September 18, 2019
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Town, state await court ruling on toll booth dispute

Rich Beauchesne | The York Weekly
Rich Beauchesne | The York Weekly
A man pays at the toll booth in this file photo from The York Weekly.

AUGUSTA, Maine — What may be the last attempt by the town of York to stop the York toll plaza project played out in a Kennebec County Superior Court room last Wednesday, when a hearing was held in its appeal of a state decision to grant the Maine Turnpike Authority a permit for the work.

The town through attorney Scott Anderson argued the Maine Department of Environmental Protection erred in its findings that an open-road tolling plaza with cash and electronic lanes is the least damaging practicable alternative. Attorneys for both the DEP and MTA argued the DEP reached a reasonable conclusion based on the law.

[Dispute over state’s toll plaza plan lingers on]

Judge Michaela Murphy took the matter under advisement but promised a speedy decision.

Anderson staked the town’s arguments, as he has in the past, on what he sees as old and inaccurate information in a study commissioned by the MTA in 2014. This study paved the way for the MTA board to move forward with an open-road tolling project rather than an all-electronic tolling (AET) plaza. The facility is planned for Mile 8.8 on the turnpike, about 1.5 miles north of the existing facility.

Anderson told the judge the 2014 study indicated the MTA would lose revenue from AET from leakage (people without E-ZPass traveling through an AET gantry and not paying a toll) for the first four years after 2014, but after that the numbers would begin to skew in favor of AET as more and more people got E-ZPass.

“This is very important. The turnpike authority submitted its application (to the DEP) in 2016, knowing it would start the project in 2019” – roughly the year when things would start turning around, he said. “They knew the first four bad years were no longer valid when they submitted their application.” Therefore, he said, all the underlying assumptions in the study are flawed.

[Town appeals state decision on new toll plaza]

Anderson said the MTA should order a revised study based on current numbers but has not done so and told the DEP it stands behind the 2014 study’s conclusions. “The problem here is that the applicant submits information that it knows is inaccurate at the time the application is filed and the department (DEP) relies on that information,” he said.

Assistant Attorney General Peggy Bensinger, who represented the DEP, said Anderson’s arguments don’t get to the heart of what is at issue: the environmental impact of the proposed toll plaza. The project would impact only 1.4 acres of wetlands, and impacts on wildlife “are in the fringes.” The DEP concluded the MTA did a responsible job mitigating these issues.

“We balanced the small amount of impacts and determined the project would not result in unreasonable impact,” she said.

She said state law doesn’t require there be zero environmental impact; rather, the DEP looks at the entirety of the project in basing its decision. In this case, she said, the DEP concluded open-road tolling was the most practicable alternative considering all the evidence. Further, “even if the department had found that all-electronic tolling was practicable, this would not compel a determination that the impacts associated with open-road tolling were, overall, unreasonable under the department’s rules,” she wrote in her brief.

[Turnpike authority panel votes to replace York toll plaza]

As for Anderson’s arguments regarding the CDM Smith study, she said the MTA did submit more recent additional data to the DEP. She said it showed there are “more cash transactions now than was predicted in the original study. Recent data suggests the use of E-ZPass has not gone up as predicted in the CDM Smith study.”

MTA attorney James Kibreth said the fact Anderson “seems to suggest that the turnpike authority went into this knowing it had inaccurate data is frankly preposterous. We spent years studying this and there was tons of public participation. Once you decide, because of the nature of a turnpike, that you need a cash component, the project is defined by cash collection. That is a decision the turnpike is uniquely qualified to make.”

But Anderson remained adamant in final arguments. He said the study is too old, “and the further out the starting point, the more uncertainty there is. The 2014 report shows old observations.”

If the judge agrees with the DEP, the town could appeal that decision to the Supreme Judicial Court. However, when York selectmen made the decision to file the Superior Court appeal last fall, several members said publicly they had little appetite to go further. If the judge agrees with the town, she could vacate the permit.

The MTA has the necessary permits to begin the project, including one from the Army Corps of Engineers. If there is no appeal, MTA director Peter Mills said the authority would begin by undertaking work that will not impact travelers – such building its administration building and access road to Chases Pond Road. Road work would likely begin in the fall.

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