Attorneys Trade Charges in Graham Property Case; Closing Legal
Briefs Filed

By IAN FEIN

In closing briefs filed at the Massachusetts Appellate Tax Board
this week, attorneys for West Tisbury resident William W. Graham argued
that flaws and errors by town assessors warranted hundreds of thousands
of dollars in tax relief, while the town's attorney countered that
Mr. Graham never proved that the values placed on his property were
wrong.

"If the assessors simply adjust the factors for each property
in order to hit the sale price . . . then there is no real system of
assessment," wrote Barnstable attorney Richard Wulsin, who is
representing Mr. Graham in the case. Mr. Wulsin charged in his 75-page
brief that West Tisbury assessors intentionally manipulated their own
system by altering property records to match predetermined values.

Woburn attorney Ellen Hutchinson, who is representing town
assessors, argued that, instead of offering evidence that assessors
overvalued his property, Mr. Graham chose to attack the revaluation
process as carried out in West Tisbury. "There was not one shred
of evidence that Graham had any knowledge as to the complex process of
carrying out the West Tisbury [fiscal year] 2002 triennial
certification," Ms. Hutchinson wrote in her 250-page brief.

Both attorneys acknowledged in their briefs that this was not a
typical tax case.

Mr. Graham, who owns 235 acres at Mohu off Lambert's Cove
Road, is challenging his $50 million assessments for fiscal years 2003
and 2004, when he paid the town more than a half-million dollars in
property taxes. He has stated publicly that, if the case is found in his
favor, he will not enforce a pecuniary judgment against the town.

Testimony in the case spread out over four months in Boston last
summer, followed by five days of view inspections on the Vineyard last
fall. The case became the longest and costliest residential property tax
hearing in the history of the commonwealth.

Ms. Hutchinson made reference to the length in her brief, and noted
that the quality of evidence is not measured by its quantity.

"While it might be rather amazing to think that after 36 days
of trial, five days of views and hundreds upon hundreds of exhibits, the
appellants failed to meet their burden of proof, a detailed review of
the evidence proffered by the appellants must lead the appellate tax
board to that undeniable conclusion," she wrote.

Both parties now have until the end of April to file response
briefs, which will then start the clock for a final appellate tax board
decision. The board historically issues decisions within three to six
months.

Events at the appellate tax board this week, however, clouded
circumstances surrounding an outcome and raised the possibility that the
case may have to be retried.

In their briefs this week, attorneys on both sides summarized their
arguments before the tax board and rebutted certain claims from the
other party. Both attorneys also sought to discredit the testimony and
opinions of the other's expert witness.

Mr. Wulsin cited testimony from a Massachusetts Department of
Revenue employee suggesting that West Tisbury assessors frequently alter
data on property records to bring assessments closer to sale prices.
"Only if the integrity of the data is maintained can worthwhile
comparisons be made between properties that have sold and properties
that have not," Mr. Wulsin wrote.

He repeated earlier allegations that town assessors altered the
property record of an 80-acre lot near the Graham property in a manner
that allowed them to triple property values in the Paul's Point
area. Assessors and their third-party consultant, Vision Appraisal
Technology Inc. of Northboro, changed the description of the property,
owned by Brian Roberts, from being a water view lot to one of having no
water view.

"The change in the condition factor of the Roberts card was
fraudulent. It did not reflect the physical reality of the Roberts
property," Mr. Wulsin wrote. "Had the bureau of local
assessments within the Department of Revenue known of the change, the
town would not have received certification for the [fiscal year] 2002
revaluation."

A key aspect of the case, as it played out in Boston last summer,
questioned why the assessors changed the Roberts property record in
2001. At times the assessors said they changed the view description
based upon a visit to the property, but witnesses offered conflicting
accounts that cast doubt on whether the visit actually took place. Mr.
Wulsin in his brief said that, based on the evidence, it was clear there
was a view from the property and that the purported visit did not occur.

