     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                 May 17, 2018

                                2018COA72

No. 17CA0436, Rust v. Bd. of Cty. Commr’s — Taxation —
Property Tax — Residential Land

     A division of the court of appeals considers whether the Board

of Assessment Appeals properly determined that petitioner’s vacant

parcel of land should not be reclassified for tax purposes as

residential property under section 39-1-102(14.4)(a), C.R.S. 2017.

The only contested factor here was whether the subject parcel was

“used as a unit” with the residential parcel. Id. Based on the facts

presented, the division concludes that the use of the property

described by the petitioner/landowner did not satisfy the statutory

definition and, therefore, affirms the BAA’s order.
COLORADO COURT OF APPEALS                                           2018COA72


Court of Appeals No. 17CA0436
Board of Assessment Appeals Case No. 68924


Robert W. Rust,

Petitioner-Appellant,

v.

Board of County Commissioners of Summit County, Colorado; and Board of
Assessment Appeals,

Respondents-Appellees.


                              ORDER AFFIRMED

                                 Division VI
                          Opinion by JUDGE ASHBY
                         Furman and Fox, JJ., concur

                           Announced May 17, 2018


Ryley Carlock & Applewhite, F. Clayton, III, Denver, Colorado, for Petitioner-
Appellant

Jeffrey Huntley, County Attorney, Franklin Celico, Assistant County Attorney,
Breckenridge, Colorado, for Respondent-Appellee Board of County
Commissioners

Cynthia H. Coffman, Attorney General, Krista Maher, Assistant Attorney
General, Denver, Colorado, for Respondent-Appellee Board of Assessment
Appeals
¶1    Petitioner, Robert W. Rust, appeals from the order of the

 Board of Assessment Appeals (BAA), which affirmed the decision of

 the Board of County Commissioners of Summit County, Colorado,

 denying his request to reclassify land for tax purposes. We affirm.

                            I. Background

¶2    Mr. Rust bought a parcel of residential property in Summit

 County, Colorado. About a year later, he purchased the adjacent,

 undeveloped parcel (the subject property). He and his family have

 used the two parcels, primarily as a winter vacation spot, for

 decades.

¶3    The county assessor classified the subject property as vacant

 land for the years 2013-2015, subjecting it to a tax rate that is

 nearly three times the rate for residential property. Mr. Rust

 challenged that classification and sought reclassification of the

 subject property, asserting that both parcels should be classified as

 residential under section 39-1-102(14.4)(a), C.R.S. 2017. After a

 hearing, the BAA denied reclassification.

                            II. Discussion

¶4    Mr. Rust contends that the BAA misconstrued the “used as a

 unit” element of section 39-1-102(14.4)(a). We disagree.


                                   1
¶5    Review of the BAA’s decision presents a mixed question of law

 and fact. Aberdeen Inv’rs, Inc. v. Adams Cty. Bd. of Cty. Comm’rs,

 240 P.3d 398, 400 (Colo. App. 2009); Farny v. Bd. of Equalization,

 985 P.2d 106, 109 (Colo. App. 1999); see § 24-4-106(7), C.R.S.

 2017. Thus, we defer to the BAA’s factual findings, but review de

 novo its legal conclusions. “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). We will uphold the BAA’s property classification

 “if it (1) has a reasonable basis in law and (2) is supported by

 substantial evidence in the record.” O’Neil v. Conejos Cty. Bd. of

 Comm’rs, 2017 COA 30, ¶ 11; see Sampson, 105 P.3d at 208 (We

 will set aside the BAA’s decision “only if it is unsupported by

 competent evidence or if it reflects a failure to abide by the statutory

 scheme for calculating property tax assessments.”).

¶6    The interpretation of statutes is a legal question that we review

 de novo. Lobato v. Indus. Claim Appeals Office, 105 P.3d 220, 223-

 24 (Colo. 2005). In so doing, we give deference to, but are not

 bound by, the agency’s interpretation of the statutes it is charged

 with administering, “provided the interpretation has a reasonable


                                    2
 basis in the law and is supported by the record.” Marshall v. Civil

 Serv. Comm’n, 2016 COA 156, ¶ 9; see BP Am. Prod. Co. v. Colo.

 Dep’t of Revenue, 2016 CO 23, ¶ 15; Bd. of Cty. Comm’rs v. Colo.

 Pub. Utils. Comm’n, 157 P.3d 1083, 1088 (Colo. 2007); Aberdeen

 Inv’rs, 240 P.3d at 403. Our goal is to effectuate the legislative

 intent, starting with the plain language of the statute. BP Am.

 Prod., ¶ 15. If the words are unambiguous, we apply them as

 written. Id. If, however, they are reasonably susceptible of more

 than one meaning, we may look to extrinsic sources to aid our

 interpretation. Id.

