General

Wareham: AD Makepeace 72 acre mining & solar project challenged in court

Town Clerk sides with AD Makepeace to try to get case thrown out of court

***March 2022 Update: AD Makepeace challenged the plaintiff’s “legal standing” in an effort to evade accountability. Due to unfavorable legal precedent making it difficult to challenge developers under zoning, plaintiff’s case was dismissed by the court. Makepeace continues to evade accountability.

  • Wareham Town Clerk submits inaccurate affidavit to court that Makepeace and Borrego Solar used in court to try to derail citizen lawsuit against earth removal and solar on Tihonet Pond
  • Emails show Town Clerk conferred with Selectman Peter Teitelbaum for advice
  • Town Clerk’s inaccurate affidavit forces Makepeace and Borrego to withdraw motion to dismiss the case on grounds that notice was late

Background

In April 2021, two Wareham residents filed a lawsuit against the Wareham Planning Board’s March 2021 decision to approve a plan by AD Makepeace to strip mine 72 acres of forest, remove $10 million worth of sand and gravel (1.3 million cubic yards), and lease the stripped land to Borrego Solar for an industrial solar project. The Wareham lawsuit claims the Planning Board decision was arbitrary and capricious and not in accordance with law (one of the plaintiffs has since withdrawn from the case).

The land is pristine Pine Barrens forest on the shores of Tihonet Pond in the heart of Wareham at 140 Tihonet Road. According to an expert report the strip mining for solar means “nothing much will grow here again in any human timeframe, even after the solar panels are removed.”

Makepeace and Borrego have already destroyed over 300 acres of forests in the area under this earth removal and solar scheme. The 140 Tihonet Road project would be the 12th earth removal and solar project by the two companies.

Town Clerk’s Erroneous Affidavit

In December 2021, Makepeace and Borrego asked the court to dismiss the plaintiff-resident’s lawsuit claiming the plaintiff had missed the deadline under the zoning law, Chapter 40A, Section 17, that requires someone appealing a zoning decision to give the town’s clerk a “notice” that an appeal was filed, and to give them a copy of the lawsuit. The last day for the plaintiff to file the notice with the Wareham Town Clerk was April 20, 2021.

To support a motion by Makepeace and Borrego to get the lawsuit dismissed, Wareham Town Clerk, Michelle Bissonnette signed an Affidavit dated November 22, 2021, under the pains and penalties of perjury stating plaintiffs filed the notice late, on April 21, not April 20. This was inaccurate — in fact, plaintiffs filed the notice on time as the Town Clerk’s emails eventually revealed. Once the Town Clerk was directed to disclose her emails showing the timely notice, Makepeace and Borrego were forced to withdraw their claim that the lawsuit should be dismissed for late notice and did so on December 21, 2021.

In December, 2021, Town Counsel Rich Bowen confirmed that the Town Clerk, in fact, had received the notice, despite her pledge otherwise under the pains and penalties of perjury.

The key quote in Bissonnette’s sworn Affidavit is that prior to April 21 – the day after the deadline – she had “no knowledge” that a lawsuit was filed.

November 22, 2021 Affidavit of Michelle Bissonnette filed in Land Court Case 21 MISC 000221(HPS)

She also wrote in the Affidavit that she had “a specific memory of personally receiving this notice of appeal [on April 21] because the machine we use for date stamping was not functioning properly….”

With her Affidavit to the court, Bissonnette attached a date-stamped copy of plaintiff’s April 20, 2021 notice given to her as Town Clerk. See page 5 of the Affidavit.

The date stamp is altered – first it was stamped “April 20” but there is a handwritten “1” over the “0” to make it appear that the notice was received on April 21, a day late. Bissonnette’s Affidavit does not explain this. That stamp was made with a hand stamp, not the machine that she states was “not functioning properly.”

Town Clerk Bissonnette altered the date stamp to say April 21, 2021

How the truth was revealed

After receiving the inaccurate Affidavit, the plaintiff’s lawyers were forced to spend time and money to try to get to the truth. The plaintiff’s records confirmed that the Town Clerk had been given timely notice on April 20, 2021 by email. The plaintiff promptly gave this email documentation of the timely notice to the Makepeace and Borrego lawyers in December, 2021. The Makepeace and Borrego lawyers did nothing for almost a week and forced the plaintiff to do discovery in court.

For court discovery, the plaintiff’s lawyers noticed the deposition of Clerk Bissonnette for December 16, 2021 to question her under oath. They requested all her emails from April 20 in discovery so she had to produce them for the deposition. Less than 24 hours before the December 16 deposition, and almost a week after the plaintiff gave the defendants their copy of the April 20 email notice, Town Counsel Bowen released 59 pages of Clerk Bissonnette’s emails. 

Conferring with Selectman Teitelbaum about date stamping the notice late

The emails show the Town Clerk had not only received the notice on April 20, 2021 (despite her claims otherwise) — but within minutes of receiving the notice she denied receiving, she forwarded the timely notice to Town Counsel Bowen and her friend and colleague, then-chair of the Wareham Board of Selectmen Peter Teitelbaum, who is an attorney no less. See page 2 of PDF.

