed areas. As annexation occurs to cities where a municipally owned or investor owned electric company operates, the annexed territory becomes part of the area served by the locally franchised utility. Consequently, areas formerly served by the Rural Electrification Association (REA) are no longer part of REA's income producing area. In response to an eroding service area, REA proposed legislation which would have resulted in less than desirable circumstances for annexing municipalities. In this case the main issue was urban growth rather than annexation, yet because of an inability to manage that growth properly, annexation became the intended victim.
Generally this has been the case in recent history where annexation regulations have become the target of misguided criticisms and band-aid
repair efforts. The real culprit to Colorado's municipal growth-problems, is a lack of control in annexation and planning to better manage the heavy growth rate.
An extremely popular technique among municipal annexations is the flagpole technique. A flagpole annexation typically consists of a strip of unincorporated right of way (the pole) attached to an annexing land parcel (the flag) at some distance from the existing city boundaries. The flagpole concept allows cities to gain the necessary contiguity as required by statute by using the pole and projecting city boundaries far into unincorporated areas. Flagpole annexations to parcels several miles outside of a city's jurisdiction are possible and have been accomplished by several Front Range cities.
Flagpole annexations are both good and bad for municipalities. For the most part they are a necessity if municipalities are to attempt in any way to manage growth now occurring at the urban fringe. Since Colorado annexation law has been limited largely by Poundstone II, it has been necessary for cities to adjust to the impact of that change. For many cities where urban services already exist outside of their boundaries, annexation is a difficult task. The flagpole has become the result. Flagpoles are good from the municipal standpoint in that they allow cities to by pass "hostile" landowners by going around them to annex parcels petitioning annexation. Flagpoles are bad in that they stretch urban services and infrastructure and confuse boundary lines.
Flagpoles are usually not the result of cooperative planning between city and county governments. Instead flagpoles create municipally sponsored developments occurring in the midst of county planning areas while
counties manage development at the urban fringe adjacent to city boundaries. When the comprehensive plans of cities and counties are identical, this would not create land use conflicts. Unfortunately conflicts in the respective plans, even when minor, create land use compatibility problems.
Flagpoles are detrimental to sound planning efforts in that they create strong competition among cities. Competing desires for the same territory lead to annexation wars and flagpole annexations become the weapons. In the urgency to incorporate land before another competing community can do so, the careful planning analysis necessary prior to annexation and development is often forgotten. The result is a poorly planned, rapidly expanding metroplex inefficient in both size and scale.
A SHORT FLAGPOLE
, A MEDIUM FLAGPOLE
A LONG FLAGPOLE ANNEXATION PLAT
At the lower end of the scale, where government is in its most primi-tative state, even the best planning is likely to be futile, and it might be well to concentrate on improving government rather than on producing plans which existing government cannot use intelligently.
Fredrick H. Bair, Jr.
A number of entities both governmental and governmental-related, influence Colorado's annexation laws and patterns. Some entities, like cities, utilize statutory power directly and perform annexations. Other organizations like the Denver Regional Council of Governments (DRCOG) have no direct relationship to annexation. But the influence of DRCOG's activities has an interesting impact on annexation patterns in the Denver region.
The purpose of this section is to identify some of the major role players in the realm of annexation and examine both their function and impact on the issue. Included within this section will be a look at the roles of; the State of Colorado, DRCOG, counties, cities, special districts, the Colorado Municipal League (CML) and the state chapter of the American Planning Association (COAPA).
Specific illustrations of Boulder County and the City of Aurora are included to provide examples of some very different approaches to growth and annexation.
The State Of Colorado
It is the State of Colorado that officially delegates its power to cities (political subdivisions of the state) enabling cities to conduct annexations as prescribed by statute. The state is the official caretaker of the statutory
control of annexation through its institutional framework of the Colorado Constitution and Colorado Revised Statutes.
Presently there are three main sections of the Colorado Revised Statutes that can be related to annexation and urban growth patterns. Title 24 Article 65 is the Colorado Land Use Act. Title 31 Articles 12 and 23 apply to Annexation and Planning and Zoning respectively. The cumulative effect of these three legislative sections does not place the state of Colorado at the forefront of the nation in terms of state planning efficacy. The legislation in and of itself is adequate to give both the state and its local governments a firm direction towards some policy of planning. The State of Colorado's planning legislation is certainly far from that of other states where rapid growth has made more progressive planning laws necessary. Suggested later in the recommendations section, the state should consider more progressive planning legislation as it would greatly assist in taking the burden of growth management off of current annexation law. A law not designed to manage, limit or direct growth in its present form.
