HomeMy WebLinkAboutbocc.res.025.2012 FOR ASSESSORS AND COUNTY COMMISSIONERS USE ONLY Hilinfrt0PD) Ditithl
(Section III or Section IV must be completed) 3 0 ��
Every petition for abatement or refund riled pursuant to § 39-10 -114, C.R.S. shall be acted upon pursuant to the provisions of this section by the 3
Board of County Commissioners or the Assessor, as appropriate, within six months of the date of filing such petition, § 39-1.113(1.7), C.R.S.
section III: Written Mutual Agreement of Assessor and Petitioner
(only for abatements up to *11,000)
The Commissioners of County authorize the Assessor by Resolution No.
to review petitions for abatement or refund and to settle by written mutual agreement any such petition for
abatement or refund in an amount of $10,000 or less per tract, parcel, or lot of land or per schedule of personal
property, in accordance with § 39- 1- 113(1.5), C.R.S.
The Assessor and Petitioner mutually agree to the values and tax abatemenUrefund of: APPROVED BY
Tax Year RESOLUTION
A zwil •e #OAS
Original . -- `
Corrected d-
AbatelRefunc ._„„ �-.-...—..—,.—..=
Note: The total tax amount does not include accrued interest, penalties, and fees associated with late and /or delinquent tax payments, if
applicable. Please contact the County Treasurer for full payment information.
Petitioners Signature Date
Assessors or Deputy Assessors Signature Date
Section IV: Decision of the County Commissioners
(Must be completed It Section III does not apply) - •
WHEREAS, the County Commissioners of P I T'l{ Ili County, State of Colorado, at a duly and lawfully
called regulatmeeting held on r 1 1_14 I JR , at which meeting there were present the following members:
yy th, Day Year / . . / . a I L
_AM /kW !.r Jat�. 4 di ., A),1 ,_ s . .4 ./.v = a! .i . .[./:'
44/ Oft r.?V: L AAr r n ektA i i
with notice of such meet fi. and a rtuty t be present having been given to the Petitioner and the Assessor
of said County and Assessor min �t/4 d �.r� .
l; of present) and
At, �/ A am
Petitioners' Ap, d t, (D 974.1 ing present not present), and WHEREAS, the said
(}lame
County Commissioners have carefully con ' the withinl a fion, and are fully advised in relation thereto,
NOW BE IT RESOLVED th- • - ' •a ag does not agree) with the recommendation of the Assessor,
and that the etition be C=pproved in part-- denied) with an abatement/ = • nd as follows:
,1009 1 /9-1 .ice v ,'
Year ass Val a b /ReNnd
e
30)) 7 73 6 . .. li /i„ / U roil,
y - Q 3c / V b' 4:18ln qo/VAII halrperson of the , oard• Couri Comm aslonera'= Ignature
1, 4 . 1 . ' ! • 11Lw County Clerk and Ex- Officio Clerk of the Board of County Commissioners
in an. for the aforementioned county, do hereby certify that the above and foregoing order is truly copied from the
record of the proceedings of the Board of County Commissioners.
. 1--1.1":.C.:9€/'
IN WITNES HEREOF, I have hereunto
iJ2- . nto set my hand and affixed the seal of said County
this day of m 1' a ,..4 r r,
� ,
Month year g ;. ; ' -tit �, A (;
u Cle s o r uty County.6drs Slgnatgrb0,
Note: Abatements greater than $10,000 per schedule, per year, must be submitted in duplicate to the Property Tax Administtatottfir iew.
section V: Action of the Property Tax Administrator
(For all abatements greater than 510,000)
The action of the Board of County Commissioners, relative to this petition, is hereby
❑ Approved ❑ Approved in part $ ❑ Denied for the following reason(s):
Secretary's Signature Property Tax Administrators Signature Date
15- DPT -AR No. 920-86/11
Recommended action:
Uphold the assessor's recommendation for approval; or, recommend a full or
partial reduction in value with the value set at
Sch# 1230 • , ,papa Ha nmond tax years 2009 & 201 Sch# 12301. James Gordon,
tax year 2011 on = • • a03, Nichos Hecht.
All 3 of these properties are located in the Owl Creek Ranen subdivision and the
abatement is related to a successful appeal requesting agricultural classification for the
subject properties.
The 2010 Ag appeals before the Board of Assessment Appeals involved Dana
Hammond and James Gordon. These appeals were filed in tax year 2010 but not
actually heard before the Board of Assessment Appeals until 2011. Long story short,
their appeals were successful and their property's classification and valuations were
changed to agricultural for tax year 2010. Since the 2010 BAA decision didn't come out
until after 2011 values were finalized, we are making the same change effective for both
properties for the 2011 tax year based on the 2010 decision.
In the case of Dana Hammond, no appeal had been filed in 2009 so the 2010 decision
is being applied retroactively to 2009 as well. The Gordon property had previously been
classified Ag in 2009 so no other adjustment was warranted for that tax year.
