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Government by Set-Up-

    - Chairman of Selectmen James Grady authored both the new auto salvage bylaw in Bourne and the form on which any application for the new town permit must be submitted. The town’s only applicant, John Anderson of Knowlton’s Auto Salvage, had an environmental engineer fill out the form, which he then signed and submitted, a point he repeatedly explained to the selectmen at their December 17, 2002 meeting. This explanation did not, however, stop Chairman Grady from assuming the mantle of a prosecutor and demanding that Mr. Anderson admit to signing it, which of course he did.

    - Mr. Grady then moved on to ask if the salvage yard is in a water resource district, to which Mr. Anderson said it is in what has become part of the South Sagamore Water District, but that the so-called water resource area is not in use since the water district closed it. He tried to indicate that his engineer probably left that question blank because the salvage yard existed prior to the creation of the district, and the water district itself now seems to be abandoned. But no explanation was desired; Mr. Grady cut in to declare: "False or incomplete answers are grounds for denial; did you realize this?"

    - Of course, what Mr. Anderson had not realized was that Mr. Grady had carefully constructed the new town bylaw to stipulate that no salvage yard could be located on or in a water resource district, and had apparently made certain the questionnaire underscored the point.

    - Mr. Grady then proceeded to assert that Knowlton’s Auto Salvage has failed to respond to charges made by the state Executive Office of Environmental Affairs, Department of Environmental Protection, DEP. He pointed to page three, question 13 on the application, which asks if any state environmental protection laws had ever been violated by the business, or if there had ever been any charges pressed by the DEP. Sel. Grady noted the application indicated the answer was no. He then referred to letters from the mid-Nineties that were sent to Knowlton’s from the DEP, and referred to at least one of the letters as a ‘notice of non-compliance.’ John Anderson explained that he had followed up on the letters and had met with DEP officials at their offices in Lakeville, MA, at which point the state officials had told him they would work with him on any problems and would get back to him on their findings. They never did, Mr. Anderson explained, and therefore he didn’t do anything further regarding the letters; he noted that in his view he was never charged with anything, since he had indicated to the DEP that he would work with them on anything with which they were concerned, but the state officials have not set forth any criteria.

    - Mr. Anderson provided the board, through Chairman Grady, the business card of the DEP inspector who had visited his business several times and with whom he met. But again, the explanation was not of any interest to Mr. Grady, nor was the chairman of selectmen interested in contacting the DEP inspector who had been involved. To Sel. Grady, it was a simple conclusion: "The notice of non-compliance," he declared, "that’s a charge." And of course any non-compliance would mean the business couldn’t meet the criteria of Mr. Grady’s new license procedure.

    - Mr. Grady also read, from copies he held in his hand, that it was the department’s opinion that "it’s likely that the groundwater (in the area) will be impacted by Methyl Tertiary Butral Ether, MBTE," a gasoline additive that in recent years was found to be very dangerous and has been eliminated from gasoline sold today. Mr. Grady implied that the apparent pollution in the area was the result of the auto salvage business, but Mr. Anderson explained how several years ago it was discovered that a former gas station across the street from Knowlton’s had in fact lost a large amount of gasoline from failing storage tanks. "They (state and local officials) had to (try to) pump out a foot of gasoline leaked from the gas station across the street and that was (also) under the restaurant (on the opposite side of the street)," Mr. Anderson said. But Mr. Grady wasn’t satisfied with that answer, and returned the focus to the auto salvage yard by asserting again that Knowlton’s was in defiance of the DEP. And again, Anderson replied: "I discussed it with them, and haven’t heard anything further; they were going to notify me (of what might or might not be required)."

    - Chairman Grady then took a new tack, asserting that he possessed documents showing that the DEP had requested Knowlton’s to clean up a specific, relatively small spill of hazardous materials. This assertion obviously surprised Mr. Anderson, and he told the board, "I didn’t know there was a spill; when was that?" Mr. Grady, however, did not provide Anderson with copies of the documents, or any further details.

