KIPDA Transportation Technical                                Coordinating Committee Meeting                                                               

Held at Hillview City Center, October 10, 2012

This report was made by Bud Hixson, attorney for CART in the Louisville Bridges lawsuit.

KIPDA staffer,  Mary Lou Hauber presented a plan for an Interim Transportation Improvement Program (Interim TIP) which she called an "update."

This new "Interim" TIP would have a promulgation track with a new conformity analysis in January and public comment period in March. This would be a TIP covering a four year period for projects using federal funds from 2013 to 2017.

Ms. Hauber seemed to stammer around avoiding an explicit discussion of why KIPDA has to prepare an "Interim TIP" but stated it was being done as "a precaution" in case anything should happen and the present TIP should be rejected.

What could  happen?  It could be the recent ozone exceedence days are throwing the  conformity of the present TIP in jeopardy. 

The total additional emissions of particulate matter, ozone and carbon monoxide from mobile sources must not cause or contribute to exceedence of air quality standards. KIPDA has to submit calculations showing the additional transportation project using federal funds will “conform” to the plan for lowering pollution since the area is designated non-attainment for PM2.5 particulates and 8-hour ozone. In 2008 the 8-hour ozone average was lowered to 75 ppb (parts per billion) and our air quality on hot summer days has been exceeding that level.

One of the things Hauber mentioned was a "one year conformity lapse grace period."  This backup TIP would carry federally funded transportation projects through in the case where the current approved TIP should lapse. "If anything happened and a lapse occurred we would not be able to move ahead with projects already funded."  Sounds like significant undefined problems are occurring in the conformity area that are so serious as to cause KIPDA to drop back and punt.

Could it be that FHWA and EPA are going to flunk the conformity analysis because it has used the outdated MOBILE 6.2 program instead of MOVES or some other reason perhaps caused by 27 days of ozone excedences, but we really don't know and she didn't spell it out.

What else KIPDA is doing wrong?

At the Hillview meeting the next agenda item was "Connecting Kentuckiana" which is KIPDA’s "issues identification" portion of the new --not the interim-- Metro Planning process leading to preparation of a new TIP running 2015 to 2018.

Perhaps KIPDA staff think they are going to have an east end crossing by that time. They had five map stations to go to where KIPDA staff explained and pointed out features.The one called 'freight access' identified clusters of major freight operations, or ‘highway truck freight generators.’ These businesses have 100 employees or 100,000 sq. ft of warehouse space. KIPDA was very interested in prioritzing the highway system to serve these areas that generate significant daily truck traffic. 

Regional Transportation

Planning is a Civil Rights Issue

At no time during the presentations did KIPDA staff open a discussion about joblessness and poverty in the low income African American segregated areas of Louisville designated the Title VI areas referring to Title VI of the Civil Rights Act of 1964.

This omission was surprising since CART members had attended several of the “Connecting Kentuckiana” neighborhood meetings, and made specific comments that intentional discrimination was occurring in the transportation project planning by stripping most funding from public transit and spending billions on east end bridges with disproportionate benefits to non-minorities.

Larry Chaney is a nice guy and came to the table and we played ping pong  on the issue of Title VI.

I criticized the 'Issues" identification tables process because:

• no African American persons present

• no African American on the ‘issues' document committee

• no clear and straightforward discussion of the Title VI area needs

1. •no Table with Title VI area map and needs as part of   ‘Connecting Kentuckiana’
   

Respresenting CART’s position, I suggested that Title VI issues needed its own committee and early and continuing discussion in the issues identification process. His response was that none of the Committee members was bringing it up. It appears that, unless a TTCC Committee member starts the discussion, it simply isn't discussed.  This implies that Title VI issues are not at the forefront of concern.  No surprise there as the entire group present was Caucasian and Title VI issues, along with public transportation is absent from this major planning effort just as they have been lost in every prior TIP planning process.

KIPDA robotically proceeds as usual pandering to the major industrial freight and commercial interests who pull the political strings and cannot be bothered to include even a perfunctory analysis of Title VI - a pattern evident at the October 12th meeting in Hillview.

