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 3, 2018

No. 17CA0435, Bringle Family Trust v. Bd. of Cty. Comm’rs — Taxation — Property Tax — Residential Land

A division of the court of appeals considers whether the

Colorado Board of Assessment Appeals erroneously declined to

reclassify a parcel of land as residential, rather than vacant, for tax

purposes. The division determines that land parcels are contiguous

— which is necessary to obtain property tax reclassification as

residential land under section 39-1-102(14.4)(a), C.R.S. 2017 —

only if they touch. Because a public right-of-way completely

separates the petitioner’s vacant and residential parcels, the

division concludes that the subject vacant parcel does not meet

section 39-1-102(14.4)(a)’s contiguity requirement.

Accordingly, the division affirms the order COLORADO COURT OF APPEALS

Court of Appeals No. 17CA0435 Colorado Board of Assessment Appeals Case No. 68817

Bringle Family Trust,

Petitioner-Appellant,

v.

Board of County Commissioners of Summit County, Colorado,

Respondent-Appellee,

and

Colorado Board of Assessment Appeals,

Appellee.

ORDER AFFIRMED

Division VI Opinion by JUDGE FOX Furman and Ashby, JJ., concur

Announced May 3, 2018

Ryley Carlock & Applewhite, F. Brittin Clayton III, Denver, Colorado, for Petitioner-Appellant

Jeffrey L. Huntley, County Attorney, Franklin Celico, Assistant County Attorney, Breckenridge, Colorado, for Respondent-Appellee

Cynthia H. Coffman, Attorney General, Emmy A. Langley, Assistant Solicitor General, Denver, Colorado, for Appellee ¶1 This property tax appeal concerns two land parcels — one

classified as residential and one as vacant — owned by the Bringle

Family Trust (the Trust). The Trust appeals the order of the

Colorado Board of Assessment Appeals (the Board) upholding one

parcel’s classification as vacant, rather than residential, land.

Because the Board correctly determined that the Trust failed to

show that the vacant parcel satisfied the contiguity requirement of

section 39-1-102(14.4)(a), C.R.S. 2017, which is necessary to obtain

property tax reclassification as residential land, we affirm.

I. Background

¶2 The Trust owns a parcel of land in Summit County, Colorado

(the residential parcel). The Trust also owns a parcel of land (the

subject parcel) located across a public road from the residential

parcel. The road between the Trust’s parcels is a public

right-of-way maintained by the Bills Ranch Subdivision Association.

The parcels, depicted below, are platted lots in the Bills Ranch

Subdivision.

1 ¶3 Charles Bringle is the owner representative of the Trust.

Bringle’s parents purchased separate, adjacent parcels of land —

that now constitute the subject parcel — during the 1950s.

Bringle’s parents built a home and an outhouse on the subject

parcel around 1951. About ten years later, Bringle’s parents

purchased separate, adjacent parcels that now comprise the

residential parcel. Around 1962, Bringle’s parents moved the house

— but not the outhouse — from the subject parcel to the residential

2 parcel in order to make additions to the house. In 1995, the

subject and residential parcels — which were six distinct parcels

when purchased — were replatted into two parcels separated by a

public road.

¶4 In early 2016, the Trust petitioned the Board of County

Commissioners of Summit County (the County) for an abatement or

refund of taxes pursuant to section 39-10-114, C.R.S. 2017,

arguing that the subject parcel’s property tax assessment

classification should be changed from vacant to residential for tax

years 2013 to 2015. During those years, the subject parcel was

taxed at a rate about three times higher than the residential

parcel’s rate because of its vacant land classification. The County

denied the Trust’s petitions in March 2016.

¶5 In April 2016, the Trust appealed the County’s decision,

petitioning the Board to reclassify the subject parcel from vacant to

residential for 2013 to 2015. The Trust and the County disputed

whether the subject parcel was “contiguous” to the residential

parcel and was “used as a unit in conjunction with the residential

improvements located thereon” as contemplated by section

39-1-102(14.4)(a). After a hearing, the Board denied the Trust’s

3 petition in a January 2017 order, finding against the Trust on both

issues.

