HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 02/03/2015 - PUBLIC HEARING ON BALLOT QUESTION PROTESTS AND CONAgenda Item 14
Item # 14 Page 1
AGENDA ITEM SUMMARY February 3, 2015
City Council
AMENDMENT ADDED ON FEBRUARY 2, 2015
STAFF
Wanda Nelson, City Clerk
Ginny Sawyer, Policy and Project Manager
SUBJECT
Public Hearing on Ballot Question Protest and Consideration of Related Resolutions.
EXECUTIVE SUMMARY
A. Public Hearing and Motions regarding Sutherland and Pruznick protests.
B. Resolution 2015-019 Submitting to the Registered Electors of the City an Ordinance Extending the
Expiring Twenty-Five Hundredths Percent (0.25%) “Building On Basics” Capital Projects Sales and Use
Tax For a Period of Ten Years for the Purpose of Obtaining Revenue for the “Community Capital
Improvement Program” Capital Projects and Related Operation and Maintenance, and Superseding
Resolution 2015-012.
C. Resolution 2015-020 Submitting to the Registered Electors of the City at the April 7, 2015 Regular City
Election the Question of the Extension of the Expiring Quarter-Cent Sales and Use Tax Used to Fund the
City's Street Maintenance Program, and Superseding Resolution 2015-013.
The purpose of this item is to (1) hold a hearing to address a protest of ballot questions and (2) adopt new
resolutions establishing ballot language to supersede Resolution 2015-012 and Resolution 2015-013, which
were adopted on January 20 concerning expiring taxes for capital projects and street maintenance.
New protests were filed by Eric Sutherland and Michael Pruznick on February 2, 2015.
STAFF RECOMMENDATION
Staff recommends adoption of the Resolutions as presented.
BACKGROUND / DISCUSSION
On January 20, City Council adopted Resolution 2015-012 submitting to the registered electors an ordinance
extending the expiring quarter-cent tax for capital projects, and Resolution 2015-013, submitting to the
registered electors a ballot measure to extend the expiring quarter-cent tax for street maintenance. Citizen
Eric Sutherland emailed City Leaders on Friday, January 16 regarding the language used in the adopted
resolutions, and resent the email on Wednesday, January 21 stating his original email should have been
considered a formal protest under Code Section 7-156:
Sec. 7-156. Protests of proposed ballot title and/or submission clause.
Any registered elector desiring to protest a proposed ballot title and/or submission clause for
any initiated or referred measure may file a written protest in the office of the City Clerk. Said
notice of protest shall be filed no later than 12:00 p.m. on the Monday immediately preceding
Agenda Item 14
Item # 14 Page 2
the date upon which the City Council will consider the resolution setting the ballot title and
submission clause. The notice of protest shall set forth with particularity the grounds of the
protest. Such protest shall be heard, considered and resolved by the City Council prior to the
adoption of said resolution.
To address Mr. Sutherland's claim, Council is expected to conduct a protest hearing, adopt a motion
addressing the subject matter of the protest, and then to adopt Resolution 2015-015 and Resolution 2015-016,
to supersede the previously adopted resolutions. Mr. Sutherland's email, the Colorado Supreme Court case
cited in that email, and the agenda item summaries from January 20 are attached for Council's reference.
ATTACHMENTS
1. Sutherland Email (PDF)
2. Bruce v. City of Colorado Springs (PDF)
3. Agenda Item Summary-Community Capital Improvement Program (PDF)
4. Agenda Item Summary - Street Maintenance Program (PDF)
5. New Protests filed by E. Sutherland and M. Pruznick, February 2, 2015
From: Eric Sutherland
To: Wanda Nelson; Carrie Daggett; Rita Knoll
Cc: City Council
Subject: Request for disposition of City Council: protest of ballot questions.
Date: Wednesday, January 21, 2015 5:13:26 PM
Please provide the disposition of City Council acting by motion or otherwise to the
protest to the ballot questions considered for referral on Tuesday, January 20th that
was timely filed on January 16th, 2015 per City Code 7-156:
- mismatched subject/verg agreement and verb conjugation
- use of misleading language regarding the effect of a "yes" or "no" vote upon the levy
of additional taxes.
Also, please confirm that the sequence of controlling law as enumerated here also
represents hierarchy of law. i.e. Charter trumps Code trumps UEC, etc.
Election shall mean any regular or special municipal election held pursuant to the Charter,
the Code, the "Uniform Election Code of 1992" or the "Colorado Municipal Election Code of
1965," and which is not coordinated with the County pursuant to Section 1-7-116, C.R.S.
Section 1. Applicability of state Constitution.
The Council shall provide by ordinance for the manner of holding city elections. All
ordinances regarding elections shall be consistent with the provisions of this Charter and the
state Constitution. Any matter regarding elections not covered by the state Constitution, this
Charter or ordinance of the Council shall be governed by the laws of the State of Colorado
relating to municipal elections.
Please pay close attention to the meaning of my previous cautionary missive "More
importantly, other case law suggests that without voter approval as used in Article X
Section 20 means that, unless all steps requisite for conducting and finalizing an
election are perfected, approval has not occurred."
Thanks,
Eric Sutherland
ARTICLE VI.
INITIATIVE AND REFERENDUM
Sec. 7-156. Protests of proposed ballot title and/or submission clause.
Any registered elector desiring to protest a proposed ballot title and/or submission clause for
any initiated or referred measure may file a written protest in the office of the City Clerk.
Said notice of protest shall be filed no later than 12:00 p.m. on the Monday immediately
preceding the date upon which the City Council will consider the resolution setting the ballot
title and submission clause. The notice of protest shall set forth with particularity the grounds
of the protest. Such protest shall be heard, considered and resolved by the City Council prior
to the adoption of said resolution.
ATTACHMENT 1
From: Eric Sutherland <sutherix@yahoo.com>
To: "cityleaders@fcgov.com" <cityleaders@fcgov.com>; Wanda Nelson <wnelson@fcgov.com>; Carrie
Daggett <cdaggett@fcgov.com>
Sent: Friday, January 16, 2015 1:50 PM
Subject: My kingdom for an English major.
RE: City of Fort Collins ballot questions to be considered for referral on 1st Reading.
We live in a state where the presence or absence of a comma in a statute or article of
the constitution has:
- determined whether or not oil companies may condemn rights of way for petroleum
pipelines
- informed the decision of the Attorney General as to whether or not processing
marijuana in a residence may be made unlawful by state or local law.
One would think that more attention would be paid to the grammatical construction of
ballot questions.
We have to stop defunding schools with TIF. Then maybe high school graduates
that go on to work for municipal governments will employ the King's English when
crafting ballot questions.
Ambiguity that exists in a ballot question with mis-matched verb conjugation and
subject/verb agreement is certain to create confusion as to the effect of a "yes" or
"no" vote. So would the use of the phrase "without raising additional taxes" when, in
fact, the purpose of the ballot question is to request approval to raise additional taxes.
Bruce v. Colorado Springs only tested the constitutionality of this misleading
statement, and, even then, did not result in a unanimous opinion. More importantly,
other case law suggests that without voter approval as used in Article X Section 20
means that, unless all steps requisite for conducting and finalizing an election are
perfected, approval has not occurred.
Phrases such as "without increasing tax rates" or "without increasing the rate of
taxation" are unambiguous and accurate statements in the context of the voter
approval sought. The voters should not be misled when non-misleading phrases are
available to replace the misleading phrases.
We have been visited by the mutated descendant of Jim Crowe in the 8th Judicial
District. The rights to contest elections under law is as elemental to "free and fair" as
suffrage itself. Hopefully the Supreme Court will help us out. ( and as my son's
math teacher wrote in an email earlier today Dr. Martin Luther King was
an amazing human being. Enjoy the weekend in his
memory. )
It would be my hope that the City of Fort Collins could do better than Larimer County
in constructing ballot questions. One way that this could be accomplished would be
to publish potential ballot questions in advance of the public notice, just to see if there
are any English Majors paying attention.
Eric Sutherland
B.S.M.E.
reference http://www.lpdirect.net/casb/crs/31-11-111.html
| | Positive
As of: January 15, 2015 12:00 PM EST
Bruce v. City of Colo. Springs
Supreme Court of Colorado
February 27, 2006, Decided
Case No. 05SA365
Reporter
129 P.3d 988; 2006 Colo. LEXIS 395
Plaintiff-Appellee: DOUGLAS BRUCE, v. Defendants-
Appellants: CITY OF COLORADO SPRINGS and KATHRYN
YOUNG, City Clerk, in her official capacity as election officer
for the city.
Prior History: [**1] Appeal from the District Court El Paso
County Case No. 03CV935. Honorable Robert L. Lowrey, Judge.
Disposition: JUDGMENT REVERSED.
Core Terms
tax increase, election, ballot title, notice, requirements, voters,
trial court, notice requirements, provisions, substantial
compliance, extensions, expiring, ballot, taxes, taxpayers, voter
approval, definitions, appears, plain language, use tax, electorate,
increases, sales, notice of election, notice provision, summary
judgment, comments, purposes, sections, fiscal year
Case Summary
Procedural Posture
Plaintiff citizen brought an action against defendant City
challenging a voter-approved ballot measure to extend an existing
sales and use tax for trails, open space, and parks. The District
Court of El Paso County, Colorado, determined that the election
notice of the measure was not in substantial compliance with the
state constitution or the city charter and invalidated the voters'
approval of the measure. The City appealed.
Overview
On review, the City contended the trial court erred in granting
summary judgment in favor of the citizen on the basis that the
election notice of the ballot measure at issue was not in
substantial compliance with Colo. Const. art. X,
§ 20(3) or Colorado Springs, Colo., City Charter § 90. The
supreme court concluded that a tax extension was not a tax
increase within the meaning of Colo. Const. art. X, § 20(3)'s
election notice provisions. Accordingly, the election notice
requirements for tax increases did not apply to the ballot measure
at issue. Therefore, the trial court erred as a matter of law when it
determined as a preliminary matter that the election notice
requirements for tax increases applied to tax extensions and,
consequently, the notice of election was not in substantial
compliance art. X, § 20(3) and the city charter. The supreme court
further concluded that the election notice provisions served to
inform the voters, and an unnecessarily broad definition of
"increase" would have led to potential confusion in contravention
of that purpose.
Outcome
The judgment was reversed.
LexisNexis® Headnotes
Civil Procedure > Appeals > Appellate Jurisdiction > State Court
Review
HN3 See Colo. Rev. Stat. § 13-4-110(1)(a).
Civil Procedure > Appeals > Appellate Jurisdiction > State Court
Review
HN1 The court of appeals has original jurisdiction for appeals
from the district court concerning proceedings initiated under
Page 2 of 11
129 P.3d 988, *988; 2006 Colo. LEXIS 395, **1
HN2 The supreme court may exercise jurisdiction when the
subject matter of the case concerns a significant state
constitutional question of first impression.
