Mook v. Board of County Commissioners
In the cases of Mook v. Board of County Commissioners of Summit County, Board of Assessment v. Kelly and Board of County Commissioners of Summit County v. Hogan, the Colorado Supreme Court considered the definition of “residential land” in section 39-1-102(14.4)(a), of the Colorado Revised Statutes. “‘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.” For undeveloped property to qualify as residential land it must be: contiguous with residential land; used as a unit with residential land; and under common ownership with residential land. In Mook, the court considered the contiguity requirement and held that only parcels of land that physically touch qualify as “contiguous parcels of land.”
The Mooks own two parcels of land in Summit County. One parcel contains the Mooks’ house and is classified as residential land. The other parcel is undeveloped and is classified as vacant land. The parties agreed that these two parcels don’t physically touch — the homeowners’ association owns an approximately 17 foot-wide strip of land that completely separates the two properties. That strip provides other members of the HOA access to adjacent public land.
The Mooks petitioned the Board of County Commissioners of Summit County to reclassify the subject parcel from vacant land to residential land. The BCC denied the petition, and the Mooks appealed to the Board of Assessment Appeals. The BAA upheld the BCC’s decision. Notably, the BAA determined that contiguous parcels are those that are “physically |connected.”
Here, the residential and subject parcels don’t physically touch, and the BAA “was not persuaded that the use of the subject lot in conjunction with the residential lot was sufficient to defeat the plain meaning of contiguity.” The BAA concluded that the two parcels aren’t contiguous and denied the Mooks’ appeal.
The Mooks again appealed, and a unanimous division of the Court of Appeals affirmed the BAA. The division concluded that the plain and ordinary meaning of contiguous is “touching along boundaries often for considerable distances.” Accordingly, the division held that for two parcels to be contiguous, the boundaries of those parcels must touch. Therefore, it upheld the BAA’s determination that the subject parcel isn’t contiguous to the residential parcel.
The Supreme Court affirmed the Court of Appeals’ judgment for the same reasons.
Board of County Commissioners of Summit County v. Hogan
The Hogans own three parcels of land in Summit County. Together, these parcels form an “L” shape. One parcel contains the Hogans’ house and is classified as residential land. A second parcel directly touches the residential parcel. Part of the Hogans’ deck extends from their house onto this parcel. Although originally classified as vacant land, the Hogans successfully petitioned to reclassify this parcel as residential land. A third parcel directly touches the reclassified parcel.This parcel contains an unpaved driveway, but it’s otherwise undeveloped. This parcel remains classified as vacant land.
The Hogans appealed the subject parcel’s classification to the BCC, which upheld the vacant-land classification. The Hogans then filed an appeal with the BAA. Both Marc Hogan and the county assessor testified before the BAA regarding the Hogans’ use of the subject parcel. Hogan testified that the Hogans use the subject parcel to walk their dog, gather firewood, park vehicles and a trailer, and secure scenic views with a privacy buffer. The county assessor concluded that the Hogans don’t use the subject parcel as a unit with the residential and reclassified parcels. In making that determination, she relied on the Assessors’ Reference Library. According to the assessor, these ARL guidelines required the Hogans to engage in more “active” uses of the property if the parcels are to be deemed “used as a unit.” Further, she concluded that the subject parcel must contain a residential improvement, which it does not. The BAA agreed and the Hogans appealed.
A division of the Court of Appeals reversed the BAA, holding that the BAA erred regarding the “used as a unit” requirement. The division first concluded that the two ARL guidelines, on which the assessor based her classification, impose requirements that exceed section 39-1-102(14.4)(a)’s plain language. Further, the division noted that the statute doesn’t require that landowners engage in “active” property uses; thus, the BAA erred to the extent it concluded that only “active” uses can satisfy the “used as a unit” element. Finally, the division concluded that the statute’s plain language doesn’t require that each parcel contain a residential improvement. The division therefore remanded this case with directions for the BAA to “employ the correct legal standards. . . and redetermine whether the Hogans are entitled to reclassification of [the subject parcel].”
In Hogan, the Supreme Court addressed the “used as a unit” requirement and held that a residential improvement isn’t needed on each contiguous and commonly owned parcel of land and that a landowner can satisfy this requirement by using multiple parcels of land together as a collective unit of residential property. The Supreme Court affirmed the Court of appeals’ judgment in Hogan and remanded for further proceedings consistent with this opinion.