II. The Board’s Order

¶6 The Trust contends that the Board erroneously denied its

petition by misconstruing section 39-1-102(14.4)(a) to conclude that

the subject parcel was not contiguous to the residential parcel or

“used as a unit in conjunction with the residential improvements

located thereon.” According to the Trust, two non-touching parcels

may satisfy section 39-1-102(14.4)(a)’s contiguity element if “they

are in close proximity and are separated only by a road, easement,

or other right of way that does not impede movement between the

parcels.”

¶7 We conclude that the Board correctly determined that the

Trust failed to show that the subject parcel satisfied section

39-1-102(14.4)(a)’s contiguity requirement, although for reasons

different from the Board’s.1 See Makeen v. Hailey,

,

1 Our interpretation of section 39-1-102(14.4)(a), C.R.S. 2017, set forth below, belies the Board’s determination that “physical characteristics and integrated or conflicting uses may render two parcels which do not ‘touch’ to be ‘sufficiently contiguous’ to constitute a single parcel for residential classification purposes[.]” See Marshall v. Civil Serv. Comm’n,

(stating that

4 ¶ 21 (noting that we may affirm on any grounds supported by the

record). In light of our determination, we will not address the

Trust’s contention that the subject parcel meets section

39-1-102(14.4)(a)’s “used as a unit” requirement.

A. Preservation and Standard of Review

¶8 The parties agree that these issues were preserved.

¶9 We will set aside the Board’s order only if the order constituted

an abuse of discretion or was arbitrary and capricious, based upon

findings of fact that were clearly erroneous, unsupported by

substantial evidence, or otherwise contrary to law. Boulder Cty. Bd.

of Comm’rs v. HealthSouth Corp.,

(Colo. 2011);

see also § 24-4-106(7), C.R.S. 2017. “Substantial evidence is

probative evidence that would warrant a reasonable belief in the

existence of facts supporting a particular finding, without regard to

the existence of contradictory testimony.” Ward v. Dep’t of Nat.

Res.,

(Colo. App. 2008). It is the Board’s role, not

ours, to weigh the evidence and resolve any conflicts. Home Depot

we “defer to the interpretation of a statute or a regulation by the agency charged with its administration[ only if] the interpretation has a reasonable basis in the law and is supported by the record”).

5 USA, Inc. v. Pueblo Cty. Bd. of Comm’rs,

(Colo.

App. 2002).

¶ 10 While the “ultimate determination as to the appropriate

classification of property for property tax purposes involves mixed

issues of law and fact,” the taxpayer has the burden to establish the

basis for “any reclassification claims concerning the subject

property.”

.

¶ 11 We consider an agency’s determination to the extent it accords

with statutory provisions, but the interpretation of statutes

presents a question of law that we review de novo.

In

construing legislation, we look first to the plain language of the

statute, reading it as a whole. Young v. Brighton Sch. Dist. 27J,

. Then, if the language is ambiguous, we

“construe the statute in light of the General Assembly’s objective,”

presuming “that the legislature intended a consistent, harmonious,

and sensible effect.” Anderson v. Vail Corp.,

(Colo. App. 2010).

¶ 12 “[W]e presume that the General Assembly understands the

legal import of the words it uses and does not use language idly,

but rather intends that meaning should be given to each word.”

6 Dep’t of Transp. v. Stapleton,

(Colo. 2004). “[I]n

determining the meaning of any one statutory section, we may look

to the legislative scheme as a whole in order to give effect to the

General Assembly’s intent.”

And, we “defer to the interpretation

of a statute or a regulation by the agency charged with its

administration, provided the interpretation has a reasonable basis

in the law and is supported by the record.” Marshall v. Civil Serv.

Comm’n,

.

B. Law

¶ 13 The Colorado General Assembly has defined “[r]esidential

land” as “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.” § 39-1-102(14.4)(a) (emphasis

added); see also Colo. Const. art. X, § 3(1)(b) (“Residential real

property . . . include[s] all residential dwelling units and the land,

as defined by law, on which such units are located[.]”).

