WELLFLEET — Four neighbors of the contractor’s yard operated by GFM Enterprises at the corner of Route 6 and Old Wharf Road have asked a state Land Court judge not to sign off on a settlement agreement between the town and Great White Realty Group, the property’s owner.
The settlement would put an end to three court cases and a debate over what the town allows under its definition of a contractor’s yard. But in their motion to intervene, the neighbors ask the judge to allow them to get involved in any further negotiations or court action.
Great White Realty’s attorney, Ben Zehnder, says the cases have been ongoing for two years, and it’s too late for the abutters to join now.
A hearing on the neighbors’ request to intervene in the case is set for June 21.
Wixom Road homeowners Christine Woods, Patricia and Antonio Lemme, and Laura Kozak, and Sanatkumar and Shilaben Tankalwala, who own a home on Old Wharf Road, filed their motion in late February. That was a few weeks after the town and Great White Realty submitted their proposed settlement agreement to the Land Court.
“The neighbors still feel the terms negotiated by the town do not achieve what they need in order for this business to be compatible with their neighborhood,” said attorney David Reid, who represented 80 abutters during zoning board hearings on the contractor’s yard. He now represents the homeowners asking to intervene.
If the motion is granted, wrote Reid in an email to the Independent, it “would make my clients parties to the appeals, and will allow us to participate in any trial, or negotiations of a resolution short of trial.”
If the motion isn’t granted, said Reid, he expects the court will go on to consider the agreement being proposed by the town and Great White Realty.
The debate over 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, cut down three-quarters of the trees, removed the topsoil, and began grading without going to the town for permits.
The moves prompted the first cease-and-desist order issued by Paul Fowler, the building inspector at the time.
Great White and Zehnder appealed the order, and the zoning board’s subsequent decision not to overturn it, in Land Court in May 2021. Zehnder has since filed two further appeals of enforcement actions by the zoning board and building inspector; they have been merged with the first appeal.
Meanwhile, the Dennis-based excavating company GFM Enterprises, which had leased the site from the DiGiovannis, began operating the contractor’s yard, despite the town’s orders.
In the three court appeals, Zehnder argues that the activity on the site is an allowed use in the commercial district under the definition of a contractor’s yard. The zoning board’s position has been that the town’s bylaw allows for a contractor’s yard in that zone but that GFM’s operation goes far beyond what the bylaw intended.
After a summer of dust and noise prompted abutters to push for enforcement of the cease-and-desist orders, last fall the select board directed the town’s attorney to file for a preliminary injunction to suspend the operation until the appeals were considered.
Negotiations between the town and Great White regarding the injunction “progressed to discussions of a more permanent and complete settlement,” wrote Reid in the motion to intervene. Since the abutters were not parties in the court case, they were not part of the negotiations. According to Reid, discussion happened in closed sessions.
“These parties were not permitted to participate in the actual negotiations of this proposed judgment and order and were not informed of its existence or terms and provisions until they checked the court’s docket on their own to discover that the agreement has already been signed and submitted to the court,” wrote Reid in the motion.
Concessions given by Great White during its negotiations with the town included an agreement not to access the property from Old Wharf Road and to allow the building inspector to enter the property without notice to respond “to any imminent threat to health and safety.”
Leyland cypress trees were to be planted along the perimeter of the site and a stockade fence installed to serve as a buffer until the trees form a solid wall.
Neighbors were unhappy with the town’s agreement to allow GFM to store sand, topsoil, gravel, and T-base used for excavation in large bins and in piles up to nine feet high.
“There will still be too much heavy equipment on this site, and too much activity that will continue to adversely affect the neighbors,” said Reid in his email. “I feel the only solution is to scale down the business with less equipment, less storage of raw materials, and less activity on site.”
In his written opposition to the motion to intervene, Zehnder argues that the neighbors were kept abreast of what was happening in court by the town and, at times, were even asked to submit affidavits on the intensity of use on the property.
The abutters decided not to seek intervention because they believed the town would adequately represent their interests. “This was a case of ‘wait and see,’ a strategy that will always lead to late intervention, prejudice to existing parties and wasting of the court’s time and resources,” Zehnder wrote.
Reid offered a rebuttal to Zehnder in his statement to the court, saying the motion to intervene became necessary only when the case took an unexpected turn.
“They had no reason to intervene, as the town’s interests were fully aligned with their interests,” Reid wrote. “Only upon learning of the filing of the proposed settlement of the case, on terms the neighbors consider inadequate and incompatible with the bylaw and the decisions of the board, did the interests of the town and the neighbors diverge.”