     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
                                                             August 23, 2018

                               2018COA124

No. 17CA0653 Thibodeau v. Denver Cty. Bd. Comm’rs —
Taxation — Property Tax — Valuation for Assessment

     A division of the court of appeals holds that section 39-1-

104(11)(b)(I), C.R.S. 2017, authorizes an assessor to revalue real

property in an intervening tax year if the assessor discovers that the

original assessment was incorrect at the time it was originally done.

While this interpretation was previously announced in 24, Inc. v.

Board of Equalization, 800 P.2d 1366 (Colo. App. 1990), the relevant

statute has been subsequently amended. This decision makes clear

that the statutory amendment did not alter the assessor’s authority

in this regard. Further, in each of the prior published decisions

related to this language, the prior division ruled that although the

assessor had this authority, the taxpayer in that specific case

nevertheless won because the assessor had failed to establish that
the original valuation was incorrect. This is the first published

decision where the assessor’s actions are upheld.
COLORADO COURT OF APPEALS                                         2018COA124


Court of Appeals No. 17CA0653
Board of Assessment Appeals Case No. 68926


Joseph H. Thibodeau,

Petitioner-Appellant,

v.

Denver County Board of Commissioners and Board of Assessment Appeals,

Respondents-Appellees.


                              ORDER AFFIRMED

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

                          Announced August 23, 2018


N.H. Wright and Associates, Norman H. Wright, Dillon, Colorado, for Petitioner-
Appellant

Kristin M. Bronson, City Attorney, Noah Cecil, Assistant City Attorney, Denver,
Colorado, for Respondent-Appellee Denver County Board of Commissioners

Cynthia H. Coffman, Attorney General, John A. Lizza, First Assistant Attorney
General, Denver, Colorado, for Respondent-Appellee Board of Assessment
Appeals


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶1    Petitioner, Joseph H. Thibodeau, appeals an order of the

 Board of Assessment Appeals (BAA) denying his abatement petition

 for the 2014 tax year. We affirm.

                          I.   Background

¶2    Thibodeau purchased the subject property, a residence located

 in the City and County of Denver, in July 2013. Earlier that year,

 the property was valued at $803,800 for ad valorem tax purposes.

 In May 2014, Thibodeau received notice that the City and County of

 Denver Assessor’s Office increased its assessment of the property’s

 value to $1,169,700.

¶3    Thibodeau unsuccessfully protested the increase with the

 Assessor before petitioning for abatement from the Denver County

 Board of Commissioners, sitting as the Denver County Board of

 Equalization (BOE). Thibodeau argued that the City erred in

 reassessing the subject property in an intervening year because no

 unusual condition existed. The BOE rejected his claim and upheld

 the 2014 assessment.

¶4    Thibodeau then filed an appeal with the BAA, again

 contending that the BAA should reduce the subject property’s 2014

 value to the 2013 value of $803,800. At the hearing, the BOE


                                     1
 requested that the property’s value be lowered from $1,169,700 to

 $1,150,000, based on an appraisal by a licensed residential

 appraiser. The BAA concluded that the mischaracterization of the

 property’s condition as average, rather than good, led to an

 incorrect 2013 assessment of the property’s value. Therefore, the

 assessor was permitted to correct the incorrect assessment during

 the intervening year. Additionally, the BAA found that there was

 sufficient evidence to support the value testified to by the appraiser.

¶5    On appeal, Thibodeau argues that the BAA erred in upholding

 the City and County of Denver’s reassessment of his property

 because section 39-1-104(11)(b)(I), C.R.S. 2017, only permits

 redeterminations in intervening years when unusual conditions

 exist. He also contends that the reassessment violated his

 constitutional right to equal protection in light of the Supreme

 Court’s decision in Allegheny Pittsburgh Coal Co. v. County

 Commission, 488 U.S. 336 (1989). We consider, and reject, each

 contention in turn.

                       II.   Standard of Review

¶6    A challenge to the BAA’s property tax assessment requires us

 to review questions of law and fact. We may only set aside the


                                    2
 BAA’s decision if the BAA failed to abide by the statutory scheme for

 calculating property taxes, or its decision is unsupported by

 competent evidence. Jefferson Cty. Bd. of Cty. Comm’rs v. S.T.

