Update: Portsmouth wins motion to dismiss ERC petition

Posted at 5:13 PM, Sep 09, 2013
and last updated 2013-09-10 18:17:05-04

Update: NewsChannel 3 has learned that the city of Portsmouth won its motion to dismiss the petition Elizabeth River Crossings filed to force them to move their utility infrastructure for tunnel construction before the Supreme Court's ruling. 

This means ERC cannot move utility lines owned by the city until the Supreme Court makes a decision. 

A hearing will be held on Wednesday, but a decision will not be made until November. 

We'll keep you updated on NewsChannel 3. 

Portsmouth, Va. - The legal battle over tolls at the Downtown and Midtown tunnels heads to the Virginia State Supreme Court this week.

They'll hear arguments Wednesday.

The state appealed the case after a Portsmouth judge ruled in May that the deal between VDOT and Elizabeth River Crossings is unconstitutional.  The judge said VDOT does not have the authority to essentially levy a tax.

Despite the court case, work on the project has continued as planned.

Patrick McSweeney, the attorney who is representing the group of citizens fighting the tolls, says both sides will have half an hour Wednesday to present their case.

"Technically they shouldn't be allowed to argue anything they haven't raised below or in their briefs, so I don't expect anything new," McSweeney tells NewsChannel 3.

He expects sometime in October is the earliest the justices will make a decision.

The whole process is moving much more quickly than most cases.

"What is a little different in this case is the court agreed to expedite the appeal, which they seldom do," McSweeney said.

The decision could have a big impact on just not this project, but others across the state, so McsWeeney says the justices are likely trying to reach a decision before the General Assembly convenes next January.

The decision reached by the Supreme Court cannot be appealed, but the state still has other avenues it could look into if justices uphold the decision made by the trial court judge.