HomeMy WebLinkAboutStudy Session Agenda Packet 12-21-20STUDY SESSION AGENDA
CITY COUNCIL
CITY OF WHEAT RIDGE, COLORADO
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Citizen Comment on Agenda Items
1. Building materials use tax exemption for public housing authorities
2. Staff Report(s)
3. Elected Officials’ Report(s) ADJOURNMENT
Memorandum
TO: Mayor and City Council
FROM: Patrick Goff, City Manager
Jerry Dahl, City Attorney
DATE: December 16, 2020 (for December 21, 2020 Study Session)
SUBJECT: Building Materials Use Tax Exemption for Public Housing Authorities
ITEM: Section 22-68 of the Wheat Ridge Code of Law (Building materials and supplies) requires that “every person who builds, constructs, reconstructs…any building, dwelling or other structure…in the city…shall pay a use tax.” Section 22-67 of Code exempts public school,
Wheat Ridge Housing Authority and Renewal Wheat Ridge projects from the city’s use tax.
Jefferson County Housing Authority, d/b/a Foothills Regional Housing (“Foothills”), owns several low-income projects within the City, including the Caesar Square Apartments which is currently under renovation. Foothills paid building materials use tax on the Caesar Square and
two other projects in Wheat Ridge. They are requesting a refund of that use tax as they believe Foothills, as a housing authority is exempt from all taxes pursuant to Colorado State Statute.
PRIOR ACTION: None
FINANCIAL IMPACT: Building materials use tax in Wheat Ridge is calculated at 60% of the building permit value of a project multiplied by the current sales and use tax rate in Wheat Ridge of 3.5%. Therefore, a
construction project valued at $5.0 million would owe $105,000 in building materials use tax.
Foothills Regional Housing has pulled three permits on two current construction projects in Wheat Ridge and paid a total of $67,509.20 in building materials use tax. They are mid-way through these projects and expect to pull additional permits in the future. Foothills is requesting a
refund of this amount as they believe their organization is exempt from building materials use tax.
BACKGROUND: On October 20, 2020, Foothills submitted three claims for refund of building materials use tax
paid on permits for two projects in Wheat Ridge as they believe Foothills in exempt from City building materials use tax pursuant to State Statute. The City’s Finance Division denied those refund claims on October 30, 2020 based on direction from the City Attorney’s Office.
Item No. 1
Building Materials Use Tax Exemption December 16, 2020 (for December 21, 2020 Study Session)
Page 2
The City of Wheat Ridge adopted a home rule charter under Colorado’s constitution. This means that in matters that the law has defined as of “local and municipal concern”, the City’s ordinances prevail, if there is a conflict with a State law. One of those areas of local concern is
the City sales and use tax. Tax exemptions created in State law, such as the exemption adopted
by the Legislature through HB16-1006, exempting public housing authorities from all taxes, does not apply in home rule municipalities. This was most recently reaffirmed by the Colorado Supreme Court in Winslow Construction v Denver where the Court ruled a State tax exemption did not apply to home rule municipalities.
Holland & Hart, attorney’s for Foothills, disagrees with the City Attorney’s Office interpretation of the law and, on November 25, 2020, submitted a petition to the City for a hearing on claims for refund. Staff communicated with Foothills that this issue would be brought forward to City Council for determined if an exemption would be granted through an amendment to Wheat
Ridge Code.
The proposed ordinance would extend the City’s present building materials use tax exemption to all “housing authorities”, as defined in State law. This would mean that such purchases by Foothills and the Wheat Ridge housing authorities (as well as any other public housing authority
that may be operating in the City) would be exempt. Additionally, the ordinance makes the
exemption effective from July 16, 2020 and directs refund of any taxes collected after that date. This would authorize the refund of use taxes paid by Foothills on July 17, 2020. Foothills protest to the City’s denial of a request for a refund of these taxes is pending; the adoption of this ordinance would resolve the issues in the protest.
The present use tax exemption specifically exempts Wheat Ridge Housing Authority purchases of building materials. In order to avoid legal issues of alleged “special legislation”, the better drafting practice is to describe the category of undertaking or activity being exempted, rather than naming a particular beneficiary. The proposed ordinance corrects this drafting issue.
Subsection 22.67(3) also specifically names the City urban renewal authority as beneficiary of the tax exemption, thus raising the same drafting issue described above. The proposed ordinance cleans up this language, by substituting a generic reference to “urban renewal authorities”, as defined in State law, for the specific reference to Renewal Wheat Ridge.
