Kelly v. Board of County Commissioners of Summit County

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
May 31, 2018

2018COA81

No. 17CA0431, Kelly v. Bd. of Cty. Comm’rs — Taxation —
Property Tax — Residential Land

In this property tax case, a division of the court of appeals

considers whether the Board of Assessment Appeals erred in

declining to reclassify a parcel of land as residential — rather than

vacant — because the separately titled parcel was not under

“common ownership” with a contiguous residential parcel. The

division concludes that determining ownership under section 39-1-

102(14.4)(a), C.R.S. 2017, requires looking beyond record title and

examining a person’s or an entity’s right to possess, use, and

control the contiguous parcels.

The division also concludes that the Board of Assessment

Appeal abused its discretion when, on its own and without notice, it

rejected the parties’ stipulation that two issues were undisputed.
 Accordingly, the division reverses the order and remands for

reclassification.
COLORADO COURT OF APPEALS 2018COA81

Court of Appeals No. 17CA0431
Colorado Board of Assessment Appeals Case No. 68821

Karen L. Kelly, Trustee,

Petitioner-Appellant,

v.

Board of County Commissioners of Summit County, Colorado,

Respondent-Appellee,

and

Board of Assessment Appeals,

Appellee.

ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division V
Opinion by JUDGE DUNN
Welling and Casebolt*, JJ., concur

Announced May 31, 2018

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

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

Cynthia H. Coffman, Attorney General, Emmy A. Langey, Assistant Solicitor
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. 2017.
¶1 This property tax case involves two adjacent parcels of land in

Summit County, Colorado — one classified as residential and one

as vacant — with a separate trust holding record title to each

parcel. Karen L. Kelly (Ms. Kelly), Trustee of the separate trusts

each holding record title to one parcel, sought reclassification of the

vacant parcel (subject parcel) for property tax purposes. The Board

of Assessment Appeals (BAA) denied her request, concluding that

the two differently titled parcels were not under “common

ownership” within the meaning of section 39-1-102(14.4)(a), C.R.S.

2017, which defines “residential land” for purposes of the property

tax statute.

¶2 Ms. Kelly appeals the BAA’s denial of her reclassification

request. Because we conclude that Ms. Kelly presented sufficient

evidence establishing common ownership of both parcels, we

reverse the BAA’s order and remand with directions for the BAA to

reclassify the subject parcel as residential land for tax years 2014

and 2015.

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 I. Background

¶3 In the 1990s, Ms. Kelly purchased two adjacent parcels of land

in Summit County. She built a home on one parcel (residential

parcel) and left the subject parcel undeveloped.

¶4 Sometime after she purchased the two parcels, Ms. Kelly

placed them in trust. In particular, on counsel’s advice, she put the

residential parcel in the Karen L. Kelly 2011 Irrevocable Trust, a

qualified personal residence trust. And she put the subject parcel

in the Karen L. Kelly 1990 Declaration of Trust, a revocable family

trust. Ms. Kelly was the settlor, trustee, and beneficiary of both

trusts.

¶5 For tax purposes, the Summit County Assessor classified the

residential parcel as residential land. But the Assessor classified

the subject parcel as vacant land, which is taxed at a higher rate.

¶6 In 2016, Ms. Kelly appealed the subject parcel’s classification

to the Summit County Board of County Commissioners (County).

She requested that the subject parcel be reclassified as residential

land under section 39-1-102(14.4)(a) and sought a tax abatement

for the tax years 2014 and 2015. The County denied the petition.

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¶7 Ms. Kelly then appealed the County’s decision to the BAA,

again requesting to have the subject parcel reclassified as

residential land and seeking the associated tax abatement. At the

evidentiary hearing, Ms. Kelly and the County presented evidence

on the ownership of the parcels.

¶8 After the hearing, the BAA affirmed the County’s classification

of the subject parcel as vacant land, determining that the subject

parcel and residential parcel were owned by two separate trusts and

“[e]ach trust [was] a separate and distinct legal entity.” It thus

concluded that the parcels were not commonly owned and therefore

the subject parcel did not qualify as residential land under section

39-1-102(14.4)(a).

