West Tisbury officials warm to tax talks
By Dan Cabot - December 8, 2005
At last week's meeting of the West Tisbury selectmen, William Graham, who is suing the town before the Massachusetts Appellate Tax Board (ATB), found that at least two of the selectmen are willing to negotiate a settlement with him, with or without participation by the elected town assessors.
During the 45-minute session, selectman Glenn Hearn told Mr. Graham that he thinks the selectmen should step into the case and bypass the assessors completely. On the other hand, chairman of selectmen Jeffrey "Skipper" Manter said he wants the selectmen to negotiate a settlement with Mr. Graham and then put pressure on the assessors to accept it. Selectman John Early, the longest serving of the three selectmen, expressed reservations about Mr. Hearn's plan and commented that he would be "more than willing" to bring Mr. Graham's accusations to the assessors.
These new developments prompted Mr. Graham to conclude, "I feel for the first time that we're at least trying to grope towards something that might work. I think that's good news for everybody."
Mr. Graham is suing the town of West Tisbury before the ATB, asserting that his 2003 and 2004 property taxes are unfair. He owns 235 acres off Lambert's Cove Road, assessed at more than $50 million, and by his accounting his overpayments for 2003 and 2004 total $319,164. The case, which went to trial in March and still continues in post-trial briefs, is the longest-running in the history of the ATB and has cost West Tisbury nearly $300,000 to defend, much of the money not yet appropriated by the voters.
In September Mr. Graham offered to forgo his claim to a refund of his taxes, as well as his suit for a similar abatement in 2005, provided that the town reaches "a settlement which fixes the flaws in the mass appraisal system as it has been implemented in West Tisbury."
Ellen Hutchinson, attorney for the town in the case before the ATB, responded in September: "[Mr. Graham's offer] presumes that there are flaws. We don't think that there are any flaws."
Mr. Graham indicts
the assessors
At last week's meeting, Mr. Graham detailed what he believes are the flaws, sharply criticizing the assessors' office and especially Michael Colaneri, chairman of the assessors, and Jo-Ann Resendes, principal assessor in West Tisbury: "[Properties] are supposed to be valued by a system, but they aren't. It's not just my lots, it's lots throughout West Tisbury. They are valued by what the assessors think and what the principal assessor [Ms. Resendes] thinks the value should be. And she has made it quite clear that she is willing to twist, bend, and even destroy the system to go with her judgment.... There are no standards, there are no rules, there is nothing on which they can be questioned. That's not a system, that's a dictatorship."
In particular, Mr. Graham accused the assessors of fraud in changing the property record card of the Brian Roberts property, near his own. The card was changed from showing an ocean view to "no view." It is important to Mr. Graham's case, because he asserts that the card was falsified in order to make the Roberts property seem comparable to Mr. Graham's. The Roberts property had sold for a high price.
"We know who falsified [the card]," Mr. Graham said. "The testimony is in the record. Even Stephen Ferreira, the district manager of Vision Appraisals, testified that he did not believe the testimony of Jo-Ann Resendes or June Perry regarding that property record card. It's in the transcript. Their false testimony is in the transcript, and the falsified card is in the transcript.... Marilyn Brown, the head of the Bureau of Local Assessments at the DOR [Mass. Dept. of Revenue], testified that had she known a property record card had been changed falsely, [the town's 2002 revaluation] would not have been approved."
Jeffrey "Skipper" Manter, chairman of the selectmen, was careful to point out that the persons under attack by Mr. Graham were not present to defend themselves. But, the selectmen listened to Mr. Graham's charges, which are the substance of his case before the ATB, but did not express an opinion about them one way or the other. The ATB will probably not rule in the case before next summer.
Town's lawyer responds
Contacted by telephone, Mr. Colaneri said that he would have no public comment about Mr. Graham's charges until the ATB has ruled on the mass appraisal system as it is implemented in West Tisbury.
However, Ms. Hutchinson responded to Mr. Graham's comments to the selectmen by noting, "There are in fact a system and rules in place - they are promulgated by the Department of Revenue. Additionally, the DOR reviews all assessments to ensure that they reflect fair market value, and to ensure that the methodology used to establish fair market value is uniformly and consistently applied throughout the town."
In a telephone interview this week, Ms. Hutchinson went on to explain that the assessors' office is required to submit several statistical analyses and reports on a wide range of criteria to aid the DOR in its review, copies of which were submitted during the trial. She expressed confidence that the ATB will disagree with Mr. Graham's view of the assessors' methodology.
