ATLANTIS IYANOUGH REALTY, LLC v. CAPE COD COMMISSION; THE TARKINOW GROUP, LTD; and FIRST HYANNIS REALTY, LLC.

Plaintiff in this case appeals under Section 17 of the Cape Cod Commission Act, St. 1989, c. 716 (the “Act”), from a September 15, 2011 Decision of the Cape Cod Commission (the “Commission”) approving the development of regional impact (“DRI”) application of Defendant The Tarkinow Group, LTD (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 (the “Expansion Project”).

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

By decision dated August 17, 2015, this court determined that the Commission’s Decision approving the BJ’s Expansion Project DRI was within the Commission’s authority, and neither arbitrary, capricious, unreasonable, nor contrary to law. The court’s decision thus upheld the Commission’s Decision approving the DRI, and rejected Plaintiff’s appeal. In accordance with the August 17, 2015 decision of this court, it is therefore:

ORDERED and ADJUDGED that the September 15, 2011 Decision of the Commission was within the Commission’s authority; and it is further

ORDERED and ADJUDGED that Plaintiff’s G.L. c. 40A § 17 appeal in this matter is accordingly DISMISSED.