The City Council is asking Dunkin' Donuts franchisee Cafua to pay for fees related to a special permit review.

PITTSFIELD, Mass. — The city will ask the Cafua Management Co. to pay the costs of attorney and consultant fees deemed necessary for third-party review of a special permit application to construct a new drive-through restaurant at the site of the former St. Mary's.  

 

Invoking its Rule 39, the City Council on Tuesday authorized the Office of Community Development to ask the applicant to place funds in escrow to assume the cost of independent traffic analysis and additional legal services that could result from the proposal, which has proved controversial in recent weeks. Rule 39 was adopted by the City Council in 2013, enabling it to use Massachusetts General Laws Chapter 44, Section 53G, to impose review fees for project's that require the expertise of 3rd party consultants.

 

"I'm asking authorization for our department to begin working with the applicant to set up a fund, and for now, retaining at least an attorney and a traffic consultant," City Planner Cornelius Hoss told the council.

 

"The last time we had a situation with Cafua Management, we had to hire an outside attorney," observed Councilor John Krol, in reference to the denial of drive-through permit to the company at another site last year, a decision still under appeal by the company in Massachusetts Land Court.

 

Hoss said the same attorney representing the city in the ongoing case Dunkin' Donuts v. City of Pittsfield, et al, Mark Bobrowski, would be retained for any services related to this new proposal.  

 

"Typically I would get estimates, and then request a bit over that," said Hoss of additional consulting needed, indicating he would update the council as that process moves forward. "I won't just hand over a blind number."

 

Under Rule 39, any monies not needed for this analysis will be returned to the applicant. The applicant can appeal any consultants selected to the City Council within 14 days, on one of two grounds: if they feel that provider is unqualified or if they believe there is a conflict of interest.

 

Councilor Jonathan Lothrop asked if the applicant could argue the perception of a conflict of interest in having the same attorney serving the city on the current lawsuit by Cafua, also providing counsel for the city in this new application.

 

"The only concern I would have would be the appearance of conflict down the road, should this matter go the litigation route, which is certainly possible, creating a condition where doubt could be engendered about an individual who's already engaged in representing us," said Lothrop. 

 

Hoss said Bobrowski had not expressed any legal concerns about handling both issues, but he would bring the consideration up to him.

 

Some of the fees for legal and other consulting will be for attendance at meetings as the council deliberates on the application later this fall. Last year, the council's review of a similar proposal at the corner of 1st and Fenn streets occupied multiple meetings, before ultimately being denied by unanimous vote.

 

So far, at least three councilors have publicly stated their opposition to the proposal, which would demolish the former St. Mary the Morning Star church and rectory buildings to be replaced with a Dunkin' Donuts drive-through establishment. The special permit requires a supermajority of at least eight out of its 11 members voting in favor of it to be granted.

 

The council voted 10-0, with Councilor Barry Clairmont absent, to authorize the fees under Rule 39. The council also voted unanimously on Tuesday to approve an additional $10,000 for Bobrowski as he continues to represent city government in the ongoing law suit.