U.S.Deportment 

of Transportation 

1200 New Jersey Avenue, SE. 

Washington, DC 20590 

Federal Highway 

Administration 

MAY 01 2018 In Reply Refer To: HCR-20 

DOT# 2016-0015 

James H. Trogdon III 

Secretary ofTransportation 

North Carolina Department ofTransportation 

1 S. Wilmington Street 

Raleigh, NC 27601 

Subject: Letter ofFinding (LOF) DOT 2016-0015 

Dear and Secretary Trogdon: 

The Federal Highway Administration (FHW A) Office ofCivil Rights (HCR) has completed its 

investigation ofthe above-referenced complaint and issues this Letter of Finding (LOF) to 

summarize the results. The complaint was filed pursuant to Title VI ofthe Civil Rights Act of 

1964 against the North Carolina Department ofTransportation (hereinafter Respondent, 

Recipient, or NCDOT) by on behalf ofthe residents ofthe Hayestown 

neighborhood ofDurham, North Carolina (Complainant). 

Based on the available data and information, FHWA finds that there is insufficient evidence that 

the Durham East End Connector Project will create adverse, disparate impacts in violation of 

Title VI. FHWA finds that even if the selection of the Preferred Alternative would result in 

adverse, disparate impacts, a substantial legitimate justification exists for the Respondent's 

actions and a less discriminatory alternative has not been identified. In addition, FHWA finds 

that the Respondent did not intentionally discriminate in its selection ofthe site for the Project in 

violation ofTitle VI. 

I. Procedural Background 

a. Complaint Processing 

On September 25, 2015, a resident ofthe 1-layestown neighborhood in 

Durham, North Carolina, filed a written complaint against the Respondent, the North Carolina 

Department ofTransportation, with the Federal Transit Administration (FTA). The FTA 

transferred the complaint to the FHWA on October 22, 2015. 

b. Issues Raised by the Complainant 
The Complainant alleged the Respondent discriminated against the African American residents 

ofthe Hayestown neighborhood in Durham, North Carolina in violation ofTitle VI and the 

USDOT Title VI regulations (collectively Title VI) by selecting the Preferred Alternative for the 

East End Connector Project (Project). On November 30, 2015, FHWA accepted the complaint 

for investigation. Specifically, FHWA's investigation focused on the following allegations: 

1. The adverse impacts ofthe Respondent's East End Connector project fall 

disproportionately on persons on the basis of race; in addition, less 

discriminatory siting alternatives were available and the Respondent did 

not pursue them. 

2. The Respondent's selection ofthe site for the East End Connector project 

constituted intentional discrimination on the basis ofrace, in violation of 

Title VI. 

c. The Complainant 

The named Complainant is an African American resident ofthe 

Hayestown neighborhood in Durham, North Carolina 

. has been active in the Durham and Hayestown 

communities, participating in the City ofDurham (City) and NCDOT public participation 

process for transportation in Durham. Regarding the Project, advocated against 

constructing the Project prior to the development ofthe EA. He also served as a member of 

NCDOT's ad hoc citizen's committee for the Project, which was formed with the intent to 

minimize impacts to the area. 

II. Factual Background 

a. Description of the Hayestown Neighborhood and Surroundings 

The Hayestown Neighborhood is an area comprised of approximately 145 households in eastcentral Durham (Hayestown). It is located in the study area identified by the Durham-Chapel 

Hill-Carrboro Metropolitan Planning Organization (MPO) for the Project and is bounded by 

Angier A venue to the south, East End A venue to the north, Rowena Street to the east, and abuts 

CR Woods park and other city-owned land to the east and south. A depiction ofHayestown is 

shown in Figure 1. 1 

Figure 1 

1 Map source: U.S. Census, American FactFinder website: http://factfinder.census.gov. For the purposes ofgathering 

the relevant Census data, and because the precise boundaries are not defined elsewhere, FHWA included the shaded 

Census Blocks depicted in Figure 1 that are located within, or partially within, the Hayestown neighborhood, as 

being included in the neighborhood. 

2 
Hayestown Neighborhood 

(..., U I t\ J 

1031 

',',,:lrlor, i ,-• r 

a c 

,, 

4013 

.s ) I Ii 

-~ 

For a comparison to the Project Study Area (outlined in yellow), see Figure 2, where Hayestown 

is outlined in the red triangle.2 

Figure 2 

2 Map source: East End Connector Community Impact Assessment Report, North Carolina Department of 

Transportation, Figure 3-1, p. 46 (February 2008). 

3 
--------------..._ -

) 

Hayestown is currently categorized as " low density residential" by the City. Low density 

residential is defined as 1 to 4 dwelling units per acre.3 The area where the Preferred Alternative 

will be constructed is primarily a mixture oflow density residential, agricultural, and vacant 

land. A land use map showing (1) Hayestown and (2) the area between NC147 and US 70 where 

the Preferred Alternative is located (east-west, north ofCarter Ave.) is shown in Figure 3.

4 

Figure 3 

3 East End Connector Community Impact Assessment Report, North Carolina Department ofTransportation, p. 40, 

(February 2008). 4 East End Connector Environmental Assessment, North Carolina Department ofTransportation, Figure 3-6, p. 3-26 

(December 16, 2009) https://www.ncdot.gov/projects/eastendcmmector/download/Environmental.pdf. 

4 
Current Land Use Map for Hayestown Neighborltood and Surrounding Area 

LEGEND 

D L.owOensii;' . 

Residenllal 

- Ml!ldiumOenst, ~t Resldenlal 

12 r ~ - Hiljl Density 

Resklenlal "' 

D AgriclA!lral 

- Canrrn.my Service 

- Commercial 

D kldustrial 

D K'rstorical 

- Plt>lic Sa-roe 

- R41creatian.4'alb 

Other/ Vacant • D 

Regarding future land use, the City expects Hayestown to move from low density to become 

medium density residential with some additional commercial use.5 

b. Hayestown Demographic Profile & Affected Communities 

Title VI requires that Recipients collect and analyze demographic data to ensure their programs 

and activities do not create a disparate impact based on race, color, or national origin.

6 For 

construction projects, Recipients must determine the demographics for a reasonable geographic 

area that encompasses potential direct and indirect effects due to the project. For the Project, the 

Respondent identified the demographic breakdown ofthe census tracts and block groups 

associated with the "study area," whlch constitutes an area likely to realize direct and indirect 

impacts from the Project. The Respondent's study area for the Project included the Hayestown 

neighborhood. The relevant 2000 U.S. Census data used in the Respondent's Environmental 

Assessment (EA) is shown in Table 1.7 

Table 1 

5 East End Connector Environmental Assessment, pp. 3-24 - 3-25 and Figure 3-7 (December I 6, 2009) 

https://www.ncdot.gov/projects/eastendconnector/download/Environmental.pdf. 6 23 C.F.R. § 200.9(b)(4). 7 East End Connector Community Impact Assessment Report, North Carolina Department ofTranspor1ation, p. I 3, 

(February 2008); Note: for Hayestown, FHWA used U.S. Census Bureau Table P004, HISPANIC OR LATINO, 

AND NOT HISPANIC OR LATINO BY RACE, Census 2000 Summary File I (SF I) I 00-Percent Data. 

5 
African American Population in Study Area - 2000 Census 

Total 

Population 

WhiteNot 

Hispanic or 

Latino 

Population 

White 

Not 

Hispanic 

or Latino, 

Percent· 

Black/ 

African 

American 

Alone 

Population 

Black/ 

.M'rican 

American 

Alone 

Percent 

Durham County 223,314 113,698 50.91% 88,109 39.46% 

Study Area 23,285 7,343 31.54% 13,578 58.31% 

Hayestown 362 45 12.43% 289 79.83% 

While the geographic boundaries ofthe Study Area for the 2000 Census are not directly 

comparable to the 2010 Census, FHWA also reviewed the 2010 Census data for Durham County · 

and the Hayestown neighborhood. 8 These data are summarized in Table 2. 

Table2 

African American Population in Study Area - 2010 Census 

White Black/ ·Black/ White Not Not AfriCJID African Totial Bisp~icor Hispanic; . Ameri~n .Anlerican foeulation .La6110 or Latino: Alone Alone Population Percent· Pooulation Percent 

Durham County 267,583 112,697 42.12% 100,260 37.47%

Hayestown 404 27 6.68% 270 66.83%

For a visual depiction of the Hayestown African American population in the context ofthe City, 

see Figure 4, in which the approximate location of Hayestown is noted by the purple triangle. 9 

Figure 4 

8 U.S. Census Bureau, Table P9: HISPANIC OR LATINO, AND NOT HISPANIC OR LATINO BY RACE, 20IO 

Census. 

9 EJ Screen map of Durham, NC showing the percentage ofthe African American population that is not Hispanic 

based on the 2010 U.S. Census (accessed September 13, 2017) https://ejscreen.epa.gov/mapper/. 

6 
African American Population in StudyArea - 2010 Census 

) ~ 

' 

G CD Pct. Not Hispanic Black Alone 

I!] 

Source: 2010 Census 

by Block Group 

D o.oo - 20.00 

n 20.00 - 40.00 

L 40.00 - 60.00 

D 60.oo - 80.00

 80.00 - 100.00 

Taken together, these data show that African Americans make up a majority population for both 

the study area and Hayestown. Jn addition, the study area and Hayestown feature higher 

percentages ofAfrican Americans compared to Durham County. The similarities between the 

2000 and 20 IO Census data for Durhan1 County and the Hayestown blocks suggests similar 

inferences for the Study Area data. Finally, the data show that a large number ofthe immediate 

south and eastern block groups in the City, where Hayestown is located, have African American 

populations that represent 40% or more ofthe overall population. 

c. Project Description 

1. History 

The Durham, North Carolina East End Connector Project was introduced in 1959 as part ofthe 

City ofDurham Thoroughlare Plan, remained in Durham city plans, and was established as the 

City's top priority transportation project in the year 2000. 10 The Project was linked to another 

high priority project: the East-West Freeway (NC 147 between interstate 1-40 and interstate 1-

85). The two projects were planned simultaneously during the preparation of a 1982 Final 

10 East End Connector Environmental Assessment, North Carolina Department ofTransportation, p. 1-1 (December 

16, 2009) https://www.ncdot.gov/projects/eastendconnector/download/Environmental.pdf. 

7 
Environmental Impact Statement (FEIS), the approval ofwhich allowed the East-West Freeway 

to be completed in 1992. However, the proposed East End Connector did not receive funding and 

was not advanced at that time. 11 

In 2005, the Respondent initiated an Environmental Assessment (EA) to re-evaluate the 1982 

FEIS due to renewed City interest in the Project. 12 The Environmental Assessment (EA) included 

updates to the roadway design alternatives and associated traffic impact analysis, socioeconomic 

analysis, natural resources, biological resources, historical and cultural resources and right-ofway/relocation impacts for the Project. 

The Respondent issued its Final EA in December, 2009. Then, in December, 2011, the FHWANorth Carolina Division issued a Finding ofNo Significant Impact (FONSI) for the Project. The 

FONSI stated that the 2009 EA confirmed the project's purpose and need and alternatives were 

consistent with the original 1982 FEIS document. 13 Additionally, the FONSI noted the affected 

environment ofthe project area remained consistent with, and the changes in the affected 

environment did not alter, the selection or evaluations ofthe alternatives studied in detail in the 

previous FEIS. The final Project involves building a 1.25-mile freeway from N.C. 147 to U.S. 70 

and converting approximately 2.75 miles of U.S. 70-which will be part ofthe East End 

Connector - to a freeway. 

