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Another neighbor, who has asked that her name not be published because of fear of harassment, is quoted in the injunction request saying that the activity at GFM causes her house to shake, her dishes to rattle on her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