Ms. Hutchinson in her brief made little or no mention of the view or
visit. She instead argued that assessors changed the Roberts property
record to bring it in line with the valuation model used throughout West
Tisbury, and suggested that the property had been valued differently as
a mistake in the past.

She strongly rejected the allegations of fraud. "[The]
appellants sunk to the lowest level possible and chose to impugn the
integrity of the assessors and Vision Appraisal, by accusing them of
committing fraud," Ms. Hutchinson wrote. "The appellate tax
board must reject this insulting, degrading and ridiculous
conclusion."

Mr. Wulsin in his brief also repeated allegations that West Tisbury
assessors inconsistently value wetlands in town. "Some taxpayers
have their wetlands valued at $500 per acre; some do not," he
wrote. "This inconsistent treatment is not an honest mistake, but
is instead intentional."

While on the stand before the state tax board last July, Mr. Graham
testified that if he were given credit for his wetlands, and if the
Roberts property record had not been altered, the assessors would have
valued his property at roughly $20 million, instead of $50 million. That
difference in value would have resulted in a savings to Mr. Graham of
roughly $320,000 in taxes.

Ms. Hutchinson in her brief challenged the ability of Mr. Graham to
offer such proposed assessments, and also questioned his integrity.
During cross-examination at the tax board, Mr. Graham revealed that a
private appraiser in January 2002 valued two of his seven lots at
substantially higher numbers than he believed to be fair assessments.
Ms. Hutchinson argued that Mr. Graham's admissions destroyed his
credibility as a witness, and that the appellate tax board should raise
the assessments of those two properties to the appraised values.

Ms. Hutchinson also argued that attempts by Mr. Graham and his
attorneys to compare his property values to others were fatally flawed,
and that his claims of overvaluation were unsupported by substantial
evidence.

Both attorneys offered harsh criticism about the other's
expert witness.

Land Vest appraiser and longtime Concord assessor Jay E. Closser,
whom Mr. Graham hired to study the West Tisbury 2002 revaluation as it
affected his properties, testified in June that assessors damaged the
integrity of the town's land values when they manipulated data on
property records. Ms. Hutchinson in her brief called Mr. Closser a good
soldier, and said that his report lacked independent research.
"Closser's analysis was built like a house of cards -
so fragile that with the slightest prodding it would collapse,"
Ms. Hutchinson wrote. "The assessors prodded; Closser and his
analysis collapsed."

During cross-examination, Mr. Closser acknowledged that subsequent
sales in the Paul's Point area supported the assessors'
numbers. Ms. Hutchinson in her brief highlighted those subsequent sales.

"Of the 10 [Vineyard] properties that sold for more than $10
million between 1989 and 2004, five of them were located in the Graham
neighborhood," she wrote. "This fact is amazing and stunning
in its significance."

Mr. Wulsin also used the subsequent sales to rebut the work of
Wareham appraiser Kenneth J. Croft 3rd, whom the assessors hired as
their expert witness. Mr. Croft valued the Graham properties at more
than $64 million, relying heavily on those other sales in the
neighborhood.

In his brief Mr. Wulsin argued that Mr. Croft failed to adequately
investigate the facts used in his appraisal, and suggested that his
"most glaring error" came in mischaracterizing sales as
comparable market transactions, when four of the five subsequent sales
in the neighborhood involved abutters or relatives of abutters.

"Mr. Croft freely ignored information that would have led a
reasonable person to view these sales as what they were, a group of
brothers assembling contiguous properties to create a family
compound," Mr. Wulsin wrote. "Mr. Croft was doing just what
an expert should not, ignoring facts and torturing logic to reach the
results his client desired."

Mr. Wulsin also listed numerous mistakes found throughout the Croft
report and appraisal, some of which Ms. Hutchinson acknowledged in her
own brief.

"Were mistakes made in the Croft appraisals of the seven
properties? Yes, we cannot deny that," Ms. Hutchinson wrote.
"But his methodical approach, his research, his thoroughness, his
well supported adjustments and conclusions, even with the errors, were a
manifest and welcome contrast to the evidence presented by the
appellants."