In examining the legislative declaration of the Colorado Land Use Act, one finds the reasoning and understanding of statewide growth related issues:
" The general assembly finds and declares that the rapid growth and development of the state and the resulting demands on its land resources make new and innovative measures necessary to encourage planned and orderly land use development; to provide for the needs of agriculture, forestry, industry, business, residential communities, and recreation in future growth; to encourage uses of land and other natural resources which are in accordance with their character and adaptability; to conserve soil, water and forest resources; to protect the beauty of the landscape; and to promote the efficient and economic use of public resources. The general assembly further finds and declares that there is an increasing mutuality of interest and responsibility between the various levels of government in the state which calls for coordinate and unified policies in planning for growth and development in the interests of order and economy and that the most effective means of attaining the objects set forth in this article is the adoption of the statewide system of land use.
" In order to provide the leadership necessary to meet the objectives of this article, the general assembly authorizes the Colorado Land Use Commission to develop and hold hearings upon state land use plans and maps and related implementation techniques. It is the intent of the general assembly that land use, land use planning, and quality development are matters in which the state has responsibility for the health, welfare and safety of the people of the state and for the protection of the environment of the state."(22) (emphasis added)
To be sure, the Colorado Land Use Act was aimed at least partially at the expected impacts of large scale oil shale projects on Colorado's western slope. Growth however, remains a region shaping force in Colorado's Front Range and the state has no policy on annexation at this time other than what the statutes now provide for.(23) Further the state's executive branch staffs only one professional planner.(24)
There appears to exist a wide disparity in the philosophy expressed in the legislative declaration of the Colorado Land Use Act and the current staffing level and policy of the state's executive branch. The legislative declaration of the Colorado Land Use Act speaks to "rapid growth and development", "future growth", and "the interests of order", but no actual framework for addressing these declarations exists. The blame for the lack of state interest or participation in growth and annexation related issues can harldy be placed with the executive branch of state government. Governor Richard Lamm may easily be the state's leading expert on growth and its related problems. Most of his work as a state legislator in the late 1960's and early 1970's was devoted to those issues and the same theme dominated his platform when he first ran for governor twelve years ago.(25) In fact, speaking in one of a series of Agenda 1986 Forums, Lamm suggested that: "A city can no longer view itself as an island where its own planning is irrelevant to the sea of other jursidctions that surround it." and that "There is a recognition of certain metropolitan problems. There is a recognition they're not being solved, and the machinery
that we set up to solve them is inadequate."(26) Clearly one of the cogs in that inadequate machinery is Colorado annexation law intended to facilitate and promote well planned growth not to serve as a growth control tool as Poundstone II has changed it.
The blame can be justly placed with the state's legislators of the general assembly. It is this group which has sponsored reactive amendments to Colorado annexation law and declined to adequately fund a state planning program. It is this group of Colorado's lawmakers who must be challenged to address the state's future by proactive means and not through imposing further limitations on annexation as was contemplated by Senate Bill 177. It is this group that must recognize that further restrictions to the Municipal Annexation Act are detrimental to sound planning and are misguided attempts at growth management and area wide planning.
Denver Regional Council of Governments (DRCOG)
Originally set up to function as a regional planning agency and clearing house for federally funded projects, DRCOG's role has changed over time to that of an agency facing a limited scope of activities resulting from substantial federal spending cuts. DRCOG has no direct link to Colorado annexation law but DRCOG does not have an influence on areawide planning. DRCOG's major impact on planning issues is the review and approval of wastewater treatment facilities. The link between wastewater facilities and annexation is not direct but the influence exists. By approving plans for wastewater facilities, DRCOG affects how and where development will occur. DRCOG's approvals are necessary to obtain federal grants which finance a great majority of all wastewater facilities in the region. When expansions of existing wastewater service plans occur or when new plans are proposed outside of existing service areas, DRCOG has the ability to determine if service is provided and in turn, if development
New development occurs largely at the fringe and thus the link to
annexation can be traced.
is a guide for approval of these types of facilities on a regional scale, DRCOG develops regional future plans to predict growth. These regional plans are a blending of forecast at the regional and local levels. In developing this guide for growth, DRCOG has recently prepared a Regional Development Framework intended to guide regional growth and decisions through the year 2010. This plan embraces the aspects of land use, transportation, water quality and other planning related functions in its forecast and analysis of future needs. The Regional Development Framework is based upon a number of development principles. The first development principle stated in the Regional Development Framework is similar in its intent to the legislative declarations of the Municipal Annexation Act and the Colorado Land Use Act; "Compact urban development should be encouraged in order to minimize the cost and maximize the benefits of providing public services and to ensure efficient utilization of land."(27)
In preparing the Regional Development Framework DRCOG has asked all member municipalities of the Denver region to submit what are called Planned Urbanization Areas (PUA's) to assist in depicting year 2010 growth expectations. The process is similar to one in California where the state accepts municipal growth plans and allows growth (annexation) that is consistent with these approved plans. Expansion by California cities into their designated growth areas is approved by a boundary control commission.