RECOMMENDATIONS: Although there are differing opinions concerning the tax exemption for housing authorities, which could be litigated in court, Staff recommends that council amend the Wheat Ridge Code of Laws to provide for a building materials use tax exemption for public housing authorities. An
exemption from City building materials use tax will align the City’s Code with State Statute and
the current exemption in City Code of the Wheat Ridge Housing Authority. MEMO PREPARED/REVIEWED BY: Jerry Dahl, City Attorney
Patrick Goff - City Manager ATTACHMENTS: 1. Petition for a Hearing on Claims for Refund, dated November 25, 2020 2. Draft Ordinance
T (303) 295-8000 F (303) 295-8261
555 17th Street, Suite 3200 Denver, CO 80202-3921
Mailing Address: P.O. Box 8749 Denver, CO 80201-8749 www.hollandhart.com
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Arthur A. Hundhausen
Phone:(303) 295-8548
Fax:(303) 975-5498
ahundhausen@hollandhart.com
November 25, 2020
VIA E-MAIL (cmiller@ci.wheatridge.co.us)
Mr. Chris Miller
City Treasurer
City of Wheat Ridge
7500 West 29th Avenue
Wheat Ridge, Colorado 80033
Re: Petition for a Hearing on Claims for Refund
Jefferson County Housing Authority d/b/a Foothills Regional Housing
Dear Mr. Miller:
In accordance with Section 22-45(b) of the Code of Laws of the City of Wheat Ridge (the
“Code”), Jefferson County Housing Authority, d/b/a Foothills Regional Housing (the
“Housing Authority”), by its attorneys, petitions for an informal hearing on three Claims
for Refund of Wheat Ridge use tax filed by the Housing Authority on October 20, 2020
(the “Claims). Copies of the Claims are enclosed with this petition for a hearing. The
City of Wheat Ridge (the “City”) denied the claims via an e-mail from Mark Colvin to the
Housing Authority dated October 30, 2020 (the “Denial”). A copy of the Denial is also
enclosed with this petition for a hearing.
The Housing Authority is an “authority” or “housing authority” as such term is defined in
C.R.S. § 29-4-502. As a county housing authority, the Housing Authority’s primary
function is to effect the planning, financing, acquisition, and construction of dwelling
accommodations at rental prices within the means of families of low or moderate income
within the boundaries of Jefferson County, Colorado, including the City of Wheat Ridge
(the “City”).
C.R.S. § 29-4-507 states that a county housing authority and the property of such an
authority “shall be exempt from all taxes and special assessments on the same basis and
subject to the same conditions as provided for city housing authorities in sections 29-4-
226 and 29-4-227.”
ATTACHMENT 1
Mr. Chris Miller
City of Wheat Ridge
November 25, 2020
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Under C.R.S. § 29-4-227(1)(b),
A project that is owned by, leased to, or under construction by
an entity that is wholly owned by an authority, an entity in
which an authority has an ownership interest, or an entity in
which an entity wholly owned by an authority or of which an
authority is the sole member has an ownership interest is
exempt from both property tax and, during construction, from
the payment of sales tax and use tax to the state or any county,
city and county, municipality, or other political subdivision of
the state in proportion to the percentage of the project that is
for occupancy by persons of low income.
(emphasis added).
As outlined in the Claims, the Housing Authority owns several low-income projects within
the City of Wheat Ridge, including the Caesar Square Apartments, that have been and
continue to be 100% occupied by persons of low income (collectively, the “Projects”).
The Housing Authority recently became aware that City sales and/or use tax was paid in
connection with the construction of the Projects, pursuant to the City’s building permit
process. The Claims requested a refund of such use tax on the basis of the exemption
provisions outlined above.
The Denial asserts that the City will not follow C.R.S. § 29-4-227(1)(b), even though such
provision references an exemption from the payment of sales and use tax “to the state or
any county, city and county, municipality, or other political subdivision of the state.” The
Denial cites the City’s home rule municipality status under the Colorado Constitution, as
well as the case of Winslow Construction v. City & County of Denver, 960 P.2d 685 (Colo.
1998), for the proposition that: “tax exemptions created by Colorado state law . . . do not
apply in home rule municipalities.”
The Housing Authority disagrees with the City’s conclusion as a basic matter and requests
that the City promptly refund all of the City use tax paid in connection with the
construction of the Projects, plus statutory overpayment interest.
In accordance with Code Section 22-45(b), the Housing Authority provides the following
information in support of its petition for a hearing:
Mr. Chris Miller
City of Wheat Ridge
November 25, 2020
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A. Taxpayer Name: Jefferson County Housing Authority d/b/a Foothills
Regional Housing.
