Tom Warne Report, 14 May 2013
PORTSMOUTH – A judge has ruled that Virginia’s $2.1 billion public-private Midtown Tunnel deal is unconstitutional, elating local residents against the project that is several months into construction. Dozens of residents organized over a year ago to kill the project that they believe is unfair and punitive for local businesses and commuters.
The state intends to appeal the decision from Circuit Judge James A. Cales Jr., who said in his ruling that the General Assembly does not have authority to grant the Virginia Department of Transportation (VDOT) “unfettered power” to set toll rates under the 1995 Public-Private Transportation Act. The ruling was a big blow to Gov. Bob McDonnell, who has touted the projected as critical for the region. The governor’s office said that the state deems its position is legally correct, and if the ruling stood, it could jeopardize the state’s ability to use public private partnerships to build major projects, an increasingly common method in Virginia and other states.
Cales said the free alternative routes presented by the state’s private partner, Elizabeth River Crossings, were not reasonable for someone like himself, if he were to commute from his house in Portsmouth to Norfolk. “They’re not really reasonable alternatives,” Cales said. “You know that. I know that. Everyone knows that.”
An attorney for Elizabeth River Crossings, which took over operations of the tunnels last July, countered that legally, convenience does not mater, and what might not be reasonable for one person may be for someone else. Under the deal with VDOT, Elizabeth River Crossings will maintain and operated the tunnels for 58 years. The company is also overseeing construction of a second Midtown tunnel, renovations of the existing tunnels, and an extension of the Martin Luther King Jr. Freeway to I-264.
Electronic toll collection is scheduled to begin Feb. 1, 2014 on the tunnels, and on the freeway extension when it is complete. The project is funded by private equity, more than $400 million in state funding, federal loan and bonds. Elizabeth River Crossings had spent $348 million as of March 31 on the project, and said it remains committed to delivering the project on schedule, in spite of the uncertainty the judge’ s ruling casts over the project.