Douglas County Board of Commissioners v. Public Utilities Commission

Justice SCOTT,

dissenting:

Because I do not believe that substantial evidence was presented to support the Public Utility Commission’s conclusion that the upgrade of the Daniels Park transmission line was reasonable, I respectfully dissent. Pursuant to section 30-28-127, any improve-*928mente or upgrades which conflict with the county master plan must be “reasonable.” To determine what is reasonable, we held in Douglas County v. Public Utilities Com’n, 829 P.2d 1303, 1312, (Douglas County I), that the Public Utilities Commission (“PUC”) must consider the factors outlined in section 30-28-107, the statutory section setting forth the purposes for a county master plan. We found that the reasonableness standard is “interwoven with the adopted land use plan which is subject to all the above considerations [of section 30-28-107],” and that the application of the factors present in section 30-28-107, thus “greatly constrains the determination of reasonableness.” Section 30-28-107 holds in pertinent part as follows:

The county or regional master plan shall be made with the general purpose of guiding and accomplishing a coordinated, adjusted, and harmonious development of the county or region which, in accordance with present and juture needs and resources, will best promote the health, safety, morals, order, convenience, prosperity, or general welfare of the inhabitants....

(Emphasis added). Thus, under our decision in Douglas County I, it is clear that reasonableness must be determined in accordance with present and future need.1 And even the PUC’s order recognizes that to determine need, demand-side alternatives must be considered. In its findings of fact on the issue of least-cost alternatives, the PUC’s order credited the testimony of William J. Martin, vice-president of electrical engineering and planning for the Public Service Company of Colorado (“PSCo”):

Mr. Martin testified that Public Service had not analyzed the cost or benefit of demand management options as alternatives to the upgrade of the transmission line. Mr. Martin agreed that such an analysis was possible, that demand reductions could eliminate the need for the upgrade and that such a program of demand reduction should be compared to the supply side option of a transmission upgrade, both on the economics of such an alternative and as to factors external to the economics, such as aesthetics, [noise], and exposure to electromagnetic fields. Mr. Martin also stated that he understood that the time had passed in which Public Service could approach this Commission with a supply side alternative in the absence of engineering and financing analysis of demand side options.

(Emphasis added). Therefore, on the record before us it is clear that demand-side alternatives must be considered in order to determine need, which is a prerequisite to determining reasonableness. It is undisputed that demand-side alternatives were not considered in the instant case.

In rejecting the district court’s holding, the majority places undue emphasis on the district court’s recognition that the PUC’s order imposed the future requirement that before a supply-side enhancement may take place, demand-side alternatives must be considered. The majority states that “it is simply illogical to conclude that future conditions which themselves are improperly imposed, may constitute appropriate and binding present conditions,” and rejects “the district.court’s conclusion that by imposing this future condition on PSCo, the PUC thereby required that this condition be met in this case.” Maj. op. at 925. This argument, however, mischarac-terizes the actual holding of the district court. In reality, it appears that the district court noted the PUC’s imposition of the future condition, requiring an examination of demand-side alternatives, only as evidence that an examination of demand-side alternatives is critical to a determination of need. Nowhere in its ruling does the district court assert or imply that because the PUC imposed a future condition, that condition must be met in the instant case. After quoting the PUC order regarding the imposition of the future condition, the district court states that “[d]emand side alternatives or reductions were clearly relevant and highly significant portions of the needs phase of this particular hearing. In fact if demand-side reductions or alternatives had been adequately explored by PSCo, the need to upgrade may not have existed.” Thus, finding that a review of de*929mand-side alternatives is a “recognized, necessary component of present need,” the district court concluded that there was not substantial evidence concerning PUC’s need to upgrade the line. See Colorado Municipal League v. Mountain States Tel. & Tel. Co., 759 P.2d 40, 44 (Colo.1988) (“Substantial evidence is more than a scintilla, and must do more than create a suspicion of the existence of the fact to be established. ‘It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,’ ... and it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.” (quoting National Labor Relations Board v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 660 (1938))).

In summary, because there was no consideration of demand-side alternatives, I do not believe that the PSCo presented substantial evidence to establish the need necessary to conclude that the improvement at issue was reasonable. I would therefore affirm the order of the district court setting aside the PUC’s grant of the PSCo’s application to upgrade the Daniels Park transmission line.

I am authorized to say that Justice LOHR joins in this dissent.

. As noted by the majority the PUC hearing was divided into three phases; one of which was concerned solely with the need for the proposed improvement.