Governments > Local Governments > Elections
HN5 Claims brought to enforce Colo. Const. art. X, § 20(3)'s
election provisions are measured by a "substantial compliance"
standard. Elections will be set aside only where clear grounds for
such action exist. A number of factors are considered when
determining whether a measure substantially complies with art X,
§ 20(3): (1) the extent of the district's noncompliance with respect
to the challenged ballot issue, that is, a court should distinguish
between isolated examples of district oversight and what is more
properly viewed as systemic disregard of art. X, § 20(3)
requirements; (2) the purpose of the provision violated and
whether that purpose is substantially achieved despite the district's
noncompliance; and (3) whether it can reasonably be inferred that
the district made a good faith effort to comply or whether the
district's noncompliance is more properly viewed as the product
of an intent to mislead the electorate. The substantial compliance
test and the Bickel factors are appropriately applied to an art. X, §
20(3) challenge to a notice of election.
Civil Procedure > Appeals > Standards of Review > De Novo Review
Constitutional Law > ... > Case or Controversy > Constitutional
Questions > General Overview
Governments > Local Governments > Elections
HN6 The interpretation of a constitutional provision is a question
of law that the supreme court reviews de novo. Where ambiguities
exist, the supreme court interprets constitutional provisions as a
whole and attempts to harmonize all of the contained provisions.
The supreme court also gives effect to the intent of the electorate
in adopting the amendment.
Governments > Local Governments > Elections
HN7 In assessing the intent of the voters, the supreme court looks
to the language of the text and accords words their plain and
ordinary meaning. Further, in examining the plain language, the
supreme court does not read a statute to create an exception that
the plain language does not suggest, warrant, or mandate.
Constitutional Law > ... > Case or Controversy > Constitutional
Questions > General Overview
Governments > Local Governments > Elections
HN8 Where a constitutional provision was enacted by voter
initiative and is not a statute enacted by the legislature, the
supreme court does not assume that all legislative drafting
principles apply. Initiatives are not subject to the same drafting
processes as statutes. Nonetheless, the supreme court applies
generally accepted principles, such as according words their plain
or common meaning. The supreme court thereby enacts the intent
of the voter in the same manner as it would otherwise seek to
enact the intent of the legislature.
Governments > Local Governments > Elections
Governments > Local Governments > Finance
HN9 Colo. Const. art. X, § 20(3) requires election notice titles to
state in order of preference: "Notice of election to increase
taxes/to increase debt/on a citizen petition/on a referred measure."
Accordingly, election notice titles for tax increases must begin
with the phrase "Notice of election to increase taxes."
Governments > Local Governments > Elections
Page 3 of 11
129 P.3d 988, *988; 2006 Colo. LEXIS 395, **1
HN14 A court's duty in interpreting a constitutional amendment is
to give effect to the will of the people in adopting such
amendment.
Governments > Legislation > Interpretation
Governments > Local Governments > Elections
Governments > Local Governments > Finance
HN15 Ambiguities in Colo. Const. art. X, § 20(3) are generally to
be resolved to effectuate art. X, § 20(3)'s stated purpose of
reasonably restraining the growth of government. Colo. Const.
art. X, § 20(1). However, the election notice provisions serve
additional purposes for which the supreme court must account
when interpreting those provisions. Namely, the primary purpose
of the election notice provisions is to provide the electorate with
the information necessary to make an intelligent decision on
ballot issues involving debt and/or tax increases. Accordingly, the
supreme court also resolves ambiguities in light of this purpose,
provided there are no overt conflicts with Colo. Const. art. X, §
20(3)'s broader purpose of reasonably restraining the growth of
government.
Headnotes/Syllabus
Headnotes
Constitutional Law-Tax Increases-Tax Extensions-Election
Notices
Syllabus
In this opinion, the Supreme Court reviews the summary
judgment of the trial court invalidating the voters' approval of
Issue 1A, a measure to extend an existing sales and use tax for
"Trails, Open Space, and Parks," in the April 2003 Colorado
Springs municipal election. The trial court determined that the
election notice of Issue 1A was not in substantial compliance with
article X, section 20 of the Colorado Constitution or article VII,
section 90 of the Charter of the City of Colorado Springs.
The trial court's substantial compliance decision turned upon its
interpretation of nearly identical provisions contained within these
two sections. The election notice provisions within these sections
place additional requirements upon elections concerning tax or
debt increases. This election concerned a tax extension.
Accordingly, the trial court made a preliminary determination as
to whether a "tax extension" is equivalent to a "tax increase"
under the
election notice provisions [**2] of the Colorado Constitution and
the Charter of the City of Colorado Springs. The trial court found
that the terms were equivalent and thereby invalidated the election
in part because the election notice did not substantially comply
with the additional election notice provisions for tax increases.
The Supreme Court finds that a "tax extension" is not the same as
a "tax increase." Consequently, the election notice for a proposed
tax extension need not meet the additional election notice
requirements that apply to tax increases. The summary judgment
of the trial court is reversed.
Counsel: Douglas Bruce, Pro se, Colorado Springs, Colorado.
Patricia K. Kelly, City Attorney for Colorado Springs, Shane
White, Senior Attorney, Colorado Springs, Colorado, Attorneys
for Defendants-Appellants.
Colorado Municipal League, Geoffrey T. Wilson, Denver,
Colorado, Attorneys for Amicus Curiae Colorado Municipal
League.
Page 4 of 11
129 P.3d 988, *989; 2006 Colo. LEXIS 395, **3
Constitution or Article VII, section 90 of the Charter of the City
of Colorado Springs (collectively "Amendment 1"). 1
[*990] The trial court first held the tax extension in Issue 1A was
the equivalent of a "tax increase" for purposes of Amendment 1.
Although the weight of factors before the trial court suggested that
Issue 1A was in substantial [**4] compliance with Amendment 1,
the trial court found that because Issue 1A failed to meet the
additional Amendment 1 election notice requirements pertaining
to tax increases, this defect proved fatal to the validity of the
election notice.
The resolution of this issue accordingly rests upon the
determination of whether a tax extension is a tax increase within
the meaning of Amendment 1's election notice provisions. We
hold that a tax extension is not a tax increase, and therefore the
election notice requirements for tax increases do not apply to
Issue 1A. We reverse the judgment of the trial court below.
I. Facts and Proceedings Below
This dispute arises from a challenge to Issue 1A in an election
held by the City of Colorado Springs (the "City") on April 1,
2003. Issue 1A proposed to extend the existing 0.1% sales and
use tax for "Trails, Open Space, and Parks" from its slated
expiration of April 30, 2009, to December 31, 2025. The ballot
title for Issue 1A states:
Without raising additional taxes, shall the existing 0.1%
(one-tenth of a cent) City sales and use tax for Trails, Open
Space and Parks (TOPS) be extended from its current
expiration of April 30, 2009 through [**5] December 31,
2025 . . . as a voter-approved revenue change, the above
constituting no changes to the program except allowing no
more than 6% be used for stewardship and maintenance of
TOPS-funded trails, open space and parks and no more than
3% be used for program management?
Issue 1A was approved by the voters of Colorado Springs.
Plaintiff, Douglas Bruce, initially challenged the election
contending it violated Amendment 1. He also challenged the
factual summary for alleged violations of the Fair Campaign
Practices Act (FCPA), sections 1-45-101 to-118, C.R.S. (2003).
Bruce sought damages, a declaratory judgment proclaiming Issue
1A illegal and void, and an injunction preventing the City from
counting ballots on Issue 1A, revealing the results of the count,
spending additional money on Issue 1A, or conducting any
further proceedings with regard to Issue 1A. Bruce also alleged
bad faith on the part of Defendants, the City and the City Clerk,
Kathryn Young. He sought a court order to prevent any further
involvement in the April 1, 2003 election by Young and the
substitution of the El Paso County Clerk and Recorder in her
place for the purpose of performing her election duties.
[**6] The City moved to dismiss all of Bruce's claims or, in the
alternative, for summary judgment. As there were no disputed
issues of fact, the trial court treated Bruce's response as a cross-
motion for summary judgment.
In a written order, the trial court granted Bruce's cross-motion for
summary judgment on his claim that the Issue 1A election notice
violated Amendment 1. Following review of the alleged
Amendment 1 infirmities in the election notice, the trial court
determined the key issue in resolving whether Issue 1A's election
notice was in substantial compliance with Amendment 1 was
Page 5 of 11
129 P.3d 988, *991; 2006 Colo. LEXIS 395, **7
challenging the City election pursuant to the Uniform Election
Code, section 1-11-203.5(2), C.R.S. (2003). This provision
requires ballot title challenges to be brought within five days of
setting the ballot title. Bruce did not contest the City's averment
that the challenge was not brought within the five-day period.
Consequently, the trial court found for the City and barred Bruce's
ballot title claim. 2
[**8] The trial court also dismissed Bruce's claims alleging
violations of the FCPA in the factual summary on the basis that
Bruce had already availed himself of the exclusive remedy for his
claim. The court found that under the FCPA, the remedy for
contesting the factual summary of a ballot issue is to file a
complaint with the Colorado Secretary of State and follow the
appropriate procedures. Bruce followed those procedures, lost on
his claim following a hearing before an administrative law judge,
and did not appeal. Last, the trial court found no bad faith on the
part of the City Clerk, Kathryn Young. After initially taking the
position that no comments would be received, the City reversed
its position after Bruce appeared at the City Clerk's office on the
final day for comment submission 3 and insisted that the Clerk's
office accept his comments. The City Clerk then solicited
comments from a proponent of Issue 1A shortly before the 5:00
p.m. deadline. The trial court found the City Clerk's actions were
not in bad faith, but that the City did not afford the public "any
reasonable opportunity to further the purposes of [Amendment 1]
with the submission of comments."
[**9] The City now appeals the decision of the trial court
granting summary judgment in favor of Bruce on the basis that
the election notice of Issue 1A was not in substantial compliance
with Amendment 1. Bruce does not cross-appeal
any of the other issues. Thus, we address only the trial court's
decision to grant summary judgment in favor of Bruce on the
election notice issue. Specifically, we look at whether
Amendment 1's election notice requirements for tax increases
apply to tax extensions, that is, whether a "tax extension" is
appropriately termed a "tax increase." Because the trial court's
conclusion that a tax extension is the equivalent of a tax increase
has implications for the election notice beyond the form and
content of the ballot title, a ruling on the ballot title provisions
alone would not resolve whether the election notice of Issue 1A
was in substantial compliance with Amendment 1. Therefore, we
examine the meaning of "tax increase" with respect to the ballot
title requirements and as it appears in the other election notice
provisions.
We conclude a tax extension is not a tax increase within the
meaning of Amendment 1's election notice provisions.
Accordingly, the election [**10] notice requirements for tax
increases do not apply to Issue 1A. The trial court erred as a
matter of law when it determined as a preliminary matter that the
election notice requirements for tax increases apply to tax
extensions and, consequently, the notice of election was not in
substantial compliance with Amendment 1. Thus, we reverse the
summary judgment of the trial court.
II. Jurisdiction
Upon request of the court of appeals, we accepted transfer of this
case under section 13-4-110(1)(a), C.R.S. (2005). 4 [**11] HN1
The court of [*992] appeals has original jurisdiction for appeals
Page 6 of 11
129 P.3d 988, *992; 2006 Colo. LEXIS 395, **11
exercise jurisdiction here because the subject matter of this case
concerns a significant state constitutional question of first
impression.