Following issuance ofthe FONSI, the Respondent began property acquisition in April, 2012. 

Construction for the Project14 began in February, 2015, with an estimated cost of$142 million. 

The Respondent estimates the project will be completed in January, 2020. 

2. Purpose and Need 

The Durham Freeway (NC 147) begins at 1-85 north and west ofdowntown Durham, runs on the 

south side of downtown, and connects to 1-40 in the Research Triangle Park. In the City, US 70 

intersects with 1-85 on the northeast side ofdowntown and runs south and east into Wake 

County. On the east side ofdowntown these two roadways parallel each other and come as 

close as one mile apart within the study area, yet do not connect, as shown by the red boxed area 

in Figure 5: 15 · 

Figure S 

11 East End Connector Environmental Assessment, North Carolina Department of Transportation, p. 1-1 (December 

16, 2009) https://www.ncdot.gov/projects/eastendconnector/download/Environmental.pdf. 

12 The regulations at 23 C.F.R. § 77l.l30(c) and FHWA guidance provides that an EA may be prepared as the 

written re-evaluation for a proposed action where the Administration is uncertain ofthe significance ofthe new 

impacts. 

13 Finding ofNo Significant Impact- East End Connector, U.S. Department ofTransportation/ North Carolina 

Department ofTransportation, p. 33 (December 20, 2011). 14 The Project is financed with 80% Federal funds and 20% State funds through the National Highway System 

Program. 

is Source: Google Maps website, accessed on September 4, 2017, https://www.google.com/maps. 

8 
Durham -Existing Highway System 

DukeFores1 \'I' ~"ft ,d .::. t9 

'~. i' (fsi) 

£•' '· :ii£ 

0 8Al~ UTLtAf cm: 

Duke §'

University ,t Durham Joyland J ,,, {i,?) (55) Im >: 

i ·..----- , ~--

Cal Grove ., ~." 

Bethesda f 

' 

.P •" .t! I 

} (55) 'ii,.·,. ~f, 

"' Frankie's Fun·Pa, 

The NCDOT Transportation Planning Branch provided the 24-hour traffic forecasts that were 

used to develop traffic volumes for the 2006 Base Year (current conditions at the time ofthe EA 

development), 2035 No Build (i.e. projected conditions if no project is constructed), and 2030 

Build Conditions for all alternatives.

16 NCDOT identified the following needs in the existing 

system: 17 

Capacity: by the year 2035, the Project's design year, traffic demand will approach or 

exceed roadway capacity on NC 147, US 70, and at nine ofthe seventeen intersections 

analyzed. The Respondent's models show substantial growth in travel demand for the 

Durham area due to the strategic location ofthe study area in relation to the nearby urban 

centers and the Research Triangle Park. 18 The East End Connector Travel Analysis 

Report (2007) estimates that the future daily traffic volumes along existing NC 147 

would increase approximately 200 percent within the study area by the year 2035. The 

future daily traffic volumes along existing US 70 are projected to increase from 

approximately 230 to 330 percent withjn the study area by the year 2035. Travel demand 

under the 2035 No Build Conditions indicate that all existing freeway mainline segments 

and merge/diverge junctions and nine out offourteen intersections analyzed will fail to 

serve the future travel demand during at least one peak hour ofthe day. 

19 

16 East End Connector Environmental Assessment, North Carolina Depaztment ofTransportation, p. 2-13 

(December 16, 2009) https://www.ncdot.gov/projects/eastendconnector/download/Environmental.pdf 17 Id., pp. 1•7 - 1· 10. 

18 East End Connector Community Impact Assessment Report, North Carolina Department ofTransportation, p. 56, 

(February 2008). 19 East End Connector Environmental Assessment, North Carolina Depaztment ofTransportation, p. 2-25 

(December 16, 2009) https://www.ncdot.gov/projects/eastendconnector/download/Environmental.pdf. 

9 
Connectivity: Over the last 25 years Durham County has had an average population 

growth rate oftwo percent per year. Travel demand modeling indicates that without this 

connector the number ofthrough trips using local arterial streets will increase through the 

year 2035.. This will cause greater delay at signalized intersections, increased travel time 

on local roadways and reduced quality oflife in neighborhoods bordering these 

roadways. 

Through Traffic on Local Streets: Traffic volumes on local roadways are forecasted to 

increase over the next 25 years for roadways such as Gregson Street/Duke Street (oneway pair); Roxboro Street/Mangum Street (US 15/501 one-way pair), and Alstqn 

Avenue/Avondale Drive (NC 55). For a comparison ofthe no build and build 

alternatives, see Table 3.20 

Table3 

Traffic Demand Projections on Local Roadways 

St~fName 2006. Volume 

2035Nq Build• 

" 

2035. Build• 

Volume 

Percent 

Increase Volume 

Percent 

Increase 

S. Alston Ave. 21,600 42,000 94% 34,700 61% 

S. Mamrum St. 9,700 12,300 27% 9,700 0% 

S. Roxboro St. 11,800 15,700 33% 1s.ooo 27% 

S. Duke St. 13,300 16,S00 24% 13,300 0% 

S. Gregson St. 13,000 18,400 42% 13,000 0%

Accident Rates 

The local roadways that are currently used to connect US 70 to the Durham Freewayincluding Alston Avenue/ Avondale Drive, Mangum Street/Roxboro Street ( one-way 

pair), and Duke Street/Gregson Street (one-way pair)-have crash rates that are five to 

seven times higher than the statewide average for similarly classified roadways.21 

Without the Project, traffic is projected to increase on each ofthese roadways. As traffic 

increases on these roadways over the next 30 years, the Respondent expects the 

probability ofmore frequent crashes will increase due to more high speed vehicles 

traveling within closer proximity ofone another. 

The Project purpose is to address the previously-discussed needs. The EA states that the Project 

will:22 

20 East End Connector Environmental Assessment, North Carolina Department ofTransportation, p. 2-25 

(December 16, 2009) https://www .ncdot.gov/projects/eastendconnector/download/Environmental.pdf. 

21 /d pp. 1-9- 1-IO. 

22 /d pp. 1-IO- 1-12. 

10 
1. Improve capacity on the Durham Freeway (NC 147) and US 70 to alleviate congestion; 

2. Improve connectivity between the Durham Freeway and US 70; and, 

3. Provide secondary benefits such as increased safety, access to employment centers, and 

decreased traffic on surface streets. 

3. Summary of Project Alternatives and the Preferred Alternative 

The Respondent's "Merger Team''23 reviewed a range ofalternatives to meet the purpose and 

need, which included existing conditions as well as those identified in the 1982 EIS. The 

alternatives chosen for review included four that would not entail construction in the study area 

and four build alternatives.24 What follows is a brief description of each alternative. 

No-Build represents future conditions ifno transportation improvements are realized to 

address the purpose and need. The No-Build alternative would involve no right-of-way or 

construction costs, and travelers between NC 147 and US 70 would continue to use local 

arterial streets. The Respondent rejected this alternative because it did not meet any ofthe 

purposes and needs for the Project. In addition, the Respondent maintained that a no build 

alternative may adversely impact social and economic conditions in downtown Durham 

and the area east ofdowntown, given the increased congestion on NC 147 and increased 

delay at local intersections. 

Improve Existing Roadways would involve roadway widening and intersection 

improvements along Duke Street/Gregson Street and Mangum Street/Roxboro Street 

(one-way pairs), Alston Avenue/Avondale Drive, Ellis Avenue, Glover Road, Lynn 

Road, Pleasant Drive and East End A venue. Improvements to these local roadways would 

consist ofadding lanes and/or improving intersections to increase capacity between US 

70 and NC 147 without connecting them. The Respondent's analysis showed that 

additional right-of-way acquisition would be required in a highly-urbanized portion of 

Durham and could require significant relocation ofresidences and businesses. Moreover, 

this alternative would not be sufficient to meet 2035 traffic demand, and the potential 

impacts to the natural resources, cultural and physical impacts would require further 

environmental review. The Respondent stated this alternative would not satisfy the 

capacity, connectivity, and consistency needs ofthe Project. 

Transportation Management alternatives would include Transportation Demand 

Management and Transportation System Management strategies as alternatives to the 

23 NCDOT used its "Merger OI" process for the Project. This process exists to streamline the project development 

and permitting processes, agreed to by the US Army Corps of Engineers (USACE), North Carolina Department of 

Environment and Natural Resources (NCDENR), Federal Highway Administration (FHWA) and North Carolina 

Dep,artment ofTransportation (NCDOT) and supported by other stakeholder agencies and local units of government 

https://connect.ncdot.gov/resources/Environmental/Pages/Merger-Process-Guide.aspx. 

The "Merger Team" is the group that evaluates which alternatives meet the purp~se and need for projects and 

identifies the Preferred Alternatives. 

24 East End Connector Environmental Assessment, North Carolina Department ofTransportation, pp. 2-1 - 2-12 

(December 16, 2009) https://www.ncdot.gov/projects/eastendconnector/download/Environmental.pdf. 

11 
proposed project. The Recipient determined the effect ofthese actions would not meet the 

purposes identified for the project or address any ofthe needs described in the Purpose 

and Need Statement. 

Alternative Transportation Modes would not provide connectivity between NC 147 

and US 70, but would service local trips between neighborhoods and employment centers 

in downtown Durham. The Recipient determined that planned transit system 

improvements in the region would not provide the capacity or frequency ofservice to 

satisfy the demand for travel between NC 147 and US 70. Therefore, the Recipient found 

this alternative would not meet the purposes and needs identified for the project. 

Build Alternatives 

• Alternative 1 - closest to downtown Durham and begins on US 70 south ofits 

interchange with Cheek Road, continues traveling east to west between East End 

Avenue and Hoover Road,joining NC 147 south ofBriggs Avenue. The project 

terminates south of Glover Road. This alternative would connect NC 147 and US 

70 north ofthe Hayestown neighborhood. 

• Alternative 2 - located just south ofAlternative 1 and would begin on US 70 

south ofits interchange with Cheek Road, continue traveling east to west crossing 

East End A venue, and joining NC 147 south ofBriggs Avenue. This alternative 

would connect NC 147 and US 70 directly through the Hayestown neighborhood. 

• Alternative 3 - located south of East End Avenue. It would begin on US 70 south 

of its interchange with Cheek Road, continue traveling east to west crossing 

Rowena Avenue, and joining NC 147 south of Briggs Avenue. This alternative 

would connect NC 147 and US 70 south of the Hayestown neighborhood. 

• Alternative 4 - the southernmost alternative and would be located close to Glover 

Road. It would begin on US 70 south of its interchange with Cheek Road, 

continue traveling east to west between Pleasant Drive and Glover Road, further 

south than Alternative 3 from the Hayestown neighborhood. 

Please see Figure 6 for a depiction ofeach build alternative. 

12 
Figure 6 

Project Alternative Maps 

The Merger Team determined that the EA confirmed the build alternatives previously studied 

during the 1982 FEIS and found that the Purpose and Need Statement from the 1982 FEIS 

continued to be valid.25 Alternative 2 was not carried forward due to the significant number of 

residential and business relocations; impacts to five gravesites and one Environmental Protection 

Agency (EPA) designated Superfund Site; and the complexity ofconstruction resulting in the 

25 East End Connector Environmental Assessment, North Carolina Department ofTransportation, p. 2-25 

(December 16, 2009) https://www.ncdot.gov/projects/eastendconnector/download/Environmental.pdf. 

13 
highest construction costs. The No-Build alternative was not carried forward because it did not 

meet the project's purpose and need. 

