BOTSINI-PRIME, LLC v. CAPE COD COMMISSION and the BARNSTABLE MUNICIPAL AIRPORT COMMISSION

In these Land Court cases, plaintiff Botsini-Prime, LLC (“Botsini”) challenges, pursuant to St. 1989, c. 716, § 17(b), two decisions of the Cape Cod Commission (“Commission”) modifying previous approvals granted to the Barnstable Municipal Airport Commission (“Airport”) regarding the expansion of the Barnstable Municipal Airport. Botsini also has brought an action in the Barnstable Superior Court against the Airport and the Commission for breach of contract. These three cases were consolidated and heard by a single justice.

I. PROCEDURAL HISTORY

The Cape Cod Commission issued a written decision dated January 25, 2007 on Project No. ENF-20009 and DRI/EIR-06011 (“Airport Expansion Project”) as a Development of Regional Impact (“DRI”). The DRI Decision was recorded with the Barnstable County Registry of Deeds (“Registry”) at Book 22218, Page 58, and in the Barnstable Registry District of the Land Court (“District”) as Document No. 1,069,769. On March 21, 2007, Botsini filed a complaint in the Land Court challenging the DRI Decision, Land Court Miscellaneous Case No. 07 MISC 343477 (LJL).

A case management conference in Miscellaneous Case No. 07 MISC 343477 was scheduled for June 18, 2007. On June 14, 2007, that conference was taken off the calendar because the case was reported settled. The court (Lombardi, J.) issued a Nisi Order directing dismissal of the case after July 16, 2007 if parties had not by that date filed a stipulation of dismissal, and agreement for judgment, or a request that the case be returned to the active docket. On July 3, 2007, parties filed a Stipulation of Dismissal With Prejudice pursuant to Mass. R. Civ. P. 41(a)(1)(ii). In addition to dismissing the case, the Stipulation of Dismissal contained two paragraphs labeled “Memorandum of Understanding” and two attached exhibits.

The case was closed on July 3, 2007.

On March 8, 2010, the Airport applied to the Commission for a major modification of the DRI Decision. [Note 1] On June 24, 2010, the Commission approved the major modification request (“Major Modification”). Botsini filed a complaint in the Land Court on July 28, 2010 challenging the Major Modification, Land Court Miscellaneous Case No. 10 MISC 434939 (GHP).

On May 13, 2010, the Airport filed a request with the Commission to modify a condition, contained in the original DRI Decision, which required all judicial appeals to be resolved before construction might commence. This request was granted as a “Minor Modification Type #2” by decision issued May 25, 2010 (“Minor Modification”). On June 21, 2010, Botsini filed a complaint in the Land Court challenging the Minor Modification, Land Court Miscellaneous Case No. 10 MISC 432357 (GHP).

On August 23, 2010, I conducted a case management conference in both of Botsini’s appeals. With the consent of all counsel, the two cases were consolidated, timelines for discovery were established, and a pretrial conference was scheduled for December 16, 2010. The court directed the parties to confer, and to file a joint report indicating whether they would attend a mediation session. Counsel for Botsini reported by letter received by the court on September 8, 2010 that parties had not yet agreed on mediation. On November 19, 2010, Botsini filed a motion to extend discovery, which was set to expire on November 30, 2010.

The pretrial conference occurred as scheduled on December 16, 2010. At the pretrial conference, I granted a brief extension of the discovery period pursuant to Botsini’s November 19, 2010 motion. The court instructed the parties to hold dates in March, 2011 for trial.

On January 6, 2011, the Airport filed an Emergency Motion to Quash Subpoena and Deposition Notice of Fayssal J. Husseini, P.E. and for Protective Order. On January 10, 2011, Botsini filed an opposition. Counsel participated in a hearing on the motion by telephone conference call on February 1, 2011. After hearing the arguments of counsel, I denied the motion, for the reasons reflected in the entry on the court’s docket of that date. [Note 2]

I held trial in Boston on March 15, 16, 17, and 24, 2011. A court reporter transcribed the testimony and proceedings and has produced a trial transcript. The following witnesses testified: Gregory Botsivales, Roland Breault, Daniel W. Santos, Jo Anne Miller Buntich, Fayssal Husseini, Randall C. Hart, John C. Klimm, Thomas Perry, Robert D. Vanasse, and Glenn Cannon. Forty-five exhibits were introduced into evidence at trial. At the close of the taking of evidence on March 24, 2011, I suspended the trial and instructed counsel to await the completion of the trial transcripts, and to file posttrial memoranda of law, and proposed findings of fact and rulings of law, in advance of closing arguments. Botsini filed its posttrial materials on May 18, 2011. The defendants filed collectively on May 17, 2011.

On May 16, 2011, Botsini commenced a fourth lawsuit, Botsini-Prime LLC v. Barnstable Zoning Bd. of Appeals, Land Court Miscellaneous Case No. 11 MISC 448574 (GHP). Following the June 22, 2011 case management conference, the court made the following orders, reflected on the docket: “Parties Agree, and Court Is Convinced, that Disposition of Instant Case May Well Depend on Outcome of Prior-Pending Land Court Cases, 10 MISC 432357 and 10 MISC 434939. Accordingly, All Proceedings In This Case Are STAYED Indefinitely Pending Allowance of Written Motion to Remove Stay or Other Order of the Court.” The May 16, 2011 lawsuit is an appeal under G.L. c. 40A, § 17 challenging the decision of the Barnstable Zoning Board of Appeals to uphold the Building Commissioner’s refusal to revoke building permits issued to the Airport. This case is not consolidated with the three cases at bar, and the stay remains in place.

On May 20, 2011, I took a view in the presence of counsel, representatives from Botsini and the Airport, and others. Also on May 20, 2011, consistent with the colloquy I had with counsel at the end of the fourth trial day, Botsini filed a single-count complaint in the Barnstable Superior Court Department, pleading a breach of the Memorandum of Understanding. The initiation of this action was to resolve any doubt about the subject matter jurisdiction of the Land Court to decide this particular contract claim. The complaint, docketed as Botsini-Prime LLC v. Cape Cod Commission, BACV2011-00310, was accompanied by a stipulation that the Superior Court action be stayed while parties requested the Chief Justice for Administration and Management to assign me to sit in the Superior Court Department for the purpose of hearing this case along with the two pending Land Court cases. See G.L. c. 211B, § 9. Trial resumed for closing arguments on May 23, 2011.

On June 23, 2011, Botsini filed a motion for a preliminary injunction, seeking to stop the ongoing progress on the Airport Expansion Project. I scheduled a hearing on the request for July 13, 2011. The Commission and the Airport filed written oppositions on July 11, 2011. Following argument, I denied the request, ruling that Botsini had failed to demonstrate irreparable harm, an essential part of the showing the law requires of one seeking pre-judgment injunctive relief, in light of representations made by counsel for the Airport about the scope of the work (specifically, about what work would not be undertaken). The parties then filed, on July 25, 2011, a stipulation reflecting the representations made in court by the Airport’s counsel.

On August 9, 2011 the Superior Court case arrived in the Land Court, accompanied by an Order of Assignment issued by the Chief Justice for Administration and Management, dated July 20, 2011, designating me to hear and decide the single count action filed in the Superior Court. In the interim, on October 7, 2011, the Airport filed a Motion for Equitable Relief and to Relieve the Barnstable Municipal Airport Commission from the Stipulation Dated July 2011. On October 27, 2011 the court (Piper, J.) issued an Order on Request for Equitable Relief, which I incorporate by reference into this decision. On December 14, 2011, Botsini filed a renewed request for preliminary injunction, and a request for a short order of notice. The court, on December 14, 2011 issued an Order of Notice For Hearing on Renewed Application for Preliminary Injunction Thursday, December 22, 2011 at 9:30 A.M.

II. THRESHOLD FINDINGS OF FACTS

On all of the testimony, exhibits, stipulations, and other evidence introduced at trial or otherwise properly before me, and the reasonable inferences I draw therefrom, and taking into account the pleadings, memoranda, and argument of the parties, I find and rule as follows:

1. The defendant Cape Cod Commission is the regional land use and planning commission for Cape Cod, vested with authority pursuant to the Cape Cod Commission Act, c. 716 of the Acts of 1989, as amended. The defendant Town is a duly constituted municipal body with its usual place of business at the Town Hall, 367 Main Street, Hyannis, Massachusetts. The defendant Thomas Perry is the duly appointed Building Commissioner for the Town. The defendant Barnstable Municipal Airport Commission consists of Commissioners who are vested with authority to operate the Barnstable Municipal Airport, and who are appointed by the Town of Barnstable Town Council.

2. Plaintiff Botsini-Prime, LLC, is a single-purpose entity that owns two properties on Cape Cod, which it leases to Fashion Foods, LLC, for use and operation as Wendy’s fast food restaurants. The property (“Botsini property”) relevant to this action is located at 554 Iyannough Road (Route 132), Barnstable.

