Stamford Dunkin’ franchisee sues Zoning Board of Appeals, Donut Delight over drive-thru denial

364 Wells Hope Street LLC filed the appeal at the state Superior Court in Stamford on Dec. 6, asking a judge to overturn the decision made by the Zoning Board of Appeals. The company is owned by Jim Cain of Cain Management, who owns and operates every Dunkin’ in Stamford and Norwalk with his wife and two sons.

Cain did not respond to a request for comment. Tom Cassone, the city’s director of legal affairs, did not return an immediate request for comment.

In the complaint, the company’s lawyer, Michael Cacace, argues that the Zoning Board of Appeals erred when it decided that a drive-thru Dunkin’ constituted the “expansion” of a legal, nonconforming use at 364 Hope St. The former tenant was a Wells Fargo Bank with a drive-thru window.

The appeals board “applied the wrong standards” and was “considering factors unrelated to the legal standards applicable to the appeal filed,” the complaint said.

In a statement, attorney Adam Blank, who represented the appellants before the board, said the decision “(wasn’t) a close call.”

“A drive-thru Dunkin’ at that location is bad for the neighborhood and bad for Stamford,” Blank said. “The zoning regulations are the rules we are all supposed to follow — Dunkin’ should be required to follow those rules just like every other individual and business.”

The decision hinged on whether the Dunkin’ drive-thru, as city officials have claimed, was a grandfathered use from the previous bank, or whether by permitting the window, the owners had created a new nonconforming use. Under state law, officials cannot take away property rights that have since been disallowed by changes to local regulations — unless the use is meaningfully altered so as to create a different use altogether.

In the past, the city has classified Dunkin’ under the “Bakeries, Retail” use. Under the zoning code, both “Bakeries, Retail” and “Banks & Financial Institutions” are allowed in C-N zones — where the parcel is located. However, after a 2018 text change, drive-thru windows for banks and pharmacies are permissible in C-N only by special permit; drive-thru windows for all other types of businesses are illegal in the zone.

In the complaint, Cacace reasons that the “Bakeries, Retail” use is a “more restrictive use” than that of “Banks & Financial Institutions.” The only difference between the two uses is that the bakeries use has additional safeguards when it’s operating in an industrial zone.

In early September, James Lunney, the city’s Chief Zoning Enforcement Officer, signed off on the project despite neighbor complaints, saying it was allowed by law. 

Last month, board members questioned Lunney, who told them bakeries are “less intense because (they) can’t be as big,” while board members read the additional restrictions as bakeries being more intense.

Additionally, appeals board members questioned the city’s decision to call Dunkin’ a bakery in the first place, instead of a fast food restaurant.

Regardless, Blank — who represented two opposed neighbors and nearby Stamford-based competitor Donut Delight, which signed on to the appeal — said Dunkin’ wouldn’t be a bank or financial institution. Thus, the drive-thru would constitute a new nonconforming use.

The complaint, which names the Zoning Board of Appeals, Lunney, Donut Delight and the two neighbors, makes several other claims in an attempt to invalidate the appeals board’s decision.

It says the appellants didn’t properly specify the grounds of their appeal to Lunney, nor did they provide adequate proof that they were “aggrieved” by the drive-thru, in accordance with state law. It also claimed that the public hearing “denied (the franchisee) fundamental fairness and due process” under the U.S. and Connecticut constitutions.