MLS Properties LLC v. Weld County Board of Equalization

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
October 6, 2022

2022COA117

No. 21CA0552, MLS Properties, Inc. v. Weld Cnty. Bd. of
Equalization — Real Property; Taxation — Property Tax —
Valuation for Assessment — Level of Value — Unusual
Conditions

In Colorado, real property value for property tax assessment is

calculated every two years. The county assessor determines the

level of value of a property, which takes effect on January 1 of

odd-numbered years. The property’s level of value is generally

carried over to the even-numbered year and can only be modified

under three circumstances, including to adjust for certain

statutorily described unusual conditions affecting the property.

The plaintiff property owners claimed that two unusual

conditions under section 39-1-104(11)(b)(I), C.R.S. 2021, required

the assessor to revalue their properties for the 2020 tax year,

claiming (1) the COVID-19 pandemic was a detrimental act of
nature and (2) the various governmental orders issued in response

to the pandemic were new regulations restricting the use of their

land.

The district court granted the defendants’ motion to dismiss

the action under C.R.C.P. 12(b)(5), holding that, as a matter of law,

the pandemic and resulting orders occurred too late to be

considered for 2020 property valuations.

A division of the court of appeals concludes, in a matter of first

impression, that section 39-1-104(11)(b)(I) requires the assessor to

consider unusual conditions that occur at any point during the

even-numbered calendar year of the reassessment cycle, not just

those that are present before January 1 of the even year. The

division also concludes that the complaint was specific enough to

survive a C.R.C.P. 12(b)(5) motion to dismiss. Finally, the division

concludes that the record is insufficient to conclude as a matter of

law whether the pandemic or the governmental orders were

unusual conditions requiring revaluation of the taxpayers’

properties.
COLORADO COURT OF APPEALS 2022COA117

Court of Appeals No. 21CA0552
Weld County District Court No. 20CV30593
Honorable Todd Taylor, Judge

MLS Properties LLC, 736 Baseline LLC, 2528 W. 16th Street LLC, 3200 Village
Vista Drive LLC, Adams Bank Trust, Ashton Greeley Property LLC, Scott T.
Banzhaf, BFI Medical Waste Inc., Boulder Marine Inc., Boulder Scientific
Company, Brown Business Properties LLC, C & K Investment Properties LLC,
Capitol 3109 LLC, Carbon Element SPE LLC, Code 3 Associates, Inc., Crestone
Peak Resource Holdings LLC, Diesel Service Property LLC, Early Education
Enterprises LLC, EJ Holdings Inc., Exit LTP Investments LLC, FEI Energy Fund
LLC, Ferrous Development LLC, First National Bank of Johnstown, Garretson
Family Partnership LLLP, GEP Investments Inc., Gtuida LLC, Highway 119
LLC, Jagadar LLC, Kersey Hotel LLC, Liberty Aviation LLC, Marsid Land LLC,
MJ 3106 LLC, Mountain States Rosen LLC, MP 4665 LLC, Nan Madeira Stuart
Trust, Norlarco Credit Union, NVW LLC, PAR 4 Properties LLC, PHI Enterprises
LLC, Raw Property LLC, RC 4689 LLC, Riggs & Dicken Properties LLC, Ritchie
Bros. Properties Inc., Rolinda Colorado Co LTD, Silver Coin Investments, Texas
Roadhouse Holdings LLC, Union Colony Bank, Ana Uyemjura, Weaver 880
LLC, Westlake Village II LLC, Westlake Village LLC, White Peaks Property II
LLC, Wide Open Real Estate LLC, Willco IV Development LLLP, Willco VIII
Development LLLP,

Plaintiffs-Appellants,

v.

Weld County Board of Equalization and Brenda Dones, Weld County Assessor,

Defendants-Appellees.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division VII
Opinion by JUDGE KUHN
Navarro and Lipinsky, JJ., concur

Announced October 6, 2022
Hutchinson Black and Cook, Glen F. Gordon, Boulder, Colorado; Law Offices of
James P. Bick, Jr. PC, James P. Bick, Jr., Chesterfield, Missouri, for Plaintiffs-
Appellants

Bruce Barker, County Attorney, Karin McDougal, Assistant County Attorney,
Greeley, Colorado, for Defendants-Appellees

Nancy Rodgers, City and County Attorney, Patricia W. Gilbert, Deputy City and
County Attorney, Broomfield, Colorado, for Amicus Curiae City and County of
Broomfield Assessor and Board of Equalization

Ron Carl, County Attorney, Benjamin P. Swartzendruber, Assistant County
Attorney, Littleton, Colorado, for Amicus Curiae Arapahoe County Assessor and
Board of Equalization

Ben Pearlman, County Attorney, Michael A. Koertje, Assistant County Attorney,
Boulder, Colorado, for Amicus Curiae Boulder County Assessor and Board of
Equalization

