November 17, 2014

Board of Trustees
Town of Granby
P.O. Box 440
Granby, CO 80446
Via Email and USPS
Re: Notice of Public Meeting Considering Annexation Ordinance pertaining to Lot 9,
Highlands Subdivision
Dear Honorable Members of the Granby Board of Trustees:
This letter is on behalf of my client, MMK Limited, LLC, d/b/a Grand Life Solutions and its
principal Kevin Speier (collectively, MMK), in conjunction with the property owner, Mr. Teddy
Kellner, represented by Mr. Ron Stern.
The Town of Granby (Granby) is seeking to annex Lot 9, of the Highlands Subdivision, of Grand
County (Lot 9 or Property) as set forth in the recent Notice of Public Meeting Considering
Annexation Ordinance (Proposed Ordinance). It would appear as if Granby believes this
annexation is lawful pursuant to Article II, Section 30 of the Colorado Constitution and the
Municipal Annexation Act of 1965 (C.R.S. 31-12-101, et seq. the Act).
However, Granbys position is erroneous as a matter of law, as follows: (1) Lot 9 is not an
enclave pursuant to both the Colorado Constitution and the Act; (2) annexation prerequisites
found in Colo. Rev. Stat. 31-12-104 are unmet; (3) Granbys actions will be considered a
taking, as a license is a vested right; and, (4) any attempt to annex the Property is an abuse of
discretion done in bad faith, and targeting a specific individual and/or business, which is patently
unlawful. Each issue will be addressed in turn.
i.

The Property is not an enclave; it is an enclave within an enclave.

The Property that Granby is seeking to annex does not meet the statutory or constitutional
requirements provided under Colorado law pertaining to enclave annexation as it is not an enclave,
it is merely surrounded by property that may be considered an enclave.
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Pursuant to Colo. Rev. Stat. 31-12-106(1), a municipality can annex an unincorporated area of
land that is contained within the boundaries of a municipality, although such annexation must
remain in accordance with the Colorado Constitution section 30(1)(c) of Article II. This section of
the Colorado Constitution specifically addresses enclave annexations:
(1) no unincorporated area may be annexed to a municipality unless
one of the following conditions first has been met.:

(c) The area is entirely surrounded by or is solely owned by the

annexing municipality.
Colo. Cont. art. II, 30(1)(c).
Further, an enclave is an unincorporated area of land entirely contained within the outer
boundaries of the annexing municipality. Colo. Rev. Stat. Ann. 31-12-103. The law requires
that any area that is to be deemed to be an enclave for purposes of annexation by a municipality
must either be entirely surrounded by or solely owned by the annexing municipality. Colo. Rev.
Stat. 31-12-106(1); Colo. Const. art. II, 30. Finally, the plain meaning of unincorporated
area pertains to the specific areas that are being considered for annexation. See Cesario v. City of
Colorado Springs, 616 P.2d 113, 117 (Colo. 1980) (pertaining to unilateral annexations provided
in C.R.S. 31-12-106(2) which was subsequently superseded by statute as put forth in Bd. of
County Comrs of County of Arapahoe v. City of Greenwood Village, 30 P.3d 846, 849 (Colo.
App. 2001); but, the dicta pertaining to unilateral takings is left untouched and Cesario clearly
states; [f]or the purposes of unilateral annexation, the plain meaning of unincorporated area
cannot logically include areas which are not being considered for annexation or areas which have
already become part of the annexing municipality.) See Cesario, 616 P.3d at 117.
As a basis under the enclave annexation statute, Granby appears to be asserting that the Property
is surrounded by the annexing municipality; and therefore, the Property is an enclave, although the
Property is actually a lone lot in the middle of other unincorporated real property lots that may or
may not be an enclave themselves. See Exhibit A1.
Simply put, the Property cannot be an enclave because the surrounding area is all unincorporated
real property and has no association with the annexing municipality. Lot 9 is not entirely
surrounded by land owned or controlled by Granby. Consequently, Granbys assertion that Lot 9
is an enclave fails, as it is unsupported and erroneous.
ii.

Lot 9 does not fall within the requirements of Colo. Rev. Stat. 31-12-104 for
annexation.

Exhibit A is obtained from the Grand County Parcel Viewer site which can be found at
http://gcgeo.maps.arcgis.com/apps/Solutions/s2.html?appid=8ab1821c130f4d3a858dbd49494365a9. This site
provides detailed information pertaining to Lot 9 and all surrounding lots, which are all conclusively privately
owned.

Colo. Rev. Stat. 31-12-104 again points to the Colorado Constitution for guidance on the
propriety of annexation of unincorporated areas. Outside of the aforementioned errors in Granbys
assertions pertaining to the Colorado Constitution regarding enclaves (and C.R.S. 31-12-106), if
Granby is seeking annexation based on a theory of one-sixth contiguity, this contention will be
equally erroneous. See C.R.S. 31-12-104(1)(a).
Specifically,
an area is eligible for annexation if the governing body, at a
hearing as provided in section 31-21-109, finds and determines:
(a) That not less than one-sixth of the perimeter of the area proposed to
be annexed is continuous with the annexing municipality
Caroselli v. Town of Vail, 706 P.2d 1 (Colo. App. 1985).
Colorado case law has applied the one-sixth contiguity requirement in both enclave annexations,
and non-enclave annexations. See generally, Sinclair Marketing, Inc. v. City of Commerce City,
226 P.3d 1239 (Colo. App. 2009); Bd. of County Commrs of County of Arapahoe v. City of
Greenwood Village, 30 P.3d 846 (Colo. App. 2001). Upon information and belief, Lot 9 is not
one-sixth contiguous, as required by law. See Exhibit A. Thus, Lot 9 does not meet the requirements
put forth in C.R.S. 31-12-104; and it cannot be utilized by Granby as a basis for annexation.
iii.