The public highways are being enhanced and designed as freight moving corridors with most attention to congestion and wrecks numbers. KIPDA responds to runaway sprawl and supports it with new connectivity, lacking any concern with urban planning wisdom, leaving those concerns to someone else.

One could conclude from the TTCC meeting that KIPDA’s project planning and ‘listening process’ under the ‘Connecting Kentuckiana’ banner has gone awry.

The voice KIPDA hears loudest, is that of the growing warehouse and shipping segments of the economy anchored by UPS at the airport and RiverRidge in southern Indiana.

In reshaping our transportation system to serve low wage factory jobs in the outer belt, KIPDA is failing to address urban socio-economic and sustainability design problems and is betting the farm on a boom and bust globalization shipping economy dependent on diesel trucks slamming down local interstates.     

28. The Civil Rights Act of 1964, 42 U.S.C. 2000d1-d4 prohibits intentional discrimination in federal projects on the basis of race. Alexander v. Sandoval, 532 U.S. 275, 285, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). 23 C.F.R. 200.7 declares the policy of the

FHWA to ensure compliance with Title VI. Implementing regulations at 49 CFR, Part 21.3 –21.5 apply the program to recipients of federal highway funds, effectuate Title VI and list specific prohibited discriminatory acts.

51. On February 25, 2002, members of the General Assembly, Jim Wayne and Paul Bather, filed a Title VI Complaint alleging construction of an East End Bridge would cause disruption of regional economic and social cohesion and disproportionately high and adverse impacts to members of the protected African American minority class in their urban core political districts, by shifting more economic growth to far eastern Jefferson County and southern

Indiana where the population is 85-95% white, higher income residents. They cited, Savitch and Vogel Consultants, Report 3: Ohio River Bridges Project: Sprawl and Urban Disinvestment,

February 2002. “The wealthiest areas in the Louisville Metropolitan area are growing richer, while poorer areas fall behind.” Page 16, Title VI Complaint Appendix 2003 ROD.

52. On January 2, 2003, as an included mitigation of Title VI impacts, Defendants, Metro Louisville and the African American Heritage Foundation, Inc. agreed to develop the City-owned Trolley Barn as a Center for an African American Heritage Museum and a site for job training of protected class people in historic structure rehab. Defendants included $ 10 million of federal Transportation Enhancement funds under Section 4.3.4 of the 2003 Record of

Decision to restore the property at 17th and Muhammad Ali in the West End and $ 150,000 for the training.

53. A contractor was hired, the Trolley Barn was rehabilitated but no federal funds were available for the African American Heritage or transportation Museum, or a planned business complex on the site. Ultimately, the transportation functionality of the trolley barn, to

repair street trolleys, was irreplaceably lost, no economic growth resulted, and the African American history education and training classes were dropped. The total of funds dedicated to all  Title VI mitigation for the Project amounts to less than 1% of the Project total estimated cost.

54. In October 2004, the KIPDA TPC adopted the Community Assessment and Outreach Program for the Louisville (KY-°©‐IN) Metropolitan Planning Area for Title VI/Environmental Justice and other Communities of Concern. At the time the ORMIS P&N

was developed at the state MPO level, there was no certified KIPDA Title VI program.

72. In an August 2011 letter and comments to the SFEIS submitted June 2, 2012 and included in the record, the facts of the Title VI area were set before Defendants. It is undisputed that African Americans in Jefferson County make up a minority population of about 19% of the total population in Jefferson County and much lesser fractions in the other counties of the KIPDA planning area. It is also undisputed that the same population is concentrated in distinct west end and Newburg neighborhoods which settlements are a legacy of open and intentionally racist Jim Crow and segregation policies of the past city governments. In the decade since theTrolley Barn agreement, since 2002, economic conditions for the protected class in these neighborhoods has degraded severely by all measures. In March 2010, the Metro Council

funded, Metropolitan Housing Coalition, issued an Analysis of Impediments to Fair Housing Choice in Louisville Metro, KY that noted:

