Tolls not allowed at Downtown and Midtown Tunnels until VA Supreme Court decides constitutionality

Posted at 8:54 PM, May 21, 2013
and last updated 2013-05-21 20:54:31-04

Another hearing brings another ruling that will help drivers hold off on paying any tolls at the Downtown and Midtown tunnels, for now.

A Portsmouth Circuit Court judge decided Tuesday that no tolls can be imposed until the Virginia Supreme Court makes a decision on whether that $1.84 toll each way through the tunnels is really a tax.

Lawyers for the state were trying to get permission to still begin the tolls come February 1st, 2014, even if a decision hadn’t been reached by then.

They argued it was a matter of grave public interest that stopping the tolls from going into effect at the Downtown and Midtown tunnels would cause “irreparable harm” across the Commonwealth of Virginia, putting major transportation projects in jeopardy, hurting the state’s bond rating, and costing the tax payers a huge amount of money.

Judge James Cales, though didn’t buy the arguments from the Attorney General’s office calling it spin on the part of those in Richmond.

“They need to stop all the work right now. It’s a lost cause for them, and like the judge said, whatever harm they are doing, they are doing it to themselves,” said Portsmouth Mayor Kenny Wright.

Elizabeth River Crossings, the company performing the work on the Downtown and Midtown tunnels and the MLK extension, says this lower court decision won’t stop them from moving forward with construction.

“The project is going forward, on time, on budget. It’s going forward no matter what, this of course is a disappointment, but we get a fresh start in the Supreme Court of Virginia, that’s where we are headed next,” said Stuart Raphael, attorney for Elizabeth River Crossings.

“They are risking their own money, unless the state is obligated to pay under the contract,” said Patrick McSweeney, the attorney for the plaintiffs.

That’s the one question VDOT won’t answer--how much the state could owe if the Virginia Supreme court agrees that the tolls are really a tax, and therefore unconstitutional.

Fitch Ratings, a bond rating firm who has seen the $2.1 billion contract, says they believe the Commonwealth, not ERC, would be on the hook for more than $1 billion in loans already taken out for the project.

We asked VDOT if there are any contingency plans if they lose on appeal-- maybe start saving money by canceling other transportation projects around Hampton Roads, but they say all work is going forward as planned, to the dismay of these plaintiffs.

“We are going to pay, whether we win or lose, on a project that is unconstitutional,” said Wright.

“If they want to go ahead and put a gun to the head of the state, something is wrong with the contract,” said McSweeney.

The state plans on appealing this latest ruling to put a halt to the tolls. That decision could come quickly by the Virginia Supreme Court.

As for the constitutionality of the tolls, both sides hope that the court will take up the case in the fall, but acknowledge that a decision might not come until spring.


State says tunnel tolls could still go into effect despite judge’s decision

Judge rules against tunnel tolls

Tolls get their day in court

Group fighting against tunnel tolls headed to court