III. Analysis
HN5 Claims brought to enforce Amendment 1's election
provisions are measured by a "substantial compliance" standard.
Bickel v. City of Boulder, 885 P.2d 215, 227 (Colo. 1994).
Elections will be set aside only where clear grounds for such
action exist. See id.; see also F.T. Havens v. Bd. of County
Comm'rs, 924 P.2d 517, 524 (Colo. 1996). In Bickel, we set forth
a number of factors to consider when determining whether a
measure substantially complies with Amendment 1:
(1) the extent of the district's noncompliance with respect to
the challenged ballot issue, that is, a court should [**12]
distinguish between isolated examples of district oversight
and what is more properly viewed as systemic disregard of
Amendment 1 requirements, (2) the purpose of the provision
violated and whether that purpose is substantially achieved
despite the district's noncompliance, and (3) whether it can
reasonably be inferred that the district made a good faith
effort to comply or whether the district's noncompliance is
more properly viewed as the product of an intent to mislead
the electorate.
885 P.2d at 227. The substantial compliance test and the Bickel
factors are appropriately applied to an Amendment 1 challenge to
a notice of election. See City of Aurora v. Acosta, 892 P.2d 264,
270 (Colo. 1995).
Here, the trial court acknowledged the Bickel factors and applied
them accordingly. The court found the election notice did not
substantially comply with Amendment 1 because of a number of
defects, including the failure to satisfy all of the ballot title
requirements of section (3), the omission of financial estimates,
and the apparent lack of good faith by the City to comply with
Amendment 1 because of the underlying ballot title errors.
The [**13] court indicated, however, that its decision hinged upon
the applicability of the election notice requirements for tax
increases. The court found that, but for the finding that Issue 1A
violated these requirements, Issue
1A would have been in substantial compliance with Amendment
1 notwithstanding the other defects. The outcome turned directly
upon the preliminary legal question of whether a "tax extension"
constitutes a "tax increase" under section (3) of Amendment 1.
We focus our analysis on this narrow issue.
A.
HN6 The "interpretation of a constitutional provision is a question
of law that we review de novo." Rocky Mtn. Animal Def. v. Colo.
Div. of Wildlife, 100 P.3d 508, 513 (Colo. App. 2004). Where
ambiguities exist, we interpret constitutional provisions as a
whole and attempt to harmonize all of the contained provisions.
Id. at 513-14 (citing Zaner v. City of Brighton, 917 P.2d 280, 283
(Colo. 1996)); see Bickel, 885 P.2d at 229. We also give effect to
the intent of the electorate in adopting the amendment. See Zaner,
917 P.2d at 288; Rocky Mtn. Animal Def., 100 P.3d at 513. [**14]
HN7 In assessing the intent of the voters, we look to the language
of the text and accord words their plain and ordinary meaning.
Town of Telluride v. Lot Thirty-Four [*993] Venture, L.L.C., 3
P.3d 30, 35 (Colo. 2000); Rocky Mtn. Animal Def., 100 P.3d at
Page 7 of 11
129 P.3d 988, *993; 2006 Colo. LEXIS 395, **15
phrase "NOTICE OF ELECTION TO INCREASE TAXES." Id.
The subsections of section (3)(b) go on to specify additional
requirements for election notices:
HN10 (i) The election date, hours, ballot title, text, and local
election office address and telephone number. (ii) For
proposed district tax or bonded debt increases, the estimated
or actual total of district fiscal year spending for the current
year and each of the past four years, and the overall
percentage and dollar change.
(iii) For the first full fiscal year of each proposed district tax
increase, district estimates of the maximum dollar amount of
each increase and of district fiscal year spending without the
increase.
(iv) For proposed district bonded debt, its principal amount
and maximum annual and total district repayment cost, and
the principal balance of total current district bonded debt and
its maximum annual and remaining total district repayment
cost.
(v) Two summaries, up to 500 words each, one for and one
against the proposal, of written comments filed with the
election officer by 45 days before the election. No summary
shall [**16] mention names of persons or private groups, nor
any endorsements of or resolution against the proposal.
Petition representatives following these rules shall write this
summary for their petition. The election officer shall
maintain and accurately summarize all other relevant written
comments. The provisions of the subparagraph (v) do not
apply to a statewide ballot issue, which is subject to the
provisions of section 1 (7.5) of article V of this constitution.
Colo. Const. art. X, § 20(3)(b)(i)-(v). HN11 While all ballot
issues must comply with subsections (i) and (v), an election for a
tax increase must also comply with subsections (ii) and (iii). Id.
Section (3)(c) also requires ballot titles for tax increases to begin
"SHALL (DISTRICT) TAXES BE
INCREASED (first, or if phased in, final, full fiscal year dollar
increase) ANNUALLY. . .?" Colo. Const. art. X, § 20(3)(c). The
requirements in sections (3)(b) and (3)(c) apply explicitly to tax
increases but make no mention of tax extensions. See id.
1.
In our analysis of section (3), we initially confront the problem
that Amendment 1 does not provide a definition for either
"increase" or "extension." Section (2) of [**17] Amendment 1
sets forth a number of preliminary definitions including
"enterprise," "fiscal year spending," and "inflation." Colo. Const.
art. X, § 20(2). However, the term "tax increase" is not defined in
section (2), section (3), or any other provision of Amendment 1. 6
Likewise, "tax extension" also lacks any clarification in
Amendment 1, and an [*994] "extension of an expiring tax"
appears only in section (4)(a) of Amendment 1. 7
[**18] Before turning to the plain language of section (3), we
first discuss Bruce's statutory construction argument in favor of
including "tax extension" within the meaning of "tax increase."
Bruce argues the inclusion of a tax extension in section (4)(a)
should be the basis for an expansive reading of "tax increase" in
section (3). Specifically, Bruce contends section (4)(a) illustrates
the forms a tax increase may take and thereby acts as a
definitional provision for "tax increase." Section 50-4-27(4) states
Page 8 of 11
129 P.3d 988, *994; 2006 Colo. LEXIS 395, **18
We find several flaws with Bruce's interpretation of section (4)(a).
First, Amendment 1 already contains a definitional [**19]
provision that precedes the election notice requirements section.
See Colo. Const. art. X, § 20(2). When viewed as a whole, the
logical approach to interpreting Amendment 1 is to look to section
(2) for definitions, and not to dispersed sections having purposes
quite apart from providing term definitions. The practical means
to define "tax increase" by the items enumerated in section (4)(a)
would have been to incorporate said definition into section (2),
and not, as Bruce suggests, to imply a definition via a subsequent
statutory provision.
Second, as noted above, section (4)(a) has a separate and limited
purpose from both sections (2) and (3). Section (4)(a) sets forth
which elections require advance voter approval. It does not
concern either term definitions or the election notice requirements
of sections (2) and (3) respectively. The election notice
requirements are related only to the advance voter approval
requirements insofar as both serve the same underlying purpose of
accurately informing the electorate of proposed measures.
Otherwise, they have distinct and rather narrow functions. The
relevant portions of section (3) set forth requirements for a valid
election notice, [**20] including detailed language requirements
for a valid election notice title and valid ballot title, whereas
section (4)(a) determines which types of elections demand
advance voter approval. Colo. Const. art. X, §§ 20(3)(b), 20(3)(c),
20(4)(a). The plain language and purposes of these provisions
offer no compelling reason to extend the reach of the items
enumerated in section (4)(a) to section (3).
Third, the inclusion of "an extension of an expiring tax" in section
(4)(a) and omission of any reference to tax extensions in section
(3) is significant. In comparing the two provisions, we note that
tax extensions were clearly contemplated at the time Amendment
1 was drafted, as evidenced by the inclusion of tax extensions in
section (4)(a). While a tax extension appears in section (4)(a), it
does not appear in section (3). Because we find no indication in
either the plain language or structure of Amendment 1 to suggest
that this omission was not deliberate, we decline to interpret
section (4)(a) expansively where the opportunity to extend the
election notice requirements to include tax extensions was plainly
available.
For these reasons, we find section (4)(a) does not guide our
understanding [**21] of the term "tax increase" as it appears in
section (3).
2.
Turning, then, to the language of section (3), itself, we assess the
plain meaning of "tax increase" as it appears in that section.
[*995] In examining "tax increase" as it appears in Amendment
1, we look to the intent of the voter as it is an initiated
constitutional provision. See In re Interrogatories Relating to the
Great Outdoors Colo. Trust Fund, 913 P.2d 533, 538 (Colo.
1996) HN14 ("[A] court's duty in interpreting a constitutional
amendment is to give effect to the will of the people in adopting
such amendment."). We also consider how the typical voter
would interpret "tax increase," because our concern here is how
the form of the election notice affects a voter's understanding of a
proposed measure. Accordingly, we consider whether the
practical, everyday meaning of "increase" is synonymous with
Page 9 of 11
129 P.3d 988, *995; 2006 Colo. LEXIS 395, **23
3.
HN15 Ambiguities in Amendment 1 are generally to be resolved
to effectuate Amendment 1's stated purpose of reasonably
restraining the growth of government. See Colo. Const. art. X, §
20(1); Nicholl v. E-470 Pub. Highway Auth., 896 P.2d 859, 867
(Colo. 1995); Bickel, 885 P.2d at 229. However, we also
recognize that the election notice provisions serve additional
purposes for which we must account when interpreting those
provisions. Namely, the primary purpose of the election notice
provisions is "to provide the electorate with the information
necessary to make an intelligent decision on ballot issues
involving debt and/or tax increases." Bickel, 885 P.2d at 236; see
also Legislative Council of the Colorado General Assembly, An
Analysis of 1992 Ballot Proposals 10 (1992). Accordingly, we
also resolve ambiguities in light of this purpose, [**24] provided
there are no overt conflicts with Amendment 1's broader purpose
of reasonably restraining the growth of government.
At the outset, we note that a tax extension does not evoke the
specter of unchecked government growth contemplated by
Amendment 1. While a tax or debt increase leads to a greater
burden on taxpayers and, in all likelihood, greater government
spending, a tax extension merely maintains the present taxpayer
burden and size of government. Where the size of government is
neither expanding nor contracting, the concerns underlying
Amendment 1 are largely peripheral.
In contrast, the principle underlying the election provisions, i.e.,
that the electorate should be provided with sufficient information
to make intelligent decisions on ballot issues, is directly at issue in
this case. See Bickel, 885 P.2d at 236. Whether the election
[*996] notice title and the ballot title of a tax extension must be
titled "TAX INCREASE" and conform to the other section (3)
requirements that apply to tax increases directly influences the
perception and understanding of the voters. 8
[**25] Here, we find that applying the additional section (3)
requirements for tax increases to tax extensions is more likely to
cause confusion than assist the voters. A tax extension is not
synonymous with a tax increase. To suggest otherwise runs the
risk of significantly misleading the
voters. By expanding the definition of a tax increase beyond its
plain meaning to include tax extensions, voters may be led to
believe that the election involves something more than an
extension of a present tax. Labeling the extension an "increase"
suggests that the costs of the tax will be greater than present
levels, and thereby risks confusing the electorate. Here, for
example, Issue 1A does not substantively change the existing
sales and use tax or its proposed use of the revenue. The
extension lengthens the time period of the tax and directs the tax
revenue to the same expenditures approved by the voters in the
original ballot proposal. 9 The typical voter would not interpret
the tax extension proposed in Issue 1A to be anything more than a
continuation of the status quo. Accordingly, to accurately inform
the voter, the tax is properly termed a "tax extension" and not a
"tax increase."
