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Board of Appeals

NOTICE OF DECISION
SPECIAL PERMIT A2 MODIFICATION

IN THE MATTER OF:

Applicant and WSM Hingham Properties, LLC
Property Owner: 33 Boylston Street
Chestnut Hill, MA 02467

Premises: The Derby Street Shoppes
98 Derby Street
Hingham, MA 02043

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

Plan References: Plan entitled: "Employee Parking in the Shaded Areas (Appendix B)," unstamped, undated, and marked up to demarcate proposed location of two shade awnings and specifications for a wood pavilion to be located at Hidden Ponds

SUMMARY OF PROCEEDINGS
This matter came before the Board of Appeals (the "Board") on the application of WSM Hingham Properties, LLC (the "Applicant") to modify the existing Derby Street Shoppes Special Permit A2 dated February 10, 2003, as amended, under § III-A, 4.17 of the Zoning By-Law (the "Bylaw") to install two canopies 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 of the Zoning By-Law.

The Board of Appeals heard the application at a duly advertised and noticed public hearing on January 14, 2015. The Planning Board heard the Site Plan Review application at a duly advertised and noticed public hearing on November 12, 2014. The Planning Board voted to conditionally approve the Site Plan Modification. These conditions were amended by the Planning Board at the request of the Applicant on March 2, 2015.

The Board of Appeals panel consisted of its regular members W. Tod McGrath, Chairman, and Joseph M. Fisher and associate member Robyn Maguire. During the hearing, the Applicant was represented by Carolyn Kennedy, General Manager of Derby Street Shoppes. The Board voted at the conclusion of the hearing to approve the requested Special Permit A2 modification.

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 original permit was issued by the Board in 2003 and has been modified on several occasions since. The proposed plan calls for installation of two shade structures within the center.

Hidden Pond Pavilion
The Board authorized the use of an onsite detention basin, known as "Hidden Pond," in 2010 for seasonal entertainment, including ice skating during the winter months and nature activities during warmer months. This Special Permit Modification also allowed use of the detention basin are for events during off-peak sale periods. The Applicant now proposes to erect a 16' x 16' wood pavilion in the area of an existing brick patio to offer shaded space for these permitted activities. The additional structure would not expand existing use of the area.

REI Shade Awning
The Board also granted minor modifications in 2012 and 2014 authorizing the temporary installation of a canopy, approximately 10' x 23' in size, on the sidewalk in front of REI from April to November; however, a condition of approval required the applicant to file an application for a major modification if it planned to erect the awning on "a more permanent yearly/seasonal basis."
Derby Street Shoppes now proposes to install the canopy annually between the months of April and November. The awning will not interfere with pedestrian traffic flow and will be securely bolted to the sidewalk while in use.

APPROVAL CRITERIA
Based on the information submitted and presented during the hearing, and subject to satisfaction of the conditions set forth below, the Board found:

a. The proposed use will be in harmony with the general purpose and intent of the Zoning By-Law, for the following reasons:
The modifications as proposed are consistent with the scope and purpose of the Zoning By-Law and the original Special Permit A2, as modified.

b. The proposed use complies with the purposes and standards of the relevant specific sections of this By-Law, for the following reasons:
The proposed structures comply with relevant setback requirements and do not otherwise expand the allowed uses within the center.

c. The specific site is an appropriate location for such use, structure, or condition, compatible with the characteristics of the surrounding area, for the following reasons:
The chosen locations for both shade structures are appropriate for the approved seasonal uses.

d. The use as developed and operated will create positive impacts or potential adverse impacts will be mitigated, for the following reasons:
There will be no adverse impact associated with the installation of the proposed shade structures.

e. There will be no nuisance or serious hazard to vehicles or pedestrians, for the following reasons:
The proposed structures will not interfere with pedestrian traffic flow and will improve pedestrian experience within the center by providing shade.

f. Adequate and appropriate facilities exist or will be provided for the proper operation of the proposed use, for the following reasons:
The Project has adequate facilities for the previously approved uses and programming.

g. The proposed Project meets accepted design standards and criteria for the functional design of facilities, structures, stormwater management, and site construction, for the following reasons:
The modifications will be consistent with the original Special Permit A2, as previously modified.

RULINGS AND DECISION
Upon a motion made by Joseph Fisher and seconded by Robyn Maguire, the Board voted unanimously to APPROVE the Special Permit A2 Modification, allowing the installation of a permanent wood pavilion at the Hidden Pond and a seasonal shade canopy in front of REI, subject to the following conditions:

1. In accordance with the provisions of the Hingham Zoning By-Law, the conditions imposed in the Planning Board Site Plan Review decisions, dated November 17, 2014 and revised March 2, 2015, are binding conditions to this decision of the Zoning Board of Appeals.
2. The Applicant shall install a wood pavilion at the Hidden Pond location that is consistent with the submitted specifications and a canopy in front of REI that is consistent with what has previously been approved.

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,