Trust v. Bd. of Cty Comm'rs ( 2019 )

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
February 7, 2019
2019COA18
No. 17CA0938, Martin Trust v. Bd. of Cty Comm’rs — Taxation
— Property Tax — Residential Land
A division of the court of appeals considers whether the Board
of Assessment Appeals (BAA) erred when it concluded that a vacant
parcel of land under the same ownership as a contiguous parcel
containing a residence was vacant land.
In separate opinions by Judges Carparelli and Vogt, the
division concludes that the BAA did not err. It adopts that analysis
in Twilight Ridge, LLC v. Board of County Commissioners, 2018 COA
108, holding that the requirement in section 39-1-102(14.4)(a),
C.R.S. 2018, that contiguous parcels must be “used as a unit in
conjunction with the residential improvements located thereon”
does not include the “use” of vacant land by looking across it at
objects beyond the land.
Judge Carparelli also concludes that section 39-1-102(14.4)(a)
must be applied in a manner that is consistent and harmonious
with section 39-1-102(14.3) and does not render any portion of it
meaningless. Doing so, Judge Carparelli concludes that these
provisions require that a parcel of land under the same ownership
as a contiguous parcel that has a residence cannot be classified as
“residential land” unless there is located upon it a building,
structure, fixture, fence, amenity, or water right that is an integral
part of the residential use of the neighboring parcel.
Judge Hawthorne dissents and concludes that the
requirement that the parcels be “used as a unit” requires only that
the owner use a parcel to accomplish something — including
protecting the view from the residence. Thus, he concludes that
“use” does not require “active use” and “used as a unit in
conjunction with the residential improvements” does not require a
contiguous parcel to be essential to the residential use of the
neighboring parcel. Disagreeing with Judge Carparelli, Judge
Hawthorne also concludes that the statutes do not require that all
contiguous parcels have “residential improvements” on them.
COLORADO COURT OF APPEALS 2019COA18
Court of Appeals No. 17CA0938
Board of Assessment Appeals Case Nos. 69059 & 69724
Martin Trust,
Petitioner-Appellant and Cross-Appellee,
v.
Board of County Commissioners of La Plata County, Colorado; and Board of
Equalization of La Plata County, Colorado,
Respondents-Appellees and Cross-Appellants,
and
Board of Assessment Appeals,
Appellee.
ORDERS AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division IV
Opinion by JUDGE CARPARELLI*
Vogt*, J., specially concurs
Hawthorne, J., dissents
Announced February 7, 2019
Ryley Carlock & Applewhite, F. Brittin Clayton III, Denver, Colorado, for
Petitioner-Appellant and Cross-Appellee
Sheryl Rogers, County Attorney, Kathleen L. Moore, Assistant County Attorney,
Durango, Colorado, for Respondents-Appellees and Cross-Appellants
Philip J. Weiser, Attorney General, Krista Maher, Assistant Attorney General,
Denver, Colorado, for Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶1 Petitioner, the Martin Trust, appeals the orders of the Board of
Assessment Appeals (BAA) partly denying its request to reclassify a
parcel of its land as residential for property tax purposes. The
Board of County Commissioners of La Plata County and the Board
of Equalization of La Plata County (the County) cross-appeal the
order. In separate opinions, the majority affirms the BAA’s
classification of the Trust’s west parcel as vacant land, reverses the
remaining BAA orders, and remands with directions.
I. Factual Background and Procedural History
¶2 Mr. James Martin and Ms. Virginia Martin bought two
adjacent parcels of land in La Plata County, Colorado, in 2000. The
following graphic showing the relationship between the parcels was
admitted at the BAA hearing. It is oriented with north at the top.
1
The east parcel, labeled “Residential,” contains the Martins’ home
on a 0.62-acre lot, and the parcel labeled “Adjacent Land Lot” (the
west parcel) is an unimproved 0.72-acre lot that adjoins the
residential parcel’s western boundary. Colorado Division of Wildlife
(DOW) open land borders the parcels’ north and west sides. For tax
year 2014, the Martin Family Partnership, LLLP (the partnership)
held the title to the west parcel and the Martins held the title to the
residential parcel as joint tenants. The Partnership and the Martins
2
thereafter transferred title to both parcels to the Trust, which held
the titles for tax years 2015-2016.
¶3 The County Assessor classified the west parcel as vacant land
for tax years 2014-2016, and the Trust sought to have it reclassified
as residential. It appealed the Assessor’s decision to the Board of
Equalization and Board of County Commissioners. The Boards
denied both appeals. The Trust appealed those decisions to the
BAA.
¶4 At a consolidated de novo hearing, the BAA upheld the
County’s 2014 classification of the west parcel as vacant land,
finding that the parcels were not under common ownership because
they were separately titled and the owners were “separate and
distinct legal entities.” For the 2015-2016 classifications, the BAA
partially granted the Trust’s appeal, stating it was “persuaded by
[the Trust’s] claim there would be a loss of west views if a residence
[was] constructed on the [west parcel].” 1 But it determined that
1 The BAA issued two orders, one for 2014-2015 and another for
2016. Because the relevant sections of the 2016 order are virtually
identical to the 2014-2015 order, we treat them as a single order in
this opinion.
3
only two-thirds of the west parcel was used as a unit in conjunction
with the residential parcel for maintaining views from that parcel.
On that basis, it ordered that only the two-thirds portion of the west
parcel be reclassified as residential.
¶5 The Trust contends that the BAA erred when it concluded that
the west parcel was vacant land for the tax year 2014 and partly
vacant land for tax years 2015-2016. Conversely, the County
contends that the BAA erred when it reclassified the west parcel as
residential land for tax years 2015-2016. The BAA argues the
evidence supports its determinations.
II. Standard of Review
¶6 A land classification determination for property tax purposes
is a mixed question of law and fact. Kelly v. Bd. of Cty. Comm’rs,
2018 COA 81M, ¶ 10 (citing Home Depot USA, Inc. v. Pueblo Cty. Bd.
of Comm’rs, 50 P.3d 916, 920 (Colo. App. 2002)). We defer to “the
BAA’s classification . . . if it has a reasonable basis in law and is
supported by substantial evidence in the record considered as a
whole.” Farny v. Bd. of Equalization, 985 P.2d 106, 109 (Colo. App.
1999). We may affirm an agency’s legal conclusion on any grounds
4
supported by the record. See Joseph v. Mieka Corp., 2012 COA 84,
¶ 24; Rush Creek Sols., Inc. v. Ute Mountain Ute Tribe, 107 P.3d 402,
406 (Colo. App. 2004).
¶7 When construing and applying statutes, “[o]ur primary task is
to ascertain and effectuate the intent of the General Assembly.”
Moffett v. Life Care Ctrs. of Am., 219 P.3d 1068, 1072 (Colo. 2009).
When construing a statute, we look to its plain and ordinary
language to give effect to the legislature’s intent. Young v. Brighton
Sch. Dist. 27J, 2014 CO 32, ¶ 11. We consider the statute as a
whole, construing it in a manner that gives consistent, harmonious,
and sensible effect to all its parts. Oakwood Holdings, LLC v. Mortg.
Invs. Enters. LLC, 2018 CO 12, ¶ 12. We must also “give meaning
to all portions of the statute, and avoid a construction rendering
any language meaningless.” Well Augmentation Subdistrict v. City of
Aurora, 221 P.3d 399, 420 (Colo. 2009) (citing Fabec v. Beck, 922
P.2d 330, 337 (Colo. 1996)). In addition, we must not adopt an
interpretation that leads to an illogical or absurd result. Frazier v.
People, 90 P.3d 807, 811 (Colo. 2004). Last, “[w]e do not add words
5
to a statute.” Boulder Cty. Bd. of Comm’rs v. HealthSouth Corp., 246
P.3d 948, 951 (Colo. 2011).
III. Constitution and Statutes
A. Colorado Constitution
¶8 “The Colorado Constitution states that all taxes upon real
property shall be uniform and distinguishes agricultural and
residential property from other types of real property for assessment
purposes.” Boulder Cty. Bd. of Equalization v. M.D.C. Constr. Co.,
830 P.2d 975, 978 (Colo. 1992) (citing Colo. Const. art. X, § 3(1)(a)).
¶9 Article X, section 3 of the Colorado Constitution establishes
guidelines for determining the actual value of property and
the valuation for assessment of such property. Colo. Const. art. X,
§ 3(1)(a). It describes “[r]esidential real property” to include “all
residential dwelling units and the land, as defined by law, on which
such units are located,” and states that for tax assessment
purposes, real property is valued based on a percentage of its actual
value. Colo. Const. art. X, § 3(1)(b). Thus, under the constitution,
“residential real property” refers to residences and to the land on
which they are located. However, the provision states that the
meaning of “land” is as defined by law. As will be discussed later,
6
section 39-1-102(14.4)(a), C.R.S. 2018, defines the meaning of
“land” in terms of parcels of land. What constitutes a “parcel of
land” is determined by the legal description in the parcel’s deed.
B. Vacant Land
¶ 10 Section 39-1-103, C.R.S. 2018, addresses the valuation of
land for property tax purposes. As pertinent here, subsection
103(14)(c)(I) states:
For purposes of [section 39-1-103(14)], “vacant
land” means any lot, parcel, site, or tract of land
upon which no buildings or fixtures, other than
minor structures, are located. “Vacant land” may
include land with site improvements. 2 “Vacant
land” includes land that is part of a development
tract or subdivision when using present worth
discounting in the market approach to appraisal;
however, “vacant land” shall not include any lots
within such subdivision or any portion of such
development tract that improvements, other than
site improvements or minor structures, have been
erected upon or affixed thereto.
