May 25, 2013

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Colorado Court of Appeals: Town’s Fees Regarding Oil and Gas Wells Clearly Prohibited by Statute

May 15, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Town of Milliken v. Kerr-McGee Oil & Gas LP on Thursday, May 9, 2013.

Oil and Gas Well Safety and Security Inspection Fees—CRS § 34-60-106(15).

The Town of Milliken (Town) appealed the trial court’s summary judgment in favor of Kerr-McGee Oil & Gas Onshore LP (Kerr-McGee). The judgment was affirmed.

In 1983, the Town enacted a series of ordinances that imposed fees on oil and gas wells within its boundaries. In 1996, the General Assembly amended existing state oil and gas law by enacting House Bill 96-1045. As relevant here, the new legislation, codified in part at CRS § 34-60-106(15), states:

No local government may charge a tax or fee to conduct inspections or monitoring of oil and gas operations with regard to matters that are subject to rule, regulation, order, or permit condition administered by the [Oil and Gas Conservation] [C]ommission. Nothing in this subsection (15) shall affect the ability of a local government to charge a reasonable and nondiscriminatory fee for inspection and monitoring for road damage and compliance with local fire codes, land use permit conditions, and local building codes.

In 2003, the Town enacted another ordinance concerning oil and gas wells that authorized the Town to inspect wells, equipment, and structures to determine compliance with the land use code, the Town fire code, the Town building code, and all other Town health or safety standards. The Town imposed an annual $400 inspection fee for each well within its boundaries that had not been plugged or abandoned. It was undisputed that the Town has never conducted the inspections described. In 2008, the Town enacted an ordinance imposing an annual $400 security inspection fee on each active oil and gas well within its boundaries. The fee was intended to offset the costs incurred by the Town’s police department for additional security checks that the well sites require. It was undisputed that the Town’s police conducted such checks on a regular basis before 2003. In 2010, the Town repealed and replaced the portion of the land use code containing both of the above provisions and replaced it with a provision authorizing inspections of wells and an annual $400 security fee on active oil and gas wells within the Town’s boundaries.

In 2010, the Town sued Kerr-McGee and others seeking to collect the security fees from 2003 onward. Kerr-McGee moved for summary judgment, which was granted in its favor. The district court held that the Town lacked the statutory authority to impose the fees. The Town appealed.

The Court or Appeals found it patently clear that oil and gas well safety and security are matters subject to rule, regulation, order, or permit condition administered by the Oil and Gas Conservation Commission. Thus, the Town’s fees under all of the ordinances above are clearly prohibited. The summary judgment was affirmed.

Summary and full case available here.

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SB 13-267: Permitting Judicial Review of a Final Action Regarding Land Use Regardless of Whether an Application for Reconsideration has been Filed with the Local Government

April 26, 2013 by Leave a Comment

On Friday, April 12, 2013, Sen. Jessie Ulibarri introduced SB 13-267 – Concerning Judicial Review of Land Use Determinations by Local Governments. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Upon any final action of a county, home rule or statutory city, town, territorial charter city, or city and county (local government) that has the effect of approving or denying, in whole or in part, the use or development of a particular parcel of real property, the bill makes the final action subject to judicial review, whether or not an application for reconsideration of the final action has been filed, unless the filing of an application for reconsideration is required to obtain judicial review under the land development regulations of the local government.

The bill authorizes any person adversely affected or aggrieved by final action by a local government concerning the use or development of a particular parcel of real property, and who was a party to or participated in the proceedings resulting in the final action, to commence an action for judicial review of the final action in the district court in which the real property is located within 30 days after the action becomes final. The bill specifies the parties against whom the action may be brought.

The bill specifies the required components of a complaint requesting judicial review, and additional procedures governing service of the complaint, certification of the record, and a schedule for briefing the matter before the district court.

Judicial review under the bill is limited to a determination of whether the local government or an officer of the local government has exceeded its jurisdiction or abused its discretion, based on the evidence in the record before the defendant local government or officer.

