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TOWN OF HINGHAM
BOARD OF APPEALS
IN THE MATTER OF:
Applicant and South Shore Industrial Park Trust
Property Owner Twenty Winthrop Square
Boston, MA 02110
Premises: 2 Pond Park Road
Hingham, MA 02043
Deed Reference: Plymouth County Registry of Deeds Book 3608, Pages 305 & 318
Land Court Certificate of Title No. 45755, Book 228, Page 155 and
Title No. 45758, Book 228, Page 158
SUMMARY OF PROCEEDINGS
This matter came before the Board of Appeals on the application of South Shore Industrial Park
Trust, LLC (the “Applicant”), Twenty Winthrop Square, Boston, MA for a Special Permit A2
under the South Hingham Development Overlay District, §III-E, 5(b) and §IV-A of the Zoning
By-Law and such other relief as necessary to allow a floor area ratio of .27 to construct a
73,839sq.ft. medical office building (Bone and Muscle Center) at 2 Pond Park Road (the
“Property”), in the Industrial Park District, along with Site Plan Review to be done by the
Planning Board under §I-G and §I-I.
The two boards heard the application at a duly advertised and noticed joint public hearing on
February 1, 2010, with the hearing continued to subsequent public hearings held on February 22,
2010 and March 1, 2010; all hearings held in the Hingham Town Hall at 210 Central Street. The
Board of Appeals panel consisted of its regular members: Joseph M. Fisher, Chairman, Joseph
W. Freeman and W. Tod McGrath. Planning Board members present were Paul Healey, Susan
Murphy, Judy Sneath, Sarah Corey and Gary Tondorf-Dick. The Applicant was represented
William Constable and Stephen Leggett of A.W. Perry Company, Scott Turner, P.E., of BSC
Group along with a team of consultants.
BACKGROUND
This Property, which is approximately 6.3 acres, is located at the front of the South Shore
Industrial Park and is bounded by Derby Street and the Southeast Expressway. The Property was
previously developed to support three small industrial/office buildings with associated sidewalks,
parking areas and utilities. The buildings were demolished approximately 10 years ago and the
Property has been vacant since. In the year 2000 the Applicant was granted a Special Permit by
the Board of Appeals to construct a three-story office building; however, the Applicant did not
construct the building.
The Applicant is now proposing to construct a 73,839sq.ft. three-story medical office building,
which would be leased to South Shore Hospital to allow it to relocate its bone and muscle,
related services to this site. The proposed building will include physicians’ offices, a diagnostic
imaging suite, an outpatient surgical center, and a pain clinic. The facility will close at the end
of each business day and therefore no overnight stay for patients is under consideration. Nor will
the facility have an emergency department. The facility is proposed to be open on weekends,
however only diagnostic imaging and lab services will be available to patients.
The Property lies in both the Industrial Park District and the South Hingham Development
Overlay District. Pursuant to Section III-A of the Zoning By-Law, business or professional
offices or agencies are an allowed use as-of-right in the Industrial Park District; however under
§III-E, 5(b) a Special Permit is required for such use in the Overlay District. Also, under the
Overlay District a floor area ratio of 0.25 is permitted as-of-right for office use, and up to 0.45 by
Special Permit A2, therefore the Applicant has also sought relief to allow a floor area ration of
0.27.
The proposed building has been designed in compliance with the Zoning By-Law regarding the
number of parking spaces (1 spaces/175sq.ft. for medical/dental offices), aisle widths (24’), stall
sizes (either 9’ x 18’ or 9’ x 20’) and grades (maximum of 4%). Access and egress from the site
is to be provided via 3 full-access/egress driveways on Pond Park Road, approximately 220’
apart from one another. The closest access driveway to the intersection of Pond Park Road and
Derby Street is approximately 600’ from the intersection. The Applicant submitted stamped
plans (24 sheets) prepared by the BSC Group dated December 22, 2009 along with schematic
plans (6 sheets) of the proposed building prepared by Cannon Design dated December 18, 2009.
DISCUSSION
As part of the joint hearing process, and in accordance with Section I-G and I-I of the Zoning
By-Law, the Hingham Planning Board conducted Site Plan Review in connection with the
application. The Planning Board consulted with Jeffery Dirk of Vanasse and Associates, who
acted as a consultant to the Planning Board. Mr. Dirk reviewed parking and on-site traffic
circulation as well as compliance with other aspects of the off-street parking regulations along
with a snow storage plan.
During the course of the hearings the Boards reviewed off-site traffic impacts mainly focusing on
the potential need for a traffic signal to be located at the intersection of Pond Park Road and
Derby Street. This need was documented by both the Applicant’s and Town’s traffic consultants
and was conditioned as part of the Planning Board’s Site Plan Approval, which, in accordance
with the provisions of the Hingham Zoning By-Law, are binding conditions to this decision of
the Board of Appeals and attached as Exhibit A.
The Applicant had originally shown 422 on-site parking spaces, which meets the requirements of
the Zoning By-Law. However, during the course of the hearings the Applicant had with the
Conservation Commission the Applicant suggested reducing the number to 399 in order to reduce
the amount of impervious surface proposed within the wetland buffer zone. Therefore it was
determined the Applicant required a Special Permit A3 parking waiver; such relief was acted upon
by the Planning Board and is included in its Site Plan Approval attached as Exhibit A.