After further study of Alternatives 1, 3, and 4, the Merger Team reconvened on June 19, 2007, to 

select the Least Environmentally Damaging Practicable Alternative (LEDPA/ Preferred 

Alternative) -Alternative 3. Alternative 3 was selected as the LEDP A/ Preferred Alternative 

because this alternative has the shortest total project length; the fewest residential and business 

relocations; minimal natural system impacts; the least amount ofrequired right-of-way; and the 

lowest project cost. For an illustrated depiction ofthe Preferred Alternative, see Figure 7.

26 

Figure 7 

Illustration ofAlternative 3 in 2007 - Preferred Alternative 

d. Anticipated Project Impacts and Alternative Comparisons 

1. Right ofWay and Relocation 

26 Image Source: "Durham city begins construction on East End Connector," North Carolina Construction News, 

Accessed September 11, 20 I 7, (April 29, 2015) https://www.ncconstructionnews.com/durham-city-beginsconstruction-on-east-end-connector/. 

14 
The Respondent estimated the number of business and residential relocations for each alternative 

in its 2009 Community Impact Assessment:27 

Alternative l passes through primarily industrial and commercial areas, affecting 

nine (9) minority residences and three (3) minority businesses scattered 

throughout the study area. Alternative 3 avoids impacts by passing between three 

(3) communities, Hayestown, East End, and an unnamed community, and affects 

six (6) minority residences and three (3) minority businesses scattered throughout 

the study area. Alternative 4 passes th.rough a predominantly undeveloped or low 

density area, displacing eighteen (18) minority residences and four ( 4) minority 

businesses scattered throughout the study area. These minority and low income 

relocation impacts are not disproportionate when compared to the non-minority 

relocation impacts. 

For a comparison ofthe studied alternatives and potential relocations, see Table 4. 

Table 4 

Projected Relocations Comparison ofAlternatives 

Residential Business Total 

Minority 

NonMinority Minority 

NonMinority Minority NonMinority All 

Alternative 1 9 9 3 12 12 21 33

Alternativi3 6 11 3 6 9 17 26 

Alternative 4 18 21 4 6 22 27 49

The Respondent determined that Alternative 3, the Preferred Alternative, would result in the 

fewest residential and business relocations compared to the other alternatives, overall. In 

addition, the Preferred Alternative would result in the fewest relocations for all minority28 

groups, combined, compared to non-minorities. Relocation impacts are not concentrated in one 

area but are dispersed throughout the Project con-idor.29 

Regarding community cohesion and impacts, the Preferred Alternative will impact two churches: 

the Living Water Christian Church, at the intersection of US 70 and Lynn Road, and the 

Believers Assembly Christian Church on Harvard A venue. The construction ofthe East End 

27 East End Connector Community Impact Assessment Report, North Carolina Department ofTransportation, p. 80 

(February 2008). 

28 Use of the term "minority" in this Letter ofFinding and the NCDOT Environmental Assessment documents is 

based on the race and ethnicity categories established by the Office of Management and Budget in its October 30, 

1997 Federal Register Notice: Revisions to the Standards for the Classification of Federal Data on Race and 

Ethnicity, in addition to the race and ethnicity categories included in the definition of"Minority" provided by the 

Council on Environmental Quality Environmental Justice Guidance Under the National Environmental Policy Act, 

the U.S. Department ofTransportation (US DOT) Order 5610.2(a), and FH WA Order 6640.23A. These groups 

include: American Indian or Alaska Native, Asian, Black or Afi-ican American, Hjspanic or Latino, and Native 

Hawaiian or Other Pacific Islander. 

29 Finding of No Significant Impact - East End Connector, U.S. Department ofTransportation / North Carolina 

Department ofTransportation, p. 28 (December 20,201 I). 

15 
Connector will result in the acquisition ofthe church office of Living Waters Christian Church, 

formerly a residence near US 70. The Respondent stated that there is sufficient vacant land on 

church grounds to rebuild the facility closer to the church. This church serves a population of 

both white and minority members, according to the Respondent. Because a suitable relocation 

site is available on the church's property and the church sanctuary is unaffected, the Respondent 

anticipates no significant adverse impacts to minority populations related to community cohesion 

as a result ofthe relocation. The construction ofthe East End Connector will result in the 

acquisition ofthe Believers Assembly Christian Church that rents a building on Harvard A venue 

just east ofUS 70. This church also serves a population of both white and minority members. 

Because suitable relocation sites are available nearby, the Respondent anticipates no significant 

adverse impacts to minority populations related to community cohesion as a result ofthe 

relocation, as well. 

2. Noise 

Noise can be defined as unwanted or undesired sound, and can affect peoples' daily activities, 

especially those that occur outdoors. Noise from traffic on roadways can be disruptive at high 

noise levels if it is not mitigated. For all federal aid projects, recipients must compare projected 

noise levels to the minimum standards provided by the FHWA and provide mitigation where 

necessary.30 These minimums are referred to as Noise Abatement Criteria (NAC) standards. A 

"traffic noise impact" occurs when design year build condition noise levels approach or exceed 

the NAC standards for future conditions or over existing noise levels.31 A "substantial increase" 

determination is based on a comparison ofthe existing noise level with the predicted increase 

with respect to a change to noise levels ofbetween 10 and 15 decibels (dB(A)) or more. 

The Respondent conducted an analysis ofthe probable traffic noise impacts for the project in its 

Traffic Noise Analysis, dated July 30, 2007 (summarized in the Project EA} as well as in its June 

17, 2011 updated Design Noise Report, the latter ofwhich addressed changes to the project 

design in additional detail. The Respondent's analysis compared current ambient noise levels 

with predicted future noise levels expected in the vicinity ofthe project. Future noise levels were 

based on estimated traffic volumes for the Design Year of 2035. Ambient noise levels ranged 

from 49 dB(A) the Springwood Park Apartment Complex to as high as 75 at NC 147 from the 

proposed Project start.32 The ambient noise levels nearest to the Hayestown neighborhood were 

measured at the Orange Grove Missionary Baptist Church (505 East End Ave, Durham, NC 

27703) and Haskel Properties, Inc. (2900 E Pettigrew St, Durham, NC 27703), which were 64 

dB(A) and 63, respectively.33 

Regarding the build alternatives, the Respondent found that the Preferred Alternative would have 

the fewest noise impacts compared to Alternatives 1 and 4, as shown in Table 5:34 

30 23 C.F.R. § 772.3. 

31 23 C.F.R. § 772.5. 

32 Design Noise Report - East End Connector, North Carolina Department ofTransportation, Table A-I, p. A. I 

(June 17,201 I). 

33 Id 

34 Highway Traffic / Construction Noise Analysis, Proposed Durham East End Connector, North Carolina 

Department ofTransportation, p. 4 (July 30, 2007). 

16 
Table 5 

Projection ofImpacted Noise Receptors Comparison 

Alternative 

Impacted 

Residences 

Impacted 

Businesses 

Impacted 

Churches Total 

#1 47 6 3 56 

#3 (Preferred) 9 3 I 13 

#4 l 5 7 I 23 

Regarding the Preferred Alternative, the Respondent identified a noise-impacted area located on 

the north side ofthe Project between the NC 147 and US 70 interchanges in the vicinity of 

Rowena Avenue.35 The Respondent's revised traffic study data showed that Design Year 2035 

traffic noise is predicted to impact 18 receptors in the vicinity ofthe Rowena Avenue overpass, a 

number that was revised upward from I3 in the EA due to design changes.36 These impacts were 

based on comparisons between the existing ambient noise levels in the vicinity ofthe 

Rowena Road overpass and the Big Twig Lane neighborhood (53 dB(A)) and the Design Year 

2035 projections.37 The data show an average increase of 14.61 dB(A), or 67.61 total dB(A) in 

this area. 

When recipients identify traffic noise impacts, they must consider noise abatement measures for 

feasibility and reasonableness.38 Regarding feasibility, recipients must define, and receive 

FHW A approval for, the number ofreceptors that must achieve at least a 5 dB(A) reduction for 

the noise abatement measw-e to be acoustically feasible and explain the basis for this 

determination.39 In addition, recipients must determine it is possible to design and construct the 

noise abatement measure. Factors to consider are safety, barrier height, topography, drainage, 

utilities, and maintenance ofthe abatement measure, maintenance access to adjacent properties, 

and access to adjacent properties. 

Recipients must also consider the reasonableness of noise abatement measures, which involves 

two factors: (1) the viewpoints ofthe affected community and (2) cost effectiveness.

40 Recipients 

must solicit the viewpoints of all ofthe benefited receptors and obtain enough responses to 

document a decision on either desiring or not desiring the noise abatement measure. Regarding 

cost effectiveness, recipients must determine, and receive FHWA approval for, the allowable 

cost ofabatement by determining a baseline cost reasonableness value. This determination may 

include the actual construction cost of noise abatement, cost per square foot of abatement, the 

maximum square footage ofabatement/benefited receptor and either the cost/benefited receptor 

or cost/benefited receptor/dB(A) reduction. 

35 Highway Traffic / Construction Noise Analysis, Proposed Durham East End Connector, North Carolina 

Department ofTransportation, p. 7 (July 30, 2007). 36 Design Noise Report Revision, North Carolina Department ofTransportation, Section 3.0 (October 9, 2013). 37 Design Noise Report - East End Connector, North Carolina Department ofTransportation, Table B-1, p. 8.1 

(June 17, 201 I). 38 23 C.F.R. § 772.1 3(a). 

39 23 C.F.R. § 772. I 3(d)( I) et seq. 

•

10 Id. § 772.13(d)(2). 

17 
In order to mitigate the predicted noise impacts, the Respondent recommended a noise barrier. 

The Respondent will construct a concrete barrier that will be 1,185 feet long, with an exposed 

height ranging from 8 to 12 feet, and located along the Project's westbound roadway shoulder 

from approximately 600 feet west of Rowena Avenue to approximately 600 feet east ofRowena 

Avenue. Figure 8 shows a map ofthe area (oriented with north facing the right) with the 

proposed barrier depicted in yellow. Hayestown is located no11h and west ofthe map area, with 

CR Woods Park between the Project and Hayestown. 

Not lfflJ>,lc:ttd or e.nenlffTraffic NolMft~, 

lmp,c.ttd Md l •netlttd Tratnc NolM R.cepm, • 

Notll'n,-cted bu1 lhneflt.cl Traffic ffOJM RK •ptot • 

lfflpktitd bul Mi e ene.llHTrMfic Noke fltte.t,tot e Patct1Acqulritd •t fUohl~t-w~ :: 

The Respondent predicted the barrier would benefit 15 of 18 receptors.41 It is expected to provide 

at least a 5-7 dB(A) noise level reduction for seven first-row impacted receptors.42 Thus, the 

barrier will bring the average noise increase in the area from 67 .61 dB(A) down to 61.56 dB(A). 

3. Air Quality 

The Clean Air Act of 1970, Section 176(c), requires that federally supported highway and transit 

projects are consistent with state air quality goals found in the State Implementation Plan (SIP). 

The process to ensure this consistency is called Transportation Conformity. A transportation 

project is said to conform to the provisions and purposes ofthe SIP if the project, both alone and 

in combination with other planned projects, does not: 

41 Design Noise Report Revision, North Carolina Department ofTransportation, Table 2 (October 9, 20 13). 

4 2 Id. p. 11. 

18 
• Cause or contribute to new air quality violations ofthe Environmental 

Protection Agency (EPA) National Ambient Air Quality Standards (NMQS) 

criteria pollutants; 

• Worsen existing violations ofthe NMQS; or 

• Delay timely attainment ofthe NMQS or required interim milestones. 