¶ 11 In plain and unequivocal words, section 39-1-103(14)(c)(I)
states that for purposes of property tax valuation assessment,
2“‘Site improvements’ means streets with curbs and gutters,
culverts and other sewage and drainage facilities, and utility
easements and hookups for individual lots or parcels.” § 39-1-
103(14)(c)(II)(B), C.R.S. 2018.
7
“vacant land” is any parcel or tract of land “upon which no
buildings or fixtures, other than minor structures, are located.” 3
This language is unambiguous and must be applied in accordance
with its plain and ordinary meaning. The County Assessor did so
when it classified the west parcel as “vacant land.”
C. Residential Land
¶ 12 Section 39-1-102(14.4)(a) in pertinent part states that
“‘[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.” 4
3 Subsection 103(14)(c)(II)(A) defines “minor structures” to mean
“improvements that do not add value to the land on which they are
located and that are not suitable to be used for and are not actually
used for any commercial, residential, or agricultural purpose.”
4 However, “‘[residential land]’ does not include any portion of the
land that is used for any purpose that would cause the land to be
otherwise classified.” § 39-1-102(14.4)(a), C.R.S. 2018. For
example, a residential improvement can also be integral to an
agricultural operation. Under subsections 102(1.6)(a)(I)(A) and (B),
a residential improvement must be “deemed to be ‘integral to an
agricultural operation’ for [classification of ‘agricultural land’ under
subsection 102(1.6)(a)(I)(A)] if an individual occupying the
residential improvement either regularly conducts, supervises, or
8
¶ 13 Thus, “residential land” is land, including single parcels of
land and contiguous parcels of land under common ownership,
1. “upon which residential improvements are located”; and
2. “that is used as a unit in conjunction with the residential
improvements located thereon.”
Thus, to ascertain and effectuate the General Assembly’s intent
regarding the meaning of “residential land,” it is essential that we
also do so with regard to the meaning of the term “residential
improvements.”
D. Residential Improvements
¶ 14 The plural term “residential improvements” is defined in
section 39-1-102(14.3). The first sentence of subsection 102(14.3)
defines “[r]esidential improvements” as “a building, or that portion
of a building, designed for use predominantly as a place of
residency by a person, a family, or families.” The second sentence
states that “residential improvements” also includes “buildings,
administers material aspects of the agricultural operation or is the
spouse or a parent, grandparent, sibling, or child of the individual.”
9
structures, fixtures, fences, amenities, and water rights that are an
integral part of the residential use.”
¶ 15 Thus, land “upon which residential improvements are located”
may be land upon which there is “a building, or that portion of a
building, designed for use predominantly as a place of residency by
a person, a family or families” (a residence). It may also be land
upon which there is a “building[], structure[], fixture[], fence[],
amenit[y], [or] water right[] that [is] an integral part of the
residential use” (man-made structures or water rights).
IV. Issues Presented
A. Residential Improvements
¶ 16 The County contends that while the BAA’s factual findings are
supported by the record, it erred as a matter of law by reclassifying
two-thirds of the west parcel as residential land for tax years 2015
and 2016 because the “used as a unit” element requires that each
parcel of land must contain its own residential improvement. It
relies on dicta in Sullivan v. Board of Equalization, 971 P.2d 675
(Colo. App. 1998).
10
B. Used as a Unit
¶ 17 The Trust contends that the BAA misconstrued the meaning of
“used as a unit in conjunction with the residential improvements”
in subsection 102(14.4)(a) and, as a result, erred when it decided
that for tax years 2015 and 2016 one-third of the west parcel was
vacant land. The Trust argues that case law regarding “used as a
unit” involving single parcels “appl[ies] equally” to contiguous
parcels, and that those cases establish that undeveloped land
adjacent to a residence is “used as a unit” with the residence if the
land is used “in any manner to enhance the use or enjoyment of the
residence — including merely keeping other people off of the land,”
so long as the land is not used for non-residential purposes such as
commerce or agriculture. So, according to the Trust, because the
west parcel was purchased to protect the view from the Martins’
residence, and a house located on the west parcel would change the
views, the undisputed facts standing alone are more than sufficient
to require residential classification of both parcels.
C. Passive Use
¶ 18 The BAA now asserts that “passive uses,” such as view
preservation, do not “satisfy the statutory requirement that an
11
adjacent parcel be used as a unit in conjunction with a residence.”
In the alternative, the BAA argues, if view preservation satisfies the
“used as a unit” requirement, then the BAA’s fact determinations
were correct and we should uphold the partial classifications.
D. Resolution of These Issues
¶ 19 In separate opinions, the majority concludes that, as applied
to contiguous parcels of land, subsection 102(14.4)(a) requires that
• the parcels must be used as a unit in conjunction with
the residential improvements on them; and
• using the land as a unit in conjunction with the
residential improvements on it requires active use of
residential improvements that are an integral part of the
use of the residence, and does not include merely looking
at or beyond vacant parcels.
In addition, I conclude that as applied to contiguous parcels of
land, subsection 102(14.4)(a) requires that
• at least one of the contiguous parcels must have a
residence on it;
12
• there must be residential improvements on contiguous
parcels on which there are no residences;
• residential improvements on contiguous parcels must be
an integral part of the use of the residence on the
neighboring parcel; and
• the parcels must be used as a unit in conjunction with
the residential improvements on them.
V. Analysis
¶ 20 In the following paragraphs, I ascertain and effectuate the
intent of the General Assembly by considering article 1 of title 39 as
a whole and giving consistent, harmonious, and sensible effect to
the definitions of “residential improvements,” “residential land,” and
“vacant land.” The analysis demonstrates that the second sentence
of subsection 102(14.3), which requires the presence of man-made
structures or water rights, has no meaning or effect when applied to
a parcel on which there is a residence and has meaning and effect
only when it is applied to a parcel that is contiguous to such a
parcel. Based on the analysis, I conclude that, in accordance with
the second sentence of subsection 102(14.3), a parcel that is
13
contiguous to one on which there is a residence can be classified as
residential land only when it has a “building[], structure[], fixture[],
fence[], amenit[y], [or] water right[]” that is “an integral part of the
residential use” of the parcel containing the residence.
A. “Residential Land” and “Residential Improvements”
¶ 21 Plainly stated, the Trust contends that the General Assembly’s
intention in subsection 102(14.4) was to define “residential land” to
mean a parcel of land on which there is a residence and each
contiguous parcel that is under the same ownership and is used in
conjunction with the residence. If this had been the General
Assembly’s intent, it could have and most likely would have written
subsection 102(14.4) using this plain and ordinary language.
However, this is not the language of the statute. The General
Assembly did not include the word “residence” anywhere in
subsection 102(14.4) or subsection 102(14.3). Instead, it used the
term “residential improvements” and provided a lengthy definition
of that term. To effectuate the General Assembly’s intention, we
must give consistent and harmonious effect to subsections
102(14.4) and 102(14.3), and apply subsection 102(14.4) in a
14
manner that does not render any portion of subsection 102(14.3)
meaningless.
B. Applying Subsection 103(14)(c)(I)
¶ 22 Subsection 103(14)(c)(I) states that a parcel “upon which no
buildings or fixtures, other than minor structures, are located” is
“vacant land.” It does not say that such a parcel is “vacant land”
unless it is contiguous to a parcel on which there is a residence.
Nor does it say that such a parcel is “vacant land” unless it is used
in conjunction with a residence located on an adjacent parcel that
is under common ownership. Applying subsection 103(14)(c)(I) in
accordance with the plain and ordinary meaning of the language
used and without inserting any words not present, the Trust’s west
parcel is “vacant land.”
C. Applying Subsection 102(14.3)
1. The Residential Parcel
¶ 23 When the first sentence of subsection 102(14.3) is included in
subsection 102(14.4)(a), it provides that “residential land” means a
parcel “upon which [a building, or that portion of a building,
designed for use predominantly as a place of residency by a person,
a family, or families is] located and that is used as a unit in
15
conjunction with the [building designed for use predominantly as a
place of residency by a person, a family, or families].”
¶ 24 Figure 1 depicts two parcels of land that are under common
ownership.
Figure 1.
As explained above, for either of the parcels to be classified as
“residential land,” at least one of them must have upon it “a
building, or [a] portion of a building, designed for use
predominantly as a place of residency by a person, a family, or
families,” § 39-1-102(14.3), and the land must be “used as a unit in
conjunction with [that building],” § 39-1-102(14.4)(a).
¶ 25 In Figure 2, the left parcel has a swimming pool on it and the
right parcel is vacant.
16
Figure 2.
Despite the presence of an amenity, the left parcel cannot properly
be classified as “residential land” based on the portion of subsection
102(14.3) that states that “residential improvements” includes man-
made structures and water rights because the amenity is not “an
integral part of [a] residential use [of the parcel].”
¶ 26 In Figure 3, the left parcel has a residence on it.
Figure 3.
Here, the left parcel can properly be classified as “residential land”
in accordance with the first sentence of subsection 102(14.3),
because there is located upon it “a building, or that portion of a
building, designed for use predominantly as a place of residency by
a person, a family, or families.”
