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GFM Enterprises

RUMBLINGS

Contractor Yard’s Neighbors Seek to Participate in Negotiations

They argue the town’s deal with Great White Realty is inadequate

By Christine Legere Jun 14, 2023

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.”

TESTIMONY

Land Court Will Consider GFM Injunction on Nov. 3

Vibration, dust, and noise are not counter to public policy, Zehnder argues

By Christine Legere Oct 26, 2022

WELLFLEET — A state Land Court judge is scheduled to consider a request for a preliminary injunction on Nov. 3 to stop GFM Enterprises from operating its satellite contractor’s yard at the corner of Route 6 and Old Wharf Road until three related court cases have been decided.

Attorney Carolyn Murray of KP Law, representing the town’s zoning board of appeals, filed the injunction request last month and included testimony from nearby residents about the noise, dust, and vibration the operation has created in their neighborhood.

Attorney Ben Zehnder, who represents Great White Realty, the owner of the property, and GFM Enterprises, the Dennis-based excavating company using the land, submitted his opposing arguments a week ago.

Zehnder argues that the zoning board is not likely to prevail in the court case, which is a factor judges consider in reviewing preliminary injunction bids. He also argues that Great White Realty and GFM would suffer more harm from the injunction being granted than the town’s zoning board would suffer if it were not.

The dispute over the property began in January 2021, when Great White Realty, whose principals are Donna and Steve DiGiovanni of Truro, purchased the wooded lot at 1065 Route 6. Within days, and without securing permits, they cut down most of the trees, stripped topsoil, and started grading the land.

Then-building inspector Paul Fowler issued a cease-and-desist order, which was upheld by the zoning board. But Great White appealed the town’s action in Land Court in May 2021. Since then, two further appeals of other enforcement actions merged with the first. The cases are expected to go to trial soon.

Zehnder, on behalf of Great White and GFM, has argued that the town’s zoning bylaw allows a contractor’s yard on the property “by right,” that is, without the need for a permit, because it is in a commercial zone.

In his 24-page statement opposing the preliminary injunction request, Zehnder wrote that the town’s zoning board “has provided affidavits from neighbors about vibration, dust and noise, and asserts this is counter to public policy.” Zehnder added, “It is unreasonable to assume that normal development or improvement of a property for permitted uses is harmful to a town or runs counter to public policy.”

Meanwhile, GFM and Great White “will suffer demonstrable, irreparable harm if they cannot use the property” until the appeals are settled, Zehnder said.

GFM owner Gregory Morris submitted testimony on the harm his business would suffer under an injunction. The company’s main contractor’s yard is in Dennis. In the past, GFM leased space for equipment and supplies for use on the Outer Cape at a business in Truro.

Morris said the Truro property owner informed him in 2020 that the space would no longer be available to him. He searched for a new location but was unable to find one, he testified.

Donna DiGiovanni is a GFM employee and a friend, Morris testified. Steve DiGiovanni is also a friend, said Morris. When the Wellfleet property came up for sale, the DiGiovannis purchased it with the intention of leasing it to Morris as a satellite contractor’s yard.

“GFM is currently working on 19 projects in the Outer Cape towns,” Morris said.

If GFM cannot store trucks, equipment, and supplies for septic and drainage systems in Wellfleet, he said, he would have to spend more on transporting those things from Dennis.

Morris also said he is paying $2,500 per month to rent the Wellfleet property and $3,000 per year to insure it.

ZONING DISPUTE

Town Asks Land Court for Injunction to Stop GFM

The dust, noise, and vibrations are ‘unbearable,’ says a neighbor

By Christine Legere Sep 28, 2022

WELLFLEET — As expected, the town counsel filed a request late Monday in state Land Court for a preliminary injunction to stop GFM Enterprises from operating its satellite contractor’s yard at the corner of Route 6 and Old Wharf Road until three related court cases have been decided.

In her 13-page submission, Carolyn Murray of KP Law included testimony from nearby residents complaining about the conditions the operation has created in their neighborhood.

