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TOWN OF HINGHAM
Board of Appeals
NOTICE OF DECISION
IN THE MATTER OF:
Applicant/Owner: W/S/M Hingham Properties LLC
33 Boylston Street
Chestnut Hill, MA 02467
Agent: Attorney Robert L. Devin
Devin, Barry & Austin, P.C.
80 Washington Street, Bldg S
Norwell, MA 02061
Premises: 90-100 Derby Street, Hingham, MA 02043
Deed Reference: Plymouth County Registry of Deeds, Book 30816, Page 261
Plan References: Plan entitled, “Derby Street Shops,” depicting new bank location, prepared by WSDevelopment, dated February 6, 2019
SUMMARY OF PROCEEDINGS
This matter came before the Board of Appeals (the "Board") on the application of W/S/M Hingham Properties, LLC (the “Applicant”) to modify the Special Permit A2 Decision, originally issued February 10, 2003, as amended, under § III-A, 4.17, including all subsets, of the Zoning By-Law (the “By-Law”), and such other relief as necessary to allow a bank to locate within the Derby Street Shoppes, 90-100 Derby Street, in the Industrial Park and South Hingham Development Overlay Districts.
The Applicant simultaneously filed a related application with the Planning Board for a Waiver of Site Plan Review under § I-G and § I-I of the By-Law. The Planning Board voted to waive its Site Plan Review and the associated public hearing requirement to allow a new bank use to occupy Suite 123 of the Pavilion Building located within the Derby Street Shops.
The Board opened the initial, duly noticed public hearing on the Special Permit A2 Modification during a regular meeting held in Hingham Town Hall on March 19, 2018, but continued the matter without the receipt of testimony. Substantive sessions of the hearing were held on March 25, 2019 and April 8, 2019 before a panel consisting of regular members, Joseph M. Fisher, Chairman, and Robyn S. Maguire, and associate member Mario Romania, Jr. The Applicant was represented during the hearings by Victoria Maguire, Development Manager, WSDevelopment, and Sherri D’Alessandro Schuler, General Manager of the Derby Street Shops. Attorney Robert Devin also appeared to represent the Applicant. At the conclusion of the hearing, the Board voted unanimously to grant the requested Special Permit Modification, with conditions 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 By-Law provides that shopping centers (formerly “retail groups”) may consist of a mix of uses, including retail stores, commercial service establishments, restaurants, professional offices, financial institutions, indoor amusement or health clubs, hotels, and gas stations. However, the initial Special Permit for the Derby Street Shoppes referenced only retail and restaurant uses. In 2013, the Applicant sought a minor modification of this Permit to allow a financial use, Charles Schwab, to locate within the center. The Board approved the request, but noted in the decision that the approval could not be viewed as a "precedent allowing any such future application." As a result, in 2016, the Board heard through a public hearing process, and subsequently approved, another modification request to locate Capital One, and a related 48-seat cafe, within the center.
Members noted that the proposed use represents a change from the originally contemplated shopping center, though it is an allowed use under § III-A, 4.17. There was substantial discussion during the hearing regarding the character of the proposed bank. Members of the Board expressed concern that additional financial uses may negatively affect pedestrian activity and the overall character of the predominately retail shopping center.
The Applicant represented that the chosen location for this bank was intended to calm the more intensive retail uses in the front area of the shopping center closest to Whole Foods. The proposed bank use has a lower parking ratio (4 spaces/1,000 SF GFA) than a retail use (4.5 spaces/1,000 SF GFA). While this location may be desirable in terms of traffic calming and parking demand, Members pointed out that its close proximity to both previously approved financial users and an ATM machine was not ideal.
After substantial discussion, the Board determined that it would be appropriate to allow the bank to locate in the Pavilion Building; however, members indicated that no additional banks or financial institutions, including ATMs, would be permitted within the Shopping Center absent a broader modification of the Special Permit that would either control the overall mix of uses within the existing center or allow for the expansion of the permitted development. The Applicant agreed to the limitation, which reserving W/S/M Development’s right to seek more substantial modification of the Special Permit in the future.
FINDINGS AND DECISION
Upon a motion made by Robyn S. Maguire, seconded by Mario Romania, Jr., the Board then made a finding that the proposed conversion of retail tenant space to a bank would not affect the specific findings made by the Board in conjunction with its Special Permit A2 for the Derby Street Shoppes, originally issued on February 10, 2003, as revised, and to grant the Special Permit Modification, subject to the following conditions:
1. No more 2.72% of the gross leasable floor area of the Shopping Center shall be occupied by banks or other financial institutions (Use 4.10), nor shall more than four bank/financial institution/ATMs be permitted within the Shopping Center without further modification of this Decision.
2. Unless specifically modified by this Decision, all other conditions of the Derby Street Shoppes Special Permit A2, dated February 10, 2003, as amended, shall remain in effect.
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,
Robyn S. Maguire
June 6, 2019