CTS Investments, LLC v. Garfield County Board of Equalization

2013 COA 30, 342 P.3d 451, 2013 WL 979357, 2013 Colo. App. LEXIS 347
CourtColorado Court of Appeals
DecidedMarch 14, 2013
DocketNo. 12CA0677
StatusPublished
Cited by3 cases

This text of 2013 COA 30 (CTS Investments, LLC v. Garfield County Board of Equalization) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
CTS Investments, LLC v. Garfield County Board of Equalization, 2013 COA 30, 342 P.3d 451, 2013 WL 979357, 2013 Colo. App. LEXIS 347 (Colo. Ct. App. 2013).

Opinion

Opinion by

JUDGE CASEBOLT

T1 In this property tax case, petitioner, CTS Investments, LLC (CTS), appeals the order of the Board of Assessment Appeals (BAA) denying its petition challenging the valuation placed on its property by respondent, Garfield County Board of Equalization (BOE), for the 2011 tax year. CTS asserts that the BAA erred by admitting hearsay evidence, finding one of its proposed comparable sales was not an arm's-length transaction, and upholding the BOE's valuation when there was no competent evidence in the record to support the determination. We disagree and thus affirm.

I. Background

T2 CTS owns two parcels of vacant land in Garfield County. One consists of 10.766 acres, and the other consists of 61.26 acres. Both are located within the 640-acre Castle Valley Ranch Planned Unit Development in the town of New Castle.

3 For the 2011 tax year, the BOE valued the 10.766 acre property at $807,800, or roughly $28,500 per acre, and valued the 61.26 acre property at $1,836,480, or roughly $30,000 per acre.

T4 CTS asserted to the BAA that the property should be valued at approximately $2,200 per acre. It based its petition in large part upon a sale of property adjoining its own in Castle Valley Ranch that had occurred in April 2010. In that transaction, GMAC ResCap, a national mortgage lender, sold to CVR Investors, Inc. (CVR), approximately 120 acres of vacant land and 18 finished townhome lots for $700,000 (CVR sale). GMAC ResCap had acquired the property essentially through foreclosure of its $15 million loan to Village Homes, the previous owner. Of note, Village Homes had purchased the property from CTS in 2007 and 2008 for approximately $8.9 million. At the time of the foreclosure, the GMAC ResCap loan to Village Homes had an outstanding principal balance of over $10 million.

15 GMAC ResCap first listed the property in June 2009 for $2 million. In October 2009, it reduced the listing to $1,667,000. Ultimately, in April 2010, CVR agreed to purchase the property for $1,067,000, which was later reduced by agreement of the parties to, $700,000.

T 6 In its appeal to the BAA, CTS asserted that the CVR sale was the most comparable sale for the purpose of determining the actual value of its property. It argued that the CVR sale was an arm's length transaction and, thus, should be considered to reflect the actual value of its property. The county assessor, however, excluded the sale from her appraisal, concluding that the sale was not appropriate for consideration because it was not an arm's length transaction, due to, primarily, her opinion that GMAC ResCap was under duress when it sold the property. The assessor's report, admitted into evidence, included a section setting forth her reasons for concluding that the CVR sale was not an arm's-length transaction, and she testified at the hearing regarding the issue.

T7 It is undisputed that it was appropriate for the assessor to use only the market approach, and not the income or cost approaches, to determine the properties' actual value. Based on the market approach, the assessor testified that the actual value of the properties was $30,000 per acre. She testified that to reach this result, she compiled four comparable sales and, as required by statute, adjusted them for time, size, and location. Her comparable sales were, however, completed before the applicable one-and-a-half-year base period-January 1, 2009 to June 30, 2010. She testified that she did so because she concluded that the CVR sale was not an arm's-length transaction, and thus, there were no comparable sales completed during the base period.

In addition to the county assessor's evidence, the BAA heard testimony from [454]*454CTS's tax consultant; a real estate agent who had represented GMAC ResCap in the CVR sale; and representatives from both CTS and CVR. CTS's tax consultant provided an appraisal using comparable sales and concluded that the actual value of the property was $2,282 per acre, which was the adjusted sale price of the CVR salg after the thirteen finished townhome lots were excluded. Unlike the assessor, he considered the CVR sale an arm's-length transaction and, therefore, included it in his valuation. The consultant did not believe that, given the depressed nature of the market, the sale was atypical.

T9 The BAA denied CTS's petition. In its order, the BAA stated that it found the assessor's valuation to be more persuasive than that of CTS, and it agreed with the assessor's decision not to consider the CVR sale because it did not meet the definition of an arm's-length transaction. However, the order did not include the BAA's reasoning for that ruling.

110 CVR also had appealed the BOE's determination of the 2011 value of its property. CTS's and CVR's appeals were consolidated and were jointly heard by the BAA, and CVR has also appealed the BAA's determination to this court. We separately resolve that appeal in CVR Investors, Inc. v. Garfield County Board of Equalization, 2013 WL 980132 (Colo.App. No. 12CA0678, Mar. 14, 2013) (not published pursuant to C.A.R. 35(f)).

II. Admission of Hearsay Evidence

T11 CTS asserts that the BAA erred in admitting into evidence the articles and material the assessor relied on in concluding that GMAC ResCap was under duress when it sold the property to CVR. Because resolution of this issue affects whether there is competent evidence in the record to support the BAA's decision not to consider the CVR sale an arm's-length transaction, we will address it first. We reject the contention.

A. Standard of Review and Applicable Law

(12 Administrative hearings need not comply with the strict rules of evidence. Partridge v. State, 895 P.2d 1183, 1187 (Colo.App.1995). However, a hearing officer may only consider competent evidence. 117th Assocs. v. Jefferson Cnty. Bd. of Equalization, 811 P.2d 461, 463 (Colo.App.1991).

113 Hearsay is admissible in administrative proceedings if it possesses probative value commonly accepted by reasonable and prudent persons in the conduct of their affairs. § 24-4-105(7), C.R.S.2012; Craddock v. Colo. St. Bd. of Assessment Appeals, 819 P.2d 1100, 1103 (Colo.App.1991). The Colorado Supreme Court has set out nine factors that are instructive in determining whether hearsay evidence is reliable, trustworthy, and probative for the purposes of an administrative hearing:

(1) whether the [hearsay] statement was written and signed; (2) whether the statement was sworn. to by the declarant; (8) whether the declarant was a disinterested witness or had a potential bias; (4) whether the hearsay statement is denied or contradicted by other evidence; (5) whether the declarant is credible; (6) whether there is corroboration for the hearsay statement; (7) whether the case turns on the credibility of witnesses; (8) whether the party relying on the hearsay offers an adequate explanation for the failure to call the declarant to testify; and, finally, (9) whether the party against whom the hearsay is used had access to the statements prior to the hearing or the opportunity to subpoena the declarant.

Indus. Claims Appeals Office v. Flower Stop Mktg. Corp., 782 P.2d 13

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Bluebook (online)
2013 COA 30, 342 P.3d 451, 2013 WL 979357, 2013 Colo. App. LEXIS 347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cts-investments-llc-v-garfield-county-board-of-equalization-coloctapp-2013.