Town of Southold v. Town of East Hampton

• Decision Date: 08 February 2007
• Docket Number: Docket No. 06-0335-CV.
• Citation: 477 F.3d 38
• Parties: TOWN OF SOUTHOLD, Town of Shelter Island, Plaintiffs, Cross Sound Ferry Services, Inc., Plaintiff-Appellant, v. TOWN OF EAST HAMPTON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

477 F.3d 38

TOWN OF SOUTHOLD, Town of Shelter Island, Plaintiffs Cross Sound Ferry Services, Inc., Plaintiff-Appellant, v. TOWN OF EAST HAMPTON, Defendant-Appellee.

Docket No. 06-0335-CV.

United States Court of Appeals, Second Circuit.

Argued: September 15, 2006.

Decided: February 8, 2007.

William W. Esseks, Esseks, Hefter & Angel LLP, Riverhead, NY, for Plaintiff-Appellant.

Michael B. Gerrard (Katrina F. Kuh, on the brief), Arnold & Porter LLP, New York, NY, for Defendant-Appellee.

Before CARDAMONE, MINER, and STRAUB, Circuit Judges.

MINER, Circuit Judge.

Plaintiff-appellant Cross Sound Ferry Services, Inc. ("Cross Sound") appeals from a summary judgment entered in the United States District Court for the Eastern District of New York (Feuerstein, J.) in favor of defendant Town of East Hampton ("East Hampton" or the "Town"). Cross Sound and plaintiffs Town of Southold and Town of Shelter Island (collectively, "Town Plaintiffs") brought this action seeking a declaration that Local Law No. 40 of 1997 of the Town of East Hampton (the "Ferry Law"), which requires ferry operators to obtain a special permit before using a ferry terminal within the Town and restricts the types of ferries that may use local terminals, is unconstitutional. Plaintiffs alleged in their Complaint that the Ferry Law violates the dormant Commerce Clause and Equal Protection Clause of the United States Constitution, as well as the Equal Protection Clause of the New York State Constitution. Plaintiffs also claimed that the law constitutes an improper and abusive exercise of the Town's police power under the laws and Constitution of New York and sought to enjoin its enforcement.

Following joinder of issue, the Town moved for summary judgment dismissing the Complaint pursuant to Federal Rule of Civil Procedure 56. Plaintiffs cross-moved for summary judgment on each cause of action in the Complaint except for their police power claim. Plaintiffs further moved to strike the Town's Rule 56.1 Statement, contending that it was based on inadmissible evidence. The District Court granted the Town's motion and denied plaintiffs' cross motion and their motion to strike the Rule 56.1 Statement. For the reasons that follow, we vacate the judgment of the District Court insofar as it determined that the Ferry Law did not violate the dormant Commerce Clause and remand for further proceedings consistent with this Opinion. We affirm the judgment in all other respects.

BACKGROUND

Cross Sound is a Connecticut-based corporation that provides interstate ferry service transporting passengers, vehicles, and freight between terminals and docking facilities located in New London, Connecticut and Orient Point in Suffolk County, Long Island. Cross Sound operates seven vehicular ferries that can accommodate vehicles such as buses, trucks, and motor homes together with passengers, as well as one high-speed ferry that carries only passengers and is capable of traveling at greater speeds than vehicular ferries. Cross Sound desires to expand the geographical scope of its operations by instituting ferry service from its existing facilities in New London to those located in the Town of East Hampton. However, the Town of East Hampton currently limits access to its local terminals pursuant to the Ferry Law, a local zoning ordinance prohibiting ferry operators from landing any vehicular or high-speed ferry within the Town, except in cases of emergency. Inasmuch as the Ferry Law would preclude Cross Sound from providing any ferry service in the Town except for low-speed, passenger-only service, Cross Sound's challenge to the law is before us in this appeal.

I. Geographical Backdrop

Long Island is an island in the Atlantic Ocean that comprises the southeastern most part of New York State. The island juts out eastward from the harbor of New York City for 118 miles and lies parallel to the southern shore of Connecticut, from which it is separated to the north by Long Island Sound. Suffolk County occupies the easternmost portion of Long Island and is bordered to the west by Nassau County. At its eastern end in the Town of Riverhead, Suffolk County splits latitudinally into two peninsulas known as the North and South Forks, which are separated by Shelter Island Sound. The Town of Shelter Island is an island located in between the forks. The North Fork contains, inter alia, the Town of Southold, which encompasses Orient Point and the Village of Greenport. The South Fork contains, inter alia, the Town of East Hampton. East Hampton, in turn, consists of the Village of East Hampton, a part of the Village of Sag Harbor, and a number of unincorporated hamlets, including Montauk in the easternmost region. The main east-to-west artery, Route 27 or Montauk Highway, provides one traffic lane in each direction throughout most of the Town of East Hampton.

