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O'Neil v. Conejos County Board of Commissioners

Court of Appeals of Colorado, Second Division

March 9, 2017

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.

         Colorado 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, for Respondent-Appellant

          Cynthia H. Coffman, Attorney General, Emmy A. Langley, Assistant Attorney General, Denver, Colorado, for Appellee


          DAILEY J. JUDGE

         ¶ 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.

         I. Background

         ¶ 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.[1] 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, [2] 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. 2016.

         II. The Property's Classification

         ¶ 6 The County contends that the Board improperly classified the O'Neils' property as residential. We are not persuaded.

         A. A Procedural Issue: Addressing the Presumption Afforded the Assessor's Classification

         ¶ 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.").

         B. 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, ...

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