17
¶ 27 The addition of another building, structure, fixture, fence, or
amenity, such as the amenity depicted in Figure 2, would not
change the classification. Thus, application of the second sentence
of subsection 102(14.3) would have no meaning or effect with
regard to this parcel or any other parcel upon which there is a
residence. Cf. Twilight Ridge, LLC v. Bd. of Cty. Comm’rs, 2018 COA
108, ¶ 24 (“used as a unit” language in subsection 102(14.4)(a) may
not be read out of the statute).
2. The Contiguous Parcel
¶ 28 When the second sentence of subsection 102(14.3) is included
in subsection 102(14.4)(a), “residential land” means “a parcel or
contiguous parcels of land under common ownership upon which
[buildings, structures, fixtures, fences, amenities, 5 and water
5 Section 39-1-102 does not define “amenities.” However, under the
principle of ejusdem generis, the term “amenities” must be
construed to be of the same general nature as these man-made
structures. See Davidson v. Sandstrom, 83 P.3d 648, 656 (Colo.
2004). Hence, “amenities” must be construed to refer to man-made
structures.
18
rights 6 that are an integral part of the residential use] are located
and that is used as a unit in conjunction with the residential
improvements located thereon.”
¶ 29 In Figure 4, the parcel on the left has a residence and the one
on the right only has electrical fixtures and a public coffee kiosk in
the southeast corner.
Figure 4.
Because the parcel on the right does not contain a residence, it
does not qualify as residential land under the first sentence of
subsection 102(14.3). And because the electrical fixtures and kiosk
are not “an integral part of the residential use” of the parcel on the
left, they do not qualify as “residential improvements” under the
second sentence of subsection 102(14.3). And, further, because the
parcel does not have any “residential improvements” located upon
6 The term “water right” means the “right to use in accordance with
its priority a certain portion of the waters of the state.” § 37-92-
103(12).
19
it, it cannot be said that the parcel is being “used as a unit in
conjunction with the residential improvements located thereon.”
Still further, because the electrical fixtures and kiosk are being
used for purposes unrelated to use of the residence, it cannot be
said that the land is being used in conjunction with the residence
on the parcel on the left.
¶ 30 To the extent that the owner looks across the parcel on the
right at tall buildings and city lights in the distance, she is not
using the parcel “in conjunction with the residential improvements
located thereon” because there are no such improvements on the
parcel.
¶ 31 In Figure 5, the parcel on the left has a residence and the
parcel on the right has a garage and a swimming pool that are used
by a person, a family, or families who live in the residence.
20
Figure 5.
The parcel on the left qualifies as “residential land” because there is
a residence located upon it and the land is used as a unit in
conjunction with the residence. The parcel on the right also
qualifies for classification as “residential land” because it is under
common ownership with the parcel on the left, a building and an
amenity are located upon it that are “an integral part of the
residential use” of the land, and the two parcels are “used as a unit
in conjunction with the residential improvements [on them].”
D. Consistency
¶ 32 When construing subsection 102(14.4), we must consider the
statute as a whole and give consistent, harmonious, and sensible
effect to all its parts. We neither add words to a statute nor render
meaningless any words that are present.
21
1. Consistency With Subsection 103(14)(c)(I)
¶ 33 Subsection 103(14)(c)(I) states plainly and without exception
that a parcel upon which there is no building and no structure is
“vacant land.” We cannot add the phrase “unless the parcel is
contiguous to a commonly owned parcel on which a residence is
located.” In addition, construing this provision and subsection
102(14.4)(a) consistently and in accordance with the language in
them, it would be erroneous to conclude that a parcel on which
there is no building and no structure is residential land.
¶ 34 The presence of man-made structures or water rights that are
an integral part of the use of a residence provides an objective basis
to distinguish between residential land and vacant land. It also
enables a rational determination of whether the parcel is used as a
unit in conjunction with a residence. If, as the Trust asserts, there
were no requirement for man-made structures or water rights on a
contiguous parcel, the determination that a vacant parcel is being
used in conjunction with a neighboring residence would be entirely
subjective. Construing subsection 102(14.4) in this manner would
be unworkable. Under a subjective standard, one landowner could
22
assert that she passively benefits from vacant land by looking at a
beautiful vista. Another landowner could assert that she benefits
by looking at people and cars as they pass by. Still another owner
might not assert that she looks at anything in particular. The
assessor would be required to determine whether to believe the
owner. Moreover, landowners with similarly vacant parcels would
be susceptible to disparate application of the statute based on near
or distant objects on the far side of their vacant parcels. If the
General Assembly intended that subsection 102(14.4) be applied as
in Fifield v. Pitkin County Board of Commissioners, 2012 COA 197,
and Hogan v. Board of County Commissioners, 2018 COA 86, and as
asserted by the Trust and the dissent, it could easily and plainly
have drafted the statute to grant residential land classification to all
vacant parcels contiguous to a parcel that has a residence and is
under the same ownership.
2. Consistency With Subsection 102(14.3)
¶ 35 As explained above, subsection 102(14.4)’s definition of
“residential land” requires (1) the presence of “residential
improvements,” which subsection 102(14.3) says must be “an
23
integral part of the residential use,” and (2) that the land be “used
as a unit in conjunction with the residential improvements.” These
subsections must be construed in a manner that is consistent and
does not render any portion meaningless. 7 In this regard, the
second sentence of subsection 102(14.3), which defines “residential
improvements” to include “buildings, structures, fixtures, fences,
amenities, and water rights that are an integral part of the
residential use,” has no meaning when a parcel has a residence on
it and only has meaning when applied to a parcel that is contiguous
to a parcel that has a residence. Concluding that it does not apply
to a contiguous parcel renders it meaningless.
7 The dissent concludes that “there’s no need to distinguish
between [the application of the definition of residential
improvements] to a single parcel of land and an assemblage of
contiguous parcels of land” because the definition of “residential
land” uses the term “residential improvements” as applying to both.
Infra ¶ 80. I agree that the plural term “residential improvements”
applies to both parcels, but, in my view, it means that residential
improvements must be present on both parcels. And it is precisely
because the definition of “residential land” uses the defined term
“residential improvements” that we must ensure that we apply the
latter definition and ensure that it is not rendered meaningless. As
in Fifield and Hogan, the dissent does not do so.
24
E. Rejecting Fifield and Hogan
¶ 36 I decline to apply statements to the contrary in Fifield and
Hogan. Valentine v. Mountain States Mut. Cas. Co., 252 P.3d 1182,
1195 (Colo. App. 2011) (divisions of this court are not bound by the
decisions of other divisions).
¶ 37 In Fifield, the property owners had subdivided a parcel into
two contiguous parcels. One parcel contained their residence and
the other had a paved road and a utility line. Fifield, ¶ 2. The BAA
found that the parcel without the residence did not contain
residential improvements and, therefore, did not qualify as
“residential land.” The division concluded that it was not necessary
for the parcel without the residence to contain residential
improvements to qualify as residential land. However, in reaching
this conclusion, the division did not cite section 39-1-102(14.3),
apply the definition of “residential improvements,” consider whether
the paved road and utility line constituted structures or fixtures
used as “an integral part of the residential use” of the adjoining
parcel, or cite or consider whether its application was consistent
and harmonious with the definition of “vacant land.” Instead,
25
without analyzing the interplay between subsections 102(14.3) and
(14.4)(a) or explaining its reasoning, the division ignored subsection
102(14.3); substituted the constitutional term “residential dwelling
unit” in place of the statutory definition of “residential
improvements”; and stated only that “reading the statute and the
constitutional provision together,” “residential land must (1) contain
a residential dwelling unit, 8 and (2) be used as a unit in conjunction
with the residential improvements on the residential land.” Id. at ¶
9.
¶ 38 As in Fifield, the Hogan division did not cite section 39-1-
102(14.3), apply the definition of “residential improvements,” or
consider whether a sewer line and driveway on a parcel constituted
structures or fixtures used as “an integral part of the residential
use” of the adjoining parcel. As in Fifield, the division did not
address the interplay between subsections 102(14.3) and (14.4)(a)
or include the reasoning underlying its conclusion. Nor did it cite
8 The term “residential dwelling unit” appears in the definition of
“bed and breakfast” in subsection 102(2.5) and nowhere else in
subsection 102. It also appears in article X, section 3 of the state
constitution.
26
or consider whether its application was consistent and harmonious
with the definition of “vacant land.”
¶ 39 The issue in Hogan was not whether residential improvements
were required on the contiguous parcels, but whether the parcel
with the sewer line and driveway was “used as a unit in conjunction
with the residential improvements.” 9 As to that issue, the parcels’
owners argued that “(1) the likelihood of the parcel being conveyed
separately [was] irrelevant; (2) the use of the parcel need not be
necessary or essential to qualify as integral; and (3) use of the
parcel need not be ‘active’ as opposed to merely ‘passive.’” Hogan,
¶ 14.
9 In Hogan, the owners had a home on a parcel of land and bought
two connected and contiguous parcels in separate transactions.
They built a deck that extended from their home across the
boundary line onto the second parcel. The third parcel had an
underground sewer line and an unpaved driveway installed by the
original developer of the subdivision, but was otherwise
undeveloped. The county assessor classified both the second and
third parcels as vacant land. After the owners asked that those
parcels be reclassified as residential land, the assessor agreed that
the parcel onto which the deck extended qualified as residential
land but denied the request to reclassify the third parcel as
residential.
27
¶ 40 In dicta, the division stated that it agreed with the substantive
holding of Fifield and, without discussion, rejected the contrary
holding in Rust v. Board of County Commissioners, 2018 COA 72.
