Appendix — Poudre Valley Rural Electric Ass'n v. City of Greeley
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5) aie: Bupreme Court, US.
87 1120 ILED
DEC 31 we
F. SPANIOL, JR.
No. CLERK
IN THE
Supreme Court of the United States
OcTOBER TERM, 1987
PouDRE VALLEY RURAL ELECTRIC ASSOCIATION, INC.,
a Colorado corporation,
Appellant,
Vv.
THE Crtry OF GREELEY, COLORADO,
a municipal corporation,
and HOME LIGHT AND POWER COMPANY,
a Colorado corporation,
Appellees.
ON APPEAL FROM THE SUPREME COURT
OF THE STATE OF COLORADO
APPENDICES TO JURISDICTIONAL STATEMENT
KENNETH L. STARR
Counsel of Record
HouLMEs & STARR
A Professional Corporation
717 17th Street, Suite 2440
Denver, CO 80202
(303) 292-1500
Of Counsel
RANDOLPH W. STARR
RANDOLPH W. STARR, P.C.
221 East 29th Street, #220
P.O. Box 642
Loveland, CO 80539
(303) 667-1029
December 31, 1987
TABLE OF CONTENTS
The following Appendices to Poudre Valley Rural Electric
Association, Inc.’s Jurisdictional Statement, filed simultane-
ously herewith, are separately presented in accordance with
Supreme Court Rule 15.1:
Page
APPENDIX A
Opinion of the Colorado Supreme Court in Case
No. 85-SA-293, dated September 8, 1987 ......... Al
APPENDIX B
Written Findings of Fact, Conclusions of Law and
Judgment of the District Court in and for the
County of Weld and State of Colorado (19th
Judicial District), dated July 18, 1985, as amended
es ER er Fe ee oe ee A21
APPENDIX C
Application No. 34,000 before the Colorado Public
Utilities Commission, dated July 15, 1981......... A29
APPENDIX D
Order and Decision of the Colorado Public
Utilities Commission in Application 34,000, dated
Ned pianeme A34
APPENDIX E
Order of the Colorado Supreme Court Granting
Request to Enter Mandate dated November 20,
I a ohn can a 9.44 «ARUN de Ekid RH wie Kb is A40
APPENDIX F
Colorado Supreme Court’s Notice that Remittitur
in Case No. 85-SA-293 was issued on
A re ee A42
APPENDIX G ;
Colorado Supreme Court’s Order Denying
Petitions for Rehearing, dated October 5, 1987.... A43
ii
TABLE OF CONTENTS — (Continued)
APPENDIX H
Notice of Appeal to this Court, dated
December 30, 1987 and filed in the Colorado
Supreme Court and the District Court in and for
the County of Weld and State of Colorado on
I I i iu cle gem dn ae RES Shes A45
APPENDIX I
Poudre’s Petition for Rehearing filed in the
Colorado Supreme Court on
I UE sists 0k Sg wenns ince dd vac (seen A48
_ APPENDIX J
Petition for Rehearing filed by the Colorado
Municipal League and the Colorado Association of
Municipal Utilities (Amicus Curiae in the
Colorado Supreme Court on behalf of the City of
Greeley) filed September 22, 1987............... A59
APPENDIX K
Poudre’s Motion To Stay Or Recall Mandate, filed
with the Colorado Supreme Court on October 7,
SE icttcis hes neki 6 beeen res or A65
APPENDIX L
Agreement for Provision of Service Between
Poudre and Greeley, dated July 19, 1983 (and
Exhibit A to Appendix K hereto) ................ A76
APPENDIX M
Colorado Supreme Court’s October 8, 1987 Order
Staying its Mandate for Thirty Days ............. A79
APPENDIX N
Colorado Appellate Rule 40(a).................. A81
APPENDIX O
Title 7, Section 901 and Title 7, Section 907 of the
i a ven Semin aes eras A82
APPENDIX P
Title 28, Section 1257 of the United States Code... A84
iii
TABLE OF CONTENTS — (Continued)
APPENDIX Q
Title 28, Section 2101 of the United States Code... A85
APPENDIX R
Title 28, Section 2103 of the United States Code... A87
APPENDIX S
Title 28, Section 2403(b) of the United States
EE Poa, OVE Goh G aaa vecwsvesce cence A88
APPENDIX T
Rule 201 of the Colorado Rules of Evidence...... A89
APPENDIX U
Section 2-5-113 of the Colorado Revised Statutes... A90
APPENDIX V
Section 31-2-217 of the Colorado Revised
RO Eo eee Sere A92
APPENDIX W
Section 38-5-101 and Section 38-5-108 of the
Colorado Revised Statutes ...................... A93
APPENDIX X
Section 40-5-101, Section 40-5-102 and Section
40-5-103 of the Colorado Revised Statutes........ A94
APPENDIX Y
Section 40-6-115 of the Colorado Revised
EE SI A98
APPENDIX Z
Poudre’s Weld County Permit, dated
EE ne A101
APPENDIX AA
Certificate of the Colorado Secretary of State with
a A104
APPENDIX BB
City of Greeley Ordinance No. 26, 1982.......... A105
iv
TABLE OF CONTENTS — (Continued)
APPENDIX CC
Certificate by the Colorado Secretary of State of
the date on which Greeley filed its Home Rule
Charter with the Colorado Secretary of State.....
APPENDIX DD
Article XVIII of the City of Greeley Charter .....
APPENDIX EE
The relevant parts of Article XX, Section 4 and
Section 6 of the Colorado Constitution ..........
APPENDIX FF
Article XXV of the Colorado Constitution........
Al
APPENDIX A
SUPREME COURT, September 8, 1987
STATE OF COLORADO
NO. 85SA293
THE Crry OF GREELEY, a municipal corporation,
and HOME LIGHT AND POWER COMPANY,
a Colorado corporation, Plaintiffs-Appellants,
Vv.
POUDRE VALLEY RURAL ELECTRIC
ASSOCIATION, INC. Defendant-Appellee.
Appeal from District Court, Weld County
Honorable Robert A. Behrman, Judge
EN BANC
JUDGMENT AFFIRMED IN PART,
REVERSED IN PART, AND
CASE REMANDED WITH DIRECTIONS
Law Department City of Greeley
Don K. DeFord
Glenwood Springs, Colorado
Edward “Jed” M. Caswall
John P. DiFalco
Greeley, Colorado
Attorneys for Plaintiff-Appellant
The City of Greeley
Kelly, Stansfield & O’Donnell
Donald D. Cawelti
James K. Tarpey
Denver, Colorado
Attorneys for Plaintiff-Appellant
Home Light and Power Company
(Continued )
Holmes & Starr, P.C.
Kenneth L. Starr
Ann Livedalen
Denver, Colorado
Randolph W. Starr
Denver, Colorado
Attorneys for Defendant-Appellee
Poudre Valley Rural Electric Association, Inc.
John J. Conway
Denver, Colorado
Attorney for Amicus Curiae
Colorado Rural Electric Association
Gerald E. Dahl
Tami A. Tanoue
Denver, Colorado
Attorneys for Amicus Curiae
Colorado Municipal League
Gorsuch, Kirgis, Campbell, Walker and Grover
Paula M. Connelly
Joseph B. Wilson
Denver, Colorado
Attorneys for Amicus Curiae
Colorado Assoc. of Municipal Utilities
JUSTICE ERICKSON delivered the Opinion of the Court.
A3
The City of Greeley (City) and the Home Light and Power
Company (Home Light), plaintiffs below, appeal from an
adverse judgment of the Weld County District Court.’ The
trial court held that provisions of the City Charter and City
Code, which require public utilities to obtain a franchise to
use city streets, were unenforceable against the defendant,
Poudre Valley Rural Electric Association (REA). REA
claimed, and the trial court held, that REA had the right to
continue and expand electric service in a portion of an area
annexed by the City, because the relevant annexed area
previously was served by REA pursuant to a certificate of
public convenience and necessity issued by the Public Utili-
ties Commission (PUC). We conclude that REA is not re-
quired to obtain a city franchise to operate and maintain its
electric distribution system within the City as it existed at the
time of the annexation. REA must obtain a city franchise if it
desires to use city streets or public places in order to expand
and provide new service within that portion of its certificated
service area that was annexed by the City. We affirm the
district court in part, reverse in part, and remand for further
proceedings consistent with this opinion.
L.
The facts are largely undisputed and are contained in the
findings of the trial court. The present action is the culmina-
tion of a fifteen-year dispute between Home Light and REA
over the right to provide electric service in certain areas of
Weld County.
Greeley is a home rule city under Article XX, section 6 of
the Colorado Constitution. Home Light is a private corpora-
tion operating as an investor-owned utility. REA is a coopera-
tive electric association and is a public utility under section
40-1-103(2), 17 C.R.S. (1984) .*
A4
On June 18, 1968, Home Light obtained a twenty-five-year
franchise from the City, which granted Home Light the right
to provide electric service within the territorial boundaries of
the City. The franchise was approved by qualified electors in
accordance with Colo. Const. art. XX, §§ 4 and 6, and pro-
vides: “The Company [Home Light] shall furnish electric
energy within the corporate limits of the city as such limits
now exist or may during the term of this franchise be
extended ....” The franchise was confirmed by PUC Deci-
sion No. 71606 on July 18, 1968.°
Before the 1968 franchise was granted, Home Light, REA,
and the Public Service Company of Colorado were parties
involved in litigation relating to their respective rights to
serve Boulder, Weld, and Larimer Counties. The litigation
culminated in Public Utilities Commission v. Home Light and
Power Co., 163 Colo. 72, 428 P.2d 928 (1967) (Home Light I).
The district court in Home Light I reversed a PUC decision
dividing the disputed service areas among the various electric
companies. We affirmed the judgment of the district court in
part and reversed in part. Following the decision in Home
Light I, Home Light and REA stipulated to a division of some
of the disputed services areas. The stipulation was submitted
to the PUC and, in PUC Decision No. 74654 (April 3, 1970),
the PUC approved the territorial division agreed to by the
companies. Each utility was granted a certificate of public
convenience and necessity to provide service in the area
allocated by stipulation. The PUC’s confirmation of the stipu-
lation made no provision for changing the territorial alloca-
tion in the event of municipal annexation, and, when PUC
Decision No. 74654 was announced, no part of the territory
assigned to REA was within the corporate boundaries of the
City.
AS
In 1981, the City annexed areas to the south and west,
including a parcel known as Highland Park West.‘ REA was
authorized to serve a portion of Highland Park West pursuant
to the 1970 stipulated territorial division approved by the
PUC. At the time of trial, REA was providing service to
approximately five customers in Highland Park West and its
certificate of public convenience and necessity authorized
REA to serve only the area within the western edge of the
subdivision. The remainder of the subdivision was certifi-
cated to Home Light.
On July 15, 1981, Home Light filed Application No. 34000
with the PUC to determine whether Home Light's 1968 City
franchise included the right to provide electric service in the
annexed area, including that portion of Highland Park certifi-
cated to REA. A hearing was held and the hearing officer
recommended that the application be dismissed. Home Light
sought review by the PUC and filed exceptions to the hearing
officer's recommendation. The PUC adopted the hearing
officer’s recommendation and concluded that REA rather
than Home Light was authorized to provide service in its
certificated area within the annexed territory. The PUC
declared that a certificated area constitutes a valuable prop-
erty right that cannot be taken except by due process of law,
and that due process is satisfied only upon a showing that the
certificated utility is unwilling or unable to serve its certifi-
cated area. The PUC determined that Home Light did not
introduce any evidence “to establish unfitness on the part of
Poudre Valley [REA] to serve the area in question,” and
dismissed Home Light's application. The final paragraph of
the PUC decision states:
Home Light contends... that it obtained a franchise
from Greeley to provide utility service within the Gree-
ley municipal boundaries. Home Light further contends
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that this right extends to future annexations of the city,
and areas certificated to Poudre Valley outside of such
area must give way to the franchise right. The Commis-
sion need not decide whether this abstract statement by
Home Light is legally correct, [because] in any event
this contention disregards the 1970 agreement between
Home Light and Poudre Valley, where these parties
agreed to serve certain areas on an exclusive basis. By
the 1970 agreement, territory to the south and west of
the 1970 city limits of Greeley, the area involved in this
proceeding, was to be served by Poudre Valley on an
exclusive basis. The Commission gave specific approval
and effect to this agreement in Decision No. 74654, dated
April 3, 1970. Accordingly, Home Light and Power vol-
untarily surrendered its right to serve in the area in
question.
Home Light did not seek judicial review of the PUC order
dismissing its application. See § 40-6-115, 17 C.R.S. (1984).
On May 18, 1982,5 the City Council enacted Ordinances 26
and 27. Ordinance 26, codified as Chapter 14.40 of the City
Code, required an electric utility to obtain a city franchise
before operating within the city limits:
14.40.010 Compliance. It is unlawful to maintain or
install any wires, cables or other equipment for the
transmission of electric current impulses in, on, under or
over any street, alley, sidewalk or other public place in
the city, or to maintain or install any pole or mast to
support or hold such wires or equipment in any such
place, without having fully complied with the provisions
of this chapter.
14.40.020 Franchise — Required. After the effective
date of the ordinance codified in this section, no such
A7
wire, cable, pole or other equipment shall be installed or
maintained over, on or under any such place unless,
pursuant to Article XVIII of the Charter of the city, a
franchise has been granted for such installation or main-
tenance. In order to permit the necessary time to obtain
a franchise pursuant to Article XVIII of the City Charter,
any facilities described in Section 14.40.010 which exist
on the effective date of the ordinance codified in this
section may continue to be maintained for a period of
one hundred eighty days after the effective date of the
ordinance codified in this section without the require-
ment of a franchise.
Section 18-3 of Article XVIII of the City Charter prohibited
the City from granting any franchise “except »pon the major-
ity vote of the qualified electors voting thereon at a special
election called for such purpose.”® Ordinance 27 authorized
an election by qualified electors to determine whether a
franchise should be awarded to REA. The terms of the
proposed franchise were essentially the same as those of the
franchise granted to Home Light in 1968. The election was
held on July 13, 1982, and the electorate rejected the pro-
posed franchise by a vote of 1,505 to 419.
On September 22, 1982, the City commenced this action
for declaratory judgment against REA in the Weld County
District Court. The original complaint sought (1) a declara-
tion that REA could not operate that portion of its electric
distribution system installed within the City without ob-
taining a franchise, and (2) an injunction ordering REA to
cease operating that system and dispose of it. Home Light
was permitted to intervene, and its complaint sought (1) a
declaration that Home Light was the proper utility to render
electric service within the city limits, and (2) an injunction
prohibiting REA from providing electric service within the
A8
City. REA answered the City’s complaint and Home Light’s
complaint in intervention. The City amended its complaint,
limiting its prayer for injunctive relief to prohibit REA from
extending its facilities without first obtaining a franchise.
Home Light did not amend its complaint in intervention.
Trial was held in May 1984. The trial court found that
(1) REA serves a total of 17,000 customers, six of whom were
located within the City, (2) REA obtained its power through
a statewide and interstate network, and (3) REA’s “predomi-
nant epicenter is not limited to a local focus, and particularly
is not limited-to plaintiff city.” The district court concluded:
3. Decision No. 74664 of the Colorado Public Utilities
Commission dividing territory in Weld County, Colo-
rado, between plaintiff Home Light and defendant is
equivalent to a state franchise for defendant to provide
electric service to the territory assigned to it.
4. Plaintiff Greeley does not have the power to re-
quire a city franchise as a condition for service by
defendant in the portions of plaintiff Greeley lying
within the area assigned to defendant by the Colorado
Public Utilities Commission decision No. 74664.
5. Plaintiff Home Light may not provide electric ser-
vice to those portions of plaintiff Greeley within the area
assigned to defendant by decision No. 74664 of the
Colorado Public Utilities Commission
The district court entered the following judgment:
(A) The plaintiff City of Greeley, Colorado, has no
power to require a city franchise as a condition to the
continuation or expansion of the electric service pro-
vided by the defendant [REA] in any area which was
awarded to that defendant by [PUC] decision
No. 74664 ..., dividing territory in Weld County, Colo-
bites nenieeiieanteiatenemnelll
A9
rado, between defendant and plaintiff Home Light and
Power Company and which area has been or shall here-
after be annexed to plaintiff City of Greeley. Any provi-
sions of the charter or ordinances of the plaintiff City of
Greeley requiring such a franchise are void as against
defendant.
(B) Regardless of the terms of its city franchise from
plaintiff City of Greeley, plaintiff Home Light and Power
Company may not provide electric service to the por-
tions of plaintiff City ef Greeley lying within the area
which was awarded to defendant [REA] by [PUC]
decision No. 74664....
Il.
The City contends that REA cannot use streets, alleys,
sidewalks or other public places to expand its present facili-
ties in the annexed area without first obtaining a city
franchise in accordance with section 14.40 of the City Code
and Article XVIII of the City Charter. REA maintains that the
City cannot condition REA’s expansion of its current facili-
ties within the annexed area upon the acquisition of a munic-
ipal franchise because (1) REA’s certificate of public
convenience and necessity is a state franchise to provide
service in its certificated area, and (2) the state franchise
supersedes the requirement for a municipal franchise be-
cause REA’s business is a matter of statewide concern. It is
necessary to review the nature and the source of the rights
conferred by municipal franchises and PUC certificates of
public convenience and necessity to resolve the issues on
appeal. -
Al0
A. Municipal Franchises
We have defined a franchise as “a special right or privilege,
granted by a government to an individual or corporation —
such a right as does not ordinarily belong to citizens in
general.” City of Englewood v. Mountain State Tel. ¢> Tel. Co.,
163 Colo. 400, 405, 431 P.2d 40, 43 (1967); see also Community
Tele-Communications v. Heather Corp., 677 P.2d 330 (Colo.
1984); City of Englewood v. Crabtree, 157 Colo. 593, 404 P.2d
525, cert. dismissed, 382 U.S. 934 (1965); see generally 12 E.
McQuillin, Municipal Corporations § 34.03, at 11 (3d ed.
