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Planning Board’s decision to allow drive-thru stands, says BOS

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SHIRLEY — The Board of Selectmen has decided not to continue an appeal process in land court that pitted two town boards against each other.

The Zoning Board of Appeals (ZBA) had appealed the Planning Board’s decision to grant a special permit to Dunkin’ Donuts for a drive-thru window at its restaurant on Fredonian Street, arguing that the applicant should have come to the ZBA.

But the selectmen, citing the best interests of the town, prudent use of taxpayers’ dollars and conflicting legal opinions from town and special counsels, has decided to drop the matter and instructed the attorney acting on the ZBA’s behalf to withdraw the appeal.

The Planning Board’s decision stands.

The selectmen notified the ZBA of its decision, made in executive session, in a July 18 letter. The nine-page document traces the history of the matter and includes e-mail excerpts that highlight key points of the controversy.

The issue began in 2003, when Dunkin’ Donuts filed an application with the Zoning Board of Appeals to open a fast-food-type restaurant with drive-thru service in the village business district.

At the time, zoning bylaws allowed such a use with a special permit from the ZBA. However, the drive-thru concept created a stir, and the applicant withdrew the special permit request. The restaurant was built without a drive-thru window.

The concession turned out to be temporary. Dunkin’ Donuts has since pursued its original goal via a different go-to authority.

Revised town bylaws established in 2005 allow restaurants and take-out food establishments to operate “as of right” in the village business district, but specifically exclude drive-thru service. Under the new provisions, the Planning Board, not the ZBA, has the authority to issue special permits for drive-thrus.

In April, Dunkin’ Donuts applied to the Planning Board for a special permit, which the board subsequently granted.

The ZBA, however, objected and asked its attorney, Judith Pickett, of the law firm Brackett and Lucas, for an opinion.

In part because she didn’t agree the law the proponent’s attorney had cited applied in this case, Pickett sided with the ZBA’s view that Dunkin’ Donuts had sidestepped the process. At the ZBA’s request, she filed an appeal of the Planning Board’s decision in land court.

The selectmen, who have the final say, asked the town’s legal counsel to weigh in. Based on his and the board’s review of the matter, the selectmen made a “conscientious decision” not to continue the appeal process, according to the letter.

ZBA Chairman Rachel Sizer said she hasn’t seen the letter yet, but she knows what’s in it. The matter had been discussed in executive session, she said.

“Basically, the selectmen appoint us It’s their decision,” she said.

In her opinion, Dunkin’ Donuts manipulated old and new bylaws to pull off an “eleventh-hour” coup, she said, and the Planning Board “misinterpreted” the new bylaw.