- The Washington Times - Wednesday, August 29, 2007

An Arlington judge yesterday ruled that starting in January an unelected regional body can levy on Northern Virginia residents a slew of new taxes and fees to pay for local transportation upgrades.

The ruling by Circuit Court Judge Benjamin N.A. Kendrick would allow the Northern Virginia Transportation Authority, composed of 14 voting members, to raise about $300 million a year through higher taxes on home sales, car safety inspections and auto repairs to fund regional road and rail projects.

“Northern Virginia Transportation Authority is an independent political subdivision similar to other entities such as water and sewer authorities, sanitary districts, and industrial development authorities,” Judge Kendrick said. “It is not a local government with an elected governing body.”

The court battle is the latest sign of contempt for the multibillion-dollar transportation package the Republican-controlled General Assembly passed earlier this year.

The public outcry over the new “abuser fees,” ranging from $750 for driving on a suspended license to $3,000 for a driving-related felony, has led Republican leaders to say they plan to refund some of the charges when they return to Richmond in January.

Opponents said the outrage over the new regional taxes will mushroom once residents realize the amount of new levies and fees they will have to pay.

Richmond lawyer Patrick McSweeney, who is representing a coalition of anti-tax advocates, said he plans to file an appeal to the ruling in the Supreme Court of Virginia.

A final judgment will determine whether residents of Northern Virginia will face new taxes and fees. The taxes and fees are:

n Grantor’s tax — 40 cents per $100 of value when residential property is sold.

n Motor-vehicle rental tax — 2 percent of rental rate.

n Transient occupancy tax — 2 percent of hotel rate.

n Vehicle safety inspection fee — $10 a year.

n Sales tax on auto repairs — 5 percent of labor charges.

n Regional vehicle registration fee — $10 a year.

n A one-time vehicle registration fee — 1 percent of the purchase price.

On Monday, Loudoun County Attorney John R. Roberts and Mr. McSweeney, on behalf of an anti-tax coalition led by Delegate Robert G. Marshall of Prince William County, argued that it is unconstitutional for the General Assembly to give an unelected body such as the NVTA the power to levy taxes.

Although most board members hold an elected office, they were appointed to the NVTA.

Attorneys for the state argued the Virginia Constitution does not apply to the board because it is not a local or regional unit of general government. They argued that it is an independent political subdivision created for a special purpose.

The series of revenue enhancements, which the NVTA approved last month, represents a major chunk of the multibillion-dollar transportation deal that Gov. Timothy M. Kaine, a Democrat, and Republican leaders steered through the General Assembly earlier this year.

“It is a fairly significant ruling,” said House Majority Leader H. Morgan Griffith, Salem Republican. “I’m pleased it is moving along so quickly and hopefully in a few months we will have it all resolved and we can get about building roads in Virginia and easing transportation problems.”

Kevin Hall, a spokesman for Mr. Kaine, said the governor is pleased with the ruling.

“The governor … looks forward to the NVTA moving ahead to provide meaningful transportation solutions for the people who live and work in the region,” Mr. Hall said.

NVTA Chairman Christopher Zimmerman said the authority continues to work toward implementing the new taxes and fees, finalizing 22 “ready-to-go” projects and beginning development of a full six-year plan to be funded with the new revenues.

“Northern Virginians want solutions to the traffic and the gridlock, and the authority is moving ahead with its work,” said Mr. Zimmerman, a Democrat and a member of the Arlington County Board. “We look forward to utilizing the tools that the General Assembly has made available to the authority and to provide the real transportation solutions that Northern Virginians expect.”

Yesterday’s ruling puzzled critics of the transportation plan.

“George Mason wrote in his Declaration of Rights that citizens ‘cannot be taxed or deprived of their property for public uses without their own consent or that of their representatives so elected,’ ” said Mr. Marshall, a Republican. “Contrast this with the unprecedented claim supported by the governor, the attorney general and the speaker of the House that ‘The General Assembly’s ability and power to delegate taxation is not constrained.’ … If [George Mason] could have been in court [Tuesday] he would have passed out.”

Delegate Jeffrey M. Frederick said he hopes the Supreme Court of Virginia will overturn the ruling.

“You have to be elected to raise taxes,” the Prince William County Republican said. “You have to be accountable to the people. Obviously that spirit is being threatened by a judge who is trying to interpret things differently and legislate from the bench. Or they are … saving their back because they have to be appointed by the same majority that passed this law.”

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