Decision Set for Today in Graham Tax Case

By IAN FEIN

The Massachusetts Appellate Tax Board is expected to rule this morning in favor of the town of West Tisbury and against resident William W. Graham in a property tax appeal that began three years ago and has attracted attention across the commonwealth and beyond.

It is understood that the appellate tax board is set to vote this morning on the Graham decision, and that the decision heavily favors the town. A source close to the tax board, who did not wish to be named because of the confidential nature of the deliberations, confirmed yesterday that a decision has been drafted and that board members have been briefed on the details. All that remains is a final vote.

A favorable ruling would be a key victory for the West Tisbury assessors, whose practices were put under a spotlight by the high profile appeal that challenged the way they conduct townwide revaluations. The case roiled the town of West Tisbury this year, and has been followed closely by state officials and assessors throughout the region.

An appeal of the tax board decision is all but guaranteed; Mr. Graham stated publicly this winter that he expected to take the case to the Massachusetts Court of Appeals, the next step in the judicial process after a hearing before the appellate tax board.

Mr. Graham, who owns 235 acres at Mohu off Lambert's Cove Road, is challenging his $50 million assessments from fiscal years 2003 and 2004, when he paid the town more than half a million dollars in property taxes. Subsequent appeals of his 2005 and 2006 property values have also been filed.

Parties on both sides of the case have acknowledged that it is a highly unusual property tax appeal. Attorneys for Mr. Graham charged that West Tisbury assessors undermined the integrity of their valuation system by intentionally manipulating property data, while the town attorney countered that Mr. Graham never proved that the values placed on his property were wrong.

Testimony in the case spread out over four months in Boston last summer, making it the longest and costliest residential property tax hearing in the history of the commonwealth. West Tisbury taxpayers have spent more than $200,000 in legal bills on the case. Mr. Graham has not disclosed his personal expense, but he has said that if the case is found in his favor, he will not enforce a pecuniary judgment against the town.

At trial last summer Mr. Graham's attorneys speared through the complex and arcane system for determining real property values in town by poring over property record cards and putting real estate experts on the stand, as well as a third party consultant from Northboro hired by the town to conduct townwide revaluations. Among other things, Mr. Graham's attorneys showed that the town had failed to give him credit for extensive wetlands on his property, and they alleged that the town's principal assessor committed fraud when she intentionally altered a property record card for an 80-acre property near the Graham estate. The change allowed assessors to triple other property values in the Paul's Point area at Lambert's Cove.

The special attorney who represented the town in the case responded with her own barrage of information and experts, using comparable sales to support the town assessments on the Graham property and claiming that Mr. Graham had failed to meet his burden of proof.

Final briefs were filed in the case in late March, followed by response briefs a month later. The record of the case is voluminous; the town's closing brief alone is 250 pages long.

The case also sparked turmoil within the appellate tax board, and the decision this week presages the imminent departure of board chairman Anne Foley, who presided over the Graham hearing last summer.

A quasi-judicial state agency that hears and decides property tax appeals, the appellate tax board is made up of five members who are nominated by the governor of the commonwealth and voted on by the governor's council, an eight-member elected board that considers judicial nominations.

After surviving an attempted political coup earlier this spring, Ms. Foley stayed on at the tax board primarily to rule on the Graham case. Since the internal struggles became public in late March, however, board employees say her presence within the agency has been nearly nonexistent.

Ms. Foley cleaned out her office two weeks ago but returned last week to help staff attorneys finish the decision in the Graham case. And it is understood that prior to last week, the chairman played a minimal role in writing the final decision for a case that she presided over in such excruciating detail last year.

Her waning participation in the case in recent weeks stands in stark contrast to the judicial oversight she exercised during the Graham hearing, where she was actively involved in the proceedings and often interrupted attorneys on both sides to directly question witnesses or request additional documents.

After a 20-year career as a tax attorney, most recently as a litigator in the Massachusetts Department of Revenue, Ms. Foley was appointed to her tax board post last March. She drew ire from some of her fellow employees when, only weeks into the job last spring, she decided to take on the Graham case as her first tax board hearing, instead of leaving it to a more experienced board member.

While Ms. Foley alone presided over the Graham case, by its own rules the entire five-member tax board will vote on the decision tomorrow morning. Ms. Foley did not return a telephone call for comment yesterday.

When it decides a case, the tax board releases a short ruling that simply lists the fair market values that it has determined for the parcels in question. The Graham case involves seven separate parcels. Written findings of fact are not released for another six months to a year, though they may come sooner in this case.

Gov. Mitt Romney's office, meanwhile, has in recent weeks interviewed candidates seeking appointment to the appellate tax board, including those to replace Anne Foley as chairman.

A spokesman for Governor Romney yesterday declined to comment on the tax board appointment.