1986). A “grant of a right to maintain and operate public
utilities within a municipality and to exact compensation for
such services is a franchise.” 12 E. McQuillin, Municipal
Corporations § 34.03, at 11 (3d ed. 1986); see also Berman v.
City and County of Denver, 120 Colo. 218, 209 P.2d 754 (1949)
(authorization to operate busses and trolleys along Denver
streets was a franchise); Baker v. Denver Tramway Co., 72
Colo. 233, 210 P. 845 (1922) (authorization for the construc-
tion of a street railway was a franchise).
The state has the power to grant franchises because the
franchise power inheres in the sovereign. Thus, a “municipal
corporation in granting [a franchise] acts as the agent of the
state. In this relation it represents the state’s sovereign
power.” 12 E. McQuillin, Municipal Corporations § 34.03, at 11
(3d ed. 1986); see also Sioux City St. Ry. Co. v. Sioux City, 138
U.S. 98 (1891); Hayes v. Michigan Cent. R.R. Co., 111 U.S. 228
(1884). The power of the sovereign to grant franchises is
subject, of course, to constitutional limitations, “as, for exam-
ple, a provision requiring the obtaining, in respect of certain
franchises, of the consent of local authorities... .” 37 C.J.S.
Franchises § 14, at 157 (1943).
When this case was commenced, the Colorado Constitu-
tion prohibited the grant of a franchise “relating to any
All
street, alley or public place” in the City and County of
Denver “except upon the vote of the qualified taxpaying
electors ....” Colo. Const. art. XX, § 4. The same prohibition
was extended to all home rule municipalities by Colo. Const.
art. XX, §6. See e.g., Community Tele-Communications v.
Heather Corp., 677 P.2d 330 (Colo. 1984). The object of
article XX, sections 4 and 6, is to give the taxpaying electors
of home rule cities absolute control over the granting of
franchises to use city streets, alleys and public places. Id. at
336; Berman v. City and County of Denver, 120 Colo. 218, 239,
209 P.2d 754, 760 (1949); Ward v. Colorado E. R.R. Co., 22
Colo. App. 332, 135 P. 567 (1912), afd, 59 Colo. 589, 149 P.
1193 (1915). Thus, our Constitution prohibits the State from
granting a franchise “relating to” the streets of home rule
cities without obtaining the consent of the municipality in
the form of a vote of the qualified, taxpaying electors.
B. Certificates of Public Convenience
In 1954, the Colorado Constitution was amended to in-
clude Article XXV, which provides:
Public Utilities
In addition to the powers now vested in the General
Assembly of the State of Colorado, all power to regulate
the facilities, service and rates and charges therefor,
including facilities and service and rates and charges
therefor within home rule cities and home rule towns, of
every corporation, individual, or association of individu-
als, wheresoever situate or operating within the State of
Colorado, whether within or without a home rule city or
home rule town, as a public utility, as presently or as may
hereafter be defined as a public utility by the laws of the
State of Colorado, is hereby vested in such agency of the
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State of Colorado as the General Assembly shall by law
designate.
Until such time as the General Assembly may other-
wise designate, said authority shall be vested in the
Public Utilities Commission of the State of Colorado;
provided, however, nothing herein shall affect the power of
municipalities to exercise reasonable police and licensing
powers, nor their power to grant franchises; and provided,
further, that nothing herein shall be construed to apply
to municipally owned utilities.
(Emphasis added).
Article XXV vests the PUC with the power to regulate the
“facilities and service and rates and charges therefor” of
public utilities, “wheresoever situate or operating within the
State of Colorado, whether within or without a home rule
city or home rule town.” The authority granted is subject to
two exceptions: Article XXV does not affect the power of
municipalities to exercise reasonable police and licensing
powers, “nor their power to grant franchises,” nor does it
apply to municipally owned facilities.
Article XXV grants the PUC authority to issue certificates
of public convenience and necessity. See Miller Bros. v. Public
Util. Comm’n, 185 Colo. 414, 525 P.2d 443 (1974). Generally, a
certificate of public convenience and necessity creates a
right to service the customers in the certificated region,
unless the company is not ready, willing, and able to provide
the service requested. Rocky Mountain Natural Gas Co. v.
Public Util. Comm’n, 199 Colo. 352, 617 P.2d 1175 (1980). We
have stated that the “right to give service under an existing
certificate of convenience and necessity is a property right
under Colorado law and may not be affected except by due
Le
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process of law.” Public Serv. Co. v. Public Util. Comm’n, 174
Colo. 231, 234, 483 P.2d 1337, 1339 (1971) (citation omitted).
The authority of the PUC to grant certificates of public
convenience and necessity is expressly limited by our consti-
tution and statutes. Union Rural Elec. Ass’n v. Town of Freder-
ick, 670 P.2d 4, 6 (Colo. 1983). Colorado Constitution article
XXV, the provision which vests the PUC with its broad
regulatory authority, expressly provides that it does not affect
a municipality's authority to grant franchises, which is: re-
served to its taxpaying electorate. Colo. Const. art. XX, {§ 4,
6. The statutes delineating the power and jurisdiction of the
PUC also indicate that a PUC certificate is in addition to, and
not superior to, a municipal franchise. Section 40-5-101. 17
C.R.S. (1984), prohibits a public utility from constructing “a
new facility, plant, or system ... without first” obtaining
“from the commission a certificate that the present or future
public convenience and necessity require or will require
such construction.” Section 40-5-102, 17 C.R.S. (1984), im-
poses the limitation that a public utility “shall not exercise
any right or privilege under any franchise ... granted after
April 12, 1913, ... without first having obtained from the
commission a certificate that public convenience and neces-
sity require the exercise of such right or privilege.” (Empha-
sis added.) Accordingly, “[e]very applicant for a certificate
to exercise franchise rights under section 40-5-102 shall file in
the office of the commission such evidence ... to show that
such applicant has received the required consent, franchise,
permit, ordinance, vote, or other authority of the proper ...
municipal or other public authority.” § 40-5-103(1), 17 C.R.S.
(1984) (emphasis added). The constitutional and statutory
provisions demonstrate that municipal and PUC consent are
necessary to operate a public utility within a home rule city:
neither the General Assembly nor its designated agency, the
PUC, is empowered to grant a public utility a franchise to
a
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use a home rule city’s streets, alleys, and public places in the
absence of the municipality’s consent.
Il.
REA and the trial court relied exclusively on our decision
in City of Englewood v. Mountain States Telephone ¢> Telegraph
Co., 163 Colo. 400, 431 P.2d 40 (1967) (hereinafter City of
Englewood). In that case, the telephone company was
granted a franchise by Englewood, then a statutory city, to
operate its telephone system within the city limits. Engle-
wood subsequently became a home rule city under Colorado
Constitution article XX. The twenty-year franchise expired
thereafter, and the telephone company refused to seek a new
agreement. We held that the telephone company had ac-
quired a state franchise, absolving it of any need to seek a
renewal of the city franchise. Our holding was based on
sections 50-5-1 and 50-5-8, 3 C.R.S. (1963), which provided:
50-5-1. Use of public highways. Any domestic or for-
eign telegraph, telephone, electric light power gas, or
pipeline company authorized to do business under the
laws of this state or any city or town owning electric
power producing or distribution facilities shall have the
right to construct, maintain, and operate lines of tele-
graph, telephone, electric light, wire or power or pipe-
line along, across, upon and under any public highway in
this state, subject to the provisions of this article. such
lines of telegraph, telephone, electric light, wire or
power or pipeline shall be so constructed and main-
tained as not to obstruct or hinder the usual travel on
such highway.
50-5-8. Consent necessary to use of streets. Nothing in
this article shall be construed to authorize any person,
partnership, association, corporation, or city or town to
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:
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erect any poles, construct any telegraph, telephone, elec-
tric light power line, or pipeline, or extend any wires or
lines along, through, in, upon, under, or over any streets
or alleys of any city or incorporated town without having
first obtained the consent of the municipal authorities
having power to give the consent of such city or incorpo-
rated town.
(Emphasis as quoted in City of Englewood.)
We held that the telephone company
acquired what in law is a valid state franchise or right by
virtue of C.R.S. 1963 50-5-1 and -8. This permitted it not
only to maintain its facilities in plaintiffs public ways,
but also the right to construct and operate additional
ones therein without obtaining a city franchise. In our
view the provisions of 50-5-1 are well within the bounda-
ries of [Colo. Const.] Art. XXV and, in addition, we hold
that the term “public highway” as used in 50-5-1 is not
limited to those highways located outside the boundaries
of home rule cities, but must include streets within such
cities as well.
City of Englewood, 163 Colo. at 405, 431 P.2d at 42 (citations
omitted).
Sections 50-5-1 and -8, 3 C.R.S. (1963), have been recodi-
fied in identical language as sections 38-5-101 and -108, 16A
C.R.S. (1982). REA maintains that it is an electric light power
company within the meaning of section 38-5-101, and that,
under our holding in City of Englewood, it too is exempt from
having to obtain a city franchise. We disagree.
In City of Englewood, the telephone company obtained the
consent of the city to use its streets when the original
franchise was granted in 1943. We held that, having thus
Al6
“obtained the consent of the municipal authorities,” section
50-5-1 granted the telephone company a state franchise to
continue using public highways, i.e., city streets, without
acquiring a city franchise. Only this interpretation explains
the court’s emphasis of the particular words of section
50-5-8, 3 C.R.S. (1963). To hold otherwise would be to
interpret City of Englewood as ignoring the limitation on the
use of public ways by public utilities contained in section
50-5-8 and its successor, section 38-5-108, 16A C.R.S. (1982),
and we decline to do so.
In this case, REA has never obtained the consent of the
City to use its streets in order to expand its facilities as they
existed when Highland Park West was annexed. Indeed, REA
sought consent from the qualified electorate and its request
was overwhelmingly rejected in the franchise election. REA
does not occupy the same position as the telephone company
did in City of Englewood, and REA does not come under our
holding in that case.
IV.
We have never before addressed the issue of the effect of a
home rule city’s annexation of an area certificated to a rural
electric association by the PUC. We considered a somewhat
similar scenario in Union Rural Elec. Ass’n v. Town of Frede-
rick, .~’ P.2d 4 (Colo. 1983). Frederick, Colorado is a statu-
tory town that operated a municipally owned electric utility.
The town annexed two tracts of land that were within the
area certificated to Union Rural—Eléctric Association
(Union), and the municipal utility extended its lines to
provide electric service requested by new customers in the
annexed area. Union brought suit to enjoin Frederick from
providing electric service in Union's certificated territory.
We noted that “[b] limiting the PUC’s jurisdiction, the
NN OEE
Al7
Colorado Constitution correspondingly restricts the scope of
the rights granted by the PUC to public utilities.” Id. at 6. We
held that “Frederick’s annexing of the adjacent territory and
its subsequent furnishing of electric service as requested by
new customers within the annexed territory was proper and
did not constitute a taking of Union’s property without due
process of law.” Id. at 9. Our holding was squarely based on
Colo. Const. art. XXV’s proviso that the vesting of regulatory
authority over public utilities in the PUC shall not “be
construed to apply to municipally owned utilities.”
Town of Frederick provides support for our decision today.
Article XXV not only excludes municipal utilities from the
jurisdiction of the PUC, its terms also unequivocally state
that the municipality's “power to grant franchises” shall
remain unaffected. Thus, the authority under which REA
operates, derived as it is from the PUC, cannot authorize
REA to expand its current system and use city streets without
obtaining a municipal franchise.
Our conclusion is consistent with the weight of authority
from other jurisdictions that have addressed the issue. Al-
though the statutory and constitutional provisions differ from
jurisdiction to jurisdiction, the majority view is that a certifi-
cated rural electric association is permitted to continue serv-
ing the customers it had on the date of annexation, but that
the association is not entitled to build or operate new facili-
ties in the annexed area without first obtaining municipal
consent. See Georgia Power Co. v. Altamaha Rural Elec. Mem-
bership Corp., 217 Ga. 376, 122 S.E.2d 250 (1961); Missouri
Public Serv. Co. v. Platte-Clay Elec. Coop., 407 S.W.2d 883
(Mo. 1966); Pee Dee Elec. Membership Corp. v. Carolina Power
d> Light Co., 253 N.C. 610, 117 S.E.2d 764 (1961); Caddo Elec.
Coop. v. State ex rel. Whelan, 391 P.2d 234 (Okla. 1964); City
of Abbeville v. Aiken Elec. Coop., 287 S.C. 361, 338 S.E.2d 831
Als
(1985); State ex rel. Southern Gas and Elec. Co. v. Upshur
Rural Elec. Coop., 156 Tex. 633, 298 S.W.2d 805 (1957); Tri-
City Elec. Ass'n v. City of Gillette, 584 P.2d 995 (Wyo. 1978);
but see Delta Elec. Power Ass’n v. Mississippi Power & Light
Co., 250 Miss. 482, 149 So. 2d 504, cert. denied, 375 U.S. 77
(1963); Town of Culpeper v. Virginia Elec. and Power Co., 207
S.E.2d 864 (Va. 1974) (both cases holding that municipal
annexation cannot affect rural electric association's right to
serve current and future members within the utilities’ certifi-
cated areas).
V.
We hold that REA cannot extend its facilities as they
existed at the time of the annexation without obtaining a city
franchise for that purpose. REA is entitled to continue oper-
ating and maintaining its facilities within the City as they
existed at the time the Highland Park West annexatio:
became effective. The district court therefore correctly de-
nied the relief requested by Home Light, but erred in deny-
ing the declaratory and injunctive relief requested in the
City’s amended complaint. Accordingly, the judgment of the
district court is affirmed in part and reversed in part, and the
case is remanded for further proceedings consistent with this
opinion.
Al9
1 The City and Home Light filed the appeal in this court initially,
and requested that we take jurisdiction pursuant to section 13-4-
102(1)(b), 6 C.R.S. (1973)
2Section 40-1-103(2)(a), 17 C.R.S. (1984), states in pertinent
part:
Every cooperative electric association, or nonprofit electric
corporation or association, and every other supplier of electric
energy, whether supplying electric energy for the use of the
public or for the use of its own members, is hereby declared to
be affected with a public interest and to be a public utility and
to be subject to the jurisdiction, control, and regulation of the
commission and to the provisions of articles 1 to 7 of the title.
3 The parties apparently did not introduce a copy of PUC Deci-
sion No. 71606 into evidence. While we are unable to review the
language of the PUC’s decision, the parties agree that the PUC
approved Home Light's exercise of the City franchise rights.
‘The Highland Park West subdivision constitutes approximately
the southwest quarter of Section 15, Township 5 North, Range 66
West, Sixth Principal Meridian, in Weld County, Colorado.
5 Before Home Light filed Application No. 34000 with the PUC, it
had come to the attention of the City that REA was providing
electric service to small areas within the municipal boundaries.
Representatives of the City and REA began preliminary negotia-
tions to award a franchise to REA to operate within the City limits.
The negotiations were held in abeyance when the 1981 PUC
proceeding was commenced. After the PUC ruled in favor of REA,
the parties once again turned their attention to the matter of a city
franchise for REA.
The record reveals that REA originally sought a city franchise on
June 2, 1981. After the PUC issued its decision dismissing Home
Light’s Application No. 34000, REA advised the City that it sought a
“permit” rather than a franchise in order to operate within the City
boundaries. REA objected to and declined to participate in the
special franchise election.
A20
6 City Charter section 18.3 conformed to the Colorado Constitu-
tion’s limitations on the granting of franchises by home rule cities.
At all times relevant to this decision, Colo. Const. Art. XX, § 4
provided:
No franchise relating to any street, alley or public
place... shall be granted except upon the vote of the regis-
tered electors ....
Although article XX, section 4 by its terms applies only to the
City and County of Denver, its provisions are made applicable to
other home rule municipalities by article XX, section 6.
In November 1986, the voters of Colorado amended Colo.
Const. Art. XX, §4 to eliminate the requirement that franchise
questions be automatically submitted to a vote. The amendment
explicitly states, however, that the award of any franchise is subject
to the powers of initiative and referendum. The current version of
Art. XX, § 4 states in pertinent part:
(4) Any franchise relating to any street, alley, or public place
of the said city and county shall be subject to the initiative and
referendum powers reserved to the people under Section 1 of
Article V of this constitution. Such referendum power shall be
guaranteed notwithstanding a recital in an ordinance granting
such franchise that such ordinance is necessary for the imme-
diate preservation of the public peace, health, and safety. Not
more than five percent of the registered electors of a home
rule city shall be required to order such referendum. Nothing
in this section shall preclude a home rule charter provision
which requires a lesser number of registered electors to order
such referendum or which requires a franchise to be voted on
by the registered electors ....
i
See House Concurrent Resolution No. 1002, § 1, 1986 Colo. Sess.
Laws 1239, 1240. The governor proclaimed the passage of the
amendment after the election results were tabulated and certified.
Executive Order, “Proclamation Certifying Vote on Certain Mea-
sures,” 2, § 3 (December 17, 1986).
The constitutional amendment does not affect our resolution of
this case.
A21
APPENDIX B
DISTRICT COURT, WELD COUNTY, COLORADO
Civil Action No. 82 CV 617
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
JUDGMENT
Crry OF GREELEY, COLORADO, a municipal corporation, and
HoME LIGHT AND PowenR, INC., a Colorado corporation,
Plaintiffs,
vs.
POUDRE VALLEY RURAL ELECTRIC ASSOCIATION, INC.,
a Colorado corporation,
Defendant.
FINDINGS OF FACT
1. Plaintiff Greeley is a home rule city organized pursuant
to Article XX Section 6 of the Constitution of the State of
Colorado.
2. On June 18, 1968, plaintiff Greeley granted to plaintiff
Home Light a franchise giving to said plaintiff Home Light
the right to provide electric service within the plaintiff city.
That franchise was confirmed by order of the Colorado
Public Utilities Commission dated July 18, 1968.
3. Plaintiff Home Light is a private corporation operating
an investor-owned utility business. It is not a municipally-
owned utility.
4. Defendant is a cooperative electric association and is a
public utility by virtue of C.R.S. 40-1-103(2).
