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After Hearing, Judge Says He'll Rule By Friday On I-77 Lawsuit

David Boraks

  GRAHAM – A Superior Court judge in Alamance County says he will rule by week’s end on a request by anti-toll group Widen I-77 to delay the N.C. Department of Transportation’s plan to widen I-77 north of Charlotte using toll lanes.

Judge Osmand Smith III heard arguments Tuesday for and against the motion from a parade of lawyers from Widen I-77 and the two defendants in the case, the NCDOT and its contractor I-77 Mobility Partners. 

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  At issue is whether the NCDOT acted legally when it signed a 50-year contract last year with construction giant Cintra to widen 26 miles of the interstate using toll lanes. Cintra has created subsidiary, I-77 Mobility Partners, to build and operate the road. Tolls would vary depending on time of day and traffic levels, with a goal of guaranteeing a smooth ride to and from the city.

If the judge were to grant a temporary injunction, it would suspend all work on the project until the full case can be heard. If he denies the motion, the lawsuit still could go forward, but so would the $655 million widening project.

Tuesday’s proceedings came in a second-floor courtroom at the historic courthouse in the center of Graham, off I-40 east of Greensboro. Lawyers for both sides agreed to the venue, which is between Charlotte, where the lawsuit was filed, and Raleigh, where the NCDOT is based. About a dozen Widen I-77 were in the audience, along with lawyers, bankers and other aides for the two defendants.

Toll opponents won a small victory at the outset of Tuesday’s hearing, when the judge ruled that Widen I-77 had standing to sue. That allowed the hearing on the temporary injunction to go forward.

Widen I-77 leader Kurt Naas of Cornelius spent the rest of the morning – about 2 1/2 hours – leading the court through a presentations outlining his arguments against the project. Answering questions from his lawyer, Matt Arnold of Charlotte, Naas said he believes the project is illegal because it won’t relieve congestion, which was among the stated goals in legislation allowing public private partnerships (P3).

Naas quoted local, state and federal sources as saying that the project is not designed to eliminate congestion, but to guarantee a reliable travel time for those commuters willing to pay. “That is not what legislators wanted in the P3 statue,” Naas said.

Lawyers for the NCDOT and I-77 Mobility Partners argued that Widen I-77 had presented no evidence that it would be irreparably harmed if the judge denied the request for a delay in the project. But they said if the project is put on hold, it would cost both the state and I-77 Mobility Partners millions of dollars in “sunken costs.”

Mitchell Karlan, a lawyer for I-77 Mobility Partners said the company has about $17 million tied up in the project already, and the DOT has about $2 million. In addition, he argued that the Lake Norman area would lose out on the hundreds of millions of dollars in private investment in local roads, as well as “bonus money” the state has promised to areas that develop toll lane projects.

In closing arguments on the motion Tuesday afternoon, lawyers for the two sides amplified the legal arguments they put forward in briefs filed with the court. The gist for Widen I-77: That the DOT improperly delegated authority to a private company and that the project is not in the public interest.

Lawyers for the NCDOT and I-77 Mobility Partners/Cintra argued the opposite, that the NCDOT followed state law in developing the toll lane project and in its contract with Cintra. “The statute clearly permits a private toll lane,” said Mitchell Karlan, of the New York firm Gibson, Dunn & Crutcher, I-77 Mobility Partners’ lawyer.

Scott Slusser, a special deputy attorney general for transportation, argued the DOT’s case, saying that Widen I-77’s complaint “lacks merit and sufficiency.”

After the hearing, Naas said, “We had the opportunity to put our best foot forward and we’re going to have to wait for the judge’s ruling with regards to the preliminary injunction.

Mike Charbonneau, a spokesman for the NCDOT, said before Tuesday’s hearing: “We are continuing to move forward and this remains an important project for NCDOT and the I-77 Corridor. The project will bring much needed relief on one of the most congested roadways in the state by providing drivers with a choice for a more reliable travel time. As this point we can not comment on pending litigation.”

A spokeswoman for I-77 Mobility Partners said she could not comment on pending litigation.


See past coverage of the case under the Widen I-77 tag.