Francarl Realty Corp. v. Town of East Hampton

• Decision Date: 12 June 2009
• Docket Number: No. 05-CV-1792 (SJF)(WDW).,05-CV-1792 (SJF)(WDW).
• Citation: 628 F.Supp.2d 329
• Parties: FRANCARL REALTY CORPORATION, Viking Star, Inc., Viking Starship, Inc., Viking Quest, Inc., Viking Good Times, Inc., Paul G. Forsberg, Sr., Hank Lackner, George Shiminski, William J. Modica, Strettle F. Whitting, and William Grimm, Plaintiffs, v. The TOWN OF EAST HAMPTON, Defendant.
• Court: U.S. District Court — Eastern District of New York

628 F.Supp.2d 329

FRANCARL REALTY CORPORATION, Viking Star, Inc., Viking Starship, Inc., Viking Quest, Inc., Viking Good Times, Inc., Paul G. Forsberg, Sr., Hank Lackner, George Shiminski, William J. Modica, Strettle F. Whitting, and William Grimm, Plaintiffs, v. The TOWN OF EAST HAMPTON, Defendant.

No. 05-CV-1792 (SJF)(WDW).

United States District Court, E.D. New York.

June 12, 2009.

COPYRIGHT MATERIAL OMITTED

Steven Barshov, Ashley S. Miller, Sive, Paget & Reisel, P.C., New York, NY, for Plaintiffs.

Adam D. Orford, Michael B. Gerrard, Arnold & Porter LLP, New York, NY, Richard C. Cahn, Cahn & Cahn, LLP, Melville, NY, for Defendant.

OPINION & ORDER

FEUERSTEIN, District Judge.

I. Introduction

Suffolk County, New York (the "County") is the easternmost county on Long Island, separated from Connecticut on the north by Long Island Sound and bordered on the west by Nassau County.¹ The County divides into two "forks" in the Town of Riverhead. Located between the two forks is an island, the Town of Shelter Island.

The northern fork, (the "North Fork"), contains, inter alia, the Town of Southold, which is comprised of, inter alia, the Villages of Greenport and Orient Point.

The southern fork, (the "South Fork"), contains, inter alia, the Defendant Town of East Hampton ("Town" or "Defendant"), which is comprised of the Village of East Hampton, a portion of the Village of Sag Harbor and a number of unincorporated hamlets, including Montauk, the easternmost area of the Town. The Town is twenty-two (22) miles long and its width, north to south, ranges from three-quarters (3/4) of a mile to six (6) miles. East Hampton is bounded to the South by the Atlantic Ocean; to the North by Gardiner's Bay, Long Island Sound, and Block Island Sound; and to the East by the Atlantic Ocean and Block Island Sound. The main east to west artery, Montauk Highway or Route 27, provides one (1) traffic lane in each direction.

Plaintiff Francarl Realty Corporation ("Francarl") owns and operates a ferry terminal ("Ferry Terminal") located on commercial waterfront property in the hamlet of Montauk. Francarl also owns the abutting land, which it utilizes as a parking area.

Viking Star, Viking Starship Inc., Viking Quest, Inc., and Viking Good Times, Inc. (collectively "Viking") own, operate and manage the vessels Viking Star, Viking Starship, Viking Starliner, and Royal Casino I ("Viking Ferries"), respectively. Viking provides passenger ferry service between the Ferry Terminal, and "various points and places outside of New York State, including but not limited to New London, Connecticut; Block Island, Rhode Island; and Martha's Vineyard, Massachusetts." (Compl. ¶ 11.)

Plaintiff Paul Paul G. Forsberg, Sr. is the principal of both Francarl and Viking (collectively with Mr. Forsberg, "Plaintiff').²

Although Viking's ferry service is the only ferry service operating to and from East Hampton, travel between Connecticut and East Hampton can also be effected between Bridgeport, Connecticut and Port Jefferson by the passenger-vehicle ferry of the non-party Bridgeport-Port Jefferson Steamboat Company, (see www. bpjferry.com).³ A bus⁴ or car may be taken between East Hampton and Port Jefferson, a distance of sixty-five and one-half (65.5) miles.

Non-party Cross Sound Ferry Services ("CSF") also provides vehicle and passenger ferry service between Orient Point on the North Fork and New London, Connecticut. (See www.longislandferry.com.) Passengers utilizing the CSF service who wish to proceed south to East Hampton from Orient Point may drive or take a bus or train six (6) miles west to Greenport, take a ferry to the Town of Shelter Island (fifteen (15) minutes), drive (five (5) miles) to the southern end of the Town of Shelter Island and take a ferry to Sag Harbor (five (5) minutes), which straddles the border between the western end of East Hampton and the eastern end of the Town of Southampton. Shelter Island ferry service is provided by non-parties North Ferry Co. (Greenport-Shelter Island) and South Ferry Inc. (Shelter Island-Sag Harbor). (See www.northferry.com; www.southferry. com.)

Travel to East Hampton can also be effected by rail, plane or bus from New York City. (See www.easthampton.com/ other/transportation.html.)