A22
Civil Action No. 82 CV 617
5. On April 3, 1970, the Colorado Public Utilities Commis-
sion entered its decision No. 74664 dividing territory in Weld
County, Colorado, between plaintiff Home Light and
defendant.
6. The division of territory provided for in said order was
made pursuant to an agreement negotiated between defen-
dant and plaintiff Home Light.
7. At the time of the Colorado Public Utilities Commission
order no part of the territory assigned to defendant was
within the corporate boundaries of plaintiff Greeley.
8. Subsequent to the granting of the franchise mentioned
in paragraph 2 above and the entry of Colorado Public
Utilities Commission decision No. 74664, plaintiff Greeley
annexed certain territory assigned to defendant by that
decision.
9. The charter of plaintiff Greeley designates firms opera-
ting electric light systems as public utilities and authorizes
the granting of franchises by majority vote of taxpaying
electors, but does not specifically require a public utility to
have a franchise.
10. On June 2, 1981, defendant proposed a franchise agree-
ment with plaintiff Greeley providing for service to those
parts of the city located in defendant's certificated area.
1l. On May 18, 1982, defendant Greeley adopted Ordi-
nance No. 26, 1982, making it a violation to maintain or install
on any street, alley, sidewalk or other public place any
electrical transmission equipment without a franchise.
12. At an election held July 13, 1982, plaintiff Greeley
submitted to its taxpaying electors a proposed franchise
A23
Civil Action No. 82 CV 617
purporting to give defendant the right to operate throughout
the city.
13. Defendant did not participate in the franchise election.
14. In the franchise election the proposal for a franchise
for defendant was defeated.
15. Defendant is willing to serve the portion of plaintiff
‘Greeley located in its certificated area on the same terms as
provided by plaintiff Home Light & Power in the remainder
of the city.
16. The defendant serves about 17,000 customers in Boul-
der, Larimer and Weld counties. Its headquarters is in Fort
Collins, Larimer County, Colorado. About six of its customers
are located in Greeley, Colorado.
17. The defendant secures its power through a cooperative
arrangement with other utility associations which are state-
wide and interstate in extent.
18. The defendant’s utility business is of state-wide con-
cern. Its predominant epicenter is not limited to a local focus,
and particularly is not limited to plaintiff city.
19. Plaintiff Home Light filed application No. 34,000 with
the Colorade Public Utilities Commission seeking to have
defendant expelled from any territory within plaintiff Gree-
ley on the basis of Home Light’s franchise with the City of
Greeley.
20. Plaintiff Greeley intervened in application No. 34,000
and supported the position of plaintiff Home Light.
21. On March 30, 1982, the Colorado Public Utilities Com-
mission entered its order denying application No. 34,000.
A24
Civil Action No. 82 CV 617
22. Plaintiff Home Light’s filing of application No. 34,000 in
the PUC was a good faith effort and its action in participating
in these proceedings is a good faith effort before this court.
Neither action is a breach of any contract which plaintiff
Home Light may have with defendant, nor was either action
frivolous nor without reasonable foundation.
23. The question of annexations was brought up in the
negotiations which led to the stipulation and to Colorado
Public Utilities Commission Order No. 74664. Such negotia-
tions did not finally resolve the question of which should
serve in annexed areas. It was the view of plaintiff Home
Light that it has the right to serve in annexed territories even
though such right was not set forth in the stipulation dividing
territories. Such view was not unreasonable even though
incorrect.
24. Because of the unsettled condition of the law at the
time of the negotiations between plaintiff Home Light and
defendant regarding division of territory, it was reasonable
for them to negotiate concerning the expansion of the plain-
tiff Greeley even though no specific mention of such expan-
sion was made in the stipulation for settlement.
25. Plaintiff Home Light’s actions in connection with the
election of June 13, 1982, were reasonable and did not
manifest any bad faith regarding its contract with defendant.
26. Greeley mayor Michael Lehan opposed service in plain-
tiff Greeley by defendant both as a result of its adverse effect
upon his personal financial interest and his philosophical
view that it should not be serving within the city of Greeley.
Civil Action No. 82 CV 617
27. Greeley councilmember Warren Terry opposed exten-
sion of service within plaintiff Greeley by defendant but felt
it had a right to maintain its current customers.
28. Greeley councilmember Irma Princic expressed reser-
vations concerning defendant’s service within plaintiff Gree-
ley on the basis of comparative interest factors.
29. The position of the remaining councilmembers or may-
ors concerning service by defendant within plaintiff Greeley
could not be determined from the evidence.
30. Mr. Mike Geile, general manager of plaintiff Home
Light, discussed with officials of plaintiff Greeley the view-
point of plaintiff Home Light and the position he felt that
plaintiff Greeley should take.
31. There exists no other evidence to support the claim for
relief based on conspiracy.
32. Action was postponed on defendant’s request for a
franchise agreement in July, 1981, during the proceedings on
application No. 34,000 before the Colorado Public Utilities
Commission. This postponement was to maintain the status
quo.
33. The intervention of plaintiff Greeley in application
No. 34,000 before the Colorado Public Utilities Commission
was undertaken at the behest of the Colorado Municipal
League, not of plaintiff Home Light.
34. Although the officials of plaintiff Greeley favored and
continue to favor service by plaintiff Home Light within the
plaintiff city, their conduct leading to and including the
election of July 13, 1982, was within the bounds of their
discretion and involved no actionable impropriety.
A26
Civil Action No. 82 CV 617
35. To allow the expulsion of a electric utility from portions
of its certificated territory by virtue of annexation of that
territory by a municipality which franchises another utility
would create serious problems. It would handicap the certifi-
cated electric utility in providing suitable service to its
territory because long term planning would be difficult or
impossible. Large scale investment in plant and equipment
could not be jusitified [sic] if the utility were subject to
expulsion at the whim of adjoining cities. These and other
similar considerations would prevent adequate service to
rural territory in the vicinity of expanding cities.
CONCLUSIONS OF LAW
1. The evidence does not support the claims of plaintiffs for
injunctive relief.
2. The evidence is insufficient to establish the counter-
claims of defendant based on conspiracy or breach of
contract.
3. Decision No. 74664 of the Colorado Public Utilities
Commission dividing territory in Weld County, Colorado,
between plaintiff Home Light and defendant is equivalent to
a state franchise for defendant to provide electric service to
the territory assigned to it.
4. Plaintiff Greeley does not have the power to require a
city franchise as a condition for service by defendant in the
portions of plaintiff Greeley lying within the area assigned to
defendant by the Colorado Public Utilities Commission deci-
sion No. 74664.
5. Plaintiff Home Light may not provide electric service to
those portions of plaintiff Greeley lying within the area
A27
Civil] Action No. 82 CV 617
: assigned to defendant by decision No. 74664 of the Colorado
Public Utilities Commission.
6. The issues of the right of plaintiff Greeley to exercise its
police power to tax or to impose reasonable charges and
assessments are not within the issues litigated in this case and
no determination is made concerning them.
IT IS ORDERED, ADJUDGED and DECREED by the
) court as follows:
1. All claims of each party for relief other than declaratory
relief and costs are DENIED.
2. The court makes the following declarations:
(A) The plaintiff City of Greeley, Colorado, has no power
to require a city franchise as a condition to the continuation
or expansion of the electric service provided by the defen-
dant Poudre Valley Rural Electric Association, Inc., in any
area which was awarded to that defendant by decision No.
74664 of the Colorado Public Utilities Commission dated
April 3, 1970, dividing territory in Weld County, Colorado,
between defendant and plaintiff Home Light and Power
Company and which area has been or shall hereafter be
annexed to plaintiff City of Greeley. Any provisions of the
charter or ordinances of the plaintiff City of Greeley requir
ing such a franchise are void as against defendant.
(B) Regardless of the terms of its city franchise from
plaintiff City of Greeley, plaintiff Home Light and Power
Company may not provide electric service to the portions of
plaintiff City of Greeley lying within the area which was
awarded to defendant Poudre Valley Rural Electric Associa-
tion, Inc., by decision No. 74664 of the Colorado Public
Utilities Commission dated April 3, 1970, dividing territory in
SS
A28
Civil Action No. 82 CV 617
Weld County, Colorado, between defendant and plaintiff
Home Light and Power Company.
3. Defendant shall have judgment for its costs.
DATED July 18, 1985.
BY THE COURT:
/s/ Robert A. Behrman
District Judge
A29 ~
APPENDIX C
BEFORE THE PUBLIC UTILITIES COMMISSION
OF THE STATE OF COLORADO
IN THE MATTER OF THE
APPLICATION OF HOME LIGHT AND
POWER COMPANY, 810 NINTH
STREET, GREELEY, COLORADO, FOR
CLARIFICATION AND
RECONCILIATION OF CONFLICTING
PROVISIONS IN CERTIFICATES OF
PUBLIC CONVENIENCE AND
NECESSITY HELD BY IT AND BY
POUDRE VALLEY RURAL ELECTRIC
ASSOCIATION, INC. ‘
| APPLICATION
NO. 34000
APPLICATION
The Applicant respectfully states:
__1. Applicant is an operating public utility subject to
the jurisdiction of this Commission engaged, inter alia, in
the purchase, distribution and sale of electric power and
energy to domestic, commercial, and industrial custom-
ers in the City of Greeley, Colorado, and contiguous
areas in the County of Weld.
2. The City of Greeley is a Home Rule City, organized
and existing under Article XX of the Constitution of the
State of Colorado.
3. At an election held June 18, 1968, the taxpaying
electors of the City of Greeley approved the grant of a
franchise to Applicant for the distribution and sale of
electricity for a term of twenty-five (25) years within the
City of Greeley.
A30
4. Under the terms of the aforesaid franchise, Appli-
cant was granted the right, privilege and authority to
locate, build, extend, maintain and operate facilities for
the transmission and distribution of electric energy and
to sell and distribute electric energy within the City and
to the inhabitants thereof, over, through and across the
streets, alleys, roads and other public ways within the
City, and “as may be hereinafter laid out, opened, lo-
cated or constructed within the territory now or herein-
after included within the boundaries of said City”. It was
further agreed that the Applicant would “furnish electric
energy within the corporate limits of the City as such
limits now exist or may during the term of this franchise
be extended”.
5. By Decision No. 71606 of this Commission, dated
July 18, 1968, it was found that “... the public conve-
nience and necessity require and will require the exer-
cise by Home Light and Power of the franchise rights
approved by the voters of the City of Greeley as set forth
in ...” the aforesaid franchise ordinance. Such Order
constituted a certificate of public convenience and ne-
cessity therefor.
6. In reliance upon the grant to it of the aforesaid
franchise by the City of Greeley and the aforesaid Order
of this Commission, authorizing the exercise of such
franchise rights, Applicant has maintained and improved
_its electric distribution system in the City of Greeley
sufficient to serve its customers located therein and
customers located in areas annexed to the City. Such
annexations have occurred since the franchise was
granted to Applicant in 1968 and Applicant has extended
service within such annexed areas.
- oe | er he ner Se
A3l
7. On April 3, 1970, by Decision No. 74654, a Recom-
mended Decision was entered by an Examiner (which
subsequently, by operation of law, became the decision
of this Commission) under the terms of which a territo-
rial division was made between Applicant and Poudre
Valley Rural Electric Association, Inc., (“Poudre Val-
ley”) setting forth areas for electric service for each
electric utility in the County of Weld, State of Colorado.
Poudre Valley is a cooperative electric association sub-
ject to the jurisdiction, control, and regulation of this
Commission which renders electric service in portions of
Larimer, Weld and Boulder Counties, Colorado.
8. By reason of annexations by and to the City of
Greeley, the municipal limits of the City of Greeley are
now approaching that territory certified by the Commis-
sion in the aforesaid Commission Decision No. 74654 to
be served by Poudre Valley and, in fact, a recent annexa-
tion by the City of Greeley included territory certifi-
cated to be served by Poudre Valley under the terms of
the aforesaid Decision No. 74654.
9. Article XXV of the Constitution of the State of
Colorado, which is the constitutional provision under
which the Public Utilities Commission of the State of
Colorado derives its power and authority, provides in
pertinent part as follows: “... nothing herein shall affect
the power of municipalities to exercise reasonable police
and licensing power nor their power to grant franchises;
...”. By reason of the foregoing limitation on its powers,
this Commission is without lawful authority to interfere
with or limit the franchise agreement between the City
of Greeley and Applicant, or to authorize any continua-
tion or extension of electric service by Poudre Valley
within the municipal limits of the City of Greeley.
A32
10. The public interest and the interest of the citizens
of the City of Greeley will be served if the utility
franchised to serve within the City of Greeley, Appli-
cant, is authorized to extend electric service into areas
annexed by the City of Greeley, even though such areas
may be within territories otherwise authorized to be
served by Poudre Valley. The public convenience and
necessity requires that Applicant be authorized to fully
perform its ebligations under the franchise granted to it
by the taxpaying electors of the City of Greeley.
11. Applicant is ready, willing and able to render
electric service to all of the inhabitants, customers, and
businesses located within the City of Greeley as the
municipal boundaries thereof exist or may hereinafter be
enlarged, all as authorized and required by the franchise
granted to Applicant by the City of Greeley and the
aforesaid Decision No. 71606 of this Commission author-
izing the exercise of such franchise rights.
~~
A33
WHEREFORE, Applicant asks that the Public Utilities
Commission of the State of Colorado enters an Order clarify-
ing and limiting the rights of Poudre Valley under the afore-
said Decision No. 74654 and limiting the right of Poudre
Valley to extend service to new customers when such cus-
tomers are located within the municipal boundaries of the
City of Greeley.
DATED at Denver, Colorado, this 15th day of July, 1981.
KELLY, STANSFIELD
& O'DONNELL
By /s/_ Donald D. Cawelti
Donald D. Cawelti — #2838
550 15th Street — Suite 900
Denver, Colorado 80202
Telephone: 825-3534
ATTORNEYS FOR
APPLICANT
HOME LIGHT AND POWER
COMPANY
A34
APPENDIX D
(Decision No. C32-459)
BEFORE THE PUBLIC UTILITIES COMMISSION
OF THE STATE OF COLORADO
IN THE MATTER OF THE ;
APPLICATION OF HOME LIGHT AND
Pp C APPLICATION
OWER COMPANY “a oi
810 NINTH STREET, GREELEY,
COLORADO, FOR CLARIFICATION AND ORDER OF THE
RECONCILIATION OF CONFLICTING COMMISSION
DENYING
PROVISIONS IN CERTIFICATES OF
PUBLIC CONVENIENCE AND
NECESSITY HELD BY IT AND BY
POUDRE VALLEY RURAL ELECTRIC
ASSOCIATION, INC. }
EXCEPTIONS AND
ENTERING INITIAL
DECISION
March 30, 1982
STATEMENT OF THE CASE
BY THE COMMISSION:
By application filed July 15, 1981, Home Light and Power
Company seeks an order from this Commission recognizing it
as the only electric distribution utility authorized to serve
pursuant to franchise, in recently annexed areas of the City
of Greeley, which recently annexed areas lie in whole or in
part within the certificated territory of Poudre Valley Rural
Electric Association. Home Light requests that this Commis-
sion enter an order expelling Poudre Valley Rural Electric
Association from all areas located within the municipal
boundaries of the City of Greeley. On July 20, 1981, the
A35
Commission sent notice to all who might desire to protest,
object or intervene in the within matter.
On August 3, 1981, Union Rural Electric Association, Inc.,
petitioned for leave to intervene, which petition was granted
on August 14, 1981. Similarly, on August 10, 1981, the Colo-
rado Rural Electric Association (CREA) filed a motion for
leave to intervene; permission to intervene was granted on
August 14, 1981. On August 19, 1981, Poudre Valley Rural
Electric Association, Inc., protested the application. Possibly
because said protest may have been untimely, Poudre Valley
also moved to intervene in the within matter on October 16,
1981, and said intervention was permitted on October 30,
1981.
Originally scheduled for hearing in October, 1981, the
matter was finally heard on December 21, 1981, by Examiner
Arthur G. Staliwe. At the conclusion of Applicant’s case, the
application was dismissed.
On January 12, 1982, Examiner Arthur G. Staliwe issued
Recommended Decision No. R82-44 which recommended
that the application be denied.
Home Light and Power filed exceptions to Recommended
Decision No. R82-44 on March 8, 1982. By the exceptions,
Home Light and Power contends that the right of Home
Light and Power to serve all territories within the municipal
boundaries of Greeley under its franchise from Greeley, is
paramount to the right of Poudre Valley REA to serve such
areas pursuant to a certificate of public convenience and
necessity issued by this Commission. Home Light and Power
also contends that the Examiner erred in requiring proof of
the unwillingness or inability of Poudre Valley to provide
service in certain areas of Greeley, before requiring it to
cease extending service in the city limits of Greeley where it
has no franchise. Union REA filed response to the exceptions
A36
of Home Light on March 19, 1982. Poudre Valley REA filed
response to exceptions on March 18, 1982.
On March 18, 1982, CREA filed a motion for extension of
time to file reply to exceptions. This motion was granted on
March 29, 1982 by Executive Ruling No. ER82-117. CREA
filed its response on March 26, 1982.
Although the Commission is not in complete disagreement
with the Recommended Decision of the Examiner, for pur-
poses of clarity the Commission will enter its order contain-
ing its own findings of fact, conclusions on findings of fact
and order without regard to Recommended Decision
No. R82-44.
FINDINGS OF FACT AND CONCLUSIONS THEREON
Based upon all the evidence of record, the following facts
are found and conclusions are drawn:
1. In July, 1968, the Commission specifically approved
Home Light and Power Company (Home Light) exercising a
franchise for the purchase, transmission, distribution and sale
of electricity in the City of Greeley. The twenty-five year
franchise provided in pertinent part:
“The Company shall furnish electric energy within the
corporate limits of the city as such limits now exist or
may during the term of this franchise be extended, .. .”
Poudre Valley Rural Electric Association, Inc. (Poudre Val-
ley) was a protestant in that proceeding. See Exhibit 2,
Decision No. 71606, July 18, 1968.
