COLORADO COURT OF APPEALS 2016COA138 

Court of Appeals No. 15CA1371 

Boulder County District Court No. 14CV30681 

Honorable Judith L. Labuda, Judge 

Public Service Company of Colorado, a Colorado corporation, 

Plaintiff-Appellant, 

v. 

City of Boulder, Colorado; City Council of the City of Boulder, Colorado; 

Matthew Appelbaum, in his official capacity as Mayor; George Karakehian, in 

his official capacity as Mayor Pro Tem; Macon Cowles, in his official capacity as 

a member of the City Council; Suzanne Jones, in her official capacity as a 

member of the City Council; Lisa Morzel, in her official capacity as a member of 

the City Council; Tim Plass, in his official capacity as a member of the City 

Council; Andrew Shoemaker, in his official capacity as a member of the City 

Council; Sam Weaver, in his official capacity as a member of the City Council; 

and Mary Young, in her official capacity as a member of the City Council, 

Defendants-Appellees. 

JUDGMENT VACATED 

Division I 

Opinion by JUDGE PLANK* 

Taubman and Freyre, JJ., concur 

Announced September 22, 2016 

Faegre Baker Daniels, LLP, John R. Sperber, Daniel D. Williams, Matthew D. 

Clark, Boulder, Colorado, for Plaintiff-Appellant 

Thomas A. Carr, City Attorney, David J. Gehr, Deputy City Attorney, Kathleen 

E. Haddock, Senior Assistant City Attorney, Deborah S. Kalish, Senior 

Assistant City Attorney, Boulder, Colorado, for Defendants-Appellees 
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. 

VI, § 5(3), and § 24-51-1105, C.R.S. 2016. 
1 

¶ 1 Plaintiff, Public Service Company of Colorado (Xcel), appeals 

the district court’s judgment dismissing its complaint against 

defendants, the City of Boulder (City), the Boulder City Council 

(Council), and various elected officials. We vacate the judgment. 

I. Background 

¶ 2 At a November 2011 election, the City voters approved an 

amendment to the Boulder Home Rule Charter: Article XIII, “Light 

and Power Utility.” The amendment’s section 178, in particular, 

authorized the creation of a new light and power utility if the 

Council could demonstrate, with verification by a third-party 

independent expert, that the utility could 

acquire the electrical distribution system in 

Boulder and charge rates that do not exceed 

those rates charged by Xcel Energy at the time 

of acquisition and that such rates will produce 

revenues sufficient to pay for operating 

expenses and debt payments, plus an amount 

equal to twenty-five percent (25%) of the debt 

payments, and with reliability comparable to 

Xcel Energy and a plan for reduced 

greenhouse gas emissions and other pollutants 

and increased renewable energy.1

Charter § 178(a). 

 

1 In November 2013, the voters added another requirement — that a 

$214,000,000 debt limit could not be exceeded in the acquisition of 

Xcel’s assets. Charter § 188(a). 
2 

¶ 3 Charter section 178(a) also authorized the Council “to 

establish, by ordinance, a public utility under the authority in the 

state constitution and the city charter . . . .” 

¶ 4 On August 20, 2013, the Council passed Ordinance 7917 (the 

First Ordinance), which (1) accepted the report of a third-party 

evaluator who concluded that the conditions precedent to the 

utility’s creation (listed above) had been satisfied; (2) stated that it 

was not creating a light and power utility, and any future desire to 

do so would be by subsequent legislative action; and (3) recognized 

that revisions to the “Base Materials” provided by the City might be 

necessary, and instructed the city manager to further refine them 

accordingly. 

¶ 5 On May 6, 2014, the Council passed Ordinance 7969 (the 

Second Ordinance), which stated its intention “to establish the light 

and power utility . . . .” Twenty-eight days later, Xcel filed a 

complaint with respect to the Second Ordinance, seeking 

declaratory judgment under C.R.C.P. 57 or, in the alternative, 

review under C.R.C.P. 106(a)(4). 

