Virginia's high court to decide whether tunnel tolls are illegal taxes

By David Tanner, Land Line associate editor | 9/12/2013

Attorneys for a group of plaintiffs that includes truckers continue to claim that the collection of tolls on one facility to help pay for another facility is a form of taxation and therefore unconstitutional.

The case brought by attorney Patrick McSweeney in the Virginia court system related to a tolled public-private partnership in the Hampton Roads area currently resides with the Virginia Supreme Court.

McSweeney’s clients filed a lawsuit in July 2012 that challenges the reinstatement of tolls on the Downtown Tunnel to pay for a new tunnel tube and improvements to a nearby roadway. A lower court judge ruled that tolls are taxes and therefore unconstitutional, but attorneys for the commonwealth and the private group contracted to complete the Elizabeth River Crossing appealed.

“It amounts to taxation,” McSweeney stated following a hearing by Supreme Court justices on Sept. 11.

“In addition, these folks who have the Downtown Tunnel maintained and operated by the state using tax revenues which our folks contribute to will now be double taxed,” he said, “because they have to pay this private company for the same privilege. So any notion that they’re benefited by this is fallacious.”

The Supreme Court justices said they would most likely rule in November.

Back in May, Circuit Court Judge James Cales Jr. ruled that the General Assembly of Virginia “exceeded its power” by authorizing the project contractor to set toll rates.

Should the project go ahead as planned, tolls collected on the Downtown Tunnel would pay for a new Midtown Tunnel tube, an interchange and an extension of the Martin Luther King Freeway connecting to Interstate 264.

Attorneys for the commonwealth argue that the tolls pay for a single transportation project that benefits the region and do not believe the Downtown Tunnel fare amounts to a tax.

McSweeney disagrees, saying his trucking clients will not benefit from the project despite paying the toll.

“There’s no direct service improvement, no capacity increase for my clients – the plaintiffs in this case – I believe,” McSweeney said.

“Land Line Now” News Anchor Reed Black contributed to this story.

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