MISC 11-454785

August 17, 2015

Barnstable, ss.




This action involves an appeal, under Section 17 of the Cape Cod Commission Act, St. 1989, c. 716 (the “Act”), [Note 1] from a September 15, 2011 Decision of the Cape Cod Commission (the “Commission”) approving the development of regional impact (“DRI”) [Note 2] application of Defendant The Tarkinow Group, LTD (“Tarkinow”) (the “Decision”). The proposed development would expand an existing BJ’s Wholesale Club retail facility (“BJ’s”) on property owned by Defendant First Hyannis Realty, LLC (“First Hyannis”) (the “Expansion Project”).

Plaintiff Atlantis Iyanough Realty, LLC (“Atlantis”) is a wholly owned subsidiary of The Stop & Shop Supermarket Company, LLC (“Stop & Shop”) that owns the property directly across the street from the BJ’s facility, and now operates a Shop & Shop supermarket at that location. Atlantis appeals the Commission’s Decision approving Tarkinow’s DRI application to expand the BJ’s, claiming the Decision exceeded the Commission’s authority. Atlantis claims the Commission misapplied its own regulations in accepting the traffic study accompanying Tarkinow’s DRI application and in failing to require sufficient transportation impact mitigation measures. Atlantis asks the Court to annul the Decision and remand to the Commission for its consideration of a revised traffic study and appropriate mitigation requirements.

A de novo trial was conducted on September 23 and 24, 2013. One expert witness testified for the Plaintiff: William Lyons, a licensed professional engineer and Chief Executive Officer of Fort Hill Infrastructure Services, an architecture engineering planning firm in Massachusetts.

Four (4) witnesses testified for Defendants: Jonathan Idman, the Commission’s Chief Regulatory Officer; John Kenney, counsel to Tarkinow throughout the BJ’s Expansion Project DRI application process; Matthew Kealey, a professional traffic operations engineer employed by Vanasse, Hangen and Brustlin, Inc. (“VHB”) who prepared BJ’s traffic study; and Glen Cannon, the Commission’s lead transportation engineer at the time of the BJ’s Expansion Project DRI review and now the Commission’s Director of Technical Services. Matthew Kealey testified as an expert. Twenty nine (29) exhibits were admitted into evidence.

Following receipt of the trial transcripts, the parties submitted their respective proposed findings of fact and rulings of law. The court took the matter under advisement on February 24, 2014 after hearing the parties’ post-trial arguments. As discussed below, I find that the Commission’s Decision approving the BJ’s Expansion Project DRI was within its authority, and accordingly Atlantis’s appeal will be dismissed.


Based on the pleadings, the parties' statement of agreed facts, the witness testimony and the documentary evidence presented at trial, as well as the Parties’ post-trial submissions and oral arguments, I find the following pertinent facts, reserving certain details for my discussion of specific legal issues:

Regulatory Framework

The Commission is a regional regulatory and planning commission created by Chapter 716 of the Acts of 1989, responsible for reviewing and regulating DRIs in the Cape Cod region, which is coextensive with all of Barnstable County. The Commission is charged with reviewing proposed DRIs in the fifteen (15) towns comprising Barnstable County for consistency with the Act and the Regional Policy Plan (the “RPP”), the principal regional land use policy document for Barnstable County. The RPP, which is a duly adopted ordinance of the Barnstable County Assembly of Delegates, sets forth certain planning “Goals” and attendant “Minimum Performance Standards” (“Standards”) that a DRI must meet to comply with the Goals. The Commission also prepares and adopts “policy guidance documents,” known as technical bulletins, which “provide guidance for preparing technical studies needed for proposed projects to demonstrate compliance with the Minimum Performance Standards of the [RPP].” Barnstable County, Mass., Ordin. 10-07 at 68 (May 19, 2010) (hereinafter cited as “RPP”).

The Commission’s DRI reviews are conducted prior to the completion of any local permitting proceedings conducted by the towns in the Cape Cod region. Accordingly, once a DRI is approved by the Commission, the applicant must still obtain any and all applicable municipal development permits and approvals before commencing development. [Note 3]

The 2000 DRI Application to Build a BJ’s

Tarkinow submitted its original DRI application to construct a BJ’s on property located at 420 Attucks Lane in Hyannis, Massachusetts in 2000. The 2000 DRI application included a traffic study. [Note 4] On April 10, 2003, the Commission approved the 2000 DRI application and the BJ’s was completed and opened for business in February 2005.

The 2006 DRI Application to Build a Stop & Shop

In 2006, Atlantis purchased property directly across the street from the BJ’s, and submitted a DRI application to build a Stop and Shop supermarket at that location. Atlantis’s 2006 DRI application also included a traffic study, prepared in part by Matthew Kealey of VHB (“Stop & Shop’s traffic study”). Stop & Shop’s traffic study included illustrative figures for Stop & Shop’s “build” conditions that depict a proposed “Site Drive” through the Stop & Shop property, connecting two public ways ? Attucks Lane and Route 132 – (hereinafter, the “Connector Road”) and forming a four-way intersection with BJ’s existing driveway across Attucks Lane.

The Commission approved the Stop & Shop DRI application in a Decision issued on June 12, 2008 and subsequently modified on November 1, 2010. The Stop & Shop supermarket was built and opened in July 2012, along with the Connector Road.

The 2009 DRI Application to Expand the BJ’s

In early 2009, Tarkinow decided to expand the BJ’s store, and retained VHB to conduct the traffic study to support its eventual DRI application for the expansion (the “BJ’s traffic study”). Prior to submitting the DRI application, John Kenney, Tarkinow’s legal counsel, and Matthew Kealey of VHB met with Commission staff, including Glen Cannon (the Commission’s lead transportation engineer at the time), to discuss the parameters of BJ’s traffic study. As a result of their meetings, a study area was selected that included three intersections surrounding the BJ’s site. A fourth intersection was added to the study area at the request of the Town of Barnstable. One of the intersections included was the then-existing intersection formed by Attucks Lane and BJ’s driveway. The BJ’s traffic study depicted and analyzed this intersection as a non-signalized, three-way intersection, without regard to the approved, but yet-to-be constructed Connector Road.

