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Follow TURFVA toll opponents dealt blow by State Supreme Court
Tolls are a tax and no longer a user fee once general taxes subsidize the project and when toll revenues from one project go to pay for another corridor/project that those same users don't use. The citizens ought to challenge this ruling since the tolls are clearly a tax under these circumstances.
Toll opponents' attorney: "They're not quitting"
By Dave Forster
The Virginian-Pilot
November 2, 2013
The state’s highest court delivered what appeared to be a knockout blow Thursday to an effort to stop the Elizabeth River tunnel tolls. That evening, about a dozen determined fighters gathered to discuss how they might go another round.
They talked for about two hours, mulling their options and chances for success. Their attorney, Patrick McSweeney, was there, still incredulous over the Supreme Court justices’ reasoning. He had heard their ruling in person, then driven to Portsmouth to counsel his clients.
Ideas ranged from a legislative fix that would require political pressure, to a federal challenge, to hope that voters on Tuesday would elect Terry McAuliffe, the Democratic gubernatorial candidate, whom the toll opponents view as an ally.
Friday morning, McSweeney said he was “working on something” but wasn’t ready to divulge specifics. He was more clear about the resolve of the group.
“They’re not,” he said, “going to quit.”
Before Thursday’s court ruling, the plaintiffs, about three dozen residents and businesses, along with their supporters, had been riding a wave of optimism.
In May, Portsmouth Circuit Judge James A. Cales Jr. had ruled that the tolls, which are scheduled to begin Feb. 1 at the Midtown and Downtown tunnels, amounted to taxes established in violation of the Virginia Constitution, and that the General Assembly had exceeded its authority by granting “unfettered power” to the state highway department to set the rates.
The Supreme Court reversed Cales’ decision, saying that the tolls are user fees, not taxes, and that the General Assembly, through the 1995 Public-Private Transportation Act, had lawfully delegated to the Virginia Department of Transportation the power to impose and set the toll rates.
McSweeney maintains that not even the General Assembly had the authority to set those toll rates, let alone delegate that power. The authority to set toll rates that will generate a profit for a private company running a government-owned facility is the exclusive domain of the State Corporation Commission, he argues.
“The court simply didn’t read our brief,” he said.
A federal challenge would likely involve a claim that the state highway department and its private partner did not sufficiently study the impact the tolls would have on Portsmouth, a city with a predominantly minority population and a disproportionately high number of low-income residents.
Nancy Lamartin, a Portsmouth resident who has been researching the option, said the tolls will create a barrier for the poor and disabled to health care, jobs and higher education in Norfolk and Virginia Beach.
“We are being segregated here,” she said.
The tolls are part of the financing for a project that will build a second Midtown Tunnel tube, renovate the Midtown and Downtown tunnels and extend a freeway in Portsmouth. The state’s private partner, Elizabeth River Crossings, will maintain and operate the network of roads until 2070.
The company is authorized to earn an average annual return of 13.5 percent on its investment, which involves a commitment of $272 million in private equity on the $2.1 billion project.
The tolls will be all-electronic, with no booths. They will begin at $1.59 for passenger vehicles during off-hours and $1.84 during peak weekday travel times: from 5:30 to 9 a.m. and from 2:30 to 7 p.m. Trucks will be tolled $4.77 during off-peak times and $7.36 during peak hours.
Users who do not sign up for an E-ZPass transponder will have to pay higher rates. They will be billed via license plate readers.
If motorists eschew E-ZPass but choose to register their license plates and set up an account with Elizabeth River Crossings, they will be billed the base toll rate plus $1.59 each time they cross one of the tunnels.
Those who don’t register their license plates or sign up with E-ZPass will be assessed a $3.18 fee in addition to the base toll rate on every trip. That would bring the cost of using the Downtown or Midtown tunnel to $5.02 for those drivers during peak travel times.
Elizabeth River Crossings plans to roll out a marketing campaign for E-ZPass after Tuesday’s election, said Leila Rice, a company spokeswoman.
A customer service center opened Oct. 7 in Portsmouth, at 700 Port Centre Parkway. Three workers sat behind a marble counter Friday, ready to help callers or walk-in customers.
The center, open from 7 a.m. to 7 p.m., had one customer visit as of 1 p.m. Friday. He wanted to know about adding his motorcycle to his E-ZPass account.
Foot traffic has been building, said Todd Kelley, the program manager for the center.
“I think it was Monday or Tuesday, we had eight,” he said.