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TOWN OF HINGHAM
Board of Appeals

NOTICE OF DECISION
SPECIAL PERMIT A2 MODIFICATION

IN THE MATTER OF:

Applicant and W/S/M Hingham Properties, LLC
Property Owner: 33 Boylston Street
Chestnut Hill, MA 02467

Premises: Derby Street Shoppes
90 Derby Street
Hingham, MA 02043

Deed Reference: Plymouth County Registry of Deeds, Book 30816, Page 261

Plan References: Floor Plan, prepared by Interior Architects, 257 Park Avenue South, New York, NY, dated April 4, 2016 and Facade Rendering, undated, received on June 6, 2016

SUMMARY OF PROCEEDINGS

This matter came before the Board of Appeals (the "Board") on the application of W/S/M Hingham Properties, LLC (the "Applicant") to modify the existing Derby Street Shoppes Special Permit A2, issued February 10, 2003 under § III-A, 4.17 of the Zoning By-Law (the "By-Law"), as amended, to convert two retail tenant spaces to a financial use, consisting of a Capital One Cafe, at 90 Derby Street in the Industrial Park and South Hingham Development Overlay District. In conjunction with this Special Permit A2 Modification, the Applicant simultaneously filed an application with the Planning Board for Site Plan Review under § I-G and § I-I, along with a Special Permit A3 Parking Determination under § V-A of the Zoning By-Law (the "By-Law").

The Board opened a hearing on the application jointly with the Planning Board at a duly advertised and noticed public hearing on April 11, 2016. At the conclusion of the hearing, the Planning Board voted to waive its Site Plan Review in conjunction with the Special Permit A2 Modification. Subsequent public hearings were held before the Board on May 2, 2016 and June 6, 2016. In accordance with § I-I, 2.b., the Board voted unanimously at the conclusion of its hearing to conditionally grant the requested Special Permit Modification.

The Board of Appeals panel consisted of its regular members Joseph M. Fisher, Chairman, Joseph W. Freeman, and Robyn S. Maguire. The Applicant was represented by Attorney Robert L. Devin, Derby Street Shoppes General Manager Bill Hamilton, and WS Development Project Manager Andrew Manning.

Throughout its deliberations, the Board has been mindful of the statements of the Applicant and the comments of the general public, all as made or received at the public hearing.

BACKGROUND AND DISCUSSION

The Derby Street Shoppes is a Shopping Center allowed by Special Permit A2 under § III-A, 4.17 of the By-Law. The By-Law provides that shopping centers may consist of a mix of uses, including retail stores, commercial service establishments, restaurants, professional offices, financial institutions, indoor amusement or health clubs, hotels, and gas stations. However, the initial Special Permit for the Derby Street Shoppes, dated February 10, 2003, limited the allowed uses to retail and restaurants. In 2013, the Applicant sought a minor modification of this permit to allow a financial use, Charles Schwab, to locate within the center. The Board approved the request, but noted in the decision that the approval could not be viewed as a "precedent allowing any such future application." The Applicant now seeks further modification of the Special Permit to allow a second financial use, Capital One, and a related 48-seat cafe, to occupy two retail tenant spaces.

While the proposed use represents in part a departure from the originally contemplated Shopping Center, it is an allowed use under § III-A, 4.17, as noted above. However, members expressed concern during the hearing that the proposed use may negatively affect pedestrian activity and the overall character of the predominately retail center. In response, the Applicant submitted conceptual floor plans and a facade rendering, which locate the cafe use at the front of the space. The Applicant represented that certain design choices were intended to invite the public into the space, including fully operational front windows. The ATMs would also face into the space instead of toward the sidewalk to downplay this traditional bank feature. Members determined that the proposed Capital One Cafe configuration and architectural details would effectively highlight the cafe and minimize the financial use, thereby eliminating any potential negative impact on pedestrian activity within the shopping center.

FINDINGS AND DECISION

Based on the information submitted with the application and presented during the hearing, the Board found that the proposed conversion of two retail tenant spaces to a financial use with a related restaurant use would not affect the specific findings made by the Board in conjunction with its Special Permit A2 for the Derby Street Shoppes, originally issued on February 10, 2003.

Upon a motion made by Robyn S. Maguire and seconded by Joseph W. Freeman, the Board voted unanimously to APPROVE the requested Special Permit A2 Modification to convert two retail tenant spaces to a financial use, consisting of a Capital One Cafe, at 90 Derby Street, subject to the following conditions:

1. The granting of such modification shall not be viewed as a precedent allowing additional financial use within the shopping center in the future.

2. Plans and specification for the Capital One Cafe signage shall be submitted to the Board for review prior to application for a Building Permit.

3. Unless specifically modified by this Decision, all other conditions of the Derby Street Shoppes Special Permit A2, dated February 10, 2003, as amended, shall remain in effect.

This decision shall not take effect until a copy of the decision bearing the certification of the Town Clerk that twenty (20) days have elapsed since the decision has been filed in the office of the Town Clerk and no appeal has been filed, or that if such appeal has been filed, that it has been dismissed or denied, is recorded with the Plymouth County Registry of Deeds and/or the Plymouth County Land Court Registry, and indexed in the grantor index under the name of the record owner or is recorded and noted on the owner’s certificate of title.

For the Board of Appeals,


_________________________________
Joseph W. Freeman
June 27, 2016