     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 7, 2020

                                2020COA77

No. 17CA1971, Lannie v. Bd. of Cty. Comm’rs — Taxation —
Property Tax — Residential Land

     A division of the court of appeals answers a question left open

in Mook v. Board of County Commissioners, 2020 CO 12 — whether,

for purposes of classifying vacant property as residential land for

tax classification, the phrase “common ownership” refers to

identical ownership or merely overlapping ownership. The division

concludes that identical ownership is required.
COLORADO COURT OF APPEALS                                          2020COA77


Court of Appeals No. 17CA1971
Board of Assessment Appeals Case Nos. 68965 & 69093


Paul Anthony Lannie and Donna Dean Lannie,

Petitioners-Appellants,

v.

Board of County Commissioners of Eagle County, Colorado; and Board of
Equalization of Eagle County, Colorado,

Respondents-Appellees,

and

Board of Assessment Appeals, State of Colorado,

Appellee.


              ORDER AFFIRMED IN PART, REVERSED IN PART,
                AND CASE REMANDED WITH DIRECTIONS

                                   Division II
                            Opinion by JUDGE TOW
                          Dailey and Vogt*, JJ., concur

                            Announced May 7, 2020


Ryley Carlock & Applewhite, F. Brittin Clayton III, Denver, Colorado, for
Petitioners-Appellants

Bryan R. Treu, County Attorney, Christina C. Hooper, Assistant County
Attorney, Eagle, Colorado, for Respondents-Appellees

Philip J. Weiser, Attorney General, Emmy A. Langley, Assistant Solicitor
General, Katie Allison, Assistant Attorney General, Denver, Colorado, for
Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶1    In Colorado, residential land is taxed at a significantly lower

 rate than vacant land. See Colo. Const. art. X, § 3; § 39-1-104.2,

 C.R.S. 2019. This variance in the tax rate has spawned a plethora

 of cases in which taxpayers with combinations of residential and

 vacant parcels have sought to have the vacant land reclassified as

 “residential land,” which requires a showing that (1) the vacant

 parcel is contiguous with the residential parcel; (2) the parcels are

 under common ownership; and (3) the parcels are used as a unit.

 § 39-1-102(14.4)(a), C.R.S. 2019. Divisions of this court have come

 to differing conclusions as to the meaning of each of these criteria.

¶2    In Mook v. Board of County Commissioners, 2020 CO 12, our

 supreme court addressed three such cases, each of which involved

 a dispute over one of the three requirements: Mook v. Board of

 County Commissioners, (Colo. App. No. 17CA0437, May 3, 2018)

 (not published pursuant to C.A.R. 35(e)) (contiguity); Kelly v. Board

 of County Commissioners, 2018 COA 81M (common ownership); and

 Hogan v. Board of County Commissioners, 2018 COA 86 (used as a

 unit). The supreme court affirmed the divisions’ judgments in Mook

 and Hogan, reversed the division’s judgment in Kelly, and provided

 guidance on each of the three criteria. In the wake of Mook, several


                                    1
 cases, including this one, were remanded for reconsideration in

 light of the court’s decision.

¶3    This case involves two of the three criteria — whether the

 parcels were under common ownership and whether they were used

 as a unit. To resolve the first issue, we must answer a question left

 open in Mook: Does “common ownership” under the tax code

 require that identical parties hold record title to each contiguous

 parcel? We answer that question “yes.” Because the parcels were

 not under common ownership during two of the three tax years at

 issue in this case, we affirm the decision of the Board of

 Assessment Appeals (BAA) for those two years. We reverse the

 decision of the BAA for the third tax year and remand the matter for

 consideration of whether the parcels were used as a unit under the

 analysis announced in Mook.

                            I.    Background

¶4    Petitioners, Paul Anthony Lannie and his wife Donna Dean

 Lannie,1 own two contiguous parcels of land in Eagle County,

 Colorado — one with a home on it (the residential parcel) and an

 1Because they share the same surname, we will refer to Paul and
 Donna by their first names. We mean no disrespect in doing so.


                                    2
 adjacent one that is undeveloped (the subject parcel). For tax years

 2014 and 2015, Paul held title to the subject parcel solely in his

 name, while he and Donna held title to the residential parcel as

 joint tenants. By the time of the valuation for tax year 2016, Paul

 conveyed the subject parcel to himself and Donna as joint tenants.

¶5    The county assessor classified the subject parcel as vacant

 land. The Lannies appealed the classification for the 2014 and

 2015 tax years to the Board of County Commissioners of Eagle

 County and the classification for 2016 to the Board of Equalization

 of Eagle County (collectively, the County). After the County upheld

 the assessor’s classification, the Lannies appealed to the BAA. The

 BAA held a consolidated hearing and thereafter entered two orders

 upholding the County’s rulings. The BAA concluded that the

 subject parcel was not used as a unit in conjunction with the

 improvements on the residential parcel for any of the tax years in

 question, and further concluded that, for tax years 2014 and 2015,

 the parcels were not under common ownership.