[**26] Further, when we look to the particular language used in
the ballot title of Issue 1A's election notice, the language does not
seem confusing or ambiguous. The ballot title of Issue 1A states
in relevant part:
Page 10 of 11
129 P.3d 988, *996; 2006 Colo. LEXIS 395, **27
After examining the various arguments for an expanded reading
of "increase," we reject these arguments in favor of the plain
language of section (3). We are not persuaded by Bruce's
suggestion that section (4)(a) serves as a definitional provision for
section (3), nor by his assertion that the plain meaning of
"increase" should be liberally construed in place of its plain and
ordinary meaning. In sum, we find no compelling reason to
deviate from the plain language of Amendment 1 entailing the
adoption of an expansive definition of the term "increase" to
encompass "extension."
The election notice provisions serve to inform the voters, and an
unnecessarily broad definition of "increase" would lead to
potential confusion in contravention of that purpose. [*997]
Accordingly, we reject the trial court's legal determination that an
extension of an expiring tax is equivalent to a tax increase.
Consistent with this finding, the additional ballot title
requirements of section (3) that apply to tax increases [**28] do
not apply to Issue 1A. Therefore, we reverse the order of the trial
court granting summary judgment for Bruce.
Dissent
COATS
JUSTICE COATS, dissenting
Today the majority excuses a local government's calculated
refusal to provide the notice required for proposed tax increases
by the popularly adopted Taxpayer's Bill of Rights, holding that
the term "tax increase" was never intended to include the
imposition of a future tax, despite clearly requiring voter
approval, as long as it does not exceed the amount of a previous
tax earmarked for the same purposes. I consider the majority's
interpretation of the term "tax increase" (as well as its
understanding of the words "plain and ordinary meaning") to be
so strained as to demand some expression of opposition. I
therefore respectfully dissent.
The majority's (somewhat) condescending rejection of any other
reading rests on its unstated (and to my mind clearly erroneous)
assumption that the term "tax increase" is limited to increases in
the tax burden under which the taxpayers labor at the time voter
approval is sought for additional tax revenues. When the majority
speaks of "present" tax levels and "existing" sales and use taxes,
maj. [**29] op. at 20-21, it refers to levels of taxation preceding
the election, rather than the burden to which taxpayers will be
subject, barring their approval of a greater amount, in the
applicable tax
period. The plain and ordinary meaning of the term "tax increase,"
however, would seem to be much less cramped and encompass
any tax for which the approval of the voters is required. Even if
this constitutional language, in the abstract, could reasonably be
limited to future tax levels exceeding those to which taxpayers
had previously been subjected, such a construction could not be
squared with the remaining provisions of TABOR or its clear
purpose of expanding voter oversight of the taxation process.
In rejecting the possibility of a different construction, the majority
fails to even consider whether the status quo against which a
proposed tax measure should be compared is actually the tax
burden that already exists for the period in question, in the
absence of additional voter-approved taxes. Instead, it disparages
the arguments advanced by the taxpayer-appellee by erecting and
Page 11 of 11
129 P.3d 988, *998; 2006 Colo. LEXIS 395, **31
notice requirements for ballot issues that would increase either
taxes or debt - the former clearly corresponding to the measures
described in (4)(a) and the latter corresponding to those described
in (4)(b). Presumably the majority does not intend that any "new
tax" or "tax rate increase" be excluded from the rubric of "tax
increase," like any "extension of an expiring tax," merely because
these terms are also not repeated in subsection (3).
Contrary to the majority's characterization of the "plain language
or structure" of subsections 3 and 4, maj. op. at 16, read together
these two provisions evidence [**32] an unmistakable attempt to
foreclose precisely the kind of subterfuge sanctioned by the
majority today. Ironically, the majority relies on TABOR's failure
to fully repeat, in subsection (3), subsection (4)(a)'s explicit
identification of various ways of characterizing or structuring tax
increases as support for its assertion that subsection (4)(a) was
never intended as an enumeration of specific examples of tax
increases at all. Whether or not the majority's rationale logically
dictates that the other tax measures enumerated in subsection
(4)(a) also be exempt from the notice requirements of subsection
(3), it does make clear its understanding that The Taxpayer's Bill
of Rights mandates voter approval for certain tax measures,
despite their failure to qualify as either tax increases or increases
in public debt.
The majority also criticizes the taxpayer for seeking an overly
broad or expansive definition of "tax increase," to include "all
forms of revenue increases." Whether this is an accurate
description or not, it is hardly relevant to the matter before the
court today, which is the approval of a tax that could not
otherwise exist. Unlike the majority's hypothetical of "a net
revenue [**33] gain" without changing tax burdens for individual
taxpayers, maj. op. at 18, the "extension of an expiring tax," at
issue here, clearly increases the tax burden beyond that under
which individual taxpayers would have labored without the
extension.
Finally, the failure to comply with TABOR's notice requirements
in this instance was not simply a technical
omission, belatedly asserted by taxpayers as a means of nullifying
election results with which they were displeased. The matter was
raised well before the election, and the municipality consciously
chose not to give notice or identify the measure as a proposed tax
increase. On the contrary, the ballot title for this tax measure
expressly indicated that approving the measure would not raise
additional taxes, a deceptive statement, accurate only in the
narrow sense validated by the majority today. By failing to treat
this "extension of an expiring tax" as a tax increase, the
municipality was able to raise additional tax revenues, requiring
voter approval, without ever informing the electorate of its
estimate of the maximum dollar amount to be raised by approving
the measure or its estimate of fiscal year spending without that
amount. [**34] See Colo. Const. Art. X, § 20(3)(b)(iii).
Surely a fair reading of the Taxpayers' Bill of Rights leads
inexorably to the conclusion that this is an example of precisely
what the amendment was designed to prohibit. Nor do I believe
the doctrine of "plain meaning" provides the majority any refuge.
Particularly, in this context, I fear that the majority's plain
meaning explanation - that "tax increase" can only mean an
increase in the taxes taxpayers have been paying rather than an
Agenda Item 13
Item # 13 Page 1
AGENDA ITEM SUMMARY January 20, 2015
City Council
STAFF
Ginny Sawyer, Policy and Project Manager
Darin Atteberry, City Manager
SUBJECT
Resolution 2015-012 Submitting to the Registered Electors of the City an Ordinance Extending the Expiring
Twenty-Five Hundredths Percent (0.25%) "Building on Basics" Capital Projects Sales and Use Tax for a Period
of Ten Years for the Purpose of Obtaining Revenue for Certain "Community Capital Improvement Program"
Capital Projects and Related Operation and Maintenance.
EXECUTIVE SUMMARY
The purpose of the item is to set the ballot language and refer the Community Capital Improvement Program
tax extension to the April 7, 2015 election. The renewal of the ¼-cent sales and use tax will result in $7.4
million in revenue available per year for designated capital improvement projects. The program is currently set
to expire December 31, 2015. The term of the renewal is January 1, 2016-December 31, 2025.
The recommended project list is below:
Pedestrian Sidewalk/ADA Compliance - Safe Routes to Everywhere
Bicycle Infrastructure Improvements - Safe Routes to Everywhere
Bus Stop Improvements - Safe Routes to Everywhere
Downtown Poudre River Enhancements and Kayak Park
Bike/Ped Grade Separated Crossings Fund
Transfort Bus Fleet Replacement
Arterial Intersection Improvements Fund
Implementing Nature in the City
Gardens on Spring Creek Visitor's Center Expansion
Southeast Community Center with Outdoor Pool
Affordable Housing Fund
Lincoln Avenue Improvements Design & Construction (From 1st Street to Lemay Avenue)
City Park Train
Renovation of the Historic Carnegie Building
Linden Street Renovations Design & Construction
Club Tico Renovation
Willow Street Renovations Design & Construction
The Resolution includes $75 million in project costs, $2.6 million for five years of operation and maintenance
(O & M), and $5.3 million for inflation. Staff has recommend five years of O&M to give projects at least two
budget cycles to determine how to best fund the ongoing O&M costs while trying to maximize project dollars.
STAFF RECOMMENDATION
Staff recommends adoption of the Resolution.
ATTACHMENT 3
Agenda Item 13
Item # 13 Page 2
BACKGROUND / DISCUSSION
Fort Collins has been fortunate to have a long history of voter approved sales tax initiatives to fund major
capital projects. Starting in 1973 with a 7-year, one cent tax that helped pay for the Main Library, the Lincoln
Center, City Hall, and Mulberry Pool among other improvements, these voter approved sales tax capital
programs have continually supported efforts to build the city we know and love today.
The current initiative, Building on Basics (BOB), was approved in 2005. BOB is a quarter cent tax which
equates to 25-cents on a $100 purchase. Over the 10-year period (2005 to 2015), BOB has provided almost
$58 million dollars for investment in community projects. These dollars have supported the Lincoln Center
renovations, the Museum of Discovery, new bike facilities, improvements to North College and Timberline,
sidewalk upgrades, and the Senior Center expansion. The BOB initiative will expire December 31, 2015.
During the 2013-2014 strategic planning efforts, “Planning for the Next Community Capital Program (BOB II)”
was identified as a High Performing Government key initiative. Staff has worked diligently over the last year to
engage the community and work with Council to develop the project list included in the Resolution.
(Attachment 1:Drilling Platform; Attachment 2: Project Descriptions)
Council first reviewed the process and an initial project list in September 2013. Since that time there have
been six additional Council work sessions and many hours and efforts dedicated to public engagement to help
determine the community’s highest priorities. These efforts have narrowed the list from $400 million to the
approximately $75 million in projects that the tax could support. . Additionally, the Council Finance Committee
has reviewed the process and the projects on two occasions, most recently at the December 2014 meeting.
(Attachment 3: Work Session Summaries; Attachment 4: December Council Finance Minutes)
The proposed list represents a package of projects expected to appeal and provide benefit to a variety of
citizens while addressing basic needs and existing deficiencies. The package supports all City Outcome Areas,
and many projects impact multiple Outcomes, such as the Arterial Intersection Improvements Fund and
Bike/Pedestrian over/under passes which impact Safety, Transportation, Community and Neighborhood
Livability, Environmental and Economic Health.
Since Council last reviewed the project list, staff has reviewed revenues and adjusted the cost of the Lincoln
Avenue Improvements. As a result of these actions, staff is recommending moving the Willow Street
Renovations into the package. Willow Street remained high in consideration throughout the process and there
are existing deficiencies on multiple levels. Including this project will help leverage and coordinate work that
must be done by Utilities with ongoing redevelopment in the area.
