Pitchfork Rebellion: Dulles Rail tax district challenge
By: Barbara Hollingsworth
Local Opinion Editor
04/02/09 4:55 PM EDT
Tomorrow, (April 3) General Counsel PC attorney James Markels will appear before Fairfax Circuit Court Judge Jane Marum Roush to challenge the constitutionality of the special tax district created to fund Fairfax County’s share of the Dulles Rail boondoggle.
It should be quite a show.
Markels will argue that not only does the special tax district violate the Virginia Constitution, but so does Fairfax County’s general transportation tax because both taxes are being imposed on commercial and industrial properties, but not residential property as well. Under the state constitution, all real property must be uniformly taxed except for very specific exceptions spelled out by the General Assembly. Which obviously didn’t happen this time.
Besides the constitutional argument, case law in Virginia is clear, Markels told me. If the purpose behind imposing a particular tax benefits everybody - as transportation improvements clearly do - everybody must contribute, not just a particular subset of taxpayers. So requiring businesses, but not homeowners, to chip in for Dulles Rail and other transportation improvements in Fairfax County is unfair, he claims.
On behalf of his client, a landowner in Tysons Corner, Markels will ask Judge Roush to order the county to stop collecting both taxes and refund what it’s already collected to taxpayers, including about $110 million already collected for Dulles Rail that has not yet been spent.
“The county can’t cherry pick,” he added. “ There will be some political issues if residential property is included, but it’s the county’s job to convince homeowners that [Dulles Rail] is in their best interest.” Which will happen when pigs fly.
In 2003, constitutional lawyer Gil Davis filed a lawsuit against the Commonwealth of Virginia and the Fairfax County Board of Supervisors trying to obtain an injunction prohibiting further advancement of the Dulles Rail project, which Davis contended was in violation of the Virginia Public Private Transportation Act (PPTA) because, among other irregularities, no private money was involved.
But Davis’ suit was thrown out by Judge Roush without a hearing on the merits. She then proceeded to fine him for having the nerve to bring up the unpleasant matter of the government violating its own rules.
It will be interesting to see if Her Honor tries the same approach again, knowing that the Pitchfork Rebellion is watching the bench like never before.
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