The bill requires the district court to determine the matter within 63 days of the plaintiff’s reply brief, or, if no briefs are filed, within 63 days of the filing of the defendant’s answer. If the district court has not decided the matter by the applicable deadline, the final action of the local government that is under review is deemed affirmed and valid without any further action by the district court, for all purposes including authorization to seek appellate review of the district court’s order. The decision of the district court is subject to appellate review as permitted by existing appellate rules.

The bill was introduced on April 12 and assigned to the Local Government Committee. The bill is scheduled for committee review on April 23 at 2 p.m.

Since this summary, the bill was postponed indefinitely by the Local Government Committee.

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Bills Regarding Employment Law, the Colorado Governmental Immunity Act, and More Signed by Governor

April 24, 2013 by Leave a Comment

On Friday, April 19, 2013, Governor Hickenlooper signed one dozen bills. He has currently signed a total of 137 bills this legislative session. The bills signed Friday include bills relating to employment law, damages under the Colorado Governmental Immunity Act, education law, and more. The bills are summarized here.

  • SB 13-013 - Concerning Peace Officer Authority for Certain Employees of the United States Secret Service, by Sen. Steve King and Rep. Beth McCann. The bill allows certain agents of the U.S. Secret Service to have limited peace officer authority while working in Colorado.
  • SB 13-018 - Concerning the Use of Consumer Credit Information by Employers, by Sen. Jessie Ulibarri and Rep. Randy Fischer. The bill restricts the use of employees’ and applicants’ consumer credit information by employers, and requires employers to allow employees or potential employees to explain any adverse information.
  • SB 13-023 - Concerning an Increase in the Limitation on the Amount of Damages that may be Recovered by an Injured Party under the “Colorado Governmental Immunity Act,” by Sens. Bill Cadman and John Morse and Reps. Claire Levy and Bob Gardner. The bill increases the amount of damages available under the CGIA to reflect inflation adjustments.
  • SB 13-042 - Concerning the Renewal of Distinguished Foreign Teaching Physician Licenses by a Person Ranked Lower than an Associate Professor, by Sen. John Morse and Rep. Mark Waller. The bill allows distinguished foreign physicians who are teaching at state medical schools to renew their licenses if they are at the level of assistant professor or higher.
  • SB 13-058 - Concerning the Verification Requirement for Parking Privileges for Persons with a Permanent Disability, by Sen. Kevin Grantham and Rep. Lois Landgraf. The bill waives the requirement that persons with permanent disabilities must prove their disabilities every three years in order to renew their parking permits.
  • SB 13-071 - Concerning Uniquely Identifying Student Numbers for Persons Enrolled in Adult Education Programs, by Sen. Evie Hudak and Rep. Rhonda Fields. The bill requires that the Educational Data Subcommittee must identify a method for applying a unique student identification number to individuals enrolled in adult education programs.
  • SB 13-139 - Concerning Supplemental On-Line Education Services, by Sen. Ellen Roberts and Rep. Don Coram. The bill designates the authority to contract for online education services to the Board of Cooperative Educational Services.
  • SB 13-184 - Concerning Repeal of the Criminal Penalties for Discrimination in Places of Public Accommodation, by Sens. Pat Steadman and Steve King and Rep. Paul Rosenthal. The bill repeals the criminal penalties for discrimination in public places but leaves in place the civil penalties.
  • SB 13-192 - Concerning the Ability of Government Agencies to Extend the Time Permitted for Action Based on the Results of Fingerprint-Based Criminal History Record Checks, by Sen. Rollie Heath and Rep. Max Tyler. The bill extends the amount of time government agencies may have before acting on the results of criminal background checks.
  • HB 13-1039 - Concerning Additional Sources of Moneys to be Credited to the Legislative Department Cash Fund, by Rep. Lois Court and Sen. Nancy Todd. The bill allows certain moneys collected to be allocated to the legislative department cash fund.
  • HB 13-1208 - Concerning Creative Districts and Authorizing the Creative Industries Division of the Colorado Office of Economic Development to Offer Incentives in the Form of Need-Based Funding for Infrastructure Development in State-Certified Creative Districts and to Provide Such Funding from any Moneys Appropriated to the Creative Industries Cash Fund for that Purpose, by Rep. Crisanta Duran and Sen. Linda Newell. The bill allows the Creative Industries Division in the Office of Economic Development to spend money to develop infrastructure for creative districts.
  • HB 13-1237 - Concerning the Voluntary Contribution Benefiting the Special Olympics Colorado Fund that Appears on the State Individual Income Tax Returns, by Reps. Dave Young and John Buckner and Sen. Mary Hodge. The bill reestablishes the Special Olympics tax return check-off, since it was not renewed in 2012 after its 2011 sunset.