In analyzing the year 2010 plans of Denver region cities and counties, DRCOG develops a composite of future growth plans. This is a justified role for DRCOG as a regional planning agency, but DRCOG should change its process of assigning PUA areas to municipalities. A competition has developed where
neighboring cities have staked competing claims to overlapping growth areas. In attempting to designate growth areas to cities, DRCOG may be fueling annexation wars. If DRCOG could accomplish the task of developing a regional plan and not create substantial local competition for territory, then the prospect of misguided annexations might be partially avoided. However a foreseeable result of this process might be extensive flagpole annexations as individual cities seek to justify claims to growth areas they designate. Competing cities would do the same in the spirit of manifest destiny. Poundstone II has imposed such limitations to municipal annexation methods that the flagpole option will continue to be utilized. Extensive use of flagpole annexations tend to undermine the sound and orderly growth patterns that good planning dictates.
According to Larry Mugler, Director of Development Services at DRCOG, the present regional planning process involving PUA's is an open forum in which these conflicts may be discussed. According to Mugler, the growth of the region over time will create these conflicts inevitably and DRCOG is the proper forum in which to address them.(28) Bringing the matter to the attention of the region's cities at this time for consideration may have some benefit. If annexation battles over disputed territories do not commence, then DRCOG may have succeeded in its process of developing a regional plan. If annexation battles do not erupt., it is possible that annexation laws might be further limited as a result.
Counties and their abilities to provide services, approve developments, and perform urban functions have been previously discussed within this report. Historically counties were intended to provide some services and act as an arm
of the state.(29) Up until the 1950's, counties in Colorado and specifically around Denver performed services more commonly expected of a county. Then with the onset of large highway projects being funded and new federal mortgage changes, development pressures came to the counties.
To be supportive of growth, county commissioners in nearly all Denver region counties have approved numerous and substantial developments. As previously examined in this report, once water, sewer and zoning are in place in unicorporated areas, there is little incentive for unincorporated property owners to annex to a city. This development approval process by metro area counties creates an urban fringe and leapfrog growth beyond the urban edge. Coupled with the strong limitations of Poundstone II, the counties' development patterns have nearly eliminated some cities' ability to annex effectively. As it turns out the counties are then shaping the future of the region by pursuing economic growth at the expense of sound planning. Arapahoe, Douglas, Jefferson, and Adams counties all have substantial amounts of growth occurring outside of city boundaries. Whether it be prestige or added county tax revenues, all of these counties pursue economic development actively irrespective of whether it has positive or negative impacts on the counties' cities.(30) Over all, the counties benefit if development occurs anywhere in the county inside or outside of cities, yet in many areas competition exists between the county and its cities for growth.
A striking disimilarity exists between these four suburban counties and Boulder county. (Denver as a county for regional comparison purposes is not included because it is entirely incorporated as a result of Poundstone I). Boulder County is located in the northwest portion of the Denver region and is seven hundred and fifty square miles in size, two-thirds of which are mountainous. During the 1960's and 1970's Boulder County, including its incorporated places,
were growing even more rapidly than the Denver region as a whole. Growth became a strong concern of residents of the county and a comprehensive plan was adopted in 1978. This comprehensive plan contained numerous goals and policies which stated that growth should not occur in unincorporated areas of the county, rather growth would be directed towards cities where urban services would be provided. The idea of directing growth towards the cities was not an anti-growth action, but an action intended to maintain Boulder County's high amenity level, and in turn make Boulder County more attractive to growth. (31)
The implementation of Boulder County's Comprehensive Plan has created an environment where the city-county competition factor does not exist. Nearly 25,000 acres of the county were down zoned to limit densities to no more than two dwelling units per acre. Significant opposition came from the real estate industry to this aspect of the plan. This opposition was a result of the virtual halt of speculative sales in unincorporated areas of the county.
The significance of this example is that the land use policies and decisions of counties greatly influence municipal growth patterns and annexation In Boulder County, there is not great urgency to annex in order to control land use. The county decided it would not provide urban services to sponsor development and that has left Boulder County cities without the development setting that forces annexation for tax purposes or land use control.
Cities of course, are at the heart of the annexation issue. Most cities in the Denver region that are not landlocked engage in annexation activities. Rapid metropolitan growth, tax base competition, prestige, DRCOG, and Poundstone II have all combined to make annexation very competitive. As a result most cities are involved in annexation programs. Annexation programs and patterns vary
with the policies of each municipality. In some municipalities annexation is not of a high priority and annexations may occur occassionally upon property owner request. In other situtations a municipality may actively engage in and pursue annexation. One such city is Aurora.
