WOBURN - A city-retained attorney opined earlier this week that the council can issue a special permit to Cummings Properties that allows biotechnology uses at its TradeCenter 128 development.

In a two-paged opinion received by City Clerk William Campbell's office on Wednesday, Kopelman & Paige, P.C. attorney Jonathan Silverstein argued that the Aldermen could proceed with the special permit deliberations, notwithstanding an earlier Planning Board ruling against the modification.

However, Silverstein also stipulates in his opinion that Cummings Properties' must still obtain permission from the Planning Board to lift a restriction on the original special permit issued for the office park.

The council is expected to deliberate on the TradeCenter 128 petition, which seeks to allow research and laboratory uses at the North Woburn site, next Tuesday.

At issue was whether the denial by the Planning Board, which granted the original special permit for the office park in Dec. of 2006, prevented the council from acting further on Cummings' request.

In particular, the city's planners refused on Oct. 15 to allow Cummings Properties to alter a condition in the 2006 special permit that limits the uses at the site to those allowed by-right within the office park (OP) zoning district.

Although research and laboratory uses are allowed in the city's OP districts, they are not permitted by-right (a special permit must be obtained).

"In my opinion, the regulatory authorities of the Council (as special permit granting authority) and the Planning Board (as site plan review authority) are entirely separate in this case," Silverstein argued in his opinion.

"[T]he fact that the Planning Board denied site plan approval does not affect the Council's discretion with respect to the special permit application," the lawyer concludes. "Accordingly, should the Council decide to grant a special permit, it would have the authority to do so, in my opinion."

Two-tiered approval

According to Planning Board Director Edmund Tarallo, he agrees with Kopleman & Paige's argument that the City Council can continue its deliberations on the special permit request.

However, Tarallo also underscored Silverstein's contention that Cummings Properties' still needs to address the use restrictions tacked onto the Planners' original 2006 approval for the TradeCenter 128 site.

Cummings officials, who approached the Planning Board without providing any concrete details on specific biotechnology tenants or the areas within the office park where they'd work, have appealed the Oct. 15 denial to the Land Court.

"Clearly, the answer in simple terms is that the City Council can use their discretion to grant or not grant the request from Cummings," said Tarallo in a phone interview on Thursday.

"But just because the City Council may grant a special permit, that doesn't unilaterally give them [Cummings] the ability to go forward. They need both approvals," the Planning Board director suggested.

Last October, the Planning Board rejected Cummings Properties request to lift the use restrictions because the petition included no information on which companies would be moving to the site, where the biotechnology firms would be situated, and what types of work the tenants would be conducting.

According to Claudia Leis Bolgen, she believed that the applicants' request for a blanket approval of biotechnology uses at the office park was inappropriate in the form of a special permit request.

Specifically, the planner contended that a special permit was intended to be granted on a case-by-case basis, and as such, any requests should include concrete and detailed information on the companies that would ultimately move into the office park.

"Functionally, what you're asking for is that this type of use be allowed by right. The point of a special permit is a case-by-case evaluation of the particular business," said Leis Bolgen, who believed Cummings should instead be asking to amend the zoning code to allow biotechnology uses by-right in the OP district.

Planning Board member David Edmonds, echoing several citizens' concerns, later argued that biotechnology uses were inappropriate for the North Woburn site, which is located adjacent to a residential neighborhood.