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Judge: Midtown Tunnel toll deal is unconstitutional | HamptonRoads.com | PilotOnline.com 5/2/13 1:23 PM 60° forecast THE VIRGINIAN-PILOT SEARCH THE SITE LOG IN EPILOT SUBSCRIPTIONS ADVERTISING PILOT STORE MORE SIGN UP MARKETPLACE CLASSIFIEDS DEALS SEARCH LOCAL JOBS AUTOS HOMES SHOPPING COUPONS RENTALS LEGALS NEWS OPINION BUSINESS MILITARY SPORTS WEATHER TRAFFIC OBITS HAMPTONROADS.COM ENTERTAINMENT LIFE MORE HOME » NEWS » TRAFFIC - TRANSPORTATION Judge: Midtown Tunnel toll deal is unconstitutional Posted to: Local Government News State Government Tolls Traffic - Transportation Login or register to post comments By Dave Forster The Virginian-Pilot © May 2, 2013 PORTSMOUTH A judge ruled Wednesday that the state's $2.1 billion public-private Midtown Tunnel deal and its tolls are unconstitutional, throwing uncertainty over a project that is months into construction, and setting the stage for an appeal. The decision from Circuit Judge James A. Cales Jr. thrilled the dozens of residents who began to 1 OF 5 PHOTOS: Terry Danaher hugs Portsmouth organize more than a year ago to kill a project they Mayor Kenny Wright on Wednesday, May 1, 2013, deem unfair and punitive for commuters and after Circuit Judge James A. Cales Jr. ruled in favor of the toll opponents, saying the General Assembly businesses. exceeded its power to delegate its authority to set the tolls. At right is attorney Patrick McSweeney. "We did it," said Portsmouth resident Terry (Steve Earley | The Virginian-Pilot) Danaher, a leader of the group, as she hugged View all 5 photos | Buy Pilot photos Mayor Kenny Wright. TRAFFIC CAMERAS Cales said in his ruling that the General Assembly Daily Deal | | Promote your business Live views of highways, tunnels exceeded its authority in giving VDOT "unfettered and bridges around Hampton power" to set toll rates under the 1995 Public- Roads Private Transportation Act. The decision was a TOOLBOX blow for Gov. Bob McDonnell and Attorney General Ken Cuccinelli, whose office defended VDOT RELATED Print against the lawsuit. Elizabeth River Crossings reports tunnel Email improvements - Apr. 15, 2013 McDonnell, who has lauded the tunnel project as VDOT partner releases info on Midtown meeting a critical need for the region, said in a subcontractors - Mar. 29, 2013 statement that the state believes its position is Midtown tunnel operators shield names of SAVE & SHARE contractors - Mar. 17, 2013 legally correct and will appeal the decision. Cuccinelli spokesman Brian Gottstein said in a Delicious Portsmouth council set to give $50,000 to tolls lawsuit - Feb. 14, 2013 statement that if the ruling stood, it would threaten Digg Tunnel operators keep close tabs on public the state's ability to use public-private partnerships sentiment - Feb. 3, 2013 to build major projects - an increasingly common Reddit approach in Virginia and other states. Facebook POLL Aubrey Layne, a member of the governor- Do you agree with the judge's ruling that the state’s appointed Commonwealth Transportation Board, a Twitter public-private Midtown Tunnel deal and its tolls are unconstitutional? policy-setting and revenue-allocating body, said the ruling sounded so broad as to jeopardize every toll Google Yes, I agree with the judge road in Virginia. Yahoo No, I don't agree with the judge http://hamptonroads.com/2013/05/judge-midtown-tunnel-toll-deal-unconstitutional Page 1 of 35 Judge: Midtown Tunnel toll deal is unconstitutional | HamptonRoads.com | PilotOnline.com 5/2/13 1:23 PM Not sure Patrick McSweeney, an attorney for the plaintiffs, predicted the case would hurt the state's credit Vote rating and said it calls into question future use of Background the Public-Private Transportation Act. McSweeney View results | Vote in more polls successfully argued several years ago that a legislative attempt to create regional taxing authorities was unconstitutional, killing that plan. Work on the Midtown Tunnel project will continue, said Tamara Rollison, a VDOT spokeswoman. The state plans to ask for a stay on Cales' ruling, keeping it from taking effect while an appeal is filed, McDonnell said in his statement. If Cales doesn't grant the stay, the defendants can seek one from the Supreme Court of Virginia, McSweeney said. For the appeal, a panel of three justices must agree to send the case to be heard before the full seven-member Supreme Court, he Find. Do. said. Tag. Share. Cales, a retired judge whose career in Portsmouth spanned more than 40 years, heard 3-1/2 hours of what where FIND arguments from the lawyers as a full courtroom of about 60 watched. Members of the crowd, Popular Searches composed primarily of plaintiffs and their supporters, snickered at the beginning of the hearing at the size of the defendants' legal team - six or seven attorneys compared with two for the plaintiffs. Cales