Law suit against local resident toll discounts lodged in Boston MA

A Rhode Island business college professor Carol Surprenant has launched a class action suit against the two Massachusetts tollers over their local residents toll discounts. She is questioning the constitutionality of the Turnpike's Tunnel Communities Resident Program under which residents of East and South Boston and the North End living near the Boston harbor tunnels get deeply discounted tolls. The suit also questions the legality of the similar Tobin Bridge Resident Program operated by the Massachusetts Port Authority.

The case lodged with US District Court in Massachusetts claims the discriminatory toll rates violate the US Constitution's:

- interstate commerce clause (art I, par8, cl3),

- the privileges and immunities clause (art IV, par2, cl1) and

- the plaintiff's rights under the Equal Protection Clause, by collecting higher tolls from non-residents than from residents using the same facilities in the same manner.

Present Mass Pike harbor tunnel tolls are $3.50 for cash and IAG E-ZPass transponder accounts, $3.00 for Massachusetts FAST LANE transponder account holders, and just 40c for tunnel communities residents.

The February 24 meeting of the Mass Pike board voted to increase tolls July 1 for cars at the harbor tunnels to $7.00 for cash and IAG transponders and to $6.00 for Massachusetts FAST LANE transponders while tunnel communities residents can continue to travel for just 40c.

Surprenant claims she has suffered discrimination since she has frequently used the Sumner and Ted Williams Tunnels traveling between her home in Rhode Island and Boston's Logan Airport. She has a Massachusetts FAST LANE account. Her travel was in the course of interstate commerce, including business and tourism. Similarly she has used the Tobin Bridge frequently in interstate commerce, probably for trips to New Hampshire and Maine.

The suit doesn't challenge transponder discounts or the different toll rates quoted for use of one state's IAG transponder account as opposed to another state's trnasponder. Massachusetts provides a discount to FAST LANE, the in-state account while charging the full cash toll to other IAG transponder users such as those with New York E-ZPass, New Hampshire E-ZPass, Maine E-ZPass or Illinois I-PASS.

Doran vs Massachusetts Turnpike Authority 348F 3d 315 (1st Cir 2003) upheld the constitutionality of special deals for holders of transponder accounts of one state or toll agency over those of another. In that case the court said out of state residents were not discriminated against since they were free to enroll in Massachusettts FAST LANE. New Yorkers for example who wanted to take advantage of Massachusetts FAST LANE discounts could open a Massachusetts FAST LANE account.

By contrast the Boston harbor tunnel communities and Tobin Bridge communities toll discount programs limit participation to residents of specified zipcodes.

The Mass Pike says:

"Annual FAST LANE Tunnel Communities Resident Program

Transponders for the Annual FAST LANE Tunnel Communities Resident Program may only be purchased and used by residents who reside in East Boston, South Boston, or the North End. You are not authorized to use this transponder if you are not an eligible resident. In order to qualify for the Tunnel Communities Resident Program, the following requirements must be met:
* You must be a resident of East Boston, South Boston, or the North End
(valid zip codes are 02128, 02127, 02210, 02109, 02113, 02110 and 02114)..."

It requires applicants to prove their residence within that area to be enrolled by producing documents showing they live within the eligible area.

The tunnel communities residents programs are not a decision of the Turnpike Authority, but are laid down in a state law passed in 1955.  Unamended, the law has frozen residents tolls, while the MTA has progressively raised other tolls.

Interstate commerce clause

The suit claims that the resident discount programs "discriminate against interstate commerce on their face by distinguishing between travelers eligible for a discount based solely on the location of their residence."

It continues: "Local residents are given a significant economic advantage over non-residents who are more likely to be – or in the case of out-of-state residents, by definition are – traveling in the course of interstate commerce. In other words, the MTA (Turnpike Authority) and MPA (Port Authority) have provided a substantial financial benefit to resident travelers utilizing primary conduits of interstate travel, while denying that same benefit to nonresident travelers. This type of economic protectionism (where, for example, a non-resident traveler is paying 10 times what a resident traveler is paying to utilize the Tobin Memorial Bridge) is exactly the type of discrimination the commerce clause (of the US Constitution) was designed to prevent."

