Steamship Authority Sues to Block Fees: Boat Line Seeks Superior Court Ruling Over Hefty Falmouth Parking Fees; Hearing Monday on Injunction

By JULIA WELLS

In a legal standoff with the town of Falmouth, the Steamship Authority went to court this week to try to block the Upper Cape town from imposing a set of hefty licensing fees on boat line parking lots.

An offshoot of an arcane licensing bylaw adopted by Falmouth voters at a special town meeting last November, the new fees would apply to all open air pay parking lots in the town of Falmouth. The bylaw is set to take effect May 1.

Under the bylaw operators of open air pay parking lots that hold 25 cars or more are required to have a license from the town. The operators are required to pay a $100 application fee plus $2.50 per parking space per month. Operators who do not comply with the bylaw are subject to fines of $300 per space per day.

For the boat line this could translate to daily fines of nearly $1 million, if it does not comply with the bylaw.

The SSA, which owns or leases 3,200 parking spaces in the town of Falmouth, is the primary affected party and under the bylaw would be required to pay about $75,000 a year to the town in licensing fees.

The fees would come on top of the $350,000 already collected by the town through the state-approved embarkation fees that went into effect last year.

Attorneys for the boat line filed a 24-page complaint against the town of Falmouth in Dukes County Superior Court this week, calling the fee an unlawful tax and requesting a preliminary injunction to block the town from imposing the bylaw and its fees.

A hearing is set for Monday morning in the Edgartown courthouse for arguments on the injunction request.

Because it is a state agency, the boat line is exempt from local zoning regulations. There is plenty of well-settled case law on the subject, including a case between the town of Bourne and the SSA that went all the way to the Massachusetts Supreme Judicial Court in 1999.

SSA general manager Wayne Lamson said yesterday that the SSA believes it is exempt from the bylaw. He said boat line senior managers tried in good faith to work out their disagreement with the town over application of the bylaw but were soundly rebuffed by Falmouth officials. He said in the end the boat line was left with no choice but to go to court.

"Given that we have this potential $1 million-a-day fine, we were left with no alternative but to try to block the town of Falmouth's attempt to regulate the Steamship Authority parking lots," Mr. Lamson said from his office in Woods Hole. "It's a very serious thing," he added.

The story of the parking fees began nearly six months ago, when the bylaw came onto the special town meeting warrant in November. Mr. Lamson said the town selectmen made no attempt to contact the boat line prior to putting the bylaw on the warrant. He said that in late February he received a call from Falmouth town counsel Frank K. Duffy Jr. telling him it was the town's intention to enforce the bylaw against the SSA.

"We immediately went to our own legal counsel and got an outside opinion on whether the town could apply the provisions of this bylaw. The attorney we went to concluded that the town cannot impose this upon the Authority," Mr. Lamson said.

On March 17 Mr. Lamson wrote a letter to the Falmouth town administrator questioning whether the town had the power to apply the bylaw. Mr. Lamson included a copy of the legal opinion from the boat line's outside counsel, and told the town administrator he hoped to resolve the matter amicably. "We offered to meet with the town and talk about our differences," Mr. Lamson said.

He said a meeting was set up on April 7 with town representatives and boat line representatives.

"What we were looking for was for the town to defer enforcement of this bylaw until we had a reasonable opportunity to seek judicial review," Mr. Lamson said. He said Edward DeWitt, a former Falmouth SSA governor and attorney who works as an assistant town counsel, told the boat line that there was no wiggle room. "We were told by Ed DeWitt that neither the board of selectmen nor the town administrator had any flexibility to enforce this bylaw, so the town was proceeding," Mr. Lamson said.

He said boat line representatives asked the town for their own written legal opinion, but were told there was no written opinion, only research.

Mr. Lamson said on April 12 he received a visit from the Falmouth fire chief who hand-delivered a letter that was dated March 6, containing a copy of the bylaw. "The letter was addressed to 'Whom it May Concern,' " Mr. Lamson recalled.

He said boat line managers decided they had no choice but to go to court.

The parking lot bylaw was crafted as a safety ordinance permitted under a section of the Massachusetts General Laws. Mr. Lamson said the state law includes a list of exemptions and the SSA is not on the list. But the law predates the 1960 enabling statute for the boat line, he said.

In the complaint filed last week, boat line attorneys quote from the 1999 Bourne case, when the supreme court wrote in part: "The plaintiffs would have us conclude that the Authority has only a narrow governmental purpose which must focus solely on the needs of the permanent residents and economies of Martha's Vineyard and Nantucket and not on the needs of summer residents, tourists and others who make use of the Authority's services. This interpretation is based on a stunted reading of the authority's enabling legislation. . . ."

The complaint also cites a 1986 opinion written by Mr. Duffy that found the SSA is in fact exempt from town zoning bylaws.

"I have reviewed the question of whether or not the Steamship Authority is exempt from the provisions of the Falmouth zoning bylaw," Mr. Duffy wrote. "Since the enabling act for the Steamship Authority . . . provides that the operation and maintenance of a steamship line by the Authority will constitute the performance of an essential government function, it would appear that the issue has been decided and that the Authority is immune from the provisions of the Falmouth zoning bylaw," the town counsel continued.

"I guess he changed his mind," Mr. Lamson said yesterday.

He concluded:

"This isn't a fee; this is a tax - it's an illegal tax. It represents an illegal interference by the town because we are providing an essential governmental function.

"It's a legal question. They feel strongly about their position and we feel equally strongly, or we wouldn't have filed this complaint. So we will see what law trumps the other."