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Applicant: WSM Hingham Properties, LLC
S. R. Weiner & Associates, Inc.
1330 Boylston Street
Chestnut Hill, MA 02167

Premises: 90 Derby Street
Hingham, MA

Title Reference: Plymouth County Registry of Deeds Book 20043, Page 290

This matter came before the Zoning Board of Appeals on the application of WSM Hingham Properties, LLC (the “Applicant”) for modification to the existing Special Permit A2 dated February 10, 2003, as amended through July 31, 2009, under §III-A 4.17 and §III-A 3.7 with Site Plan Review to be done by the Planning Board under §I-I along with Special Permit A3 parking determination, with waiver if necessary, under §V-A of the Zoning By-Law and such other relief as necessary to allow seasonal activities at the existing pond, including ice skating, at the Derby Street Shoppes, 90 Derby Street (the “Property”), a Retail Group in the Industrial Park District.

The two boards heard the application at a duly noticed joint public hearing held on Thursday, June 10, 2010, along with a continuation hearing held on August 19, 2010 in the Town Hall at 210 Central Street. The panel consisted of regular members Joseph M. Fisher, Chairman, W. Tod McGrath and Joseph W. Freeman. Planning Board members present were Sarah Corey, Judy Sneath and Gary Tondorf-Dick. The Applicant was represented by Carolyn Kennedy, Site Manager for Derby Street Shoppes along with Diana Podasky, Robert Fraser and Mike McKenna of WSM Development.

This Property has been the subject of previous hearings and decisions by the Zoning Board of Appeals relative to the overall design and layout of the shopping plaza. The hearings and decisions were extensive and have addressed numerous topics including signs, parking and location of facilities within the site.

The Applicant now seeks to use the existing detention basin, referred to as Hidden Pond, on the Property near the intersection of the Service Road and Keith Way to provide seasonal entertainment which would include ice skating during the winter months (mainly January thru March) and nature activities, including walking and fishing, during the summer months (June, July and August). The Applicant is proposing to erect temporary landscaping features, which would include benches, plantings and ice sculptures intended to draw visitors. The Applicant proposes to hold events in the area during off-peak sales periods. Parking for Hidden Pond would be in the existing 53-space employee parking lot on the east side of the Service Road near the intersection of Keith Way. During programmed activity at Hidden Pond employees would be directed to park in other employee lots on the Property, as this lot would be reserved for visitors to Hidden Pond.

During the course of the hearings, the Applicant and members of both the Board of Appeals and Planning Board discussed hours of operation, site lighting, parking and traffic circulation. Of particular concern to members of the Board of Appeals and Planning Board was the on-site circulation relative to pedestrian and vehicular safety. Because of the current restricted traffic configuration on the Service Road, Board members were concerned about visitors traveling back and forth between the customer parking areas within the site without going one-way the wrong way on the Service Road. In response to these concerns, the Applicant agreed to reconfigure the access/egress drive leading from the parking lot between Whole Foods and Bertucci’s to allow for cars to travel from within the Property directly to the Service Road without going onto Derby Street.

Board of Appeals members and the Applicant discussed hours of operation as the applicant proposes to operate the seasonal activities during normal business hours of the Derby Street Shoppes, i.e. 10:00am-9:00pm. The Board had no objection to the proposed hours. They also discussed the use of temporary outdoor lighting used in connection with the winter use of the pond. The Applicant proposes to use temporary outdoor construction lights, approximately 20’ in height, at least one evening a week as weather permits. The Board also had no objection to the temporary lights as described since Hidden Pond is located adjacent to a parking lot, and is not visible from adjacent parcels or the right of way.

Board of Appeals members and the Applicant discussed signs to be placed on the Property for Hidden Pond and determined that the Applicant can submit plans to the Building Inspector, as he is the Zoning Enforcement Officer, for approval.

As part of the joint hearing process, and 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 the application along with a Special Permit A3 parking determination, with waiver if necessary. After review of the Applicant’s proposal, Planning Board members 1) granted Site Plan Approval (which is incorporated herein by reference and attached as Exhibit A) and 2) waived the requirement for a Special Permit A3 parking waiver as they concluded it was unnecessary because this use should have minimal impact on parking. Board of Appeals members benefited from hearing the Planning Board’s determination on the site plan and comments on the parking.

Based upon the application and representations made at the public hearing, the Board determined that the proposed modification to the existing Special Permit A2 to allow seasonal activities at the existing pond at the Derby Street Shoppes will not adversely affect the health, safety or welfare of the general public, or the Town generally, nor create adverse impacts on its surrounding area.

Therefore the Board made the following findings:

1. The operation of the proposed seasonal 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 seasonal use.
4. The potential adverse impacts of the operation of the seasonal use will be adequately mitigated.
5. The operation of the proposed seasonal 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 seasonal use.
7. The proposal meets accepted design standards and criteria for the functional design of facilities, structures, stormwater management, and site construction.

The Board voted unanimously to GRANT the modification to the existing Special Permit A2 to allow seasonal activities at the existing pond at the Derby Street Shoppes subject to the following conditions:

1. The decision of the Planning Board entitled “Hingham Planning Board Site Plan Review” dated September 1, 2010 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. Seasonal operation of Hidden Pond to run January through March and June through August;

3. Hours of operation for Hidden Pond to be normal business hours of the Derby Street Shoppes, i.e. 10:00 a.m. to 9:00 p.m;

4. Plan of proposed sign(s) for Hidden Pond to be submitted and approved by the Building Inspector;

5. Curb modification plan to be submitted and approved by the Building Inspector.

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.

For the Zoning Board of Appeals,

Joseph W. Freeman
September 23, 2010