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September 7, 2015 1:45 AM, EDT

Judge Rejects Most Claims in Ohio Turnpike Lawsuit

This story appears in the Sept. 7 print edition of Transport Topics.

A federal judge in Ohio has dismissed all but one of seven claims asserted in a legal challenge against a plan by the Ohio Turnpike to use $930 million in toll revenue to pay for nonturnpike highway and construction projects.

The class-action lawsuit, filed in Ohio state court earlier this year by Cleveland area resident Melissa Ullmo, alleged the turnpike authority’s use of toll money to pay for other infrastructure projects was an “unlawful and politically expedient gimmick designed to avoid increasing taxes of general application.”

The lawsuit, transferred to federal court in April, said that drivers who do not use the turnpike benefit unfairly through the use of turnpike revenues for nonturnpike projects, while those who pay the tolls don’t benefit.

None of the projects is “functionally related to the turnpike,” the lawsuit said.

The Ohio Turnpike stretches for 241 miles through northern Ohio and is made up of portions of Interstate 90, I-80 and I-76. To travel the entire length of the turnpike would cost a 5-axle truck $37 with an E-ZPass and $46.50 without one.

But in dismissing six of the plaintiff’s seven claims in an Aug. 25 ruling, U.S. District Judge Dan Polster said the suit does not allege that funding nontollway projects “prevent people from entering into Ohio, nor does she [Ullmo] allege that it actually deters travel.”

Polster also said that turnpike users do benefit from their tolls being used for other infrastructure projects in Ohio.

However, Polster ruled that a claim that diverting toll revenues totaling $930 million to the unrelated projects is an “unlawful tax or user fee under Ohio law” is not a federal issue and should be sent back to the state court to be decided based on state law.

“This case is not going away,” James DeRoche, a Cleveland attorney representing Ullmo, told Transport Topics. “Frankly, we’re not particularly enamored with the decision from the district court. We think the court glossed over a lot of important legal precedents or didn’t pay any attention to them.”

DeRoche added, “It’s a very solid case. There’s no question they’ve basically used the Ohio Turnpike as a piggy bank to fund projects that would have otherwise been funded through general revenue, gasoline tax or other tax sources.”

Ronald Holman, a Cleveland attorney representing the turnpike, did not return a message seeking comment by press time.

Ullmo’s lawsuit stems from a 2013 decision by the Ohio Turnpike and Infrastructure Commission to issue $1 billion worth of bonds and use $930 million for 10 northern Ohio road projects to be funded with annual 2.7% toll increases from 2014 to 2023.

At the time, Rick Hodges, the turnpike commission’s executive director, called the plan a “true partnership” between the commission and the state Department of Transportation.

“No trips start or end on the turnpike, so our financial support of these projects is a benefit to the entire transportation system and turnpike customers as well,” Hodges said in a statement.

In her lawsuit, Ullmo specifically cited two infrastructure projects as “unlawful” examples.

The lawsuit said the increased tolls would be used to provide $39 million for the “Opportunity Corridor in Cleveland,” a landscaped urban boulevard with a bike-pedestrian path and pedestrian bridges.

Another nonturnpike project includes $12.9 million in improvements to U.S. 250 in downtown Cleveland, according to the lawsuit.

In a ruling last month in a similar lawsuit, a federal appeals court reinstated a 2013 lawsuit challenging the New York Thruway Authority’s use of millions of dollars in toll revenues to maintain the state’s canal system used mostly by tourists.

The lawsuit, filed by American Trucking Associations and three motor carriers, was dismissed last year by a federal district court judge on technical grounds.

ATA Deputy General Counsel Richard Pianka declined comment on how the Ohio case might impact ATA’s lawsuit.