State’s bridge toll hikes legality to be reviewed

In a case that could decide whether $4.5 billion will be used to improve regional transportation options, the California Supreme Court this week agreed to take up a challenge from taxpayer advocates on whether a $3 toll hike on Bay Area bridges is legal.

The case, which affects tolls on seven state-owned bridges, including the Richmond- San Rafael Bridge, is being closely watched by both government officials and transit activists. At its core is whether the toll hike required a two-thirds majority approval by voters in the nine- county Bay Area to pass rather than a simple majority.

Placed on the ballot by the state Legislature in 2017 and approved by 55% of Bay Area voters in 2018, Regional Measure 3 increases tolls on the seven stateowned bridges by $3 between 2019 and 2025. The next $1 toll increase is set to take effect in January 2022. The final increase is slated for January 2025.

Officials from the Metropolitan Transportation Commission, which manages the bridge tolls and revenues, said they were disappointed by the court’s decision to take up the case, but not surprised.

“What is unfortunate, really, is that we may be held in this limbo and having to escrow these funds for another year or longer,” MTC spokesman John Goodwin said.

About $200 million in toll revenues collected from the measure so far have been held in escrow ever since the Howard Jarvis Taxpayers Association and Oakland resident Randall Whitney filed their challenges against the measure in the San Francisco Superior Court in 2018.

If the measure is upheld, MTC plans to use the toll revenues to fund a variety of projects throughout the region including transit expansion, express lanes, sealevel rise adaptation and traffic relief among others.

These include a $135 million project to build a direct connector from northbound Highway 101 in Marin County to the RichmondSan Rafael Bridge; completion of the Highway 101 widening project in Marin and Sonoma counties known as the Marin-Sonoma Narrows; a $325 million project to extend BART train service further into Santa Clara County; and a $300 million expansion of express toll lanes in Alameda, Contra Costa, San Mateo, Santa Clara, San Francisco and Solano counties.

Currently, the state charges a minimum $6 toll for the Antioch, Benicia-Martinez, Carquinez, Dumbarton, Richmond-San Rafael, and San Mateo-Hayward bridges and between $5-$7 for the San FranciscoOakland Bay Bridge depending on the vehicle type and time of day. The Golden Gate Bridge is not affected by the measure as its tolls are managed by a separate district.

The Howard Jarvis Taxpayers Association argues the tolls are a special tax and not a fee because the revenue would disproportionately benefit people who use other modes of transportation, such as transit, and not the motorists paying the tolls.

Opponents of the measure argue upholding the toll hikes could set a precedent for how the courts interpret Proposition 26, the 2010 ballot initiative that broadened the definition of taxes versus fees. If the measure is upheld, it could lead to a trickle-down effect of the state charging exorbitant “tax-like” fees for the use of other public properties such as rights of way, shipping ports and water, the association argued in its court filings.

“This case is not just about bridge tolls,” said Tim Bittle, director of legal affairs for Howard Jarvis. “The way the court ultimately interprets that provision of Proposition 26 is going to spill over into a lot of other areas.”

The superior court rejected these arguments in 2019. The First District Court of Appeal upheld the lower court’s ruling in June 2020. Howard Jarvis requested the state Supreme Court review the appellate court ruling soon after.

In a brief filed with the state Supreme Court, attorneys for MTC and the state Legislature argue Proposition 26 specifically excludes bridge tolls and other fee charges to enter or use state property from the definition of a tax.

“A toll to cross a stateowned bridge is plainly such a charge,” the court filing states.

The Supreme Court is holding off its review of the toll measure, however, until it decides on a related case in Oakland.

The case, Zolly v. City of Oakland, is a challenge to nearly $28 million waste franchise fees the city charged to two waste hauling companies to use city property such as roads and sidewalks. Customers filed a lawsuit alleging the franchise fee charges, which are typically passed through to customers, were excessive and did not represent the actual costs of services, thus making them an improper tax.

The First District Court of Appeal rejected Oakland’s request to dismiss the case, causing the city to petition the state Supreme Court for review.

“It also apparently agreed that resolution of that legal question in the Zolly case will probably answer the question for the Regional Measure 3 cases,” Bittle said.

In its briefing to the state Supreme Court, the state’s attorneys requested the court review its case alongside the Zolly case rather than decide on Zolly first. They argued the Oakland case has no bearing on the toll measure as the issues and requirements only apply to local governments and not the state. The Supreme Court opted to hear the Oakland case first, however, with the initial briefs due on Thursday. Bittle said he does not expect a decision in that case until next year.

Dav id S chonbr u n n , whose San Rafael-based organization Transportation

Solutions Defense and Education Fund opposed Regional Measure 3, said the Supreme Court’s decision could have “huge” implications. He said he plans to file a brief with the court supporting the repeal of the toll measure.

Anne Richman, executive director of the congestion management agency, the Transportation Authority of Marin, said she is disappointed in the court’s decision. Multiple projects in the county including the completion of the MarinSonoma Narrows project between Sonoma and Novato are relying on these toll funds.

“The tolls are already being collected,” Richman said. “It’s frustrating to not be able to put them to use to get these projects going and provide the benefits when people are paying the tolls already.”