An insider’s view of the Cape Cod Commission
by Patrick Butler“What is wrong with the Cape Cod Commission?” Having represented close to 100 applicants appearing before it, this is a question regularly posed to me. In public and political forums, vocal detractors say the regional land use agency is fundamentally flawed.
With the benefit of 15 years experience, let me share some perspective: It is clear that an objective, comprehensive review is needed, both as to the commission’s overall objectives and, more importantly, how it does its “nuts and bolts” job.
It is clear there have been disparities in the interpretation and objective application of standards and in the mitigation required, resulting in increased time and expense.
The commission has, at times, adopted pragmatic and innovative approaches to land-use development. Examples would include the use of development agreements, the Project of Community Benefit hardship exemptions and the so-called “knock-down/rebuild exemption.” Unfortunately, the commission has often had to go “kicking and screaming” before these innovations can be adopted.
Any potential applicant before the commission has three basic concerns:
• Predictability – What is the process? How long will it take? What will it cost?
• Objectivity – What standards must I adhere to? Are they objective and clear?
• Certainty – Is there a reasonable likelihood of success? What will the mitigation cost?
The result has been development that either: 1) withdraws from the process (sometimes having a negative economic impact) or 2) downsizes to avoid review (the antithesis of good planning).
Where do we go from here? The County Task Force should analyze the actual historical experience of applicants – both the good and the bad. The task force should consider utilizing an expert advisory panel of practitioners before the commission to carefully examine and review the regulatory process.
Patrick Butler Patrick Butler is an attorney with Nutter, McClennen & Fish, LLP. 
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