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SOMERVILLE, MA-The city’s planning board is mulling over its response to a judge’s recent ruling that he wants to understand why the board did not require a special permit site plan review when approving the development of a 173,000-sf Home Depot at Assembly Square Mall.

Sean Fitzgerald, spokesperson for city Mayor Dorothy Kelly Gay tells GlobeSt.com that the planning board held a meeting in which the traffic analysis for the development of the store was heard. The board then went into executive session.

“We were relieved that the judge didn’t void the decision,” Fitzgerald says referring to the judge’s request for the board’s explanation. “By no means was this a defeat. We hope that when the judge gets the planning board’s explanation, he concurs and we can soon start development in Assembly Square.” 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 wants to build a residential complex, office space and an arts center on the site.

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 mixed uses, but not big-box stores, on the 145-acre Assembly Square site.

“This is a delay in the decision,” Bob Fishman, a partner at Nutter, McClennan & Fish, explains to GlobeSt.com. Fishman is the lawyer for Assembly Square Limited Partnership. “The judge is waiting to hear from the planning board.” While Mystic View views the judge’s decision as a victory, Fishman emphasizes that the judge’s ruling has been misconstrued. “The judge said there is a question of what kind of special permit [Home Depot] should obtain,” he notes.

The decision hinges on the type of special permit Home Depot needs to build its store. The city’s planning board, basing its decision on the city’s building inspector, required a special permit that was predicated on the fact that Home Depot, as a retail store, was the same use as the mall stores that previously occupied the space. Mystic View contends that because the mall stores were much smaller Home Depot’s use is not the same and a special permit site plan review should be required. “At the time [the planning board] felt that that special permit was all that was necessary,” says Fitzgerald, explaining the planning board’s decision.

Fishman points out that Mystic View’s objection goes beyond Home Depot obtaining the correct permit for its store. “They have stated publicly that they want mixed use development there,” he says. “The objection is they want something other than Home Depot there.” Bill Shelton, president of Mystic View, has told GlobeSt.com that the group does not want such a large store on the site.

Home Depot already has a 135,000-sf store nearby but Fishman says that while the company is looking for a larger store, its main issue is that it wants the additional parking spaces that the new location affords.

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