Transportation conformity is required for federally supported transportation projects in areas that 

have been designated by the U.S. Environmental Protection Agency (EPA) as not meeting one or 

more ofthe transportation-related NMQS. Nonattainment area or nonattainment means that an 

area has monitored-air-quality that does not meet the NMQS.43 Once a nonattainment area 

meets the standards and additional redesignation requirements, EPA will designate the area as a 

maintenance area or in maintenance. Regarding conformity for the area, the EA states: 44 

The Project is located in Durham County, which is within the Raleigh-DurhamChapel Hill nonattainment area for ozone (03) and the Raleigh-Durham 

nonattainment area for carbon monoxide (CO) as defined by the EPA. The 1990 

Clean Air Act Amendments (CAM) designated these areas as moderate 

nonattainment areas for CO. However, due to improved monitoring data, these 

areas were redesignated as maintenance for CO on September 18, 1995. The area 

was designated nonattainment for 03 under the eight-hour ozone standard effective 

June 15, 2004. Section 176(c) ofthe CAM requires that transportation plans, 

programs, and projects conform to the intent of the state air quality implementation 

plan (SIP). The current SIP does not contain any transportation control measures for 

Durham County. The Durham-Chapel Hill-Carrboro Metropolitan Planning 

Organization 2030 Long Range Transportation Plan (LRTP) and the 2009-2015 

Metropolitan Transportation Improvement Program (MTIP) conform to the intent of 

the SIP. The USDOT made a conformity determination on the LRTP on June 29, 

2007, and the MTIP on October 1, 2008. The current conformity determination is 

consistent with the final conformity rule found in 40 C.F.R. Parts 51 and 93. There 

are no significant changes in the project's design concept or scope, as used in the 

conformity analyses. 

Specifically regarding ozone, the EPA redesignated the Raleigh-Durham-Chapel Hill, NC 

8-Hour Ozone Nonattainment Area to attainment status in 2007.45 

The Respondent studied the current and projected air quality for the Project in May 10, 2007, 

with an updated analysis for CO and ozone completed on June 5, 2008-which were 

incorporated into the final EA for the Project. To that end, the Respondent conducted a 

microscale air quality analysis to determine future CO concentrations resulting from the 

43 Frequent Questions about General Conformity, Environmental Protection Agency website, accessed on July I 0, 

2017, https://www.epa.gov/general-conformity/frequent-questions-about-general-conformity#S. 

44 East End Connector Environmental Assessment, North Carolina Department of Transportation, pp. 4-19 - 4-20 

(December 16, 2009) https://www .ncdot.gov/projects/eastendconnector/download/Environmental.pdf. 

45 Redesignation ofthe Raleigh-Durham-Chapel Hill, NC 8-Hour Ozone Nonattainment Area to Attainment for 

Ozone, U.S. Environmental Protection Agency, (72 FR 72948 12/26/2007) 

https://www3.epa.gov/region4/air/sips/OCE/Raleigh-Durham-Chapel%20Hill%208-

hour%20Ozone%20Redesignation%20and%20Maintenance%20Plan.pdf. 

19 
proposed highway improvements.46 The worst-case air quality scenario was determined to be in 

the vicinity ofthe intersection ofUS 70 and SR 1815 (Pleasant Drive). The predicted one-hour 

average CO concentrations for the evaluation years of 2015, 2020, and 2035 are 5.40, 5.20 and 

5.90 ppm, respectively. Comparison ofthe predicted CO concentrations with the NAAQS 

(maximum permitted for one-hour averaging period =35 ppm; 8-hour averaging period =9ppm) 

indicates no violation ofthese standards and without a substantial increase over time. Since the 

results ofthe worst-case one-hour CO analysis for the build scenario is less than 9 ppm, the 

Respondent concluded that the 8-hour CO level would not exceed the standard. 

The Respondent also studied Mobile Source Air Toxics (MSATs), which are a subset of the 188 

air toxics defined by the Clean Air Act of 1970.47 MSATs are compounds emitted from highway 

vehicles and non-road equipment. Some toxic compounds are present in fuel and are emitted to 

the air when the fuel evaporates or passes through the engine unburned, while other toxics are 

emitted from the incomplete combustion of fuels or as secondary combustion products. Metal air 

toxics also result from engine wear or from impurities in oil or gasoline. 

FHWA guidance recommends a tiered approach with three categories for analyzing MSAT in 

NEPA documents, depending on specific project circumstances. 48 Under the first49 level, for 

projects above 150,000 Annual Average Daily Traffic (AADT}, a quantitative analysis is 

performed. Under the second level, for projects under 150,000 AADT, such as the Project, a 

qualitative analysis is performed. Under the third level, no analysis is required for small projects 

or exempt projects. The Respondent's EA and subsequent documentation included a qualitative 

second-tier analysis ofthe likely MSAT emission impacts ofthe Project, in which limitations in 

available technical tools prevent the Respondent from predicting the project-specific health 

impacts.50 This is because:51 

... [e]valuating the environmental and health impacts from MSATs on a proposed 

highway project would involve several key elements, including emissions 

modeling, dispersion modeling in order to estimate ambient concentrations 

resulting from the estimated emissions, exposure modeling in order to estimate 

human exposure to the estimated concentrations, and then final determination of 

health impacts based on the estimated exposure. Each ofthese steps is 

encumbered by technical shortcomings or uncertain science that prevents a more 

complete determination ofthe MSAT health impacts of this project. 

46 CAL3QHC - A Modeling Methodology for Predicting Pollutant Concentrations Near Roadway Intersections" was 

used to predict the CO concentration near sensitive receptors. East End Connector Environmental Assessment, 

North Carolina Department ofTransportation, p. 4-19 (December 16, 2009) 

https://www.ncdot.gov/projects/eastendconnector/download/Environmental.pdf. 

47 Revised Air Quality Analysis for U-0071, North Carolina Department ofTransportation, p. 4 (June 5, 2008). 48 Finding ofNo Significant Impact- East End Connector, U.S. Department ofTransportation/ North Carolina 

Department ofTransportation, p. 10 (December 20, 2011 ); See also Updated Interim Guidance on Mobile Source 

Air Toxic Analysis in NEPA Documents Memorandum, Federal Highway Administration, p. 4, el seq. (October 18, 

2016) https://www.fhwa.dot.gov/environment/air _quality/air_ toxics/policy_ and_guidance/msat/20 l 6msat.pdf. 

49 Note that the first, second, and third tiers are reversed in the 2016 guidance (e.g. first tier indicates no analysis, 

etc.), but the substance ofthe categories is unchanged. 

50 Revised Air Quality Analysis for U-0071, North Carolina Department ofTransportation, p. 5 (June 5, 2008). 

SI Id pp. 5-7. 

20 
Regarding the quantitative emissions findings, the Recipient concluded that the additional 

Project travel lanes for all alternatives will have the effect of moving some traffic closer to 

nearby homes, schools and businesses; therefore, under each alternative there may be localized 

areas where ambient concentrations of MSAT could be higher under certain Build Alternatives 

than the No Build Alternative.52 The localized increases in MSAT concentrations would likely be 

most pronounced along US 70, but upon completion ofthe Project, these would likely decrease 

due to increases in vehicle speed and reductions in congestion while MSATs will be lower in 

other locations when traffic shifts away from them.53 The Respondent further stated that, on a 

regional basis, EPA vehicle and fuel regulations and fleet turnover will cause substantial 

reductions that will cause significantly lower MSATs, regionally. 54 

4. Other Potential Community Impacts 

Regarding economic growth and home/land values, the Respondent discussed potential 

economic impacts to residents in the Study Area and the region in its EA. The Respondent and 

City have stated that the increased capacity and connectivity provided by the Project, in 

conjunction with other City projects, will increase economic growth in the southeastern portion 

ofDurham.55 The Respondent's EA notes that the Triangle Region, which includes Durham 

County: 56 

.. .is rapidly urbanizing with moderate to high population and employment growth 

rates, particularly in the suburban areas. The southern portion of Durham County is 

the mid-point between the cities of Durham and Raleigh and the home ofthe 

expanding Research Triangle Park, one ofthe largest business/information/research 

and development technology centers in the nation. 

The areas that are forecasted to experience the highest rates ofpopulation and 

employment growth are located primarily in the southern zones of Durham County 

along the US 70 and 1-40 corridors and in the vicinity ofthe RTP. These areas are 

projected to experience the greatest increases in development over the next 20 

years. 

The Durham-Chapel Hill-Carrboro MPO 2030 Long Range Transportation Plan projects that 

employment growth in the MPO area will increase by 73 percent between 2002 and 2030. This 

increased employment will also create the need for increased housing, public services, and 

transportation demand on the area roadways and transit systems. Due to this growth, the 

Respondent expects land use in the area to increase residential density and commercial uses in 

the future. 57 Taken together, the Respondent and City view the Project as part of an overall plan 

to foster economic growth in the area, including Hayestown. 

52 Revised Air Quality Analysis for U-0071, North Carolina Department ofTransportation, p. 9 (June 5, 2008). 

53 Id 

S4 Jd. 

55 East End Connector Environmental Assessment, North Carolina Department ofTransportation, pp. 4-38 - 4-39 

(December 16, 2009) https://www .ncdot.gov/projects/eastendconnector/download/Environmental.pdf. 

56 Id p. 4-39. 

57 East End Connector Environmental Assessment, North Carolina Department ofTransportation, pp. 4-39 - 4-40 

(December 16, 2009) https://www .ncdot.gov/projects/eastendconnector/download/Environmental.pdf. 

21 
For similar reasons, the Respondent and City predict the Project will increase property values, 

particularly for land zoned as industrial or commercial uses. 58 The Respondent's EA did not 

speak to residential property values; however, it notes that property value impacts are affected by 

a myriad ofmarket factors-making qualitative estimates difficult to make. 

e. Disparate Impact Information Provided by the Complainant 

The Complainant, and other Hayestown neighborhood residents, provided documents and 

statements in support ofthe Complainant's allegations. What follows is a summary ofthat 

information. 

1. University of North Carolina Community Impact Assessment 

The University ofNorth Carolina - Chapel Hill Department ofCity and Regional Planning 

issued a study report, Assessing the Social Impacts ofthe East End Connector Project (UNC 

Report) in May, 2007, with the purpose ofdetermining whether the adverse effects ofthe Project 

would fall disproportionately on minority and low-income populations. 59 

The UNC Report authors chose a methodology with three components. First, the authors 

identified their target population60 by using a project study area population similar to the 

Recipient's and a comparator population of Durham County (2000 U.S. Census data). The 

authors did not appear to compare Hayestown to the study area or any other population. Second, 

the authors created maps ofthe four Project build alternatives and mapped them in context ofthe 

Hayestown neighborhood. 61 

Finally, the authors conducted a written survey of, and interviews with, Hayestown residents. 62 

The authors collected 14 surveys and conducted 5 interviews. The UNC Report did not provide 

the interview questions asked, but it did include the survey questions. The survey questions 

entailed information on employment, personal finance, race/ethnicity, age, and family/household 

statistics. In addition, the survey requested some information regarding the number of 

community services available in the neighborhood. Finally, the survey asked three questions on 

respondents' opinions regarding the Project. For example, one question asked: "[d]o you see the 

connector as having a positive or negative impact on your community? Why or why not?" 

58 East End Connector Environmental Assessment, North Carolina Department ofTransportation, p. 4-39 

(December 16, 2009) https:/ /www.ncdot.gov/projects/eastendconnector/download/Environmental.pdf. 

59 Assessing the Social Impacts ofthe East End Connector Project, UNC-Chapel Hill, p. 4 (2007); the Complainant 

sent an electronic copy of the Report to FHWA for this investigation. However, FHWA was unable to locate a 

website that currently hosts the file. A copy will be kept in FHWA's records. 

