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Lawsuit Says DC Airports Authority Can't Raise Tolls To Pay for Rail

Wednesday, September 12, 2012 - 10:53 AM

(Washington, DC -- WAMU) The agency that's running the Silver Line rail project to Dulles Airport is holding public hearings on its plan to dramatically raise tolls on the Dulles Toll Road to pay for the project. But a Federal Court of Appeals will consider a lawsuit that could derail the project.

The class action suit argues the Metropolitan Washington Airports Authority (MWAA) does not have the legal right to raise tolls on drivers to pay for trains. Only an elected legislature can raise tolls in order to pay for something other than the maintenance and operation of the Dulles Toll Road itself, the suit claims.

"A toll is a user fee. That means you are using something and you have to pay for the service," says attorney Robert Cynkar, who will argue the case before a federal appellate court in October. "A tax is anything above that where money is being taken from you to raise revenue for another project."

The lawsuit doesn't address whether the Silver Line should be built. It's focused only on whether the MWAA has the authority to raise taxes, which is how Cynkar characterizes the toll hikes.

Under the Virginia constitution, elected officials are the only people who can vote to raise taxes.

But is a higher toll really a tax? To the drivers who will be paying them starting in January, Cynkar says the answer might be yes.

"The issue of whether the Metro rail is a good idea, whether it makes sense for the economy, how much it should cost and all that, are different issues," Cynkar says. "We just say that if you are going to build this thing and you need to get revenue for it, you have to do it the constitutional way."

A lower court dismissed the case in July. According to Don Williamson, a professor of taxation at the Kogod School of Business at American University, the toll increases might legally be considered taxes — but that doesn't necessarily mean the airports authority is in the wrong.

"The public as a whole could interpret any collection of revenue for any purpose to be a form of tax that they are paying to the government," Williamson says. "And it becomes merely a technicality whether we call that collection a tax or a user fee."

For its part, the airports authority "continues to believe the appeal lacks merit, and we will respond appropriately in court," said a spokesman in a statement. The MWAA filed a response to the original suit in April. But Williamson says the appeals court will have room to draw a different conclusion.

"This is a legal issue, not a factual issue, so the Circuit Court of Appeals has more ability to interpret the law differently," he says, "and disagree with the district court."

(Disclosure: one of the plaintiffs Cynkar is representing is an American University law professor. WAMU 88.5 is licensed to American University.)

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