Heidi M. Miller, County Attorney, Meredith P. Van Horn, Assistant County
Attorney, Brighton, Colorado, for Amicus Curiae Adams County Assessor and
Board of Equalization

Kimberly Sorrells, County Attorney, Rebecca Klymkowsky, Assistant Deputy
County Attorney, Rachel Bender, Parker Smith, Jason Soronson, Assistant
County Attorneys, Golden, Colorado, for Amicus Curiae Jefferson County
Assessor and Board of Equalization

Kenneth R. Hodges, County Attorney, Steven Klaffky, Senior Assistant County
Attorney, Colorado Springs, Colorado, for Amicus Curiae El Paso County
Assessor and Board of Equalization

Amy T. Markwell, County Attorney, Telluride, Colorado, for Amicus Curiae San
Miguel County Assessor and Board of Equalization

Lance J. Ingalls, County Attorney, Dawn L. Johnson, Senior Assistant County
Attorney, Megan L. Taggart, Assistant County Attorney, Castle Rock, Colorado,
for Amicus Curiae Douglas County Assessor and Board of Equalization

Erick Knaus, County Attorney, Lynaia M. South, Senior Assistant County
Attorney, Steamboat Springs, Colorado, for Amicus Curiae Routt County
Assessor and Board of Equalization

Philip J. Weiser, Attorney General, Robert H. Dodd, First Assistant Attorney
General, John H. Ridge, Senior Assistant Attorney General, Jessica E. Ross,
Assistant Attorney General, Denver, Colorado, for Amicus Curiae The Colorado
Property Tax Administrator

Todd M. Starr, County Attorney, Andrea Nina Atencio, Chief Deputy County
Attorney, John R. Rhoads, Assistant County Attorney II, Grand Junction,
Colorado, for Amicus Curiae Mesa County Assessor and Board of Equalization

Kathryn L. Schroeder, Pueblo West, Colorado, for Amicus Curiae Colorado
Assessors’ Association

Kristin Bronson, City Attorney, Charles T. Solomon, Assistant City Attorney,
Paige A. Arrants, Assistant City Attorney, Denver, Colorado, for Amicus Curiae
City and County of Denver Assessor and Board of Equalization

William G. Ressue, County Attorney, David P. Ayraud, Deputy County
Attorney, Fort Collins, Colorado, for Amicus Curiae Larimer County Assessor
¶1 In Colorado, real property value for property tax assessment is

calculated every two years. The county assessor determines the

“level of value” of a property, which takes effect on January 1 of

odd-numbered years. § 39-1-104(10.2)(d), C.R.S. 2021. Typically,

the property’s level of value is carried over to the even-numbered

year and can only be modified under three circumstances: (1) to

correct a clerical error or omission; (2) to correct an incorrect value;

or (3) to adjust for an unusual condition affecting the property.

Thibodeau v. Denver Cnty. Bd. of Comm’rs, 2018 COA 124, ¶ 12; 24,

Inc. v. Bd. of Equalization, 800 P.2d 1366, 1368 (Colo. App. 1990).

¶2 The plaintiffs — fifty-five Weld County commercial property

owners and taxpayers (the taxpayers) — filed this action in district

court after exhausting their administrative remedies for protesting

their 2020 property valuations. In both the administrative and

district court proceedings, the taxpayers alleged that two unusual

conditions had occurred under section 39-1-104(11)(b)(I) (the

unusual conditions statute), requiring the assessor to revalue their

properties for the 2020 tax year: (1) the COVID-19 pandemic was a

“detrimental act[] of nature,” and (2) the various governmental

1
orders issued in response to the pandemic were “new regulations

restricting . . . the use of their land.”

¶3 The defendants — the Weld County Board of Equalization

(BOE) and Weld County Assessor Brenda Dones (collectively, Weld

County) — moved to dismiss the action under C.R.C.P. 12(b)(5).

The district court granted the motion on the grounds that the

taxpayers’ claims were nonspecific and conclusory, and that, as a

matter of law, the pandemic and resulting orders occurred too late

to be considered for 2020 property valuations.

¶4 We reverse for two reasons. First, as a matter of first

impression, we conclude that, under section 39-1-104(11)(b)(I), the

assessor is required to consider unusual conditions that occur at

any point during the even-numbered calendar year1 of the

reassessment cycle, not just those that exist before January 1 of the

even year. Second, we conclude that the complaint was specific

enough to survive a C.R.C.P. 12(b)(5) motion to dismiss.

1 Weld County refers to the even year of the reassessment cycle as
the intervening year.

2
I. Additional Background and Procedural History

¶5 In May 2020, after receiving their 2020 property valuations,

the taxpayers sent a letter to Weld County’s assessor requesting

revaluation of their properties under the unusual conditions statute

because of the COVID-19 pandemic and the resulting governmental

orders.