On October 23, 2009, Tarkinow filed its application for Limited DRI Review, [Note 5] seeking approval to expand the existing 68,831 square foot BJ’s by approximately 19,438 square feet. Tarkinow’s application disclosed that it would need to seek a special permit from the Barnstable Zoning Board of Appeals for relief from that Town’s parking requirements. [Note 6] Additionally, Tarkinow’s application disclosed pending litigation in the Superior Court concerning an alleged agreement between Atlantis and First Hyannis, requiring First Hyannis to relocate the existing BJ’s site driveway.

On February 8, 2011, a Commission subcommittee determined that Tarkinow could proceed with Limited DRI Review, including review with respect to the issue area of transportation. The RPP sets forth three (3) policy Goals in the issue area of transportation, followed by several Standards that applicants must meet to satisfy each Goal. Pursuant to Transportation Goal TR1, “Safety,” “DRIs shall not degrade safety for pedestrians, bicyclists, or motor vehicle operators or passengers” (hereinafter, the “Safety Goal”). RPP at 104. Transportation Goal TR2, “Trip Reduction/Transportation Balance and Efficiency,” requires DRIs outside of growth incentive zones [Note 7] to reduce or offset twenty-five percent (25%) of new vehicle trips generated by the proposed project (hereinafter, the “Trip Reduction Goal”). RPP at 106. Transportation Goal TR3, “Level of Service/Congestion Management,” requires DRI applicants to conduct a Level of Service (“LOS”) [Note 8] analysis on roads and intersections within the study area, including at site access/egress points, and propose mitigation to maintain year-round LOS at “no-build” conditions (hereinafter, the “Congestion Mitigation Goal”). RPP at 110-11.

Finally, Standard TR3.3 specifies that DRIs must provide an “appropriate” traffic study to the Commission in accordance with Technical Bulletin 96-003. [Note 9]

To address the transportation issues, BJ’s traffic study included an evaluation of existing traffic volumes and projected traffic conditions in the study area five years into the future. [Note 10] As specified in Technical Bulletin 96-003, VHB conducted actual traffic counts at the four identified study area intersections, applied a historic growth rate for traffic, and projected future traffic volumes originating from seven proposed developments in the study area, including the Stop & Shop supermarket project. To determine the historic traffic growth rate, VHB relied on the Commission’s 2008 Traffic Counting Report, which was the most recent report available. The Commission’s 2008 Traffic Counting Report showed a slightly negative growth rate (-0.48%) per year for 1998-2008, representing a decline in traffic during that period. As a more conservative measure, however, VHB applied a zero percent (0.0%) per year historic growth rate in the BJ’s traffic study as a baseline for its analysis of future traffic conditions.

BJ’s traffic study concluded that, because the Expansion Project did not add twenty-five (25) or more new peak hour trips through any of the study area’s roads or intersections that had experienced three or more crashes per year, Tarkinow was not required under the RPP’s Safety Goal, specifically Standard TR1.3, to provide physical safety mitigation. [Note 11]

BJ’s traffic study, however, concluded that traffic mitigation measures were required to meet the RPP’s Trip Reduction and Congestion Mitigation Goals. Based on a projected 794 new daily vehicle trips, Tarkinow proposed to mitigate twenty-five percent (25%) of the new trips generated by the Expansion Project with a series of trip “credits” to be recognized by the Commission for:

1) Agreeing to interconnect with an adjacent lot;

2) Locating near a public transit line;

3) Drawing on a “land bank” to which BJ’s had previously donated; and

4) Paying a monetary contribution of $186,400.

Additionally, to maintain LOS for the affected roadways and intersections at year-round “no-build” conditions, Tarkinow proposed to mitigate all of the traffic congestion caused by the Expansion Project by paying a $50,400 “fair share” contribution, calculated by reference to Technical Bulletin 96-003.

The Commission’s Decision

On September 15, 2011, the Commission issued a twenty-four page Decision approving the BJ’s Expansion Project, subject to twenty-one (21) detailed conditions, including seven (7) transportation-related requirements, and a standard condition making final Commission approval contingent upon the applicant obtaining all required local, state, and federal permits, including necessary zoning relief. Subject to satisfaction of the conditions, the Commission concluded the Project was consistent with the RPP; consistent with Barnstable’s Commission-certified Comprehensive Plan and Barnstable’s local development by-laws/ordinances; not subject to Barnstable’s Town-wide residential District of Critical Planning Concern, nor any other District of Critical Planning Concern; and that the Project’s probable benefits are greater than its probable detriments. Claiming to be aggrieved by the Commission’s Decision, Atlantis appealed. [Note 12]


The standard of review on appeal of a Cape Cod Commission decision is comparable to that undertaken by the trial courts in reviewing decisions of local zoning boards under G.L. c. 40A § 17. Tisbury Fuel Srvc., Inc. v. Martha’s Vineyard Comm’n, 68 Mass. App. Ct. 773 , 774- 75 (2007). Thus, the court’s review requires a “combination of de novo and deferential analyses.” Wendy's Old Fashioned Hamburgers of New York, Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 381 (2009). “[T]he court must find the facts de novo and give no weight to those the [Commission] has found.” Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72, (2003).

Although its fact finding is de novo, the court must review with deference the conclusions within the authority of the Commission. Wendy's Old Fashioned Hamburgers, 454 Mass. at 381. “An agency's interpretation of its own regulations is entitled to ‘considerable deference’ and must be upheld unless it is inconsistent with the plain language of the regulation or otherwise arbitrary or unreasonable.” Mostyn v. Dep't of Environmental Protection, 83 Mass. App. Ct. 788 , 794 (2013). The court may not substitute its judgment for that of the Commission where the question at hand is fairly debatable. Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 356 & n.11 (2001). The Court should therefore overturn a Commission decision only if it 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). Ultimately, the burden of going forward with evidence rests on the Defendants in this matter, who seek to establish the validity of the Commission’s decision. See Knott v. Zoning Bd. of Appeals, 12 Mass. App. Ct. 1002 , 1004 (1981).