60 The UNC Report authors examined a number ofpopulation characteristics that are not directly relevant to Title 

VI, such as: poverty level, age, and proportion offemale-headed households with children. FHWA evaluated the 

UNC Report regarding race, color, and national origin, only. 61 At the time ofthe UNC's work, the Recipient had not identified the Preferred Alternative; therefore, the UNC 

Report is written assuming that all four build alternatives were equally likely. 

62 Assessing the Social Impacts ofthe East End Connector Project, UNC-Chapel Hill, p. 22 (2007). 

22 
The UNC Report authors did not appear to examine objective data regarding specific potential 

impacts to the human and natural environment such as air quality, noise, relocations, etc. The 

only direct impact named by the authors regarded relocations, and no specific data was 

discussed. 

The UNC Report made several conclusions. First, after comparing the study area populations to 

Durham County, the authors concluded:63 

According to the environmental justice analysis, there are disproportionately high 

adverse impacts on low-income, black and Hispanic populations, as well as 

female-headed households with children. However, some ofthese findings are 

highly dependent on the study area that is chosen and the definition of 

disproportional. 

The authors further qualified their conclusions by noting their study was limited. They noted that 

populations may have changed since the 2000 decennial census. In addition, the UNC Report 

stated that it "should not be used to draw specific conclusions and is only an indication that more 

detailed study needs to be undertaken to see whether this data matches what is actually going on 

in the study area."64 It further noted the UNC Report "cannot address the way that residents view 

their community or how they feel about the project itself. "65 

Regarding the survey and interview results, the authors noted that respondents felt safe in their 

neighborhoods and generally liked living there. 66"Respondents offered varying positive and 

negative answers on whether they had received adequate project information from the NCDOT 

or City. Finally, the UNC Report noted overall negative views of the project by respondents. 

Specifically, respondents believed that too many people would be forced to move from their 

homes and that the project would divide their community. 

2. IBM Smarter Cities Challenge Report - Durham, NC 

The Complainant requested that FHWA review a report on Durham conducted as part of the 

IBM Smarter Cities Challenge. The City was one of33 cities selected worldwide to receive a 

Smarter Cities Challenge grant from IBM in 2012, as part ofIBM's citizenship efforts to build a 

Smarter Planet. 67 A document detailing the effort and conclusions, the IBM Smarter Cities 

Challenge Durham Report (IBM Report) was issued in March, 2012. During three weeks in 

February and March 2012, a team of six IBM experts worked to deliver recommendations on a 

key challenge identified by Durham Mayor William "Bill" Bell and his senior leadership team: 

develop a well-coordinated strategy and roadmap to address youth between the ages of 14-25 

who have become disconnected from school or employment pathways, and position them to 

become positively contributing members ofthe community by the age of25. The challenge was 

also to enhance understanding and reach consensus for how to collectively and comprehensively 

63 Assessing the Social Impacts ofthe East End Connector Project, UNC-Chapel Hill, p. 18 (2007). 64 Id 

65 Id 

66 Id p. 33-34. 67 IBM's Smarter Cities Challenge Durham Report, IBM Corporation, p. 3 (March, 2012). 

23 
address the issue ofdisconnected youth and fragmented services across the public, private and 

nonprofit sectors. 

The IBM Report made a wide-ranging set ofrecommendations to address Durham's youth 

problems including city government, education, and labor reforms. However, it did not speak 

specifically to road and highway transportation, except in the broadest terms, or to the Project. 

3. Statements of Concern 

The Complainant presented FHWA with a number ofletters and news articles that discuss public 

concerns about the Project. For example, in a letter dated April 11, 2008, a Durham law firm 

mailed a letter on the Complainant's behalf to Franklin E. Freeman, Jr. and Secretary Lyndo 

Tippett from the Office ofthe Governor of North Carolina and the NCDOT, respectively.68 The 

letter expressed the Complainant's Project-related concerns regarding air quality, noise, access to 

highways, property values and a concern the Project would "destroy the community as a whole." 

Similarly, one Hayestown resident, in an unsigned letter dated September 8, 2015, expressed 

concerns about health hazards from the Project regarding air quality and pollutants such as 

hydrogen sulfide, carbon monoxide, "welding gases/' and diesel exhaust.69 

f. Public Involvement 

One ofthe prevailing principles oftransportation planning and project development is need for 

early, continuous and extensive public involvement, including both access to information and 

solicitation ofpublic input. Public involvement and a systematic interdisciplinary approach are 

essential parts ofthe development process for proposed actions. 70 Each State must have 

procedures approved by the FHWA to carry out a public involvement/public hearing program. 71 

To these ends, the Respondent's goals were to:72 

• Provide public involvement opportunities throughout the process; 

• Distribute information in a timely manner to the public and stakeholders; 

• Specifically provide information regarding Project alternative development; 

• Offer adequate notice ofpublic involvement activities and times for public review and 

comment at key decision points; 

• Provide prompt responses to public input; 

• Ensure that neighborhood meetings were held in areas that encouraged participation by 

those traditionally underserved such as low-income and minority households; and 

• Review the Project public involvement process periodically to ensure full and open 

access for all. 

68 Letter from Merritt, Flebotte, Wilson, Webb & Caruso, PLLC to the NC Office ofthe Governor and the NC 

Secretary ofTransportation, April 11, 2008. 69 Letter from James A. Dantzler (no addressee) (September 8, 2015). 

70 23 C.F.R. § 771.105(c). 71 40 CFR 1506.6. 

72 East End Connector Environmental Assessment, North Carolina Department ofTransportation, pp. 5-2 - 5-3 

(December 16, 2000) https://www.ncdot.gov/projects/eastendconnector/download/Environmental.pdf. 

24 
The Respondent engaged in a multifaceted strategy, distributing information through workshops, 

newsletters, neighborhood meetings, email, a telephone hotline, and the project website. It 

created a mailing list of 5,000 recipients that included state, local, federal, and private entities, as 

well as individuals and elected officials. 73 The Recipient established a toll-free phone number 

and responded to 150 calls and 60 emails directly. 

Regarding meetings, the Recipient held:74 

• 3 Citizens Informational Workshops; 

• 6 Meetings with Elected Officials; and 

• 16 Neighborhood and Small Group Meetings (which included one meeting specifically 

for the Hayestown neighborhood residents and eight with the Ad Hoc Committee) 

Regarding the Informational Workshops, the events were advertised in four local newspaperstwo daily papers (Durham Herald-Sun, The Chronicle at Duke University), one weekly paper 

(Durham Independent) and one Spanish-language weekly paper (Que Pasa).15 Approximately 

5000 meeting notices were mailed to area residents and about 500 people representing a multicultural cross-section ofthe community attended the three workshops. The meetings had an open 

house format with team members available to answer questions. The intent was to inform the 

community about the project and receive input on possible alternatives. 

Subsequent to the selection ofthe Preferred Alternative, the Durham City Council recommend 

that an Ad Hoc Advisory Committee be formed to work with NCDOT in avoiding, minimizing 

and mitigating any adverse impacts to the greatest extent possible. 76 The committee addressed 

relocation policies, noise impact issues, ways ofvisualizing the project, environmental justice 

·issues, community enhancement and economic development opportunities related to the Project. 

The Complainant was a member ofthe Ad Hoc Committee. 

The Respondent's public involvement efforts resulted in a large number ofcomments. For 

example, one Citizen's Involvement Workshop on September 26, 2006, yielded 71 comment 

sheets from attendees.77 The Respondent also received 148 written comments from attendees on 

a questionnaire.78 The available information shows that, overall, commenters at the Respondent's 

various meetings represented a wide variety ofviews regarding the alternatives, project benefits, 

and concerns regarding impacts. Alternative 1 was preferred by a majority ofattendees at the 

73 East End Connector Environmental Assessment, North Carolina Department ofTransportation, p. 5-3 (December 

16, 2000) https://www.ncdot.gov/projects/eastendconnector/download/Environmental.pdf. 

14 Id p. 5-4. 

75 Id p. 5-5. 76 East End Connector Environmental Assessment, North Carolina Department ofTransportation, p. 5-6 (December 

16, 2009) https://www.ncdot.gov/projects/eastendconnector/download/Environmental.pdf. 77 East End Connector Environmental Assessment, North Carolina Department ofTransportation, Appendix E -

Public Involvement, p. 5 (December 16, 2000) 

https://www .ncdot.gov/projects/eastendconnector/download/Environmental. pdf. 

18 Id. p. 6. 

25 
referenced meeting, while Alternative 3 was preferred at another meeting held on January 30, 

2007.79 

g. Less Discriminatory Alternatives 

The Complainant alleged that the Respondent should not have built the Project, in part, because a 

less discriminatory alternative, the Eno Loop project (Loop), existed and was rejected by the 

Respondent.80 The Loop appears ~o have been a proposal to construct a 20-mile freeway/parkway 

connection from 1-85 in northeastern Durham County to 1-85 near the Durham/Orange County 

border. The Loop project had been considered for many years in Durham, and was referenced as 

the "Eno Drive-Gorman Road" in the Durham Area Thoroughfare Plan since 1967.81 In 1989, the 

North Carolina General Assembly (NCGA) created the North Carolina Highway Trust Fund that 

dedicated certain revenue sources for specific highway projects, which included the Loop.82 The 

Respondent carried out an Environmental Impact Study (EIS), the draft ofwhich was published 

on October 26, 1994. 

In 2002, however, the Respondent completed a reevaluation ofthe Loop, finding that the state 

legislature had excepted the project from using state highway trust funds, in addition to 

environmental concerns found in the Respondent's EIS. A compromise was reached between the 

Respondent, City, and other stakeholders, to not move forward with the Loop. Instead, the 

Respondent and City agreed to "Option 7," which would have included a "Northern Loop" 

project in addition to other traffic-alleviation projects that included the East End Connector 

(Option 7). Option 7 projects would have been eligible for state and federal funding, according to 

proponents.83 · 

FHWA was unable to obtain more specific information regarding the purpose and need for the 

Loop, as well as specific reasons why the Loop was not moved forward beyond funding 

concerns. The available information only describes a project that would have stretched 20 miles 

across the northern part ofthe City. 

III. Legal Background 

a. Title VI 

79 East End Connector Environmental Assessment, North Carolina Department ofTransportation, Appendix E -

Public Involvement, p. 12 (December 16, 2000) 

https://www.ncdot.gov/projects/eastendconnector/download/Environmental.pdf. 

8

°FHWA notes that some information on the Loop from official sources was unavailable due to the IS to 30 years 

that have passed since key decisions were made. The lack of this information, however, did not bear on FHWA's 

findings, as discussed in the analysis section ofthis Letter of Finding. 

81 Advisory Opinion: Highway Trust Fund; Northern Durham Parkway Alternative, State ofNorth Carolina 

Department ofJustice, p. 1 (June 11, 2002) http://www.ncdoj.com/About-DOJ/Legal-Services/LegalOpinions/Opinions/Highway-Trust-Fund;-Northern-Durham-Parkway-Altern.aspx. 

82 Id 

83 The Road That Wouldn't Die: How did a revamped Eno Drive get back on Durham's planning map?, Barbara 

Solow, Indy Week Website, Accessed September 11, 2017 (November 6, 2002) 

https://www .indyweek.com/indyweek/the-road-that-wouldnt-die/Content?oid= 1187857. 

