Stephen J. Ziegler, Revocable Trust Dated July 17, 2008, v. Park County Board of County Commissioners and Board of Assessment Appeals.
No. 19SC157
The Supreme Court of the State of Colorado
February 18, 2020
2020 CO 13
JUSTICE HOOD
ADVANCE SHEET HEADNOTE; C.A.R. 50 Certiorari to the Colorado Court of Appeals; Court of Appeals Case No. 18CA247; Board of Assessment Appeals Case No. 69920; Board Members DeVries and Maricle
ADVANCE SHEET HEADNOTE
February 18, 2020
2020 CO 13
No. 19SC157, Ziegler v. Park Cty. Bd. of Cty. Comm‘rs—Property Taxation—Statutory Interpretation.
The supreme court considers the “contiguous parcels of land” and “used as a unit” requirements of the “residential land” definition in
The supreme court holds that vacant land must physically touch another parcel containing a residential improvement to satisfy the contiguity requirement. And the supreme court applies Board of County Commissioners v. Hogan, 2020 CO ___, ___ P.3d ___, to reject as erroneous the legal standards the assessor and the Board of Assessment Appeals applied to determine whether the landowner‘s property uses satisfy the “used as a unit” requirement.
2 East 14th Avenue • Denver, Colorado 80203
2020 CO 13
Supreme Court Case No. 19SC157
C.A.R. 50 Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 18CA247
Board of Assessment Appeals Case No. 69920
Board Members DeVries and Maricle
Petitioner:
Stephen J. Ziegler, Revocable Trust Dated July 17, 2008,
v.
Respondents:
Park County Board of County Commissioners and Board of Assessment Appeals.
Judgment Reversed
en banc
February 18, 2020
Attorneys for Petitioner:
Ryley Carlock & Applewhite
F. Brittin Clayton III
Denver, Colorado
Attorneys for Respondent Park County Board of County Commissioners:
Michow Cox & McAskin
Marcus McAskin
Christiana McCormick
Greenwood Village, Colorado
Philip J. Weiser, Attorney General
Katie Allison, Senior Assistant Attorney General
Denver, Colorado
Attorneys for Amici Curiae Boards of County Commissioners of the Counties of Boulder, Chafee, Eagle, Grand, Jefferson, La Plata, Larimer, Mesa, Pitkin, San Miguel, and Summit:
Michael A. Koertje, Boulder County Attorney‘s Office
Boulder, Colorado
Jennifer A. Davis, Chafee County Attorney‘s Office
Salida, Colorado
Christina Hooper, Eagle County Attorney‘s Office
Katherine Parker
Eagle, Colorado
Christopher Leahy, Grand County Attorney‘s Office
Hot Sulphur Springs, Colorado
Rebecca Klymkowsky, Jefferson County Attorney‘s Office
Golden, Colorado
Kathleen Lyon Moore, La Plata County Attorney‘s Office
Durango, Colorado
David P. Ayraud, Larimer County Attorney‘s Office
Frank N. Haug
Fort Collins, Colorado
J. Patrick Coleman, Mesa County Attorney‘s Office
John R. Rhoads
Grand Junction, Colorado
Laura C. Makar, Pitkin County Attorney‘s Office
Aspen, Colorado
Telluride, Colorado
Juliane T. DeMarco, Summit County Attorney‘s Office
Breckenridge, Colorado
JUSTICE HOOD delivered the Opinion of the Court.
JUSTICE SAMOUR concurs in part and dissents in part, and JUSTICE BOATRIGHT and JUSTICE GABRIEL join in the concurrence in part and dissent in part.
¶2 “‘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.”
¶4 Stephen Ziegler (through the Stephen J. Ziegler Revocable Trust Dated July 17, 2008) owns four parcels of land in Park County. One parcel contains a house, and it‘s classified as residential land (“the residential parcel“). A second parcel directly borders the residential parcel, and it‘s classified as vacant land (“subject parcel 1“). Two more parcels border subject parcel 1 but don‘t physically touch the residential parcel. They‘re also classified as vacant land (“subject parcel 2” and “subject parcel 3“).
¶5 Mr. Ziegler petitioned to reclassify the subject parcels from vacant land to residential land. The Park County Board of County Commissioners (“BCC“) denied his petition, and Mr. Ziegler appealed to the BAA, asserting that the subject
¶6 First, the BAA acknowledged that county records indicate the Stephen J. Ziegler Revocable Trust Dated July 17, 2008 owns all four parcels, thereby satisfying the “common ownership” requirement. The BAA then noted that the parties don‘t dispute that subject parcel 1 satisfies the contiguity requirement, as it shares a common boundary with the residential parcel. However, the BAA also recognized that subject parcels 2 and 3 might still qualify as residential land, because “an interim vacant parcel . . . could create contiguity for the non-touching parcel, assuming all the other tests of residential classification are met.”
