WOBURN — A Connecticut-based construction company will contest a cease-and-desist order issued by city officials last week that mandates the immediate halt of crushed rock and other aggregate materials sales from the controversial Ledges at Woburn site in North Woburn.
On Thursday afternoon, Building Commissioner Thomas Quinn ruled Woburn 38 Development LLC and Acton-based excavation contractor Onyx Corporation were violating at least five clauses of Woburn's Zoning Code by arranging for the direct sale of processed rock from the sprawling nine-acre construction zone at 1042 Main St.
"As soon as we were notified the contractor was selling aggregate material on that site, we took swift action," said Mayor Scott Galvin, who Friday morning assured residents that the city will do what's necessary to ensure Quinn's order is enforced.
The parcel, which sits perched over Route 38 by the Altavesta Elementary School and the Wilmington line, has been crawling with construction workers and excavation equipment in recent months as demolition contractors blast away at the ledge-riddled terrain.
Ordering the landowner to immediately cease-and-desist all sales operations, Quinn is threatening to levy fines of up to $1,500 for each day the alleged unlawful activity continues.
According to Galvin, who met with Quinn in City Hall on Thursday before the order was hand-delivered to construction managers at 1042 Main St., the enforcement action stemmed from neighborhood complaints about advertisements posted directly to Onyx Corporation's website and Facebook page.
Galvin characterized those arrangements as blatant violations of both local zoning ordinances and a comprehensive permit issued under protest last year for the wildly unpopular 168-unit housing development.
"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," the mayor vowed during a phone interview this morning.
As part of his cease-and-desist order, Quinn opined Onyx Corporation cannot treat the construction zone as a retail business operation. Pointing out the parcel sits within a mixed single and two-family housing district, the building commissioner contends the proposed sale of processed ledge violates the following R1/R2 use restrictions:
• Prohibitions on both retail and business service establishments, as well as service uses in connection to those operations;
• Prohibitions on the outside storage of new or used building materials;
• And a blanket citywide ban on quarry operations.
Disputing the validity of Quinn's order on Friday, Concord attorney Paul Haverty, representing landowner Woburn 38 Development LLC, argued active construction zones are exempt from those local zoning ordinances.
Haverty, whose firm Blatman, Bobrowski & Haverty specializes in municipal land use and Chapter 40B law, also insisted that an underlying April of 2015 Housing Appeals Committee (HAC) decision clearly stipulates that his client can excavate and sell landscaping materials to offset the development costs associated with the 168-unit project.
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 allows 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.
Though prepared to contest Quinn's order, officials representing Franklin Construction are temporarily complying with the ruling.
"We have removed any advertisements for the sale of material, and we have limited the removal of materials leaving the site to [authorized vehicles] from Onyx Corporation," said Haverty on Friday morning. "I think it's fair to say we disagree with the interpretation. We're looking for clarification as to what the extent of the order is, and we're reserving all our rights until we get that clarification."
According to both Galvin and Woburn 38 Development, both sides plan on sitting down to discuss Quinn's order further next Tuesday.
Recently, the mayor acknowledged that Woburn 38 Development, per 2015's HAC decision, has been granted a myriad of local zoning ordinance exemptions to facilitate the affordable housing project.
However, he scoffed at the notion that Onyx Corporation can turn the site into an aggregate materials' wholesaler.
"Under the HAC decision, it was clear that Onyx was allowed to do that work. But they only have the authority to remove the stuff from that site. [Once its trucked away from the city], they can do whatever they want with it," said Galvin.
"This has become a very, very sensitive issue. And we're dealing with the fallout of an HAC decision that we feel is totally wrong," added the mayor. "Nobody in this city supports that project… Nobody. But we're going to do our very best to make sure the owner and the contractor comply with the construction plan, local ordinances, and state law."
According to Haverty, the city's objections to the proposed sale of materials ignore the fact that contractors like Onyx Corporation routinely sell crushed stone and rock from active construction sites.
Again describing that activity as allowed, the Concord Chapter 40B specialist claimed that aspect of the construction plan was disclosed and discussed at length during ZBA meetings and subsequent proceedings before the HAC and other courts.
Haverty also warned that Woburn 38 Development's entire construction timetable, which calls for at least two years of blasting and earthworks activity, could be prolonged considerably should Quinn's cease-and-desist order stand.
When asked how long of a delay could be expected, the area lawyer responded that his client has not yet had time to calculate the construction timeline impact.
"It's allowed by the comprehensive permit, and it does not constitute a violation of the zoning ordinances," said Haverty. "This is very typical. It's expensive to shop material off site, and [doing so] eats up the value of selling it.'
"From our perspective, any requirement [to permanently halt sales] would increase the time it takes to remove this material from the site. So if Onyx is limited to only removing material in their trucks, the construction process will take longer," he added.
For weeks now, those residing around the construction zone at 1042 Main St. have lodged a multitude of complaints about poor dust control measures, idling construction vehicles, heavy trucking traffic, and property damage from the detonation of explosives at the construction site.
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.
Local officials like Galvin, who has ordered public safety officials to closely monitor the activity in North Woburn, have insisted there is nothing the city can do to limit the scope of that construction work.
Specifically, the city spent nearly a decade battling the Ledges at Woburn development and a former iteration of the Chapter 40B project proposed by Burlington builder Anthony Santullo. Spending more than $100,000 to litigate Woburn 38 Development's modified proposal — which more than tripled the amount of earthworks activity at the site — Woburn's Zoning Board of Appeals (ZBA) lost its second protracted legal campaign against the project last winter.
Particularly, in Feb. of 2018, the Mass. Supreme Court, the state's highest court, refused to hear an appeal of a 2015 HAC ruling that overturned the ZBA's denial of a comprehensive permit for the 168-unit apartment complex, which will be clustered in three, three-story buildings.