The complaint was filed by Louana Evarts, an abutter to the project. Evarts is backed by Mystic View Task Force, a local activist group that is in favor of seeing mixed-use developments, but not big box stores, on the 145-acre site have.

Home Depot wants to develop its store on 10 acres that is part of a 26-acre parcel owned by Assembly Square Limited Partnership, a joint venture of Taurus New England Investments Corp. and Gravestar Inc. The team also plans a residential complex, office space and an arts center on the site.

"It's a big deal," Bill Shelton, president of Mystic View Task Force tells GlobeSt.com referring to the ruling. He points out that the judge is saying "what was our contention all along."

In his ruling, Judge Stephen E. Neel says that the plaintiff has the right to bring this legal action and that the city should have required a site plan review for the store. But he stops short of making a final judgment and asks the city's planning board to make a case for why it didn't request the review for the project. But, he notes, "if later proceedings require, the Court will enter findings on the remaining actual issues tried by the parties."

The sticking point is the previous use of the site. The city has said that the previous stores in the mall were non conforming uses as is the Home Depot. But Mystic View insists that the previous stores were conforming uses and the judge agrees, points out Shelton, necessitating the review. But even if a non conforming use were replacing a conforming use, Shelton notes that the project would need to be a renovation of the same structure but Home Depot wants to demolish the existing structure. The Task Force also contends that the significant increase in traffic if the new store would present "substantial detriment" to the community, which also would trigger a review.

But perhaps most significantly, a site plan review would force the site to be designated an interim planning district, a designation that was created after Home Depot filed its plans and imposes more stringent rules on the Assembly Square area. Home Depot's initial application wasn't subject to the designation because of its timing.

Home Depot already has a 135,000-sf store in the area so a new store would have to be significantly larger in order to make it worth the company's while. It's unclear if that's possible under the new zoning laws. The situation is tricky for Assembly Square Limited Partnership as Home Depot is leasing the site from them for 99 years and has already paid them $26 million.

Instant Insights /

Judge's Ruling Puts 173,000-SF Proposed Home Depot in Jeopardy

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