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Great White Realty

    RUMBLINGS

    Contractor Yard’s Neighbors Seek to Participate in Negotiations

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

    By

    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.”

    LAND USE

    Great White and GFM Get Their Contractor Yard

    Town and excavators strike a deal, but neighbors feel betrayed

    By

    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.

    Under the town’s deal with Great White, GFM will be able to store sand, topsoil, gravel, and T-base in concrete bins 16 feet wide and 24 feet deep. Loose materials may also be kept onsite but can’t be in piles over nine feet high. (Photo by Nancy Bloom)

    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.”

    TESTIMONY

    Land Court Will Consider GFM Injunction on Nov. 3

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

    By

    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

    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

    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.

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