Wareham: Dec. 2021: Town Clerk alters legal document, submits inaccurate affidavit to support Makepeace’s challenge to citizen lawsuit
More Cranberry Country Corruption? Or just a “mistake”?
In March, 2021, the Wareham Planning Board approved a large ground mounted solar project at 140 Tihonet Road that will obliterate 72 acres of pristine Pine Barrens forest on the shores of Tihonet Pond. The Planning Board approval was little more than a rubber stamp for yet another Makepeace solar project in the Wareham-Carver area. (Since about 2014 the company has obliterated over 300 acres of pristine forest, strip mined, and installed about 10 large solar projects. Several of the sites involved massive sand and gravel mining operations.)
To hold this destructive project to the standards of the Wareham zoning law, two Wareham residents filed a lawsuit to appeal the Planning Board’s March 2021 approval, suing Makepeace, the solar company and the Planning Board. To fight the lawsuit, in December 2021 AD Makepeace’s lawyers obtained an inaccurate Affidavit from the Town Clerk saying the lawsuit should be dismissed because the residents’ lawyer didn’t file the required legal notice with the Town Clerk in time.
This was a false accusation by Makepeace’s lawyers. The Town Clerk altered the legal notice that plaintiffs submitted to make it look like it was late. Then the Clerk submitted an affidavit with the altered document to Massachusetts Land Court to help Makepeace fight the residents’ lawsuit. The residents’ lawyers eventually exposed the Clerk’s improper actions and she withdrew her affidavit from the court case. Makepeace had to withdraw its legal argument.
The key points contradictory and inaccurate claims in the Clerk’s affidavit:
- She had “no knowledge of the appeal” until after the deadline passed:
2. She had “a specific memory of personally receiving this notice of appeal [after the deadline] because the machine we use for date stamping was not functioning properly….”
3. She altered the date stamp on the legal document: first it was stamped “April 20” but there is a handwritten “1” over the “0” to make it appear the notice was received on April 21, a day late.
How the truth was revealed
After receiving the inaccurate Affidavit and altered document, the residents’ lawyers were forced to spend time and money to try to get to the truth. The lawyers notified Makepeace lawyers that their legal argument was false and the affidavit and argument should be withdrawn. The Makepeace lawyers did nothing for almost a week. They forced the plaintiff spend time and money to follow legal discovery to get to the truth.
So, plaintiffs’ lawyers noticed the deposition of the Town Clerk for December 16, 2021 to question her under oath. They requested all her emails. These showed the Clerk received the legal notice in time. Less than 24 hours before the Clerk’s deposition and almost a week after they knew the notice was filed in time, Makepeace finally released the records that showed in fact the Town Clerk’s Affidavit was inaccurate.
The Clerk’s records obtained in legal discovery are here.
Clerk’s meddling to try to stall the notice
The Town Clerk’s own emails show had not only that she received the notice on time (April 20, 2021) but that within minutes of she forwarded it to the Town’s lawyer and her friend and colleague, then-chair of the Wareham Board of Selectmen Peter Teitelbaum, who is an attorney no less.
The Clerk told them “As far as I’m concerned, this is not a court document yet.” She asked for advice on whether she had to “accept” the timely filed notice.
About 15 minutes later, Town Counsel replied and advised the Clerk to accept the notice. The Board of Selectman member meanwhile busily checked the court online dockets. At 3:58 PM he wrote to the Town Clerk and town lawyer saying nothing was filed in Superior Court.
Then he checked another court, the Land Court, and reported to them the case was properly filed.
Town Clerk’s legal duty was to accurately date stamp the notice on the date it was received. Instead, the Town Clerk took it upon herself to decide whether or not to accept the residents’ lawyers’ notice and then filed an inaccurate affidavit that Makepeace tried to use to its advantage.
Did AD Makepeace pressure the Clerk to submit the inaccurate Affidavit to get an advantage in the lawsuit? The company owns about half the land in Wareham — land that contains valuable sand and gravel that Makepeace has been mining Wareham for decades without Earth Removal Permits Was this a move by AD Makepeace and its lawyers to evade accountability for complying with the law?
In October 2021, Wareham Town Meeting voted yes on Article 18 almost unanimously to urge the Board of Selectmen to take action to hold Makepeace accountable for all the sand it has hauled out of Wareham without a permit. In May 2023, Town Meeting authorized the Board to spend $50,000 to hire a professional to figure out how much sand is missing.
The 140 Tihonet Road mining and solar project is stalled as the Superior Court decides whether the Wareham Conservation Commission should have granted a wetlands permit. The plaintiffs decided not to pursue the lawsuit against the Planning Board after the Land Court sided with Makepeace on the issues of legal standing.
The 140 Tihonet Road project is one of three more solar projects (9 so far) that Makepeace and Borrego have identified under the Tihonet Mixed Use Development. Other projects are installed or underway outside the TMUD area.
Before installing the 140 Tihonet Road solar project, the landowner Makepeace plans to obliterate the forest, strip the land and level the hill on the Pond. Makepeace extract 1.3 million cubic yards of sand worth about $10 million from the hill. Then it will lease the flattened site to Borrego Solar for 20 years. Then, as Makepeace’s CEO states they will likely use the site for a residential subdivision after the solar company takes their “junk out of there.”