¶6 The assessor denied the taxpayers’ request and, in a letter to

the taxpayers’ counsel, said that the pandemic and resulting orders

were not relevant to the 2020 property valuations because they

occurred after January 1, 2020 — the assessment date for the 2020

tax year. The assessor wrote that “any documented impact of the

COVID-19 pandemic on property values will be taken into

consideration for purposes of the 2021 biennial reappraisal.”

¶7 The taxpayers then filed formal protests of the assessor’s

initial valuations. The protest letter said that the taxpayers were

protest[ing] and object[ing] to the failure of the
assessor to decrease the value of the [their]
propert[ies] for tax year 2020 due to [the]
decrease in value as a result of the detrimental
act of nature of the COVID-19 pandemic which
has resulted in, among other detriments to the
property, [c]ounty, [s]tate and federal
regulations and [governmental] orders issued
which severely limit taxpayers’ and others’

3
access and use of the property, which
revaluation of the property the assessor is
required to perform in accordance with . . .
section 39-1-104(11)(b)(I).

¶8 The assessor denied the protests on the grounds that the

pandemic and orders occurred too late to be considered for 2020

tax purposes. The taxpayers timely appealed the assessor’s denials

to the BOE. After a hearing, the BOE denied the taxpayers’

appeals.

¶9 Then the taxpayers filed suit in Weld County District Court.

Weld County filed a motion to dismiss under C.R.C.P. 12(b)(5). The

district court, after finding that the “allegations in the complaint

[were] purely conclusory,” dismissed the taxpayers’ claims without

prejudice.

¶ 10 The taxpayers filed an amended complaint that, unlike the

original complaint, identified the fifty-five taxpayers by name and

their properties by legal address, parcel ID number, and county tax

account number. It also set forth each property’s 2020 assessed

value. Attached to the complaint was a list of the pandemic-related

governmental orders that the taxpayers alleged had devalued their

properties.

4
¶ 11 In the amended complaint, the taxpayers sought three types of

relief: (1) a writ of mandamus under C.R.C.P. 106(a)(2); (2) de novo

review of the denials of their property assessment appeals under

section 39-8-108(1), C.R.S. 2021; and (3) a declaratory judgment

that the COVID-19 pandemic and resulting governmental orders

were unusual conditions under section 39-1-104(11)(b)(I) that

required the assessor to revalue the subject properties for the 2020

tax year.

¶ 12 Weld County again filed a Rule 12(b)(5) motion to dismiss. It

argued that the amended complaint lacked specificity and was

conclusory, and that the taxpayers’ claims failed as a matter of law

because even if the pandemic and resulting governmental orders

were unusual conditions, they could not be considered for the 2020

tax year because they occurred after January 1, 2020.

¶ 13 The district court granted Weld County’s motion and

dismissed the amended complaint with prejudice. It did not

address whether the pandemic itself was an unusual condition and

concluded that the governmental orders were the only possibly

relevant unusual condition. It noted that the “[taxpayers] have not

referred to any regulation that restricts (or increases) the use of

5
land, nor have they explained how any of the [governmental] orders,

declarations, or guidance to which they make only a cursory

reference to in the amended complaint has prevented them from

using their land.” So the court found that the amended complaint

“still fail[ed] to state valid claims for relief because it [made] only

bald assertions and relie[d] on conclusory allegations that [were] not

supported by specific facts that would put the defendants on notice

as to what ‘regulation’ affected each [taxpayer’s] property and how.”

The court stated it was dismissing the amended complaint with

prejudice “for these reasons, and for all the reasons raised in the

defendants’ motion.”

II. Analysis

¶ 14 This case is one of eleven nearly identical suits filed by

commercial property owners in eleven counties.2 In each case, the

property owners — who are all represented by the same attorneys

2 The eleven district court cases include the following, by county
and case number: Adams County (20CV31565), Arapahoe County
(20CV31729), Boulder County (20CV30996), City and County of
Broomfield (20CV30366), City and County of Denver (20CV32946),
Douglas County (20CV30909), Eagle County (20CV30186), El Paso
County (20CV31533), Jefferson County (20CV31506), Larimer
County (20CV30613), and this case, Weld County (20CV30593).

6
— seek to compel their respective county assessors to revalue their

properties for the 2020 tax year. As of the date of this opinion,

rulings from six of the eleven district court cases have been

appealed and are pending in this court.3 This case is the first one

decided by a division of this court.

¶ 15 On appeal, the taxpayers contend the district court erred by

ruling that (1) events that occurred after January 1, 2020, cannot

be considered as unusual conditions for the 2020 tax year; (2) the

complaint did not contain sufficient facts to support a plausible

claim for relief; and (3) COVID-19 is not, as a matter of law, an

unusual condition.

¶ 16 We start by stating the applicable standards of review and

providing an overview of the property tax assessment statutory

framework. Then we address the taxpayers’ contentions in turn.

A. Standard of Review and Legal Principles

¶ 17 Applying the same standards as the district court, we review

the court’s ruling on a C.R.C.P. 12(b)(5) motion to dismiss de novo.

