Barnstable airport wins road lawsuit

Dec. 22--The judge in a contentious lawsuit over roadwork at Barnstable Municipal Airport has ruled in favor of the airport, the town and the Cape Cod Commission, allowing the project to proceed.

In a 49-page decision issued Wednesday, Land Court Judge Gordon Piper upheld the commission's approval of the new terminal project and found in favor of the airport and the commission in a breach of contract claim.

Piper wrote in his decision that the airport did not breach a memorandum of understanding with Botsini Prime LLC, which owns property on the Airport Rotary where a Wendy's fast-food restaurant is located.

The agreement called for the installation of a traffic signal and new entrance to the airport west of the rotary on Route 132, but that plan was later scrapped.

"We're gratified that the judge decided in our favor," airport Manager Roland "Bud" Breault said during a telephone interview after the decision was released.

In a statement released Wednesday, Barnstable Municipal Airport Commission Chairman Daniel Santos called Piper's decision a "victory for all Cape Cod."

"It not only vindicates actions taken by the airport commission, the town of Barnstable and the Cape Cod Commission, it clears the way for us to make needed traffic safety improvements in the vicinity of the airport and the Airport Rotary," Santos said.

Thrown 'under the bus'

Botsini Prime manager Gregory Botsivales said the judge's decision was disappointing but not surprising.

"From the beginning, we knew that this project had the full support of federal, state and local politicians without any thought for the adverse affects on a local business," he said.

Many of the facts in the case were outside of the judge's jurisdiction, including the benefits of the proposed traffic signal on Route 132, he said.

While the judge appeared to give deference to the airport's obligation to serve the public's overall interest, that shouldn't justify throwing a small businessman "under the bus," Botsivales said.

"I don't think that's necessarily fair," he said. "I don't think it justifies the airport's, the town's and the Cape Cod Commission's blatant disregard for due process," he said.

Airport officials are moving forward with the finishing touches on the $40 million project, Breault said. The project includes the new terminal, the associated roadwork and a new air traffic control tower that went into operation in November.

Airport officials moved into the new terminal last week, citing security concerns raised by the Transportation Security Administration about multiple access points to the airport's secured areas that existed in the old terminal and then-unoccupied new terminal.

Airport officials had originally agreed to hold off on the move until Piper issued a ruling in the case.

While some of the remaining work will need to wait until after the winter, the removal of asbestos in the old terminal and air traffic control towers will proceed, Breault said.

"Now I don't have to worry about another appeal and stop-work order," Breault said.

New traffic pattern

The roadwork will include closing the existing entrance on the Airport Rotary, constructing a median on Route 132 west of the rotary and installing a traffic signal at the intersection of Airport Road and Attucks Lane, Breault said.

Botsini Prime had argued that airport officials and the commission broke a contract when they reneged on including the promised Route 132 entrance as part of the project.

If the new entrance is not built, traffic on a small road adjacent to the Wendy's restaurant would affect business there, according to Botsini Prime officials.

Even if the traffic signal is installed, drivers could still have used the small unnamed road next to Wendy's, Breault said.

"For the life of us, I don't think we can understand what Mr. Botsivales hoped to gain from the whole effort," Breault said.

Airport officials are discouraging the use of the road next to Wendy's, he said.

In addition to his ruling on the case, Piper also denied a request by Botsini Prime for a preliminary injunction that was scheduled for oral arguments today.

"If you read the decision he was very, very thorough," Breault said. "I don't think the judge missed a thing."

Botsivales said Botsini Prime would review its legal options in light of Piper's decision.

"I have no regrets," he said of the decision to pursue the lawsuit.

Copyright 2011 - Cape Cod Times, Hyannis, Mass.