Norby v. City of Boulder, s. 27386 and 27457

• Decision Date: 10 April 1978
• Docket Number: Nos. 27386 and 27457,s. 27386 and 27457
• Citation: 195 Colo. 231,577 P.2d 277
• Parties: Carl J. NORBY and Jeannine A. Norby, Plaintiffs-Appellants, v. CITY OF BOULDER, Boulder City Planning Board, Boulder Psychiatric Institute, Dr. Jeffrey L. Anker, Dr. Ned R. Harley, Dr. David Parrish, Dr. Robert P. Snead, Psychiatric Institutes of America, Geriatrics, Inc., Boulder Psychiatric Institute and Associates, Inc., P. I. A. Colorado, Inc., Dr. R. John Hallberg, and Atonement Lutheran Church of Boulder, Colorado, Defendants-Appellees.
• Court: Colorado Supreme Court

Page 277

577 P.2d 277

195 Colo. 231

Carl J. NORBY and Jeannine A. Norby, Plaintiffs-Appellants, v. CITY OF BOULDER, Boulder City Planning Board, Boulder

Psychiatric Institute, Dr. Jeffrey L. Anker, Dr. Ned R.

Harley, Dr. David Parrish, Dr. Robert P. Snead, Psychiatric

Institutes of America, Geriatrics, Inc., Boulder Psychiatric

Institute and Associates, Inc., P. I. A. Colorado, Inc., Dr.

R. John Hallberg, and Atonement Lutheran Church of Boulder,

Colorado, Defendants-Appellees.

Nos. 27386 and 27457.

Supreme Court of Colorado, En Banc.

April 10, 1978.

Rehearing Denied May 1, 1978.

Johnston & Margolis, P. C., Donald W. Margolis, H. Kenneth Johnston II, Broomfield, for plaintiffs-appellants.

Hutchinson, Black, Hill, Buchanan & Cook, Stanley A. Black, John A. Purvis, Walter L. Wagenhals, M. Mary Grumbine, Boulder, for defendants-appellees.

LEE, Justice.

Carl and Jeannine Norby, plaintiffs-appellants, own real property in Boulder County which lies within three hundred feet of the property line of two parcels of land located at 4390 Baseline Road. On December 30, 1975, a group of physicians, under the name of Boulder Psychiatric Institute, made application to the City of Boulder Planning Board for a "Special Review" to change the use of the 4390 Baseline Road property from that of a nursing home to that of a psychiatric clinic. On February 5, 1976, the Planning Board conditionally approved the application for the change in use of the 4390 Baseline property.

The Norbys filed two separate actions in the district court, challenging the Planning Board's decision. The first was a petition for certiorari under C.R.C.P. 106(a)(4). The second was for a declaratory judgment and injunctive relief. These actions were separately dismissed by the district court. In this consolidated appeal, we affirm both judgments.

Section 37-402(b) of the Revised Code of the City of Boulder provides:

"The applicant shall include with his application a list of owners of abutting properties and properties located within three hundred (300) feet of his property line along with the current addresses of all such owners. The planning department will notify such owners by regular mail that a special review use application has been filed and that they may review the application during the planning department's regular office hours. Such written notice shall also alert said owners to the fact that a public hearing will be held before the planning board at a later date for which only published notice is required and also the possibility of a further public hearing before the city council, again for which only published notice is required."

The applicant here provided a list of owners and addresses, and on January 21, 1976, the planning department mailed the requisite written notices. A notice was mailed to the Norbys at an address supplied by the applicant. The Norbys, however, had moved from that address to another Boulder address in August 1974, and had given notice of this change to the United States Post Office and to the Boulder County Treasurer. The planning department's letter to the Norbys was returned on January 22 marked "addressee unknown."

On February 5, 1976, after a public hearing, the Planning Board approved the application, subject to the fulfillment of certain conditions. The Norbys had no actual knowledge of, and did not participate in, this hearing.

The Norbys first learned of the application on February 18, by observing a sign posted on the 4390 Baseline property. They then telephoned the city planning department and found that the special review use had been approved. On February 23, the Norbys personally received the January 21 written notice from the city.