Annexation and urban growth have a direct relationship. The more rapid and dynamic the urban growth, the more numerous and frequent are annexations. During the 1970's Aurora grew very rapidly. During that period of high growth the Aurora City Council became concerned that growth related to annexations would out-strip the available resources of the city including water, roadways and other services. This concern led to the establishment of Aurora's "Blue Line" policy. The Blue Line was an imaginary line beyond which the city would not annex or extend city services. In 1975 the Blue Line was coterminus with Aurora's boundaries. The Blue Line policy was successful in that city services were extended in logical and efficient patterns. Growth was of an infill nature rather than leapfrogging outward.(32)
In 1984 significant pressure to develop beyond the Blue Line boundary led to a re-evaluation of that policy. After preparing a plan for a one hundred fourty square mile planning and development area, Aurora has rescinded the Blue Line policy in part, to address large scale developments outside of Aurora's service area sponsored by county zoning approvals and metropolitan districts. It was feared that Aurora would have no control over the quality and intensity of growth outside the city and that the city would be cut off from its logical growth patterns.(33)
Since that time Aurora has been annexing actively if not aggressively. At one point in early 1986, twenty two annexations were in process and had preliminary approval from the Aurora City Council.(34) Nicole Stoner, Deputy City Manager
for Aurora, indicates that Aurora's active annexation policy puts Aurora in a much stronger negotiating position with developers planning projects at the city's periphery.(35)
Aurora is probably the most active municipality in the state at this time in terms of annexation. One recent annexation involved 4200 acres near the Front Range Airport between Bennett and Watkins. The Aurora city administration believes this annexation would provide the city with a multi-million dollar tax base. This annexation, Quail Run, is thirteen miles east of the current Aurora City boundaries.(36)
The actions of cities have an imapct on urban growth and annexation laws. Generally it is Poundstone II that created the flagpole method of annexation out of necessity due to increased limitations on the methods of annexations. The method of lagpole annexation, when it is used to neutralize the restrictive limitations of Poundstone II is defensible. The method of flagpole annexation is not so easily defensible when it is used impulsively by cities to acquire tax base enhancements. It is likely that the reactive Colorado general assembly may consider limiting flagpole annexations.
The Colorado Chapter of the American Planning Association
The Colorado Chapter of the American Planning Association (COAPA) is not a governmental entity, but its membership represents planning professionals throughout the state. The issue of annexation to COAPA is important in that it directly relates to planning activities. The Colorado APA Chapter felt strongly enough about Colorado annexation laws and policies to sponsor a seminar in January of 1986 aimed at informing Colorado APA Chapter members of state and local policies involved in annexation and to establish a dialogue between the various parties involved in annexation. The seminar further
provided a perspective of the attitudes of cities, counties, the state and other entities regarding annexation.
While sponsoring the seminar, the Colorado Chapter of the American Planning Association has yet to issue a formal policy position paper on the issue of Colorado annexation. That does not mean that the Colorado Chapter of APA has been silent on the issue of annexation. The Colorado Chapter's APA Legislative Committee has addressed the most recent annexation legislative initiative, Senate Bill 177. It seems that the COAPA may be considering issuing an annexation policy in the near future. The Colorado APA Legislative Committee has prepared a draft position paper on annexation which expressed the following positions:
- "Further restriction of annexation laws will lead to a proliferation of special districts,
- The Colorado legislature has an anti-urban bias,
- The Colorado legislature sees annexation carried out in a manner that emphasizes competition between cities, ignoring the needs of unincorporated citizens and traditional land use planning concepts,
- Many cities are grabbing parcels that generate significant sales tax revenues,
- Many unincorporated citizens have a basic opposition to urban encroachment and this opposition is expected to find a ready audience in the Colorado legislature,
- Further restraint to annexation law is unnecessary and undesirable.
It would impede the abilities of cities to plan, guide and finance sound urban development,
- There has not been any evidence that current annexation law has resulted inefficient and unsound development patterns,
- The Colorado APA Chapter should resist any substantive modification to Colorado annexation law."(37)
The Colorado APA Chapter's draft position paper is understandable in that it appears to be prepared in response to S.B. 177 (aimed at limiting annexation) and the objective of the proposed policy would be to halt any further
limitations being placed upon Colorado annexation law. This draft policy paper accurately points out that the Colorado legislature is basically anti-urban.
The policy of the Colorado APA Chapter should point out that recent limitations to Colorado annexation law has led to inefficient and unsound development patterns. It is precisely the limitations to the Municipal Annexation Act by Poundstone II which is creating the use of annexation methods that are viewed as objectionable.
