Colorado Union of Taxpayers Foundation v. City of Aspen
410 P.3d 625
Colo. Ct. App.2015Background
- In 2011 Aspen enacted Ordinance 24: banned disposable plastic bags and required grocers to charge $0.20 per paper bag as a "waste reduction fee."
- Grocers may retain a limited portion of collections for administrative costs; the remainder is remitted to a special City "Waste Reduction and Recycling Account."
- The ordinance prescribes specific, prioritized uses for the account (e.g., provide reusable bags, public education, recycling infrastructure) and bars funds from reverting to the general fund or supplanting budgeted appropriations.
- Colorado Union of Taxpayers Foundation sued, alleging the fee is a tax and therefore required voter approval under TABOR (Colo. Const. art. X, § 20).
- The district court granted summary judgment for the City; the Foundation appealed. The Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the $0.20 charge is a tax subject to TABOR or a fee | The charge is effectively a tax because it raises revenue and functions like general revenue, so voter approval was required | The charge is a fee: its primary purpose is to fund defined waste-reduction services benefiting payors and is deposited into a restricted account | The charge is a fee, not a tax; TABOR does not apply and ordinance is valid |
| Whether the presumption favoring interpretations that restrain government applies | Foundation argued presumption should favor treating the charge as a tax to restrain government growth | City argued the ordinance text supports characterization as a fee and presumption does not apply because texts are not equally persuasive | Presumption did not apply because the ordinance text supports the fee characterization; even if it did, Foundation failed to show invalidation would better restrain government |
| Whether payors receive a service sufficiently related to the charge | Foundation asserted many payors may not use funded services so the charge is more like a tax | City relied on precedent that fees need only be reasonably related and available to those who pay | Court held services (reusable bags, education, infrastructure) are reasonably related and available to payors, supporting fee classification |
| Entitlement to attorney fees under TABOR | Foundation sought fees if it prevailed on TABOR claim | City opposed because TABOR claim failed | Fee request denied because TABOR did not apply and Foundation did not prevail |
Key Cases Cited
- Huber v. Colorado Mining Ass'n, 264 P.3d 884 (Colo. 2011) (discusses burden and standards in TABOR challenges)
- Barber v. Ritter, 196 P.3d 238 (Colo. 2008) (definition of tax vs. fee under TABOR)
- Zaner v. City of Brighton, 917 P.2d 280 (Colo. 1996) (TABOR analysis for municipal measures)
- Bruce v. City of Colorado Springs, 131 P.3d 1187 (Colo. App. 2005) (distinguishing fees from taxes)
- Nicholl v. E-470 Pub. Highway Auth., 896 P.2d 859 (Colo. 1995) (interpretation principle favoring restraint on government growth when texts are ambiguous)
- Bloom v. City of Fort Collins, 784 P.2d 304 (Colo. 1989) (fee must be reasonably related to cost of the service)
- Bickel v. City of Boulder, 885 P.2d 215 (Colo. 1994) (party invoking pro-restraint presumption bears burden of showing its interpretation better restrains government)