Colorado Union of Taxpayers Foundation, a Colorado non-profit corporation, Plaintiff-Appellant,
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.
Pitkin County District Court No. 12CV224 Honorable John F. Neiley, Judge
Announced November 5, 2015 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
¶ 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,  Steve Skadron, and Derek Johnson, in their official capacities as members of the Aspen City Council. We affirm.
¶ 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 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 ...