Supervisors Scrutinizing Transit Deal

By Michael Laris
Washington Post Staff Writer
Thursday, May 3, 2007

Loudoun County supervisors on Tuesday discussed a possible legal challenge to the regional transportation package approved last month by the General Assembly, and they instructed the county attorney to research their options.

Some supervisors voiced hostility toward the transportation spending package, saying some of its provisions should be deemed unconstitutional. Others said they were simply hoping to get a clear rundown of the legal issues before deciding whether to support launching a legal fight.

At issue is who has the power to tax Loudoun residents.

The state law could generate $400 million a year, through taxes and fees in Northern Virginia, for road and transit improvements in the region. The taxes and fees would not be imposed by state or local governments but by a previously little-known body called the Northern Virginia Transportation Authority.

The authority is made up of a local elected official from each of the nine Northern Virginia jurisdictions, including Loudoun Board of Supervisors Chairman Scott K. York (I-At Large); two members appointed by the House of Delegates; one appointed by the Senate; and two appointed by the governor. The legislation allows them to increase a handful of fees and taxes, including vehicle registration and inspection fees and hotel and rental car taxes.

Some Loudoun supervisors said Tuesday that Virginia's constitution gives such taxing power only to local governments.

"I do not believe that this [the regional authority] is a legal, elected body . . . and they should not have taxing authority. It should be either Richmond, or the locality, or a combination thereof," said Supervisor Lori Waters (R-Broad Run).

Supervisor Mick Staton Jr. (R-Sugarland Run), who raised Tuesday's motion, said the issue had sparked a "constitutional crisis."

"I don't care if you like the idea or oppose the idea" of raising taxes and fees for transportation, Staton said. "In my opinion, this violates the constitution of Virginia. It is our duty to stand up and defend that constitution."

Staton argued that local taxes can be levied only by local governments and that members of the regional authority "are not elected. They are appointed, and as appointees, they are unaccountable to the public."

Under the law, any tax or fee increase must be approved by two-thirds of all authority members and by two-thirds of the nine local government members. Also, the local government members voting in favor must represent two-thirds of the population of member jurisdictions.

York, who was elected countywide in Loudoun, has said he would probably vote to approve the new fees and taxes if the legal issues on taxing power were resolved. He said a large infusion of new cash was needed to begin to address transportation snarls in the county and region.

York said Tuesday that he wanted to know "if what is being done is illegal" and "what is the avenue to challenge it." He asked County Attorney John R. Roberts to respond to the board by June 5. York said he would want any legal challenge to be on an accelerated timetable so that state legislators who passed the plan could be held accountable to voters depending on the outcome of the challenge.

"There is probably room here for challenge, but we need to have it right before we make that move," said Supervisor James Burton (I-Blue Ridge). "I would not want to rush into it just for headlines."

The office of Virginia Attorney General Robert F. McDonnell has noted, in response to a query from Del. Robert G. Marshall (R-Prince William), that such a challenge would face a high legal hurdle, in part because "Virginia's laws are presumed to be constitutional. The Supreme Court of Virginia has concluded that 'reasonable doubt as to the constitutionality of a legislative enactment must be resolved in favor of its validity.' "

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