WELLFLEET — Lawyers for Great White Realty and the town have asked a state Land Court judge to sign off on an agreement that could put an end to three court cases and two years of legal wrangling over what activities Wellfleet’s zoning bylaw allows under its definition of a contractor’s yard.
Based on the pending agreement, the definition allows more than the zoning board and building inspector thought.
The seven-page motion for judgment, filed Feb. 3, came as a big surprise to those who live near Great White’s property at 1065 Route 6, where a controversial contractor’s yard has been operating, as well as to the attorney who has represented the abutters’ interests.
“The sentiment I am receiving from the neighborhood is betrayal,” said attorney David Reid. “They are not at all satisfied by this compromise negotiated by the town.”
Reid represented more than 80 abutters during zoning board hearings.
While abutters weren’t part of the Land Court cases, they provided written testimony to back a request by the town last fall for an injunction that would stop the contractor’s yard from operating while the cases were decided.
Instead, the injunction was put on hold while the agreement was hammered out at the urging of the Land Court judge, according to Wellfleet Town Administrator Rich Waldo.
“The judge made it clear he was willing to grant the injunction for certain things, but at the same time the owner still had rights, and it was up to the parties to work out agreements on these rights,” Waldo said.
The bitter debate about use of the property dates back to January 2021, when Truro residents Donna and Steve DiGiovanni, operating as the Great White Realty Group, purchased the then-wooded lot and cut down three-quarters of the trees, removed topsoil, and began grading. They had not secured any permits, and their actions prompted a cease-and-desist order from Paul Fowler, the building inspector at the time.
Fowler’s action was upheld by the zoning board of appeals, which also denied two special permits related to the operation.
Great White’s attorney, Ben Zehnder, appealed the order and the zoning board’s denials in Land Court in May 2021. Zehnder later filed two further appeals of enforcement actions by the building inspector and zoning board, which merged with that first appeal.
Meanwhile, GFM Enterprises, a Dennis-based excavating company specializing in septic systems, leased the site from Great White and began operating a satellite contractor’s yard there despite the orders from the town. Zehnder has argued that activity on the site is an allowed use in the commercial district, falling under the definition of a contractor’s yard.
The zoning board’s position has been that town bylaws allow for a contractor’s yard in the commercial zone but that GFM’s operation goes far beyond the intent of the local bylaw and is more of an industrial use.
After a summer of noise, dust, fumes, and vibration, over 100 abutters signed a petition in September calling on the select board to enforce the cease-and-desist orders that had been issued against the operation months earlier.
That’s when the select board directed the town’s attorney to file for a preliminary injunction to suspend the operation while the three appeals were being considered.
Neighbors say the pending agreement gives Great White and GFM even more than they had been asking for. GFM will be able to store sand, topsoil, gravel, and T-base used for its excavating business in concrete bins 16 feet wide and 24 feet deep. Piles of material may also be kept onsite but can’t be more than nine feet high.
Concessions by Great White and GFM include an agreement not to access the property via Old Wharf Road and allowing the town’s building inspector to enter the property without notice to respond “to any imminent threat to health and safety.” Leyland cypress trees will be planted along the perimeter of the property, and Great White must install stockade fencing to buffer the neighborhood until the cypress trees form a solid wall.
Reid said neighbors had been told that preliminary negotiations were progressing toward a settlement but weren’t allowed to participate and weren’t told any details. Discussion, he said, has all happened in closed sessions. Neighbors learned of the pending agreement on the court website, Reid said.
“The compromise agreed to by the town fails to protect the neighborhood and fails to honor or enforce decisions of the zoning board of appeals,” Reid said. “We were especially disappointed that this ‘deal’ has been presented to the court without even a remand to the [zoning board] or the slightest opportunity for the public and affected neighbors to have any input.”
Waldo conceded that most of the discussion was held behind closed doors. The suit, he said, was between Great White Realty and the town’s zoning board. “The neighbors were not privy to that information, but they were not entirely left out,” the town administrator said. “We had all their emails.”
Old Wharf Road resident Kevin Coakley said he was appalled by the agreement.
“I would commend the ZBA for doing their job, not only once but twice,” Coakley said. “They upheld the bylaws of the town.”
