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TOWN OF HINGHAM
Board of Appeals
NOTICE OF DECISION
IN THE MATTER OF:
Applicant/Owner: W/S/M Hingham Properties LLC
33 Boylston Street
Chestnut Hill, MA 02467
Agent: Attorney Robert L. Devin
Devin, Barry & Austin, P.C.
80 Washington Street, Bldg S
Norwell, MA 02061
Premises: 90-100 Derby Street, Hingham, MA 02043
Deed Reference: Plymouth County Registry of Deeds, Book 30816, Page 261 and and
Book 24538, Page 298
Plans and Submittal References:
• Plan set entitled, “Derby Street Shops Expansion, 100 Derby Street in Hingham Massachusetts,” prepared by BSC Group, 803 Summer Street, Boston, MA, dated March 9, 2018 and revised through July 13, 2018 (11 sheets), including a Layout & Material Plan (Sheet C-103), Grading & Drainage Plan (Sheet C-104), and Utility Plan (Sheet C-105), revised through September 10, 2018
• Traffic Management and Parking Plan, Derby Street Shops, Hingham, Massachusetts, Dated September 13, 2018, revised to November 29, 2018
• Restricted Use Plan with respect to Fitness Use, Outdoor Event, and Existing Financial Use Areas, dated March 9, 2020
• Technical Memorandum, dated October 29, 2019, prepared by Desman Design Management
• Shared Parking Models, submitted by Derby Street Shops on October 29, 2019, revised to March 8, 2020
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”) for a Modification of the Special Permit A2 Decision, originally issued December 13, 2002, as amended, under § III-A, 4.17 of the Zoning By-Law (the “By-Law”) and such other relief as necessary to allow all uses provided as subsets of the Shopping Center use in addition to the following uses under § III-A: 3.3 Private School, 3.4 Nursery School, 3.8A Clinic, 4.13 Commercial Outdoor Amusement, and § V-E Personal Wireless Service Facility to locate within the Derby Street Shops. The Applicant also submitted, and the Board simultaneously heard, a request to modify the Special Permit A1 and Variance Decision, originally issued February 10, 2003, as amended, under § V-B of the Zoning By-Law and such other relief as necessary in order to update the applicable Signage Criteria at 90-100 Derby Street in the Industrial Park and South Hingham Development Overlay Districts.
The Applicant additionally filed a related application with the Planning Board for Site Plan Review under § I-G and § I-I of the By-Law, along with an application for a Special Permit A3/Parking Determination under § V-A of the By-Law. The Boards’ respective proceedings took place separately. The Planning Board voted on June 18, 2020 conditionally approve the applications within its jurisdiction.
The Board opened the initial, duly noticed public hearing on the applications during a meeting held in Hingham Town Hall on November 19, 2019, but continued the matter without the receipt of testimony. Substantive sessions of the hearing were held on December 2, 2019, December 17, 2019, and January 13, 2020. Pursuant to (1) the Order issued by the Governor of Massachusetts, dated March 12, 2020, Suspending Certain Provisions of the Open Meeting Law and applicable provisions of the Open Meeting Law found at 940 CMR 29 et seq., the Board also held substantive hearings on the matter by remote participation on June 23, 2020 and June 30, 2020. The Board panel consisted of regular member Paul K. Healey, Acting Chairman, and associate members Joseph Ruccio and Andy Touchette. The Applicant was represented during the hearings by Victoria Maguire, Development Manager, WSDevelopment, and Sherri D’Alessandro Schuler, General Manager of the Derby Street Shops. Attorney Robert Devin also appeared to represent the Applicant. During the hearing, the Applicant modified the request to eliminate the inclusion of Uses 3.3 (Private School), 3.4 (Nursery School) and 4.13 (Commercial Outdoor Amusement). At the conclusion of the hearing, the Board voted unanimously to grant the requested relief and permits, as modified during the hearing process by the Applicant, with conditions set forth below.
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 application generally seeks to (i) clarify and update the allowed uses within the Shopping Center and (ii) consolidate seventeen years of special permit modifications, and relevant conditions of approval, into a single permit.
The original Special Permit for the Derby Street Shops allowed a “Retail Group,” which at the time was a use allowed by Special Permit with Site Plan Review under the South Hingham Development Overlay District. The By-Law has since been amended by replacing the use “Retail Group” with “Shopping Center.” 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 referenced only retail and restaurant uses. Additional uses have been permitted by the Board on a case-by-case basis since the issuance of the original permit. A summary of the more significant allowances follows:
In 2009, the Board issued a Modification specifically allowing a Health Club, consisting of a yoga studio with retail (Use 4.12A), to occupy a 2,105 SF, second floor space within the shopping center. The Dancing Crow Yoga Studio operated pursuant to the Modification from 2009 and 2013 with a maximum capacity of 50 persons.
In 2013, the Applicant sought a minor modification of the original Special Permit to allow a Financial use (Use 4.10), Charles Schwab, to occupy existing tenant space. 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."
