Cottrell v. City and County of Denver

• Decision Date: 09 November 1981
• Docket Number: No. 80SA279,80SA279
• Citation: 636 P.2d 703
• Parties: Corinne L. COTTRELL and Mark W. Mandler, individually and for others similarly situated, Plaintiffs-Appellants, v. The CITY AND COUNTY OF DENVER, a municipal corporation, and James B. Kenney, John A. Yelenick, Charles F. Brannan, Mrs. Peggy A. Pugsley and Dale Schaffer, constituting the Board of Water Commissioners of the City and County of Denver, Defendants-Appellees.
• Court: Colorado Supreme Court

Page 703

636 P.2d 703

Corinne L. COTTRELL and Mark W. Mandler, individually and for others similarly situated, Plaintiffs-Appellants, v. The CITY AND COUNTY OF DENVER, a municipal corporation, and James B. Kenney, John A. Yelenick, Charles F. Brannan, Mrs Peggy A. Pugsley and Dale Schaffer, constituting the Board of Water Commissioners of the City and County of Denver Defendants-Appellees.

No. 80SA279.

Supreme Court of Colorado, En Banc.

Nov. 9, 1981.

Rehearing Denied Nov. 30, 1981.

Robert E. Barker, Denver, for plaintiffs-appellants.

Wayne D. Williams, Michael L. Walker, Oscar Goldberg, Gorsuch, Kirgis, Campbell, Walker & Grover, P. C., Leonard M. Campbell, Denver, for defendants-appellees.

LOHR, Justice.

On January 11, 1980, the appellants, who are residents of Denver, filed a class action in Denver District Court ¹ naming as defendants the City and County of Denver and the individual members of the Denver Board of Water Commissioners (board). By this action the appellants sought to challenge a water rate increase which had been approved by the board on September 26, 1979, to become effective January 1, 1980. They stated their claims for relief in two counts, seeking a C.R.C.P. 106(a)(4) review of the board's action and a C.R.C.P. 57 declaratory judgment that sections C4.14-C4.35 of the charter of the City and County of Denver, pursuant to which the rate increase was adopted, were not validly enacted and are unconstitutional in several respects. They also challenge the new rates on the asserted basis that the Colorado Public Utilities Commission (PUC) has jurisdiction over rate-making for Denver's water sales to users outside the city. The trial court granted summary judgment for the defendants, and they appealed to this court. We affirm the judgment.

At the time this case was filed, the trial court granted the appellants' motion for a stay order postponing implementation of the rate increase pending judicial resolution of the dispute. The board moved that the trial court dissolve that stay order, and that motion was denied. Thereafter, the board filed an original proceeding with this court under C.A.R. 21 seeking relief in the nature of prohibition, contending that the stay was not authorized by C.R.C.P. 57 and had not been issued in conformity with the provisions of C.R.C.P. 65. This court denied that relief. Both sides then filed motions for summary judgment in the trial court, stipulating that no genuine issues of fact remained. The court heard oral argument on the pending motions for summary judgment, and, on April 15, 1980, granted the board's motion, denied the appellants' motion and dissolved the stay.

The appellants then brought this appeal, raising four questions for our consideration:

(1) Whether section C4.22 of the Denver charter violates Colo.Const. Art. XX, § 1 because that charter section purports to authorize operation of a water works more extensive in territorial scope than the constitution permits;

(2) Whether section C4.22 of the Denver charter, which is part of a voter-approved charter amendment, was adopted in violation of notice requirements in the charter because the official ballot title did not adequately describe the nature of the proposed amendment;

(3) Whether sections C4.14-C4.35 of the Denver charter are invalid because they unconstitutionally delegate legislative power and because they operate to deprive the appellants of procedural due process of law; and

(4) Whether the board's rate-making authority is subject to the jurisdiction of the PUC.

We shall address each question in turn.

I.

The appellants first contend that charter section C4.22 ² on its face offends the provisions of Colo.Const. Art. XX, § 1. The challenged charter section provides in relevant part:

Water rates. The Board (of water commissioners) shall fix rates for which water shall be furnished for all purposes within the City and County of Denver, and rates shall be as low as good service will permit. Rates may be sufficient to pay for operation, maintenance, reserves, debt service, additions, extensions, betterments, including those reasonably required for the anticipated growth of the Denver metropolitan area, and to provide for Denver's general welfare. (Emphasis added.)

