Judges: J.D. MacFARLANE, Attorney General
Filed Date: 9/14/1982
Status: Precedential
Modified Date: 7/5/2016
Senator Dan Schaefer President Pro Tem of the Senate State Capitol Building Denver, CO 80203
Dear Senator Schaefer:
This opinion letter is written in response to your request for an opinion concerning possible violations of S.B. 95.
QUESTION PRESENTED AND CONCLUSION
May a home rule city require industrial or commercial users of a private refuse service to pay user charges for the same type of waste services provided by the governmental body?
My conclusion is "no." A home rule city may not require either that industrial or commercial users of a private refuse service to pay user charges for waste services provided by the governmental body or that the issuance of building permits be made contingent upon use of the city's refuse service.
ANALYSIS
This opinion request arises from allegations that certain home rule cities are requiring commercial or industrial customers of private refuse services to pay a user charge for the cities' trash-hauling services and that these cities are making the issuance of building permits contingent upon employment of the cities' refuse service. Apparently, home rule cities are contending that they have the right to charge user fees or require employment of the refuse service by virtue of their status as home rule cities.
With regard to purely local or municipal matters, home rule cities may exercise exclusive jurisdiction by passing ordinances which supercede any state statutes concerning the same matters. Colo. Const. art.
Certain types of matters are of both a statewide and a local nature. Examples of such mixed matters are governmental immunity for tortious acts of municipal police officers (Delong v.City and County of Denver,
There are certain matters which are of purely statewide concern. The supreme court has held that the licensing of electricians and the regulation of trash collection are matters of statewide concern, thereby preempting conflicting home rule enactments.Century Electric Service and Repair, Inc. v. Stone,
The rationale of Century Electric andGivigliano are relevant to this opinion. InCentury Electric, Denver County denied Century Electric a permit to do work because it did not have a city license, even though it held a state license. Century Electric appealed the denial. The issue before the supreme court was whether licensing of electricians was a state or a local function. The court noted that the legislative determination that a matter is of statewide concern is entitled to great weight. In making its decision, the court considered the changing needs of the state and the impact of the enactment. Century Electric Service and Repair,Inc. v. Stone,
In Givigliano, the supreme court held that trash collection was a matter of statewide concern. The court based its conclusion on the legislative history as it existed at the time. At that time, trash collection and hauling was subject to the regulation of the Public Utilities Commission (PUC). The court determined that article
S.B. 95, passed in 1980, removed trash-hauling, except for the transport of sludge or fly ash, from the definitions of public utility, C.R.S. 1973,
C.R.S. 1973,
(7) Notwithstanding any other provision of law, nothing in this section shall prohibit the providing of waste services by a private person, provided such person is in compliance with applicable rules and regulations, within the limits of any city, county, city and county, town, or other local subdivision if such service is also provided by a governmental body within the limits of such governmental unit. Such governmental body may not compel industrial or commercial establishments or multifamily residences of eight or more units to use or pay user charges for waste services provided by the governmental body in preference to those services provided by a private person.
In effect, the legislature declared that notwithstanding the local nature of trash hauling, no local entity could restrict private refuse firms' access to its market. The legislature wanted to insure free access of trash-haulers to all markets within the state and to assure vigorous competition. Under the rationale of Century Electric Service and Repair, Inc. v.Stone, free access to markets is a legitimate statewide concern and is subject to state, rather than local, regulation, even though trash-hauling itself is a matter of local concern. Therefore, to the extent that any ordinance conflicts with C.R.S. 1973,
The same analysis applies to the requirement that the issuance of building permits is contingent upon the employment of the city's refuse service. Pursuant to C.R.S. 1973,
shall not grant an exclusive territory or regulate rates for the collection and transportation of ashes, trash, waste products or any other discarded material.
Subsection 5 explicitly mandates free access to markets. As noted above, free access is a matter of state concern. To the extent that a home rule city ordinance or regulation conflicts with
SUMMARY
A home rule city may not enforce an ordinance or regulation which requires industrial or commercial users of a private refuse service to pay user charges for waste services provided by the governmental body or makes issuance of a building permit contingent upon employment of city refuse service because that ordinance or regulation conflicts with C.R.S. 1973,
Very truly yours,
J.D. MacFARLANE Attorney General
MUNICIPAL CORPORATIONS
C.R.S. 1973,
AFFAIRS, LOCAL, DEPT. OF LEGISLATIVE BRANCH Senate
A home rule city may not enforce an ordinance which requires industrial or commercial users of a private refuse service to pay user charges for waste services provided by the governmental body or make issuance of a building permit contingent upon employment of the city refuse services.