In 2016, the Applicant sought 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.
In 2017, the Board issued a modification of the original Special Permit to add Health Clubs to the mix of permitted uses within the Derby Street Shops, as allowed within the Shopping Center use category. The allowance was limited to three locations and a maximum capacity of 75 persons (up from the 50 person maximum established for the Dancing Crow Studio). The Decision also restricted health clubs from leasing space in particular areas of the center, specifically within the Whole Foods side of the Pavilion Building and near the Apple Store, so that parking is able to turnover more frequently in these higher-demand parking areas.
In June 2019, the Board allowed another Financial Institution, Chase Bank, to locate at Derby Street Shops. The Decision included a condition that not more than 2.72% of the gross leasable floor area of the Shopping Center be occupied by Financial Institution, nor more than 4 Financial Institutions be permitted within the Shopping Center.
During each prior hearing process, the Applicant emphasized that a lack of flexibility in terms of allowed uses limited its ability to respond in a timely way to a changing retail industry. Board members in turn expressed some level of frustration about repeated modification requests. Staff also noted apparent discrepancies between the permitting processes required for different subsets of the Shopping Center use. While inclusion of Health Clubs and Financial Institutions triggered a formal hearing process, Consumer Service Establishments, such as hair salons, located at Derby Street Shops without any modification process. The present application seeks to address all of these concerns, while still maintaining certain controls worked out through prior modifications. These include the cap on Financial Institutions and location limitations for Health Clubs.
Other Requested Uses
W/S/M Development additionally requests approval to locate additional uses allowed within the underlying Industrial Park District, but not contemplated as a use within a Shopping Center. The proposed additional uses follow:
Use 3.8A (Clinic) – During the hearing, the Board considered whether this use would be universally compatible with other permitted uses within a Shopping Center. A Clinic operated in connection with a pharmacy may be an appropriate use for the Derby Street Shops. Conversely, a clinic offering treatment for drug addiction may not. The Applicant noted that this particular request is more related to cosmetic or health related clinics or accessory uses to a potential pharmacy.
V-E (Personal Wireless Service Facility) – The Applicant requested approval to install antennas on existing light poles in order to improve cell service for customers visiting the Shopping Center. Section V-E, 8 requires antennas on host structures to be camouflaged. Alternately, a Distributed Antenna System (DAS) may be used, on the condition that the DAS antennas not exceed 10’ in height beyond the height of the pole.
As noted in the Procedural History, the Applicant modified the request to eliminate Use 3.3 (Schools, Private) since the intended educational uses, such as language, painting, and calligraphy classes, would instead be permitted under Use 4.2 (Consumer Service Establishment), which is an allowed subset of a Shopping Center. The Applicant likewise withdrew from consideration Use 3.4 (Nursery School/Daycare). The Applicant indicated that any prospective tenants that fall under this use would be subject to its own Special Permit A2 application and further modification of this Special Permit. Finally, Use 4.13 (Commercial Outdoor Amusement) was withdrawn since the use is not permitted as either a subset of the Shopping Center or within the Industrial Park District. A Commercial Outdoor Amusement would therefore require a use variance.
The application includes a request to allow accessory community events to be held in common areas, not including parking lots, within the Shopping Center. The existing Special Permit, as modified, contemplated such events, though these are largely limited to the “green” between REI and Kohls or the Hidden Pond (ice skating/movies). The Applicant asks instead that the Board allow such events to similarly be allowed elsewhere in the Shopping Center as long as a clear and accessible pedestrian route is maintained.
In connection with this request, staff noted Derby Street Shops and Town Hall departments had informally developed an administrative review process for special events more than a year ago that has so far worked well to ensure public safety and accessibility. The review is conducted by the Zoning Administrator, Building Commissioner, Fire Prevention Officer, Police Department and, if food and/or alcoholic beverages are to be served, the Board of Health and Licensing Commission/Selectmen. The Board committed to maintaining this review for all authorized “Outdoor Programming Areas” identified on the Restricted Use Plan, dated March 9, 2020 through imposition of appropriate conditions.
The Applicant additionally asks the Board to clarify whether temporary outdoor display of merchandise is permitted. A 2003 Special Permit Modification included the following condition: “No outdoor display of merchandise to the extent the same interferes with pedestrian access on or about the Premises.” Whole Foods has maintained an outdoor display area at its main entrance with no reported problems. The Applicant indicated that REI and other retailers may also periodically display merchandise.
The Planning Board engaged a traffic engineer, Jeffrey Dirk of Vanasse & Associates, Inc., to peer review the submitted plans. The Planning Board imposed conditions in its permits to address any concerns related to the proposed dynamic parking model, including a limit on the term of the Special Permit A3 to 3 years. Additionally, the Traffic Management and Parking Plan approved in connection with the approved Building 5 expansion project shall be incorporated by reference into all permits so that it remains in effect.
