Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

HDH Partnership v. Hinsdale County Board of Equalization

Court of Appeals of Colorado, Fourth Division

October 19, 2017

HDH Partnership; Lawrence Ausherman; Mark L. Ish; Herb Marchman; Hondros Family Real Estate, LLC; and Teresa M. Mull Revocable Trust, Petitioners-Appellants,
v.
Hinsdale County Board of Equalization, Respondent-Appellee and Board of Assessment Appeals, State of Colorado, Appellee.

         Board of Assessment Appeals, State of Colorado Case Nos. 68337, 68338, 68339 & 68340

          Hoskin Farina & Kampf, P.C., Michael J. Russel, Andrew H. Teske, Karoline M. Henning, Grand Junction, Colorado, for Petitioners-Appellants

          Schumacher & O'Loughlin, LLC, Michael P. O'Loughlin, Gunnison, Colorado, for Respondent-Appellee

          Cynthia H. Coffman, Attorney General, Krista Maher, Assistant Attorney General, Denver, Colorado, for Appellee

          OPINION

          GRAHAM JUDGE.

         ¶ 1 In this case we are tasked with determining whether owners of fishing and hunting memberships, HDH Partnership, Lawrence Ausherman, Mark L. Ish, Herb Marchman, Hondros Family Real Estate, LLC, and Teresa M. Mull Revocable Trust, may be taxed for the parcels of real estate allocated to them in their membership agreements.

         ¶ 2 The parcels are part of a larger tract of land used as a hunting and fishing club in southwestern Colorado. Membership in the club is granted to those who hold a deed to one of the parcels which collectively comprise the club grounds. Members cannot make improvements on their parcels or exclude other club members. Instead, the club retains control over the grounds and grants all members equal access, regardless of the parcel to which they hold title. A member's rights to access the grounds can be revoked if he or she owes money or violates club rules.

         ¶ 3 On these facts, we conclude that the club is the true property owner because it enjoys the most significant incidents of ownership while members effectively have a license to use club grounds, notwithstanding that they hold bare legal title to the parcels. Therefore, the club, not the members should bear the real property tax burden.

         I. Background

         A. The Lake Fork Hunting and Fishing Club

         ¶ 4 In 1979, the Lake Fork Hunting and Fishing Club (the Club) was formed. A declaration transferred 1400 acres of land to the Club, divided into twenty-nine parcels, known as "Ranches." Except for a single "Floating Membership" that is not tied to a Ranch, the only way to obtain membership in the Club is to hold title to part of a Ranch. Membership cannot be "sold, assigned or transferred, voluntarily or by will or by operation of law." Instead, "[w]henever a member . . . cease[s] to own the interest in the real property which entitles him to such membership . . . such member shall automatically be dropped from the membership rolls of the Club and the membership certificate [is transferred] to the new ranch owner." In other words, club membership cannot be severed from the deed, but instead follows record title to a Ranch.

         ¶ 5 The Club reserves the following rights:

• "exclusive hunting and fishing rights and privileges including all rights of ingress and egress upon and across the entire property, including all Ranches";
• "exclusive right to construct and maintain over, across and upon each Ranch . . . utilities, roads, lakes, ditches, bridges and fences";
• "exclusive right to pasture livestock on the entire property, including each individual Ranch";
• "the right to impound, store, and divert the waters of the Lake Fork of the Gunnison river over, across and upon each Ranch"; and
• the rights to "easements and rights of way incident to and necessary to maintain . . . the existing skeet and trap field, the existing golf driving range and the existing airport runway."
Members are prohibited from
• subdividing the Ranches;
• building within one hundred feet of the river;
• placing trailers or mobile homes on the Ranches; or
• conducting any mining or drilling activities.

         Initially, members were barred from building more than three residences on any Ranch, but, in 1999, the declaration was amended to prohibit the construction of any residence on a Ranch.

         ¶ 6 The Club's bylaws limit the number of guests a member may bring to the Club for hunting or fishing and the number of days an individual guest may hunt or fish. Members must register themselves and their guests when using Club grounds, and their hunting and fishing activities are subject to detailed Club regulations. The Club is entitled to all revenues from fees charged for hunting, fishing, shooting, and other activities on the grounds.

         ¶ 7 Only "members in good standing" are permitted to access Club grounds, which are defined as "all property owned by Lake Fork Hunting and Fishing Club including all ranches by virtue of the ownership of which persons are entitled to membership in the Lake Fork Hunting and Fishing Club." Members who have unpaid assessments or other outstanding fees "shall not be entitled to the privileges of the Club." And the Board of Governors may "censure[], fine[], or have all privileges suspended . . . for violation of the Declaration . . ., By-Laws, Rules or Regulations . . . or for any conduct which in the opinion of the Board, is improper or prejudicial to the welfare of or reputation of the Club."

         B. Procedural History

         ¶ 8 Each of the petitioners in this case holds membership in the Club by virtue of a deed conferring record title to a Ranch or part of a Ranch. They initiated this action after they disagreed with the Hinsdale County Assessor's 2015 assessment of those parcels. They argued that the Assessor should not have assessed property taxes to them individually because, although they are the record title holders, they do not actually enjoy traditional incidents of ownership, which are instead retained by the Club. The Club, they said, is the true property owner and therefore it should have received the property tax assessment. Petitioners also argued that the Assessor failed to account for the personal property value of the Ranch deeds. The value of the deeds, they claimed, was not in the land but in the club membership that the deed granted - membership which constitutes a personal property interest not subject to real property taxation.

         ¶ 9 The Hinsdale County Board of Equalization (BOE) agreed with the Assessor that petitioners were the parcel owners and affirmed the Assessor's valuation. Petitioners appealed to the Board of Assessment Appeals (BAA), which agreed with the BOE and affirmed its decision. Petitioners then filed this appeal.

         ¶ 10 Because we agree with petitioners that the Club is the true owner of the parcels, we conclude that the BAA erred as a matter of law in assessing real property taxes to petitioners. We also conclude that the BAA erred in affirming the Assessor's valuation, because it was based on the personal property value of petitioners' licenses to use Club grounds, rather than the value of the parcels as real ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.