Colorado Union of Taxpayers Foundation v. City of Aspen

2018 CO 36, 418 P.3d 506
CourtSupreme Court of Colorado
DecidedMay 21, 2018
DocketSupreme Court Case 16SC377
StatusPublished
Cited by11 cases

This text of 2018 CO 36 (Colorado Union of Taxpayers Foundation v. City of Aspen) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Colorado Union of Taxpayers Foundation v. City of Aspen, 2018 CO 36, 418 P.3d 506 (Colo. 2018).

Opinions

CHIEF JUSTICE RICE delivered the Opinion of the Court.

*509¶ 1 This case presents the question of whether Aspen's $0.20 paper bag charge is a tax subject to voter approval under the Taxpayer's Bill of Rights ("TABOR").1 The trial court held that this charge is not subject to TABOR because it is not a tax, but a fee, as did the court of appeals.

¶ 2 Colorado voters enacted TABOR in 1992. In so doing, voters specifically limited the legislative taxing power of the state and local governments by requiring that any new tax must receive voter approval prior to implementation. However, when a government exercises its authority pursuant to its police power to regulate for health and safety, and imposes a charge as part of a regulatory regime, and the charge is reasonably related to the direct or indirect cost of regulating the activity, such a charge is not a tax subject to voter approval.

¶ 3 The primary purpose of a tax is to raise revenue for general governmental expenses. But, the primary purpose behind Aspen's charge is not to raise revenue; the primary purpose of the charge is to defray some of the costs of a comprehensive regulatory scheme aimed at improving environmental health and safety through a waste-reduction program. Because the bag charge is not a tax, TABOR's election requirements do not apply. Accordingly, we affirm the judgment of the court of appeals.

I. Facts and Procedural History

¶ 4 In 2011, the City of Aspen adopted ordinance 13.24, which took effect May 1, 2012. Aspen, Colo., Municipal Code § 13.24 (2017). This ordinance purported to impose a regulatory scheme designed to meet the city council's "duty to protect the natural environment and the health of its citizens and visitors." Under the ordinance, grocery stores within Aspen's city limits are prohibited from providing disposable plastic bags to customers. § 13.24.020(a).2 Grocery stores may still provide paper bags to customers, but each bag is subject to a $0.20 "waste reduction fee," § 13.24.030(a), unless the customer is a participant in a "Colorado Food Assistance Program," § 13.24.070.

¶ 5 It is undisputed at the trial court that Aspen set the fee at $0.20 after considering a San Francisco study showing that the cost of subsidizing the recycling, collection, and disposal of plastic and paper bags in that market was $0.17 per bag. Aspen adjusted the cost to $0.20 based on its distance to recycling markets, the smaller size of its waste stream, and community input.

¶ 6 Through a system established by the ordinance, the grocers collect the $0.20 charge for each non-reusable bag a customer chooses to use, and Aspen then collects the charge from the grocers. Grocers are permitted to retain a portion of the charge to provide information about the charge to customers, to train staff, and to improve or alter infrastructure to allow for the implementation, collection, and administration of the *510charge. § 13.24.050(b). Grocers remit the remainder of the charge to Aspen on a form separate from their sales tax form. § 13.24.050(e). The grocers pay this remainder to the City of Aspen Finance Department, and the department deposits it into the "Waste Reduction and Recycling Account." § 13.24.050(d). The funds may not be used to supplant funds from the annual budget, and the funds never revert to the general fund. § 13.24.050(h)-(i). The payment covers the following, in order of priority:

(1) Campaigns conducted by the City of Aspen and begun within 365 days of the effective date of this act, to:
(A) Provide reusable carryout bags to residents and visitors; and
(B) Educate residents, businesses, and visitors about the impact of trash on the City's environmental health, the importance of reducing the number of disposable carryout bags entering the waste stream, and the impact of disposable carryout bags on the waterways and the environment.
(2) Ongoing campaigns conducted by the City of Aspen to:
(A) Provide reusable bags to both residents and visitors; and
(B) Create public educational campaigns to raise awareness about waste reduction and recycling;
(C) Funding programs and infrastructure that allows the Aspen community to reduce waste and recycle.
(D) Purchasing and installing equipment designed to minimize trash pollution, including, recycling containers, and waste receptacles;
(E) Funding community cleanup events and other activities that reduce trash;
(F) Maintaining a public website that educates residents on the progress of waste reduction efforts; and
(G) Paying for the administration of this program.

§ 13.24.050(g)(1)-(2).

¶ 7 In its first year the bag charge was not sufficient to cover the overall program expenditures, and so Aspen has since allocated general funds to cover the remaining expenses of the program. Aspen provided some of the services outlined in the ordinance prior to instituting this charge, and some of the services funded in part by the bag charge are provided to both city residents and visitors, regardless of whether the resident or visitor uses a paper bag and thus pays the charge.

¶ 8 Petitioner, the Colorado Union of Taxpayers Foundation ("CUT"), is a nonprofit whose goal is to "educate the public as to the dangers of excessive taxation, regulation, and government spending." After two of its members paid Aspen's bag charge, CUT sued the City of Aspen and several members of the Aspen city council in their official capacities. CUT asserts that Aspen's bag charge is a tax that was never subject to voter approval, and thus violates TABOR.

¶ 9 At the trial court, both Aspen and CUT moved for summary judgment. The trial court concluded that the charge is a fee, not a tax, and therefore not subject to TABOR; it thus granted Aspen's motion for summary judgment. The court of appeals, in a unanimous published opinion, affirmed. Colorado Union of Taxpayers Found. v. City of Aspen, 2015 COA 162, ¶ 27, 410 P.3d 625, 630. We granted certiorari, and we now affirm.

II. Standing

¶ 10 While the trial court found that CUT has standing, and Aspen does not dispute this finding, standing is still a threshold issue that we review de novo. Barber v. Ritter, 196 P.3d 238, 245 (Colo. 2008). We have briefly mentioned associational standing in our prior cases, but we now explicitly hold that an organization has associational standing when: (1) its members would otherwise have standing to sue in their own right; (2) the interests it seeks to protect are germane to the organization's purpose; and (3) neither the claim asserted, nor the relief requested, requires the participation of individual members of the lawsuit. See Buffalo Park Dev. Co. v. Mountain Mut. Reservoir Co.

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2018 CO 36, 418 P.3d 506, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colorado-union-of-taxpayers-foundation-v-city-of-aspen-colo-2018.