Appellate Tax Board releases extensive written decision in Graham case

By Nelson Sigelman - June 14, 2007

Almost one year ago, the Massachusetts Appellate Tax Board (ATB) awarded victory to the West Tisbury assessors in what was then the longest running residential case ever decided by the board. After a trial that took 36 days and generated reams of paper, the ATB ruled that William Graham's property tax assessments for 2003 and 2004 were 99 percent accurate.

Mr. Graham had appealed his 2003 and 2004 assessments to the ATB, claiming that the town's assessments were unfairly high. He owns seven properties totaling 235 acres off Lambert's Cove Road. They were assessed at $51,116,700. By Mr. Graham's calculations, his properties were worth only $20,240,000.

As is customary, the ATB verdict was presented in the form of a spare conclusion on one page that noted no change in five of the assessments and a reduction in two others of $528,500, thus reducing Mr. Graham's complete assessment to $50,588,200 - a one percent change.

Although the ATB said what the decision was, it did discuss how it came to the conclusion. Mr. Graham promised to appeal to the Massachusetts Appeals Court, but awaited the ATB's ultimate finding of facts before doing so.

Last week, the ATB issued its full ruling in the case. The 88-page findings of fact and report (available here) describe in detail the questions and legal issues that framed Mr. Graham's abatement requests and subsequent appeals.

Mr. Graham said this week he will appeal the ATB ruling, as he has consistently promised he would if, as he expected, the ATB ruled against him. Mr. Graham told a Times reporter on Tuesday, "In addition to the normal grounds for an appeal of such a case, in this case the findings of fact were written by commissioners who didn't hear the evidence and didn't participate in the viewing of the property. The commissioners should not have relied so heavily on the transcripts of the testimony but had a responsibility to conduct a more extensive review."

Mr. Graham added that the ATB decided the case on testimony about market value, rather than on disproportionate assessment, which Mr. Graham believes should have been the heart of the case.

Mr. Graham, who has filed property tax appeals for fiscal years 2005 through 2007, has retained new lawyers, in addition to Richard L. Wulshin, who argued the case before the ATB. Adam P. Kahn, a member of the Boston law firm Foley Hoag, will take the lead. Mr. Kahn represented the Martha's Vineyard Land Bank in its successful appeal of an ATB ruling, also involving the West Tisbury assessors.

Mr. Kahn is already at work. In a public records request dated May 21, addressed to Michael Colaneri, chairman of the West Tisbury board of assessors, Mr. Kahn requested specific town records associated with assessments for Mr. Graham's properties in fiscal years 2005 through 2007.

The ATB findings lay out the elements in the case, the legal issues at stake, and the arguments presented by the town and the appellants.

Essentially there were several principle questions: Did the appellants prove a right to abatement by showing that the fiscal year 2002 revaluation and certification process for West Tisbury, upon which the fiscal year 2003 and 2004 assessed values were based, was so compromised by underlying errors that it resulted in unreliable assessed values, which overvalued any of the Graham properties for the fiscal years at issue; did the appellants, or the record otherwise, adequately demonstrate that any of the Graham properties' fair cash values as of January 1, 2002 and January 1, 2003 were less than their respective assessments for fiscal years 2003 or 2004; and did the appellants prove that any Graham properties were disproportionately assessed in fiscal years 2003 or 2004 resulting in a right to an abatement.

Throughout the report the board said that Mr. Graham and his attorneys failed to make a credible case. In one instance the board wrote, "In the present appeals, the appellants did provide some disjointed but sparse comparable assessment data. They did not, however, provide a coherent and detailed comparable sales analysis. In most instances, they failed to make any adjustments for their purportedly comparable assessment properties' obvious differences with the juxtaposed Graham properties and often failed to properly compare Graham property assessments, for land and improvement values, to comparable property assessments, for land and improvement values. Consequently, the Board found and ruled that the appellants' comparable assessment methodology was spurious and any values derived from it were hollow and unfounded."

Throughout the lead-up to the trial and the four months of testimony Mr. Graham and his supporters questioned the professionalism, honesty, and competence of the board of assessors and West Tisbury principal assessor Jo-Ann Resendes.

The ATB ruling came as good news for the town officials who remained reserved in their comments. "The board is pleased with the report, and it is a good decision for the town," said Mr. Colaneri in a telephone call Monday. "Our employees, consultants, and legal counsel did a great job."

Ms. Resendes, who will leave her job next month to become Edgartown's assessor, said she never doubted that the town would prevail, or that town officials had acted correctly. "It supports our contention that we were performing our duties responsibly," she said. "I am very pleased with it, and it shows the town acted in good faith all along."

Ms. Resendes said that she hopes townspeople appreciate the job town employees do. "Most people will not read the entire report and get the true meaning of everything that is said, but I think that it shows the town of West Tisbury is a well-run town," she said.

Throughout the case, Mr. Graham said he wanted to expose flaws in the mass appraisal system as it has been implemented in West Tisbury. By his accounting, his overpayments for 2003 and 2004 property taxes totaled $319,164.

The ATB ruled that Mr. Graham is due a refund of $2,616 for 2003 and $2,813 for 2004. The town's defense of its assessors has cost more than $200,000.

Ellen Hutchinson, attorney for the board of assessors, told The Times that the findings of fact means that the appellate tax board agreed with the town's arguments. She said early in the trial, she argued that Mr. Graham had not met his burden of proof and that the case ought to have been dismissed.

"What we think that the findings say is that the appellate tax board agreed with us," Ms. Hutchinson said. "That in every way that the taxpayer tried to show that the property was overvalued or over assessed, they failed."

Ms. Hutchinson said Mr. Graham has 30 days from the June 7 issue date of the findings to file an appeal. "So we just wait like everybody else," she said.

Asked to speak about what taxpayers should take away from a decision that was costly for taxpayers, Ms. Hutchinson said, "That all of the allegations by Mr. Graham as to the manner in which the 2002 revaluation was carried out, all of those allegations were wrong," she said. "And that the assessors, as the DOR (Department of Revenue) said, that the assessors valued all of the properties in West Tisbury in a consistent manner. That nobody was discriminated against, nobody was singled out for special treatment, and that the methodology used by the assessors in carrying out the revaluation was uniform and consistent."

Ms. Hutchinson said the findings are a vindication for Ms. Resendes and Vision Appraisal, the company used by several towns on the Island to value properties. Referencing some of the strongest allegations Mr. Graham and his supporters made, Ms. Hutchinson said, "There was no fraud, there were no mistakes made in the process, and Jo-Ann was subjected to criticism that was undue and unfounded."

Contributing editor Dan Cabot provided additional reporting