West Tisbury voters will revisit legal bills

By Dan Cabot - January 5, 2006

On Tuesday this week, the West Tisbury selectmen signed the warrant for a special town meeting on Jan. 17. The warrant contains several articles proposing changes to the zoning bylaws and a citizen petition to define a town-meeting quorum as five percent of registered voters, and the town may also hear a report from the town hall building committee.

However, most of the debate is likely to concern articles seven through 12, expenses connected with the town's defense against a lawsuit by William Graham before the Massachusetts Appellate Tax Board (ATB).

Mr. Graham, who owns property off Lambert's Cove Road assessed at more that $50 million, contends that his 2003 and 2004 property assessments were unfair. The residential property case, the longest-running in the history of the ATB, has proved much more costly than anticipated.

Voters at a November town meeting rejected two articles totaling $255,000, most of which was for expenses connected with the case. Because the expenses were incurred without prior appropriation, some speakers at the November meeting argued that the bills, contracted illegally, should not be paid at all. Others felt that the assessors should have settled with Mr. Graham before the case went to trial. The finance committee (FinCom) voted not to recommend the articles, but cited numerous questions raised by selectman Glenn Hearn about the bills themselves. FinCom chairman Sharon Estrella told the selectmen in November, "I'm not comfortable voting an amount of money and then waiting for you to decide whether or not it's okay to pay. I would rather wait, answer the questions, get everything right . . . come back to us and ask us for the money."

To that end, the selectmen have held meetings and other negotiations with the three vendors involved: Ellen Hutchinson, the lawyer representing the town before the ATB; Coleman and Sons Appraisal Group, who independently appraised Mr. Graham's property; and Vision Appraisal Technologies, for 15 years the town's consultant in the state-required triennial revaluation. As a result the total has been reduced from $255,000 to $169,000, with another $15,000 to be added to the town's legal budget for other purposes.

Two warrant articles become six
In November, the vendors' bills were lumped together in two articles, one for FY05 and one for FY06. In two weeks, voters will face three articles concerning Ms. Hutchinson's fees, two for Vision Appraisals, and one for Coleman & Sons. As in November, all the funds are to be appropriated from free cash.

The smallest amount voters will be asked to pay on Jan. 17 is $12,000 to Vision Appraisals. The bill for testimony and consultation at the ATB hearings was originally $31,000, but Kevin Comer, president of Vision, told the West Tisbury selectmen last month that in view of his long relationship with the town, he would accept $12,000, which he said would cover his expenses only. Selectman John Early called the offer "more than fair." Of the total, $5,700 was expended in FY05 and will require a nine-tenths vote to pass. A simple majority is required for $6,300 in the current fiscal year.

The voters will be asked to pay $47,000 to Coleman & Sons Appraisal Group, the independent appraisal firm that valued the Graham properties as a part of the town's defense. The selectmen began negotiating Coleman's bill, which was for $72,475, on Nov. 30, but reached no agreement. Subsequent to the meeting, the town made an offer to settle for $37,000, if the voters agree. Martin Coleman, president of the firm, in a letter dated Dec. 12, offered to reduce his bill to $65,000. Mr. Coleman noted that he is prepared to sue the town if he is not paid, adding, "If we have to undertake litigation, in addition to the amount owed, I will also seek to be reimbursed for all expenses, interest, attorney's fees, as well as seek triple damages for breach of contract."

At a meeting with the FinCom last week, the selectmen determined to raise their offer to $42,800, but at the warrant-signing on Tuesday, on the advice of attorney Richard Manley, the selectmen again raised their offer, to $47,000, which Mr. Manley said Mr. Coleman will accept.

"Get it in writing," grumbled Mr. Early.

Attorney Ellen Hutchinson
Ms. Hutchinson's bills make up the bulk of the costs of defending the town against Mr. Graham's suit and will likely produce the most debate, partly because the sums are large and partly because some in town feel that the assessors should have settled with Mr. Graham, or asked the voters' permission before going forward, as required by state law. Her fees for work already done originally totaled $84,000, which she said already included a 25 to 30 percent discount. She explained at a meeting with selectmen, "In working for cities and towns - towns have limited budgets - you can't bill every hour that you spend working on a case." However, in subsequent negotiations, she agreed to further reduce her bill to $75,000, which voters will see in two parts: $19,223 for FY05 (nine-tenths vote required) and $55,777 for FY06.

Still another Hutchinson article is for $35,000, "for anticipated costs of legal expenses to Ellen Hutchinson Esq. . . . This sum is a "not to exceed amount" needed to complete the current case [before the ATB]."

The FinCom voted to approve the appropriation of funds for Ms. Hutchinson to continue the town's defense in the Graham case. FinCom member Alexander DeVito told The Times, "We need to see this through, and Ms. Hutchinson is the person to do it."

Nevertheless, some members of the FinCom still have questions about her past-due bills, as well as the ones from Vision and Coleman. According to Mr. DeVito, no member of the FinCom has expressed the opinions that the town should avoid its bills just because they are technically illegal, but the committee voted not to recommend paying the bill from Vision Appraisals, on the grounds that Vision has as much at stake in the case as the town does and was really representing itself. The FinCom deadlocked 2-2, with member James Powell absent, on the two other articles which ask for payment to Ms. Hutchinson. Two members ask for better itemization; two are now ready to pay. They also have not yet made a recommendation on the most recent dollar amount in the Coleman & Sons warrant article. If the full committee is able to meet next week, they may have further recommendations to make from the floor on Jan. 17.

Other town meeting business
At the Jan. 17 town meeting, voters will also be asked to vote, "To see if the Town will vote to adopt the following by-law: At any meeting of the inhabitants of the town qualified to vote in town affairs, the number of voters necessary to constitute a quorum shall consist of not less than five percent (5%) of registered voters of the town at the time of said meeting, but a number less than a quorum may from time to time adjourn such meetings. This by-law shall not apply to meetings or parts of meetings devoted exclusively to the election of town officers. This by-law shall become effective upon approval by the Attorney General."

West Tisbury has slightly over 2000 registered voters. The town bylaws now leave the presence or absence of a quorum to the discretion of the moderator. Richard Knabel, who presented the petition to town clerk Prudence Whiting, told The Times that special town meetings are sometimes held with as few as 30 voters present, which he and his group feel is a bad policy, and he cited the October meeting to vote a bylaw to administer the Community Preservation Act. Five percent (or about 100 voters) is not an unreasonable requirement, he said.

Town officials have often argued that the present bylaw allows the town to do routine but necessary business when the warrant is not sufficiently controversial to draw out as many as 100 voters. The new requirement, if passed, would not apply to the Jan. 17 meeting.

The warrant also contains proposals from the planning board to make small revisions in the zoning bylaws. A change in the swimming pool regulations would provide a shorter and cheaper permitting process for inflatable pools less that 250 square feet and 4 feet in height.

Changes in the homesite bylaws would include eligible lessees as well as eligible purchasers. Other changes in the bylaws extend the amnesty period for illegal apartments to 2010, give the ZBA more discretion in defining special permits, and clarify language. All zoning bylaw changes require a two-thirds majority.