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."