¶7    Section 39-1-102(14.4)(a) provides, “‘[r]esidential land’ means

 a parcel or contiguous parcels of land under common ownership

 upon which residential improvements are located and that is used

 as a unit in conjunction with the residential improvements located

 thereon.” In classifying land under this statute, county assessors

 use the Assessor’s Reference Library (ARL) for guidance. The ARL

 further defines the “used as a unit” element of the statute as

 “[p]arcels of land, under common ownership, that are contiguous

 and used as an integral part of a residence,” and it classifies such

 parcels as residential property. 2 Div. of Prop. Taxation, Dep’t of


                                    3
 Local Affairs, Assessor’s Reference Library 6.10 (rev. Apr. 2018). It

 also gives assessors four guidelines to use in applying that

 definition to their physical inspections of property:

               [1.] Are the contiguous parcels under common
               ownership?

               [2.] Are the parcels considered an integral part
               of the residence and actually used as a
               common unit with the residence?

               [3.] Would the parcel(s) in question likely be
               conveyed with the residence as a unit?

               [4.] Is the primary purpose of the parcel and
               associated structures to be for the support,
               enjoyment, or other non-commercial activity of
               the occupant of the residence?

               If answers to all of these criteria are yes, then
               it is likely that the parcel would fall under the
               residential classification.

 Id. at 6.11.

¶8    Here, the parties stipulated that the residential property and

 the subject property are commonly owned and contiguous. The

 only question is whether they are “used as a unit.” At the BAA

 hearing, Mr. Rust testified that his family uses the subject property

 as follows:

       to create a buffer so there is not a neighbor right next to

         their house;

                                       4
       to view wildlife;

       to park his truck and trailer (at least partially);

       to ski;

       to sled;

       to store snow;

       to hike; and

       to enjoy peace and serenity.

¶9    The assessor said she saw no evidence that the subject

 property was an integral part of the residence. She noted several

 times that it is a lovely piece of property and that if the subject

 parcel and the residential parcel were a single parcel, there would

 be no question that the entire parcel would then be residential.

 However, she testified that she visited the property four times in five

 months and, based on her inspections during those visits, the truck

 appeared to be parked on the residential lot and the snow storage

 area also appeared to be on the residential lot. She said there were

 no footprints or tracks on the subject property that would indicate

 it had been used for hiking, sledding, or skiing and, furthermore,

 the topography of the lot (it is heavily treed and very steep) would

 greatly limit those activities. Her testimony and conclusion, which

                                    5
  the BAA credited and with which it ultimately agreed, was that

  whatever use the Rusts made of the subject property, it was not

  integral to the residential property and failed to support

  reclassification as residential property under the statute.

¶ 10   Existing case law on this subject is sparse, but the few cases

  that address the issue hold that more than occasional use and

  peace and serenity are required to classify an adjacent, undeveloped

  lot as residential. See, e.g., Fifield v. Pitkin Cty. Bd. of Comm’rs,

  2012 COA 197, ¶¶ 2-4 (the property’s only ingress and egress was

  on the subject lot); Sullivan v. Bd. of Equalization, 971 P.2d 675,

  676 (Colo. App. 1998) (The subject parcel may be classified as

  residential if it has “residential improvements other than a

  dwelling unit and [is] used as a unit in conjunction with a

  residential dwelling unit located on a contiguous parcel that is

  under common ownership with the subject parcel.”). And here, we

  need not decide whether residential improvements are required for

  residential classification because no improvements were present

  and, based on the assessor’s testimony, the subject parcel was also

  not used in conjunction with the residential property. Compare

  Fifield, ¶ 13, with Sullivan, 971 P.2d at 676. So, under either the


                                      6
  Fifield or the Sullivan standard, the subject property here would not

  have qualified for residential classification.1

¶ 11   And, we reject Mr. Rust’s contention that we should apply the

  same standard for multiple parcels of land that we apply to single

  parcels. As the assessor herself pointed out, if this were a single

  parcel, the entire parcel would likely be classified as residential.

  See Farny, 985 P.2d at 110; Gyurman v. Weld Cty. Bd. of

  Equalization, 851 P.2d 307, 308-09 (Colo. App. 1993). But, since it

  is not, we do not believe the single parcel standard should apply.

  The additional requirement for multiple parcels – that the subject

  parcel be integral to the residential parcel – is reasonable. This

  requirement is unnecessary where there is only one parcel because

  the parcel is already integrated by virtue of its inherently unified

  character. Thus, the use of the additional guidelines provided on

  page 6.11 of the ARL to classify such parcels is reasonable. See

  Marshall, ¶ 9.




  1 We also decline to decide the scope of what use constitutes
  sufficient use of the vacant lot to qualify as being used as a unit for
  residential classification. Our conclusion here is based on the facts
  before us.

                                      7
¶ 12   Therefore, we see no error in the BAA’s decision to deny

  reclassification.

                            III. Conclusion

¶ 13   We affirm the BAA’s order.

       JUDGE FURMAN and JUDGE FOX concur.




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