Nichos Hecht had appealed his property classification in 2009 and went through the
appeal channels up to the BAA where the appeal was withdrawn. Mr. Gordon has
included 2009 in his abatement request and argues that due to the classification issue,
the 2009 value being appealed earlier represents an "erroneous value" vs. an
"overvaluation ". As such, the property is eligible for a 2009 abatement. I asked Chris
Seldin for his opinion and he agreed with Mr. Gordon. That being the case, using the
BAA decision from the Hammond and Gordon properties (no relation) as the basis, the
Assessor's office has recommended that the Hecht property also receive an Ag
classification for 2009 as well as 2010.
It should also be noted that as of January 1, 2012, state statute requires the review of
all agricultural properties to try and determine whether or not the resident in an
agricultural dwelling is "integral" to the Ag operation. For those properties where it is
determined that the resident does not play an integral role in the operation of the
farm /ranch, a market value will be assigned to "up to 2 acres of land underlying the
residence". These properties will be included in that overall review.
Recommended action:
Uphold the assessor's recommendation for approval or denial for owner for each
year in question.
County: Pltkln Date Received
(Use Assessor's or Commissioners' Date Stamp)
Section I: Petitioner, please complete Section I only.
Date: 12/29/2011
Month Day Year
Petitioner's Name: Dana Ames Hammond
Petitioner's Mailing Address: c/o Gregory S. Gordon, Garfield 8 Hecht, P.C.
Aspen Colorado 81611
City or Town State Zip Code
SCHEDULE OR PARCEL NUMBER(S) PROPERTY ADDRESS OR LEGAL DESCRIPTION OF PROPERTY
R12304 Owl Creek Ranch, Lot: 6
• Petitioner requests an abatement or refund of the appropriate taxes and states that the taxes assessed against the
above property for the property tax year 2009 are incorrect for the following reasons: (Briefly describe why
the taxes have been levied erroneously or illegally, whether due to erroneous valuation, irregularity in levying,
clerical error, or overvaluation. Attach additional sheets if necessary.)
This property should have been classified agricultural in 2009 for the same reasons as it was ordered reclassified
as such in 2010. A copy of the Board of Assessment Appeals decision classifying property agricultural in 2010 is
attached.
T•w esro
titioner's estimate of value: g 48700.00 (2009 )
0 L } ��� SSSSS Value Year
I declare, under penalty of perjury in the second degree, that this petition, together with any accompanying exhibits
or statements. has been prepared or examined by me, and to the best of my knowledge, information, and belief, is
true, correct, and complete.
Daytime Phone Number (
Petitioner's Signe re
By ,_ S1 - Daytime Phone Number L970 ) 925 -1936
Agent's Signature'
Gregory S. Gordon, attorney for Petitioner
'Letter of agency must be attached when petition Is submitted by an agent.
If the Board of County Commissioners, pursuant to § 39-10- 114(1). C.R.S., or the Property Tax Administrator, pursuant to § 39 -2 -116, C.R.S..
denies the petition for refund or abasement of taxes in whole or in part, the Petitioner may appeal to the Board of Assessment Appeals pursuant
to the provisions of § 39 -2 -125, C.R.S., within thirty days of the entry of any such decision, § 39.10- 114.5(1), C.R.S.
Section II: Assessor's Recommendation
(For Assessor's Use Only)
Tax Year
Actual Assessed Tax •
Original •
Corrected •
Abate /Refund
Assessor recommends approval as outlined above.
If the request for abatement is based upon the grounds of overvaluation, no abatement or refund of taxes shall be made if an objection or protest
to such valuation has been filed and a Notice of Determination has been mailed 10 the taxpayer, § 39- 10- 114(1)(a)(I)(D), C.R.S. •
Tax year: r Protest? i d No ❑ Yes (If a protest was filed, please attach a copy of the N00.) !
•
❑ Assessor recommends denial for the following reason(s):
-- gessor's or obi; sessor's` mature
15- DPT -AR No. 920 -68/11 - - - - -
29
Appraiser Recommendation for an Abatement
Assessor Generated ❑
Taxpayer Generated >_
To: Tom Isaac, Pitkin County Assessor
From: Scotty Giddings
Date: Jan 30, 2012
Petitioner: Dana Hammond /Garfield & Hecht, P.0
Schedule #: R12304
Parcel #: 264333301006
The appraiser has completed a review of the referenced property, as of this date, and hereby
submits a recommendation as stated below:
❑ Deny
® Approve as Submitted
❑ Abatement/Refund Different than requested
i
Abatement for Year: 2009 Abatement for Year:
Data collection period N/A Data collection period
for year #1: for year #2:
Assessment Rate: 29% Assessment Rate:
Tax Area: 091 Tax Area:
Mill Levy: 28.828 Mill Levy:
Actual Value this year: $ 8,400,000 Actual Value this year: $
New Value: $ 47,800 New Value: $
Assessed Value Tax Amount Assessed Value Tax Amount
Original value: $ 2,436,000 $ 70,225.00 Original value: $ $
Corrected value: $ 14,120 $ 408.06 Corrected value: $ $
Refund: $ 2,421,880 $ 69,817,94 _Refund: $ $
The basis of this recommendation is: Agriculture status was awarded for 2010 based on BAA docket
56131. Because it was awarded for 2010 it should be awarded the same for 2009. See attached BM
Order with reasons to change classification from Residential vacant to Agricultural. Recommend setting
classification to agriculture from residential and refunding the petitioner.