And: "The defendants’ pricing scheme violates Article 1, Section 8, Clause 3, of the United States Constitution and, as such, is invalid. The fee is per se invalid in that it purposefully, and on its face, discriminates against out-of-state economic interests to the benefit of in-state economic interests. Moreover, the State cannot defeat the presumption of invalidity because the State cannot show that the discrimination is demonstrably justified by a valid local purpose unrelated to economic protectionism and that said purpose cannot be adequately served by reasonable nondiscriminatory means."

Equal protection clause

The second claim is under the 14th Amendment's Equal Protection Clause which denies the right of a state to deprive any person of their, in this case, "property" without due process of law, nor to deny "the equal protection of the laws."

They suit claims: "There is no legitimate, non-discriminatory government purpose served by the disparate treatment accorded resident and non-resident travelers utilizing the Tunnels and the Tobin Memorial Bridge. Accordingly, the Resident Discount Programs and defendants’ discriminatory pricing schemes fail to pass constitutional muster under either a strict scrutiny or
a rational basis test."

Privileges & immunities clause

The third basis is under Article IV, par 2 the Privileges and Immunities clause of the US Constitution which states that "citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states."

The suit claims: "The Privileges and Immunities Clause prohibits defendants from creating any classification that has the practical effect of discriminating against out-of-state residents. Here, non-residents suffer blatant economic discrimination because they cannot qualify for the Resident Discount Programs and are therefore uniformly required to pay higher toll prices."

A fourth basis for the suit is an equal protection clause of the Massachusetts constitution which they say prohibits discriminatory treatment, though it seems odd that this would be an argument in a US District court.

Another claim is that the discriminatory tolls provide for "unjust enrichment".

Lead lawyer is David Pastor. Three law firms are involved in the suit: Gilman and Pastor of Boston, Weiss & Lurie of New York, and Stull Stull & Brody of New York. (David Pastor 617 742 9700)

New York state has the most residents' discounts

New York state tollpayers would be heavily affected by the success of the Surprenant law suit because has the most resident discount schemes.

New York MTA Bridges & Tunnels (legally Triborough Bridge & Tunnel Authority) have local resident programs for:

- Staten Island residents for the Verrazano Narrows Bridge, their only direct fixed crossing to other boroughs of New York City, tolls are cars cash $10, IAG transponder $8.30, Staten Island Resident Token $6.70, Staten Island Resident E-ZPass $4.98

- residents of Rockaway an oceanfront peninsula across Jamaica Bay with a pair of toll bridges as direct access, the Marine Parkway and Cross Bay Vets, have this toll structure: cash $2.50, token $1.67, IAG transponder $1.55, Rockaway Resident Token $1.40, Rockaway Resident E-ZPass $1.03

Here are MTAB&T instructions:

"IF YOU LIVE IN A SPECIFIC AREA, YOU MAY BENEFIT FROM A RESIDENT DISCOUNT PLAN RESIDENT DISCOUNT PLANS 

MTA STATEN ISLAND RESIDENTS* Receive a $5.02 discount ($4.98 roundtrip versus $10 cash rate) on the Verrazano-Narrows Bridge. Vehicle must be registered to a valid resident address in Staten Island. Please note that vehicles used for commercial purposes are not eligible for residency plans. Residency status is subject to periodic review. (Plan Code: SIR) No required prepayment 

MTA ROCKAWAY/BROAD CHANNEL RESIDENTS* Receive a $1.47 discount per trip ($1.03 versus $2.50 cash rate) on the Marine Parkway and Cross Bay Bridges. The toll on the Cross Bay Bridge is rebated. Must be one of the following zip codes: 11691, 11692, 11693, 11694, 11695, and 11697. Vehicle must be registered to a valid resident address in Rockaway/Broad Channel. (Plan code: RR) No required prepayment." (End quote)

New York State Thruway

New York State Thruway only has one true local resident discount program - for residents of Grand Island in upstate New York, north of Buffalo. Grand Island is formed as the Niagara River splits and then rejoins, north of Buffalo, and just short of the famous Falls. The Thruway I-190 traverses the length of the island and the two bridges are the only connections to mainland USA. The Grand Island Bridge toll is 9c for registered residents vs $1.00 full toll.

