Virginia Lawyers Weekly VA Lawyers Weekly
The General Assembly did not unconstitutionally delegate its power of taxation to the Virginia Department of Transportation and Elizabeth River Crossing OpCo LLC under the terms of the Public-Private Transportation Act of 1995, and the Comprehensive Agreement between VDOT and ERC, which provides for construction of a new Midtown Tunnel between Portsmouth and Norfolk, does not abridge the commonwealth’s police power; the Supreme Court of Virginia upholds tolls on tunnels that cross the Elizabeth River.
Danny Meeks and other Portsmouth residents and users of the Downtown Tunnel filed a complaint against ERC and VDOT in Portsmouth Circuit Court. That court ruled that the legislature exceeded its authority by ceding the setting of toll rates and taxes for the use of facilities bundled solely for revenue-producing purposes in violation of Article IV, § 1 of the Virginia Constitution, and by giving “unfettered power” to VDOT to set toll rates without any real or meaningful parameters in violation of Article IV, § 1 of the state constitution.
We find the circuit court erred in holding that the tolls at issue are taxes. Tolls are user fees when they are nothing more than an authorized charge for the use of a special facility. The tolls here are user fees because 1) the toll road users pay the tolls in exchange for a particularized benefit not shared by the general public; 2) drivers are not compelled by government to pay the tolls or accept the benefits of the project facilities; and 3) the tolls are collected solely to fund the project, not to raise general revenue.
Further, we hold that neither the Constitution of Virginia nor the Code supplies the State Corporation Commission with jurisdiction over toll rate setting in projects authorized by the PPTA. The General Assembly was not required to delegate any legislative power employed in the execution of the project exclusively to the SCC. The General Assembly is not prohibited by the Constitution or the Code from delegating the legislative power to impose and set the rates of user fees to the administrative agency VDOT, and the General Assembly can empower ERC to assist VDOT in exercising the legislative power to impose and set the rates of user fees. VDOT can authorize ERC to be involved in the exercise of the legislative power to impose and set the rates of user fees.,
We hold that Va. Code § 56-566(B) provides constitutionally sufficient policies and standards to govern the exercise of the legislative power: Both the power to impose user fees and the power to set the rates of user fees. These policies and standards are sourced in the mandatory requirement that VDOT exercise the legislative power in order “to preserve capacity and prevent congestion.” Because ERC has not been delegated a legislative power, no requirement exists that constitutionally sufficient policies and standards must accompany ERC’s empowerment.
Reversed and remanded.
Concurrence
McClanahan, J.: I write separately for two reasons. First, while I concur with the court’s disposition in Part B, on whether the circuit court erred in holding that tolls are taxes rather than valid user fees, I would apply this court’s “determinative” test, not Massachusetts law. Second, I do not join Parts II.D.1.b., II.D.1.c and II.D.2.b, because they offend the Rules of this Court by reviewing an issue that was not decided by the circuit court and that is outside the scope of any party’s assignments of error.
Elizabeth River Crossing OpCo LLC v. Meeks (Millette) Nos. 130954, 130955, Oct. 31, 2013; Portsmouth Cir.Ct. (Cales) Stuart A. Raphael, Robert M. Tata, Marina J. Liacouras, Dane H. Butswinkas, Kannan K. Shanmugan for appellant ERC; George A. Somerville, E. Duncan Getchell Jr., Kenneth T. Cuccinelli II, Patricia L. West, Michael H. Brady, Timothy J. St. George for appellant VDOT; Patrick M. McSweeney, Christopher I. Kachouroff, Robert J. Cynar for appellees; David P. Bobzien for amicus curiae Fairfax County; Wiley F. Mitchell for amicus curiae Chesapeake Bay Bridge & Tunnel Comm’n; James J. O’Keeffe IV for amici curiae Nat’l Conf. State Legislatures and American Road & Transportation Blders. Ass’n; S. Miles Dumville for amici curiae Va. Chamber of Commerce, Va. Trans. Construction Alliance and Old Dominion Hwy. Contractors Ass’n. VLW 013-6-081, 55 pp.
