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."