On March 5, 1976, the Norbys commenced a C.R.C.P. 106(a)(4) action in Boulder County District Court to review the Planning Board's decision. This action was dismissed on June 24, 1976, for failure to join persons needed for just adjudication of the dispute, as required by C.R.C.P. 19(a). The applicant for the special review use was Boulder Psychiatric Institute (BPI). Four physicians and a corporation were listed on the application as "persons in interest." Also shown on the application was the owner of the property, Geriatrics, Inc. Although BPI was a "not-yet-formed joint venture," the court held that the Norbys should have joined the "persons in interest" as parties to the lawsuit.

The Norbys filed a second action on May 25, 1976, for a declaratory judgment and injunctive relief. Even though the applicant and all "persons in interest" were joined as defendants, this lawsuit was dismissed on June 11 for lack of subject matter jurisdiction. The court held that if a plaintiff brings a timely lawsuit he must join in it all his claims for relief. Since the Norbys had not joined this action with their Rule 106 lawsuit, the court ruled that the action was barred by the thirty-day time limits in C.R.C.P. 106(b).

I. THE RULE 106 ACTION

The first action brought by the Norbys was designated a petition for certiorari under C.R.C.P. 106(a)(4). The City of Boulder and the Planning Board were the only parties joined as respondents. The petition alleged that the Planning Board abused its discretion in approving the special review use and requested that the district court remand the case for a rehearing.

This court has consistently held that failure to join all indispensable parties in a Rule 106 action within the time limit prescribed by the rule is a jurisdictional defect which requires dismissal of the action. C.R.C.P. 19; Civil Service Commission v. District Court, 185 Colo. 179, 522 P.2d 1231; Hidden Lake Development Co. v. District Court, 183 Colo. 168, 515 P.2d 632. The time limit for a C.R.C.P. 106(a)(4) action is that specified by applicable statute or, if there is none, then not later than thirty days from the final decision complained of. C.R.C.P. 106(b). Since the municipal zoning statutes, section 31-23-301, et seq., C.R.S.1973, do not specify a time limit for judicial review, the thirty-day time frame in C.R.C.P. 106(b) is applicable. ¹

The Norbys filed suit within thirty days of the Planning Board's decision. They did not, however, join the applicant nor any of the "persons in interest" within thirty days. The precise issue, then, is whether the district court properly found that those persons were indispensable parties to the Rule 106 proceeding.

C.R.C.P. 19(a)(2) defines one type of indispensable party as a person who "claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may * * * (a)s a practical matter impair or impede his ability to protect that interest * * *." This court has held that, under this section, an applicant whose request for rezoning is challenged in court is an indispensable party to the judicial proceeding. Hidden Lake Development Co. v. District Court, supra. Similarly, we have found that an applicant for a zoning variance is an indispensable party to an action challenging the approval of the variance. Hennigh v. Board of County Commissioners of the County of Boulder, 168 Colo. 128, 450 P.2d 73. An application for a special review use is closely analogous to an application for rezoning or variance. Thus, the rule laid down in Hidden Lake and Hennigh, holding the applicant to be an indispensable party, appears equally appropriate here.

The applicant for the special review use was BPI, which the trial court found was a "not-yet-formed joint venture." In addition, four individuals and a corporation were listed on the application as "persons in interest." Additionally, the application set forth the legal relationship between the applicant and parties in interest and the owner of the property, Geriatrics, Inc. The Norbys made no effort to join BPI nor any of the persons in interest. The Norbys argue that BPI could not have been joined because it was not a viable legal entity. However, the Norbys did not attempt to join BPI. Even if BPI could not have been joined, the Norbys should have alternatively named the "persons in interest" as parties to the action. Yet, the Norbys failed to name anyone except the City of Boulder and the Planning Board as respondents.

In sum, since the Norbys failed to join indispensable parties to the Rule 106 action within thirty days of the Planning Board's decision, the trial court properly dismissed the lawsuit.

II. THE RULE 57 ACTION

The Norbys brought the declaratory judgment action on May 25, 1976, 110 days after the Planning Board's decision allowing the special review use. The complaint asked for a C.R.C.P. 57 declaration that the Boulder special review regulations as applied in this case...