# Appendix — Poudre Valley Rural Electric Ass'n v. City of Greeley > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0689%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1988 - **Citation:** 485 U.S. 949 ## Text 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 A6 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 Al2 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 Al3 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 Al4 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 | f 7 | ; : ; Al5 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 th [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0689%3A2. Public record. Not legal advice.