Virginia judge rules tolls are taxes

By David Tanner, Land Line associate editor | Thursday, May 02, 2013

A circuit court judge in Virginia has ruled that the state DOT cannot impose tolls on two existing tunnels to pay for construction of a third tunnel or freeway improvements that accompany the Elizabeth River Crossing Project in the Hampton Roads region.

Portsmouth Circuit Court Judge James Cales Jr. ruled in favor of a group of individual plaintiffs on Wednesday, May 1. The group consists of business owners and area residents, including numerous truckers and small trucking companies who filed a lawsuit in July 2012 against the Virginia Department of Transportation and a contractor hired to complete the Elizabeth River Crossing Project.

That project calls for the currently toll-free Downtown and Midtown tunnels that connect Portsmouth and Norfolk to be tolled to pay for a new tunnel adjacent to the Midtown and a number of highway improvements including an interchange and an extension of the Martin Luther King Freeway to Interstate 264.

“… the Court is of the opinion that the bundling of the Downtown Tunnel with the Midtown Tunnel and the Martin Luther King Freeway Extension was a bundling solely to produce revenue,” Judge Cales stated in his ruling.

“The General Assembly has exceeded its power by ceding the setting of toll rates and taxes in violation of (the Virginia Constitution). … The General Assembly has given unfettered power to the Department of Transportation to set toll rates without any real or meaningful parameters.”

Attorney Patrick M. McSweeney says the plaintiff group he represents did not win on every count in the lawsuit, but “won on the one that mattered.”

“The primary count was a challenge to the tolls themselves, and the use of the proceeds on one facility for the construction of another facility,” McSweeney told Land Line. “An unelected authority cannot impose a tax.”

According to a project spokeswoman, a toll for a five-axle truck to access the Downtown or Midtown tunnels would run $4.77 for an off-peak trip and $7.36 for a peak trip.

McSweeney says that is unacceptable to his clients, many of whom run numerous trips per day.

“We have small trucking companies in Hampton Roads … the kind that would be very much hurt by a toll increase,” he said.

McSweeney says he took the case after being contacted by some area lawmakers who were upset about VDOT’s attempt to impose the tolls. An initial meeting drew more than 750 people, and McSweeney had to narrow down a large list of potential plaintiffs to get the case filed.

Attorneys for the commonwealth plan to file an appeal to the Supreme Court of Virginia within three months, a spokesman for the attorney general said.

“The revenues raised through the tunnel tolls were user fees to be used solely for a single transportation project,” said Brian Gottstein, director of communications for Virginia Attorney General Kenneth Cuccinelli II.

“As such, we still believe the tolls cannot be considered a tax and that it is completely within VDOT’s authority to set reasonable tolls to pay for the construction, operation, and maintenance of the project,” Gottstein said. “Certainly, we are disappointed with the court’s decision. We will appeal.”

VDOT has been planning to impose tolls on Feb. 1, 2014. Without a stay by the court or a ruling by the Supreme Court of Virginia, that won’t happen.

Gottstein said that if Judge Cales’ ruling stands, the use of public-private partnerships to construct major transportation projects will be threatened.

To appeal, the commonwealth must convince a panel of three Supreme Court judges to allow the full court to hear the case.

See related story:
Virginia court hears taxpayer case against tunnel tolls

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