The Boards and the Applicant discussed the proposed stormwater management plan and noted
that the Town of Hingham Conservation Commission recently issued an Order of Conditions for
the project. An on-site wastewater facility has also recently been approved by the Board of
Health.
Based on discussion, review and changes made to the Site Plans, the Applicant submitted revised
Project Plans for the record. These plans are revised through January 20, 2010.
During the hearing process, Board of Appeals Chairman Fisher noted that “hospital” use is not
an allowed use in the District. Mr. Fisher questioned whether the proposed use of the building
by South Shore Hospital would be classified as a hospital use, pointing out that in Pellegrino v.
City Council of Springfield, 22 Mass. App. Ct. 459, 494 N.E.2d 1036 (1986), the Appeals Court
determined that an office building for the medical staff of a hospital was determined to come
within the scope of the local zoning ordinance provisions governing hospitals in general. The
key question is whether the proposed medical building would become “an integral part” of the
hospital. Mr. Fisher further noted that the term “hospital” is not defined in the Hingham Zoning
By-Law and he invited the Applicant to address the use issue at the next hearing.
Prior to the hearing held on March 1, 2010 the Applicant submitted two letters, one from
Attorney R. Jeffrey Lyman of the law firm Goodwin Proctor and the other from Attorney David
A. Kelley. Both letters cite to Lussier v. Zoning Board of Appeals of Peabody, 447 Mass. 531,
534 (2006), for the proposition that words undefined by zoning ordinances are to be construed in
accordance with common understanding and usage. The letters also cite to Melrose-Wakefield
Hospital Association v. Board of Appeals of Melrose, 31 Mass. App. Ct. 923, 577 N.E.2d 5
(1991), where the Melrose zoning ordinance expressly defined the word “hospital” in a
restrictive manner to refer to a building providing, amount other services, 24-hour in-patient
services. The Court determined in that case that medical office buildings should not be
considered hospital use under the zoning ordinance.
Attorney Kelly’s letter states that the proposed Bone and Muscle Center does not resemble a
“hospital” as “no in-patient services are provided, no emergency service is provided, general
medical building hours of operation are contemplated as opposed to a 24 hour facility, … and no
physical corridor or connection exists to the South Shore Hospital campus several miles distant.”
The Goodwin Proctor letter also emphasizes that “South Shore Hospital will be a tenant in the
proposed medical office building.” The Applicant agreed with its lawyers’ characterizations of
the proposed project and maintained that the proposed medical office building would not be an
integral part of any hospital and should not be considered a “hospital” for zoning purposes.
South Shore Hospital was simply planning to lease space for the purposes described above.
FINDINGS
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 medical office 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 medical office
use.
4. The potential adverse impacts of the operation of the medical office use will be
adequately mitigated.
5. The operation of the proposed medical office will not create a nuisance or serious hazard
to vehicles or pedestrians and will be adequately mitigated.
6. Adequate and appropriate facilities will be provided for the proper operation of the
medical office use.
The Board of Appeals finds that the proposed !"#$%&'()**$%"(+," is consistent with the criteria
set forth under Section III-E and IV-A of the Zoning By-Law within the Industrial Park District,
and retains the general protections concerning the health, safety and welfare of prospective
occupants, neighbors and the Town generally, and is in harmony with the general purpose and
intent of the Zoning By-Law.
The Board also finds the proposed use provides safe access and circulation, taking into account
driveways, entrances and exits, nearby intersections, sight distances and grades. Pursuant to the
Traffic Study and the Site Plan submitted with this application as amended in accordance with
certain revisions to the Site Plan proposed by the Town’s Traffic Engineer, access to and egress
from the site is to be provided via 3 full-access/egress driveways on Pond Park Road and the
sight distances and traffic circulation patterns of the site, as proposed, will provide safe access to
the site and will minimize traffic circulation in pedestrian-oriented areas.
DECISION
At the conclusion of the public hearings the Board of Appeals voted to GRANT the Special
Permit A2 under the South Hingham Development Overlay District, §III-E, 5(b) and §IV-A of
the Zoning By-Law and such other relief as necessary to allow a floor area ratio of .27 to
construct a 73,839sq.ft. medical office building subject to the following conditions:
1. Medical office building to be constructed in substantial accordance with the plans
presented and the representations made at the public hearing; and
2. The decision of the Planning Board entitled “Notice of Decision, Site Plan Review
in Association with the Issuance of a Special Permit A2 and Special Permit A3
(Parking Determination) for The Bone and Muscle Center 2 Pond Park Road” dated
March 29, 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.
3. Medical office building is not to offer in-patient services, emergency services,
overnight or 24-hour care; it shall not be used as an integral part of the South Shore
Hospital facility or other hospital.
4. If South Shore Hospital, or an affiliate of any hospital or nonprofit medical facility,
obtains an ownership interest in the medical office building, directly or indirectly,
then the Applicant or any successor in interest shall promptly apply to the Board of
Appeals for a determination of whether the medical office building has become “an
integral part” of a hospital or whether there are changed conditions affecting the
representations and assumptions that form the basis for this Special Permit.
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,
_____________________
Joseph M. Fisher
April 6, 2010
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