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STATE OF NORTH CAROLINA DEPARTMENT OF JUSTICE

ROY COOPER REPLY TO: ATTORNEY GENERAL Fred C. Lamar Transportation Section

June 11, 2002

William V. Bell Mayor, City of Durham 101 City Hall Plaza Durham, NC 27701-3328

MaryAnn E. Black Chair, Board of County Commissioners Government Administration Complex Durham, NC 27701

Re: Advisory Opinion: Highway Trust Fund; Northern Durham Parkway Alternative

Dear Mayor Bell and Chair Black:

In a letter dated May 6, 2002, you requested an advisory opinion from the Attorney General’s Office concerning funding issues relating to the proposed “Northern Durham Parkway Alternative.”1 Your inquiry includes a request for clarification of an advisory memorandum dated September 25, 2000, prepared by Special Deputy Attorney General Robert O. Crawford, III, and addressed to Janet D’Ignazio, Chief Planning and Environmental Officer for the North Carolina Department of Transportation (“NCDOT”). Specifically, you have asked the Attorney General’s Office for an advisory opinion answering the following questions:

1

The Northern Durham Parkway is a proposed alternative to the “Durham Northern Loop” defined and described in the N.C. Highway Trust Fund law, N.C.G.S. § 136-180 and 180.1. See also attached May 6, 2002 letter.

MAILING ADDRESS: TELEPHONE: 919-733-3316 LOCATION:
DEPARTMENT OF TRANSPORTATION FACSIMILE: 919-733-9329 TRANSPORTATION BUILDING
ATTORNEY GENERALS OFFICE 1 SOUTH WILMINGTON STREET
1505MAIL SERVICE CENTER RALEIGH,NC 27601
RALEIGH,NC 27699-1505
(1)
Does the 1995 legislation (N.C.G.S. § 136-180.1) give NCDOT the flexibility to reach the conclusion that the Northern Durham Parkway is eligible to be funded from the North Carolina Highway Trust Fund (“Trust Fund”); and
(2)
If, in the opinion of the Attorney General’s Office, the Northern Durham Parkway cannot be funded with Trust Fund moneys, in what manner can G.S. § 136-180.1 be revised or what new legislation can be “adopted that would be sufficient to allow the Northern Durham Parkway to be funded from the North Carolina Highway Trust Fund?”

A. Relevant History and Background

The “Durham Northern Loop” generally refers to a transportation facility to be located in northwest and northeast Durham and has been referred to historically as “Eno Drive-Gorman Road” in the Durham Area Thoroughfare Plan since 1967. The 1991 Durham-Chapel Hill-Carrboro Thoroughfare Plan also reflects this circumferential loop for the purpose of alleviating congestion from deficient radial routes in northwest and northeast Durham.2

In 1989, the North Carolina General Assembly created the North Carolina Highway Trust Fund which dedicated certain revenue sources for specific highway projects. N.C.G.S. § 136-175 et seq. Pursuant to N.C.G.S. § 136-176(b)(2) 25.05% of the funds are required to be allocated and used to plan, design and construct the “urban loops” described in N.C.G.S. § 136-180, including the “Durham Northern Loop.” The Trust Fund legislation defined the Durham Northern Loop as a “. . . Multilane facility on new location from I-85 west of Durham to US-70 east of Durham. . . .”

N.C.G.S. § 136-180.

In 1991, NCDOT initiated a corridor planning study for the purpose of identifying potential alternatives for the “Durham Northwest and Northeast Loop” as required by the North Carolina Environmental Policy Act (“NCEPA”). N.C.G.S. § 113A-1 et seq. A Draft Environmental Impact Statement (“DEIS”) was subsequently prepared and signed on October 26, 1994.

In 1995 additional legislation was passed which amended the Trust Fund by requiring supplemental procedures in the selection process for the Durham Northern Loop, including the following:

Prior to a decision on the proposed Durham Northern loop, the Department of

Transportation shall consider all alternatives advanced by interested parties

including improvements to existing corridors and consider neighborhood

2

NCDOT Northern Durham Parkway Alternative Evaluation,” April 2002, pp. 21-22

growth, economic development patterns and trends, the best protection for the

environment, and limitation on encroachment upon State Parks.

N.C.G.S. § 136-180.1.

In response to local opposition to the Durham Northwest and Northeast Loop alternatives identified in the DEIS, the City and County of Durham formed a joint City-County Planning Committee. The joint Committee, together with local business, environmental and political organizations and leaders, devised the “Northern Durham Parkway,” (“NDP”) as their preferred solution to transportation problems in northeastern Durham and to function as a substitute for the Northwest and Northeast Loop (TIP Nos. R-2630 and R-2631) and the proposed Durham Northern Loop.3 The route for the northwest segment of the proposed Northern Durham Parkway runs north from Interstate 85, on new location and existing roads, to north of the Eno River at U.S. 15-501. From U.S. 15-501, however, the proposed route consists solely of improvements to Roxboro Road and Duke Street running south into the center of Durham and intersecting with Interstate 85 at Duke Street.

In June of 1999, the City and County of Durham passed resolutions supporting the NDP. NCDOT agreed to conduct an evaluation of the NDP corridor using the same criteria used to evaluate the preliminary build corridors presented in the DEIS. The results of this evaluation were presented in NCDOT’s “Northern Durham Parkway Alternative Evaluation,” dated April 2002, prepared by H.

