Hunter Douglas Inc. Hunter Douglas Window Fashions Inc. Auto Owners Insurance Company Cutler Properties LLP Rathlin Island Investment LLC Auyeung Shun Yau Rangeview Tech Center LLC Patrick Tash Edu. Group Inc. Wonderland Brewing CO LLC AEW LT Broomfield Town Centre LLC Dobico LLC AWE Property Managemen t LLC JNT LLC and BN Investments LLC

2023 CO 27, 531 P.3d 996

• Court: Supreme Court of Colorado
• Decided: May 30, 2023
• Docket: 22sc797
• Status: Published

Opinion

taxpayers’ properties for the 2020 tax year. Accordingly, the court affirms the

district court order granting Broomfield’s motion for summary judgment. The Supreme Court of the State of Colorado 2 East 14th Avenue • Denver, Colorado 80203

2023 CO 27

Supreme Court Case No. 22SC797 C.A.R. 50 Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 22CA695 Broomfield County District Court Case No. 20CV30366 Honorable Sean Finn, Judge

Petitioners:

Hunter Douglas Inc.; Hunter Douglas Window Fashions Inc.; Auto Owners Insurance Company; Cutler Properties LLP; Rathlin Island Investment LLC; Auyeung Shun Yau; Rangeview Tech Center LLC; Patrick Tash Edu. Group Inc.; Wonderland Brewing CO LLC; AEW LT Broomfield Town Centre LLC; Dobico LLC; AWE Property Management LLC; JNT LLC; and BN Investments LLC,

v.

Respondents:

City and County of Broomfield Board of Equalization (BOE); and Jay Yamashita (replacing former Assessor Sandy Herbison), City and County of Broomfield Assessor.

Order Affirmed en banc May 30, 2023

Attorneys for Petitioners: Law Offices of James P. Bick, Jr PC James P. Bick, Jr. Chesterfield, Missouri Hutchinson Black and Cook, LLC Glen F. Gordon Boulder, Colorado

Attorneys for Respondents: Broomfield City & County Attorney’s Office, Nancy C. Rodgers, City and County Attorney Patricia W. Gilbert, Deputy City and County Attorney Broomfield, Colorado

Attorneys for Amici Curiae Assessor for Larimer County; Assessors and Boards of Equalization for Adams County, Arapahoe County, Boulder County, Douglas County, Eagle County, El Paso County, Jefferson County, Mesa County, Routt County, San Miguel County, Weld County, and the City and County of Denver; and Colorado Assessors’ Association:

Adams County Attorney’s Office Meredith P. Van Horn, Assistant County Attorney Brighton, Colorado

Arapahoe County Attorney’s Office Ronald A. Carl, County Attorney Benjamin P. Swartzendruber, Assistant County Attorney Littleton Colorado

Boulder County Attorney’s Office Michael A. Koertje, Assistant County Attorney Boulder, Colorado

Kathryn L. Schroeder Pueblo West, Colorado

Denver City Attorney’s Office Charles T. Solomon, Assistant County Attorney Paige A. Arrants, Assistant County Attorney Denver, Colorado

Douglas County Attorney’s Office

2 Amy F. Edwards, Senior Assistant County Attorney Castle Rock, Colorado

Eagle County Attorney’s Office Christina C. Hooper, Senior Assistant County Attorney Eagle, Colorado

El Paso County Attorney’s Office Steven Klaffky, Senior Assistant County Attorney Colorado Springs, Colorado

Jefferson County Attorney’s Office Amber Munck, Assistant County Attorney Jason Soronson, Assistant County Attorney Golden, Colorado

Larimer County Attorney’s Office David P. Ayraud, Deputy County Attorney Fort Collins, Colorado

Mesa County Attorney’s Office Andrea Nina Atencio, Chief Deputy County Attorney—Civil Division John R. Rhoads, Assistant County Attorney II Grand Junction, Colorado

Routt County Attorney’s Office Erick Knaus, County Attorney Lynaia M. South, Senior Assistant County Attorney Steamboat Springs, Colorado

San Miguel County Attorney’s Office Amy T. Markwell, County Attorney Telluride, Colorado

Weld County Attorney’s Office Karin McDougal, Assistant County Attorney Greeley, Colorado

3 JUSTICE MÁRQUEZ delivered the Opinion of the Court, in which CHIEF JUSTICE BOATRIGHT, JUSTICE HOOD, JUSTICE GABRIEL, JUSTICE HART, JUSTICE SAMOUR, and JUSTICE BERKENKOTTER joined.

