Grand County will appeal YMCA tax case | SkyHiNews.com

Grand County will appeal YMCA tax case

The Grand County Board of Commissioners has moved to file an appeal in a recent decision to grant Snow Mountain Ranch a full property tax exemption for religious use. The board moved at their Aug. 12 meeting to allow Grand County Attorney Anthony "Jack" DiCola to move forward filing appeal with the Colorado Court of Appeals. DiCola had recommended that Grand County Commissioners appeal the decision from the Colorado Board of Assessment Appeals to grant religious use tax exemptions to YMCA of the Rockies, which owns Snow Mountain Ranch. "With taxes, we just want to get it right," DiCola told the Sky-Hi News. "There's really no question that we need an appellate decision on this issue." DiCola, who met with attorneys for Larimer County over the weekend, said during the board meeting that the state constitution contradicts the Board of Assessment Appeals' ruling. "I don't believe the YMCA property is used solely and exclusively for religious purposes," DiCola said. "I believe we should appeal this decision." Larimer County attorneys made the same recommendation to the Larimer County Board of Commissioners at their Aug. 12 meeting, DiCola said. The exemption means that YMCA of the Rockies does not have to pay the more than $200,000 annual property tax bill for its Snow Mountain Ranch Property. It also means that Grand County will have to refund taxes paid in 2002, 2003 and 2004. YMCA of the Rockies, which is headquartered in Estes Park, first applied for religious purposes and charitable use property tax exemptions for two of its properties, Snow Mountain Ranch and the Estes Park Center, in December 2003. The Property Tax Administrator eventually granted both exemptions, though the Board of Assessment Appeals reversed them. The Colorado Court of Appeals vacated the Board of Assessment Appeals' decisions in April 2013. After the appellate ruling, the Board of Assessment Appeals reversed its previous ruling and granted YMCA of the Rockies religious use exemptions. It declined to rule on the charitable exemption. DiCola told the Sky-Hi News that he was frustrated with the Board of Assessment Appeals' decision, and called the board's and the Colorado Property Tax Administrator's handling of the cases a "real failure." He criticized the lengthiness of proceedings and the Board of Assessment Appeals' decision not to rule on the charitable use exemption. DiCola did say that he believed the counties had a chance for a successful appeal. "I wouldn't recommend that we appeal it if I wasn't at least optimistic," DiCola said. Hank Shell can be reached at 970-887-3334 ext. 19610.

YMCA of the Rockies granted full property tax exemption

The Colorado Board of Assessment Appeals has granted YMCA of the Rockies a full property tax exemption for religious use after originally denying the exemption. The ruling means that YMCA of the Rockies will avoid paying upward of $200,000 in property taxes annually for its 2,187-acre Snow Mountain Ranch, located outside of Granby. "We are pleased that the Board of Assessment Appeals has aligned their decision with the Court of Appeals and lifted up the YMCA of the Rockies' sincere Christian Mission," said Kent Meyer, CEO of YMCA of the Rockies, in a press release. "This ruling correctly applies both statutory law and Colorado Supreme Court rulings for other nonprofit camps and conference centers to YMCA of the Rockies." The Colorado Court of Appeals struck down the board's original ruling. The latest decision aligns with the Colorado Property Tax Administrator's previous decision to grant YMCA of the Rockies religious and charitable exemptions. The board decided not to rule on the YMCA's charitable tax exemption, though Laura Fields with YMCA of the Rockies said that the additional exemption will have no additional benefit for the organization. County Attorney Anthony "Jack" DiCola will meet with Larimer County attorneys this weekend to determine how the two counties will move ahead, though at this time the county does not have a position on the ruling, said Robert Franek, assistant county attorney. The decision, issued Aug. 1, is retroactive to the 2002 tax year, Fields said. YMCA of the Rockies stopped paying property taxes in 2005, and has instead been putting the money it would have paid aside into savings. If the county chooses not to appeal the latest decision, or if its appeal fails, it will owe YMCA of the Rockies the total amount of property tax paid for 2002, 2003 and half of 2004 for its Snow Mountain Ranch Property, Fields said, though she couldn't say exactly how much that would be. Court of Appeals finds flaws in reversal The Colorado Court of Appeals' decision to vacate the Board of Assessment Appeals' ruling on YMCA of the Rockies' religious exemption found that it was overly narrow and prohibited by the establishment clause of the First Amendment. The board aligned with the court's decision in its Aug. 1 ruling, citing the necessity of avoiding a "narrow construction of property tax exemptions." The board also cited the general assembly's decision that any activities of a religious organization that promote its religious purposes constitute "religious worship." "Applying the law as directed by the Court of Appeals to the facts of this case," the board wrote, "the Board holds that the YMCA is entitled to a religious purpose exemption for all portions of the properties within its applications." The board also held that the properties were not being used for private gain or corporate profit. Counties' dissent relies on Illinois law Both the Grand County and Larimer County boards of commissioners, which appealed the Property Tax Administrator's original decision to allow the exemption, focused on Illinois' religious exemption statute and its similarity of Colorado's. The counties sought to prove that the YMCA had not furnished sufficient proof of religious use for a tax exemption and argued that the case would be resolved against the YMCA under Illinois law. The counties cited cases in the Land of Lincoln's Court of Appeals that found "Christian service" as overbroad in constituting religious purpose for a tax exemption. The board ultimately decided that Colorado's statutes require "a different analysis" than those in Illinois, and that, under Colorado statutes, public officials may not inquire "as to whether particular activities of religious organizations constitute religious worship." The counties may now petition the Court of Appeals for judicial review. They have 49 days to file a notice of appeal. Hank Shell can be reached at 970-887-3334 ext. 19610.