W. Lochner, Inc. (“NDP Evaluation”) and presented to a joint Durham City and County meeting on April 29, 2002. Three key issues were determined to be critical to the NDP Evaluation:

  • Is the NDP eligible for funding by the 1989 Highway Trust Fund Act as a “loop project”?

  • Is the NDP supported by federal and state environmental regulatory and resource agencies?

  • Does the NDP meet the purpose and need of reducing travel demand and relieving traffic congestion on the existing and planned arterial roadway network?

Both Lochner and NCDOT concluded in the NDP Evaluation that the NDP failed to meet each of the above identified criterion.

3

Id. p. 3

B. Legal Analysis

You have asked for clarification of Mr. Crawford’s opinion dated September 25, 2000. In that opinion Mr. Crawford concluded that the Trust Fund legislation reflects a legislative intent that each of the specified “urban loops” must be designed as a “route for through travelers primarily on new location encircling or bypassing a major metropolitan area.” He further concluded that the NDP’s proposed improvements to existing radial arteries entering the heart of Durham were inconsistent with that intent and were thereby ineligible for Trust Fund loop funding. We reaffirm those conclusions.

N.C.G.S. § 136-180 restricts the use of trust funds dedicated for urban loop construction to seven specified loop projects. Each of the seven projects is described in sufficient detail to reflect a legislative intent to create a system of multilane bypasses, either encircling or partially encircling a major urban area. The statutory description of the Durham Northern Loop specifies a “Multilane facility on new location from I-85 west of Durham to U.S. 70 east of Durham.”

It is well-established that where the language of a statute is clear and unambiguous the courts must give it its plain and definite meaning. Begley v. Employment Security Commission, 50 N.C. App. 432 (1981). Furthermore, when a statute is unclear in its meaning, the courts will interpret the statute to give effect to the legislative intent. In re Banks, 295 N.C. 236 (1978). In our view, the statutory description of the Northern Durham Loop is clear and unambiguous as to the parameters of a project in Durham eligible for Trust Fund loop funding. The statute requires a multilane by-pass of the City of Durham running from I-85 west of the city to U.S. 70 east of the city. However, even assuming that the Northern Durham Loop description is susceptible to more than one interpretation, we believe the statutory descriptions of the other six projects are consistent with and support our opinion that the legislature did not intend to fund improvements to inner city arteries such as those proposed in the NDP design with Trust Funds dedicated to loop projects. Had the legislature intended to fund improvements to inner city arteries, it could have done so.

Your opinion request suggests that the 1995 enactment of N.C.G.S. § 136-180.1 was for the purpose of allowing NCDOT to fund the proposed Northern Durham Parkway with Trust Fund loop funds. In support of this suggestion you specifically reference the following sentence:

Prior to a decision on the proposed Durham Northern Loop, the Department of Transportation shall consider all alternatives advanced by interested parties including improvements to existing corridors and consider neighborhood growth, economic development patterns and trends, the best protection for the environment, and limitation on encroachment upon state parks. (emphasis added)

We have reviewed Chapter 590, Section 14 of the 1995 (Reg. Sess., 1996) Session Laws (subsequently codified as N.C.G.S. § 136-180.1) and find no evidence of intent by the legislature to substantively modify the requirement that loop funds be restricted to the construction of multilane bypasses of major urban areas. Consequently, we find no basis for a conclusion that the phrase “. . . including improvements to existing corridors . . .” was intended to allow Durham Northern Loop funds to be used to improve existing, inner city corridors such as Roxboro Road and Duke Street. Such an interpretation would constitute a substantive modification to the concept of urban loops expressed in N.C.G.S. § 136-180 which should not, in our opinion, be assumed without clear evidence of legislative intent.

It is another well settled legal principle that statutes relating to the same subject should be construed in pari materia, in such a way as to give effect, if possible, to all provisions without destroying the meaning of the statutes involved. Carolina Truck & Body Co. v. GMC, 102 N.C. App. 262, cert. denied, 329 N.C. 266 (1991). The 1995 amendment must therefore be construed in conjunction with N.C.G.S. § 136-180, giving effect to the requirements and restrictions of both statutes. A harmonized interpretation results, in our view, in a conclusion that the 1995 amendment merely expanded available options to include consideration of existing corridors within the parameters of a multilane facility spanning the north side of Durham from I-85 west of Durham to

U.S. 70 east of Durham. We do not believe the 1995 amendment was intended to convert the statutory directive to construct a northern Durham bypass into an authorization for improvements to inner city traffic arteries. It is therefore our opinion that NCDOT cannot expend loop funds for the proposed NDP.

In regard to legislation which could potentially authorize funding the NDP from the Trust Fund, it would be inappropriate to suggest specific statutory language within the context of this opinion. In general, however, we believe such legislation should clearly reflect the intent of the General Assembly that the description of the Durham Northern Loop in N.C.G.S. § 136-180 is superceded by new criteria authorizing the use of loop funds for a project which includes improvements to existing, inner city corridors.

We also note that under NCEPA, if adoption of the NDP results in a project which fails to meet the purpose and need of the Durham Northern Loop, the project may be determined to be a new and separate “proposed action” requiring additional environmental analysis, including evaluation of additional alternatives. N.C.G.S. § 113A-4(2). Such additional analysis may further delay the project, as well as stimulate additional debate of the preferred alignment.

We trust this opinion is responsive to your inquiry.

Very truly yours,

Grayson G. Kelley Senior Deputy Attorney General

Reginald L. Watkins Senior Deputy Attorney General

Fred Lamar Assistant Attorney General

Attachment

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