CHARLESTON — The West Virginia Supreme Court of Appeals has found in favor of University Park on an appeal involving University Park at Evansdale's tax dispute.
Justice Beth Walker delivered the court's opinion Nov. 8, according to the opinion obtained by The West Virginia Record.
West Virginia University (WVU) leased the property to University Park in 2013 for University Park to develop a student housing facility. University Park subleased the student housing back to WVU for the purpose of offering it to students for housing, according to the opinion.
The opinion states the residential facilities of University Park are managed and operated solely by WVU and that the sublease from University Park to WVU did not include certain retail/commercial premises.
"We consider for the second time the disagreement between the assessor of Monongalia County, Mark A. Musick, and UPE regarding a 2015 assessment that valued UPE’s leasehold interest in University Park at more than $9 million," Walker wrote. "Mr. Musick appeals the circuit court’s decision that based on the evidence presented at the Board of Equalization and Review (BER), the assessment of UPE’s leasehold interest for tax year 2015 was $0."
In the appeal, Musick argued that a previous decision, Maplewood Community v. Craig, was incorrectly decided and that because of that, the circuit court's application of the Maplewood rule was wrong.
The Supreme Court disagreed with Musick's argument.
Musick assessed the leasehold interest for University Park at just over $9 million in January 2015. University Park challenged that assessment, alleging that because the leasehold was not freely assignable or a bargain lease, the leasehold interest should be $0, according to the opinion.
At a BER hearing, the BER decided the issue involved valuation and not taxability and concluded that it lacked jurisdiction. University Park then appealed to Monongalia Circuit Court.
The circuit court concluded it lacked jurisdiction and believed it should be sent t the tax commissioner, but the state Supreme Court disagreed and remanded the case back to the circuit court.
The circuit court then ruled that University Park's assessment for the 2015 tax year was $0, to which Musick then appealed to the Supreme Court.
"Because the record before us demonstrates that Mr. Musick did not apply the proper standard for assessing leasehold interests and because he also agreed that the lease was not freely assignable, this court concludes that UPE showed by clear and convincing evidence that the 2015 valuation of the leasehold interest should be corrected to $0," Walker wrote. "Therefore, we affirm the circuit court’s ruling."
Attorneys Webster J. Arceneaux III and Lori D. Counts-Smith of Lewis, Glasser, Casey & Rollins, and Phillip M. Magro of Magro & Magro represented Musick.
James A. Walls and Joseph V. Schaeffer of Spilman, Thomas & Battle represented University Park.
With former Justice Allen Loughry Jr. suspended at the time the opinion was published, Justice Paul Farrell was sitting by temporary assignment. Loughry's resignation was effective Nov. 12.
West Virginia Supreme Court of Appeals case number: 17-0309