NC: Duke won't back Durham-Orange light rail project. 'Major setback,' says GoTriangle

Feb. 28, 2019
Duke University will not sign a critical agreement needed for the $3.3 billion Durham-Orange light-rail project, GoTriangle officials announced late Wednesday.

Feb. 28--DURHAM -- Duke University will not sign a critical agreement needed for the $3.3 billion Durham-Orange light-rail project, GoTriangle officials announced late Wednesday.

"GoTriangle and local elected officials have worked closely with the university to address concerns so Duke's action today is especially disappointing," GoTriangle officials said in the release.

"This is a major setback for the Durham and Orange county communities and the entire Triangle region," they said. "GoTriangle will work with the elected officials in Durham and Orange counties and the Federal Transit Administration to assess all available options and decide upon a course of action."

Duke notified GoTriangle of its decision Wednesday in a joint letter from Duke President Vincent Price, Duke Executive Vice President Tallman Trask III and Duke University Health System President and CEO A. Eugene Washington.

"Notwithstanding these many good-faith efforts, it has unfortunately not been possible to complete the extensive and detailed due diligence, by the deadlines imposed by the federal and state governments, that is required to satisfy Duke University's, legal, ethical and fiduciary responsibilities to ensure the safety of patients, the integrity of research, and continuity of our operations and activities," they said in the joint letter.

The letter cited concerns that the light-rail project has become more complicated and faced growing financial challenges, in particular a $90 million elevated track that was proposed last year for the Erwin Road corridor. Raising the track was intended to address Duke's concerns about emergency vehicle access to its hospital and protection of a vital power line that runs under Erwin Road.

They also noted concerns for patient health and safety, saying the "acceptable tolerance for risk in these circumstances must be as close to zero as possible, and we have an obligation to our patients and the community to uphold that standard."

Several Duke concerns remain unresolved, they said, including electromagnetic interference with medical and research equipment, noise and vibrations, potential disruption of power and other utilities serving the medical center, and Duke's liability if something were to go wrong.

Duke had asked earlier this month for a $2 billion insurance policy from GoTriangle and the state of North Carolina to protect it from possible damages.

"Over the past 20 years, the light rail has gone through many changes in its proposed route, the equipment that would be used, the total cost, the funding sources and many other aspects of the project," Michael Schoenfeld, Duke's vice president for public affairs and community relations, said in an email.

"During that time, Duke has been consistent in communicating about the significant risks to patient safety that are created by placing a rail line down Erwin Road immediately adjacent to a busy hospital and biomedical research center, and we have always acted in good faith in our interactions with GoTriangle and other agencies," he said.

The cooperative agreement between Duke and GoTriangle would have been the last one necessary for the 17.7-mile light-rail line between Chapel Hill and Durham.

The next step, elected officials said Wednesday, is talking with the FTA about how this will affect the project. FTA officials already were planning a higher contingency budget because of the Duke and NC Railroad delays, Orange County Commissioner and GoTriangle board member Mark Marcoplos said.

N.C. Railroad officials, who signed a memorandum of understanding with GoTriangle in November, said in a news release Wednesday they are willing to sign a lease once engineering plans and other details are final.

Marcoplos said they also asked for an "unbelievably high," one-time payment next year as part of its negotiations. Half of the $30 million payment would be for insurance, he said, and half would be for a performance guarantee.

GoTriangle's engineering plans are only about 20 percent completed, according to N.C. Railroad officials. The lease would allow the light-rail trains to operate in and adjacent to the existing railroad through downtown Durham.

The plan has depended on Duke donating land for the light-rail corridor on Erwin Road. Without Duke's participation, officials have said the light-rail project is unlikely to advance to a federal funding application.

GoTriangle had been spending roughly $4.8 million a month since last year on the project. Estimates show over $130 million has been spent so far, including on environmental studies.

Half of that money could be refunded if the Federal TransitAdministration approves a $1.23 billion grant that GoTriangle has been counting on to fund half the project's construction cost. The FTA will consider Duke's position in deciding on the grant, if GoTriangle now continues to seek the grant.

The grant application has an April 30 deadline. A federal decision would be needed by Nov. 30 to meet a deadline for getting $190 million in state funding.

Eminent domain

Duke's decision came just hours after a Durham City Council member suggested GoTriangle could use eminent domain to force Duke to sell its land in the proposed light-rail corridor.

"How can the very economic trajectory of our region be determined by one wealthy, private landowner?" City Council member Mark-Anthony Middleton told The News & Observer and The Herald-Sun.