¶6    The Lannies appealed to this court, and a different division

 affirmed the BAA’s orders. See Lannie v. Bd. of Cty. Comm’rs, (Colo.

 App. No. 17CA1971, Dec. 13, 2018) (not published pursuant to


                                   3
 C.A.R. 35(e)) (Lannie I). Specifically, the division agreed with the

 BAA that the parcels were not used as a unit. As a result, the

 division did not address the issue of common ownership. As noted,

 the supreme court vacated that decision and remanded for

 reconsideration in light of Mook. Lannie v. Bd. of Assessment

 Appeals, (Colo. No. 19SC56, Mar. 16, 2020) (unpublished order).

 We thus address both whether the parcels were under common

 ownership and whether they were used as a unit.

                        II.   Standard of Review

¶7    In reviewing BAA decisions that classify property for tax

 purposes, we defer to the BAA’s factual findings but review its legal

 conclusions de novo. See Ziegler v. Park Cty. Bd. of Cty. Comm’rs,

 2020 CO 13, ¶ 11. When a statute concerns property tax, we also

 owe deference to, but are not bound by, the interpretation of the

 statute by the BAA and by the Property Tax Administrator in the

 Assessors’ Reference Library (ARL). See Mook, ¶ 47.

¶8    We review the interpretation of a statute de novo, seeking “to

 effectuate the intent of the General Assembly by looking to the plain

 meaning of the language used, considered within the context of the

 statute as a whole.” Id. at ¶ 24 (quoting Bly v. Story, 241 P.3d 529,


                                    4
  533 (Colo. 2010)). In so doing, we construe any undefined term “in

  accordance with its ordinary or natural meaning.” Id. (quoting

  Cowen v. People, 2018 CO 96, ¶ 14). Applying the plain meaning of

  the language requires us to “give consistent effect to all parts of a

  statute, and construe each provision in harmony with the overall

  statutory design.” Larrieu v. Best Buy Stores, L.P., 2013 CO 38,

  ¶ 12 (citing In re Miranda, 2012 CO 69, ¶ 9).

                                  III.   Analysis

                        A.        Common Ownership

                             1.     Applicable Law

¶9     The tax code does not define the term “common ownership.” It

  does, however, direct that “[o]wnership of real property shall be

  ascertained by the assessor from the records of the county clerk

  and recorder . . . .” § 39-5-102(1), C.R.S. 2019. “Thus, according to

  the plain language of the tax code, assessors must rely on county

  records to determine whether properties are held under ‘common

  ownership.’” Mook, ¶ 80.

¶ 10   In Kelly, record title to the residential parcel was held by a

  qualified personal residence trust, while record title to the subject

  parcel was held by a revocable family trust. Kelly, ¶ 4. The same


                                         5
  person (Kelly) was settlor, trustee, and beneficiary of both trusts.

  Id. Before the supreme court, Kelly argued that because she held

  “overlapping equity ownership and control” of both properties, they

  were under common ownership. Mook, ¶ 79. The supreme court

  rejected this argument, holding that the record of legal title was

  conclusive. Id. at ¶ 86. In doing so, however, the court explicitly

  declined to consider the issue of whether overlapping legal title

  would suffice, or rather whether identical ownership is required. Id.

  at ¶ 86 n.7.

                                2.   Analysis

¶ 11   Here, there are overlapping legal title interests in the parcels

  for tax years 2014 and 2015.2 During those tax years, because

  Paul Lannie was a record titleholder of both properties — one held

  in his name alone and one held jointly with Donna — we turn to the

  question left open in Mook.

¶ 12   The BAA urges us to adopt its interpretation of the term,

  which is that common ownership requires identical record title


  2 There is no dispute that the parcels were under common
  ownership for tax year 2016. The discussion of common ownership,
  therefore, is limited to tax years 2014 and 2015.


                                     6
  owners. The BAA posits that this interpretation was established in

  Sullivan v. Board of Equalization, 971 P.2d 675 (Colo. App. 1998).

  But the BAA reads Sullivan too broadly. There, the sole owner of

  the subject parcel was the taxpayer, while the taxpayer’s wife was

  the sole owner of the residential property. Id. at 676. In other

  words, there was no overlapping legal title as there is here.

  Furthermore, the taxpayer in Sullivan conceded the lack of common

  ownership and, thus, the appellate court did not address that issue.

