U.S. West Communications, Inc. v. City of Longmont

• Decision Date: 10 November 1997
• Docket Number: No. 96SC75,96SC75
• Citation: 948 P.2d 509
• Parties: Util. L. Rep. P 26,637, 97 CJ C.A.R. 2663 U S WEST COMMUNICATIONS, INC., a Colorado corporation, Petitioner, v. CITY OF LONGMONT, a Colorado municipal corporation, Respondent.
• Court: Colorado Supreme Court

Page 509

948 P.2d 509

Util. L. Rep. P 26,637, 97 CJ C.A.R. 2663

U S WEST COMMUNICATIONS, INC., a Colorado corporation, Petitioner, v. CITY OF LONGMONT, a Colorado municipal corporation, Respondent.

No. 96SC75.

Supreme Court of Colorado En Banc.

Nov. 10, 1997.

Rehearing Denied Dec. 2, 1997.

Otten, Johnson, Robinson, Neff & Ragonetti, P.C., Thomas J. Ragonetti, J. Thomas Macdonald, William H. Brierly, Russell P. Rowe, U S WEST Communications, Inc., Denver, for Petitioners.

Gorsuch Kirgis, L.L.C., Dudley P. Spiller, Maury L. Cuje, Denver, Claybourne M. Douglas, Mickey N. Conrad, Longmont, for Respondents.

Geoffrey T. Wilson, Denver, for Amicus Curiae Colorado Municipal League.

Anderson, Dude, Pifher & Lebel, P.C., Joseph B. Wilson, Colorado Springs, for Amicus Curiae Colorado Association of Municipal Utilities.

Leboeuf Lamb Greene LLP, Mark A. Davidson, Denver, for Amicus Curiae Public Service Company of Colorado.

Denman & Corbetta, P.C., Steven H. Denman, Richard L. Corbetta, Melissa A. Dalla, Denver, for Amicus Curiae West Plains Energy, a Division of UtiliCorp United Inc.

John J. Conway, Berry & Singer, Kent L. Singer, Denver, John L. Kemp, Glenwood Springs, for Amicus Curiae The Colorado Rural Electric Association.

Justice MULLARKEY delivered the Opinion of the Court.

We granted certiorari to consider whether the court of appeals erred in U S West Communications, Inc. v. City of Longmont, 924 P.2d 1071 (Colo.App.1995), when it affirmed the district court's grant of summary judgment in favor of the City of Longmont (Longmont) in an action brought by U S WEST Communications, Inc. (U S WEST). U S WEST challenged the validity of a Longmont ordinance, which prohibited U S WEST from requiring Longmont to pay for the underground relocation of certain U S WEST telecommunication facilities. ¹ The court of appeals upheld the ordinance, rejecting U S WEST's arguments that the ordinance was preempted by the general jurisdiction of the Public Utilities Commission (P.U.C.) and that it conflicted with a tariff U S WEST had filed with the P.U.C. The court of appeals also held that the ordinance did not result in an unconstitutional taking. We uphold the validity of the ordinance, but on different grounds. We affirm the court of appeals' holding that the ordinance was not an unconstitutional taking.

I.

Longmont is a home rule municipality under article XX, section 6, of the Colorado Constitution and operates its own electric utility department within Longmont's municipal boundaries. Since 1929, Longmont and U S WEST have had a joint use contract, which governs shared use of utility poles and reserves Longmont's right to exercise its municipal police powers. Longmont and U S WEST currently operate approximately ninety-two miles of joint use facilities.

In 1992, Longmont began a plan to relocate certain of its electric main feeder lines underground. In order to realize the benefits of the relocation plan, the Longmont City Council determined that the joint users of the utility poles serving the electric main feeder lines also needed to relocate their facilities underground. Accordingly, on February 9, 1993, the Longmont City Council unanimously approved Ordinance 0-93-02, entitled "Relocation Underground of Overhead Electricity and Communications Facilities" (the Ordinance). The Ordinance, which amended the Longmont Municipal Code, provides in relevant part:

On expiration of the date given in a notice under Section 14.34.050 to relocate underground, it shall be unlawful for any owner or operator to attach, affix, place, install, use, operate or maintain a facility within the street area identified in the notice, unless pursuant to a specific exception under Section 14.34.040, or a written grant of variance in accordance with Section 14.34.070.

....

After giving notice under Section 14.34.050, the city shall attempt to work with the owner or operator of a facility so all may relocate underground in a common trench. The city shall pay for excavation and back fill of a common trench if, within sixty days of mailing of the notice under Section 14.34.050, the owner or operator makes a written commitment, approved by the city attorney and electric director, to relocate its facility in a common trench in a manner that will not delay the relocation of the electric line.