Beginning in 1966 officials on the eastern end of Long Island recognized burgeoning transportation problems in the region. Myriad studies, reports and conferences confirmed that inadequate roads and an increasing population were creating escalating traffic congestion in the area, particularly in the summer months.

Studies contemplating the growth of the eastern end, of Long Island, potential traffic and land use concerns were commissioned by different entities and agencies, including the New York State Department of Transportation, which issued the South Fork Transportation Study in 1986. (See Joint Trial Exhibits ("Ex.") at 4.) Other studies followed, (see Exs. 1, 2, 3, 80, 81, 82, 86), all of which recognized the area's increasing traffic congestion, increasing population and the dearth of roads in the area which could accommodate, or be made to accommodate, the traffic load. A 1990 "Ferry Access Study" commissioned by Suffolk County cited Shorham-Wading River as the only suitable site for additional ferry service from New England. (Ex. 29.) In 1995, East Hampton commissioned the Amagansett Corridor Study. (Ex. 79.) The draft study, published in 1997, recommended restricting both building and land use in East Hampton.

In 1995, L.K. McLean Associates, an engineering consulting firm, was commissioned by the Town to draft the Town's Comprehensive Transportation Plan. A moratorium on all ferry service and ferry terminal applications was adopted on October 24, 1995 pending the issuance of the proposed plan and consideration of the plan by the Town Board. The resulting Comprehensive Transportation Plan contained a Transportation Element (the "Transportation Element") which recommended, inter alia, against institution of increased or additional ferry service. (Ex. 84.) Public hearings were held, culminating in the adoption of the Transportation Element of the Town's Comprehensive Plan on August 21, 1997.

Local Law No. 40 of 1997 (the "Ferry Law")⁵ was adopted, becoming operative on January 13, 1998. The Town Code Definitions include, inter alia:

EXCURSION BOAT—A vessel used on a commercial basis to take passengers to sea from any port or place within the Town of East Hampton and which returns those passengers to the point of origin without an intervening stop at any port or other land not located in the Town. As used herein, the term `to sea' shall mean into any harbor, bay or other waters within or adjoining the Town of East Hampton, including the Atlantic Ocean. This term shall include a vessel employed on a commercial basis for party-fishing trips (commonly called a `party boat'), a vessel used for sight-seeing trips or tours (e.g., a whale-watching boat), a dinner cruise vessel or a vessel employed on gambling trips outside the territorial waters of the State of New York. Compare `ferry.' [Added 12-18-1997 by L.L. No. 40-1997]

FERRY-A vessel used in the business of carrying passengers between any port or place in the Town of East Hampton and any other port or place without the Town. Compare `excursion boat.' [Added 12-18-1997 by L.L. No. 40-1997]

EXPANSION, SUBSTANTIAL [Amended 10-16-1987 by L.L. No. 15-1987; 11-15-1996 by L.L. No. 19-1996];

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B. Use. A substantial expansion of a use shall be deemed to occur in either of the following circumstances:

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C. Passenger ferry terminals. In addition to the other provisions of this subsection regarding substantial expansion of structures or uses, a substantial expansion of a passenger ferry terminal shall be deemed to result from any increase in ferry passenger capacity, as defined in this chapter. Such increase shall be regarded as a substantial expansion regardless of its magnitude and regardless of whether it is due to an increase in the number of ferries using the terminal, the replacement of one ferry with another having a larger capacity, an increase in the capacity of an existing ferry, an increase in the number of ferry trips daily or other cause. [Added 12-18-1997 by L.L. No. 40-1997]

FERRY PASSENGER CAPACITY— The number of persons which a vessel used as a terry may lawfully carry as passengers, under the rules and regulations of the United States Coast Guard or other regulating authority then in effect (emphasis added) As applied to a passenger ferry terminal, this term shall mean the maximum number of passengers which could have departed from the terminal on publicly scheduled trips under a `best-day' condition. Ferry passenger capacity for a ferry terminal under a `best-day' condition shall be calculated as follows: (1) determine the passenger capacity of any terry departing from the terminal on a given calendar day (midnight, to midnight); (2) multiply this passenger capacity by the number of departures made by that ferry from the terminal on that day; and' (3) add to this number the products of (1) times (2) for every other ferry departing from the terminal on that same day. The use of this formula shall be subject to the following provisos: [Added 12-18-1997 by L.L. No 40-1997; amended 2-9-1999 by L.L. No. 6-1999]

A. The day used in making this calculation shall be that which yields the highest number for the terminal's ferry passenger capacity (i.e., the `best day' in terms of the potential number of ferry passengers departing the terminal on publicly scheduled trips).

B. Each ferry whose departure is used in making this calculation shall be a ferry which regularly docks at or uses the ferry terminal, (emphasis added).

C. Each departure used in making this calculation shall be a bona fide ferry departure open to the public and shown on the ferry terminal's published sailing schedule.

Town Code, Art. I, General Provisions, § 255-1-20,...