Public Service Company of Colorado v. City of Boulder
2016 COA 138
| Colo. Ct. App. | 2016Background
- In Nov. 2011 Boulder voters amended the Home Rule Charter (Art. XIII §178) to allow creation of a municipal light and power utility if the City Council, verified by a third‑party expert, showed the utility could acquire Boulder’s distribution system, charge rates not exceeding Xcel’s then rates, cover operating and debt costs (plus 25% of debt payments), provide comparable reliability, and increase renewable energy/reduce emissions.
- In Aug. 2013 the Council passed Ordinance 7917 (First Ordinance): it accepted an evaluator’s report that the Charter preconditions were satisfied, stated it was not creating the utility then, and directed further refinement of the City’s planning materials.
- In May 2014 the Council passed Ordinance 7969 (Second Ordinance) stating its intention to establish the utility. Xcel sued 28 days later seeking declaratory relief (C.R.C.P. 57) or review under C.R.C.P. 106(a)(4).
- The City moved to dismiss under C.R.C.P. 12(b)(1), arguing Xcel’s claims effectively challenged the First Ordinance and were time‑barred by Rule 106(b)’s 28‑day filing requirement; the district court dismissed for lack of jurisdiction.
- The Court of Appeals vacated the dismissal, holding neither ordinance was a “final” action for purposes of Rule 106(b) and that declaratory relief under Rule 57 would be premature because the ordinances left matters unresolved and required further municipal action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Were the Ordinances "final" actions under C.R.C.P. 106(b) triggering the 28‑day time bar? | Xcel: First Ordinance was not final because it did not create the utility, required further revisions, and the City continued to modify plans. | City: Xcel’s complaint actually attacked the First Ordinance and, since >28 days elapsed, is time‑barred under Rule 106(b). | Court: Neither ordinance was final; ongoing refinements and unresolved feasibility issues made judicial review premature, so Rule 106(b) time bar did not apply. |
| Was declaratory relief appropriate now under C.R.C.P. 57? | Xcel: Seeks declaration that Second Ordinance is void for failing Charter preconditions. | City: Time bar and finality issues prevent relief. | Court: Rule 57 allows refusal when judgment would not end controversy; because ordinances aren’t final, declaratory relief is premature. |
| Did the Court need to decide whether the First Ordinance was quasi‑judicial or legislative? | Xcel: Asserted the nature affects availability/time for review. | City: Argued matters decided were final/quasi‑judicial. | Court: Because lack of finality resolves jurisdictional question, it did not decide quasi‑judicial vs. legislative characterization. |
| Was dismissal under C.R.C.P. 12(b)(1) appropriate? | Xcel: Dismissal was incorrect because subject matter jurisdiction existed; review is not time‑barred. | City: Dismissal proper due to Rule 106(b) time limit. | Court: Dismissal improper; district court lacked basis to dismiss for lack of jurisdiction on time‑bar grounds. |
Key Cases Cited
- Medina v. State, 35 P.3d 443 (Colo. 2001) (plaintiff bears burden to prove subject matter jurisdiction; courts may make factual findings)
- Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993) (courts may weigh evidence when resolving jurisdictional challenges)
- Wallin v. Cosner, 210 P.3d 479 (Colo. App. 2009) (de novo review of legal conclusions on subject matter jurisdiction)
- Carney v. Civil Serv. Comm’n, 30 P.3d 861 (Colo. App. 2001) (administrative finality standard for when Rule 106(b) time begins)
- 3 Bar J Homeowners Ass’n v. McMurry, 967 P.2d 633 (Colo. App. 1998) (defining point of administrative finality)
- Baker v. City of Dacono, 928 P.2d 826 (Colo. App. 1996) (finality concepts in municipal action challenges)
- Cadnetix Corp. v. City of Boulder, 807 P.2d 1253 (Colo. App. 1991) (administrative finality analysis)
- Citizens for Responsible Growth v. RCI Dev. Partners, Inc., 252 P.3d 1104 (Colo. 2011) (final decision ends particular action and leaves nothing further to be decided)
- JJR 1, LLC v. Mt. Crested Butte, 160 P.3d 365 (Colo. App. 2007) (Rule 57 declaratory relief subject to timing considerations of Rule 106(b))