Rust v. Board of County Commissioners of Summit County , 2018 COA 72 ( 2018 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
May 17, 2018
2018COA72
No. 17CA0436, Rust v. Bd. of Cty. Commr’s — Taxation —
Property Tax — Residential Land
A division of the court of appeals considers whether the Board
of Assessment Appeals properly determined that petitioner’s vacant
parcel of land should not be reclassified for tax purposes as
residential property under section 39-1-102(14.4)(a), C.R.S. 2017.
The only contested factor here was whether the subject parcel was
“used as a unit” with the residential parcel. Id. Based on the facts
presented, the division concludes that the use of the property
described by the petitioner/landowner did not satisfy the statutory
definition and, therefore, affirms the BAA’s order.
COLORADO COURT OF APPEALS 2018COA72
Court of Appeals No. 17CA0436
Board of Assessment Appeals Case No. 68924
Robert W. Rust,
Petitioner-Appellant,
v.
Board of County Commissioners of Summit County, Colorado; and Board of
Assessment Appeals,
Respondents-Appellees.
ORDER AFFIRMED
Division VI
Opinion by JUDGE ASHBY
Furman and Fox, JJ., concur
Announced May 17, 2018
Ryley Carlock & Applewhite, F. Clayton, III, Denver, Colorado, for Petitioner-
Appellant
Jeffrey Huntley, County Attorney, Franklin Celico, Assistant County Attorney,
Breckenridge, Colorado, for Respondent-Appellee Board of County
Commissioners
Cynthia H. Coffman, Attorney General, Krista Maher, Assistant Attorney
General, Denver, Colorado, for Respondent-Appellee Board of Assessment
Appeals
¶1 Petitioner, Robert W. Rust, appeals from the order of the
Board of Assessment Appeals (BAA), which affirmed the decision of
the Board of County Commissioners of Summit County, Colorado,
denying his request to reclassify land for tax purposes. We affirm.
I. Background
¶2 Mr. Rust bought a parcel of residential property in Summit
County, Colorado. About a year later, he purchased the adjacent,
undeveloped parcel (the subject property). He and his family have
used the two parcels, primarily as a winter vacation spot, for
decades.
¶3 The county assessor classified the subject property as vacant
land for the years 2013-2015, subjecting it to a tax rate that is
nearly three times the rate for residential property. Mr. Rust
challenged that classification and sought reclassification of the
subject property, asserting that both parcels should be classified as
residential under section 39-1-102(14.4)(a), C.R.S. 2017. After a
hearing, the BAA denied reclassification.
II. Discussion
¶4 Mr. Rust contends that the BAA misconstrued the “used as a
unit” element of section 39-1-102(14.4)(a). We disagree.
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¶5 Review of the BAA’s decision presents a mixed question of law
and fact. Aberdeen Inv’rs, Inc. v. Adams Cty. Bd. of Cty. Comm’rs,
240 P.3d 398, 400 (Colo. App. 2009); Farny v. Bd. of Equalization,
985 P.2d 106, 109 (Colo. App. 1999); see § 24-4-106(7), C.R.S.
2017. Thus, we defer to the BAA’s factual findings, but review de
novo its legal conclusions. “It is the function of the BAA, not
the reviewing court, to weigh the evidence and resolve any
conflicts.” Bd. of Assessment Appeals v. Sampson, 105 P.3d 198,
208 (Colo. 2005). We will uphold the BAA’s property classification
“if it (1) has a reasonable basis in law and (2) is supported by
substantial evidence in the record.” O’Neil v. Conejos Cty. Bd. of
Comm’rs, 2017 COA 30, ¶ 11; see Sampson, 105 P.3d at 208 (We
will set aside the BAA’s decision “only if it is unsupported by
competent evidence or if it reflects a failure to abide by the statutory
scheme for calculating property tax assessments.”).
¶6 The interpretation of statutes is a legal question that we review
de novo. Lobato v. Indus. Claim Appeals Office, 105 P.3d 220, 223-
24 (Colo. 2005). In so doing, we give deference to, but are not
bound by, the agency’s interpretation of the statutes it is charged
with administering, “provided the interpretation has a reasonable
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basis in the law and is supported by the record.” Marshall v. Civil
Serv. Comm’n, 2016 COA 156, ¶ 9; see BP Am. Prod. Co. v. Colo.
Dep’t of Revenue, 2016 CO 23, ¶ 15; Bd. of Cty. Comm’rs v. Colo.
Pub. Utils. Comm’n, 157 P.3d 1083, 1088 (Colo. 2007); Aberdeen
Inv’rs, 240 P.3d at 403. Our goal is to effectuate the legislative
intent, starting with the plain language of the statute. BP Am.
Prod., ¶ 15. If the words are unambiguous, we apply them as
written. Id. If, however, they are reasonably susceptible of more
than one meaning, we may look to extrinsic sources to aid our
interpretation. Id.