26 
Title VI prohibits discrimination on the basis ofrace, color, or national origin in programs and 

activities receiving Federal financial assistance. Specifically, Title VI provides that: 

[n]o person in the United States shall, on the ground ofrace, color, or 

national origin, be excluded from participation in, be denied the benefits of, 

or be subjected to discrimination under any program or activity receiving 

Federal financial assistance. 84 

The Civil Rights Restoration Act of 1987 clarified Title VI congressional intent, ensuring that 

when an entity receives Federal financial assistance, all ofthat recipient's programs and 

activities fall under the jurisdiction ofTitle VI. This includes even those programs and activities 

that do not directly receive Federal financial assistance. 85 

The U.S. Department ofJustice (DOJ), as the Federal government's coordinating agency for 

Title VI, implemented its Title VI program in 28 C.F.R. Part 42, which provides that the 

responsibility for enforcing Title VI rests with the federal agencies which extend financial 

assistance, such as the FHW A. The USDOT issued common Title VI regulations for all USDOT 

modes at 49 C.F.R. Part 21. When individuals file discrimination complaints under Title VI with 

regards to highways, the HCR will process the complaints. If HCR accepts the complaint, it will 

investigate and issue a LOF with potential findings and recommendations. Specific provisions 

regarding the investigation ofTitle VI complaints are found at 49 C.F.R. § 21.11. FHWA 

requires State Departments ofTransportation (State DOTs) to take specific steps in compliance 

with Title VI. These are enumerated at 23 C.F.R. § 200.9, and include submitting 

nondiscrimination assurances, developing policies and procedures, resolving identified areas of 

noncompliance and collecting demographic data on those impacted by its decision-making. The 

FHWA's complaint investigation procedures are contained in its Procedures Manual for 

Processing External Complaints ofDiscrimination.86 

b. Discrimination Prohibited 

Title VI prohibits two main types ofdiscrimination: (1) disparate treatment and (2) disparate 

impact. Regarding disparate impact, the U.S. Supreme Court has held that agencies may create 

regulations to prohibit practices having a disparate impact on protected groups, even ifthe 

actions or practices are not intentionally discriminatory.87 The USDOT's Title VI implementing 

regulations state that a recipient "may not utilize criteria or methods of administration which 

have the effect ofsubjecting persons to discrimination because oftheir race, color, or national 

origin," 49 C.F.R. § 21.5(1:,)(2). FHWA's Title VI regulations similarly require Title VI 

compliance by recipients receiving Federal financial assistance from FHWA. 23 C.F.R. Part 200. 

84 42 U.S.C. § 2000d. 

85 Civil Rights Restoration Act of 1987, Pub. L. No. l00-259. 86 Procedures Manual For Processing External Complaints of Discrimination, Federal Highway Administration, 

http://www.thwa.dot.gov/civilrights/programs/finalcomplaintmanual11041 0.cfm. 

81 Guardians Ass 'n v. Civil Serv. Comm 'n, 463 U.S. 582,643 {l 983) (Stevens, J., dissenting) (citing Lau v. Nichols, 

414 U.S. at 568, 571 (1974) (Stewart, J., concurring) and Fullilove v. Klutznick, 448 U.S. 448,479 (1980) (opinion 

of Burger, C.J.); Alexander v. Choate, 469 U.S. 287, 293 {l985). 

27 
The first step in analyzing any disparate impact case is detennining whether the recipient's 

criteria or method of administering its programs or activities adversely and disparately affected 

members ofa protected class. In some cases, federal agencies proceed directly to preliminary 

findings after this step. The elements of a Title VI disparate impact claim derive from the 

analysis ofcases decided under Title VII disparate impact law.88 To establish a prima facie case89 

ofdiscrimination, the investigating agency must ascertain whether the recipient utilized: 

1. A specific, facially neutral policy or practice; 

2. That had a disproportionate impact on a protected group; and 

3. The policy or practice likely caused the disproportionate impact. 

In a Title VI disparate impact analysis, a causal connection must be shown between the facially 

neutral policy or practice and the disproportionate and adverse impact on the protected group.90 

To demonstrate causation, evidence that "adequately captures" the impact ofthe project on 

similarly situated members ofprotected and non-protected groups must be shown, using an 

"appropriate measure."91 

After a prima facie showing is made, the investigating agency must determine whether a 

"substantial legitimate justification" exists for the allegedly discriminatory practice. To establish 

a substantial legitimate justification, the investigating agency must determine whether the 

challenged policy was "necessary to meeting a goal that was legitimate, important, and integral 

to the [recipient's] institutional mission."92 The justification must bear a "manifest demonstrable 

relationship" to the challenged policy.93 

If a substantial legitimate justification is established, the investigating agency must then focus on 

whether the complainant has identified "less discriminatory alternatives" that meet the 

recipient's legitimate needs, but that will do so without the same level of disparate effect on a 

class protected by Title VI.94 In a transportation context, courts have analyzed site selection 

alternatives, particularly where the recipient had already considered and rejected them, 

establishing a record.95 In cases involving site selection, some courts have considered not only 

88 New 'fork Urban league v. New York, 71 F.3d I 03 I, I 036 (2d. Cir. I995). 

89 Larry P. v. Riles, 793 F.2d 969,982 (9th Cir. 1984); Elston, 991 F.2d at 1407. 

90 New York City Envtl. Justice Alliance v. Giuliani, 214 F.3d 65, 69 (2d Cir. 2000). 

91 New York Urban League, 71 F.3d at 1037-38. 

92 Sandovalv. Hagan, 1 F.Supp. 2d 1234, 1278 (M.D. Ala. 1998), affd, 197 F.3d484 (I Ith Cir. 1999), rev'd on 

other grounds. 

93 Georgia State Conference ofBranches ofNAACP v. Georgia, 115 F.2d. 1403, 1418 (11th Cir. 1985); See, e.g., 

Elston, 991 F. 2d at 1413 (In an education context, the practice must be demonstrably necessary to meeting an 

important educational goal, i.e. there must be an "educational necessity" for the practice). 

94 Elston, 991 F.2d at 1407. 

95See, e.g., Coalition ofConcerned Citizens Against 1-670 v. Damian, 608 F. Supp. 110, 119-20 (S.D. Ohio 1984), 

( conducting a thorough review ofalternatives sites for highway or other methods, such as light rail or public 

transportation). 

28 
whether the construction was necessary to begin with, but also whether the selection ofthe 

particular site over alternatives is justified.96 

Intentional discrimination, or disparate treatment, happens when a recipient acts, at least in part, 

because ofthe actual or perceived race, color, or national origin ofthe alleged victims of 

discriminatory treatment.97 Discriminatory intent need not be the only motive, but a violation 

occurs when the evidence shows that the entity adopted a policy at issue "'because of,' not 

merely 'in spite of,' its adverse effects upon an identifiable group."98 While one must show that 

the recipient was motivated by an intent to discriminate, the recipient's decision makers do not 

have to have acted in "bad faith, ill will or any evil motive .... "99 

To prove disparate treatment, evidence may be direct or circumstantial. Direct evidence of 

discriminatory intent is evidence that, "ifbelieved, proves the fact [ofdiscriminatory intent] 

without inference or presumption."100 Direct evidence may be found through (1) express 

classifications or (2) comments or conduct by decision-makers that reveal a discriminatory 

motive. 101 

Proof of intentional discrimination may also entail a mosaic of circumstantial evidence that, 

taken collectively, can demonstrate that the recipient acted, at least in part, because ofrace, 

color, or national origin. The legal framework for assessing such evidence comes from the 

Court's decision in Village ofArlington Heights v. Metropolitan Housing Development Corp 

(Arlington Heights). io2 Under this method ofproving intent, the investigating agency analyzes 

whether discriminatory purpose motivated a recipient's actions by examining factors such as 

statistics demonstrating a "clear pattern unexplainable on grounds other than" discriminatory 

ones; "[T]he historical background ofthe decision"; "[T]he specific sequence ofevents leading 

up to the challenged decision"; the defendant's departures from its normal procedures or 

substantive conclusions, and the relevant "legislative or administrative history."103 

96See, e.g., Damian, 608 F. Supp. at 127; see also Bryan, Jr., et al., v. Edward I. Koch et al., and District Council 

37, American Federation ofState, County and Municipal Employees Union, AFL-C/O, et al., 627 F.2d 612, 617-18 

(1985). Compare with Darensburg v. Metro. Transp. Comm 'n, 636 F.3d 511 (9th Cir. 2011 ), in which the court 

cautioned against using beneficiary populations for different modes oftransportation (bus versus rail) as 

comparators for disparate impact analysis. 

'Y1 Doe ex rel. Doe v. lower Merion Sch. Dist., 665 F.3d 524, 548 (3d Cir. 2011 ). 

98 Pers. Adm'r ofMass. v. Feeney, 442 U.S. 256,279 (1979). 99 Elston, 991 F.2d at 1406 (quoting Williams v. City ofDothan, 145 F.2d 1406, 1414 (11th Cir. 1984)). 

100 Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1095 (9th Cir. 2005). 

101 DOJ Title VI Legal Manual, Section VI., p. 4. https://www.justice.gov/crt/fcs/T6manual. 

102 429 U.S. 252 (I 977). 

103 DOJ Title VI Legal Manual, Section VI., p. IO, https://www.justice.gov/crt/fcs/T6manual; Faith Action for Cmty. 

Equityv. Hawai'i, No. CIV. 13-00450 SOM, 2015WL751134, at 7 (D. Haw. Feb. 23, 2015) (Title VI case citing 

Pac. Shores Props., llC v. City ofNewport Beach, 730 F.3d 1142, 1158-59 (9th Cir. 2013)); see also Sylvia Dev. 

Corp. v. Calvert Cty., 48 F.3d 810, 819 ( 4th Cir. 1995) (adding to the Arlington Heights factors evidence ofa 

"consistent pattern" of actions ofdecision-makers that have a much greater harm on minorities than on nonminorities). 

29 
c. Jurisdiction 

A recipient may mean any State, territory, possession, the District ofColumbia, or Puerto Rico, 

or any political subdivision thereof, or instrumentality thereof, any public or private agency, 

institution, or organization, or other entity, or any individual, in any State, territory, possession, 

the District of Columbia, or Puerto Rico, to whom Federal financial assistance is extended, 

directly or through another recipient. 104 

The Respondent is a recipient of Federal financial assistance from the FHWA. For example, in 

2016 the Respondent was apportioned $1,079,768,287105 by the Fixing America's Surface 

Transportation (FAST) Act. 

Any person who believes they, or any specific class ofpersons, have been subjected to 

discrimination prohibited by Title VI may by themselves or by a representative file a written 

complaint with the FHWA. 106 A complaint must be filed not later than 180 days after the date of 

the alleged discrimination, unless the time for filing is extended by a competent authority. 107 

Once a complaint is accepted, FHWA will make an investigation whenever a compliance review, 

report, complaint, or any other information indicates a possible failure to comply with Title VI. 

The investigation will include, where appropriate, a review ofthe pertinent practices and policies 

ofthe recipient, the circumstances under which the possible noncompliance occurred, and other 

factors relevant to a determination as to whether the recipient has failed to comply with Title 

v1.1oa 

The Complainant is an African-American, whose residence is in the project area and alleged the 

Project will disproportionately and adversely impact himself and the African-American members 

of his neighborhood. The Complainant filed the Title VI complaint timely with the FHWA. 