    - Mr. Grady then noted that Knowlton’s is listed as a ‘waste cleanup site’ on a DEP list. Mr. Anderson again offered the business card he was given recently from a DEP enforcement officer, and explained that the inspector walked through the salvage yard and told him the operation, "was okay." Anderson said he didn’t realize Knowlton’s was on any state list.

    - Sel. Grady then demanded to see a site plan indicating where fire lanes would be placed in the salvage yard, and pressed the issue while Mr. Anderson was searching for it, pointing out to the other selectmen that this was something the fire department had recently stipulated to Mr. Anderson as a requirement; however, when Mr. Anderson found the plan and presented it, Mr. Grady lost interest in it immediately and hardly glanced at it. It seemed obvious that his interest was based solely on whether Mr. Anderson could produce the document, not on the plan itself.

    - Grady then asserted that in a picture in the town archives, there were few if any cars on the premises of the auto salvage yard in 1959. Sel. Wayne Covell added that in the 15 or so acres shown in the photographs, there is little or no evidence of a salvage yard. Mr. Anderson explained that only a couple of the acres have ever been used for the salvage yard. "Three or four," Mr. Grady said, correcting him. "We have a disagreement of facts," Grady said, and indicated an issue of concern is the growth of the junkyard over the years, even though that issue had no apparent bearing on the license application.

    - When Mr. Grady again discussed the DEP’s cleanup list, a member of the audience, Lucia Fulco, of Cataumet, asked how many other local businesses were on the list. Mr. Grady admitted that "unfortunately there are a number of other (Bourne) businesses on the DEP list," but he failed to mention that town owned property in the same abandoned well field area is also listed, and apparently presents a much greater danger to the water, a danger that is documented, not implied as is the case with Knowlton’s Auto Salvage.

    - Mr. Grady repeatedly and argumentatively interrupted speakers who were supportive of the Knowlton’s application, while either allowing those speakers opposed to the permit to talk at whatever length they wished, or interjecting in a friendly fashion to support a point or underscore something that was said. When Ms. Fulco, for example, made a point regarding a resolution to the controversy and said that she couldn’t speak for the appli- cant, Mr. Grady argumentatively interrupted, declaring: "You’re doing a good job of it."

    - A resident that spoke directly against the Knowlton’s license was a man who identified himself as Jim Warner, of 1055 Sandwich Road, which he said is almost opposite the salvage yard. Mr. Warner explained that he purchased his home as a vacant property that was a bargain, indicating it was undervalued both because it had been long vacant and was across the street from a salvage yard; he said the low price was the only way he could afford to buy such a house. Now, he ingenuously explained, he would be pleased to see the salvage yard closed so that his property value would increase. He was given an uninterrupted opportunity to expound upon his viewpoint by Chairman Grady.

    - Mary Ellen Kozar, who also lives near the salvage yard in Sagamore, spoke at considerable length, yet without conclusively stating she was opposed to the salvage yard, but indicating it would be an advantage to her family and other property owners if the business was closed. She also noted that her family had done business over the years with the Anderson’s, and that she thought they were nice people.

    - Phil Kozar spoke at greater length than his spouse, relating his experience as a member of the So. Sagamore Water District (SSWD) from 1989 to 1998. He noted that test wells were installed in addition to a reclamation pump to handle the leaking tanks at the former C.K. Smith gas station opposite the salvage yard. He explained that several monitoring wells had been placed in the immediate area by the SSWD and state DEP officials from the Middleboro office. There were five wells placed on the south side of Rte. 6A, he said, and though he spoke at great length and it seemed that he was opposed to the Knowlton’s license and was implying that it was a pollution problem, he concluded that "as far as where the contamination is coming from... most of the wells never came back from the DEP showing contamination; only one well at the top of Regency Drive showed any contamination, and it was adjacent to a street drain...so as to whether that came from Knowlton’s or may have percolated in from the C.K. Smith problem, was never and has never been determined."

