Public Service Company of Colorado, a Colorado corporation, Plaintiff-Appellant,
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.
County District Court No. 14CV30681 Honorable Judith L.
Baker Daniels, LLP, John R. Sperber, Daniel D. Williams,
Matthew D. Clark, Boulder, Colorado, for Plaintiff-Appellant
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,
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.
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
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.
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 ...