3 Besides this case, the following cases are pending in our court, by
county and case number: Broomfield County (22CA0695), Douglas
County (21CA1253), Eagle County (21CA0985), Jefferson County
(21CA1731), and Larimer County (21CA1191).

7
Norton v. Rocky Mountain Planned Parenthood, Inc., 2018 CO 3, ¶ 7.

To survive dismissal for failure to state a claim under C.R.C.P.

12(b)(5), a complaint must plead sufficient facts that suggest

plausible grounds to support a claim for relief. Warne v. Hall, 2016

CO 50, ¶ 24; Froid v. Zacheis, 2021 COA 74, ¶ 29.

¶ 18 On review, we must accept as true all factual allegations

asserted in a complaint. Norton, ¶ 7. However, we are not required

to accept as true bare legal conclusions. Id.

¶ 19 Motions to dismiss under C.R.C.P. 12(b)(5) are viewed with

disfavor. Begley v. Ireson, 2017 COA 3, ¶ 7. Therefore, “[w]e will

uphold the grant of a C.R.C.P. 12(b)(5) motion only when the

plaintiff’s factual allegations do not, as a matter of law, support the

claim for relief.” Norton, ¶ 7. “When considering a motion to

dismiss for failure to state a claim, we may consider the facts

alleged in the pleadings, documents attached as exhibits or

incorporated by reference, and matters proper for judicial notice.”

Id.

¶ 20 The interpretation of the property tax assessment statutes is a

question of law that we also review de novo. See Yen, LLC v.

Jefferson Cnty. Bd. of Comm’rs, 2021 COA 107, ¶ 10. In

8
interpreting statutes, our primary goal is to ascertain and effectuate

the legislature’s intent. Lewis v. Taylor, 2016 CO 48, ¶ 20. We

start with the plain language of the statute. People v. Johnson,

2021 CO 79, ¶ 9. “Applying the plain meaning of the language

requires us to ‘give consistent effect to all parts of a statute, and

construe each provision in harmony with the overall statutory

design.’” Lannie v. Bd. of Cnty. Comm’rs, 2020 COA 77, ¶ 8 (quoting

Larrieu v. Best Buy Stores, L.P., 2013 CO 38, ¶ 12). “If the statutory

language is unambiguous, we effectuate its plain and ordinary

meaning and look no further.” Carrera v. People, 2019 CO 83, ¶ 18.

¶ 21 The Colorado Constitution sets forth “[t]he basic framework for

fair and uniform ad valorem taxation of real and personal property”

in this state. Gilpin Cnty. Bd. of Equalization v. Russell, 941 P.2d

257, 260 (Colo. 1997). The constitution mandates that

[t]he actual value of all real and personal
property not exempt from taxation under this
article shall be determined under general laws,
which shall prescribe such methods and
regulations as shall secure just and equalized
valuations for assessments of all real and
personal property not exempt from taxation
under this article.

Colo. Const. art. X, § 3(1)(a).

9
¶ 22 To effectuate this mandate, the legislature has enacted a

comprehensive statutory framework. Yen, ¶ 15. Under this

framework, county assessors are tasked with determining the

actual value of real property in their counties and making the initial

appraisal. Russell, 941 P.2d at 261; see Colo. Const. art. X,

§ 3(1)(a); §§ 39-1-103(5)(a), 39-5-104, C.R.S. 2021.

¶ 23 By statute, real and personal property must be assessed and

valued biennially, or every two years. Bachelor Gulch Operating Co.

v. Bd. of Cnty. Comm’rs, 2013 COA 46, ¶ 19; §§ 39-1-103(5)(a),

39-1-104(10.2)(a). On January 1 of odd-numbered years, the

assessor assigns the level of value for each property. In reaching

this determination, the assessor must consider, as appropriate,

three different approaches to property appraisal: cost, market, and

income.4 Bachelor Gulch, ¶ 19; §§ 39-1-103(5)(a), 39-1-104(10.2)(a).

4 “The cost approach values property by estimating the cost of
replacing improvements to a property; the market approach values
property by considering sales of comparable properties in the
market; and the income approach considers the income stream a
property is capable of generating, capitalized to value at a rate
typical within the relevant market.” Kinder Morgan CO2 Co., L.P. v.
Montezuma Cnty. Bd. of Comm’rs, 2017 CO 72, ¶ 6 n.2.

10
¶ 24 A property’s level of value is the actual value of the property

“for the one-and-one-half-year period immediately prior to July 1

immediately preceding the assessment date.” § 39-1-104(10.2)(d).

Thus, for the 2019 assessment, the data-gathering period for

determining the actual value of the taxpayers’ properties was

January 1, 2017, to June 30, 2018.

