Legal challenges to A.D. Makepeace’s proposed mining & solar operation at 140 Tihonet Road dismissed, fight continues

Update: December, 2023.

Since 2021, the Community Land & Water Coalition (CLWC) has worked to raise awareness about the negative environmental and community impacts of A.D. Makepeace’s  proposed 176 acres of forest clearcutting for large solar in Wareham. The three proposed solar sites are in addition to the approximately 12 solar projects over at least 350 acres that A.D. Makepeace Cranberry Co.  has built already in the Plymouth, Carver, and Wareham area.  CLWC and its network are committed to proper solar siting, not clearing forests for solar. Read more in the Mass Audubon study, Growing Solar, Protecting Nature. CLWC launched the Sand Wars in Cranberry County project to expose the link between sand and gravel mining and large solar, like the 140 Tihonet Road project. Visit the Sand Wars website here.

 At the 140 Tihonet Road site, A.D. Makepeace proposes to level one of the highest hills in Wareham for sand and gravel mining – about 1 million cubic yards on about 65 acres. Read more about the project here. Makepeace first proposed the solar project with Borrego Solar, which is now called New Leaf Solar. As of December 2023, two lawsuits challenging the Town’s permits have been unsuccessful. This post is about the legal challenges and how the Wareham Town Clerk submitted an inaccurate court affidavit to help Makepeace fight the lawsuits.

Legal challenge to Town wetlands permit 

When residents challenged the permit the Town gave to Makepeace, Makepeace tried to get the residents lawsuit dismissed saying the residents had no legal standing to bring the case. On January 2023 Superior Court judge Buckley rejected Makepeace’s motion to dismiss and  allowed residents’ opposition to go forward. The story was covered by the Wareham Week.

At the next stage in the legal process in December 2023, the residents lost.  Superior Court Judge Glenny ruled for Makepeace and New Leaf under the Town’s Wetlands Protective Bylaw.  The decision is incomplete and flawed because it addressed only three of the five legal issues. It is clear the Judge does not know how to, or didn’t want to, read the project plans vis-à-vis the plaintiff-residents’ argument about impacts to a vernal pool, though he provides an alternative reason for rejecting their argument. Plaintiffs have the right to appeal and pursue other avenues. Read the decision here.

2023-11-24 Judge Glenny Decision Wetlands Makepeace Wareham

Legal challenge to Town’s Planning Board Permit

This case challenged the Town Planning Board permit. In March 2022, the Superior Court ruled plaintiffs, Wareham residents, did not have legal standing to bring the lawsuit.  This was a flawed legal decision but plaintiffs decided to drop the case and fight the project on other fronts.

Town Clerk corruption to support A.D. Makepeace in the Planning Board lawsuit?

During the Planning Board case Makepeace and Borrego played dirty. They got the Wareham Town Clerk to submit an inaccurate affidavit saying the plaintiff residents did not file their lawsuit on time. Plaintiffs’ lawyers show this was not true and Makepeace was forced to withdraw affidavit.

Background on the Town Clerk’s Inaccurate Affidavit for Makepeace

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 about 65 acres of forest, remove $10 million worth of sand and gravel (about 1 million cubic yards), and lease the stripped land to Borrego Solar for an industrial solar project. The Wareham lawsuit claimed the Planning Board decision was arbitrary and capricious and not in accordance with law.

The sand mining site 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 12^th earth removal and solar project by the two companies.

Wareham Town Clerk Alters Legal Document 

In December 2021, Makepeace and Borrego asked the court to dismiss the plaintiffs-resident’s lawsuit claiming the plaintiffs had missed the deadline under the zoning law, Chapter 40A, Section 17. This law requires a person appealing a zoning decision to give the town’s clerk written “notice” that an appeal was filed. 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.  Plaintiffs lawyers forced the Town Clerk to disclose her emails and they showed plaintiffs were right – they filed the notice on time.  Makepeace and Borrego were forced to withdraw their false claim which they did on December 21, 2021.

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.

The Clerk 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. That stamp was made with a hand stamp, not the machine that she states was “not functioning properly.”

Residents reveal the truth about the Town’ Clerk’s affidavit

After receiving the inaccurate Affidavit, the plaintiffs’ lawyers were forced to spend time and money to try to get to the truth. The lawyers had an email record that they gave the clerk notice in time.  The residents lawyers gave this email Makepeace and Borrego lawyers in December, 2021 as soon as they saw the false claim by Makepeace. The Makepeace and Borrego lawyers did nothing for almost a week and forced the plaintiffs 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 required that she produce all her emails from April 20,  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. 

Clerk confers 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.

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

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’s only job was to accurately date stamp the notice on the date it was received – which she did not do

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?

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?

For over a decade, Makepeace has run sand mining operations in Wareham without Earth Removal Permits.  Read more here.

Above: 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.