2. In 1970, Home Light and Poudre Valley entered into an
agreement as to the boundaries of the territory which each
would be certificated to serve on an exclusive basis. The
Commission gave effect to this agreement in Decision No. 74654,
A37
dated April 3, 1970. See Exhibit 8. As pertinent here, territory
to the southwest of the 1970 city limits of Greeley was
certificated to Poudre Valley.
3. In 1981, the city of Greeley annexed two parcels of land
to the south and west of the then-city limits of Greeley,
portions of which annexations lie within the certificated
service territory of Poudre Valley. See Exhibits 3, 4 and 5. It is
these recent annexations that Home Light seeks to have
Poudre Valley expelled from, and have it declared to be the
only lawful electric distribution utility pursuant to its 1968
franchise.
4. Poudre Valley REA is a certificated electric distribution
utility and Home Light and Power Company seeks to have
Poudre Valley’s certificate diminished by the amount of land
annexed by the City of Greeley in 1982. No showing was
made in this proceeding that Poudre Valley is unwilling or
unable to serve in the certificated area in question, nor was
any showing made that the public convenience and necessity
requires a change in utilities.
5. A certificated area constitutes a property right which
cannot be taken away except by due process of law. CRS
1973, 40-5-101(2). Due process of law is met where there is
substantial evidence of record to support a finding that the
certificated utility is unwilling or unable to serve its certifi-
cated area, and the public convenience and necessity re-
quires a change.
6. The record in this proceeding fails to establish unfitness
on the part of Poudre Valley to serve the area in question,
and no need on the part of the public for a change of utility
was established. This application should therefore be
dismissed.
A38
7. Home Light contends by its exceptions that it obtained
a franchise from Greeley to provide utility service within the
Greeley municipal boundaries. Home Light further contends
that this right extends to future annexations of the city, and
areas certificated to Poudre Valley outside of such area must
give way to the franchise right. The Commission need not
decide whether this abstract statement by Home Light is
legally correct, [sic] time in any event this contention disre-
gards the 1970 agreement between Home Light and Poudre
Valley, where these parties agreed to serve certain areas on
an exclusive basis. By the 1970 agreement, territory to the
south and west of the 1970 city limits of Greeley, the area
involved in this proceeding, was to be served by Poudre
Valley on an exclusive basis. The Commission gave specific
approval and effect to this agreement in Decision No. 74654,
dated April 3, 1970. Accordingly, Home Light and Power
voluntarily surrendered its right to serve in the area in
question. Therefore, the exceptions of Home Light should be
overruled and denied.
An appropriate Order will be entered.
A39
ORDER
THE COMMISSION ORDERS THAT:
1. The exceptions of Home Light and Power Company to
Recommended Decision No. R82-44, filed on March 8, 1982,
are overruled and denied.
2. Application No. 34000 of Home Light and Power Com-
pany is denied.
This Order shall be effective twenty-one (21) days from
the day and date hereof.
Done IN OPEN MEETING the 30th day of March, 1982.
$3108
THE PUBLIC UTILITIES
COMMISSION OF THE
STATE OF COLORADO
EDYTHE S. MILLER
DANIEL E. MUSE
L. DUANE WOODARD
Commissioners
ATTEST: A TRUE COPY
/s/ Harry A. Galligan, Jr.
Executive Secretary
A40
APPENDIX E
SUPREME COURT, STATE OF COLORADO
CASE NO. 85SA293
APPEAL FROM THE DISTRICT COURT, WELD
COUNTY, #82CV617
ORDER OF COURT
THE Crry oF GREELEY, a municipal corporation, and HOME
LIGHT AND Power CompPaNy, a Colorado corporation,
Plaintiffs-Appellants,
Vs.
POUDRE VALLEY RURAL ELECTRIC ASSOCIATION, INC.,
Defendant-Appellee.
Upon consideration of the Request to Enter Mandate filed
in the above cause, and now being sufficiently advised in the
premises,
IT IS THIS DAY ORDERED that said Request shall be, and
the same hereby is, GRANTED.
BY THE SOURT, NOVEMBER 20, 1987 Ca
weg NCS)
€ HH p
ec: Don K. DeFord, Esq. Supreme Court
109 8th Street, Suite 300 sulteof Colorado
Glenwood Springs, Certified to be a full, true and
Colorado 81601 correct copy
John P. DiFalco, Esq. NOV 20 1987
Edward “Jed” M. Caswall MAC V. DANFORD
Clerk of the
919 Seventh Street Supreme Court
Greeley, Colorado 80631 By /s/ Delsa B. Denlow
Deputy Clerk
A4l
Randolph W. Starr, Esq.
Kenneth L. Starr, Esq.
717 17th Street, #2440
Denver, Colorado 80202
John Conway, Esq.
4704 Harlan Street, Suite 500
Denver, Colorado 80212
Gerald Dahl, Esq.
Tami Tonoue, Esq.
Colorado Municipal League
1500 Grant Street, Suite 200
Denver, Colorado 80203
James R. McCotter, Esq.
James K. Tarpey, Esq.
550 Fifteenth Street, Suite 900
Denver, Colorado 80202
Paula M. Connelly, Esq.
Joseph B. Wilson, Esq.
1401 Seventeenth Street,
Suite 1100
Denver, Colorado 80217
Duane Woodard,
Attorney General
A42
APPENDIX F
SUPREME COURT, STATE OF COLORADO
Case No. 85SA293
NOTICE
Tue Crry or GREELEY, a municipal corporation, and HOME
LIGHT AND Power Company, a Colorado corporation,
Plaintiffs-Appellants,
vs.
PoupDRE VALLEY RURAL ELECTRIC ASSOCIATION, INC..,
Defendant-Appellee.
Please be advised that the Remittitur in the above entitled
action and matter was issued on November 23, 1987.
ce: Don K. DeFord, Esq.
John P. DiFalco, Esq.
Edward “Jed” M. Caswall, Esq.
Randolph W. Starr, Esq.
Kenneth L. Starr, Esq.
Supreme Court
John Conway, Esq. State of Colorado
Gerald Dahl, Esq. cntaaatbees el
Tami Tonoue, Esq. correct copy
James R. McCotter, Esq. NOV 23 1°87
Jemes K. Tarpey, Esq. MAC V. DANFORD
Paula M. Connelly, Esq.
Joseph B. Wilson, Esq.
Duane Woodard By /s/ Delsa B. Denlow
Deputy Clerk
Clerk of the Supreme Court
A43
APPENDIX G
SUPREME COURT, STATE OF COLORADO
Case No. 85SA293
Appeal from the District Court,
Weld County, #82CV617
ORDER OF COURT
Tue Crry OF GREELEY, a municipal corporation, and HoME
LIGHT AND Power Company, a Colorado corporation,
Plaintiffs-Appellants,
vs.
PoUDRE VALLEY RuRAL ELECTRIC ASSOCIATION, INC.,
Defendant-Appellee.
Upon consideration of the Petitions for Rehearing filed in
the above cause, and now being sufficiently advised in the
premises,
IT IS THIS DAY ORDERED that said Petitions for
Rehearing shall be, and the same hereby are, DENIED.
BY THE COURT, EN BANC. October 5, 1987.
A444
ec: Edward “Jed” M. Caswall
Donald D. Cawelti
James K. Tarpey
Kenneth L. Starr
Ann Livedalen
John J. Conway
Gerald E. Dahl Supreme Court
Tami A. Tanoue State of Colorado
Paula M. Connelly Contiied to be on true and
Joseph B. Wilson "
Randolph W. Starr OCT 5 1987
MAC V. DANFORD
Clerk of the Supreme Court
By /s/ Helen Gantz
Deputy Clerk
A45
APPENDIX H
FILED IN THE
SUPREME COURT
OF THE STATE OF
COLORADO
DEC 30 1987
MAC V. DANFORD.
CLERK
SUPREME COURT, STATE OF COLORADO
Case No. 855A293
APPEAL FROM THE DISTRICT COURT,
WELD COUNTY, #82CV617
NOTICE OF APPEAL TO THE SUPREME COURT OF
THE UNITED STATES
Tue Crry of GREELEY, a municipal corporation,
and Home Licut & Power Company, a Colorado
corporation,
Plaintiffs-Appellants.
v.
Poupre VaLtey Rurat ELectric Association, INc..
Defendant-Appellee
Notice is hereby given that Poudre Valley Rural Electric
Association, Inc. (“Poudre”). the Appellee in the above- ~
captioned case, hereby appeals to the Supreme Court of the
United States from the judgment of the Colorado Supreme
Court contained in the Colorado Supreme Court's Septem-
ber §, 1987 opinion which became final on October 5, 1987 by
A4%6
virtue of the Court's October 5, 1987 Order Denying Peti-
tions for Rehearing.
The September §, 1987 opinion reversed the judgment of
the District Court in and for the County of Weld (19th
Judicial District) that Poudre did not need a franchise from
the City of Greeley (“Greeley”) because it had a franchise
from the State of Colorado and held that, even though
Poudre had a franchise from the State of Colorado, Poudre
must obtain a franchise from Greeley “if it desires to use city
streets or public places in order to expand and provide new
service within that portion of its certificated territory that
was annexed by the City.”
By virtue of its September §. 1987 Opinion and the denial
of Poudre’s Petition for Rehearing in its October 5, 1987
Order, the Colorado Supreme Court has upheld the validity
of Greeley’s 1981 Annexation Ordinances, Greeley Ordi-
nance No. 26, 1982 and Article XVIII of the City of Greeley
Charter, notwithstanding Poudre's contentions that they
were repugnant to the Constitution and laws of the United
States. as well as the validity of the Colorado Supreme
Court's action in resolving Poudre’s defenses against it on
appeal without due process of law.
Poudre appeals from the entirety of this final judgment
except that portion of the September 8, 1987 Opinion that
holds that Poudre “is not required to obtain a city franchise
to operate and maintain its electric distribution system within
the City as it existed at the time of the annexation.”
Ad?
This appeal is taken pursuant to 28 U.S.C § 1257(2)
DATED: December 30, 1987
HOLMES & STARR
A Professional Corporation
Kenneth L. Starr (246)
Ann Livedalen (7232)
RANDOLPH W. STARR. P.C
Randolph W. Starr (3183)
221 East 29th Street, #220
P.O. Box 642
Loveland, Colorado 80539
(303) 667-1029
By /s/ Kenneth L. Starr
Attorneys for Poudre Valley
Rural Electric Association, Inc
717 17th Street, Suite 2440
Denver, Colorado 80202
(303) 292-1500
A4§
APPENDIX I
SUPREME COURT, STATE OF COLORADO
Case No. 85-SA-293
APPELLEE’S PETITION FOR REHEARING WITH
RESPECT TO THE EN BANC SEPTEMBER 8, 1987
JUDGMENT, JUSTICE ERICKSON DELIVERING THE
OPINION OF THE COURT
THE City OF GREELEY,
COLORADO, a municipal
corporation, and HOME
LIGHT AND POWER
ComPANY, a Colorado
corporation,
Plaintiffs-Appellants,
v.
POUDRE VALLEY RURAL
ELECTRIC ASSOCIATION,
Inc., a Colorado
corporation,
Defendant-Appellee.
Appeal Directly to the
Colorado Supreme Court
Pursuant to
§ 13-4-102(1) (b), 6 CRS.
(1973)
from the DISTRICT
COURT, WELD
COUNTY, No. 82-CV-617
The Honorable Robert A.
Behrman
DATED: September 22
, 1987.
HOLMES & STARR
A Professional Corporation
Kenneth L. Starr (246)
Ann Livedalen (7232)
717 Seventeenth Street
Suite 2440
Denver, Colorado 80202
(303) 292-1500
A49
RANDOLPH W. STARR, P.C.
Randolph W. Starr (3183)
221 East 29th St.,
Suite 220
P.O. Box 642
Loveland, Colorado 80539
(303) 667-1029
Attorneys for Appellee
Appellee Poudre Valley Rural Electric Association, Inc.
(“Poudre”) respectfully petitions the Court pursuant to
C.A.R. 40 for a rehearing on the following grounds:
1. The Court’s September 8, 1987 Opinion (the “Opin-
ion”) overlooks substantial unresolved defenses (listed in the
Appendix hereto) which could not be presented on appeal
because the District Court concluded that the City of Gree-
ley (“Greeley”) lacked power to require a city franchise
because Poudre had a franchise from the State and therefore
did not reach all of Poudre’s defenses. Greeley has conceded
these defenses must be resolved before the relief it seeks can
be granted. See pp. 16-17 of Greeley’s “Answer Brief to
Defendant’s Memorandum...” Vol. 3’, pp. 722-23 and Gree-
ley’s Trial Data Certificate, Vol. 2, p. 654.
Two examples show the need to either modify the Opinion
or to remand to the District Court to make findings of fact
and conclusions of law with respect to these defenses, as
Poudre requested at page 29 of its Brief on Appeal.
Record references are to the volume and page number, e.g.,
Vol. _,p.
A. The Impairment of Contract Defense”. In Russell v. Sebas-
tian, 233 U.S. 195 (1914), the United States Supreme Court
held the contract between the utility and the State, created
by the utility laying lines and preparing to serve a geographic
area, permitted the utility to not only continue to maintain its
existing facilities, but to expand them.
{W]e find no ground for the conclusion that each act of
laying pipe was to constitute an acceptance pro tanto.
We think that the offer was intended to be accepted in
its entirety as made, and that acceptance lay in conduct
committing the person accepting to the described ser-
vice ....In this view, the grant embraced the right to lay
the extensions that were needed in furnishing the supply
within the city. (Citations omitted. Emphasis added.) 233
U.S. at 208.
The undisputed facts with respect to Poudre’s acceptance
of the State’s offer in § 38-5-101, C.R.S. (““§ 38-5-101") to
“construct, maintain and operate” its electrical distribution
system on the streets of the State of Colorado (see page 5,
infra), show that the Opinion overlooks Russell v. Sebastian,
supra. Both Poudre and the telephone company accepted the
offer from the State found in § 38-5-101 (at a time when
§ 38-5-108, C.R.S. [“‘§ 38-5-108”] had been held to mean that
a city expressed its consent through the reasonable exercise
of its police power) and therefore are entitled as a matter of
Federal Constitutional law to expand their facilities.
B. The Supremacy Clause Defense. It is undisputed that all
of Poudre’s assets including those in areas annexed by Gree-
ley have been mortgaged to the Rural Electrification Admin-
2 U.S. Const. Art. I, § 10 and Colo. Const. Art. Il, § 11.
A51
istration (the “R.E.A.”).> Moreover, the Trial Court found
that granting the relief requested by Greeley “would prevent
adequate service to rural territory in the vicinity of expanding
cities.”(Emphasis added). § 35 at Vol. 3, p. 1029. Conse-
quently, granting the relief requested by Greeley violates the
Supremacy Clause contained in Article VI of the United
States Constitution. See P.U.D. No. 1 v. United States, 417 F.2d
200, 201 (9th Cir. 1969).
Poudre is entitled to an adjudication on these and other
unresolved defenses. The Opinion, however, has ruled
against Poudre on these defenses even though they were not
before the Court and in so doing has violated Poudre’s due
process rights under the United States and Colorado
Constitutions.
2. The Opinion distinguishes Englewood‘ on the basis that
the telephone company once had a city franchise, even
though it was refusing to renew it after its expiration. The
Englewood distinction is unsupported. Englewood held that
the telephone company,
regardless of the validity of its original city franchise (a
point we need not decide), acquired what in law is a valid
state franchise or right by virtue of C.R.S. 1963, 50-5-1 and
8. [Now § 38-5-101 and § 38-5-108]. This permitted it not
only to maintain its facilities in plaintiffs public ways,
°See Poudre’s Trial Exhibit 88 and the testimony of Poudre’s
General Manager, Ronald J. Carey, at Vol. 8, p. 113, line 18
through p. 114, line 17. All exhibits were admitted by stipulation,
Vol. 5, p. 47, lines 15-22. References to Exhibits herein are to Trial
Exhibits.
* City of Englewood v. Mountain States Telephone and Telegraph Co.,
163 Colo. 400, 431 P.2d 40 (1967).
A52
but also the right to construct and operate additional ones
therein without obtaining a city franchise.
... Thus Article XX has no application here. (Emphasis
added.) 163 Colo. at 405, 407, 431 P.2d at 42-43.
The basis for permitting the telephone company to not
only maintain but expand its existing facilities was § 38-5-101
and not (as the Opinion holds) that the telephone company
once had a franchise from the City.
3. Englewood held that where the entity seeking consent
has a franchise from the State, the city is (a) “powerless to
require a further franchise,” 163 Colo. at 406, 431 P.2d at 43,
and (b) expresses its consent through its exercise of the
police power.
We point out that C.R.S. 1963, 50-5-8 [now § 38-5-108] is
perfectly consistent with defendant’s position that the
city may require, under its police power, reasonable acts on
the part of anyone using its streets. For example, it can
require the securing of a permit or license, with attending
fee requirements, prior to the erection of a new pole in a
certain place or the extension of a wire along a particular
street or the reasonable regulation of objects which may
be placed in its streets and alleys. 163 Colo. at 409, 431
P.2d at 43. (Emphasis added.)
This holding in Englewood is consistent with the language
differences in § 38-5-101 and § 38-5-108. While § 38-5-101 is a
grant of permission to “construct, maintain and operate,” the
“consent” required by § 38-5-108 is to “erect,” “construct” or
extend.” Significantly, city consent is not required to “use”
city streets.
A53 —-
Poudre did not need and therefore did not seek a
franchise. Thus, the Opinion incorrectly states “REA sought
consent from the qualified electorate and its request was
overwhelmingly rejected in the franchise election.” (Opin-
ion, p. 18.) Not only did Poudre not seek an election, but
Greeley, contrary to its Ordinance 26, 1982 (Exhibit 62),
conducted the election without Poudre’s request or tender of
the election cost deposit required by Section 18-3 of Gree-
ley’s Charter (Exhibit 96).° Indeed, in contrast to the Opin-
ion’s incorrect statement at page 18, the last sentence of
note 5 of the Opinion correctly stated that “REA objected to
and declined to participate in the special franchise election.”