  Id. For this reason, while we generally afford deference to statutory

  interpretation by the agency charged with administering the

  statute, see Mook, ¶ 47, because the BAA misapplied the holding in

  Sullivan, we do not defer to its construction in this context. See El

  Paso Cty. Bd. of Equalization v. Craddock, 850 P.2d 702, 704-05

  (Colo. 1993) (“Courts, of course, must interpret the law and are not

  bound by an agency decision that misapplies or misconstrues the

  law.”).

¶ 13   Nevertheless, for the following reasons, we conclude that the

  statute requires identical ownership.

¶ 14   First, as noted, the supreme court observed that section 39-5-

  102(1) requires the assessor to rely on county records. Mook, ¶ 80.


                                    7
  When doing so, the supreme court discussed its earlier decision in

  Hinsdale County Board of Equalization v. HDH Partnership, 2019 CO

  22. Mook, ¶¶ 80-84. In Hinsdale, the supreme court invoked the

  same statutory language when it held that “assessors must value

  and tax separate parcels of real property and assess taxes on the

  parcel owner as determined by the county’s real property records.”

  Hinsdale, ¶ 22. The court further noted that “Colorado’s tax

  statutes reflect the legislature’s intent to levy property tax on the

  record fee owner of real property.” Id.

¶ 15   The court in Mook reiterated that “the party holding record title

  to the property is the fee owner responsible for property taxes.”

  Mook, ¶ 81 (quoting Hinsdale, ¶ 25). The court then rejected Kelly’s

  argument that assessors could look to record title to determine

  ownership for purposes of tax liability, while taking a different

  approach to determine ownership for purposes of tax classification.

  Id. at ¶¶ 82-83. Noting that nothing in the statute suggested such

  differing approaches to determining ownership, the court stated,

  “[t]herefore, we won’t require assessors to use different standards

  when classifying property and assessing taxes.” Id. at ¶ 83.




                                     8
¶ 16   Reading Hinsdale and Mook in conjunction with each other

  leads to one conclusion: in the tax code, owner and taxpayer are

  synonymous. Thus, having a common ownership means the

  taxpayer for each parcel must be the same. For this to be the case,

  the fee owners must be identical.

¶ 17   Second, we note that interpreting the phrase “common

  ownership” to merely require overlapping ownership would lead to

  absurd results. See Ziegler, ¶ 19. We acknowledge that, here, it is

  the subject parcel that is solely held by one person who is also a

  joint titleholder of the residential parcel; therefore, Paul’s assertion

  that he is the common owner of both parcels is reasonable. Query,

  however, what if the reverse were true? What if Paul solely owned

  the residential parcel while he and Donna jointly owned the vacant

  property? The overlap of ownership would be of the same nature

  and degree, but the result (if treated as common ownership under

  the tax code) would be that Donna would be entitled to pay the

  residential tax rate on her property despite not owning a residence.

  To put a finer point on it, what if Paul co-owned the vacant property

  as one of a hundred co-owners, but only a one percent share of the




                                      9
  property? Would the other ninety-nine co-owners share the benefit

  of Paul’s beneficial tax rate?

¶ 18   In our view, either scenario would be an absurd result, and

  one we cannot conclude would be consistent with the legislature’s

  intent. And, if “common ownership” is read to encompass mere

  overlapping interest, there is no textual basis establishing any limit

  on how large or small the overlap must be. Nor could we remedy

  this omission under the guise of construing the statute by imposing

  some limit such as “substantially overlapping.” See Trujillo v. Colo.

  Div. of Ins., 2014 CO 17, ¶ 12 (“We do not add words to a statute.”).

¶ 19   Finally, we note that the phrase “common ownership” is not

  foreign to real property law. Take, for example, the situation in

  which a parcel is burdened by a prescriptive easement. Under the

  doctrine of merger, if the two estates come “under common

  ownership,” the easement is extinguished. Salazar v. Terry, 911

  P.2d 1086, 1090-91 (Colo. 1996). However, for merger to occur,

  there can be no other ownership interests in either estate. Brush

  Creek Airport, L.L.C. v. Avion Park, L.L.C., 57 P.3d 738, 747-48

  (Colo. App. 2002) (citing Restatement (Third) of Property: Servitudes

  § 7.5 cmt. d (Am. Law Inst. 2000)). In Westpac Aspen Investments,


                                    10
  LLC v. Residences at Little Nell Development, LLC, 284 P.3d 131

  (Colo. App. 2011), one party was the sole owner of the servient

  estate and held title to the dominant estate in joint tenancy with

  someone else. Id. at 136. A division of this court held that,

  because the two lots were not owned in “completely identical

  manner,” their co-ownership was insufficient to extinguish the

  easement. Id. at 136-37.

¶ 20   For these reasons, we conclude that, for purposes of the tax

  code, “common ownership” requires that the taxpayer(s) for the two

  properties must be the same, and thus the parcels must have

  identical record titleholders. Because the two parcels were not

  under common ownership for tax years 2014 and 2015, we affirm

  the BAA’s decision denying reclassification for those years.