¶7 Yet the BAA determined that the BCC “correctly applied
¶8 However, the BAA determined that the subject lots weren‘t “essential to [Mr. Ziegler‘s] enjoyment of the residential improvements,” since “the uses claimed by [Mr. Ziegler] that might have occurred on the Subject Lots could be conducted on the Residential Lot.” And, the BAA concluded that Mr. Ziegler‘s asserted use of the subject lots “for the enjoyment and preservation of views . . . are not uses in conjunction with the residential improvements.” The BAA ultimately upheld the BCC‘s decision to deny Mr. Ziegler‘s request to reclassify the subject parcels.
¶9 Mr. Ziegler again appealed, and this court accepted jurisdiction from the court of appeals pursuant to
II. Analysis
¶10 We begin by stating the standard of review. We then apply our holding in Mook to conclude that vacant land must physically touch another parcel containing a residential improvement to satisfy the contiguity requirement. Finally, we apply our decision in Hogan to reject as erroneous the legal standards the BCC and the
A. Standard of Review
¶11 “When we analyze the [BAA‘s] orders on appeal, we (1) review questions of law and interpretations of the applicable statutory and constitutional provisions de novo; and (2) apply those interpretations to the facts duly determined in the proceedings of the [BAA].” Roaring Fork Club, LLC v. Pitkin Cty. Bd. of Equalization, 2013 COA 167, ¶ 21, 342 P.3d 467, 470–71. “We defer to the [BAA‘s] factual findings, but we will set aside an order issued by the [BAA] if we conclude that competent evidence does not support the order, or if the order ‘reflects a failure to abide by the statutory scheme for calculating property tax assessment[s].‘” Id. at 471 (quoting Jefferson Cty. Bd. of Cty. Comm‘rs v. S.T. Spano Greenhouses, Inc., 155 P.3d 422, 424 (Colo. App. 2006)).
B. “Contiguous Parcels”
¶12 The parties don‘t dispute that subject parcel 1, which physically touches the residential parcel, satisfies the contiguity requirement. However, the parties disagree regarding whether subject parcels 2 and 3, which border subject parcel 1 but don‘t touch the residential parcel, also qualify as “contiguous parcels of land.”
¶13 The BAA noted that “an interim vacant parcel that is physically contiguous to both a Residential Lot and a non-touching vacant parcel could create contiguity
¶14 In the single-parcel context, an individual parcel must independently contain a residence to qualify as residential land. The Colorado Constitution defines “residential real property” to “include all residential dwelling units and the land, as defined by law, on which such units are located.”
¶15 The General Assembly defined “residential improvements” to include a residence.
¶16 However,
¶17 In so defining residential land, the legislature expressly anchored the requirement that multiple parcels physically touch to the requirement that those parcels together contain residential improvements. Therefore, for a multi-parcel assemblage to satisfy the contiguity requirement, a parcel of land must physically touch another parcel containing a residential improvement. Accordingly, the BAA erred in its interpretation of
¶19 But to inject this understanding of contiguity into
¶20 This requirement is necessarily satisfied when vacant land borders a single parcel already classified as residential land. As noted above, a parcel independently classified as residential land must contain a residence. Thus any vacant parcel that borders such residential land physically touches a parcel containing a residential improvement, thereby satisfying the contiguity requirement of
¶21 However, an undeveloped parcel could satisfy this requirement by physically touching another parcel that doesn‘t contain a residence. Although the
Figure 1.
The left parcel contains a house—the required residential dwelling unit for the assemblage. The middle parcel contains a garage, which we assume for the purpose of this demonstration is a residential improvement that‘s an “integral part of the residential use.”
¶23 Back in the real world, subject parcel 1 satisfies the contiguity requirement because it physically touches the residential parcel. But subject parcels 2 and 3 don‘t border the residential parcel. Thus, to satisfy the contiguity requirement, those parcels must physically touch another parcel containing a residential improvement that is “an integral part of the residential use.” The BAA didn‘t
C. “Used as a Unit”
¶24 The BAA ultimately denied Mr. Ziegler‘s petition for reclassification because it concluded that his use of the subject parcels doesn‘t satisfy the “used as a unit” requirement.
