Chairman Suspends Tax Hearing Until Attorneys Agree on View

By IAN FEIN

In a surprise decision this week, the chairman of the Massachusetts
Appellate Tax Board suspended a complex West Tisbury tax hearing until
both parties agree on a plan to visit the Vineyard properties in
question and take testimony from two more Island witnesses.

At press time yesterday attorneys on both sides were locked in a
legal standoff and it remained unclear when the hearing would resume.

The unexpected ruling followed motions filed by the town
assessors' attorney to dismiss two of the theories argued in the
case, on grounds of a lack of evidence.

West Tisbury resident William W. Graham, who owns 235 acres at Mohu
off Lambert's Cove Road, is challenging his property tax
assessments from fiscal years 2003 and 2004. Attorneys for Mr. Graham
have argued that the assessors' methods to determine land values
and property taxes in West Tisbury are fundamentally flawed.

"Mr. Graham must establish the fair market values of his seven
properties . . . and must establish an intentional policy or scheme of
valuing properties at a lower percentage of fair cash value than his
property. We would suggest that he failed to do so," attorney
Ellen Hutchinson, who is representing West Tisbury assessors, told the
tax board chairman Tuesday.

"There is simply no evidence that the assessors engaged in an
intentional widespread scheme of discrimination," she declared.

After exchanges between attorneys and a half-hour of deliberations
in her chambers, Chairman Anne Foley denied the motions as premature
because attorneys for Mr. Graham had not finished submitting evidence.
Chairman Foley further ruled that the town did not have to present its
defense until Mr. Graham's side of the case was complete.

Attorneys for Mr. Graham concluded the bulk of their case Tuesday
when Mr. Graham left the stand after eight days of testimony. They have
questioned eight witnesses and presented more than 200 pieces of
evidence thus far, but reserved their right to conduct on-site views of
the West Tisbury properties, question elected assessor Stanton Richards
and call Island landscaper Brian Abbott as a rebuttal witness.

Attorney Richard Wulsin, who is representing Mr. Graham, argued the
town should present its defense prior to a Vineyard visit. A motion to
dismiss with a direct verdict is a frequent legal tactic, Mr. Wulsin
said, which the tax board usually takes under advisement and then
proceeds with the hearing.

Moreover, Mr. Wulsin said the revised timeline violates a prior
agreement between the tax board and the town.

Before the first day of the hearing in May, Ms. Hutchinson filed a
motion to quash the subpoenas of elected assessors Michael Colaneri and
Mr. Richards because the trip to Boston to testify would be a hardship.

Ms. Hutchinson said Mr. Colaneri and Mr. Richards have been elected
assessors in West Tisbury for more than 20 years. But she argued that
they only work as assessors for two to three hours per month and thus
would not provide meaningful evidence beyond that obtained through the
testimony of principal town assessor Jo-Ann Resendes.

Chairman Foley ordered Mr. Colaneri to testify in Boston, which he
did during the first week of the hearing, but added that Mr.
Richards' testimony, if deemed necessary, would be taken on the
day of property viewing. Chairman Foley ordered the view on the Vineyard
to occur within two months of the end of the hearing.

Mr. Wulsin saw the revised timeline as an alteration of that order
and agreement.

"We're all up here. To now say we have to wait for this
trip is a waste of everybody's time," Mr. Wulsin said.
"The town is saying they want to change the rules halfway through
the trial."

Ms. Hutchinson said that when she agreed to the previous timeline,
she did not believe it precluded her right to file a motion for a direct
verdict.

"It was never my intention to waive our rights to test the
validity of the evidence," Ms. Hutchinson told Chairman Foley.

Ms. Hutchinson said Mr. Graham's case failed to provide
sufficient evidence to prove two positions pressed by his attorneys.

Attorneys for Mr. Graham have argued multiple theories in the
complex case, which tax board officials say is the longest residential
property tax appeal in the history of the commonwealth. The case poses
large financial implications for West Tisbury.

One theory, known as disproportionate assessment, raised the
prospect that West Tisbury assessors systematically and intentionally
valued Mr. Graham's properties at a higher percentage of fair
market value than other properties in town. Along with showing an
intentional scheme, proof of this theory would require that the other
properties be sufficient in number to determine statistical validity.

"There is no doubt that Mr. Graham offered dozens and dozens
of property record cards [as evidence]," Ms. Hutchinson said.
"But I don't think the appellate tax board can point to the
properties Mr. Graham supposedly relied upon to support his
theory."

Ms. Hutchinson argued that Mr. Graham failed to provide sufficient
evidence to determine the fair market value of his properties. That
argument is linked to a second theory, called comparative assessment.
The comparative assessment theory seeks to prove assessors overvalued a
property as compared to similar properties in town.

"The comparative assessment analysis was neither ample, nor
did it constitute substantial evidence," Ms. Hutchinson said.
"Instead, the methodology was grossly flawed."

Ms. Hutchinson said Mr. Graham's case did not adequately
establish comparisons between properties or make required adjustments to
accommodate for differences between them. Mr. Graham also compared only
land assessments, she said, even though the tax board has ruled
repeatedly that a taxpayer cannot win a case merely by showing his land
is overvalued.

In his eighth and final day on the stand, Mr. Graham offered one
more comparison to his properties: the value of his 50-acre parcel with
frontage on the North Shore and James Pond compared to a nearby 80-acre
oceanfront parcel that sold for $12 million in 1999.

Prior to the 2002 revaluation, West Tisbury assessors valued his 50
acres at $5 million and the nearby 80 acres at $7 million. In 2003 and
2004, they valued Mr. Graham's 50 acres at $17 million and the 80
acres at $13 million.

Attorneys for Mr. Graham have argued the comparison between the two
properties changed when assessors allegedly falsified the property
record card of the 80-acre parcel to reclassify it from having a water
view and 11 acres of ocean frontage to having no water view and only
three acres of ocean frontage.

The change allowed assessors to use a more expensive waterfront sale
to determine the market near the Paul's Point area, Mr. Graham
testified. The town has countered that the other sale was more
indicative of the market, as justified by subsequent waterfront sales in
the area, and that the 80-acre parcel did not have a view in 2001.

Mr. Graham testified that if the assessors used the other sale
without altering the 80-acre record, "then at least we would have
had an honest assessment system." Ms. Hutchinson objected to his
statement.

"I've testified and can support with other witnesses
that the view was cleared by the middle of 2000. The assessors know
that, and I can prove that they know that," Mr. Graham declared.
"They certainly listed it as having a view in 2000, but not having
a view in 2001, when the view was clearly there for everyone to see.

"I don't know what to call that - other than
dishonest."