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Public Service Company of Colorado v. City of Boulder

Court of Appeals of Colorado, First Division

September 22, 2016

Public Service Company of Colorado, a Colorado corporation, Plaintiff-Appellant,
v.
City of Boulder, Colorado; City Council of the City of Boulder, Colorado; Matthew Appelbaum, in his official capacity as Mayor; George Karakehian, in his official capacity as Mayor Pro Tem; Macon Cowles, in his official capacity as a member of the City Council; Suzanne Jones, in her official capacity as a member of the City Council; Lisa Morzel, in her official capacity as a member of the City Council; Tim Plass, in his official capacity as a member of the City Council; Andrew Shoemaker, in his official capacity as a member of the City Council; Sam Weaver, in his official capacity as a member of the City Council; and Mary Young, in her official capacity as a member of the City Council, Defendants-Appellees.

         Boulder County District Court No. 14CV30681 Honorable Judith L. Labuda, Judge

          Faegre Baker Daniels, LLP, John R. Sperber, Daniel D. Williams, Matthew D. Clark, Boulder, Colorado, for Plaintiff-Appellant

          Thomas A. Carr, City Attorney, David J. Gehr, Deputy City Attorney, Kathleen E. Haddock, Senior Assistant City Attorney, Deborah S. Kalish, Senior Assistant City Attorney, Boulder, Colorado, for Defendants-Appellees

          OPINION

          PLANK JUDGE [*]

         ¶ 1 Plaintiff, Public Service Company of Colorado (Xcel), appeals the district court's judgment dismissing its complaint against defendants, the City of Boulder (City), the Boulder City Council (Council), and various elected officials. We vacate the judgment.

         I. Background

         ¶ 2 At a November 2011 election, the City voters approved an amendment to the Boulder Home Rule Charter: Article XIII, "Light and Power Utility." The amendment's section 178, in particular, authorized the creation of a new light and power utility if the Council could demonstrate, with verification by a third-party independent expert, that the utility could

acquire the electrical distribution system in Boulder and charge rates that do not exceed those rates charged by Xcel Energy at the time of acquisition and that such rates will produce revenues sufficient to pay for operating expenses and debt payments, plus an amount equal to twenty-five percent (25%) of the debt payments, and with reliability comparable to Xcel Energy and a plan for reduced greenhouse gas emissions and other pollutants and increased renewable energy.[1]

Charter § 178(a).

         ¶ 3 Charter section 178(a) also authorized the Council "to establish, by ordinance, a public utility under the authority in the state constitution and the city charter . . . ."

         ¶ 4 On August 20, 2013, the Council passed Ordinance 7917 (the First Ordinance), which (1) accepted the report of a third-party evaluator who concluded that the conditions precedent to the utility's creation (listed above) had been satisfied; (2) stated that it was not creating a light and power utility, and any future desire to do so would be by subsequent legislative action; and (3) recognized that revisions to the "Base Materials" provided by the City might be necessary, and instructed the city manager to further refine them accordingly.

         ¶ 5 On May 6, 2014, the Council passed Ordinance 7969 (the Second Ordinance), which stated its intention "to establish the light and power utility . . . ." Twenty-eight days later, Xcel filed a complaint with respect to the Second Ordinance, seeking declaratory judgment under C.R.C.P. 57 or, in the alternative, review under C.R.C.P. 106(a)(4).

         ¶ 6 The City filed a motion to dismiss Xcel's complaint pursuant to C.R.C.P. 12(b)(1), arguing that Xcel's complaint attempted to challenge the First Ordinance by purporting to challenge the Second Ordinance and, because the time in which to bring such a challenge against the First Ordinance had passed under Rule 106(b), the district court lacked subject matter jurisdiction. The district court agreed with the City's characterization ...


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