WOBURN - With its Ordinance Committee this week embracing the proposal, the City Council will likely soon enact a sweeping overhaul of the community's mitigation ordinance.

During a recent meeting in City Hall, members of the council committee unanimously recommended passage of the Woburn's zoning ordinance amendments, which would replace the community's decades-old system for calculating mitigation payments for new developments.

"I think this will make it easier for us and for petitioners, so everyone understands exactly what the rules are," said Alderman at-large Michael Concannon, who has been a steady critic of how Woburn's present mitigation ordinance is applied.

Perhaps most significantly, the new regulations will completely scrap the city's previous 3 percent standard, which allowed special permit applicants escape an extended project review by paying the city a lump-sum contribution, equivalent to 3 percent of a proposed development's overall cost.

Under that old methodology, local builders, rather than performing a mutually agreed upon list of improvements to roadway networks and utility infrastructure to mitigate the impacts of developments, were instead allowed to cut a check for deposit into a special "Traffic Safety and Infrastructure Fund".

Under the revised standard, the ordinance, besides eliminating all references to that 3 percent calculation, makes clear the City Council's preference that developers arrange for the implementation of all mitigation work.

Developers may still ask the city to bypass that requirement by contributing money to the special account, but rather than retaining an automatic right to do so, petitioners must obtain the city's permission through a two-thirds vote of the council.

In effect for nearly 20-years now, Woburn's mitigation ordinance was enacted in order to codify the obligations of special permit applicants to their neighbors and the community as a whole, when new private developments are proposed.

However, last summer, Waltham-based Duffy Properties' challenged the city's application of the 3 percent standard in regards to its proposed townhouse redevelopment of the old Verizon trucking terminal site at 285 Locust Street.

In an ensuing Land Court decision, a judge this spring ordered the reduction of Duffy Properties required mitigation payment from $300,000 to $50,000.

The Land Court ruling was based upon the judge's conclusion that Woburn inappropriately applied the 3 percent standard, which only comes into play when a developer looks to skirt an extended project impact review, when determining the scope of the developer's mitigation obligations.

In the years prior to the Locust Street case, city officials like Concannon had long complained that the CIty Council had wrongly become accustomed to automatically assuming developers were on the hook for implementing mitigation work equivalent to the 3 percent standard.

According to those critics, that starting methodology was fatally flawed, because petitioners were in actuality only responsible for offsetting presumed neighborhood impacts — regardless of whether they cost more or less than the 3 percent calculation.

In the wake of the court ruling, City Council President Michael Anderson, Ward 7 Alderman Linsday Higgins, Ward 5 Alderman Darlene Mercer-Bruen, and Ward 2 Alderman Richard Gately introduced the proposed overhaul.

Other changes

Besides nixing all references to the 3 percent standard, the legislation's sponsors are also looking to address several other common complaints about the way the mitigation ordinance functions.

For example, a number of aldermen have repeatedly knocked City Hall officials for their administration of the Woburn's special traffic mitigation and infrastructure account.

Most commonly, the city officials have castigated the mayor and other officials for expending money from the fund for purposes unrelated to their original purposes. In other instances, various aldermen have sought explanations as to why certain roadway and utility system improvements, which were fully-funded by contributions from developers years earlier, are not being completed.

To put a halt to those alleged abuses, the proposed reforms mandate that future deposits must be directly linked to specific mitigation measures, which must be implemented within two years.

If that two-year deadline expires, the council, after convening a public hearing, may vote to expend that clock out for another two years. Should that money still not be expended after four years, it will automatically return to the business or individual who originally made the payment.

"This puts the onus on the city, if we do take money for a development, to take action to mitigate the impact we took the money for," Ward 7 Alderman Edward Tedesco said this week.

The new mitigation rules also extend new protections to the city to ensure developers don't abandon work on a project and leave the community on the hook for the bill associated with installing sidewalks, access roads, utility connections, and other commitments.

In a process meant to mirror the Planning Board's subdivision approval process, which require builders to post performance bonds, special permit applicants will now be required to make a similar pledge. To ensure that funding is sufficient years after the original special permit is issued, that surety must include an additional 12 percent cushion to count for inflation.

Once a final occupancy permit is delivered, developers will be able to recover that money.

"It tightens up our ordinance and mitigation package. If they're short money [and don't meet their obligations], we can make sure the project is finished," said Gately of that clause.

Several other new components to the zoning ordinance are as follows:

• A requirement that within 30-days of a special permit application being filed, City Engineer Jay Corey's office must issue a written determination as to whether the mitigation ordinance applies to the proposed development;

• An expansion of traffic impact study criteria, which shall now include vehicle trip counts that are no longer than a year old, an analysis of recent area accident reports, and a forward-looking traffic projection that is based upon vehicular circulation for the year in which the development will be occupied;

• and the filing of a fiscal impact analysis, which examines a project's direct impacts upon the community's provision of public safety, educational, environmental protection, and recreational services.

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