4 JUSTICE MÁRQUEZ delivered the Opinion of the Court.

¶1 This is one of several cases filed in Colorado in which commercial property

owners have sued to compel the county assessor to revalue their properties and

lower their property tax assessments for the 2020 tax year to account for the

economic impacts of the COVID-19 pandemic. This case concerns the valuation of

commercial real property located in the City and County of Broomfield. The

taxpayers here—and in the other cases—contend that the pandemic and various

state and local public health orders issued in response were “unusual conditions”

that required revaluation of their properties under section 39-1-104(11)(b)(I),

C.R.S. (2022).

¶2 We accepted jurisdiction under section 13-4-109, C.R.S. (2022), in four of

these cases to consider how the “unusual conditions” exception in

section 39-1-104(11)(b)(I) applies to the circumstances created by the COVID-19

pandemic during the 2020 property tax year. See Larimer Cnty. Bd. of Equalization v.

1303 Frontage Holdings LLC, 2023 CO 28, __ P.3d __; Educhildren LLC v. Cnty. of

Douglas Bd. of Equalization, 2023 CO 29, __ P.3d __; MJB Motels LLC v. Cnty. of

Jefferson Bd. of Equalization, 2023 CO 26, __ P.3d __. In 1303 Frontage, we address

when an assessor must revalue property based on an unusual condition. There, we

conclude that article 1 of title 39 does not require an assessor to revalue real

property when an unusual condition occurs after the January 1 assessment date

5 for the intervening (second) year of the reassessment cycle. See 1303 Frontage, ¶ 90;

accord Educhildren, ¶ 5.

¶3 In this case and in MJB Motels, we consider whether the COVID-19

pandemic and the public heath orders issued in response constituted “unusual

conditions” for purposes of section 39-1-104(11)(b)(I).1 We conclude they did not.

Specifically, we hold that COVID-19 was not a “detrimental act[] of nature,” and

the orders issued in response to COVID-19 were not “regulations restricting . . .

the use of the land” under section 39-1-104(11)(b)(I). Therefore,

section 39-1-104(11)(b)(I) did not require the City and County of Broomfield

Assessor to revalue the taxpayers’ 2020 property valuations, and it did not require

the Board of Equalization to correct the Assessor’s valuations. Accordingly, we

affirm the order of the district court.

1 We accepted jurisdiction under section 13-4-109 to review the following issues: 1. Whether the district court erred in concluding that the COVID-19 pandemic was not a “detrimental act[] of nature” and, therefore, not an “unusual condition” requiring revaluation of Taxpayers’ commercial real property under section 39-1-104(11)(b)(I), C.R.S. 2021. 2. Whether the district court erred in concluding that government- ordered business closures, occupancy limits, and other regulatory measures enacted in response to the COVID-19 pandemic were not “new regulations restricting . . . the use of land” and, therefore, not unusual conditions for purposes of section 39-1-104(11)(b)(I).

6 I. Facts and Procedural History

¶4 The petitioners in this case are taxpayers who own commercial real property

located in Broomfield. In 2020, the taxpayers appealed their property tax

assessments to Sandy Herbison, who was, at the time, the Broomfield Assessor.

The taxpayers also appealed their property tax assessments to the City and County

of Broomfield Board of Equalization (“BOE”). On October 2, 2020, the BOE denied

all of the taxpayers’ appeals.

¶5 After exhausting all of their administrative remedies, on October 26, 2020,

the taxpayers filed a complaint for mandamus and declaratory relief in Broomfield

County District Court. The taxpayers asked the district court to order that

(1) Broomfield revalue the taxpayers’ properties for the 2020 tax year; (2) the

COVID-19 pandemic constituted an unusual condition in the form of a detrimental

act of nature; and (3) the public health orders in response to COVID-19 constituted

an unusual condition in the form of regulations restricting the use of the land.

¶6 On April 15, 2021, Broomfield filed a motion to dismiss under

C.R.C.P. 12(b)(5) for failure to state a claim for relief, contending that, regardless

of whether the circumstances here constituted an unusual condition, the statute

prohibits considering unusual conditions that occur after the January 1 assessment

date. On October 12, 2021, the district court denied the motion to dismiss,

7 reasoning that “[r]estricting reevaluation to conditions that existed during the

Base Period would vitiate the ‘unusual conditions’ portion of the [s]tatute.”

