The 2nd meeting of the Interim Joint Committee on Economic Development and Tourism was held on Thursday, July 15, 2004, at 1:00 PM, in Room 149 of the Capitol Annex. Representative Eddie Ballard, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Katie Stine, Co-Chair; Representative Eddie Ballard, Co-Chair; Senators David Boswell, Julie Denton, Brett Guthrie, Vernie McGaha, Richard Roeding, and Damon Thayer; Representatives Royce Adams, Carolyn Belcher, Buddy Buckingham, Jesse Crenshaw, Bob DeWeese, C.B. Embry Jr., Bill Farmer, Mike Harmon, Mary Harper, Dennis Horlander, Thomas Kerr, Stan Lee, Gross Lindsay, Thomas McKee, Charles E. Meade, Brad Montell, Ruth Ann Palumbo, Tanya Pullin, Dottie Sims, Ancel Smith, Brandon Smith, John Will Stacy, Charles Walton, and Mike Weaver.
Guests:
LRC Staff: John Buckner, Committee Staff Administrator; Karen Armstrong-Cummings, Committee Analyst; and Cecilia Perry, Committee Assistant.
Representative Ballard welcomed members and guests to the meeting. With a quorum present, motion was made, seconded and passed to approve the minutes of the last meeting. He then introduced Mr. Lee Creech, Department of Local Government and Lisa Rainy, University of Kentucky.
Mr. Creech, Coordinator for the Rail Trail Development Office, gave an agency overview of the Rail to Trail program in Kentucky. He said that as staff time has permitted, the agency has given technical assistance to anyone interested in starting a rail trail project but he admitted that the program consists of a small percentage of his time. Mr. Creech said he monitors abandoned railroads as they occur and then tries to relay that information to local officials and others who might be interested. As part of their technical assistance, he provides interested parties with railbanking information and funding sources which aides in getting new projects started. The agency has been participating in the program for 3 years and has experienced 20 abandonments during that time frame. Out of the 20 abandoned rail trails, 6 initiated the railbanking process in an effort to promote recreational use of the trails. He gave an overview of a study that was conducted by the Transportation Center at the University of Kentucky. The study indicated that Kentucky has about 1,200 miles of abandoned railroad. Less than one percent have been used for recreational purposes. He discussed the Lexington-Big Sandy Trail. He said the Lexington-Big Sandy Trail is about 109 miles in length. The conditions of the corridor vary in certain areas. He stated that portions of the corridor are auto road informal ATV track, and some are clear but unused. He said most rail trail issues rely on funding. There are several federal funding sources that he recommends such as the Land and Water Conservation Fund, the Transportation Enhancement Fund, and the Kentucky Trail Program. He said that with further planning and implementation, the program could advance.
Ms. Rainy discussed an inventory of the rail trails which was based on the research of Kentucky corridors. She reviewed a handout that primarily focused on the abandoned corridors in Kentucky. She said that the network of abandoned rail lines extends in all regions of the state and she would be glad to provide information on the resources that were available in each members district.
Chairman Ballard asked if the Rails to Trails program attracted many out of state tourists. Ms. Rainy said that the longer trails attract the most people.
Chairman Ballard asked if there was any plans on extending the White Plains Trail. Ms. Rainy indicated that there was a lot of potential there, but she was not aware of future plans for the trail.
Senator Roeding asked if the railroad could be accessed again and put back in working order if the need was to arise. Mr. Creech said that it would depend on the transfer of ownership of the railroad. If the transfer was through the railbanking process, there is a provision that a railroad can reassert its claim to that right of way for transportation purposes.
Senator Roeding asked about railbanking. Mr. Creech said that railbanking is a procedure that was established by federal law that allows for an interested party to intervene in an abandonment procedure and prevent the right of way from reverting back to the adjacent landowners and being lost.
