Colorado § 40-5-102 - Certificate of public convenience and necessity.

§ 40-5-102. Certificate of public convenience and necessity.

No public utility shall exercise any right or privilege under any franchise, permit, ordinance, vote, or other authority granted after April 12, 1913, or under any franchise, permit, ordinance, vote, or other authority granted before April 12, 1913, but not actually exercised before said date or the exercise of which has been suspended for more than one year without first having obtained from the commission a certificate that public convenience and necessity require the exercise of such right or privilege. When the commission finds, after hearing, that a public utility has, before April 12, 1913, begun actual construction work and is prosecuting such work, in good faith, uninterruptedly, and with reasonable diligence in proportion to the magnitude of the undertaking, under any franchise, permit, ordinance, vote, or other authority granted before April 12, 1913, but not actually exercised before said date, such public utility may proceed, under such rules and regulations as the commission may prescribe, to the completion of such work and after such completion, may exercise such right or privilege. Sections 40-5-101 to 40-5-104 shall not be construed to validate any right or privilege invalid on April 12, 1913, or becoming invalid after said date under any law of this state.

Source: L. 13: p. 481, § 35. L. 17: p. 418, § 1. C.L. § 2946. CSA: C. 137, § 36. CRS 53: § 115-5-2. C.R.S. 1963: § 115-5-2.

ANNOTATION

Local permit not a condition precedent. This section does not prohibit the commission from issuing a certificate to a utility that has not received a local permit. City of Ft. Morgan v. Pub. Utils. Comm'n, 159 P.3d 87 (Colo. 2007).

Generally, certificate to service region creates right to service customers in that region, unless it can be shown that the company is not ready and able to provide the services requested. Rocky Mt. Natural Gas Co. v. Pub. Utils. Comm'n, 199 Colo. 352, 617 P.2d 1175 (1980).

When original certificate does not encompass proposed new service. The general rule that a certificate to service a region creates a right to serve customers in that region does not apply where the original certificate does not encompass the proposed new service. Rocky Mt. Natural Gas Co. v. Pub. Utils. Comm'n, 199 Colo. 352, 617 P.2d 1175 (1980).

Certificate of public convenience and necessity is not necessary for purpose of condemnation and relates solely to the question of use after the property has been acquired by condemnation. Miller v. Pub. Serv. Co., 129 Colo. 513, 272 P.2d 283 (1954); Pub. Serv. Co. v. Shaklee, 784 P.2d 314 (Colo. 1989).

Certificate of public convenience and necessity is only a permit or license to use and enjoy land that has been condemned; it is not a condition precedent to the right to condemn; and has no relationship whatever with the matter of condemnation. Miller v. Pub. Serv. Co., 129 Colo. 513, 272 P.2d 283 (1954).

Instance in which certificate not required. Where a water system has been operating continuously from prior to the enactment of the original public utilities act, a certificate of public convenience and necessity is not required, and the failure to obtain a certificate is not determinative of the system's status as a public utility. Cady v. City of Arvada, 31 Colo. App. 85, 499 P.2d 1203 (1972).

Applied in Pub. Utils. Comm'n v. Watson, 138 Colo. 108, 330 P.2d 138 (1958); Denver Welfare Rights Org. v. Pub. Utils. Comm'n, 190 Colo. 329, 547 P.2d 239 (1976).