¶ 25 Under the statutory framework, the assessor “need not

revaluate each property every year even though particular

properties may have increased or decreased in value during a

particular year.” LaDuke v. CF & I Steel Corp., 785 P.2d 605, 608

(Colo. 1990). Although their properties may have increased or

decreased in value, taxpayers pay taxes on the basis of their

properties’ values at the end of the data-gathering period preceding

the odd-numbered year in the reassessment cycle and not on the

properties’ current actual value. Id. When property values are

rising during an economic upturn, this method benefits taxpayers.

Id. When property values are falling, this method disadvantages

taxpayers. Id.

¶ 26 Generally, this level of value is carried over to the

even-numbered year. Bachelor Gulch, ¶ 19. However, there are

11
exceptions to this general framework. An assessor may decrease or

increase a property’s actual value “for the years which intervene

between changes in the level of value” if certain “unusual

conditions” exist. § 39-1-104(11)(b)(I); Bachelor Gulch, ¶ 20.

Section 39-1-104(11)(b)(I) defines an “unusual condition” as

the installation of an on-site improvement, the
ending of the economic life of an improvement
with only salvage value remaining, the addition
to or remodeling of a structure, a change of
use of the land, the creation of a condominium
ownership of real property as recognized in the
“Condominium Ownership Act”, article 33 of
title 38, C.R.S., any new regulations restricting
or increasing the use of the land, or a
combination thereof, the installation and
operation of surface equipment relating to oil
and gas wells on agricultural land, any
detrimental acts of nature, and any damage
due to accident, vandalism, fire, or explosion.

¶ 27 The circumstances that qualify as “unusual conditions” are

restricted to those enumerated in the statute. LaDuke, 785 P.2d at

609. If an “unusual condition” exists, the assessor is required to

revalue the property for the intervening tax year. Bachelor Gulch,

¶ 20; § 39-1-104(11)(b)(I).

12
¶ 28 The statutory framework provides a process for taxpayers to

appeal the assessor’s initial valuation.5 Under section

39-5-121(1)(a)(I), C.R.S. 2021, no later than May 1 each year, the

assessor must mail a notice to every property owner setting forth

the value of the property. Yen, ¶ 15. Before June 1, the property

owner may submit a protest to the assessor’s valuation. Bd. of

Assessment Appeals v. Sampson, 105 P.3d 198, 202 (Colo. 2005);

§ 39-5-122(1)(a), C.R.S. 2021. If the assessor denies the protest,

the property owner may petition the county board of equalization,

which holds a hearing on the petition. Sampson, 105 P.3d at 202;

§§ 39-8-106, 39-8-107(1), C.R.S. 2021. If the board denies the

petition, the property owner may appeal the board’s decision to the

district court for a de novo trial. Sampson, 105 P.3d at 202;

§ 39-8-108(1).

5 A taxpayer may also contest a property valuation under the
abatement statute. § 39-10-114, C.R.S. 2021; Yen, LLC v. Jefferson
Cnty. Bd. of Comm’rs, 2021 COA 107, ¶ 16. That provision is not at
issue here.

13
B. Unusual Conditions That Arose After January 1, 2020,
are Relevant for the 2020 Tax Year

¶ 29 The taxpayers contend the court erred by adopting Weld

County’s position that the pandemic and orders were not relevant

for the 2020 tax year because they occurred after January 1, 2020

— the assessment date for that tax year. We agree.

¶ 30 The unusual conditions statute states as follows:

The provisions of subsection (10.2) of this
section are not intended to prevent the
assessor from taking into account, in
determining actual value for the years which
intervene between changes in the level of
value, any unusual conditions in or related to
any real property which would result in an
increase or decrease in actual value. If any
real property has not been assessed at its
correct level of value, the assessor shall
revalue such property for the intervening year
so that the actual value of such property will
be its correct level of value; however, the
assessor shall not revalue such property above
or below its correct level of value except as
necessary to reflect the increase or decrease in
actual value attributable to an unusual
condition . . . . When taking into account such
unusual conditions which would increase or
decrease the actual value of a property, the
assessor must relate such changes to the level
of value as if the conditions had existed at that
time.

§ 39-1-104(11)(b)(I).

14
¶ 31 The key interpretation question in this case involves the

meaning of the phrase “years which intervene between changes in

the level of value.” The taxpayers contend that the assessor may

revalue their properties for the 2020 tax assessment based on

unusual conditions that occurred after the conclusion of the base

period — June 30, 2018 — and at any point during the 2020

calendar year. Weld County contends that, because January 1,

2020, is the assessment date for the 2020 tax year, the assessor

may only consider unusual conditions that occurred prior to that

date. In support of their reasoning, Weld County and the amici

curiae point to other provisions of the statutory scheme and the

Assessors’ Reference Library (ARL),6 and advance various policy

arguments about how their interpretation of the statute promotes

stability and certainty in the valuation and taxation process.

However, their interpretation has a fatal flaw: it isn’t supported by

the plain language of the statute.

