The City of Boulder, Colorado; the City of Council for the City of Boulder, Colorado; Suzanne Jones, in her official capacity as Mayor; Aaron Brockett, in his official capacity as Mayor Pro Tem; and Cindy Carlisle, Jill Alder Grano, Lisa Morzel, Mirabai Kuk Nagle, Bob Yates, Sam Weaver, and Mary Young, in their official capacities as members of the City Council, Petitioners
v.
Public Service Company of Colorado, a Colorado corporation. Respondent
Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 15CA1371
Attorneys for Petitioners: Boulder City Attorney's Office
Thomas A. Carr, City Attorney David J. Gehr, Deputy City
Attorney Kathleen Haddock, Senior Assistant City Attorney
Boulder, Colorado
Holland & Hart LLP Marcy G. Glenn Denver, Colorado
Hamre,
Rodriguez, Ostrander & Dingess, PC James Birch Denver,
Colorado
Attorneys for Respondent: Faegre Baker Daniels, LLP John R.
Sperber Denver, Colorado Faegre Baker Daniels, LLP Matthew D.
Clark Boulder, Colorado
Attorney for Amicus Curiae Colorado Municipal League: Dianne
M. Criswell Denver, Colorado
OPINION
GABRIEL JUSTICE
¶1
This case arises out of respondent Public Service Company of
Colorado's ("Xcel's") challenge to the City
of Boulder's attempt to create a light and power utility.
Xcel asserts that the ordinance establishing the utility,
Ordinance No. 7969 (the "Utility Ordinance"),
violates article XIII, section 178 of Boulder's City
Charter. Xcel thus seeks a declaratory judgment deeming the
Utility Ordinance "ultra vires, null, void, and
of no effect." Petitioners, the City of Boulder, its
mayor, mayor pro tem, and city council members (collectively,
"Boulder"), assert that Xcel's complaint is, in
reality, a C.R.C.P. 106 challenge to a prior ordinance,
Ordinance No. 7917 (the "Metrics Ordinance"), by
which Boulder had concluded that it could meet certain
metrics regarding the costs, efficiency, and reliability of
such a utility. Boulder contends that this challenge was
untimely and thereby deprived the district court of
jurisdiction to hear Xcel's complaint.
¶2
The district court agreed with Boulder and dismissed
Xcel's complaint. Xcel appealed, and in a unanimous,
published decision, a division of the court of appeals
vacated the district court's judgment. Pub. Serv. Co.
v. City of Boulder, 2016 COA 138, ¶ 22, 410 P.3d
680, 684. As pertinent here, the division, like the district
court, presumed that Xcel was principally proceeding under
C.R.C.P. 106. See id. at ¶¶ 10-18, 410
P.3d at 683-84. The division concluded, however, that neither
the Metrics Ordinance nor the Utility Ordinance was final,
and therefore, Xcel's complaint was premature.
Id. at ¶ 18, 410 P.3d at 684. The division thus
vacated the district court's judgment. Id. at
¶ 22, 410 P.3d at 684.
¶3
Boulder petitioned for certiorari, principally arguing that
the division erred in concluding that the Metrics Ordinance
and the Utility Ordinance were not final for purposes of
judicial review under C.R.C.P. 106. We granted that petition
and now reverse.[1]
¶4
Although we agree with Boulder that the division erred,
contrary to Boulder's position and the premises on which
the courts below proceeded, we agree with Xcel that its
complaint asserted a viable and timely claim seeking a
declaration that the Utility Ordinance violated Boulder's
City Charter. Accordingly, we conclude that the district
court had jurisdiction to hear Xcel's declaratory
judgment claim challenging the Utility Ordinance, and we
remand this case to allow that claim to proceed.
I.
Facts and Procedural History
¶5
Several years ago, Boulder's citizens voted to add a
section to the City Charter that would permit the City
Council to establish a public power utility if certain
conditions were satisfied. See Boulder, Colo.,
Charter art. XIII, § 178 (2018). That section provides,
in pertinent part:
The city council, at such time as it deems appropriate,
subject to the conditions herein, is authorized to establish,
by ordinance, a public utility under the authority in the
state constitution and the city charter to create light
plants, power plants, and any other public utilities or works
or ways local in use and extent for the provision of electric
power. The city council shall establish a light and power
utility only if it can demonstrate, with verification by a
third-party independent expert, that the utility can 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 . . . .
Boulder, Colo., Charter art. XIII, § 178(a).
¶6
Pursuant to this provision, Boulder began to explore its
ability to satisfy the metrics set forth in the Charter (the
"Charter Metrics"). To this end, Boulder city
employees and consultants presented the Boulder City Council
with an analysis that demonstrated that various modeled
scenarios would satisfy the Charter Metrics. The city
employees and consultants thereafter provided additional
information requested by the Council (the "Base
Materials"). The Council then directed the city manager
to select a third-party independent expert to verify that the
Base Materials demonstrated that Boulder could meet the
Charter Metrics. The manager did so, and the independent
expert reviewed the Base Materials and subsequently verified
that the Base Materials demonstrated that Boulder could meet
these requirements.
¶7
Based on the independent expert's report, the City
Council passed the Metrics Ordinance, accepting the
expert's findings and concluding that the Charter Metrics
had been satisfied. On the same day it passed the Metrics
Ordinance, the City Council also passed an ordinance
authorizing the city manager to negotiate for the acquisition
of various pieces of real property and equipment that would
be needed to construct the utility. The City Council
authorized the city manager to acquire these interests and
assets through the exercise of the power of eminent domain
and to initiate condemnation proceedings to do so. Xcel did
not challenge either of these ordinances.
¶8
Approximately eight months later, the City Council passed the
Utility Ordinance, amending the Boulder Revised Code to
"establish and define the light and power utility"
of the city of Boulder. Less than one month later, Xcel filed
the present action, in which it principally sought a
declaration, pursuant to C.R.C.P. 57, that the Utility
Ordinance violated the City Charter. Specifically, Xcel
alleged that the City Council had exceeded the limits on its
authority as set forth in section 178 of Title XIII of the
Charter because the models on which Boulder had relied
incorrectly assumed that (1) Boulder could unilaterally
decide to serve and receive revenue from more than 7, 000
Xcel electricity customers located outside the city limits
and (2) as a result, costs to separate and reconnect the Xcel
electric system after formation of the utility would be
minimal. In fact, Xcel asserted, after Boulder passed the
Metrics Ordinance, the Public Utilities Commission
("PUC") had concluded that Boulder did not
have the right to act unilaterally to serve customers outside
Boulder's city limits. Xcel alleged that because all of
the models on which Boulder had relied depended on
assumptions regarding service rights and separation costs
that were inconsistent with the PUC's orders, Boulder
could not then determine whether it could meet the Charter
Metrics. Xcel thus sought a declaration that "as a
matter of law, the Utility Ordinance, being in violation of
the Charter, is ultra vires, null, void, and of no
effect." In the alternative, Xcel asserted a claim for
judicial review of the Utility Ordinance under C.R.C.P.
106(a)(4). Xcel made clear, however, that it asserted this
claim only in the event that the district court determined
declaratory relief to be unavailable.
¶9
Boulder moved to dismiss Xcel's complaint, arguing that
(1) in substance, Xcel's complaint was a C.R.C.P. 106
challenge to the Metrics Ordinance; (2) this challenge was
untimely; and (3) because the timing requirement was
jurisdictional, the ...