“At times when they are moving materials, clouds of dust are raised and drift onto my property and into my house,” wrote Laura Kozak, who lives on Wixom Avenue, a short road that runs directly behind the contractor’s yard. “The effect is unbearable.”

Christine Woods, another neighbor, said that GFM’s heavy machinery often starts work before 7 a.m. “We can hear the engines starting and running,” she wrote, “the backup beepers of the machinery and the clanging of tailgates and buckets.”

Another neighbor, who has asked that her name not be published because of fear of harassment, is quoted in the injunction request saying that the activity at GFM causes her house to shake, her dishes to rattle on her shelves, and her dogs “to go crazy.”

Murray submitted testimony from other neighbors as well along with photos taken of the property over the last several months.

“It is clearly in the public interest,” Murray wrote to the court, “that abutting properties are not affected by wafting dust and sand, excessive noise and vibrations, and therefore a preliminary injunction would protect the public interest until such time as the court is able to render a decision.”

Complaints have poured in to town officials about the operation, the town counsel said, with residents reporting they can’t enjoy their yards and that their property values have suffered.

The dispute over the property began in January 2021 when Great White Realty, whose principals are Truro residents Donna and Steve DiGiovanni, purchased the wooded lot and within days cut down three-quarters of the trees, stripped away topsoil, and started grading. That prompted a cease-and-desist order from the building inspector. That order was later upheld by the zoning board of appeals, which also denied two special permits related to the operation.

Great White appealed the town’s order in Land Court in May 2021. Two further appeals of other enforcement actions have since merged with the first. The three cases are expected to go to trial soon.

While those cases were pending, Great White Realty leased the property to GFM Enterprises, a Dennis excavating company specializing in septic systems. Over the last several months, the company has fully established its business in Wellfleet, grading the site, storing heavy equipment there, and now operating the contractor’s yard.

Attorney Ben Zehnder, who represents both Great White and GFM, filed the Land Court appeals, in which he argues that under the town’s zoning bylaw a contractor’s yard is allowed on the property “by right” — that is, without any special permit required — because it is located in a commercial zone.

Murray, on behalf of the town, has maintained that GFM’s operation is closer to a heavy industrial use than a contractor’s yard and far exceeds the bylaw’s intent. She accuses GFM and Great White Realty of disregarding orders from the town and creating the very conditions the zoning board had expressed concerns about.

In its decisions regarding the property, the zoning board cited the objective of the commercial district as stated in the town’s zoning bylaw, Murray said, which is “to provide for small and moderate scale business development for local and transient service, at the same time preserving or enhancing ocean views from the highway, preserving or enhancing landscaping, minimizing visibility of parked autos, and avoiding the creation of hazards or congestion.”

Murray went on to argue that the Wellfleet bylaw also stipulates that uses in the district “shall not be detrimental or offensive or tend to reduce property values” due to the creation of dirt, dust, noise, or vibration, along with several other factors.

“The [zoning] board’s concerns have been realized by the plaintiff’s disregard for the board’s decisions, resulting in multiple complaints of noise, dust, vibration, loss of enjoyment of property and decreased value of property by dozens of neighbors,” Murray wrote.

The select board’s decision to have town counsel seek an injunction came after the submission of a petition signed by 104 residents earlier this month demanding legal action against GFM and Great White.

To secure an injunction, the applicant must show it will likely prevail when the matter is brought to trial and, in the case of a municipality, that granting the injunction is in the public interest.

Attorney Zehnder will now be given a deadline for submitting his response to the preliminary injunction request. Land Court Judge Gordon Piper will then decide whether to schedule a hearing on the motion.

ENFORCEMENT

Town to Get Tough on Great White Realty’s Contractor’s Yard

104 Wellfleet residents sign a petition demanding action on flouted stop-work orders

By Christine Legere Sep 21, 2022

WELLFLEET — A petition bearing 104 signatures may have done what months of complaints about a contractor’s yard had failed to do.

