Arlington goes its own way in lawsuit over HOV lanes
Many N.Va. officials reject county's use of civil rights as an issue in highway case

By Derek Kravitz and Jennifer Buske
Friday, October 23, 2009

After 3 p.m. on any given day, the traffic along Glebe Road between interstates 395 and 95 in Arlington County is voluminous. Cars slow, stop and snake around crowded intersections. Overheated vehicles cause tempers to boil over. Amid the exhaust fumes and gridlock, one thing is clear: No one is happy driving here.

Arlington leaders say plans for three high-occupancy toll lanes on the nearby highways will make traffic worse on Glebe and other roads. But it's not just a transportation problem, they say in a federal lawsuit; it's also a civil rights issue.

The suit, filed in August, asks a judge to order a more stringent environmental study of the toll-lane project. Among the chief concerns it cites is the potential effect of air pollution on the health of low-income and minority residents clustered near the highways in areas such as Shirlington. More vehicles on offramps would mean more vehicles in residential neighborhoods, officials argue.

In the often political world of transportation projects, the suit's use of the Civil Rights Act has sparked a torrent of criticism from lawmakers and government officials who say issues of race and class have no place in highway planning.

At a Fairfax County Board of Supervisors meeting last month, Supervisor Pat S. Herrity (R-Springfield) said Arlington officials erred in including any mention of disparate impact between the white, mostly suburban drivers in Spotsylvania and Stafford counties who would have "unimpeded access" to the toll roads and the more diverse, bottlenecked drivers in Arlington.

"I don't think race or class warfare has any standing in this argument," Herrity said.

Arlington County Attorney Stephen MacIsaac said the suit was not intended to "create some kind of wedge issue on race or income," but rather to force state officials to reevaluate the effect of air pollution on nearby schools, day-care centers and low-income housing.

"We're not just throwing this out there to throw in the race element," MacIsaac said. "We believe this is an environmental justice issue."

What's in contention

Calvin and Loretta Mitchell, who are black, run an at-home day-care center at the end of Arlington's South Fillmore Street, which is in a predominantly black neighborhood. Most of the families who pick up their preschoolers at the Mitchells have to park on curbs across the street and walk several blocks to reach the two-story brick house.

"Cars are parked all over the place. It's terrible," said Calvin Mitchell on a late Thursday afternoon as rushed parents snatched their children from the home.

The Mitchells say traffic caused by three planned high-occupancy toll lanes on nearby highways is going to make their headaches worse. But Herrity and other officials who support the project say it will ease congestion.

Many have questioned Arlington's decision to include discrimination claims in its lawsuit.

Robert Chase, executive director of the Northern Virginia Transportation Alliance, a business-funded group that lobbies for transportation improvements, called the argument "completely outrageous." John B. Townsend II, a spokesman for AAA Mid-Atlantic, said Arlington is "grasping at straws." Ronald F. Kirby, the director of transportation planning for the Metropolitan Washington Council of Governments, an independent arbiter of sorts, said the lawsuit "came right out of the blue," as Arlington had not expressed its concerns in that "explicit of a form" in meetings.

What is noteworthy about the suit, legal experts say, is the claim of intentional discrimination. Arlington would have to prove that Virginia transportation officials deliberately set out to create a disadvantage for Arlington residents because of race or income level. The U.S. Supreme Court ruled in the 1977 case of Village of Arlington Heights v. Metropolitan Housing Development Corp. that racial animus can be found only if the measure is "unexplainable on grounds other than race," said John F. Preis, an assistant law professor at the University of Richmond. The same rule generally applies in income discrimination cases.

"But governments can almost always point to some nondiscriminatory reason for a particular law or action," he said.

The Arlington difference

Three environmental groups sued Maryland in 2006 to stop construction of the Intercounty Connector, arguing that officials had not adequately assessed the amount of air pollution the roads would generate. That lawsuit did not deal with civil rights issues, but it did include environmental claims similar to those in Arlington's suit. It was settled last year when Maryland agreed to spend $2 million to reduce air pollution from school buses in Montgomery and Prince George's counties and to install new air quality-monitoring equipment.

Arlington's lawsuit is different in that it makes an issue of the racial and socioeconomic disparity between those who would benefit most and least from the toll roads. The argument is reminiscent of those advanced in the 1960s by activists who protested transportation projects through black neighborhoods in Northeast and Southwest Washington. Supporters of that movement used the slogan, "No white man's highways through a black man's home."

Even some opponents of the toll lane project say it is difficult to accuse state officials of deliberately discriminating against black and poor Arlington residents.

Arlington asked the Prince William County Board of County Supervisors to join in the lawsuit about a month ago. Prince William supervisors discussed the possibility last week in a closed meeting, but they voted against joining because of the "scandalous allegations" in the suit, Chairman Corey A. Stewart (R-At Large) said.

"The Arlington lawsuit makes unsubstantiated claims of racism against the U.S. secretary of transportation and the secretary of transportation in Virginia," Stewart said. "These claims are unfair and extremely hurtful. The board does not want to join as a plaintiff in a case that makes such hurtful claims against public officials."

Stewart said the board will probably do something on its own, possibly including a separate lawsuit to show its opposition to HOT lanes. Prince William officials have long voted against the project, worried about how it will affect congestion inside the Capital Beltway and "slugging," the informal ride-sharing system used by many area commuters.

The lawsuit is ironic, Stewart said, because Arlington initially voted in favor of the HOT lanes. If the county had sided with Prince William, "we wouldn't be where we are today," he said.

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