Commercial Federal Sav. and Loan Ass'n v. Douglas County Bd. of Equalization, s. 92CA0470

• Decision Date: 06 May 1993
• Docket Number: 92CA0578 and 92CA0579,Nos. 92CA0470,92CA0577,s. 92CA0470
• Citation: 867 P.2d 17
• Parties: COMMERCIAL FEDERAL SAVINGS AND LOAN ASSOCIATION; Weyerhauser Mortgage Company; and First American Title Insurance Company, Petitioners-Appellees, and Board of Assessment Appeals of the State of Colorado, Appellee, v. DOUGLAS COUNTY BOARD OF EQUALIZATION, Respondent-Appellant. . V
• Court: Colorado Court of Appeals

Page 17

867 P.2d 17

COMMERCIAL FEDERAL SAVINGS AND LOAN ASSOCIATION;

Weyerhauser Mortgage Company; and First American

Title Insurance Company, Petitioners-Appellees, and Board of Assessment Appeals of the State of Colorado, Appellee, v. DOUGLAS COUNTY BOARD OF EQUALIZATION, Respondent-Appellant.

Nos. 92CA0470, 92CA0577, 92CA0578 and 92CA0579.

Colorado Court of Appeals,

Div. V.

May 6, 1993.

Rehearing Denied June 3, 1993.

Certiorari Denied Jan. 31, 1994.

Barry J. Goldstein, Denver, for petitioners-appellees.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Larry A. Williams, First Asst. Atty. Gen., Denver, for appellee.

J. Mark Hannen, County Atty., Thomas W. McNish, Asst. County Atty., Castle Rock, for respondent-appellant.

Opinion by Judge BRIGGS.

In this consolidated appeal, respondent, Douglas County Board of Equalization (County), seeks review of four decisions of the Colorado Board of Assessment Appeals (BAA) reducing the Douglas County Assessor's valuation of vacant land owned by petitioners, Commercial Federal Savings and Loan Association (92CA0470), Weyerhauser Mortgage Company (92CA0577 & 92CA0579), and First American Title Insurance Company (92CA0578) (Taxpayers). The BAA entered an appearance as a named appellee. We affirm.

The County contends that the BAA committed an error of law by interpreting Colo.Sess.Laws 1990, ch. 277, § 39-1-103(14)(b) at 1688, to include developer's profit and overhead in the cost of development which may be deducted from the valuation of vacant land. We disagree.

That statute, as in effect at the time of the valuations in question, provided in relevant part:

The assessing officers shall give appropriate consideration to the cost approach, market approach, and income approach to appraisal as required by the provisions of section 3 article X of the state constitution in determining the actual value of vacant land. When using the market approach to appraisal in determining the actual value of vacant land, assessing officers shall take into account, but need not limit their consideration to, the following factors: The anticipated market absorption rate, the size and location of such land, the cost of development, any amenities, any site improvements, access, and use. (emphasis supplied)

In each case, the County had assessed the vacant land without including any deduction for developer's overhead and profit based on its conclusion that cost of development did not include such "soft," or "indirect," costs. In each case, the BAA reached a contrary result and, therefore, provided the Taxpayers with a reduction in the property's value in the amount of 20% for developer's overhead and profit.

After the BAA made the four rulings in question, the General Assembly amended § 39-1-103(14)(b), effective June 2, 1992. That amended statute, § 39-1-103(14)(b), C.R.S. (1992 Cum.Supp.), provides in relevant part:

When using the market approach to appraisal in determining vacant land as of the assessment date, assessing officers shall take into account, but need not limit their consideration to, the following factors: The anticipated market absorption rate, the size and location of such land, the direct costs of development.... When using anticipated market absorption rates, the assessing officers shall use appropriate discount factors in determining the present worth of vacant land until eighty percent of the lots within an approved plat have been sold and shall include all vacant land in the approved plat. For purposes of such discounting, direct costs of development shall be taken into account .... For purposes of this paragraph (b), no indirect costs of development, including, but not limited to, costs relating to marketing, overhead, or profit, shall be considered or taken into account. (emphasis supplied to reflect amendments)

The County contends that the General Assembly's 1992 amendment to the statute, which expressly prohibits consideration of indirect costs, including but not limited to marketing, overhead, or profit, clarifies the prior statute and indicates that the BAA's interpretation of the former statute was in error. We are not persuaded.

When a statute is amended, it is presumed that the General Assembly intended to change the law. Charnes v. Lobato, 743 P.2d 27 (Colo.1987). This rule leads to the conclusion that the BAA's interpretation of the former statute was correct.

We recognize that an explicit subsequent legislative declaration concerning the intent of an earlier statute is entitled to considerable weight. See People v. Holland, 708 P.2d 119 (Colo.1985). However, a subsequent legislative amendment may be considered in construing a former statute only to the extent the intent of the legislature can be ascertained from the amendment. See 2B N. Singer, Sutherland Statutory Construction § 49.11 (5th ed. 1992).

Here, it is not clear from the amendment itself whether it was intended as a clarification or a change. However, other statutory provisions in effect at the time the former statute was enacted and relating to costs contained qualifying terms such as direct and indirect costs. See § 34-1-105, C.R.S. (1984 Repl.Vol. 14); § 23-60-306(3)(e), C.R.S. (1988 Repl Vol. 9); § 24-34-105(2)(a), C.R.S. (1988 Repl.Vol. 10A); § 25-2-121(2)(b)(I), C.R.S. (1989 Repl.Vol. 11A); § 24-113-104(1)(a), C.R.S. (1988 Repl.Vol. 10B). Under such circumstances, we presume that, at the time of enactment of this statute, the General Assembly was aware such qualifying language was available, and it could have added a similar qualification if that had been its intent. See Scholz v. Metropolitan Pathologists, P.C., 851 P.2d 901 (Colo.1993); ...