3. The Botsini property is located to the south of the Airport and Barnstable Road, and to the west of the Airport Rotary (“Rotary”). Botsini has owned this property for approximately twenty-two years, and a Wendy’s fast food restaurant and drive-through window has operated there the entire time.

4. The unnamed, two-way road (“No Name Road”) to the west of the Rotary that connects Route 132 and Barnstable Road, and serves as a driveway for accessing the Wendy’s is impressed with an easement benefitting the Botsini property. The Airport and Botsini own the fee.

5. The Botsini property has two unrestricted access points. Vehicles may access the property from both north and southbound lanes on Barnstable Road by turning onto No Name Road. Vehicles also may turn onto No Name Road from both north and southbound lanes on Route 132.

6. The Airport is located at 480 Barnstable Road, Hyannis, Massachusetts. Approximately ninety percent of all airport traffic uses the current (pre-expansion) main access, which is at the Rotary over Barnstable Road. Vehicles also may access the Airport from Route 132, by turning into No Name Road or Hinckley Road.

7. The Airport itself consists of two major runways, various taxi ways, an air traffic control tower, hangers, a passenger terminal, various tenant buildings and an emergency building.

8. In January 2007, the Commission approved the Airport’s plans to expand its facilities as a development of regional impact. The Airport Expansion Project approved in the DRI Decision included construction of a new 28,000 square foot airport passenger terminal, 814 new on-site parking spaces, new remote parking for an additional 1,561 vehicles, and a new Air Traffic Control Tower.

9. The following roadways intersected the Rotary at five intersections prior to the DRI Decision: (i) Route 132; (ii) Route 28 (bisected by the Rotary); and (iii) Barnstable Road (bisected by the Rotary).

10. The Town of Barnstable has exclusive jurisdiction over Barnstable Road and Hinckley Road and Route 132 from the Rotary to Phinney’s Lane.

11. The Commonwealth of Massachusetts Department of Transportation has jurisdiction over the Rotary and Route 28. 12. As set forth in Conditions T1 -T7 of the 2007 DRI, the Commission required the Airport to close Barnstable Road at the Rotary; to create a new access on Route 132 and install a signalized intersection with a queue-detection system at the Sullivan Lot (“Sullivan Lot Light”); and to eliminate two-way travel on No Name Road, converting the way into a one-way exit onto Route 132.

13. Condition G7 of the DRI Decision provides that “[n]o development work, as the term ‘development’ is defined in the Cape Cod Commission Act, shall be undertaken until all appeal periods have elapsed or, if such an appeal has been filed, until all judicial proceedings have been completed.”

14. On March 21, 2007, Botsini filed a complaint in the Land Court (“2007 Appeal”) challenging the DRI Decision. Botsini-Prime LLC v. Cape Cod Commission, Land Court Miscellaneous Case No. 07 MISC 343477 (LJL).

15. On July 3, 2007, the parties to the 2007 Appeal filed a Stipulation of Dismissal With Prejudice that contained two paragraphs labeled “Memorandum of Understanding” and two attached exhibits. The case was closed on July 3, 2007.

16. The Memorandum of Understanding reads in its entirety:

The Parties are all parties to a lawsuit denominated Botsini-Prime, LLC, v. Cape Cod Commission and the Barnstable Municipal Airport Commission, 07 Misc. 343477, which was commenced on March 21, 2007, and is currently pending in the Land Court. Pursuant to this action, Botsini-Prime, LLC, sought to resolve certain ambiguity and lack of clarity as to impacts on traffic and circulation resulting from a conflict in plans of record filed with the Cape Cod Commission (the “Commission”) in connection with a Development of Regional Impact proposed by the Barnstable Municipal Airport Commission (“Airport DRI”).

The Parties agree that upon construction of the roadway improvements required under Conditions T1-T7 of the Commission’s decision on the Airport DRI (Project ENF # 20009 / DRI/EIR # 06011), the circulation and use of “Roadway A” as shown on the plans attached hereto as Exhibit 1 and Exhibit 2, will allow two-way ingress and egress to and from the Airport Terminal Road and Route 132, and the Airport Terminal Road (F/K/A Barnstable Road) as a two-way road from its intersection with Roadway “A” northerly to the intersection with the Attucks Lane Extension. Notwithstanding the forgoing, the sole obligation of the Cape Cod Commission hereunder shall be to modify its DRI decision to approve the traffic pattern previously described in this paragraph.

17. The Memorandum of Understanding attaches and incorporates by express reference specific portions of the plans approved as part of the 2007 DRI that depict the Sullivan Lot Light. The plan attached as Exhibit 2 to the Memorandum of Understanding includes a handwritten symbol for the traffic signal (the letter ‘S’ enclosed in a circle) at the location of what is known as the Sullivan Lot, and the handwritten words “PROPOSED TRAFFIC SIGNAL” are connected to the traffic signal symbol with a drawn arrow.

18. Both exhibits to the Memorandum of Understanding depict the “New Access Road” that the DRI Decision approved, which was to be constructed as an extension of Nightingale Lane crossing Route 132, and across the “Sullivan Lot” to the Airport. The New Access Road is described in Condition T1 of the DRI Dcision as “a new connector road to Route 132, opposite Nightingale Lane[.]” Condition T1 further requires “Signalization of the intersection of the new connector road/Route 132/Nightingale Lane[.]”

19. In or around August of 2007, the Airport began considering changes to the Airport Expansion Project. These changes to the project included cutting back the size of the terminal from 55,000 square feet to 35,000 square feet (a thirty-three percent reduction), the elimination of the Sullivan Lot Light, providing an exit-only egress at the Rotary, and the elimination of a certain land taking.

20. The Airport voted, in 2008, to down-size the terminal and eliminate the Sullivan Light, and it did not take a certain bakery property by eminent domain. The cost savings for the elimination of the Sullivan Lot Light alone was between $850,000 and $1.2 million dollars.

21. In or about July 2009, the Airport applied for a major modification of the DRI Decision. This request contemplated removing the New Access Road and the Sullivan Lot Light. The Airport did not consult with Botsini about its decision to remove the Sullivan Lot Light or the New Access Road.

22. When Botsini received notice of the request, it voiced concerns before the Cape Cod Commission that eliminating the New Access Road and Sullivan Lot Light would eliminate a safe and convenient access point to the Airport, and would result in No Name Road becoming the de facto primary Airport access.

23. The Airport withdrew its modification application before the Commission could issue a decision.

24. On March 8, 2010, the Airport again applied for a major modification of the DRI Decision. The Airport again proposed to modify the DRI Decision by eliminating the Sullivan Light. In addition, the Airport proposed providing an exit only access to the Airport Rotary, and providing for an entrance only right turn ramp to the airport from Route 28 westbound, just east of the Airport Rotary.

25. The Commission approved the major modification request in a written decision ( “Major Modification”) dated June 24, 2010. The Major Modification included the elimination of the New Access Road and the Sullivan Lot Light, a plan to extend the median on Route 132 from the Rotary to a point thirty feet beyond Hinckley Road (“Median Extension”), and the reintroduction of Barnstable Road as a one-way egress onto the Rotary.

26. On May 13, 2010, the Airport filed a request to modify Condition G7 of the original DRI Decision. Condition G7 in the original DRI Decision read as follows: “No development work, as the term ‘development’ is defined in the Cape Cod Commission Act, shall be undertaken until all appeal periods have elapsed or, if such an appeal has been filed, until all judicial proceedings have been completed.” The Airport sought to modify Condition G7 to allow the Airport to begin construction prior to any decision on its March 8, 2010 modification request, regardless of any appeal.

27. The Commission approved the request as a “Minor Modification Type #2” (as that term is defined in the Regulations, see infra.), on May 24, 2010, and issued its decision on May 25, 2010. Condition G7 now reads as follows:

No development work, as the term “development” is defined in the Cape Cod Commission Act, shall be undertaken for a subpart as identified in Condition G1 that is subject to a modification of the original decision until all appeal periods for that modification have elapsed or, if such an appeal has been filed, until all judicial proceedings have been completed.

28. The Cape Cod Commission Act (“Act”), St. 1989, c. 716, § 2 (e), defines “development” as “any building, construction, renovation,…filling, excavation, or drilling activity or operation; any material change in the use or appearance of any structure or in the land itself; … demolition of a structure; the clearing of land as an adjunct of construction….”

29. The Commission’s Enabling Regulations Governing Review of Developments of Regional Impact, Barnstable County Ordinance 90-12, revised May 2010 (“Regulations”), provide at section 1 (b) that “[t]he Enabling Regulations set forth herein shall remain in effect until the Assembly of Delegates adopts superseding regulations by ordinance.” The Regulations further provide that no “development (as that term is defined in the Act) shall begin on a proposed Development until the decision has been recorded.” Id. at §12(b)(iii). The Regulations further provide that a decision may be recorded only after “the appeal period has lapsed and no appeal has been filed or, if such appeal has been filed, after it has been dismissed or denied.” Id.

