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Widen I-77 loses legal bid to stop toll lanes

A judge ruled Friday that a contract for the construction of toll lanes on Interstate 77 north of Uptown is constitutional.

Opposition group Widen I-77 had brought the suit to halt the project, claiming that terms of the contract, and the state’s delegation of authority to the North Carolina Department of Transportation and Cintra subsidiary I-77 Mobility Partners for toll setting and other activities, were unconstitutional and violated state law.

Mecklenburg County Superior Court Judge W. Osmond Smith III made his ruling Friday, green-lighting the N.C. DOT’s $648 million contract with Spanish developer Cintra Infraestructuras to build the 26 miles of toll lanes.

Plans call for building one toll lane in each direction from the Brookshire Freeway near Uptown to Exit 36 in Iredell County, and converting the existing high-occupancy vehicle lane between Brookshire and Exit 28 into a toll lane. The developer will set the cost of using the toll lanes, raising and lowering the cost according to demand. I-77 Mobility Partners began clearing land and grading the area between exits 23 and 28 in November.

The arguments presented by attorneys representing the state and I-77 Mobility, and on the other side Widen I-77 attorney Matthew Arnold, centered on the legality of the contract, with Arnold contending that the agreement wasn’t in the public interest because it requires taxpayers to compensate I-77 Mobility Partners for lost revenue stemming from future competitive improvements, such as the addition of general purpose lanes to I-77.

In response, defense lawyers said the state could build a highway adjacent to I-77, a scenario that would not require compensation for lost revenue. Arnold said that wouldn’t be possible, due to the absence of land on which to build along sections of the highway.

The 50-year contract, Arnold said, was “a fantastic deal for (Cintra),” and would do “harm to the public good” because there are no caps on what I-77 Mobility Partners can charge to use the lanes. The increased congestion brought about by the area’s high growth rate will create more demand for toll lanes, he said, meaning that I-77 Mobility Partners can charge “what the market will bear.”

Scott Slusser, an attorney for the N.C. DOT, said it would not make sense for I-77 Mobility Partners to charge exorbitant rates to use the toll lanes, in part because such a move would divert users. The attorney for I-77 Mobility Partners, Mitchell Karlan, contended that the project did not have to benefit all users to be in the public interest, just some of them.

William Rakatansky, a founding member of Widen I-77 and former Cornelius town commissioner, said after Smith’s ruling that he thought the case was difficult for all involved. Smith, he said, relied on a belief that it would be the legislature’s purview to decide the issue.

Widen I-77 had sought this week to delay the ruling, saying it wanted to delay further legal action until after the Charlotte City Council and Charlotte Regional Transportation Organization take up the matter this month. Smith denied that motion before hearing arguments.

On Jan. 11, the council will direct its delegate to CRTPO, Mayor Pro Tem Vi Lyles, on how to vote at CRTPO’s Jan. 20 meeting in which the organization will decide on whether or not to remove the project from the region’s transportation plan. With a vote worth 46 percent of the total, Charlotte holds a near majority pull on the outcome.

Asked if the group would continue its fight, Rakatansky said he couldn’t speak for the other members of WIden I-77 but said he’d like for the council to direct Lyles to vote in support of nixing the project.

The N.C. DOT issued a statement regarding the court proceedings, saying “NCDOT appreciates the judge’s ruling and will now await the decision of local elected officials on whether they will continue with the optional tolls lanes strategy for the region, or vote to create a new transportation plan with new, viable solutions.”

The toll lanes have sparked intense debate among local politicians, residents and businesses.

Mecklenburg County Commissioners reaffirmed their opposition to the project after a lengthy debate Tuesday, voting 8-1 in favor of directing their CRTPO representative, Vice Chair Dumont Clarke, to vote in support of pulling the contract with Cintra out of the regional transportation plan and cancelling it.

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