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(Copyrighted and printed with permission of The Suffolk Times) Town: No ferry appeal SOUTHOLD--In the fight against East Hampton, Cross Sound Ferry is on its own. The Town Board this week decided against taking part in the appeal of the South Fork town's code, recently upheld by a federal judge, barring new ferry service from starting there. In an unusual alliance, Southold Town had joined with Cross Sound and Shelter Island Town to challenge the code, based on the claim that East Hampton's 1997 ordinance is both unconstitutional and results in the North Fork and Shelter Island carrying an excessive burden of vehicular traffic. The ferry company plans to continue with the case by filing with the U.S. Court of Appeals for the Second Circuit in Manhattan by Friday's deadline, said Riverhead attorney William Esseks, who represents Cross Sound. The ferry intends to take issue with U.S. District Court Justice Sandra Feuerstein's Dec. 23 ruling, which in part found that any traffic problems experienced locally probably predate the East Hampton ordinance. The judge also declared that the ferry law "was clearly enacted to further a legitimate local purpose: the promotion of the health and safety of East Hampton's residents." North Fork ferry foes say that ruling clears the way for Southold to take a more aggressive stance in limiting future ferry growth here. Councilman Dan Ross said that in abandoning the East Hampton case, the board has agreed to continue with the town's litigation against Cross Sound. "You have to pick your battles," the councilman said. "It seems as though our efforts and assets would best be applied to the direct litigation we have with the ferry, which is seeking to have the ferry company comply with site-plan law, as all other businesses in town are required to do, and which the courts have previously ordered them to do." As to Cross Sound's appeal of the East Hampton decision: "I wish them the best of luck," Mr. Ross said. Supervisor Scott Russell, who was not on the Town Board when the suit was launched, said he's always been uncomfortable with the town's standing with Cross Sound on one case and against the company on another. "The East Hampton suit was well intentioned, but distracted us from what our primary focus should have been, which is to subject Cross Sound Ferry to site-plan review, just like any other business in town," the supervisor said. The town sees a "silver lining" in Judge Feuerstein's ruling in that it upheld a municipality's ability to regulate ferry service. "The judge said everything we said in the other action," Mr. Russell said. "We'll pursue that case." The town's case against Cross Sound, filed in the State Supreme Court last year, seeks to compel the ferry company to submit to the commercial site-plan review process through the Planning Board. The town also is seeking a preliminary injunction, which would require the ferry to return to pre-1995 ridership and service levels. That was the year the ferry introduced the high-speed Sea Jet passenger-only boat. Cross Sound has long argued that the town cannot place limits on a company engaged in interstate transportation. In its response to the town's suit, Cross Sound also said the requested service rollback would create a major financial hardship, forcing the company to close. The town then would be liable for damages is excess of $123 million, the company said. Mr. Esseks said the company's appeal of Justice Feuerstein's ruling is based on its assertion that the East Hampton law impinges on interstate commerce. He said the town's decision to withdraw does not affect the case. "It's a question of law," the attorney said. "Is it violated or not?" Mr. Esseks said the three-judge appeals panel could decide the case before the fall. Whichever side loses has only one remaining legal option: File a petition with the U.S. Supreme Court. Unlike the Court of Appeals, the high court can decide against hearing the case. | ||||||||
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