For one Dunkin' Donuts franchisee who wants to open a doughnut-slinging, coffee-pouring fast food bake shop in Harvard Square, it's still not time to make the doughnuts.

But after about a year of fighting activists' efforts, Duarte Carvalho--a Portuguese immigrant who owns two other Dunkin' Donuts franchises--is taking his case to the Middles Superior Court.

About a year ago, Carvalho tried to open a Dunkin' Donuts on Mt. Auburn Street, on the former site of The Country's Best Yogurt (TCBY). But Carvalhos' plans to sell coffee and crullers had to be put on hold after the Harvard Square Defense Fund raised objections to the bake shop.

Defense fund members alleged that Inspectional Services Commissioner Joseph Cellucci's transfer of TCBY's special fast food permit to Carvalho was in violation of city zoning ordinances.

The activist group brought their grievances to the city's Board of Zoning Appeals, which ruled that Carvalho had to obtain a new permit from the city.

Now Carvalho and Trinity Property Management, the landlord of the storefront, are appealing the board's decision in court.

"They think that if they drag the case on long enough, we'll throw our hands up and leave," John P. DiGiovanni, vice president of Trinity Property Management.

DiGiovanni said Cellucci's actions were legal

But Councillor Alice K. Wolf said she is concerned about the permit transfer and submitted an order at Monday's council meeting asking the city to investigate the matter.

"It is outrageous that citizens have to take action to enforce the laws of the city," said Gladys P. Gifford, president of the defense fund.

Gifford--whose organization has waged fights with Au Bon Pain and the parking garage on JFK St. in the past--said the Dunkin' Donuts does not meet the requirements to obtain a permit.

Under city law, a fast food establishment must have 80 percent of its business be carryout and fill a "need" in the city, according to Gifford. She added that there are currently over 20 coffee shops in the Square.

But the landlord of the storefront wedged between Bruegger's Bagels and Christy's alleges that the defense fund is being selective in trying to block the opening of the fast food bake shop.

"[The defense fund thinks] Dunkin' Donuts is not as elite as an Au Bon Pain or a C'est Bon," said DiGiovanni, adding that Carvalho was cited by the police, fire and health inspectional services for his quality service and immaculate store.

DiGiovanni, whose company is footing part of his client's legal bill, also said this appeal is important because "people's civil rights are being violated." He added that winning the suit will prove activist groups, like the defense fund, can't always wield the influence over city councillors.

"It's only a 700 square foot shop," DiGiovanni said. "It's amazing that a store this size is causing such a stir."

He said the court should hand down a decision on the appeal by the end of the year.