Tuesday, October 14, 2014

El Paso Ballot Question 1B: A Dishonest Tax Increase

By Jeff Crank

El Paso County Ballot Question 1B is nothing more than a dishonest attempt to fool voters.  Its shameful deception rises to the level of the misleading term-limits language of a few years ago.  If you remember the term limits language which implied that a yes vote “limited” terms when it actually extended them then question 1B this year might ring a bell.  1B imposes a tax of $92.40 per year on the average household in El Paso County for the next 20 years and beyond.  That is a minimum tax increase of $1,848 per property- and likely much higher.  However, you wouldn’t know these facts just by reading the ballot language.

Pretty harsh to say it is deceptive, but the facts leave little doubt.  First, the language calls the tax a “fee”.  Why? If they called it a tax, the Colorado Constitution would require the ballot language to start out by saying “shall taxes be increased by $39,275,650 for 2016 and each year after for 20 years.”  By cleverly calling the tax a “fee”, they can now start the language with “Are you in favor of funding emergency needs caused by flooding…”.  It was worded this way to enhance the ability to get it passed but it is nothing more than a way to trick you into believing that the money coming out of your pocket is a “fee” and not actually a tax.  After all, it is on your property TAX bill.

The sleight of hand continues.  Rather than being honest about how much you’re going to pay each year, they broke the amount down per month.  They could have simply said that it would cost the average homeowner $1,848 over the next twenty years.  Instead, they broke the amount down by month – to $7.70 per month.  Why not just give us the full monty and break it down to the day, hour or second? By the way, if you do the math, it is just over a penny per hour tax increase.

Question 1B also creates a brand new government bureaucracy and then exempts it from the Taxpayer’s Bill of Rights provisions of the Colorado Constitution.  In other words, it creates a bureaucracy and then allows that bureaucracy to vote to extend the tax (that they call a fee) without ever going to the citizens for a vote of the people.

As Mayor Steve Bach, who strongly opposes 1B, stated, “the new $92.40 storm water fee is about the same amount the average residential property owner now pays for all City services combined.”  That’s right, you’ll pay as much property tax for storm water as you do for police, fire, snow removal, street repair, parks, arts, etc.  Imagine this new unaccountable bureaucracy getting as much property tax as the city of Colorado Springs, never having to face an election and having the ability to increase the tax at their whim and without voter approval.

If this tax increase of $785 million over twenty years weren’t offensive enough the audacity of the language should convince any citizen to vote no.  The drafters of the language trying to pull the wool over voters eyes by calling a tax a “fee”; reducing the yearly tax amount to make it appear smaller; and thumbing their nose at the voters by taking away the right to vote on tax increases make this as deceptive and misleading as any ballot language we’ve ever seen.

Our storm water problem is real and it should be addressed but Question 1B is not the answer.  I hope you’ll join Mayor Steve Bach, myself and many other community leaders in voting no.


  1. So Jeff--what's your stormwater solution?

  2. If its not a problem for him he doesn't need to come up with the solution.

  3. The stormwater solution is figure it out with the money you have. Why do they always need more? The point he's making is that this is a tax increase, but they're trying to be sneaky about it and not call it a tax increase. Kind of like Obama allowing the payroll tax reduction to expire wasn't a tax hike. Do I pay more taxes? Yes. Then it's a tax increase.

  4. On the statements above is that we have been clever about calling it a fee, we simply are calling it a fee because that is what our supreme court has called it. Nothing sinister intended. It is the rule of law to follow the law. Calling it a tax would be disingenuous. And the big issue around TABOR was the chance to vote; we insisted that a vote occur.

    1. First, the Colorado Constitution defines four ways a local governmental entity can generate revenue: an ad valorum tax, an excise tax, a special assessment and a special fee. The following are the “rules” for establishing a “special fee:”
      “A special fee, or utility fee, is a charge imposed upon persons or property in exchange for a particular government service that benefits the party paying the fee in a manner not shared by other members of society. The first characteristic of a special fee is that it is charged in exchange for a specific government service. The second characteristic of a special fee is that it is voluntary. The service must, in some sense, be requested by the individual who is assessed the charge. The third characteristic of a special fee is that it is paid in exchange for a service that directly benefits the person paying the fee. The person paying the fee has ‘asked a public officer to perform certain services for him, which presumably bestow upon him a benefit not shared by other members of society.’”
      The case Mr. Walker presumably uses to defend their position is Zelinger v. City and County of Denver http://law.justia.com/cases/colorado/supreme-court/1986/84sa508-0.html. The Colorado Supreme Court, in 1986, bent the State’s definition on special fees and gave this established home-rule city and county a very favorable decision (has this ever happened in our Federal Supreme Court?). The decision applies to an established governmental entity, not one that is not one but wants to be one like the PPRDA.
      Another case involving a special fee is Bloom v. City of Fort Collins http://law.justia.com/cases/colorado/supreme-court/1990/88sa162-0.html. This case has to do with fees which involve the maintenance of local streets. Again, this Colorado Supreme Court bent the State’s definition on special fees and gave this established home-rule city a very favorable decision. Once again, this decision applies to an established governmental entity, not one that wants to be one.
      It is interesting in the last case, the two dissenting judges said: “The majority's approach seems to allow any government service to be financed by a fee that bears some relationship to the benefit produced by the service. This approach undermines the constitutional requirements of ad valorem taxation. Accordingly, I respectfully dissent.”
      If the voters agree to this fee, I believe they have opened up the “flood gates” for our elected officials to impose fees on services to include police and fire protection, parks, roads and streets…the list goes on and on. GOODBYE TABOR!
      On the “chance to vote” comment, looking at how the voters in the City of Colorado Springs put down the last Impervious Surface Fee Program, any elected official wanting to hold their position or anyone running for a position, would be committing “political suicide” if they did not advocate putting this proposed fee before the voters. Not insisting that “a vote occur,” as Mr. Walker indicated, would be dumb, dumb, dumb…for any politician!
      Finally, I agree that calling it a tax would be disingenuous. It is really a fine…or a penalty. The clich√© “Click it or Ticket” is certainly a fine if you are caught. Likewise, “You pave, you pay” is also a fine. Then don’t put improvements on your property, like a house or a driveway and you don’t have to pay. What?
      Of course we all know that runoff comes from all land…whether or not it has improvements (impervious surfaces) on it. I am sure that the floods last year in Boulder County were not a result of impervious surfaces, but primarily due to the runoff from saturated pervious surfaces (what we refer to as vacant land).

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