County barred pot stores in Grand

Despite voters’ Nov. 2, 2010, decision to allow medical marijuana businesses in unincorporated Grand County, Grand County commissioners have voted against them. In a unanimous decision last week, county commissioners voted to not adopt a law allowing the cultivation, manufacturing and sale of medical marijuana and medical marijuana-infused products, and warehouses used to store medical marijuana, overturning voters’ decision to allow them. The reason, according to Grand County Attorney Jack DiCola, is “the law’s changed.” An April 2012 Colorado Court of Appeals decision found that a valid marijuana card or state authorization to operate a dispensary is “no defense” to a charge of possession of marijuana under federal law. “The state constitution and federal constitution are in conflict,” DiCola said. Despite the vote of the people, the attorney “does not believe that Grand County can allow medical marijuana operations as it is a violation of federal law,” states a June 12 memo from the county planning and zoning department to commissioners. “Further, the board of county commissioners takes an oath of when elected to office affirming they will support the Constitution of the United States,” the memo continues. “As medical marijuana remains a federal crime, it is the opinion of the county attorney that they cannot legally allow for medical marijuana facilities in unincorporated Grand County.” The commissioners’ decision does not affect the practices of caretakers – people who supply medical marijuana to a limited number of patients under state law. The county has no jurisdiction to regulate caretaking operations “because medical marijuana is a matter of statewide concern,” DiCola said. The county has been under a moratorium on medical-marijuana operations since Sept. 2009 to buy time for appropriate regulations with which to govern medical marijuana centers, operations and the sale of medical marijuana-infused products. A statewide two-year moratorium on new medical marijuana dispensary applications is set to expire July 1. According to Colorado’s Medical Marijuana Enforcement Division, there are about 4,000 pending applications in the state. Although there have been “inquiries,” there has not been any pending applications for a dispensary or related business in unincorporated Grand County, according to Grand County Planning Director Kris Manguso. – Tonya Bina can be reached at 970-887-3334 ext.19603

