Opinion
Dec. 4, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Wallace, Armatas & Hahn, David J. Hahn, Denver, R. Jerry Russell, Broomfield, for defendant-appellee The City of Broomfield.
Berger, Rothstein, Gehler & Cohen, David Berger, Commerce City, for plaintiff-appellant.
Holland & Hart, Warren L. Tomlinson, James P. Lindsay, Denver, for defendants-appellees Westlear Co. and Southwest Properties, Inc.
COYTE, Judge.
The Board of County Commissioners of Adams County appeals from dismissal of its suit wherein it sought review in the nature of certiorari of the City of Broomfield's annexation and zoning of certain parcels of land located in Adams County. We affirm the judgment of dismissal.
Defendants Westlear Company and Southwest Properties, Inc., commenced the annexation proceedings by filing voluntary petitions for annexation with the City of Broomfield. The annexation was accomplished in two steps. The first ordinance involving 78 acres, was adopted on December 13, 1971, and was effective on December 21, 1971. The second annexation ordinance, involving 453 acres, was adopted on January 10, 1972, and the ordinance providing for the zoning of the newly-annexed land was passed and adopted on that same date.
On February 1, 1972, appellants filed their original complaint in the district court, naming the city as defendant and alleging that the city failed to comply with the requirements imposed by the Municipal Annexation Act of 1965, 1965 Perm.Supp., C.R.S.1963, 139--21--1 et seq. The city moved for dismissal of the suit on the grounds that appellant lacked standing and that the suit constituted a collateral attack on the annexation proceedings contrary to provisions of 1965 Perm.Supp., C.R.S.1963, 139--21--15. After a hearing, the motion was denied by the trial court and appellant was granted leave to file an amended complaint. On May 16, 1972, appellant filed an amended complaint joining the property owners, Westlear Company and Southwest Properties, Inc., as additional defendants, and adding specific allegations to the complaint. Subsequently, a trial was held on the merits, and at the conclusion of that trial the trial court ruled that the annexation and zoning proceedings complied with the statute and dismissed appellant's suit.
This appeal raises several interesting questions concerning the Municipal Annexation Act of 1965. However, we do not reach those issues because the suit seeking review of the annexation proceedings was not brought in a timely manner.
The Municipal Annexation Act of 1965, 1965 Perm.Supp., C.R.S.1963, 139--21--15, governs the manner in which aggrieved parties may seek review of annexation and related proceedings. Subsection 139--21--15(2) provides:
'All such actions to review the findings and the decision of the city council shall be brought within forty-five days after the effective date of the ordinance, and if such action is not brought within such time such action shall forever be barred.'
The effect of this provision was considered in Fort Collins-Loveland Water District v. Fort Collins, 174 Colo. 79, 482 P.2d 986, where the court stated:
'The forty-five day provision is not a true statute of limitations. The time limitation is jurisdictional; unlike other statutes of limitations, as a matter of public policy, it cannot be tolled or waived. . . .
'In effect, the forty-five day provision is a condition precedent to the exercise of the right to challenge.'
In the instant case, the original complaint was filed within the statutory period, but that complaint failed to name the property owners as defendants. The amended complaint which joined the property owners as defendants was filed after the expiration of the statutory period. A similar situation was before the supreme court in Hidden Lake Development Co. v. District Court, Colo., 515 P.2d 632 (1973), which involved a petition for certiorari to review a grant of an application for rezoning. The court noted that it had previously ruled in Hennigh v. County Commissioners, 168 Colo. 128, 450 P.2d 73, that the property owner is an indispensable party to such proceeding and a trial court's judgment is a nullity when an indispensable party is not before the court. Accordingly, the court ruled that the original complaint which failed to join the property owners was ineffective and the amended complaint which was filed after the expiration of the statutory period came too late to confer jurisdiction upon the trial court.
The reasoning of the court in Hidden Lake Development Co., supra, applies with equal force and effect in the instant case. Accordingly, we hold that the trial court should have dismissed the original complaint for failure to join an indispensable party. Since the property owners were not made parties to this proceeding until the amended complaint was filed after expiration of the 45-day period stipulated in 1965 Perm.Supp., C.R.S.1963, 139--21--15(2), the trial court was without jurisdiction to hear the case. Although the judgment of the trial court was based on the merits, its dismissal of the case was correct and the judgment of dismissal is affirmed.
SILVERSTEIN, C.J., and RULAND, J., concur.