¶ 41 For these reasons, I decline to follow the holdings in Fifield
and Hogan. Valentine, 252 P.3d at 1195.
F. Legal Conclusions
¶ 42 The definition of “residential land” is dependent on the
definition of “residential improvements,” and we must ensure that
we apply subsections 102(14.4)(a) and 102(14.3) in a manner that
is consistent and harmonious. Concluding, as the dissent appears
to do, that the wording of subsection 102(14.4) obviates or belies
the need to apply the second sentence of subsection 102(14.3)
implies that subsection 102(14.4) can properly be applied without
ensuring that the latter sentence is not rendered meaningless.
¶ 43 Applying the two provisions in harmony, I conclude that for
both of two contiguous parcels of land to qualify as “residential
land,” (1) one parcel must have a residence on it; (2) the other must
have a man-made structure or water rights that are an integral part
of the use of the residence on the neighboring parcel; and (3) the
28
land must be used as a unit in conjunction with the residential
improvements on the parcels.
¶ 44 Construing subsections 102(14.3) and 102(14.4) in a manner
that gives consistent, harmonious, and sensible effect to them and
does not render any language meaningless, the second sentence of
subsection 102(14.3) necessarily applies to a parcel that is
contiguous to a parcel on which there is a residence and requires
that a contiguous parcel can be classified as “residential land” only
when it has buildings, structures, fixtures, fences, amenities, or
water rights that are an integral part of the residential use of the
neighboring parcel. See Sullivan, 971 P.2d at 676 (in dicta, stating
that a parcel may qualify for residential classification by containing
a residence or by having residential improvements used as a unit in
conjunction with the residence on a neighboring parcel that is
under common ownership with it).
VI. Conclusions Regarding the Trust’s Application
A. The Vacant Parcel Is Not Used as a Unit in Conjunction with a
Residence
¶ 45 The Trust argues that the Martins use the vacant parcel as a
unit in conjunction with residential improvements by ensuring that
29
it remains vacant, protects the privacy of the residence, and does
not obstruct the ability to see beyond the vacant parcel. We are not
persuaded. We also reject the Trust’s argument that using the
vacant parcel by looking at things beyond it satisfies this
requirement so long as the Martins do not use the parcel for non-
residential purposes such as commerce or agriculture. To the
contrary, this argument illustrates the difference between actively
using land and passively benefiting from it.
¶ 46 The Trust is making the same argument made by the property
owners in Twilight Ridge, ¶ 20. The argument was rejected by the
division in Twilight Ridge, and we reject it here as well. Without
reiterating the entire analysis in Twilight Ridge, we emphasize that
such a construction is at odds with that of the Property Tax
Administrator in the Assessors’ Reference Library (ARL). The ARL
analysis requires inquiry into four factors. The second (“Are the
parcels considered an integral part of the residence and actually
used as a common unit with the residence?”), which was at issue
here, is a separate inquiry from the fourth (“Is the primary purpose
of the parcel . . . for the support, enjoyment, or other non-
30
commercial activity of the occupant of the residence?”), which
would seem to address situations in which a vacant parcel is used
to enhance enjoyment of a residence on a contiguous parcel by
protecting views. 2 Div. of Prop. Taxation, Dep’t of Local Affairs,
Assessors’ Reference Library § 6, at 6.11-.12 (rev. Oct. 2018). The
ARL provides that the answers to all four criteria should be “yes” in
order for a vacant parcel to receive residential classification. Id. at
6.12.
¶ 47 For the reasons stated above as well as those stated in
Twilight Ridge, we are not persuaded otherwise by the Trust’s
reliance on Gyurman v. Weld County Board of Equalization, 851
P.2d 307, 310 (Colo. App. 1993), and Farny, 985 P.2d at 109, both
of which applied subsection 102(14.4)(a) to single parcels. Those
cases do not provide a workable standard that gives effect to the
statutory “used as a unit” language in a multi-parcel case such as
this one. As to this issue, we conclude that the analysis in Rust v.
Board of County Commissioners, 2018 COA 72, is preferable to that
in Hogan.
31
B. The Vacant Parcel Does Not Contain Any Residential
Improvements That Are an Integral Part of the Use of a
Residence
¶ 48 There is no evidence that there are any structures on the
Trust’s west parcel that are an integral part of the residential use of
the residential building on the east parcel.
¶ 49 Mr. Martin testified that he and his wife purchased the two
parcels in the same transaction in 2000 and that they did so to
protect the views, have privacy, and maintain the value of the parcel
with the residence. Mr. Martin testified that there is a DOW fence
along the north boundary of those two parcels and the west
boundary of the west parcel. He said DOW built it and that it was
there when he bought the parcels. Nonetheless, Mr. Martin helped
maintain the fence, maintained a ditch along the west side of the
west parcel, and rented a trencher to remove silt build-up in the
ditch.
¶ 50 Hence, there is no evidence that the fence is on either of the
Trust’s parcels, and there is no evidence that there is any structure
on the west parcel that the Martins regularly use as a material
32
feature of their residential use of the east parcel on which there is a
residence.
¶ 51 Because the Trust’s west parcel does not have any buildings,
fixtures, fences, amenities, or water rights that are an integral part
of the residence on the adjacent parcel, it cannot be classified as
“residential land.”
VII. Conclusion
¶ 52 The west parcel does not qualify for designation as residential
land. The BAA’s order for tax years 2014 denying residential land
designation regarding the west parcel is affirmed, and the order for
tax years 2015-2016 granting such designation for the west parcel
is reversed. The case is remanded to the BAA to issue an order
consistent with the majority’s conclusion that no part of the west
parcel is “residential land” because the parcel is not being used in
conjunction with residential improvements.
¶ 53 Having reached these conclusions, we do not address the
issues of whether “used as a unit in conjunction with the
residential improvements” requires that use of the west parcel be
essential to the residential use, whether the two parcels were under
33
common ownership in 2014, and whether it was proper for the BAA
to apply a mixed classification to the west parcel.
JUDGE VOGT specially concurs.
JUDGE HAWTHORNE dissents.
34
JUDGE VOGT, specially concurring.
¶ 54 I agree with Judge Carparelli that the BAA erred in classifying
any portion of the contiguous parcel as residential for the tax years
in question, and I therefore concur in the result set forth in his
opinion. However, because I conclude that the contiguous parcel
did not satisfy the “used as a unit” requirement for residential
classification, I would resolve the appeal on that basis alone,
without reaching the other issues raised by the parties.
¶ 55 Section 39-1-102(14.4)(a), C.R.S. 2018, provides for residential
use classification for a vacant parcel contiguous to a residential
parcel under common ownership if the vacant parcel is “used as a
unit in conjunction with the residential improvements” on the
residential parcel. Here, the vacant parcel was used to protect the
property owners’ views. In arguing that that use, without more,
was enough to satisfy the statutory “used as a unit” requirement,
the owners contend that using vacant land in any manner (other
than for commercial or agricultural purposes) to “enhance the use
or enjoyment” of the residence satisfies that requirement.
35
¶ 56 As Judge Carparelli notes, this is the same argument made by
the property owners in Twilight Ridge, LLC v. Board of County
Commissioners, 2018 COA 108, ¶ 20. The Twilight Ridge division
rejected the argument for the following reasons: (1) although section
39-1-102(14.4)(a) refers to both “a parcel” and “contiguous parcels
of land under common ownership,” it does not follow from this that
the same facts as those found relevant in single-parcel cases must
necessarily be of equal relevance or importance in contiguous-
parcel cases; (2) the argument ignores the inquiry prescribed in the
ARL for determining whether a vacant contiguous parcel should be
classified as residential; and (3) interpreting “used as a unit” to
mean no more than simply “used” is effectively reading language
out of the statute, which we may not do.
¶ 57 I agree with the analysis and the result in Twilight Ridge and
would follow it here. Because no portion of the contiguous vacant
parcel should have been classified as residential, it is unnecessary
to reach the other issues raised by the parties.
JUDGE HAWTHORNE, dissenting.
¶ 58 I respectfully dissent.
36
¶ 59 I conclude that for contiguous parcels of land to qualify as
residential land for real property tax classification purposes under
section 39-1-102(14.4)(a), C.R.S. 2018,
• residential improvements aren’t required to be located on
each contiguous parcel of land;
• each contiguous parcel may be used for an active or a
passive purpose as long as the assemblage of contiguous
parcels is used as a unit in conjunction with the
residential improvements located on one or more of the
parcels; and
• the contiguous parcels’ use doesn’t have to be essential
to using the residential improvements.
¶ 60 I also conclude that the BAA’s partial classification of the
Trust’s west parcel as residential land was reasonable under the
law because determining residential land’s appropriate size is a
question for the BAA to decide based on the evidence in each case
as to how the taxpayer uses the parcel.
¶ 61 Because I reach these conclusions, I would address an issue
that the majority doesn’t reach: the Trust’s contention that the BAA
37
erred by concluding that the residential and west parcels weren’t
commonly owned for tax year 2014. And I conclude as to that issue
that the BAA erred in denying the Martins’ request to reclassify the
west parcel for tax year 2014 because they overcame the
presumption of ownership created by the clerk and recorder’s title
records, and presented sufficient evidence showing that they were
the west parcel’s functional owners.
¶ 62 But first, I address the majority and specially concurring
opinions. I understand that Judge Vogt would resolve this case on
narrower grounds and may not agree with every aspect of Judge
Carparelli’s opinion. But for simplicity’s sake I’ll refer to all of
Judge Carparelli’s opinion as the majority opinion.
