James E. O'Neil, Mary Ellen O'Neil, Shay Patrick O'Neil, and Shaun Michael O'Neil, Petitioners-Appellees,
Conejos County Board of Commissioners, Respondent-Appellant, and Board of Assessment Appeals, Appellee.
State Board of Assessment Appeals Nos. 65665 & 65666
Benjamin F. Gibbons, P.C., Benjamin F. Gibbons, Monte Vista,
Colorado, for Petitioners-Appellees
Nicolas Sarmiento, County Attorney, Conejos, Colorado;
Stephane Walter Atencio (on the briefs), Alamosa, Colorado,
Cynthia H. Coffman, Attorney General, Emmy A. Langley,
Assistant Attorney General, Denver, Colorado, for Appellee
1 In this property tax case, respondent, the Conejos County
Board of County Commissioners (the County), appeals an order
of the Board of Assessment Appeals (the Board) classifying
property owned by the petitioners, the O'Neil family, as
residential for tax purposes. We affirm.
2 In 2010, James E. and Mary Ellen O'Neil purchased the
subject property and built a log house on it, to be used as a
vacation home and an inheritance for their two sons, Shay and
Shaun. The house was initially classified for tax
purposes as residential.
3 The O'Neils, who primarily live in New Mexico,
periodically visited the home, but it remained unoccupied
much of the time. Starting in August 2011, the O'Neils
listed the property as available for short-term, overnight
rental on the website Vacation Rentals By Owner (VRBO). In
order to rent the property, they obtained from the County a
special use permit, which required payment of sales and
lodging tax; the permit did not reclassify the property or
change the zoning from residential.
4 In 2012, the Conejos County Assessor (the Assessor)
re-classified the property, for ad valorem tax purposes, from
residential to commercial. Because the reclassification
worked to the O'Neils' detriment,  James O'Neil
filed a petition for abatement with the County regarding the
2012 and 2013 tax years. After the County denied the
petition, the O'Neils filed an appeal with the Board,
which, after conducting an evidentiary hearing, overturned
the Assessor's action and returned the property's
classification to residential for those years.
5 The County appeals the Board's decision to this court,
pursuant to sections 13-4-102(2)(x) and 39-8-108(2), C.R.S.
The Property's Classification
6 The County contends that the Board improperly classified
the O'Neils' property as residential. We are not
A Procedural Issue: Addressing the Presumption Afforded the
7 The County contends that the Board failed to apply the
presumption in favor of the Assessor's classification of
the property. We disagree.
8 In the Board proceedings, the O'Neils, as the
taxpayers, bore the burden of rebutting the presumption that
the Assessor's classification was correct. Gyurman v.
Weld Cty. Bd. of Equalization, 851 P.2d 307, 310
(Colo.App. 1993). While the Board did not specifically cite
this presumption, it began its analysis by thoroughly
addressing the County's position. It analyzed the
commercial classification statutes, as well as the
definitions of "commercial property" and
"mixed use property" in related materials. It
considered the Assessor's testimony, and the meaning of
"overnight lodging" offered to the public.
9 Only after analyzing the County's position did the
Board consider whether the O'Neils had presented
sufficient evidence to prove that the Assessor's
classification of the property as "commercial" was
incorrect. The Board found that, although the Assessor had
classified the property as commercial "[b]ased on her
research and conviction that the subject's primary use
was "lodging, " the O'Neils nevertheless
presented sufficient evidence to prove that the primary use
of the house was residential. In our view, the Board's
order demonstrates that it implicitly applied the presumption
in favor of the County, and then found that the O'Neils
had met their burden of proof. See id. ("[T]he
determination whether that burden of proof has been met by
competent evidence by the taxpayer is a question of fact for
the [Board] to decide."); see also Bd. of Assessment
Appeals v. Sampson, 105 P.3d 198, 205, 207 (Colo. 2005)
("A taxpayer who met [its] burden of proof also
successfully rebutted the presumption of correctness. . . .
[A] taxpayer is entitled to relief by demonstrating that the
classification is incorrect.").
The Merits of the Board's Decision
10 The Board has authority to review county tax assessments
and decisions of boards of county commissioners. Gilpin
Cty. Bd. of Equalization v. Russell, 941 P.2d 257, 261
(Colo. 1997); see §§ 39-2-125(1),
39-8-108(1), C.R.S. 2016. Because the Board acts de novo in
these proceedings, we review the propriety of the Board's
classification determination, and not that of the Assessor or
the County. Johnston v. Park Cty. Bd. of
Equalization, 979 P.2d 578, 581 (Colo.App. 1999).
11 Because the Board's property classification involves
mixed questions of law and fact, it will be upheld on appeal
if it (1) has a reasonable basis in law and (2) is supported
by substantial evidence in the record. Home Depot USA,