The town will ask the Land Court for a preliminary injunction against the operation by Sept. 26. It would order a stop to all activities at the site at the corner of Route 6 and Old Wharf Road until final decisions have been made in three related suits. The town will submit affidavits from abutters regarding dust, odor, and the health effects of the activities on the site. The court will likely hear arguments sometime in October.

Neighbors have been battling Great White Realty, whose principals are Donna and Steve DiGiovanni of Truro, since the pair purchased the lot and within days cut down three-quarters of the trees, stripped away topsoil, and started grading in January 2021. That prompted a cease-and-desist order from the building inspector. It was upheld by the zoning board of appeals, which also denied two special permits related to the operation.

Great White Realty appealed that order in May 2021. Two further appeals of other enforcement actions have merged with the first, as a debate continues over what constitutes a contractor’s yard.

Attorney Ben Zehnder, representing the DiGiovannis, argued that the town’s zoning allows the use in the commercial district without special permits. Town officials argued the business is closer to a heavy industrial operation, far exceeding the bylaw’s intent.

Meanwhile, GFM Enterprises, a Dennis excavating company specializing in septic systems, leased the property and now operates a satellite contractor’s yard there despite the orders from the town.

There is now a berm planted with shrubbery flanking the entrance on Route 6. But all that separates neighbors from the operation is a flimsy stockade fence at the back of the property.

GFM ramped up business over the summer. “My summer was ruined by the noise over there,” said neighbor Kevin Coakley. The constant noise of earth-moving machinery and the beeping of trucks backing up drove him indoors, he said.

Sanatkumar Tankalwala lives directly across the street from the contractor’s yard. “After they moved in, I was unable to open my windows because of the dust and noise,” he said. Tankalwala said he appreciates the effort to get an injunction. “I hope the town is successful,” he said.

Last January, after the ZBA revoked a permit granted by an interim building inspector in November, the town’s attorney told the zoning board it would likely take an injunction to stop the operation — which would be up to the select board.

Over the next several months, neighbors and ZBA members asked why the town was taking no action. Member Michael Lynch complained that the ZBA was being made “a laughingstock.”

Last week, select board Chair Ryan Curley said his board had expected the ZBA to pursue an injunction. Since that hadn’t happened, the select board decided to do it, Curley said.

ZBA Chair Sharon Inger, however, said her board had been advised by town counsel not to take any further action.

The Sept. 6 petition asks town leaders to enforce the cease-and-desist orders. “The town has an obligation to protect the town’s property owners from harm caused by illegal activity,” it reads. It goes on to say that heavy machinery continues to work with sand, loam, and gravel. As a consequence, abutters and neighbors are suffering from noise, dust, fumes, and vibrations, in violation of local bylaws, the petitioners argue.

The neighbors hired attorney David Reid to represent their position during the various hearings held by the zoning board. “We are glad the select board has decided to take this action and hope the judge will agree to suspend the operation while the three appeals are processed,” said Reid in an email.

In a joint status report to the Land Court, Zehnder said he had completed all filings. If the town wished to have witnesses, he said, he would be ready for trial within 30 days, after taking depositions.

According to the report, the town plans to have up to three abutters testify at the trial along with the current building commissioner and possibly a past commissioner. The town would be ready for a trial by late November.

CIVICS

GFM Ramps Up Activities Despite Orders to Stop

Amid dust and noise, neighbors ask why town can’t shut down contractor’s yard

By Christine Legere Aug 3, 2022

WELLFLEET — Neighbors of a contractor’s yard at the corner of Route 6 and Old Wharf Road, which they and local officials contend is operating illegally, want the operation shut down.

GFM has planted roses and birch trees at the front of the lot they clear-cut a year and a half ago. (Photos by Nancy Bloom)

But while town officials say they know about the problems the contractor’s yard is causing, they believe the best way to address the issue is to let a court process play out.

