RICHMOND, Va. — Tolls on two existing tunnels to help pay for a new one in traffic-choked Hampton roads are legally imposed "user fees" because motorists traveling the old tunnels would benefit from reduced congestion, an attorney for the state's private partner on the project told the Virginia Supreme Court on Wednesday.
Stuart C. Raphael, attorney for Elizabeth River Crossings, urged the justices to overturn a Portsmouth judge's ruling that the tolls are really an unconstitutional tax. Only the General Assembly can levy taxes, and Circuit Judge James A. Cales Jr. ruled in May that lawmakers improperly ceded that authority to the Virginia Department of Transportation on the $2 billon project with ERC.
The company signed a deal with the transportation department in 2011 to build a second Midtown Tunnel tube between Portsmouth and Norfolk and renovate the existing Midtown and Downtown tunnels. The company would maintain and operate the tunnels, as well as a local freeway extension, until 2070. Tunnel tolls would start at nearly $2 in February and increase over time.
In his decision, Cales ruled that the transportation department bundled the projects "solely for revenue-producing purposes."
"You don't charge users of one facility to pay for another," Patrick McSweeney, attorney for the residents who filed the lawsuit, told the justices.
He said motorists on the existing tunnels "have to get something back proportional to the burden they are carrying, and that's not the case here."
Raphael, who argued that the tunnels are "functionally interconnected," disagreed.
"They get a 30-minute reduction in their round trip," he said. "That's a huge benefit."
McSweeney said that if the justices accepted Raphael's rationale, there would be no practical limit to the "bundling" of projects financed by tolls.
John McGlynn of Portsmouth, one of dozens of toll opponents who packed the courtroom and two video-fed overflow rooms for the hourlong hearing, said in a later interview that he disapproved of the way lawmakers denied the public a voice by giving the transportation department and the company power to decide the tolls.
"Overall, the way the whole thing has been rammed down people's throats is wrong," said McGlynn, 68. "Our state government has abdicated its responsibility for making decisions on how to adequately fund this. The people didn't have a say."
The transportation department and Elizabeth River Crossings say that if Cales' ruling stands, it would dismantle a 167-year-old procedure for setting tolls and put other ongoing and future transportation projects in jeopardy.
Work on the tunnel projects is continuing, and the Supreme Court expedited its hearing in the case. It is expected to issue a ruling by Nov. 1, in time for the 2014 General Assembly to act if Cales' decision is upheld.
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