Virginia Supreme Court rules against toll opponents in Hampton Roads

By David Tanner, Land Line associate editor | Thursday, October 31, 2013

The Virginia Supreme Court has ruled against truckers and other plaintiffs who challenged the state DOT’s authority to collect tolls on a busy tunnel connecting Norfolk and Portsmouth and apply the proceeds to a broader congestion-relief project in the region.

The high court ruled Thursday, Oct. 31, that the Virginia Department of Transportation acted within its authority to set toll rates on the Downtown Tunnel and partner with a private contractor to collect the tolls for the next 58 years. The DOT and the contractor will use the proceeds to help pay for the $2 billion Elizabeth River Crossing Project, a congestion-relief effort that features subsidized bus transit, roadway improvements to the Martin Luther King Extension, and the construction of a new tunnel tube parallel to the nearby Midtown Tunnel.

A lower court ruled May 1 that the Virginia General Assembly had overstepped its bounds by authorizing VDOT and its hired contractor to collect a toll, going so far as to call the toll an illegal tax.

The Supreme Court ruling overturns the lower court, saying VDOT was within its authority and that the toll meets the criteria of a “user fee” and not a tax as defined in a 1995 law called the Public-Private Transportation Act, or PPTA.

The Supreme Court also considers the Elizabeth River Crossing to be one integrated transportation network and not a series of separate projects as the plaintiffs had claimed.

Attorney Patrick McSweeney represented lead plaintiff Danny Meeks and a group that included small-business truckers in the July 2012 lawsuit filed against VDOT and the Elizabeth River Crossing Project.

McSweeney argued that the users of the Downtown Tunnel have no toll-free alternative and would therefore be hit hard by the new toll once it takes effect early next year. Truckers on their way to and from Hampton Roads could easily rack up thousands of dollars in tolls, he told Land Line in a previous interview. McSweeney could not be reached for comment on Thursday.

Portsmouth Mayor Kenny Wright says he’s disappointed that the Supreme Court’s ruling cited the Public-Private Transportation Act, which he says is flawed.

“It is going to hurt our region here, our economy, because we’re all connected here,” Wright told “Land Line Now.” “Seventy percent of our citizens go through those tunnels just about every day, and some of them don’t have an alternative, so they have to use the tunnel.”

“They’re basing their decision on the PPTA. The PPTA is flawed,” Wright said. “We thought, or at least I thought, that the Supreme Court would have taken a deeper dive into the PPTA like Judge Cales did (in the lower courts).”

Because of the Supreme Court ruling, toll collection will begin as scheduled on Feb. 1, 2014.

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

See related story:
Virginia’s high court to decide whether tunnel tolls are illegal taxes

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