    - James Mulvey, of Buzzards Bay, explained that four years ago he had been part of a four-member pollution task force created by the selectmen to test for pollution coming from the catch basins that empty into the Cape Cod Canal from South Sagamore. He and the other task force members conducted the tests through the Barnstable County lab, he said, "and no volatile compounds were found."

    - Sel. Wayne Covell stood in for Sel. Grady in rebutting Mr. Mulvey by refocusing the discussion on the implication that Knowlton’s is a source of pollution. "They (the state DEP) only act on about a quarter of their (designated) sites," Sel. Covell observed, seeking to suggest a reason why more action has not been taken against Knowlton’s, and despite the remarks by Mr. Kozar and Mr. Mulvey only minute earlier, added: "I have no expectation that the groundwater contamination is going to be solved...." He did admit that the wells are not being used, but suggested that "if they ever were, this would be a problem."

    - Richard Conron, of Gray Gables, also spoke directly against the Knowlton’s license. "Don’t break the law to give this businessman a break," he admonished the board of selectmen, adding: "I mean, we have some real strict laws for this kind of business and I ask all of you to live up to your oath of office and enforce the laws passed by the town meeting." Mr. Conron was thanked for his viewpoint. But it wasn’t noted by Mr. Conron or Mr. Grady that the only "break" Mr. Anderson was seeking was simply to be licensed, with whatever provisions, under the brand new "strict" law created by Mr. Grady, a law that was clearly designed just for Mr. Anderson’s business, Knowlton’s Auto Salvage.

    - Mr. Conron seemed to fully grasp, however, the import of Mr. Grady’s bylaw as a tool by which certain businesses, especially older businesses, can be attacked. Mr. Grady’s "strict" new law seems to be a codification of and an expansion on the longtime desire of recent arrivals on Cape Cod to close the bridges behind them; that is, the old desire ‘to stop all growth now that I’m here,’ but with a new, aggressive twist where the newcomers strive to get rid of or remove anything they don’t like or don’t think is quaint enough to meet their standards for Cape Cod. This is somewhat akin to the issues raised from time to time by people in Sandwich who bought homes near the runways of the Otis Air National Guard facility, and then called for noise limitations or the elimination of the runways. There are other examples, but Mr. Grady’s approach is different from all other past attempts at exclusion; Mr. Grady seems to be trying to legislate an end to the zoning protection older properties have enjoyed under the so-called grandfather clauses. If he succeeds, individuals and town officials in other communities will undoubtedly take note and some will copy the Bourne approach; it can only be imagined what a boon this would be for developers and for those who would regulate the lives of their neighbors in order to recreate this or any other area according to an image of their selection.

    - Several local residents, including Wayne Lamborghini, of Sagamore, and Michael Bradley,* of Cataumet, testified that Knowlton’s was an operating salvage yard prior to zoning changes in 1959; both men stipulated that they had done business with the auto salvage company prior to 1959. John Anderson also provided the selectmen with stacks of receipts from the sale of used auto parts in the mid-1950’s. Yet Mr. Grady ignored this testimony and repeatedly asserted that Knowlton’s was not operating a salvage business prior to 1959, and only began after that year.

    - When Mr. Grady initially closed off public discussion, an attempt was made by an audience member to be recognized for one last question, prompting Chairman of Sel. Grady to wave his hand dismissively and look away from the audience as he declared: "No, no. We’re through with the public."

    - "I see no convincing evidence there was a junkyard there in 1959," Sel. Covell stated, effectively implying that Mr. Lamborghini and Mr. Bradley, and others, were lying in their testimony supporting the history of Knowlton’s Auto, and at the same time dismissing Mr. Anderson’s testimony and his documentary evidence.

    - Sel. Mark Tirrell expressed a sense of some regret regarding his belief that there was no choice under the new law but to deny the application, but added that "the memo authored" by Chairman Grady "some weeks ago," as the date when Mr. Anderson's application would be considered approached, had made it clear to him that Knowlton’s would be "in conflict with the bylaw." This behind-the-scenes coaching action by Chairman Grady further illustrates how intent he was on the destruction of the Anderson family business, Knowlton’s Auto Salvage.