30. Section 7 (c) (viii) of the Regulations provides that the “Commission shall review proposed DRIs for their consistency with the Act, the [Regional Policy Plan (“RPP”)], Districts of Critical Planning Concern (DCPC), municipal development bylaws and Local Comprehensive Plans.”

31. The RPP is a regional policy plan, completed by the Commission, to steer developments of regional impact on Cape Cod. The RPP has three main transportation goals:

a. Transportation Goal - TR1: Safety. “To improve safety and eliminate hazards for all users of Cape Cod’s transportation system.”

b. Transportation Goal - TR2: Traffic Reduction/Transportation Balance and Efficiency. “To reduce and/or offset the expected increase in motor vehicle trips on public roadways, reduce dependency on automobiles, and reduce air and noise pollution. To promote a balanced and efficient transportation system that includes alternatives to automobile travel.”

c. Transportation Goal - TR3: Level of Service. “To maintain or improve travel times and Level of Service on roads and intersections and to ensure that all road and intersection construction or modifications are consistent with community character, historic resources, and scenic resources.”

32. The RPP sets forth the policies and goals that a DRI of over 10,000 square feet must meet. Relevant here, the RPP, consistent with its transportation goals, requires that a DRI (1) not degrade safety, (2) reduce or offset twenty-five percent of the traffic the DRI creates, and (3) maintain or improve level of service by mitigating traffic congestion the DRI creates.

33. Modifications to DRI decisions are governed by section 13 of the Regulations. Section 13 (c) sets forth four different categories of modification. These are: Minor Modification #1, Minor Modification #2, Major Modification, and New Project.

34. A Minor Modification #1 is “approved by the Executive Director... and reported to the Regulatory Committee and [does] not require further review by the Commission.” This type of modification includes “revisions that are a result of more restrictive conditions imposed by a local board or technical corrections or changes that... are de minimus changes to the project.”

35. A Minor Modification #2 “[i]includes a substantially similar proposal to the original project but involves a minor Change of Use, a minor change to the site plan, or small change to the findings or a condition of the original approval which does not affect the intent or outcome of the finding or condition. A proposed change shall not result in a different of increased impacts to the resources protected by the Act and/or the RPP.” Minor Modification #2 requests are determined by the Regulatory Committee and do not require further review by the Commission.

36. Neither a Minor Modification #1 nor a Minor Modification #2 requires recording in the Registry of Deeds. For a Minor Modification #1, the Regulations provide that “[u]pon the approval of a Minor Modification #1, the project proponent may apply for, and Municipal Agencies may issue, local development permits consistent with the approved modification.” For a Minor Modification #2, the Regulations provide that “[u]pon the Regulatory Committee’s approval of a Minor Modification #2, the project proponent may apply for and Municipal Agencies may issue a local development permit consistent with the approved modification.”

37. For a Major Modification, the Regulations provide that the “Regulatory Committee shall specify the scope of the DRI review in its decision” to designate an application as a Major Modification. Applications for a Major Modification “shall be reviewed by the Commission or its designee” and “proceed through the DRI review or DRI Exemption review process consistent with” the Act and Regulations. Major Modifications to approved DRIs are reviewed by the Commission for consistency with section 13 (d) of the Act, including consistency with the RPP.

III. ANALYSIS OF BREACH OF CONTRACT CLAIM

These findings of fact suffice to allow me to decide the threshold issue in this case, which is whether or not the Memorandum of Understanding was a binding agreement obligating the Airport to construct the Sullivan Lot Light and New Access Road.

The M.O.U. states in part that:

The Parties agree that upon construction of the roadway improvements required under Conditions T1-T7 of the Commission’s decision on the Airport DRI (Project ENF # 20009 / DRI/EIR # 06011), the circulation and use of “Roadway A” as shown on the plans attached hereto as Exhibit 1 and Exhibit 2, will allow two-way ingress and egress to and from the Airport Terminal Road and Route 132, and the Airport Terminal Road (F/K/A Barnstable Road) as a two-way road from its intersection with Roadway “A” northerly to the intersection with the Attucks Lane Extension. Notwithstanding the foregoing, the sole obligation of the Cape Cod Commission hereunder shall be to modify its DRI decision to approve the traffic pattern previously described in this paragraph.

The “Roadway A” referred to in the M.O.U. is the same road referred to at trial as the No Name or Unnamed Road. Exhibits 1 and 2 attached to the M.O.U. depict a “New Access Road” running north from Route 132, across from Nightingale Lane, and connecting with the Airport Terminal Road. At the intersection of Nightingale Lane, Route 132, and the New Access Road, there is a symbol identifying a proposed traffic signal. At trial, the area in the vicinity of the New Access Road was referred to as the Sullivan Lot, and that proposed signal was referred to as the Sullivan Lot Light.

The interpretation of an unambiguous agreement is a matter of law for the court to decide. See American Venture 594 Corp. v. A. Russo & Sons, Inc., 79 Mass. App. Ct. 770 , 774 (2011). “In interpreting a contract, the court must ‘give effect to the parties’ intentions and construe the language to give it reasonable meaning wherever possible.’” Brillante v. R.W. Granger & Sons, Inc., 55 Mass. App. Ct. 542 , 548 (2002) (quoting Baybank Middlesex v. 1200 Beacon Properties, Inc., 760 F. Supp. 957, 963 (D. Mass. 1991)). Notwithstanding that all parties agree the M.O.U. is unambiguous, there is substantial dispute as to the scope of the obligations created by the M.O.U. [Note 3]

The dispute goes to whether or not the M.O.U. in fact contains an agreement to install the Sullivan Lot Light, and to construct the New Access Road. The language of the agreement constitutes, at least, an undertaking to keep two-way traffic on the No Name Road, and allow two-way traffic on the Airport Terminal Road between its intersection with the No Name Road, to where the Airport Terminal Road meets the Attucks Lane extension (a/k/a the “western access”). The Airport and the Commission agree the M.O.U. was an undertaking by the Airport to maintain two-way traffic in these areas, and that reading is patently obvious from the language of the agreement.

The plaintiff Botsini argues that the M.O.U. must be read as creating the additional obligation on the part of the Airport to implement Conditions T1-T7 of the 2007 DRI, which includes the construction of the New Access Way and the installation of a traffic signal where the New Access Way meets Route 132. Botsini offers no decisional law or interpretive theory to support their position, which I conclude is not supported by the text of the agreement.

There is nothing in the language of the M.O.U. that leads me to conclude that it obligated the Commission or the Airport to proceed with installation of the Sullivan Lot Light. On the contrary, I conclude that the agreement reflected in the M.O.U. was limited to ensuring traffic on the No Name Road and portions of the Airport Terminal Road were to remain two-way. The 2007 DRI specifically proposed to eliminate two-way travel on No Name Road, converting No Name Road into a one-way exit onto Route 132. It is easy to understand the potential impact of this change on the Wendy’s: it would have eliminated completely the main access to the restaurant. Combined with the closing of Barnstable Road at the Rotary, all access to the Wendy’s would need to traverse Barnstable Road, by traveling north up either Hinckley Road or the New Access Road, then turning right onto Barnstable Road. If Barnstable Road itself were to be changed to one-way only, access or egress to or from the Wendy’s would have been rendered nearly impossible. The only conclusion to draw is that the text of the M.O.U. concerned primarily the issue of two-way traffic. Two-way traffic was the parties’ primary concern.

Certainly, the M.O.U. contains a reference to Conditions T1-T7 of the 2007 DRI. The language is “The Parties agree that upon construction of the roadway improvements required under Conditions T1-T7 of the Commission’s decision..., the circulation and use of “Roadway A”... will allow two-way ingress and egress to and from the Airport Terminal Road and Route 132,” (emphasis supplied). For Botsini’s interpretation of the M.O.U. to prevail, I must conclude that the language beginning with the key word “upon” creates a promise by the Airport to construct the roadway improvements under Conditions T1-T7. It does not. The meaning of this language can only be that the Airport’s obligation to allow two-way traffic does not become enforceable until the roadway improvements are built. This is not to say that the Airport is relieved of its duties under the M.O.U. because the stated Conditions T1-T7 will not be built; the Airport’s duty to maintain two-way traffic is absolute (made in consideration of Botsini’s dismissal of its lawsuit), but only the time for discharging this duty was linked to the completion of the roadway.

The fact that the two sketch plans appended to the M.O.U. depict the New Access Road and the Sullivan Lot Light does not convince me there was a promise by the Airport that their construction would adhere to those plans in every aspect. It is not surprising that the plans showed the New Access Road and the Sullivan Lot Light because at that time, it was that road arrangement for which the Airport Expansion Project called. The clear function of the attached plans is to identify the so-called “Roadway A” that was the subject of the entire dispute. The only reference to the two plans in the M.O.U. is in the second paragraph: “the circulation and use of ‘Roadway A’ as shown on the plans attached hereto as Exhibit 1 and Exhibit 2, will allow two-way ingress and egress to and from the Airport Terminal Road and Route 132[.]” There is no language in the M.O.U. that states the Airport promises to build roadways or signalization according to the attached plans, or that incorporates the two exhibits into part of the obligations of the Airport, language which is conspicuous by its absence from the signed document.