 Spano Greenhouses, Inc., 155 P.3d 422, 424 (Colo. App. 2006).

 Because statutory interpretation is a question of law, we review the

 BAA’s interpretation of the relevant statute de novo. Id.

¶7          However, we defer to the BAA’s findings of fact. “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). And, Thibodeau bears the burden

 of proving by a preponderance of the evidence that the property

 assessment is incorrect. Id. at 202.

     III.     Correction of a Property Assessment in an Intervening Year

¶8          Thibodeau first contends that the BAA erred in concluding

 that the assessor was permitted to reassess his property value in an

 intervening year without showing that an unusual condition

 existed. We conclude that section 39-1-104(11)(b)(I) authorizes

 assessors to correct incorrect property assessments in intervening

 years.




                                         3
                    A.    The Assessor’s Authority

¶9     Section 39-1-104(10.2)(a) provides that “beginning with the

 property tax year which commences January 1, 1989, a

 reassessment cycle shall be instituted with each cycle consisting of

 two full calendar years.” In other words, property value

 assessments are calculated once every two years. But,

 reassessments of property values are permitted in intervening years

 if “any unusual conditions in or related to any real property which

 would result in an increase or decrease in actual value” exist.1

 § 39-1-104(11)(b)(I). Additionally, the statute provides that

            [i]f any real property has not been assessed at
            its correct level of value, the assessor shall
            revalue such property for the intervening year
            so that the actual value of such property will
            be its correct level of value; however, the
            assessor shall not revalue such property above
            or below its correct level of value except as
            necessary to reflect the increase or decrease in
            actual value attributable to an unusual
            condition.

 Id.




 1 As applicable here, an unusual condition includes the installation
 of an onsite improvement or the addition to or remodeling of a
 structure. § 39-1-104(11)(b)(I), C.R.S. 2017.

                                   4
¶ 10   Thibodeau contends that the statute restricts property

  reassessments in intervening years to only instances where

  unusual conditions arise. Because no unusual condition exists

  here, he argues that the property was improperly reassessed during

  an intervening year. Divisions of this court have addressed, and

  rejected, similar arguments.

¶ 11   The statutory language quoted above was first enacted, albeit

  in slightly different form, in 1983. At that time, the legislature

  added the following sentence to the statute:

             If any real property has not been assessed at
             its correct base year level of value, the
             assessor may revalue such property for an
             intervening year so that the actual value of
             such property will be its correct base year level
             of value; however, the assessor may not
             revalue such property above or below its
             correct base year level of value except as
             necessary to reflect the increase or decrease in
             actual value attributable to an unusual
             condition.

  Ch. 429, sec. 1, § 39-1-104(11)(b)(I), 1983 Colo. Sess. Laws 1495.

¶ 12   In 24, Inc. v. Board of Equalization, 800 P.2d 1366, 1368 (Colo.

  App. 1990), a division of this court determined that this language

  granted assessors the authority to revalue properties during

  intervening years under three circumstances: “(1) to correct a


                                     5
  clerical error or supply a clerical omission; (2) to adjust for an

  unusual condition; or (3) to correct an incorrect value.” In its

  analysis, the division acknowledged that the statutory language

  governing reassessments during intervening years was unclear. Id.

  at 1369. Accordingly, the division turned to the legislative history

  underpinning the statute to determine its purpose.2 Id.; see Colo.

  Dep’t of Revenue v. Creager Mercantile Co., 2017 CO 41M, ¶ 16

  (explaining that courts employ interpretive rules when the statutory

  language is subject to alternative constructions and its intended

  scope is unclear).