In response to Council feedback, staff also added an additional year of O&M. The proposed package accounts
for five years of Operation and Maintenance and inflation on select projects. Should Council wish to adjust the
years of O & M support, the cost options are in the table below:
4 years
O&M
5 years
O&M
6 years
O&M
Total Revenue $83M $83M $83M
Less O&M $2.1M $2.6M $3.1M
Remainder $80.9M $80.4M $79.9M Note: Estimated 45% of projects require
inflation
Less Inflation $5.3M $5.3M $5.3M Note: 45% of annual revenue (no O&M)
inflated at 3%
Total For Projects $75.6M $75.1M $74.6M
Highlights of the Ordinance/Ballot Language
Staff has developed a Resolution to place an Ordinance before the voters which will extend through December
31, 2025, the Building on Basics sales and use tax set to expire on December 31, 2015. The Resolution refers
Agenda Item 13
Item # 13 Page 3
the issue of renewal of the tax to the voters at the April 7, 2015 election. The Ordinance, which will be adopted
if the measure is approved by the voters, includes several provisions regarding implementation, including:
Term of 10 years (January 1, 2016 - December 31, 2025.)
Five years of Operation and Maintenance for select projects.
A provision that any excess revenues remaining after all projects are completed and operation and
maintenance costs provided will be directed to any capital project or additional operation and
maintenance of select projects, as directed by City Council.
A contingency on the Downtown Poudre River Kayak Park and the Visitor’s Center at the Gardens on
Spring Creek that construction will not begin until successful fundraising efforts have been achieved.
The Resolution also includes the detailed ballot language that will appear on the election ballot.
FINANCIAL / ECONOMIC IMPACTS
This is a proposed extension of an expiring tax, not a new tax, and as such there will not be an increase in
current tax rates. This is a sales and use tax collected on all taxable purchases, which does not include
purchases of prescription drugs, and excludes food for home consumption. The extension results in the
continued ¼-cent tax which is the equivalent of 25 cents on a $100 taxable purchase. Current revenue
projections over 10 years are approximately $83 million (Projections updated January 2, 2015.)
The average impact of the sales tax portion of the ¼-cent on a resident is approximately $3.22 per person/per
month or $38.60 annually. This does not account for non-resident contributions from purchases made within
the City.
The term of the tax extension is January 1, 2016 through December 31, 2025.
PUBLIC OUTREACH
The Community Capital Improvement Program involved extensive public outreach over the past year including:
Between September 2013 and January 2014, staff met with eight City boards, the Visit Fort Collins
Board, the Chamber Legislative Committee, and a CityWorks Alumni group to seek feedback on both
process and projects.
Major public outreach began in August 2014 and included an interactive website, a board and
commission “Super Meeting,” a CityWorks Alumni Forum, a public open house, a Community Issues
Forum, a “mini” drop-in at the Senior Center, and a booth at the Sustainable Living Fair.
In late October 2014, the on-line tool was converted to a calculator tool that allowed citizens to select
up to $75 million in projects. Staff also continued to meet with City boards and the Chamber
Legislative Committee.
In January 2015, additional outreach was done focusing on Lincoln Avenue improvements and
placing this project in the capital improvement package. Outreach included an open house and online
surveying. (Lincoln Outreach Summary will be provided in January 20, 2014 Read Before; Attachment
5: Capital Improvement Webpage Online Comments since December 2014)
The outreach, both on-line and at events, was instrumental in shaping and guiding the project narrowing.
Traditionally, the capital improvement packages have been a mix of transportation infrastructure, funds to
leverage additional dollars, signature projects, and amenities that impact large segments of our citizens. This
package reflects a similar mix.
Agenda Item 13
Item # 13 Page 4
ATTACHMENTS
1. Proposed Project Drilling Platform (PDF)
2. Project Descriptions (PDF)
3. Work Session Summaries (PDF)
4. Council Finance Minutes, December 15, 2014 (PDF)
5. Online Web Citizen Feedback Dec 2014-Jan 14, 2015 (PDF)
Agenda Item 14
Item # 14 Page 1
AGENDA ITEM SUMMARY January 20, 2015
City Council
STAFF
Ginny Sawyer, Policy and Project Manager
Darin Atteberry, City Manager
Mark Jackson, PDT Deputy Director
SUBJECT
Resolution 2015-013 Submitting to the Registered Electors of the City at the April 7, 2015, Regular City
Election the Question of the Extension of the Expiring Quarter-Cent Sales and Use Tax Used to Fund the
City's Street Maintenance Program.
EXECUTIVE SUMMARY
The purpose of the item is to set the ballot language and refer the Street Maintenance Program tax renewal to
the April 7, 2015 election.
STAFF RECOMMENDATION
Staff recommends adoption of the Resolution.
BACKGROUND / DISCUSSION
The Street Maintenance Program provides funding for the repair and renovation of the City’s street system.
The Fort Collins community has supported dedicated funding of the SMP since 1989 when it was funded
through Choices 95.
The current Street Maintenance Program tax will expire December 31, 2015. The Street Maintenance Program
is funded at approximately $15 million per year. This quarter-cent tax makes up nearly half of the yearly cost at
$6.5 million per year. Other program funding includes Keep Fort Collins Great ($7 million) and the General
Fund ($1.5 million.) The Street Maintenance Program maximizes the community’s investment in the street
network by performing ongoing maintenance before much more costly repairs or replacement is necessary,
extending the usable life of a street.
The program includes repair of concrete curbs, gutters, and sidewalks; construction of sidewalk access ramps;
repair of deteriorating asphalt; and the reconstruction, overlay, or seal coat operations on existing streets.
Street Maintenance funding has also been used to help pay to repair and replace aging bridges throughout the
city.
Since 2005, the center-line road miles in the City grew from 476 miles to more than 550 miles. Each year,
approximately 135 lane miles of Fort Collins streets are improved. The City’s policy is to keep the street
system at a Level of Service (LOS)-Grade B or better and the Street Maintenance Program is critical to
meeting this goal. Fort Collins’ overall street network is the City’s largest capital asset, and maintaining and
preserving this asset is a key responsibility of municipal government.
Having a dedicated funding source for the Street Maintenance Program through a ¼-cent sales tax ensures
that streets are maintained while sharing the cost burden with non-city residents that use our street system.
ATTACHMENT 4
Agenda Item 14
Item # 14 Page 2
FINANCIAL / ECONOMIC IMPACTS
This is a proposed tax extension, not a new tax, and as such will not be an increase in current tax revenue.
This is a sales and use tax collected on all taxable purchases, which does not include prescription drugs and
food for home consumption. The extension results in the continued ¼-cent tax which is the equivalent of 25
cents on a $100 taxable purchase. Current revenue projections over 10 years are approximately $83 million
(projection updated January 2, 2015). The term of the tax renewal is January 1, 2016 through December 31,
2025.
PUBLIC OUTREACH
The Street Maintenance Program tax renewal was included at all outreach events for the capital improvement
tax. Outreach was most extensive from August to October 2014 and focused on education and the suggested
term of the tax, which ranged from 10-20 years. Based on public input, the renewal is most strongly supported
for a 10-year term.
ATTACHMENTS
1. Project History List (PDF)
2. Powerpoint presentation (PDF)
- 1 -
RESOLUTION 2015-019
OF THE COUNCIL OF THE CITY OF FORT COLLINS
SUBMITTING TO THE REGISTERED ELECTORS OF THE CITY AN ORDINANCE
EXTENDING THE EXPIRING TWENTY-FIVE HUNDREDTHS PERCENT (0.25%)
“BUILDING ON BASICS” CAPITAL PROJECTS SALES AND USE TAX FOR A PERIOD
OF TEN YEARS FOR THE PURPOSE OF OBTAINING REVENUE FOR THE
“COMMUNITY CAPITAL IMPROVEMENT PROGRAM” CAPITAL PROJECTS AND
RELATED OPERATION AND MAINTENANCE,
AND SUPERSEDING RESOLUTION 2015-012
WHEREAS, the City of Fort Collins has enacted a comprehensive sales and use tax,
which enactment is codified in Chapter 25, Article III of the Code of the City of Fort Collins (the
“Code”); and
WHEREAS, the amount of such tax presently imposed by the Code, as contained in Code
Section 25-75(a), includes a twenty-five hundredths percent (0.25%) tax for the construction of
certain capital projects as identified in Ordinance No. 092, 2005, which Ordinance was approved
by City voters on November 1, 2005, and which projects were approved by the City Council in
accordance with the provisions of said Ordinance (the “Existing Tax”); and
WHEREAS, the Existing Tax will expire at midnight at the end of December 31, 2015;
and
WHEREAS, the City Council believes it would be in the best interests of the City’s
citizens to extend the Existing Tax for an additional ten-year period to generate additional
revenues for purposes similar to those for which the Existing Tax was originally imposed; and
WHEREAS, under Article X, Section 20 of the Colorado Constitution, any such
extension requires a vote of the people; and
WHEREAS, during a series of work sessions on the “Community Capital Improvement
Program,” the City Council has reviewed a variety of proposed capital projects and the operation
and maintenance needs for some of those projects, and has identified certain of the projects
which it believes are necessary for the ongoing provision of City services; and
WHEREAS, on January 20, 2015, the City Council adopted Resolution 2015-012, to
submit the question of extension of the Existing Tax to the voters; and
WHEREAS, in the intervening days a question was raised as to whether a protest of the
approved ballot language had been properly lodged pursuant to City Code Section 7-156; and
WHEREAS, in order to resolve any dispute with respect to the same, the Council has on
this date, prior to adoption of this Resolution, conducted a hearing on said protest and has
resolved the same through adoption of a motion expressing the Council’s conclusions regarding
the protest; and
- 2 -
WHEREAS, the purpose of this Resolution is to exercise the Council's authority under
Article X, Section 3 of the City Charter to submit to a vote of the people the question of
extending the Existing Tax for a period of ten years for the purpose of funding the planning,
design, real property acquisition, construction, and operation and maintenance for the
“Community Capital Improvement Program” capital projects.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF
FORT COLLINS as follows:
Section 1. That this Resolution shall supersede Resolution 2015-012 in all respects
and Resolution 2015-012 shall be of no further force or effect.
