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No. 34423 - Stone Brooke Limited Partnership v. Sisinni, et al.
No. 34424 - Heathermoor Limited Partnership v. Alongi, et al.
No. 34863 - Pine Haven Limited Partnership, et al.v. Adkins, et al.
Benjamin, Chief Justice, concurring:
As I did earlier this year in In re: Tax Assessment Against Purple Turtle, LLC,
et al. v. Gooden, 223 W.Va. 755, 679 S.E.2d 587 (2009) (No. 34276) (C.J. Benjamin,
dissenting), I again write separately to underscore my belief that the disparity regarding the
proof burdens of the State and of its citizens in property tax assessment cases in West
Virginia is constitutionally impermissible. Herein, as stated in Syllabus Points 5 and 6, the
majority again establishes the taxpayer's burden in tax assessment challenges to be by clear
and convincing proof _ a standard far more difficult to meet than the mere preponderancy
burden which the majority establishes for the State. See In re Tax Assessment of Foster
Foundation's Woodlands Retirement Community, 223 W.Va. 14, 672 S.E.2d 150 (2008) (J.
Benjamin, dissenting); See also, Mountain America, LLC v. Huffman, ___ W.Va. ___, ___
S.E.2d ___ (2009) (No. 34426) (2009 WL 4110951) , at footnote 18.
In this case, however, I conclude that even applying the lesser preponderancy
burden to these taxpayers would not cause a different result from that set forth in the majority
opinion. Therefore, because I believe that these taxpayers did not meet their burden of
proving that the assessments resulting from the appraisals at issue were wrong by a
preponderance of the evidence, I believe the majority's conclusion to be correct and I concur
in its result.