¶ 6 The City filed a motion to dismiss Xcel’s complaint pursuant to 

C.R.C.P. 12(b)(1), arguing that Xcel’s complaint attempted to 
3 

challenge the First Ordinance by purporting to challenge the 

Second Ordinance and, because the time in which to bring such a 

challenge against the First Ordinance had passed under Rule 

106(b), the district court lacked subject matter jurisdiction. The 

district court agreed with the City’s characterization of Xcel’s 

complaint, and dismissed the complaint for lack of subject matter 

jurisdiction due to the time bar. We disagree. 

II. Standard of Review 

¶ 7 Issues concerning subject matter jurisdiction may be raised at 

any time under C.R.C.P. 12(b)(1). Medina v. State, 35 P.3d 443, 452 

(Colo. 2001). When a defendant raises such a challenge, the 

plaintiff has the burden of proving jurisdiction, and the district 

court may make appropriate factual findings regarding the issue. 

See id. Further, Rule 12(b)(1) permits the court “to weigh the 

evidence and satisfy itself as to the existence of its power to hear 

the case.” Id. (quoting Trinity Broad. of Denver, Inc. v. City of 

Westminster, 848 P.2d 916, 925 (Colo. 1993)). We review the trial 

court’s legal conclusions in dismissing a complaint for lack of 

subject matter jurisdiction de novo. Wallin v. Cosner, 210 P.3d 479, 

480 (Colo. App. 2009). 
4 

III. Analysis 

¶ 8 Initially, we note that the parties dispute which ordinance was 

challenged in Xcel’s complaint, and therefore which ordinance is at 

issue on appeal. Xcel asserts that it is challenging the 

establishment of the light and power utility, which occurred when 

the Second Ordinance was passed; the City, however, asserts that 

the allegations in the complaint focus on matters decided solely in 

the First Ordinance, i.e., the determination that the conditions 

precedent to establishment were satisfied. Regardless, we address 

each of the ordinances, and reach the same conclusion for both. 

¶ 9 On appeal, Xcel contends that the district court wrongly 

dismissed its complaint for lack of jurisdiction with respect to the 

twenty-eight-day time limit of C.R.C.P. 106(a)(4). In doing so, Xcel 

argues that the First Ordinance (1) was not final, as required under 

C.R.C.P. 106(b), and (2) was legislative, not quasi-judicial; 

according to Xcel, each of these conclusions make the time limit of 

Rule 106(a)(4) inapplicable to its complaint. 

A. The Ordinances Were Not “Final” Actions 

¶ 10 We first address, as a threshold issue, the finality of the 

ordinances upon which the application of the time bar in Rule 
5 

106(b) depends. Xcel contends that the First Ordinance was not 

final because (1) it did not establish the utility; (2) it referenced 

additional revisions to be made in planning the utility; and (3) the 

City made such additional revisions after the First Ordinance was 

passed. We agree. 

¶ 11 Rule 106(b) provides that a complaint seeking review under 

the rule should be filed in the district court no later than 

twenty-eight days after the “final decision of the body or officer.” 

C.R.C.P. 106(b). This time period begins to run at the “‘point of 

administrative finality,’ which occurs when ‘the action complained 

of is complete,’ leaving ‘nothing further for the agency to decide.’” 

Carney v. Civil Serv. Comm’n, 30 P.3d 861, 863 (Colo. App. 2001) 

(quoting 3 Bar J Homeowners Ass’n v. McMurry, 967 P.2d 633, 634 

(Colo. App. 1998)); see also Baker v. City of Dacono, 928 P.2d 826, 

827 (Colo. App. 1996); Cadnetix Corp. v. City of Boulder, 807 P.2d 

1253, 1254 (Colo. App. 1991). Therefore, the primary issue here is 

whether the First Ordinance had reached the point of “finality.” 

¶ 12 “[A] final judgment or decision generally . . . ends the 

particular action in which it is entered, leaving nothing further to be 

done to completely determine the rights of the parties, . . . [and] 
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therefore necessarily depends upon the scope and nature of the 

proceeding and rights at issue.” Citizens for Responsible Growth v. 

RCI Dev. Partners, Inc., 252 P.3d 1104, 1106-07 (Colo. 2011). 

