91 Express Lanes: Only fraction of $860M collected in fees, penalties used toward improving roads

It's a story that bureaucrats and politicians along the 91 Freeway Express Lane corridor didn't want to talk about.

FOX 11 wanted to ask them about how more than $860 million collected in fees and penalties on the toll lanes has been spent. 

Over several weeks, FOX 11 reached out to the Orange County Transportation Authority, some of its board members, county supervisors, state senators and even the Democratic and Republican chairs of the Assembly transportation committee, but all either declined to go on camera or ignored our requests.

"It's expensive," said Kenny Tran a commuter who says he spends between $1,200 and $1,500 a year on the Express Lanes. "It saves me about an hour and a half each day."

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His fees are just part of $860 million collected so far since 2003 on 10 miles of Express Lanes. Most of that money was collected in fees and penalties, but a small fraction came from interest payments, according to figures we obtained from the OCTA. 

Of that amount, only $46 million has gone back into improving the roads.

That has Inland Empire resident Dianne Loch calling it highway robbery. She says the money should be spent on "bettering the roads." 

She tells us she moved out of Orange County in 2003 with the understanding that leaders had a plan and congestion would improve, instead she says it's gotten worse.

"That is scandalous and someone needs to be held accountable for where the money is going and how it' being used," said Jamie Court, of Consumer Watchdog, one of the state's most vocal consumer advocacy groups. 

In 2003, state lawmakers cleared the way for the OCTA to buy the Express Lanes from the private company CPTC for just over $200 million. The move let transportation officials get out of a non-compete clause that barred them from widening or improving the freeway.

No one from the OCTA would go on camera, even though we asked numerous times over more than a month. The agency, instead, tells us the biggest chunks of money have been spent in two categories. Principal and repaying loans taken out to buy the lanes make up about $210 million. 

Another $283 million went to operating costs, which included $6 to 8 million a year to the company Cofiroute, USA to manage the lanes, the company was also one of the original investors. About a million a year also went just to credit card processing fees. The rest went to the California Highway Patrol, Caltrans maintenance, lease payments and violation processing fees.

"I want to know how much of that money is going to perpetuate a bureaucracy because the only thing on that list that I hear that is benefiting people is Caltrans maintenance road," Court said. "Everything else is a fee or professional bureaucracy."

In a statement, the OCTA wrote, "OCTA’s purchase of the 91 Express Lanes has directly resulted in the investment of nearly $2 billion to improve the regular 91 lanes and another $1 billion is planned over the next 20 years. Any assertion that toll revenues are not being thoughtfully invested for the public’s benefit is incorrect. We are proud of our finances and transparency."

The agency said a few years ago there was a change in policy and insists, " almost 750 million is planned to go into future projects" and adds it has already set aside more than $165 million in reserves for two future projects.

"The promise to use for future projects doesn't hold much water," said Court, pointing out they have had almost two decades to make improvements. "It's because they are under fire, they're under fire in the courts and somewhat in the legislature."

The OCTA denies that, but the agency along with other toll road operators recently settled a class-action lawsuit which could get you a refund or penalty forgiveness if you use a Fastrak on the 91. The suit alleged the OCTA and Cofiroute improperly shared private information of users with a third party. OCTA admitted no wrongdoing. You can find details by clicking here. 

"Someone is making a fortune off this scheme and it isn’t the people of California," said Roger Buffington, an attorney who has settled dozens of claims for what he calls unconstitutional fees. 

He was not part of the class-action lawsuit, but says his past clients have amassed tens of thousands of dollars in penalties. 

The OCTA's own numbers show they've collected $25 million in penalties in just the last five years. The agency insists its violation and late fees are consistent with other toll roads and necessary to keep violators out.

"I think California legislature needs to look at this whole regime and if they really want to keep toll lanes in California, which I think is a dreadful idea," Buffington said. "They ought to ensure that it doesn't become a trap for the unwary, which it is now."

"I think the people using the toll roads deserve a big refund," Court said.

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