YMCA of the Rockies plans to appeal tax ruling

TABERNASH – The YMCA of the Rockies should be paying property taxes for both its Grand and Larimer county locations, according to a Board of Assessment Appeals decision released this week. The case was the latest in a series of property-tax appeals the YMCA has been involved in since 2005. If Grand County’s success in the case were to stick, the YMCA in Grand County would be required to pay about $1.98 million in property taxes dating back to 2002, according to Grand County Treasurer Christina Whitmer. About 60 percent of those funds would be due to the East Grand School District. But the YMCA is already planning to take the case to the Colorado Court of Appeals, according to YMCA spokesperson Holly Collingwood. “We were very surprised,” she said of the outcome. “At this point, we do intend to appeal. We truly believe we are a charitable organization. We are disappointed in the ruling because it didn’t appropriately apply Colorado law.” The loss would also mean paying Larimer County roughly $2.7 million in back property taxes. Lodging and recreation The YMCA of the Rockies has been setting aside tax funds in an account during the appeals process, during which it has not been required to pay property taxes, according to Collingwood. If the YMCA had to pay past and future taxes on its Rocky Mountain properties, ultimately, “It would hinder our ability to serve our mission,” she said. Officials in both Grand and Larimer counties have argued that YMCA operations in their respective counties should not be tax exempt for their lodging and recreation offerings, which compete with other lodging facilities offering similar amenities. The counties argued that although the YMCA offers religious and family oriented activities, this does not qualify them for exemptions. YMCA originally claimed its tax exempt status in December 2003, at which time the Property Tax Administrator granted a religious exemption for operating in a “religious” and “charitable” nature. The YMCA is a “Christian organization with a Christian mission. YMCA claims to provide charitable gifts by offering educational programs, creating a Christian environment including religious services, providing the Kidney Center, supplying handicap accessible facilities, helping establish young people in life through character development and lessening the burdens of government by providing facilities free of charge or for a nominal fee to government agencies,” reads the Board of Assessment Appeals factual findings. The 5,000-acre nonprofit 501(c)3 YMCA of the Rockies “year-round family vacation and conference center” in Grand County has 52 cabins, 173 lodging rooms, four yurts, 41 campsites, as well as staff housing, an indoor pool, gymnasium, a library, a skate rink, trails, dining halls, laundromat, chapel, conference facility, maintenance and administration building. Dueling appeals After Grand and Larimer counties successfully appealed the organization’s religious status in a 2006 case, the YMCA instead sought a charitable tax exemption for all of its Grand County property, save for the year-round staff housing property and the private concessionaire areas such as the photo park and horse stables. Contrary to a third ruling, the most recent ruling found that the organization is not entitled to the charitable exemption. The Grand County YMCA ranch employs about 280 seasonal summer workers, 50 full-time workers year-round, and about 90 summer volunteers. The lodging facilities available for rent are “purposely sparsely decorated, with the majority lacking televisions, to encourage family interaction,” reads testimony from Neil Nicholl, president of the YMCA of the USA. During the three-day June hearing in Denver, with Grand County Attorney Jack DiCola and Assistant County Attorney Bob Franek representing Grand County, Grand County Assessor Tom Weydert testified that he “does not consider YMCA to be a charity.” He, like other witnesses in DiCola’s case, compared the YMCA to other operations that are taxed. “Winding River Ranch is hundreds of acres in size and immediately adjacent to a National Park with a wide range of accommodations, including RVs, campers, huts, and full-facility cabins,” the order recounts Weydert’s testimony. The Grand Lake-area resort also offers religious facilities and services, cross-country skiing, nature educational activities and a staffed craft area, he said. Devil’s Thumb Ranch, a private for-profit resort, offers hiking, biking, fishing, interpretive programs and wedding areas for guests. It has a library, recreation room geared to kids, a pool and no televisions in rooms, according to testimony from Winter Park-Fraser Valley Chamber of Commerce Executive Director Catherine Ross. Although it is not considered a “religious”-based operation, the owners “donate extensively to the community,” she said. Both Ross and Granby Area Chamber of Commerce Executive Director Sharon Brenner said they market YMCA’s Snow Mountain Ranch the same as they do other lodging properties. The Inn at SilverCreek holds conferences and markets to families, youth groups and church groups. For government agencies, it makes conference facilities available at no fee or a nominal fee of no more than $100, said witness Cheryl Shipe, director of operations of Alderwood Management Group, which manages the Inn at SilverCreek. “YMCA is its largest competitor,” Shipe’s testimony reads. The Board of Assessment Appeals ruling was based on a “lack of persuasive evidence regarding participation of families in charitable activities” on the part of the YMCA, according to the Order. The Board also noted that “sufficient record-keeping and information on YMCA’s actual use of property” was not presented in a manner that proved their percentage of charitable use. “It is impossible to know exactly how many hours qualified for non-exempt use,” the Order reads. Although more than half of the local YMCA’s back property taxes would be collected by the East Grand School District, Superintendent Nancy Karas said the years of uncollected taxes would be obligated in various ways. It’s possible some of the money could come back to taxpayers in the form of a reduction in property tax, she said, for the portion of past school bond payments that would be covered by the YMCA. Exactly how much of the money would be leftover for general school-district operations has not yet been calculated, as the YMCA gears up for another appeal. – Tonya Bina can be reached at 970-887-3334 ext. 19603.

