Can the NC Department of Transportation fund the proposed Northern Durham Parkway, which includes improvements to existing inner-city roads like Roxboro Road and Duke Street, with Highway Trust Fund 'urban loop' money under § 136-176(b)(2)?
Plain-English summary
The 1989 NC Highway Trust Fund Act earmarked 25.05% of its revenue for specific "urban loops" enumerated in § 136-180. The "Durham Northern Loop" was defined as a "Multilane facility on new location from I-85 west of Durham to US-70 east of Durham." This is a bypass concept: a multilane highway running across the north side of Durham on new alignment to let through-traffic avoid the city center.
For more than a decade NCDOT studied alternatives in a corridor planning process under the NC Environmental Policy Act, producing a Draft EIS in 1994 with several loop options. Local opposition in Durham was significant. The City and County formed a joint planning committee and developed an alternative they called the "Northern Durham Parkway" (NDP). The NDP's northwest segment runs north from I-85 to north of the Eno River on new alignment, but from there it switches to improvements of existing roads (Roxboro Road and Duke Street) running south into the heart of Durham. In June 1999, Durham passed resolutions supporting the NDP.
NCDOT evaluated the NDP using the same criteria as the DEIS alternatives. In April 2002 its consultant (H.W. Lochner, Inc.) and NCDOT both concluded the NDP failed three key criteria: it was not eligible for Trust Fund loop funding, it was not supported by federal/state environmental agencies, and it did not meet the purpose of relieving congestion on the arterial network.
Durham asked the AG to clarify a 2000 opinion by Robert Crawford that had reached the same conclusion. Senior Deputy AGs Grayson Kelley and Reginald Watkins (with Assistant AG Fred Lamar) reaffirmed:
Statutory description of the loop is clear. § 136-180 specifies a multilane facility on new location from I-85 west of Durham to U.S. 70 east of Durham. Improvements to Roxboro Road and Duke Street do not match. The seven specified loop projects elsewhere in § 136-180 all describe bypass-style facilities, reinforcing that the legislature intended Trust Fund loop money to fund bypasses, not inner-city upgrades.
The 1995 amendment did not change the underlying loop concept. § 136-180.1 directed NCDOT to consider alternatives "including improvements to existing corridors," along with neighborhood growth, economic development, environmental protection, and limits on state-park encroachment. The AG read the "improvements to existing corridors" language as expanding alternatives within the multilane-bypass framework (e.g., using existing rights-of-way as part of the bypass route), not as authorizing inner-city upgrades that abandon the bypass concept entirely. Construing the two statutes in pari materia (Carolina Truck & Body) preserves the urban-loop concept while honoring the legislative direction to consider variations.
What new legislation would need to do. If the General Assembly wanted to authorize Trust Fund money for the NDP, it would have to expressly supersede the § 136-180 description. The AG declined to draft specific language but flagged that the change would have to be unambiguous.
NCEPA collateral effect. The AG noted that if NCDOT adopted the NDP and it no longer met the purpose and need of the Durham Northern Loop, the project might be a new "proposed action" under § 113A-4(2), requiring additional environmental review and stimulating more public debate.
Currency note
This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Highway Trust Fund has been restructured multiple times since 2002, the specific urban loop list has changed, and the Durham transportation network has evolved. Anyone analyzing current funding eligibility for a Durham-area transportation project should consult current Chapter 136 statutes, current NCDOT planning documents, and any updated NCEPA case law.
Background and statutory framework
The Highway Trust Fund's funding categories. The 1989 Trust Fund Act earmarks dedicated revenue (motor fuels tax increment, etc.) for specific transportation purposes: highway construction, urban loops, intrastate system improvements, and a few smaller categories. The urban loop earmark (25.05%) was a political compromise; it provided dedicated funding for circumferential highways around major metropolitan areas that historically had been neglected.
The seven specified urban loops. § 136-180 lists seven loops by name and route description (Charlotte, Greensboro, Winston-Salem, Raleigh, Durham, Asheville, Wilmington). Each description is keyed to particular highways and indicates new-location alignment. The Durham Northern Loop is the segment at issue here.
Why a bypass and not inner-city improvements. Urban loops serve through-travelers who do not need to enter downtown. Inner-city arterials serve local traffic. The two have different design parameters and different traffic effects. The legislature's choice to dedicate loop money to bypasses reflects the policy judgment that through-travel should be diverted around urban cores.
The 1995 amendment's modest scope. § 136-180.1 was enacted in 1995 (Chapter 590, Section 14 of 1995 (Reg. Sess., 1996) Session Laws) to require NCDOT to consider broader factors when picking among loop alternatives. The AG read the "improvements to existing corridors" reference as a permission to consider hybrid alternatives that mix new-location segments with rights-of-way improvements, not as a redefinition of what counts as a loop. If the legislature had meant to redefine the loop concept, it would have said so explicitly.
NCEPA's purpose-and-need framework. Under § 113A-1 et seq., NCDOT's environmental review starts from a defined project purpose and need. If the chosen alternative no longer meets that purpose and need, it is essentially a different project and the analysis must restart.
Common questions
Q: Could NCDOT fund the NDP from non-Trust-Fund sources?
A: Possibly. The Trust Fund loop earmark is the most plentiful source, but NCDOT has other funding categories (e.g., the regional transportation improvement program). Eligibility for those depends on the specific category's criteria, which the AG opinion does not address.
Q: What if Durham wanted to use local money?
A: Durham would have authority within its general municipal powers to build streets, but the NDP includes work on state highways (U.S. 15-501, etc.) that would require NCDOT cooperation. The local-versus-state funding split is a separate question.
Q: Did the 1995 amendment do anything substantive at all?
A: Yes. It required NCDOT to consider neighborhood growth, economic development, environmental protection, and state-park encroachment among the factors when choosing among loop alternatives. Before 1995 those factors were ad hoc; after 1995 they were mandatory considerations. The amendment did not, however, redefine what counts as a loop.
Q: Could a court reach a different conclusion if Durham pressed the case?
A: Possibly, but the AG's reading is the more natural one. The §§ 136-180 / 136-180.1 in pari materia analysis aligns with standard statutory construction principles. A court would have to find that "improvements to existing corridors" implicitly redefined the loop concept, which is a stretch given the clear bypass language in § 136-180.
Citations
Statutes and session laws:
- N.C.G.S. § 136-175 et seq. (Highway Trust Fund)
- N.C.G.S. § 136-176(b)(2) (25.05% allocation for urban loops)
- N.C.G.S. § 136-180 (seven specified urban loops)
- N.C.G.S. § 136-180.1 (1995 supplemental procedures for Durham Northern Loop)
- N.C.G.S. § 113A-1 et seq. (NCEPA)
- N.C.G.S. § 113A-4(2) (NCEPA alternatives analysis)
- Chapter 590, Section 14, 1995 (Reg. Sess., 1996) Session Laws
Cases:
- Begley v. Employment Security Commission, 50 N.C. App. 432 (1981) (plain meaning)
- In re Banks, 295 N.C. 236 (1978) (legislative intent when ambiguous)
- Carolina Truck & Body Co. v. GMC, 102 N.C. App. 262, cert. denied, 329 N.C. 266 (1991) (in pari materia construction)
Source
Original opinion text
(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.
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 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. 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.
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
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