WOBURN - Demanding additional details about the proposed third-party materials' pickups, the Zoning Board of Appeals (ZBA) late last week refused to sanction the sale of processed rock from the Ledges at Woburn site off Route 38 by the Altavesta Elementary School.

During their most recent meeting in City Hall, ZBA members scoffed at Woburn 38 Development LLC's contention that its comprehensive permit for an apartment complex at 1042 Main St. includes zoning waivers allowing for the sales of aggregate materials being created as a result of ongoing blasting and rock-crushing activity at the nine-acre parcel.

Woburn 38 is a subsidiary of Connecticut's Franklin Construction Company, which is overseeing the controversial construction of a 168-unit housing complex on elevated terrain that overlooks Route 38 in North Woburn by the Wilmington line.

"From my perspective, the whole idea that, 'Oh, everybody knew [we were going to be doing this],'…it's certainly new to me. Other board members can correct me, because I don't want to speak for them, but this is new to all of us," said ZBA Chairwoman Margaret Pinkham of the proposed crushed rock sales.

"This just keeps evolving," later remarked an incredulous ZBA member John Ryan. "If you can point to testimony or minutes that indicate outside trucks were to be involved, I'd be interested in seeing it."

Given that widespread board skepticism, the ZBA turned to secondary components of Woburn 38 Development's appeal of a May 9 cease-and-desist order issued by Building Commissioner Thomas Quinn.

Ultimately, the city officials directed the petitioner to furnish a myriad of details about the proposed materials sales, which Quinn has deemed illegal under at least five separate sections of Woburn's Zoning Code.

Specifically, the petitioner's multi-pronged appeal is asking the ZBA to amend its permits by inserting language that grants its excavation contractor clear authority to arrange for aggregate materials' pickup by third-parties, whom will purchase the crushed rock through an off-site sales office.

Woburn 38 Development is further requesting that the comprehensive permit modifications be labelled an "unsubstantial change", a legal designation which will allow the applicant to bypass public hearing requirements.

"It would seem the board is entitled to more factual information to make a determination about substantiality," said ZBA member Edward Robertson, who described Woburn 38 Development's appeal letter as largely void of evidence and details to justify that request.

According to the city officials, specifics must be provided before the board can act on those secondary components of Woburn 38 Development's petition, which asks the ZBA to modify the 2015 comprehensive permit for the apartment complex to allow for the third-party transactions.

Representing the petitioner, Concord attorney Paul Haverty agreed to prepare documentation showing how the third-party trucking pickups will function at the site. The Chapter 40B or affordable housing specialist also agreed to extend the ZBA's 20-day deadline for acting on the appeal.

The ZBA continued the matter until its next meeting on July 17.

The local zoning board officials are well-versed in the Ledges at Woburn history, as since 2002, the ZBA unsuccessfully fought two separate iterations of the Chapter 40B or affordable housing project. In Feb. of 2018, the city lost its latest six-year legal battle with Woburn 38 Development after the Mass. Supreme Court ordered the ZBA to issue a comprehensive permit for the project.

The terms of those permits are spelled out under a 2015 decision of the Housing Appeals Committee (HAC), which has jurisdiction over immediate appeals of Chapter 40B cases.

Direct appeal skepticism

The ZBA's ultimate focus on the proposed comprehensive permit amendments suggests the city officials are prepared to dismiss Woburn 38 Development's contention that it is already allowed to arrange for third-party materials sales.

Last month, Quinn hand-delivered that paperwork to Woburn 38 after neighborhood abutters discovered that Acton excavation contractor Onyx Corporation was advertising the sale of crushed rock and other materials that are being stockpiled at the sprawling construction site.

Earthworks activity at the site has sparked an uproar in North Woburn, where in recent months, demolition contractors have begun blasting away at the ledge-ridden slope by detonating explosive charges multiple times a week. The ledge removal operation, which includes the onsite use of industrial rock-processing machinery, is expected to continue for nearly two years and will reportedly involve more than 13,300 heavy truck trips to and from the 1042 Main St. parcel.

During the recent ZBA discussion, Haverty insisted Quinn overstepped his authority in issuing the cease-and-desist order, because the HAC's 2015 decision envisioned the transport of crushed rock and other materials from the construction site by third-party buyers.

However, when pressed by Pinkham and others to show exactly where the state referenced such a scenario, the Concord attorney described those HAC permissions as implied rather than explicitly outlined in the 2015 decision.

"My first question for you is where in the HAC decision does it authorize the property owner to post ads on Facebook and Craigslist to invite people to come by to pick up crushed stone?" challenged Pinkham, in an inquiry posed the moment the ZBA deliberations began last week.

"Madam chair, it's not directly in the decision," Haverty conceded matter-of-factly. "What was raised during the core of the proceedings…"

"I"m sorry," Pinkham interrupted. "Let me get the answer to my question. Is the answer that nothing is in the HAC decision?"

"Again, Madam chair, there is nothing in the decision that addresses that issue directly. Our position is that there's no [direct] authorization necessary. It's implicit," the Chapter 40B legal specialist responded.

Far from being unnerved by that tough line-of-inquiry, Haverty insisted that his client, if forced to challenge the cease-and-desist order in court, would prevail based upon the testimony and evidence submitted during the ZBA's 2012 deliberations over the Ledges project.

According to Haverty, when his client appealed the city's denial of permits, the HAC focussed at-length on his clients' controversial proposal to removal of some 418,000 cubic yards of ledge and fill from 1042 Main St.

In his view, by determining that the public's need for affordable housing outweighed neighborhood concerns over ledge-removal blasting operations, as well as related trucking traffic, the HAC in essence accepted that the developer's excavation contractor would rely upon third-party buyers to transport some of those materials away.

"This is how processed materials are sold at construction sites throughout the Commonwealth. It's very typical," the Blatman, Bobrowski & Haverty, LLC lawyer said. "The applicants experts, providing [the ZBA and HAC] estimates on the costs of excavation, took into account that materials will be picked up by [buyers] at the site."

Rejecting that reasoning, the ZBA, referencing a footnote in the 2015 HAC decision that refers to crushed rock being "taken off site and sold for other construction projects", insisted that Onyx Corporation officials had also in 2012 made reference to sales taking place from its Acton headquarters.

"I can remember a representation [from an Onyx representative] that he was in discussion with parties interested in purchasing that crushed stone. I think I can remember him as saying there was interest from six potential buyers," said Pinkham.

"It was always presented that the materials would be transported off site to companies that would then distribute the material," Ryan later added.

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