Applicable intensity regulations for Retail Groups in the underlying Industrial Park District limited the use to a maximum 20% building coverage, whereas 40% building coverage is permitted for other development. The original Decision for Derby Street granted relief from this requirement to allow up to 22% building coverage. Through the incorporation of additional land area in 2018, the property was brought closer to the Retail Group standard such that the overall development post construction of Building 5 (approved to be located proximate to the Rite Aid) would have a building coverage of 20.8%. To the extent that the By-Law has since been amended by replacing the Retail Group use with “Shopping Center,” the Board agreed that the original Variance can be vacated as the limitation is no longer applicable.
Based on the information submitted and presented during the hearing, and the deliberations and discussions of the Board during the meeting, the Board made the following findings:
1. That the proposed modifications do not materially affect the findings made in connection with the Special Permit A2 Decision, originally issued December 13, 2002, as amended, under § III-A, 4.17 of the Zoning By-Law.
2. The additional uses proposed under § III-A: 3.8A (Clinic) and § V-E (Personal Wireless Service Facility), which are allowed in the Industrial Park District, are compatible with principal use under § III-A, 4.17 (Shopping Center).
3. That the amendment and restatement of the prior Decisions to reflect all conditions currently in force and effect as of the date hereof is in the interest of the project and the Town of Hingham insomuch as it will allow for the efficient review of project compliance with such conditions.
Upon a motion made by Jed Ruccio and seconded by Andy Touchette, the Board voted unanimously to amend and restate the Special Permit A2 Decision, originally issued December 13, 2002, as amended, under § III-A, 4.17 of the By-Law, and to grant a Special Permit A2 allowing the additional uses under § III-A: 3.8A Clinic and § V-E Personal Wireless Service Facility within the Derby Street Shops Shopping Center at 90-100 Derby Street in the Industrial Park and South Hingham Development Overlay Districts, subject to the following limitations and conditions:
1. The Applicant shall operate the property in accordance with the approved plans and representations made to the Board in the application and during the public hearing, modified as follows:
a. The following subsets under § III-A, 4.17 (Shopping Center) shall be allowed by-right: Use 4.1 (Retail store); Use 4.2 (Craft, consumer, or commercial service establishments); Use 4.9A (Sit-down restaurant); Use 4.9B (Fast-food/Take-out restaurant); Use 4.18 (Retail sale of alcoholic beverages);
b. The following subsets under § III-A, 4.17 (Shopping Center) shall be allowed with limitations:
i. Use 4.11 (Bank or other financial institution), provided that not more than 2.72% of the gross leasable floor area of the Shopping Center shall be occupied by a bank or other financial institution, nor shall more than four banks/other financial institutions/ATMs be permitted within the Shopping Center;
ii. Use 4.12 (Commercial indoor amusement or recreation place or place of assembly) shall not include a movie theater;
iii. Use 4.12A (Health club), provided that health clubs shall not be located in those areas identified on the Restricted Use Plan, dated March 9, 2020; and
iv. Use 5.1 (Automotive “filling” station or service station) only to the extent that this use consists of electric charging stations.
v. The following subsets under § III-A, 4.17 (Shopping Center) shall not be permitted: Use 4.10 (Business or professional offices or agencies) and Use 4.16 (Hotel or motel).
vi. Use 3.8A (Clinic) shall be allowed within the Shopping Center only to the extent that the use is operated in connection with a consumer service establishment (i.e. spa or med spa) or a retail store (i.e. pharmacy or drug store).
vii. Personal Wireless Service Facilities on Host Structures shall be permitted, subject to the requirements under § V-E, 8, provided however, that Roof-Mounted Personal Wireless Service Facilities shall not be permitted.
viii. Personal Wireless Service Facilities within Host Structures shall be permitted, subject to the requirements under § V-E, 9.
The Building Commissioner may refer any building, occupancy, or change of use permit to the Zoning Administrator for a determination of compliance with the above referenced uses, as allowed, modified, or limited. Any of the above limitations may, upon application or by referral of the Zoning Administrator, be further modified through issuance of a Special Permit A2 by the Board.
2. Community events shall be confined to the “Outdoor Programming Areas” identified on the Restricted Use Plan, dated March 9, 2020, provided that any sidewalks are maintained at a minimum 6’-width. This condition shall not limit tenants from holding periodic events (i.e. book readings, story hours, musical programming) within interior space. A layout plan shall be presented to the Zoning Administrator, Building Commissioner, Fire Prevention Officer and Police Chief for administrative review to ensure public safety and accessibility standards a minimum of 14 days prior to the scheduled event.
3. Temporary outdoor displays shall be permitted, provided that sidewalks are maintained at a minimum 6’-width.
4. The Applicant shall complete installation of the raised traffic island and/or other improvements intended to prevent left-turn maneuvers from the Service Road onto Derby Street prior to issuance of an Occupancy Permit for the expansion of Building 5.
5. In accordance with the provisions of the By-Law, the conditions imposed in the Planning Board Site Plan Review Decision, as voted on June 15, 2020, are binding conditions to this decision of the Zoning Board of Appeals.
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,
Paul K. Healey
August 17, 2020