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Letter: Transportation Bill: Possibly Unconstitutional

To the Editor:

The Connection on February 27, 2013 reported that former State Delegate Margaret Vanderhye said she was “outraged” that some Northern Virginia legislators had voted ‘no’ on the $6.1 billion comprehensive transportation funding plan (HB 2313) because of an alleged no-tax-increase pledge. However, bipartisan opposition to the bill by Northern Virginia legislators was prompted by fundamental flaws in the bill. Vanderhye’s earlier letter to The Connection on January 22, 2013 (“Getting Back to Business”), shows she too was against the bill before she was for it, for some of the very same reasons:

  • It replaces the 17.5 cents-a-gallon tax at the gas pump in part by imposing an additional sales tax that shifts the burden from road users (including from out-of-state) to Virginia shoppers. (Note that the gas tax also is replaced by a tax on gasoline wholesalers of 3.5 percent for unleaded and 6 percent for diesel fuel, costs likely to be passed on to consumers.)

  • It assumes tax revenue from an Internet Tax bill that is languishing in the US Congress, and if not passed by January 1, 2015, will result in automatic tax increases for Northern Virginia.

  • It punishes good practices aimed at achieving energy independence by imposing a new $100 fee on hybrid vehicles, alternative fuel vehicles, and electric motor vehicles.

State Senator Chap Petersen called the bill, which adds some 11 new or additional taxes, a “train wreck” and a “grotesque combination of tax cuts, tax rebates, tax increases, and new taxes, old taxes which are phased out and reappear elsewhere ...” He and State Delegate Scott Surovell, both attorneys, also question the constitutionality of essentially imposing a two-tiered tax system:

  • In Northern Virginia and Hampton Roads the state sales tax increases from 5 percent to 6 percent, while in the rest of the state it increases only to 5.3 percent.

  • A new “regional congestion-relief fee” of 0.25 percent is imposed on home sales in Northern Virginia, amounting to a tax of $1,250 on the sale of a $500,000 home.

  • A hotel tax of 3 percent is imposed in Northern Virginia.

  • For Northern Virginia only, if the above mentioned Internet Tax is not enacted by Congress, the wholesale gas tax for unleaded gasoline automatically increases from 3.5 percent to 5.1 percent.

In The Connection on February 28, 2013, Delegate Surovell wrote, “Balkanizing Virginia into regions of haves and have-nots is dangerous policy, illegal under the Constitution of Virginia, and antithetical to the concept of a commonwealth which is premised upon addressing statewide problems collectively and not regionally. We help downstate schools and the rest of the state helps with our roads.”

In a February 25 jointly-authored op-ed in the Washington Post, Paul Goldman, former Democratic Party chair in Virginia and Norm Leahy, a Republican, argued that Virginia’s transportation bill cannot survive a legal challenge because Article X, Section 1 of Virginia’s Constitution requires that all taxes “levied and collected under general laws” be “uniform upon the same class of subjects within the territorial limits of the authority levying the tax.” Article X, Section 4 of the Virginia Constitution also requires that real estate taxes be subject to “local taxation only”--and the 0.25 percent tax on home sellers was imposed by the General Assembly in Richmond, not local Boards of Supervisors.

Everyone agrees that Northern Virginia desperately needs more transportation funding. However, this was not the way to do it. I appreciate that our Delegate Barbara Comstock stood with a bipartisan group of other Northern Virginia legislators, including State Senators Adam Ebbin and Chap Petersen, plus Delegates Tim Hugo, David Ramadan, and Scott Surovell in voting against this bill. Virginia needs transportation solutions that are sound, equitable, and constitutional. Unfortunately, this transportation bill does not meet that test.

Anne C. Gruner

McLean