6 Under section 39-2-109(1)(e), C.R.S. 2021, the Property Tax
Administrator prepares and publishes a land valuation manual, the
Assessors’ Reference Library (ARL), which assists county assessors
in valuing land. Jet Black, LLC v. Routt Cnty. Bd. of Cnty. Comm’rs,
165 P.3d 744, 748-49 (Colo. App. 2006). The ARL’s interpretation
of a statute is binding on county assessors. Id. at 749.

15
¶ 32 The statutory framework expressly defines “level of value.”

“[L]evel of value” means the actual value of taxable real property as

calculated during the one-and-a-half year period immediately prior

to July 1 immediately preceding the odd-year assessment date.

§ 39-1-104(10.2)(d). Absent any exceptions, that level of value is

meant to be used for both years of the biennial assessment cycle.

§ 39-1-104(10.2)(a). At the end of the biennial cycle, a new level of

value is calculated and assessed on January 1 of the odd year. For

the time period in question here, the “level of value” was assessed

on January 1, 2019, and was meant to carry over for the 2020 tax

year. Then, a new level of value was assessed on January 1, 2021.

¶ 33 The unusual conditions statute does not, however, expressly

define the terms “years which intervene” or “intervening year.” Nor

do other provisions within the statutory framework, the ARL, or the

relevant case law define these terms. Therefore, we look to their

ordinary and usual meaning. See Roup v. Com. Rsch., LLC, 2015

CO 38, ¶ 8 (“When a statute does not define a term, we assume that

the General Assembly intended to give the term its usual and

ordinary meaning.”).

16
¶ 34 Applying the plain and ordinary meaning, we deduce that the

phrase “years which intervene between changes in the level of

value” means the time period between the dates when a new level of

value for the biennial cycle was assessed for the taxpayers’

properties: from January 1, 2019, to January 1, 2021. Put another

way, the “years which intervene” were the entire 2019 and 2020

calendar years.7

¶ 35 Importantly, the unusual conditions statute contains no

language that imposes a cutoff date of January 1 of the even year or

otherwise suggests that an “intervening year” does not span the

entire calendar year. If the legislature had intended to set a cutoff

date, it could have done so. See Auman v. People, 109 P.3d 647,

656 (Colo. 2005) (“Just as important as what the statute says is

what the statute does not say.”). Because it didn’t, we won’t — as

Weld County’s interpretation would require us to do — read

language into the statute that isn’t there. See Oakwood Holdings,

7 Weld County asserts that there is an “intervening year” and a
“reassessment year.” However, the General Assembly did away with
that distinction when it inserted “years which intervene between
changes in the level of value” into the statute. See Ch. 267, sec. 4,
§ 39-1-104(11)(b)(I), 1988 Colo. Sess. Laws 1272.

17
LLC v. Mortg. Invs. Enters. LLC, 2018 CO 12, ¶ 12 (“[W]e must

respect the legislature’s choice of language, and we do not add

words to the statute or subtract words from it.”).

¶ 36 Weld County contends that section 39-1-105, C.R.S. 2021,

which provides that the yearly assessment date is January 1,

supports its interpretation and, along with the amici, argues that

the January 1 cutoff date is necessary to conform to the general

procedure for protesting valuations. See Sampson, 105 P.3d at 202

(describing valuation protest process); §§ 39-5-122, 39-8-106,

39-8-108. However, by definition, the unusual conditions statute is

an exception to the general framework. It requires the assessor to

revalue property in an intervening year if, due to an unusual

condition, the predetermined level of value does not reflect the

actual value of the property. Therefore, the unusual conditions

statute is not governed by the assessment date set forth in section

39-1-105.8

8 This structure reinforces our interpretation of the unusual
conditions statute as an exception to the normal assessment cycle.
If the unusual conditions statute were governed by the assessment
date, it would merely be restating the protest statute, which would
render the unusual conditions statute superfluous. See Kinder

18
¶ 37 Weld County and the amici also highlight provisions in the

ARL that support their interpretations of the statute. Although we

defer to the ARL when the statute at issue is subject to different

reasonable interpretations, we are not bound by it. Bachelor Gulch,

¶ 31. And we will not follow the interpretation if it is not supported

by the language of the statute. Kinder Morgan CO2 Co., L.P. v.

Montezuma Cnty. Bd. of Comm’rs, 2015 COA 72, ¶ 15, aff’d, 2017

CO 72.

¶ 38 In sum, because the phrase “years which intervene between

changes in the level of value” includes the entire even-numbered

calendar year between reassessment cycles, the taxpayers were not

precluded by law from invoking the unusual circumstances statute

in their protest of valuation based on events that arose during the

spring of 2020. To the extent the court concluded otherwise by

adopting the reasoning in Weld County’s motion to dismiss, it erred.

Morgan CO2, ¶ 24 (“We strive to avoid statutory interpretations that
render certain words or provisions superfluous or ineffective.”).