Atlantis maintains that the Decision should be annulled because the Commission’s evaluation of the DRI application did not conform to the RPP and applicable Standards pertaining to the scope of the traffic study and required trip reduction and congestion mitigation. Atlantis asserts the Commission ignored its own regulations and guidance in accepting BJ’s traffic study and the findings and analysis contained therein, and thus acted arbitrarily and capriciously in approving the BJ’s Expansion Project DRI. As discussed in detail below, the facts in evidence are sufficient to support the Commission’s approval of the DRI and defeat each of the Plaintiff’s challenges to the Decision. Accordingly, judgment will enter upholding the Decision and dismissing Atlantis’s appeal.

Scope of the Traffic Study

Atlantis contends the Commission erred in accepting BJ’s traffic study because it does not comply with the RPP Standards and Technical Bulletin 96-003. [Note 13] More specifically, Atlantis claims that VHB failed to properly account for the proposed Stop & Shop project in projecting future traffic volumes associated with the Connector Road. The evidence at trial, however, showed that BJ’s traffic study included the Stop & Shop supermarket project in the list of seven projects within the study area to be factored into future traffic projections. Mr. Kealey of VHB testified that he included traffic volumes associated with the anticipated Stop & Shop supermarket project and pointed to the illustrative figures in BJ’s traffic study’s appendix referencing the projected Stop & Shop traffic volumes. Mr. Kealey testified that he obtained those appendix figures directly from VHB’s files for Stop & Shop’s traffic study. Mr. Cannon, who reviewed BJ’s traffic study on behalf of the Commission, agreed that VHB properly accounted for traffic volumes projected for the Stop & Shop supermarket project. [Note 14] Their testimony was unrefuted.

Moreover, the Defendants’ witnesses credibly explained why the intersection of the BJ’s driveway and Attucks Lane was not evaluated as a four-way intersection with the Connector Road. At the time of the study in 2009, the Connector Road did not exist. Consequently, the BJ’s driveway formed only a three-way connection with Attucks Lane. While neither the Technical Bulletin nor the RPP provide specific guidance regarding treatment of yet-to-be-built roadways in the study area, the Technical Bulletin states that “[p]roponents should contact state agencies, the [Commission], and local communities regarding the impact of other known projects in the affected study area to determine how to incorporate those impacts in the study.” Technical Bulletin 96-003 at 1-6. And that is what Tarkinow and VHB did.

They contacted first the Commission to determine how to incorporate the impacts of the proposed Stop & Shop supermarket project in BJ’s traffic study. Then, with the Commission’s guidance (through Mr. Cannon), VHB included in the BJ’s traffic study the traffic volumes projected to be generated by the proposed Stop & Shop project, but excluded the yet-to-be-built Connector Road. According to Mr. Kealey, VHB thus distributed the projected traffic from the Stop & Shop project, along with that of other identified projects in the area, over the existing roadways in accordance with assumed trip distribution patterns. [Note 15]

Mr. Cannon testified that the Commission has never considered an unbuilt roadway in its analysis of future conditions. [Note 16] This practice is not inconsistent with the RPP or Technical Bulletin, and indeed, there appears to be sound reason for it. Where construction has not yet commenced on an approved DRI, uncertainty remains about the final outcome of the project, the timing of completion, whether changes to the proposed plans will require a DRI modification, or whether it will be built at all. And, indeed, Atlantis obtained a modification of the Stop & Shop supermarket DRI in November 2010. Ultimately, the actual location of the Connector Road as constructed in 2011 differed from the location depicted in Stop & Shop’s 2006 DRI plans. [Note 17]

Notably, if the Connector Road were considered, its associated traffic signal would also have to be considered. [Note 18], [Note 19] According to the Defendants’ witnesses, if the proposed Connector Road and intersection traffic signal had been included in the evaluation, BJ’s traffic study would have actually reflected fewer negative traffic impacts at the Attucks Lane intersection. More specifically, the study results would have reflected less congestion and a higher LOS at that intersection, eliminating or reducing the need for mitigation. Although some traffic that would otherwise travel on Bearses Way might re-route to BJ’s through the Connector Road, Mr. Kealey opined that the change would have only a “negligible” impact and would actually further reduce congestion. Atlantis elicited no expert testimony or other evidence to contradict the Defendants’ expert. Moreover, on the basis of the evidence presented, I conclude that omitting the yet-to-be- built Connector Road from the Attucks Lane intersection analysis was also consistent with the Commission’s requirements and long-standing practice.

For the several reasons above, I find that BJ’s traffic study complied generally with the RPP’s requirements governing the submission of traffic studies, and specifically with Standard TR3.3 and Technical Bulletin 96-003. [Note 20] I thus find the Commission’s actions in accepting and crediting BJ’s traffic study to be within its discretion and authority. See Mostyn, 83 Mass. App. Ct. at 794 (“[C]ourts must accord due weight to the experience, technical competence, and specialized knowledge of the [Commission], as well as to the discretionary authority conferred upon it.” (alteration added, internal quotation marks omitted))

The Stop & Shop Traffic Signal

Despite Mr. Cannon’s testimony that the Commission requires each DRI project to stand on its own and mitigate its own adverse traffic impacts, Atlantis claims the Commission inappropriately relied on Stop & Shop’s proposed traffic signal as mitigation for adverse traffic impacts created by the BJ’s Project. To support this argument, Atlantis points to the Decision condition requiring construction of a pedestrian crosswalk across Attucks Lane to connect the proposed BJ’s sidewalk with a sidewalk to be constructed at the Stop & Shop site. Relying on the public hearing proceedings reported in the Decision, Atlantis argues that the crosswalk condition is inextricably tied to Stop & Shop’s traffic signal, which is part of Atlantis’s own DRI mitigation package. [Note 21]

Contrary to Atlantis’s assertions, the Decision does not approve Tarkinow’s DRI based on any assumption that the proposed Stop & Shop traffic signal would be installed. As discussed above, the traffic signal was necessarily excluded from the traffic impact analysis in BJ’s traffic study. Nor was it accounted for in BJ’s mitigation proposal. Furthermore, the testimony and other evidence at trial demonstrates that the condition requiring Tarkinow to install the crosswalk was not imposed in connection with trip reduction or congestion mitigation goals, but rather was imposed to honor a request made by the Town of Barnstable. The Expansion Project, therefore, did not fail to mitigate its own traffic impacts.