¶ 13 Here, neither ordinance establishes a final utility plan nor 

resolves the issues related to the preconditions necessary to 

establish such a plan. 

¶ 14 The First Ordinance demonstrated its lack of finality in 

recognizing, by its terms, the ongoing process and assessment 

required to complete the utility plans. That ordinance stated that it 

“shall not be construed to create a light and power utility” and 

directed the city manager to “continue refinement of the Base 

Materials for use in creating and operating a light and power utility 

. . . .” Although the Second Ordinance purported to establish that 

the conditions precedent had been satisfied (pursuant to the 

Charter), this statement must not be read out of context. Reading 

the Second Ordinance as a whole, the statements directing further 

refinement of the plans and deferring creation of the utility for later 

legislative action show the City intended to make further changes 

and indicate that this action was not final. 
7 

¶ 15 Furthermore, uncertainty lingers since Boulder has continued 

supplemental modeling concerning the utility’s feasibility after the 

passage of the First Ordinance. There remain significant 

unresolved issues as to the financial viability and reliability of the 

utility. For example, based on the “initial modeling” it has 

completed thus far, the City calculated it could meet the 

requirements of the First Ordinance by including service to 

customers outside the Boulder city limits; however, this calculation 

assumed the inclusion of such customers (contrary to the Public 

Utility Commission’s prior rulings rejecting the City’s petition to 

include customers outside the city limits), with no demonstration 

that the metrics could be met if the utility is limited to Boulder 

residents. 

¶ 16 Such ongoing assessments leave much more to be done. 

Therefore, the First Ordinance was not a final action. 

¶ 17 The Second Ordinance, authorizing the establishment of the 

utility, relies on the findings of the First Ordinance that the City 

adequately met the conditions precedent. As previously discussed, 

this appears to be an ongoing process subject to continuing 

revisions even since the First Ordinance’s passage. Thus, for the 
8 

same reasons the First Ordinance was not final, the Second 

Ordinance also lacks finality. 

¶ 18 For these reasons, we conclude that neither ordinance was a 

“final” action under Rule 106(b). In the absence of finality, judicial 

review under Rule 106 is premature. Accordingly, we disagree with 

the district court that Xcel’s complaint was time barred and, 

therefore, the district court erred in dismissing the complaint on 

this basis. 

B. Declaratory Judgment 

¶ 19 Xcel also sought review under C.R.C.P. 57(b). Xcel’s complaint 

sought a declaratory judgment finding the Second Ordinance void 

as a matter of law due to its failure to meet the conditions 

precedent required by the Charter. The district court held that it 

lacked jurisdiction over this claim based on its application of the 

time bar of Rule 106(b).2 We agree, but on other grounds, that the 

district court could not enter a declaratory judgment. 

¶ 20 For the reasons stated above, Rule 106 does not apply due to 

the lack of finality of the ordinances. Lack of finality may also be a 

 

2 Claims for declaratory relief under C.R.C.P. 57 are subject to the 

time limitations of C.R.C.P. 106(b). See JJR 1, LLC v. Mt. Crested 

Butte, 160 P.3d 365, 369 (Colo. App. 2007). 
9 

basis for a court’s refusal to enter a declaratory judgment. Rule 

57(f) states: “The court may refuse to render or enter a declaratory 

judgment or decree where such judgment or decree if rendered or 

entered, would not terminate the uncertainty or controversy giving 

rise to the proceeding.” Due to the lack of finality of the ordinances 

in this case, entry of a declaratory judgment at this point is also 

premature. 

C. Quasi-Judicial Versus Legislative Action 

¶ 21 The parties dispute, and discuss extensively in their briefs, 

whether the passing of the First Ordinance was a quasi-judicial or 

quasi-legislative action. Because we find that the ordinance itself 

was not a final action, we need not reach the issue of whether it 

was quasi-judicial or quasi-legislative. 

IV. Conclusion 

¶ 22 We conclude that the trial court did not have jurisdiction 

because the ordinances were not final actions and that declaratory 

relief was premature. The judgment is vacated. 

JUDGE TAUBMAN and JUDGE FREYRE concur.