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C. The Amended Complaint Alleged Plausible Claims for Relief

¶ 39 The taxpayers next contend that the court erred by concluding

they did not plead sufficient facts to suggest a plausible claim for

relief. We agree.

1. Burden of Pleading and Proof

¶ 40 As a threshold matter, we address the taxpayers’ burden of

pleading, and eventual proof at trial, in the district court. We

address this issue because, although not dispositive, it will arise on

remand. See People v. Stewart, 2017 COA 99, ¶ 64 (J. Jones, J.,

concurring in part and dissenting in part) (“[O]ur common practice

is to address contentions that pertain to issues likely to arise on

remand.”).

¶ 41 The taxpayers’ second claim for relief sought de novo review of

their property valuations. § 39-8-108(1) (“If the county board of

equalization . . . [denies a] petition[,] . . . the petitioner may appeal

the valuation set by the assessor . . . to the district court of the

county wherein the petitioner’s property is located for a trial de

novo . . . .”). The taxpayers contend that the court erred by

implicitly finding that they needed to demonstrate a diminution in

property value at the pleading stage and assert that they are not

20
required to allege how the pandemic or orders specifically affected

the value of their individual properties. They contend that, to

warrant revaluation of their properties by the assessor, they simply

need to allege, and then prove, the existence of an unusual

condition. We disagree.

¶ 42 An assessor’s property valuation for taxation is presumed to

be correct. Lodge Props., Inc. v. Eagle Cnty. Bd. of Equalization,

2022 CO 9, ¶ 25. To rebut that presumption in a trial de novo

under section 38-8-108(1), taxpayers who challenge a property

assessment bear the burden of proving, by a preponderance of the

evidence, that the valuation is incorrect. Id.; see A.B. Hirschfeld

Press, Inc. v. City & Cnty. of Denver, 806 P.2d 917, 920 (Colo. 1991)

(stating that “[a] party challenging a tax assessment assumes the

burden of establishing the invalidity of the assessment” in a case

involving judicial review of a hearing officer’s decision under

C.R.C.P. 106(4)(a)).

¶ 43 The taxpayers’ theory in this case is that Weld County’s

valuations were incorrect because the assessor failed to consider

the unusual conditions caused by the pandemic and orders. The

assessor is required to revalue a property when “any unusual

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conditions in or related to any real property which would result in

an increase or decrease in actual value” occurs.

§ 39-1-104(11)(b)(I). Thus, to establish the assessments were

incorrect, the taxpayers must plead, and later prove, (1) the

pandemic or orders constituted an unusual condition, and (2) the

unusual condition would affect the value of their properties. This

expressly requires the taxpayers to show how the unusual

conditions affected the value of their specific properties. The

taxpayers are not, however, required to plead or prove an

alternative valuation. Sampson, 105 P.3d at 202.

2. Claim for Relief for Diminution of Value

¶ 44 The taxpayers next contend that the court misapplied the

Warne pleading standard. We agree. Accepting the taxpayers’

factual allegations as true, the amended complaint contains

sufficient facts and is specific enough to support a plausible claim

for relief. See Patterson v. James, 2018 COA 173, ¶ 23. Therefore,

the court erred by granting Weld County’s C.R.C.P. 12(b)(5) motion.

¶ 45 We agree with the district court that the taxpayers’ amended

complaint contains many bald assertions and conclusory

allegations that are not supported by specific facts. It is not a

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paragon of clarity. However, we conclude that the amended

complaint alleges sufficient facts to put Weld County on notice of

the claims against it.

¶ 46 The amended complaint identifies the individual taxpayers and

their properties. For each property, the amended complaint

identifies the actual value that the BOE assigned for the 2020 tax

year. The attachments to the amended complaint also identify the

reduced values that the taxpayers claim were the correct values for

their properties.

¶ 47 The amended complaint then describes what the taxpayers

asserted was the source of the unusual conditions: the pandemic

and orders that affected the use of and access to the taxpayers’

commercial properties and land. One of the exhibits to the

amended complaint describes terms contained in one set of the

challenged orders that could impact commercial properties. The

other two exhibits summarizing the governmental orders do not.

¶ 48 The amended complaint groups the taxpayers into categories

based on type of business. For example, Kersey Hotel LLC, Willco

IV Development LLLP, and Willco VIII Development LLLP are

identified as “hotel motel.” It also identifies how the groups of

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taxpayers allege the unusual conditions affected them. For hotels

and motels, the amended complaint alleges that

[a]s a result of the existence of the COVID-19
virus, including its infectiousness and overall
threat to health and safety and the various
stay-at-home orders, reduced occupancy
orders, and travel restrictions,
occupancy/rental rates at the hotel and motel
Petitioners dropped substantially since March
2020 to date. Occupancy rates bear direct
correlation to operating income of hotels and
motels which bears a direct relationship to ad
valorem valuation for such properties. Such
reduced occupancy rates have caused a
diminution in the value of such Petitioners’
properties the exact amount of which would be
determined by the Assessor’s revaluation or by
the trier of fact.

