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.