Chief Appraiser Approval: t _0.:_ '4 _
vir
Assessor Approval:
(� PETITION FOR ABATEMENT OR REFUND OF T XES
County: `1�l _t _ Date Received O 2
(Use Assessor's or Commissioners' Date Stamp)
Section I: Petitioner, please complete Section 1 only.
Date: NNE 7 7\ 7h Z
Month Day Year (�1y i Ill'
Petitioners Name: 1)f�1MA &t m v 9 cA 6 eke 4 k (y
Petitioners Ma' ing Address: \ C W.!'Vw
(n %(u
C' or Town State Zip Code
SCHEDULE r OR PARCEL NUMBER(S) PROPE�n It- OR `E�AL DE �C ei, QN OeC C..
Petitioner requests an abatement or refund of the appropriate taxes and states that the taxes assessed against the
above property for the property tax year '].h II are incorrect for the following reasons: (Briefly describe why
the taxes have been levied erroneously or illegally, whether due to erroneous valuation, irregularity in levying,
clerical error or overvaluatiyn. Attach additional sheets if ) e � \o,. .Co � Z� 1 u
`` L60,54, \ C: A \. ,,, ,. 1tj F! V EI� A ty
t t' 1car . 'ILc C \ ay,; S; C4. \s0 1 , d\ dAl re ki.,
M e
Ccue b - 1 .1.4au c A 'tor 2 0 11 .
Petitioner's estimate of value: S c %znn t_ ZQ &I )
V ue Year
I declare, under penalty of perjury in the second degree, that this petition, together with any accompanying exhibits
or statements, has been prepared or examined by me, and to the best of my knowledge, information, and belief, is
true, correct, and complete.
Daytime Phone Number f )
Petitioner Signature /lCC
By \ \ 1ca �, �c5tss0 S t$ .teDaytimePhoneNumber )
Agent's Slgnatu *
*Letter of agency must be attached when petition Is submitted by an agent.
If the Board of County Commissioners, pursuant to § 39- 10-114(1), C.R.S., or the Property Tax Administrator, pursuant to § 39-2 -116, C.R.S.,
denies the petition for refund or abatement of taxes in whole or in part, the Petitioner may appeal to the Board of Assessment Appeals pursuant
to the provisions of § 39-2 -125, C. R.S., within thirty days of the entry of any such decision, § 39-10- 114,5(1), C.R.S.
Section 11: Assessor's Recommendation
(For Assessor's Use Only)
Tax Year to II
Actual Assessed x T'x
Original le O __.`r Ott \ 6 \21,%.16
Corrected SS, I..M) \S I - 1,20,7 S`11 I, ( 0 C
A to 1 elRefund 1 t q- J b
c A recommends approval as outlined above.
If the request for abatement is based upon the grounds of overvaluation, no abatement or refund of taxes shall be made if an objection or protest
to such valuation has been filed and a Notice of Determination has been mailed to the taxpayer, § 39- 10- 114(1)(a)(I)(D), C.R.S.
Tax year: tL %\ Protest? ml No ❑ Yes (If a protest was filed, please attach a copy of the NOD.)
❑ Assessor recommends denial for the following reason(s):
2 D
woes o p easo7s signature
15- DPT -AR No 920 -86111
Appraiser Recommendation for an Abatement
Assessor Generated IP9
Taxpayer Generated ❑
To: Tom Isaac, Pitkin County Assessor
From: Scotty Giddings
Date: Jan 31, 2012
Petitioner: Dana Hammond /Garfield & Hecht, P.0
Schedule #: R12304
Parcel #: 264333301006
The appraiser has completed a review of the referenced property, as of this date, and hereby
submits a recommendation as stated below:
O Deny
• Approve as Submitted
O Abatement/Refund Different than requested
Abatement for Year: 2011 Abatement for Year:
Data collection period N/A Data collection period
for year #1: for year #2:
Assessment Rate: 29% Assessment Rate:
Tax Area: 091 Tax Area:
Mill Levy: 36.361 Mill Levy:
Actual Value this year: $ 6,000,000 Actual Value this year: $
New Value: $ 54,200 New Value: $
Assessed Value Tax Amount Assessed Value Tax Amount
Original value: $ 1,740,000 $ 63,268.16 Original value: $ $
Corrected value: $ 15,7).0 _ $ 571.52 - Corrected value: $ $
Refund: $ 1,724,2$0 $ 62,696.64 Refund: $ $
The basis of this recommendation is: Data correction for property being set to agriculture status. Status not
carried forward from previous year 2010.
