Opinion
No. 74-535
Decided May 13, 1975. Rehearing denied June 10, 1975. Certiorari denied July 28, 1975.
Adjoining property owner sought certiorari review of decision of county board of adjustment which granted a variance to landowner defendant.
Reversed
1. PARTIES — County Board of Adjustment — Proper Party — Board of County Commissioners — Not Designated — Dismissal — Error. Since it was a decision of the county board of adjustment that plaintiff sought to challenge, that board is the "inferior tribunal" that is the subject of plaintiff's action in the nature of certiorari, and furthermore, board of county commissioners was not a necessary party to the action; hence, the county board of adjustment was the proper party to be designated as a defendant in the proceedings, and the court erred in dismissing plaintiff's complaint on the basis that plaintiff had not named the board of county commissioners as a party defendant.
Appeal from the District Court of Jefferson County, Honorable Daniel J. Shannon, Judge.
Brownstein, Hyatt, Farber Madden, John W. Madden III, for plaintiffs-appellants.
Gail E. Shields, Assistant Jefferson County Attorney, for defendant-appellee Jefferson County Board of Adjustment.
This is an appeal from a C.R.C.P. 106(a)(4) proceeding wherein an adjoining property owner sought review of the decision of the defendant Jefferson County Board of Adjustment which granted a variance to defendant Nils Bloom.
Contending that the defendant Board of Adjustment should have been designated on appeal to the district court as "the Board of County Commissioners of the County of Jefferson," rather than "Jefferson County Board of Adjustment," defendants filed a motion to dismiss plaintiffs' complaint which the trial court granted. We reverse.
The only issue before the trial court and this court is whether the defendant, Jefferson County Board of Adjustment, was properly designated as the party defendant. Defendants rely upon Calahan v. County of Jefferson, 163 Colo. 212, 429 P.2d 301, which holds that the court acquires no jurisdiction where in a suit against a county it is not properly named in accordance with § 30-11-105, C.R.S. 1973. However, that case is inapplicable because here plaintiff's suit was directed at the board of adjustment, not at the county.
In Bacon v. Steigman, 123 Colo. 62, 225 P.2d 1046, the court stated:
"The Board of Adjustment . . . was created by law as a special tribunal with quasi judicial powers and vested with complete authority to determine whether or not conditions existed sufficient to justify the granting of a variance in the strict application of the zoning regulations in order to relieve property owners from hardships which might result therefrom."
[1] Hence, since it was a decision of the board of adjustment that plaintiff sought to challenge, that board is the "inferior tribunal" that is the subject of this C.R.C.P 106(a)(4) proceeding.
Furthermore, the Board of County Commissioners of the County of Jefferson was not a necessary party to the action. See Guildner Way, Inc. v. Board of Adjustment, 35 Colo. App. 70, 529 P.2d 332.
Since the Jefferson County Board of Adjustment was the proper party to be designated as a defendant in this proceeding, the court erred in dismissing plaintiffs' complaint.
Judgment reversed with direction to reinstate plaintiffs' complaint and for further proceedings on the issues involved.
CHIEF JUDGE SILVERSTEIN and JUDGE PIERCE concur.