II. Residential Land

¶9 Ms. Kelly contends that the BAA erred in concluding that the

subject parcel was not residential land. More precisely, she argues

that the BAA “misconstrued the ‘common ownership’ element of

section” 39-1-102(14.4)(a). We agree.

A. Standard of Review and Applicable Law

¶ 10 The determination of the appropriate land classification for

property tax purposes is a mixed question of law and fact. Home

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 Depot USA, Inc. v. Pueblo Cty. Bd. of Comm’rs, 50 P.3d 916, 920

(Colo. App. 2002). While we consider the BAA’s determination to

the extent it’s consistent with the relevant statutory provisions, the

interpretation of the tax statutes is a question of law that we review

de novo. Boulder Cty. Bd. of Comm’rs v. HealthSouth Corp., 246

P.3d 948, 951 (Colo. 2011).

¶ 11 In construing a statute, we look to the plain and ordinary

language of the statute to give effect to the legislature’s intent.

Young v. Brighton Sch. Dist. 27J, 2014 CO 32, ¶ 11. And we read

words and phrases in context and construe them according to their

common meaning and usage. Morris v. Goodwin, 185 P.3d 777, 779

(Colo. 2008). As well, we read and consider the statute as a whole,

construing it to give consistent, harmonious, and sensible effect to

all its parts. Oakwood Holdings, LLC v. Mortgage Invs. Enters. LLC,

2018 CO 12, ¶ 12. Only if the statute is ambiguous do we look to

other statutory interpretation aids. HealthSouth, 246 P.3d at 951.

B. Ownership

¶ 12 “Residential land” is defined as “a parcel or contiguous parcels

of land under common ownership upon which residential

improvements are located and that is used as a unit in conjunction

4
 with the residential improvements located thereon.” § 39-1-

102(14.4)(a); Fifield v. Pitkin Cty. Bd. of Comm’rs, 2012 COA 197,

¶ 9. The statute doesn’t define “common ownership.” And though

the Property Tax Administrator is charged with enforcing the

statute, § 24-1-125(2)(b), C.R.S. 2017, the Administrator, too, has

not defined “common ownership,” or offered guidance to assessors

on determining whether two parcels are “under common

ownership.”

¶ 13 Lacking statutory or agency guidance, the BAA and the

County interpret “common ownership” to mean the same record

titleholder. As support, they lean heavily on Sullivan v. Board of

Equalization, 971 P.2d 675 (Colo. App. 1998), arguing that the

Sullivan division interpreted “common ownership” in subsection

102(14.4)(a) to mean that contiguous parcels must be “titled in the

same name” to be residential land. But the parties in Sullivan

agreed that different people owned the parcels at issue. Id. at 676

(“[T]axpayer states that he is not asserting that . . . the vacant

parcel [is] residential under the common ownership provisions.”).

The division therefore didn’t interpret “common ownership,” and it

didn’t conclude that “common ownership” under subsection

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 102(14.4)(a) required contiguous parcels to be titled in the same

name. Id. (declining to address this aspect of residential

classification).

¶ 14 Without any legislative or other guidance, we consider the

plain meaning of “ownership” as well as how courts have

interpreted it in other contexts. Ybarra v. Greenberg & Sada, P.C.,

2016 COA 116, ¶ 10 (cert. granted Feb. 27, 2017) (looking to

dictionary definitions and Colorado and federal cases for

interpretive guidance). And while the BAA and the County use the

phrase “common ownership,” we focus specifically on “ownership”

because if Ms. Kelly is the owner of the residential and subject

parcels, no commonality issue exists. That is, to the extent the BAA

and the County suggest that “common” means the “same” owner,

the result here doesn’t change since we conclude Ms. Kelly owns

both parcels.1

¶ 15 “Ownership” is defined as “[t]he bundle of rights allowing one

to use, manage, and enjoy property, including the right to convey it

to others.” Black’s Law Dictionary 1280 (10th ed. 2014); see also

1 Because commonality is not at issue here, we take no position on
the BAA’s and the County’s suggestion that “common” means the
“same.”

