Carver: May 2023: Town Earth Removal Bylaw mysteriously altered to benefit AD Makepeace and sand and gravel mining operators
Was this an “honest mistake” as Makepeace and Town lawyers claim — or was the Bylaw doctored to mislead the Court in lawsuit to stop illegal mining?
For the second time in just over a year, town documents are altered that would help AD Makepeace avoid legal liability for strip mining
In late April, 2023, local Carver residents discovered that their Town General Bylaws had been mysteriously altered in a way that helps the sand and gravel mining. Four lines and 50 words disappeared from the Earth Removal Bylaw Section 9.1.1 for 2021 and 2022. The altered Bylaw was posted on the Town website as the official version.
The part of the Bylaw that was deleted was there to help protect the Town, drinking water and the land from sand and gravel mining. This Bylaw is the central issue in the Ten Residents lawsuit against AD Makepeace, Read Custom Soils, and the Carver Earth Removal Committee for recklessly and illegal mining on Federal Road in Carver MA.
The Bylaw is a law made by the people of the Town at Town Meeting. It can only be changed by a majority vote at Town Meeting. No one voted to change the Bylaw to help Makepeace and the sand and gravel industry.
The altered Carver Earth Removal Bylaw
Carver Earth Removal Bylaw Altered, 2023
Some time between November 2021 and August 2022, someone deleted four lines (50 words) from the “Purpose” of the Carver Earth Removal Bylaw. Altered versions were back-dated and posted on the Town website for 2021 and 2022. As of April 24, 2023, the altered versions were posted on the website as the official Town Bylaw.
When the Town was notified, on April 25, 2023, it corrected the language and posted the correct 2021 and 2022 versions on the website. The Town refuses to provide a plausible explanation of how the language was altered and the Bylaws backdated and posted on the website.
The Earth Removal Bylaw was passed in 1990 by Carver to control sand and gravel mining that was running rampant and was destroying vast areas of land. It prohibits large earth removal operations except under narrow circumstances and then only with a permit. Mining and cranberry companies have been exploiting the Bylaw. Mining operations run for years without permits and harm our communities and the Sole Source Aquifer
Wareham Legal Document Altered, 2021
This is the second time in just over a year that an official town record in Southeastern Massachusetts was changed to benefit AD Makepeace in a lawsuit. In December, 2021, the Town Clerk of Wareham altered a legal document and in a way that helped Makepeace fight a case brought by residents to protect Tihonet Pond from Makepeace’s mining and solar project. The Clerk submitted the altered document and her affidavit to court on Makepeace’s side. The residents’ lawyers’ exposed the altered record and inaccurate affidavit and the Clerk had to withdraw them from the court.
Is this a coincidence?
The Carver Bylaw Citizen Suit Case against Makepeace, Carver ERC
In August, 2022, Ten Residents sued AD Makepeace, Read Custom Soils and the Carver Earth Removal Committee for the illegal mining on Federal Road.
A key issue the judge in the case has to decide is what is the purpose of the Bylaw. Makepeace and the Town Counsel for the ERC argue it is not to protect the environment. They say is only to collect fees for earth removal. This is absurd. Makepeace and the Town ERC have asked the Court to dismiss the lawsuit because the Bylaw does not meet the standard to”prevent or minimize” damage to the environment. The judge has to look at the Bylaw, Purpose section 9.1.1 to decide. This is the section that has been mysteriously altered. The grey section below is what was deleted mysteriously from the Carver Earth Removal Bylaw, Purpose:
The Bylaw was altered to say this (certified copy from the Town Clerk, April 24, 2023)
In 2021, the public started exposing what was going on at the Earth Removal Committee and bringing concerns to the Board of Selectmen to demand an end to the destructive mining operations in the Town. It seems like someone didn’t want the Bylaw to be used to protect the public and the environment. It seems like the Bylaw was changed by someone inside Town Hall and posted to the website.
On April 27, 2023 the lawyer for the Ten Residents Group filed an emergency motion with the Superior Court Judge Callahan who is deciding whether to dismiss the Citizen Suit Case against Makepeace and the ERC based on the language of the Carver Earth Removal Bylaw. The motion informed the Judge that the altered version of the Bylaw had been taken off the website and submitted to the Court by the Ten Residents’ group lawyer in August 2022. Makepeace’s lawyer submitted an affidavit with the altered by law to the Court in October 2022. The motion was to prevent the Judge from ruling on Makepeace’s motion to dismiss the case based on the altered Bylaw.
On April 28, 2023, Makepeace and the ERC filed a response saying there was no “alteration” of the Bylaw and it was an “honest” mistake, and that the “official” Bylaw was never the one on the Town’s website. This contradicted everything Town officials say when they tell residents to find the Bylaw on the website. It was preposterous. Here is Makepeace’s legal brief.
On May 4, 2023 the lawyer for the Ten Residents Group replied to the Makepeace and ERC legal brief. They told the Court that the Town certified a copy of the altered Bylaw and always represented that the website was the official Bylaw.
The lawyer for the Ten Residents group wrote to the Town of Carver lawyer requesting an investigation into how the Bylaw was altered and who was responsible. There has been no response. Makepeace was asked to withdraw all its legal filings relying on altered Bylaw. See the letter here:
Judge Callahan is expected to rule on Makepeace’s motion to dismiss the Ten Residents’ case by the end of May 2023. This will decide whether the case goes ahead to trial or whether there will be an appeal to the Appeals Court.