Although failure to comply with the Ordinance is punishable by fine, imprisonment, or both, the Ordinance contains four exceptions, including the option to reroute overhead lines, and provides for the opportunity to request a variance based on extreme technological difficulty or inadequate land development. Regarding relocation costs, the Ordinance provides that a utility shall not require Longmont to pay for underground relocation of a facility not owned by Longmont. The ordinance does not, however, prohibit a facility owner from charging its customers for relocation. Overall, Longmont anticipates reducing by 300 the number of utility poles on Longmont's city streets, alleys, and public ways over a ten-year period.

The Longmont City Council prefaced the Ordinance with a number of findings. Specifically, relocating facilities underground "improves the aesthetics of a community by keeping unsightly poles, lines, and related above ground appurtenances out of the view of the public." Additionally, underground relocation "provides better protection [to the electric facilities] from damage due to accidents with vehicles, inclement weather or other causes" and "makes the facilities less vulnerable to damage from adjacent property maintenance by the citizenry." Underground relocation also "better protects the safety of the citizenry of Longmont because of less likelihood of involvement of overhead facilities in vehicular mishaps, and improvement of visibility along public rights of way, which improves the operational safety of roads."

On February 26, 1993, Longmont notified U S WEST of its intent to relocate underground approximately two blocks (1200 feet) of joint use facilities as part of Longmont's civic center expansion plan. The expansion plan called for removal of twenty-three Longmont-owned poles that contained facilities owned by Longmont, U S WEST, and a local cable company. U S WEST did not make a request to reroute the facilities to other above ground locations, nor did it seek a two-year extension as provided in the Ordinance. Rather, U S WEST relocated its facilities underground, incurring approximately $67,000 in relocation costs, and reserved its right to challenge the Ordinance and recover its costs.

In March 1993, U S WEST brought suit in the district court, seeking declaratory, injunctive, and monetary relief. U S WEST challenged the validity of the Ordinance on several grounds. U S WEST claimed, among other things, that both the Exchange & Network Services Tariff Colorado P.U.C. No. 8 § 4.6 (Tariff 4.6) ² and the general jurisdiction of the P.U.C. preempted the Ordinance. Additionally, U S WEST claimed that the Ordinance as applied resulted in an unconstitutional taking. The district court rejected U S WEST's arguments and granted summary judgment for Longmont.

The court of appeals affirmed the district court's summary judgment ruling. The court of appeals agreed with the district court that the relocation of a utility's facilities located in a public right-of-way is a matter of mixed local and state concern. Relying on our decisions in City & County of Denver v. State, 788 P.2d 764, 767-72 (Colo.1990) and Voss v. Lundvall Bros., Inc., 830 P.2d 1061, 1066-69 (Colo.1992), the court of appeals explained that a municipal ordinance can coexist with a state statute so long as the ordinance does not conflict with the statute. The court of appeals treated Tariff 4.6 as a statute and held that it did not conflict with the Ordinance. The court of appeals also held that the general jurisdiction of the P.U.C. did not preempt the Ordinance. Additionally, the court of appeals rejected U S WEST's argument that the Ordinance as applied constituted a taking in violation of the United States and Colorado Constitutions.

II.

We begin our analysis by considering Longmont's power to pass the Ordinance on the one hand, and the P.U.C.'s power to control the facilities, services, rates, and charges of U S WEST on the other hand. U S WEST argues that the case now before us turns on whether Tariff 4.6 preempts the ordinance promulgated by Longmont as a home rule city. Since U S WEST is a regulated monopoly subject to the jurisdiction of the P.U.C., U S WEST relies on the constitutional status given to utilities regulation under article XXV of the Colorado Constitution. U S WEST argues that, because its tariff is filed with and approved by the P.U.C. pursuant to this grant of constitutional authority, the tariff has the force and effect of state law. Contending that the controversy here is a matter of mixed local and state concern, U S WEST would have us hold that the Ordinance and Tariff 4.6 conflict and that therefore the home rule city's ordinance must yield to state law. We disagree.

A.

U S WEST urges us to analyze the controversy here as a matter involving mixed local and state concern. In arguing that a mixed local and state concern analysis applies, U S WEST points to our decisions in People ex rel. Public Utilities Commission v. Mountain States Telephone & Telegraph Co., 125 Colo. 167, 178, 243 P.2d 397, 402 (1952), where we held that the P.U.C. is the sole agency authorized to regulate the business and rates of telecommunications companies, and Moffat v. City & County of Denver, 57 Colo. 473, 477-78, 143 P. 577, 578-79 (1914), where we explained that objects in and under the public right of way have traditionally been recognized as a matter of local concern. Although U S WEST recognizes that the Ordinance regulates objects in and under the public right of way, U S WEST argues that the Ordinance also affects its business and rates in two...