Chief Appraiser Approval:
Assessor Approval:
BOARD OF ASSESSMENT APPEALS, Docket Number: 56131
STATE OF COLORADO
1313 Sherman Street, Room 315
Denver, Colorado 80203
Petitioner:
DANA AMES HAMMOND,
v.
Respondent:
PITKIN COUNTY BOARD OF EQUALIZATION.
ORDER
THIS MATTER was heard by the Board of Assessment Appeals on May 17, 2011, Sondra
W. Mercier and Gregg Near presiding. Petitioner was represented by Gregory S. Gordon, Esq.
Respondent was represented by Christopher G. Seldin. Esq. Petitioner is protesting the classification
of the subject property for tax year 2010.
Docket Numbers 56130 & 56131 were consolidated for purposes of the hearing only.
Subject property is described as follows:
Lot 6, Owl Creek Ranch, Snowmass Village, Colorado
Pitkin County Schedule No. R012304
Petitioner is requesting an agricultural classification for the subject property for tax year
2010. Respondent assigned a vacant land classification for the subject property for tax year 2010.
The subject property is a 67.64 -acre lot ( "Lot 6 ") located in the Owl Creek Ranch
subdivision. Lot 6 was classified as vacant land for tax years 2008 and 2009. Owl Creek Ranch
consists of approximately 850 acres with several large undeveloped Land parcels subdivided from the
original ranch and sold to others.
The Protective Covenants of Owl Creek Ranch require that the land be "held for open space.
agricultural, and recreational purposes" to "preserve the agricultural operations within Owl Creek
Ranch." (See Pet.'s Ex. No. 12, page 176).
36!31
g..
To further that intent, the property was further subdivided to delineate the "Irrigated Lands."
The area included within the "Irrigated Lands" section restricts owners of the individual lots from
interfering with or impairing agricultural operations.
The "Irrigated Lands" are served by water rights quit - claimed to the Owl Creek Ranch
Homeowners' Association (HOA) by the developer in 1991. The sale was contingent upon the
continuation of the agricultural operations. Should the HOA fail to complete their responsibilities, its
rights and responsibilities may be assumed by the developer; or if the developer fails to do so, by
Pitkin County.
Petitioner's witness, James J. Snyder, ranch manager for the Owl Creek Ranch, testified that
he has managed the irrigated land and faun grounds for 21 years. His responsibilities in this regard
include a yearly "bum" of the irrigation ditches, dragging and fertilizing the fields, and applying
weed control and new seed every two years. The ranch formerly completed all haying operation but
has sub- contracted the process of harvesting, bailing, and hauling for the previous ten years.
Historically, the ranch produced approximately 300 tons of hay on an annual basis. The Owl
Creek Ranch would retain 110 to 125 tons for internal use and sell the remainder. Declining output
has reduced the annual return to 225 to 250 tons per year.
The HOA hired Mountain Harvesting LLC ("Mountain Harvesting ") in 2008 to harvest hay
grown on the "Irrigated Lands." The agreement allows for the harvesting of 300 tons per year, of
which 1.00 tons would be retained by the HOA with the remainder to be stored and sold to other
parties by Mountain Harvesting. Mr. Snyder indicated that the VOA pays Mountain Harvesting
5100.00 per ton for any shortage. Mountain Harvesting charges $150.00 per ton when selling the
product.
Mr. Snyder stated that approximately 90 days of his time each year is devoted to the
maintenance of the hay lands. If the ranch were to complete all of the operations to harvest the hay,
the cost would be approximately $250.00 per ton. The hay retained by the HOA is used to feed
horses boarded on the ranch. Mr. Snyder indicated that Lot 6 produces an average of 20 to 25 -tons
of hay each year.
Petitioner's witness, Mr. Charles A. Vidal, testified that he has served as a manager of the
HOA for approximately 30 years. Mr. Vidal indicated there is insufficient production from the
"Irrigated Lands" to justify ownership and maintenance of the equipment needed for harvesting. Mr.
Vidal also indicated the arrangement with Mountain Harvesting produces the best possible outcome
for the HOA, as it reduces the subsidies required of the members. The haying operation is not
monetarily profitable but contributes to a reduction in other expenses such as weed control. The
HOA could make a profit from hay sales by foregoing weed control and fertilization but this is a
short term solution ultimately leading to greater problems and potential reversion of the "Irrigated
Lands" to the developer.
Petitioner's witness, Cody Christopher, a co -owner of Mountain Harvesting, testified that his
arrangement with the Owl Creek Ranch HOA is intended to allow his operation to acquire hay to sell
JG /J/
2
•
for a profit. Mountain Harvesting provides the tractors, bailers, rakes, and hauling equipment
necessary to harvest the hay. Mountain Harvesting's share of the harvest is stored within its own
barn. Mr. Christopher indicated his sales range from $120.00 to $200.00 per ton and the hay from
Owl Creek Ranch is the best quality it obtains.