The Thruway has four other plans designed to provide deeply discounted tolls for local commuters at:

- Tappan Zee Bridge

- Harriman mainline plaza near West Point,

- Yonkers at the far southern end near the NYC line

- New Rochelle on the Thruway's section of I-95 once known as the New England Thruway

None of these are strictly residency plans but are frequent user plans crafted to be of most value to local residents.

The Tappan Zee Bridge commuter plan has a monthly minimum Tappan Zee Bridge usage charge of $60 (20 trips at $3.00 per trip) vs. the full toll of $5.00 per trip. The Thruway New Rochelle Commuter Plan has a monthly minimum New Rochelle Barrier usage charge of $21 (20 trips at $1.05 per trip) vs. the full toll of $1.75 per trip.

PANYNJ Staten Island to NJ

Port Authority New York New Jersey does a frequent user plan crafted to help residents of Staten Island get more cheaply to and from New Jersey over its three SI-NJ bridges.  The per trip cost under this plan is now $4.00. The Staten Island Bridges Plan costs $80 for 20 trips to be used in a 35-day period at the Goethals Bridge, Outerbridge Crossing and Bayonne Bridge. The plan is available to all E-ZPass customers who enroll in the program and have non-commercial plates.

New Jersey Turnpike Authority has an resident discount plan for residents of two small communities in a bend of the Delaware River on the pearl Harbor extension of the Turnpike where it connects to the Pennsylvania Turnpike's far eastern end between Philadelphia and Trenton NJ. Called the Florence Resident Discount Program is applies to residents of Florence (zip code 08518) and Roebling (zip code 08554) and works for E-ZPass accounts held by registered residents of those two zipcodes. They get 70c off in peak hours when the normal toll is $1.95 and 50c off the normal non-peak toll of $1.45.

Delaware, Hudson Rivers

Delaware River Bay Authority at the Delaware Memorial Bridge provide deeply discounted frequent user plans. So do the upper Delaware River bridges run the Delaware River Joint Toll Bridge Commission, and on the upper Hudson River by the New York State Bridge Authority. Maryland Transportation Authority, New Hampshire DOT Bureau of Turnpikes and the Maine Turnpike all have similar deeply discounted frequent user tolls, but none are linked directly to local residency. They can equally be used by motorists who come into the area from outside on a regular or extended basis.  Most require that the authority's specific transponder be used, and are not available to motorists with transponders from other IAG members.

Rhode Island is a discriminator by residence too

And Carol Surprenant's state of Rhode Island would have to change its rules. Rhode Island Turnpike and Bridge Authority has its own residency requirement at the Newport Pell Bridge with a Rhode Island (RI) Resident with a RI issued E-ZPass transponder charged 83c, while a non-Rhode Islander even with a Rhode Island issued transponder pays $1.75, the same as FAST LANE and E-ZPass IAG account holders. (see table nearby)

David Darlington chairman of RITBA told us some weeks back - before we'd heard of the Surprenant suit - that his authority had legal advice that the discrimination by residence will pass constitutional muster. We'll see.

Political logrolling and equity

Residents programs are usually justified by officials as a matter of equity for communities that are especially heavily dependent on a toll facility for their mobility, usually because they are across water from major centers of employment and business.

Often the truth is simply that the resident communities lobby for an advantage and find politicians who will deliver it. Toll authorities sometimes see nearby residents as the strongest opponents of a toll increase and hope to reduce opposition by granting a beak to the vocal locals.

Alternative is frequent user program

Many toll authorities avoid the constitutional issue and still give locals a break with frequent user discounts. These are open to anyone to take advantage of although they are in practice mainly of advantage to locals because theya re the oens who travel most frequently. Toll authorities in Maryland, Maine, New Hampshire, New Jersey, Virginia and other states have such frequent user discounts.

They would be a fallback for Massachusetts, New York and Rhode Island if they are beaten by Surprenant.

TOLLROADSnews 2009-03-24 ADDITIONS 2009-03-25 16:00