Thibodeau v. Denver Cnty. Bd. of Comm'rs
| Decision Date | 23 August 2018 |
| Docket Number | Court of Appeals No. 17CA0653 |
| Citation | 428 P.3d 706 |
| Parties | Joseph H. THIBODEAU, Petitioner-Appellant, v. DENVER COUNTY BOARD OF COMMISSIONERS and Board of Assessment Appeals, Respondents-Appellees. |
| Court | Colorado Court of Appeals |
N.H. Wright and Associates, Norman H. Wright, Dillon, Colorado, for Petitioner-Appellant.
Kristin M. Bronson, City Attorney, Noah Cecil, Assistant City Attorney, Denver, Colorado, for Respondent-Appellee Denver County Board of Commissioners.
Cynthia H. Coffman, Attorney General, John A. Lizza, First Assistant Attorney General, Denver, Colorado, for Respondent-Appellee Board of Assessment Appeals.
Opinion by JUDGE TOW
¶ 1 Petitioner, Joseph H. Thibodeau, appeals an order of the Board of Assessment Appeals (BAA) denying his abatement petition for the 2014 tax year. We affirm.
¶ 2 Thibodeau purchased the subject property, a residence located in the City and County of Denver, in July 2013. Earlier that year, the property was valued at $803,800 for ad valorem tax purposes. In May 2014, Thibodeau received notice that the City and County of Denver Assessor’s Office increased its assessment of the property’s value to $1,169,700.
¶ 3 Thibodeau unsuccessfully protested the increase with the Assessor before petitioning for abatement from the Denver County Board of Commissioners, sitting as the Denver County Board of Equalization (BOE). Thibodeau argued that the City erred in reassessing the subject property in an intervening year because no unusual condition existed. The BOE rejected his claim and upheld the 2014 assessment.
¶ 4 Thibodeau then filed an appeal with the BAA, again contending that the BAA should reduce the subject property’s 2014 value to the 2013 value of $803,800. At the hearing, the BOE requested that the property’s value be lowered from $1,169,700 to $1,150,000, based on an appraisal by a licensed residential appraiser. The BAA concluded that the mischaracterization of the property’s condition as average, rather than good, led to an incorrect 2013 assessment of the property’s value. Therefore, the assessor was permitted to correct the incorrect assessment during the intervening year. Additionally, the BAA found that there was sufficient evidence to support the value testified to by the appraiser.
¶ 5 On appeal, Thibodeau argues that the BAA erred in upholding the City and County of Denver’s reassessment of his property because section 39-1-104(11)(b)(I), C.R.S. 2017, only permits redeterminations in intervening years when unusual conditions exist. He also contends that the reassessment violated his constitutional right to equal protection in light of the Supreme Court’s decision in Allegheny Pittsburgh Coal Co. v. County Commission , 488 U.S. 336, 109 S.Ct. 633, 102 L.Ed.2d 688 (1989). We consider, and reject, each contention in turn.
¶ 6 A challenge to the BAA’s property tax assessment requires us to review questions of law and fact. We may only set aside the BAA’s decision if the BAA failed to abide by the statutory scheme for calculating property taxes, or its decision is unsupported by competent evidence. Jefferson Cty. Bd. of Cty. Comm’rs v. S.T. Spano Greenhouses, Inc. , 155 P.3d 422, 424 (Colo. App. 2006). Because statutory interpretation is a question of law, we review the BAA’s interpretation of the relevant statute de novo. Id.
¶ 7 However, we defer to the BAA’s findings of fact. "It is the function of the BAA, not the reviewing court, to weigh the evidence and resolve any conflicts." Bd. of Assessment Appeals v. Sampson , 105 P.3d 198, 208 (Colo. 2005). And, Thibodeau bears the burden of proving by a preponderance of the evidence that the property assessment is incorrect. Id. at 202.
¶ 8 Thibodeau first contends that the BAA erred in concluding that the assessor was permitted to reassess his property value in an intervening year without showing that an unusual condition existed. We conclude that section 39-1-104(11)(b)(I) authorizes assessors to correct incorrect property assessments in intervening years.
¶ 10 Thibodeau contends that the statute restricts property reassessments in intervening years to only instances where unusual conditions arise. Because no unusual condition exists here, he argues that the property was improperly reassessed during an intervening year. Divisions of this court have addressed, and rejected, similar arguments.
¶ 11 The statutory language quoted above was first enacted, albeit in slightly different form, in 1983. At that time, the legislature added the following sentence to the statute:
If any real property has not been assessed at its correct base year level of value, the assessor may revalue such property for an intervening year so that the actual value of such property will be its correct base year level of value; however, the assessor may not revalue such property above or below its correct base year level of value except as necessary to reflect the increase or decrease in actual value attributable to an unusual condition.
Ch. 429, sec. 1, § 39-1-104(11)(b)(I), 1983 Colo. Sess. Laws 1495.
¶ 12 In 24, Inc. v. Board of Equalization , 800 P.2d 1366, 1368 (Colo. App. 1990), a division of this court determined that this language granted assessors the authority to revalue properties during intervening years under three circumstances: "(1) to correct a clerical error or supply a clerical omission; (2) to adjust for an unusual condition; or (3) to correct an incorrect value." In its analysis, the division acknowledged that the statutory language governing reassessments during intervening years was unclear. Id. at 1369. Accordingly, the division turned to the legislative history underpinning the statute to determine its purpose.2 Id. ; see Colo. Dep’t of Revenue v. Creager Mercantile Co. , 2017 CO 41M, ¶ 16, 395 P.3d 741 ().
¶ 13 The division concluded that the statute was intended to provide assessors the authority to correct an incorrect assessment in or between base years. 24, Inc. , 800 P.2d at 1369. And, other divisions of this court have agreed that county assessors may correct property value assessments in intervening years. See Leavell-Rio Grande Cent. Assocs. v. Bd. of Assessment Appeals , 753 P.2d 797, 800 (Colo. App. 1988) (); see also Lowe Denver Hotel Ass’n v. Arapahoe Cty. Bd. of Equalization , 890 P.2d 257, 258-59 (Colo. App. 1995) ().3
¶ 14 The pertinent statutory language has been amended only once since then, and that amendment does not impact the applicability of the analysis in 24, Inc.4 Therefore, we disagree with Thibodeau that reassessments during intervening years are permitted only when unusual conditions exist. Instead, we conclude that county assessors are required to correct incorrect assessments in intervening years in order to set the value at what it would have been set at in the assessment year had the mistake not occurred. Further adjustments to the value, however, cannot be made in an intervening year absent proof of an unusual condition.
¶ 15 We must next determine (1) whether Thibodeau’s property was incorrectly assessed during the 2013 assessment year and (2) whether there is competent evidence to support the 2014 corrected value. We answer both questions in the affirmative.
¶ 16 At the BAA hearing, a certified residential appraiser and an employee of the county assessor’s office testified that the subject property was misidentified as being in average, rather than in good, condition during the 2013 assessment year. The county assessor explained that the appraisal system accounts for the condition of the property by determining the property’s condition, desirability, and utility. Consequently, a mischaracterization of the property’s condition may result in an inaccurate assessment of the property’s value.
¶ 17 When assessing a property’s condition, the assessor testified that the county assessor’s office examines permit records from the county’s planning department to determine whether improvements have been made on the property. The county assessor explained that a house built in the 1930s that had not undergone renovations or remodeling is considered a house in average condition. But, the assessor’s office "always assume[s] ... in the absence of any other knowledge ... that the condition is average." Here, the assessor’s records indicated that the property had not been remodeled since its construction in 1938.
¶ 18 In June 2013, after the...
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