The language in the first paragraph of the M.O.U. is consistent with my conclusions: “Pursuant to this action, Botsini-Prime, LLC, sought to resolve certain ambiguity and lack of clarity as to impacts on traffic and circulation resulting from a conflict in plans of record filed with the Cape Cod Commission” (emphasis supplied). Indeed, paragraph 16 of the complaint [Note 4] filed with the Land Court case terminated by the M.O.U. confirms my conclusion that the language regarding Conditions T1-T7 was language of condition and not promise. The complaint states, “the Applicant proposed to change [the No Name Road] from a two-way to a one-way traffic pattern as a condition of the FRI [sic], resulting in termination of access to locus from Route 132.”

The Memorandum of Understanding on which Botsini bases its claims is a much less ample and definitive agreement than that given enforcement by the Appeals Court in American Venture, supra. There, there was a “detailed agreement [entered into] in order to ‘resolve each and every difference, claim and dispute existing between...’” the private parties to that document. 79 Mass. App. Ct. at 772. That agreement had “a wealth of recitals and pointed provisions bearing the character of a closely negotiated instrument between sophisticated parties.” Id. The M.O.U. in the case before me is only a short few paragraphs, and has its focus on the change in the traffic pattern up and down Roadway A. It does not expressly, or even by obvious implication, lock the parties into, for all time, the entirety of the road network system approved in the original DRI.

Of course, the M.O.U, like all agreements, was negotiated and signed in a certain context. It was executed at a time when the plans for the Airport project contemplated the creation of the Sullivan Lot Light and the New Access Road. These features were shown on the plan segments attached to the M.O.U. So it is fair to consider whether the M.O.U., despite any such express commitment made by the parties to it, embodies an undertaking by the Airport that it never would seek to modify the Airport Expansion Project in any manner which would eliminate the Sullivan Lot and the New Access Road. I am unable to reach such a conclusion.

Even were I to conclude that the M.O.U. silently incorporated such an undertaking (something I do not conclude) I am persuaded that such a promise would have been outside the realm of what the Airport would and could have agreed to in settling the earlier litigation. Unlike the private parties involved in American Venture, the Airport Commission is vested with public status. The Airport’s obligations to serve the overall public interest within its authority reasonably carries with it the opportunity, for valid and consequential reasons, to seek a change in the project, including one which might alter or eliminate the Sullivan Lot Light and the New Access Road. The public responsibilities of the Airport strongly suggest that in entering into the M.O.U., the Airport would not (and likely could not) have made such a sweeping and permanent commitment that the project never might be altered. When, as I conclude happened here, genuine material financial constraints threatened the viability of the original iteration of the Airport Expansion Project, and forced a significant redesign, including a large reduction in the size of the improvements to the terminal, the M.O.U. was not an obstacle to the Airport changing the project, including the road system designed for the earlier, larger version. Certainly, the changes to the Airport Expansion Project could not be implemented without significant scrutiny from the Commission, something which, to the extent relevant in these appeals, I address at length below. But the notion that the Airport, based only on the M.O.U. and the settlement of the prior lawsuit, would have been constrained in perpetuity from altering anything about the road system serving the Airport in general (and about the Sullivan Lot Light and the New Access Road in particular) is untrue. If such a commitment had been demanded at the time the M.O.U. was signed up, it is difficult to conceive how the Airport could have agreed to it. The omission of such an express undertaking from the M.O.U. is significant, and supports the conclusion that no such commitment exists. [Note 5], [Note 6]

Having decided that the Memorandum of Understanding does not dispose of all issues in this case, I now must decide whether the Commission abused its discretion in approving the Major Modification and the Minor Modification. Section 17 of the Act requires me to “determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of said commission or make such other decree as justice and equity may require.” The remaining questions in this case are whether the Commission abused its discretion in determining that the Airport Expansion Project, as modified, (a) does not degrade safety; (b) offsets twenty-five percent or more of the additional traffic that it create; (c) maintains or improves the level of service by mitigating the traffic congestion it creates; and (d) that its benefits outweigh its detriments. I rely on the findings of fact I already have made, as well as those I make below, to allow me to answer these questions.

IV. FINDINGS OF FACT - TRAFFIC IMPACTS

A. Trip Generation

38. I find that the Airport Expansion Project, as modified, will generate 151 additional morning peak hour trips and 162 additional afternoon peak hour trips. These are the numbers advanced by the Commission’s traffic engineer, Glenn Cannon, and I credit his evidence on this score, and accept his figures without adjustment. Mr. Cannon arrived at these numbers based on the materials submitted by the Airport in its DRI application. The Airport did not arrive at its trip generation numbers by using the familiar Institute of Traffic Engineers Trip Generation Manual (“ITE”) because it determined (and Mr. Cannon agreed) that the Barnstable Municipal Airport did not fit comfortably into any of the airport categories in the ITE.

39. I find as a fact that it was reasonable to conclude that an alternative method of estimating trip generation (alternative to using ITE numbers) was warranted by the relative uniqueness of the Barnstable Airport; I credit that testimony of Mr. Cannon, and I draw the inference that even airports like Nantucket Memorial Airport and Martha’s Vineyard Airport were deemed not sufficiently analogous to Barnstable to warrant comparison.

40. To determine trip generation numbers, the Airport multiplied the peak hour vehicle trips per passenger emplanement by the number of increased number of emplanements that would be generated by the Airport Expansion Projects. I credit the testimony of Mr. Husseini and Mr. Cannon that this method produced accurate results.

41. Under the RPP and the Cape Cod Commission Guidelines for Transportation Impact Assessment Technical Bulletin 96-003 (“Technical Bulletin”), trip-generation data from the ITE is the preferred source for review and analysis of a development of regional impact. However, the Technical Bulletin plainly allows alternative trip generation methods where applicable, with Commission approval. Here, I find that the Airport’s alternative method of estimating trip generation complied with the Technical Bulletin and the ITE guidelines, was specifically allowed by the Commission, and was a generally reasonable and reliable method of accomplishing the task.

42. To comply with the traffic offset goal of the RPP, the Airport Expansion Project had to offset twenty-five percent of the new traffic it created. According to the Airport, and according to the Commission’s engineer, Mr. Cannon, the Airport Expansion Project offsets 100 percent of the traffic it will create.

43. The Commission used ITE Land Use Code 814, for “Specialty Retail Center” to estimate the trips generated by the two businesses at 191 Airport Road that were eliminated, trips then credited to the project. Based on this land use code, Mr. Cannon determined that the two businesses at 191 Airport Road generated a total of 123 morning peak hour trips and 90 afternoon peak hour trips. Botsini argues the testimony of its traffic engineer, Randall Hart, shows that the number of eliminated trips claimed by the Airport is inflated. I am not persuaded by Mr. Hart’s testimony on this point. For one, Botsini has provided no alternative set of trip numbers that it argues is more realistic, nor has it offered a more appropriate ITE land use code that should have been used. The unabridged ITE itself is not in evidence, and even if it were, my role as finder of fact would not require me to scour the manual looking for a land use category that might be a better fit. I visited the site of these businesses in the presence of counsel during the view on May 20, 2011. At that time, the businesses had been closed for a while, and the buildings showed signs of nonuse. Nothing I saw during the view causes me to alter my conclusions about the appropriateness of using Land Use Code 814, which on all the evidence, I find was an appropriate classification for the pet grooming center and the cabinet shop.

44. The Commission credited the Airport with a reduction of 32 morning peak hour trips and 118 afternoon peak hour trips based on the removal of the TD Bank branch from its location proximate to the Rotary. These numbers are based on ITE Land Use Code 912 “Drive-In Bank.” Mr. Hart argues that the bank was not eliminated, but was relocated 2,500 feet down Route 132, and that therefore the trips related to the bank have not been eliminated. I find as a fact that the trip reduction credits based on the relocation of the TD Bank are proper. The location where the TD Bank formerly stood is now part of the airport, and in its new locationthe bank displaced a liquor store. Mr. Cannon testified that the trip generation of the bank in its new location and the liquor store it displaced was a wash, and I credit this testimony.

45. I can discern nothing inconsistent with using ITE numbers to estimate trip generation for the eliminated businesses, but a location-specific, alternative method to estimate trip generation for the Airport. In the professional opinions of both Mr. Husseini and Mr. Cannon, the Barnstable Municipal Airport did not fit into any airport categories in the ITE manual, and I credit their professional judgment.

46. I find that the Airport Expansion Project will eliminate 155 morning peak hour trips and 208 afternoon peak hour trips.

B. Traffic Congestion

47. The Commission determined that the traffic congestion mitigation goals of the RPP did not apply to the Airport Expansion Project because the Airport has offset all of its new vehicle trips.