¶7 Both parties moved for summary judgment. The district court granted

Broomfield’s motion for summary judgment. The district court first concluded

that COVID-19 did not constitute a “detrimental act[] of nature” under the

“unusual conditions” exception in the statute. The court reasoned that although

COVID-19 was “detrimental to the health and welfare of our community, it is not

detrimental to the real property.” The court also concluded that the public health

orders in response to COVID-19 did not constitute “regulations restricting or

increasing the use of the land” under the “unusual conditions” exception in the

statute. Relying on LaDuke v. CF & I Steel Corp., 785 P.2d 605 (Colo. 1990), the court

explained that because the public health orders limited the economic activities on

the land rather than the use of the land itself, the “unusual conditions” exception

did not apply. Because the court was able to find that there was no unusual

condition (and thus no claim upon which relief could be granted), it did not reach

the question about when an unusual condition must arise in order to trigger

reassessment.

¶8 The taxpayers appealed. The court of appeals filed a motion for

determination of jurisdiction requesting that this case and its three companion

cases be referred to this court because they raise issues of significant public

8 importance. See §§ 13-4-109 to -110, C.R.S. (2022); C.A.R. 50(a). In November 2022,

we granted the motion and accepted jurisdiction.

II. Analysis

¶9 After setting forth the standards of review, we explain why the COVID-19

pandemic did not constitute a “detrimental act[] of nature.” See

§ 39-1-104(11)(b)(I). Then, we describe why the public health orders issued in

response were not “regulations restricting . . . the use of the land.” See id.

A. Standards of Review

¶10 We review an order granting summary judgment de novo. Dep’t of

Revenue v. Agilent Techs., Inc., 2019 CO 41, ¶ 15, 441 P.3d 1012, 1016. “Summary

judgment is appropriate only when there is no genuine issue of material fact and

the moving party is entitled to judgment as a matter of law.” Pulte Home Corp. v.

Countryside Cmty. Ass’n, 2016 CO 64, ¶ 22, 382 P.3d 821, 826.

¶11 We also review de novo questions of statutory interpretation. Jefferson Cnty.

Bd. of Equalization v. Gerganoff, 241 P.3d 932, 935 (Colo. 2010). “We begin by

looking to the express language of the statute, construing words and phrases

according to grammar and common usage.” Id. If the statute’s language is

unambiguous and “the intent appears with reasonable certainty, our analysis is

complete.” Id.

9 B. Detrimental Act of Nature

¶12 The taxpayers first contend that the COVID-19 pandemic was a

“detrimental act[] of nature” under section 39-1-104(11)(b)(I). Based on the plain

language of the statute, we disagree. See MJB Motels, ¶¶ 20–27.

¶13 The exception in section 39-1-104(11)(b)(I) instructs assessors to take into

account “any unusual conditions in or related to any real property which would

result in an increase or decrease in actual value.” To fall within this provision, the

unusual condition must be both an “act of nature” and “in or related to any real

property.” Id. As we explain in MJB Motels, COVID-19 meets neither of these

requirements. ¶ 22. Thus, we conclude that COVID-19 was not a “detrimental

act[] of nature” for purposes of section 39-1-104(11)(b)(I). See id. at ¶¶ 20–27.

C. Regulations Restricting the Use of the Land

¶14 Next, the taxpayers contend that the public health orders issued in response

to COVID-19 constituted regulations restricting the use of their land that triggered

revaluation under section 39-1-104(11)(b)(I). Based on the plain language of the

statute, we disagree. See MJB Motels, ¶¶ 28–36.

¶15 The public health orders regulated the operation of commercial activity on

the land, and not the use of the land itself. See id. at ¶¶ 29–32. Thus, we conclude

that the public health orders were not “regulations restricting . . . the use of the

land” under section 39-1-104(11)(b)(I). See id. at ¶¶ 28–36.

10 III. Conclusion

¶16 Although COVID-19 has undoubtedly had negative, wide-ranging, and

lasting impacts, consistent with our decision today in MJB Motels, we conclude

that COVID-19 was not a “detrimental act[] of nature,” nor were the public health

orders passed in response “regulations restricting . . . the use of the land” under

section 39-1-104(11)(b)(I). Thus, we affirm the district court’s order granting

Broomfield’s motion for summary judgment.