WOBURN - The Zoning Board of Appeals (ZBA) next week will consider a Connecticut-based construction company’s challenge of a cease-and-desist order that forbids the sale of crushed rock and other aggregate materials from the Ledges at Woburn site in North Woburn.

In an appeal received by City Clerk William Campbell’s office late last week, Concord attorney Paul Haverty contends that Building Commissioner Thomas Quinn erred last month in declaring that Woburn 38 Development LLC was violating multiple sections of Woburn’s Zoning Code by arranging purchases of processed rock from the active construction zone at 1042 Main St.

“As noted in our appeal letter, we do not believe the building commissioner was correct in his determination that a zoning violation has or will occur as a result of end-users picking up processed material at the property,” noted the lawyer, a partner at Blatman, Bobrowski & Haverty, LLC.

Woburn 38’s recent correspondence is listed as the eighth matter to be considered by the ZBA next Wednesday, when it will meet at 6 p.m. in City Hall’s Council Chambers.

The appeal is linked to the controversial 168-unit housing project being constructed on a nine-acre parcel that sits perched over Route 38 by the Altavesta Elementary School and the Wilmington line. Earthworks activity at the site has sparked an uproar in North Woburn in recent months, especially of late as demolition contractors blast away at the ledge-riddled terrain by detonating explosive charges on a regular basis.

The blasting and heavy trucking activity, the precursor to actually erecting three permitted three-story buildings on the hilly terrain, is alone expected to continue for at least the next two years.

The ZBA officials are no strangers to the Ledges development, as they twice denied permits for the housing complex in 2002 and 2012.

In total, city officials, through the ZBA, fought the Chapter 40B development and a previous iteration of the project for well over a decade. In Feb. of 2018, Woburn lost the latest battle when the Mass. Supreme Court, upholding a 2015 Housing Appeals Committee (HAC) decision, ordered the city to issue permits for the affordable housing project.

The latest legal scuffle involves Quinn’s May 9 ruling that Woburn 38 Development and Acton-based excavation contractor Onyx Corporation were violating at least five sections of Woburn’s zoning ordinances by arranging for the direct sale of processed rock from the construction zone.

The building commissioner’s cease-and-desist order, which threatened to levy fines of up to $1,500 for each day the alleged unlawful activity continued, stemmed from complaints about sales advertisements being posted directly to Onyx Corporation’s website and Facebook page.

Quinn insists the area’s underlying single and two-family zoning designations forbid such sales, which he described as akin to retail and business service activities or a quarry operation.

In the days after the building commissioner hand-delivered his decision to Woburn 38 officials, Mayor Scott Galvin insisted the city was fully prepared to take any actions necessary to enforce the cease-and-desist order.

“They were inviting contractors to come to the site and pick it up. That is not allowed, and we’re going to make sure the contractor tows the line,” vowed the mayor during an previous phone interview.

State permitted on-site sales?

In the recent appeal, Haverty, representing Connecticut-based Franklin Construction, insists the 2015 HAC decision clearly authorizes his client to sell landscaping materials from the site to offset the development costs of the affordable housing project.

The Chapter 40B law specialist is asking zoning board officials to classify the building commissioner’s mandate as invalid in light of that superseding HAC permit.

Should the ZBA disagree with that interpretation, the lawyer subsequently requests that the city officials instead modify his client’s comprehensive permit to allow for the on-site materials sales.

“It is the contention of Woburn 38 that it was well-known by all parties that processed materials would be sold, therefore the decision of the Housing Appeals Committee provides all necessary authorization for such sales,” Haverty contends in his June 7 letter to the ZBA.

“[E]ven if the on-site pickup of processed materials was not contemplated as part of the decision of the [HAC], it is indisputable that there would be no discernible impact from allowing materials to be picked up on-site by end-users, rather than requiring the materials to be hauled off-site by the developer.”

Woburn 38 Development is an umbrella entity of Connecticut-based Franklin Construction Company, which was required under the state’s 40B statute to create the separate corporate holding.

Under the state statute, which allow builders to skirt local building and zoning ordinances in communities that lack adequate affordable housing, corporations are restricted in how-much profit can be generated from approved developments.

Echoing assertions made to The Daily Times the day after Quinn issued the cease-and-desist order, Haverty claims that should the ZBA deny his client’s appeal, the entire development timeline will likely be extended.

Specifically, Onyx Corporation and Maine Blasting and Drilling have been hired by Franklin Construction Company to remove nearly 420,000 cubic yards of materials from the nine-acre site.

In order to remove such a vast volume of ledge, Maine Blasting and Drilling crews eventually plan to daily set off two controlled demolition charges, each containing the equivalent of 2,000-to-2,500 pounds of TNT.

Onyx Corporation will also use heavy machinery to crush and grind an estimated 357,632 cubic yards of materials. Overall, a total of 418,281 cubic yards of materials are to be removed by heavy dump trucks. Those heavy vehicles, according to the petitioner, will travel to and from 1042 Main St. some 13,332 times over the next two years.

However, according to the developer, those trucking trip calculations were based off of the assumption that contractors would be allowed to travel directly to 1042 Main St. to pick up the crushed stone and aggregate materials.

Should his client now be ordered to truck all of that material offsite, Haverty insists, Onyx Corporation will reportedly need to revise that timeline, as the firm lacks sufficient heavy equipment to meet the demand.

“In fact, if the removal of processed material is limited solely to trucks owned or rented by Woburn 38’s contractor, the length of time for completing the earth removal will be significantly extended, as there will be fewer trips per day,” the Concord lawyer suggests.

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