Petitioner contended that the agreement between the HOA and Mountain Harvesting qualifies
as a lease which conveys a property right known as a "profit a prendre," e.g, the right to enter the
land, and to remove a profitable commodity, crop, etc. Lobato v. Taylor, 71 P.3d 938, 945 (Colo.
2002).
Respondent indicated the principal issue for agricultural classification for the subject is
whether the operation is for the primary purpose of profit, specifically is the land being used by the
HOA for a profit or used by Mountain Harvesting to make a profit. Respondent pointed to testimony
by Mr, Vidal that they had never made a profit from hay sales. Respondent also repeated Mr.
Christopher's testimony that he would not have provided the cutting operating to the HOA without
the cash guarantees in place.
Respondent suggested the subject property is not a farm and likened the situation to
homeowner growing tomatoes in the back yard. The owner plants the seeds, rents the rototilter,
fertilizes, weeds the plants, and then allows a neighbor to pick the tomatoes, sell them on the street,
and keep the money. The use by the HOA of the hay for the horse boarding operation is not an
agricultural use, as maintenance of "pleasure horses" does not qualify for such classification.
Respondent also asserted the HOA's assessment process and use of the hay field results in expenses
that are five times the normal cost to develop hay. According to Respondent, the ROA and Mountain
Harvesting depend upon a subsidy by the landowners for the operation, and there is no evidence the
primary purpose of the operation is to make a profit, in fact there is no hope of a profit.
Petitioner presented sufficient probative evidence and testimony to show that the subject
property was incorrectly classified for tax year 2010.
Section 39- 1- 102(1.3), C.R.S., provides that a parcel of land must be classified as
"agricultural" i1 among other things and as relevant here. the land was used the previous two years
and presently is used as a "farm" as defined in section 39- 1402(3.5).
Pursuant to section 39- 1- 102(33), C.R.S.. a "farm' is `a parcel of land which is used to
produce agricultural products that originate from the land's productivity for the primary purpose of
obtaining a monetary profit.' The statute does not differentiate between, on the one hand, a lessee's
primary purpose in using the land and, on the other, the landowners primary purpose in acquiring
and maintaining ownership of the land. Boulder County Board of Equalization v. M.D.C.
Construction, Inc., 830 P.2d 975 (Colo. 1992). Further, the landowner need not actually profit or
intend to profit from agricultural operations on the land conducted by the owner's lessees." Id.
First, the Board was persuaded by Petitioner's argument that the agreement between the HOA
and Mountain Harvesting qualifies as a lease which conveys a property right known as a "profit a
prendre." Although the lease agreement is not directly between the owners and Mountain Harvesting,
56131
3
•
the Board was convinced by Petitioner's contention that the statutory language does not require that a
lease agreement be directly between an owner and a lessee, which would be inconsistent with the
holding of Boulder County Board of Equalization v. ,L1,D. C Construction Co., 830 P.2d 975 (Colo.
1992). Accordingly, the Board finds that Mountain Harvesting is a "lessee" for purposes of section
39- 1- 102(1.6)(a). •
Second, the Board was convinced that the surface use of Lot 6 was for production of hay in
2010 as well as in the prior two years. Accordingly, the Board is persuaded that the parcel is used to
produce "agricultural products" for purposes of section 39 -1 -102 (3.5), C.R.S.
Third, the Board finds that monetary profit is the primary purpose behind the production of
agricultural products on the subject property as required by section 39- 1- 102(3.5), C.R.S. The Board
found that a profrt is realized in three ways within this relationship: (i) the lessee/HOA receives crop
share payment from the landowner for the production of hay on Lot 6; (11) Mountain Harvesting
holds a "profit a prendre" interest in the subject, receiving a crop share payment of hay in exchange
for removal of the hay: (iii) the landowner receives a reduced HOA fee when operating costs of the
HOA are reduced.
The Board recognizes that while "pleasure horse' operations do not qualify for agricultural
classification, such operation is the operation of the HOA, not the actual landowner.
ORDER:
Respondent is ordered to change the 2010 classification of the subject property to
agricultural.
The Pitkin County Assessor is directed to change his/her records accordingly.
APPEAL:
If the decision of the Board is against Petitioner, Petitioner may petition the Court of Appeals
for judicial review according to the Colorado appellate rules and the provisions of Section 24 -4-
106(11), C.R.S. (commenced by the filing of a notice of appeal with the Court of Appeals within
forty-five days after the date of the service of the final order entered).
If the decision of the Board is against Respondent, Respondent, upon the recommendation of
the Board that it either is a matter of statewide concern or has resulted in a significant decrease in the
total valuation of the respondent county, may petition the Court of Appeals for judicial review
according to the Colorado appellate rules and the provisions of Section 24 - 4 - 106(11), C.R.S.