    - "You, Mr. Grady, have become an expert in that area; you’ve been functional in the writing of the bylaw," Sel. Tirrell said, asking: "What would you say are some of the conflicts, or the key conflicts, we see here?"

    - "I’ll be happy to (discuss them)," Sel. Grady replied, and then read from a prepared statement, outlining the three ‘key’ elements; 1) that the salvage business is in an R-40 zone, 2) that the new bylaw is a general town bylaw and allows no provision for grandfathering, and 3) that the Knowlton’s application is contrary to Section 1400 of the bylaw; i.e., it is located in a water resource area. "The exhibit here," Mr. Grady said, disingenuously referring to his personally authored bylaw, "says that an auto junkyard shall not ever be located in a water resource district..." He concluded by stating: "Any one of these violations means no license."

    - In proudly reflecting on his authorship of the bylaw, Mr. Grady told the board of selectmen: "Only the town meeting can or may amend or change a permitted use under our zoning bylaw; the selectmen cannot usurp the authority of the town meeting." The righteousness asserted in this latter statement attains a certain cynical depth when it is recalled that town meeting voters were led to believe the new bylaw would simply give the selectmen authority to police the town’s one auto salvage yard, not dispense with it.

    - "I’ll fully confess to being the principal author of this bylaw," Mr. Grady said, directly advising the other selectmen that: "(The bylaw) is intentionally meant to say ‘shall,’ (not may); you don’t have any discretion or option other than to deny..."

    - Sel. Linda Zuern, as she had done several times, again stated that she saw no direct evidence that Knowlton’s was responsible for pollution, and further, that it is her firm belief the town meeting voters did not intend to create an arbitrary law and that they did not know the law was aimed at putting Knowlton’s out of business. The town meeting, she said, intended to give the selectmen more authority in regulating how the business was operated, not to close the business.

    - Mr. Grady told Sel. Zuern that someone at the town meeting had asked how many local businesses hold a Class III auto salvage license, "and I told them only one, Knowlton’s; everyone (at the town meeting) knew exactly what they were voting on unless they weren’t paying attention." Of course, even if Mr. Grady had answered such a public queston at town meeting, what he described would not have warned the voters that the intent was to shut down the business; even other town officials who are lawyers apparently failed to grasp that fact. But in any event, the official minutes of the May, 2002, town meeting, taken by a court stenographer hired by the town, contradict Mr. Grady. There is no mention of anyone asking such a question, or of Mr. Grady or anyone else answering any such question. So, as Mr. Grady is fond of noting, there is "a disagreement of facts" on this particular point.

    - "I don’t think most people voted for that, to put them out of business," Sel. Zuern persisted, undeterred by Mr. Grady’s statements and his obvious annoyance at her stance, but she was cut off from further remarks as Chairman Grady immediately interrupted her, stating: "That’s your opinion!"

    - "It is my belief, my impression, that because of the bylaw, we cannot issue a Class III license for this property," Sel. Tirrell concluded.

    - Sel. Covell made the motion to deny the application, and Mr. Grady leaped to second the motion, just as Mr. Tirrell said he would second it. Mr. Grady then withdrew his second in favor of Mr. Tirrell, apparently in a belated attempt to seem unbiased. However, Sel. Covell’s motion was not as complete as Sel. Grady desired, so he coached him with stage whispers, instructing Sel. Covell that by denying a permit under the new bylaw, the town must also deny the issuance of the state Class III license. The motion was so constructed and passed by a four to one vote, with Sel. Zuern opposed.

    - Sel. Leo Locke spoke directly to Mr. Anderson, expressing his distress at being so constrained by the apparent lack of options, and strongly urged Mr. Anderson to seek legal counsel and pursue an appeal.

    - "So I’m out of business?!" John Anderson declared in disbelief. Chairman Grady then sought to repress his obvious satisfaction over the vote and proceeded to explain that after January 1st, 2003, the salvage business could no longer legally operate.

* Michael Bradley is the publisher of The Bradley Report and the author of this analysis.