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).

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¶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


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 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).


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                           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


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  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]


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  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.




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¶ 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


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  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).

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  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.




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