The Colorado Municipal League
The Colorado Municipal League is an organization functioning on behalf of the interests of cities within Colorado. The official position of the Colorado Municipal League (CML) on annexation is to resist any change in annexation law. League officials share the same general viewpoint and concerns pertaining to Colorado annexation laws that the COAPA does. The overwhelming sentiment of the Colorado legislature is not strongly supportive of cities and any legislation involving annexation is as likely as not to result in further limitations to Colorado annexation law. The perceived abuses of Colorado annexation law by annexing municipalities coupled with strong unincorporated citizen and county influences make initating annexation legislation a risky proposition to Colorado cities. Given these circumstances, CML does not have an official position on Colorado annexation law except to oppose proposals which would limit it further.(38)
Special districts have been covered in depth in a previous section of this report. Special and metropolitan districts must, however, be added to the list of entities related to Colorado annexation law. Put very simply, the existence of special districts in urban fringe areas can be extremely detrimental to
sound planning and inhibit annexation. Special districts promote city/county competition and allow land use decisions to be made by the private sector.
Special district initiatives appear to be the antithesis of annexation initiatives in the Colorado legislature. They tend to fragment government more than consolidate. They tend to be less responsive and accountable than directly available. The political lobby of special districts is substantial. Numerous attempts at special district reform have been attempted since 1955. Over that period there has been little if any substantive change or reform to special districts.(39)
The first lesson we have to learn is that a city exists, not for the passage of motor cars, but for the care and culture of men.
There are no easy, quick solutions to the dilema of annexation and how it is practiced to the detriment of sound planning. This report has documented that there are several different influences combining to create the setting of annexation at the expense of planning. These influences have impacted the issue over time and have created the conditions discussed in this report in an evolutionary manner. That process has taken years and will not be corrected in a brief period of time.
The solutions proposed to the problems of Colorado annexation law are not overly complex. A lack of complexity will not make the solutions any easier for some individuals to accept as the solutions propose some substantial changes and modification to the way planning and annexation is carried out within the state. Probably no one soution, if implemented by itself can correct the overall problem. However, the implementation of a few solutions would go a long way towards improving planning activities in and around Colorado cities.
To be practical, one must understand that special districts are a function of Colorado growth that will remain regardless of what anyone does. To attempt to severely limit or abolish special districts is not feasible given the strength
of special district influence in the general assembly. But, subtle modifications in the state laws allowing formation, control and operation can accomplish a great deal in changing the impact that special districts have on a city's ability to annex and plan. Special districts will continue to play an important role in Colorado's future by functioning as funding mechanisms, absorbing the upfront infrastructure costs necessary to support continued growth and development.
State laws governing special districts should be amended to provide for dissolution of special districts upon fulfillment of their debt obligations or upon annexation by a municipality. It is suggested that dissolution not be mandatory in either case but that it be discretionary to the annexing municipality if that municipality selects to undertake and provide the service offered by the special district. The intent is to continue to allow special districts to function as funding structures for infrastructure financing but to make that structure temporary until another government can take over the duty of providing the service.
Another aspect of proposed modifications to special district laws would enable nearby and adjacent muncipalities to have a role in approving or disapproving the formation of special districts in the expected growth areas of those municipalities. Proposed formation of special districts in areas where another entity could currently or within a reasonable period of time provide services is a consideration now allowed only to countries. Similar to special district reforms underway in Texas, the Colorado special district law should have provisions which allow city, county, and state approval/disapproval provisions.(40)
Finally, governing bodies of municipalities must watch closely for the formation of special districts near their borders. Formation of special districts can and should be prevented when it can be proven that service will be provided within a reasonable amount of time by another jurisdiction.(41)
Intergovernmental Agreements (IGA'S)
Intergovernmental Agreements are nonbinding contractual type agreements that allow different governmental jurisdictions to deal with one another in terms of service or operation. Traditionally IGA's were used to purchase and provide a specific service from one jurisdiction to another. Colorado law presently allows and provides that local governments may enter into contractual types of agreements with one another.(42)
To address the aspects of city-county development competitions, impetuous flagpole annexations and special districts promoting urban fringe growth, it is suggested that growing municipalities actively negotiate IGA's with the other forms of local government that are most likely to create influences in that city's growth area. Such IGA's may address land use planning, zoning and subdivision approvals and most importantly annexation.(43) Establishing policies for these matters jointly, by cities and counties for example, will create a sound planning environment for development occurring adjacent to and outside of the city. Provisions establishing timely and programmed annexation will substantially reduce incidences of planning after annexation. Agreements of this nature are not uncommon and are beginning to be widely utilized to assist in addressing areas of mutual concerns by two or more governments. Fort Collins and Larimer County entered into an "Intergovermental Agreement for the Fort Collins Urban Growth Area" in 1980. This IGA specifically addresses land use and annexation and serves as an illustration of what can be achieved towards the goal of sound planning through the use of IGA's.
