‘Paper or Plastic’ Now a Legal Question

September 4, 2012

PENDLEY:  Aspen may not impose a new tax without a vote by those who will pay the tax

DENVER – The question of “plastic or paper” may soon be a thing of the past in Durango.  That’s because the city council in the southwest Colorado enclave is contemplating a tax on grocery bags – both paper and plastic.

The question is whether the city will follow the carbon footprints of Telluride, Carbondale and Aspen that banned plastic grocery bags and imposed a tax on paper bags.

“Why do people keep trying to force what they think or feel on to others?” Lorna Robinson asked The Durango Herald. “And to even suggest putting a price on bags! How many people are out of jobs, lost their homes from fires and can’t afford to have another cost on them?

“Five or 10 cents many not seem like much to you but maybe when are having trouble counting your pennies, it is a lot. Plastic bags are the least of the problems that our country is having. Try focusing on those instead,” Robinson told the Durango councilors.

Actually the tax could be higher. The Aspen City Council imposed a 20-cent tax on each paper bag effective May 1, 2012 – including a grace period for grocery stores to deplete their plastic bag supplies and “send a strong message” to Aspenites and tourists.

Aspen city staff defined the tax as a “fee” to be deposited in the Waste Reduction Account – not the general fund – and used initially to offset the costs to grocers, pay administrative staff salaries and promote public education.

The city was sued on Aug. 21 by the Colorado Union of Taxpayers Foundation (CUT) because the tax – imposed by the Aspen City Council – violates the Colorado Constitution’s Taxpayers Bill of Rights (TABOR) that requires voter approval of any tax hike.

“Aspen may not impose a new tax without the vote by those who will pay the tax,” declared William Perry Pendley of Mountain States Legal Foundation, who is representing CUT in the lawsuit filed in Pitkin County.

“The city of Aspen has ignored the Colorado Constitution and violated TABOR. CUT Foundation on behalf of taxpayers says, ‘Follow the law. Ask first,’” said CUT President Marty Nielson.

“One of the core tenets of Colorado’s TABOR, a constitutional amendment approved by voters in 1992, is that affected voters must approve any new tax, tax rate hike or tax policy changed directly causing a net tax revenue gain to any district,” stated Ben DeGrow of the Independent Institute.

DeGrow said that the Aspen City Council used “an old trick” to attempt to bypass TABOR – calling the tax, a fee.

Behind the campaign in Aspen, Telluride, Durango, Carbondale, Basalt and other Colorado communities is the liberal group Telluride-based Sheep Mountain Alliance. The nonprofit has also been lobbying for a uniform law in Durango, Steamboat Springs, Glenwood Springs, Basalt and Carbondale.

Telluride banned plastic bags and imposed a 10-cent “Advanced Recovery Fee” on paper bags in 2010. Half of the money is retained by grocers to process the fee; the other goes to Telluride coffers.

In 2011, the Basalt Board of Trustees passed a ban on plastic and a tax on paper bags – but, then repealed it and placed the initiative on the ballot in April 2012 and voters rejected it.

Carbondale Board of Trustees approved an ordinance and a 20-cent tax on paper bags in 2011, but was forced by citizen Roy Chorbajian, who garnered petition signatures, to put the measure on the April 2012 ballot. It passed by a narrow margin –  just 90 votes.

“It’s government overreach. That’s what irritates me,” lamented Chorbajian, who told the Grand Junction Sentinel that he doesn’t use plastic bags, but those and paper bags are not trashing the environment.

Nathan Ratledge, director of the Roaring Fork Valley nonprofit Community Office of Resource Efficiency, told the Grand Junction Sentinel in April that the group is working to pass an ordinance – banning plastic bags and charging a tax for paper bags – in Steamboat Springs, Frisco and Breckenridge.

“Really, you’re just raising the consciousness level of what our consumptive habits are actually doing,” said Ratledge. “What people start to realize is when you make small changes, all of the sudden other things start dawning on you.”

What dawned on Bob Franzese, owner of Telluride-based Black Bear Trading Company, is the absurdity of unevenly banning plastic bags and taxing paper bags. Like others he told the Durango Herald that banning plastic bags also impedes customers from protecting their purchases – from groceries to artworks – in rain and snow.

“You can use plastic bags for pot but not other things?” he asked rhetorically.

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