Fraud Charged in Tax Hearing
Attorneys for William W. Graham File Motion to Exclude Testimony of Key Witnesses for Town, Cite Ongoing Contradictions
By IAN FEIN
BOSTON - Alleging that West Tisbury assessors and their counsel may have deliberately withheld vital information from their own expert appraiser, attorneys for West Tisbury resident William W. Graham filed a motion yesterday to exclude the testimony of the town's two key witnesses in a complex legal hearing before the Massachusetts Appellate Tax Board.
"This is a tax case, but it is also a fraud case," declared attorney Richard Wulsin, who is representing Mr. Graham. "The behavior of the assessors shows that the fraud is ongoing."
In his motion, Mr. Wulsin cited "continuously changing and contradictory testimony" and charged that town assessors only provided their expert witness with maps detailing wetlands on Mr. Graham's property when they decided to change tactics in the hearing. The appraiser last week revised his report to include information from the maps, which he did not receive from the town assessors until June, more than a month after the hearing began.
Attorney Ellen Hutchinson, who is representing the town assessors, apologized to the board for the delays caused by the appraiser's revisions, but assured the board chairman that the failure to previously provide him with maps was simply an oversight. Ms. Hutchinson argued that disallowing the expert's testimony would be a "miscarriage of justice," and also took offense over allegations of misconduct.
"I'm tired of having my integrity and the integrity of my client questioned," Ms. Hutchinson told tax board chairman Anne Foley, who is presiding over the hearing. "To say it was a strategic decision is absurd."
Chairman Foley took the Graham motion on the withholding of information under advisement and had both experts proceed with their testimony. The appraiser submitted the final version of his revised report yesterday afternoon, and is set to begin the bulk of his testimony today.
Chairman Foley last week also denied the town's two previous motions to dismiss Mr. Graham's case on the grounds of a lack of evidence, as well as a motion to dismiss parts of the case based on a lack of jurisdiction.
Late last week the prolonged hearing, the longest and costliest residential property tax appeal ever to come before the state appellate board, turned controversial with the introduction of contradictory evidence that appeared to raise questions of perjury.
During cross-examination of West Tisbury principal assessor Jo-Ann Resendes, attorneys for Mr. Graham produced as evidence a signed document from town selectman John Early that directly contradicted her testimony.
At issue is whether Ms. Resendes and the town's third-party appraisal consultant visited a large waterfront property near Mr. Graham's lots on the other side of Paul's Point when they changed its property record in a way that sent other values in the area skyrocketing. Mr. Graham, who owns 235 acres at Mohu off Lambert's Cove Road, is challenging his assessments from fiscal years 2003 and 2004 when he paid the town more than a half-million dollars in property taxes. His case also charges that West Tisbury's system of land valuations and property tax assessments is fundamentally flawed.
Ms. Resendes testified last week that she saw no tree clearing and walked around the original house when she visited the property with June Perry, an employee of Vision Appraisal Technology Inc., in late March or early April 2001. Ms. Resendes described the house in detail and assured the tax board chairman that her recollection was from the visit and not from photographs in the assessors' records.
"When you visited the property, are you certain no clearing had occurred?" Mr. Wulsin asked Ms. Resendes.
"I took note of no clearing," she answered.
"And you're equally certain that you drove to the end of the driveway, got out of the car and walked around the house?" Mr. Wulsin followed.
"Yes," Ms. Resendes replied.
"Do you know John Early?" Mr. Wulsin asked, and then produced a document signed by Mr. Early under penalty of perjury. "Let's see whether this refreshes your memory about what you saw."
Mr. Early, who owns a construction company and worked as the general contractor on the large waterfront property near Paul's Point, provided Mr. Graham last week with an invoice that shows the original house was demolished in August 2000, seven months prior to Ms. Resendes' reported visit.
Before Ms. Resendes could reply or respond to the document, Ms. Hutchinson objected to it as hearsay.
