Martin v. Board of Assessment Appeals of State, 83SA297

• Decision Date: 15 October 1985
• Docket Number: No. 83SA297,83SA297
• Citation: 707 P.2d 348
• Parties: Belmore T. MARTIN and Marion M. Martin, Park Lane Condominium Association, American Invesco, Katherine Wuth, Frank McWilliams, Donald Baldovin, Aksel Nielsen, Arline Bragar, Monroe Tyler, Patricia Walter, William McClintock, Harry Struck, Charles Dewey, Edward Perry, Judith Freehling, Judith Pasternack, Dorothy Davidor, Lupe-Rebeka Sananiego, Stephan Ring, John Kellar, Walter Rothermal, Shiela Heller, Edward Cribbs, Sidney Werkman, Simpson Marcus, Dorothy Rosenbaum, Miles Rader, Henry Schwalbe, Richard Shetterly, Armand Marcus, Margret Chaffe, Donna Hultin, Marcus and Betty Bogue, Charles Albi, Helen Egan, Josephine Eberhart, Ruby Glaube, Phyllis Frank, William Haddon, Robert Graham, Dorothy Watson, Madeline Bruff, Manley Nelson, Arthur Burke, Catherine Haddon, Robert Tschappat, Arthur Kavanaugh, Harvey Stradley, Donald Cobbs, Jane Elston, Janice Gartshore, Philip and Lillie Spanier, Carole Cook, Evelyn Packard, Curtis Brunk, Bertram Pear, Gerald Kessler, Jean DeBray, Boyd Willett, Samuel Lurie, Dorothy Cameron, Phyllis Freed, William Durey, Gerald Olesh, E. Paul Carter, Owen Murphy, Raymond Cote, Frank Roberts, Dorothy Warner, N. Milan Hart, Ralph Hartwig, Marjorie Holcomb, Gwendolyn Rice and Cy Mintz, Plaintiffs-Appellees, v. BOARD OF ASSESSMENT APPEALS OF the STATE of Colorado and Henry F. Shriver, Charles H. Bradley, F. William Brier in their capacities as members of the Board of Assessment Appeals of the State of Colorado; and the Board of Equalization of the City and County of Denver, Defendants-Appellants.
• Court: Colorado Supreme Court

Page 348

707 P.2d 348

Belmore T. MARTIN and Marion M. Martin, Park Lane Condominium Association, American Invesco, Katherine Wuth Frank McWilliams, Donald Baldovin, Aksel Nielsen, Arline Bragar, Monroe Tyler, Patricia Walter, William McClintock Harry Struck, Charles Dewey, Edward Perry, Judith Freehling Judith Pasternack, Dorothy Davidor, Lupe-Rebeka Sananiego Stephan Ring, John Kellar, Walter Rothermal, Shiela Heller, Edward Cribbs, Sidney Werkman, Simpson Marcus, Dorothy Rosenbaum, Miles Rader, Henry Schwalbe, Richard Shetterly, Armand Marcus, Margret Chaffe, Donna Hultin, Marcus and Betty Bogue, Charles Albi, Helen Egan, Josephine Eberhart, Ruby Glaube, Phyllis Frank, William Haddon, Robert Graham, Dorothy Watson, Madeline Bruff, Manley Nelson, Arthur Burke, Catherine Haddon, Robert Tschappat, Arthur Kavanaugh, Harvey Stradley, Donald Cobbs, Jane Elston, Janice Gartshore, Philip and Lillie Spanier, Carole Cook, Evelyn Packard, Curtis Brunk, Bertram Pear, Gerald Kessler, Jean DeBray, Boyd Willett, Samuel Lurie, Dorothy Cameron, Phyllis Freed, William Durey, Gerald Olesh, E. Paul Carter, Owen Murphy, Raymond Cote, Frank Roberts, Dorothy Warner, N. Milan Hart, Ralph Hartwig, Marjorie Holcomb, Gwendolyn Rice and Cy Mintz, Plaintiffs-Appellees, v. BOARD OF ASSESSMENT APPEALS OF the STATE of Colorado and Henry F. Shriver, Charles H. Bradley, F. William Brier in their capacities as members of the Board of Assessment Appeals of the State of Colorado; and the Board of Equalization of the City and County of Denver, Defendants-Appellants.

No. 83SA297.

Supreme Court of Colorado, En Banc.

Oct. 15, 1985.

Shafroth and Toll, P.C., C. Kevin Cahill, Belmore T. Martin, Denver, Colo., for plaintiffs-appellees.

Max P. Zall, City Atty., Eugene J. Kottenstette, Jr., Robert F. Strenski, Assistant City Attys., L. Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Billy J. Shuman, First Asst. Atty. Gen., Denver, for defendants-appellants.

ROVIRA, Justice.

The issue in this case is whether the valuation for assessment tax statute, section 39-1-104(11)(b), 16B C.R.S. (1982), as amended in 1982 by H.B. 1236, Ch. 145, sec. 1, section 39-1-104(11)(b), 1982 Colo.Sess. Laws 553, 553-54, as applied to the 1982 tax year, is retroactive in operation, and therefore in violation of article II, section 11, of the Colorado Constitution. Concluding that it is not, we reverse the judgment of the Denver District Court.

I.

The Parklane Condominiums, located in Denver, Colorado, were created by converting rental apartments to condominiums in 1979. More than 51% of the apartments were sold.