For the complete list of Governor Hickenlooper’s 2013 legislative decisions, click here.

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HB 13-1292: Making Multiple Changes to Contracting Requirements for State and Local Government Agencies

April 24, 2013 by Leave a Comment

On April 2, 2013, Rep. Pete Lee and Sen. Andy Kerr introduced HB 13-1292 - Concerning Modifications to Procurement Requirements for Government Contracts Related to United States Domestic Employment. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Colorado hiring on public works projects. Current law requires a contractor to use at least 80 percent Colorado labor for any public works contract that is financed in whole or in part by state, county, school district, or municipal moneys (Colorado labor requirement). Any violation of the Colorado labor requirement is currently a misdemeanor punishable by fine, imprisonment in county jail, or both. Current law does not specifically require any state entity to enforce the Colorado labor requirement.

As introduced the bill repeals the existing criminal penalties and directs the department of labor and employment (CDLE) to enforce the Colorado labor requirement. In connection with its enforcement duties, CDLE is required to receive complaints about potential violations of the Colorado labor requirement, investigate such complaints, and impose fines for violations.

If a contractor has violated the Colorado labor requirements multiple times, the executive director of CDLE may, in his or her discretion, initiate proceedings to debar the contractor. The general assembly is required to appropriate any revenue from the fines collected by CDLE to CDLE to be used for its enforcement of the Colorado labor requirements.

The bill specifies that the Colorado labor requirement applies to each construction phase of the public works project separately. The governmental body financing a public works project may waive the Colorado labor requirement for a specific type or class of labor for a construction phase of a public works project if there is reasonable evidence to demonstrate insufficient Colorado labor in a specific type or class of labor to perform the work of that construction phase of the project.

Compliance with the requirements of the Colorado labor requirement will be calculated on the total taxable wages and fringe benefits, minus any per diem payments, paid to workers employed directly on the site of the project and who satisfy the definition of Colorado labor.

Nonresident bidder reciprocity. Colorado is one of many states that requires reciprocal treatment for a non-resident bidder who is from a state that offers a preference for resident bidders of that state (non-resident bidder reciprocity). Current law does not require any state entity to enforce the nonresident bidder reciprocity requirements.

The bill clarifies the current nonresident bidder reciprocity law by specifying that in any bidding process for public works in which a bid is received from a nonresident bidder who is from a state that provides a percentage bidding preference, a comparable percentage disadvantage shall be applied to the bid of that bidder.

The department of personnel (DPA) is required to determine which states provide a bidding preference on public works contracts for their resident bidders and to submit a report to the general assembly that includes the list as well as recommendations for the implementation and enforcement of the nonresident bidder reciprocity law. In addition, the bill requires that any request for proposals issued by a state agency or political subdivision of the state include notice of Colorado’s nonresident bidder reciprocity law.

Competitive sealed best value bidding for construction contracts for public projects. Currently, construction contracts for public projects are awarded through competitive sealed bidding. The bill creates a competitive sealed best value bidding process and authorizes construction contracts to be awarded either through the existing competitive sealed bidding process or the new competitive sealed best value bidding process.