¶ 49 We cannot say this does not state a plausible claim for relief.

The taxpayers’ overall theory is that they were entitled to

revaluation of their properties for the 2020 tax year because the

pandemic and related orders constituted unusual conditions that

affected the value of their properties. The amended complaint and

attachments identify the taxpayers in groups and describe, for each

group, how the virus and the orders resulted in lower income,

affecting one of the approaches to valuation, and suppressed sales,

affecting another. It’s true that the amended complaint did not

24
describe how the individual properties were affected by specific

orders, which the taxpayers will need to do to prevail in the district

court. However, the amended complaint is sufficient to survive the

significantly lower standard that applies to C.R.C.P. 12(b)(5)

motions.

3. Claim for Relief for Improper Application of
Unusual Circumstances Statute

¶ 50 As the taxpayers note, the primary basis for their claim is not

the diminution of value described above — that was their

alternative ground. The primary claim in the amended complaint is

that Weld County did not comply with the unusual conditions

statute. After describing the course of their administrative appeals,

the taxpayers pleaded that Weld County “denied all of [their]

appeals, solely on the basis that unusual conditions occurring after

January 1, 2020[,] cannot be taken into account and therefore

[Weld County] has no duty to revalue [their] properties.”

¶ 51 In support, the taxpayers attach their appeal letter and the

response from Weld County. The response indicates that Weld

County denied the bulk of the appeals with the following identified

reason:

25
CV19 - The COVID-19 pandemic occurred after
the appraisal date of June 30, 2018, and after
the assessment date of January 1, 2020.
Therefore, it cannot be considered for the 2020
property valuation.

¶ 52 The taxpayers then frame the dispute in their amended

complaint as follows:

A dispute exists between all [plaintiffs] and
respondent [Weld County] in that

a) the respondent Assessor refuses to revalue
[taxpayers’] properties taking into account the
unusual conditions of the COVID-19 pandemic
and the governmental orders and regulations
resulting therefrom as a result of the
pandemic. Respondent Assessor erroneously
concludes that the unusual condition statute
cannot be triggered or be operative for the
2020 tax year for any unusual condition
unless any such enumerated conditions
existed on or before the January 1, 2020
assessment date . . . .

¶ 53 The taxpayers clarify that they are not “seek[ing] to establish

or for the Court to find a particular valuation for their properties.”

Instead, they are asking the court to compel Weld County to apply

the unusual conditions statute.

¶ 54 In our view, these factual allegations also state a plausible

claim for relief. The taxpayers allege that Weld County improperly

denied their requests for revaluation under the unusual conditions

26
statute based on the unusual conditions themselves falling after the

assessment date for the year. They ask the court to resolve that

legal question and to compel Weld County to apply the statute

despite the dates.

¶ 55 As we note above, the unusual conditions statute is not

restricted to events occurring before the assessment date. We

therefore conclude that the taxpayers stated a plausible claim for

relief based on Weld County denying their protests on that ground.

¶ 56 We also note that we express no opinion on the factual

viability of these claims. Determining whether the pandemic was a

detrimental act of nature and the orders were regulations restricting

the use of land within the meaning of the unusual conditions

statute requires further proceedings. However, we conclude that

the amended complaint contains sufficient factual allegations to

plead a plausible claim for relief.

D. Whether COVID-19 is an Unusual Condition

¶ 57 The taxpayers contend that the district court erroneously

ruled that COVID-19 was not a detrimental act of nature when it

stated, “Section 39-1-104(11)(b)(I) provides an exclusive list of

conditions that qualify as ‘unusual conditions . . . .’ The only

27
unusual condition listed in the statute that has relevance here is

‘any new regulation[] restricting or increasing the use of the land.’”

¶ 58 We’re not persuaded that such statement constitutes a ruling

or legal conclusion. Instead, when viewed in context, it merely

introduces the next sentence, which addresses the specificity of the

complaint. And it would have been improper for the court to reach

such a conclusion because Weld County did not argue in its motion

to dismiss that COVID-19 was not, as a matter of law, a detrimental

act of nature.

¶ 59 On the record before us, we cannot say, as a matter of law,

whether the pandemic is an unusual condition requiring

revaluation of the taxpayers’ properties. That question is best

answered after further proceedings to develop the record.

¶ 60 Nor can we say, on this record, whether the orders were, as a

matter of law, “new regulations restricting or increasing the use of

the land” under section 39-1-104(11)(b)(I). That question also

requires additional factual development beyond what is alleged in

the complaint.

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III. Conclusion

¶ 61 We reverse the judgment and remand for the district court to

reinstate the amended complaint and to conduct further

proceedings consistent with this opinion.

JUDGE NAVARRO and JUDGE LIPINSKY concur.

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