"It seems to me this is a critical fact in this case," Mr. Wulsin argued. "I'm a little surprised that a fact clearly within the grasp of the town has become so convoluted."
Mr. Wulsin noted that Mr. Early testified on the first day of the trial, but Ms. Hutchinson objected to questions pertaining to his work as a contractor because he had been identified in the witness list as a selectman. In response to Ms. Hutchinson's hearsay objection, Mr. Wulsin re-subpoenaed Mr. Early as a rebuttal witness. Mr. Early is expected to testify in Boston later this week about the demolition of the house.
The significance of the contradiction about the property visit - aside from raising questions about possible perjury - goes to the heart of the allegations of fraud.
Attorneys for Mr. Graham argued in their opening statement that the assessors and their consultant deliberately falsified the property record of that nearby waterfront parcel by changing its classification from having a water view to no water view, which allowed them to nearly triple many of the other property values in the area, including those of Mr. Graham.
The town assessors initially said they changed the classification because the property was heavily wooded when they said they visited it in 2001. But witnesses last week openly acknowledged that the property did indeed have a view in 2001.
Chairman Foley zeroed in on the issue and aggressively questioned town witnesses about the changes to the disputed property record.
Before allowing Ms. Resendes to step down from the stand, Chairman Foley asked her whether she believes it is appropriate to change a physical characteristic of a property to hit a predetermined value. Ms. Resendes replied that in this instance she did not change the physical characteristic, but merely the factor that determines its value.
"Is a view a physical characteristic?" Chairman Foley asked.
"It's a description of a factor, not a physical characteristic," Ms. Resendes responded.
A visibly irritated Chairman Foley then produced a previous piece of evidence that showed the Massachusetts Department of Revenue audit of the West Tisbury assessors' revaluation in 2002. The audit lists "view" as one of the land adjustments - or physical characteristics - used by the town assessors.
Chairman Foley asked Ms. Resendes again: "Is view a physical characteristic?"
Ms. Resendes replied: "The presence or absence of a view, yes, is a physical characteristic."
Chairman Foley had similar questions for Vision Appraisal district manager Stephen Ferreira, who testified last week and again yesterday as an expert witness for the town. Mr. Ferreira acknowledged that the change to the description of the property was incorrect, but defended the value that the change produced.
"I want to understand your role in the change of the description," Chairman Foley said to Mr. Ferreira. "You're saying you had no role. But what would you have done as the project supervisor if this had been brought to your attention - that the change to the description did not reflect the reality of the property?"
Mr. Ferreira replied that he would have asked that it be corrected.
"If it was incorrect, should you have brought it to the department of revenue's attention?" Chairman Foley asked.
Mr. Ferreira said the state is typically not concerned with property descriptions.
"It was the testimony of the state bureau chief last week that changes to a description that didn't fit with the reality of the property would not have been approved," Chairman Foley said.
"There's no doubt that the description was a poor choice of words," Mr. Ferreira said later.
"Is it a poor choice of words, or is it a physical characteristic that has been changed to be different than the physical characteristic that was on the property?" Chairman Foley replied.
In their motion filed yesterday, attorneys for Mr. Graham asked that Mr. Ferreira's testimony be excluded from the record. They charged he has a conflict of interest and therefore should not be accepted as an expert witness.
Through yesterday, Mr. Ferreira has attended 24 of 26 days of hearings to either testify or advise Ms. Resendes and Ms. Hutchinson. According to the assessors' contract with Vision Appraisal, the town will pay Mr. Ferreira $700 per day for his time during the hearing.
"An independent expert should have no stake in the outcome of the case and no bias for or against any of the parties," Mr. Wulsin argued in his motion. "Vision Appraisal, while not a named party, clearly has an interest in the outcome of the case."
Mr. Ferreira testified he does not believe a ruling against the town in this case would have a negative impact on Vision Appraisal or reflect on his personal reputation.