See id. at 768-72. In determining that the controversy here was a matter of mixed local and state concern, the court of appeals relied heavily on our decision in City County of Denver v. Mountain States Telephone Telegraph Co., 754 P.2d 1172 (Colo. 1988) (Mountain States). In Mountain States, we considered whether Mountain Bell had to bear the cost of relocating underground facilities it previously installed and was required to remove as a result of a sanitary sewer line project.
In asserting that an ordinance derived from the exercise of police powers reigns supreme over any utility interest, Denver relies on a line of decisions from this court holding that a municipality, reasonably exercising its police powers to regulate the health, safety, or welfare of its citizens, may compel public utilities to relocate their facilities from the public right-of-way at their own expense. See Meadowbrook-Fairview Metro. Dist. v. Bd. of County Comm'rs, 910 P.2d 681 (Colo. 1996); City County of Denver v. Mountain States Tel. Tel. Co., 754 P.2d 1172, 1176 (Colo. 1988). Even in this limited context, however, the validity of this proposition has always depended upon the non-existence of any contract, franchise agreement, or statute to the contrary.
We have noted that such a function distinction does not lend itself to predictable patterns in characterizing local government action. City and County of Denver v. Mountain States Tel. and Tel. Co., 754 P.2d 1172 (Colo. 1988). We recognize that in keeping with the General Assembly's abrogation of sovereign immunity, we can no longer cloak the state's political subdivisions in immunity from the running of statutes of limitations.
Soon thereafter, Platte Canyon, also affected by the road improvement projects, filed an action in the district court seeking a declaration that Platte Canyon should not be required to bear the cost of relocating its utility lines. The trial court consolidated the actions and granted summary judgment in favor of Jefferson County. The trial court relied on City and County of Denver v. Mountain States Telephone and Telegraph Co., 754 P.2d 1172 (Colo. 1988), to hold that Southwest and Platte Canyon would have to bear the costs of relocating their utility lines. The court of appeals affirmed, holding that Mountain States was dispositive in the instant case, despite the fact that Mountain States involved a privately-owned public utility, while the petitioners in the instant case are all public entities.
As noted, the common law traditionally required a utility to bear the cost of relocating its facilities in a public right of way whenever state or local authorities request such relocation. See City County of Denver v. Mountain States Tel. Tel., 754 P.2d 1172, 1173 n. 1 (Colo. 1988); General Tel. Co. of the Northwest, Inc. v. City of Bothell, 105 Wn.2d 579, 716 P.2d 879, 882 (1986); see generally 12 E. McQuillin, The Law of Municipal Corporations § 34.74a, at 226 (3d ed. 1986); O. Reynolds, Handbook of Local Government Law § 111, at 341 (1982). This rule is still in force in many jurisdictions.
When faced with a utility relocation issue similar to the one before this Court, the Supreme Court of Colorado stated: "Cases and commentators have criticized the governmental/proprietary distinction as unhelpful, inherently unsound, and `probably one of the most unsatisfactory known to the law, for it has caused confusion not only among the various jurisdictions but almost always within each jurisdiction.'" City County of Denver v. Mountain States Telephone Telegraph Co., 754 P.2d 1172, 1174 (Colo. 1988) (quoting 3 K. Davis, Administrative Law Treatise § 25.07, at 460 (1958)). Although courts generally fail to analyze the "basis for the distinctions between governmental and proprietary activities," those that do "seem to assert that governmental and proprietary functions are distinguishable based on whether the public bodies are engaged in activity that is (1) essential or necessary for the government to perform, or (2) traditional for the government to perform."
( Id. at pp. 301-302, 711 P.2d 119.) In City and County of Denver v. Mountain States Telephone and Telegraph Co. (Colo. 1988) 754 P.2d 1172, the Supreme Court of Colorado held: "[T]he governmental/proprietary distinction is no longer cognizable in the utilities relocation context ...." ( Id. at p. 1176.)
See U.S. West Communications, Inc. v. City of Longmont, 948 P.2d 509, 520 (Colo. 1997) (upholding municipal ordinance requiring utility to relocate its lines underground); City and County of Denver v. Mountain States Tel. Tel. Co., 754 P.2d 1172, 1176 (Colo. 1988) (requiring utility to relocate its lines due to the construction of new sewer lines); City of Genesco v. Illinois N. Utils. Co., 378 Ill. 506, 510, 39 N.E.2d 26, 30 (Ill. 1941) (requiring utility with expired franchise to remove its inoperational power lines); Detroit Edison Co. v. Southeastern Michigan Transp. Auth., 410 N.W.2d 295, 297 (Mich.Ct.App. 1987) (requiring utility to relocate its facilities within the projected route of "people mover" upon order of the transportation authority); Northwest Natural Gas v. City of Portland, 711 P.2d 119, 121 (Or. 1985) (requiring utility to relocate its lines to accommodate construction of a light rail transit system); Vermont Gas Sys., Inc. v. City of Burlington, 571 A.2d 45, 49 (Vt. 1989) (requiring gas utility to relocate its lines due to the construction of new storm and sewer lines); City of Edmonds v. General Tel. Co., 584 P.2d 458, 461 (Wash.Ct.App. 1978) (upholding municipal regulation requiring utility to place its lines underground
Colorado's appellate courts have, however, found the governmental/proprietary distinction inappropriate in other instances. In City and County of Denver v. Mountain States Tel. and Tel. Co., 754 P.2d 1172, 1176 (Colo. 1988), the court concluded that the distinction has no validity in the context of utility relocation law. In Clark v. Town of Estes Park, 686 P.2d 777, 779 (Colo.
In Longmont, we held that a tariff was not a "statute" for the purposes of abrogating the common law rule requiring utility companies to pay for relocation costs that was stated in City County of Denver v. Mountain States Telephone Telegraph Co., 754 P.2d 1172 (Colo. 1988). See Longmont, 948 P.2d at 518.