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ATTORNEY`v' 1 Y
S OFF 10E
COLORADO COURT OF APPEALS
No. 84CA0267
TOWN OF MILLIKEN, )
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Plaintiff-Appellant , )
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BOARD OF COUNTY COMMISSIONERS )
OF THE COUNTY OF WELD, )
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Defendant-Appellee . )
Appeal from the District Court of Weld County
Honorable John J. Althoff, Judge
DIVISION III JUDGMENT AFFIRMED
Opinion by JUDGE STERNBERG
Tursi and Metzger, JJ . , concur
• Laura E. Shapiro
Greeley, Colorado •
Attorney for Plaintiff-Appellant
Thomas 0. David STATL OF COLORADO
Greeley, Colorado Opinion Yl3�r? :'3i��„'.7'3Y77.'`..1-
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entered o Lhs .:..,. ' a c
Attorney for Defendant-Appellee / 1fiW•
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850647
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The Town of Milliken appeals from the dismissal of its
action against the Weld County Board of County Commissioners
for failure to join indispensable parties . We affirm.
Arvin G. Martensen, d/b/a E-Vap Park, Ltd . , obtained a
special use permit from the Board for the operation of a brine
pond disposal facility on land leased from Theodore Blehm,
d/b/a Blehm Land and Cattle Company. The town, which opposed
the grant of the permit , sought review of the Board ' s action
pursuant to C .R.C.P. 106(a) (4) , naming only the Board as
defendant . Subsequently, the Board, joined by Martensen,
filed a motion to dismiss alleging among other things the
town' s failure to join indispensable parties . Earlier, the
court had given the town the opportunity to join other
parties, but the town did not attempt to join either Martensen
or Blehm. After a hearing the court ruled in favor of the
Board, and dismissed the action.
Indispensable parties must be joined within the thirty-day
time limit of C.R.C.P. 106 (b) ; however, a timely petition may
be amended "at any time with leave of the court, for good
cause shown, to add, dismiss or substitute parties . . . . "
C.R.C.P. 106(b) . Whether one is an indispensable party
depends upon the facts of each case, Jacbbucci v. District
Court , 189 Colo . 380, 541 P . 2d 667 (1975) , and an
indispensable party is one who has such an interest in the
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controversy that the final decree cannot be made without
affecting that interest , or whose ability to protect his
interest will be detrimentally affected if he is not joined in
the action. C.R. C.P. 19(a) ; Potts v. Gordon, 34 Colo. App .
128, 525 P. 2d 500 (1974) . A party who has sought an exception
to zoning or use regulations from a planning board is an
indispensable party in an action to review that zoning
decsion. See Norby v. Boulder, 195 Colo . 231 , 577 P. 2d 277
(1978) .
Here , the court determined that the applicant , Martensen,
and the lessor, Blehm, were both indispensable parties . The
court also found that the town was aware of their status , but
nonetheless made no effort to join them. Indeed, the town
objected to efforts by Martensen and Blehm to participate in
hearings . The court noted this fact and found that the town
had shown no good cause for its failure to join them as
required by C.R.C.P. 106 (a) (4) . These findings have support
in the record, and therefore must be affirmed . Page v. Clark,
197 Colo. 306, 592 P. 2d 792 (1979) . Hence, because the
plaintiff did not join the indispensable parties within thirty
days and did not show good cause for the omission, the court
properly dismissed the lawsuit .
Because we affirm the trial court ' s dismissal of the
action for failure to join indispensable parties , we do not
address the other contentions of error.
Judgment affirmed .
JUDGE TURSI and JUDGE METZGER concur.
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