Colo. Union of Taxpayers Found. v. City of Aspen, Court of Appeals No. 14CA1869

• Docket Nº: Court of Appeals No. 14CA1869
• Citation: 410 P.3d 625
• Case Date: November 05, 2015
• Court: Court of Appeals of Colorado

410 P.3d 625

COLORADO UNION OF TAXPAYERS FOUNDATION, a Colorado non-profit corporation, Plaintiff–Appellant,
v.
CITY OF ASPEN; Mick Ireland, Adam Frish, Torre, Steve Skadron, and Derek Johnson, in their official capacities as members of the Aspen City Council, Defendants–Appellees.

Court of Appeals No. 14CA1869

Colorado Court of Appeals, Div. VII.

Announced November 5, 2015
Rehearing Denied April 14, 2016

Jeffrey W. McCoy, Steven J. Lechner, Lakewood, Colorado, for Plaintiff–Appellant.

James R. True, City Attorney, Deborah Quinn, Assistant City Attorney, Aspen, Colorado, for Defendants–Appellees.

Opinion by JUDGE MILLER

¶ 1 Plaintiff, Colorado Union of Taxpayers Foundation, a Colorado non-profit corporation (the Foundation), appeals the district court's order holding that the City of Aspen's ordinance imposing a twenty cent "waste reduction fee" on paper bags did not violate the Taxpayer's Bill of Rights (TABOR), Colo. Const. art. X, § 20. The district court granted summary judgment on behalf of defendants, the City of Aspen and Mick Ireland, Adam Frish, Torre,¹ Steve Skadron, and Derek Johnson, in their official capacities as members of the Aspen City Council. We affirm.

I. Background

¶ 2 The following facts are undisputed.

¶ 3 In 2011, the City adopted Aspen Ordinance 24 (Oct. 11, 2011). The ordinance prohibited grocers from providing customers with disposable plastic bags, Aspen City Code 13.24.020(a), and required grocers to

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charge customers a "waste reduction fee" of $0.20 for each disposable paper bag provided, Code 13.24.030(a). For the first twelve months the ordinance was in effect, grocers were permitted to retain twenty-five percent of each fee collected, to total no more than $1000 per month. Code 13.24.050(a). Thereafter, grocers are permitted to retain a total of no more than $100 per month. Id. The retained amount may be used by grocers to "(1) [p]rovide educational information about the Waste Reduction Fee to customers; (2) [t]rain staff in the implementation and administration of the fee; and (3) [i]mprove or alter infrastructure to allow for the implementation, collection [,] and administration of the fee." Code 13.24.050(b). The remaining fees collected by grocers are remitted upon payment with the business's city sales tax payment to the City's Finance Department. Code 13.24.050(d)-(e). Fees remitted are deposited into a special City "Waste Reduction and Recycling Account." Code 13.24.050(d). The City's Environmental Health Department administers the fee. Code 13.24.050(f).

¶ 4 The funds deposited in the account are used for the following projects, in the following order of priorities:

(1) Campaigns conducted by the City of Aspen ... to:

(A) Provide reusable carryout bags to residents and visitors; and

(B) Educate residents, businesses, and visitors about the impact of trash on the City's environmental health, the importance of reducing the number of disposable carryout bags entering the waste stream, and the impact of disposable carryout bags on the waterways and the environment.

(2) Ongoing campaigns conducted by the City of Aspen to:

(A) Provide reusable bags to both residents and visitors; and

(B) Create public educational campaigns to raise awareness about waste reduction and recycling;

(C) Funding programs and infrastructure that allows [sic] the Aspen community to reduce waste and recycle.

(D) Purchasing and installing equipment designed to minimize trash pollution, including[ ] recycling containers[ ] and waste receptacles;

(E) Funding community cleanup events and other activities that reduce trash;

(F) Maintaining a public website that educates residents on the progress of waste reduction efforts; and

(G) Paying for the administration of this program.

Code 13.24.050(g). The fees may not be used to supplant funds appropriated as part of an approved annual budget, nor do any fees revert to the general fund. They remain continually available for the uses and purposes set forth above. Code 13.24.050(h)-(i).

¶ 5 The Foundation is a nonprofit organization formed to "educate the public as to the dangers of excessive taxation, regulation, and government spending." In August 2012, the Foundation sued defendants, alleging that the enactment of the ordinance without first obtaining voter approval violated TABOR.

¶ 6 After hearing oral argument from the parties on their cross-motions for summary judgment, the district court concluded that the ordinance was neither subject to nor unconstitutional under TABOR.

II. Standard of Review

¶ 7 We review a district court's order granting summary judgment de novo. See, e.g., Westin Operator, LLC v. Groh, 2015 CO 25, ¶ 19, 347 P.3d 606. "Summary judgment is appropriate only if ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ " Id. (quoting C.R.C.P. 56(c) ).

¶ 8 The district court imposed a burden on the Foundation of establishing that the ordinance violated TABOR beyond a reasonable doubt, and it concluded that the Foundation failed to satisfy that burden. Several decisions of the supreme court ruling on TABOR challenges to state and local legislation have articulated that burden without discussion. See, e.g., Huber v. Colo. Mining Ass'n, 264 P.3d 884, 889 (Colo. 2011) (state legislation);

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Barber v. Ritter, 196 P.3d 238, 247 (Colo. 2008) (same); Zaner v. City of Brighton, 917 P.2d 280, 286 (Colo. 1996) (municipal). The Foundation urges, for a number of reasons, that the district court erred in applying the beyond a reasonable doubt standard in this case. The...