4. The evidence was uncontroverted that, before Greeley
commenced annexing Poudre’s territory in 1981, Poudre had
constructed 2,400 miles of lines including lines running
through Greeley.® Construction of Poudre’s system began
pursuant to a 1940 permit from Weld County (see Ex-
hibit 103), 18 years before Greeley became a home rule city
in 1958 (see Exhibit 96), and 42 years before Greeley enacted
franchise Ordinance 26, 1982 (Exhibit G). Thus even if the
Opinion’s Englewood distinction were sound it doesn’t fit the
facts here because Poudre like the telephone company had
all required consents before it began construction.
5. The Opinion’s new construction of § 38-5-101 and § 38-
5-108 is based upon authorities from other jurisdictions,
whose law is critically different from the Colorado statutes
and Constitution. See, e.g. State v. Upshur Rural Electric
Cooperative Corp., 156 Tex. 633, 298 S.W.2d 805 (1957),
* See e.g., Vol. 6, p. 130, line 7, through p. 131, line 14 and Exhibit 57.
® See, e.g., Vol. 6, p. 156, lines 10-12 and lines 18-25; Vol. 8, p. 112,
line 23 through p. 113, line 5; Vol. ©, p. 147, line 6 through p. 151,
line 18; Vol. 10, p. 38, line 6 through p. 41, line 14.
A54
whose holding is premised on the Texas Electric Cooperative
Corporation Act which limited an Electric Cooperative Cor-
poration’s service to cities with fewer than 1,500 inhabitants.
Compare § 40-9.5-101, et seq, C.R.S.
6. The Opinion’s new construction of § 38-5-108 frustrates
a utility’s power of eminent domain by subjecting utilities to
city veto power. Cf. Town of Sheridan v. Valley Sanitation
District, 137 Colo. 315, 322, 324 P.2d 1038, 1042 (1958). (“The
right of eminent domain and the absolute right of veto on the
part of a municipality to the exercise of that right presents an
irreconcilable conflict.”) Under the Opinion, Poudre must
treat Greeley as a closed island around which Poudre must
run its lines to bring service from one side of Greeley to its
territory on the other. (See service area map in pocket of
Exhibit 114 and Exhibit JJJJ.)
7. The Opinion also unintentionally overrules the long line
of Colorado cases (see Poudre’s April 16, 1986 Brief on
Appeal, pp. 15-22) holding that public utility regulation is a
matter of state wide concern and overrules the Englewood
holding that a home rule city’s power to grant franchises
referred to in Articles XX and XXV of the Colorado Constitu-
tion pertains only to matters of local concern. The preserva-
tion of the power to grant franchises must be viewed from
the vantage point of 1954 when the people adopted Article
XXV. By 1954, both the McPhee & McGinnity Co. v. Union Pac.
R. Co., 158 F. 5 (8th Cir. 1907) and Baker v. Denver Tramway
Co., 72 Colo. 233, 210 P. 845 (1922) cases had been decided
and so it was known the municipal franchise power did not
extend to situations where a state franchise was in place. The
Opinion also overlooks the Trial Court’s findings 16 through
18 and 35 (Vol. 3, p. 1027 and p. 1029), that Poudre’s activities
are a matter of state wide and not merely local concern.
AS55
DATED: September 22. 1987.
RANDOLPH W. STARR. P.C.
Randolph W. Starr (3183)
By _/s/ Randolph W. Starr
221 East 29th St., #220
P.O. Box 642
Loveland, CO 80539
(303) 667-1029
HOLMES & STARR
A Professional Corporation
Kenneth L. Starr (246)
Ann Livedalen (7232)
By /s/ Kenneth L. Starr
717 Seventeenth Street
Suite 2440
Denver, CO 80202
(303) 292-1500
A56
APPENDIX
POUDRE VALLEY’S UNRESOLVED DEFENSES TO
CITY’S COMPLAINT AND AMENDED COMPLAINT’
1. City of Greeley Ordinance No. 26, 1982, on its face and as
applied to the Defendant is unreasonable, arbitrary and
capricious and bears no rational relation to any proper
legislative object and therefore is unconstitutional under
the due process clauses of the United States and Colo-
rado Constitutions. { 67, Vol. 1, pp. 90-91.
2. City of Greeley Ordinance No. 26, 1982, on its face and as
applied denies Defendant the equal protection of the
laws in violation of the Colorado and United States
Constitutions. § 68, Vol. 1, p. 91.
3. Retrospective application of City of Greeley Ordinance
No. 26, 1982, to the Defendant would violate Article II,
Section 11 of the Colorado Constitution as well as the
prohibition of ex post facto laws in the Colorado and
United States Constitutions. { 72, Vol. 1, p. 92.
4. The City of Greeley exceeded its authority and power
under the Colorado Constitution and statutes when it
1 On the first day of trail the Trial Court reserved ruling on the
issues raised by Poudre Valley's Motion to Dismiss the City’s
Amended Complaint, Vol. 5, p. 19, line 16. On the sixth day of
trial, the Trial Court permitted Poudre’s previous Answer as well
as the issues raised in Poudre’s Motion with respect to the
Amended Complaint (Vol. 3, pp. 863-873 and 881-916) to be
deemed to constitute Poudre’s Answer to the Amended Com-
plaint. (We have not repeated here the defenses in the original
answers which are also included in the foregoing memoranda
supporting the Motion to Dismiss the Amended Complaint. ) The
unresolved defenses to Home Light’s Complaint in Intervention
do not materially differ from those made to the City’s Complaint.
A57
purported to hold the July 13, 1982 election alleged in the
Complaint. { 73, Vol. 1, p. 93.
5. City of Greeley Ordinance No. 26, 1982, and the relief
sought in this lawsuit unconstitutionally impairs Defen-
dant’s contract with the State evidenced by its State
franchise in violation of the Colorado and United States
Constitutions. § 74, Vol. 1, p. 93.
6. City of Greeley Ordinance No. 26, 1982 and the relief
sought in this lawsuit unconstitutionally impairs Defen-
dant’s contracts with its lenders, its contracts with its
members, its contracts with landowners, its contracts
with those from whom it purchases electricity, and its
March 18, 1970 contract with Home Light dividing ser-
vice territory. J 75, Vol. 1, p. 93.
7. Granting the relief requested in the Complaint will con-
stitute an unlawful taking of Defendant's property with-
out just compensation in violation of the Colorado and
United States Constitutions. { 80, Vol. 1, p. 94.
8. Granting the relief requested in the Complaint will con-
stitute de facto condemnation of Defendant's property
without complying with the requirements of Colorado
law, including the requirements of § 31-15-107, C.RS.
1973. § 81, Vol. 1, p. 94.
9. City of Greeley Ordinance No. 26, 1982, unconstitution-
ally provides for an unlawful taking of Defendant's prop-
erty in violation of the Colorado and United States
Constitutions. § 82, Vol. 1, pp. 94-95.
10. Defendant's electrical distribution system was acquired
and constructed with the aid of loans made by the United
States, through the Rural Electrification Administration
(the “REA”), and under these loans Defendant could not
comply with any order granting the relief required in the
hepeernnele
ll.
12.
13.
ASS
Complaint without the approval of the REA. The United
States of America is therefore an indispensable party
because it is not subject to service of process, a judgment
entered in its absence will be prejudicial both to the
United States and to the Defendant, prejudice cannot be
avoided by any protective measure, a judgment entered
without it will not be adequate, and Plaintiff had an
adequate remedy by an appeal from the PUC’s decision
attached hereto as Exhibit B but chose not to avail itself
of that remedy. Accordingly, the case should be dis-
missed pursuant to Rule 19(b). ¢ 84, Vol. 1, p. 95.
Defendant's electrical distribution system was con-
structed with the aid of loans made by the United States
through the REA and granting the relief requested in the
Complaint without the approval of the REA would vio-
late the supremacy clause of the United States Constitu-
tion. § 85, Vol. 1, pp. 95-96.
The Colorado Supreme Court's adjudication of the fore-
going defenses against Poudre (in addition to contraven-
ing the foregoing constitutional provisions) violates the
due process and equal protection clauses of the United
States and Colorado Constitutions.
The Amendment of Article XX in 1986 during the pen-
dency of this appeal gives rise to additional defenses
because the Greeley Charter requires the vote of “quali-
fied tax paying electors” to grant city franchises, but
Article XX (as amended) permits charter provisions
which require the vote of “registered electors.”
ASS
APPENDIX J
SUPREME COURT, STATE OF COLORADO
Case No. 85-SA-293
PETITION FOR REHEARING
Tue Crry or GREELEY,
COLORADO, a municipal
corporation, and Home
|
APPEAL FROM THE
DISTRICT COURT,
Licut and Power WELD COUNTY
Company, a Colorado HONORABLE JUDGE
corporation, ROBERT BEHRMAN
Appellants, OPINION BY
JUSTICE ERICKSON
. EN BANC
Poupre VALLEY RURAL
ELECTRIC ASSOCIATION, JUDGMENT AFFIRMED
INc., a Colorado IN PART, REVERSED IN
corporation, PART, AND CAUSE
REMANDED
Appellee ;
Gerald E. Dahl Dudley P. Spiller, Jr.
1500 Grant Street Paula M. Connelly
Denver, Colorado 80203 Joseph B. Wilson
303/831-6411 1401-17th Street,
Suite 1100
ATTORNEYS FOR
THE COLORADO
MUNICIPAL LEAGUE
P.O. Box 17180 TA
Denver. Colorado 80217
303/534-1200
ATTORNEYS FOR
THE COLORADO
ASSOCIATION OF
MUNICIPAL UTILITIES
AD
The Colorado Municipal League (“CML”) and the Colo-
rado Association of Municipal Utilities (“CAMU™), pursuant
to C.A.R. 40, petition this Court for a modification of its
decision in the captioned action. As grounds therefor, Peti-
tioners state as follows:
1. CML and CAMU were amicus parties and have actively
participated in this matter during both the District Court and
Supreme Court proceedings. Petitioners are membership or-
ganizations formed to promote and protect the interests of
member municipalities and municipal utilities, respectively.
2. Upon review of the captioned decision, Petitioners be-
lieve that the Court has included, as dictum, certain language.
which appears on the bottom of page 17 and the top of
page 18, which may be misconstrued in a manner that could
eliminate the ability of municipalities to renegotiate
franchise agreements upon their expiration. While Petition-
ers do not read the language to cause this result, this lan-
guage could be read to negate certain clear constitutional
and statutory provisions that preserve for local governments
and their citizens the right to grant and renew franchises.
The language is unnecessary and can be modified without
altering the holding of the Court.
3. There are 267 municipal corporations within the State of
Colorado. With few exceptions, each of these municipalities
has a franchise with one or more public utilities providing
either electric, gas, sewer or water service within the munici-
pal corporate limits. This Court, by virtue of Community Tele-
communications, Inc. v. Heather Corp., 677 P.2d 330 (Colo.
1984). has also required municipalities to enter into franchise
arrangements with cable television providers.
4. The authority of municipalities to grant franchises to
public utilities is well-established and, as clarified by the
captioned decision, is a necessary complement to the certifi-
A6l
—— rr
cation authority of the Public Utilities Commission. As the
Court held at page 15 of its decision:
The constitutional and statutory provisions demonstrate
that municipal and PUC consent are necessary to oper-
ate a public utility within a home rule city; neither the
General Assembly nor its designated agency, the PUC, is
empowered to grant a public utility a franchise to use a
home rule city’s streets, alleys, and public places in the
absence of the municipality's consent.
5. McQuillin characterizes municipal franchises as “the
concrete, definite points of contact between large public and
large private interests.” 12 McQuillin, Municipal Corpora-
tions, § 4.01. The franchise agreement constitutes the primary
manner by which municipalities regulate the use of public
streets and rights-of-way by utility providers. The franchise
authority is an exercise of the sovereign power, constitution-
ally conferred upon local governments so that they may
maintain exclusive domain over the streets within their
boundaries. Colo. Const. art. XX, §§ 4, 6; art. XXV; C.R.S.
§§ 31-15-702, 31-15-797. The language with which Petitioners
are concerned could be misconstrued to render these provi-
sions a nullity regarding renewal of municipal franchises.
6. A franchise agreement constitutes a contract between
the municipality and the serving utility which defines the
rights and obligations of each of these entities. Public Util.
Comm'n ov. City of Durango, 171 Colo. 553, 469 P.2d 131
(1970); 12 MeQuillin, supra, § 34.06. In addition to determin-
ing which entity has the right to operate within a municipal-
ity, the franchise contract also addresses a multiplicity of
issues regarding the conditions of use of public rights-of-way,
municipal aesthetics, public safety concerns and municipal
revenues. Through the franchise contract, the municipality
and the serving utility are able to structure the conditions of
A62
the provision of public utility service in order to maximize
public benefit. For example, through the franchise many
municipalities require the undergrounding of new and se-
lected existing utility facilities, thus improving public safety,
as well as the aesthetic environment of the municipality.
Through renewal, franchise terms are continually updated to
address timely issues involving the interface between the
community and the utility.
7. As a contract of specific duration, franchises naturally
terminate and are subject to renegotiation. 12 McQuillin,
supra, §§ 34.50-34.52. The cycle of expiration and renewal is
clearly contemplated by the Colorado Constitution and stat-
utes. See Colo. Const. art. II, § 11 (prohibiting the grant of
perpetual rights); C.R.S. §31-15-707. In fact, C.R.S.
§ 31-15-707(1) (a) (II) specifically discusses franchise renewal
and § 31-15-707(1)(c) limits the term of various municipal
franchises to 25 years.
8. Petitioners neither dispute nor seek to alter the holding
reached by the Court in this case. While Petitioners do not
read the Court’s opinion in this manner, the decision as
issued contains certain language which could be misinter-
preted to excuse public utilities from the duty of renegoti-
ating or renewing franchises upon expiration. Specifically,
language contained on pages 17 and 18 of the decision could
possibly be read to imply that once an electric utility obtains
its initial municipal franchise it need not seek renewal of
such franchise upon its expiration or termination.
9. The fact situation of a franchise renewal was not
presented to the Court during this case nor was the law on
franchise renewal briefed. At issue was whether REA was
required to obtain a municipal franchise. Petitioners do not
read this decision in a manner which addresses franchise
renewal; nevertheless, it is conceivable that public utilities
ea aerate tank § Sib th scsi bye
OE ABP ik a ene Sitsia
A63
and other franchise recipients may argue that the language
contained on pages 17 and 18 excuses them from the obliga-
tion of franchise renegotiation or renewal. Such > reading
could effectively freeze the terms and conditions of the
franchise, or conceivably negate all such terms, upon the
expiration of the franchise. Under such circumstances, mu-
nicipalities and their citizens would be denied their constitu-
tionally protected power to contractually establish, through
the franchise, the terms and conditions governing the use of
public streets. |
10. In order to clarify this decision in a manner which will
not alter its holding, Petitioners seek the modification of
certain language unnecessary to the Court’s holding. Specifi-
cally, Petitioners seek the deletion of the final paragraph
commencing on page 17 and ending on page 18, and the first
two sentences of the first full paragraph on page 18, as well as
the addition of the following sentence at the end of the first
full paragraph on page 18: “Further, our decision in this case
does not extend to the issue of franchise renewal.” Clarifica-
tion as requested may obviate needless litigation over this
issue in the future.
WHEREFORE, Petitioners seek a modification of the cap-
tioned decision in accordance with the views expressed
herein.
A64
Dated this 22nd day of September, 1987.
By: /s/ Gerald E. Dahl
Gerald E. Dahl, #7766
1500 Grant Street
Denver, Colorado 80203
303/831-6411
ATTORNEYS FOR
THE COLORADO
MUNICIPAL LEAGUE _
GORSUCH, KIRGIS,
CAMPBELL, WALKER
AND GROVER
By: /s/ Joseph B. Wilson
Dudley P. Spiller, Jr., #7908
Paula M. Connelly, #14451
Joseph B. Wilson, #15306
1401-17th Street,
Suite 1100
P.O. Box 17180 TA
Denver, Colorado 80217
303/534-1200
ATTORNEYS FOR
THE COLORADO
ASSOCIATION OF
MUNICIPAL UTILITIES
A65
APPENDIX &K
SUPREME COURT, STATE OF COLORADO
Case No. 85-SA-293
APPELLEE’S MOTION TO STAY OR RECALL ISSUANCE
OF MANDATE BASED ON THE AGREEMENT BETWEEN
POUDRE AND THE CITY OF GREELEY AND C.A.R. 41.1
THE City oF GREELEY, CoLorapo, ) Appeal Directly
a municipal corporation, and to the Colorado
HoME LIGHT AND POWER CoMPANY, Supreme Court
a Colorado corporation, Pursuant to
§ 13-4-102(1) (b),
Plaintiffs-Appellants, | 6 CRS. (1973)
” fron the DISTRICT
PouUDRE VALLEY RURAL ELECTRIC COURT, WELD
ASSOCIATION, INC., a Colorado COUNTY,
corporation, No. 82-CV-617
Deteedent-Aupeliee. The Honorable
/ Robert A. Behrman
Pursuant to C.A.R. 41.1, and based on the attached agree-
ment between Appellee Poudre Valley Rural Electric Associ-
ation, Inc. (“Poudre”) and the City of Greeley, Poudre
respectfully moves this Court to stay issuance of the Mandate
herein or, if the Mandate has been issued, to recall and stay
the Mandate herein. As grounds for this Motion, Poudre
states the following:
1. This Motion should not be in dispute because Greeley
has stipulated to it in the agreement attached hereto. Gree-
ley’s agreement recognizes that it is not in either Greeley’s or
Poudre’s interest to commence enforcement of City of Gree-
ley Ordinance 26, 1982 until Poudre has exhausted its judicial
A66
remedies. As shown below, Poudre intends to appeal this
Court’s September 8, 1987 judgment to the United States
Supreme Court.
2. The Court rendered its en banc opinion on Septem-
ber 8, 1987.