Board of Assessment v. Kelly
Karen Kelly serves as the trustee for two separate trusts that each own a parcel of land in Summit County. A house sits on one parcel, which is classified as residential land. The other parcel remains undeveloped, and it’s classified as vacant land. Title to the residential parcel is held in a qualified personal residence trust, while title to the subject parcel is held in a revocable family trust. Kelly is the settlor, trustee and beneficiary of each trust.
Kelly petitioned the BCC to reclassify the subject parcel from vacant land to residential land. The BCC denied her petition, and Kelly appealed to the BAA. Kelly argued that “‘common ownership’ exists whenever there is a common thread of ownership or control” between record owners. As the beneficiary of each trust, Kelly argued that she held the residential and subject parcels under common ownership.
The BAA disagreed and upheld the BCC’s decision. Describing the trusts as two “separate and distinct legal entities,” the BAA was “persuaded that the ownership of the subject parcel is separate and distinct from the ownership of the adjacent residential lot.” Kelly again appealed, and a division of the Court of Appeals reversed the BAA.
Focusing on the term “ownership,” the division recognized that dictionaries and case law define that word broadly, in a manner that goes “beyond bare record title and instead focuses on who has the power to possess, use, enjoy and profit from the property.” It then noted another Court of Appeals decision, HDH Partnership v. Hinsdale County Board of Equalization, which addressed how to determine property ownership for tax assessment purposes.
The division concluded that record title creates a rebuttable presumption of ownership, but courts may look beyond record title to ascertain which party actually “enjoys most of the traditional benefits of real property ownership.” Such evidence can establish a non-record owner as the “true owner” of the property who should be assessed the property taxes.
The division similarly concluded that, while county records establish a presumption of ownership, taxpayers may rebut that presumption by introducing evidence of “a person’s or an entity’s right to possess, use and control the contiguous parcels.” Applying that standard, the division determined that Kelly, as the trustee and beneficiary of each trust, enjoyed the “traditional benefits of real property ownership” for each parcel. Therefore, she held the parcels “under common ownership,” as required by section 39-1-102(14.4)(a).
In Kelly, the Supreme Court addressed the “common ownership” requirement and held that county records dictate whether properties are held “under common ownership.” The Supreme Court reversed the Court of Appeals’ judgment.
Ziegler v. Park County Board of County Commissioners
Stephen Ziegler owns four parcels of land in Park County. One parcel is classified as “residential land” under section 39-1-102(14.4)(a) and taxed accordingly. However, the other three parcels remain “vacant land” and are thus taxed at a higher rate. Ziegler sought to reclassify those vacant parcels as residential land and receive a corresponding tax abatement.
The Supreme Court considered the “contiguous parcels of land” and “used as a unit” requirements of the “residential land” definition in section 39-1-102(14.4)(a), C.R.S. (2019) “‘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 court held that vacant land must physically touch another parcel containing a residential improvement to satisfy the contiguity requirement. And the court applied Board of County Commissioners v. Hogan to reject as erroneous the legal standards the assessor and the BAA applied to determine whether the landowner’s property uses satisfy the “used as a unit” requirement.
The Supreme Court reversed the order of the BAA and remanded the case for further action consistent with this opinion.
People v. Berry
In 2014, William Berry, who was at the time a deputy of the Lake County Sheriff’s Office, obtained several firearms from the office evidence locker, gave one away, attempted to sell another and kept two for himself. For this conduct, Berry was convicted of embezzlement of public property, and first-degree official misconduct. This case posed several questions, first, does “public property” include property that is in the government’s possession but not owned by the government? And second, what is an act “relating to [an official’s] office” for purposes of the crime of official misconduct?
Regarding the first question, the Supreme Court held that the statute prohibiting embezzlement of public property criminalizes only the embezzlement of property that is owned by the government. Concerning the second question, the court concluded that the prohibition on official misconduct should be broadly construed to include circumstances in which an official uses the opportunities presented by his or her office to engage in improper conduct. The court therefore affirmed the decision of the Court of Appeals.
– Jess Brovsky-Eaker