NCDOT lawyer says I-77 toll lanes not meant to alleviate congest - | WBTV Charlotte

NCDOT lawyer says I-77 toll lanes not meant to alleviate congestion during court argument

RALEIGH, NC (WBTV) -

An attorney for the North Carolina Department of Transportation conceded the purpose of the I-77 toll lanes was not to alleviate congestion on the crowded highway corridor.

Special Deputy Attorney General Scott Slusser made the statement in an argument before the North Carolina Court of Appeals on Wednesday.

Slusser was responding to a question from Judge Lucy Inman about what the public purpose of the toll lanes along I-77 is.

In response to Inman’s question, Slusser said the purpose of the lanes is to “provide reliable travel time” to drivers on the highway and side-stepped a question about whether the lanes were meant to reduce congestion on the busy highway. Later in his argument, Slusser said engineers have estimated the lanes could reduce traffic by roughly ten percent.

The line of questioning came during an hour-long argument at the Court of Appeals on Wednesday in a case challenging the I-77 toll lanes filed by the anti-tolls group Widen I-77.

The group originally filed its challenge to the toll lanes in January 2015. The case was dismissed by Mecklenburg County Superior Court Judge Osmand Smith in February 2016. That decision was appealed, which is what led to Wednesday’s arguments.

Attorney Matt Arnold represented Widen I-77 at the hearing. Arnold boiled his argument down to two points: that the North Carolina General Assembly’s decision to contract with a private company to build toll lanes does not serve a public purpose and that the private company building the lanes should not be able to set toll rates at its sole discretion.

Arnold argued that by failing to set a cap on toll rates, the state has delegated its ability to toll drivers, something, he argued, should not be allowed.

But Mitch Karlan, the attorney representing the company building the toll lanes, I-77 Mobility Partners, said there cannot be a cap on toll rates in order for the lanes to keep traffic moving at a guaranteed speed as required by its contract.

Karlan said that the company needs to be able to adjust its price in five-minute intervals—higher if a large number of cars are using the lanes and lower if traffic is lighter. He argued that a high-occupancy lane like the ones being built along I-77 cannot work if the maximum rate that can be charged is capped.

Last fall, WBTV visited Atlanta, Georgia, where lawmakers have capped the amount that drivers can be charged to use toll lanes there. That cap was recently increased to reflect the recent demand—and, therefore, the amount of traffic—in the toll lanes.

Karlan also told the three-judge panel that the company would be incentivized to keep rates as low as possible to encourage enough drivers to use the lanes in order to generate enough revenue to pay back its debt.

“We have to generate enough revenue to repay bonds,” Karlan said, referring to the money I-77 Mobility Partners—and Cintra, its Spanish parent company—borrowed to build the toll lanes.

But a previous WBTV investigation found Cintra has a history of borrowing billions of dollars to build or toll roads, driving up the cost of tolls and then declaring bankruptcy when usage of its roads drop and the company can no longer pay its bills.

The company’s toll roads in Chicago, Indiana and Texas have each gone bankrupt. In Chicago and Indiana, the company still made a profit on the roads even after declaring bankruptcy by selling the toll rights.

Under its deal with North Carolina, if Cintra were to default on the I-77 toll lanes, North Carolina would have to cover its losses up to $175 million, NCDOT says on the project’s website.

Attorneys for both NCDOT and I-77 Mobility Partners pointed out that the public can use the toll lanes for free in some cases: those carpooling with three or more passengers, public transit vehicles, and emergency vehicles.

But, ultimately, attorney Matt Arnold and those behind the Widen I-77 group say that’s not enough to justify the project moving forward.

“That still doesn’t help the (Honda) Accord,” Arnold told the judges in response to the assertion that the public is served by limited free use of the lanes. “It helps the guy in the Lexus but not the guy in the Accord. Or the guy in the work truck. Or the tractor-trailer.”

After the arguments, Huntersville Commissioner Mark Gibbons said he hoped the judges were persuaded enough to stop the project.

“It just does not serve the whole public and that’s wrong for something that will hold us hostage for the next 50 years,” Gibbons said.

Representatives of NCDOT declined to comment following the court hearing Wednesday morning.

A spokesman for I-77 Mobility Partners declined to answer questions on camera but provided the following statement:

“We are very proud to be constructing an innovative transportation project that will help deliver traffic mobility options to motorists in the Charlotte and Lake Norman region. Progress on the construction of the I-77 Express Lanes is well under way and we are continuing to make significant progress towards project completion. We fully respect the judicial process and cannot comment further on pending litigation.”

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