Another partial solution to the annexation planning dilema may be to create a Regional Service Authority aimed at managing and providing large scale services to the metropolitan areas. Several regional functions already exist such as water and sanitation. The Urban Drainage and Flood Control District is already a regional agency functioning in the Denver area. A Regional Service Authority might undertake those functions plus others such as solid waste, cultural and health facilities, and regional planning. The Denver Regional Council of Governments existing regional planning functions could be expanded to encompass these other services. Be expanded to encompass these other areas. Creation of a Regional Service Authority must be undertaken either by popular initiative or legislation.(44) The prospect of regional government has been defeated twice previously by Denver area voters. Hopefully the Colorado electorate can be convinced that regional land use planning would have a very beneficial affect on directing and controlling urban growth. A more well directed regional growth plan and policy will lessen competition among cities and the annexations that result from that competition.
State planning in Colorado is nonexistant and several options exist to better implement planning for the high growth areas of the state. The first and simplest means of developing and implementing planning from the state level would be to add staff and budget to the both, the Colorado Land Use Commission and the State Planning and Budgeting Office. The very substance of this report and the problems that it examines documents that there is sufficient work and tasks to address from the standpoint of state planning.
After staffing planners within the state government is accomplished serious consideration should be given to the undertaking of new legislation aimed at
managing the state's expansive growth. Urban fringe development sparking annexation battles was exactly what happened between Salem and Portland Oregon.(45) As a result, Oregon subsequently created the Land Conservation and Development Commission and established statewide planning goals and guidelines. Strong growth pressures in Florida at the urban fringe led to the passage of The Florida Comprehensive Plan Act and The Growth Management Act.(44)
Both Florida and Oregon state planning programs have developed goals which local comprehensive plans must address and both states require that local plans be approved at the state level. The underlying premise of state approval is that local plans will not conflict in either territorial claim or forecasted land use patterns. Such a process in Colorado would eliminate cities annexing to control land use and promote sound planning while allowing annexation to proceed at a rational orderly pace.
The effects of Poundstone II must be fully explained to the Colorado general assembly and electorate. The effects of Poundstone II have resulted in annexation patterns that defy sound planning principles. Amendment to the Colorado Municipal Annexation Act should be accomplished returning the Act to its pre-Poundstone II form. Accomplishment of this will allow cities to proceed with well planned, orderly annexation programs. Returning to the original provisions of the Act will not completely eliminate use of flagpole annexations but it will reduce them in number to circumstances where the method is justified. The misguided intent of attempting to accomplish growth management through Poundstone II has had a tragic impact on Colorado cities and their attempts to plan and grow accordingly. Abolishing the limitations created by Poundstone II will assist Colorado cities in preparing for the state's future as growth continues into the twenty first century.
Of the solutions proposed, one can be utilized immediately, that of intergovernmental agreements. IGA's can help the annexation planning problem become less severe but will not solve it. Since the option of using IGA's presently exists it is recommended that it be utilized as frequently as possible.
Other solutions proposed require action by the Colorado general assembly. The assembly's past nonurban sentiment makes it difficult to envision the other solutions offered in this report being implemented in the immediate future. Hopefully our Colorado lawmakers will begin to realize that their efforts in dealing with the growth facing Colorado must be addressed with a mind towards planning. Further limitations to annexation law will only continue to exacerbate existing growth management problems. Proactively amending annexation and special district laws will at least provide the state's urban areas an opportunity to effectively practice sound planning while the aspects of regional control and state planning are being considered.
1. C & G Merriara Co. "The Merriam Webster Dictionary", New York, 1974, p. 59.
2. Denver Regional Council of Governments (DRCOG), "Regional Growth and Development Plan for the Denver Region", Denver, 1978, pp. II-9.
3. Denver Regional Council of Governments (DRCOG) "Regional Development Framework", Denver, 1985, p. 6.
4. Denver Regional Council of Governments (DRCOG), "Regional Growth and Development Plan for the Denver Region", Denver, 1978, pp. 11-11
5. Denver Regional Council of Governments (DRCOG) "Regional Development Framework", Denver, 1985, p. 6.
6. Ibid, p. 9.
7. Colorado Revised Statutes (C.R.S.), 32-1-104.
8. Ibid, 32-1-107.
9. Ibid, 32-1-202.
10. Cody, Thomas P., "Special Districts in Colorado; an Analysis of Their Role in Local Government", Masters Thesis, University of Colorado at Denver, 1984, p. 33, Also Colorado Revised Statutes 32-1-102.
11. Kelly, Eric Damian, "Piping Growth: The Law, Economics and Equity of Sewer and Water Connection Policies", Land Use Law, July 1984, p. 3.
12. Cody, Thomas P., "Special Districts in Colorado; an Analysis of Their Role in Local Government", Masters Thesis, University of Colorado at Denver, 1984, p. 51.
