TOWN OF HINGHAM
BOARD OF APPEALS
IN THE MATTER OF:
Applicant: Karl Niehoff, 28 Union Street, Hingham, MA 02043
Property Owner: Reuven Levi, TLC Companies, 53 South Street,
Hingham, MA 02043
Subject Property: 288 Main Street, Hingham, MA 02043
Deed Reference: Plymouth County Registry of Deeds: Book 21110, Page 203
SUMMARY OF PROCEEDINGS
This matter came before the Board of Appeals on the application of Karl Niehoff (petitioner) (“Applicant”) for a Special Permit A2 under §III-A, 4.9A and 4.9D of the Zoning By-Law and such other relief as necessary to operate a 12 seat sit-down/take-out ice cream parlor at 288 Main Street (“Premises”), in Business District A. Under the terms of the Hingham Zoning By-Law §III-A, 4.9 A and 4.9D, a sit-down/take-out restaurant requires an A2 use permit acted on by the Zoning Board of Appeals with site plan review under §I-G by the Planning Board. The Applicant also sought a Special Permit A3 parking determination, with waivers if necessary, under §V-A, relief that is acted on by the Planning Board under the By-Law.
The two boards heard the application at a duly noticed joint public hearing held on April 16, 2009 in the Hingham Town Hall at 210 Central Street. The Board of Appeals panel consisted of regular members W. Tod McGrath, Chairman, and Joseph W. Freeman and associate member William C. Ramsey. Members of the Planning Board present were Judith S. Sneath, Acting Chairman, Paul K. Healey, Susan C. Murphy, and Gary Tondorf-Dick.
Mr. Niehoff represented himself. No abutters made comments either before or during the hearing. No comments were received from other Town boards or officials.
FACTUAL BACKGROUND
The Applicant plans to open an ice cream parlor in the space previously occupied by a bakeshop that received a Special Permit from this Board in January 2008. The Applicant is proposing a retail type of operation with no preparation of food on site; all food items including ice cream will be pre-packaged and will be delivered from outside vendors. In addition to ice cream the Applicant will offer coffee and other beverages, candy and possibly other sweets and pastries but has no plans to offer pre-packaged sandwiches. Ice cream deliveries are proposed for two days a week and will not be before 9:00 a.m. The Applicant is proposing no more than 12 (twelve) seats, as was previously approved for the bakeshop in 2008. The hours of operation proposed by the Applicant were no earlier than 9:00 a.m. to 9:00 p.m., with the possibility of staying open
until 10:00 p.m. during the summer months. The Applicant also stated that in all likelihood the business will be closed during the winter months.
The Property is located in Business District A in which a retail store is a use permitted as-of-right, while a sit-down/take-out restaurant is a use regulated by Special Permit A2. During the course of this hearing, both Board of Appeals and Planning Board members and the Applicant agreed that the proposed use was very similar in nature to the previous tenant. Therefore, as parking and traffic issues were discussed at length during the previous hearing for the bakeshop, the Planning Board agreed with their previous determination that the parking requirement for 12 seats equates to the prior “grandfathered” requirement of three spaces, so no waiver is required. The Planning Board granted the Special Permit A3for a twelve (12) seat sit-down/take-out ice cream parlor, provided that the employees are required to park in the parking area to the rear and that the rear lot be striped to accommodate sixteen (16) complying parking spaces.
Board of Appeals members benefited from hearing the Planning Board’s comments on the parking issues and its final determination on the site plan and Special Permit A3 with conditions, both of which are incorporated herein by reference.
Discussion at the hearing focused primarily on the restaurant aspects of the proposal and the hours of operation. Board members noted that the surrounding neighborhood was largely residential and that a closing time of 10:00 p.m. may be late as noise may be an issue for abutters. They did feel that the 9:00 a.m. or later opening in the morning would be beneficial for the adjacent businesses and residential neighbors. Board of Appeals members discussed the closing time at length with the Applicant and determined that a 9:00 p.m. closing Sunday through Thursday would be preferable. They also determined that they would be willing to allow the store to stay open until 10:00 p.m., on a trial basis, on Friday and Saturdays (and also an additional day for holiday weekends, i.e., Thursdays before a Friday holiday and Sundays before a Monday holiday).
Based on the information submitted and received at the hearing, and on other information available to the Board, the Board made the following findings:
1. The operation of the proposed restaurant/retail use is in harmony with the general purposes and intent of the Zoning By-Law.
2. The proposed use complies with the applicable purposes and standards of the Zoning By-Law.
3. The Property is an appropriate location for the operation of the proposed restaurant/retail use.
4. The potential adverse impacts of the operation of the restaurant/retail use will be adequately mitigated.
5. The operation of the proposed restaurant/retail use will not create a nuisance or serious hazard to vehicles or pedestrians.
6. Adequate and appropriate facilities will be provided for the proper operation of the restaurant/retail use.
DECISION
The Board of Appeals voted unanimously to GRANT the requested Special Permit A2 to operate a 12 seat sit-down/take-out ice cream parlor at 288 Main Street, subject to the following conditions:
1. The hours of operation shall be 9:00 a.m. to 9:00 p.m. Sunday through Thursday; and on a trial basis 9:00 a.m. to 10:00 p.m. on Friday, Saturday (and either Thursday or Sunday before a three-day holiday weekend) during the period from Patriots Day through Columbus Day.
2. The Applicant shall come back to the Board of Appeals after September 30, 2009 but prior to October 31, 2009 to discuss the hours of operation.
3. No deliveries shall be made prior to 8:30 a.m.
This Decision shall not become effective until (i) the Town Clerk has certified on a copy of this decision that twenty (20) days have elapsed after the decision has been filed in the office of the Town Clerk and no appeal has been filed or that if such an appeal has been filed, that it has been dismissed or denied, and that (ii): a copy thereof has been duly recorded in the Plymouth County Registry of Deeds and indexed in the grantor index under the name of the owner of record.
For the Board of Appeals,
_________________________________
Joseph W. Freeman
May 12, 2009