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NOTICE OF DECISION
SPECIAL PERMIT

IN THE MATTER OF:

Applicant: John Paul Comella
14 Mica Lane
Wellesley, MA 02481

Owner: Anchor Plaza Realty Trust
134 East Howard Street
Quincy, MA 02169

Premises: 207 Lincoln Street, Hingham, MA 02043

Deed Reference: Plymouth County Registry of Deeds Book 22660 Page 46 and
Certificate of Title No. 101847 issued by the Plymouth County Registry District of the Land Court

Plan References: Proposed plan entitled, "Site Plan Exhibit," prepared by Highpoint Engineering, Inc., 45 Dan Road, Suite 140, Canton, MA, dated November 2, 2015, revised through May 9, 2016 (Figure No. SP001)

SUMMARY OF PROCEEDINGS

This matter came before the Board of Appeals (the "Board") on the application of John Paul Comella (the "Applicant"), representing Comella's Restaurant, for a Special Permit A2 under § III-A, 4.9A of the Zoning By-Law to create an outdoor seating area for 50 additional seats at 207 Lincoln Street in Business District B.

The Applicant simultaneously filed applications for Site Plan Approval under § I-G and § I-I and a Special Permit A3 Parking Determination under § V-A of the By-Law with the Planning Board. The Planning Board held a hearing on the matter on June 27, 2016, voting to approve the plan with conditions.


A public hearing was duly noticed and held by the Board on July 20, 2016 in Hingham Town Hall. The Board panel consisted of its regular members: Joseph W. Freeman, Chairman, Robyn S. Maguire, and Joseph M. Fisher. The Applicant appeared to present the application. At the conclusion of the hearing, the Board voted unanimously to grant the requested Special Permit A2 allowing an outdoor seating area for 50 additional seats at 207 Lincoln Street in Business District B, with conditions as set forth below.

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 subject property consists of approximately 8,572 SF located on the northerly side of Lincoln Street (Route 3A) and within a multi-tenant shopping plaza with an overall area of approximately 5.6 acres. This specific parcel was previously improved by a restaurant building. Comella's Homemade Italian Food recently located in the building vacated by another restaurant.

Over the years the Board has issued a number of zoning decisions relating to Anchor Plaza, two of which are particularly relevant to this application. In 1995, the Board issued a Special Permit A2 that included a condition (Condition 7) capping the number of seats in the restaurant then known as Abbadessa’s at eighty-one (81). The Board’s purpose in this condition, according to the “Reasons for Decision” cited in 1995, was to acknowledge and permit noncoincident use of the Plaza’s parking area due to the differing peak hours of the Bruegger’s Bagels, the project under review at the time, and Abbadessa’s, a restaurant open for lunch and dinner much like its successors, Salsa’s and Comella's. Currently there are 80 seats at Comella’s in conformance with that condition.

The second decision was issued in 2007 when the Board approved a limited expansion of the former Salsa's Restaurant onto an outdoor seasonal patio. The approval was limited to a maximum of 50 seats. Salsa's never exercised its rights and the special permit, as extended by the Massachusetts Permit Extension Act, which was created by Section 173 of Chapter 240 of the Acts of 2010 and extended by Sections 74 and 75 of Chapter 238 of the Acts of 2012, finally lapsed in October 2013.

Comella's now seeks a Special Permit A2 under § III-A, 4.9A to similarly expand the restaurant use to accommodate up to fifty (50) patrons on an outdoor patio. The patio, which is already under construction, will be accessed from the interior, easterly portion of the building. The 33'x19' area will be finished with stone pavers and enclosed by a newly installed 6'-high PVC stockade fence and arborvitae screen. The application includes a "Drainage Narrative," prepared by HighPoint Engineering, Inc., that describes the positive surface drainage of the patio toward the easternmost property line. The installation includes an infiltration trench to capture runoff. Finally, string lights will illuminate the patio during evening hours. An existing street light will also provide indirect lighting.