GFM Enterprises, a Dennis-based excavating company, leases the site as a satellite location from Great White Realty Group, whose principals are Donna and Steve DiGiovanni of Truro. Donna is also listed as a project manager on GFM’s staff.

Two cease-and-desist orders have been issued over the last year by the town’s building commissioners. Both were upheld when attorney Ben Zehnder, representing GFM and Great White, asked the zoning board of appeals to reverse them. The ZBA also denied the companies’ applications for special permits for the excavating operations. But GFM continues to ignore the town’s stop-work orders.

There are currently three pending state Land Court cases appealing the town’s actions, filed by Zehnder on behalf of GFM and Great White Realty. Zehnder’s position is that a contractor’s yard is allowed by right at the site, while the town argues that GFM’s operations go far beyond the intent of the town’s zoning bylaw.

Meanwhile, neighbors say dust and grit waft in great clouds through the area, sticking to their cars and outdoor furniture and streaking their windows. The constant beeping of backhoes, bulldozers, and trucks backing up keep them indoors, they say.

“They start between 6 and 6:30 a.m. almost seven days a week,” said year-round resident Kevin Coakley, who lives at 65 Old Wharf Road. “We’ve called the police several times, but they just ignore the police. My question is, how can you negotiate with people who don’t respect the authority of the town?”

Coakley said he has lived in Wellfleet for 20 years. “I’ve never seen anything like this,” he said.

Donna DiGiovanni and GFM president Gregory Morris did not respond to emails from the Independent seeking comment.

Behind the plantings, piles of dirt are moved around the lot.

The battle dates back to January 2021, when the DiGiovannis bought the then-wooded lot and on the following day cut down three-quarters of the trees, removed topsoil, and began grading. They had not secured any permits, and their actions prompted the town’s first cease-and-desist order.

Since then, GFM has moved heavy equipment onto the site and, in the last few weeks, ramped up activity there. The company recently installed an underground electric line, neighbors say. They complained that the town’s building department had issued the required permit despite the outstanding cease-and-desist orders.

Old Wharf Road resident William Iacuessa said neighborhood outrage is widespread. “This company seems to live up to their name, Great White,” Iacuessa said. “Great White says, ‘We’ll do what we want,’ and the town does nothing.”

Town Administrator Richard Waldo confirmed that an electrical permit had been issued but said it differed from a building permit, which could be withheld. The electrical permit merely indicates the work was done according to standards set by the state.

Houses on Wixom Road have only a stockade fence separating them from all the activity. “They are very modest houses,” Iacuessa said. “If we were talking $750,000 to $1 million houses, there would be a different response.”

Iacuessa said he worries that the longer GFM is allowed to operate, the more established the operation will become, which could make it less likely the Land Court will stop it.

Sharon Inger, chair of the zoning board of appeals, said the town’s attorney has advised her panel not to take any further action. “We’ve been told any enforcement measures will be appealed and make the issue last even longer,” she said.

Asked about the option of securing a court injunction to stop work on the site at least until the three appeals are settled, new town administrator Rich Waldo said, “going for an injunction is still on the table.”

The neighbors put together enough money to hire attorney David Reid, who spoke for them during the zoning board hearings. In an email to the Independent, Reid said town officials are “painfully aware of the ongoing issues at the site.

“The neighbors are not parties to the appeals, so we have no say or direct input, but we are monitoring the appeals and supporting town counsel,” Reid said. “We had hoped that the property owners might abide by the town’s multiple rulings, but they have refused so far.”

The Land Court held a status conference with attorneys on both sides on June 22. They were given a deadline of July 31 to submit a joint report confirming completion of discovery in the cases and indicating if they plan to ask the court for summary judgment based on the submissions made.

The filings requested by the court had not yet been posted on its website by the Independent’s deadline this week.

If neither side intends to submit motions for a summary judgment, the court instructed them to request a date for a pretrial conference.

