HomeMy WebLinkAbout2018CV125 - RORY HEATH V. CITY OF FORT COLLINS, ET AL - 009 - ORDER REGARDING DEFENDANT'S MOTION TO DISMISS1
District Court, Larimer County, State of Colorado
201 LaPorte Avenue, Suite 100
Fort Collins, CO 80521-2761
(970) 494-3500
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ROY HEATH,
Plaintiff,
v.
CITY OF FORT COLLINS CITY
COUNCIL and CITY OF FORT
COLLINS,
Defendants.
Case No.: 2018CV125
Courtroom: 5A
ORDER REGARDING DEFENDANTS’ MOTION TO DISMISS
I. INTRODUCTION
This matter comes before the Court on Defendants’, City of Fort
Collins City Council and City of Fort Collins, Motion to Dismiss (“Motion”).
Plaintiff, Roy Heath, filed his Complaint on March 13, 2018. Plaintiff
contends City of Fort Collins City Council exceeded its jurisdiction and
abused its discretion when it upheld the decision of the Fort Collins Planning
and Zoning Board regarding the Union on Elizabeth proposed project.
Defendants filed this Motion on April 10, 2018. Defendants argue that the
case should be dismissed due to Plaintiff’s failure to include an indispensable
party, the zoning applicant. Plaintiff filed his Response on May 1, 2018.
Defendants filed their Reply on May 8, 2018. The Court has reviewed the
Motion, Response, Reply and the complete file.
II. LEGAL STANDARD
“[A]n indispensable party has such an interest in the controversy’s
subject matter that a final decree between the parties cannot be made without
affecting the nonparty’s interested or leaving the controversy in such a
DATE FILED: May 14, 2018
CASE NUMBER: 2018CV125
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situation that its final determination may be inequitable to the nonparty.” Bittle
v. CAM-Colorado, LLC, 2012 COA 93, ¶ 14. “A person who is properly subject
to service of process in the action shall be joined as a party in the actions
if…he 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.” C.R.C.P. 19(a). In
proceedings to review an administrative decision granting a rezoning, zoning
variance, or special use permit, the applicant must be joined along with the
tribunal whose acts are to be reviewed. Thorne v. Board of County Com’rs of
Fremont County, 638 P.2d 69, 71 (Colo. 1981).
III. ANALYSIS
Defendants argue that Plaintiff’s claim should be dismissed due to his
failure to join an indispensable party. The Court agrees with the Defendants
that Colorado case law clearly demonstrates that the applicant owner of the
project is an indispensable party to this action. That applicant owner has a
right to protect its interest in the decision being challenged by Plaintiff.
However, the Court does not believe dismissing this action is the
proper response to Plaintiff’s failure to join an indispensable party in this case.
Colorado appellate courts have held that if there has been a failure to join a
necessary party, the court may allow plaintiff an opportunity to join that party
instead of dismissing the action. B.C., Ltd. V. Krinhop, 815 P.2d 1016, 1018
(Colo. App. 1991).
To address a couple of the points raised by the Plaintiff, the Court
agrees with the Defendant that the burden is on Plaintiff to include all the
appropriate parties affected in this action under C.R.C.P. 19, rather than on
non-parties to file a motion under C.R.C.P. 24 to intervene. The identity of
the applicant owner can be found from readily available public information
from the planning and zoning application itself, as well as news reports.
Additionally, Plaintiff’s reliance on footnote 6 of Tri-State Generation &
Transmission Co. v. City of Thornton, 647 P.2d 670 (Colo. 1982) is misplaced. That
footnote simply explains the amendment to C.R.C.P. 106 in 1981 that
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eliminated the requirement that a case be dismissed for failure to join
indispensable parties within the 30-day (now 28-day) time limit due to a fatal
jurisdictional defect. The footnote does not apply to the general timeline of a
civil action, as Plaintiff suggests.
IV. CONCLUSION
Accordingly, the Court DENIES the motion to dismiss and ORDERS
Plaintiff to join the applicant owner in this action within twenty-one (21)
days. Failure to comply will result in an order to show cause why this case
should not be dismissed.
Dated this 14th day of May, 2018.
BY THE COURT:
__________________________
Devin R. Odell
District Court Judge