Because the Commission did not rely on the installation of the traffic signal by Stop & Shop at all, let alone as mitigation for the adverse traffic impacts of BJ’s Expansion Project, I discern no error in the Commission’s Decision on this basis. While Atlantis may be frustrated that BJ’s may ultimately benefit from the traffic signal Atlantis was obligated to fully fund and install as a condition of its own DRI, that obligation was unrelated to any traffic generated by the BJ’s Expansion Project. The evidence shows that BJ’s traffic study evaluated existing conditions at the intersection at the time of the DRI review. It did not, and could not, rely upon benefits from the yet-to-be installed traffic signal. Atlantis’s argument for annulling the Decision on this basis accordingly fails.

Trip Reduction

Atlantis asserts that Tarkinow failed to reduce or offset twenty-five percent (25%) of the new vehicle trips generated by the Expansion Project, pursuant to the RPP’s Trip Reduction Goal and related Standards. [Note 22] Atlantis does not dispute the Commission’s conclusion that Tarkinow is required to reduce or offset the impact of 198 of the 794 new vehicle trips generated by the Expansion Project (794 x 0.25). Atlantis also does not dispute that Tarkinow may effectively offset 127 of those 198 trips through a $186,400 cash mitigation payment and another 24 trips by applying a “land banking credit” from the 2003 BJ’s DRI trip reduction plan, [Note 23] as accepted by the Commission. But, Atlantis alleges the Commission improperly allowed Tarkinow to offset the remaining 47 trips by applying a five percent (5%) interconnection credit, and a five percent (5%) transit line credit. Each disputed credit will be addressed in turn.

The Interconnection Credit

Under Standard TR2.4, the Commission may grant a trip reduction credit for “DRIs that allow for site traffic to travel conveniently and safely to adjacent properties without traveling on or crossing a public way” (the “Interconnection Credit”). [Note 24] Citing to this provision in its Decision, the Commission granted Tarkinow a five percent (5%) Interconnection Credit against forty (40) of the 794 new daily trips (794 x 0.05), [Note 25] in exchange for Tarkinow’s agreement to connect the BJ’s internal access to an abutting parcel to the north owned by Cape Cod Aggregates. Atlantis disputes Tarkinow’s eligibility for the Interconnection Credit on the ground that the Decision does not explicitly require Tarkinow to connect to that adjacent parcel as a condition of receiving the credit, and the Project plan as proposed does not include the actual connection. Instead, the Decision allows the connection “when and if” development is proposed on the Cape Cod Aggregates property. [Note 26]

At the trial, Mr. Cannon testified that no previous DRI applicant has been required to actually connect to an adjacent parcel in order to receive the Interconnection Credit, because the purpose of the credit is to incentivize applicants to connect to other parcels as opportunities arise, even after the DRI approval process ends. Mr. Cannon further testified that the Commission’s regular practice is to read the Interconnection Credit provision in Standard TR2.4 together with Standard TR2.3, [Note 27] allowing a DRI applicant’s agreement to provide an interconnection at a later date to satisfy the interconnection requirements, and merit an Interconnection Credit. [Note 28] RPP at 106 (emphasis added). The Decision reflects this interpretation when it states: “[Standard] TR2.4 . . . allows for a five (5) percent credit for developments that agree to provide an interconnection to an adjacent property. The Commission finds that the project is therefore eligible for a five (5) percent interconnection credit.” (Emphasis added).

In reviewing the Commission’s interpretation of its own regulations, I apply “considerable deference” and uphold the interpretation “unless it is inconsistent with the plain language of the regulation or otherwise arbitrary or unreasonable.” Mostyn, 83 Mass. App. Ct. at 794. When examining a practice of the Commission, “[t]he ultimate question is whether the policy embodied by the agency's interpretation is reasonable . . . . [I]t is unimportant whether [this Court] would have come to the same interpretation of the statute as the agency.” Biogen IDEC MA, Inc. v. Treasurer & Receiver Gen., 454 Mass. 174 , 187 (2009) (internal quotation marks omitted). Testimony at trial revealed that the two Standards related to interconnection have consistently been applied by the Commission in tandem, and a plain reading of the text suggests a reasonable relationship between the provisions. Mr. Cannon credibly testified that the Commission’s policy goals are served by reading the two Standards together to incentivize interconnection in the future where adjacent properties may currently be undeveloped. Given the close relation in subject matter of the two Standards and their sequential placement in the RPP, and given the Commission’s established practice and policy, I find the Commission’s interpretation reasonable. Accordingly, I find that the Commission did not exceed its authority by granting Tarkinow a five percent (5%) Interconnection Credit for agreeing to connect with the adjacent Cape Cod Aggregates property in the future.

The Transit Line Credit

Atlantis also contends that, because the Decision failed to discuss or expressly grant a five percent (5%) credit for the Expansion Project’s location adjacent to a public transit stop (the “Transit Line Credit”) pursuant to Standard TR2.5 [Note 29] or Technical Bulletin 96-003, [Note 30] the Commission improperly approved the DRI without requiring Tarkinow to meet the full Trip Reduction Goal. The Commission admits that, through inadvertence, its written Decision failed to discuss granting the Transit Line Credit or set forth all of the mathematical steps associated with applying it. However, the Defendants contend that the Expansion Project did satisfy the requirement for the 5% Transit Line Credit and that the Credit was applied to reduce the impacts of the remaining 37 new trips.