The bill requires a contract under competitive sealed best value bidding to be solicited through an invitation for bids that identifies the evaluation factors upon which the award shall be based. The bill specifies certain evaluation factors to be included in the bids.

A contract shall be awarded to the bidder whose bid is determined in writing to be the most advantageous to the state and that represents the best overall value to the state, taking into consideration the price and other evaluation factors set forth in the invitation for bids.

The bill requires the executive director of a governmental agency or the president of an institution of higher education (institution), as applicable, that enters into a construction contract for a public project to disclose to the public the agency or institution’s rationale for selecting the competitive sealed bidding process, the competitive sealed best value bidding process, or the integrated project delivery process, which also currently exists in law, as applicable. The agency or institution is required to post the disclosure on its web site.

Disclosure of outsourcing contract duties by vendor. Current law requires any prospective vendor for a contract from the state for services to disclose where services will be performed under the contract, including subcontracts, and whether any services under the contract or subcontract are anticipated to be performed outside the state or the U.S. The bill modifies current law by requiring prospective vendors to make this disclosure for subcontracts only.

In addition, the bill requires each contract entered into or renewed by a governmental body to contain a clause that requires the vendor to provide written notice to the governmental body if the vendor decides, after the contract is awarded, to subcontract any part of the contract to a subcontractor that will perform such duties in a location outside the state or the U.S.

The notice must include the specific duties that will be outsourced and the reason for the outsourcing. The governmental body is required to provide the written notice from a vendor to the director of DPA (director), and the director is required to post the notice on the official web site of DPA. If a vendor fails to notify the governmental body that is a party to the contract of outsourcing, the governmental body may, in its discretion, void the contract.

Outsourcing of certain contract duties by governmental body prohibited. The bill prohibits a governmental body from awarding a contract to a vendor outside the U.S. that will perform the direct labor necessitated by the contract outside the U.S. Direct labor includes labor that is required to be performed under a contract when the governmental body has a direct business relationship with the vendor performing the contract. It does not include computer systems, including hardware and software that is not specifically designed pursuant to the terms of the contract.

Each prospective vendor that submits a bid or proposal to a governmental body is required to certify that the direct labor covered by the bid or proposal will be performed in the U.S.

A governmental body may submit to the director written request for a waiver of the direct labor requirements. A governmental body shall include in its written waiver request findings of one or more specified circumstances to justify the need for a waiver.

The director is required to post information regarding any waiver allowed on the official web site of DPA, periodically analyze the direct labor services for which waivers are granted to a governmental body, and work with governmental bodies to facilitate the performance of such outsourced direct labor services within the U.S. for future contracts.

Disclose use of foreign-produced iron, steel, and related manufactured goods. The bill requires the contractor for any public buildings or public works project that is funded in whole or in part by state moneys and that costs more than $500,000 to disclose to DPA the five most costly goods incorporated into the contract.

The bill specifies that, in the case of an iron or steel product, all manufacturing must take place in the U.S., and in the case of a manufactured good, a good will be considered manufactured in the U.S. if all of the manufacturing processes for the final product take place in the U.S. In order for a manufactured good to be considered subject to disclosure, the product must be manufactured predominantly of steel or iron.

DPA is required to develop and maintain a list of the 5 most costly goods that are incorporated into each contract and that are not produced in the U.S., as disclosed to DPA.

Public utilities commission consideration of best value metrics in request for proposal process. Currently, the public utilities commission is required to consider certain best value employment metrics when it evaluates electric resource acquisitions. The bill requires that the public utilities commission also consider the best value employment metrics in connection with requests for a certificate of convenience and necessity for construction or expansion of generating facilities, including pollution control or fuel conservation upgrades and conversion of existing coal-fired plants to natural gas plants.

The bill has been approved by the State, Veterans, & Military Affairs, Finance, and Appropriations Committees; it is scheduled for 2nd Reading on the floor of the House.

Since this summary, the bill passed Second Reading with amendments, passed Third Reading, and was assigned to the Finance Committee in the Senate.