¶ 13   The division concluded that the statute was intended to

  provide assessors the authority to correct an incorrect assessment

  in or between base years. 24, Inc., 800 P.2d at 1369. And, other

  divisions of this court have agreed that county assessors may

  correct property value assessments in intervening years. See


  2 During a legislative committee hearing, the bill sponsor explained
  that if an assessor “make[s] a mistake and value[s] the property too
  high or too low, [the assessor] need[s] the ability in between base
  years to reappraise the property, as long as [the assessor] do[es] not
  exceed what the property was worth in the base year.” 24, Inc. v.
  Bd. of Equalization, 800 P.2d 1366, 1369 (Colo. App. 1990) (quoting
  Hearing on H.B. 1004 before the H. Fin. Comm., 54th Gen.
  Assemb., 1st Sess. (Jan. 17, 1983)).

                                     6
  Leavell-Rio Grande Cent. Assocs. v. Bd. of Assessment Appeals, 753

  P.2d 797, 800 (Colo. App. 1988) (concluding that assessors may

  revalue properties in intervening years to correct incorrect base

  value assessments); see also Lowe Denver Hotel Ass’n v. Arapahoe

  Cty. Bd. of Equalization, 890 P.2d 257, 258-59 (Colo. App. 1995)

  (explaining that assessors may make corrective intervening-year

  revaluations when the assessor’s original base period valuation for

  the first year of the reassessment cycle is incorrect).3

¶ 14   The pertinent statutory language has been amended only once

  since then, and that amendment does not impact the applicability

  of the analysis in 24, Inc.4 Therefore, we disagree with Thibodeau

  that reassessments during intervening years are permitted only

  when unusual conditions exist. Instead, we conclude that county



  3 Thibodeau characterizes this announcement in 24, Inc., as dicta.
  He is mistaken. “A holding and its necessary rationale, however,
  are not dicta.” Hardesty v. Pino, 222 P.3d 336, 340 (Colo. App.
  2009) (citing Michael Abramowicz & Maxwell Stearns, Defining
  Dicta, 57 Stan. L. Rev. 953, 1048 (2005)).
  4 In 1987, the legislature made two changes: the provision went

  from permissive (“the assessor may revalue such property for an
  intervening year”) to mandatory (“the assessor shall revalue such
  property”), and the year beginning the reassessment cycle would no
  longer be referred to as “the base year.” Ch. 285, sec. 1, § 39-1-
  104(11)(b)(I), 1987 Colo. Sess. Laws 1385.

                                     7
  assessors are required to correct incorrect assessments in

  intervening years in order to set the value at what it would have

  been set at in the assessment year had the mistake not occurred.

  Further adjustments to the value, however, cannot be made in an

  intervening year absent proof of an unusual condition.

                    B.    The Corrected Assessment

¶ 15   We must next determine (1) whether Thibodeau’s property was

  incorrectly assessed during the 2013 assessment year and (2)

  whether there is competent evidence to support the 2014 corrected

  value. We answer both questions in the affirmative.

¶ 16   At the BAA hearing, a certified residential appraiser and an

  employee of the county assessor’s office testified that the subject

  property was misidentified as being in average, rather than in good,

  condition during the 2013 assessment year. The county assessor

  explained that the appraisal system accounts for the condition of

  the property by determining the property’s condition, desirability,

  and utility. Consequently, a mischaracterization of the property’s

  condition may result in an inaccurate assessment of the property’s

  value.




                                    8
¶ 17   When assessing a property’s condition, the assessor testified

  that the county assessor’s office examines permit records from the

  county’s planning department to determine whether improvements

  have been made on the property. The county assessor explained

  that a house built in the 1930s that had not undergone renovations

  or remodeling is considered a house in average condition. But, the

  assessor’s office “always assume[s] . . . in the absence of any other

  knowledge . . . that the condition is average.” Here, the assessor’s

  records indicated that the property had not been remodeled since

  its construction in 1938.

¶ 18   In June 2013, after the assessment was completed, the

  property was listed for sale, during which pictures and a description

  of the property were posted on the Multiple Listing Service (MLS)

  website. The MLS listing described the property as containing a

  “brand new gourmet kitchen, bathrooms, copper pipes, new

  electrical, [and a] wine cellar,” and the photographs, according to

  the assessor, indicated that the “kitchen and also the bathrooms

  [had] been renovated and remodeled.” The county assessor

  subsequently “updated” the property’s record to indicate that the

  property was in good condition.