The RPP allows a portion of trip reduction to be met through public transit, and Technical Bulletin 96-003 supports granting a five percent (5%) new trip credit where a DRI has adjacent year-round transit service. The Decision is not devoid of any mention of public transit service to the BJ’s site. With regard to a “proposed employee trip reduction plan,” the Decision recognizes that Tarkinow “will work with the CCRTA to provide bus service to the site,” and “will provide a bus shelter on site.” Moreover, the evidence at trial demonstrated that the Commission’s staff had worked with Tarkinow on calculating and applying the Transit Line Credit to mitigate the thirty-seven (37) trips. Mr. Cannon’s testimony regarding the method for calculating that credit and its application to the Expansion Project was unrefuted. And the correspondence among Atty. Kenney, Mr. Kealey, and Mr. Cannon discussing and applying the five percent (5%) Transit Line Credit to mitigate the remaining thirty-seven (37) trips was admitted into evidence at trial. [Note 31]

From these facts, I infer that, prior to approving the DRI, the Commission determined that the Project mitigated at least twenty-five percent (25%) of the new vehicle trips generated to satisfy the RPP’s Trip Reduction Goal, through application of the land banking credit, a cash mitigation payment, an Interconnection Credit, and a Transit Line Credit. While it might have been better practice to include an express finding in the Decision regarding each of the credits applied, and how they were calculated, the Commission’s failure to do so in this instance does not affect the validity of its Decision where the Defendants have demonstrated the reasonable application of each Trip Reduction credit, and have further demonstrated that, as a result of the credits, the Tarkinow DRI mitigated twenty-five percent (25%) of the new vehicle trips generated. [Note 32]

Level of Service and Safety

To meet the RPP’s Congestion Mitigation Goal, Standard TR3.4 requires DRI applicants to provide full mitigation of all adverse impacts caused by their DRIs on all affected intersections, including any decreases in intersection LOS. [Note 33] LOS is “a standardized, qualitative measure of vehicle operating conditions on a roadway based on criteria including speed, travel time, traffic interruptions, freedom to maneuver, safety, driving comfort and convenience, and operating costs,” RPP, Appx. at 136, that is graded on a scale from “A” (best) to “F” (worst). The RPP sets forth a variety of ways an applicant may mitigate congestion, including by making a “fair share” payment pursuant to Standard TR3.6, which in turn refers applicants to Technical Bulletin 96-003 for further guidance. [Note 34]

Atlantis asserts that the Commission improperly allowed Tarkinow to mitigate a projected reduction in intersection LOS by way of a “fair share” payment, instead of requiring physical improvements. In particular, Atlantis points to the language in Technical Bulletin 96- 003, stating that “proposed fair share contributions shall not be acceptable at locations where . . . [t]he intersection or road link will operate at LOS E or F without actual improvements, due to the resulting safety hazards.” Technical Bulletin 96-003 at 2-2 (emphasis added). According to the BJ’s traffic study, the LOS for the southbound right turn from BJ’s driveway onto Attucks Lane will degrade from “D” under “no-build” conditions to “E” under “build” conditions. [Note 35] Thus, Atlantis, argues, Tarkinow was not eligible to mitigate the decrease in LOS at that intersection with a fair share payment because of the “resulting safety hazards,” leaving only physical congestion mitigation options available.

Defendants offer a competing interpretation of Standard TR3.6 and the language in Technical Bulletin 96-003. They assert that, in practice, the Commission interprets this language of the Technical Bulletin to require projects that result in a LOS rating of “E” or “F” at locations with known safety hazards to provide both congestion mitigation and physical mitigation. According to Defendants, whether or not a safety hazard exists at a given intersection is governed by Standard TR1.3, which establishes a safety mitigation threshold at locations with three (3) or more crashes per year where the project is expected to add twenty-five (25) or more peak hour trips. Tarkinow’s DRI, however, did not reach this threshold at any intersection. The Defendants thus reason that the Commission appropriately allowed Tarkinow to pay a fair share mitigation fee to address traffic congestion impacts. [Note 36]

Contrary to Atlantis’s position that the Commission is bound by the prohibitive language in Technical Bulletin 96-003 (“proposed fair share contributions shall not be acceptable”), the Commission has considerable discretion in how it applies the “guidance” in technical bulletins to the circumstances of each DRI application. Indeed, according to the RPP, technical bulletins “are policy guidance documents that explain in greater detail how some of the Regional Policy Plan’s technical standards . . . can be met. The technical bulletins are not regulations but they provide guidance for preparing technical studies needed for proposed projects to demonstrate compliance with the [Standards] of the [RPP].” RPP at 68 (emphasis added).

Importantly, RPP Standard TR3.6 expressly states that fair share payments are at the Commission’s option: “[T]he Commission, at its discretion, may allow a payment of funds to Barnstable County to meet the requirements of [Standard] TR3.4 commensurate with the DRI’s impact.” RPP at 111 (emphasis added). And this discretion is reflected in Technical Bulletin 96- 003, as well, when it states that “[f]air share contributions are at the discretion of the Commission.” Id. at 2-2.

Because technical bulletins are not regulations, and the Commission is imbued with discretion in this area, failure to implement the guidance in the technical bulletins is not the equivalent of acting contrary to law or outside the scope of Commission authority. Further, Atlantis presented no evidence suggesting that here, it was arbitrary or capricious for the Commission to permit Tarkinow to make a fair share payment to mitigate the LOS degradation for the right turn movement onto Attucks Lane, instead of making physical improvements. Defendants’ expert witness testified that no safety hazard currently exists at this intersection, and Atlantis presented no contrary evidence. Nor was there any evidence of actual safety hazards under “build” conditions, which should be mitigated through physical improvements at the intersection in question. Nor has Plaintiff marshaled any contrary decisions of the Commission requiring physical mitigation in lieu of a fair share payment under Technical Bulletin 96-003, under similar circumstances to those presented here.

Therefore, on the facts before me, and “[a]ccord[ing] due weight to the experience, technical competence, and specialized knowledge of the [Commission], as well as . . . the discretionary authority conferred upon it” by the RPP, Mostyn, 83 Mass. App. Ct. at 794, I find that the Commission’s acceptance of a fair share payment for congestion mitigation was not arbitrary, capricious, unreasonable, or otherwise in excess of its authority.