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 Restatement (First) of Property § 10 (Am. Law Inst. 1936) (As used

in the Restatement, “[t]he word ‘owner,’ . . . means the person who

has one or more interests.”).

¶ 16 Consistent with this definition, courts, too, have long

recognized that ownership goes beyond bare record title and instead

focuses on who has the power to possess, use, enjoy, and profit

from the property. See, e.g., Bd. of Cty. Comm’rs v. Vail Assocs.,

Inc., 19 P.3d 1263, 1278-79 (Colo. 2001) (outlining “significant

incidents of ownership of interests in tax-exempt property”); Aspen

Springs Metro. Dist. v. Keno, 2015 COA 97, ¶¶ 9-11 (noting that the

statutory powers of special districts to “acquire, dispose of, and

encumber real and personal property” implies ownership of that

property (quoting § 32-1-1001(1)(f), C.R.S. 2017)). Use and

possession in fact are so central to ownership that continuous,

open, and exclusive possession and use of property may be

sufficient to strip a record titleholder of ownership. See § 38-41-

101(1), C.R.S. 2017; Beaver Creek Ranch, L.P. v. Gordman Leverich

Ltd. Liab. Ltd. P’ship, 226 P.3d 1155, 1160 (Colo. App. 2009)

(discussing requirements to adversely possess property).

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¶ 17 In property tax cases in particular, courts often look beyond

record title to determine ownership. See, e.g., Frank Lyon Co. v.

United States, 435 U.S. 561, 572-73 (1978) (recognizing the Court’s

repeated refusals to allow formal legal title “to shift the incidence of

taxation attributable to ownership of property where the transferor

continues to retain significant control over the property”); Mesa

Verde Co. v. Bd. of Cty. Comm’rs, 178 Colo. 49, 54, 495 P.2d 229,

232 (1972) (looking beyond “form and labels in order to ascertain

real ownership interest involved” when a state tax is assessed

against federal property); Gunnison Cty. v. Bd. of Assessment

Appeals, 693 P.2d 400, 404 (Colo. App. 1984) (noting that 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’”); Planning Bd. of Norwell

v. Serena, 550 N.E.2d 1390, 1391 (Mass. 1990) (concluding that

two lots controlled by the same owner but with different record title

held by separate entities were commonly owned for zoning

purposes).

¶ 18 Applying these principles, a division of this court recently

considered whether individuals who held bare record title to

8
 property, but enjoyed few of the recognized rights associated with

ownership, were the owners of the property for taxation purposes.

HDH P’ship v. Hinsdale Cty. Bd. of Equalization, 2017 COA 134

(cert. granted Apr. 9, 2018). There, applying the substance over

form doctrine, the division concluded that the individual record

titleholders had little right to control the property. Id. at ¶¶ 25-26.

Rather, “the traditional benefits of real property ownership,

including the rights to exclude . . . , to erect or remove

improvements, to control the river and its waters, and to profit from

the land” were enjoyed by a different entity. Id. at ¶ 26. The HDH

Partnership division therefore concluded that, “while the

[individuals] h[e]ld bare legal title to the parcels, the [entity was] the

true owner.” Id.

¶ 19 It may be that in many — perhaps most — cases the record

titleholder is also the one who enjoys the right to possess, use, and

control the property. But we can’t conclude the General Assembly

intended to limit the meaning of “ownership,” as the term is used in

subsection 102(14.4)(a), to record titleholders. After all, had the

General Assembly intended to restrict ownership in such a way, it

could have done so by simply defining residential land as “a parcel

9
 or contiguous parcels of land, titled in the same name, upon which

residential improvements are located and that is used as a unit in

conjunction with the residential improvements located thereon.”

But where the General Assembly did not restrict “ownership” to

record titleholder, it is not for us to judicially do so. Scroggins v.