48. The trip distribution diagram (exhibit 18) shows that 40.5 percent of traffic moving towards the Airport approaches from the west on Route 132; twenty-three percent approaches from the west on Route 28 (Falmouth Road); twenty-five percent approaches from the east on Route 132; and six percent approaches from Barnstable Road (south and east of the Rotary). The diagram was prepared in 2006 and I credit and adopt factually the data that appear on the diagram.

49. Hinckley Road, at the intersection of Route 132, is level-of-service F at weekday midday, weekday evening, and Saturday midday, for every turning movement (right-turn, left- turn, and through movements), northbound and southbound. The installation of the Median Extension is projected to improve levels of service on Hinckley Road to level-ofservice C, decreasing an 850 second delay for northbound traffic to a 15.9 second delay, and a 148 second delay for southbound traffic to an 18.8 second delay.

50. The existing level of service for the No Name Road southbound is an F, for both left-turn and right-turn movement at weekday midday, weekday evening, and Saturday midday. The installation of the median extension is projected to improve level of service for this intersection to a C for weekday evening (from a 196 second delay to 19 second), and a D for weekday midday (268 seconds to 27 second), and Saturday midday (51.4 seconds to 27.2 seconds).

51. The existing level of service for the No Name Road at its intersection with Barnstable Road, for left-turn and right-turn movements, is A. With the median extension, that level of service is projected to fall to a B (a 10-second delay compared to a 9.8-second delay) during weekday peak hours, but will remain level-of-service A on Saturdays. I find the 0.2 added delay for weekday peak periods negligible.

52. The existing level of service for the Rotary is an F. Mr. Hart suggested that the level of service for the Rotary could be improved by a plan consisting of additional signage, two- lane access, and pavement marking. The Airport project does not include any of these changes.

53. Traffic approaching the airport from the west on Route 132 will be directed by signage as depicted on exhibit E to the Major Modification (“Signing Plan” or “Signage Plan”) to use alternate access (“western access plan”) by turning onto Independence Drive approximately three-quarters of a mile to the west of the Rotary. The suggested route runs north on Independence Drive to Attucks Lane, then to Airport Road, then over a proposed access road extension to Barnstable Road, then on to the airport.

54. The western access plan will direct traffic approaching the airport from the west on Route 28 (Falmouth Road) to turn left at Bearses Way and then to following a path over Enterprise Road, Independence Drive, Attucks Lane, Airport Road (and the extension), and Barnstable Road to reach the airport. This alternate route is 2.4 miles long, which is 1.2 miles longer than the route available if these same travelers proceed directly to the Rotary and use No Name Road to access the Airport. The western access plan from Route 28 travels through five traffic signals.

55. The western access plan is designed to prevent traffic from the west from reaching the Rotary. Traffic approaching the airport from the east on Route 28 will be able to use the new right-turn-only access road off Route 28; these vehicles will not reach the Rotary. Northbound traffic approaching the Airport from Barnstable Road in the south will still be directed through the rotary.

56. While I am mindful that these signage and traffic redirection plans are hardly foolproof, and will undoubtedly fail to achieve full driver compliance with the indicated routes, I find as a fact that the airport access from Route 28, and the western access plan supported by the Signing Plan, will result in a significant reduction in the number of vehicles that reach the Rotary.

57. I am mindful that the Airport did not introduce at trial any information on the size or visibility of the proposed signage directing travelers to the Airport along the alternate routes, however, the depictions in the Signing Plan are adequate to convince me of its likely overall effectiveness. The Signing Plan shows the familiar white airplane on a blue field that designates an airport, accompanied by directional arrows.

58. Some number of vehicles will likely ignore the directional signs and attempt to access the Airport from the west by either continuing on Route 132 into the Rotary, or by coming up Route 28 into the Rotary. These vehicles will need to traverse the Rotary, and exit traveling westbound on Route 132. From there, the first access to the Airport would be a right turn onto No Name Road or Hinckley Road. There is no direct evidence on how many vehicles are likely to attempt to access the Airport in this manner, but I draw the inference that the number is likely to be small. This is because existing conditions at the Rotary are already congested, and so worthy of avoidance; despite the added miles required to use the western access plan, the evidence persuades me that it will be preferred by the majority of travelers.

59. No Name Road is the first available access to the Airport that travelers heading westbound out of the Rotary will come to when trying to reach the Airport. The new terminal is visible from the Rotary and from the intersection of the No Name Road with Route 132. Nonetheless, I am not convinced that the No Name Road will become anything like a “de facto entrance” to the Airport. Vehicles approaching the Airport from the east on Route 28 will access the Airport through the new Airport entranceway where the TD Bank once stood. This saves the traveler from having to navigate the Rotary at all. I do not find it plausible that a traveler coming from the direction of Yarmouth on Route 28 would ever reach the Rotary, let alone make a turn onto the No Name Road.

60. I find that the only travelers who might take advantage of the fact that the Airport is accessible by No Name Road would be those traveling north on Barnstable Road and through the Rotary. These travelers make up six percent of trips to the Airport. For these travelers, the only access to the Airport (the western access) requires them to pass by the No Name Road.

C. Safety

61. Within the scope of the Commission’s review of whether the Airport Expansion Project “degrades safety” are five key intersections: (i) the western access road onto Airport Road; (ii) the right-turn-only access from Route 28, east of the Airport Rotary; (iii) the exit-only access into the Airport Rotary (Barnstable Road), and (iv) the access onto Route 132 from Hinckley Road and the No Name Road.

62. There is no evidence to suggest that the western access from Route 132 is a hazardous intersection. The western access already benefits from signalized intersections and there is no testimony to suggest that the increased number of vehicles traveling these roads as a result of the western access plan will result in new congestion, or increased vehicle crashes.

63. I credit the testimony of Mr. Cannon that restricting the Route 28 access to right-turn movements – eliminating left turns into the Airport and eliminating all exiting traffic – would improve the safety of that intersection because so-called “right-turn-only in- access” raises the least amount of safety concerns. I specifically find that the elimination of the left-turn-in movement from the eastbound lane on Route 28 reduces the potential for vehicle conflicts.

64. A crash diagram for Route 132, prepared using data from January 2007 to October 2009 shows eight crashes at the Route 132/Hinckley Road intersection from left turns onto Route 132, and one crash for a left turn from Route 132 onto Hinckley Road. The diagram shows one crash from a left turn onto Route 132 from the No Name Road, and what appears to be one crash from a left turn onto the No Name Road from Route 132. [Note 7]

65. There were fifteen total crashes for all movements at the Route 132/Hinckley Road intersection, and nine for all movements at the Route 132/No Name Road intersection.

66. The Median Extension on Route 132 would eliminate all left-turn movements from Route 132 onto Hinckley Road and No Name Road. The Median Extension also would eliminate all left-turn movements from Hinckley Road or No Name Road onto Route 132. I find that the elimination of these left-turn movements will result in a meaningful reduction in vehicle collisions.

67. The Median Extension will divert some additional traffic into the Rotary. There was no direct evidence presented at trial on the actual volume of traffic that would be diverted to the Rotary as a result of the Median Extension. However, there is evidence as to the amount of Wendy’s traffic that would be so diverted. The following numbers fairly project the vehicles which will access Wendy’s via the Rotary because they will be unable to make a left-hand turn off of Route 132 into either Hinckley or No Name Roads: forty vehicles during weekday midday peak hour, twenty-two vehicles during the weekday evening peak hour, and thirty-four vehicles during the Saturday midday peak hour. The Median Extension also will divert between ten and sixteen peak-hour vehicles (depending on time of day) into the Rotary that would have made a left-turn exit onto Route 132. Finally, between six and ten vehicles per hour (peak) will be diverted to the Rotary as a result of no longer being able to access the Wendy’s via Barnstable Road.

68. According to 2004 data (the most recent in evidence), approximately 7,386 vehicles pass through the Rotary during one of its peak hours.

69. The only crash diagram in evidence for the Rotary was prepared in connection with a different, unrelated project and contains data for the period from January 2003 to November 2006. The diagram indicates sixty-eight collisions during the study period.

70. The Airport Expansion Project does not encompass any improvement to the Rotary itself beyond the elimination of the exit onto Barnstable Road.

D. Plaintiff’s Aggrievement.

71. The Wendy’s restaurant is a convenience-based, high-volume, fast-food restaurant with a drive-through window. Wendy’s relies on pass-by and diverted link traffic, or impulse trips, for its business. Convenience and access are critical features for the Botsini property, on which the Wendy’s is located.

72. Diverted-link traffic is traffic generated to the site from travelers within sight (or with knowledge) of the property, who divert their trip to stop and then continue on to their destination. In a given month, as many as sixty-six percent of customers visiting the Wendy’s on the Botsini property use the drive-through.

73. The Median Extension will restrict access to the Wendy’s by eliminating the left-turn movement from Route 132 eastbound. Closing the Barnstable Road exit on the Rotary also will restrict access to the Wendy’s. The only access to the Wendy’s under the Major Modification Decision would be a right-turn from Route 132 westbound onto Hinckley or No Name Road, or a left-turn from Barnstable Road eastbound (beyond the Rotary) onto Hinckley or No Name Road.

