RICHMOND, Va. — Tolls on two existing tunnels to help pay for a third one in traffic-choked Hampton Roads are legally permissible user fees, not an unconstitutional tax, the Virginia Supreme Court ruled on Thursday.
The justices unanimously reversed Portsmouth Circuit Judge James A. Cales Jr.’s ruling last May that the tolls were unconstitutional. The tolls are scheduled to begin Feb. 1, starting at nearly $2 for passenger vehicles and increasing over time through 2070.
The Department of Transportation and a private partner, Elizabeth River Crossings, signed a $2 billion agreement in 2011 to build and operate a second Midtown Tunnel rube between Portsmouth and Norfolk and renovate the existing Midtown and Downtown tunnels. The deal was done under the 1995 Virginia Private Partnership Act.
Cales ruled in May that the General Assembly had improperly ceded its taxing authority by giving “unfettered power to the Department of Transportation to set toll rates without any real or meaningful parameters.”
However, the Supreme Court cited three reasons for concluding the tolls are a user fee instead of a tax: They pay for a benefit not shared by the general public, drivers are not compelled to use the tunnels, and the tolls are collected solely to pay for the project and not to raise general revenues.
The court also found that the legislative power to set user fee rates may be constitutionally delegated to the transportation department and Elizabeth River Crossings.
A group of residents who believe the tolls are unfair and onerous filed the lawsuit challenging the tolls. Their attorney, Patrick McSweeney, did not immediately return phone calls seeking comment.
The transportation department and Elizabeth River Crossings had said that if Cales’ ruling had stood, it would have dismantled a 167-year-old procedure for setting tolls, and would have put other ongoing and future transportation projects in jeopardy. Stuart A. Raphael, attorney for Elizabeth River Crossings, said a win by the plaintiffs also would have prompted “copy-cat challenges” to public-private partnership laws in other states.
“The Supreme Court of Virginia got it right on the law and also avoided the very bad consequences that would have resulted if the trial court’s ruling had not been reversed,” Raphael said.
Work on the tunnel projects is continuing, and the Supreme Court expedited its hearing in the case.
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