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

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,

, 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

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,

, ¶ 10 (citing Home Depot USA, Inc. v. Pueblo Cty. Bd.

of Comm’rs,

(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,

(Colo. App.

1999). We may affirm an agency’s legal conclusion on any grounds

4 supported by the record. See Joseph v. Mieka Corp.,

; Rush Creek Sols., Inc. v. Ute Mountain Ute Tribe,

(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.,

(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,

. 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,

. 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,

(Colo. 2009) (citing Fabec v. Beck,

(Colo. 1996)). In addition, we must not adopt an

interpretation that leads to an illogical or absurd result. Frazier v.

People,

(Colo. 2004). Last, “[w]e do not add words

5 to a statute.” Boulder Cty. Bd. of Comm’rs v. HealthSouth Corp.,

(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.,

(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,

(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,

, ¶ 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,

(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,

,

and Hogan v. Board of County Commissioners,

, 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.,

(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,

.

¶ 41 For these reasons, I decline to follow the holdings in Fifield

and Hogan. Valentine,

.

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,

(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,

(Colo. App. 1993), and Farny,

, 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,

, 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,

, ¶ 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,

(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,

, 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,

, ¶ 10 (citing Home Depot USA, Inc. v. Pueblo Cty. Bd.

of Comm’rs,

(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,

(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,

(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,

(Colo. App. 2006). We review interpretations of taxation statutes de

novo. Boulder Cty. Bd. of Comm’rs v. HealthSouth Corp.,

(Colo. 2011). “Our primary task is to ascertain and

41 effectuate the intent of the General Assembly.” Moffett v. Life Care

Ctrs. of Am.,

(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,

. 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,

.

¶ 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.,

(Colo. 1992) (citing Colo. Const. art. X, § 3(1)(a));

see also Jensen v. City & Cty. of Denver,

(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.,

. 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,

(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,

(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

. 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,

(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,

(Colo. 2007) (“We do not

add words to the statute or subtract words from it.”); see People v.

Diaz,

.

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,

(quoting

Sullivan,

). 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,

(“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,

(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,

(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,

, 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,

(“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.,

(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.

56 ¶ 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.,

). “Integral” is defined as

“formed as a unit with another part.”

(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.,

. “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,

).

¶ 94 I also disagree with the County that Fifield “require[s] the

[s]ubject [p]roperty’s use to be integral to residential improvements.”

57 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,

.

¶ 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,

. 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.,

(“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,

(“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

59 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.”

60 Vail Assocs.,

; see § 39-1-102(14.4)(a); Gyurman,

.

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

(“[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

61 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,

(“[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

62 the evidence in each particular case.”); Gyurman,

(“[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,

(“[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

63 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.”

. 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

64 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.

65 ¶ 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.,

(Colo. 2001) (outlining

“‘significant incidents of ownership’ of interests in tax-exempt

property”); Mesa Verde Co. v. Bd. of Cty. Comm’rs,

, 54,

, 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,

(cert. granted Apr. 9,

2018); Gunnison Cty. v. Bd. of Assessment Appeals,

(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

66 record title aren’t persuasive. In fact, some support a functional

ownership analysis. For example, in Salazar v. Terry,

(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

(“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,

(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.’”

. The division didn’t define “ownership,” but simply noted

67 that in the easement context, “common ownership ‘must be

absolute, not defeasible or determinable, and coextensive, rather

than owned in different fractions.’”

at 136 (quoting Brush Creek

Airport, L.L.C. v. Avion Park, L.L.C.,

(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,

, 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,

(Colo. App. 1992),

supports using a functional ownership analysis. The division in

that case rejected the petitioner’s argument that “since beneficial

68 ownership of the commercial lots rests with Denver, Denver was the

owner of the commercial lots for tax purposes.”

. The

division also distinguished the facts applicable to ownership in

Gunnison County v. Board of Assessment Appeals,

(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

69 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,

(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.”

70 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).

72 ¶ 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