B. Taxpayer Address: 7490 West 45th Avenue, Wheat Ridge, CO 80033.
C. Taxpayer License Number: n/a
D. Copy of notice sent by Wheat Ridge: See copy of Denial, attached.
E. Taxable period: July 2020 (City use tax paid through City’s building permit
process). See below for details of amount disputed.
F. Amount Disputed: The Housing Authority’s request for refund seeks a
refund of $67,509.20 of City use tax paid in connection with the City’s building permit
process for the Projects:
$14,700 of such total was paid in connection with Permit 202000616 (9271 W. 48th
Ave) on or around July 17, 2020;
$25,509.20 of such total was paid in connection with Permit 202000673 (9355 West
48th – Caesar Square) on or around July 17, 2020; and
$27,300 of such total was paid in connection with Permit 202000676 (Site Work –
9355 W. 48th Ave. N. – Caesar Square) on or around July 17, 2020.
The Housing Authority also seeks interest on such overpaid amounts.
G. Statement of Grounds Upon Which Taxpayer Bases Its Claim: By their
terms, C.R.S. § 29-4-507 and C.R.S. § 29-4-227(1)(b) set forth an exemption from the
payment of sales and use tax “to the state or any county, city and county, municipality, or
other political subdivision of the state.”
The City is a municipality or political subdivision of the state, and the exemption
provided by these provisions was clearly designed by the legislature to apply to home rule
municipalities such as the City (note that the only jurisdictions that fit the “city and
county” category as found in C.R.S. § 29-4-227(1)(b) are the City and County of Denver
and the City and County of Broomfield, both of which are home rule jurisdictions).
Contrary to the City’s position as found in the Denial, Winslow Construction v. City
& County of Denver does not flatly shield the City from the application of the exemption.
Mr. Chris Miller
City of Wheat Ridge
November 25, 2020
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Instead, Winslow outlines a “factor” test that takes into account several elements to
determine whether a state-level statute involves a matter of statewide concern. If so, then
the Colorado General Assembly may adopt legislation, including tax legislation, that
legally applies to a home rule jurisdiction and that such jurisdiction must recognize.
The “factor” test takes into account whether there is a need for statewide uniformity
of regulation, whether the municipal regulation has an extraterritorial impact, whether the
subject matter is one traditionally governed by state or local government, and whether the
Colorado Constitution specifically commits the particular matter to state or local
regulation.
In this case, it is clear that there is in fact a need for statewide uniformity – such
uniformity is necessary in order to encourage low-income housing where it is needed
throughout the state. If the City may ignore the state legislation and exemption that is
clearly meant to cover all state and local jurisdictions, the cost of low-income housing will
be greater within the City than in other jurisdictions, with a resulting shortage of needed
housing in the City.
Overall, this is a fundamentally different situation than the one described in
Winslow, where Denver collected use tax only to the extent that the Denver use tax rate
exceed the rate previously paid to another jurisdiction. Denver had a legitimate local
interest in preventing tax avoidance through purchases being made outside of Denver’s
city limits, where the sales/use tax was lower, where the purchased items were then
brought into Denver for use there. The imposition of the Denver use tax in this context
burdened the taxpayer no more than if the taxpayer had originally made the purchase in
Denver. The same cannot be said for the City’s denial of the exemption at issue, which
represents an absolute increase in tax compared to the scenario where the exemption is
allowed. The increased tax is not offset by any corresponding decrease in tax in any other
jurisdiction – it results in an additional cost of constructing low-income housing in the
City as compared to other home rule jurisdictions that allow the exemption.
In addition, if the exemption is unavailable in connection with City use tax, this
will create an obvious extraterritorial impact. Low-income housing will be diminished or
reduced within the City, even when it is needed. The result will be that persons who need
such housing will be forced to move to another jurisdiction where it is more readily
available.
All of these factors, as directly outlined in Winslow, indicate that the City is legally
required to comply with the state-level exemption for the Projects. In this regard, the
Housing Authority and its counsel are unaware of any other home rule municipality in
Mr. Chris Miller
City of Wheat Ridge
November 25, 2020
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Colorado that has denied this sales and use tax exemption solely on the grounds of the
municipality being a “home rule” jurisdiction. Other home rule jurisdictions have
recognized, and continue to recognize, this exemption.
Finally, as the Supreme Court states in Winslow, the Colorado constitution does
commit the imposition of municipal taxes to home rule jurisdictions; however, this is not a
blank check to home rule jurisdictions to avoid any and all state-level statutes concerning
taxation.
To the extent that an election is required by law at this time, the Housing Authority elects
to have proceedings subsequent to local remedies governed by section C.R.S. § 29-2-
106.1.