Unigard Ins. Co., 869 P.2d 202, 205 (Colo. 1994); Krol v. CF & I

Steel, 2013 COA 32, ¶ 28 n.6.

¶ 20 This interpretation is also consistent with the statute as a

whole. See Ybarra, ¶ 8 (reading the statutory scheme as a whole to

give it “consistent, harmonious, and sensible effect”). If the General

Assembly intended that record title conclusively establishes

ownership, it would have made such records conclusive evidence of

ownership rather than providing taxpayers an avenue to challenge

record title. § 39-5-102(1), C.R.S. 2017 (providing that assessors

determine real property ownership through the clerk and recorder,

but a person claiming interest in the property “may file a schedule

with the assessor specifying such interest”); § 39-5-122(2), C.R.S.

2017 (providing a process for taxpayers to challenge assessment);

see also HDH P’ship, ¶ 16 (concluding that record title creates a

rebuttable presumption, but is not conclusive evidence of

10
 ownership). Under the BAA’s and the County’s interpretation, these

provisions would be rendered meaningless. See Burton v. Colo.

Access, 2018 CO 11, ¶ 23 (noting we avoid interpreting statutes in a

way that renders other provisions superfluous); Soto v. Progressive

Mountain Ins. Co., 181 P.3d 297, 300 (Colo. App. 2007) (same).

¶ 21 Nor do we share the concern that this interpretation places an

unreasonable burden on assessors, as the County and the BAA

argue. No one disputes, of course, that assessors are allowed in the

first instance to determine the ownership of two contiguous parcels

from the county clerk and recorder’s records. § 39-5-102(1). If

unchallenged, the record title establishes ownership. But, as

pointed out, record title simply provides some evidence of

ownership. Id. Such evidence is rebuttable, not conclusive. See

§ 39-5-122(2); HDH P’ship, ¶ 16. 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. See Gyurman v. Weld Cty.

Bd. of Equalization, 851 P.2d 307, 310 (Colo. App. 1993) (noting

that the taxpayer has the burden of proof to rebut the presumption

11
 that the county assessor’s classification is correct); see also Krueger

v. Ary, 205 P.3d 1150, 1154 (Colo. 2009) (stating that rebuttable

presumptions shift “the burden [of] going forward to the party

against whom it is raised”). If the taxpayer cannot rebut the

presumption, then the record title establishes ownership.

¶ 22 We thus conclude 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.

See HDH P’ship, ¶ 22.

C. The Residential and Subject Parcels

¶ 23 We turn then to the evidence presented at the BAA hearing

regarding ownership of the parcels.

¶ 24 Mr. Taylor Dix testified as an expert in trust and estate

planning.2 He stated that a trust is created by a settlor (or grantor).

The settlor, through a trust instrument, names a trustee to manage

the property on behalf of the named beneficiaries “for whom the

property is held.” He explained that trusts split up title to property,

2 Ms. Kelly offered Mr. Dix as an expert in “trust and estate
planning.” In that capacity, he testified, in part, about the effect of
the trust instruments. No one objected to Mr. Dix’s testimony at
the hearing or on appeal, so we do not consider the propriety of his
testimony. See In re Marriage of Tozer, 2017 COA 151, ¶ 7 n.1.

12
 giving “the trustee . . . the legal title to the property,” and the

beneficiary “equitable or beneficial title to the property.” He added

that a beneficiary is therefore “the party who has the right to the

use and the enjoyment and the possession of the trust property.”3

¶ 25 He also testified that, under the trust instruments, Ms. Kelly

was the beneficiary, trustee, and settlor of both trusts. This

unchallenged expert testimony established that Ms. Kelly held legal

title to the contiguous residential and subject parcels as trustee

and, as the beneficiary of each trust, was also the equitable owner

of the parcels. Given this, Ms. Kelly had the right to use, enjoy,

possess, and control the adjacent parcels. See Helene S. Shapo,

George Gleason Bogert, George Taylor Bogert & Amy Morris Hess,

The Law of Trusts and Trustees § 182, Westlaw (database updated

June 2017) (“[T]he beneficiary of a trust will normally take an

equitable estate having rights and incidents similar to one owning a

corresponding legal estate.”); see also Pandy v. Indep. Bank, 2016

CO 49, ¶ 16 (noting the settlor of a revocable trust (in this case Ms.