IV. Analysis 

This section summarizes FHWA's analysis ofthe Complainant's allegations in relation to the 

facts and relevant legal/regulatory standards. 

a. Disparate Impacts Based on Race, Color, or National Origin 

The Complainant alleged the Preferred Alternative will have a disproportionate and adverse 

impact on the predominantly African American neighborhood of Hayestown. Specifically, the 

Complainant expressed concerns that the project will create a disparate, adverse impact on 

Hayestown by: 

104 49 C.F.R. § 21.23(t). 105 COMPARISON OF ACTUAL FY 2015 APPORTIONMENTS UNDER THE HIGHWAY AND 

TRANSPORTATION FUNDING ACT OF 2014, AS AMENDED, AND ESTIMATED FY 2016 - FY 2020 

APPORTIONMENTS UNDER THE FIXING AMERICA'S SURFACE TRANSPORTATION (FAST) ACT, Federal 

Highway Administration Website (accessed 2/4/18) https://www.fhwa.dot.gov/fastact/estfy20 l62020apports.pdf. 106 49 C.F.R. § 21.1 l(b). 

1011d 

108 Id § 21.1 l{c). 

30 
• Increasing air pollution and associated detrimental health effec.ts; 

• Increasing noise levels; 

• Decreasing home values; and 

• Relocating a disproportionate number ofAfrican-American residents and 

businesses. 

FHWA examined the evidence for each listed concern in an effort to assess the Complainant's 

allegations regarding adverse, disparate impacts as well as regarding intentional discrimination. 

1. Disparate Impact 

i. Air Quality and Related Health Impacts 

The Complainant alleged the Project will increase air pollution and therefore cause a disparate 

impact on the Hayestown neighborhood. Specifically, the Complainant alleged the Project will 

increase the Mobile Source Air Toxics (MSATs) near Hayestown, creating adverse and 

disproportionate effects on the neighborhood regarding asthma, cancer rates, and other negative 

health effects for the residents. The Complainant presented documents regarding anecdotal 

concerns from residents and others, such as the UNC Report, as well as general information from 

the EPA about potential negative health impacts ofMSATs. In interviews with FHWA, the 

Complainant and other Hayestown residents described a fear ofpotential health problems, such 

as asthma and cancer. 

The record shows that the Preferred Alternative would neither adversely impact the regional or 

project-level air quality, nor create disparate, adverse impacts to the Hayestown neighborhood. 

The Project, as part ofthe SIP, is in conformity with EPA's air quality standards. With regard to 

carbon monoxide, the Respondent's hotspot analysis determined the project is (1) in conformity 

with the applicable EPA standard (below 9.0 ppm) and (2) would not create significant increases 

in CO levels overall: 5.4 ppm in 2015 compared to 5.9 ppm in 2035. 

In addition, although the Respondent could not ascertain the probable health impacts of Project 

MSAT emissions due to limitations in existing science and tools, the available evidence 

regarding the Respondent's qualitative MSAT analysis indicated that MSATs would likely 

decrease near 1-70 upon completion ofthe Project due to increases in vehicle speed and 

reductions in congestion. Additionally, MSATs will likely be lower in other locations when 

traffic shifts away from them. Even if the increases were significant, however, there is no 

evidence ofa disparity between the projected impacts to the Hayestown neighborhood, or any 

other identifiable African American population, compared to other populations in the project 

area. 

Based on the foregoing, FHWA finds there is insufficient evidence that the Preferred Alternative 

would cause adverse, disparate impacts to the Hayestown neighborhood due to air quality. 

31 
ii. Right of Way and Relocation 

In interviews with FHWA, the Complainant and other residents expressed concerns that the 

Project relocations would uproot the Hayestown neighborhood and displace it. These concerns 

were also reflected in the UNC Report. 

The data show that the Preferred Alternative would result in 9 total business and residential 

relocations for all minority groups, and 17 relocations for non-minority residents. In addition, 

compared to the other two build alternatives, the Preferred would result in the fewest relocations 

for all minority groups compared to non-minorities (Table 4; 9 relocations compared to 12 or 

22). Regarding potential disparate impacts to African Americans with the Preferred Alternative, 

the data show the Preferred Alternative would relocate roughly two times as many non-Hispanic 

white residences and businesses compared to all minority groups, combined: 34.62% minority 

versus 65.38% non-minority. Therefore, the Respondent chose the build alternative with the 

fewest relocation impacts to African Americans, overall, and the chosen Preferred Alternative 

will not result in a disparate impact to African American relocates compared to non-minorities. 

Finally, there is no evidence of a disparity between the projected impacts to the Hayestown 

neighborhood, or any other identifiable African American population, compared to other 

populations in the project area. 

For the foregoing reasons, FHWA finds there is insufficient evidence that the Preferred 

Alternative would cause adverse, disparate impacts to the Hayestown neighborhood due to rightof-way acquisition and relocations. 

iii. Community Cohesion 

According to the available information, the Preferred Alternative for the Project does not cross 

through the identifiable boundaries ofthe Hayestown neighborhood. Rather, the Project will 

cross south ofthe Hayestown neighborhood, through primarily low density residential and 

vacant land. The Respondent's EA describes the area south ofthe Preferred Alternative as a 

lightly populated loosely-knit community. 109 Regarding community facilities and services, 

FHWA found the Project is not likely create relocation impacts to schools, parks, or other 

community facilities, with the exception of right-of-way impacts to two churches in the study 

area. The two churches the Respondent expects to relocate, Living Waters Christian Church and 

the Believers Assembly Christian Church, wili be rebuilt on church grounds and relocated 

nearby, respectively. Likewise, there is no evidence the Hayestown community will be cut off 

from community services south ofthe Project, as existing routes, such as Angier A venue, will 

remain accessible after completion ofthe Project. 

Regarding the UNC Report, the authors did not include data on specific impacts to community 

cohesion or other Project impacts. Rather, the UNC Report authors reviewed U.S. Census data 

and discussed the Project in general terms. The authors did conduct a limited survey of 

Hayestown residents, which posed three Project-related questions regarding: (1) residents' 

feelings about the adequacy of Project information provided, (2) views on the overall 

109 East End Connector Community Impact Assessment Report, North Carolina Department ofTransportation, p. E4 (February 2008). 

32 
positive/negative impact ofthe Project, and (3) "[i]fyou had to leave your neighborhood, where 

would you gor1I0 The authors noted the survey sample was small: 14 household surveys 

completed for a total population of 145 households. II1 While the UNC Report authors "feel that 

given the considerable social cohesion observed within the community much ofthe information 

presented can be roughly generalized to the broader neighborhood,n they would need to have 

received 4 7 responses to achieve a representative sample ofthe neighborhood. 112 Nonetheless, 

the UNC Report did not provide sufficient data to establish the potential for specific harms to 

community cohesion in the neighborhood or project area. 

Based on the available evidence, FHWA finds the Preferred Alternative is unlikely to cause 

adverse, disparate impacts to the Hayestown community regarding community cohesion. 

iv. Noise 

The Complainant alleged the Preferred Alternative will result in disparate, adverse impacts to the 

African-American residents ofthe Hayestown neighborhood regarding noise. The Respondent's 

EA stated that it evaluated potential impacts and implemented noise mitigation in compliance 

with 23 C.F.R. § 772-installing sound walls in areas where noise receptors indicate the need for 

abatement. 

As shown in Table 5, the preferred alternative would create the fewest noise impacts compared 

to the other two build alternatives, even after the Respondent issued its revised Design Noise 

Report with the Preferred Alternative impacting 18 sites compared to 56 and 23 for Alternatives 

1 and 4, respectively. 

Further, the evidence does not show the Project will create substantial noise increases in the 

Hayestown neighborhood or that Hayestown will be disparately impacted by noise. The 

Respondent's noise model predicts that the Preferred Alternative's impacts will occur on the 

north side ofthe Project between the NC 147 and US 70 interchanges in the vicinity of Rowena 

Avenue south ofthe Hayestown neighborhood. Noise receptors nearest to the Hayestown 

neighborhood to the north recorded current noise levels ofup to 64 dB(A). The proposed Project 

noise barrier near Rowena Avenue is projected to benefit 15 of 18 receptors-bringing the 

average noise level from 67.61 dB(A) down to 61.56 dB(A). This average noise level would be 

lower compared to the current noise levels at the Angier A venue at Orange Grove Missionary 

Church receptor near Hayestown, which was measured at 63 .8 dB(A). 113 In addition, the 

Respondent's Traffic Noise Model predicted the Project will create 71 dB(A) and 66 dB(A) 

noise level contours (zones ofnoise around the project) at 256 and 401 feet, respectively, from 

the center ofthe Project. I14 Although, according to 23 C.F.R. § 772.9(c) and NCDOT Policy, 

noise contour lines cannot be used for determining highway traffic noise impacts, it is notable 

110 Assessing the Social Impacts ofthe East End Connector Project, UNC-Chapel Hill, p. 43 (2007). 111 Id p. 29. 112 This sample size represents a I 0% margin of error with a 90% confidence level. A higher confidence level would 

require a larger sample size. See http://www.raosoft.com/samplesize.html. 

113 East End Connector Environmental Assessment, North Carolina Department ofTransportation, pp. 3-15: Table 

3-8 (December 16, 2009) https://www.ncdot.gov/projects/eastendconnector/download/Environmental.pdf. 

114 Design Noise Report-East End Connector, North Carolina Department ofTransportation, pp. 9-10 (June 17, 

201 I). 

33 
that the Hayestown neighborhood is greater than 500 feet from the Project center. As previously 

discussed, the current noise levels measured near Hayestown were 63.8 dB(A). This suggests it 

is unlikely the Hayestown community will encounter significant noise impacts due to its 

proximity the Project. Regardless, there is no evidence of a disparity between the projected 

impacts to the Hayestown neighborhood, or any other identifiable African American population, 

compared to other populations in the project area. 

For the foregoing reasons, FHWA finds there is insufficient evidence that the Preferred 

Alternative would cause adverse, disparate impacts to the Hayestown neighborhood due to noise. 

v. Other Potential Community Impacts 

The Complainant alleged the Project would create adverse, disparate impacts to the AfricanAmerican residents ofHayestown by hindering economic growth and depressing home/land 

values. The available evidence shows that the Recipient and City are planning for growth in the 

Project area in addition to the Durham region. Part ofthe purpose and need ofthe Project is to 

foster economic growth, connecting major employment centers, including downtown Durham 

and the Research Triangle Park areas. In fact, the evidence shows the Respondent and City have 

planned for future land use near the Project to reflect increased residential density-moving from 

low density to medium density residential-as well as more commercial and industrial uses. This 

is consistent with the Durham-Chapel Hill-Carrboro MPO 2030 Long Range Transportation 

Plan, which forecasts high economic growth throughout the region. 

Regarding property values, the Respondent expects increases as the population density and 

commercial investments increase over time. FHW A finds that, with the available data and 

information on future land use, development, and population increases, it is reasonable to infer 

that property values would either tend to increase or tend to not decrease. In addition, there is no 

evidence ofa disparity between the projected impacts to the Hayestown neighborhood, or any 

other identifiable African American population, compared to other populations in the project 

area. 

For the foregoing reasons, FHWA finds there is insufficient evidence that the Preferred 

Alternative would cause adverse, disparate impacts to the Hayestown neighborhood regarding 

economic growth or property values. 

vi. Public Involvement 

The Complainant alleged that Respondent failed to provide adequate consultation with the 

minority communities in the selection ofthe Preferred Alternative. The record shows the 

Respondent engaged in a multifaceted public involvement strategy, distributing information 

through workshops, newsletters, neighborhood meetings, email, a telephone hotline, and the 

project website and included state, local, federal, and private entities, as well as individuals and 

elected officials. The Recipient established a toll-free phone number and responded to 150 calls 

and 60 emails directly. 

