Judge backs East Hampton on traffic concerns
(06/18/2009) A lawsuit by the Viking Ferry of Montauk challenging East Hampton Town’s ban on vehicle and high-speed ferries has been dismissed on appeal in federal court.
Judge Sandra J. Feuerstein of Eastern District Court issued a decision on Friday in the town’s favor. The Viking case began in 2005. A similar challenge to the town’s law was first filed in 2004 by the Cross Sound Ferry company and Southold and Shelter Island Towns; it was eventually dropped.
The town’s ferry law, which bans the docking in East Hampton Town of vehicle ferries and of high-speed ferry boats, was adopted in 1997. A component of the section of an updated town comprehensive plan addressing transportation, it went into effect in early 1998.
The law was based on traffic studies that indicated that vehicle or high-speed ferries could intensify traffic and the burden on town roads.
Both Viking and Cross Sound claimed in their lawsuits that the law violates constitutional statutes against unfairly restricting interstate commerce.
Cross Sound Ferry, which runs boats between Orient Point and Connecticut, had been contemplating a terminal on the South Fork, but its case against East Hampton Town was dismissed in 2005. The Towns of Southold and Shelter Island, through which the cars that use the Orient Point ferry pass, declined to pursue an appeal.
In that case, as in the Viking lawsuit, the appeals court upheld the dismissal of most of the lawsuit’s claims. However, the court ruled in both cases that a trial could proceed on one issue: whether the town’s ferry ban unlawfully restricts interstate commerce. In September 2008, Cross Sound agreed to drop its case, but Viking proceeded.
The trial focused on whether the town’s legitimate public interests in enacting the ferry law outweigh any negative effect it may have on interstate commerce, which is protected by the Constitution.
Testifying during the four-day trial in February were Paul G. Forsberg Sr., whose father founded the Viking business in 1951, and, for the town, Lisa Liquori, a former town planning director, and Raymond DiBiase, a civil engineer who was described in the court decision as the principal author in 1997 of the transportation section of the town’s comprehensive plan.
Mr. DiBiase described to the court the procedure he used in analyzing potential traffic generated from ferry operations in the town. The judge found Mr. DiBiase’s testimony “entirely credible.”
Ms. Liquori’s testimony addressed the traffic and road conditions in East Hampton Town, the effect on traffic of ferry terminals here, and the data used to compile the comprehensive plan.
In her decision, the judge notes that Mr. Forsberg himself acknowledged increasing traffic congestion in the town. She cited a statement, posted on the Viking Ferry’s Web site in 2006, that advised ferry customers to “please, please, please allow enough time to get to Montauk and park your car,” as “summer traffic can be very heavy.”
The town, the judge said, “amply demonstrated the connection between high-speed and vehicle ferry service, and increased traffic in the town.”
Judge Feuerstein found that Mr. Forsberg failed to provide evidence to support several of his assertions, such as statements regarding the impact of the ferry law on his business and on businesses at potential ferry destinations, such as Block Island.
In her written decision she said that the “sole evidence” presented by the plaintiff of the law’s impact on interstate commerce was Mr. Forsberg’s testimony that “the fact that fast ferries cannot utilize the Montauk dock results in seasickness to his passengers and a loss of tourism on Block Island and in other ports to which he would bring additional passengers or commence new routes.”
“The alleged impact upon interstate commerce was essentially an impact upon only Plaintiff’s business, as it operates the sole ferry terminal in the town,” the judge wrote.
In addition, she said in her decision, Mr. Forsberg contradicted himself when providing information on different occasions, including at the town’s public hearing before the ferry law’s adoption, in an affidavit, and during his trial testimony.
“In sum,” Judge Feuerstein wrote, “Mr. Forsberg’s testimony was inconsistent and unsubstantiated and contrary to . . . his own prior testimony, affidavits, and Web site.”
“I’m very pleased with the comprehensive, well-researched decision by Judge Feuerstein and I believe that this was absolutely the correct result,” Richard Cahn, the attorney who represented East Hampton Town in the lawsuit, said on Tuesday.
“The town has faced serious traffic congestion problems for decades, and these problems have been recognized and studied by the state, regional planners, and the county,” he said. “The judge correctly recognized that issue of extreme concern to the environment of the South Fork.”
The attorney representing Viking Ferry, Steven Barshor of Sive, Paget, and Reisel, did not return a call for comment yesterday.