As to the charge of fraud in changing a notation on the Roberts property record card, Ms. Hutchinson said, "The issue of fraud has been refuted at the trial, and we are confident that the ATB will agree that there was no fraud."
Ms. Hutchinson agreed that the record card was changed, but she explained that it was changed because in addition to the three-acre "primary site" and the usual "excess acreage," it included an eight-acre "secondary site." No other property in West Tisbury, she said, is listed on its property record card as having a secondary site. The notation "view" had been attached to the anomalous secondary site. When the mistake was found and the correction was made (at the time the property was sold), an ocean view from the secondary site became just one of many factors that were used to mathematically determine the value of approximately 65 acres of "excess acreage," most of which had no view.
Ms. Hutchinson did concede that the recollections of both Ms. Resendes and Ms. Perry, concerning visits to the Roberts property, contradicted other testimony about when the old house was razed and the upper lot cleared. She had no explanation for the discrepancy, except to say that perhaps Ms. Resendes was confusing an earlier visit to the property with the date for which she gave testimony.
But as to the suggestion that the Roberts card was changed deliberately in order to increase the assessment of Mr. Graham's property, Ms. Hutchinson called it "absurd."
The failure to settle the case
Mr. Graham had especially harsh words for Mr. Colaneri, accusing him of acting without consulting the other assessors: "We've kept alive [the] myth that we're dealing with the assessors as a board, but we're not. We're dealing with Michael Colaneri."
Mr. Graham blamed Mr. Colaneri for the failure to reach a settlement, saying flatly, "Michael Colaneri has no interest in settling." He went on to complain, "I feel that I'm looking at an unblemished record of obstructionism on the part of the assessors' office. There hasn't been a chance that they've missed to delay, to hide things, to not settle."
Regarding a failed mediation session last spring, Mr. Graham, not bound by an agreement of confidentiality which he had not signed, explained, "In the spring, thanks to Mr. Hearn and Mr. Early, a mediation session was scheduled [with Ronald Rappaport and Lenny Jason]. . . . Before the session ended, the board [of assessors] voted to continue the mediation. But before we could meet again, Ellen Hutchinson e-mailed a letter to my lawyer that ended the mediation - [it] made me a take-it-or-leave it offer based on nothing that had been discussed at the mediation and allowed no counter offers. The letter purported to be from the assessors, and we know now that it wasn't. Ending of the mediation came about by Michael Colaneri acting on his own."
The selectmen's positions
All three selectmen indicated they were willing to continue talking with Mr. Graham.
Selectman Glenn Hearn expressed a desire to bypass the assessors: "This thing has been bothering me for quite a while. We as a board have been trying to answer your letter since September 8, and we have not been able to negotiate in good faith with the assessors to allow us to talk to you without all of these ground rules and et cetera, et cetera, et cetera.
"We [had been] under the impression that [for a settlement] we've got to get permission from the assessors. We were told by town counsel that the board [of selectmen] can step forward and just do it. And my proposal is that the three of us discuss that and discuss how we can move forward and get to mediation."
Mr. Hearn also proposed that the selectmen reach a settlement with Mr. Graham and present it to the voters in a warrant article at a future town meeting.
Mr. Early said he was uncertain whether the selectmen could bypass the assessors, as Mr. Hearn suggested. "I would like to know what the legal ability of this board might be to compel another duly elected board to do anything."
Mr. Early said he was also unsure whether even the voters could overrule the assessors, citing past experiences when actions taken by the voters were not approved by the state attorney general. "We could sit down, and we could structure an agreement, mutually acceptable to this board and to [Mr. Graham], and find ourselves in the dilemma of not having the legal ability to effectuate it."
However, Mr. Early also expressed interest in working out an agreement. "I'm more than willing to sit down with the assessors and ask the questions that Mr. Graham has exposed."
Mr. Manter stopped short of breaking with the assessors. He said the selectmen should continue to negotiate independently with Mr. Graham. "I agree that it's time to move forward and decide how we're going to work this," he said. "If we come up with a reasonable closure to this situation, I think the board of assessors would be under extreme pressure to go along, and I think they would."
Mr. Graham said that his offer of September still stands. When Mr. Manter and Mr. Hearn asked what he meant in his letter by "a settlement which fixes the flaws in the mass appraisal system as it has been implemented in West Tisbury," he replied, "If I were the king, I would say, 'Forget my back taxes. Forget my case. Bring in a knowledgeable person and redo this system from scratch and get rid of the people who have abused it for over 20 years.'"
