Opinion
No. 73-131
Decided June 18, 1974. Rehearing denied July 16, 1974. Certiorari denied September 16, 1974.
In regard to certain real property ad valorem taxes, State Board of Assessment Appeals ordered that assessment against taxpayer be substantially reduced, and board of county commissioners and county assessor sought judicial review. From dismissal of their complaint, plaintiffs appealed.
Affirmed
1. TAXATION — County Commissioners — County Assessor — Not Seek — Judicial Review — Decision — State Board of Assessment Appeals. Neither the County Board of Commissioners, nor the county assessor may seek judicial review of a decision by the State Board of Assessment Appeals.
Appeal from the District Court of the County of Adams, Honorable Oyer G. Leary, Judge.
David Berger, for appellants.
N.W. Kettner, Clayton D. Knowles, for defendants-appellees Union Pacific Railroad Company and Union Pacific Land Resources Corporation.
F. S. Farrell, W. L. Peck, J. C. Street, for defendant-appellee Burlington Northern Inc.
This case involves the assessment and valuation for ad valorem tax purposes of certain real property owned by appellees, Union Pacific Railroad Company and Burlington Northern, Inc. (Taxpayers). These proceedings were initiated when the Adams county assessor determined the valuation of taxpayers' property, pursuant to 1965 Perm. Supp., C.R.S. 1963, 137-5-1 et seq. As provided for in 1965 Perm Supp., C.R.S. 1963, 137-5-22, the taxpayers objected to the valuation placed upon the property by the assessor, but their protests were denied by him. Thereafter, pursuant to 1965 Perm. Supp., C.R.S. 137-5-22(3) and 137-8-4, the taxpayers petitioned the Adams County Board of Equalization for relief and it upheld the decision of the assessor. The taxpayers then appealed the decision of the Adams County Board of Equalization to the state Board of Assessment Appeals. See 1971 Perm. Supp., C.R.S. 1963, 137-3-23, and 1971 Perm. Supp., C.R.S. 1963, 137-8-6(1). After a hearing, the Board of Assessment Appeals ordered that the assessment against the taxpayers be substantially reduced.
Subsequently, the Adams County Board of Commissioners and the county assessor filed a complaint in district court wherein they sought judicial review of the decision of the state Board of Assessment Appeals. The taxpayers moved for dismissal of the complaint on the ground that plaintiffs had neither standing nor authority to seek review of a decision by the state Board of Assessment Appeals. The district court granted the motion and dismissed the complaint and plaintiffs brought this appeal. We affirm the decision of the district court.
The disposition of this appeal turns upon the construction to be given to 1971 Perm. Supp., C.R.S. 1963, 137-8-6, which reads in its entirety as follows:
"(1) If the county board of equalization shall grant a petition, in whole or in part, the assessor shall adjust the valuation for assessment accordingly, but if the petition be denied, in whole or in part, the petitioner may appeal to the board of assessment appeals. Such appeal shall be taken no later than thirty days after such denial.
"(2) If the decision of the board of assessment appeals shall be against the petitioner, he may, within thirty days after such decision, petition the district court of the county wherein his property is located for judicial review thereof pursuant to section 3-16-5, C.R.S. 1963." (emphasis added)
[1] The taxpayers argue that the limitation of judicial review to the "petitioner" in subsection 2 of the above-quoted statute means that only the taxpayer may appeal from a decision of the Board of Assessment Appeals and that the assessor or the board of county commissioners thereby is precluded from seeking judicial review of such decisions. Appellants contend that since the state Board of Assessment Appeals is a quasi-judicial tribunal, see 1971 Perm. Supp., C.R.S. 1963, 137-3-23(1), the legislature did not intend to preclude judicial review by either party to the proceedings. Both the statutory scheme and case law compel the conclusion that neither the County Board of Commissioners nor the county assessor may seek judicial review of a decision by the state Board of Assessment Appeals.
The statute authorizes the County Board of Equalization to hear petitions from taxpayers whose objections or protests have been refused or denied by the assessor. 1965 Perm. Supp., C.R.S. 1963, 137-8-4. The state Board of Assessment Appeals is empowered to hear appeals from decisions of the County Board of Equalization. 1971 Perm. Supp., C.R.S. 1963, 137-8-6(1), quoted above, provides that "petitioner" may appeal decisions of the County Board of Equalization to the state Board of Assessment Appeals. 1971 Perm. Supp., C.R.S. 1963, 137-8-6(2) provides that the "petitioner" may seek judicial review of a decision of the state Board of Assessment Appeals. In each statutory provision the term "petitioner" refers to the taxpayer, and it is evident from these statutory provisions that the legislature contemplated that at each stage of the decision-making process the taxpayer could seek review of an adverse decision.
Appellants argue that the use of the term "petitioner" in 1971 Perm. Supp., C.R.S. 1963 137-8-6(2), was not intended to preclude review by other parties to the decision-making process. However, 1971 Perm. Supp., C.R.S. 1963, 137-4-9, specifically provides that the assessor or the Board of County Commissioners, as well as the petitioner, may seek review of decisions of the state Board of Assessment Appeals in connection with the assessment and valuation of property owned by public utilities. Thus, in one section of the tax statutes, the legislature specifically provided that the assessor and the Board of County Commissioners could seek judicial review of an adverse ruling and did not make such provision in 1971 Perm. Supp., C.R.S. 1963, 137-8-6 (2). From this legislative treatment of the issue, we infer a legislative intent to preclude the assessor and Board of County Commissioners from seeking judicial review under such circumstances as are present here.
Consideration of the case of Board of County Commissioners v. Love, 172 Colo. 121, 470 P.2d 861, supports our conclusion with respect to the legislative intent manifested in 1971 Perm. Supp., C.R.S. 1963, 137-8-6(2). That case involved a challenge by the county commissioners and the county assessor of a decision of the state Board of Equalization which was the statutory predecessor to the state Board of Assessment Appeals. The Supreme Court held that the Board of County Commissioners and the assessor had neither standing nor legal authority to maintain an action challenging a decision of the state Board of Equalization and ruled that the trial court had been correct in dismissing such an action. The court reasoned that since a county is a political subdivision of the state and possesses only such powers as are expressly conferred upon it by the constitution and statutes, the power of the commissioners or assessor to seek judicial review of decisions of the state Board of Equalization was dependent upon a constitutional or statutory provision which expressly or impliedly granted such power. The Court ruled that neither the provisions relating to taxation, the general grant of power to counties to "sue and be sued," nor the administrative code expressly or impliedly granted such power. As set forth above, the current version of the statutory provisions with respect to taxation make no provision for judicial review by the county assessor or the county board of commissioners. Accordingly, we conclude that the trial court correctly granted the taxpayers' motion to dismiss and entered judgment in their favor.
The judgment is affirmed.
JUDGE PIERCE and JUDGE SMITH concur.