Lawsuit says Aspen’s bag fee is really a tax
August 22, 2012
ASPEN – A Boulder-based taxpayer-advocacy group filed suit Tuesday against the city of Aspen, Mayor Mick Ireland and four councilmen over the grocery-store bag fee that went into effect May 1.
The nonprofit Colorado Union of Taxpayers is asking Pitkin County District Court to rule that the 20-cent-per-bag fee is unconstitutional because city voters weren’t given the opportunity to decide the issue.
In October, Ireland and three council members provided the votes to implement a fee on paper bags provided at checkout at Aspen’s two grocery stores – City Market and Clark’s Market. Only Councilman Derek Johnson opposed the measure, which also bans the stores from the longtime practice of providing plastic bags to shoppers for free.
The Colorado Union of Taxpayers claims that the fee is a tax and subject to the Taxpayer Bill of Rights, also known as TABOR, a provision of the state constitution requiring a public vote before any local government can create new debt, levy new taxes, increase tax rates or institute tax policy changes directly causing a net tax-revenue gain.
“By levying a tax without a vote of the people, defendants have violated the rights of plaintiff’s members to vote on the imposition of new taxes, as guaranteed by TABOR,” the lawsuit states.
The Colorado Union of Taxpayers further asks the court to order the city to refund to taxpayers all revenue collected from the fee, with 10 percent interest.
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The organization also wants the court to order the city to pay its legal fees associated with the suit.
When the measure passed last year, city officials touted it as an example of environmental stewardship. It aims to cut down on the number of plastic bags provided for free to Aspen grocery-store shoppers, therefore reducing the amount of plastic waste headed to the Pitkin County landfill. Some consider plastic shopping bags a form of pollution because of the energy necessary to manufacture them.
The grocery stores collect the 20-cent fee from shoppers who need bags after failing to bring their own reusable bags to the checkout line. A portion of the money collected is returned to the city of Aspen and earmarked for environmental programs.
City Attorney Jim True said he and former City Attorney John Worcester spent a lot of time last year researching the legality of the ordinance setting up the bag fee. He said it should hold up in court because the money goes into a fund for specific environmental programs rather than the city’s general fund.
“(We did) a thorough investigation of the law,” said True, who was an assistant city attorney until Worcester retired earlier this year. “There have been a number of cases that address the distinction between a fee and a tax, and a number of communities have enacted fees that have withstood litigation from groups such as this one.
“We did enact a law that we felt would sustain a challenge like this.”
Colorado Union of Taxpayers director Marty Nielsen was not available for comment on the lawsuit Tuesday afternoon.