Section 2. That there is hereby referred to the registered voters of the City at the next
regular City election to be held on April 7, 2015, the question of whether the following ordinance
should be adopted:
ORDINANCE NO. 013, 2015
OF THE COUNCIL OF THE CITY OF FORT COLLINS
EXTENDING THE EXPIRING TWENTY-FIVE HUNDREDTHS PERCENT (0.25%) “BUILDING ON BASICS”
CAPITAL PROJECTS SALES AND USE TAX FOR A PERIOD OF TEN YEARS FOR THE PURPOSE OF
OBTAINING REVENUE FOR THE “COMMUNITY CAPITAL IMPROVEMENT PROGRAM” CAPITAL
PROJECTS AND RELATED OPERATION AND MAINTENANCE
WHEREAS, the City of Fort Collins has heretofore enacted a comprehensive retail sales and use tax, which
enactment is codified in Chapter 25, Article III of the Code of the City of Fort Collins (the “Code”); and
WHEREAS, the amount of such tax presently imposed by the Code, as contained in Code Section 25-75(a),
includes a twenty-five hundredths percent (0.25%) tax for the construction of the capital projects identified in
Ordinance No. 092, 2005, which Ordinance was approved by the City’s voters on November 1, 2005, and which
projects were approved by the City Council in accordance with the provisions of said Ordinance (the “Existing
Tax”); and
WHEREAS, the Existing Tax is scheduled to expire at midnight at the end of December 31, 2015; and
WHEREAS, on February 3, 2015, the City Council adopted Resolution 2015-019 identifying various
projects that it believes should be funded by the extension of the Existing Tax, and submitting to the registered
electors of the City the question of whether an ordinance extending the Existing Tax for a period of ten years should
be enacted to obtain additional revenues for the planning, design, real property acquisition, construction, and
operation and maintenance for certain capital projects as part of the “Community Capital Improvement Program”;
and
WHEREAS, at a regular City election on April 7, 2015, the voters of the City of Fort Collins approved the
extension of the Existing Tax for the foregoing purposes and determined that, upon the expiration of the Existing
Tax, it is necessary and desirable that a twenty-five hundredths percent (0.25%) sales and use tax be imposed on all
items taxable under the Code, subject to the exceptions contained in City Code Section 25-73(c) and (d) and Section
25-74(b), commencing January 1, 2016, for the purpose of obtaining revenues for the planning, design, real property
acquisition, and construction of the aforementioned capital projects and for the operation and maintenance of some
of them.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as
follows:
- 3 -
Section 1. That Section 25-75(a) of the Code of the City of Fort Collins is hereby amended to read
as follows:
Sec. 25-75. Rate of tax.
(a) The amount of tax hereby levied is three and eight-five hundredths (3.85) percent of the purchase
price of tangible personal property or taxable services except that the amount of use tax levied on
manufacturing equipment is three (3) percent of the purchase price. Twenty-five one-hundredths (0.25)
percent of such amount is a tax which shall expire at midnight on December 31, 2030, the proceeds of
which shall be used for the purposes of acquiring, operating and maintaining open spaces, community
separators, natural areas, wildlife habitat, riparian areas, wetlands and valued agricultural lands, and to
provide for the appropriate use and enjoyment of these areas by the citizenry, pursuant to the provisions of
the Citizen-Initiated Ordinance No. 1, 2002. Another twenty-five one-hundredths (0.25) percent is a tax
which shall expire at midnight on December 31, 2015, the proceeds of which shall be used for the purpose
of paying the costs of planning, design, right-of-way acquisition, incidental upgrades and other costs
associated with the repair and renovation of City streets, including, but not limited to, curbs, gutters,
bridges, sidewalks, parkway shoulders and medians. Another twenty-five one-hundredths (0.25) percent is
a tax which shall expire at midnight on December 31, 20152025, the proceeds of which shall be used for
the purpose of paying the costs of planning, design, right-of-wayreal property acquisition, and construction
and at least seven (7) years of operation and maintenance of certainthe capital projects specified in the
"Building on BasicsCommunity Capital Improvement Program" and five (5) years of operation and
maintenance for those capital projects specified in Ordinance No. 013, 2015,capital project program, all of
which shall be subject to the terms and conditions of Ordinance No. 92, 2005Ordinance No. 013, 2015.
Another eighty-five one-hundredths (0.85) percent is a tax which shall expire at midnight on December 31,
2021, the proceeds of which shall be used in accordance with the terms and conditions of Ordinance No.
126, 2010.
Section 2. That the revenue generated by the twenty-five hundredths percent (0.25%) sales and use
tax imposed pursuant to this Ordinance (the “Tax”) shall be used, to the extent that such revenues are sufficient, for
the planning, design, real property acquisition, construction, and operation and maintenance for the capital projects
described on Exhibit “A”, attached hereto and incorporated herein by this reference (the “Projects”), subject to the
following terms and conditions:
(a) The design, scheduling and amount of tax revenue to be set aside for the planning, design, real
property acquisition, and construction for the Projects, and the operation and maintenance for
those Projects for which operation and maintenance funding is provided on Exhibit “A”, shall be
determined by the City Council; provided, however, that no decision regarding the design or cost
of any of these Projects shall substantially change its essential character or eliminate any of its
components from that described on Exhibit “A”, except as expressly permitted under subsection
2(b) below, nor shall any decision fund less than five (5) years of operation and maintenance for
any of the Projects for which such funding is provided for on Exhibit “A”, unless the Council has
determined that such Project shall not be undertaken pursuant to subsection 2(b), below. This
provision shall not be construed as prohibiting the City Council from:
i. enhancing the scope or design of any of the Projects, or increasing the cost thereof, unless
such enhancement or increase in cost would substantially impair the City's ability to fully
fund the planning, design, real property acquisition, and construction for any of the
Projects described on Exhibit “A” or the operation and maintenance for five (5) years
from the date of completion of their construction for those of the Projects for which
operation and maintenance funding is provided on Exhibit “A”, excepting only the
Projects, if any, which have been eliminated by the City Council pursuant to the
provisions of subsection (b) below; or
- 4 -
ii. using any other revenues lawfully available to the City to enhance the scope or design of
any of the Projects, or to fund, in whole or in part, the planning, design, real property
acquisition, construction, operation and/or maintenance for any such Projects.
(b) The planning, design, real property acquisition and construction for all of the Projects shall be
undertaken and completed by the City unless the City Council determines by resolution, after
receiving a recommendation from the City Manager, that it is no longer legally or financially
feasible to undertake and complete any of the Projects without substantially altering the essential
character of the same from that described on Exhibit “A” or, with regard to the Projects described
in subparagraphs (c) and (d) below, the contingency required for each of these Projects is not
reasonably likely to be satisfied.
(c) The use of any revenues generated by the Tax for construction of the “Downtown Poudre River
Enhancements and Kayak Park” (the “Poudre River Project”) shall be expressly contingent upon a
determination by the City Council, after receiving a report and recommendation from the City
Manager, that the City has received for the Poudre River Project at least $1,500,000 in any
combination of contributions and pledges of cash and other property acceptable to the City
Council. The City’s use of revenues generated by the Tax for the planning, design and real
property acquisition of the Poudre River Project shall not be subject to this contingency.
(d) The use of any revenues generated by the Tax for the real property acquisition for and construction
of the Gardens on Spring Creek Visitors Center Expansion (the “Gardens on Spring Creek
Project”) shall be expressly contingent upon a determination by the City Council, after receiving a
report and recommendation from the City Manager, that the City has received for the Gardens on
Spring Creek Project at least $1,000,000 of any combination of contributions and pledges of cash
and other property acceptable to the City Council. The City’s use of revenues generated by the
Tax for the planning and design of the Gardens on Spring Creek Project shall not be subject to this
contingency.
(e) The Projects shall be subject to all applicable provisions in Article XII of Chapter 23, as amended,
of the City Code relating to art in public places.
Section 3. That any revenues generated by the Tax and remaining unexpended and unencumbered
after the completion of the construction of all of the Projects described on Exhibit “A”, excluding any of these
Projects eliminated by the City Council under the provisions of Section 2(b) above, may, in the discretion of the City
Council, be used to fund additional operation and maintenance of the Projects or for the planning, design, real
property acquisition, construction, operation and/or maintenance for any other capital project approved by the City
Council.
Section 4. That the full amount of revenues derived from the Tax may be retained and expended by
the City, notwithstanding any state revenue or expenditure limitations including, but not limited to, those contained
in Article X, Section 20 of the Colorado Constitution.
Section 5. That the amendment of Section 25-75(a) of the City Code as set forth herein shall take
effect at 12:01 a.m. on January 1, 2016.
Section 6. That except as provided herein, all other provisions of Chapter 25 of the City Code shall
remain unchanged and in full force and effect unless otherwise rescinded or modified by action of the Council.
- 5 -
Exhibit A
Project Descriptions
Community Capital Improvement Program 2015
Estimated Capital
Cost
(2015 dollars)
Estimated
Annual
Operations and
Maintenance
Cost (2015
dollars)
Pedestrian Sidewalk/ Americans with Disabilities Act (ADA)
Compliance – Safe Routes to Everywhere
$14,000,000 No O&M Funds
This project will provide an annual fund to begin the implementation of a 52-year compliance program to
eliminate gaps in the City’s pedestrian network and improve ADA compliance.
Bicycle Infrastructure Improvements – Safe Routes to
Everywhere
$5,000,000 No O&M Funds
This project will provide an annual fund to begin implementation of the City’s 2014 Bicycle Master Plan.
This project will provide an annual fund to be used toward stand-alone bicycle infrastructure projects as
well as add-on elements to other projects that complete or enhance the City’s bicycle network. Projects
will enhance safety, provide wayfinding, and improve comfort and access for bicyclists.
Bus Stop Improvements – Safe Routes to Everywhere $1,000,000 No O&M Funds
This project will provide an annual fund to make ADA improvements and upgrade bus stops throughout
the City.
Downtown Poudre River Enhancements and Kayak Park $4,000,000 $50,000
This project creates a whitewater kayak park with viewing/picnic areas, adds a pedestrian bridge over the
river, improves access to the river and enhances the river’s habitat and beauty. The project also lowers the
river channel to improve flood mitigation and prevent flooding of College Avenue.
Bike/Ped Grade Separated Crossings Fund $6,000,000 $20,000
This project will provide an annual fund to construct top priority grade-separated bicycle and pedestrian
crossings across arterial roadways.
Transfort Bus Fleet Replacement $2,000,000 No O&M Funds
This project will provide an annual fund to meet the local match needed to replace heavy duty buses over
the next 10 years. This fund will be leveraged to receive an 80% match of federal and state grant funding.
Arterial Intersection Improvements Fund $6,000,000 No O&M Funds
This project will provide an annual fund for improvements to arterial intersections, prioritized by
congestion, with safety improvements for all travel modes.
Implementing Nature in the City $3,000,000 $100,000
This project will provide an annual fund to protect access to nature and the key natural spaces that define
our community by filling in gaps to achieve a 10-minute walk to nature or by enhancing species
connectivity, and by enhancing existing sites to provide greater habitat variety and natural experiences.
Gardens on Spring Creek Visitor’s Center Expansion $2,000,000 $40,000
This project will double the square footage of the Visitor’s Center at the Gardens on Spring Creek and will
add meeting rooms, a new entryway with gift shop, a conservatory, a small café, and additional office
- 6 -
Project Descriptions
Community Capital Improvement Program 2015
Estimated Capital
Cost
(2015 dollars)
Estimated
Annual
Operations and
Maintenance
Cost (2015
dollars)
space.
Southeast Community Center with Outdoor Pool $14,000,000 $230,000
This project will build a Community Center in southeast Fort Collins focused on innovation, technology,
art, recreation and the creative process. The Center will also have a large outdoor leisure pool with water
slides, sprays and jets, decks, a lazy river and open swimming area.
Affordable Housing Fund $4,000,000 No O&M Funds
This project will fund capital costs of development or rehabilitation of one or more public or private
housing projects designated specifically for low income individuals and families.
Lincoln Avenue West Segment Road Improvements $5,300,000 $42,200
This project will fund design, right-of-way, and construction of improvements to the west segment of
Lincoln Avenue located between the Union Pacific Railroad Tracks just north of Jefferson Street to 1
st
Street, including the Poudre River Bridge.