¶25 However, in Hogan, we conclude that the assessor and the BAA erred by interpreting the second guideline to require that any landowner‘s use of a vacant parcel be “essential” to the enjoyment or use of the residential parcel. ¶ 52.
¶27 Thus, like in Hogan, the BAA here erred in its construction and application of
III. Conclusion
¶28 We reverse the BAA‘s order and remand the case for further action consistent with this opinion.
JUSTICE SAMOUR concurs in part and dissents in part, and JUSTICE BOATRIGHT and JUSTICE GABRIEL join in the concurrence in part and dissent in part.
¶ 29 This case is partly about the meaning of the word “contiguous” in one of our property tax statutes. The majority concludes that the four parcels of land involved here, which are physically connected without a break in the sequence, are not “contiguous.” But if these parcels are not “contiguous,” then, to borrow from Inigo Montoya‘s response to Vizzini in the fabled movie The Princess Bride, “I do not think it means what [the majority] think[s] it means.”1
¶ 30 I begin, though, with the part of the majority opinion with which I agree. The majority correctly reverses the ruling of the Board of Assessment Appeals (“BAA“) that was premised on the legal standards we disapprove of today in Board of County Commissioners v. Hogan, 2020 CO 12, ___ P.3d ___. Maj. op. ¶ 3. Contrary to the standards relied upon by the BAA, a residential improvement isn‘t necessary on each contiguous and commonly owned parcel of land for that parcel to be “used as a unit.” Hogan, ¶ 60. Rather, a landowner may fulfill the “used as a unit” statutory requirement by using multiple parcels of land together as a collective unit of residential property. Id.
I. Analysis
¶ 32 In the tetralogy of property tax cases we announce today, we must decide what constitutes “residential land” under
“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.
As I see it, this definition sets forth four requirements:
- the parcels must be contiguous;
- the parcels must be under common ownership;
- there must be residential improvements located on the parcels (though not necessarily on each parcel); and
- the parcels must be used as a unit in conjunction with the residential improvements that are located on them.
- “a building” or a “portion of a building[] designed for use predominantly as a place of residency by a person, a family, or families“;
- “a manufactured home,” “a mobile home,” and “a modular home,” as those terms are defined by Colorado law; and
- “buildings, structures, fixtures, fences, amenities, and water rights that are an integral part of the residential use.”
¶ 33 I focus on requirement (1) of the definition of “residential land” — the contiguity requirement. In Mook v. Board of County Commissioners, 2020 CO 12, ___ P.3d ___, which we also announce today, we shed some light on the contiguity inquiry. That case involves two parcels of land, a parcel containing residential improvements (i.e., the Mooks’ house) and a parcel that‘s undeveloped and has no residential improvements. Id. at ¶ 7. The parcel on which the Mooks’ house is built is already taxed as residential land, and no party takes issue with the determination that it is a residential land parcel because it contains a residential
¶ 34 What happens, though, when there are more than two parcels? That‘s the situation in this case. There are four parcels at issue: a parcel containing residential improvements — namely, Mr. Ziegler‘s house (“the house parcel“) — and three parcels that are undeveloped and contain no residential improvements (“subject parcel 1,” “subject parcel 2,” and “subject parcel 3“). No one disputes that the house parcel is residential land. Maj. op. at ¶ 12. The issue is whether the other three parcels meet the contiguous requirement. The majority finds that subject parcel 1 is contiguous, but that subject parcels 2 and 3 may or may not be. I respectfully disagree. As I demonstrate, all three parcels are clearly contiguous.
¶ 36 But our holding in Mook should not be misunderstood as requiring that an undeveloped parcel must always physically touch a parcel containing a residential dwelling unit (or any other type of residential improvements) to qualify as contiguous. The undeveloped parcel in Mook must physically touch the parcel containing residential improvements to so qualify because there are only two parcels there — the undeveloped parcel and the parcel with residential improvements. Indeed, in all cases involving only two parcels, one which has
¶ 37 In my view, the majority‘s approach at once engrafts a new requirement onto the statutory definition of residential land, is internally inconsistent, will be difficult to administer, and is likely to lead to arbitrary and absurd results. I discuss each point in turn.
¶ 38 First, nowhere in the definition of “residential land” did the legislature state that an undeveloped parcel may only qualify for residential land treatment if it is contiguous to a parcel that contains residential improvements. Again, here are the residential land requirements the legislature set forth:
- the parcels must be contiguous;
- the parcels must be under common ownership;
- there must be residential improvements located on the parcels (though not necessarily on each parcel); and
- the parcels must be used as a unit in conjunction with the residential improvements that are located on them.
