Darien town counsel concerned proposed plastic bag ordinance could be ruled ‘invalid’

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.”

Town counsel’s opinion “could be a stake in the heart of a lot of work that’s been done.”  — Jim Cameron

“If town counsel comes to the RTM and says he thinks this is not legal, I won’t vote for it,” Cameron said adamantly.
“He’s our town counsel, I’m not looking at the other towns,” he added, referring to other towns who have passed a plastic bag ordinance.

Other towns

A state bill could make this discussion no longer Darien’s problem. A house bill proposed during this legislation by State Rep. Kim Rose of Milford seeks to prohibit the use and distribution of single-use plastic bags while requiring a 15 cent fee on paper and resuable bags. It was most recently referred to the legislation’s Environmental Committee.
Westport passed a plastic bag ban more than a decade ago.
Just about a year ago, Greenwich passed a ban on plastic bags — without the proposed 23 cent fee. Greenwich’s Representative Town Meeting approved the ban after voting to remove the fee after an organized group and several others also called the fee a tax, according to the Greenwich Time. The critics also said the fee might have hurt low-income and fixed income residents.
Fox, who is also the town counsel for Greenwich, said that he had communicated the same concern to Greenwich, that he had with Darien. “It was a factor” in Greenwich’s decision to not impose the fee, he said. “I had the same concern for the potential problem.”
Stamford passed a plastic bag ordinance in October , to go into effect in April, that was the first in Connecticut to impose a fee related to the ban. A 10 cent charge is imposed for recyclable paper bags. The Stamford Advocate reported that consumers on government assistance and those over 65 are exempt from the charge.
Norwalk passed a plastic bag ban in January that will go into effect fully after six months. According to The Norwalk Hour, business owners could build in a 10 cent transaction charge to offset the cost of more expensive bag options.
New Canaan also recently passed a plastic bag ban.   Stores with more than 10,000 square feet of retail space will not be allowed to “sell, provide or distribute carryout bags made of paper” unless they are less than 600 cubic inches or are 100% recyclable with the words “reusable and recyclable,” conspicuously written on them, states the ordinance.
Those larger stores will be required to charge 10 cents per bag, according to the New Canaan ordinance.

Proponents say fee is needed

RTM member David Bayne disagreed with Cameron, and supports the 10 cent charge. He said that towns have an “inherent ability” to protect their environment and public health and safety.
“That’s what this environmental fee does,” Bayne added. “So, I don’t see why we’re prohibited from doing that. To gut the 10 cents really guts much of the purpose of this ordinance.”
In a telephone conversation on Thursday, March 14, Bayne said that he doesn’t see the 10 cent charge as a tax. “The revenue is not going to the government,” he said.
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“This is a fee that the stores would be imposing to recoup their cost,” he added. “It’s intended to promote the environment.”
In an email on March 14, Juliet Cain , co-founder of BYO Darien, told the Darien Times that she is also still in support of the 10 cent charge, and added that “a municipality has no authority to impose a tax. But we do not believe the charge is a tax. The charge is retained by the retailer, not the town, and is not used to provide any government services or funding,” Cain said. “This issue has been litigated in California and that case held that the charge was not a tax.”
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She further wrote that "the view of BYO Darien is that the town has the power under CT General Statutes 7-148 to issue an ordinance that provides for the 'protection and improvement' of the environment, as the proposed ordinance purports to do, and also has the power under that Statute to make regulations in furtherance of this general power."
"We believe that the proposed charge of 10 cents for a recycled paper checkout bag not only furthers the protection and improvement of the environment, but that the ordinance would fail to provide such protection and improvement without it," Cain said. "If plastic and non-recycled paper checkout bags are eliminated and there is no charge on recycled paper bags, people would simply default to taking these 'free' recycled paper bags."
“Our smaller retailers in particular are otherwise at a competitive disadvantage to the national chains that can afford to give these bags away at no specific charge,” Cain said. “So the charge is essentially an integral, nonseverable feature of the proposed ordinance, without which the environmental purpose of the ordinance is defeated.”
Connecticut towns that have passed a plastic bag ordinance with a fee are: Weston, New Canaan, New Britain, Stamford and Norwalk.
In an email on March 15, First Selectman Jayme Stevenson wrote that she inquired with the RTM drafters to see if, in their research, any municipalities used incentives rather than fees and penalties to eliminate single use plastic bags. “None could be found,” she wrote.

Avoiding a government mandate

Stevenson said that people should take personal responsibility for bringing their own bags for retail purchases without the need “for a heavy-handed government mandate.”
“I strongly support efforts to protect our environment but do not support government regulation that is unnecessarily business-unfriendly,” she added. “I hope the final proposed ordinance is sensitive to our hard-working small local retailers. The current economic environment in Connecticut is fragile at best and anything that government willfully imposes that makes the cost of doing business higher is moving us in the wrong direction.”
She further wrote that the ordinance drafters, including “Frank Kemp and Monica McNally” are doing “an incredible job of being thorough and thoughtful about what they will ultimately present to the RTM for debate. Attorney Fox’s opinion will be one piece of the discussion.”
When thinking about using reusable bags, Stevenson wrote that she is “reminded of the Nike slogan … Just do it!”
Bayne said that he doesn’t understand how so many towns around the state who have passed the bag ordinance “didn’t have an issue with this environmental charge.”
Since many other towns have already passed the paper bag ordinance, should Darien’s not pass, “we will be the outliers at that point,” Bayne said.
He said that the ultimate goal is for people to shop with reusable bags.
He added that that members of the RTM and BYO have been working very hard for a long time to have the ordinance passed.
“I’m excited to see it happen,” Bayne said. “We are almost there.”

Next steps

At the RTM - Public Health & Safety meeting at 7 p.m. on Monday, March 18, at Town Hall, the proposed plastic bag ordinance will be discussed further.
On March 27 at 8 p.m., the Public Works, Public Health and Safety, and Town Government Structure and Administration Committees of the RTM will hold a Public Hearing in the Town Hall Auditorium. The purpose of the meeting is to give the general public an opportunity to be heard concerning the proposed Ordinance for the Management of Plastic and Paper Checkout Bags in Darien.
This won’t be the first time the Representative Town Meeting has considered a ban on plastic bags. In 2012, Choose to Reuse, a group that included Darien High School students, successfully petitioned more than 2,000 signatures for a plastic bag ban. That movement failed to pass the Representative Town Meeting, with a 46 to 36 vote against a new ordinance. However, as evidence of the environmental impact of plastic continues to mount, a number of Connecticut towns are considering their own rules for plastic bags.

Additional reporting by Times editor Susan Shultz.