Opinion
No. 26515
Decided December 9, 1974.
Complaint by property owner alleging that electric association refused to furnish electricity to two mobile home spaces on his property. Hearing examiner determined that requested service was "indeterminate service" and that property owner had refused to comply with applicable requirements and dismissed the complaint. Property owner filed exceptions which Public Utilities Commission denied. Property owner then sought review in district court which ruled that it could not exercise an independent judgment on the facts because a transcript had not been filed by property owner as required by law and property owner appealed.
Affirmed
1. PUBLIC UTILITIES COMMISSION — Party — Reverse — Decision — Failure to File Transcript — Findings Presumed Complete and Accurate. Under 1969 Perm. Supp., C.R.S. 1963, 115-6-13(4), if a party — who seeks to reverse, modify, or annul a recommended decision of a commission examiner or the decision of the commission — fails to file a transcript, the basic findings of fact of the commission are conclusive presumed to be complete and accurate.
2. ELECTRICITY — Mobile Home Spaces — Hearing Examiner — Indeterminate Service — Failure to Comply — Requirements — Determination — Conclusive. Where property owner who had requested electric service for two mobile home spaces did not file with Public Utilities Commission or with district court a transcript of evidence presented to hearing examiner — who had determined that requested service was "indeterminate service" and that property owner had refused to comply with applicable requirements causing him to dismiss the complaint — held, hearing examiner's determination, which was adopted by the full commission, that the service to the mobile home spaces was "indeterminate service" was conclusive upon the district court.
3. Indeterminate Service — Argument of Property Owner — Transcript — Unnecessary — Lack of Merit. Argument of property owner — who had requested electric service for two mobile home spaces on his property and had been refused such service because of his failure to comply with the applicable requirements after hearing examiner had determined that the requested service was "indeterminate service" — that the service he sought was not "indeterminate service" as a matter of law and therefore no transcript of the testimony and other evidence before hearing examiner was necessary was totally without merit.
Appeal from the District Court of the City and County of Denver, Honorable Henry E. Santo, Judge.
H. Gordon Howard, pro se.
John P. Moore, Attorney General, John E. Bush, Deputy, Eugene C. Cavaliere, Assistant, James K. Tarpey, Assistant, for defendants-appellees.
Appellant Howard filed a formal complaint with appellee Colorado Public Utilities Commission (Commission) alleging that appellee Poudre Valley Rural Electric Association, Inc., (Poudre Valley) refused to furnish electricity to two mobile home spaces on his property. Poudre Valley responded that it was willing to supply service to the two spaces if complainant would comply with its policy regarding "indeterminate service." This commission approved policy required a payment to cover the cost of construction to extend the services, which payment would in the future be refundable in whole or in part if revenues generated therefrom reach a specified level. The hearing examiner determined that the requested service was "indeterminate service" and that complainant had refused to comply with the applicable requirements. He therefore dismissed the complaint.
The appellant filed his exceptions to the recommended decision of the hearing examiner and thereafter the commission denied the exceptions and adopted as its own the findings of fact and conclusions of the examiner.
Appellant then sought review in the district court. He alleged that the hearing examiner and the commission abused their discretion and exceeded their authority by determining that service to mobile home spaces is "indeterminate service," and thus subject to the requirements for payment before service is extended to the new locations.
Complainant argues that his property is taxed as permanent property and therefore the PUC cannot treat his service as "indeterminate." But complainant's citations of statutes dealing with taxation, in addition to being inapposite, were repealed in 1964. See 1965 Perm. Supp., C.R.S. 1963, 137-1-1(2).
The commission's rules pertaining to the regulation of electric utilities explain "indeterminate service" as follows:
"'Indeterminate Service' construed to mean service to mining, industrial, manufacturing and large commercial customers; also to domestic, commercial, power or rural customers when the use of service cannot be reasonably assured as to its amount and permanency."
and
"'INDETERMINATE SERVICE' includes service to mines, quarries, oil wells, industrial and commercial enterprises of speculative purposes, real estate subdivisions, development of property for sale, enterprises where the applicant will not be the user of service, where there is little or no demand for service, tenant houses, house trailers, rental property and to other service where the amount and permanency of service cannot be reasonably assured."
The district court did not reach the merits of the appellant's suit because he did not cause a transcript of the hearings to be filed either with the full commission or with the court. The district court ruled that it could not exercise an independent judgment on the facts because a transcript of the evidence presented on the issue had not been filed by the appellant as required by law.
[1] The district court properly interpreted the provisions of 1969 Perm. Supp., C.R.S. 1963, 115-6-13(4). It provides that if a party, who seeks to reverse, modify, or annul a recommended decision of a commission examiner or the decision of the commission, fails to file a transcript, the basic findings of fact of the commission are conclusively presumed to be complete and accurate. [ See also C.A.R. 12(f).]
[2] Therefore, the determination by the hearing examiner, which was adopted by the full commission, that the service to the mobile home spaces was "indeterminate service" was conclusive upon the court.
[3] We totally reject the appellant's argument that the service he sought from Poudre Valley is not "indeterminate service" as a matter of law, and therefore no transcript of the testimony and other evidence before the hearing examiner is necessary.
Judgment affirmed.