COLORADO COURT OF APPEALS 2016COA138
Court of Appeals No. 15CA1371
Boulder County District Court No. 14CV30681
Honorable Judith L. Labuda, Judge
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.
JUDGMENT VACATED
Division I
Opinion by JUDGE PLANK*
Taubman and Freyre, JJ., concur
Announced September 22, 2016
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
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶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).
1In November 2013, the voters added another requirement — that a
$214,000,000 debt limit could not be exceeded in the acquisition of
Xcel’s assets. Charter § 188(a).
1
¶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
2
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 of Xcel’s
complaint, and dismissed the complaint for lack of subject matter
jurisdiction due to the time bar. We disagree.
II. Standard of Review
¶7 Issues concerning subject matter jurisdiction may be raised at
any time under C.R.C.P. 12(b)(1). Medina v. State, 35 P.3d 443, 452
(Colo. 2001). When a defendant raises such a challenge, the
plaintiff has the burden of proving jurisdiction, and the district
court may make appropriate factual findings regarding the issue.
See id. Further, Rule 12(b)(1) permits the court “to weigh the
evidence and satisfy itself as to the existence of its power to hear
the case.” Id. (quoting Trinity Broad. of Denver, Inc. v. City of
Westminster, 848 P.2d 916, 925 (Colo. 1993)). We review the trial
court’s legal conclusions in dismissing a complaint for lack of
subject matter jurisdiction de novo. Wallin v. Cosner, 210 P.3d 479,
480 (Colo. App. 2009).
3
III. Analysis
¶8 Initially, we note that the parties dispute which ordinance was
challenged in Xcel’s complaint, and therefore which ordinance is at
issue on appeal. Xcel asserts that it is challenging the
establishment of the light and power utility, which occurred when
the Second Ordinance was passed; the City, however, asserts that
the allegations in the complaint focus on matters decided solely in
the First Ordinance, i.e., the determination that the conditions
precedent to establishment were satisfied. Regardless, we address
each of the ordinances, and reach the same conclusion for both.
¶9 On appeal, Xcel contends that the district court wrongly
dismissed its complaint for lack of jurisdiction with respect to the
twenty-eight-day time limit of C.R.C.P. 106(a)(4). In doing so, Xcel
argues that the First Ordinance (1) was not final, as required under
C.R.C.P. 106(b), and (2) was legislative, not quasi-judicial;
according to Xcel, each of these conclusions make the time limit of
Rule 106(a)(4) inapplicable to its complaint.
A. The Ordinances Were Not “Final” Actions
¶ 10 We first address, as a threshold issue, the finality of the
ordinances upon which the application of the time bar in Rule
4
106(b) depends. Xcel contends that the First Ordinance was not
final because (1) it did not establish the utility; (2) it referenced
additional revisions to be made in planning the utility; and (3) the
City made such additional revisions after the First Ordinance was
passed. We agree.
¶ 11 Rule 106(b) provides that a complaint seeking review under
the rule should be filed in the district court no later than
twenty-eight days after the “final decision of the body or officer.”
C.R.C.P. 106(b). This time period begins to run at the “‘point of
administrative finality,’ which occurs when ‘the action complained
of is complete,’ leaving ‘nothing further for the agency to decide.’”
Carney v. Civil Serv. Comm’n, 30 P.3d 861, 863 (Colo. App. 2001)
(quoting 3 Bar J Homeowners Ass’n v. McMurry, 967 P.2d 633, 634
(Colo. App. 1998)); see also Baker v. City of Dacono, 928 P.2d 826,
827 (Colo. App. 1996); Cadnetix Corp. v. City of Boulder, 807 P.2d
1253, 1254 (Colo. App. 1991). Therefore, the primary issue here is
whether the First Ordinance had reached the point of “finality.”
¶ 12 “[A] final judgment or decision generally . . . ends the
particular action in which it is entered, leaving nothing further to be
done to completely determine the rights of the parties, . . . [and]
5
therefore necessarily depends upon the scope and nature of the
proceeding and rights at issue.” Citizens for Responsible Growth v.
