How do the revised rules in the Bipartisan Budget Act of 2015 affect you and your business?
That’s according to a letter sent Friday from Xcel senior manager of siting and land rights John Lupo to Boulder city manager Jane Brautigam.
Boulder is seeking to acquire Xcel’ assets in and around the city in order to start its own municipal electric utility.
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“Our response to Boulder’s Notice of Intent includes requests for additional information from the City,” read a statement from Xcel about its response. “The letter received from Boulder on January 6th is missing information necessary to inform us of the property and assets/facilities the City intends to acquire. We have requested more clarifying information and have taken the position that the 90-day period to provide the appraisal report at the City’s expense (per a State statute) has not begun to run (and will not begin until the City provides us with the necessary information).”
The city’s Jan. 6 notice of intent to acquire was the formal first step required by law to start the process of acquiring property by the power of eminent domain. By law, the city must make an attempt at good-faith negotiations with Xcel before filing for condemnation in court.
Xcel and the city of Boulder both have declined requests from the Boulder County Business Report for an itemized list of assets needed to run the utility.
Xcel has 90 days from the notice to provide the city with an appraisal, at which point the city would have to provide its own appraisal to Xcel. If Xcel were to decline to enter negotiations or the negotiations failed after the swapping of appraisals, the law requires that Boulder must submit to Xcel a written final offer before proceeding to trial.
Reached by phone, Xcel spokeswoman Michelle Aguayo said Xcel’s response on Friday does not necessarily mean the company plans to have an appraisal done and enter good-faith negotiations. The company simply doesn’t believe at this point that it has enough information about what the city plans to acquire.
“We’ll determine that at the time when we get something from the city,” Aguayo said.
Boulder’s notice of intent outlined major equipment that the city intended to acquire, such as all or parts of seven substations plus a 115-kilovolt transmission loop.
Xcel’s Friday letter contends that the notice does not “identify in detail which parts of the equipment it intends to acquire” in regard to the Leggett, Niwot and Gunbarrel substations, nor does it include legal descriptions of the easement areas sought around those substations.
In response to the city’s intent to acquire the transmission loop and the property owned by Xcel necessary to operate the loop, Xcel contends that the lack of legal descriptions of the property included also makes that request incomplete.
Among other things, Xcel’s letter says Boulder’s notice doesn’t offer an inventory or detailed information about streetlights and other “property interests and appurtenances (equipment) of Xcel’s related to providing electric services within the acquisition area or the 115kV transmission loop,” as stated in the notice.
“The lack of this type of information regarding the property interests the City intends to take makes it impossible to properly determine the value of compensation owed and damages to (Xcel’s) remaining system,” Lupo wrote in the letter.
Boulder’s notice, Lupo wrote, also doesn’t include Xcel’s certificate of public convenience and necessity that grants Xcel the sole legal right to serve county customers outside the city. The city has long stated that it intends to serve a few thousand non-residents of the city to make the separation from Xcel a cleaner split as it relates to facilities.
“We would ask that the City advise Public Service which customers it wishes to serve,” the letter states.
The city of Boulder released a prepared statement by city attorney Tom Carr on Friday evening.
“Under state law, a letter of intent is simply required to provide sufficient information for the property owner to identify the property to be condemned,” Carr said. “The city’s notice of intent provides sufficient information for Xcel, as the owner of the property to understand the property to be acquired.
“Most of the information requested by Xcel is not publicly available. Under the former franchise (agreement with Xcel), the city was entitled to information about Xcel’s system both periodically and when the city decided to municipalize. Xcel admits in its letter that it has refused to provide this information. …
“State law does not require that a notice of intent include the level of detail requested by Xcel in the response the company gave us today. The notice of intent included the offer to meet with Xcel’s representatives to discuss the details of the acquisition from which Xcel, as the custodian of the information the city does not have access to, could specifically identify any equipment not identified by the city. The city looks forward to meeting with Xcel to share this information and begin negotiations.”