Court Rules For Airport On Road Lawsuit

A Massachusetts Land Court judge has ruled in favor of the Barnstable Municipal Airport, the Town of Barnstable and the Cape Cod Commission in a major consolidated case about roadwork at and near the airport.

The 49-page decision by Judge Gordon Piper, which was issued Wednesday, clears the way for the airport to complete its $40 million improvement project.

“We’re ecstatic,” airport manager Roland W. “Bud” Breault Jr. said yesterday.

In a statement released Wednesday, the chairman of the airport commission, Daniel W. Santos, called the judge’s decision “a victory for all of Cape Cod.”

The decision, Mr. Santos said, “not only vindicates actions taken by the airport commission, the Town of Barnstable and the Cape Cod Commission, it clears the way for us to make needed traffic safety improvements in the vicinity of the airport and the Airport Rotary.”

In his decision, Judge Piper upheld two modifications approved by the Cape Cod Commission of the airport expansion project.

The modifications contained an approval of new roadwork around the airport, and allowed construction to proceed on the new passenger terminal.

The judge also found no breach of a memorandum of understanding on the part of the Cape and airport commissions concerning a once-proposed traffic signal and new airport entrance on Route 132 west of the Airport Rotary.

The proposed signal and entrance later were dropped.

The memorandum of understanding was between the airport, the commission and Botsini-Prime LLC of Yarmouth, which leases land to a Wendy’s restaurant on Route 132 near the Airport Rotary.

In the court cases, Botsini had challenged the commission’s approval of the modifications, and had alleged a breach of contract on the memorandum of understanding.

“I’m obviously very disappointed,” said Gregory Botsivales, manager of Botsini-Prime. “I can’t say I’m very surprised.”

The company’s legal battle, he said, had been waged against “almost insurmountable odds.”

“We had no support from any federal, state or local officials,” he said. “It became clear that no one really cared.”

Asked if the company planned to appeal, Mr. Botsivales said, “We’re reviewing all our options.”

The company had argued that the traffic pattern approved by the Cape Cod Commission would congest an unnamed road off Route 132—a road used as the access to the Wendy’s restaurant—with airport-related traffic.

Mr. Breault disputes that, saying that the effect of the airport’s road improvements will reduce traffic volumes at the Airport Rotary and on Route 132.

The airport now is free to proceed with roadwork that had been frozen by the litigation.

The work includes closing the entrance to the airport off the Airport Rotary, building a median on Route 132 from the rotary to 32 feet west of Hinckley Road to prevent left-hand turns, and putting in a traffic light at the intersection of Attucks Lane and Airport Road.

As of last week, airport officials also moved into the new passenger terminal. The airport previously had agreed to delay moving into the new terminal until Judge Piper made his ruling.

But earlier this month, according to airport officials, the Transportation Security Administration said too many access points to the tarmac existed when the old terminal and the new, yet unoccupied terminal were considered together.

Airport officials proceeded to move into the new terminal, and to close and seal the old terminal.

Following the airport’s action, Botsini-Prime sought a preliminary injunction. A hearing on the request had been scheduled for yesterday before Judge Piper.

On Wednesday, however, the judge denied the request for the preliminary injunction and canceled the hearing.

“The litigation has gone to judgment, and preliminary relief no longer is indicated or available,” the judge wrote.

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