SSA Wins Injunction To Block New Fees:
Superior Court Judge Upholds Boatline In Standoff With Town of Falmouth Over Open Air Parking Tariffs

By JAMES KINSELLA

The Steamship Authority this week staved off a move by the town of Falmouth to impose monthly fees on the boat line's 3,200 parking spaces in the that town.

On Monday a Dukes County Superior Court judge allowed a preliminary injunction to block the town from imposing the fees. The fees are an offshoot of a bylaw adopted by Falmouth voters last November to regulate open-air pay parking lots.

The bylaw goes into effect May 1.

"I find that granting an injunction is in the public interest," declared the Hon. Herman J. Smith Jr., an associate justice of the superior court, after hearing arguments in the Edgartown courthouse Monday morning.

The Falmouth parking lots generate just under $3 million a year for the boat line. At $2.50 per space per day, the fees would amount to about $75,000 a year. A $300-a-day penalty provision for noncompliance would leave the SSA liable for fines of nearly $1 million a day, if it refused to pay the fees.

SSA general manager Wayne Lamson welcomed the ruling. "We're very relieved that the court saw fit to grant the preliminary injunction, and that we could proceed this summer without the threat of fines and regulation," Mr. Lamson said following the hearing.

Falmouth town counsel Frank Duffy, who argued for the town, said on Monday that the town would not back off from its position that the bylaw applies to the boat line. "The judge entered a preliminary injunction. We're obviously going to honor the notice. The litigation will proceed until we get a final answer," Mr. Duffy said.

Yesterday, however, Mr. Duffy said he plans to meet in executive session with the town's board of selectmen to discuss the ruling and the town's next moves, including whether the town should settle or continue the legal battle.

The complaint and injunction request were filed by the boat line against the town as the start date for the bylaw drew near, and town officials made it clear that they believed the bylaw applies to the SSA.

The town has described the bylaw as a public safety measure. "It is a pro-active measure aimed at avoiding loss of property, loss of life and protecting the environment," town attorneys wrote in their reply to the SSA's motion for a preliminary injunction.

Noting that the boat line has 3,200 parking spaces in Falmouth, the town laid out a scenario in which each space was filled. "Assuming each vehicle parked has 10 gallons of gasoline in its tank, 320,000 gallons of gasoline are stored above ground in the authority lots when those lots are occupied," town attorneys wrote. "By any standard, that is a significant amount of volatile fuel." Attorneys also cited recent language from the Coast Guard and the Department of Homeland Security, who found that passenger ferry operations pose "the greatest threat of terrorism in maritime transportation."

In late February, Mr. Duffy informed the SSA that the town intended to enforce the bylaw against the boat line starting May 1.

Because it is a state agency, the SSA is not required to comply with local zoning bylaws.

On March 17, the SSA sent a letter to the town, questioning its right to enforce the bylaw against the boat line. A meeting April 7 between boat line representatives and the Falmouth board of selectmen failed to resolve the dispute. On April 19, the boat line filed the complaint against the town and its fire chief.

SSA special counsel Michael Vhay of Piper Rudnick in Boston, argued in the complaint that the parking fee is an illegal tax.

In arguments Monday, Mr. Vhay said parking is an essential part of the boat line's governmental function, which is to provide marine transportation between the mainland and the Islands of Martha's Vineyard and Nantucket. He said the state Supreme Judicial Court had reached that conclusion in another case brought by the town of Bourne seven years ago.

Mr. Duffy argued that the court was required to deny the proposed injunction in the name of public safety. He also noted that the state law used to craft the town bylaw does not expressly exempt the Steamship Authority, although it does exempt regional transit authorities and the Massachusetts Bay Transportation Authority. The law was written before the Steamship Authority was created by an act of the state legislature in 1960.

Judge Smith remained skeptical, and pointedly cited the Bourne case as he questioned attorneys.

Mr. Duffy replied that the Bourne case turned on a zoning issue, while the issue in dispute is one of business regulation.

In the end Judge Smith concluded that any harm in granting the injunction would be far less to the town of Falmouth, compared to the harm that could fall on the SSA by failing to grant an injunction.

Following the hearing, Ahmed Mustafa, chairman of the Falmouth board of selectmen, said he did not question the authority of the superior court. "It's all within the court's authority," Mr. Mustafa said.

SSA general counsel Steven Sayers said if the boat line had not obtained the injunction, it had considered making parking at the lots free, until the dispute was resolved.

Mr. Sayers said the boat line wants an amicable resolution to the dispute with the town where the SSA has operated for 45 years. He would not comment on whether settlement discussions are underway.

"This is a marriage to the town of Falmouth," Mr. Sayers said. "We're not going to let small disagreements get in the way of a long-term relationship. We want to make it to our golden anniversary."