The Planning Board conducted the requisite Site Plan Review in conjunction with this Special Permit A2 and issued a Special Permit A3 (Parking Determination), both filed with the Town Clerk on July 8, 2016. The Site Plan Approval contains the following conditions:
1. An as-built certifying the infiltration trench was built per plan must be provided prior to CO.
2. There will be no live entertainment on patio and amplified sound on patio will be consistent with the Town's noise by-law.
3. The 13' access must be kept open and clear at all times for emergency response.
4. Before patio is opened for use any paperwork or other requirements of the DPW and the Board of Health must be met, in addition to Fire, Building, etc.

The Planning Board also found that the adequate parking exists to meeting the parking requirements under the By-Law for the expanded use (17 or 1 space per 3 seats).

While the property is located in a business district, a neighborhood is located immediately across the street and in a residential district. Abutters to the property submitted written and verbal comments to the Board expressing concern about potential negative impacts associated with the proposed use, particularly related to noise, trash removal, and public safety. After review, the Board determined that the patio seating was sufficiently set back from Route 3A so as to not present a safety issue. The Board then considered conditions intended to mitigate other impacts on the surrounding area.

APPROVAL CRITERIA

Based on the information submitted and presented during the hearing, the Board found that:

a. The proposed use will be in harmony with the general purpose and intent of the Zoning By-Law, for the following reasons: Sit-down restaurants are allowed by Special Permit A2 under Section III-A, 4.9A within Business District B. The outdoor seating area is an appropriate expansion of the existing sit-down restaurant.

b. The proposed use complies with the purposes and standards of the relevant specific sections of this By-Law, for the following reasons: The patio area complies with the specific standards of the By-Law as evidenced by the Site Plan Approval and Special Permit A3 (Parking Determination) issued by the Planning Board and filed with the Town Clerk on July 8, 2016.

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 specific parcel has supported a restaurant use for decades. The patio area itself will be located adjacent to the building and away from the parking area.

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 proposed use as modified by conditions contained herein. The patio area will be enclosed by both a 6'-high PVC fence and arborvitae screen to both create a pleasurable dining experience for patrons and minimize potential noise and other impacts on surrounding properties.

e. There will be no nuisance or serious hazard to vehicles or pedestrians, for the following reasons: There will be no nuisance or hazard to vehicles or pedestrians. The patio is separated from the parking area by the building. Additionally, the patio is located more than 60' from Lincoln Street/Route 3A.

f. Adequate and appropriate facilities exist or will be provided for the proper operation of the proposed use, for the following reasons: Adequate facilities exist for the expansion of the existing restaurant use.

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: Positive surface drainage off the patio will be directed toward the easternmost property line. The installation includes an infiltration trench to capture runoff.

DECISION

Upon a motion made by Robyn S. Maguire and seconded Joseph M. Fisher, the Board voted unanimously to APPROVE the request for a Special Permit A2 under § III-A, 4.9A of the Zoning By-Law to create an outdoor seating area for 50 additional restaurant seats at 207 Lincoln Street in Business District B, 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 decision, filed with the Town Clerk on July 8, 2016, are binding conditions to this decision of the Zoning Board of Appeals.
2. The patio may operate, as weather permits, from April 1 through October 31 each year.
3. All patrons shall vacate the patio by 10:00 p.m. Sunday through Thursday and 11:00 p.m. on Friday, and Saturday, and the evening before legal holidays. After an initial period of operation not less than one season, the Board of Appeals will entertain a request to modify the service hours.
4. No bar to dispense liquor shall be installed on the patio. All liquor service shall be handled by the bar inside the restaurant.
5. Any outside music shall be kept at a low level appropriate as background for pleasurable dining.
6. The Applicant shall be responsible for adequate disposal of the trash and dumpsters from its operation and for trash pick-up along the front of the Plaza Property from the easterly Plaza entrance to and including the subject parcel's front lawn area.
7. The Applicant shall submit a request to the Board, following one year of operation for the patio use, to review the project impacts during a public hearing.

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 W. Freeman
August 18, 2016