Citizens group questions Grand County attorney’s letter

A self-proclaimed citizen's transparency group has raised questions about a letter from Grand County Attorney Jack DiCola regarding County Commissioner James Newberry's double-dipping of mileage reimbursements. The group, Citizens for Transparency in Grand County Government, first brought to light last year that Newberry had charged both the county and the Colorado River Water Conservation District, of which Newberry is board president, for the same mileage to attend district meetings in Glenwood Springs. The 5th Judicial District Attorney's Office is investigating Newberry to determine if any criminal conduct occurred. Group spokesman Chas McConnell questioned the board at its Feb. 3 meeting about a Dec. 19, 2014, letter from DiCola to Jacob Scott, an investigator with the 5th Judical District Attorney's Office. The letter states that it is both DiCola and the board's opinion that Newberry did not violate the law or county policy. McConnell's questions focused on why the county attorney had written a letter to support a single commissioner. Commissioner Merritt Linke said that the 5th Judicial Distict Attorney's Office had solicited the information in the letter, and that the board had directed DiCola to draft the letter. Linke said the board had shared the opinion that Newberry hadn't violated any policy or law, though he did disagree with Newberry's actions. "I think that was wrong, and I think the policy needs to be changed," Linke said. DiCola said that Newberry had first advised him that someone from the 5th Judicial District Attorney's Office would contact him. "I didn't initiate anything," DiCola said. "It wasn't my idea." Newberry and Linke said they did not see the letter before it was sent, and Linke said he didn't like the "exact wording" of the letter. Linke said he would have omitted a portion of the letter that characterizes McConnell as having a "political agenda." McConnell has run for Newberry's commissioner seat twice, losing both times. Commissioner Kristen Manguso, who took office ilast month, said she did not agree with the letter "in any way shape or form." McConnell cites 'intimidation' McConnell also raised questions about what he referred to as "bullying and intimidation" of his family. Specifically, McConnell referred to an open records request on McConnell's wife that DiCola had filed. McConnell's wife is the business manager for the Fraser Valley Recreation District. When asked about the request, DiCola responded, "I don't have to answer any of Mr. McConnell's questions that I don't care to about my private business." Both Linke and Manguso told McConnell that they had heard about the request. "You should take that up with Mr. DiCola," Linke told McConnell. "I encourage you to." Hank Shell can be reached at 970-887-3334 ext. 19610.

Grand County Commissioners discuss severance, unemployment

The Grand County Board of Commissioners may revisit the issue of the county's severance pay and post employment insurance policies after a discussion at its June 17 meeting. The county's policy treats resignations and terminations from appointed officials the same, meaning in both cases, an appointed official will receive severance pay. "The bottom line is that we have a severance pay provision that's been in there for years and years and years, and unless you're convicted of a felony in connection with your employment, you get your severance pay," said Jack DiCola, Grand County attorney. DiCola informed the board that if they didn't want to pay severance to a particular employee in the future, they would have to change the policy. Though it was only briefly alluded to, much of the conversation seemed to center around the severance paid to former building official Scott Penson. Severance pay for hourly employees is reduced if that employee is terminated. Had Penson been terminated rather than resigned, his total severance would have been reduced by about $1,500 because he had previously worked as an hourly employee. "When somebody resigns or otherwise terminates an agreement with us, and they terminate and they resign, I think our liability is significantly lessened with regard to unemployment, with regard to other issues," Dicola said. Though the board mentioned holding a workshop to revisit the policies, it wasn't clear whether a workshop had actually been scheduled. The board approved Peter Rempel as the county's interim building official at its June 10 meeting. Rempel is the plans examiner for the building department. County Manager Lurline Underbrink Curran told the board that applications for the permanent position were being submitted and interviews would be scheduled. Hank Shell can be reached at 970-887-3334 ext. 19610.