I. Used as a Unit
¶ 63 The Trust contends that the BAA erred by finding that for tax
years 2015-2016 one-third of the west parcel was vacant land
because it misconstrued the statute’s “used as a unit in
conjunction with the residential improvements” element of section
39-1-102(14.4)(a). Specifically, the Trust argues that case law
addressing the phrase “used as a unit” as to single parcels “appl[ies]
38
equally” to contiguous parcels, and that those cases establish that
undeveloped land adjacent to a residential parcel is “used as a unit”
with that parcel when “(1) the land is used in any manner to
enhance the use or enjoyment of the residence — including merely
keeping other people off . . . the land, and (2) the land is not used
for nonresidential purposes such as commerce or agriculture.” So,
according to the Trust, because the west parcel was purchased to
protect the Martins’ residential views, and a house located on that
parcel would impact such views, “[t]hese undisputed facts standing
alone are more than sufficient to require residential classification of
the entire assemblage.”
¶ 64 The County contends that while the BAA’s factual findings are
supported by the record, it erred as a matter of law by reclassifying
two-thirds of the west parcel as residential land for tax years 2015-
2016 because the “used as a unit” element requires that each
parcel of land must contain its own residential improvements. The
majority opinion agrees and, like the County, relies on Sullivan v.
Board of Equalization, 971 P.2d 675 (Colo. App. 1998). The County
further argues that, assuming improvements aren’t required on
39
each parcel, the “used as a unit” element requires “actual, integral
use,” which wasn’t met here because such “‘use’ of the parcel for
buffering, views, or occasional, incidental recreational activities is
clearly not integral, disqualifying the [west] [p]roperty from eligibility
for residential land classification.” Again, the majority opinion
agrees with the County’s argument.
¶ 65 The BAA now also asserts that “passive uses,” such as view
preservation, don’t “satisfy the statutory requirement that an
adjacent parcel be used as a unit in conjunction with a residence.”
But in the alternative, the BAA argues, if preserving a view satisfies
the “used as a unit” requirement, and it properly relied on Fifield v.
Pitkin County Board of Commissioners, 2012 COA 197, to reclassify
the west parcel as mixed residential and vacant land, its factual
findings were correct and its partial classifications should be
upheld.
¶ 66 I respectfully disagree with the majority and specially
concurring opinions on these issues, and I would affirm the BAA’s
classification of a portion of the west parcel as residential land.
40
A. Standard of Review and Applicable Law
¶ 67 A land classification determination for property tax purposes
is a mixed legal and factual question. Kelly v. Bd. of Cty. Comm’rs,
2018 COA 81M, ¶ 10 (citing Home Depot USA, Inc. v. Pueblo Cty. Bd.
of Comm’rs, 50 P.3d 916, 920 (Colo. App. 2002)). We defer to “the
BAA’s classification . . . if it has a reasonable basis in law and is
supported by substantial evidence in the record considered as a
whole.” Farny v. Bd. of Equalization, 985 P.2d 106, 109 (Colo. App.
1999).
¶ 68 Judicial deference to an agency’s statutory interpretation “is
appropriate when the statute before the court is subject to different
reasonable interpretations and the issue comes within the
administrative agency’s special expertise.” Huddleston v. Grand
Cty. Bd. of Equalization, 913 P.2d 15, 17 (Colo. 1996). But “we are
not bound by a decision that misapplies or misconstrues the law.”
Jet Black, LLC v. Routt Cty. Bd. of Cty. Comm’rs, 165 P.3d 744, 748
(Colo. App. 2006). We review interpretations of taxation statutes de
novo. Boulder Cty. Bd. of Comm’rs v. HealthSouth Corp., 246 P.3d
948, 951 (Colo. 2011). “Our primary task is to ascertain and
41
effectuate the intent of the General Assembly.” Moffett v. Life Care
Ctrs. of Am., 219 P.3d 1068, 1072 (Colo. 2009). In construing a
statute, we look to its plain and ordinary language to give effect to
the legislature’s intent. Young v. Brighton Sch. Dist. 27J, 2014 CO
32, ¶ 11. We consider the statute as a whole, construing it to give
consistent, harmonious, and sensible effect to all its parts.
Oakwood Holdings, LLC v. Mortg. Invs. Enters. LLC, 2018 CO 12,
¶ 12.
¶ 69 “The Colorado Constitution states that all taxes upon real
property shall be uniform and distinguishes agricultural and
residential property from other types of real property for assessment
purposes.” Boulder Cty. Bd. of Equalization v. M.D.C. Constr. Co.,
830 P.2d 975, 978 (Colo. 1992) (citing Colo. Const. art. X, § 3(1)(a));
see also Jensen v. City & Cty. of Denver, 806 P.2d 381, 385 (Colo.
1991) (“Uniformity of taxation is required within a class, not
between or among different classes.”).
¶ 70 In 1982, the Colorado Constitution was amended to define
“[r]esidential real property” as that “which shall include all
residential dwelling units and the land, as defined by law, on which
42
such units are located.” Colo. Const. art. X, § 3(1)(b); see H.R. Con.
Res. 1005, 53d Gen. Assemb., 2d Reg. Sess., 1982 Colo. Sess. Laws
691. This amendment created a separate residential land property
tax assessment rate lower than non-residential or non-agricultural
land. See Colo. Const. art. X, § 3(1)(b); Writer Corp. v. Bd. of
Assessment Appeals, 721 P.2d 1212, 1213 (Colo. App. 1986).
¶ 71 The residential land classification statute adopted after the
constitutional amendment, section 39-1-102(14.4)(a), provides as
follows:
“Residential 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. . . . The term
does not include any portion of the land that is
used for any purpose that would cause the
land to be otherwise classified.
¶ 72 The statute’s history shows that the “legislative intent was to
grant homeowners a modicum of tax relief.” Vail Assocs., Inc. v. Bd.
of Assessment Appeals, 765 P.2d 593, 594-95 (Colo. App. 1988).
¶ 73 The Property Tax Administrator (PTA) is statutorily required to
prepare and publish manuals, appraisal procedures, and
43
instructions concerning methods of appraising and valuing land.
§ 39-2-109(1)(e), C.R.S. 2018. The PTA has published the
Assessors’ Reference Library (ARL), which county assessors are
required to follow. Huddleston 913 P.2d at 17-18. The PTA has
interpreted the statutory definition of “residential land” in
subsection 102(14.4) to mean that “[p]arcels of land, under common
ownership, that are contiguous and used as an integral part of a
residence, are classified as residential property.” 2 Div. of Prop.
Taxation, Dep’t of Local Affairs, Assessors’ Reference Library § 6, at
6.11 (rev. Oct. 2018).
¶ 74 The PTA also suggests non-exclusive judgment criteria for
assessors to consider in determining whether contiguous parcels of
land “can be defined as residential property”:
• Are the contiguous parcels under common
ownership?
• Are the parcels considered an integral part
of the residence and actually used as a
common unit with the residence?
• Would the parcel(s) in question likely be
conveyed with the residence as a unit?
• Is the primary purpose of the parcel and
associated structures to be for the support,
44
enjoyment, or other non-commercial activity
of the occupant of the residence?
Id. at 6.11-.12. “If answers to all of these criteria are yes, then it is
likely that the parcel would fall under the residential classification.”
Id. at 6.12. It is undisputed that the parcels at issue in this case
are contiguous parcels.
B. Construing Subsection 102(14.4)(a)
¶ 75 Before explaining in detail why I disagree with the majority
opinion as to the specific issues mentioned above, I explain how I
construe the plain language of the first sentence of subsection
102(14.4)(a): “‘Residential land’ means a parcel or contiguous
parcels of land . . . upon which residential improvements are
located and that is used as a unit in conjunction with the
residential improvements located thereon.” 1
¶ 76 The subsection’s first clause defines residential land as “a
parcel or contiguous parcels of land.” So, without the subsection’s
further qualifying language, one parcel of land or an assemblage of
contiguous parcels of land would constitute residential land under
1
I omit the words “under common ownership” because I address
that separate issue later.
45
the statute. But the General Assembly added qualifying language:
“upon which residential improvements are located.” And that
language, considering later qualifying language in the sentence,
must apply to a parcel or the assemblage of contiguous parcels of
land, not to a parcel and each separate contiguous parcel of land.
This latter interpretation of the phrase doesn’t make sense because
the statute’s language doesn’t indicate that the contiguous parcels
are considered separately. Such an interpretation would be
supported only if the qualifying phrase “upon which residential
improvements are located” instead read “upon each of which
residential improvements are located.” See Auman v. People, 109
P.3d 647, 656-57 (Colo. 2005) (“Just as important as what the
statute says is what the statute does not say. . . . We should not
construe these omissions by the General Assembly as
unintentional.”). And more importantly, the next piece of qualifying
language — the subordinate clause “that is used as a unit” — has a
singular verb. (Emphasis added.) When used with the disjunctive
“a parcel or contiguous parcels of land,” this language indicates that
a parcel and an assemblage of contiguous parcels are to be treated
46
as singular alternatives. (Emphasis added.) It follows then that the
phrase “in conjunction with the residential improvements located
thereon” must mean improvements located on a parcel or an
assemblage of contiguous parcels of land. (Emphasis added.)
¶ 77 Relying on this plain language reading of subsection
102(14.4)(a), I now address the parties’ specific arguments and the
majority and specially concurring opinions’ analysis and rulings as
to those arguments.