                          B.    Used as a Unit

¶ 21   Because the parcels were under common ownership in tax

  year 2016, we turn to whether the parcels were used as a unit

  during that year.

                          1.    Applicable Law

¶ 22   Like the term “common ownership,” the term “used as a unit”

  is not defined in the tax code. However, the code requires the


                                   11
  Property Tax Administrator to produce manuals, procedures, and

  instructions to aid assessors in their valuation and assessment of

  property taxes. § 39-2-109(1)(e), C.R.S. 2019. The product of this

  requirement is the ARL, which assessors are required to follow.

  Huddleston v. Grand Cty. Bd. of Equalization, 913 P.2d 15, 17-18

  (Colo. 1996).

¶ 23   In Hogan, the taxpayers’ vacant lot next to their residential

  parcel contained an unpaved driveway, and the taxpayers used the

  parcel to walk their dog, park vehicles, and secure scenic views with

  a privacy buffer. Hogan, ¶¶ 2, 28. The assessor concluded that

  none of these uses satisfied the “used as a unit” requirement, in

  part because they were not active uses of the property and because

  the vacant parcel did not contain any residential improvements,

  and the BAA agreed with the assessor. Mook, ¶ 46.

¶ 24   In affirming the division’s reversal of the BAA, the supreme

  court rejected the BAA’s interpretation of “used as a unit,” and

  provided “additional direction.” Id. at ¶ 63. To satisfy the “used as

  a unit” requirement, “a landowner must use multiple parcels of land

  together as a collective unit of residential property.” Id. at ¶ 77.

  Contrary to what had been held in some earlier cases, (1) there is


                                     12
  no requirement that the vacant parcel itself contain a residential

  improvement, id. at ¶¶ 59-62; (2) the primary purpose of the vacant

  parcel should be for the support, enjoyment, or other non-

  commercial activity of the occupant of the residence, id. at ¶ 72; (3)

  the “used as a unit” requirement is the same for multi-parcel cases

  as it is in the context of reclassifying a single parcel of land, id. at

  ¶¶ 68, 73-74; (4) in applying the third ARL guideline (would the

  vacant parcel likely be conveyed with the residential parcel as a

  unit?), the focus is to be on how the owner presently uses the land,

  not on the owner’s potential future plans for use of the property, id.

  at ¶¶ 53-55; and (5) while the vacant parcel must be used as an

  integral part of the residence, its uses need not be “necessary” or

  “essential,” and passive as well as active uses may satisfy the

  requirement, id. at ¶¶ 50-52, 56-57.

                                2.   Analysis

¶ 25   Paul testified at the hearing that he and Donna bought the

  residential parcel as a vacation home, used it mainly during the ski

  season, and planned to retire there. Shortly thereafter, he bought

  the subject parcel to protect his views of the Gore Range and to add

  a flat yard space where his grandchildren could play. The family


                                      13
  enjoyed walking on the subject parcel and viewing wildlife there.

  The subject parcel was kept in its natural condition until 2017,

  when the Lannies sodded the flat area.

¶ 26   The county’s appraiser testified that she had seen no evidence

  of walking, children playing, or trampled grass on the four

  occasions when she visited the subject parcel. She did not consider

  activities such as walking and wildlife viewing to meet the statutory

  requirement that the parcel be used as a unit with the residence on

  the adjoining parcel. The appraiser also opined that, given the

  topography, any structure on the subject parcel would likely be

  built on the lower portion of the lot and thus would not affect views

  of the Gore Range from the Lannies’ residence.

¶ 27   Crediting the appraiser’s testimony over Paul’s, and citing

  other maps and photographs in the record, the BAA found that the

  Lannies had not shown that the subject parcel was used as a unit

  in conjunction with the residential improvements on the residential

  parcel. Although its orders indicate that the BAA was basing its

  ruling on the persuasiveness of the various witnesses’ testimony, it

  is not clear that the BAA was assessing that testimony under the

  standards announced in Mook. Similarly, in affirming that ruling in


                                   14
  Lannie I, we included language — e.g., that multi-parcel cases

  should be treated differently from single-parcel cases — that is

  inconsistent with Mook. In these circumstances, we conclude that

  the BAA should reconsider the “used as a unit” issue under the

  Mook standards set forth above. In reconsidering the issue, the

  BAA may in its discretion order such additional testimony or

  briefing as it deems necessary.

                            IV.     Conclusion

¶ 28   The BAA’s order denying reclassification for the 2014 and

  2015 tax years is affirmed. The order denying reclassification for

  the 2016 tax year is reversed, and the case is remanded to the BAA

  for reconsideration in accordance with this opinion.

       JUDGE DAILEY and JUDGE VOGT concur.




                                     15