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Colorado Court of Appeals: City’s Arguments for Taxation Engendered Reasonable Doubts and Must Be Resolved in City’s Favor

April 4, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in City of Golden v. Aramark Educational Services, LLC on Thursday, March 28, 2013.

Sales Tax Assessment—Summary Judgment.

Plaintiffs, the City of Golden (Golden) and Jeff Hansen, in his official capacity as Golden’s Finance Director, appealed the district court’s summary judgment in favor of defendant, Aramark Education Services, LLC (Aramark). The summary judgment was reversed and the case was remanded to the district court to reinstate the assessment.

The Colorado School of Mines (CSM) and Aramark entered into a Food Services Management Agreement (FSMA) in which they agreed that Aramark would be the exclusive operator of the food service facilities in the CSM Student Center, including the residential dining hall and the Food Court, the I-Club, and other facilities. Aramark operated the Slate Café, the I-Club, the Food Court, Java City, Mines Park Convenience Store, and CSM concessions.

No CSM representative ever handles or takes possession of food either before or after it reaches those facilities. Aramark provided food that generally fell into one of six categories for purposes of this case. Golden levies a sales tax on all sales of tangible property that occur in Golden, including food, unless specifically exempted under the Golden Municipal Code (GMC). Aramark only collects and remits sales tax on CSM campus food sales made with cash, checks, credit, or debit cards. Aramark argued that other sales (as parts of meal plans or added to ID cards) were exempt under the GMC for (1) wholesale sales and (2) direct sales to state institutions “in their governmental capacities only.” Golden disagreed that these were exempt and assessed sales tax.

Aramark protested and received a hearing before Golden’s Finance Director, who upheld the assessment. Aramark appealed to the Colorado Department of Revenue, which reversed. Golden appealed to the Denver District Court and on cross-motions for summary judgment, the district court entered summary judgment in Aramark’s favor. Golden appealed.

The Court of Appeals began by noting the presumption that taxation is the rule and exemption from taxation is the rare exception. All reasonable doubts are resolved against the exemption.

Golden argued that Aramark’s food sales on the CSM campus are wholesale sales. Aramark countered that it sells the food to CSM on a wholesale basis and CSM resells the food to its students, faculty, staff, and guests. The Court held that when individuals purchase food from Aramark-operated food service facilities on CSM’s campus, Aramark is making retail sales to the customers, which are subject to Golden’s sales tax. However, on the issue of when the food is provided as part of a CSM meal plan, a summer conference or summer camp meal plan, or using “Munch Money,” the issue is much closer. However, because Golden’s arguments have sufficient merit to engender reasonable doubts, the issue was resolved in Golden’s favor.

Golden also argued that it was error to conclude that Aramark was exempt from Golden’s sales tax under the GMC’s “governmental capacity” exemption. Such a sale must be a “direct sale” to a department or institution of the State of Colorado. CSM is an institution of the State of Colorado, but it is less clear whether Aramark directly sells its food to CSM. Regardless, the Court concluded that the sales do not qualify because they were not made to CSM in its “governmental capacity only.” CSM has the power to rent, lease, maintain, operate, and purchase buildings and facilities for dining. Aramark does not sell food to CSM in its capacity of doing those things.

The Court additionally found that the sales were made to CSM in both its governmental and proprietary capacities. It was purchasing food in its governmental capacity of educating students, as well as for the private advantage of the faculty and for itself as a legal entity. The summary judgment was reversed and the case was remanded with instructions to reinstate the tax assessment.

Summary and full case available here.

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Colorado Court of Appeals: Colorado Governmental Immunity Act Does Not Provide Waiver for Unimproved Areas of State Park

April 2, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Burnett v. State of Colorado, Department of Natural Resources, Division of Parks and Outdoor Recreation on Thursday, March 28, 2013.

Negligence—Camping—Immunity—Waiver—Colorado Governmental Immunity Act—Public Facility—Injuries—Dangerous Conditions.

