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."