Are certain toll roads in Virginia unconstitutional?

A Portsmouth judge’s ruling over proposed tolls for tunnel crossings in Hampton Roads, could have far reaching implications for a 1995 law that allows public and private partnerships to help pay for the construction of new roads.

In May, Portsmouth Circuit Court Judge James A. Cales Jr., questioned the legality of such partnerships, and weeks later refused to stay his decision pending an appeal to the Virginia Supreme Court.

Virginia could face penalties  and liabilities of nearly $3.5 billion dollars if the judge’s ruling is upheld by the state’s high court.

The Public-Private Transportation Act, adopted by the Virginia General Assembly, was passed in an effort to use tolls as a way of generating millions of dollars for transportation projects.

Judge Cales ruled that public-private tolls were essentially a tax on Virginians and taxes could only be levied by the Virginia General Assembly, not private companies or the Virginia Department of Transportation.

Delegate John O’Bannon, R-Henrico, a member of the House Appropriations Committee, says Secretary of Transportation Sean T. Connaughton, warned lawmakers on Monday about the legal implications of the ruling.

“It’s a huge financial obligation to the commonwealth,” O’Bannon says.

O’Bannon says one of the biggest liabilities is The Pocahontas Parkway, a poor performing toll parkway between Chesterfield and Henrico counties.
If the high court upholds the judge’s ruling, the state could assume a $502 million dollar liability on the parkway alone.

“It’s important because it impacts all the other projects in the state that the same law has been used to build,” O’Bannon says, “like I-495 hot lanes and the I-95 lanes out of Washington to Stafford, and the new (Route) 460 project.”

Earlier this year, the governor decided against plans to place a toll on I-95 in Sussex County and between Richmond and Fredericksburg after an outcry from the public.

However, a deal was reached between lawmakers to build a second Midtown Tunnel between Portsmouth and Norfolk and upgrade the existing tunnel and the Downtown Tunnel, using tolls to help pay for the projects.

The Virginia Supreme Court is expected to hear the Portsmouth case by next spring.

Delegate O’Bannon says it will be up to lawmakers to rewrite the existing 1995 law, if the Virginia Supreme Court upholds the ruling.

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