Aspen bag fee survives another legal challenge | AspenTimes.com

Aspen bag fee survives another legal challenge

As far as the Colorado Court of Appeals is concerned, the 20 cents shoppers pay for paper bags at Aspen's two supermarkets is a fee and not a tax.

The appellate court's ruling, made public Thursday, upheld a previous ruling by 9th Judicial District Court Judge John Neiley that the fee is constitutional and did not require a public vote.

The bag-fee ordinance, passed by the City Council in 2011, applied to just Clark's Market and City Market.

The two grocers can keep a maximum of $100 month in bag fees under the ordinance. The remaining funds go to the city's Waste Reduction and Recycling Account, which provides reusable bags to residents and guests of Aspen, among other city efforts to reduce waste.

The ordinance was born out of the city's ongoing effort to urge locals and visitors to reduce waste.

But in 2012, the Colorado Union of Taxpayers Foundation sued the city and members of the council who passed the ordinance: Adam Frisch, Derek Johnson, Mick Ireland, Steve Skadron and Torre, who pushed for the ordinance. The gist of their complaint: The public should have voted on the fee because it was actually a tax.

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Both the district and appellate courts, however, agreed with the city's position that the "primary purpose of the ordinance is to reduce waste," the Court of Appeals ruling said. "The top priority for the use of the funds collected from the waste reduction fee is to provide usable bags to both resident and visitors. … The waste-reduction fee provides a direct benefit to those paying the charge by making reusable bags available to them."

The ruling also noted the bag-fee proceeds don't go into the city's general fund.

Attorney Jeffrey W. McCoy of the Mountain States Legal Foundation, which is representing the Colorado Union of Taxpayers Foundation in the case, said they might ask the Colorado Supreme Court to review the case.

"It's something we need to discuss," he said.

City Attorney Jim True said the cost of the defense has been less than $1,000 because the city didn't farm out its legal representation. Both True and Assistant City Attorney Deborah Quinn have been handling the case.

The city also sent out a statement about the decision.

"Although the Colorado Union of Taxpayers has a right to ask the Supreme Court to review this decision, we believe that the opinion of the Court of Appeals, as well as the decision of the lower court, were well-reasoned and correct," Quinn said in a statement. "We are extremely pleased with the outcome. This allows the city to continue this very successful program."

Elizabeth Milias and Maurice Emmer, while not plaintiffs in the suit, are members of the Colorado Union of Taxpayers Foundation and had sworn affidavits in the case that they were residents of Aspen. Emmer also said he was deposed in the case, but he didn't know why.

rcarroll@aspentimes.com