3 Mr. Dix also explained why lack of guidance in the Internal
Revenue Service regulations leads people to place parcels with a
residence in qualified personal resident trusts, but not place a
contiguous undeveloped parcel in one.

13
 Kelly) “retains the functional equivalent of ownership of the trust

assets” (quoting 3 Austin Wakeman Scott, William Franklin

Fratcher & Mark L. Ascher, Scott & Ascher on Trusts § 15.4.2, at

960 (5th ed. 2007))); Restatement (Third) of Trusts § 2 cmt. d (Am.

Law Inst. 2018) (defining “owner” for the purposes of the

Restatement as “a person by whom one or more interests are held

for the person’s own benefit”).

¶ 26 For her part, Ms. Kelly testified that she purchased the parcels

in the 1990s and placed them in the two trusts for tax and estate

planning purposes on the advice of counsel. She confirmed that

placing the parcels in separate trusts did not have “any practical

effect on [her] family’s use or control of the parcels.” So the

evidence showed that Ms. Kelly possessed, controlled, and

continued to use the parcels before and after they were placed in

trust. HDH P’ship, ¶ 22 (right to control the property is essential to

owning property).

¶ 27 The County then presented the Summit County Assessor, who

testified that she denied reclassifying the subject parcel “because of

the names [on the trusts] being different.” Given the difference in

record title, she “did not inspect the property” and “did not

14
 investigate” any further. The County presented no other evidence

and nothing to dispute that Ms. Kelly used, possessed, and

controlled the residential and subject parcels, or that she held legal

title and was the equitable owner of the parcels.

¶ 28 While the BAA declined to credit the evidence regarding Ms.

Kelly’s use, possession, and control of the subject and residential

parcels, the undisputed evidence showed that Ms. Kelly, as the

trustee and beneficiary of both parcels, enjoyed the “traditional

benefits of real property ownership.” Id. at ¶ 26. After all, in the

field of taxation, the substance and realities matter, rather than the

formalities of written documents. Frank Lyon Co., 435 U.S. at 572-

73; City of Golden v. Aramark Educ. Servs., LLC, 2013 COA 45,

¶ 31; cf. White v. Fitzpatrick, 193 F.2d 398, 401-02 (2d Cir. 1951)

(concluding that, while the taxpayer transferred legal title to his

wife, he retained “administrative control” of the property and thus

was the “actual enjoyer and owner of the property” for federal tax

deduction purposes).

¶ 29 Because Ms. Kelly rebutted the ownership presumption and

presented evidence showing she was the owner of the residential

15
 and subject parcels, the BAA erred in denying the request to

reclassify the subject parcel.

III. Contiguity and Use as a Unit

¶ 30 Beyond common ownership, to fall within the definition of

residential land, the residential parcel and the subject parcel must

also be “contiguous” and “used as a unit.” § 39-1-102(14.4)(a).

¶ 31 Before the BAA hearing, the parties filed a signed “stipulation

regarding issues to be tried,” agreeing, as relevant here, that “in this

case,”

 “The ‘contiguous parcels’ element [was] stipulated to be

satisfied and no trial of this element [was] necessary.”

 “The ‘used as a unit’ element [was] stipulated to be satisfied

and no trial of this element [was] necessary.”

¶ 32 At the BAA hearing, the parties again explained that only the

common ownership issue was disputed. And the BAA chair

confirmed which “two issues . . . were already settled.” The BAA did

not raise concerns about the stipulation or ask the parties to

present evidence on whether the subject parcel was “contiguous” or

“used as a unit” with the residential parcel.

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¶ 33 Nearly two months after the close of evidence, the BAA issued

its written order. In it, aside from finding the parcels were not

under common ownership, the BAA determined that it was “not

bound by the parties’ stipulation and [found] that insufficient

information was presented to the [BAA] to determine whether the

remaining two elements of the statute were satisfied.”

