The Boulder City Council on Tuesday night decided not to appeal to the Colorado Supreme Court a judge's ruling that prevents city officials from regulating when bars and restaurants can serve alcohol.

Mayor Shaun McGrath said it doesn’t make sense to keep pursuing a case against Thunderbird Burgers, a University Hill restaurant, because the city will probably keep losing. He said he voted against appealing an initial district court ruling last year for the same reason.

“It was pretty destined to fail, and we were going to be spending time and money and resources on something that I was pretty sure we were going to lose,” he said. “I don’t think those facts have changed at all.”

Instead, McGrath said, the city would be better off using its zoning laws more intelligently, or trying to lobby the state legislature to give local governments more authority.

City Councilman Matt Appelbaum said it would make sense to try to go to the supreme court because the case as it stands “isn’t good for anybody.”

While the courts barred the city from regulating the hours in which alcohol can be sold, there’s nothing to stop planning officials from putting limits on when restaurants can be open at all in certain neighborhoods.

“The implications are not particularly good for the business community, because the city would have to look at simply limiting the hours in all of these transition zones... I don’t believe that’s really the outcome that these business owners want,” he said. “In some ways, they may win the battle, but they’ll lose the war.”

In a unanimous decision handed down in July, the three-judge Colorado Court of Appeals ruled that the owners of Thunderbird Burgers, 1083 14th St., are not subject to a Boulder Planning Board decision nearly four years ago that the business could stay open until 2 a.m., but must stop serving alcohol at 11 p.m.

Brett Berger, the restaurant's owner, has been fighting the city on the issue since 2004. He sued the city in 2006, arguing that only the state may regulate the hours liquor may be served.

Boulder District Court Judge Gwyneth Whalen agreed with Berger's argument in January 2007, when she held that cities can't use zoning laws to regulate a bar's business hours. She agreed that authority over liquor hours belongs solely to the state.

At the urging of then-City Attorney Ariel Calonne, the City Council voted to appeal Whalen's ruling last year.

On Tuesday night, Boulder City Attorney Jerry Gordon said the city has filed a motion asking the appeals court to reconsider. If that motion isn’t granted, he said, the supreme court would be the city’s only remaining legal recourse.

The majority of such appeals typically get turned down, Gordon said. But this particular case has important questions about the reach of local zoning powers – some of which haven’t been re-examined since the 1950s, he said.

“However, I think this case on some levels presents some interesting questions, so I’m not hopeless that they’ll grant it,” he said.