Grand County sues Granby trustee over insurance claim

Grand County has filed a lawsuit against a Granby trustee over what it asserts was a fraudulently filed health insurance claim. A complaint filed against Charles LaBrake in Grand County District Court alleges that he was injured on June 10, 2012, while working for Willow Creek Logging LLC. LaBrake then fraudulently filed an insurance claim under the county's insurance policy, the complaint states. The county's insurance policy bars compensation for injuries that occur in the course of outside employment for wage or profit. The county is seeking $18,399.70 in damages. LaBrake said that he fell off of a logging truck and broke bones in his ankle. While in the hospital, LaBrake said he learned that Willow Creek Logging LLC did not have worker's compensation insurance. LaBrake was also working in detentions at the Grand County Sheriff's Office at the time, and filed a claim on the county's insurance. "Unbeknownst to me, there was a clause in the insurance policy that they don't have to pay any bills that are incurred by somebody working a job outside the sheriff's office and getting injured, so the claims were denied," LaBrake said. But only after the county had paid around $92,000 of LaBrake's medical bills, according to minutes from a June 2014 county commissioners meeting. DiCola told the board that LaBrake had turned the claim into the insurance company and "it was paid before Mr. DiCola caught it," according the minutes. DiCola also stated during the June 2014 meeting that Kohlwey had signed an agreement to repay the approximately $90,000 in medical expenses that the county had already paid. Kohley paid $46,165.87 to the county in December 2012 but failed to pay the remaining $46,000, according to the minutes. LaBrake said he still has around $300,000 in medical bills. "Mr. DiCola stated that he knows of no reason that the County should not go after Mr. Kohlwey because Mr. DiCola had Mr. Kohlwey sign an agreement to pay both individually and as Willow Creek Logging LLC," the minutes state. At that time, the Grand County Board of Commissioners decided that its issue was with Bruce Kohlwey, the owner of Willow Creek Logging LLC, rather than LaBrake, according to the minutes. "The big thing is Jack DiCola did not do his job, and it looks like once again the board is covering his a–," LaBrake said. The lawsuit contends that the county's reliance on LaBrake's representation that he wasn't injured while employed for wage or profit was "justified." LaBrake has an ongoing lawsuit against Willow Creek Logging LLC, he said. The county also has a lawsuit pending against Willow Creek Logging LLC, which also asks for $18,399.70 in damages. Hank Shell can be reached at 970-887-3334 ext. 19610.

County chooses new attorney

The Grand County Board of Commissioners announced that Alan Hassler has been selected to take the position of county attorney. The board announced the decision at its Tuesday, June 23 board meeting. "I believe, and I think these guys would concur that this guy has a tremendous amount of experience," said Commissioner Merrit Linke. A hiring panel interviewed finalists for the position last Thursday, June 18. Linke declined to release the names of the other finalists. Hassler, who will begin the first week of July, was previously a resident of Grand County, Linke said. As of press time, Hassler had not returned a request for comment. County Attorney Anthony "Jack" DiCola announced his resignation in February. His last day will be July 1. During the June 23 meeting, commissioners discussed paying DiCola a retainer of $3,000 for 12 hours each month following his departure from the county. The county would be billed whether the hours are used or not. The county would be billed $250 for each additional hour. For a complete story, check the Friday, June 26 edition of the Sky-Hi News.

