Opinion
No. 72-205
Decided May 30, 1973. Rehearing denied June 19, 1973. Certiorari granted September 10, 1973.
From judgment dismissing petition to disconnect parcel of unimproved land from respondent city, petitioners appealed.
Reversed
1. MUNICIPAL CORPORATIONS — Right to Sever — Territory — From City — Continuing Right — Estoppel — Not a Defense. Where the right to sever territory from a municipal corporation is a continuing right, estoppel cannot be asserted as a defense.
2. Statute — Conditions For Severance — Established — Mandatory — Judgment for Petitioners — Notwithstanding — City — Not Incorporated — Three Years. Statute providing for severance of land from city if tract to be severed contains 20 or more acres, is contiguous to border of city, has not been platted into lots, and if all taxes and assessments on the land have been duly paid, but not allowing severance if city has maintained streets, lights, and public utilities on the land for three years is a mandatory statute; and where petitioners established that they met all requirements of the statute they were entitled to judgment, notwithstanding that respondent city had not been incorporated for three years at time petition was filed.
Appeal from the District Court of Jefferson County, Honorable George G. Priest, Judge.
John A. Criswell, Gary Patterson, Edward M. Bendelow, for petitioners-appellants.
Gorsuch, Kirgis, Campbell, Walker and Grover, Charles E. Rhyne, Philip E. Riedesel, for respondent-appellee.
Division II.
This is an appeal from a judgment dismissing a petition to disconnect a parcel of unimproved land from the City of Lakewood. The petition was filed by Loretto Literary and Benevolent Institution and Von Frellick Associates, Inc., (Petitioners) the owners of the land, pursuant to the provisions of C.R.S. 1963, 139-11-1 et seq. (§ 139-11-3 amended in 1967 Perm. Supp.). The court, in dismissing the petition, sustained two of the defenses asserted by the city, namely: that the petitioners were estopped from petitioning for disconnection, and that the provisions of 1965 Perm. Supp., C.R.S. 1963, 139-21-18, control and since Lakewood had been incorporated for less than three years the section could not be invoked against the city and was inapplicable. We reverse.
Under the terms of C.R.S. 1963, 139-11-1 et seq., a tract of land may be disconnected from the corporate limits of a city if the tract contains 20 or more acres, is owned by the petitioners, is contiguous to the border to the city, and has not been platted into lots and blocks; and if all taxes and assessments lawfully due on said land are fully paid up to the time of filing the petitions. The act further provides that if the city has maintained streets, lights, and other public utilities for a period of three years through or adjoining to the tract, the owners of the land "shall not be entitled to the provisions of" the act. The statute sets forth other conditions not material to this appeal.
It is undisputed that the above requirements have been met and that the City of Lakewood has not provided the listed services for a period of three years. However, the city assets that because of the following facts, the petitioners are estopped from disconnecting the land from the city.
The parcel sought to be disconnected contains 22.17 acres and is part of a tract containing approximately 200 acres that was annexed to Lakewood in three separate annexations. The area was known as Academy Office Park. Subsequent to the annexations, city officials and the petitioners had many discussions relative to its development, and the city expended considerable time and money in surveys, street planning, traffic patterns, and related matters. At the request of the petitioners, the city deferred zoning most of the area. The trial court held that "petitioners by their action in requesting the city to defer the zoning are estopped to petition the Court to disconnect based on the fact that the city has not maintained roads and furnished public utilities to the area." This ruling is erroneous for two reasons.
[1] First, where, as here, the right to sever territory from a municipal corporation is a continuing right, estoppel cannot be asserted as a defense. Town of Greenwood Village v. Savage, 172 Colo. 217, 471 P.2d 606; Town of Greenwood Village v. Heckendorf, 126 Colo. 180, 247 P.2d 678; and Reichelt v. Town of Julesburg, 90 Colo. 258, 8 P.2d 708. The city contends that here it is asserting an equitable estoppel and that the estoppel in the cited cases was not of an equitable nature. However, we see no significant difference between the present case and Heckendorf, supra, wherein it is stated:
"The proceeding instituted by Heckendorf is statutory, and the rights created by this statute are continuing ones, subject to any liabilities to which the land may have been obligated prior to withdrawal thereof. An estoppel does not arise against the rights of Heckendorf to disconnect his land upon the ground that he at one time consented to its inclusion within the town, if he brings himself within the provisions of the statute which authorizes disconnection." (Emphasis supplied.)
Second, the trial court in its ruling misconstrued petitioners' basis for disconnection. Contrary to the court's statement, petitioners are not seeking disconnection because of the city's failure to maintain roads and utilities in the area.
Likewise although the court was correct in ruling that 1965 Perm. Supp., C.R.S. 1963 139-21-18 was inapplicable, it was error to dismiss the petition on that ground. That section provides that land can be disconnected three or more years after annexation if the municipality does not, upon demand, provide city services on the same general terms and conditions as the rest of the city receives.
[2] Clearly, petitioners could not qualify for disconnection under this latter statute since their land had not been annexed for three years, and the city had not been in existence for that period. However, petitioners did not seek disconnection under this section. They asserted their right to disconnect under C.R.S. 1963, 139-11-1 et seq. Their allegation that the specified services had not been supplied for a period of three years, and evidence in support thereof merely established that petitioners were "entitled to the provisions of" sections 139-11-1 et seq. See 1967 Perm. Supp., C.R.S. 1963, 139-11-3. Petitioners, having established that they met all the requirements of C.R.S. 1963, 139-11-1 et seq., were entitled to a judgment granting their petition as to the 22.17 acre parcel. Greenwood v. Heckendorf, supra. As stated in Town of Edgewater v. Liebhardt, 32 Colo. 307, 76 P. 366.
"The statute is, in our opinion, mandatory; and if, upon the trial, it appears that the conditions required to be established by the statute have been established, it becomes the duty of the court to enter a decree disconnecting the territory from the city of town."
Petitioners also petitioned for disconnection of another parcel containing 27.67 acres. That petition was also denied. However, no appeal was taken from that part of the judgment.
The judgment denying the petition to disconnect the parcel containing 22.17 acres, is reversed and the cause remanded with directions to enter judgment granting the petition to disconnect said parcel from the City of Lakewood.
JUDGE DWYER and JUDGE ENOCH concur.