The Housing Authority will be represented by:
Arthur A. Hundhausen, #30360
Holland & Hart LLP
555 17th Street, Suite 3200
Denver, Colorado 80202
Telephone: 303-295-8548
Mark Kozik, #11437
Holland & Hart LLP
555 17th Street, Suite 3200
Denver, Colorado 80202
Telephone: 303-295-8191
A Power of Attorney authorizing our representation of the Housing Authority in this
matter is enclosed with this petition for a hearing.
The Housing Authority reserves the right to supplement this petition for a hearing by
raising additional grounds in support for its request for refund and by furnishing additional
information.
Mr. Chris Miller
City of Wheat Ridge
November 25, 2020
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Colorado Idaho
Montana
Nevada New Mexico
Utah
Washington, D.C. Wyoming
Very truly yours,
Arthur A. Hundhausen
for Holland & Hart LLP
Attorney for Jefferson County Housing Authority, d/b/a Foothills Regional Housing
enclosures
cc: Ms. Lori Rosendahl
Ms. Amy Case
AAH
Enclosures
15788676_v1
ATTACHMENT 2
CITY OF WHEAT RIDGE, COLORADO INTRODUCED BY COUNCIL MEMBER ___________ COUNCIL BILL NO. _______
ORDINANCE NO. _________ Series 2020 TITLE: AN ORDINANCE CONCERNING USE TAXES, AND IN CONNECTION THEREWITH, AMENDING SUBSECTION 22-
67(3) OF THE WHEAT RIDGE CODE OF LAWS TO PROVIDE A BUILDING MATERAILS USE TAX EXEMPTION FOR PUBLIC HOUSING AUTHORITIES
WHEREAS, the City of Wheat Ridge is a home rule municipality having all powers conferred by Article XX of the Colorado Constitution; and
WHEREAS, pursuant to its home rule authority, the City, acting through its City
Council (the “Council”), is authorized to adopt ordinances regulating matters concerning use taxation and exemptions from tax; and
WHEREAS, in the exercise of this authority, the Council has previously enacted subsection 22-67(3) of the Code of Laws, providing a building materials use tax
exemption for a specific housing authority, but not for all such authorities providing
service in the City; and
WHEREAS, the City Council now desires to extend a use tax exemption for building materials to all housing authorities providing services in the City and refund any tax collected since July 16, 2020.
NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO: Section 1. Section 22-67(3) of the Code is amended as follows:
(3) Building materials and supplies for city projects, PROJECTS FOR HOUSING AUTHORITIES, AS DEFINED AT C.R.S.29-4-203(1), AS AMENDED, OR PROJECTS FOR URBAN RENEWAL AUTHORITIES, AS DEFINED AT C.R.S. 31-25-103(8.50, AS AMENDED Wheat Ridge Housing Authority projects and Renewal Wheat Ridge projects,
whether purchased by the city, wheat Ridge Housing Authority A HOUSING AUTHORITY, AN URBAN RENEWAL AUTHORITY or Renewal Wheat Ridge, or a contractor for the same, ON OR AFTER JULY 16, 2020, shall be exempt from the city's use tax. TAXES COLLECTED ON SUCH PURCHASES SHALL BE REFUNDED TO THE TAXPAYER.
Section 2. Severability, Conflicting Ordinances Repealed. If any section, subsection or clause of this Ordinance shall be deemed to be unconstitutional or otherwise invalid, the validity of the remaining sections, subsections and clauses shall
-2-
not be affected thereby. All other ordinances or parts of ordinances in conflict with the provisions of this Ordinance are hereby repealed.
Section 3. Effective Date. This Ordinance shall take effect upon passage, as provided by Section 5.11 of the Charter. INTRODUCED, READ, AND ADOPTED on first reading by a vote of ___ to ___ on this ____ day of ____________, 2020, ordered published in full in a newspaper of
general circulation in the City of Wheat Ridge, and Public Hearing and consideration on
final passage set for ____________________, 2020 at 7:00 p.m., in the Council Chambers, 7500 West 29th Avenue, Wheat Ridge, Colorado. READ, ADOPTED AND ORDERED PUBLISHED on second and final reading by
a vote of ___ to ___, this _____ day of ______________, 2020.
SIGNED by the Mayor on this _____ day of ____________, 2020.
Bud Starker, Mayor ATTEST:
Steve Kirkpatrick, City Clerk
Approved as to Form Gerald E. Dahl, City Attorney
First Publication: Second Publication: Jeffco Transcript Effective Date:
Published: Jeffco Transcript and www.ci.wheatridge.co.us