Atlantis’s final argument – that the Commission’s Decision must be annulled because the BJ’s Expansion Project is inconsistent with the Town of Barnstable’s zoning bylaws – fails as a matter of law. Tarkinow admits that the parking for the Expansion falls short of the Town of Barnstable’s requirements, and that a special permit will be necessary if the Project is to proceed. [Note 37] But Tarkinow could not obtain the necessary zoning relief in advance of obtaining the DRI approval because the Act itself suspends the local permitting process during DRI review. St. 1989, c. 716, §§ 13(d) and (e); see RPP at 63 (“[T]he local review is suspended until the regional review is complete.”); supra note 3. Nor did the Commission exceed its authority by approving the Expansion Project before the necessary relief could be obtained. Any potential inconsistencies with local zoning bylaws were addressed in the Decision by including the Commission’s standard condition that the DRI applicant “shall obtain all federal, state, and local permits for the proposed project.” That Tarkinow will need to eventually obtain a special permit for parking before commencing construction of the Project, does not impair the validity of the Commission’s approval of the DRI contingent on such permit issuing.


The Commission’s Decision granting approval of the BJ’s Expansion Project DRI is affirmed. Accordingly, Judgment shall enter for Defendants, dismissing Plaintiff’s Appeal.


[Note 1] St. 1989, c. 716, § 17 reads in pertinent part: “(b) Any party aggrieved by a commission decision on a development of regional impact may appeal the decision to the Barnstable county superior court or the land court . . . (d) The court shall, on appeal, hear all evidence pertinent to the authority of the commission and determine the facts, and, upon the facts as determined, annul such decision if found to exceed the authority of said commission or make such other decree as justice and equity may require.”

[Note 2] The Act defines “Developments of Regional Impact” as “a development which, because of its magnitude or the magnitude of its impact on the natural or built environment, is likely to present development issues significant to or affecting more than one municipality, and which conforms to the criteria established in the applicable standards and criteria for developments of regional impact pursuant to section twelve.” St. 1989, c. 716 § 2(h).

[Note 3] Pursuant to St. 1989, c. 716, §§ 13(d) and (e), when a project is referred to the Commission as a DRI, the municipal permitting process, including any petitions for zoning relief, is suspended pending the completion of the Commission’s DRI review. Once a DRI has been approved, local permitting resumes. RPP at 63 (“A DRI review is initiated when an applicant requests a local development permit. If the proposed project meets one of the thresholds, the town is required to refer the project to the Commission for DRI review; the local review is suspended until the regional review is complete.”).

[Note 4] Where the Commission has determined to review a DRI for its transportation impacts, a DRI application is required to include a traffic study that analyzes traffic conditions projected five years into the future under “build” and “no build” conditions, so the Commission can address any adverse traffic impacts of the development. RPP at 111; see generally Commission’s Guidelines for Transportation Impact Assessment, Technical Bulletin 96-003, revised January 9, 2003 (“Technical Bulletin 96-003”). This requirement applied to Tarkinow’s original DRI application.

[Note 5] “Limited Review is a . . . DRI review process for which any project may be eligible. Through a public process before a Cape Cod Commission subcommittee, the scope of a project’s review under the various issue areas is determined. . . . Cape Cod Commission staff can meet with a prospective applicant at no cost to provide general guidance for siting and designing the project. A Commission subcommittee must then hold a formal Limited Review scoping process, after which a written decision may be issued that specifies the issues for which a project will be reviewed.” RPP at 65.

[Note 6] In particular, the BJ’s Expansion Project did not provide for the construction of any new parking spaces, providing only 351 parking spaces where the Town of Barnstable’s Zoning Ordinance would call for 444 spaces. See Town of Barnstable Zoning Ordinance c. 240 §§ 240-56 and 240-57.

[Note 7] Although no evidence or testimony was presented to the court concerning whether or not the Expansion Project was located inside or outside of a “growth incentive zone,” neither party disputes the issue. The court accordingly accepts the applicability of this Standard to the Project.

[Note 8] The RPP defines Level of Service (LOS) as: “A measure of public facility and service quality for a variety of services such as roads, schools, parks, open space, police and fire protection, and other related services; in particular, for roads, a standardized, qualitative measure of vehicle operating conditions on a roadway based on criteria including speed, travel time, traffic interruptions, freedom to maneuver, safety, driving comfort and convenience, and operating costs. The LOS for roads shall be determined based on the most recent edition of the Transportation Research Board’s Highway Capacity Manual.” RPP, Appx. at 136.

[Note 9] Technical Bulletin 96-003 is a thirty-two page document that sets forth guidelines for planners and engineers to follow in the preparation and review of traffic impact studies. Technical Bulletins are “policy guidance documents” and “are not regulations.” RPP at 68.

[Note 10] VHB prepared a single traffic study that analyzed the transportation impacts of two projects for Tarkinow: (1) the BJ’s Expansion Project at issue in this case, and (2) a second project consisting of a proposed 30,000 square foot outparcel retail development on an adjacent lot. Nonetheless, only the BJ’s Expansion Project was before the Commission for DRI review. Although including a second project that is not under DRI review in a traffic study is not typical, according to Mr. Cannon, the RPP and Technical Bulletin do not prohibit it and the Commission permitted it as an accommodation to the applicant in this case. Atlantis raises no objection on this basis.

[Note 11] RPP Standard TR 1.3 provides in pertinent part: “The applicant shall identify safety impacts at road and intersection locations with three or more crashes per year where the project is expected to add 25 or more peak-hour trips. . . . The applicant shall be required to implement the needed safety improvements as determined by the Commission prior to obtaining a final Certificate of Compliance and shall be responsible for the safety improvements even if the cost of these safety improvements exceeds the transportation mitigation payment amount.”

[Note 12] In its pre-trial brief, the Commission waived its affirmative defense of Atlantis’s lack of standing.

[Note 13] RPP Standard TR3.3, “Traffic Studies,” provides in full: “DRIs shall provide an appropriate traffic study in accordance with the Cape Cod Commission Guidelines for Transportation Impact Assessment, Technical Bulletin 96-003, as amended, as determined by the Commission in consultation with the town and the applicant. The traffic study shall identify and include analysis for the area impacted by the development. Guidance on providing a traffic study can be found in the Cape Cod Commission Guidelines for Transportation Impact Assessment, Technical Bulletin 96-003, as amended.” RPP at 111.

