Aspen case may inform drainage suit

Mesa County District Judge Lance Timbreza is wrestling with a question that is unique to Colorado and within Colorado, and unique to Mesa County, in his deliberations about whether the Grand Valley Drainage District is charging a fee or levying an illegal tax with its charge for stormwater improvements.

Timbreza took the case under advisement in June after a week of oral argument between attorneys for the district and the plaintiffs, Mesa County and the Grand Junction Area Chamber of Commerce. The county and chamber sued to halt the district’s charge contending it violates the Colorado Constitution.

Also in June, attorneys argued before the Colorado Supreme Court about a similar issue in which a taxpayer organization challenged the city of Aspen’s 20-cent charge for plastic grocery bags. The fee amounts to a tax that is being illegally levied under Article 10 of the state Constitution, the Taxpayer’s Bill of Rights.

The apparent similarities between the drainage district charge and Aspen’s bag charge suggest that Timbreza might be awaiting a high-court ruling in the Aspen case before ruling on the drainage district issue, attorneys and others involved in the Mesa County case said.

That said, the drainage district case could turn on entirely different issues.

The Aspen case could “provide some input and direction to the lower courts,” said Grand Junction attorney Ben Wegener, who represents the county and chamber in the drainage case.

The drainage district, however, “is just unique enough that (the Aspen case) may not have a bearing on that case,” Wegener said.

For Tim Ryan, the drainage district’s distinct nature makes the dispute over the charge equally unique.

“The conundrum to me here is how Title 37 plays in to it,” Ryan said.

The drainage district was established more than a century ago by the Colorado General Assembly under Title 37. No other body is governed under that title and it specifically authorizes the district to adopt fees in addition to its ability to levy taxes, which is limited by TABOR.

“I can certainly see how the question is raised” on the tax versus fee issue, Ryan said.

The district charges $3 per month, or $36 per year, for most residences and $3 per month to businesses, government buildings, churches and other property owners for each 2,500 square feet of water-shedding surfaces, such as parking lots and roofs.

The district collected $2.6 million in 2016, the first year it billed residents of the 90-square-mile district north of the Colorado River, and $2.7 million so far in 2017.

The district is poised to move forward with capital projects if the court ruling continues the fee, Ryan said, noting that it is approved for low-interest loans from the state to move the projects forward.


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