The premise of the appellants' argument is that this language, specifically its directive to set rates at a level "reasonably required for the anticipated growth of the Denver metropolitan area," empowers the board to operate a "metropolitan water works." ³ The appellants then contend that such a provision violates the constitutional grant of authority to the city of Denver to operate a water works "local in use and extent." Colo.Const. Art. XX, § 1. ⁴ Because we find that the premise of the appellants' argument is erroneous, we do not reach the question whether and to what extent Denver's powers with respect to water works are constrained by Colo.Const. Art. XX, § 1.

The appellants' attempt to seize upon one clause consisting of thirteen words to suggest that the six-thousand-word 1959 charter amendments authorized Denver's operation of a metropolitan water works is facially implausible. A fundamental alteration of the board's functions carrying such important consequences for the citizens of Denver would undoubtedly be stated with greater clarity and emphasis.

Prior to the adoption of the charter amendment, Denver served a number of contract distributors and municipalities outside the Denver city limits. This practice has continued to the present. The board currently maintains approximately 122 distributor contracts with various municipalities, water districts, and other entities, and, for historical reasons, also maintains approximately 1,000 direct "connector agreements." ⁵ As a result of both sets of agreements, the total number of customers outside Denver deriving direct or indirect service from the board is approximately 96,720.

That the charter amendments were designed to address this practice is clear. C4.26 specifically sanctions extra-municipal water leases, but requires that delivery of water under those leases be limited as necessary to enable the board to provide an adequate supply of water to the people of Denver. That provision appears designed to reflect that in water-short years the water rights utilized to supply nonresident users may be needed to supply the residents of Denver with water. C4.26 further requires that every lease generate sufficient long-term revenue to pay for the cost of providing these services plus an additional amount to be determined by the board. ⁶ Similarly, C4.23 provides for uniformity of rates so far as practicable "for water furnished for use inside the city limits of the City and County of Denver." In thus qualifying the uniformity requirement, the charter implicitly recognizes that there would also be water supplied for use outside Denver and that different considerations would govern the rates applicable to such uses.

In this context, we read the challenged language of C4.22 as simply a further recognition that, in addition to supplying the water required by Denver's residents, the board, in keeping with its long-standing prior practice, will enter into contractual arrangements to supply water to users outside Denver subject to curtailment should the water be needed by Denver residents. C4.22 merely authorizes the board to include consideration of the costs incident to the facilities used to supply such water in fixing rates for water users within Denver.

Following the general reference to rates in C4.22, the charter then specifies the more particular considerations that will apply to rate-setting for users inside Denver, see C4.23, C4.25, and rate-setting for water users outside Denver, see C4.26. Thus, there was no intention to authorize the board's operation of a "metropolitan water works" by the general reference in C4.22. This is confirmed not only by the provisions for curtailment of extra-municipal water delivery contained in C4.26, but by the clear intent of the basic empowering clause, section C4.14:

Board of Water Commissioners created. There shall be and hereby is continued and created a non-political Board of Water Commissioners of five members, to have complete charge and control of a water works system and plant for supplying the City and County of Denver and its inhabitants with water for all uses and purposes. (Emphasis supplied.)

Any constitutional challenge to the charter amendment as so construed is meritless. ⁷ In Colorado Open Space Council, Inc. v. City and County of Denver, 190 Colo. 122, 543 P.2d 1258 (1975), this court specifically addressed Denver's constitutional and statutory authority to lease water for use outside its city limits, and found that practice proper. We perceive no reason to reconsider that holding. See also City of Thornton v. Farmers Reservoir and Irrigation Co., 194 Colo. 526, 575 P.2d 382 (1978); City of Northglenn v. City of Thornton, 193 Colo. 536, 569 P.2d 319 (1977). We therefore reject the appellants' first constitutional challenge.

II.

The appellants also contend that the ballot title of the charter amendment did not provide the electorate with adequate notice of the proposed amendment's nature. ⁸ The appellants' argument is again premised on the assumption that C4.22 authorized a "metropolitan water works." They suggest that a person reading the ballot title would be entirely unaware that such a fundamental alteration of the board's functions was being proposed. As stated in part I of this opinion, we disagree with the appellants' premise and further hold that the charter amendment, as we have construed it, was adequately described by its ballot title. ⁹

Section C1.20 of the Denver city charter, adopted pursuant to the power granted by Colo.Const. Art. XX, § 6 to regulate and control the form of ballots, requires that the official ballot "show the nature of the ... charter amendment..." ¹⁰ We considered...