On December 14, 2011, plaintiff Botsini-Prime LLC (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. Defendant Barnstable Municipal Airport
Commission (Airport) has filed an affidavit of Roland W. Breault, dated December 20, 2011,
in opposition to the injunction request.
On December 21, 2011, the court (Piper, J.) issued a Decision and Judgment in these
three consolidated cases, in which the court upheld the challenged decisions of the defendant
Cape Cod Commission (Commission), and found in favor of the Airport on the breach of
contract claim.
In light of the courts decision and the entry of judgment, the court concludes it now is
unable to grant the requested preliminary injunction. The litigation has gone to judgment, and
preliminary relief no longer is indicated or available.
The court in any event could not grant the requested injunction pursuant to Mass. R. Civ.
P. 65, because the court is unable to make the requisite determination that Botsini is reasonably
likely to prevail on the merits. Any grant of preliminary relief would require assessment of the
merits of the plaintiffs claims, and those claims now have been determined, adversely to
plaintiff, in the decision and judgments entered today.
In addition, if the court were able to consider the request for injunction, it would be
unlikely to conclude that Botsini will suffer any harm, irreparable in nature, from the impending
demolition of the old airport terminal and occupancy of the new terminal. The scope of this
litigation always has been limited to challenging the roadway improvements affecting the
plaintiffs improved property. Never has the outcome of this litigation held the promise for
Botsini that the terminal aspects of the project would be undone even should Botsini have
prevailed entirely on its claims. Even if Botsini were to have succeeded on all of its claims, and
the court were to have altered the challenged modification decisions of the Commission, the new
airport terminal would not be affected. It is therefore difficult to see any way Botsini would
suffer any relevant harm from the opening of the new terminal. Additionally, to the extent that
Botsini advances concerns about unfavorable traffic conditions which might result from opening
the new terminal, or other work currently ongoing, those harms would not appear to be
irreparable in nature, because adequate compensation, if indicated, would be available in the
form of money damages for any temporary loss of business revenue.
The court notes that there is no appeal currently before the court from the reported
issuance on December 9, 2011 of any demolition permit or certificate of occupancy by the Town
of Barnstable to the Airport, and there is no appeal before the court of any action that may have
been taken by the Commission on December 15, 2011 in response to the reported issuance of
local permits.
It is
ORDERED that the hearing on plaintiffs renewed request for preliminary injunction,
currently scheduled for December 22, 2011, is CANCELED, and the renewed request for
injunction is DENIED. This Order is without prejudice to any party seeking relief pursuant to
G.L. c. 231, § 117.
So Ordered.
BOTSINI-PRIME, LLC v. CAPE COD COMMISSION and the BARNSTABLE MUNICIPAL AIRPORT COMMISSION