C. Residential Improvements Aren’t Required on Each Contiguous
Parcel
¶ 78 First, for the reasons explained above, I disagree with the
County’s contention and the majority opinion’s conclusion that, like
Sullivan, there must be residential improvements located on each of
the contiguous parcels to qualify all of the land constituting the
contiguous parcels as residential land. To interpret the statute this
way would require adding the word “each” to it. A court can’t do
that. Turbyne v. People, 151 P.3d 563, 567 (Colo. 2007) (“We do not
add words to the statute or subtract words from it.”); see People v.
Diaz, 2015 CO 28, ¶ 12.
47
¶ 79 And in Sullivan, the two contiguous parcels at issue didn’t
have common ownership as required by the statute, so the taxpayer
“was relegated to arguing that the undeveloped parcel ‘qualified for
residential classification independently from the adjacent improved
parcel.’” Hogan v. Bd. of Cty. Comm’rs, 2018 COA 86, ¶ 40 (quoting
Sullivan, 971 P.2d at 676). I agree with the other divisions of this
court that have addressed this issue and have concluded that each
contiguous parcel constituting residential land needn’t contain
residential improvements, and that any contrary language in
Sullivan was dicta. See Hogan, ¶ 42; Fifield, ¶ 13. I also
respectfully disagree with the majority opinion’s conclusion that
under subsection 102(14.4)(a) and the second sentence of section
39-1-102(14.3), a parcel of land commonly owned and contiguous
to another parcel on which a residence is located also must have
residential improvements on it to be part of the residential land
“that is used as a unit in conjunction with the residential
improvements located thereon.” I do so because, as explained
above, subsection 102(14.4)(a)’s plain language compels a contrary
reading.
48
¶ 80 So I don’t find persuasive the majority opinion’s analysis that
the definition of “residential improvements” in subsection 102(14.3)
somehow changes the meaning of subsection 102(14.4)(a)’s plain
language. The majority opinion says that because the “residential
improvement” definition includes more than residences, such as
structures, fixtures, fences, amenities, and water rights, those
improvements are required on each contiguous parcel that doesn’t
have a residence on it. Otherwise, the majority opinion concludes,
the expanded “residential improvement” definition is meaningless.
But that conclusion is belied by subsection 102(14.4)(a)’s definition
of “residential land” as a parcel or an assemblage of contiguous
parcels of land on which residential improvements are located.
Under the statute’s plain language, there’s no need to distinguish
between its application to a single parcel of land and an assemblage
of contiguous parcels of land. As Hogan, ¶ 34, said:
[B]y its structure and language, section 39-1-
102(14.4) and the standards it enunciates
apply to both single and multiple-parcel
properties. § 39-1-102(14.4)(a) (“‘Residential
land’ means a parcel or contiguous parcels of
land[.]”) (emphasis added).
49
¶ 81 Further, my reading of subsection 102(14.4)(a)’s plain
language doesn’t compel the conclusion that the expanded
“residential improvement” definition in the second sentence of
subsection 102(14.3) is rendered meaningless. For example, that
language may be relevant to the expanded residential land
definition in the second sentence of subsection 102(14.4)(a): “The
term [residential land] includes parcels of land in a residential
subdivision, the exclusive use of which land is established by the
ownership of such residential improvements.” § 39-1-102(14.4)(a).
The General Assembly may have intended that the exclusive use of
parcels in a residential subdivision is established solely by the
ownership of residential improvements such as those included in
subsection 102(14.3)’s second sentence. So I respectfully disagree
that the majority opinion’s residential land interpretation is the only
one that doesn’t obviate the expanded residential improvements
meaning.
¶ 82 And, I’m not persuaded by the majority opinion’s analysis as
to how section 39-1-103(14)(c)(I), C.R.S. 2018, applies to subsection
102(14.4)(a)’s residential land definition because subsection
50
103(14)(c)(I) expressly says that it defines vacant land “[f]or
purposes of this subsection [103](14).” Also, under subsection
103(14)(a), the General Assembly clearly indicates that all of
subsection 103(14) deals with the methods of appraisal to be used
by assessing officers in properly determining the actual value of
vacant land. The subsection says nothing about using the vacant
land definition for property tax classification purposes or that it
alters the residential land tax classification scheme. See § 39-1-
103(14).
D. There is No “Active” Use Requirement in the Statute
¶ 83 Next, I don’t interpret the word “used” in the statute’s “used as
a unit” phrase as narrowly as the majority and specially concurring
opinions do when they reject the Trust’s argument that using the
west parcel to protect the view from the residence is enough to
satisfy the statutory “used as a unit” requirement.
¶ 84 Instead, I agree with the Hogan division’s rationale and I “find
no statutory support for [such a] restrictive interpretation of
‘use’ . . . [and] see nothing in section 39-1-102(14.4)(a) that would
limit the definition of ‘used’ to ‘active’ uses. The usual meaning of
51
‘used’ is ‘employed in accomplishing something.’” Hogan, ¶ 29
(quoting Merriam-Webster Dictionary, https://perma.cc/XWB7-
7PMD); see also O’Neil v. Conejos Cty. Bd. of Comm’rs, 2017 COA
30, ¶ 26 (“We perceive no unreasonable application of the law in the
Board’s refusal to characterize the property’s use as ‘commercial’
instead of ‘residential’ during the time the property was unoccupied.
In the first instance, ‘homes which stand empty for a period of time
would not lose their residential classification simply because they
were not ‘actually’ being used as a residence.’” (quoting Mission
Viejo Co. v. Douglas Cty. Bd. of Equalization, 881 P.2d 462, 465
(Colo. App. 1994))).
¶ 85 I also agree that “existing case law supports a more expansive
definition of the term.” Hogan, ¶ 30; Gyurman v. Weld Cty. Bd. of
Equalization, 851 P.2d 307, 308 (Colo. App. 1993) (upholding a
residential classification for a 36.75-acre tract, noting that the
“taxpayer testified that he bought the property because he was
looking for at least 40 acres to ‘get some distance’ between himself
and other people and that he used it by ‘looking at the wildlife that
was out there and keeping people off of it’”).
52
¶ 86 While Gyurman didn’t involve multiple parcels, there is
nothing in subsection 102(14.4)’s “used as a unit” language
suggesting that it applies differently to a single parcel than to an
assemblage of contiguous parcels. Hogan, ¶ 34; see § 39-1-
102(14.4)(a) (“‘Residential land’ means a parcel or contiguous
parcels of land[.]”).
¶ 87 I recognize that another division of this court in Rust v. Board
of County Commissioners, 2018 COA 72, held that the BAA didn’t
misconstrue subsection 102(14.4)(a)’s “used as a unit” element, id.
at ¶¶ 4, 7, and rejected the contention “that we should apply the
same standard for multiple parcels of land that we apply to single
parcels” because it didn’t think that the single parcel standard
should apply. Id. at ¶ 11. The division went on to conclude that
the additional requirement for multiple parcels — that the subject
parcel be integral to the residential parcel — was reasonable
because this requirement is unnecessary where only a single parcel
is involved. The division reasoned that a single parcel “is already
integrated by virtue of its inherently unified character.” Id. I
respectfully disagree with this reasoning. Subsection 102(14.4)(a)’s
53
plain language doesn’t create separate standards for single parcels
and an assemblage of contiguous parcels; they’re treated exactly the
same under the statute. And I also respectfully disagree with the
statement in Rust that a single parcel “is already integrated by
virtue of its inherently unified character.” Other divisions of this
court have recognized that single parcels don’t necessarily have an
inherently unified character and that “in the context of a single lot,
the amount of land entitled to residential classification is
determined solely by what portion of the lot is used as a unit in
conjunction with a residential improvement.” Fifield, ¶ 12; also see
Gyurman, 851 P.2d at 310 (“the appropriate size of the residential
acreage which is consistent with the taxpayer’s use of the property”
is a question of fact for the BAA to decide based on the evidence in
each case). So I would decline to follow Rust for this reason.
¶ 88 Also, Rust is distinguishable because the division there
“decline[d] 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.” ¶ 10 n.1. And I’m not bound by the decision of
54
another division of this court. Valentine v. Mountain States Mut.
Cas. Co., 252 P.3d 1182, 1195 (Colo. App. 2011).
1. Unit Doesn’t Mean Essential
¶ 89 The County asserts that the plain meaning of the word “unit”
in the statute’s “used as a unit” phrase means “constituent,” which
itself means “essential.” So, it argues, “there must be credible
evidence that [the west parcel] is an essential part of — i.e., integral
to — the residential improvements.” I disagree.
¶ 90 Again, I read the plain language of the statute — “and that is
used as a unit in conjunction with the residential improvements” —
as referring to the defined “residential land,” which constitutes
either (1) a single parcel or (2) an assemblage of contiguous parcels.
(Emphasis added.) Thus, the statute requires that, to qualify as
residential land, the land (whether a parcel or contiguous parcels)
must be used in conjunction with the residential improvements as a
unit, not as units. In light of the statute’s plain language, the
County’s proposed definition of “unit” as “a single thing, person, or
group that is a constituent of a whole” is, at best, confusing. If the
“unit” constitutes all the land used in conjunction with the
55
residential improvements, to define unit as “a single thing, person,
or group that is a constituent of a whole” would render the entire
residential land assemblage as a constituent of a further undefined
“whole.” Instead, the statute defines residential land as the parcel
or contiguous parcels that are used in conjunction with the
residential improvements on that land as one, also a definition of
unit. See Merriam-Webster Dictionary, https://perma.cc/B6NL-
WZWK.