Sara Burnett appealed the trial court’s judgment dismissing her negligence claim against the Colorado Department of Natural Resources (CDNR). The judgment was affirmed.

Burnett was injured while camping in a designated campground in Cherry Creek State Park, which is operated by the CDNR, when she was struck by a falling tree branch while sleeping in her tent. Burnett contended that the trial court erred in determining that the CDNR did not waive immunity for her injuries under the Colorado Governmental Immunity Act (CGIA). Although the campsite and campground were public facilities under the CGIA, the tree itself was not a public facility and the state retained immunity for injuries resulting from branches falling from trees in unimproved parts of a state park. Because there is no waiver of immunity under the CGIA for dangerous conditions in an unimproved area within a state park, the trial court did not err in dismissing Burnett’s negligence claim.

Summary and full case available here.

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SB 13-173: Continuing the Division of Gaming

March 15, 2013 by Leave a Comment

On Friday, February 8, 2013, Sen. Andy Kerr introduced SB 13-173 - Concerning the Continuation of the Division of Gaming, and, in Connection Therewith, Implementing the Recommendations in the 2012 Sunset Report by the Department of Regulatory Agencies. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill implements the recommendations of the Department of Regulatory Agencies’ review of the division of gaming (division) within the department of revenue by:

  • Continuing the division for nine years, until 2022;
  • Amending certain definitions to make it clear that electronic versions of games and gaming equipment are permitted;
  • Creating a new type of license to be issued to suppliers of equipment used remotely or directly in connection with gaming, including equipment used to monitor, collect, or report gaming transactions data or to calculate adjusted gross proceeds and gaming taxes, and defining terms related to the new type of license;
  • Redefining “vintage slot machine” to exclude slot machines introduced on the market before 1984 but fitted with component parts manufactured in 1984 or thereafter;
  • Requiring the Colorado limited gaming control commission (commission) to promulgate rules concerning the conditions under which the division may authorize a retail gaming license applicant to own or possess slot machines;
  • Permitting the commission to promulgate rules regarding procedures for depositing and accounting for tips or gratuities;
  • Clarifying that the statute concerning possession of slot machines includes retailers among the persons who may legally possess slot machines; and
  • Making conforming amendments.

    • The bill also makes technical changes to portions of the “Colorado Limited Gaming Act,” including:

  • Removing from the considerations the commission is required to take into account in setting the gaming tax on adjusted gross proceeds of gaming the consideration of other “for-profit” forms of gambling in Colorado;
  • Allowing a licensee to offer a new game or technology without the commission’s prior approval if offering the game or technology in compliance with the commission’s rules regarding field trials of new games or technology;
  • Authorizing the commission to promulgate rules concerning the redemption of chips to replace the requirement that a licensee issue a check to a patron redeeming surrendered chips in any amount over $25; and
  • Updating the provision concerning limited gaming events sponsored by charitable organizations to reflect the vote at local elections held in the cities of Central, Black Hawk, and Cripple Creek in November 2008 to expand the hours of operation for limited gaming.

    • The bill is assigned to the Finance Committee.

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    Governor Hickenlooper Signs Several Bills Into Law

    March 12, 2013 by Leave a Comment

    Governor Hickenlooper continues to sign bills into law as they make it through the House and Senate. To date, he has signed 46 bills into law since January 31, 2013. Most recently, he signed 15 bills on March 8, 2013. Five of these bills are summarized here.

    The governor also signed four bills on February 27, 2013, which are summarized here.

    Prior to this, the governor signed 23 Joint Budget Committee bills and two other bills on February 19, 2013.

    For a complete list of the governor’s legislative decisions to date, click here.