[Note 14] Atlantis’s post-trial filing asserts that the projected traffic volumes for the Stop & Shop project used in BJ’s traffic study are “woefully underestimated” and that “the Court need only compare the traffic volumes” at all of the intersections (including the non-existent Connector Road) between BJ’s 2009 traffic study and Stop & Shop’s 2006 traffic study to see the purported flaws.

Comparing the two traffic studies does not provide the evidentiary grounds necessary to mistrust the projected Stop & Shop traffic volumes utilized by VHB in BJ’s traffic study. The projected traffic volumes for any proposed development depend on the assumptions that define the existing and future conditions calculated for that development’s traffic study. I have reviewed both studies and note that each was prepared under entirely different assumptions. For example, the historic traffic growth rate used in the Stop & Shop study was 1.2%, based on the Commission’s 2005 Traffic Counting Report, whereas 0.0% growth was used for BJ’s study, based on the Commission’s 2008 Traffic Counting Report showing negative growth. Undoubtedly, the physical traffic counts procured by VHB in the two different study areas would have been numerically distinct as well (occurring three years apart from one another in a period where traffic declined). Altering these assumptions (as well as others) can increase or decrease the projected traffic volumes at issue.

With all of these and other distinctions at play, the Court is unable to discern the basis for Atlantis’s comparative calculations (which were not presented mathematically at trial or in its post-trial filing) or its conclusions. It is of no moment that VHB in 2006 predicted that 2,410 trips would pass through a four-way intersection at Attucks Lane, where in 2009 – under admittedly different assumptions and with declining traffic growth – VHB predicted it would be 1,860 trips passing through a three-way intersection in the same location. Notably, Atlantis’s expert, Mr. Lyons, did not speak to these issues, did not provide the Court with any mathematical or substantive comparison between the traffic volume counts in the two reports, and did not opine on the infirmities or benefits of making any one assumption over another. With nothing more than Atlantis’s attorney’s argument on the matter, and from the obvious differences in the two traffic studies that I discern, I am not persuaded that the Commission acted unreasonably in exercising its discretion to accept the methodology used by VHB in BJ’s traffic study, as explained by Mr. Kealey and Mr. Cannon.

[Note 15] VHB used the same trip distribution patterns calculated in the original traffic study submitted with the DRI application to build the BJ’s in 2000. Atlantis has not challenged the accuracy of VHB’s trip distribution assumptions on this basis.

[Note 16] Atlantis has produced no contrary Commission decisions.

[Note 17] Atlantis argues that Tarkinow’s counsel advised the Commission in a July 2011 hearing, before the approval Decision issued, that the Connector Road would ultimately “line up” with the BJ’s Driveway. The summary of hearing testimony that Atlantis cites is not competent evidence and is hearsay if offered for the truth of the matter asserted. For that matter, what the Commission did or did not listen to or discuss at a hearing is not the question before the court in a de novo review, and is thus irrelevant. Even so, what was said in 2011 does not change the fact that, two years earlier in 2009, when BJ’s traffic study was submitted, the status of the Connector Road was an uncertainty.

[Note 18] Mr. Cannon testified that the Commission’s policy is not to let a new DRI “accept credit” for another DRI’s mitigation efforts. This is another basis on which the Commission may have chosen to exclude the Connector Road and traffic signal – together – from BJ’s traffic study. I do not find the Commission’s standard practice unreasonable or contrary to law as a basis for excluding the Connector Road from the study area, where neither the RPP nor Technical Bulletin 96-003 speak directly to the issue.

[Note 19] Despite Atlantis’s urging, I find no logical basis to consider the Connector Road alone without its attendant traffic signal.

[Note 20] Atlantis raises a perfunctory argument in its post-trial filing that Technical Bulletin 96-003 required BJ’s traffic study to include a parking analysis. The argument is rejected as meritless. Technical Bulletin 96-003 merely requires applicants to provide “the number of required spaces under town zoning and the number of proposed spaces,” which Defendants established at trial was included in BJ’s traffic study. Tarkinow was not required to provide further analysis under Technical Bulletin 96-003 because no “additional parking spaces above zoning [were] proposed.” Technical Bulletin 96-003 at 1-9.

[Note 21] What the Commissioners did or did not discuss in the context of a public hearing is irrelevant to this court’s de novo review and fact finding. Furthermore, the recitation of testimony at the hearing is disregarded hearsay, to the extent it is offered to prove the truth of any matter asserted.

[Note 22] RPP Standard TR2.1 provides in full: “DRIs located outside Growth Incentive Zones or Economic Centers, or DRIs in towns without designated Economic Centers shall implement adequate and acceptable measures to reduce and/or offset 25 percent of the expected increase in site traffic resulting from the DRI on a daily basis. Examples of acceptable trip-reduction plans to reduce site traffic are available in [Technical Bulletin 96-003].” RPP at 106.

[Note 23] Under Standards TR 2.10 and 2.11, DRI applicants may donate a parcel of land and receive a “land banking credit” toward offsetting new vehicle trips generated by the DRI. RPP at 107-08. When Tarkinow’s initial DRI to construct the BJ’s was approved, Tarkinow donated a 4.1 acre parcel and received a land banking credit of 924 trips. That initial DRI sought only to offset 624 new trips generated with that credit, thus leaving a remaining credit of 300 additional trips in the land bank. Atlantis has not disputed BJ’s entitlement to this land banking credit or any of the calculations related to the available number of trip credits.

[Note 24] RPP Standard TR2.4 provides in full: “DRIs that allow for site traffic to travel conveniently and safely to adjacent properties without traveling on or crossing a public way or that allow for mixed-use development that minimizes dependence on automobile travel shall be allowed a 10-percent traffic credit apportioned between the two properties or, if greater, a traffic credit as outlined in the Institute of Transportation Engineers Trip Generation Handbook, October 1998, or another acceptable methodology subject to Commission approval.” RPP at 106-07.

[Note 25] Applying this credit “off the top” had the effect of reducing the total daily trips figure from 794 to 754 (794 x 0.05 = 40 trips; 794 - 40 = 754 trips), but the number of new trips that Tarkinow was required to mitigate effectively reduced only by ten (10). (754 x 0.25 = 188 trips; 198 – 188 = 10 trips). Atlantis does not challenge this calculation methodology.