74. The Median Extension will require approximately twenty-two percent of Wendy’s traffic to drive past the Wendy’s (on Route 132 eastbound), around the Rotary, and back onto Route 132 westbound. As stated above, this represents forty vehicles during weekday midday peak hour.

75. The Median Extension will also eliminate one egress from the Botsini’s property by eliminating the left-turn movement out of the No Name Road onto Route 132 eastbound.

76. It is plausible that the business activity of the Wendy’s restaurant, the tenant of Botsini’s at the site, might decrease because of an actual or even a perceived lack of convenient ingress and egress by Wendy’s customers, and that Botsini might suffer a resultant decrease in the economic value of the Botsini property.

V. ANALYSIS OF DECISIONS OF CAPE COD COMMISSION

A Standing as Party Aggrieved

“Any party aggrieved by a commission decision on a development of regional impact may appeal the commission’s decision to . . . the land court.” St. 1989, c. 716, § 17(b). I interpret the term “party aggrieved’ as it appears in section 17 (b) of the Act to have substantially the same meaning as the term “person aggrieved” in section 17 of the Zoning Act, chapter 40A. Under the well-developed (but not always consistent) case law concerning aggrievement, it is clear to me that Botsini has standing.

Under the zoning act, if a plaintiff’s legal or property rights will (or likely will) be infringed by a board’s action, then he or she qualifies as a “person aggrieved.” Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); Circle Lounge & Grill, Inc. v. Bd. of Appeal of Boston, 324 Mass. 427 , 430 (1949). While the term “person aggrieved” is not to be narrowly construed, the plaintiff’s injury must be more than speculative, and must be particularized, distinct from general community interests. Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551 , 554 (1999) (stating that the violation must be “special and different from the concerns of the rest of the community”); Marashlian, 421 Mass. at 721; Nickerson v. Zoning Bd. of Appeals of Raynham, 53 Mass. App. Ct. 680 , 682 (2003); Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 492-493 (1989) (requiring that plaintiff show “a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest”). “Aggrievement requires a showing of more than minimal or slightly appreciable harm.” Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 121 (2011). In addition, the injury claimed by the plaintiff also must be to a “specific interest that the applicable zoning statute, ordinance, or by-law at issues is intended to protect.” Standerwick, 447 Mass. at 30.

Here, Botsini has demonstrated that the Median Extension is likely to cause inconvenience for a more than minor percentage of Wendy’s customers, which may affect the profitability of the Wendy’s restaurant, and thus the economic value of the Botsini Property. The evidence shows that about twenty-two percent of Wendy’s customers normally would make a left turn into the No Name Road from Route 132, and that the Median Extension will force those customers to find an alternate access. I find it is plausible that some number of those customers might forgo a trip to Wendy’s as a result of this. I do not think the number is likely to be high, and I do not think the loss of business will be severe, but I conclude it is likely to be “more than minimal or slightly appreciable harm.” Kenner, 459 Mass. at 121.

B. Standard of Review of Commission Decisions

I review decisions of the Cape Cod Commission under the standard set forth in section 17 of its enabling act, St. 1989, c. 716. [Note 8] Section 17 (d) states that “The court shall, on appeal, hear all evidence pertinent to the authority of the commission and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of said commission or make such other decree as justice and equity may require. The foregoing remedy shall be exclusive.” This is a standard familiar to courts because it is an echo of the standard governing appeals of decisions of local zoning boards under G.L. c. 40A, § 17. See Tisbury Fuel Srvc., Inc. v. Martha’s Vineyard Comm’n, 68 Mass. App. Ct. 773 , 774-75 (2007) (comparing standard of review of decisions of local zoning boards, Cape Cod Commission, Martha’s Vineyard Commission). Judicial review of decisions of the Cape Cod Commission is substantially similar to review of decisions on the issuance (or not) of special permits by local permit granting authorities because the language of G.L. c. 40A, § 17, and section 17 (d) of the Act is nearly identical. See Tisbury Fuel Srvc., Inc. v. Martha’s Vineyard Comm’n, 68 Mass. App. Ct. 773 , 774-75 (2007) (affirming application by trial court of “arbitrary and capricious” standard to review of decision of Martha’s Vineyard Commission). Indeed, the Tisbury Fuel Services case looks to the cases decided under G.L. c. 40A, such as Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003), MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970), and Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 557-58 (1954), to provide guidance on the nearly identical language of section 17 (d). 68 Mass. App. Ct. at 776.

Accordingly, my review of the Major and Minor Modifications by the Commission involves the “‘peculiar’ combination of de novo and deferential analyses.” Wendy’s Old Fashioned Hamburgers v. Board of Appeal of Billerica, 454 Mass. 374 , 381 (2009) (citing Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 558 (1954)). I must review the evidence and make findings of fact without deference to the Commission’s findings. Bicknell Realty Co. v. Board of Appeal of Boston, 330 Mass. 676 , 679 (1953); Willard v. Board of Appeals of Orleans, 25 Mass. App. Ct. 15 , 24 (1987). In this review, I am not limited to the evidence that was before the Commission. Bicknell Realty Co., 330 Mass. at 679; Marr v. Back Bay Architectural Comm’n, 32 Mass. App. Ct. 962 , 963 (1992); Crittenton Hastings House of the Florence Crittenton League v. Board of Appeal of Boston, 25 Mass. App. Ct. 704 , 713-24 (1988).

This review is, however, circumscribed by the requirement to defer to the judgment of the local authority. Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 557-58 (1954); Geryk v. Zoning Appeals Bd. of Easthampton, 8 Mass. App. Ct. 683 , 684 (1979); S. Volpe & Co., Inc. v. Board of Appeals of Wareham, 4 Mass. App. Ct. 357 , 360 (1976). The court is solely concerned with “the validity but not the wisdom of the board’s action.” Wolfman v. Board of Appeals of Brookline, 15 Mass. App. Ct. 112 , 119 (1983). A court hearing an appeal under section 17 of the Act is not authorized to make administrative decisions. See Pendergast, 331 Mass. at 557-58; Geryk, 8 Mass. App. Ct. at 684. If reasonable minds may differ on the conclusion to be drawn from the evidence, the board’s judgment is controlling. ACW Realty Mgmt., Inc. v. Planning Bd. of Westfield, 40 Mass. App. Ct. 242 , 246 (1996); Dowd v. Board of Appeals of Dover, 5 Mass. App. Ct. 148 , 154-55 (1977); Copley v. Board of Appeals of Canton, 1 Mass. App. Ct. 821 (1973).

It follows, therefore, that the court may overturn a decision of a local board (and of the Commission) only if the decision is “based on a legally untenable ground or is unreasonable, whimsical, capricious or arbitrary.” Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003); accord MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970); ACW Realty Mgmt., Inc., 40 Mass. App. Ct. at 246. Moreover, where the court’s findings of fact support any rational basis for the municipal board’s (or the Commission’s) decision, that decision must stand. MacGibbon, 356 Mass. at 639; Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 356 (2001); ACW Realty Mgmt., Inc., 40 Mass. App. Ct. at 246.

The burden of going forward with evidence (the burden of production) is on the party seeking to establish the validity of a special permit or similar approval. See Dion v. Board of Appeals of Waltham, 344 Mass. 547 , 555-556 (1962). Despite often being postured as a defendant, the burden rests with the party defending the special permit to show entitlement to it. See Knott v. Zoning Bd. of Appeals of Natick, 12 Mass. App. Ct. 1002 , 1004 (1981) (“ultimate burden of persuasion rested upon the owner of the locus”).

C. The Major Modification

Modifications to DRI decisions are governed by Section 13 of the Regulations. Section 13(c) sets forth four different categories of modification. These are Minor Modification #1, Minor Modification #2, Major Modification, and New Project. For a Major Modification, the Regulations provide that the “Regulatory Committee shall specify the scope of the DRI review in its decision” to designate an application as a Major Modification, and that applications “shall be reviewed by the Commission or its designee” and “proceed through the DRI review or DRI Exemption review process consistent with” the Act and Regulations. Section 7 (c) (viii) of the Regulations requires that “[t]he Commission shall review proposed DRIs for their consistency with the Act, the RPP, Districts of Critical Planning Concern (DCPC), municipal develop bylaws and Local Comprehensive Plans[,]” and that the “Commission shall approve, or approve with conditions,” a DRI if the Commission finds that “the probable benefit from the proposed development is greater than the probable detriment” and “the proposed development is consistent with the RPP and the Local Comprehensive Plans of the Municipality(ies) in which the proposed development is located.” Section 13 (c) (iii) of the Regulations states that “Major Modifications to approved DRIs shall be reviewed... for consistency with Section 13 (d) of the Act including consistency with the RPP[.]” Section 7 (c) (viii) of the Regulations adopts the criteria set forth in Section 13 (d) of the Act, which is set forth in the margin. [Note 9] This is to say, the standard governing approvals of DRIs is essentially the same as that governing approvals of major modifications to approved DRIs. In fact, a major modification is reviewed for compliance with the RPP in force at the time of the opening of the first public hearing on the modification request; major modifications are not “grandfathered” into the RPP in effect at the time of the original DRI approval. See Regulations § 13 (c) (iii).

