City and County of Denver v. Board of Assessment Appeals of State of Colo., 87CA0312
| Decision Date | 11 May 1989 |
| Docket Number | No. 87CA0312,87CA0312 |
| Citation | 782 P.2d 817 |
| Parties | CITY AND COUNTY OF DENVER, a municipal corporation, and Winter Park Recreational Association, a non-profit corporation, Plaintiffs-Appellees, v. BOARD OF ASSESSMENT APPEALS OF the STATE OF COLORADO; Board of Equalization of Grand County; Lorene Linke, W.A. Needham, Herbert Ritschard, and Richard Leonard, as members of the Grand County Board of Equalization; Lisa M. Underbrink, Grand County Assessor; and Margaret J. Alt, Grand County Treasurer, Defendants-Appellants. . I |
| Court | Colorado Court of Appeals |
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Larry A. Williams, First Asst. Atty. Gen., Denver, and Anthony J. DiCola, Hot Sulphur Springs, for defendants-appellants.
Richard P. Hall and Phelps, Singer & Dunn, Alan Gary Dunn, Denver, for plaintiffs-appellees.
Opinion by Justice HODGES. *
Improvements and facilities on a part of the ski area operated by the Winter Park Recreational Association (Association) were assessed for the tax year 1984 by the Grand County Assessor. In previous years no such taxes had been imposed. The Association's protests to the assessor, to the Grand County Board of Equalization, and finally to the Board of Assessment Appeals of the State of Colorado (State Board) were denied. The Association and Denver appealed to the district court, which entered judgment declaring the assessment invalid and unenforceable. The State Board and taxing officers of Grand County filed this appeal urging reversal of this judgment. We affirm.
I. Partial Dismissal of Initial Appeal
As initially filed, this appeal involved the 1984, 1985, and 1986 assessments which covered the improvements, ski facilities, and other items of personal property located on most of the area generally known as the Winter Park Ski and Recreational Area (ski area). The 1984 assessment was only on improvements owned by the Association on a tract of land which the Association leases from the Colorado Arlberg Club. Each year's assessment proceeding was the subject of separate cases in the district court. For the purpose of review and disposition, the district court consolidated the cases pursuant to C.R.C.P. 42(a) and entered one judgment invalidating all three assessments.
Denver and the Association moved to dismiss this appeal asserting that the defendants had failed to file their notice of appeal to this court within the time required by § 39-8-108, C.R.S. (1986 Cum.Supp.). In Denver v. Board of Assessment Appeals, 748 P.2d 1306 (Colo.App.1987), this appeal was partially dismissed as to the 1985 and 1986 assessments, however, the motion to dismiss was denied as to the 1984 assessment which, therefore, is the sole subject of this appeal.
II. History of Ski Area
The historical and factual background of the ski area and the Association was an important basis for many of the district court's findings and its judgment, which was based upon the consolidated record of the three proceedings before the other tribunals. A brief resume of this history is a necessary foundation for our disposition.
In 1938, the U.S. Forest Service issued to Denver a special permit for its use of approximately 6400 acres of land for a winter sports development near the West Portal of the Moffat Tunnel in Grand County, Colorado. Shortly thereafter, the Denver City Council enacted an ordinance accepting this federal grant and providing that the land is to be used for the purpose of constructing park improvements including ski-tows and ski-ways. The use of additional adjacent land was acquired in 1939 when Denver entered into a license agreement with the Moffat Tunnel Improvement District to use a tract of its land for the erection of ski and recreation improvements. A 90-acre portion of the ski area is owned in fee by Denver. Finally, in 1974, the Association leased an adjoining tract of land from the Arlberg Club for use in extending the ski area.
Until about 1950, the ski area was administered by Denver's Department of Parks and Improvements. The operation and development of the ski area became a problem for Denver because it did not have the expertise to provide professional management and the buildings and ski facilities were becoming dilapidated. For these reasons, Denver became concerned about its liability because of the increasing public use of the ski area.
The then Mayor, Quigg Newton, and the Manager of the Department of Improvements and Parks consulted with several prominent ski enthusiasts and business people who desired to maintain and improve the ski area. As a result, it was decided that a nonprofit corporation would be created to manage and develop the ski area for Denver. Pursuant to this concept, the Association was incorporated in July 1950 for the sole purpose, as expressed in the articles of incorporation, of entering into a contract with Denver to act as its agent in the operation, maintenance, and development of the ski area.
Management of the Association was vested in a board of trustees who were precluded under the articles of incorporation from deriving any personal pecuniary gain from the operation of the ski area. The articles also provided that:
"All monies realized by the corporation either from the operation of the area or from the City and County of Denver or from private donors shall be used exclusively for the operation, maintenance, and development of the Winter Park Recreational Area for the benefit of the general public."
After incorporation, Denver and the Association entered into an agreement by which Denver vested in the Association full control, discretion and power in "the selection, development, and arrangement of all facilities located in the area or which may hereafter be included in the area...." It was also specified that all income from concessions, from the operation of ski tows, or from any other source whatsoever was to be received directly by the Association and used exclusively for the development, operation, and maintenance of the ski area.
This agreement has been amended from time to time to clarify and enlarge the authority of the Association and to extend the term of the agreement. The 1979 amendment extends the term until April 30, 2078. Over the years, the U.S. Forest Service has issued updated use permits to Denver for the 6,400 acre portion of the ski area, and these permits recognize the Association as an agent for Denver in the operation of the ski area. Other documents also consistently refer to the Association as the agent for Denver. The initial agreement and each amendment and the supplemental agreements between Denver and the Association have been approved...
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