Decision on U.S. 35 tolls awaits Mason commission's answer

CHARLESTON – Until it has heard from Mason County commissioners, the state Supreme Court has deferred rendering a decision on compelling the state Parkways Authority to move forward with proposed tolls on U.S. 35.

Among the last items on its docket before adjourning for its Fall 2010 term was a writ of mandamus submitted by the Authority to compel its executive director, Greg Barr, to move forward in implementing toll plazas on the remaining 14-mile stretch of the new U.S. 35 in Mason and Putnam counties. After meeting to approve it the day before, the Authority submitted the writ on Nov. 18 in response to the Mason County Commission's Nov. 10 decision to rescind its previous vote approving the tolls.

During this year's session, the state Legislature passed a bill allowing the Authority to work with the state Department of Transportation to create new toll roads other than the current portion of Interstate 77 between Charleston and Princeton. The bill required approval of the county commissions affected by the tolls before they could be implemented.

The Putnam County Commission voted unanimously to approve the tolls on Sept. 28. The Mason County Commission followed suit two days later, but by a 2-1 vote.

Rick Handley, a Democrat, cast the dissenting vote.

The Authority announced on Nov. 4 after an initial base toll of $2 for passenger vehicles, the tolls would increase $.25 every four years to a final rate of $3.75 until 2041. The final rate would remain in effect until the bonds sold to pay for the road were paid off in 2043.

After receiving numerous calls from residents who felt they'd been duped by the Authority, the Commission decided to revisit its earlier decision to approve the tolls. During the Nov. 10 meeting, the Commission vote 2-1 to rescind its Sept. 30 vote.

Miles Epling, a Republican, joined with Handley in voting to rescind its earlier decision. Because of the Commission's vote, Barr put on hold any more action on the tolls including public hearings in Winfield Dec. 7, and Point Pleasant Dec. 8 to discuss the $83 million in bonds needed to be sold to fund construction of the remaining portion.

In its writ, the Authority said Barr has "a nondiscretionary, statutorily required duty to hold public hearings on fixing tolls and issuing revenue bonds," and without any additional funding, finishing U.S. 35 "is not financially feasible." Also, it said the Commission's "'rescission'" is void as it "had no authority to revisit (much less rescind) its September 30, 2010 approval of the project."

Instead of ruling on the merits of the Authority's writ, the Court gave the Commission until Dec. 6 to submit a brief justifying its vote to rescind. In the meantime, the Court said Barr could tentatively move forward with the scheduled public hearings next month.

Justice Brent Benjamin recused himself from hearing the case. The reason for his recusal is not stated.

Taylor Circuit Judge Alan Moats was appointed in his place.

James S. Crockett Jr., Roger D. Hunter and Timothy D. Huston with the Charleston law firm of Spilman Thomas and Battle represent the Authority in the case.

West Virginia Supreme Court of Appeals case number 35757