Douglas County Bd. of Com'rs v. Public Utilities Com'n of State of Colo.
| Decision Date | 11 May 1992 |
| Docket Number | No. 91SA79,91SA79 |
| Parties | Util. L. Rep. P 26,208 The DOUGLAS COUNTY BOARD OF COMMISSIONERS, Petitioner-Appellee, v. The PUBLIC UTILITIES COMMISSION OF the STATE OF COLORADO and Commissioners Arnold H. Cook, Ronald L. Lehr, and Gary L. Nakarado, and the Public Service Company of Colorado, Respondents-Appellants. |
| Court | Colorado Supreme Court |
Sherman & Howard, Steven H. Denman, Sean C. Lindsay, Denver, J. Mark Hannen, Douglas County Atty., Castle Rock, for petitioner-appellee.
Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Mark W. Gerganoff, Asst. Atty. Gen., Denver, for respondents-appellants.
Kelly, Stansfield & O'Donnell, Kenneth V. Reif, Denver, for Public Service Co.
Lawrence F. Herbert, pro se, amicus curiae.
The Public Utilities Commission of the State of Colorado (PUC) and the Public Service Company of Colorado (PSCo) appeal an order of the Douglas County District Court, reversing a decision of the PUC which granted PSCo's application to upgrade an electric transmission line that runs through Douglas County. 1 The district court determined that: (1) The Douglas County Board of Commissioners (Douglas County) had standing to request judicial review of the action of the PUC; (2) the PUC acted in a quasi-judicial capacity in rendering its decision; and, (3) the public utilities exception to the Colorado Land Use Act, section 30-28-127, 12A C.R.S. (1986), is unconstitutional as applied because it does not set forth adequate guidelines for use by the PUC in determining whether to order improvements by a public utility which cause a modification to a county's master land use plan.
We agree with the first two rulings of the district court, but because we find that section 30-28-127 provides an adequate standard for the PUC, we reverse.
The parties do not dispute the facts as set forth here. PSCo has constructed a "wheel and spoke" transmission system in order to provide electric service to the Denver metropolitan area. The electric transmission line at issue here forms a "spoke" that runs from one of the inner power delivery points south to the Daniels Park Substation and Autotransformer located in Douglas County (hereinafter "Daniels Park transmission line"), thus passing through Denver, Arapahoe, and Douglas Counties. This transmission line presently has the capacity to conduct 115 kilovolts (kV) of electric current.
Citing increasing demand for electrical power in the southern metropolitan area, the need to improve power transfer capabilities of the whole system, potential overloading of transformers, and the need to improve system reliability, PSCo sought to upgrade the portion of the Daniels Park transmission line that runs through Douglas County so that it could carry 230 kV of electric current.
PSCo first attempted to obtain zoning approval to upgrade this transmission line from the Douglas County Board of Commissioners but the request was denied. Subsequently, PSCo filed an application with the PUC requesting permission to upgrade that portion of the line that passes through Douglas County. This request was made pursuant to the public utilities exception statute, section 30-28-127, 12A C.R.S. (1986), which authorizes the PUC to order improvements to public utility equipment (including power lines), although the improvement derogates from a county's adopted land use plan:
None of the provisions of this part 1 [entitled "County Planning"] shall apply to any existing building, structure, or plant or other equipment owned or used by any public entity. After the adoption of a plan, all extensions, betterments, or additions to buildings, structures, or plant or other equipment of any public utility shall only be made in conformity with such plan unless, after public hearing first had, the public utilities commission orders that such extensions, betterments, or additions to buildings, structures, or plant or other equipment are reasonable and that such extensions, betterments, or additions may be made even though they conflict with the adopted plan.
§ 30-28-127, 12A C.R.S. (1986) (emphasis added).
PSCo claimed that the requested upgrade was reasonable and thus should be allowed under this provision. Following numerous time extensions and a prehearing conference in which PSCo, Douglas County and several individual intervenors participated, 2 an administrative law judge (ALJ) for the PUC set a hearing date before the PUC to determine whether the upgrade was reasonable and should be ordered. By a written decision available to all parties, including Douglas County, the ALJ ordered that the hearing be conducted in three phases. Phase one would address the need for the upgraded line, the second phase would concern non-need and non-health considerations such as noise, land use, aesthetics, and property values, and the third phase would consider the health impacts of the upgraded line.
In September 1989, a hearing commenced which lasted five days, during which nineteen witnesses testified. Opponents, including Douglas County and the other individual intervenors, argued that the upgrade should not be approved, asserting that PSCo's load projections were inaccurate, that the upgrade was unnecessary, and that PSCo had failed to sufficiently explore other alternatives. Douglas County also argued that, if the upgrade was approved, the line should be buried.