34 
The Recipient held numerous public meetings during the development ofthe Project. It held 

three Citizens Informational Workshops and 16 neighborhood and smaU group meetings, with 

one ofthe latter specifically for the Hayestown neighborhood. In addition, the Respondent held 

eight meetings with the Ad Hoc Committee, on which the Complainant participated directly. 

According to the available information, the meetings appear to have been substantive, with the 

Recipient discussing with attendees the potential direct and indirect impacts ofthe Project. 

The record also shows that the Respondent accepted numerous formal and informal public 

comments, including from the Complainant and Hayestown residents. The comments appear to 

show a wide variety ofviews regarding the alternatives, project benefits, and concerns regarding 

impacts-and that negative comments were considered by the Recipient. 

For the foregoing reasons, FHWA finds there is insufficient evidence that the Respondent's 

public involvement activities for the Project resulted in adverse, disparate impacts to the 

Hayestown neighborhood. 

vii. Conclusion Regarding Adverse, Disparate Impacts 

After examining the likely impacts ofthe selection ofthe Preferred Alternative, and considering 

project benefits and mitigation, FHWA finds that there is insufficient evidence that the Project 

will create adverse, disparate impacts to the Hayestown neighborhood. 

2. Substantial Legitimate Justification 

FHWA's determination that there is insufficient evidence of.disparate impacts ends the Title VI 

analysis ofthis matter. FHWA finds, however, that even if the selection ofthe Preferred 

Alternative resulted in adverse, disparate impacts, the Respondent has provided a substantial 

legitimate justification for its actions. After a prima facie showing ofdisparate impact, the 

investigating agency must determine whether a "substantial legitimate justification" exists for the 

allegedly discriminatory practice. The investigating agency must determine whether the 

challenged policy is "necessary to meeting a goal that was legitimate, important, and integral to 

the [recipient's] institutional mission."115 The justification must bear a "manifest demonstrable 

relationship" to the challenged policy. 116 This analysis is similar to the "business necessity" part 

ofthe Title VII disparate impact analysis. 

As stated in more detail in Section II(b) ofthis document, the overall purposes and needs for the 

Project stem from limited capacity, limited connectivity, local traffic volumes, and the resulting 

safety concerns. For example, the Respondent's traffic model showed that, by the year 2035, the 

traffic demand will approach or exceed roadway capacity on NC 147, US 70, and at nine ofthe 

17 intersections analyzed. The Respondent's models show substantial growth in travel demand 

for the Durham area due to the strategic location ofthe study area in relation to the nearby urban 

centers and the Research Triangle Park. 117 Future daily traffic volumes along existing NC 147 

115 Elston, 991 F.2d at 1413. 

116 Georgia State Con/, 775 F.2d. at 1418; See, e.g., Elston, 997 F. 2d at 1413. 

117 East End Connector Community Impact Assessment Report, North Carolina Department ofTransportation, p. 56, 

(February 2008). 

35 
will increase approximately 200 percent within the study area by the year 2035 under the no 

build alternative. The future daily traffic volumes along existing US 70 are projected to increase 

from approximately 230 to 330 percent within the study area. 

Additionally, traffic volumes on local roadways are forecasted to increase over the next 25 years, 

and the Project would alleviate these issues. For example, the 2035 no build option will result in 

a 94% increase on Alston A venue, which would be kept to a 61 % increase under the build 

option. Other local roads expected to experience a 24 - 42% increase under the 2035 no build 

option would be kept to 0% with the Project. 

The Recipient also showed a need for improved safety. The local roadways that are currently 

used to connect US 70 to the Durham Freeway-including Alston Avenue/Avondale Drive, 

Mangum Street/Roxboro Street (one-way pair), and Duke Street/Gregson Street (one-way 

pair)-have crash rates that are five to seven times higher than the statewide average for 

similarly classified roadways. Because traffic is projected to increase on each ofthese roadways 

over the next 30 years, as previously discussed, it is probable the Project would mitigate these 

safety issues. 

For the foregoing reasons, FHWA finds that, even if the Project resulted in adverse, disparate 

impacts, there is a substantial legitimate justification for the Respondent's actions. The data and 

information available support that the Respondent has established purposes and needs that are 

legitimate, important, and integral to its institutional mission and that the Preferred Alternative 

bears a manifest demonstrable relationship to those needs. 

3. Less Discriminatory Alternatives 

FHWA does not find evidence that a less discriminatory alternative exists in this case. Ifa 

substantial legitimate justification for the recipient's discriminatory policy or practice is 

identified, the investigating agency must also determine whether there are alternative practices 

that may be comparably effective with less disparate impact. Title VI requires recipients to 

implement a "less discriminatory alternative" ifit is feasible and meets their legitimate 

objectives. 118 Ifa substantial legitimate justification for the recipient's discriminatory policy or 

practice is identified, the investigating agency must also determine whether there are alternative 

practices that may be comparably effective with less disparate impact. Title VI requires 

recipients to implement a "less discriminatory alternative" if it is feasible and meets their 

legitimate objectives. 119 

The alternative to the project suggested by the Complainant, the Loop project, appears to have 

entailed a 20-mile highway that stretched across the entire northern part ofthe City. While there 

may have been linkages in the City between the Loop and the Project area, they are clearly 

separate projects designed to solve separate problems. In fact, the Project first entered the City's 

transportation plan in 1959, and existing evidence suggests the Loop did not become part ofthe 

Durham Area Thoroughfare Plan until 1967. The original purpose and need for the Project was 

developed prior to the completion ofthe final EIS in 1982. That purpose and need was then 

118 Elston, 997 F.2d at 1407, 1413; Georgia State Conf, 775 F.2d at 1417. 

119 /d. 

36 
reaffirmed by the completion ofthe reevaluation EA in 2009. This indicates that the Project, as 

conceived over 50 years ago, had a purpose and need that remained substantively unchanged 

from 1982 to the present. There is no evidence to suggest the Project or the Loop were 

alternatives to one another. Rather, the evidence shows the Project was conceived, developed, 

and carried out separately from the Loop. 

For the foregoing reasons, FHWA finds that there is insufficient evidence to show that a less 

discriminatory alternative to the Project existed that met the recipient's legitimate needs, but that 

would have done so without the same level ofdisparate impacts based on race, color, or national 

origin. 

b. Disparate Treatment Based on Race, Color, or National Origin 

The FHWA reviewed the available record for direct and indirect evidence regarding disparate 

treatment ofAfrican-Americans, or any other demographic group, related to the Project. 

Regarding direct evidence, the record does not show the Respondent used express classifications 

based on race, color, or national origin, or directed adverse action to be taken based on race, 

color, or national origin. Likewise, the record does not show any oral or written statements made 

by Respondent decision-makers that express a discriminatory motive related to the Project. 

Finally, FHWA did not find that Recipient decision-makers "placed substantial negative reliance 

on an illegitimate criterion in reaching ... " 120 decisions related to the Project. The criteria used by 

Respondent decision-makers drew from legitimate sources. For example, the Respondent appears 

to have relied upon regulations and guidance from the EPA and FHWA regarding its air quality 

and project selection analysis, in addition to the SIP and MPO planning documents such as the 

TIP and LRTP. 

Proof ofintentional discrimination may also entail a mosaic ofcircumstantial evidence that, 

taken collectively, may demonstrate the recipient acted, at least in part, with intent to 

discriminate based on race, color, or national origin (Arlington Heights). Here, FHWA found 

insufficient evidence to establish intentional discrimination. First, as discussed previously in this 

Letter ofFinding, FHWA did not find statistical evidence that African-Americans, or any other 

demographic group, is disparately impacted by the Project. There is also no evidence to show the 

Respondent deviated from normal procedures or policies in the development ofthe Project. 

Regarding the historical background for the Project, the Complainant alleged the Project was 

developed as part ofa long history ofdiscriminatory actions by the state ofNorth Carolina and 

the City. In support ofthis, the Complainant cited a number ofsources. For example, he noted 

North Carolina House Joint Resolution 1311 from April 5, 2007, titled: "Expressing the General 

Assembly's Profound Regret for the Institution and Lasting Effects of Slavery."I2I This 

resolution traced the history of slavery in North Carolina-the continuing effects ofwhich 

carried through reconstruction, the Jim Crow era ofthe 20th Century, and to the present-and 

120 Price Waterhouse v. Hopkins, 490 U.S. 228,277 (1989) (O'Connor, J., concurring); Venters v. City ofDelphi, 

123 F.3d 956, 972 (7th Cir. 1997) (direct evidence includes "evidence which in and ofitself suggests" that someone 

with managerial authority was "animated by an illegal ... criterion."). 

121 See hnps://www.ncleg.net/Sessions/2007/Bills/House/HTMUH 1311 v0.html. 

37 
expressed an apology. The Complainant has also cited economic development and 

unemployment statistics in Durham, as well as previously-mentioned documents such as the 

IBM and UNC Reports. The Complainant also cited to other civil rights complaints and lawsuits 

filed against state and local government. For example, he noted the U.S. Supreme Court's 

decision in Cooper v. Harris, 122 where the Court affirmed the district court's finding that the 

North Carolina General Assembly violated the Equal Protection Clause ofthe Fourteenth 

Amendment by separating its citizens into different voting districts on the basis ofrace absent a 

sufficient justification. The Complainant similarly cited a 2013 Title VI complaint filed by Legal 

Aid ofNorth Carolina against the Durham Public School District alleging the District's student 

suspension policies created a disparate, adverse impact against African-American students. 123 

While this information is useful in evaluating the local and statewide history of AfricanAmericans' treatment by governmental and private actors, there is insufficient evidence to show 

how the aforementioned facts and events are causally related to the Project. For example, there is 

no sequence ofevents or legislative history to tie matters such as gerrymandering, school 

detention policies, or general declarations regarding discrimination to this Project. This, coupled 

with a lack of statistics showing a clear pattern ofdiscriminatory effects with regard to the 

Project, suggests no mosaic of circumstantial evidence exists to demonstrate intentional 

discrimination under Arlington Heights. 

For the foregoing reasons, FHWA finds that there is insufficient evidence that the Respondent 

intentionally discriminated against African-Americans when it advanced the Project and selected 

the Preferred Alternative. 

V. Conclusion 

Based on the available data and information, FHWA finds that there is insufficient evidence that 

the Project will create adverse, disparate impacts on the African-American residents of 

Hayestown or throughout the project area. FHWA finds, however, that even ifthe selection of 

the Preferred Alternative would result in adverse, disparate impacts, a substantial legitimate 

justification exists for the Respondent's actions, and a less discriminatory alternative could not 

be identified. Finally, FHWA finds that there is insufficient evidence that the Respondent 

intentionally discriminated against the African-American residents ofHayestown or throughout 

the project area. 

This letter concludes FHWA's investigation, and the case will be closed with no further action. If 

you have any questions regarding this matter, please contact Kevin Resler, FHWA National Title 

VI Coordinator, at (202) 366-2925, or kevin.resler@dot.gov. 

122 Cooperv. Harris, 137 S.Ct. 1455 (2017). 

123 Letter from Legal Aid ofNorth Carolina, Inc. to the U.S. Dept. of Education Office ofCivil Rights (April 16, 

2013). 

38 
Sincerely yours, 

✓~Irene Rico 

Associate Administrator for Civil Rights 

cc: John F. Sullivan, III, Division Administrator, FHWA NC Division Office 

Edward T. Parker, Assistant Division Administrator, FHWA NC Division Office 

Lynise DeVance, Civil Rights Program Manager, FHWA NC Division Office 

James Esselman, Senior Attorney Advisor, FHWA Office of Chief Counsel (HCC-30) 

Yvette Rivera, Associate Director, Equity and Access Division, USDOT 

Office of Civil Rights 

39