3. On October 7, 1987, counsel for Poudre received the
Court’s October 5, 1987 Order denying Poudre’s Petition for
Rehearing. Accordingly, unless stayed, the Mandate will is-
sue, pursuant to C.A.R. 41, on October 7, 1987, two days after
the Court’s denial of Poudre’s Motion for Rehearing.
4. C.A.R. 41.1 provides that: “In cases in which review by
the Supreme Court of the United States may be sought,
... the Supreme Court of Colorado, or a justice thereof, may
stay or recall the mandate, as may be appropriate.”
5. As set forth in greater detail in Poudre’s Petition for
Rehearing, filed in this Court on September 22, 1987, which is
incorporated by reference herein, Poudre raised defenses to
the Complaint in this action which called into question the
validity of City of Greeley Ordinance 26, 1982, Article XVIII
of the Greeley Charter, and Articles XX and XXV of the
Colorado Constitution on the grounds that they were repug-
nant to the Constitution and Laws of the United States. By
virtue of its denial of Poudre’s Petition for Rehearing, this
Court has upheld the validity-of City of Greeley Ordi-
nance 26, 1982, Article XVIII of the City of Greeley Charter,
Articles XX and XXV of the Colorado Constitution, as well as
the validity of this Court’s action in resolving Poudre’s affirm-
ative defenses against it on appeal without due process of law
even though the District Court did not reach those defenses
and there was substantial evidence to support them.
6. Under 28 U.S.C. § 1257(2) Poudre is entitled to seek
review of these rulings by appeal to the United States Su-
ros
A67
preme Court.’ Under 28 U.S.C. § 2101(c) and Rules 11 and 12
of the Rules of the United States Supreme Court, Poudre has
ninety (90) days from the date its Petition for Rehearing was
denied (or until January 4, 1988) in which to file its Notice of
Appeal and jurisdictional statement in the United States
Supreme Court.
7. On July 19, 1983, Poudre and the City of Greeley agreed
(in the document attached hereto) that Ordinance No. 26,
1982 and Article XVIII of the Greeley City Charter would not
be enforced as to Poudre “during the course of” this litiga-
tion “until final judgment and exhaustion of appeals” and that
Poudre “shall continue” to serve and extend service within
the City of Greeley “until final judgment and exhaustion of
appeals.” This agreement alone justifies staying the mandate.
8. Even in the absence of the attached agreement between
Poudre and the City of Greeley, Poudre would be entitled to
a stay of the mandate. While C.A.R. 41.1 has not been
construed, the United States Supreme Court Justices apply-
ing analogous Supreme Court Rule 44.1 have developed three
factors to be considered in determining whether to grant an
application for a stay pending appeal:
Three considerations govern a Justice’s decision
whether to grant an application for a stay pending
' Poudre believes this case raises issues which can be appealed as of
right pursuant to 28 U.S.C. § 1257(2) However, if the Supreme
Court determines that “an appeal to the Supreme Court is improv-
idently taken from the decision of the highest court of a state... ,
in a case where the proper mode of a review is by petition for
certiorari, this alone shall not be ground for dismissal, but the
papers whereon the appeal was taken shal! be regarded and acted
on as a petition for writ of certiorari and as if duly presented to
the Supreme Court is the time the appeal was taken.” 28 U.S.C.
§ 2103.
A68
appeal. First, there must be a reasonable probability that
four members of the Court would consider the underly-
ing issue sufficiently meritorious to justify notation of
probable jurisdiction.
Second, there must be a significant possibility of reversal
of the lower court’s decision. Finally, there must be a
likelihood that irreparable harm will result if the lower
court’s decision is not stayed.
Ledbetter v. Baldwin, 107 S.Ct. 635, 636 (1986). (Powell,
J.)?
THERE IS A REASONABLE PROBABILITY THAT FOUR
MEMBERS OF THE UNITED STATES SUPREME
COURT WOULD CONSIDER THE UNDERLYING
ISSUES SUFFICIENTLY MERITORIOUS TO JUSTIFY
NOTATION OF PROBABLE JURISDICTION
This Court’s September 8, 1987 Opinion (the “Opinion” )
overlooks substantial unresolved defenses (listed in the Ap-
pendix to Poudre’s September 22, 1986 Petition for Rehear-
ing) which could not be presented on appeal because the
District Court concluded that the City of Greeley (“Gree-
ley”) lacked power to require a city franchise because Pou-
dre had a franchise from the State and therefore did not
reach all of Poudre’s defenses. Greeley has conceded these
defenses must be resolved before the relief it seeks can be
granted. See pp. 16-17 of Greeley’s “Answer Brief to Defen-
dant’s Memorandum ...” Vol. 3°, pp. 722-23 and Greeley’s
Trial Data Certificate, Vol. 2, p. 654.
* Where only Supreme Court citations are used in this Motion, the
decision is not reported in the U.S. Reporter.
° Record references are to the volume and page number, e.g., Vol.
> . Trial Exhibits are referred to herein as Exhibits.
A69
Two examples show that the issues for appeal are suffi-
ciently meritorious to justify notation of probable jurisdic-
tion by the United States Supreme Court.
A. The Impairment of Contract Defense.‘ In Russell v. Sebas-
tian, 233 U.S. 195 (1914), the United States Supreme Court
held the contract between the utility and the State, created
by the utility laying lines and preparing to serve a geographic
area, permitted the utility to not only continue to maintain its
existing facilities, but to expand them.
[W]e find no ground for the conclusion that each act of
laying pipe was to constitute an acceptance pro tanto.
We think that the offer was intended to be accepted in
its entirety as made, and that acceptance lay in conduct
committing the person accepting to the described ser-
vice .... In this view, the grant embraced the right to lay
the extensions that were needed in furnishing the supply
within the city. (Citations omitted. Emphasis added.) 233
U.S. at 208.
In this case, the evidence was uncontroverted that, before
Greeley commenced annexing Poudre’s territory in 1981,
Poudre had constructed 2,400 miles of lines including lines
running through Greeley.® Construction of Poudre’s system
began pursuant to a 1940 permit from Weld County (see
Exhibit 103), 18 years before Greeley became a home rule
city in 1958 (see Exhibit 96), and 42 years before Greeley
enacted franchise Ordinance 26, 1982 (Exhibit G).
* U.S. Const. Art. I, § 10 and Colo. Const. Art. II, § 11.
° See, e.g., Vol. 6, p. 156, lines 10-12 and lines 18-25; Vol. 8, p. 112,
line 23 through p. 113, line 5; Vol. 8, p. 147, line 6 through p. 151,
line 18; Vol. 10, p. 38, line 6 through p. 41, line 14.
A70
These undisputed facts with respect to Poudre’s accept-
ance of the State’s offer in § 38-5-101, C.R.S. (“§ 38-5-101") to
“construct, maintain and operate” its electrical distribution
system on the streets of the State of Colorado show that the
Opinion and the Order denying the Petition for Rehearing
ignore Russell v. Sebastian, supra.
Because Poudre accepted the offer from the State found in
§ 38-5-101 (at a time when § 38-5-108, C.R.S. [“§ 38-5-108""]
had been held to mean that a city expressed its consent
through the reasonable exercise of its police power)°, City of
Greeley Ordinance 26, 1982, Article XVIII of the Greeley
Charter and Articles XX and XXV of the Colorado Constitu-
tion are repugnant to the Constitution and laws of the United
States.
B. The Supremacy Clause Defense. It is undisputed that all
of Poudre’s assets including those in areas annexed by Gree-
ley have been mortgaged to the Rural Electrification Admin-
istration (the “R.E.A.”).’ Moreover, the Trial Court found
that granting the relief requested by Greeley “would prevent
adequate service to rural territory in the vicinity of expanding
cities.”(Emphasis added). § 35 at Vol. 3, p. 1029. Conse-
quently, granting the relief requested by Greeley violates the
Supremacy Clause contained in Article VI of the United
States Constitution. See P.U.D. No. 1 v. United States, 417 F.2d
200, 201 (9th Cir. 1969).
® City of Englewood v. Mountain States Telephone and Telegraph Co.,
163 Colo. 400, 431 P.2d 40 (1967).
"See Poudre’s Trial Exhibit 88 and the testimony of Poudre’s
General Manager, Ronald J. Carey, at Vol. 8, p. 113, line 18
through p. 114, line 17. All exhibits were admitted by stipulation,
Vol. 5, p. 47, lines 15-22.
A7l
C. Poudre is entitled, as a matter of due process, to an
adjudication on these and other unresolved defenses. The
Opinion and the Order denying Poudre’s Petition for Rehear-
ing have ruled against Poudre on these defenses even though
they were not before the Court and in so doing has violated
Poudre’s due process rights under the United States
Constitution.
THERE IS A SIGNIFICANT POSSIBILITY OF
REVERSAL OF THIS COURT'S
SEPTEMBER 8, 1987 DECISION
For the reasons just discussed, Poudre submits that there is
a significant possibility of reversal of this Court’s Septem-
ber 8, 1987 decision.
IRREPARABLE HARM WILL RESULT IF THIS
COURT'S MANDATE IS NOT STAYED AND
GREELEY DOES NOT COMPLY
WITH THE ATTACHED AGREEMENT
In paragraph 35 of its findings of fact, the ‘Trial Court
determined that granting the relief requested by the City
“would prevent adequate service to rural territory in the
vicinity of expanding cities.”
35. To allow the expulsion of a electric utility from
portions of its certificated territory by virtue of annexa-
tion of that territory by a municipality which franchises
another utility would create serious problems. It would
handicap the certificated electric utility in providing
suitable service to its territory because long term plan-
ning would be difficult or impossible. Large scale invest-
ment in plant and equipment could not be justified if the
utility were subject to expulsion at the whim of adjoin-
A72
ing cities. These and other similar considerations would
prevent adequate service to rural territory in the vicinity
of expanding cities.
The validity of this finding was not raised on appeal.
Preventing adequate service to rural territory in the vicinity
of expanding cities constitutes irreparable injury to Poudre’s
members because it cannot be adequately compensated
through an award of damages. Cf. Tri-State Generation and
Transmission Association, Inc. v. Shoshone River Power, Inc.,
805 F.2d 351, 357-58 (10th Cir. 1986) in which the Tenth
Circuit reversed the District Court's Order dissolving an
injunction enjoining the sale of an REA financed distribution
cooperative’s assets to another utility which it was contended
would breach a requirements contract between the REA
financed distribution cooperative and Tri-State, a generation
and transmission cooperative of which the distribution coop-
erative was a member because, among other things,
... the broader public interest also dictates that an
injunction should issue. Both Tri-State and the United
States claim that the viability of the REA program de-
pends on the outcome of the merits in this case. Further-
more, if the injunction does not issue, they maintain, the
federal government's program is immediately
threatened, harming not only the customers of Tri-State
and customers of its member distribution cooperatives
but also the customers of electrical cooperatives across
the nation. It would be difficult, if not impossible, to
compensate that pervasive injury through damages.
See also Organized Village of Kake v. Egan, 80 S.Ct. 33, 38
(1959) (Brennan, J.) (Restraining order issued pending ap-
peal based upon allegations that the State of Alaska would
enforce a state statute to prevent trap fishing authorized by
ee
A73
the United States Secretary of the Interior, resulting in
substantial financial loss for fishing and canning operations,
and in turn causing irreparable injury to the economy and
welfare of the Indian communities.).
Moreover, deprivation of constitutioual rights justifies the
granting of the stay of mandate. See, e.g, Jaffree v. Board of
School Commissioners, 459 U.S. 1314 (1983) (Powell, J.) and
Pacileo v. Walker, 446 U.S. 1307 (1980) (Rehnquist, J.). If
Greeley does not comply with the attached agreement, not
only will Poudre be deprived of its property rights in its
franchise from the State without due process of law, but
Poudre’s contract with the State created when it : :cepted
the State's offer in § 38-5-101, C_R.S. will be impaired.
In addition, even if the September 8, 1987 decision is
reversed by the United States Supreme Court, if Greeley
does not comply with the attached agreement, it is unlikely
that Poudre Valley will be able to recover the lost revenues
for any services it is not permitted to serve without obtaining
a city franchise during the pendency of an appeal.
Moreover, if Greeley does not comply with the attached
agreement, Poudre may have to incur the expense of an
election as well as the expenses of defending proceedings
before the Colorado Public Utilities Commission (“PUC”) if
Poudre does not win the franchise election. Neither the
election expenses nor the expense of the PUC proceeding
would be recoverable if Poudre pervails on the appeal.
Finally, neither the City of Greeley (which has agreed not
to enforce its Ordinance until Poudre has exhausted all
judicial remedies) nor Home Light & Power Company
(which has not made any investment to serve the portion of
A74
Poudre’s territory which has been or is projected to be
annexed to Greeley") will be harmed if the stay is granted.
WHEREFORE, Poudre respectfully requests that this
Court enter an order staying issuance of the Mandate herein
for a period of ninety (90) days, to and including January 4,
1988 to permit Poudre to file its Notice of Appeal and
jurisdictional statement with the United States Supreme
Court, or, if the Mandate has in fact been issued, directing
that the Mandate be recalled and stayed. Poudre requests
further that the Court's Order staying the Mandate provide
that, if Poudre’s appeal is filed within such ninety (90) day
period, issuance of the Mandate will be stayed pending
ultimate determination by the United States Supreme Court
of the issues raised by Poudre’s appeal.
* Michael Geile, Home Light's President, testified that no building
had been done by Home Light to serve the areas projected to be
annexed to Greeley. Vol. 8, page 58, lines 15-19. The undisputed
testimony showed that after 1978, Poudre had incurred out of
pocket expenses of $196,361.66 as part of its plan to serve the area
in controversy, and that the replacement cost of Poudre’s facili-
ties in the area proposed to be annexed to Greeley was
$1,325.157.07. Vol. 8, p. 147, lines 6-24 and Vol. 9. p. 23, line 19
through p. 24, line 15.
———
A75
DATED: October 7, 1987.
HOLMES & STARR
A Professional Corporation
Kenneth L. Starr (246)
Ann Livedalen (7232)
RANDOLPH W. STARR. P.C.
Randolph W. Starr (3183)
221 East 29th St., #220
P.O. Box 642
Loveland, CO 80539
(303) 667-1029
By /s/ Kenneth L. Starr
717 Seventeenth Street, #2440
Denver, CO 80202
(303) 292-1500
, |
A76
APPENDIX L
Exhibit A
AGREEMENT FOR PROVISION OF SERVICE
WHEREAS, Poudre Valley Rural Electric Association, Inc.,
(Poudre Valley) has poles, wires and other electric transmis-
sion and distribution facilities located within the City of
Greeley; and
WHEREAS, Poudre Valley has received a certificate of
Public Convenience and Necessity from the Public Utilities
Commission for an area within the corporate limits of the
City of Greeley; and
WHEREAS, Poudre Valley has not obtained a franchise
from the City of Greeley to operate at any point within its
corporate limits; and
WHEREAS, the City of Greeley has initiated litigation to
determine whether or not Poudre Valiey must obtain a
franchise to operate within the City of Greeley.
NOW, THEREFORE, the City of Greeley and Poudre
Valley agree as follows:
1. During the course of litigation in the case entitled City
of Greeley v. Poudre Valley Rural Electric Association, Inc.,
82CV617, Weld County District Court, until final judgment
and exhaustion of appeals, Poudre Valley shall continue to
serve within the City of Greeley.
2. Such service shall include extension to any new services
when required and requested by property owners, according
to its extension policies, bylaws, rules, regulations, tariffs, and
other governing instruments in effect from time to time.
A77
3. The City of Greeley will not enforce any provision of
Article XVIII of the Greeley City Charter or of Ordinance
No. 26, 1982, as it affects Poudre Valley’s business within the
corporate limits of the City of Greeley as against Poudre
Valley, its agents or employees. In the event enforcement of
all or any portion of said provisions is allowed by a court of
competent jurisdiction subsequent to completion of all ap-
peals, then enforcement shall prospectively commence from
and after the date of final judgment and exhaustion of appeals
as if the effective date of the ordinance were such date of
final judgment and exhaustion of appeals.
4. Neither the provision of service by Poudre Valley, nor
the failure to enforce said provisions of the Charter and
Ordinances by the City shall be construed to be a complete
or partial waiver of any claim or defense of either Poudre
Valley or the City of Greeley in the litigation referred to in
paragraph 1 of the Agreement.
A78
AGREED TO THIS 19th DAY OF JULY, 1983.
[SEAL]
THE CITY OF GREELEY, COLORADO
/s/ Mike Lehan ATTEST: /s/ Gayle Voss
Mayor City Clerk
POUDRE VALLEY RURAL
ELECTRIC ASSOCIATION, INC.
/s/_ John I. Boxberger
President
A79 i
APPENDIX M
SUPREME COURT, STATE OF COLORADO
CASE NO. 85SA293
APPEAL FROM THE DISTRICT COURT,
WELD COUNTY, #82CV617
ORDER OF COURT
THE City OF GREELEY, a municipal corporation, and HOME
LIGHT AND POWER ComPaANY, a Colorado corporation,
Plaintiffs-Appellants,
vs.
POUDRE VALLEY RURAL ELECTRIC ASSOCIATION, INC.,
Defendant-Appellee.
Upon consideration of the Appellee’s Motion to Stay or
Recall Issuance of Mandate Based on the Agreement Be-
tween Poudre and The City of Greeley and C.A.R. 41.1 filed
in the above cause, and now being sufficiently advised in the
premises,
IT IS THIS DAY ORDERED that said Motion shall be, and
the same hereby is, GRANTED and ISSUANCE OF THE
MANDATE STAYED FOR THIRTY (30) DAYS. ANY FUR-
THER STAYS MUST BE REQUESTED FROM THE USS.
SUPREME COURT.
