CHARLESTON – A Kanawha Circuit Judge has denied the requests of the House of Delegates’ Majority Whip challenging the Parkways’ Authority’s implementation of a new toll rate schedule.
Gary Martin “Marty” Gearheart had filed a pro se amended petition in August against the West Virginia Parkways Authority and Executive Director Jeffrey Miller. He filed his initial petition in 2021. A hearing on the matter took place September 20.
Kanawha Circuit Judge Maryclaire Akers entered her order October 16 denying Gearheart’s requests to grand declaratory judgment, a preliminary injunction and a writ of prohibition.
Gearheart
| File photo
Gearheart said he was disappointed in the outcome but respects Akers’ decision.
“The intent of this statute was to create transparency,” Gearheart (R-Mercer) told The West Virginia Record. “This decision does the exact opposite. It puts in automatic toll increases, and it puts them in at the total amount allowed.”
Gearheart had challenged the implementation of a tolling policy and toll rate schedule that, beginning in 2022, would be subject to an automatic increase of 1.6 percent per year rounded to the nearest quarter on the cash rate as well as an automatic increase of 5 percent on the E-ZPass Program that would increase 5 percent every three years without further action by the Parkways Authority.
In its response, the authority said these adjustments were planned in 2018 in connection with the issuance of $166.4 million in toll road revenue bonds to finance repair projects on the state road system.
State code gives the authority the ability to operate parkway projects and to increase rates and tolls. The authority is required to provide public notice and meeting.
The authority maintained that it satisfied all of the legal requirements for the implementation of the 2018 tolling policy and toll rate schedule.
Gearheart argued that these procedures must be followed each time there is an adjustment to the fixed toll rates and the E-ZPass fee because they actually are increases.
“Essentially, petitioner (Gearheart) is arguing that the automatic ‘adjustments’ fall under the requirements for public notice, meeting and publication requirements because the ‘adjustments’ would ‘result in an increase of any toll rates or charges or fees,’” Akers wrote in her order. “On the other hand, the authority argues that it only has to meet the requirement set forth when an initial rate is set or when there is an increase to the underlying toll rates or $25 fee, it does not have to ‘re do’ public notice and meeting each time fixed toll rates and the $25 E-ZPass fee ‘adjusts.’”
The authority also argues that the 1.6 percent annual and 5 percent every three years is an adjustment, not an increase.
In her order, Akers says the authority was within its power to adopt and implement the tolling policy and toll rate schedule, adding the public was properly noticed and given opportunity to attend four public meetings on the matter.
She also said if the underlying statute authorizing the auctions of the authority was ambiguous, the authority’s interpretation of the statute is reasonable and does not exceed the bounds of its authority.
Gearheart was a vocal supporter of eliminating the tolls on the West Virginia Turnpike in the past. Without an E-ZPass, a trip from his hometown of Bluefield to Charleston and back would cost $25.50 on the Turnpike.
The House of Delegates did pass a cleanup of this measure in the last session, but the state Senate didn’t take it up. Gearheart said he thinks the Senate will take a closer look at it now.
Kanawha Circuit Court case number 24-P-457