13. Tepe, Edward, Boulder County Land Use and Planning Director, Personal Interview, May 27, 1986, Boulder, CO.
14. Brown, James H.; Phillips, Robyn Swaim; and Roberts, Neal A.; "Land Markets at the Urban Fringe", Journal of the American Planning Association, April 1981, p. 132.
15. Ibid, p. 138.
16. Georgia Municipal Association, 1'A Manual on Georgia Annexation", 1965 and American Municipal Association, "Basic Principles For a Good Annexation Policy", 1960.
17. Ayres, Douglas W., and Whorton, Leonard L., "Annexation: The Forgotten Answer to Metropolitan Services", Public Management, XLVII, August 1965, pp. 197-198 as reprinted by the Colorado Municipal League in "Colorado Annexation Guide", April 1966, p. 2.
18. Colorado Revised Statutes, 31-12-102.
19. Ibid, 31-12-105.
20. U.S. Supreme Court, as quoted by Mr. Gerald Dahl, Colorado Municipal League, "Annexation Under Colorado Law", 1985, pp. 4-5.
21. Colorado Municipal League, Position Paper, "S.B. 177; Limiting Municipal Annexation Powers", 1985 p. 1.
22. Colorado Revised Statutes, 24-65-102.
23. Minger, Terry; Deputy Chief of State for Governor Lamm, speaking to the Colorado Chapter of the American Planning Association, "Colorado Annexation Policy; A View From The Governor's Office", January 24, 1986, Aurora, CO.
25. Miller, Carl, "Metro Hand Called In Growth Game", The Denver Post,
March 16, 1986.
27. Denver Regional Council of Governments (DRCOG) "Regional Development Framework", Denver, 1985, p. 4.
28. Mugler, Larry, Director of Development Services, Denver Regional Council of Governments (DRCOG), Personal Interview, May 21, 1986.
29. Brooks, Robert; Chairman, Arapahoe County Board of Commissioners, Speaking to the Colorado Chapter of the American Planning Association;
"Colorado Annexation Policy; A View From the County", January 24, 1986, Aurora,
30. Stoner, Nicole, Deputy City Manager, City of Aurora, Colorado, Personal Interview, May 8, 1986.
31. Tepe, Edward, Boulder County Land Use and Planning Director, Personal Interview, May 27, 1986, Boulder, CO.
32. Mizner, Frank; Chief Planner, City of Aurora; "Watch Out Strasburg, Here Comes Aurora! or How Aurora Doubled in Size Without Indigestion", The Neighborhood Planning Newsletter, City of Aurora, Colorado, May 1986, p. 1.
33. Ibid, p. 2.
34. McBean, Bill, "Aurora Puts Brakes on Annexations", The Denver Post, February 2, 1986.
35. Stoner, Nicole, Deputy City Manager, City of Aurora, Colorado, Personal Interview, May 8, 1986.
36. McBean, Bill, "Aurora Puts Brakes on Annexations", The Denver Post, February 2, 1986.
37. Colorado Chapter of the American Planning Association, APA Legislative Committee, "Draft Position Paper on Annexation", November 5, 1985, pp. 2-3.
38. Dahl, Gerald, General Counsel for the Colorado Muncipal League,
Personal Interview, February 28, 1986.
39. Cody, Thomas P., "Special Districts in Colorado; an Analysis of Their Role in Local Government", Masters Thesis, University of Colorado at Denver, 1984, p. 33.
40. Mugler, Larry, Director of Development Services, Denver Regional Council of Governments (DRCOG), Personal Interview, May 21, 1986.
41. Tepe, Edward, Boulder County Land Use and Planning Director, Personal Interview, May 27, 1986, Boulder, CO.
42. Colorado Revised Statutes, 29-1-103, 29-1-203.
43. Larimer County, City of Fort Collins, "Intergovernmental Agreement for the Fort Collins Urban Growth Area", 1980, pp. 2-3.
44. Colorado Front Range Project, Front Range Futures; "Program to the Year 2000", 1981, p. 134.
45. Minger, Terry; Deputy Chief of State for Governor Lamm, speaking to the Colorado Chapter of the American Planning Association, "Colorado Annexation Policy; A View From The Governor's Office", January 24, 1986, Aurora, CO.
46. Stroud, Nancy E.; 0'Connel, Daniel W.; "Florida Toughens Up its Land Use Laws', Planning, January 1986, p. 12.
Ayres, Douglas, W. and Whorton, Leonard L., "Annexation: The Forgotten ANswer Answer to Metropolitan Services", Public Management, XLVII, August 1965, as reprinted by The Colorado Municipal League in "Colorado Annexation Guide", April, 1966.
