Could a 10 cent charge on recycled paper bags for residents be viewed as a tax? That is the question that concerns Darien town counsel about the current proposed plastic bag ordinance, one he says he has raised with ordinance proponents for several months.
At the RTM (Representative Town Meeting) Public Works Committee on Monday, March 11, chairman Monica McNally said that Wayne Fox, who serves as Darien’s town counsel, has “serious concerns” about the validity of the 10 cent charge with regard to the proposed plastic bag ordinance, and would “advise against it.”
Watch the Public Works Committee meeting here from Darien TV79. The reference to Fox begins at 109:15 in the tape.
The ordinance, which is being proposed by BYO (Bring Your Own) Darien, phases out plastic bags of less than 12 mil thickness over a six-month period and requires a 10 cent charge for recycled paper bags, with the charge being retained by the retailer.
In a telephone conversation with the Darien Times on Tuesday, March 12, Fox expressed his concern that the ordinance can potentially be invalid.
On this point, Fox said: “A municipality is a creation of the state and has no inherent powers of its own, and has no powers of taxation except those specifically granted by the legislature. As a general principle, a municipality cannot impose a tax unless specifically authorized by the state statutes. the statutes allow the imposition of a tax on specific items.”
Further, he added, “There is no statute which authorizes a tax on plastic bags. My concern is that this could be looked upon as a tax imposed by a municipality. There are no court decisions on this specific issue. If determined to be a tax by a court, the ordinance could be ruled to be invalid.”
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Fox said that he has discussed his position on this issue for several months with McNally, as well as with the representatives of BYO.
He said that on a public policy issue such as this one, it’s not his job to give his opinion, one way or another. “That’s up to our board and legislative body to make that determination,” he said.
He added that his job, instead, is to review a proposed ordinance, express an opinion on whether or not it’s in legal order, and convey to his client whether or not there are any legal concerns that he should bring to their attention.
“I do have a concern, which I have an obligation to convey, as to the potential challenge that could be posed to such an ordinance if passed as it is proposed,” Fox said. “Under the law, the fact that this is my opinion as to a potential problem doesn’t mean that they have to vote it down. It’s up to the RTM to decide what they want to do.”
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At the RTM meeting, member Jim Cameron said Fox’s position on the proposed ordinance “could be a stake in the heart of a lot of work that’s been done.”