Officials Seek to Halt Plan For Roads
N.Va. Panel's Power Over Taxes at Issue

By Eric M. Weiss
Washington Post Staff Writer
Friday, May 4, 2007

State and local lawmakers from Northern Virginia are challenging the legality of Virginia's recently inked transportation plan in a late effort to halt a deal that is expected to raise about $400 million a year for new projects in the region.

Opponents of the plan argue that allowing the appointed members of the Northern Virginia Transportation Authority to decide on tax and fee increases violates the state's constitution.

The Loudoun County Board of Supervisors voted unanimously this week to research a challenge to the legality of the authority's new powers, and other opponents have promised to sue if the authority raises taxes after the new law takes effect July 1.

"I am desperate to see some roads built," said Loudoun Supervisor Mick Staton Jr. (R-Sugarland Run), author of the resolution. "But we cannot let our desperation for a solution, any kind of solution, lull us into accepting something that is, on its face, unconstitutional."

A lawsuit could delay, or possibly destroy, the state's first transportation funding agreement in a generation. The action is also further evidence of local discontent with a plan that puts the onus on area leaders to raise taxes and fees.

The law, a compromise between the Republican-led legislature and Democratic Gov. Timothy M. Kaine (D), allows members of the NVTA to raise taxes on car rentals, hotel stays and auto repairs and increase fees on vehicle registrations and inspections. Local officials have the option of raising commercial real estate taxes and imposing impact fees on new development.

The authority includes the top elected official, or a designee, from each of the nine Northern Virginia jurisdictions; two members appointed by the House of Delegates; one appointed by the Senate; and two appointed by the governor.

Del. Robert G. Marshall (R-Prince William), who voted against the plan, points to Article VII, Section 7 of the Virginia Constitution, which says that "no ordinance or resolution appropriating money exceeding the sum of five hundred dollars" can be passed without the votes of a majority of members of a local governing body.

And if the authority is not a "local government," Marshall said, then it must be a regional government, which has to be approved by a majority vote of the qualified voters in each county and city participating in the regional government, according to the constitution.

"We take an oath to uphold the constitution," Marshall said. "If the process is corrupt, the product will be corrupt."

Chris Zimmerman (D), chairman of the NVTA and an Arlington County Board member, said legal challenges to the authority's power are to be expected -- and ignored.

"It is the nature of government to be sued," he said. "We've been given authority by the state legislature, and we're going to follow the instructions we were given."

Zimmerman said these issues were hashed out during legislative debate.

The attorney general's office has ruled the law constitutional. In a letter to Marshall, Virginia Chief Deputy Attorney General William C. Mims wrote that although "the taxes and fees imposed by House Bill 3202 are local taxes and fees (at least for accounting purposes)," the constitution "does not prohibit the General Assembly from creating a multi-jurisdictional special tax district."

Mims added that "in addressing critical transportation needs, the General Assembly has been innovative, but that does not make its action unconstitutional."

Nonetheless, Marshall said, the deal giving the authority the power to tax was a political cop-out by fellow legislators who didn't want to vote for higher taxes and were worried that local elected leaders wouldn't raise local taxes.

"This whole thing was billed not as a transportation fix, but a way to get past this election without people criticizing them for sitting in traffic," Marshall said.

All 140 seats in the legislature are up for election in November.

The statute setting up the authority tried to balance the rights of small and large localities by requiring two-thirds of members and members who represent two-thirds of the region's population to approve tax increases and other matters.

But, Staton said, allowing officials in one jurisdiction to vote on taxes in another amounts to "taxation without representation."

"If this is allowed to stand, who is to say the legislature won't give more power to the NVTA and allow it to circumvent local authority or allow it to use eminent domain to get these projects done," Staton said. "It's a slippery slope, and it needs to be challenged."