occasionally questioned the attorneys during their arguments. In one instance, he asked a FIND US ON FACEBOOK lawyer for Elizabeth River Crossings, the state's private partner on the project, whether the free alternative routes he showed for people who didn't want to pay a toll at the tunnels were reasonable. A PilotOnline.com - The Virginian- slide from the attorney, Stuart Raphael, measured the distance to the High-Rise Bridge and the Pilot Gilmerton Bridge in straight lines - as the crow flies - rather than the distance by road. Like Cales said there was no dispute that those were alternative routes, but he asked whether Raphael thought they were reasonable. The judge noted later that it wasn't for someone like him, if he were to 12,018 people like PilotOnline.com - The Virginian- commute from his house in the Portsmouth neighborhood of Glenshellah to West Ghent in Norfolk. Pilot. "They're not really reasonable alternatives," Cales said. "You know that. I know that. Everyone knows that." Raphael countered that legally, convenience doesn't matter, and that what might not be reasonable for one person may be for another. Elizabeth River Crossings took over operations of the tunnels last July. Under the terms of its deal with VDOT, the company is to maintain and operate the tunnels for 58 years. They also are overseeing construction of a second Midtown tube, renovations of the existing tunnels, and the extension of the Clinical Research Coordinator Martin Luther King Jr. Freeway to Interstate 264. Norfolk, Virginia Virginia Oncology Associates Electronic tolls are set to start on the tunnels on Feb. 1, 2014, and on the freeway extension when it's finished. The tunnel tolls for passenger vehicles will cost $1.59 during off hours and $1.84 during Conventional Machinists and Industrial Mechanics weekday rush hours, defined as from 5:30 to 9 a.m. and from 2:30 to 7 p.m. Trucks will be tolled $7.36 Hampton, Virginia Craft Industrial Inc. during peak hours. RN/LPN Private equity, more than $400 million in state money, a federal loan and bonds are helping fund the Hampton Roads, VA MAXIM HEALTH project. The private partners are authorized to earn an annualized rate of return of 13.5 percent on their CARE $272 million investment. More jobs The plaintiffs, nearly 40 residents and businesses in all, were from across South Hampton Roads, but the center of the opposition was in Portsmouth. Its City Council was the only one that took an official stance against the project, deciding this winter to reverse its reluctance to get involved financially and approve a $50,000 public contribution to the plaintiffs' legal bill. Wright said he hoped Cales' decision "sends a message to the rest of the region and the rest of the commonwealth." "Even small cities," he said, "when they're right, they're right." Greg Woodsmall, CEO of Elizabeth River Crossings, deferred questions about the future of the project to his attorney. The company has spent $348 million as of March 31, the majority going to its design- build contractor, a partnership of Skanska, Kiewit and Weeks Marine, according to its recent monthly http://hamptonroads.com/2013/05/judge-midtown-tunnel-toll-deal-unconstitutional Page 2 of 35 Judge: Midtown Tunnel toll deal is unconstitutional | HamptonRoads.com | PilotOnline.com 5/2/13 1:23 PM report. Raphael said the company remains committed to delivering the project on schedule. Dave Forster, 757-446-2627, [email protected] _____ TRANSCRIPT OF JUDGE'S RULING To print the document, click the "Original Document" link to open the original PDF. At this time it is not possible to print the document with annotations. Login or register to post comments COMMENTS ADVISORY: Users are solely responsible for opinions they post here; comments do not reflect the views of The Virginian-Pilot or its websites. Users must follow agreed-upon rules: Be civil, be clean, be on topic; don't attack private individuals, other users or classes of people. Read the full rules here. - Comments are automatically checked for inappropriate language, but readers might find some comments offensive or inaccurate. If you believe a comment violates our rules, click the report violation link below it. [-] Hide Comments IM NOT OPPOSED TO TOLLS AS http://hamptonroads.com/2013/05/judge-midtown-tunnel-toll-deal-unconstitutional Page 3 of 35 Judge: Midtown Tunnel toll deal is unconstitutional | HamptonRoads.com | PilotOnline.com 5/2/13 1:23 PM Submitted by kb1800 on Wed, 05/01/2013 at 3:53 pm. Im not opposed to tolls as long as they are reasonable. We have to pay for these projects some how. But for those of you who are totally against tolls, how do you expect these projects to get done? Your probably the very ones who complain about sitting in traffic, but you want better roads and want someone else to pay for it.
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