"I don't want to hear any more bellyaching from GoTriangle, nor prompting or cajoling from public officials about black folk going hat in hand to Duke begging for our economic future while not boldly and redemptively using the power that made us beggars in the first place," said Middleton, who is African American. "We've heard the case; now show us how serious you really are. Welcome to the unsexy part of the actual work of racial equity."

The grant application deadline is tight and makes it unclear if there is time to pursue taking of Duke land. Eminent domain would require a third-party appraisal and potentially could end up in court.

Orange County commissioners Marcoplos and Rich said they weren't sure eminent domain would be pursued. Even if GoTriangle did get Duke's land, Marcoplos said, they still would have to work with Duke officials on the project.

"The thing I can't get out of my head is how did we come to a place where probably less than five guys sitting in their ivory tower have (power) over a regional system like this," Marcoplos said. "They are responsible for wasting a lot of the taxpayers' money by misrepresenting what happened and using that to justify fact they didn't like (the light-rail plan)."

The Durham Coalition for Affordable Housing and Transit said in a statement Wednesday it is shocked and disappointed, calling it one of Duke's worst decisions in history.

"If President Price and his administration had tried to work as partners to address and resolve any concerns, the light rail project would be moving forward successfully," the coalition said in the statement sent by member and former state legislator and Durham Mayor Wib Gulley. "It is clear that the Duke administration never tried to work in good faith to support and advance this project," the coalition wrote.

"The Duke administration's choice may well kill this project, and today's decision will rank alongside Duke calling in city police to gas and beat students 50 years ago as one of the two worst decisions in the university's history," the statement said.

"We urge our elected leaders and GoTriangle to consider and pursue any and all other avenues possible to advance the light rail project that is so important to our community's future," said the coalition, which supports affordable housing at light-rail stops.

In a phone interview, Orange County commissioners Chair Penny Rich said Duke's decision shows the university is "honestly out of touch with the people in Durham."

Duke "should be ashamed, because it could be responsible "for killing this project and everything that comes along with it," Rich added. The light-rail project was expected to generate public and private investment in affordable housing, jobs and other economic development, in addition to forming one leg of a regional transitsystem.

"Everybody needs to take a deep breath now, and we need to figure out what are our options," Rich said.

Years of talks

Duke's decision also follows a 20-page GoTriangle report released Monday that outlined six years of talks with Duke about the light-rail project and how it might affect Duke's medical and research facilities.

The report and documents submitted to the Federal TransitAdministration during that time show Duke did not raise objections to the proposed light-rail route but did ask GoTriangle to move a station serving the Duke and Durham VA medical centers.

Project supporters and opponents have lobbied Duke in recent weeks.

After "an urgently considered vote," the Duke Faculty Union issued a news release Tuesday night urging Duke to back the project and help improve transportation "for the most marginalized members of society."

The Faculty Union represents instructors and lecturing fellows in Duke's Trinity College of Arts and Sciences, Graduate School and Center for Documentary Studies. Faculty with Duke's Nicholas School of the Environment sent a similar letter to Duke administrators Friday asking for them to reconsider their position on light rail.

Critics of the light-rail plan have petitioned Duke to continue opposing the project, which they have said is too expensive, connects too little of the Triangle and does nothing to ease congestion, pollution or increasing gentrification.

Middleton called on the Durham Committee on the Affairs of Black People, Durham CAN (Congregations, Associations and Neighborhoods), the People's Alliance, N.C. Central University, Coalition for Affordable Housing and Transit and the Durham Housing Authority to make their case not just to Duke, but to "ask those of us entrusted with immense power where our land grabbing, tunnel digging resolve has gone."

Middleton said when he and the rest of the City Council approved the rail operations maintenance facility rezoning in South Durham, parcels of that rezoned land were acquired through eminent domain.

"What makes Duke University so different?" Middleton asked.

Neighbors of the rail yard have filed a lawsuit over the rezoning.

If the light-rail project falls apart, the agreement among Orange and Durham counties, GoTriangle and the Durham-Chapel Hill-Carrboro regional transportation planning group requires them to meet within 15 business days to consider other solutions, including a search for other money; delaying, suspending or reducing the project; or stopping the project.

If they stop the project, officials would meet within another 20 business days to draft a new transit plan. If they can't agree, it would go to mediation and then an arbitration hearing before three judges: one picked by each county and one picked jointly.

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