State Land Court judge upholds Pittsfield's rejection of Dunkin' Donuts drive-thru


PITTSFIELD — A Massachusetts Land Court judge has upheld the City Council in its 2013 decision to reject a special permit for a Dunkin' Donuts drive-thru at First and Fenn streets.

Cafua Management Co., which has established hundreds of Dunkin' Donuts outlets, including several in the Berkshires, was denied a permit that June on the 10-1 vote of the council.

The company proposed a restaurant and drive-thru at the site of the former Plunkett School, which the developer purchased in December 2013 and later razed. Although a restaurant was an allowed use in the zone, a drive-thru operation requires special permit approval from the council.

Contacted Friday about the March 28 ruling by Land Court Judge Gordon Piper, Mayor Linda M. Tyer said she was pleased the council decision was upheld. She added that her administration remains ready to work with developers to create businesses that conform to Pittsfield's master plan and the mixed-use, pedestrian-friendly goals of the downtown district.

In rejecting the drive-thru, the council cited concerns about traffic and pedestrian safety at the already busy intersection and about conformance with master plan goals for the downtown.

The parcel is close to The Common and within walking distance of the downtown Streetscape areas and arts venues.

Attorney David H. Rich of Todd & Weld of Boston, representing Cafua in the appeal, could not be reached Friday for comment.

In the appeal, Cafua alleged "the City Council exceeded its legal authority in denying the special permit, acted arbitrarily and did not comply with the statutory and municipal requirements for the issuing of a special permit."

The company has 30 days from the ruling date to appeal the decision to the state Appeals Court.

Attorney Mark Bobrowski, of Blatman, Bobrowski & Taleman, of Concord, who represented the city and the council, said Friday that "the judge did exactly what I thought he would do," based on the circumstances of the case.

Except in rare cases or when there are problems within the permitting process, Bobrowski said, the law requires deference be given to decisions of a special permit-granting authority.

Ward 6 Councilor John Krol, one of the councilors named as defendants in the Cafua appeal, said of the decision, "Ultimately, this shows is that our special permitting process is solid."

He said the purpose of the zoning requirement is to help officials and residents "shape the character of our city," and said the court ruling sends "a good message."

Cafua also has considered a Dunkin' Donuts on the campus of the former St. Mary the Morning Star Church on Tyler Street, and that restaurant likewise was proposed with a drive-thru operation.

The company recently withdrew its Tyler Street proposal prior to a council vote on the drive-thru aspect, and the developer indicated to city officials that project plans might be revised and resubmitted. No new plans had been submitted to the Community Development office as of Friday.

Under city zoning, the council must separately approve any drive-thru operation by a supermajority vote of at least 8 of 11 councilors.

The First and Fenn street site is a 0.84-acre parcel and the location of the 104-year-old former Plunkett School, which was purchased for $775,000 by the developer in December 2013 and razed in June 2014. The school was constructed in 1909 and last used as a school in 1977.

Efforts to find a developer to reuse or restore the school building were unsuccessful.

During its appeal to Land Court, Cafua indicated it might proceed with a Dunkin' Donuts at the location without a drive-thru.

Contact Jim Therrien at 413-496-6247.


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