¶ 91 This definition comports with existing case law requiring that
a residential classification be based on the parcels’ use in
conjunction with the residence. See Fifield, ¶ 9 (“Therefore, here,
taxpayers’ residential land consists of those portions of Lot One and
Lot Two that were used as a unit in conjunction with the home on
Lot One . . . .”) (emphasis added).
2. Integral
¶ 92 The County contends that the statute’s “used as a unit”
element as interpreted by the ARL requires “integral use,” and that
“buffering, views or occasional, incidental recreational activities” do
not constitute integral use. I disagree.
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¶ 93 As to the ARL’s “integral” language, although the statutory
residential land definition doesn’t use the word “integral,” “[I]
nevertheless defer to the ARL in its interpretation if that
interpretation accords with statutory provisions.” Hogan, ¶ 22
(citing HealthSouth Corp., 246 P.3d at 951). “Integral” is defined as
“formed as a unit with another part.” Id. (quoting Merriam-Webster
Dictionary, https://perma.cc/RJ5M-CNFA). This definition is
compatible with the statute’s “used as a unit in conjunction with
the residential improvements” language. § 39-1-102(14.4)(a);
Hogan, ¶ 22. Conversely, the County’s proposed interpretation that
“integral” requires that the parcel’s or contiguous parcels’ use is
“essential” to residential improvements has no support in the
statute. Hogan, ¶ 23. “We do not add words to a statute.”
HealthSouth Corp., 246 P.3d at 951. “Hence, we ‘decline to
judicially rewrite these statutes by adding this language.’” Hogan,
¶ 23 (quoting Marsico Capital Mgmt., LLC v. Denver Bd. of Cty.
Comm’rs, 2013 COA 90, ¶ 25).
¶ 94 I also disagree with the County that Fifield “require[s] the
[s]ubject [p]roperty’s use to be integral to residential improvements.”
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The County argues that Fifield mandates integral use because the
Fifield division cited section 6 of the ARL favorably. But I agree with
the Hogan division that “the issue before the division in Fifield was
different from the issue in [Hogan]. Fifield addressed whether
separate parcels that are commonly owned and contiguous must
each contain a residential improvement to qualify as residential
land.” Hogan, ¶ 43 (citing Fifield, ¶ 11). And the Fifield division
merely held that its interpretation of subsection 102(14.4)(a)
“comport[ed]” with and was “consistent” with the ARL. Fifield, ¶¶
10-11. So Fifield doesn’t compel a different result. Hogan, ¶ 44.
Nor am I bound by the decisions of this court’s other divisions.
Valentine, 252 P.3d at 1195.
¶ 95 Also, I respectfully disagree with the majority and specially
concurring opinions that my reading of subsection 102(14.4)(a) is at
odds with the ARL. To the contrary, my analysis concludes that the
Martins’ view preservation and privacy uses comport with the ARL’s
“integral” language. Just because these uses also easily satisfy the
ARL’s “primary purpose” factor doesn’t mean they then fail to meet
the “integral” or other ARL factors. See 2 Div. of Prop. Taxation,
58
Dep’t of Local Affairs, Assessors’ Reference Library § 6, at 6.11-.12
(rev. Oct. 2018).
¶ 96 For similar reasons, I respectfully disagree with the specially
concurring opinion and the holding in Twilight Ridge, LLC v. Board
of County Commissioners, 2018 COA 108. I agree that “the same
facts as those found relevant in single-parcel cases [aren’t]
necessarily . . . of equal relevance or importance in contiguous-
parcel cases.” Supra ¶ 56. But that reasoning doesn’t allow a
County, or the BAA, to apply different standards to determine when
land is being “used as a unit” within a single parcel and when land
is being “used as a unit” within an assemblage of contiguous
parcels. See M.D.C. Constr. Co., 830 P.2d at 978 (“The Colorado
Constitution states that all taxes upon real property shall be
uniform and distinguishes . . . residential property from other types
of real property for assessment purposes.” (citing Colo. Const. art.
X, § 3(1)(a))); see also Jensen, 806 P.2d at 385 (“Uniformity of
taxation is required within a class . . . .”).
¶ 97 Neither do I see how my conclusion ignores the ARL’s inquiry
“for determining whether a vacant contiguous parcel should be
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classified as residential,” supra ¶ 56, because, as I’ve concluded
above, the Martins’ use complies with the ARL’s “integral” language.
¶ 98 The Martins bought the west parcel with the residential parcel
in 2000. The uncontroverted evidence at the hearing showed that
the Martins refused to buy the residential parcel separately, without
the west parcel, because the west parcel “so affected our views and
privacy . . . . And we felt that the construction of another home
back there . . . that is behind our house in the direction of the open
space . . . would substantially diminish our enjoyment of the
property.” For the County to decide almost two decades later that
the west parcel isn’t an integral part of the Martins’ residence
ignores the Martins’ perceived residential value they originally
placed on the west parcel, simply because it’s a distinct parcel.
That’s not what the law intends.
¶ 99 So I disagree that my broader interpretation of “‘used as a
unit’ . . . effectively . . . read[s] [the] language out of the statute.”
Supra ¶ 56. This interpretation is consistent with the statute’s
plain language and established precedent, and it furthers the
statute’s purpose “to grant homeowners a modicum of tax relief.”
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Vail Assocs., 765 P.2d at 595; see § 39-1-102(14.4)(a); Gyurman,
851 P.2d at 308.
II. Mixed Classification
¶ 100 Both the Trust and the County contend that the BAA erred by
classifying the west parcel as partly residential and partly vacant.
The majority doesn’t reach this issue. Because of my resolution of
the other issues raised by the parties, I am required to address it,
and I disagree with the Trust and the County.
¶ 101 Specifically, the Trust asserts that the west parcel should have
been classified as all residential because there was “no evidence of a
non-residential use that would support a mixed classification.” It
relies on Farny. See 985 P.2d at 110 (“[B]ased upon the evidence
presented at the BAA hearing, there is no basis for saying that some
part of the land was used for a different purpose. Hence, the BAA
properly found that all of the land should be classified as residential
based on taxpayers’ use of it in conjunction with their residential
use of the cabin.”).
¶ 102 The County asserts that under the taxation statute’s section
that creates a scheme for classifying land as mixed-use, section
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39-1-103(9), vacant land is not a statutory “use of land,” and
because the residential improvements on the residential parcel were
“not used for commercial or agricultural purposes, the [s]ubject
[parcel] could only be classified, as a whole, as either ‘vacant land’
or ‘residential land.’”
¶ 103 The BAA agrees that the mixed-use statute doesn’t address
vacant land classifications, but instead relies on Fifield for the
proposition that land may be partially classified as residential. See
Fifield, ¶ 14 (“[W]e remand the case to the BAA to determine what
portions of Lot One and Lot Two were used as a unit in conjunction
with a residential improvement for tax years 2008 and 2009 . . . .”)
(emphasis added).
¶ 104 I conclude that the BAA’s partial classification was reasonable
under the law.
¶ 105 Colorado precedent establishes that classifying a parcel’s use
is a factual decision. Farny, 985 P.2d at 110 (“[T]he determination
as to the amount of acreage entitled to residential classification
consistent with its use in conjunction with the residential
improvements is a question of fact for the BAA to decide based on
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the evidence in each particular case.”); Gyurman, 851 P.2d at 310
(“[T]he determination of the appropriate size of the residential
acreage which is consistent with the taxpayer’s use of the property
is also a question of fact for the BAA to decide based on the
evidence in each particular case.”).
¶ 106 A residential classification isn’t an all or nothing
determination as to each parcel. § 39-1-102(14.4)(a) (“[Residential
land] does not include any portion of the land that is used for any
purpose that would cause the land to be otherwise classified[.]”);
§ 39-1-103(9) (mixed use property classifications); Fifield, ¶ 14;
Gyurman, 851 P.2d at 309-10 (“[T]here is no prescribed limit on the
amount of acreage which may be entitled to residential
classification as being a part of a taxpayer’s residence. . . . As a
result, depending on the facts in a particular case, the amount of
such residential acreage may be either the taxpayer’s entire
property or only some lesser portion thereof, whichever is consistent
with the taxpayer’s use of the property.”).
¶ 107 And I disagree with the County that the mixed-use statutory
scheme controls this situation. That statutory scheme is
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inapplicable to the west parcel, as it only applies to parcels of land
containing improvements. See § 39-1-103(9)(a) (“In the case of an
improvement which is used as a residential dwelling unit and is
also used for any other purpose . . . .”); § 39-1-103(9)(b) (“In the
case of land containing more than one improvement, one of which is
a residential dwelling unit . . . .”).
¶ 108 I also disagree with the Trust that Farny mandates that the
west parcel must be fully classified as residential land because
“there is no basis for saying that some part of the land was used for
a different purpose.” 985 P.2d at 110. In Farny, the BAA classified
a single parcel containing a residential dwelling as completely
residential. But in this case, the BAA classified an unimproved
parcel of land as partly residential based on its use as part of an
assemblage of contiguous parcels in conjunction with the
residential improvements thereon. So Farny is distinguishable.
