Delegate Bob Marshall on the Constitutional Problems with Transportation Authority Taxes

Here is what Bob Marshall wants his constituents to know about the constitutional issues with giving the Northern Virginia Transportation Authority (NVTA) taxation authority (copied from a 3 July 2007 email).

Mr. Citizen Tom,

July 2, 2007

Honorable Gerry Connolly
Chairman, Fairfax Board of Supervisors
12000 Government Center Pkwy
Fairfax, VA 22035-0079

Dear Chairman Connolly:

The Northern Virginia Transportation Authority’s website indicates that you are preparing for and expect constitutional challenges to the exercise of NVTA’s unprecedented taxing authority allegedly granted in HB 3202. Such challenges would NOT be anticipated if NVTA’s taxing powers were in clear conformity with Virginia’s Constitution.

Furthermore, neither the NVTA nor anyone else in Virginia has a formal opinion from the Attorney General in support of HB 3202’s constitutionality. Yet, on July 12, the NVTA will attempt to impose a series of taxes on Northern Virginia residents and initiate a bond validation suit. You have an obligation to explain to citizens the legal basis upon which you are proceeding.

On March 27, 2007, I asked the Attorney General if the taxes purportedly authorized by HB 3202 were state, local or regional taxes. His chief Deputy wrote me that the NVTA is “a multi-jurisdictional special tax district. The taxes imposed would be local taxes used within the jurisdiction for a special purpose, in this instance, transportation.”

However, the NVTA cannot impose a local or regional tax because Article VII, Section 7, of the Virginia Constitution, provides that: “No ordinance or resolution … imposing taxes, or authorizing the borrowing of money shall be passed except by a recorded affirmative vote of a majority of all members elected to the governing body.”

Mr. Chairman, you in particular are quite familiar with this requirement. The Public Private Act, Virginia Code section 33.1-431 et seq., which does authorize a locality to impose Special Taxes within transportation districts, specifies that each “governing body” has to approve a Special Tax district by majority vote. You and the Fairfax Board of Supervisors approved such a district for Dulles rail in February, 2004 which is consistent with Article VII, section 7 of the Virginia Constitution. You know this provision quite well.

And while it is true that a regional government can have taxing power, a regional government must be established by a majority of voters within each jurisdiction participating in the regional government. The NVTA was NOT so established. The Virginia Constitution states, “Every law providing for the organization of a regional government shall … require the approval of the organization of the regional government by a majority vote of the qualified voters voting thereon in each county and city which is to participate in the regional government and of the voters voting thereon in a part of a county or city where only the part is to participate. (Article VII, Section 2, Para 3.)

In 2002, voters decidedly rejected the Northern Virginia Regional Transportation Referendum which would have funded NVTA projects. HB 3202 attempts to “get around” this overwhelming voter rejection by vesting in an appointed body powers that only citizens can convey by voter referendum. Having a laudable goal does not alter the fact that unrestrained and unaccountable power is not in the public interest.

HB 3202 already gives the NVTA authority to approve unsolicited, non-competitive multi-million dollar sole source bid contracts. Yet, NVTA members want more power including:
1. Additional taxing authority for the NVTA (“Chair Nohe stated the concerns of some Authority members about the expense of the short and long term plans. There may be an additional funding stream to get through the next General Assembly session.” page 24, NVTA Public Outreach Working Group, Minutes, May 24, 2007 Meeting);
2. Eminent domain power to condemn private homes, businesses and land;
3. Permission to increase on-call consultant fees from $200,000 to $1,000,000;
4. Authority for utility relocation.

NVTA’s published comments about the taxes citizens will pay under NVTA are misleading. The NVTA suggests that citizens will pay “only” $1,600 on the sale of a $400,000 home. In fact it will be $2,600 because of the existing 25 cents per hundred “sales tax” on homes at present. Several of these new NVTA taxes and fees are in addition to existing taxes on the same subjects.

A public official’s Oath is a solemn pledge to citizens that only those powers will be used on their behalf that are included by the people in Virginia’s Constitution which experience and reason show will secure honest, open and efficient government that promotes the common good. Public officials are not free to decide that a particular problem, such as traffic, justifies extra-constitutional means not approved by the voters of Virginia.

The General Assembly has increased transportation funding from around $6.2 billion in our state budget a few years ago to $9.4 billion in the current two-year budget. Last year we authorized local governments to construct inter-jurisdictional toll roads. This year we authorized the use of tolls for new interstate access and uses. All these means are clearly constitutional.

Northern Virginia and Tidewater will not have the votes to change the Transportation funding formula until after the 2010 Census. Until then, General Assembly members from elsewhere can say we are taxing ourselves with the NVTA and don’t need help from Richmond.

Because you were not given the proper legal authority to impose taxes on Northern Virginia localities as the NVTA, I strongly urge you to vote NO to NVTA imposed taxes on July 12. The General Assembly must produce a legislative remedy for transportation that does not have these or other constitutional problems.

Sincerely,

Delegate Bob Marshall

ACTION ITEM
If six appointed members from nine jurisdictions vote yes to taxes in July 12, all jurisdictions must impose and collect them. Please email, write, call, fax the NVTA representative below from your jurisdiction, and the others if possible. You can also attend and testify at the public hearing July 12, 7:00 pm @ Mary Ellen Henderson Middle School, 7130 Leesburg Pike, Falls Church, VA. Thank you!

The Honorable Christopher Zimmerman
Chairman, NVTA, Arlington Co. BOS, 2100 Clarendon Blvd. Ste. 300, Arlington, VA 22201, Fax: (703) 228-7430, czimmerman@arlingtonva.us

The Honorable Marty Nohe
Vice-Chairman, NVTA, Prince William Co. BOS, 4360 Ridgewood Center Dr.
Prince William, VA 22192, Fax: (703) 792-4610, mnohe@pwcgov.org

The Honorable Gerry Connolly
Fairfax County BOS, NVTA, 12000 Government Center Pkwy, Ste. 530, Fairfax, VA 22035, Fax: (703) 324-3955, chairman@fairfaxcounty.gov

The Honorable William Euille
City of Alexandria, NVTA, 301 King St., Alexandria, VA 22314, Fax: (703) 838-6433 alexvamayor@aol.com

The Honorable Robert Lederer
City of Fairfax, NVTA, 10455 Armstrong St., Fairfax, VA 22030, Fax: (703) 385-7811 rlederer@fairfaxva.gov

The Honorable Hal Parrish
City of Manassas, NVTA, 9027 Center St., Manassas, VA 20110, Fax: (703) 365-2060 hparrish@ci.manassas.va.us

The Honorable Bryan Polk
City of Manassas Park, NVTA, City Hall, One Park Center Ct., Manassas Park, VA 20111, Fax: (703) 335-0053, bpolk@cityofmanassaspark.us

The Honorable David Snyder
City of Falls Church, NVTA, Harry Wells Bld., 300 Park Ave, 3rd Floor, East Wing Falls Church, VA 22046, Fax: (703) 248-5146, dsnyder@fallschurchva.gov

The Honorable Scott York
Loudoun County BOS, NVTA, P.O. Box 7000, Leesburg, VA 20177, Fax: (703) 777-0421, syork@loudoun.gov