[Note 26] Apparently because the proposed interconnection also satisfied “one of the two waiver criteria listed in [Standard] E1.3 for a redevelopment project,” the further reference to the proposed “interconnection” condition in the Commission’s Decision appears in the section labeled “Economic Development,” which provides in pertinent part: “The interconnect between the BJs site and the Cape Cod Aggregates property shall be allowed when and if additional development or redevelopment is proposed on the Cape Cod Aggregates Property.”

[Note 27] RPP Standard TR2.3 provides in full: “DRIs shall implement procedures to allow connections (vehicular and pedestrian) between parcels to minimize curb cuts, driveways, and vehicle turning maneuvers. DRIs shall provide vehicular and pedestrian connections on the project site and connect to the adjacent property if an interconnect agreement can be reached. The DRI shall agree to allow a future connection if an agreement cannot be reached with the adjacent property owner at this time.” RPP at 106.

[Note 28] Atlantis has identified no contrary Commission decisions.

[Note 29] RPP Standard TR2.5 provides in full: “The estimates of the number of trips reduced through proposed trip- reduction measures including trip-reduction support measures, transportation services, economic incentives, and locating on a transit line shall be based on an analysis that is accepted and approved by the Commission based upon the methodology provided by the Cape Cod Commission Guidelines for Transportation Impact Assessment, Technical Bulletin 96-003, as amended.” RPP at 107.

[Note 30] Technical Bulletin 96-003 provides in relevant part: “In addition, [the RPP] allows a portion of the trip reduction to be met through transit when a transit service is located immediately adjacent to a development. The trip reduction program should include securing (or maintaining) a bus stop and/or shelter at the location and employee / customer use incentives such as discount passes, posted schedules, etc. The credit for developments with adjacent year round service is 5% and with seasonal only service (running a minimum of eight weeks including July and August), 2.5% of the average daily traffic.” Technical Bulletin 96-003 at 3-2.

[Note 31] According to Defendants, unlike the Interconnection Credit that was taken “off the top” of the 794 daily new trips, the Transit Line Credit was applied to reduce directly the number of trips requiring mitigation, and after the application of the Interconnection Credit. See supra note 25. Thus Tarkinow was credited with a reduction of thirty-seven (37) new trips requiring mitigation. (794 – 40 interconnection credit = 754 daily trips; 754 x 0.25 = 188 trips requiring mitigation; 754 x 0.05 transit line credit = 37 trips; 188 – 37 = 151 remaining trips requiring mitigation). Atlantis does not challenge this calculation methodology.

[Note 32] Defendants aver in the alternative that an additional 276 excess vehicle trips credited to BJ’s from its original land banking donation are available to Tarkinow to satisfy its trip reduction requirement, as an alternative to the credits discussed above. However, only brief testimony was devoted to explaining how land banking credits are applied in the case of future developments, or whether the Commission has a standard practice in that regard. Only twenty- four (24) of the “available” three hundred (300) land banking trip credits were applied by the Commission in this case. I am left to wonder why Tarkinow would pursue more onerous trip reduction measures, as well as pay $186,400 in transit equivalency contributions to the Town, if so many banked trip credits were “available” for its use. I do not have the factual basis I require to discern whether the Commission’s Decision that Tarkinow satisfied the Trip Reduction Goal could be upheld by applying Tarkinow’s prior land banking credits. Nevertheless, the question is entirely academic, as I find the Commission’s Decision supported by the record before me, as discussed above.

[Note 33] RPP Standard TR3.4 provides in full: “DRIs shall provide for full mitigation of adverse impacts on all road links, and at all intersections that are used by the DRI, including but not limited to bridges, intersections, rotaries, roundabouts, interchanges, and U-turns where the DRI is expected to increase peak-hour traffic after traffic adjustments in compliance with the Minimum Performance Standards supporting Goal TR2. At all adversely impacted locations, mitigation shall be proposed and funded to maintain year-round Level of Service at “no-build” conditions as measured by travel speeds, control delay, density, and/or flow rate as defined by the Highway Capacity Manual 2000 or its successor documents.” RPP at 111.

[Note 34] RPP Standard TR 3.6 provides, in relevant part: “In lieu of construction and/or implementation of measures to mitigate adverse traffic impacts prior to a final Certificate of Compliance, the Commission, at its discretion, may allow a payment of funds to Barnstable County to meet the requirements of [Standard] TR3.4 commensurate with the DRI’s impact. As determined by the Commission, in considering whether to allow such payments, the Commission will take into account factors including but not limited to safety, congestion, area land uses, community character, environmental impacts, seasonal traffic variations, input from public officials, public testimony, and may include costs for 20 years of operations and maintenance, where necessary. Guidance on payment methodology can be found in . . . Technical Bulletin 96-003, as amended.” RPP at 111-12.

[Note 35] Even though BJ’s driveway is not a “roadway,” it was still considered part of an intersection in the LOS analysis, and Defendants did not advance an argument that BJ’s site driveway must be “carved out” from consideration for LOS degradation. Defendants also did not adduce any evidence to support an argument that Tarkinow was not required to mitigate LOS degradation at that three-way intersection under the RPP. Standard TR3.1 requires that “[r]egardless of traffic volumes, Level of Service analysis shall be required at all access and/or egress points onto the road system for DRIs.” RPP at 110.

[Note 36] Defendants further emphasize that the LOS impact was, in any event, “overstated” because the LOS analysis in BJ’s traffic study aggregated congestion generated by both the BJ’s Expansion Project and a proposed 30,000 square foot outparcel retail center that was not part of the Commission’s review. See supra note 10. Plaintiff also has not challenged this claim by Defendants.

[Note 37] Plaintiff also raises in its post-trial filing that the Expansion Project does not comply with the Town’s zoning bylaws concerning groundwater protection and impervious surfaces. See Town of Barnstable Zoning Ordinance c. 240 §240-35. Plaintiff presented no testimony on this subject at trial. Even so, the argument is rejected for the same reason discussed herein.