Main Street fed up with drive-through

When the Main Street Dunkin' Donuts drive-through window was ordered shut during morning commuting hours last November, Robert Wyatt thought he might finally catch a break.

Ever since the popular chain opened up next door to Wyatt's Mobil gas station, he contends that the combination of traffic leaving Winthrop for Boston and drivers lining up for a drive-through breakfast have resulted in miles-long backups that block the entrance to his business.

The effect on Wyatt's business and others' nearby, as well as public safety hazards caused by the congestion, were noted in last November's Board of Appeals decision to prohibit Dunkin' Donuts from using its drive-through window between 7 and 10 a.m., seven days a week.

Dunkin' Donuts appealed the decision, and the case is pending in Suffolk Superior Court.

But nine months later, the drive-through continues to operate; Wyatt blames town officials.

"I'm so frustrated and aggravated," Wyatt said. "It's a three-year ordeal. I did everything the right way. I didn't do anything illegally, underhanded, like a wise guy. I went through all the hearings. I just want to make sure this isn't swept under the table."

Wyatt is not the only one. Last month, six Main Street residents signed a petition asking the Town Council to enforce the decision.

"This traffic congestion directly impacts our quality of life by limiting our access to Main Street and is the source of excessive noise, pollution, and other unacceptable degradation of our property," reads the petition. "These negative conditions became apparent only after the opening of the Dunkin' Donuts drive-through window."

Town Council president Thomas Reilly said that "there's nothing the council can do about it" until the appeal goes through the court process. "We're a legislative branch; we're not executive, we can't enforce anything."

Robert Noonan the town counsel, did not return calls for comment. Attorney Deirdre Donohue, who is representing the town in the case, declined to comment because of the pending litigation.

"Until there's a resolution between the owner of the property and the town, there's not much we can do to enforce the Zoning Board of Appeals decision," said Town Manager Richard White. But even if there wasn't a court appeal filed, White said the board "issued an order that they couldn't enforce."

When they ordered Dunkin' Donuts to shut its drive-through operations, the Board of Appeals should have also suggested an alternate plan for how the owner should deal with the volume of customers who would no longer be able to use the window, White said.

"So, in essence, the decision would create more havoc and more danger from implementing it," White said. "You'd have the same problem and no solution."

Paul Marks, chairman of the Board of Appeals, said the board "didn't feel that it was within our purview to come up with a solution. We turned it over to the Dunkin' Donuts and the Mobil owners.

"As far as Dunkin' Donuts, I think the decision should be enforced. They should shut down the drive-through," Marks said.

In 2003, the Board of Appeals granted Dunkin' Donuts a special permit with conditions, including the requirement to have a traffic detail police officer Monday through Friday from 7 to 10 a.m. In its decision last year to shut down the drive-through, the board found that the owner, RMG Donuts LLC, violated that order on multiple occasions.

Sheri F. Murray, one of Wyatt's lawyers, said while the town is infighting, abutting business owners and residents are being affected. Wyatt has tried different legal channels to get the town to enforce the Board of Appeals decision, including a motion to intervene with Dunkin' Donuts' appeal of the town's decision, which the court rejected because Wyatt does not own the property that houses his business.

Murray, along with Wyatt's other attorney, Charles Balliro, filed a request to include Wyatt's landlord, Nicholas Simione, in the legal mix. Simione, who is also Dunkin' Donuts' landlord, did not return a call for comment.

Wyatt estimates he is losing sales of between 2,500 and 3,000 gallons of fuel a day as a result of the morning congestion. He has filed a civil suit against Dunkin' Donuts for lost profit, his attorneys said.

James J. Cipoletta, the lawyer for Michele Lawlor of RMG Donuts, said everyone is frustrated by the direction this issue has taken. He said the morning traffic backup at the Winthrop/East Boston line has been going on for decades, and added that Wyatt should not blame Dunkin' Donuts for financial losses. Cipoletta said traffic engineers for two local residential developments he represents have stated in separate studies that the source of congestion is a badly timed traffic light located between the Belle Isle bridge and Orient Heights in East Boston.

John Vitagliano, a former traffic commissioner in Boston and now a pro bono traffic consultant to Wyatt's attorneys, disagreed. Video recordings he has taken on several occasions of the morning commute show long backups, except on July 24, when several water pipe failures in town forced Dunkin' Donuts to shut down for the day.

"It was in the middle of the week, morning traffic, and the change was dramatic even though we had the Winthrop Public Works Department breaking up the street to fix the water main problem," Vitagliano said. "That kind of situation would normally cause a major impediment to traffic flow, but what we saw that day was that traffic flow went significantly better."

Katheleen Conti can be reached at kconti@globe.com.