                                    9
¶ 19   After modifying the record, the assessor then revalued the

  property, taking into consideration the newly discovered

  information that the property had been in good, not average,

  condition at the time of the 2013 assessment. During the hearing,

  the county assessor testified that he used a market approach, in

  which he used three comparable sales, to determine that the

  property’s correct value was $1,150,000 on January 1, 2013.

  Thibodeau did not present evidence that the BOE’s corrected value

  was incorrect. Rather, he argued only that reassessing the property

  during an intervening year was improper because the BOE could

  not point to an unusual condition that arose between 2013 and

  2014.5



  5 During the hearing, Pamela King, a professional interior decorator,
  testified that she helped to “reface” the kitchen in 2009. She
  explained that she assisted in only completing “cosmetic things to
  the house” — such as repainting kitchen cabinets and installing
  countertops, a sink, a stair runner, and window coverings. Even
  so, the assessor testified that the property was in good condition
  not only because of the kitchen alterations but also due to
  significant, and previously unknown, renovations to the property’s
  plumbing, electrical system, and bathrooms that had occurred over
  time prior to the 2013 assessment. Thus, while we agree with
  Thibodeau that there was no unusual condition warranting
  reassessment during the intervening year, a corrected assessment
  was nonetheless permitted because the 2013 assessment was based

                                   10
¶ 20   At the conclusion of the hearing, the BAA determined that the

  subject property was incorrectly assessed in 2013 and there was

  competent evidence to support the BOE’s corrected value of

  $1,150,000. We agree.

¶ 21   A property’s value must be assessed “according to its taxable

  status, use, and condition on the assessment date.” 2 Div. of Prop.

  Taxation, Dep’t of Local Affairs, Assessors’ Reference Library § 2, at

  2.6 (rev. July 2018) (emphasis added). Here, the county assessor

  initially classified the house as average based on an incorrect

  assumption that the property had not been renovated or remodeled

  since 1938. As a result, the records used to determine the

  property’s value in 2013 differed significantly from the depiction of

  the property in the June 2013 MLS listing. Because the 2013

  property assessment relied on an incorrect characterization of the

  property’s condition, the county assessor’s office was permitted,

  indeed required, to correct the assessment in 2014.




  on an incorrect assumption that the property was in average
  condition at that time.


                                    11
¶ 22   Moreover, there is substantial evidence in the record to

  support the BAA’s conclusion that the property’s appraisal of

  $1,150,000 was persuasive and well-supported. The county

  assessor explained how a misclassification of a property’s condition

  can lead to a significant miscalculation of the property’s value for

  tax purposes. And, the assessor presented substantial evidence on

  the process by which the property’s value was recalculated. We

  therefore conclude that the BAA’s factual determinations as to the

  appropriate valuation of the subject property for the 2013 tax year

  is supported by competent and substantial evidence in the record

  as a whole, and the BAA’s ruling therefore will not be disturbed on

  review. See Weingarten v. Bd. of Assessment Appeals, 876 P.2d

  118, 121 (Colo. App. 1994).

                     IV.   Constitutional Challenges

¶ 23   Thibodeau also contends that the BOE’s off-cycle

  reassessment of the property’s value violated the Equal Protection

  Clause of the United States Constitution, as well as the Colorado

  Constitution’s guarantee of uniform taxation. We are not

  persuaded.




                                    12
                        A.   Standard of Review

¶ 24   The Fourteenth Amendment to the United States Constitution

  provides that no state shall “deny to any person within its

  jurisdiction the equal protection of the laws.” U.S. Const. amend.

  XIV, § 1. This provision requires the government to treat similarly

  situated persons in a similar manner. HealthONE v. Rodriguez, 50

  P.3d 879, 892 (Colo. 2002). Because the BOE’s actions did not

  affect Thibodeau’s fundamental right or a suspect class, so long as

  the BOE’s actions are not unreasonable, arbitrary, or capricious,

  they need only bear a rational relationship to legitimate

  governmental objectives. Id. at 893.