¶ 34 Ms. Kelly contends that the BAA abused its discretion when,

on its own, it rejected the parties’ stipulation. We agree.

¶ 35 A court should give effect to a stipulation, unless a party

timely requests to be relieved from it and shows “sound reason in

law or equity for avoiding or repudiating a stipulation.” Lake

Meredith Reservoir Co. v. Amity Mut. Irrigation Co., 698 P.2d 1340,

1346 (Colo. 1985); see also Gasteazoro v. Catholic Health Initiatives

Colo., 2014 COA 134, ¶ 37. A court may also disregard a

stipulation when it has “a legitimate and important concern about

giving effect to that agreement.” Lake Meredith Reservoir, 698 P.2d

at 1346. Such a decision is within the court’s discretion. Id. We

will not disturb the court’s decision absent an abuse of that

discretion. Id. A court abuses its discretion when its decision is

manifestly arbitrary, unreasonable, or unfair. Gasteazoro, ¶ 36.

17
¶ 36 The County did not ask the BAA to reject the stipulation. And

at the evidentiary hearing both parties presented evidence only on

the disputed ownership issue. At no point during the hearing did

the BAA alert the parties that it had any concern about “giving

effect to” their stipulation. Lake Meredith Reservoir, 698 P.2d at

1346.

¶ 37 Though the BAA faulted Ms. Kelly for presenting insufficient

evidence on the stipulated issues, Ms. Kelly had no notice that

months after the hearing the BAA would reject the stipulation.

Under these circumstances, we conclude that the BAA’s decision to

reject the signed stipulation when it did, without notice to the

parties, was manifestly unfair. Cf. Snyder v. Colo. Podiatry Bd., 100

P.3d 496, 501 (Colo. App. 2004) (noting that the “essence of due

process is fair procedure,” which includes “providing adequate

notice of opposing claims [and] a reasonable opportunity to defend

against those claims”).

¶ 38 Finally, the BAA (not the County) requests a remand for an

evidentiary hearing to determine if the parcels are “contiguous” and

“used as a unit” — the two elements the parties agreed were

undisputed. The BAA, however, is not a party to the stipulation.

18
 See Bd. of Adjustment v. Kuehn, 132 Colo. 348, 354, 290 P.2d 1114,

1116-17 (1955) (noting that the BAA was not a party to the

proceeding, but was only tasked with deciding the question

presented to it). Rather, it is the adjudicative body charged with

review of abatement requests. See § 39-2-125(1)(f), C.R.S. 2017

(BAA hears appeals on claims for abatement); § 39-2-127(6), C.R.S.

2017 (BAA issues written decisions for each appeal heard).

¶ 39 Aside from the fact that the County — the actual party to the

stipulation — does not request a remand, the County voluntarily

entered the stipulation, agreeing that the parcels were “contiguous”

and “used as a unit.” Given these facts, it is hard to see how the

County would not be estopped from presenting evidence on issues it

admitted were undisputed. See Maloney v. Brassfield, 251 P.3d

1097, 1108 (Colo. App. 2010) (noting that stipulations are a form of

judicial admission, which are binding on the party who makes

them).

¶ 40 In sum, we conclude in this instance that the BAA abused its

discretion in rejecting the parties’ stipulation.

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 IV. Conclusion and Remand

¶ 41 While a remand for a new hearing is sometimes the

appropriate remedy for misclassifications, Hepp v. Boulder Cty.

Assessor, 113 P.3d 1268, 1272 (Colo. App. 2005), Ms. Kelly’s

undisputed right to use, possess, and control the residential and

subject parcels under the trust instruments leads us to the legal

conclusion that the parcels were under common ownership for tax

years 2014 and 2015. We thus reverse the BAA’s order and remand

with directions for the BAA to reclassify the subject parcel as

residential land.

JUDGE WELLING and JUDGE CASEBOLT concur.

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