(commenced by the filing of a notice of appeal with the Court of Appeals within forty -five days after
the date of the service of the final order entered).
In addition, if the decision of the Board is against Respondent, Respondent may petition the
Court of Appeals for judicial review of alleged procedural errors or errors of law within thirty days
36131
4
of such decision when Respondent alleges procedural errors or errors of law by the Board.
If the Board does not recommend its decision to be a matter of statewide concern or to have
resulted in a significant decrease in the total valuation of the respondent county, Respondent may
petition the Court of Appeals for judicial review of such questions within thirty days of such
decision.
Section 39 -8- 108(2), C.R.S.
DATED and MAILED this 28th day of September, 2011.
.....
p�E OF ** 'N g BOARD OF ASSESSMENT APPEALS
nn 44 I
v ; l ems- Lc l
q . erit Sondra W. Mercier
•
Gregg Near
1 hereby certify that this is a true
and correct copy of the decision of
t :lard of Assessment Appeals.
Milla Crichton
56131
5
PETITION FOR ABATEMENT OR REFUND OF TAXES
•
County: Pitin Date Received
(Use Assessor's or Commissioners' Date Stamp)
Section 1_ Petitioner, please complete Section I only.
Date: 12/29/2011
Month Day Year
Petitioner's Name: Dana Ames Hammond
Petitioner's Mailing Address: c/o Gregory S. Gordon, Garfield & Hecht, P.C.
Aspen Colorado 81611
City or Town State Zip Code
SCHEDULE OR PARCEL NUMBER(S) PROPERTY ADDRESS OR LEGAL DESCRIPTION OF PROPERTY
R12304 Owl Creek Ranch, Lot: 6
Petitioner requests an abatement or refund of the appropriate taxes and states that the taxes assessed against the
above property for the property tax year 2009 are incorrect for the following reasons: (Briefly describe why
the taxes have been levied erroneously or illegally, whether due to erroneous valuation, irregularity in levying,
clerical error, or overvaluation. Attach additional sheets if necessary.)
This property should have been classified agricultural in 2009 for the same reasons as it was ordered reclassified
as such in 2010. A copy of the Board of Assessment Appeals decision classifying property agricultural in 2010 is
Q o � attached.
a 48,700.00 2009 )
titioner's estimate of value: $ (
(.f Value Year
y Q� it I declare, under penalty of perjury in the second degree, that this petition, together with any accompanying exhibits
or statements, has been prepared or examined by me, and to the best of my knowledge, information, and belief, is
true, correct, and complete.
Daytime Phone Number ( _ )
Petitioner's Signe re
By ! Daytime Phone Number ( 970 ) 925 -1936
Agent's Signature'
Gregory S. Gordon, attorney for Petitioner
`Letter of agency must be attached when petition is submitted by an agent.
If the Board of County Commissioners, pursuant to § 39 -10- 114(1), C.R.S., or the Property Tax Administrator, pursuant to § 39 -2 -116, C.R.S.,
denies the petition for refund or abatement of taxes in whole or in part, the Petitioner may appeal to the Board of Assessment Appeals pursuant
to the provisions of § 39-2-125, C.R.S., within thirty days of the entry of any such decision, § 39 -10- 114.5(1), C.R.S.
Section 11: Assessor's Recommendation
(For Assessor's Use Only)
Tax Year
Actual Assessed Tax
Original
Corrected
Abate /Refund
it Assessor recommends approval as outlined above.
If the request for abatement is based upon the grounds of overvaluation, no abatement or refund of taxes shall be made if an objection or protest
to such valuation has been filed and a Notice of Determination has been mailed to the taxpayer, § 39- 10- 114(1)(a)(I)(D), C.R.S.
Tax yearlern Protest? V No ❑ Yes (If a protest was riled, please attach a copy of the NOD.)
❑ Assessor recommends denial for the following reason(s):
•
ara ..4
• r ssor's or 0 r r %. sessor's , ature
15- DPT -AR No. 920 -66/11
BOARD OF ASSESSMENT APPEALS, Docket Number: 56131
STATE OF COLORADO
1313 Sherman Street, Room 315
Denver. Colorado 80203
Petitioner:
DANA AMES HAMMOND,
v.
•
Respondent:
PITKIN COUNTY BOARD OF EQUALIZATION.
ORDER
THIS MATTER was heard by the Board of Assessment Appeals on May 17, 2011, Sondra
W. Mercier and Gregg Near presiding. Petitioner was represented by Gregory S. Gordon, Esq.
Respondent was represented by Christopher G. Seldin. Esq. Petitioner is protesting the classification
of the subject property for tax year 2010.
Docket Numbers 56130 & 56131 were consolidated for purposes of the hearing only.