Following the hearing and consideration of written statements of position, the PUC entered Decision No. 89-1622 granting PSCo's application to upgrade the Daniels Park transmission line to a capacity of 230 kV, subject to certain conditions. 3 The conditions were set as a result of the PUC's decision to implement a policy of prudent avoidance to minimize unknown risks of harm to health. The approval was based on the PUC's findings that the transmission line improvement was needed to maintain reliable service and was reasonably required for electrical service in the southeast area and Douglas County in particular. The PUC also found that the factors considered in phase two of the hearing--land use, noise, property values, and aesthetics--did not adversely affect the overall reasonableness of the transmission line upgrade. Addressing phase three, the health impacts of the upgrade, the PUC concluded that, as of the time of the decision, "no known or apparent adverse health effects existed resulting from electric and magnetic fields from low level overhead power transmission lines," and, therefore, these considerations did not justify disapproval of the reasonable request to upgrade the line. Finally, again citing the policy of prudent avoidance, the Commission engaged in balancing the costs of burying the power line against the benefits of burial and concluded that burial was not warranted.
Douglas County requested judicial review of the PUC's decision in the district court. 4 Although Douglas County raised numerous issues, the court resolved the matter by considering only three issues--standing, whether the PUC proceeding was quasi-legislative or quasi-judicial in nature, and the constitutionality of section 30-28-127 as applied. Finding that Douglas County had standing because it had suffered injury in fact to a legally protected interest, the court ruled that, in its application of section 30-28-127 to the facts in this case, the PUC acted in a quasi-judicial manner. The court then determined that due process requires that the PUC adopt rules and regulations setting forth the factors which it considers relevant in determining whether a proposed improvement is reasonable under section 30-28-127. Because the PUC applied section 30-28-127 without the benefit of such rules and regulations, the court found that Douglas County's procedural due process rights were violated. The court, consequently, reversed the decision of the PUC. Both PSCo and the PUC appealed. 5
Because it has a bearing on the process due, we will first consider whether the PUC acted in a quasi-judicial or quasi-legislative manner. Then, we will consider whether Douglas County had standing to appeal the PUC's decision. Finally, in order to determine whether Douglas County's rights to procedural due process were violated, we will consider whether section 30-28-127 contains sufficiently definite standards which can be uniformly applied to control the exercise of administrative discretion by the PUC. 6
Because it has a bearing on our determination of whether Douglas County has standing to seek judicial review of the PUC's decision, and because certain due process requirements are triggered when an administrative agency engages in quasi-judicial proceedings, see § 24-4-105, 10A C.R.S. (1988); Schoenberg Farms, Inc. v. People, 166 Colo. 199, 209, 444 P.2d 277, 282 (1968), we first determine the nature of the PUC's decision and the process by which that decision was reached.
Recently we described the framework to be used in distinguishing rule-making or quasi-legislative proceedings from adjudicatory or quasi-judicial proceedings. We stated that:
Agency proceedings often require application of both rule-making and adjudicatory authority because of the nature of the subject matter, the issues to be resolved, or the interests of parties or intervenors. In general, agency proceedings that primarily seek to or in effect determine policies or standards of general applicability are deemed rule-making proceedings. Agency proceedings which affect a specific party and resolve particular issues of disputed fact by applying previously determined rules or policies to the circumstances of the case are deemed adjudicatory proceedings. The determination of whether a particular proceeding constitutes rule-making requires careful analysis of the actual conduct and effect of the proceedings as well as a...
To continue reading
Request your trial
-
City of Thornton v. Bijou Irr. Co.
...or regulations as long as the enabling statute provides adequate constraints for administrative actions. Douglas County v. Public Utils. Comm'n, 829 P.2d 1303, 1311 (Colo.1992). "The guiding consideration is whether these constraints are sufficient to insure that administrative action will ......
-
Romer v. Board of County Com'rs of County of Pueblo, Colo.
...power requiring the presence of an actual controversy, which is demonstrated by a real injury." Douglas County Bd. of Comm'rs v. Public Util. Comm'n, 829 P.2d 1303, 1309 (Colo.1992) (citing Colo. Const. art. VI, § 1; Maurer, 779 P.2d at 1323). The second step requires that a plaintiff show ......
-
Public Service Co. of Colorado v. Van Wyk
...case to the district court to rule on Douglas County's other objections to PUC's ruling. Douglas County Bd. of Comm'rs v. Pub. Utils. Comm'n, 829 P.2d 1303 (Colo.1992) (hereinafter Daniels Park I).2 On remand, the district court again reversed PUC's decision, this time finding that PUC did ......
-
L & R Exploration Venture v. CCG, LLC
...Ctr., 10 P.3d 654, 659–60, 662 (Colo. 2000) (considering the structure of the statutory scheme); Douglas Cnty. Bd. of Comm'rs v. Pub. Utils. Comm'n, 829 P.2d 1303, 1312–13 (Colo. 1992) (considering placement of a statutory provision). As noted, it is in the section of C.R.C.P. 103 —section ......