CLEAR-CUT CASE

ZBA Denies Two Appeals by DiGiovannis

Little sympathy from neighbors for proposed Route 6 ‘contractor’s yard’

By Josephine de La Bruyere Apr 7, 2021

WELLFLEET — Not since the Dunkin’ Donuts brouhaha of 2012, said zoning board of appeals chair Sharon Inger, had she seen a ZBA audience so large or so passionate as the one that gathered online on March 25.

That evening the zoning board was considering an appeal by the Great White Realty Group (GWRG) to overturn Building Inspector Paul Fowler’s order that it stop work at 1065 Route 6, the commercial lot at the corner of Old Wharf Road that was stripped of trees three months ago.

The ZBA unanimously upheld Fowler’s decision. It continued discussion of GWRG’s application for a special permit to its meeting on April 8.

Great White Realty is run by Donna and Steve DiGiovanni of Truro. They were represented at the March 25 public hearing by attorney Ben Zehnder.

On Friday, Jan. 8, GWRG closed on the $392,000 purchase of the heavily wooded 1.3-acre commercial parcel just north of Van Rensselaer’s restaurant. The next morning, clearing and earth-moving work began; by 4 o’clock Saturday afternoon, Wellfleet Planning Board Chair Gerald Parent told the Independent, 1065 “was stripped of almost every tree.”

Inspector Fowler noticed the newly clear-cut lot on Jan. 11 and — after meeting with Steve DiGiovanni — issued cease, desist, and abate orders for violating two town zoning bylaws requiring permits (“…no use of land or building shall be begun or changed without a permit having been issued”) and prohibiting open bulk storage.

Attorney Zehnder argued that the DiGiovannis had acted within their rights as land owners.

“There were no violations by the applicant in cutting those trees down,” he said. “Anybody who owns property in Wellfleet, as long as the property’s outside either a conservation buffer zone or a scenic byway, can cut down trees on your property.”

Both Fowler and Inger said that was wrong.

“I think Ben’s being a little disingenuous,” Inger told the Independent. “He knows this is against the rules. But he’s got a client, and I get that.”

Zehnder also appealed Fowler’s determination that GWRG’s proposed use of the property requires special permits. His client, Zehnder said, plans to use 1065 Route 6 as a satellite operation for GFM Enterprises, a South Dennis-based excavating company. GFM would store two one-ton dumps, two 10-wheel trucks, a loader, skid steers, and “other material on trailers” onsite, Zehnder said.

Those operations would make the property “nothing more and nothing less than a contractor’s yard,” Zehnder insisted, which requires no special permits in Wellfleet’s commercial district.

But Fowler said that, in fact, operations at the site — like the loading and unloading of excavation materials — exceeded the definition of a contractor’s yard. So did, he said, the presence and use of tracked machines onsite.

And generally, said Inger and other board members, the plan that Zehnder, the DiGiovannis, and GFM’s Greg Morris presented to the ZBA was “inadequate.”

“We don’t really know what they plan to do,” Inger said.

Fowler’s ruling that a special permit was required was also upheld unanimously.

GWRG’s application for a special permit was continued for two weeks because attorney David Reid — who represents a group of Old Wharf Road residents and neighbors — could not attend the March 25 meeting.

Reid’s clients, however, still made themselves heard. Seventeen Wellfleet residents spoke in the hearing’s first hour, and ZBA members read three letters aloud. Noise pollution, water contamination, property values, and traffic safety were the four most-cited areas of concern.

Two of the speakers supported the DiGiovannis’ application.

After an hour of comments from the public, Zehnder remarked that he had not had to deal with such “hysteria” since his first marriage. “I used to tell my wife,” he said to the virtual crowd on Zoom, “just because you’re mad doesn’t mean I did something wrong.”

The cease-and-desist order at 1065 Route 6 remains in effect. With no work allowed on the property, the lot looks the same today as it did in mid-January: a barren stretch of yellows and browns, plus three piles of fill and a scraggle of trees lining Old Wharf Road’s frontage fence.

“If somebody’s upset about this operation,” said Zehnder in an interview after the hearing, “then maybe they should have looked at the zoning map before they bought their property.”