¶7 Section 39-1-102(14.4)(a) provides, “‘[r]esidential land’ means
a parcel or contiguous parcels of land under common ownership
upon which residential improvements are located and that is used
as a unit in conjunction with the residential improvements located
thereon.” In classifying land under this statute, county assessors
use the Assessor’s Reference Library (ARL) for guidance. The ARL
further defines the “used as a unit” element of the statute as
“[p]arcels of land, under common ownership, that are contiguous
and used as an integral part of a residence,” and it classifies such
parcels as residential property. 2 Div. of Prop. Taxation, Dep’t of
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Local Affairs, Assessor’s Reference Library 6.10 (rev. Apr. 2018). It
also gives assessors four guidelines to use in applying that
definition to their physical inspections of property:
[1.] Are the contiguous parcels under common
ownership?
[2.] Are the parcels considered an integral part
of the residence and actually used as a
common unit with the residence?
[3.] Would the parcel(s) in question likely be
conveyed with the residence as a unit?
[4.] Is the primary purpose of the parcel and
associated structures to be for the support,
enjoyment, or other non-commercial activity of
the occupant of the residence?
If answers to all of these criteria are yes, then
it is likely that the parcel would fall under the
residential classification.
Id. at 6.11.
¶8 Here, the parties stipulated that the residential property and
the subject property are commonly owned and contiguous. The
only question is whether they are “used as a unit.” At the BAA
hearing, Mr. Rust testified that his family uses the subject property
as follows:
 to create a buffer so there is not a neighbor right next to
their house;
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 to view wildlife;
 to park his truck and trailer (at least partially);
 to ski;
 to sled;
 to store snow;
 to hike; and
 to enjoy peace and serenity.
¶9 The assessor said she saw no evidence that the subject
property was an integral part of the residence. She noted several
times that it is a lovely piece of property and that if the subject
parcel and the residential parcel were a single parcel, there would
be no question that the entire parcel would then be residential.
However, she testified that she visited the property four times in five
months and, based on her inspections during those visits, the truck
appeared to be parked on the residential lot and the snow storage
area also appeared to be on the residential lot. She said there were
no footprints or tracks on the subject property that would indicate
it had been used for hiking, sledding, or skiing and, furthermore,
the topography of the lot (it is heavily treed and very steep) would
greatly limit those activities. Her testimony and conclusion, which
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the BAA credited and with which it ultimately agreed, was that
whatever use the Rusts made of the subject property, it was not
integral to the residential property and failed to support
reclassification as residential property under the statute.
¶ 10 Existing case law on this subject is sparse, but the few cases
that address the issue hold that more than occasional use and
peace and serenity are required to classify an adjacent, undeveloped
lot as residential. See, e.g., Fifield v. Pitkin Cty. Bd. of Comm’rs,
2012 COA 197, ¶¶ 2-4 (the property’s only ingress and egress was
on the subject lot); Sullivan v. Bd. of Equalization, 971 P.2d 675,
676 (Colo. App. 1998) (The subject parcel may be classified as
residential if it has “residential improvements other than a
dwelling unit and [is] used as a unit in conjunction with a
residential dwelling unit located on a contiguous parcel that is
under common ownership with the subject parcel.”). And here, we
need not decide whether residential improvements are required for
residential classification because no improvements were present
and, based on the assessor’s testimony, the subject parcel was also
not used in conjunction with the residential property. Compare
Fifield, ¶ 13, with Sullivan, 971 P.2d at 676. So, under either the
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Fifield or the Sullivan standard, the subject property here would not
have qualified for residential classification.1
¶ 11 And, we reject Mr. Rust’s contention that we should apply the
same standard for multiple parcels of land that we apply to single
parcels. As the assessor herself pointed out, if this were a single
parcel, the entire parcel would likely be classified as residential.
See Farny, 985 P.2d at 110; Gyurman v. Weld Cty. Bd. of
Equalization, 851 P.2d 307, 308-09 (Colo. App. 1993). But, since it
is not, we do not believe the single parcel standard should apply.
The additional requirement for multiple parcels – that the subject
parcel be integral to the residential parcel – is reasonable. This
requirement is unnecessary where there is only one parcel because
the parcel is already integrated by virtue of its inherently unified
character. Thus, the use of the additional guidelines provided on
page 6.11 of the ARL to classify such parcels is reasonable. See
Marshall, ¶ 9.
1 We also decline to decide the scope of what use constitutes
sufficient use of the vacant lot to qualify as being used as a unit for
residential classification. Our conclusion here is based on the facts
before us.
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¶ 12 Therefore, we see no error in the BAA’s decision to deny
reclassification.
III. Conclusion
¶ 13 We affirm the BAA’s order.
JUDGE FURMAN and JUDGE FOX concur.
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