II. Ferry Service on Long Island

Cross Sound provides vehicular and high-speed passenger ferry service between New London and Orient Point on the North Fork. Passengers on Cross Sound's service who wish to proceed further south from Orient Point to East Hampton may take a car, bus, or train 6 miles west to Greenport, board a vehicular ferry to Shelter Island (15 minutes), drive to the southern end of Shelter Island (5 miles), and take another vehicular ferry to Sag Harbor (5 minutes), which straddles the border between the western end of East Hampton and the eastern end of the Town of Southampton. Travel between Connecticut and East Hampton also can be effected by taking a vehicular ferry from Bridgeport, Connecticut to Port Jefferson on the northern shore of Long Island (75 minutes) and then driving to East Hampton (52 miles). In addition, passengers can use the seasonal ferry service between New London and Montauk during May through September.

III. The Transportation Element and the Ferry Law

The Town of East Hampton has been a premier summer resort for many years. The Town's summertime population has experienced substantial growth since 1970 and increases each year to four or five times the year-round population due to tourism and the presence of seasonal homes. Because travel through East Hampton occurs mainly by way of the Montauk Highway, traffic volumes on the highway during summers are currently at or near capacity. Moreover, traffic on other Town roads during the summer months is rising rapidly at an average rate of 8% per year.

In light of these burgeoning traffic problems, the Town Board of East Hampton ("Town Board" or the "Board") became increasingly concerned with the resulting "serious threat to public health and safety and to the economic vitality and general livability of the Town." In particular, the Board recognized that increased road congestion would be exacerbated by proposed changes to ferry service on the eastern end of Long Island occasioned by the presence of large casinos near New London, Connecticut and the technological developments in the speed and carrying capacities of ferries.

In 1995, the Board imposed a moratorium on the establishment of new ferry service until a comprehensive transportation plan could be completed and thereafter commissioned the first town-wide transportation study since 1966. Following two public hearings, the Board adopted the study as the Transportation Element of its Comprehensive Plan. The Board found that the study confirmed what Town residents already knew: "summertime road traffic in East Hampton has become so heavy as to undermine the Town's rural atmosphere, create very inconvenient and even dangerous driving conditions on the Town's roads, and generally diminish the quality of life heretofore enjoyed by residents and visitors alike." Specifically, the Transportation Element revealed that "[c]ongestion occurs along Route 27 . . . as through traffic competes for available highway capacity with traffic destined for business areas. Particularly in the Village of East Hampton, traffic is slowed when vehicles enter and exit on-street parking spaces, sometimes blocking through traffic for a significant period of time." Recognizing that "there is minimal potential for the existing highway system to accommodate existing traffic, let alone future traffic generated by natural growth and new private developments," the Transportation Element concluded that "a new ferry has the potential to cause a significant degradation in levels of service at roadway intersections providing access to a new terminal site. In many cases, these levels are already poor. As a result, it is recommended that this ferry service not be instituted."

In addition, the Transportation Element evaluated the potential environmental impact of increased traffic in the Town and recommended against the institution of the ferry service on that basis:

[A]ny potential traffic increases on the roadway network providing access to a new ferry terminal will directly impact the environment. This impact will include generation of additional vehicle pollutants and noise. This generation of additional air pollutants is of particular concern, due to the classification of the Nassau-Suffolk Region as a "severe non-attainment" area for ozone, and a "moderate non-attainment" area for carbon monoxide, as a result of the Federal Clean Air Act Amendments of 1990. . . . The extent of pollutants generated is directly related to average speeds of vehicles on any particular roadway. Any traffic increases on a roadway will lower the average speeds, usually . . . resulting in an increase in vehicle emissions.

More vehicular noise is generated by acceleration and deceleration than by travel at constant speeds.

The Board also considered studies showing that high-speed ferries create larger waves that pose safety concerns for boaters and swimmers and have high fuel consumption and air emissions. Finally, the Board recognized that the need for a special use permit even for conventional passenger ferries had become acute in light...