WOBURN — Ending a five-month long administrative hearing, the Zoning Board of Appeals (ZBA) recently overturned a cease-and-desist order by allowing a Connecticut developer to fulfill crushed rock orders directly from the Ledges at Woburn site.
During their latest regular meeting in City Hall, the ZBA as expected voted unanimously in favor of modifying a comprehensive permit issued in Feb. of 2018 to Woburn 38 Development, a subsi-diary of Connecticut's Franklin Construction, for a 168-unit apartment complex at 1042 Main St. by the Altavesta School.
The ZBA action essentially provides Woburn 38 Development with a mechanism to side-step a May cease-and-desist order which forbid the North Woburn landowners' excavation contractor from selling processed stone directly from the active construction site.
Acton-based Onyx Construction, charged with removing some 357,000 cubic yards of ledge that is being blasted out of the hilly terrain at the nine-acre property, can now make arrangements with customers to pick-up those aggregate materials directly from the Wilmington line parcel. As a condition of the ZBA decision, all initial sales activity must occur off-site.
According to ZBA Chair Margaret Pinkham, who helped finalize the four-page decision in recent weeks, local officials added a series of conditions aimed at curbing the movement of heavy trucks on residential side streets off of Route 38.
Pinkham explained those restrictions include outright bans on trucking activity along Mountain Road and Kearsage Streets, as well as any other roadway where heavy vehicle traffic has been prohibited by Woburn's Traffic Commission.
The decision also includes a mandate that Woburn 38 Development include those travel limitations in any contracts signed with third-party customers. As a general rule, the petitioner — through Concord attorney Paul Haverty — has agreed drivers should head directly to Route 128 via Main Street or utilize Route 38 and Route 129 in Wilmington to get to I-93.
"I know there was a lot of concern about the travel of trucks on local roadways. The petitioner on his own agreed to restrict access on Mountain Road and Kearsage Avenue," said Pinkham. "Interestingly, all of the major local roads that head to North Woburn from the Woburn Mall area are already subject to heavy trucking restrictions."
Late last spring, Building Commissioner Thomas Quinn issued a cease-and-desist order to Woburn 38 after discovering that Onyx Construction had posted advertisements that invited landscapers and other aggregate materials customers to purchase their products directly from 1042 Main St.
At the time, the Acton-based excavation contractor was just weeks into a massive earthworks operation that involves extensive blasting activity and the use of heavy machinery to grind down that stone into aggregate materials.
Per a 2015 ruling by the state's Housing Appeals Committee (HAC), the pre-construction site work phase of the housing project is expected to last roughly two years. The ZBA, which had for more than decade tried to block the underlying 168-unit apartment project, ultimately lost that case in Feb. of 2018.
Late last spring, Quinn declared the sale of crushed stone — even if the arrangements solely involved the pickup of those products — as akin to running a quarry or retail sales operation. Each of those businesses, the building commissioner insisted, were prohibited uses within the underlying residential zoning district.
In a subsequent appeal filed in late June, Haverty claimed the HAC's 2015 decision supersedes Woburn's zoning regulations and granted his client permission to sell any processed stone.
North Woburnites, who insist that the developer is already ignoring a host of relevant state and federal regulations regarding dust control, blasting activity, and work site safety practices, are furious about Woburn 38's most recent request to allow third-party truck access.
However, during the last two ZBA hearings on the petition, the city officials insisted the developer was likely to prevail in any protracted legal challenge that made its way back before the HAC, which deals with appeals of Chapter 40B or affordable housing petitions.
During the most recent administrative hearing, ZBA member Edward Robertson sought to assure neighbors that the city had the ability to enforce trucking prohibitions included in the recent comprehensive permit amendment.
However, in response to those inquiries, Quinn did acknowledge there is some ambiguity around his office's powers to enforce travel restrictions on public ways.
Ultimately, the building commissioner explained, such complaints would have to be dealt with by local police. Quinn did say his office regularly works with the police department to handle similar issues.
"Would it be your view that your staff, if they saw a violation, could [fine the developer]?" asked Robertson.
"If it was on the public way, we'd report it to the police department. But if there was a violation on private property, I see no reason why we couldn't issue fines for a violation," Quinn responded.
Later asked to weigh-in on the matter, Haverty told the ZBA that if his client was notified about trucking movement violations, corrective actions would be taken.
"Typically, you don't just start with the imposition of fines. You begin with a notice that you're in violation. If that is the case, we'd take action," he said. "If it's a driver who's simply not [following these rules], we'd take corrective action up to and including no longer allowing that company to come to the site."
Attached to the recent ZBA decision were the following other conditions:
• All trucks entering the construction site to pick-up processed materials must have a carrying capacity of at least 18 cubic yards and no more than 35 cubic yards;
• No trucks will be allowed to queue along Main Street or any other public way or property, and all drivers must adhere to a truck staging plan submitted to the ZBA on Oct. 5;
• The front gates into 1042 Main St. may not open prior to 7 a.m. and must close at 4 p.m.;
• Trucks entering the property may not idle on the site for longer than five minutes;
• All aggregate materials sales must be initiated off-site by excavation contractor Onyx Construction, which is strictly forbidden from advertising the availability of crushed rock at 1042 Main St.;
• A weigh station, which was recently installed just inside the gated entrance into the construction site off of Main St., must remain on the grounds until all earth removal activity has been completed;
• Onyx Construction is required to install video cameras, equipped with a live-feed, which will record all activity by the industrial scale. Those recordings must be maintained for at least 60 days and any such footage must be provided to Building Inspector Thomas Quinn upon request;
• All heavy vehicle operators must adhere to state regulations regarding how material loads must be secured in order to prevent debris from falling onto local streets and causing safety hazards.