N.Va. Transit Authority May Impose Taxes, Judge Rules

By Amy Gardner
Washington Post Staff Writer
Wednesday, August 29, 2007

An Arlington County Circuit Court judge upheld the constitutionality yesterday of a new state law allowing the Northern Virginia Transportation Authority to impose taxes and issue bonds to finance as much as $300 million a year in regional highway and transit projects.

Circuit Court Judge Benjamin N.A. Kendrick ruled that nothing in the state or U.S. constitutions blocks the General Assembly from allowing a regional authority to assess taxes. And the panel's members are not required to be elected directly by Northern Virginia voters, he ruled. The decision was a defeat for opponents of higher taxes and the Loudoun County government.

"The Supreme Court of Virginia has established a strong presumption that the General Assembly statutes are constitutional," Kendrick told the courtroom yesterday. "Legislation cannot be declared unconstitutional unless it clearly and plainly violates the constitution in such a manner as to leave no doubt or hesitation. Every reasonable doubt must be resolved in favor of the act's constitutionality."

At issue is sweeping legislation approved by the Virginia legislature in February that funnels $1 billion annually to transportation projects across the state. The legislation calls for the Northern Virginia Transportation Authority and another group like it in Hampton Roads to raise and distribute most of the money in their respective regions.

Yesterday's decision does not end the legal battle over the transportation package. Lawyer Patrick M. McSweeney of Richmond, who represented many of the people who oppose the regional authority, said he would appeal to the state Supreme Court.

McSweeney is also representing many of those individuals in a lawsuit filed in Richmond that addresses other aspects of the roads bill. Most are longtime supporters of lowering taxes and reducing the size of government -- and believers that the state is treading on the constitutional principle of taxation only with representation by empowering an unelected body to impose taxes.

"This means that the Arlington Bridge Club can be given authority to tax for recreation purposes," said Del. Robert G. Marshall (R-Prince William), who voted against the transportation package. "The alienation of taxing authority has been going on for a while."

The zeal of those such as Marshall has underscored the deepening rift between conservatives and moderates within the state Republican Party, whose legislative leaders promoted the transportation package. Those moderates and other supporters of increased road funding say the most ardent opponents of higher taxes are ignoring the mandate by the Virginia electorate to end the state's growing traffic crisis.

"I felt all along, as has the attorney general, as has the governor's legal counsel, that it was constitutional," said House Speaker William J. Howell (R-Stafford).

Yesterday's hearing marked the end of a legal proceeding known as a bond validation suit filed by the Northern Virginia Transportation Authority. The legal step may be taken by debt-issuing public bodies anticipating legal challenges as a way to expedite the court process.

Opponents of the authority -- including Loudoun County -- argued that only elected governing bodies or regional governments may impose local taxes. Regional governments require approval by voters in a referendum before they can be established, the opponents argued.

The regional transportation authority, assisted by the office of Virginia Attorney General Robert F. McDonnell, argued that the panel is not a regional government because the General Assembly did not call it one. And the legislature is entitled to enact anything it wants as long as it does not violate the state or U.S. constitutions, they said.

If an appeal is filed, proponents of the regional roads plan said they expect the Supreme Court to agree with Kendrick. After that, they said, they expect the regional authority to get to work fixing Northern Virginia's roads.

The transportation authority agreed last month to raise $300 million annually for regional transportation projects. The money would come from new taxes on home sales, car rentals and hotel rooms and new fees for auto registrations and safety inspections. The authority is scheduled to begin collecting the money in January.

"Clearly we've been anxious to be able to move forward and to begin providing transportation improvements in Northern Virginia, which is our charge from the General Assembly," said Chris Zimmerman (D), chairman of the Northern Virginia Transportation Authority and an Arlington County Board member. "The legislation, with all its imperfections, provides real revenue that will allow us to begin doing something for the first time in years."

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