1st American Sav. Bank v. Boulder County Bd. of Com'rs, 93CA1408

• Decision Date: 15 December 1994
• Docket Number: No. 93CA1408,93CA1408
• Citation: 888 P.2d 360
• Parties: 1ST AMERICAN SAVINGS BANK, Petitioner-Appellee, and Board of Assessment Appeals, Appellee, v. BOULDER COUNTY BOARD OF COMMISSIONERS, Respondent-Appellant. . III
• Court: Colorado Court of Appeals

Page 360

888 P.2d 360

1ST AMERICAN SAVINGS BANK, Petitioner-Appellee and Board of Assessment Appeals, Appellee, v. BOULDER COUNTY BOARD OF COMMISSIONERS, Respondent-Appellant.

No. 93CA1408.

Colorado Court of Appeals Div. III.

Dec. 15, 1994.

Pamela J. Fair, Denver, for petitioner-appellee.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Mark W. Gerganoff, Asst. Atty. Gen., Denver, for appellee Board of Assessment Appeals.

H. Lawrence Hoyt, Boulder County Atty., George Rosenberg, Asst. County Atty., Boulder, for respondent-appellant.

Opinion by Judge JONES.

Respondent, Boulder County Board of Commissioners (BOC), appeals an order of the Colorado Board of Assessment Appeals (BAA) requiring the BOC to cause an abatement/refund to petitioner, 1st American Savings Bank (taxpayer), based on property taxes for the 1989 and 1990 tax years. We reverse and remand with directions.

Taxpayer originally requested an abatement/refund from the BOC in the amount of $50,278.13 plus interest on real property taxes for the tax years 1989 and 1990. The BOC denied the petition and the taxpayer appealed this decision to the BAA.

During the hearing before the BAA, the BOC attempted to call a witness that it had not listed on its witness list to present testimony as to a report the BOC wished to introduce into evidence. Acting under BAA Rule 11, 8 Code Colo.Reg. 1301-1, which states that all parties shall exchange witness lists and lists of exhibits at least ten days prior to the hearing, the BAA prohibited the BOC's witness from testifying. The BOC, thus, presented no evidence in the hearing before the BAA.

The BAA determined that the taxpayer had presented sufficient probative evidence to prove that the valuation of the subject property was incorrect for the tax years 1989 and 1990 and, therefore, ordered the BOC to cause an abatement/refund to the taxpayer based on an actual value of $1,150,000 for the years in question. It is this order which the BOC appeals.

I.

The BOC first contends that the BAA erred in prohibiting its witness from testifying under BAA Rule 11 because no such rule exists. We disagree.

The BOC argues that when H.B. 91-1183, Colo.Sess.Laws 1991, ch. 315, § 39-2-123 at 1977 was enacted, abolishing the then existing BAA and immediately creating a newly constituted BAA, all rules and regulations of the "old" BAA were also abolished. The BOC contends, therefore, that the "new" BAA was required to re-enact, ratify, or promulgate new rules and regulations under § 39-2-125(1)(a), C.R.S. (1994 Repl.Vol. 16B).

Initially, we note that Colo.Sess.Laws 1979, ch. 214, § 24-4-103(8)(c)(I) at 845 was an automatic statutory sunset provision. It provided that all rules adopted or amended on or after July 1, 1979, under the State Administrative Procedure Act, § 24-4-101, et seq., C.R.S. (1988 Repl.Vol. 10A), would expire at 11:59 p.m. on June 1 of the year following their adoption, unless the General Assembly, by bill, acted to postpone the expiration of any specific rule. In addition, Colo.Sess.Laws 1979, ch. 214, § 24-4-108(4)(c) at 847 provided that the rules and regulations of the Department of Local Affairs, within which the BAA resides, see § 39-2-123(1), C.R.S. (1994 Repl.Vol. 16B), would expire on July 1, 1982, unless the General Assembly postponed the expiration date.

Therefore, any and all rules of the BAA subject to these sunset provisions would have automatically expired unless the General Assembly postponed the expiration. This is precisely what the General Assembly has done throughout the years. See Colo.Sess.Laws 1982, ch. 27, § 1 at 203; Colo.Sess.Laws 1983, ch. 38, § 1 at 302; Colo.Sess.Laws 1984, ch. 29, § 1 at 255; Colo.Sess.Laws 1985, ch. 43, § 1 at 231; Colo.Sess.Laws 1986, ch. 47, § 1 at 379; Colo.Sess.Laws 1987, ch. 162, § 1 at 917; Colo.Sess.Laws 1988, ch. 28, § 1 at 286; Colo.Sess.Laws 1989, ch. 29, § 1 at 278; Colo.Sess.Laws 1990, ch. 32, § 1 at 287.

When the General Assembly was considering changing § 39-2-123 through H.B. 91-1183, it also had to consider whether to extend the expiration date of all rules and regulations of the various state agencies that were intended to expire on June 1, 1991. Included in this group of state agencies was the Department of Local Affairs. In H.B. 91-1257, which became Colo.Sess.Laws 1991, ch. 25, § 1 at 145, the General Assembly explicitly extended the expiration date of all rules and regulations of the Department of Local Affairs with the exception of some rules not pertinent to this appeal.

Therefore, under H.B. 91-1257, the BAA's rules and regulations, set to expire on June 1, 1991, were extended for the following year. H.B. 91-1257 was approved by the General Assembly on May 24, 1991, the same day on which the General Assembly approved H.B. 91-1183 which abolished the "old" BAA and established the "new" BAA.

Since the General Assembly is presumed to have knowledge of all other statutes in existence, City & County of Denver v. Rinker, 148 Colo. 441, 366 P.2d 548 (1961), and certainly those which it is concurrently promulgating, we conclude that by enacting H.B. 91-1257 and extending all rules and...