Tabor Foundation v. Colorado Bridge Enterprise
2014 WL 3955600
Colo. Ct. App.2014Background
- TABOR Foundation sues the Colorado Bridge Enterprise (CBE), the Colorado Transportation Commission, and individual commissioners seeking injunctive relief and declaratory judgment over the bridge safety surcharge.
- CBE was created under the FASTER act to fund designated bridge projects and is declared an enterprise exempt from TABOR; it may impose a bridge safety surcharge.
- Revenue sources include the bridge safety surcharge, federal reimbursements (FHWA), and bond proceeds; revenues are held in a separate CBE treasury and are not deposited into the state general fund.
- The trial court held the surcharge is a fee (not a tax), and the CBE qualifies as a TABOR-exempt enterprise; bonds issued without statewide voter approval were not unlawful.
- Foundation challenged whether the FHWA funds and the transfer of 56 CDOT bridges constituted state grants affecting CBE’s enterprise status; the court found FHWA funds are federal funding and the bridge transfers are not state grants; thus CBE remains an enterprise.
- The judgment was affirmed on appeal; attorney fees for the Foundation were denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the bridge safety surcharge a tax or a fee? | TABOR Foundation argues it is a tax because it lacks direct service nexus. | CBE/State contend it is a fee tied to the service of bridge safety. | Fee, not a tax. |
| Is the CBE an enterprise exempt from TABOR? | Foundation argues CBE is not an enterprise due to power to tax and grant dependence. | Defendants assert CBE meets TABOR enterprise criteria. | CBE is an enterprise. |
| Do FHWA funds count as state grants affecting enterprise status? | FHWA reimbursement should count toward the 10% state grant threshold. | FHWA funds are federal funding; not state grants. | FHWA funds are not state grants for TABOR purposes. |
| Do the transfer of 56 bridges from CDOT count as state grants affecting enterprise status? | Bridge transfers are state grants that could trigger the 10% cap. | Transfers are not cash subsidies or direct monetary contributions. | Transfers are not state grants. |
Key Cases Cited
- Bloom v. City of Fort Collins, 784 P.2d 304 (Colo. 1989) (fee vs. tax analysis; general services vs. specific service funding)
- Barber v. Ritter, 196 P.3d 238 (Colo. 2008) (primary purpose test for fee vs. tax; service financing)
- Nicholl v. E-470 Pub. Highway Auth., 896 P.2d 859 (Colo. 1995) (enterprise status; bargaining of benefits; grants threshold)
- Colorado Common Cause v. Meyer, 758 P.2d 153 (Colo. 1988) (enterprise concept; public financing and governance)
- Bruce v. City of Colorado Springs, 131 P.3d 1187 (Colo. App. 2005) (fee vs. tax; street lighting/fee precedents)
- Submission of Interrogatories on Senate Bill 93-74, 852 P.2d 1 (Colo. 1993) (legislative definitions for TABOR-related terms)