RCI Dev. Partners, Inc., 252 P.3d 1104, 1106-07 (Colo. 2011).
¶ 13 Here, neither ordinance establishes a final utility plan nor
resolves the issues related to the preconditions necessary to
establish such a plan.
¶ 14 The First Ordinance demonstrated its lack of finality in
recognizing, by its terms, the ongoing process and assessment
required to complete the utility plans. That ordinance stated that it
“shall not be construed to create a light and power utility” and
directed the city manager to “continue refinement of the Base
Materials for use in creating and operating a light and power utility
. . . .” Although the Second Ordinance purported to establish that
the conditions precedent had been satisfied (pursuant to the
Charter), this statement must not be read out of context. Reading
the Second Ordinance as a whole, the statements directing further
refinement of the plans and deferring creation of the utility for later
legislative action show the City intended to make further changes
and indicate that this action was not final.
6
¶ 15 Furthermore, uncertainty lingers since Boulder has continued
supplemental modeling concerning the utility’s feasibility after the
passage of the First Ordinance. There remain significant
unresolved issues as to the financial viability and reliability of the
utility. For example, based on the “initial modeling” it has
completed thus far, the City calculated it could meet the
requirements of the First Ordinance by including service to
customers outside the Boulder city limits; however, this calculation
assumed the inclusion of such customers (contrary to the Public
Utility Commission’s prior rulings rejecting the City’s petition to
include customers outside the city limits), with no demonstration
that the metrics could be met if the utility is limited to Boulder
residents.
¶ 16 Such ongoing assessments leave much more to be done.
Therefore, the First Ordinance was not a final action.
¶ 17 The Second Ordinance, authorizing the establishment of the
utility, relies on the findings of the First Ordinance that the City
adequately met the conditions precedent. As previously discussed,
this appears to be an ongoing process subject to continuing
revisions even since the First Ordinance’s passage. Thus, for the
7
same reasons the First Ordinance was not final, the Second
Ordinance also lacks finality.
¶ 18 For these reasons, we conclude that neither ordinance was a
“final” action under Rule 106(b). In the absence of finality, judicial
review under Rule 106 is premature. Accordingly, we disagree with
the district court that Xcel’s complaint was time barred and,
therefore, the district court erred in dismissing the complaint on
this basis.
B. Declaratory Judgment
¶ 19 Xcel also sought review under C.R.C.P. 57(b). Xcel’s complaint
sought a declaratory judgment finding the Second Ordinance void
as a matter of law due to its failure to meet the conditions
precedent required by the Charter. The district court held that it
lacked jurisdiction over this claim based on its application of the
time bar of Rule 106(b).2 We agree, but on other grounds, that the
district court could not enter a declaratory judgment.
¶ 20 For the reasons stated above, Rule 106 does not apply due to
the lack of finality of the ordinances. Lack of finality may also be a
2 Claims for declaratory relief under C.R.C.P. 57 are subject to the
time limitations of C.R.C.P. 106(b). See JJR 1, LLC v. Mt. Crested
Butte, 160 P.3d 365, 369 (Colo. App. 2007).
8
basis for a court’s refusal to enter a declaratory judgment. Rule
57(f) states: “The court may refuse to render or enter a declaratory
judgment or decree where such judgment or decree if rendered or
entered, would not terminate the uncertainty or controversy giving
rise to the proceeding.” Due to the lack of finality of the ordinances
in this case, entry of a declaratory judgment at this point is also
premature.
C. Quasi-Judicial Versus Legislative Action
¶ 21 The parties dispute, and discuss extensively in their briefs,
whether the passing of the First Ordinance was a quasi-judicial or
quasi-legislative action. Because we find that the ordinance itself
was not a final action, we need not reach the issue of whether it
was quasi-judicial or quasi-legislative.
IV. Conclusion
¶ 22 We conclude that the trial court did not have jurisdiction
because the ordinances were not final actions and that declaratory
relief was premature. The judgment is vacated.
JUDGE TAUBMAN and JUDGE FREYRE concur.
9