City Park Train $350,000 No O&M Funds
This project will bring back the City Park train in a new, expanded location in City Park.
Renovation of the Historic Carnegie Building $1,700,000 $25,000
This project will renovate the historic 1904 Carnegie library building to enhance its use as a Community
Center. The Center will host special events, community meetings, art exhibits and symposiums in the heart of
Downtown.
Linden Street Renovations Design & Construction $3,000,000 $12,000
This project will fund final design, construction, and right-of-way acquisition for the renovation of the
downtown 200 block of Linden Street.
Club Tico Renovation $250,000 No O&M Funds
This project will complete the renovation of Club Tico at City Park by renovating the kitchen and
restrooms and adding a second story deck overlooking Sheldon Lake and City Park Pool.
Willow Street Renovations Design & Construction $3,500,000 $11,000
This project will fund final design and construction of improvements to Willow Street between College
Avenue and Linden Street as identified in the River District Infrastructure Plan.
Section 3. That the proposed Ordinance No. 013, 2015, is hereby submitted to the
registered electors of the City of Fort Collins at the next regular election to be held on April 7,
2015, in substantially the following form:
- 7 -
CITY OF FORT COLLINS BALLOT ISSUE NO. ____
A CITY-INITIATED QUESTION
WITHOUT RAISING ADDITIONAL TAXES, SHALL THE CITY’S EXISTING 0.25%
SALES AND USE TAX (25 CENTS ON A $100 PURCHASE) APPROVED BY THE
VOTERS IN 2005 FOR THE “BUILDING ON BASICS” CAPITAL PROJECTS PROGRAM
BE EXTENDED FROM ITS CURRENT EXPIRATION AT THE END OF DECEMBER 31,
2015, THROUGH THE END OF DECEMBER 31, 2025; PROVIDED THAT THE REVENUE
DERIVED FROM THE EXTENSION OF SUCH TAX SHALL BE USED TO PAY THE
COSTS OF PLANNING, DESIGN, REAL PROPERTY ACQUISITION, AND
CONSTRUCTION OF THE FOLLOWING CAPITAL PROJECTS AS PART OF THE
"COMMUNITY CAPITAL IMPROVEMENT PROGRAM", AND TO PAY FIVE (5) YEARS
OF OPERATION AND MAINTENANCE (“O&M”) FOR CERTAIN OF THESE CAPITAL
PROJECTS AS SPECIFIED BELOW, ALL SUBJECT TO THE TERMS AND CONDITIONS
OF PROPOSED ORDINANCE NO. 013, 2015:
• PEDESTRIAN SIDEWALK/AMERICANS WITH DISABILITIES ACT
COMPLIANCE– SAFE ROUTES TO EVERYWHERE
• BICYCLE INFRASTRUCTURE IMPROVEMENTS – SAFE ROUTES TO
EVERYWHERE
• BUS STOP IMPROVEMENTS – SAFE ROUTES TO EVERYWHERE
• DOWNTOWN POUDRE RIVER ENHANCEMENTS AND KAYAK PARK (WITH
O&M)
• BIKE/PED GRADE SEPARATED CROSSINGS FUND (WITH O&M)
• TRANSFORT BUS FLEET REPLACEMENT
• ARTERIAL INTERSECTION IMPROVEMENTS FUND
• IMPLEMENTING NATURE IN THE CITY (WITH O&M)
• GARDENS ON SPRING CREEK VISITOR’S CENTER EXPANSION (WITH O&M)
• SOUTHEAST COMMUNITY CENTER WITH OUTDOOR POOL (WITH O&M)
• AFFORDABLE HOUSING FUND
• LINCOLN AVENUE WEST SEGMENT ROAD IMPROVEMENTS (WITH O&M)
• CITY PARK TRAIN
• RENOVATION OF THE HISTORIC CARNEGIE BUILDING (WITH O&M)
• LINDEN STREET RENOVATIONS DESIGN & CONSTRUCTION (WITH O&M)
• CLUB TICO RENOVATION
• WILLOW STREET RENOVATIONS DESIGN AND CONSTRUCTION (WITH O&M)
AND FURTHER PROVIDING THAT THE FULL REVENUES DERIVED FROM THE TAX
MAY BE RETAINED AND EXPENDED BY THE CITY FOR SUCH PURPOSES,
NOTWITHSTANDING ANY STATE REVENUE OR EXPENDITURE LIMITATION
INCLUDING, BUT NOT LIMITED TO, THE LIMITATION IN ARTICLE X, SECTION 20
OF THE COLORADO CONSTITUTION?
____ YES
____ NO
- 8 -
Passed and adopted at a regular meeting of the City Council held this 3rd day of
February, A.D. 2015.
__________________________________
Mayor
ATTEST:
_____________________________
City Clerk
- 1 -
RESOLUTION 2015-020
OF THE COUNCIL OF THE CITY OF FORT COLLINS
SUBMITTING TO THE REGISTERED ELECTORS OF THE CITY
AT THE APRIL 7, 2015 REGULAR CITY ELECTION
THE QUESTION OF THE EXTENSION OF THE EXPIRING QUARTER-CENT
SALES AND USE TAX USED TO FUND
THE CITY'S STREET MAINTENANCE PROGRAM,
AND SUPERSEDING RESOLUTION 2015-013
WHEREAS, the City of Fort Collins has enacted a comprehensive sales and use tax,
which enactment is codified in Chapter 25, Article III of the Code of the City of Fort Collins;
and
WHEREAS, the amount of such tax presently imposed by the Code, as contained in
Section 25-75(a) thereof, includes a twenty-five hundredths percent (0.25%) tax (the “Existing
Tax”) approved by the voters of the City on April 5, 2005, to fund the City’s street maintenance
program; and
WHEREAS, the City’s street maintenance program pays the costs of planning, design,
right-of-way acquisition, incidental upgrades and other costs associated with the repair and
renovation of City streets, including, without limitation, curbs, gutters, bridges, sidewalks,
parkway shoulders and medians (the “Street Maintenance Program”); and
WHEREAS, the Existing Tax will expire at midnight at the end of December 31, 2015;
and
WHEREAS, the City Council has directed City staff to propose ballot language for
placing a proposed extension of the Existing Tax to continue funding the Street Maintenance
Program on the ballot at the upcoming regular City election on April 7, 2015; and
WHEREAS, the Street Maintenance Program provides funding for the repair, renovation
and reconstruction of the City's street system which encompasses approximately 575 centerline
miles of arterials, collectors and residential streets and approximately 135 lane miles of these
streets are improved each year; and
WHEREAS, the Existing Tax is currently one of four sources for fully funding such
repairs and reconstruction and constitutes the single largest source of funding for the Program;
and
WHEREAS, by continuing this dedicated funding source, separate from the General
Fund, the City is not only able to provide a higher level of maintenance for City streets, but is
also able to obtain assistance in funding the Street Maintenance Program from non-City residents
that use the City's street system; and
- 2 -
WHEREAS, the Council believes it to be in the best interests of the residents of the City
to extend the Existing Tax for the Street Maintenance Program for a period of ten (10) years; and
WHEREAS, on January 20, 2015, the City Council adopted Resolution 2015-013, to
submit the question of extension of the Existing Tax to the voters; and
WHEREAS, in the intervening days a question was raised as to whether a protest of the
approved ballot language had been properly lodged pursuant to City Code Section 7-156; and
WHEREAS, in order to resolve any dispute with respect to the same, the Council has on
this date, prior to adoption of this Resolution, conducted a hearing on said protest and has
resolved the same through adoption of a motion expressing the Council’s conclusions regarding
the protest; and
WHEREAS, the purpose of this Resolution is to exercise the Council’s authority under
Article X, Section 3 of the City Charter to submit to a vote of the people the question of
extending the Existing Tax for a period of ten years for the purpose of funding the Street
Maintenance Program.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF
FORT COLLINS, as follows:
Section 1. That this Resolution shall supersede Resolution 2015-013 in all respects
and Resolution 2015-013 shall be of no further force or effect.
Section 2. That there is hereby submitted to the registered electors of the City at the
next regular City election to be held on April 7, 2015, the question of whether to extend the
Existing Tax for the City's Street Maintenance Program for a period of ten (10) years, which
question shall be submitted in substantially the following form:
BALLOT ISSUE NO. __
A City-initiated Question
WITHOUT RAISING ADDITIONAL TAXES, SHALL THE CITY’S EXISTING 0.25%
SALES AND USE TAX (25 CENTS ON A $100 PURCHASE) APPROVED BY THE
VOTERS IN 2005 FOR THE STREET MAINTENANCE PROGRAM BE EXTENDED FROM
ITS CURRENT EXPIRATION AT THE END OF DECEMBER 31, 2015, THROUGH THE
END OF DECEMBER 31, 2025; PROVIDED THAT THE REVENUES DERIVED FROM
SUCH TAX EXTENSION SHALL BE USED TO PAY THE COSTS OF PLANNING,
DESIGN, RIGHT-OF-WAY ACQUISITION, INCIDENTAL UPGRADES AND OTHER
COSTS ASSOCIATED WITH:
● THE REPAIR AND RENOVATION OF CITY STREETS, INCLUDING, BUT NOT
LIMITED TO, CURBS, GUTTERS, BRIDGES, SIDEWALKS, PARKWAYS,
SHOULDERS AND MEDIANS;
- 3 -
AND FURTHER PROVIDED THAT THE FULL AMOUNT OF REVENUES DERIVED
FROM THE TAX EXTENSION MAY BE RETAINED AND EXPENDED BY THE CITY
NOTWITHSTANDING ANY STATE REVENUE OR EXPENDITURE LIMITATION,
INCLUDING, BUT NOT LIMITED TO, THE LIMITATION CONTAINED IN ARTICLE X,
SECTION 20 OF THE COLORADO CONSTITUTION?
____ YES
____ NO
Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 3rd
day of February, A.D. 2015.
_________________________________
Mayor
ATTEST:
_____________________________
City Clerk
increase in the taxes they would be required to pay without an
extension - sounds so farfetched as to evoke the suggestion of
legal artifice and undermine confidence in our protestations that
we merely acknowledge the only reasonable meaning of, and
therefore the voters' intent embodied in, the constitutional
language itself.
Because I believe the plain and ordinary meaning of the term "tax
increase," in context, must include the "extension of an expiring
tax," and that the clear intent of TABOR is not only to require
voter approval for such an extension but also to provide the voters
sufficient information to make a rationale choice, I respectfully
dissent.
knocking down various straw men having little relation to his
actual objections. Finally, it concludes by suggesting [**30] that
its interpretation is supported by the fact that the electorate would
merely have been confused by notification that subjecting itself to
a future 0.1% sales and use tax would actually amount to
approving a tax increase.
With regard to the taxpayer's assertion that subsection (4)(a)
identifies the extension of an expiring tax as a particular kind of
tax increase, the majority finds it implausible that the term "tax
increase" could be intended to include tax extensions, largely
because the definitional provision of TABOR contains no specific
definition of "tax increase," expressly including extensions, see
maj. op at 14-15, and because no explicit reference to tax
extensions appears along with the term "tax increase" in
subsection (3), separately triggering the same notice requirements
for the extension of expiring taxes. See maj. op at 15-16. Of
course, none of the tax measures singled out in subsection (4)(a)
for voter approval appear individually in subsection (3), allowing
the natural inference that repeating them each by name would be
redundant in light of subsection (3)'s blanket reference to any "tax
increase."