¶ 40 Surprisingly, the majority distances itself from the comparison to the forty-eight states we use in Mook to explain our understanding of contiguous under
¶ 41 Doubling down, though, the majority avers that we must avoid this construction because it will lead to “illogical or absurd results.” Id. But the majority has identified no illogical or absurd results — at least none that are realistic and can be taken seriously. And in expressing trepidation, it overlooks that contiguity is only one of the four demanding statutory requirements that must be satisfied to qualify as residential land.
¶ 43 Second, the majority‘s analysis is internally inconsistent. The majority concludes that subject parcel 1 qualifies as residential land because it physically touches a parcel with residential improvements (a residential dwelling unit). Id. at ¶ 12. As the majority explains, the contiguity requirement “is necessarily satisfied” when an undeveloped parcel physically touches such a residential land parcel. Id. at ¶ 20. But if an undeveloped parcel can satisfy the contiguity requirement by physically touching a residential land parcel, then why is it that subject parcels 2 and 3 don‘t automatically satisfy the contiguity requirement here? After all, just as subject parcel 1 physically touches a residential land parcel (the
¶ 44 The majority appears to extend different treatment to:
- an undeveloped parcel that physically touches a residential land parcel that qualifies as such because it contains residential improvements,
- and
- an undeveloped parcel that physically touches a residential land parcel that qualifies as such because it, in turn, physically touches a parcel that contains residential improvements.
In both instances, the undeveloped parcel physically touches a residential land parcel. Yet, only in the first instance is such touching always sufficient for contiguity under the majority‘s analytical framework. The undeveloped parcel in the second instance may qualify as residential land based on the majority‘s rationale, but this determination hinges on whether the residential land parcel it physically touches contains “residential improvements,” be it a residential dwelling unit or a residential improvement that has to be “an integral part of the residential use” (i.e., buildings, structures, fixtures, fences, amenities, and water rights).
¶ 45 Under my analysis, which is faithful to the plain language of the statute, no such distinction exists. An undeveloped parcel that physically touches a parcel that qualifies as residential land (regardless of the basis for such qualification) is
¶ 46 Third, I worry about the administrative challenges unnecessarily created by the majority‘s methodology. The holding articulated by the majority today with respect to contiguity will make the work of the county assessors more difficult. The majority initially articulates its holding as follows: “[F]or a multi-parcel assemblage to satisfy the contiguity requirement, a parcel of land must physically touch another parcel containing residential improvements.” Id. ¶ 17. But, as the majority later admits, there‘s more to its holding. The majority clarifies that, pursuant to the statutory definition of “residential improvements,” for some such improvements — namely, buildings, structures, fixtures, fences, amenities, and water rights — more is required: They must be an integral part of the residential use. Id. at ¶ 15.
¶ 47 Accordingly, in determining whether an undeveloped parcel satisfies the contiguity requirement, a county assessor will need to: (1) determine if it
¶ 48 Finally, I fear that today‘s decision will yield arbitrary and absurd results. Consider, for example, the following hypothetical situation, which is accompanied by the illustration below.6 Assume that John Doe owns four parcels of land that are physically connected without a break in the sequence. Assume further that the first parcel contains residential improvements (the house where John Doe lives),
¶ 49 Under the majority‘s holding, only parcel A (the one containing the house) and parcel B (the one immediately next to it) would meet the contiguous requirement; parcels C and D would not. Yet, the four parcels are no less “contiguous” than the forty-eight contiguous states in the United States: They are all physically connected without a break in the sequence. As such, they fall within our definition of “contiguous” in Mook and other unintended and undesirable consequences by simply calling it like it is: Parcels that are physically connected without a break in the sequence are contiguous.
II. Conclusion
¶ 50 Giving the plain language of
¶ 51 In this case, I would conclude that the house parcel and subject parcels 1, 2, and 3 are all contiguous because they are all physically connected without a break in the sequence. If, as the majority finds, these four parcels are not contiguous, then we err in observing in Mook that the forty-eight contiguous states of the United States provide an example of “contiguous” under
¶ 52 Because I believe that the majority errs in its contiguity analysis, and because I am concerned about the consequences of today‘s troublesome decision, I write separately. Accordingly, I concur in part and dissent in part.
I am authorized to state that JUSTICE BOATRIGHT and JUSTICE GABRIEL join in this concurrence in part and dissent in part.
Notes
- [REFRAMED] Whether properties must be physically touching to satisfy the “contiguous parcels” requirement of
section 39-1-102(14.4)(a), C.R.S. (2018) .
- 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, enjoyment, or other non-commercial activity of the occupant of the residence?