Subject property is described as follows: o►
`v Z
Lot 6, Owl Creek Ranch, Snowmass Village, Colorado g
Pitkin County Schedule No. 11012304
Petitioner is requesting an agricultural classification for the subject property for tax year
2010. Respondent assigned a vacant land classification for the subject property for tax year 2010.
The subject property is a 67.64 -acre lot ("Lot 6 ") located in the Owl Creek Ranch
subdivision. Lot 6 was classified as vacant land for tax years 2008 and 2009. Owl Creek Ranch
consists of approximately' 850 acres with several large undeveloped land parcels subdivided from the
original ranch and sold to others.
The Protective Covenants of Owl Creek Ranch require that the land be "held for open space.
agricultural, and recreational purposes' to "preserve the agricultural operations within Owl Creek
Ranch.' (See Pet.'s Ex. No. 12. page 176).
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To further that intent, the property was further subdivided to delineate the "Irrigated Lands."
The area included within the `Irrigated Lands" section restricts owners of the individual lots from
interfering with or impairing agricultural operations.
The "irrigated Lands" are served by water rights quit - claimed lo the Owl Creek Ranch
Homeowners' Association (HOA) by the developer in 1991. The sale was contingent upon the
continuation of the agricultural operations. Should the HOA fail to complete their responsibilities, its
rights and responsibilities may be assumed by the developer; or if the developer fails to do so, by
Pitkin County.
Petitioner's witness, James 3. Snyder, ranch manager for the Owl Creek Ranch, testified that
he has managed the irrigated land and farm grounds for 21 years. His responsibilities in this regard
include a yearly "burn" of the irrigation ditches, dragging and fertilizing the fields, and applying
weed control and new seed every two years. The ranch formerly completed all haying operation but
has sub - contracted the process of harvesting, bailing, and hauling for the previous ten years.
Historically, the ranch produced approximately 300 tons of hay on an annuai basis. The Owl
Creek Ranch would retain 110 to 125 tons for internal use and sell the remainder. Declining output
has reduced the annual return to 225 to 250 tons per year.
The HOA hired Mountain Harvesting LLC ("Mountain Harvesting ") in 2008 to harvest hay
grown on the "Irrigated Lands.' The agreement allows for the harvesting of 300 tons per year, of
which 100 tons would be retained by the HOA with the remainder to be stored and sold to other
parties by Mountain Harvesting. Mr, Snyder indicated that the HOA pays Mountain Harvesting
5100.00 per ton for any shortage. Mountain Harvesting charges $150.00 per ton when selling the
product.
Mr. Snyder stated that approximately 90 days of his time each year is devoted to the
maintenance of the hay lands. If the ranch were to complete all of the operations to harvest the hay,
the cost would be approximately $250.00 per ton. The hay retained by the HOA is used to feed
horses boarded on the ranch. Mr. Snyder indicated that Lot 6 produces an average of 20 to 25 -tons
of hay each year.
Petitioner's witness, Mr. Charles A. Vidal, testified that he has served as a manager of the
HOA for approximately 30 years. Mr. Vidal indicated there is insufficient production from the
"Irrigated Lands" to justify ownership and maintenance of the equipment needed for harvesting. Mr.
Vidal also indicated the arrangement with Mountain Harvesting produces the best possible outcome
for the 11OA, as it reduces the subsidies required of the members. The haying operation is not
monetarily profitable but contributes to a reduction in other expenses such as weed control. The
HOA could make a profit from hay sales by foregoing weed control and fertilization but this is a
short term solution ultimately leading to greater problems and potential reversion of the "Irrigated
Lands" to the developer.
Petitioner's witness, Cody Christopher, a co -owner of Mountain Harvesting, testified that his
arrangement with the Owl Creek Ranch HOA is intended to allow his operation to acquire hay to sell
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for a profit. Mountain Harvesting provides the tractors, bailers, rakes, and hauling equipment
necessary to harvest the hay. Mountain Harvesting's share of the harvest is stored within its own
ham. Mr. Christopher indicated his sales range from 5120.00 to $200.00 per ton and the hay from
Owl Creek Ranch is the best quality it obtains.
Petitioner contended that the agreement between the HOA and Mountain Harvesting qualifies
as a lease which conveys a property right known as a "profit a prendre," e.g. the right to enter the
land, and to remove a profitable commodity, crop, etc. Lobaro v. Taylor, 71 P.3d 938, 945 (Colo.
7002).
Respondent indicated the principal issue for agricultural classification for the subject is
whether the operation is for the primary purpose of profit, specifically is the land being used by the
HOA for a profit or used by Mountain Harvesting to make a profit. Respondent pointed to testimony
by Mr. Vidal that they had never made a profit from hay sales. Respondent also repeated Mr.
Christopher's testimony that he would not have provided the cutting operating to the HOA without
the cash guarantees in place.