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    SB 13-158: Continuing Requirement of Preparation of Cost-Benefit Analyses for Proposes Rules

    March 11, 2013 by Leave a Comment

    On Monday, February 4, 2013, Sen. David Balmer introduced SB 13-158 – Concerning the Continuation of the Preparation of Cost-Benefit Analysis of Proposed Rules of Executive Branch Agencies, and, in Connection Therewith, Implementing the Recommendations of the 2012 Sunset Report of the Department of Regulatory Agencies. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

    The bill implements the recommendations of the sunset review and report on the requirements and procedures regarding the preparation of a cost-benefit analysis of proposed rules of state agencies, which recommended that the cost-benefit analysis of proposed rules be continued with modifications.

    Under current law, an agency proposing rules pursuant to the “State Administrative Procedure Act” (APA) submits a draft of the proposed rules to the executive director of the department of regulatory agencies (DORA) who then determines whether proposed rules may have a negative impact on economic competitiveness or on small business and directs the agency to perform a cost-benefit analysis. The bill shifts the responsibility for deciding whether an agency needs to conduct a cost-benefit analysis of proposed rules from the executive director of DORA to the agency that is proposing rules. If an agency determines that the proposed rules have a significant negative impact on small business, job creation, or economic competitiveness, then the agency must prepare a cost-benefit analysis.

    Under current law, the executive director of DORA decides whether a cost-benefit analysis is necessary no later than 20 days prior to the rule-making hearing, and the agency must complete the analysis and submit it to DORA no later than 5 days prior to the hearing, thereby limiting stakeholder input. The bill requires that the agency prepare the cost-benefit analysis prior to issuing the notice of rule-making. The bill requires the agency to submit the cost-benefit analysis and the draft of the proposed rules at the same time that the agency files the notice of rule-making with the secretary of state, thereby providing stakeholders and the public with the cost-benefit analysis and the proposed rules at an earlier time in the rule-making process.

    The agency determines the proper methods for the cost-benefit analysis and may consult with representative groups regarding the cost-benefit analysis.

    Under current law, a separate section of the APA provides the opportunity for any person, at least 15 days prior to the hearing, to request that the agency prepare a regulatory analysis of a proposed rule, which must be made available to the public at least 5 days prior to the rule-making hearing. The bill requires that the agency prepare a regulatory analysis for proposed rules that do not have a significant impact on small business, job creation, or economic competitiveness and for which the agency is not preparing a cost-benefit analysis. The bill requires that the agency prepare the regulatory analysis prior to issuing the notice of rule-making and to submit the regulatory analysis and the draft of the proposed rules at the same time that the agency files the notice of rule-making with the secretary of state.

    The agency is not required to prepare a cost-benefit analysis or a regulatory analysis for proposed rules that implement specific requirements of legislation enacted by the general assembly or that implement requirements of federal law or federal rules.

    The bill repeals the requirement that the preparation of the cost-benefit analysis be reviewed in the future through the sunset process. The bill is assigned to the Business, Labor, & Technology Committee.

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    Colorado Court of Appeals: Calculation of Tax Increment Financing for Suspended Portions of Urban Renewal Project Not Addressed by Statute

    March 7, 2013 by Leave a Comment

    The Colorado Court of Appeals issued its opinion in Northglenn Urban Renewal Authority v. Reyes, Adams County Assessor on Thursday, February 28, 2013.

    Summary Judgment—Tax Increment Financing—Urban Renewal Plan.

    In this case involving the financing of an urban renewal plan, plaintiff Northglenn Urban Renewal Authority (NURA) appealed the trial court’s summary judgment in favor of defendants Gil Reyes, in his official capacity as Adams County Assessor (Assessor), and the Board of County Commissioners of the County of Adams (BOCC). The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

    In 1992, Northglenn City Council (City Council) approved an urban renewal plan created by NURA for the redevelopment of blighted areas. The plan included tax increment financing (TIF). In 2004, the City Council by resolution substantially amended the urban renewal plan, adding several new tracts of property to the Northglenn Urban Renewal Area. No significant activity occurred on most of this new property from 2005 to 2009. In 2009, the City Council resolved to suspend the TIF for those properties within the renewal area without active urban renewal projects.