The scope of my review is twofold: I must determine (1) whether the Commission was reasonable in concluding the probable benefit of the Airport Expansion Project outweighs its probable detriment, and (2) whether the Commission was reasonable in concluding the Airport Expansion Project is consistent with the applicable standards in the Regulations. [Note 10]

When reviewing a request for a major modification of a previously-approved DRI, the Commission does not compare the project as modified to the approved project and approve the modification only upon a finding of a net benefit. The proper review is to evaluate the modification request on its own merits. Thus, the Commission reviews a request for a major modification for consistency with the Act, the Regulations, the RPP, DCPCs, municipal development bylaws, and Local Comprehensive Plans, as set forth Section 13 (c) (iii) of the Regulations.

Botsini argues, at some length, that the 2007 version of the Airport Expansion Project (prior to the Major Modification) did a better job of mitigating traffic impacts than the Project as modified. This, however, is not the proper inquiry. Accordingly, I cannot take into account evidence of the relative “benefits” of the Sullivan Lot Light (such as the testimony of Mr. Husseini that the light would create “gaps” in the traffic that might reduce vehicle conflicts) compared to the Median Extension, or the New Access Road compared to the Western Access. This evidence is not relevant to the task I face. The inquiry in this case is whether the Airport Expansion Project, as modified by the 2010 Major Modification Decision, meets the applicable standards. The inquiry ends there; I do not evaluate whether the Project compares favorably to the 2007 DRI, which contained the Sullivan Lot Light.

The dispute in this case centers around whether the Airport Expansion Project meets the three main transportation goals of the RPP, set forth above. They require that a DRI (1) not degrade safety, (2) reduce or offset twenty-five percent of the traffic it creates, and (3) maintain or improve levels of service by mitigating traffic congestion it creates.

1. Trip Generation

To meet the trip generation goal of the RPP, the Airport Expansion Project must reduce or offset the additional vehicle trips it creates by twenty-five percent. The expanded Airport is expected to generate 151 additional morning peak hour trips and 162 additional afternoon peak hour trips. I find that, as a result of the elimination in the businesses discussed supra, the Airport Expansion Project will eliminate 155 morning peak hour trips and 208 afternoon peak hour trips. Based on these numbers, the Commission acted within its discretion in determining that the trip generation goal of the RPP was satisfied. I considered the evidence, and I ultimately have concluded that the trip reductions claimed by the Airport were proved to me by a preponderance of the evidence, despite the very serious questions raised by Botsini’s able counsel and expert witnesses. It is worth noting, however, that the Commission’s guidelines allow for approval of a project that offsets new vehicle trips by only twenty-five percent. The factual question of whether 100 percent of new trips were offset may have been a close factual question. The legal question of whether the facts support the Board’s determination that at least twenty-five percent of vehicle trips will be offset is not a close question.

2. Traffic Congestion

To meet the traffic congestion goals of the RPP, the Airport Expansion Project must maintain or improve the “level of service” on surrounding roadways and intersections by mitigating the traffic congestion it creates. The Commission did not engage in a lengthy analysis of levels of service because it determined the Airport met the RPP’s requirements simply by not creating any new traffic. This is supported by the text of the RPP, which states, “DRIs shall provide for full mitigation of adverse impacts... where the DRI is expected to increase peak-hour traffic[.]” RPP at 143. Thus, the Airport was not required to mitigate traffic congestion because, as I have concluded, the Project is not expected to increase peak-hour traffic.

The analysis could end there. The Airport, apparently relying on its trip offsets, did not engage in a full-blown level-of-service study. My ruling is that the Airport was not required to address traffic congestion because it is not “expected to increase peak-hour traffic.” Nonetheless, it is conceivable that a project which entails a net reduction in vehicle trips could still result in additional vehicle congestion. [Note 11] Based on the level-of-service studies that are in evidence, and the other evidence related to traffic congestion, I would probably conclude (if it were material to the outcome of this case, which it is not) that there is no significant decrease in level-of-service, and that the Project is likely to decrease traffic congestion at the Rotary.

The analysis by Vanasse & Associates in its January 15, 2011 report (in evidence as Exhibit 34) shows that the level of service for the intersection of Hinckley Road and Route 132 will improve for all turning movements. The level of service for the intersection of the No Name Road with Route 132 will improve for all turning movements. The only movement that might suffer a degradation in level of service is the northbound movement from No Name Road onto Barnstable Road (involving either a left or a right-hand turn). At this intersection, the level of service might be downgraded from an A to a B for weekday peak hours (but not Saturday). And even then, the downgrade only represents an increase in delay from 9.8 seconds, to 10 seconds. A change in the letter-classification of a level of service is not necessarily significant. Here, the projected increase of 0.2 seconds, quite literally a small fraction of a second, causes a change in letter-classification (A to B), but the actual delay is so small that the traffic engineers are the only ones who will notice.

The facts as I have found them demonstrate to me that Airport Expansion Project is likely to reduce congestion in the Rotary by reducing the number of vehicles that use the Rotary. As a result of the new access created from the westbound lane of Route 28, and the Western Access Plan, fewer vehicles traveling to the Airport will need to negotiate the Rotary to reach the Airport. The parties certainly disagree about the percentage of vehicles coming from West Barnstable, or Falmouth or Mashpee, that will observe and follow the signs directing them to the Western Access route, but the evidence I credit supports the finding that at least some significant amount of vehicles will follow the plan. My view of the evidence is that a substantial number of vehicles will follow the signs and avoid the most congested areas nearer the Rotary. By directing traffic into the airport in a way that eliminates the need to traverse the Rotary, the Airport Expansion Project complies with the RPP’s goal of mitigating traffic congestion, even if it did not offset 100 percent of its new vehicle trips.

I am not persuaded that the Median Extension will cause an increase in congestion at the Rotary by diverting traffic that otherwise would have turned onto Hinckley Road or No Name Road. The facts proven at trial were that forty vehicles during weekday midday peak hour, twenty-two vehicles during the weekday evening peak hour, and thirty-four vehicles during the Saturday midday peak hour will access Wendy’s via the Rotary because they will be unable to make a left-hand turn off of Route 132 into either Hinckley or No Name Road. The Median Extension will also divert between ten and sixteen peak-hour vehicles (depending on time of day) into the Rotary that would have made a left-turn exit onto Route 132. Finally, between six and ten vehicles per hour (peak) will be diverted to the Rotary as a result of no longer being able to access the Wendy’s via Barnstable Road. In light of the fact that approximately 7,386 vehicles pass through the Rotary during one of its peak hours, I conclude that these are not significant enough numbers to degrade further traffic using the Rotary. Finally, and perhaps more significantly, the elimination of the left-turn movements from the eastbound land of Route 132 into Hinckley or No Name Road will itself improve traffic flow in the Rotary because vehicles exiting the Rotary on Route 132 westbound will not have to slow or stop for vehicles crossing the flow of traffic in close proximity to the Rotary.

The Airport Expansion Project complies with the RPP’s traffic congestion goal because it will not increase the number of peak-hour vehicle trips. Based on these conclusions, I find and rule that the Commission acted reasonably, and in accordance with applicable laws and regulations in concluding that the Project met the congestion goals of the R.P.P. Even if the Project were required to mitigate all the congestion it creates, I conclude it would achieve this goal by diverting traffic away from the Rotary, and by installing the Median Extension. It was not the task of the Airport to solve the traffic problems of the whole region. However, in light of the number of vehicles that will be directed away from the Rotary, I find it likely that the Project will be a net benefit to traffic congestion in the area.

3. Safety

In contrast to the congestion management goals of the RPP that do not require mitigation absent an increase in vehicle trips, the safety provisions of the RPP provide: “Regardless of traffic generation, DRIs shall not degrade safety for pedestrians, bicyclists, or motor vehicle operators or passengers.” There are five key intersections implicated in the Airport Expansion Project: (i) the western access road onto Airport Road; (ii) the right-turn-only access from Route 28, east of the Airport Rotary; (iii) the exit-only access into the Airport Rotary (Barnstable Road), and (iv) the access onto Route 132 from Hinckley Road and the No Name Road. I conclude that there will be no degradation of safety.

There is no suggestion that the intersection of Route 132/Independence Drive/Enterprise Road will suffer from degraded safety. This intersection already benefits from a traffic signal and there is no testimony to suggest that the increased number of vehicles traveling these roads as a result of the Western Access Plan will result in either new congestion, or increased vehicle crashes. Likewise, there is no suggestion that the Barnstable Road/Hinckley Road and Barnstable Road/No Name Road intersections will experience degraded safety.

