Wednesday, October 22, 2014

More on stormwater measure

Posted By on Wed, Oct 22, 2014 at 9:21 AM

click to enlarge The channel along 31st Street during a recent heavy rain. - PAM ZUBECK
  • Pam Zubeck
  • The channel along 31st Street during a recent heavy rain.

In today's edition, we report on the ballot measure that would establish the Pikes Peak Regional Drainage Authority. After our press time yesterday, we received a message from Citizens for Responsible Stormwater Action, responding to others' criticisms of the measure.
It’s a tax
• It is not a tax, it is a fee. Supreme Court of Colorado ruled in Bloom v. City Of Fort Collins 784 P.2d 304 (Colo. 1989) that this type of charge is a fee and not a tax, and is not subject to the TABOR proves
• Despite that, local leadership is requiring that it go to a vote which honors Tabor’s intent. Indeed, the vote itself to establish a fee is precedent setting.
• From Legal opinion – “In conclusion, it is my opinion if a court were to follow the Bloom decision, the court would find that a fee based upon impervious surface is a special fee and not a tax since, in addition to the fee revenue not being used to defray general expenses of government, the fee would be used for a particular government service and would be reasonably related to the overall cost of service.”.
No accountability
• To say that there is a more accountable form of government than one run by elected officials is very hard to understand. Indeed, it is the very essence of a constitutional democracy
• On top of that, to have accountability of elected officials being questioned by former or desirous elected officials is quite difficult to understand and yet that is exactly what Andy McElhany, Doug Bruce, Steve Bach, Steve Durham and Jeff Crank (though Jeff has not yet one an election he certainly has aspired to do so) are doing in this case
Brand new Bureaucracy
• The intent of the documents is to restrict bureaucracy, not create new ones.
• The 1% administration cost cap is the mechanism to do such a thing.
• This is patterned after the PPRTA and while some may not like the PPRTA, bloated bureaucracy is certainly not one of the criticisms that has been leveled successfully

Continue the fee without a sunset
• The capital portion of the fee is required to be sunset by a statement in the IGA Section 6(C)(1) “This . . . component SHALL sunset twenty years after the effective date of this Agreement absent a lawfully approved extension.” This leaves a crack open for those that do not support this amendment. It is lawful for the IGA to be changed by the signatories, not requiring a vote.
• The County Commissioners, recognizing the flaw, did a resolution stating they would not support an extension or raising of the fee without a vote
• It is unfortunate that this statement, a remnant of 43 drafts of the document, was not changed to reflect the prevailing thought. It can perhaps be changed after this vote.
• However, if holding elected officials accountable to not avail themselves of this loophole, then we have many more issues. We believe that this is an adequate answer to those who fear mischief
The Board can determine and change the priority of projects
• This is accurate. It makes sense that over 20 years, project priority will change. Indeed, many of the top priority projects listed by the City were not even on the 2013 list by CH2MHill because of floods created by the fires. In recognition of legitimate planning functions, it can be changed and the elected officials will not accountable to voters from each jurisdiction
Emergency funds are not part of the 5 year rolling average to be returned to each jurisdiction
• This is accurate. It is also accurate that the emergency funds are available to all jurisdictions and that none of these funds are able to be delivered to any jurisdiction a super majority vote representing the City, County and smaller communities has to approve the expenditure.
• Fears that this will be abused should also be weighed under the theory that all of the officials voting for this are

Fee can be increased
• The IGA states that the fees are “set”. The ballot language states that there is a “fee rate structure that will not change for 20 years. . .”
• Other language in a 22 page document could be construed as allowing some changes. We believe the ballot language is strong enough to hold elected officials accountable.
• Interestingly, if this passes and someone proposed an increase in the fees, I wonder how fast the opponents would be all over that thought using this language.
It is on the property tax bill
• It is not. The collection could be done by the Treasurer but it is not a property tax and therefore cannot be enforced
• The collection might be done in a different way and is to be determined.
Maintenance of effort
• There is no aspirational language asking for budgets to be maintained. Why? They are not legally enforceable, they have been ignored and there was no feeling that adding them added any strength to the proposal.
• We did however require all those who currently hold and have expenses related to an MS4 permit be required to maintain those expenses on their general funds
There is a claim that this is as much as a current “average residential property owner now pays for all City services”
• This claim is curious in that it is average is not defined. However, it seems ludicrous on its face. The City budget is $280,000,000; this will raise less than $25,000,000 from City residents.
• The assumption is that they are referring to what an average single family detached residence generates in City property tax. That speaks to the silliness of this claim since the taxpayer generates much more in sales tax.
For views in opposition to the measure, go to

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