In 1982, the Denver assessor, finding that the creation of condominium ownership was an "unusual condition," valued the Parklane Condominiums in accordance with the provisions of section 39-1-104(11)(b), 16B C.R.S. (1982), which reflects the changes made by H.B. 1236. ¹ H.B. 1236 was not signed into law until May 3, 1982. The condominium owners protested the 1982 valuation on the ground that their condominiums should have been valued according to the law as it existed on January 1, 1982. They argued that the provision in H.B. 1236 mandating that it shall apply to property tax years commencing on or after January 1, 1982, ² violates article II, section 11 of the Colorado Constitution, because it is effective as of an assessment date prior to its becoming law.

After the owners' protests were heard and denied by the Denver assessor and the Board of Equalization of the City and County of Denver (Denver Board), they filed an appeal with the Board of Assessment Appeals of the State of Colorado (BAA) claiming that any increase in assessment based on H.B. 1236 was unconstitutional. After a hearing, the BAA held that the Denver assessor correctly valued the property in accordance with the provisions of section 39-1-104(11)(b), as amended by H.B. 1236, and that it did not have the authority to determine the constitutional issue presented by the owners.

The owners then filed a complaint and petition for review against the BAA and the Denver Board in the district court. § 39-8-108, 16B C.R.S. (1982). They contended that section 39-1-104(11)(b), 16B C.R.S. (1982), as amended by H.B. 1236, violated various provisions of the Colorado and United States Constitutions. After a hearing, the district court held that the findings and order of the BAA and the decision of the Denver Board "denying [the owners'] Petition to make an administrative review of the 1982 valuation for assessment are reversed for the reason that H.B. 1236, which amends C.R.S. 39-1-104(11)(b), violates Article II, Section 11, of the Colorado Constitution."

Subsequently, the district court denied a motion for new trial and remanded the case to the BAA for further proceedings in light of its holding that H.B. 1236 is unconstitutional as applied. Shortly thereafter, it granted the defendants' motion for entry of judgment pursuant to C.R.C.P. 54(b), finding "no just reason for delay with regard to the constitutionality of H.B. 1236." This appeal followed. ³

II.

The general prohibition against retroactive laws contained in article II, section 11, of the Colorado Constitution provides:

No ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges, franchises or immunities shall be passed by the general assembly.

The parties agree that the test for determining whether a law is "retrospective in its operation" is that which was first stated in Denver, South Park & Pacific Railway Co. v. Woodward, 4 Colo. 162 (1878). There, this court adopted Judge Story's popular definition of retrospective laws which reads:

Upon principle, every statute, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective....

4 Colo. at 167, citing Society for the Propagation of the Gospel v. Wheeler, 22 F.Cas. 756 (C.C.N.H.1814) (No. 13,156). See also P-W Investments, Inc. v. City of Westminster, 655 P.2d 1365, 1371 (Colo.1982); Continental Title Co. v. District Court, 645 P.2d 1310, 1314 (Colo.1982). Consequently, the property owners contend that section 39-1-105, 16B C.R.S. (1982), vested in them, as of noon, January 1, 1982, an assessed value of their property for the taxable year 1982 based on section 39-1-104(11)(b) as it existed on that date and that such value could not be changed by the May 3, 1982 amendment, without violating the constitutional prohibition. ⁴ In addressing this contention, we are not without precedent.

In American Refrigerator Transit Co. v. Adams, 28 Colo. 119, 63 P. 410 (1900), this court examined an act passed by the Eleventh General Assembly in 1897 which provided for the assessment and taxation of railroad cars other than those which were the property of railroad companies to determine whether it operated retrospectively. Essentially, the act provided that the officers of such companies must make a statement on or before March 15 in each year, under oath, to the state's board of equalization showing the aggregate number of miles their cars traveled in the state during the preceding year ending December 31 and another statement showing the average number of miles traveled per day by the cars in the ordinary course of business during that year. Ch. 70, sec. 2, 1897 Colo.Sess.Laws 259, 260. With this information, the board of equalization was directed to ascertain and fix a value upon each particular class of cars used by these companies in the state each year. Ch. 70, sec. 3, 1897 Colo.Sess.Laws 259, 260-61. The purpose of the act was to subject all property owned or used by these companies within the territorial limits of the state to taxation according to its value. See Hall v. American Refrigerator Transit Co., 24 Colo. 291, 51 P. 421 (1897), aff'd, 174 U.S. 70, 19 S.Ct. 599, 43 L.Ed. 899 (1899).

To comply with the 1897 act, American Refrigerator Transit Company and twelve other companies operating railroad cars in the state filed statements with the board before March 15, 1898, showing mileage made by their cars for the year ending December 31, 1897. They then filed a complaint in the district court seeking an injunction to restrain the board from assessing their cars under the 1897 act. The district court denied the relief sought.

On appeal, the taxpayers claimed that the 1897 act was retrospective in its operation, and violated article II, section 11 of the Colorado Constitution, because it did not go into effect until April 1, 1897, and the board, acting under its provisions, had received statements which included mileage made by their railroad cars during the first three months of 1897 before the act took effect. Rejecting that argument, this court stated:

We do not think this objection tenable. The cars were subject to taxation under the constitution and statutes theretofore in existence; and the act in question merely provides a mode of ascertaining the average number of cars belonging to the respective companies, used in this state during the year, and which were liable to taxation for that year, under the then existing laws.

28 Colo. at 124, 63 P. at 412. ⁵

As American Refrigerator Transit Co. makes clear, property owners have no vested right to have their taxable property assessed by particular methods employed in prior years. Nor is application of a statute rendered retroactive and unlawful merely because the facts upon which it operates occurred before the adoption of the statute. Continental Title, 645 P.2d at 1314 (upholding the application of a jurisdictional statute to a complaint filed prior to adoption of the statute). Section 39-1-104(11)(b), 16B C.R.S. (1982) merely instructs the Denver assessor to consider the fact of condominium conversion as an...