“The 2000 Census, the most current data source for Jefferson County poverty levels broken down by council districts, shows the council districts with the highest poverty levels are also the same areas with the highest concentrations of subsidized housing, the

greatest number of health problems, the least access to healthcare, the greatest concentrations of protected classes, most notably African-Americans, and the greatest number of foreclosures and vacant properties. This illustrates that race, gender, disability,

poverty, poor housing conditions, and poor health conditions are concentrated in the same [west end] areas of the county. These council districts are 1, 2, 3, 4, 5, 6, 15, and 21.

From 2008 to 2010 there were 6,684 home foreclosures and 1,174 abandoned properties that were disproportionately clustered in the Title VI area. It is uncontested that the PVA called for

economic development in the Title VI area to add jobs and employment.

From 2001 to 2012, the Metro police budget increased from $ 102 million to $ 167 million annually to address crime in

the Title VI areas. Metro Louisville has a disproportionate minority confinement record for the last decade in which minorities making up 19% of the total population are confined at rates of 50% to 80% of the jail population by crime.

In 2012, after multiple homicides Metro Mayor Fischer appointed a West End Working Group to analyze the causes of violence affecting generations of Title VI minorities. Disparate impacts were documented in the Metro Louisville Department of Public Health and Wellness Center publication, Patrick Smith, AICP, Margaret Pennington, MSSW, Lisa Crabtree, MA, Robert Illback, PsyD, Louisville Metro Health Equity Report: The Social Determinants of Health in Louisville Neighborhoods. Exhibit 1.

Fifthteenth Claim: Defendants approval of the FEIS and RROD violates Title VI

132. Title VI of the Civil Rights Act of 1964 as codified 42 U.S.C. 2000d et seq and the D.O.T agency interpreting regulations 49 CFR § 21.1 effectuates Title VI enforcement for federal aid highway recipients, Kentucky, Indiana and their subordinate state agencies and “public authorities.”

133. Defendants actions approving the SFEIS and RROD purposefully and intentionally discriminated against CART protected class members and Title VI residents by denying them equal participation and benefits in federal funded transportation planning and projects:

a) In 2003, and in the 2012 revalidation, Defendants purposely formulated a narrow Purpose and Need Statement to eliminate public transit alternatives from detailed consideration, to address regional economic dislocation and economic consequences disproportionately impacting the Title VI area;

b) Defendants were b) Defendants were served a Title VI Complaint in 2002 by legislators Jim Wayne and Paul Bather that gave a detailed discussion of disproportionate impact of the project.

Defendants were aware of the race discriminatory regional socio-economic disproportionate impact when they eliminated state funding for T2 and killed the T2 EIS process on which $ 9 million had already been expended in favor of the two bridges project;

c) Defendants violated Title VI and NEPA by failing to take a “hard look” at west end socio economic factors in the scoping process. This obscuring of the socio-economic crisis in the analysis was intentional for the purpose of maintaining and continuing economic

disadvantages to the Title VI population to continue disproportionate minority arrest and confinement to support expansion of the metro police and corrections budgets.

d) Defendants actions approving the SFEIS and RROD intentionally discriminated against CART protected class members by adopting a financing plan to impose tolls that would disproportionately burden them in cross river travel to jobs and recreation for 46 years.

e) Defendants proposed and included mitigations to address disproportionate adverse impacts in the 2003 ROD and 2012 RROD amount to less than 1% of the construction cost of $ 2.58 billion, do not provide operational funds for enhanced bus service, and will not provide reasonable transportation to benefits of project induced growth and employment in the East End and Southern Indiana. Rebuilding the Trolley Barn and failing to fund the African American

Heritage Museum installation destroyed its potential functionality as a transportation facility for a revived downtown trolley system potentially adding to minority mobility, and was not “a reasonable public expenditure after considering the impacts of the action and the benefits of the proposed mitigation measures,” as required by 23 C.F.R. § 771.105(d)(2).