A80
BY THE COURT, OCTOBER 8, 1987.
cc: Edward “Jed” M. Caswall
Donald D. Cawelti
James K. Tarpey
Kenneth L. Starr
Ann Livedalen
John J. Conway
Gerald E. Dahl
Tami A. Tonoue
Paula M. Connelly
Joseph B. Wilson
Randolph W. Starr
Supreme Court
State of Colorado
Certified to be a full,
true and correct copy
OCT 9 1987
MAC V. DANFORD
Clerk of the Supreme Court
By /s/_ Delsa B. Denlow
Deputy Clerk
A81
APPENDIX N
RULE 40(a) OF THE COLORADO
RULES OF APPELLATE PROCEDURE
(a) Time for Filing; Content; Answer, Action by Court if
Granted. A petition for rehearing may be filed within four-
teen days after entry of judgment unless the time is short-
ened or enlarged by order. The petition shall state with
particularity the points of law or fact which in the opinion of
the petitioner the court has overlooked or misapprehended
and shall contain such argument in support of the petition as
the petitioner desires to present. Oral argument in support of
the petition will not be permitted. No answer to a petition for
rehearing will be received unless requested by the court. If a
petition for rehearing is granted the court may make a final
disposition of the cause without reargument or may restore it
to the calendar for reargument or resubmission or make such
other orders as are deemed appropriate under the circum-
stances of the particular case.
A82
APPENDIX O
TITLE 7, SECTION 901 OF
THE UNITED STATES CODE
§ 901. Rural Electrification Administration; Administrator;
short title
There is created and established in the Department of
Agriculture an agency of the United States to be known as
the “Rural Electrification Administration’, all of the powers
of which shall be exercised by an Administrator, under the
general direction and supervision of the Secretary of Agricul-
ture, who shall be appointed by the President, by and with
the advice and consent of the Senate, for a term of ten years.
This chapter may be cited as the “Rural Electrification Act of
1936.”
TITLE 7, SECTION 907 OF
THE UNITED STATES CODE
§ 907. Acquisition of property pledged for loans; disposition;
sale of pledged property by borrower
The Administrator is authorized and empowered to bid for
and purchase at any foreclosure or other sale, or otherwise to
acquire, property pledged or mortgaged to secure any loan
made pursuant to this chapter; to pay the purchase price and
any costs and expenses incurred in connection therewith
from the sums authorized in section 903 of this title; to accept
title to any property so purchased or acquired in the name of
the United States of America; to operate or lease such
property for such period as may be deemed necessary or
advisable to protect the investment therein, but not to ex-
ceed five years after the acquisition thereof; and to sell such
property so purchased or acquired, upon such terms and for
such consideration as the Administrator shall determine to be
reasonable.
A83
No borrower of funds under sections 904 or 922 of this title
shall, without the approval of the Administrator, sell or
dispose of its property, rights, or franchises, acquired under
the provisions of this chapter, until any loan obtained from
the Rural Electrification Administration, including all interest
and charges, shall have been repaid.
A84
APPENDIX P
TITLE 28, SECTION 1257 OF
THE UNITED STATES CODE
§ 1257. State courts; appeal; certiorari
Final judgments or decrees rendered by the highest court
of a State in which a decision could be had, may be reviewed
by the Supreme Court as follows:
(1) By appeal, where is drawn in question the validity
of a treaty or statute of the United States and the
decision is against its validity.
(2) By appeal, where is drawn in question the validity
of a statute of any state on the ground of its being
repugnant to the Constitution, treaties or laws of the
United States, and the decision is in favor of its validity.
(3) By writ of certiorari, where the validity of a treaty
or statute of the United States is drawn in question or
where the validity of a State statute is drawn in question
on the ground of its being repugnant to the Constitution,
treaties or laws of the United States, or where any title,
right, privilege or immunity is specially set up or claimed
under the Constitution, treaties or statutes of, or com-
mission held or authority exercised under, the United
States.
A85
APPENDIX Q
TITLE 28, SECTION 2101 OF
THE UNITED STATES CODE
§ 2101. Supreme Court; time for appeal or certiorari; docket-
ing; stay
(a) A direct appeal to the Supreme Court from any deci-
sion under sections 1252, 1253 and 2282 of this title [28 USCS
§§ 1252, 1253, 2282], holding unconstitutional in whole or in
part, any Act of Congress, shall be taken within thirty days
after the entry of the interlocutory or final order, judgment
or decree. The record shall be made up and the case dock-
eted within sixty days from the time such appeal is taken
under rules prescribed by the Supreme Court.
(b) Any other direct appeal to the Supreme Court which
is authorized by law, from a decision of a district court in any
civil action, suit or proceeding, shall be taken within thirty
days from the judgment, order or decree, appealed from, if
interlocutory, and within sixty days if final.
(c) Any other appeal or any writ of certiorari intended to
bring any judgment or decree in a civil action, suit or
proceeding before the Supreme Court for review shall be
taken or applied for within ninety days after the entry of such
judgment or decree. A justice of the Supreme Court, for good
cause shown, may extend the time for applying for a writ of
certiorari for a period not exceeding sixty days.
(d) The time for appeal or application for a writ of certio-
rari to review the judgment of a State court in a criminal case
shall be as prescribed by rules of the Supreme Court.
(e) An application to the Supreme Court for a writ of
certiorari to review a case before judgment has been ren-
dered in the court of appeals may be made at any time before
judgment.
AS86
(f) In any case in which the final judgment or decree of
any court is subject to review by the Supreme Court on writ
of certiorari, the execution and enforcement of such judg-
ment or decree may be stayed for a reasonable time to enable
the party aggrieved to obtain a writ of certiorari from the
Supreme Court. The stay may be granted by a judge of the
court rendering the judgment or decree or by a justice of the
Supreme Court, and may be conditioned on the giving of
security, approved by such judge or justice, that if the
aggrieved party fails to make application for such writ within
the period allotted therefor, or fails to obtain an order
granting his application, or fails to make his plea good in the
Supreme Court, he shall answer for all damages and costs
which the other party may sustain by reason of the stay.
lee
A87
APPENDIX R
TITLE 28, SECTION 2103 OF
THE UNITED STATES CODE
§ 2103. Appeal from State court or from a United States court
of appeals improvidently taken regarded as petition for
writ of certiorari
If an appeal to the Supreme Court is improvidently taken
from the decision of the highest court of a State, or of a
United States court of appeals, in a case where the proper
mode of a review is by petition for certiorari, this alone shall
not be ground for dismissal; but the papers whereon the
appeal was taken shall be regarded and acted on as a petition
for writ of certiorari and as if duly presented to the Supreme
Court at the time the appeal was taken. Where in such a case
there appears to be no reasonable ground for granting a
petition for writ of certiorari it shall be competent for the
Supreme Court to adjudge to the respondent reasonable
damages for his delay, and single or double costs.
A88
APPENDIX S$
TITLE 28, SECTION 2403(b) OF
THE UNITED STATES CODE
§ 2403. Intervention by United States or a State;
constitutional question
(b) In any action, suit, or proceeding in a court of the
United States to which a State or any agency, officer, or
employee thereof is not a party, wherein the constitu-
tionality of any statute of that State affecting the public
interest is drawn in question, the court shall certify such
fact to the attorney general of the State, and shall permit
the State to intervene for presentation of evidence, if
evidence is otherwise admissible in the case, and for
argument on the question of constitutionality. The State
shall, subject to the applicable provisions of law, have all
the rights of a party and be subject to all liabilities of a
party as to court costs to the extent necessary for a
proper presentation of the facts and law relating to the
question of constitutionality.
A89
APPENDIX T
RULE 201 OF THE COLORADO RULES OF EVIDENCE
Rule 201. Judicial Notice of Adjudicative Facts
(a) Scope of rule. This rule governs only judicial notice of
adjudicative facts.
(b) Kinds of facts. A judicially noticed fact must be one
not subject to reasonable dispute in that it is either (1)
generally known within the territorial jurisdiction of the trial
court or (2) capable of accurate and ready determination by
resort to sources whose accuracy cannot reasonably be
questioned.
(c) When discretionary. A court may take judicial notice,
whether requested or not.
(d) When mandatory. A court shall take judicial notice if
requested by a party and supplied with the necessary
information.
(e) Opportunity to be heard. A party is entitled upon
timely request to an opportunity to be heard as to the
propriety of taking judicial notice and the tenor of the matter
noticed. In the absence of prior notification, the request may
be made after judicial notice has been taken.
(f) Time of taking notice. Judicial notice may be taken at
any stage of the proceeding.
(g) Instructing jury. In a civil action or proceeding, the
court shall instruct the jury to accept as conclusive any fact
judicially noticed. In a criminal case, the court shall instruct
the jury that it may, but is not required to, accept as
conclusive any fact judicially noticed.
A90
APPENDIX U
SECTION 2-5-113 OF THE
COLORADO REVISED STATUTES
provides in relevant part:
9-5-113. Enactment of Colorado Revised Statutes 1973-
effect. (1) The Colorado Revised Statutes 1973 shall be
enacted as a repeal and reenactment of the Colorado
Revised Statutes 1963 and the supplements thereto.
(2) The effect of the enactment of the Colorado
Revised Statutes 1973, as of its effective and operative
date, shall be:
(a) To repeal all statutes and parts of statutes of a
general and permanent nature not contained in the
Colorado Revised Statutes 1973;
(b) To revive no law repealed or superseded before
the effective and operative date of the Colorado Revised
Statutes 1973;
(c) To affect no act done, right accrued, or obligation
incurred or imposed by law prior to that effective and
operative date;
(d) Neither to abate nor otherwise affect any action,
suit, or proceeding pending on such effective and opera-
tive date;
(e) To affect no penalty or forfeiture incurred before
such effective and operative date, except that where a
punishment, penalty, or forfeiture is mitigated by any
provision of the Colorado Revised Statutes 1973, that
A91
mitigating provision shall apply to any judgment pro-
nounced after that effective and operative date: and
(f) To have no effect on the running or ending of a
limitation or period of time prescribed for acquiring a
right, barring a remedy, or for any other purpose, where
the time limitation began to run before that effective and
operative date and the same or a similar limitation is
prescribed in Colorado Revised Statutes 1973.
(3) The provisions of Colorado Revised Statutes 1973,
insofar as they are the same in substantial intent, effect,
and meaning as those of prior laws, shall be given effect
as though a continuation of those laws and not as new
enactments. If, however, any act set out in the prior laws
and reeracted by Colorado Revised Statutes 1973 or any
supplement thereto is alleged to have had a defective
title when originally enacted, that defect is cured by
enactment of the Colorado Revised Statutes 1973 or any
supplement thereto.
In 1983, § 2-5-113(1) of the Colorado Revised Statutes was
amended to read as follows:
2-5-113. Effect of enactment of Colorado Revised Stat-
utes 1973 — legislative construction not based on editorial
matters. (1) Colorado Revised Statutes 1973 was enacted
as a repeal and reenactment of Colorado Revised Stat-
utes 1963 and the supplements thereto, as provided for in
section 2-5-122.
A92
APPENDIX V
SECTION 31-2-217 OF THE
COLORADO REVISED STATUTES
31-2-217. Vested rights saved. The adoption of any charter,
charter amendment, or repeal thereof shall not be construed
to destroy any property right, contract right, or right of
action of any nature or kind, civil or criminal, vested in or
against the municipality under and by virtue of any provision
of law theretofore existing or otherwise accruing to the
municipality; but all such rights shall vest in and inure to the
municipality or to any persons asserting any such claims
against the municipality as fully and as completely as though
the charter, amendment, or repeal thereof had not been
adopted. Such adoption shall never be construed to affect any
such right existing between the municipality and any person.
A93
APPENDIX W
SECTION 38-5-101 OF THE
COLORADO REVISED STATUTES
38-5-101. Use of public highways. Any domestic or for-
eign telegraph, telephone, electric light power, gas, or
pipeline company authorized to do business under the
laws of this state or any city or town owning electric
power producing or distribution facilities shall have the
right to construct, maintain, and operate lines of tele-
graph, telephone, electric light, wire or power or pipe-
line along, across, upon, and under any public highway
in this state, subject to the provisions of this article. Such
lines of telegraph, telephone, electric light, wire or
power or pipeline shall be so constructed and main-
tained as not to obstruct or hinder the usual travel on
such highway.
SECTION 38-5-108 OF THE
COLORADO REVISED STATUTES
38-5-108. Consent necessary to use of streets. Nothing in
this article shall be construed to authorize any person,
partnership, association, corporation, or city or town to
erect any poles, construct any telegraph, telephone,
electric light power line, or pipeline, or extend any wires
or lines along, through, in, upon, under, or over any
streets or alleys of any city or incorporated town without
first obtaining the consent of the municipal authorities
having power to give the consent of such city or incorpo-
rated town.
A94
APPENDIX X
SECTION 40-5-101 OF THE
COLORADO REVISED STATUTES
40-5-101. New construction — extension. (1) No public util-
ity shall begin the construction of a new facility, plant, or
system or of any extension of its facility, plant, or system
without first having obtained from the commission a certifi-
cate that the present or future public convenience and
necessity require or will require such construction. Sections
40-5-101 to 40-5-104 shall not be construed to require any
corporation to secure such certificate for an extension within
any city and county or city or town within which it has
theretofore lawfully commenced operations, or for an exten-
sion into territory, either within or without a city and county
or city or town, contiguous to its facility, line, plant, or
system and not theretofore served by a public utility provid-
ing the same commodity or service, or for an extension
within or to territory already served by it, necessary in the
ordinary course of its business. If any public utility, in
constructing or extending its line, plant, or system interferes
or is about to interfere with the operation of the line, plant,
or system of any other public utility already constructed, the
commission, on complaint of the public utility claiming to be
injuriously affected, after hearing, may make such order
prohibiting such construction or extensions or prescribing
such terms and conditions for the location of the lines, plants,
or systems affected as to it may seem just and reasonable.
(2) Whenever the commission, after a hearing upon its
own motion or upon complaint, finds that there is or will be a
duplication of service by public utilities in any area, the
commission shall, in its discretion, issue a certificate of public
convenience and necessity assigning specific territories to
one or to each of said utilities or by certificate of public
A95
convenience and necessity to otherwise define the conditions
of rendering service and constructing extensions within said
territories and shall, in its discretion, order the elimination of
said duplication upon such terms as are just and reasonable,
having due regard to due process of law and to all the rights
of the respective parties and to public convenience and
necessity.
SECTION 40-5-102 OF THE
COLORADO REVISED STATUTES
40-5-102. Certificate of public convenience and necessity. No
public utility shall exercise any right or privilege under any
franchise, permit, ordinance, vote, or other authority granted
after April 12, 1913, or under any franchise, permit, ordi-
nance, vote, or other authority granted before April 12, 1913,
but not actually exercised before said date or the exercise of
which has been suspended for more than one year without
first having obtained from the commission a certificate that
public convenience and necessity require the exercise of
such right or privilege. When the commission finds, after
hearing, that a public utility has, before April 12, 1913, begun
actual construction work and is prosecuting such work, in
good faith, uninterruptedly, and with reasonable diligence in
proportion to the magnitude of the undertaking, under any
franchise, permit, ordinance, vote, or other authority granted
before April 12, 1913, but not actually exercised before said
date, such public utility may proceed, under such rules and
regulations as the commission may prescribe, to the comple-
tion of such work and after such completion, may exercise
such right or privilege. Sections 40-5-101 to 40-5-104 shall not
be construed to validate any right or privilege invalid on
April 12, 1913, or becoming invalid after said date under any
law of this state.
A96
SECTION 40-5-103 OF THE
COLORADO REVISED STATUTES
40-5-103. Certificate — application for—issuance. (1)
Before any certificate may issue under sections 40-5-101 to
40-5-104,-a certified copy of its articles of incorporation or
charter, if the applicant is a corporation, shall be filed in the
office of the commission. Every applicant for a certificate to
exercise franchise rights under section 40-5-102 shall file in
the office of the commission such evidence as shall be
required by the commission to show that such applicant has
received the required consent, franchise, permit, ordinance,
vote, or other authority of the proper county, city and
county, or municipal or other public authority. The commis-
sion has the power to issue a certificate to exercise franchise
rights after hearing, to refuse to issue the same, or to issue it
for the partial exercise only of said right or privilege and may
attach to the exercise of the rights granted by such certificate
such terms and conditions as in its judgment the public
convenience and necessity may require. Nothing contained
in this subsection (1) shall be construed to limit or restrict
the power and authority of the commission: To regulate,
issue, or refuse to issue certificates of public convenience and
necessity for construction of a new facility, plant, or system
or of any extension thereof as provided in section 40-5-101;
and to attach to the exercise of the rights granted by such
certificate such terms and conditions as in the commission’s
judgment may be required by the public convenience and
necessity. ;
(2) If such public utility desires to exercise a right or
privilege under a franchise, permit, ordinance, vote, or other
authority which it contemplates securing but which has not
yet been granted to it, such public utility may apply to the
commission for an order preliminary to the issue of the
A97
certificate. The commission may thereupon make an order
declaring that it will thereafter, upon application, under such
rules and regulations as it may prescribe issue the desired
certificate upon such terms and conditions as it may desig-
nate after such public utility has obtained the contemplated
franchise, permit, ordinance, vote, or other authority. Upon
the presentation to the commission of evidence satisfactory
to it that such franchise, permit, ordinance, vote, or other
authority has been secured by such public utility, the com-
mission shall thereupon issue such certificate.
A98
APPENDIX Y
SECTION 40-6-115 OF THE
COLORADO REVISED STATUTES
40-6-115. Review by district court-mandamus. (1) Within
thirty days after the application for a rehearing, reargu-
ment, or reconsideration is denied by the commission,
the applicant may apply to the district court for a writ of
certiorari or review for the purpose of having the lawful-
ness of the final decision inquired into and determined.
Such writ shall be made returnable not later than thirty
days after the date of issuance and shall direct the
commission to certify its record in the proceeding to the
court. On the return day, the cause shall be heard by the
district court, unless, for a good reason shown, the same
be continued. No new or additional evidence may be
introduced in the district court, but the cause shall be
heard on the record of the commission as certified by it.
The commission and each party to the action or proceed-
ing before the commission shall have the right to appear
in the review proceedings.
(2) The findings and conclusions of the commission on
disputed questions of fact shall be final and shall not be
subject to review, except that, in any proceeding
wherein the validity of any order or decision is chal-
lenged on the ground that it violates any right of a
petitioner under the constitution of the United States or
the constitution of the state of Colorado, the district
court shall exercise an independent judgment on the law
and the facts, and the findings or conclusions of the
commission material to the determination of the :aid
constitutional question shall not be final.