Respondent suggested the subject property is not a farm and likened the situation to
homeowner growing tomatoes in the back yard. The owner plants the seeds, rents the rototiller,
fertilizes. weeds the plants, and then allows a neighbor to pick the tomatoes, sell them on the street,
and keep the money. The use by the HOA of the hay for the horse boarding operation is not an
agricultural use, as maintenance of "pleasure horses' does not qualify for such classification.
Respondent also asserted the HO A's assessment process and use of the hay field results in expenses
that are five tines the normal cost to develop hay. According to Respondent, the HOA and Mountain
Harvesting depend upon a subsidy by the landowners for the operation, and there is no evidence the
primary purpose of the operation is to make a profit, in fact there is no hope of a profit.
Petitioner presented sufficient probative evidence and testimony to show that the subject
property was incorrectly classified for tax year 2010.
Section 39- 1- 102(1.3), C.R.S., provides that a parcel of land must be classified as
"agricultural" if. among other things and as relevant here. the land was used the previous two years
and presently is used as a "farm' as defined in section 39- 1- 102(3.5).
Pursuant to section 39-2-102(3.5). CRS.. a "farm" is - "a parcel of land which is used to
produce agricultural products that originate fram the land's productivity for the primary purpose of
obtaining a monetary profit." The statute does not di 8erentiate hea%een, on the one hand. a lessee's
primary purpose in using the land and, on the other. the landowner's primary purpose in acquiring
and maintaining ownership of the land. Boulder County Board of Equalization v. M.D.C.
Construction, Inc.. 830 P.2d 975 (Colo. 1992). Further, the landowner need not actually profit or
intend to profit from agricultural operations on the land conducted by the owner's lessees." Id.
First, the Board was persuaded by Petitioner's argument that the agreement between the HOA
and Mountain Harvesting qualifies as a lease which conveys a property right known as a "profit a
prendre." Although the lease agreement is not directly between the owners and Mountain Harvesting,
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the Board was convinced by Petitioner's contention that the statutory language does not require that a
lease agreement be directly between an owner and a lessee, which would be inconsistent with the
holding of Boulder County Board of v. Al. D. C. Construction Co., 830 P.2d 975 (Colo.
1992). Accordingly, the Board finds that Mountain Harvesting is a "lessee" for purposes of section
39- 1- 102(1.6)(a).
Second, the Board was convinced that the surface use of Lot 6 was for production of hay in
2010 as well as in the prior two years. Accordingly, the Board is persuaded that the parcel is used to
produce "agricultural products" for purposes of section 39 -1 -102 (3.5), C.R.S.
Third, the Board finds that monetary profit is the primary purpose behind the production of
agricultural products on the subject property as required by section 39 -1- 102(3.5). C.R.S. The Board
found that a profit is realized in three ways within this relationship: (i) the lessee /HOA receives crop
share payment from the landowner for the production of hay on Lot 6: (ii) Mountain Harvesting
holds a "profit a prendre" interest in the subject, receiving a crop share payment of hay in exchange
for removal of the hay: (iii) the landowner receives a reduced HOA fee when operating costs of the
1-IOA are reduced.
The Board recognizes that while "pleasure horse' operations do not qualify for agricultural
classification, such operation is the operation of the 11OA, not the actual landowner.
ORDER:
Respondent is ordered to change the 2010 classification of the subject property to
agricultural.
The Pitkin County Assessor is directed to change his /her records accordingly.
APPEAL:
If the decision of the Board is against Petitioner. Petitioner may petition the Court of Appeals
for judicial review according to the Colorado appellate rules and the provisions of Section 24 -4-
106(11), C.R.S. (commenced by the filing of a notice of appeal with the Court of Appeals within
forty -five days after the date of the service of the final order entered).
If the decision of the Board is against Respondent, Respondent, upon the recommendation of
the Board that it either is a matter of statewide concem or has resulted in a significant decrease in the
total valuation of the respondent county, may petition the Court of Appeals for judicial review
according to the Colorado appellate rules and the provisions of Section 24 - 4 - 106(11), C.R.S.
(commenced by the filing ofa notice ofappeal with the Court of Appeals within forty -five days after
the date of the service of the final order entered).
In addition. if the decision of the Board is against Respondent, Respondent may petition the
Court of Appeals for judicial review of alleged procedural errors or errors of law within thirty days
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of such decision when Respondent alleges procedural errors or errors of law by the Board.
If the Board does not recommend its decision to be a matter of statewide concern or to have
resulted in a significant decrease in the total valuation of the respondent county. Respondent may
petition the Court of Appeals for judicial review of such questions within thirty days of such
decision.
Section 39 -8- 108(2), C.R.S.
DATED and MAILED this 28th day of September, 2011.
.,..
4. 0F cot BOARD OF ASSESSMENT APPEALS
A SP.• P y oo
• 37 F SALL_
Sondra W. Mercier
l9y P �.'
Gregg Near
I hereby certify that this is a true
and correct copy of the decision of
t . •ard of Assessment Appeals.
Milla Crichton
36131
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