Federal Eminent Domain Blog

Utility Challenges the City of Boulder's Process

In seeking a Freedom of Information Act request, Xcel may be able to illustrate that Boulder does not have the proverbial ducks in order because the proposed cost of the utility to the City will be far greater for the City than the community could have ever contemplated.

In almost every State, the rule of a public use and necessity is the question of whether the community was delegated the authority to acquire for the proposed use. Frequently, the factual basis is subject to challenge because the factual presentation is so baseless. However, even when the facts are baseless, a taking for a proposed public use will likely succeed once the legislative delegation is provided. See Township of Grosse Ile v Grosse Ile Bridge Company, 477 Mich 890 (2006).


The request, which is governed by provisions of the Colorado Open Records Act, follows a Tuesday night city council study session in which members told staff, consultants and volunteers they were on the right track after passing "the first major milestone" on its way to potentially creating a municipal utility.

City staff members and outside consultants have spent the past few months trying to determine whether Boulder could create its own utility that, in its eyes, would be better than Xcel Energy Inc. Xcel Energy is the owns and operates the power system in Boulder.

The municipal utility would have to charge lower rates, be at least as reliable and safe, create less greenhouse gas and use more power from renewable sources.

They found that over a 20-year horizon, the city could create a utility that would fulfill those criteria, said Heather Bailey, the executive director of energy strategy and electric utility development.

The day the city would decide to municipalize remains in the future, but the teams models and risk analysis had favorable results for municipalization advocates.


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