30 Crossing loses 2012 tax funding
Project is wider than law allows, court says
The Arkansas Department of Transportation cannot use money raised from the 0.5% statewide sales tax devoted to road construction on any highway wider than four lanes, which includes the nearly $1 billion 30 Crossing project, the state Supreme Court ruled Thursday.
Voters approved the tax in 2012 when they adopted Amendment 91 to the Arkansas Constitution as part of a $1.8 billion program focused on regionally significant projects such as the Interstate 30 corridor through downtown Little Rock and North Little Rock.
At one point, more than 65% of the cost of 30 Crossing was supported by revenue from the sales tax. A mix of other federal and state transportation dollars provided the balance of money available for the project.
But the state’s high court said in a 6-1 decision that all of the money for the project will have to come from sources other than the sales tax because of the wording in Amendment 91.
“The repeated reference to ‘four-lane highways’ and the lack of a specific reference to six-lane interstate highways means the Amendment 91 funds cannot be used for the latter,” Associate Justice Josephine Linker Hart wrote. “Certainly, if the General Assembly intended that the tax imposed by Amendment 91 be used for major improvements to sixlane interstate highways … the drafters could have expressly so stated.”
The ruling came in the appeal of a lawsuit filed in November 2018 in Pulaski
vCounty circuit court by a handful of Arkansas residents who said a “plain reading” of Amendment 91 limited spending of the sales tax proceeds to four-lane roads.
Circuit Judge Chip Welch ruled in September 2019 that the use of Amendment 91 monies on the two projects was permissible and not, as the plaintiffs contended, “an illegal exaction.”
“In this judgment, the court holds that the term ‘four-lane highway system’ was intended to encompass parts of the state system which expanded beyond fourlane roads,” Welch wrote.
I-30 in downtown Little Rock and North Little Rock is a six-lane road being widened up to 10 lanes. So is another project that was subject to the lawsuit, a section of Interstate 630 in west Little Rock. That $87.4 million project is already finished.
It was unclear Thursday what the ruling means beyond that the Transportation Department no longer can spend the Amendment 91 money on 30 Crossing. The ruling didn’t address the Amendment 91 money already spent on 30 Crossing or I-630.
“We are very pleased with the Supreme Court’s opinion today and their decision to make sure that these funds are used for what the voters intended,” Justin Zachary, a Conway attorney representing the plaintiffs, said in a statement released shortly after the ruling.
The Transportation Department was slower to respond, not releasing a statement from the Arkansas Highway Commission until after 5 p.m. to express its dismay.
“While we respect the Arkansas Supreme Court’s ruling regarding Amendment 91 funds as they relate to the Interstate 630 and 30 Crossing projects, the decision itself is a disappointing one,” the onepage statement said.
The ruling didn’t appear to immediately affect work on the project, which remains in its early stages.
On Thursday, after the ruling, the department announced a series of lane closings on I-30, its frontage roads and city streets starting Monday and a major shift in traffic for the following weekend.
Still, the ruling represents a setback to the most expensive project it has undertaken to remake the 6.7-mile corridor that stretches between Interstate 530 in Little Rock and Interstate 40 in North Little Rock that includes the Arkansas River bridge. The entire project also includes improvements to a section of I-40 between I-30 and U.S. 67/167 in North Little Rock.
The corridor is the highest-volume route in the state, with 120,000 vehicles using it daily.
Given the corridor’s importance to the state highway network as a “central connector in our overall vision for what was promised in 2012,” the commission said it intends to keep its promise to voters to complete the project.
The commission and the department “will begin investigating alternative ways to fund this project consistent with the Supreme Court’s order,” the statement said.
The first phase of 30 Crossing is underway. The department decided to build it in phases after total project costs ballooned to nearly $1 billion.
But Richard Mays, a Little Rock attorney who engaged in separate litigation challenging the project, said the Supreme Court ruling is a potentially crippling blow. Amendment 91 money accounted for about $450 million, he said.
“I don’t see how they build the first phase,” Mays said.
The ruling also came just five days before voters go to the polls to vote on another proposed constitutional amendment that would create another 0.5% sales tax for funding road and bridge construction. It would take effect when the Amendment 91 sales tax, which was passed for 10 years, expires in 2023.
If voters approve Issue 1, state officials project the state Department of Transportation would receive about $205 million a year, while cities and counties would each get about $44 million a year for their roads.
Hart, in her eight-page ruling, was joined by Associate Justices Karen Baker, Robin
Wynne and Courtney Hudson, as well as Chief Justice Dan Kemp, with unwritten concurrence by Associate Justice Shawn Womack.
“The term ‘four-lane highway’ appears more than 30 times in Amendment 91,” Hart wrote. “The phrase is given a specific meaning that is plain and unambiguous. Conspicuously absent from Amendment 91 is any reference to six-lane interstate highways.
“Given the repeated reference to ‘four-lane state highways,’ we must conclude that the maxim, ‘expressio unius est exclusio alterius’ applies to the case-at-bar. The phrase expressio unius est exclusio alterius is a fundamental principle of construction that the express designation of one thing may properly be construed to mean the exclusion of another.”
Associate Justice Rhonda Wood wrote a separate opinion concurring in part and dissenting in part, writing that the grammatical construction of the amendment allows for bridges exceeding four lanes to be built and therefore the I-30 bridge over the Arkansas River was a permissible project under Amendment 91.
“The majority demolishes a massive construction project without compelling analysis,” Wood wrote. “Even though Amendment 91 allows spending on bridges, the majority restricts spending to those bridges having only four lanes. This holding contradicts the Amendment’s plain language and our rules of textual construction.”