¶ 14 The parties did not identify — and we have not found — a

Colorado appellate case interpreting the meaning of section

39-1-102(14.4)(a)’s contiguity requirement. And, divisions of this

7 court are divided as to whether a parcel — used as a unit in

conjunction with a residential dwelling on a contiguous parcel —

must contain residential improvements to be properly classified as

residential property for tax purposes. Compare Sullivan v. Bd. of

Equalization,

(Colo. App. 1998) (“[A] particular

parcel of land may qualify for residential classification” by (1) “itself

containing a residential dwelling unit that is used as such” or (2)

“having residential improvements other than a dwelling unit and

being used as a unit in conjunction with a residential dwelling unit

located on a contiguous parcel that is under common ownership.”),

with Fifield v. Pitkin Cty. Bd. of Comm’rs,

(declining to follow Sullivan,

, as dicta and

determining that the taxpayers’ residential land consisted of “those

portions of Lot One and Lot Two that were used as a unit in

conjunction with the home on Lot One (assuming that there were

no additional residential improvements on either lot)”).

¶ 15 The Property Tax Administrator (PTA) is charged with

enforcing the pertinent statute. Golden Gate Dev. Co. v. Gilpin Cty.

Bd. of Equalization,

(Colo. App. 1993). The PTA has

interpreted subsection 102(14.4)(a)’s definition of “residential land”

8 in the Assessors’ Reference Library (ARL), which is binding for

county assessors. See § 39-2-109(1)(e), C.R.S. 2017; see also

Huddleston v. Grand Cty. Bd. of Equalization,

(Colo.

1996). According to the operative version of the ARL, a “residential

land” classification requires “[p]arcels of land, under common

ownership, that are contiguous to land used for a residence and

used as an integral part of a residence.” 2 Div. of Prop. Taxation,

Dep’t of Local Affairs, Assessors’ Reference Library § 6, at 6.10-6.11

(rev. July 2012). The ARL states that a “physical inspection will

provide information critical” to determining a parcel’s classification.

Id. It also provides a non-exhaustive list of relevant criteria for

county assessors to consider, including, “Are the parcels considered

and actually used as a common unit with the residence?” and,

“Would the parcel(s) in question be conveyed with the residence as

a unit?” Id.

C. Analysis

¶ 16 The Trust’s challenge to the Board’s standing (or ability to file

a brief in the subject appeal) is misplaced. See § 24-4-106(11)(d)

(mandating that an agency shall be designated as an appellee when

judicial review of the agency’s action is directed to this court and

9 that the “docketing of the appeal and all procedures thereafter shall

be as set forth in the Colorado appellate rules”); see also C.A.R.

28(b), (h) (discussing an appellee’s ability to file a brief and detailing

related requirements); Capital Assocs. Int’l, Inc. v. Arapahoe Cty. Bd.

of Comm’rs,

(Colo. App. 1990) (“[W]e hold that

when judicial review of a decision of the [Board] is sought, that

board must be joined as a party to such proceedings.”); cf. B.C., Ltd.

v. Krinhop,

(Colo. App. 1991) (“Because a

court’s judgment in de novo proceedings may affect the action of a

board of equalization in the exercise of its constitutional duties, the

board must be joined in order to protect its constitutionally

conferred interests, to afford complete relief among all affected or

interested persons or entities, and to assure the adequacy of the

court’s judgment.”).

¶ 17 Pursuant to subsection 102(14.4)(a) and the ARL, the subject

parcel must be “contiguous” to the residential lot in order to be

properly classified as residential property for tax purposes.

According to the term’s generally accepted meaning, two things

must actually touch to be “contiguous.” See Black’s Law Dictionary

386 (10th ed. 2014) (defining “contiguous” as “[t]ouching at a point

10 or along a boundary”); Merriam-Webster Dictionary,

https://perma.cc/B4C9-H4RS (defining “contiguous” as “being in

actual contact,” “touching along a boundary or at a point,” or

“touching or connected throughout in an unbroken sequence”);

Oxford English Dictionary, https://perma.cc/H7UX-YEAH (defining

“contiguous” as “[s]haring a common border; touching” and noting

that the term originates from the Latin word “contiguus ‘touching’,

from the verb contingere ‘be in contact, befall’”). The statutory

scheme and the ARL do not define “contiguous,” nor do they qualify

the use of the term, in the context of residential property

classifications. Thus, we conclude that subsection 102(14.4)(a)’s

language unambiguously means that two parcels must actually

touch to be contiguous and, thereby, to constitute residential

property. Young, ¶ 11.

