2018 CO 36
Colo.2018Background
- In 2012 Aspen enacted an ordinance banning disposable plastic bags and imposing a $0.20 "waste reduction fee" on each disposable paper bag; grocers remit most of the fee to the city and may keep a portion for administrative costs.
- Fees collected are deposited into a dedicated Waste Reduction and Recycling Account and may be used for reusable bag distribution, public education, recycling infrastructure, cleanup events, a program website, and program administration; funds cannot supplant the annual budget or revert to the general fund.
- CUT (Colorado Union of Taxpayers Foundation) sued after members paid the charge, arguing the bag charge is a tax that required voter approval under TABOR (Colo. Const. art. X, § 20).
- Trial court and Colorado Court of Appeals held the charge is a fee (regulatory), not a tax; Colorado Supreme Court granted certiorari and affirmed.
- The Court analyzed whether the charge was an exercise of Aspen's police (regulatory) power—imposed as part of a regulatory scheme and reasonably related to costs of regulation—or instead a tax whose primary purpose is to raise revenue for general government use.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Aspen's $0.20 paper-bag charge is a tax under TABOR | CUT: the charge functions as a tax raising revenue for programs benefiting the public and thus needed voter approval | Aspen: the charge is a regulatory fee to defray costs of a waste‑reduction regulatory scheme, not a general revenue tax | Held: Not a tax; it's a regulatory fee exempt from TABOR election requirement |
| Standing of the association to sue | CUT: has associational standing because members who paid have taxpayer standing | Aspen did not dispute standing; court assesses legal requirements | Held: CUT has associational standing (members have taxpayer standing; interests germane; no individual participation required) |
| Appropriate test/standard to distinguish fee vs. tax | CUT: emphasizes Barber test—primary purpose must be to defray costs of services to those charged | Aspen: focus on whether charge is part of regulatory police power and reasonably related to regulatory costs | Held: Court applies regulatory/primary-purpose framework (consistent with Barber, Bloom, Zelinger) and finds charge bears reasonable relation to costs; case decided without changing review standard |
| Whether the $0.20 rate is reasonably related to regulatory costs | CUT: rate funds broad community programs and benefits non‑payers; amount reflects behavior‑change goals, not cost recovery | Aspen: relied on San Francisco study, local analysis, and community input to set $0.20 as reasonable estimate of recycling/disposal cost per bag | Held: $0.20 reasonably relates to Aspen's estimated cost to recycle/dispose bags and is permissible as a regulatory fee |
Key Cases Cited
- Barber v. Ritter, 196 P.3d 238 (Colo. 2008) (fee/tax test; primary-purpose inquiry and limits on relabeling taxes as fees)
- Bloom v. City of Fort Collins, 784 P.2d 304 (Colo. 1989) (special fee must reasonably relate to cost of particular governmental service)
- Zelinger v. City & Cty. of Denver, 724 P.2d 1356 (Colo. 1986) (charges to defray specific service costs are not taxes)
- Huber v. Colorado Mining Ass'n, 264 P.3d 884 (Colo. 2011) (TABOR background and deference principles)
- Bickel v. City of Boulder, 885 P.2d 215 (Colo. 1994) (TABOR's purpose: limit taxing and spending powers)
- Post v. City of Grand Junction, 195 P.2d 958 (Colo. 1948) (distinction between taxation and police power regulation)