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Applicant: Sarah and Matthew D’Souza, 28 Garrison Road,
Hingham, MA 02043

Property Owner: RSL Realty LLC, 25 Magnolia Road,
Sharon, MA 02067

Subject Property: 282-292 Main Street, Hingham, MA 02043

Deed Reference: Plymouth County Registry of Deeds: Book 27110, Page 203

This matter came before the Board of Appeals on the application of Sarah and Matthew D'Souza (petitioners, the “Applicants”) for a Special Permit A2 under §III-A, 4.9A and 4.9D with Site Plan Review to be done by the Planning Board under §I-G and §I-I along with a Special Permit A3 parking determination, with waivers if necessary, under §V-A of the Zoning By-Law and such other relief as necessary to operate a 12 seat sit-down/take-out cupcake bakery and cafe at 288 Main Street (the “Property”), in Business District A.

The two boards heard the application at a duly noticed joint public hearing held on December 13, 2010 in the Hingham Town Hall at 210 Central Street. The Board of Appeals panel consisted of regular members Joseph W. Freeman, Chairman, W. Tod McGrath, and Joseph M. Fisher. Members of the Planning Board present were Chairman Paul K. Healey, Judith S. Sneath, Susan C. Murphy and Gary Tondorf-Dick.

Mr. & Mrs. D’Souza represented themselves. No abutters made comments either before or during the hearing. The Applicants have met with the Town of Hingham Board of Health Executive Health Officer to review their requirements.

The Applicants plan to open a cupcake bakery and café in the space previously occupied by an ice cream parlor and a bakeshop, each of whom received a Special Permit from the Boards within the past two years. Unlike the previous two businesses, the Applicants are proposing to bake on site. In addition to cupcakes the Applicants will offer coffee and other beverages. The Applicants are proposing no more than 12 seats, as was previously approved for the prior two businesses. The Applicants anticipate having anywhere from 2-4 employees and stated deliveries will not be before 9:00 a.m. The hours of operation proposed by the Applicant are no earlier than 9:00 a.m. to 7:00 p.m. six days a week.
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 Applicants agreed that the proposed use was very similar in nature to the previous tenants. Therefore, as parking and traffic issues were discussed at length during the previous hearings, the Planning Board agreed with their previous determination that the parking requirement for 12 seats equates to the prior “grandfathered” requirement of three spaces.

A condition of the two previous Special Permit A3 decisions issued by the Planning Board stated that the rear parking lot be striped to accommodate 16 complying parking spaces. However, it was brought to the Board’s attention that the rear parking lot is presently striped to accommodate 11 parking spaces. During discussion both Boards determined that although the rear lot is presently deficient by 5 parking spaces, the proposed use is consistent with the previous uses and the parking appears to be sufficient. Therefore, the Planning Board granted the Special Permit A3 parking determination for a 12 seat sit-down/take-out cupcake bakery, provided that the employees are required to park in the parking area to the rear and waived the requirement that the rear parking lot be striped for 16 parking spaces, provided however that the number of parking spaces shall be reviewed if there are changes in the use or intensity in the Center.

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 and §I-I by the Planning Board. Due to the similarity of the proposed cupcake bakery and café to the previously approved uses, and the fact that nothing of substance has changed on the site since the first permit was issued in 2007, Planning Board members voted to waive Site Plan Review.

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.

Board of Appeals members and the Applicants discussed the restaurant aspects of the proposal and the hours of operation. Although the Applicants proposed a 9:00 a.m. opening, during the discussion Board members noted that an 8:30 a.m. or later opening in the morning would be beneficial for the adjacent businesses and residential neighbors. As in the past decisions, the Board and the Applicants agreed that no deliveries would be made prior to 8:30 a.m.

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.

Therefore the Board of Appeals voted unanimously to GRANT the requested Special Permit A2 to operate a 12 seat sit-down/take-out cupcake bakery and café at 288 Main Street, subject to the following conditions:

1. The hours of operation shall be 8:30 a.m. to 7:00 p.m.
2. No deliveries shall be made prior to 8:30 a.m.
3. Owners and employees are required to park in the rear parking lot.

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
January 4, 2011