¶ 18 Our reading of subsection 102(14.4)(a) accords with the plain

language’s generally accepted meaning and the PTA’s interpretation

of the statute provided in the ARL. See Fifield, ¶ 10 (noting that we

owe deference to the PTA’s interpretation of the statute it is charged

with administering). Subsection 102(14.4)(a) and pertinent ARL

sections address parcels that are “contiguous,” not “sufficiently

11 contiguous.” See HealthSouth Corp.,

(“We do not

add words to a statute.”); see also supra note 1.

¶ 19 Given our interpretation of subsection 102(14.4)(a),

“contiguity” in the residential property tax classification context is

distinguishable from the meaning of “contiguity” in other contexts.

¶ 20 In statutes concerning subdivision exemption plats and

municipal annexations, for example, the General Assembly qualified

its use of “contiguous,” specifying that contiguity is not affected by

intervening obstacles, such as a right-of-way. See § 30-28-302(5),

C.R.S. 2017 (“‘Parcel’ means a contiguous area of land, except for

intervening easements and rights-of-way[.]”); § 31-12-104(1)(a),

C.R.S. 2017 (“Contiguity shall not be affected by the existence of a

platted street or alley, a public or private right-of-way, a public or

private transportation right-of-way or area, public lands, . . . or

other natural or artificial waterway between the annexing

municipality and the land proposed to be annexed.”); see also Town

of Erie v. Town of Frederick,

(Colo. App. 2010)

(“Contiguity is not affected by the existence of a public or private

right-of-way between the annexing municipality and the land

proposed to be annexed.”). By contrast, neither subsection

12 102(14.4)(a) nor the ARL qualifies its use of the term “contiguous”

to negate the effect of an intervening public right-of-way.

¶ 21 Further, the Colorado Supreme Court’s discussion of

contiguity in Douglas County Board of Equalization v. Clarke,

(Colo. 1996), is inapplicable here. At issue in Clarke

was, in the context of property tax classifications of ranches as

agricultural land, whether an area of land

is a segregated parcel that should be treated as a single unit; or whether it is part of an integrated larger parcel[ — a factual determination] controlled by whether the land is sufficiently contiguous to and connected by use with other land to qualify it as part of a larger unit or whether it is a parcel segregated by geography or type of use from the balance of the unit.

¶ 22 The Clarke court interpreted section 39-1-102(1.6)(a)’s

definition of “agricultural land” and the word “parcel” as used in

section 39-1-102(13.5), which says “‘[r]anch’ means a parcel of land

which is used for grazing livestock for the primary purpose of

obtaining a monetary profit.” See Clarke,

. The

court concluded that the taxpayer must “prove that the land was

actually grazed unless (1) the reason the land was not grazed

13 related to a conservation practice; or (2) the land is part of a larger

functional agricultural unit on which grazing or conservation

practices have been occurring.”

(emphasis added).

¶ 23 The word “contiguous” does not appear in sections 39-1-

102(1.6)(a) or 39-1-102(13.5), but the General Assembly used the

term in section 39-1-102(14.4)(a). See Stapleton,

(“[T]he General Assembly understands the legal import of the words

it uses and does not use language idly, but rather intends that

meaning should be given to each word.”). Moreover, the Clarke

court addressed agricultural classifications and conservation

practices regarding grazing; the court did not interpret or discuss

subsection 102(14.4)(a) or residential classifications. Accordingly,

our interpretation of subsection 102(14.4)(a)’s contiguity

requirement does not conflict with the Clarke court’s understanding

of contiguity with regard to an agricultural “parcel” as contemplated

by subsections 102(1.6)(a) or 102(13.5).

¶ 24 Although the Trust’s subject and residential parcels were

initially acquired as six separate parcels, they were replatted as two

distinct parcels separated by a public road that the Trust does not

own. The subject parcel and the residential parcel do not touch at

14 any point.2 We therefore conclude that the Trust failed to show that

the subject parcel meets subsection 102(14.4)(a)’s contiguity

requirement and, thus, the Board correctly declined to reclassify

the subject parcel as residential property. See HealthSouth Corp.,

; Makeen, ¶ 21.

III. Conclusion

¶ 25 The Board’s order is affirmed.

JUDGE FURMAN and JUDGE ASHBY concur.

2This opinion addresses whether a public right-of-way completely dividing two distinctly platted parcels defeats contiguity pursuant to section 39-1-102(14.4)(a). Any question of whether another obstacle, such as a private easement, would defeat subsection 102(14.4)(a)’s contiguity requirement is not before us.

15