                   B.    Applicable Law and Analysis

¶ 25   Thibodeau contends that the BOE’s actions are in tension with

  the Supreme Court’s decision in Allegheny Pittsburgh Coal Co. v.

  County Commission, 488 U.S. 336 (1989). In Allegheny, the county

  tax assessor systematically revalued properties on the basis of their

  recent purchase prices and made only minor modifications in the

  assessments of land that had not been recently sold. Id. at 338.

  Consequently, properties that were sold when this practice was in

  place were assessed significantly higher than comparable


                                    13
  neighboring properties that had not been recently sold. Id. at 342.

  The Court concluded that the assessor’s practice of assessing only

  recently sold properties, and nominally adjusting properties that

  had not recently sold, resulted in significant discrepancies in the

  value of comparable properties over time. Id. at 346. The Court

  observed that the “[p]etitioners’ property [had] been assessed at

  roughly 8 to 35 times more than comparable neighboring property,

  and these discrepancies [had] continued for more than 10 years

  with little change.” Id. at 344. The petitioners, therefore, had been

  denied the equal protection of the law. Id. at 346.

¶ 26   Thibodeau contends that the county assessor here is engaging

  in a similar practice to that rejected in Allegheny. The comparison,

  however, is inapt. In Allegheny, property values were assessed only

  when a sale of the property occurred; unless a property was sold,

  its assessed value was likely to remain largely unchanged for years.

  Here, on the other hand, the statute requires all properties to be

  reassessed every two years — regardless of whether they have been

  recently sold — with the ability to remedy an incorrect assessment

  or account for an unusual condition in an intervening year.




                                    14
¶ 27   The mere fact that the county assessor became aware of the

  incorrect valuation as a result of the routine sales verification

  process does not raise the concerns addressed in Allegheny. There

  is simply no evidence that Thibodeau’s property is assessed at a

  significantly different value than comparable properties, or that any

  such discrepancy has existed for any length of time.

¶ 28   Thibodeau also contends that “increasing the valuation of a

  single property [based on the sales verification process] while not

  raising the values of all properties in the same class (let alone, in

  the same neighborhood)” violates the Equal Protection Clause. But,

  the fact that two properties are in the same class or same

  neighborhood does not necessarily mean they are similarly situated.

  Thibodeau would have to show (1) there were other homes that were

  incorrectly valued in the assessment year; (2) the assessor became

  aware of these incorrect values; and (3) the values were not

  corrected in the intervening year. There was no such showing here.

  In fact, the Board of Commissioners makes clear that the sales

  verification process, which is used to evaluate the accuracy of the

  county’s property records, applies to all properties that are recently

  sold. And, Thibodeau does not present any evidence indicating


                                     15
  otherwise. We therefore cannot determine that the subject property

  was treated differently from similarly situated properties.

¶ 29   Because we conclude that the assessment value of the subject

  property was corrected upon the discovery that the original

  assessment was based on an incorrect determination of the

  property’s condition, not because of the sale of the property, and

  that similarly situated properties also undergo the sales verification

  process employed here to determine that the property was

  incorrectly assessed, we discern no equal protection concerns.

                   C.   Colorado’s Uniformity Clause

¶ 30   Thibodeau also argues that the revaluation violates the

  Uniformity Clause of the Colorado Constitution. Colo. Const. art. X,

  § 3(1)(a). This provision provides that the methods and regulations

  underpinning tax assessments “shall secure just and equalized

  valuations for assessments of all real and personal property not

  exempt from taxation under this article.” Id. The protections

  provided by the Uniformity Clause are co-extensive with those

  ensured by the federal Equal Protection Clause. Qwest Corp. v.

  Colo. Div. of Prop. Taxation, 310 P.3d 113, 120 (Colo. App. 2011),




                                    16
  aff’d, 2013 CO 39. Thus, because we conclude there is no violation

  of the Equal Protection Clause, this argument, too, must fail.

                            V.   Conclusion

¶ 31   The order is affirmed.

       JUDGE DAILEY and JUDGE CASEBOLT concur.




                                   17
