postheadericon Violation of Colorado Constitution with ‘rain tax’ to land Adams County in court

Adams County's attempt to tax rain water is going to end up in court as citizens fight against the unjust and unconstitutional tax.

Adams County’s attempt to tax rain water is going to end up in court as citizens fight against the unjust and unconstitutional tax.

With the majority of the Adams County Board of Commissioners dedicated to imposing a stormwater “fee” on residents in unincorporated areas, residents filed suit this week to stop the illegal tax.  Naming Adams County and the Board of County Commissioners, the suit alleges that the county’s imposition of the “fee” violates the Colorado Constitution’s TABOR Amendment.

The revenue generating scheme was ostensibly created so the county could meet EPA regulations, regulations which do not however require additional expenditures despite what the county claims.  The county’s attempt to disguise a tax as a “fee” without giving citizens a vote on it is not only unjust, it is illegal.

The county’s new stormwater utility was ramrodded through by a previous board of commissioners.  Newly elected commissioners Eva Henry and Chaz Tedesco have refused to properly address residents’ concerns, worked to silence the dissent, and now the county is going to end up in court.

County residents have flooded the commissioners with complaints and been very vocal in their opposition to the new regulations and tax.  Citizens formed the Stop Stormwater Utility Association (SSUA) to act as a buttress against the unconstitutional taxes and that group filed suit after being stymied by the high and mighty in Brighton.

SSUA appears to have its ducks in a row and will be able to make a strong case in court to stop the new tax.  A nearly identical case in Michigan met with great success and was able to prevent the unjust taxation of its residents.

By its own admission, Adams County purposely chose to have the “fee” added to residents’ property taxes because it wouldn’t be “highly noticeable”.  The possibility a tax would affect commissioners’ electability in the future has also been revealed to have been a factor in their decision.

The mere fact it is tacked on to a tax statement highlights the real nature of the stormwater fee – it is a tax in and of itself.  Further the clear attempt at deceit shows the disingenuous way in which the county has handled the issue in their attempt to feed their coffers at the expense of taxpayers, all while attempting to ensure their chances of being reelected weren’t damaged.

Interestingly enough, a look at the members of the Stormwater Advisory Committee (SWAC) that advised the commissioners in 2010 is replete with members of the corrupt Adams Family.  We see names like Ken Ciancio, Christopher Frank, Bob Flemming and Dino Valente – all residents with ties to the county’s ethically challenged past and its leaders.

The county and all government entities are rightfully restrained from imposing new taxes on residents.  Colorado voters have made it clear that we the people have a voice in the matter and will not allow the imposition of taxes without a say in the matter.

Adams County, the state of Colorado and other local governments have been using the “fee” scheme to evade TABOR in violation of the state constitution.  This simply cannot stand.

You can view the press release from the Stop Stormwater Utility Association announcing the lawsuit and a copy of the complaint below.  For more information, visit the SSUA website at: http://www.stopstormwaterutility.com

Related:

08-29-2013 – SSUA Lawsuit Against Adams County

3 Responses to “Violation of Colorado Constitution with ‘rain tax’ to land Adams County in court”

  • Andrew Been:

    For disclosure, I sit on the Stormwater Utility Task force. While what I say here is affected by what I have learned there none of what I say represents what anyone else on that taskforce believes or thinks.

    I think the argument of whether this is a tax or a fee is key to what we should do, and I think it might be better addressed through a court case that can go to the Colorado Supreme court just like the case in Michigan did to the highest court in Michigan. Our opinions as appointed citizens don’t carry the weight that a court decision would. In my opinion, the county attorneys conceived of a plan that would fit what a fee “should” be. So this should be well designed as a “fee” rather than a “tax”.

    I think point 64 of this is interesting in that there is an idea I’ve been thinking about with regard to the fee. That idea is one of displacement. In international aid funding this question comes up when funding a dam or some other important and useful project that helps the people in a country ruled by a dictator. Does that project allow the dictator to then put more money towards dictatorial activities? It’s not an easy answer. Are the residents and property owners in unincorporated Adams county, like me then subsidizing all the other activities in Adams county through the Stormwater Utility fee? According to a popularly accepted definition of a fee vs tax, something is a fee if it goes towards a specific activity, if it can be used for more general purposes, then it is a tax. http://taxfoundation.org/blog/taxes-vs-fees-whats-difference-between-bananas-and-drivers-licenses So according to that definition, and point 64, if that point is correct, then there is a problem with the classification of this as a fee.

    While I think understand that the only reasonable method of billing mechanism was through the property tax statement, it does cause a lot of confusion, because … “this is listed on my property statement, surely it is a tax!”.

    I don’t understand why the suit didn’t also list the County treasurer as a defendant. Is she just following directions, or is she part of the problem with this suit?

    Another point is that the fee seems as though it is compulsory. With a car registration or a driver’s license, we have the choice, albeit unlikely to not drive. You could say we have the choice not to live in Adams county, and sell out property in Adams county and not be subject to this fee, but that seems a bit far fetched.

    While I don’t necessarily agree with the plaintiffs on a number of issues, I am glad that the plaintiffs have filed this and look forward to finding out the ultimate result of this suit.

    There are number of local entities, some that charge significantly more that have fees of some sort or another. Basing it on impermeable surface area makes it more of a fee than some. Some use a flat fee, which to me seems more like a tax than a fee. The county could certainly change the funding to meet the TABOR 10% requirement and create a greater wall of separation between the Storm Water Utility and other departments to ensure that they have a better match to the exemption, and keep it as a fee. Ultimately, that wouldn’t address the high fees some members of our community have faced, which I think is the more salient problem.

    For my townhomes, the fee this year came out to be 42 cents after the cap. The stamp on the envelope cost more than that. I’m not sure how the county intends to collect money like that. :) On my house there was a higher fee. If the fee continues in much the same manner, based on the mapping and markups of my house, I can only imagine how badly the county has done with all 200 units in the townhomes. The assessor’s office has the lots in completely different places than the units. The markups are based on the assessor’s maps, so how can that one help but be wrong?

    From what I understand, the EPA can regulate the pollutants in the Stormwater, but not the quantity. So the impermeable surface area is designed to get an approximation of the quantity. That means the fee, even if it were accurate, would not address the real issue of pollutants carried in the Stormwater in the Stormwater flows.

    There are a number of problems with the Stormwater fee, and there are a number of problems with the counties approach to fix it and certain some difficulties with coming to a consensus with the Stormwater Utility fee Taskforce (my opinion).

  • Andrew Been:

    I think a better solution, rather than cities having their fees and unincorporated Adams county having a fee, replace that with a countywide solution, whether through a fee or a tax. Right now, if unincorporated Adams county has no fee, then the cities that do have a fee would complain about the fact that the funding for the unincorporated part comes from the general fund. It is in some ways the same type of problem as the county jail that is supposed to . We all pay into it, and “use” the services…. How should it be paid for, who should pay more, or less, who should get the “services”?

    I took this from an article from the issue in Colorado Springs: http://csbj.com/2013/07/23/stormwater-solution-should-be-obvious-but/ Or alternatively, and more complexly, create an authority for each runoff basin….. Most properties don’t fall into multiple basins.

  • Jill W.:

    Tony:

    Don’t forget to mention that Steve O’Dorisio is now running for county commissioner and just happens to be Norma Franks son in law and Christopher Franks Brother in law.

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