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Colorado Court of Appeals Opinions
January 16, 2014

The Court of Appeals summaries are written for the Colorado Bar Association by licensed attorneys Teresa Wilkins (Denver) and Paul Sachs (Steamboat Springs). Please note that the summaries of Opinions of the Colorado Court of Appeals are provided as a service by the Colorado Bar Association and are not the official language of the Court. The Colorado Bar Association cannot guarantee the accuracy or completeness of the summaries.

2014 COA 6. No. 12CA0988. Village at Treehouse, Inc. v. Property Tax Administrator.
Real Property—Development Rights—Ad ValoremTax—Unit Assessment Rule.

Petitioner, Village at Treehouse, Inc. (Village), paid more than $1 million to purchase the development rights from the Treehouse Condominium Association, Inc. (HOA), which gave the Village the right to construct up to nineteen condominium units at the Treehouse Condominiums. The development rights were created by an amendment to the Treehouse Condominiums’ declaration in 2006 and conveyed to the Village by the HOA in 2008 in a document entitled “Warranty and Assignment of Supplemental Development Rights” (Assignment). The Board of Assessment Appeals (BAA) found that the development rights the Village had acquired to build new condominium units constituted a taxable interest in real property for ad valorem tax purposes.

The Village argued on appeal that the development rights conveyed to it by the Assignment are not taxable. The Assignment, in effect, severed the development rights from the Treehouse Condominiums’ common elements and conveyed them to the Village. Therefore, the Assignment conveyed a taxable interest in real property. Because the Village acquired interests in land, taxation of the development rights was required under CRS § 39-1-102(16) and (14)(a). Therefore, the development rights were property interests subject to taxation, and the BAA did not err in its ruling.

The Village also argued that taxation of the development rights violated CRS §§ 39-1-103(10) and 38-33.3-105. Because the Assignment evinced the intent to sever title to the development rights from the Condominiums, including severance from the common elements, taxing the development rights separately from the common elements did not contravene §§39-1-103(10) or 38-33.3-105.

The Village further argued that the unit assessment rule precludes separate taxation of the development rights. Because the Assignment created separate interests in real estate as between the interests of the individual unit owners and those of the Village, separate taxation of those interests did not violate the unit assessment rule. The order was affirmed.

2014 COA 7. No. 12CA2613. Reno, Chaffee County Clerk and Recorder v. Marks.
Voted Ballots—Colorado Open Records Act—CRS §24-72-204(5)—Attorney Fees.

Respondent Marilyn Marks sent to petitioner Joyce Reno, the Chaffee County Clerk and Recorder, two written requests to review some voted ballots from the 2010 general election. Reno filed an action in district court under the Colorado Open Records Act (CORA), requesting that the court prevent the disclosure of voted ballots. Before the hearing on Reno’s petition, the parties stipulated to stay the proceedings pending the outcome of proposed legislation, House Bill 12-1036. After the bill passed, Reno agreed to produce a single anonymous voted ballot according to guidelines contained in the statute. Following an evidentiary hearing, the district court declined to award Marks any attorney fees.

CRS §24-72-204(5) states that the court “shall award court costs and reasonable attorney fees to the prevailing applicant” unless the custodian obtains an order restricting inspection. On appeal, Marks contended that because she was the prevailing applicant under CRS §24-72-204(5), the court erred in denying her request for attorney fees. Reno commenced the action but failed to obtain a court order shielding any of the requested records from inspection; hence, Reno is liable for Marks’s attorney fees. The Court of Appeals found that as a consequence, Marks was entitled to reasonable appellate attorney fees under CORA. Therefore, the order denying Marks’s request for attorney fees was reversed and the case was remanded to the trial court for an award of Marks’s reasonable attorney fees, including her fees in this appeal.

Colorado Court of Appeals Opinions