Bissonnette declared to Teitelbaum and Bowen in her email, “As far as I’m concerned, this is not a court document yet.”  Page 2 of PDF She asked for advice on whether she had to “accept” the timely filed notice.

About 15 minutes later, Town Counsel replied by email and advised Bissonnette she should accept the notice; the Board of Selectman member meanwhile busily checked the court online dockets. On April 20, 2021, minutes after getting the email from Bissonnette, Teitebaum checked the Superior Court online case index. At 3:58 PM he wrote to Bissonnette and Bowen saying nothing was filed in Superior Court.

Selectman Teitelbaum’s April 20, 2021 3:58 p.m. email to Bissonnette and Bowen

Minutes later Teitelbaum reports to the Town Clerk and Town Counsel that — oops…the complaint was properly filed in Land Court.

Selectman Teitelbaum’s April 20, 2021 4:01 p.m. email to Bissonnette and Bowen

Even though Teitelbaum was told on April 20 that the lawsuit was filed that day, Bissonnette swore under the pains and penalties of perjury in her court Affidavit that she had “no knowledge” of it. Why did she swear to this in a court Affidavit?

Town Clerk Bissonnette’s legal duty was to accurately date stamp the notice on the date it was received. A Town Clerk’s job under Chapter 40A, Section 17 is to simply accept the notice and copy of the complaint and accurately date stamp the notice with the date she receives it. Instead, Wareham Town Clerk Bissonnette conferred with and sought advice from Selectman Teitelbaum and Town Counsel on whether she “accept” the notice, because — in her opinion — the notice and complaint were not a “court document.” The law does not require her to get a copy of a “court document” but only a notice and copy of the complaint, which she is required to date stamp. Why didn’t she do this?

Did the Town Clerk inject her personal political bias into the job? Were she and Teitelbaum hoping to derail the lawsuit? Why did she say under pains and penalties of perjury that she “had no personal knowledge” of the notice on April 20, 2021 — even though her emails show that she read the notice and saw the complaint that very day?

As his emails show, Selectman Teitelbaum, an attorney, helped Bissonnette investigate whether the complaint was filed in court on April 20, 2021 or not. The Town Clerk is an elected position and does not report to the Board of Selectmen. Why was the Town Clerk seeking advice from a Selectman who is not Town Counsel and has no authority over the job of Town Clerk?

Were these elected town officials trying to derail the citizen lawsuit against Makepeace and Borrego by trying to find an excuse to date stamp it late?

Makepeace is a large landowner and runs a massive sand mining operation at Read Custom Soils. Makepeace has long flexed political muscle at Town Hall and in state government. 

Across Southeastern Massachusetts, concerned residents are calling out illegal sand mining and corruption in Wareham, Plymouth and Carver. They are demanding accountability for this environmental destruction. In Wareham for decades Makepeace has run its sand mining operations without Earth Removal Permits claiming the mining was to extract sand for use on Makepeace’s cranberry bogs. Is this accurate? Makepeace disguises itself as a cranberry grower “inspired by nature“. The volume of sand it has extracted from Plymouth, Carver and Wareham far exceeds what is needed for the “agricultural projects” it claims it is building.

Sand mined from Southeastern Massachusetts is a highly valuable global commodity generating tens of millions – if not hundreds of millions per year in revenues derived from unregulated and largely unlawful mining operations. It is a silica quartz sand that is unique and rare. The unregulated sand mining is an environmental disaster of massive proportions in Southeastern Massachusetts.

AD Makepeace sand mining site, 160 Tihonet Road, Wareham 2018. 50 acres were destroyed; sand was mined without an Earth Removal Permit from the Wareham Board of Selectman under the Earth Removal Bylaw. Makepeace claims the sand was mined for “agricultural purposes.” This is now a 50 acre industrial solar facility built by Borrego Solar and sold to Clearway Energy.

Selectman Teitelbaum appears to be defending Makepeace’s mining operations in Wareham. In October 2021, Wareham Town Meeting voted yes on Article 18 almost unanimously to urge the Board of Selectman to take action to hold Makepeace accountable for all the sand it has hauled out of Wareham without a permit. 

At its December 14, 2021 meeting, the Board discussed (at 1:05:20 on video) how they would respond to the voters’ wishes to account for all the sand removed from Wareham. Selectman Teitelbaum was the only Board member to vote NO to a plan to investigate Makepeace’s sand mining.  

Why?

More Questions:

What role did the Makepeace and Borrego lawyers play in getting the Town Clerk to write the false Affidavit?

Why didn’t Town Counsel Bowen let everyone know right away that the Town Clerk had received the notice on time?

Who are these Town officials working for? The voters or Makepeace?

Notes:
* The lawsuit was amended on July 21, 2021

Wetlands lawsuit filed over AD Makepeace & Borrego Solar industrial solar project at 140 Tihonet Road

The lawsuit alleges that the Carver Conservation Commission wrongfully issued a permit for the industrial solar and mining project. It remains pending in Plymouth Superior Court as of January 2022.