- The Washington Times - Friday, February 29, 2008

The Virginia Supreme Court might rule as soon as today on a local tax case that could change the way Northern Virginia confronts its crippling traffic congestion.

The case is testing the limits of the state legislature’s right to delegate taxing authority to local agencies.

A ruling in favor of the Northern Virginia Transportation Authority (NVTA) would allow the agency to continue levying seven new taxes to finance road, bridge and public transit improvements.

The NVTA says it is trying to minimize commuter annoyances such as those of Kathleen Joyce, an information-technology project analyst who drives daily from her home in Springfield to her job near Fairfax County Parkway and Route 28 in Ashburn.

The 37-mile drive sometimes takes her two hours in the mornings. She puts up with it only because she likes her job near the Dulles corridor.

“If it wasn’t the job or a company where I didn’t think I could excel, I wouldn’t make the drive,” Miss Joyce said. “I’d work somewhere closer.”

She supports “anything that would cut down on the traffic” but is uncertain whether new taxes are the answer.

A court decision against the NVTA would mean advocates for transportation relief would need to look elsewhere for funding at a time when one of the region’s solutions to traffic problems — a Metro rail extension to Washington Dulles International Airport — appears to be losing federal support.

The lawsuit against the agency was filed by Virginia Delegate Robert G. Marshall, who was joined by the National Taxpayers Union and Loudoun County. They say the NVTA has no legal right to levy the taxes that it started collecting Jan. 1.

The $326 million a year in new taxes the NVTA seeks to raise would be imposed on motorists, property sellers and hotel guests.

Mr. Marshall, a Prince William Republican, argues that under the Virginia Constitution, only elected officials have the right to levy taxes and issue bonds.

“These people are just frittering it away,” Mr. Marshall said of the taxing authority the General Assembly granted to the NVTA.

Delegating tax authority to an agency like the NVTA, which consists only of appointed board members, is an effort by the General Assembly to sidestep the will of voters, Mr. Marshall said.

Northern Virginia voters rejected a sales-tax increase in 2002 to fund transportation improvements.

Mr. Marshall agrees Northern Virginia transportation problems are severe, but said state officials should find solutions other than NVTA taxes, such as partnerships with private developers to improve roadways or the construction of a light rail.

Other state legislatures are increasingly granting taxing authority to agencies to raise money for special projects. They are closely watching the Virginia Supreme Court case, Mr. Marshall said.

The NVTA argues its taxing authority is derived from elected officials, which is adequate to satisfy state constitutional requirements.

The agency declined to comment yesterday because of the pending litigation.

“We’re going to wait until after the ruling,” said Kala Quintana, NVTA spokeswoman.

The Northern Virginia Transportation Alliance, a private group that advocates transportation improvements, filed a legal brief in support of the NVTA.

“The position of the NVTA is that the General Assembly has the authority to do what the General Assembly decides to do unless it’s specifically prohibited by the constitution,” said Robert Chase, president of the alliance. “They argue there is no prohibition in the constitution to prevent it from delegating this type of authority. The fact that Mr. Marshall does not like the policy does not make it illegal.”

Hinging on the Supreme Court’s interpretation of the law are projects business leaders say are crucial to Northern Virginia’s economic development at a time when traffic congestion is interfering with the region’s economic vitality.

“We’re not shrinking, we’re growing in this region and you have to accommodate that success,” said James C. Dinegar, chief executive officer of the Greater Washington Board of Trade.

If the Virginia Supreme Court rules against the NVTA’s taxing authority, Mr. Dinegar said he hopes the General Assembly would make “technical amendments” to the law so tax money still could be raised to support transportation improvements.

Supporters of the NVTA’s taxing authority have the momentum of lower-court decisions on their side.

Last August, the Arlington County Circuit Court ruled the NVTA’s taxing authority is a valid use of government authority.

The agency is an independent political subdivision created for a special purpose, not a local government unit, the court’s ruling said. As a result, the Virginia Constitution’s requirement that only elected officials can levy taxes would not apply to the NVTA.

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