Granbys actions will be considered a taking, as a license is a vested right.

Upon a business receiving a state-issued license, the business has a vested protected property
interest. Prouty v. Heron, 255 P.2d 755,758 (Colo. 1953) (Where the state confers a license upon
an individual to practice a profession, trade or occupation, such license becomes a valuable
personal right.) C.R.S. 381101(3)(a) enforces constitutionally protected property rights and
prohibits the unconstitutional taking of private property without just compensation. JAM Rest.,
Inc. v. City of Longmont, 140 P.3d 192, 196 (Colo. App. 2006), (see C.R.S. 38-1-101(3)(a); see
also In re Estate of DeWitt, standing for the proposition that upon licensure the licensee has a
vested right. 54 P.3d 849, 854 (Colo. 2002)).
MMK has a property interest in its licensure provided by the State of Colorado. Since a state license
has been granted and the local license is pending, MMK has a vested right. If this vested right is
taken by virtue of Granbys planned annexation, the Granby will be required to provide just
compensation. In re Estate of DeWitti, 54 P.3d 849, 854 (Colo. 2002)); Prouty v. Heron, 255 P.2d
755, 758 (Colo. 1953); and, JAM Rest., Inc. v. City of Longmont, 140 P.3d 192, 196 (Colo. App.
2006). Granby unilaterally deciding to annex a portion of private real property for the sole purpose
of stopping a Colorado State licensed business is a taking, and just compensation would be
required. This figure will be substantial and will come from Granbys financial coffers. Such is
not a justifiable use of taxpayer funds.
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iv.

The Proposed Ordinance pertaining to annexation of Lot 9 is made in bad faith and
is an abuse of discretion.

Legislative judgments, such as ordinances of annexation, may be reviewed and found void where
there exists bad faith or fraud, or where a municipality has exceeded its jurisdiction or abused its
discretion. See Slack v. Colorado Springs, 655 P.2d 376, 379 (Colo. 1982) (stating that upon a
showing of bad faith or fraud legislative judgments are reviewable.); Caroselli v. Town of Vail,
706 P.2d 1 (Colo. App. 1985 (in an action where an aggrieved land owner disputed the towns
annexation of land that was not contiguous with the annexing town, the Colorado Court of Appeals
founds that the town exceeded its jurisdiction, and the annexation was invalid.)
Whether a municipality has abused its discretion in adopting an annexation ordinance depends on
whether: (1) the annexed parcel was eligible for annexation; (2) the council adhered to statutorily
prescribed procedures; and, (3) the annexation contributed to the well-ordered development of
the city. See Board of County Comrs, Adams County v. County of Denver, 548 P.2d 922,925
(Colo. App. 1976).
The Proposed Ordinance and actions of Granby are fraught with bad faith. Granby has specifically
targeted MMK, as it had previously sought to annex a different property occupied by MMK, and
immediately withdrew its annexation ordinance upon MMK moving from the property.
Additionally, the Proposed Ordinance does not operate uniformly against other unincorporated
properties and other neighboring or local businesses. Rather, it is apparent that the purpose of the
Proposed Ordinance is to put MMK out of business. This purpose is contrary to the purpose of the
Act, as the Act was not enacted to be used as a weapon; rather, it was codified to encourage the
natural and well-ordered development of municipalities of the state. City and County of Denver
v. Board of County Comrs of Jefferson County, 550 P.2d 862, 864 (Colo. 1976). It is clear that
Granby is not attempting to encourage the development of municipalities of the state; instead, it
is evident that its only incentive and purpose is to stop the lawful business of an entity outside of
the city limits. Accordingly, these actions are in bad faith.
The Proposed Ordinance is also an abuse of discretion, where Granby seeks to exceed its authority.
Specifically, the Property is not eligible for annexation as it does not meet the constitutional or
statutory requirements of the Act, as set forth supra. Additionally, the municipality is abusing its
discretion, as the Property is not appropriate for annexation and any vote to annex the Property
would be outside the bounds of the statutorily prescribed procedures.
Finally, if this property is annexed, it will not contribute to the well-ordered development of
Granby, but would merely cause one businesss operations to cease. Granby has wholly abandoned
the statutory procedures for annexation. And given the lack of contiguity of the Property, the
Proposed Ordinance cannot contribute to the natural and well-ordered development of Granby.
See Board of County Comrs, Adams County v. County of Denver, 548 P.2d 922,925 (Colo. App.
1976). Granby is acting in defiance of the statutes and the Colorado constitution.

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Given the above discussion of the erroneous and invalid Proposed Ordinance, MMK requests that
Granby immediately withdraw the Proposed Ordinance, and cease and desist from further
discriminatory, invalid, and unconstitutional harassment of MMKs private lawful business or
MMK will be forced to seek immediate judicial relief. Please respond accordingly by November
24, 2014.

Regards,
/s/Jean E. S. Gonnell
Jean E. S. Gonnell