A99
(3) Upon review, the district court shall enter judgment
either affirming, setting aside, or modifying the decision
of the commission. So far as necessary to the decision
and where presented, the district court shall decide all
relevant questions of law and interpret all relevant con-
stitutional and statutory provisions. The review shall not
extend further than to determine whether the commis-
sion has regularly pursued its authority, including a
determination of whether the decision under review
violates any right of the petitioner under the constitu-
tion of the United States or of the state of Colorado, and
whether the decision of the commission is just and
reasonable and whether its conclusions are in accord-
ance with the evidence.
(4) The provisions of the Colorado rules of civil proce-
dure relating to writs of certiorari or review, so far as
applicable and not in conflict with the provisions of
articles 1 to 13 of this title, shall apply to proceedings
had in the district court under the provisions of this
section. No court of this state, except the district court to
the extent specified, shall have jurisdiction to review,
reverse, correct, or annul any order or decision of the
commission, or to suspend or delay the execution or
operation thereof, or to enjoin, restrain, or interfere with
the commission in the performance of its official duties;
but an action in the nature of mandamus shall lie from
the district court to the commission in all proper cases.
(5) All actions for review shall be commenced and tried
in the district court in and for the county in which the
petitioner resides, or if a corporation or partnership in
the county in which it maintains its principal office or
place of business, or in the district court of the city and
county of Denver, at the option of the petitioner. Appel-
A100
late review may be obtained in the supreme court con-
cerning any final judgment of the district court on
review, affirming, setting aside, or modifying any deci-
sion of the commission, in the same manner and with the
same effect as appellate review of judgments of the
district court in other civil actions.
Al0l
APPENDIX Z
Poudre’s Weld County Permit
KNOW ALL MEN BY THESE PRESENTS, That whereas
the Poudre Valley Rural Electric Association has this day
duly filed with the Board of County Commissioners of Weld
County its application for permission to erect, construct,
maintain and operate electric transmission and distribution
lines, and system along and upon public highways and public
rights-of-ways within the County of Weld, State of Colorado,
and it appearing that said association is a duly and regularly
incorporated association, organized and existing under and
by virtue of the laws of the State of Colorado, relating to
corporations, and that said corporation has complied with all
of the laws of the State of Colorado, and is now authorized to
do business in that state, and that the purposes of said
corporation are to erect, maintain and operate electric trans-
mission and distribution lines and systems for the delivery of
electric current to persons residing in rural areas in the
Counties of Weld, Larimer, and Boulder, State of Colorado,
and it further appearing that said corporation desires to erect
its poles, wires and transmission and distribution system
along, upon and across public roads and highways in Weld
County, Colorado, and the Board of County Commissioners
of the County of Weld, State of Colorado, having fully
considered the said application, and all of the maps, plats and
other data submitted to said Board by said corporation or
association, and being fully advised in the premises, on
motion duly made, seconded, and unanimously adopted at a
meeting of the Board of County Commissioners of Weld
County, Colorado, on this 2nd day of May, A.D. 1940,
IT IS ORDERED, That permission and authority be and is
hereby granted to said Poudre Valley Rural Electric Associa-
tion to enter upon, and use the Public roads and highways
ee
A102
and public rights-of-way in Weld County, Colorado, for the
erection, maintenance and operation of electric transmission
and distribution lines, and systems upon, along, and across
public roads, highways and rights-of-way, in Weld County,
Colorado, upon and along which the said corporation pur-
poses [sic] to locate its said lines and system; that said lines
and system shall be built, operated and maintained in accord-
ance with the safety rules promulgated by the United States
Bureau of Standards governing the installation and mainte-
nance of electrical supplies and communication lines.
IT IS FURTHER PROVIDED, as a condition to this permit
that the erection, maintenance and operation of said trans-
mission lines and system shall be done in such a manner as
not to cause undue inconvenience to the public in the use of
such roads and highways, and provided that the poles erected
shall be set back from the main traveled highway such a
distance to conform with the usage and custom in said matter
in Weld County, Colorado,
Dated at Greeley, Colorado, this 2nd day of May, A.D.
1940.
THE BOARD OF COUNTY
COMMISSIONERS,
WELD COUNTY,
COLORADO.
/s/ Fred Arens
Chairman
/s/_ Fred O. Ford
Member
/s/_A. R. Riggs
Member
A103
Attest:
/s/ Walter F. Morrison
County Clerk and Recorder
/s/ Kathleen E. Day
Deputy County Clerk
A104
APPENDIX AA
DEPARTMENT OF
STATE
I, NATALIE MEYER, Secretary of State of the State of
Colorado hereby certify that
POUDRE VALLEY RURAL ELECTRIC ASSOCIATION, INC.
(Colorado Corporation)
became incorporated upon the issuance of a Certificate of
Incorporation dated October 10, 1939, and said corporation is
duly organized, and in good standing, and is authorized and
competent to transact its business or conduct its affairs within
the State of Colorado.
I DO FURTHER CERTIFY that said corporation has been
in good standing from October 10, 1939 to date on certificate.
DATED: December 18, 1987
/s/ Natalie Meyer
Secretary of State
A105
APPENDIX BB
THE CITY OF GREELEY, COLORADO
ORDINANCE NO. 26, 1982
AN ORDINANCE REQUIRING ANY PERSON, FIRM OR
CORPORATION PROVIDING ELECTRIC LIGHT SYS-
TEMS WITHIN THE CITY OF GREELEY TO OBTAIN A
FRANCHISE PURSUANT TO ARTICLE XVIII OF THE
CHARTER OF THE CITY OF GREELEY.
WHEREAS, Article XVIII of the Charter of the City of
Greeley establishes a procedure for granting franchises tc
public utilities or public utility corporations providing elec-
tric light systems; and
WHEREAS, the City Council has determined that it is in
the best interest of the citizens of Greeley that persons, firms
or corporations providing electric light service within the
City of Greeley should obtain a franchise pursuant to Ar-
ticle XVIII of the Greeley City Charter; and
WHEREAS, the City Council determines that this Ordi-
nance is necessary for the protection of the health, safety and
welfare of the citizens of Greeley.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY
COUNCIL OF THE CITY OF GREELEY, COLORADO:
Section 1. Compliance required.
It shall be unlawful to maintain or install any wires, cables
or other equipment for the transmission of electric current
impulses in, on, under or over any street, alley, sidewalk or
other public place in the city, or to maintain or install any
pole or mast to support or hold such wires or equipment in
any such place, without having fully complied with the
provisions of this Ordinance.
ed
A106
Section 2. Franchise required.
After the effective date of this Ordinance, no such wire,
cable, pole or other equipment shall be installed or main-
tained over, on or under any such place unless, pursuant to
Article XVIII of the Charter of the City of Greeley, a
franchise has been granted for such installation or mainte-
nance. In order to permit the necessary time to obtain a
franchise pursuant to Article XVIII of the City Charter, any
facilities described in Section 1 which exist on the effective
date of this Ordinance may continue to be maintained for a
period of one hundred eighty (180) days after the effective
date of this Ordinance without the requirement of a
franchise.
Section 3. Franchise specifications.
Any franchise granted pursuant to this Ordinance shall
comply with all requirements of Article XVIII of the Charter
of Greeley and shall specify the fee to be paid for the
franchise, the purpose of the facilities to be maintained or
constructed under the franchise and the manner in which
any such facilities shall be installed or maintained. The
franchise shall also specify the location in which any facilities
may be installed or maintained and may provide for areas
annexed to the city after the date of the franchise.
Section 4. Supervision of work.
It shall be the duty of the Director of Inspections or his
designee to supervise all construction or installation work
performed subject to any franchise granted under this Ordi-
nance and to make such inspections as may be necessary to
ensure compliance with the provisions of the franchise, this
Ordinance and other applicable ordinances of the City of
Greeley.
:
4
ee —7
ae
Al07
Section 5. Option to purchase.
In the event a franchise is not approved or renewed by the
electors pursuant to Article XVIII of the Greeley City Char-
ter or at the expiration of a franchise granted under the
Charter, whether by termination, revocation or non-renewal,
the city shall have the option to purchase the non-complying
electric light system within the bourdaries of the city and
which the city may find necessary or desirable-to the proper
functioning and operation of an electric light system in the
city.
In order to avail itself of this option to purchase, the city
shall give written notice to electric light system operator of
its desire to exercise its option, which notice shall be valid if
given on or before the day the franchise shall so expire or
within thirty (30) days after the electors have denied a
franchise at an election thereon. On the exercise of this
option by the city, the operator shall immediately transfer to
the city, possession and title to all facilities and property, real
and personal, of the electric light system within the city
which the city shall identify in its exercise of the option. Such
Property shall be free from all liens and encumbrances not
agreed to be assumed by the city, unless the city has agreed
to a reduction in the purchase price to offset any encum-
brances the city may agree to accept.
The operator shall execute such warranty deeds or other
instruments of conveyance as shall be necessary for the
transfer of its system to the city. Operator shall make it a
condition of any contract entered into by it in reference to its
operations under the franchise that the contract shall be
subject to the exercise of this option by the city, and the city
shall have the right to succeed to all privileges and obliga-
tions thereunder on the exericse of its option.
A108
The purchse [sic] price for the system of the operator shall
be an amount equal to its full fair market value as an
operating electric light system.
Failure of the city and operator to agree on the price to be
paid for the system shall not delay the performance required
herein by operator, that is the requirement to transfer the
system to the city immediately following the exercise of the
city’s option to purchase. In the event, however, the price
shall not be agreed upon within sixty (60) days after the
option shall have been exercised, then operator shall be
entitled to the statutory rate of interest then being paid on
judgments within the State of Colorado from the time that
the city shall have exercised its option and until the payment
is finally made for the system.
In the event that the city and operator fail to agree upon
the price to be paid for the system, the parties shall refer the
issue of fair market value to a board of qualified appraisers
composed of one disinterested person appointed by the city
and one disinterested person appointed by operator. If the
two appraisers cannot agree on such value, they shall appoint
a third disinterested person, and the determination of any
two appraisers shall be binding. The expenses relating to the
appraisal shall be borne equally by the operator and the city.
Section 6. Violations and penalties.
/
Any violation of any provision of this Article shall be a
violation of the ordinances of the City of Greeley, punishable
as provided in Chapter 1.32 of the Code of the City of
Greeley. Each day upon which any violation shall continue
shall constitute a separate offense, punishable as such.
Section 7. This ordinance shall become effective five (5)
days after its final publication, as provided in Section 3-16
and 3-17 of the Greeley Charter.
A109
PASSED AND ADOPTED, SIGNED AND APPROVED
THIS 18th DAY OF MAY, 1982,
ATTEST: THE CITY OF GREELEY,
COLORADO
/s/__Gayle Voss By /s/ Mike Lehan
City Clerk Mayor
APPROVED: APPROVED AS TO FORM:
/s/ John DiFalco
City Manager City Attorney
A110
AFFIDAVIT OF PUBLICATION
STATE OF COLORADO
Ss.
County of Weld,
I, Paula A. Barton of said County of Weld, being duly sworn,
say that I am an advertising clerk of
THE GREELEY DAILY TRIBUNE, and
THE GREELEY REPUBLICAN
that the same is a daily newspaper of general circulation and
printed and published in the City of Greeley, in said county
and state; that the notice or advertisement, of which the
annexed is a true copy, has been published in said daily
newspaper for consecutive (days); that the notice was pub-
lished in the regular and entire issue of every number of said
newspaper during the period and time of publication of said
notice, and in the newspaper proper and not in a supplement
thereof; that the first publication of said notice was contained
in the issue of said newspaper bearing date Twenty-first day
of May A.D. 1982; and the last publication thereof; in the
issue of said newspaper bearing date the Twenty-first day of
May A.D. 1982; that said The Greeley Daily Tribune and The
Greeley Republican, has been published continuously and
uninterruptedly during the period of at least six months next
prior to the first issue thereof contained said notice or
advertisement above referred to; that said newspaper has
been admitted to the United States mails as second-class
matter under the provisions of the Act of March 3, 1879, or
any amendments thereof; and that said newspaper is a daily
newspaper duly qualified for publishing legal notices and
advertisements within the meaning of the laws of the State of
Colorado.
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May 21, 1982
Total charge: $10.15
/s/_ Paula A. Barton
Advertising Clerk
Subscribed and sworn to before me this
2ist day of May A.D. 1982
My commission expires February 28, 19
/s/_ Carol A. Veatch
Notary Public
NOTICE
THE CITY OF GREELEY,
COLORADO
ORDINANCE NO. 26, 1982
AN ORDINANCE REQUIRING ANY PERSON, FIRM OR
CORPORATION PROVIDING ELECTRIC LIGHT SYS-
TEMS WITHIN THE CITY OF GREELEY TC OBTAIN A
FRANCHISE PURSUANT TO ARTICLE XVIII OF THE
CHARTER OF THE CITY OF GREELEY.
The foregoing is the title of an ordinance passed and
adopted by the City Council of Greeley, Colorado at its
regular meeting on the 18th day of May, 1982. Said ordinance
was given the No. 26, 1982 and will be effective five (5) days
after the publication of this notice.
Said ordinance was published in its entirety on the 7th day
of May, 1982 issue of the Greeley Tribune. The City Council
directed that second publication be of the title only.
The text of the entire ordinance is available for public
inspection and acquisition in the office of the Greeley City
Clerk.
A112
IN WITNESS WHEREOF I have hereunto set my hand and
the seal of the City of Greeley this 18th Day of May, 1982.
Gayle L. Voss, City Clerk
The Greeley Daily Tribune
May 21, 1982
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APPENDIX CC
DEPARTMENT OF
STATE
UNITED STATES OF AMERICA,
STATE OF COLORADO. 3 ss. CERTIFICATE.
I, NATALIE MEYER, Secretary of State of the State of
Colorado, do hereby certify that the proposed charter of the
City of Greeley, voted on and adopted at a special election
held June 24, 1958 was filed in the office of the Secretary of
OR A thnk tis ik nc Dae th le eh
Ee OL Ee EEE Pe eT eT IN TESTIMONY WHEREOF I
have hereunto set my hand
and affixed the Great Seal of
the State of Colorado, at the
City of Denver, this 21st day
of December A.D. 1987
/s/_ Natalie Meyer
Secretary of State
/s/ Merilyn Handley
Deputy Secretary of State
acetate ae ie
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APPENDIX DD
ARTICLE XVIII
FRANCHISES AND PUBLIC UTILITIES
Section 18-1. Definition — The term Public Utility or Pub-
lic Utility Corporation, when used in this Charter, shall mean
any person, firm or corporation operating gas or electic light
systems, telephone or telegraph system, water or heating
plants or transportation systems, closed television circuits,
and serving or supplying the public; it shall not include any
person, firm or corporation, owning or operating side tracks
or switches for the accommodation of manufacturing plants
and business houses, or private telephone lines, and shall not
include the Board of the Water Department.
Section 18-2. Present Franchises — All franchise ordi-
nances of the City in effect at the time this Charter is adopted
shall remain in full force and effect according to their provi-
sions and terms until the expiration dates provided in said
franchise ordinances.
Section 18-3. Franchises Granted Upon Vote — No
franchise shall be granted except upon the majority vote of
the qualified taxpaying electors voting thereon at a special
election called for such purpose. The question of its being
granted shall be «bmitted to such vote by ordinance within
ninety (90) days after deposit with the Director of Finance of
the expense (to be determined by the Director of Finance)
of such submission by the applicant for such franchise. The
ordinance providing for such election shall be pubiished,
following its introduction, weekly for two consecutive weeks
in a newspaper of general circulation within the City and
after such publication shall be passed on final reading at the
first regular meeting of the Council following such publica-
tion. An applicant may make application for a new franchise
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in accordance with this Article prior to the expiration of its
existing franchise.
Section 18-4. Term — Compensation — Restriction — No
franchise shall be granted for a longer period than twenty-
five (25) years, nor without reserving to the City such fair
percentage of the gross receipts arising from the use thereof
within the boundaries of the City as shall be fixed in the grant
of said franchise. This compensation shall not exempt the
grantee or assignees from any lawful taxation upon his or its
property, but shall exempt the grantee or assignees from the
payment of any licenses, charges or any other impositions
levied by the City. The percentage of gross receipts shall be
paid annually and a failure to pay such percentage shall work
a forfeiture of the franchise.
Section 18-5. Extension of Territory — The Council may
extend the area or include streets, alleys, public places and
property, not embraced in such franchise, by ordinance, to
include future boundaries of the City when the growth of the
City and necessity require, subject to all of the terms and
conditions of such original franchise and coextensive with
the term thereof, without a vote of the electors.
Section 18-6. Elevate or Lower Tracks —
a. The Council shall have power, by ordinance when nec-
essary, to require any railroad company, at its own expense,
to elevate, or lower any of its tracks running over, along, or
across any street, avenue or alley, and to require any railroad
company or companies on some fair apportionment of the
cost of expense thereof between it and the City or other
public authority in interest, to construct and maintain all
street crossings, bridges, or viaducts in good condition with
proper approaches and other conveniences heretofore ex-
isting upon any street, avenue or alley of the City and over,
under and across its or their track or tracks.
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b. The Council may, upon fair apportionment of the cost
thereof between any person, firm or corporation operating
transportation systems and the City or other public authority
in interest, require such person, firm or corporation to take
~~ measures for the public, as in the opinion of the Council, the
public safety or convenience may require.
Section 18-7. Provide for Safety — Every franchise shall
be subject to the right of the Council to make all necessary
regulations for the safety, welfare and accommodation of the
public.
Railroad franchises shall be subject to the right of the
Council to construct sewer, water and gas mains and pipes
and wire circuits under, over, or through their property.
Section 18-8. Revocable Licenses— The Council shall
have power by ordinance to grant a license, revocable for
good cause shown, to any railroad company, manufacturer, or
merchant, to lay side tracks and switches along or across any
street, avenue or alley in
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