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."