WEST VIRGINIA RECORD

CHARLESTON – Turning a Berkeley County farm into an organic farming community lifted the value of an acre from $128 to $192,000, and the county gets to keep two years of the boost in property taxes.

On March 31, the state Supreme Court of Appeals upheld assessor Preston Gooden in his valuation of the 16 acre Broomgrass subdivision for 2006 and 2007.

Developer Purple Turtle, which sold one acre lots at an average of about $192,000, pleaded that buyers paid primarily for amenities rather than land.

Circuit Judge David Sanders agreed. He trimmed assessments to $40,000.

The Justices reversed Sanders but left open the question of amenities.

They ruled that Broomgrass owners had to pay what Gooden assessed for 2006 and 2007 because they botched their appeals to the county commission.

Owners can appeal assessments for 2008.

Purple Turtle bought a 320-acre farm in Gerrardstown tax district in 2004. For 2005 the county valued it at $40,900, about $128 per acre.

Purple Turtle subdivided 16 single acre tracts from the property and marketed them as an organic farming community.

For farming purposes Purple Turtle promised dirt, a tractor and a barn.

For leisure purposes it promised a multi purpose ball field and a 25 meter pool with spa, bath house and cabana.

Purple Turtle offered lots at $175,000 to $225,000. It sold four at $205,000, four at $195,000, and one at $185,000.

Gooden fed the numbers into appraisal software and obtained assessments of $192,000 per acre for 2006.

Owners protested to county commissioners, acting as board of equalization and review. They claimed six similar sales established a $40,000 value.

Purple Turtle argued that it set prices above the market in order to preserve the farm.

Gooden answered, "Because of its uniqueness, Broomgrass does not compare to other subdivisions, so we appraised them at the market they created."

County commissioners upheld him. Purple Turtle and buyers sued in circuit court but they didn't attach a copy of the record in 30 days as state law required.

Gooden and the county held their position for 2007 and again the owners sued. Again they didn't attach the record.

Gooden moved to dismiss for failure to attach the record. Sanders denied the motion.

Gooden petitioned the Supreme Court of Appeals for a writ of prohibition, and the Justices denied it.

The owners moved for summary judgment on both years. In 2007 Sanders granted it.

Gooden again sought relief at the Supreme Court of Appeals. The owners admitted they didn't attach records but claimed they committed a harmless error.

The Justices enforced the law to the letter.

"Where the petition for appeal, though presented during the designated 30-day period, is not accompanied by the record from the proceedings below and such record is not provided within 30 days, the appeal has not been properly perfected and must be refused," their unsigned opinion read.

They reminded Sanders that if owners continue the litigation they must prove error by clear and convincing evidence.

Chief Justice Brent Benjamin reserved the right to file a concurring opinion.

Floyd Sayre III of Bowles, Rice, McDavid, Graff and Love in Martinsburg represented Gooden.

Kenneth Barton Jr. and Dawn Alexander of Steptoe & Johnson in Martinsburg represented owners.