A Lawsuit Rocks the Boat On Ferry Limits, Southold, Shelter Island, ferry company sue town

Originally published September 09, 2004

The Towns of Southold and Shelter Island teamed up with the Cross Sound Ferry company to file a federal lawsuit against East Hampton Town yesterday, challenging its prohibition on car ferries and its restrictions on passenger ferries.
Only one day before, East Hampton Town Board members had been expressing their "glee" upon learning that proposals to add two passenger ferries in East Hampton had been dropped from consideration by the federally financed Long Island Waterborne Transportation Plan study.

Filed in federal court, the lawsuit seeks to invalidate the East Hampton zoning laws that prohibit vehicle ferries and restrict passenger ferries. Passenger ferry terminals are allowed by special permit only in waterfront zones, and the town limits the type and speed of boats that can be used. Vehicle ferry terminals have been prohibited outright since 1997.

Cross Sound, which runs car ferries between Orient Point and New London, Conn., has been trying to add a South Fork terminal for years. Stanley Mickus, the company's marketing director, said in February that East Hampton had been targeted since the 1980s.

The plaintiffs are also requesting an injunction preventing East Hampton from enforcing its laws while the lawsuit is reviewed.

The towns and the ferry service claim that East Hampton's ferry laws "are an abuse of East Hampton's police power under state law, by their failure to consider the needs of the region," according to a release distributed by Southold Town Supervisor Josh Horton.

They also claim the laws are unconstitutional in that they impermissibly regulate and discriminate against interstate commerce, and also discriminate against maritime transportation.

Mr. Horton said he and Town Supervisor Art Williams of Shelter Island are calling for regional and interstate transportation equality, which they call RITE. East Hampton's ferry laws, they say, force Southold and Shelter Island to shoulder a disproportionate burden of the traffic between New England and the East End, increasing traffic as well as the need for police, emergency, and other services.

"Sounds a little like grandstanding to me," East Hampton Town Supervisor Bill McGintee said yesterday of Mr. Horton's statements.

Shelter Island and Southold Towns are represented by their own town attorneys. Bill Esseks, an attorney with Esseks, Hefter and Angel of Riverhead, is representing the ferry company.

"This is major constitutional, landmark litigation," Mr. Esseks said yesterday. "The question is, can East Hampton say, we only want to accept traffic by road; we don't want to accept it by ferry?" He expressed confidence that the lawsuit would be successful based on previous litigation and historic precedent.

"We're going to win on protectionism, we're going to win on the commerce clause, and we're going to win on equal protection," Mr. Esseks said.

Laura Molinari, the East Hampton town attorney, said yesterday morning that she would reserve comment until she had reviewed the lawsuit, which the town had not yet received. But she expressed confidence that East Hampton's laws would stand. "We will fight this lawsuit," she said.

Calls for a South Fork-to-Connecticut ferry have arisen periodically for years. The discovery earlier this year by East Hampton Town officials and residents that the Long Island Waterborne Transportation Plan, a regional transportation study commissioned by the New York Metropolitan Transportation Council and two Connecticut planning agencies, contained a suggestion to look into putting car ferry terminals at Fort Pond Bay in Montauk and on Napeague state land, prompted an outcry and insistence, at public meetings, that the ideas be dropped.

The Southold and Shelter Island supervisors complained that East Hampton was unfairly barring a regional solution to traffic woes borne largely by their towns.

In his press release Mr. Horton said that such regional traffic studies have, "in the face of not-in-my-backyard (NIMBY) opposition," yielded little progress.

"That is why the leaders of Shelter Island and Southold Town have decided to take this issue out of the clutches of politically driven studies and place it in the trustworthy hands of the United States Federal Court," Mr. Horton wrote.

In April, Mr. Horton told his attorneys to examine the East Hampton ferry legislation for flaws with an eye to having it overturned, and they demanded related documents from the East Hampton to review under the Freedom of Information Law.

East Hampton fired back with a request of its own for documents pertaining to Southold's approval of an expansion of the Cross Sound Ferry terminal at Orient Point.

The idea of a Connecticut-South Fork ferry also arose briefly in 2001, when Citizens for a South Fork Ferry, a Shelter Island group concerned about traffic, and County Legislator Michael Caracciolo, whose district covers the North Fork and Shelter Island, reopened discussions with the Cross Sound Ferry company and attempted to drum up public support.

When the Sustainable East End Development Strategies planning initiative, or SEEDS, began in 2002, the East Hampton Town Board insisted that it discount any car ferry services in the town, pointing out that a ban on car ferries was already on the books. The town threatened to withdraw from the regional study if proposals for East Hampton car ferries were included. Mr. Horton threatened to have Southold withdraw if they were not.

JoAnne Pahwul, the assistant town planning director, who has been attending transportation study meetings, reported to the town board on Tuesday that the two East Hampton-based ferry proposals had been dropped from further consideration in the Waterborne Transportation Plan.

"Let's just be thankful and grateful that what the people of the town did by going up there, and what we did, came up with a good result for us," commented Councilman Pete Hammerle. The board agreed to send a letter to the waterborne transportation plan study group, "thanking them for listening to us and the citizens of our town."

Still to be examined in the transportation plan, however, are a proposal that one additional passenger-only trip between Montauk and New London be added daily, in season, to the schedule of the Viking Ferry in Montauk, and the idea of a passenger-only water taxi that would make a North Fork-South Fork loop, with stops in Orient, Greenport, Riverhead, Shinnecock, Sag Harbor, and Montauk.

East Hampton Town Board members asked the Planning Department and town attorneys to review those ideas and prepare a memo outlining their legality and ramifications.