Rust v. Board of County Commissioners of Summit County

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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