Zoning Board of Appeals Decisions and Pending Applications

Owner/Applicant: Samuels and Associates Hingham LLC (“Samuels”)

333 Newbury Street

Boston, MA 02115

Premises: Hingham Shipyard

349 Lincoln Street

Hingham, MA 02043

Deed Reference: Plymouth Registry of Deeds, Book 32846, Page 122-124

Summary of Proceedings

This matter came before the Zoning Board of Appeals (the “Board) on the application of Samuels & Associates Hingham LLC (the “Applicants”) for a Major Amendment to the existing Mixed-Use Special Permit issued to Sea Chain, LLC, dated May 12, 2003, as amended through November 6, 2008 under §IV-G of the Zoning By-Law and such other relief as necessary to eliminate the proposed bank and daycare facility (Buildings L & M) and replace with an 11,970 sq.ft. retail building (pharmacy with drive-thru) to be located at The Launch at Hingham Shipyard (the “Project’), 349 Lincoln Street, in the Industrial District.

A public hearing of the Zoning Board of Appeals was duly noticed and held on Thursday, January 29, 2009. The public hearing and deliberations were conducted by a panel consisting of regular members W. Tod McGrath, Chairman, Joseph M. Fisher and Joseph W. Freeman and . The Applicant was represented by Michael Fitzpatrick, Development Director.

Background and discussion

On June 6, 2007 the Board issued the Applicant a decision which modified the May 12, 2003 Mixed-Use Special Permit so as to allow for the development of “The Launch at Hingham Shipyard” within the larger Shipyard site. On November 6, 2008 this area of the site was granted a modification to the Mixed-Use Special Permit to allow for plan changes in the area of both Buildings M (day care facility) and L (bank building). The Applicant has now submitted a Major Modification application which will eliminate the day care facility and bank building and replace them with an 11,970 sq.ft. pharmacy with drive-thru and 68 space parking lot. In accordance with subsection C of Condition #3 of the amended Mixed-Use Special Permit, this change qualifies as a Major Modification. Despite an overall decrease in project square footage, this modification represents a change in use in this area from retail and day care to simply retail (pharmacy with drive-thru) which constitutes a change in use of greater than 10%. The drive-thru use at the pharmacy also requires approval by the Board under §IV-G, 8, d. ii and iii of the Zoning By-Law.

In accordance with Section IV-G and I-I of the Zoning By-Law, the Hingham Planning Board conducted Site Plan Review in connection with this application for a Major Modification to the Mixed-Use Special Permit. The Planning Board also consulted with Jeffery Dirk of Vanasse and Associates, who acted as a consultant to the Planning Board. Mr. Dirk suggested several revisions aimed at improving the safety and ease of access, circulation and parking on the site. Mr. Dirk’s recommendations were satisfactorily incorporated into a revised Site Plan dated January 14, 2009 which was subsequently submitted to the Board for review. The Board of Appeals received the Planning Board’s Site Plan Approval for the proposed modification dated January 27, 2009, the conditions of which have been incorporated herein.

During the hearing process, Board members and the Applicant discussed hours of operation, as many pharmacies operate on a twenty-four hour basis. The representation made by the Applicant did not include use of the pharmacy on a twenty-four hour basis. Also discussed were loading and delivery activities, as Mr. Dirk’s recommendation was to limit off-peak customer hours in order to minimize conflicts with customer traffic entering and exiting the site. The Applicant represented that most deliveries would be once or twice a week done by smaller trucks, not large tractor trailers. Based on this representation, the Board members declined to condition delivery hours, but in the future if issues of this nature should arise they would need to be addressed by the Applicant and the Board.

The Board also discussed the accessory use of the drive-thru aspect of the pharmacy. The plan calls for two drive-thru lanes to be used for the pharmacy only. The Applicant anticipates that no more than 2-3 vehicles would be using the drive-thru at any one time. The Board agreed with the Applicant’s representations and found that proposed accessory use does not create health, traffic or safety problems for the remainder of the development area and abutter areas and is consistent with the remaining land uses in the mixed-use area, therefore this use may be permitted as part of this Major Modification to the Mixed-Use Special Permit. In making this determination, the Board found that this accessory use of a drive-thru is to be in connection with the proposed pharmacy use, and does not apply if this building should be converted to another retail establishment.

At the conclusion of the public hearing the Board voted to GRANT the Major Amendment to the existing Mixed-Use Special Permit to eliminate the proposed bank and daycare facility (Buildings L & M) and replace with an 11,970 sq.ft. retail building (pharmacy with drive-thru) subject to the following conditions:

1. The Decision of the Planning Board entitled “Notice of Decision, Site Plan Approval in Connection with Major Modification to the Mixed Use Special Permit A2 for the Hingham Shipyard as amended through November 6, 2008” is attached hereto and incorporated as Exhibit “A”. In accordance with the provisions of the Hingham Zoning By-Law the Conditions imposed in the Planning Board Decision are binding Conditions to this Decision of the Zoning Board of Appeals.

2. The accessory use of the drive-thru is approved under §IV-G, 8, d. ii and iii of the Zoning By-Law provided that this use is strictly related to a proposed pharmacy use of the building and does not apply if this building should be converted to another retail establishment.

The zoning relief granted herein 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 or is recorded and noted on the owner’s certificate of title.