Brooks, Robert; Chairman, Arapahoe County Board of Commissioners, speaking to the Colorado Chapter of the American Planning Association; "Colorado Annexation Policy; A View From the County", January 24, 1986, Aurora, CO.
Brown, H. James, Phillips, Robyn Swaim, Roberts, Neal A., "Land Markets at the Urban Fringe", Journal of the American Planning Association, April, 1981.
Cody, Thomas P., "Special Districts in Colorado; An Analysis of Their Role in Local Governments", Masters Thesis, University of Colorado at Denver, 1984.
Colorado Chapter of the American Planning Association, "Examining Colorado Annexation Policies", seminar, January 24, 1986.
Colorado Association of Municipal Utilities, "Issue Paper; Electrical Service to Municipal Annexations", Jan. 15, 1986.
Colorado Chapter of the American Planning Association, APA Legislative Committee, "Draft Position Paper on Annexation", November 5, 1985.
Colorado Front Range Project, Front Range Futures; "Program to the Year 2000", 1981.
Colorado General Assembly: House Bills 1018, 1131, 1132, 1232, 1233 and Senate Bills 28, 82, 177.
Colorado Municipal League, Position Paper "S.B. 177; Limiting Municipal Annexation Powers", 1985.
Colorado Springs, City of, Ordinance No. 81-50 "...Relating to Water Extension Policy", 1981.
Colorado, State of, Colorado Revised Statutes, Article 23, "Planning and Zoning, as amended, 1973.
Colorado, State of, Colorado Revised Statutes, Article 65, "Colorado Land Use Act", as amended, 1973.
Dahl, Gerald, Memorandum to File regarding "Annexation Materials", Colorado Municipal League, Feb. 7, 1986.
Dahl, Gerald, (General Counsel for the Colorado Municipal League), Personal Interview, February 28, 1986.
Denver Regional Council of Governments (DRC0G), "Regional Development Framework", Denver, 1985.
Denver Regional Council of Governments (DRCOG), "Regional Growth and Development Plan for the Denver Region", Denver, 1978.
Florida, State of, Committee Substitute for House Bill No. 287 "Growth Management Act" Section 163 of the Florida Statutes.
Florida, State of, House Bill 1338, "Comprehensive Plan Act" Section 186 of the Florida Statutes.
Georgia Municipal Association, "A Manual on Georgia Annexation", 1965 and American Municipal Association, "Basic Principles for a Good Annexation", 1960.
Graf, Thomas, "Special Districts Play Vital, Veiled Role", The Denver Post, May 4, 1986.
Iturreria, Julio G., (Planning Director for Douglas Councty, Colorado), Personal Interview, February 28, 1986.
Kelly, Eric Damian, "Piping Growth: The Law, Economics, and Equity of Sewer and Water Connection Policies", Land Use Law, July 1984.
Larimer County, City of Fort Collins, "Intergovernmental Agreement for the Fort Collins Urban Growth Area", 1980.
Mamet, Sam; "Double Taxation; Who Pays the Price", Colorado Municipal League, Colorado Municipalities, 1982.
McBean, Bill, "Aurora Puts Breaks on Annexations", The Denver Post, February 2, 1986.
Miller, Carl, "Metro Hand Called In Growth Game", The Denver Post, March 16, 1986.
Miller, Carl, "Voter's Concern About City Sprawl Runs High", The Denver Post, June 22, 1986.
Minger, Terry; Deputy Chief of State for Governor Lamm, speaking to the Colorado Chapter of the American Planning Association, "Colorado Annexation Policy; A View From The Governor's Office", January 24, 1986,
Mizner, Frank; Chief Planner, City of Aurora; "Watch Out Strasburg, Here Comes Aurora! or How Aurora Doubled in Size Without Indigestion", The Neighborhood Planning Newsletter, City of Aurora, Colorado, May 1986.
Mulger, Larry, Director of Development Services, Denver Regional Council of Governments (DRCOG), Personal Interview, May 21, 1986.
Oregon Land Conservation and Development Commission, "Statewide Planning Goals and Guidelines", Oregon Department of Land Conservation and Development, Sept. 1978.
Rider, Larry C., "Annexation Procedures After Poundstone II", memorandum as Attorney for the Town of Vail, 1983.
Schrader, Ann, "Cities in Adams County Gobble Up Land", The Denver Post, June 23, 1986.
Stoner, Nicole, Deputy City Manager, City of Aurora, Colorado, Personal Interview, May 8, 1986.
Stroud, Nancy E. and O'Connell, Daniel W., "Florida Toughens Its Land Use Laws", Planning, January 1986.
Tepe, Edward, Boulder County Land Use and Planning Director, Personal Interview, May 27, 1986. Boulder, CO.
Urban Land Institute, Urbanland, "Public/Private Cooperation: The Fort Collins Approach, 1981.