New attorney a former Grand County resident

For Alan Hassler, Grand County's selection for county attorney, his new job will a bit of a homecoming. Hassler, who was named as County Attorney Anthony "Jack" DiCola's successor on Tuesday, June 23, grew up in Kremmling and lived in Grand County for 27 years. Hassler currently lives in Grand Junction with his wife Karla, where he runs a private practicing working primarily in real estate and business law, he said. "We had four very qualified applicants competing for this position and we felt Mr. Hassler was the best qualified fit for the county." wrote Commissioner Merrit Linke in a press release. "Mr. Hassler was extremely well prepared for this interview and was very familiar with the current issues facing the county. We felt this would allow for a very smooth transition into the position." Hassler graduated from West Grand High School and got his bachelor's degree in sociology from the University of Colorado, according to the press release. He received his doctorate from Washburn Law School in Topeka, Kan. After leaving Kremmling, Hassler worked for nine years as the assistant county attorney in Mesa County before starting a private practice handling contract work for counties and special districts, he said. During that time, Hassler represented the Town of Kremmling, Town of Hot Sulphur Springs, Kremmling Memorial Hospital District and others. Hassler has also served as the county attorney for Rio Blanco County. "I've always been attracted to government practice," Hassler said. "I think part of the attraction is that it's made to help a lot of people. A lot of the time we don't feel the government is helping us when the government is around, and I think working through the government is a good way to serve society." Hassler added that he's looking forward to an assured workload as county attorney. Hassler's first day will be July 6. Commissioners discuss retainer for DiCola The Grand County Board of Commissioners discussed retaining DiCola following his departure from the county at its June 23 meeting. "The reason that we are even entering into a conversation with this agreement is because of several ongoing cases that Mr. DiCola has a huge amount of historical knowledge about, and we don't want to just end that in the middle of the case," Linke said. "So that's why we have even brought up this conversation." The agreement would see Grand County continue to pay DiCola a $3,000 retainer each month for 12 hours of work. The retainer would be paid regardless of whether the 12 hours are used. The county would be billed $250 for any additional hour. It's unclear how long the county would pay to retain DiCola. Assistant County Attorney Robert "Bob" Franek questioned whether the 12 hours would roll over from one month to the next if DiCola didn't use them all. "What happens if he doesn't work the 12 hours?," Franek said. "That's the question I have. Does it roll over to the next month?" Commissioner Kris Manguso suggested letting Hassler review DiCola's retainer agreement, which other commissioners agreed with. The board will revisit the matter later this month. Hank Shell can be reached at 970-887-3334 ext. 19610.

Fees for employees addressed after multiple subpoenas

The Grand County Board of Commissioners has voted unanimously to reimburse legal fees for the county manager after she was subpoenaed to appear before a grand jury. The commissioners made the motion at their Tuesday, Aug. 19, meeting to enter into a contract with Haddon, Morgan and Foreman, a Denver-based law firm, for County Manager Lurline Underbrink-Curran's legal fees. Underbrink-Curran and several other county employees, including the county finance director and county treasurer, have been subpoenaed to appear before a grand jury, which is based in Routt County. A grand jury is a prosecutorial tool used to investigate possible criminal misconduct and may or may not issue indictments. They can also give a prosecutor a sense of a case's strength. So far, there has been no word as to what the grand jury is investigating or whether it has issued any indictments. In Colorado, all participants in a grand jury are sworn to secrecy. The fees agreed upon were for $425 an hour and would not exceed $10,000, said County Attorney Anthony "Jack" DiCola. County Finance Director Scott Berger would also be requesting reimbursement from the county, DiCola said. DiCola also recommended that county commissioners agree to reimburse any employee who is not immune from prosecution for their attorney's fees. "If in fact those employees are indicted then we will cross that bridge when we come to it, but it would be my recommendation then that we seek our reimbursement of those attorney's fees from the employees," DiCola said. Commissioners ultimately made a motion to cover attorney's fees for elected officials as well, though DiCola expressed some reservations about whether an elected official is technically an employee of the county. "If I'm asked to come on down and I have the criminal one, I expect that I would be represented by the taxpayers until I'm indicted," said Gary Bumgarner, county commissioner. "That would be my recommendation as well, but I'd like to cross that bridge when we come to it," DiCola said. "Maybe I'd never have to make that recommendation." The practice of covering attorney's fees for public employees and elected officials who are not indicted by a grand jury or are later found innocent isn't uncommon. Hank Shell can be reached at 970-887-3334 ext. 19610.