III. Common Ownership
¶ 109 The Trust contends that the BAA erred by finding that the
west parcel was vacant land for tax year 2014 because it
misconstrued the “common ownership” element. Specifically, the
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Trust asserts that the term means “substantially overlapping
ownership or control” and is “not synonymous with ‘identical
ownership.’” It also argues that the Martins were equal beneficial
owners of both parcels — as joint tenants of the residential parcel
and the sole partners in the partnership that owned the west parcel
— so they commonly owned both parcels.
¶ 110 I agree that the BAA erred.
A. Determining Ownership for Residential Real Property Tax
Classification Requires a Functional Analysis
¶ 111 The term “common ownership” for property tax classification
purposes isn’t defined by the statute. And the PTA “has not defined
‘common ownership,’ or offered guidance to assessors on
determining whether two parcels are ‘under common ownership.’”
Kelly, ¶ 12.
¶ 112 The division in Kelly addressed the statute’s “common
ownership” element, concluding that “ownership of contiguous
parcels for purposes of subsection 102(14.4)(a) depends upon a
person’s or an entity’s right to possess, use, and control the
contiguous parcels,” and isn’t limited to “record titleholders.” Id. at
¶¶ 19, 22.
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¶ 113 I agree with that conclusion. Colorado courts have long taken
a “substance over form” approach to assessing ownership in
property tax cases by looking “beyond bare record title and instead
focus[ing] on who has the power to possess, use, enjoy, and profit
from the property.” Id. at ¶ 16; see Bd. of Cty. Comm’rs v. Vail
Assocs., Inc., 19 P.3d 1263, 1278-79 (Colo. 2001) (outlining
“‘significant incidents of ownership’ of interests in tax-exempt
property”); Mesa Verde Co. v. Bd. of Cty. Comm’rs, 178 Colo. 49, 54,
495 P.2d 229, 232 (1972) (looking beyond “form and labels in order
to ascertain the real ownership interest involved” when a state tax
is assessed against federal property); HDH P’ship v. Hinsdale Cty.
Bd. of Equalization, 2017 COA 134, ¶¶ 25-26 (cert. granted Apr. 9,
2018); Gunnison Cty. v. Bd. of Assessment Appeals, 693 P.2d 400,
404 (Colo. App. 1984) (record title does not determine ownership;
rather, “[t]he question of ownership for tax purposes must be
decided on the basis of ‘real ownership’ rather than ‘forms and
labels’”).
¶ 114 The cases relied on by the County and BAA to support their
argument that ownership for tax purposes is determined only by
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record title aren’t persuasive. In fact, some support a functional
ownership analysis. For example, in Salazar v. Terry, 911 P.2d
1086 (Colo. 1996), the court discussed common ownership in the
context of prior owners’ acquiescence to legal boundaries of land.
The court didn’t define “ownership” or indicate what analysis was
required to determine it, because the same entity had record title to
both parcels. But it considered the corporation’s underlying sole
stockholder as the common owner. See id. at 1088 (“Therefore,
between November 3, 1977, and November 18, 1977, Mills Ranches
owned both the Salazar and Terry Tracts simultaneously for fifteen
days. During this fifteen-day period, Jerry Mills, as sole
stockholder and principal of Mills Ranches, was the common owner
of both tracts.”).
¶ 115 In Westpac Aspen Investments, LLC v. Residences at Little Nell
Development, LLC, 284 P.3d 131, 136 (Colo. App. 2011), the division
held that an easement had not terminated under the doctrine of
merger, affirming the trial court’s finding “when it concluded that
the two lots were not owned in a ‘completely identical manner.’” Id.
at 137. The division didn’t define “ownership,” but simply noted
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that in the easement context, “common ownership ‘must be
absolute, not defeasible or determinable, and coextensive, rather
than owned in different fractions.’” Id. at 136 (quoting Brush Creek
Airport, L.L.C. v. Avion Park, L.L.C., 57 P.3d 738, 748 (Colo. App.
2002)). And in Westpac, unlike here, at least one owner didn’t have
any ownership interest in one parcel. See id. at 137 (“Notably,
because [an owner of Lot 2] did not possess an ownership interest
in Lot 3, she still required an easement to access Lot 2 . . . . This
situation highlights why common ownership of both estates must
be absolute in order to extinguish an easement.”).
¶ 116 Traer Creek-EXWMT LLC v. Eagle County Board of Equalization,
2017 COA 16, is also inapplicable. There, the division held that a
person with only a leasehold interest didn’t have “statutory
standing to object to and protest the assessor’s valuation of real
property in fee.” Id. at ¶¶ 10-15.
¶ 117 And contrary to the County’s assertion, Citibank, N.A. v. Board
of Assessment Appeals, 826 P.2d 871, 872 (Colo. App. 1992),
supports using a functional ownership analysis. The division in
that case rejected the petitioner’s argument that “since beneficial
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ownership of the commercial lots rests with Denver, Denver was the
owner of the commercial lots for tax purposes.” Id. at 872. The
division also distinguished the facts applicable to ownership in
Gunnison County v. Board of Assessment Appeals, 693 P.2d 400
(Colo. App. 1984), from the facts in its case. See id. at 872-73 (“In
Gunnison County . . . this court noted that the county occupied and
controlled the property, controlled construction and improvements
of the property, maintained and insured the property, and retained
an option to purchase the property. Here, Denver has not occupied
the commercial lots, nor has it constructed any improvements on
this property. Rather, the record indicates that during 1984-87,
Denver, at most, simply considered the property in its planning for
the construction of its new airport.”) (citation omitted).
¶ 118 While assessors must determine real property ownership for
property tax classification purposes from the clerk and recorder’s
records, these records create only a rebuttable presumption of
ownership. See § 39-5-102(1), C.R.S. 2018 (providing that
assessors determine real property ownership through the clerk and
recorder, but a person claiming interest in the property “may file a
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schedule with the assessor, specifying such interest”);
§ 39-5-122(2), C.R.S. 2018 (providing a process for taxpayers to
challenge assessment); see also HDH P’ship, ¶ 16 (concluding that
record title creates a rebuttable presumption, but isn’t conclusive
evidence of ownership). “So, if, as here, a taxpayer seeks to
reclassify a parcel, the burden is not on the assessor to justify the
initial classification or prove ownership. Instead, the burden shifts
to the taxpayer to show that the ownership presumption accorded
to the record titleholder is not correct.” Kelly, ¶ 21; see Gyurman,
851 P.2d at 310 (the taxpayer has the burden to rebut the
presumption that the county assessor’s classification is correct). If
the taxpayer can’t rebut the presumption, then the record title
establishes ownership for the assessor’s property tax classification
purposes.
¶ 119 The BAA argues that using a functional analysis in
determining ownership is “unfair” by “allow[ing] the [p]artnership to
take advantage of [the] benefits of the limited liability limited
partnership when it is favorable to it, while eschewing its corporate
identity when it is more favorable to be identified as individuals.”
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I’m not persuaded. The limited liability of partners in a partnership
has nothing to do with determining “common ownership” under
subsection 102(14.4)(a), whether one uses a functional analysis or a
record title search. Also, the cases relied on by the BAA are
inapposite. But I emphasize that my conclusion is limited solely to
the assessor’s process of classifying residential real property under
subsection 102(14.4)(a).
B. Evidence of Ownership
¶ 120 Now I turn to the evidence presented at the BAA hearing about
the parcels’ ownership. And I don’t need to address the statute’s
“common” element, because if the Martins are the west and
residential parcels’ owners, no commonality issue exists because
the parcels are owned identically.
¶ 121 Mr. Martin testified that in 2014, while the partnership held
record title to the west parcel and the Martins held record title to
the residential parcel, the parcels weren’t used differently and there
was no practical change in who controlled the parcels. He said that
he and his wife transferred the west parcel into the partnership on
counsel’s advice for estate planning reasons, and that he and his
71
wife were the partnership’s sole equal general and limited partners.
The Martins equally shared control of both the west and residential
parcels in 2014, both were allowed to use and occupy each parcel,
and the parcels weren’t treated as separately owned. He testified
that he and his wife had considered themselves as both parcels’
owners since they purchased them in 2000 and had always
considered the parcels to be a “single integrated property.”
¶ 122 The County Assessor testified that the parcels weren’t
commonly owned in 2014 because there wasn’t “exact ownership”
between the record titles. On cross-examination, the Assessor
agreed that both parcels were “functionally” owned by the Martins.
The County presented no other evidence disputing that the Martins
used, possessed, and controlled both parcels, or that they were the
equitable owners of the west parcel.
¶ 123 While the BAA didn’t find the Martins’ evidence of use,
possession, and control of the west parcel determinative, the
undisputed evidence showed that the Martins, as the partnership’s
sole general and limited partners, enjoyed the “traditional benefits
of real property ownership.” Kelly, ¶ 28 (quoting HDH P’ship, ¶ 26).
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¶ 124 Because the Martins overcame the presumption of ownership
of the west parcel created by the clerk and recorder’s title records
by presenting sufficient undisputed evidence showing that they
were the west parcel’s functional owners, the BAA erred in denying
their request to reclassify the west parcel for tax year 2014. Id. at
¶ 29.
IV. Conclusion
¶ 125 I would reverse the BAA’s order for tax years 2014-2015 and
remand to the BAA to reclassify those portions of the west parcel for
tax year 2014 as residential land consistent with tax years 2015-
2016. Kelly, ¶ 41 (remand for new hearing not necessary where the
party’s “undisputed right to use, possess, and control the
residential and subject parcels . . . leads . . . to the legal conclusion
that the parcels were under common ownership”). I would affirm
the BAA’s order for tax year 2016.
73