    In 2009, the assessor calculated the TIF revenue by removing the suspended property from the total assessed value but including the suspended property in the base value. The assessor also concluded that the TIF period for all properties would expire in 2017, twenty-five years after the effective date of the original plan.

    NURA disagreed with the method used to calculate the TIF following the TIF suspension. It sought mandamus relief and a declaratory judgment that the assessor improperly calculated the base value of the property in the urban renewal area, and improperly shortened the duration of the applicable TIF period for the additional properties. The trial court denied mandamus relief because the dispute involved the manner in which TIF revenues were calculated, not the assessor’s refusal to act. The Court of Appeals did not address this issue but turned only to the declaratory judgment claims.

    The Court agreed with NURA that the assessor erred in the calculation of TIF following the suspension. The parties agreed that the statute does not address the TIF calculation of the renewal area when TIF is suspended for a portion of the property. Likewise, the assessor’s manuals and appraisal procedures have no provisions that address this. The Court therefore tried to interpret the statute in accordance with legislative intent and objectives (commending this issue to the legislature to address it at some future date).

    Specifically, the Court agreed that the assessor should have removed the value of the suspended properties from the total assessed value and from the base value, not just from the total assessed value. The assessor’s method impeded the goals of addressing and financing renewal of blighted areas.

    NURA then argued that the twenty-five-year period did not increase the TIF provision in the renewal plan for those properties added after the effective date of the plan. The Court disagreed. The Court found that the plain language of CRS § 31-25-107(9)(a)(I) creates a reference date based on the effective date of adoption of a TIF provision. Although the City Council could have altered the dates when it added the new properties, it included them in the original urban renewal area and subjected them to the original plan . Therefore, they were bound by the original twenty-five-year period. The part of the trial court’s summary judgment regarding the assessor’s calculation of TIF was reversed, and the part regarding the twenty-five year TIF expiration was affirmed.

    Summary and full case available here.

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    SB 13-154: Continuing Division of Banking, and Implementing Recommendations of Sunset Report

    March 4, 2013 by Leave a Comment

    On Monday, February 4, 2013, Sen. Cheri Jahn introduced SB 13-154 – Concerning Continuation of the Division of Banking, and, in Connection Therewith, Implementing the Recommendations of the 2012 Sunset Report by the Department of Regulatory Agencies. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

    The bill implements the recommendations of the sunset review and report on the division of banking by:

    • Extending the repeal date of the division, including the banking board, until Sept. 1, 2024;
    • Repealing industrial banks;
    • Extending the time the banking board has to approve or disapprove a merger agreement between banks from 30 to 60 days;
    • Repealing the authority for and regulation of private family trust companies;
    • Allowing interstate banks to establish a branch in Colorado by either the creation of a new financial institution or through the acquisition of an existing financial institution; and
    • Requiring banks exercising trust powers to invest fiduciary funds within a reasonable time.

    The bill makes a variety of amendments to facilitate compliance with changes in federal law. The bill requires the directors of a trust company to have fidelity bonds for its officers and employees, to carry hazard insurance, and to annually specify the amount of the bonds and insurance in its minutes. On Feb. 20, the Business, Labor, & Technology Committee amended the bill and sent it to the Appropriations Committee for consideration of the fiscal impact.

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    SB 13-153: Continuing the Interagency Farm-to-School Coordination Task Force

    March 4, 2013 by Leave a Comment

    On Wednesday, January 30, 2013, Sen. Angela Giron introduced SB 13-153 – Concerning Continuation of the Interagency Farm-to-School Coordination Task Force. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

    The bill continues the interagency farm-to-school coordination task force indefinitely. The composition and responsibilities of the interagency farm-to-school coordination task force is updated. On Feb. 21, the Senate gave approved the bill on 3rd Reading.

    Since this summary, the bill was introduced in the House and assigned to the Agriculture, Livestock, & Natural Resources Committee.

    Filed Under: Legislation Tagged With: , , ,
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