Instead, "extension of an expiring tax" appears only [**31] in
subsection (4)(a) as one of a number of tax measures requiring
voter approval, including any "new tax," any "tax rate increase,"
any "mill levy above that for the prior year," any "valuation for
assessment ratio increase for a property class," and any "tax
policy change directly causing a net tax revenue gain to any
district," Colo. Const. Art. X, § 20 (4)(a) (emphasis added), all of
which clearly designate techniques for increasing taxes beyond
what they would be [*998] without such action. The broader
term, "tax increase," appears only in subsection (3), which sets out
the particular
Without raising additional taxes, shall the existing 0.1%
(one-tenth of a cent) City sales and use tax for Trails, Open
Space and Parks (TOPS) be extended from its current
expiration of April 30, 2009 through December 31, 2025 . . .
(Emphasis added). The ballot title accurately describes the nature
of the proposal as a tax extension and does not confuse the reader
by conflating "extension" with "increase." In contrast, if we were
to reword the title in terms of a tax increase and begin the ballot
title with "SHALL. . . TAXES BE INCREASED. . .," the election
notice would immediately beg clarification. The same problem
arises with respect to the title of the election notice which began
here with "NOTICE OF ELECTION ON A REFERRED
MEASURE." Rewording it to begin with "NOTICE OF
ELECTION TO INCREASE TAXES," would demand
explanation. While such clarification is certainly feasible, this
method of title drafting is needlessly circuitous. A better approach
[**27] is one that calls for clarity and precision, allowing the
voters to reach an informed and intelligent understanding of the
proposal without unnecessarily confusing the issue.
IV. Conclusion
8 This also comports with the mandate given to the state title board to set titles that "correctly and fairly express the true intent and meaning" of a
proposed law. See § 1-40-106(3)(b), C.R.S. (2005).
9 The original election notice from April 1, 1997, substantially complied with the Amendment 1 ballot title requirements for tax increases. The title
stated: "Shall City taxes be increased $ 5,500,000 annually and amounts raised thereafter from 0.10 sales and use tax expended by initiated ordinance
for building trails, neighborhood parks, and preserving open space?" The ballot text and the general provisions of the original 1997 proposal remain
essentially unchanged in the proposed April 2003 extension discussed herein.
"extension."
A tax "extension" suggests the continuation of a tax, whereas a
tax "increase" suggests a greater amount will be taxed.
Accordingly, a proposal to "extend" a tax implies that neither the
amount nor rate of the tax will change from its current rate.
Likewise, a tax "increase" indicates that the [**22] tax burden
borne by an individual taxpayer will be greater than its present
amount. The former indicates a continuation of the status quo,
whereas the latter suggests a change that will impose a greater
cost on the taxpayer.
Bruce asks us to interpret "tax increase" more broadly, in effect
suggesting that all forms of revenue increases are essentially tax
increases. This definition is both inaccurate and overbroad.
An increase in a tax's duration does not necessarily imply an
"increase" merely because both result in a net revenue gain. For
example, an increase in the number of taxpayers-without any
change in a given tax-would lead to an increase in net revenue.
However, few would consider this to be a "tax increase"
according to its everyday meaning. The tax burden upon an
individual taxpayer has not changed, and the tax has not increased
in any meaningful sense. Thus, although a tax increase may result
in a revenue increase, the two are neither contiguous in scope nor
synonymous. See generally Acosta, 892 P.2d at 268-69. Hence,
we reject Bruce's suggestion that revenue increases are the
equivalent of tax increases.
The plain and ordinary meaning of the term "tax [**23] increase"
does not appear to encompass a "tax extension." However,
because the issue appears close, we also consider the purposes of
the election notice provisions of Amendment 1 in deciding
whether to accept an expanded meaning of "tax increase" in lieu
of its plain and ordinary meaning.
in relevant part:
HN13 . . . districts must have voter approval in advance for:
(a) Unless (1) or (6) applies [annual district revenue is less
than annual payments on general obligation bonds, pensions,
and final court judgments, or in case of emergency], any new
tax, tax rate increase, mill levy above that for the prior year,
valuation for assessment ratio increase for a property class, or
extension of an expiring tax, or a tax policy change directly
causing a net tax revenue gain to any district.
Colo. Const. art. X, § 20(4) (emphasis added).
6 Both Colo. Const. art. X, section 20(2) and Art. VII, section 90(b) of the Charter of the City of Colorado Springs set forth definitions for a number
of terms contained within their respective provisions. Neither of those sections provides guidance here, however, as the definitions for "tax increase"
and "tax extension" are not included within either section.
7 The language in Section 90 of the Charter of the City of Colorado Springs largely mirrors this section. It states:
HN12 The following require voter approval in advance: (1) Except as provided by (f), any new tax, tax rate increase, mill levy above that of
the prior year, tax extensions, or tax exemption termination, or any change in City tax policy that directly provides a net gain in City or
enterprise tax revenue above the level that would otherwise exist.
§ 7-90(d)(emphasis added).
514. Further, in examining the plain language, we do not "read a
statute to create an exception that the plain language does not
suggest, warrant, or mandate." Lot Thirty-Four Venture, L.L.C., 3
P.3d at 35.
HN8 As this constitutional provision was enacted by voter
initiative and is not a statute enacted by the legislature, we do not
assume that all legislative drafting principles apply. Initiatives are
not subject to the same drafting processes as statutes. Nonetheless,
we apply generally accepted principles, such as according words
their plain or common meaning. We thereby enact the intent of
the voter in the same manner as we would otherwise seek to enact
the intent of the legislature.
B.
HN9 Section (3) requires election notice titles to state in order of
preference: "NOTICE OF ELECTION TO INCREASE
TAXES/TO INCREASE DEBT/ON A CITIZEN PETITION/ON
A REFERRED MEASURE." Colo. Const. art. X, [**15] §
20(3)(b). Accordingly, election notice titles for tax increases must
begin with the
of the city and county of Denver, except in: . . . (g) Summary proceedings initiated under articles 1 to 13 of title 1 and article 10 of title 31,
C.R.S.
from the district court concerning proceedings initiated under
article X, except for summary proceedings. § 13-4-102(1)(g),
C.R.S. (2005); 5 see Busse v. City of Golden, 73 P.3d 660, 662
(Colo. 2003). HN2 We
2 Although the court dismissed Bruce's statutory challenge to the ballot title pursuant to the five-day limit imposed by section 1-11-203.5(2), the trial
court nonetheless considered the ballot title infirmities in its analysis of whether the notice of election for Issue 1A was in substantial compliance with
Amendment 1, citing Cacioppo v. Eagle County School Dist. RE-50J, 92 P.3d 453, 463 (Colo. 2004) (statute does not bar constitutional challenges to
the substance of a ballot issue or ballot question).
3 Colo. Const. art. X, section 20(3)(b)(v) requires written comments to be filed with the election officer by 45 days before the election.
4 Section 13-4-110(1)(a) provides:
HN3 When a party in interest alleges, or the court is of the opinion, that a case before the court of appeals is not properly within the
jurisdiction of the court of appeals, the court of appeals shall refer the case to the supreme court. The supreme court shall decide the question of
jurisdiction in a summary manner, and its determination shall be conclusive.
5 Section 13-4-102 states in relevant part:
HN4 (1) Any provision of law to the contrary notwithstanding, the court of appeals shall have initial jurisdiction over appeals from final
judgments of the district courts, the probate court of the city and county of Denver, and the juvenile court
whether the ballot title requirements for "tax increases" in section
(3) of Amendment 1 applied to Issue 1A.
Section (3) sets forth a number of requirements for the form and
content of a ballot title. Additional title requirements apply when
the ballot issue involves a tax or debt increase. Section (3) is
silent, however, with respect to tax extensions. Accordingly, the
trial court attempted to resolve whether a "tax extension" is a "tax
increase" in the context of section (3). The court read "tax
increase" broadly to include "tax extension" and thereby found
that the additional ballot title requirements [**7] for tax increases
applied to the election notice of Issue 1A. The court recognized
this determination as pivotal to whether the election notice was
otherwise in substantial compliance with Amendment 1. In a
footnote, the court noted that if it had determined the election
notice requirements for tax increases did not apply to Issue 1A, it
[*991] "would have found substantial compliance despite the
other [Amendment 1] infirmities."
The trial court dismissed Bruce's remaining claims in favor of the
City. Bruce's direct challenge to the form of the ballot title was
dismissed because the trial court found that Bruce failed to
comply with the procedural requirements for
1 The relevant provisions of Colo. Const. art. X, sections 20(3)(b)-(c) and Article VII, section 90(c)(3) of the Charter of the City of Colorado Springs
are virtually identical. The analysis herein is the same for both provisions with respect to whether a tax extension is the equivalent of a tax increase.
We hereinafter refer to "Amendment 1" for both.
Judges: JUSTICE MARTINEZ delivered the Opinion of the
Court. JUSTICE COATS dissents.
Opinion by: MARTINEZ
Opinion
EN BANC
[*989] Attorneys for Amicus Curiae Colorado Municipal League
JUSTICE MARTINEZ delivered the Opinion of the Court.
In this case, we review the summary judgment order of the district
[**3] court invalidating the voters' approval of a measure to
extend an existing sales and use tax for "Trails, Open Space, and
Parks" in the April 2003 Colorado Springs municipal election.
The trial court found that Issue 1A's election notice did not
substantially comply with the requirements of article X, section
20 of the Colorado
Governments > Local Governments > Finance
HN10 See Colo. Const. art. X, § 20(3)(b).
Governments > Local Governments > Elections
Governments > Local Governments > Finance
HN11 While all ballot issues must comply with Colo. Const. art.
X, § 20(3)(b)(i), (v), an election for a tax increase must also
comply with Colo. Const. art. X, § 20(3)(b)(ii), (iii). Colo. Const.
art. X, § 20(3)(c) also requires ballot titles for tax increases to
begin "Shall (District) Taxes be Increased (first, or if phased in,
final, full fiscal year dollar increase) Annually?" The requirements
in Colo. Const. art. X, §(3)(b), (c) apply explicitly to tax increases
but make no mention of tax extensions.
Governments > Local Governments > Elections
Governments > Local Governments > Finance
HN12 See Colorado Springs, Colo. , City Charter § 7-90(d).
Governments > Local Governments > Elections
Governments > Local Governments > Finance
HN13 See Colo. Const. art. X, § 20(4).
Governments > Legislation > Effect & Operation > Amendments
Governments > Legislation > Interpretation
Colo. Const. art. X, except for summary proceedings. Colo. Rev.
Stat. § 13-4-102(1)(g) (2005)
Civil Procedure > Appeals > Appellate Jurisdiction > State Court
Review
HN4 See Colo. Rev. Stat. § 13-4-102.
Civil Procedure > Appeals > Appellate Jurisdiction > State Court
Review
Constitutional Law > ... > Case or Controversy > Constitutionality of
Legislation > General Overview
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