As a result of the installation of the Median Extension, Route 132 will enjoy a substantial reduction in vehicle crashes. The evidence at trial convinced me that left-turn movements onto Route 132 from Hinckley Road and the No Name Road, and left-turn movements onto Route 132 from the same roads, result in a significant number of vehicle crashes. The installation of the Route 132 Median Extension will eliminate these movements, and as a result, prevent these vehicle crashes. Similarly, on the other side of the Rotary, the elimination of the left-turn-in movement from the eastbound lane on Route 28 reduces the potential for vehicle conflicts there

The Airport Expansion Project does not contemplate any direct improvements to the Rotary infrastructure, but while there are several aspects of the Project that will have some impact on the Rotary, I conclude that none of them are likely to degrade the safety of the Rotary. Approximately 7,400 vehicles pass through the Rotary during one of its peak hours, which often operates at a level-of-service F. There are numerous vehicle crashes in the Rotary, roughly fifteen to twenty collisions per year. Few if any result in serious injury or death because vehicle speeds on the Rotary are usually low.

The installation of the Median Extension will divert some additional traffic into the Rotary, although the precise amount is unclear. Vehicles attempting to access the Wendy’s that would be diverted into the Rotary number about forty vehicles during the weekday evening peak-hour, and fewer vehicles at all other times. Elsewhere, however, significant numbers of vehicles are being diverted away from the Rotary because of the western access to the Airport on Route 132, and the new right-turn-only access from Route 28. Based on the significant reductions in Airport-bound vehicles entering the Rotary, I conclude that the Airport Expansion Project is not likely to result in an increase in vehicle collisions in the Rotary.

The Commission acted reasonably and within its discretion in concluding that the Airport Expansion Project would not degrade safety. The facts as I have found them de novo more than adequately support the determination of the Commission that the Project is consistent with the safety goals of the R.P.P., and I decline to disturb the Commission’s conclusions on these grounds.

4. Benefits / Detriments

There was no evidence or argument at trial about the probable benefits or probable detriments for aspects of the Airport Expansion Project outside of vehicle traffic, so I do not consider whether the benefits of the Airport as a whole, i.e., those having to do with possible changes to the access available to Barnstable and the region by plane, are outweighed by the detriments. My review is confined to traffic congestion and vehicle trips.

I conclude that the Commission was warranted to find that the probable benefits of the project outweigh the probable detriments. This conclusion is almost compelled by the findings I have made that vehicle trips will be reduced, that congestion on Route 132 and in the Rotary is likely to be eased, and that various dangerous turning movements will be reduced or eliminated.

Based on my findings, the list of detriments is short. Some amount of extra vehicles will be directed into the Rotary as a result of the Median Extension. This must be weighed against the number of vehicle crashes that will be eliminated because of the median. The Commission reasonably concluded that the reduction in crashes was worth the extra traffic in the Rotary, particularly in light of the elimination of trips into the Rotary elsewhere. There is likely to be an increased delay experienced by traffic taking a left or right turn onto Barnstable Road from the No Name Road. This delay is not likely to be significant, estimated at 0.2 seconds. The Commission’s conclusion that the safety benefit of the Median Extension outweighed this increased delay was reasonable and I will not disturb that conclusion.

Finally, Wendy’s is likely to suffer some amount of increased traffic on the No Name Road, and Wendy’s patrons who are accustomed to accessing the Wendy’s by making a left-turn from Route 132 will face an new inconvenience because that turning movement will be eliminated. The Commission, evidently, determined that these detriments were outweighed by the benefits of the rest of the Airport Expansion Project, and it is hard to disagree. Even if I were to disagree, I would still be bound to affirm the Commission’s conclusion where it is reasonable, because it is the Cape Cod Commission, not the Land Court, that is charged with making these determinations.

Botsini challenged the 2007 DRI on the grounds that making the No Name Road one-way would starve Wendy’s of vehicle traffic. Botsini’s arguments against the Major Modification is, essentially, that the No Name Road now will have too many vehicles. Botsini has no entitlement to its ideal amount of traffic on the way on which its property sits, and which Commission was bound to accomplish. The Airport Expansion Project proceeded through the Commission’s review process because it is a development of regional impact. By definition more is at stake in this process than the preferences of, or even some adverse effect upon, a single property owner. The Commission was not compelled to deny the request for the Major Modification simply because the traffic pattern was not that advocated for by Botsini. There is nothing unreasonable, arbitrary, or capricious about the Commission’s determination that the benefits of a modernized, expanded municipal Airport outweigh the detriment of a possible minor decline in business for the local Wendy’s restaurant.

D. The Minor Modification

The challenged Minor Modification purported to amend Condition G7 of the 2007 DRI Decision, which originally provided that “[n]o development work, as the term ‘development’ is defined in the Cape Cod Commission Act, shall be undertaken until all appeal periods have elapsed or, if such an appeal has been filed, until all judicial proceedings have been completed.” As amended, Condition G7 now reads as follows:

No development work, as the term “development” is defined in the Cape Cod Commission Act, shall be undertaken for a subpart as identified in Condition G1 that is subject to a modification of the original decision until all appeal periods for that modification have elapsed or, if such an appeal has been filed, until all judicial proceedings have been completed.

The effect of the Minor Modification was to allow construction to proceed on those parts of the already approved Airport Project that were not subject to the modification requests. That is, the Minor Modification allowed the Airport to go ahead with the new terminal building and the new control tower.

Section 2 (e) of the Act defines “development” in the broadest possible terms. The Regulations provide at section 12 (b) (iii) that no “development (as that term is defined in the Act) shall begin on a proposed Development until the decision has been recorded” and that a decision may be recorded only after “the appeal period has lapsed and no appeal has been filed or, if such appeal has been filed, after it has been dismissed or denied.” Id. There is no dispute that “development” as the term is defined in the Act has been undertaken.

The Commission treated the Minor Modification request as a Minor Modification #2, which requires approval by the Regulatory Committee. A Minor Modification #2 “involves a minor Change of Use, a minor change to the site plan, or small change to the findings or a condition of the original approval which does not affect the intent or outcome of the finding or condition. A proposed change shall not result in different or increased impacts to the resources protected by the Act and/or the RPP.” Regulations at § 13 (c) (ii). “Upon the Regulatory Committee’s approval of a Minor Modification #2, the project proponent may apply for and Municipal Agencies may issue a local development permit consistent with the approved modification.” Id.

Botsini challenges the Minor Modification on the grounds that the Regulations do not permit any development of a project until the decision is recorded in the Registry of Deeds, which cannot happen while any appeals are pending. Thus, argues Botsini, the Minor Modification was tantamount to an amendment of the Commission’s Regulations, something that can only be accomplished by the Assembly of Delegates. Botsini further argues that even if the Minor Modification was something the Commission was empowered to grant, the Airport could not exercise rights under the Minor Modification until the Airport resolved Botsini’s appeal of the Minor Modification itself.

Botsini’s argument that a Minor Modification #2 is not effective while on appeal is defeated by the text of the Regulations, which says “Upon the Regulatory Committee’s approval of a Minor Modification #2, the project proponent may apply for and Municipal Agencies may issue a local development permit consistent with the approved modification.” Nowhere in the Regulations does the Commission prohibit building while on appeal. The Commission, rather, prohibits recording a decision while an appeal is pending, and requires a decision be recorded before development starts. The distinction is more than academic because here, there is no requirement that the Minor Modification be recorded. Thus, there was no regulatory mechanism preventing the Airport from exercising its rights under the Minor Modification the moment it was approved.

The Commission argues that local building permits could issue for any aspect of the Project not subject to the Major Modification because the 2007 DRI Decision was final (all appeals were dismissed) and recorded with the Registry. The Commission argues that the Minor Modification was not an authorization for the Airport to begin development before all appeals were settled. Rather, the Commission recognized that, because of the Major Modification, some aspects of the Project were potentially subject to an appeal, but others were not. The Minor Modification allowed development to commence only as to those aspects that were not subject to an appeal. This outcome is entirely consistent with the intent of the original condition, because under no circumstances could development commence on an aspect of the project prior to the appeal period lapsing, or with an appeal pending. Once the 2007 appeal was dismissed, there was no reason to delay the development in its entirety because the 2007 DRI was beyond challenge. The pause that was required was only as to aspects of the overall development which were implicated by the later-round modifications properly the subject of judicial review. I therefore conclude that the Minor Modification was a proper exercise of the authority of the Commission.

Finally, no harm has befallen Botsini as a result of the Minor Modification. Botsini originally challenged the entire Airport Expansion Project in 2007, but dismissed its appeal with prejudice after executing the M.O.U. The current litigation challenges only the areas subject to a subsequent modification. The language of Condition G7, as amended, specifically prohibits development of any of the aspects of the Project that were subject to a modification and are under appeal. Botsini is the de facto beneficiary of Condition G7. As a result of Condition G7, as amended, the Airport has not been permitted until now to develop the very roadway improvements that Botsini challenges.

VI. CONCLUSION

The Airport has not committed a breach of the M.O.U. The Commission did not abuse its discretion, nor act in manner legally untenable, in approving the Major Modification and the Minor Modification, and they are to be upheld.