Why was town counsel’s opinion delivered so late in the game?
Why does he assume the 10 cent fee is a tax?
What’s the risk of being sued?
Those were some questions that RTM Public Works Committee member David Bayne brought up at the March 21 meeting in regard to the plastic bag ordinance, which the town is currently considering.
Despite a unanimous decision to present an ordinance at the March 27 public "hearing that excludes small businesses from charging a 10 cent fee for recycled paper bags, there were still very mixed opinions at the meeting.
The Ordinance for the Management of Plastic and Paper Checkout Bags in Darien, which was proposed by BYO (Bring Your Own) Darien, would phase out plastic bags of less than 12 mil thickness and require a 10 cent charge for recycled paper bags, with the charge being retained by the retailer.
According to the revised proposed ordinance, stores under 10,000 square feet would permanently not be required to charge the fee. However, if they want to, they could.
Larger stores would need to be compliant with paper bags, beginning Jan. 1, 2020. Smaller stores would get to use what they have in inventory for one more year, until Jan. 1, 2021.
“This was a way to meet in the middle,” said Public Works Committee Chairman Monica McNally, in regard to giving the smaller stores the option of charging the 10 cents.
However, Bayne, who supports retaining the fee, expressed concern after reading the letter submitted last week by Town Counsel Wayne Fox — which was against charging a fee.
First, Bayne said he is very disappointed that Fox’s letter was delivered to the committee so late.
“I asked for an opinion from him back in January. That opinion was apparently delivered to the first selectmen’s office on February 14,” Bayne said. “I asked for it again at our last meeting on March 11, and again, we didn’t get it until March 19 — two days before this meeting.”
“It’s almost like this opinion was kept from us for a long period of time, and I don’t really understand why,” Bayne said. “Getting it so late has put us in a bad position.”
He added that if the town “really wants to be friendly to businesses, we’d be saying, ‘You have to charge the 10 cent fee because that’s going to make up the difference in the cost differential between plastic and paper.’”
Bayne further said of town counsel’s opinion that the fee could be considered a tax is “very superficial.”
“[Fox] assumes that the 10 cent fee is a tax without any analysis whatsoever,” Bayne said.
Bayne added that Law.com, which has a legal dictionary, defines tax “as the amount of money usually expressed as a percentage of the purchase price which government imposes upon persons and business entities so as to fund the cost of government. This fee does not fund the cost of government. The purpose of the fee is to regulate behavior. It’s a regulatory fee. It’s not a tax.”

Bayne also addressed Fox’s position that the town could be sued as not likely. “I think the risk here is very minimal and for people to just accept this letter at face value, I think it really does a disservice to the town,” he said.

He added that surrounding towns have passed a bag ordinance with a fee, and “they are much bigger towns, so if there’s gong to be a lawsuit, how likely is it that it will be Darien?”
RTM member Lindsey Kelly, who submitted a statement to McNally, doesn’t think a fee should be imposed at all. She wrote that, after speaking with the head of the Greenwich Chamber of Commerce, a town that does not impose a fee, “it appears that compliance has been achieved and there have been very few objections or complaints, if any at all, from local businesses.”
However, RTM member Patrick Keane thinks that all stores should be required to charge a fee. In a statement that he submitted to McNally, he wrote, “I believe an ordinance in name only without teeth is a waste of time. I believe a 10-cent charge on the bags can have the same type of impact on our waste disposal problem that the five-cent deposit fee imposed on cans and bottles had many years ago.”
RTM members said they want to invite Fox to a future meeting to further understand his position on the issue, and ask him questions.