Senator Roeding asked if anything was being done to ensure that there is follow through on some of the trails to attract tourism. Ms. Rainy said in most cases, the local county or city officials are responsible for managing the trails through maintenance, upkeep, and marketing efforts.
Chairman Ballard invited representatives of the Rails to Trails Council to come forward and present to the members. He introduced Sandy Shafer, Vice Chair for Government Affairs; Keith Lovan, Chairman; and William T. Gorton III, Legal Advisor.
Ms. Shafer thanked the committee for having them speak. She said that she and her colleagues were volunteers of the Rails to Trails Program and they represented a group of citizens that are interested in creating a Kentucky that is more than just a pass through state for tourists. She indicated that their efforts were to promote health and fitness through the trail programs. She said that they wanted to create the opportunity to make a linear park. She explained that the linear park could go from Paducah to Pikeville. She provided the members with a handout that discussed the obstacles and barriers that the Rails to Trails program faces and is striving to overcome.
Mr. Lovan said that the mission of their group was to support and encourage the development of rail trails in the state. He explained other attributes and duties of their council.
Mr. Gorton referred to a chart that detailed rail trails in all fifty states and the mileage the trails cover. He explained that Kentucky is underdeveloped in terms of rail trails and that people are traveling out of state to access trails for things such as hiking, bicycling, or camping.
Mr. Lovan reviewed the Rail Trail Act that passed in 2000. He said that the Rail Trail Act established an Office of Rail Trail Programs in the Department of Local Government. He said that the office would be responsible for the development of a statewide rail trail plan. He explained that the office would also be responsible for the development of a guide for rail trail proponents. He said that the Act was also supposed to establish a system to notify counties of rail line abandonments and a system for railbanking and acquiring intrastate rail lines.
Representative Lee asked what the paving and the acquisition of the right-of-way was going to cost the Fayette County area. Ms. Shafer said that there are ripple effects of building a linear park that can not be given a dollar amount. She discussed the history that was involved in some of the rail trails and provided examples from the Lexington area. She said that it was difficult to put a dollar amount on some of the trails because there are times when land is donated and funding sources can help significantly. Mr. Lovan discussed a two-mile project in Fayette County where land was donated and an easement was purchased for $30,000. He explained that all projects are different and some could be more or less expensive depending on the location of the trail and how the land is obtained.
Representative Lee asked how much money the group wanted the General Assembly to allocate to this program and how the local and city governments plan to assist the program. Ms. Shafer discussed funding sources that are available for the program and explained how the local communities routinely match those funds so no money is needed by the General Assembly. She said there was a need for an advocate from a state agency to help educate citizens of Kentucky about rail trails, market the rail trail program, and track the abandon rail trails for future development opportunities.
Mr. Lovan further discussed the many benefits of the rail trail program: recreation, tourism, community events, habitat restoration, historic preservation, economic development, stewardship, and health and fitness. He said that there are nine non-profit organizations that are working on projects in the state. Mr. Lovan also mentioned proposed projects that are currently under consideration. He spoke on the Lexington-Big Sandy Rail Trail and said that it runs through six counties. He said that small segments of the Lexington-Big Sandy Rail Trail are being worked on in several cities and that businesses are developing as a result of the progress of the rail trail. Mr. Lovan said that the goal would be to connect the segments and have one large rail trail as a tourism attraction. He discussed the abandonments that have been reported in the last two years that took place in Johnson, Magoffin, Breathitt, Floyd, and Hopkins counties.
Representative Pullin asked if there were areas to ride bikes that would be for the intermediate bicyclist where much coasting and very little peddling would be required. Ms. Shafer said that most areas were only at a three percent grade which would be user-friendly to those pushing baby strollers or wheelchairs. She said that with the length of the trail there are several different areas that would accommodate any individual and their levels of physical fitness.
Mr. Gorton discussed property rights issues involving adjacent property owners and obtaining clear titles to land rights. He said that Congress amended the National Trail System Act in 1983 to preserve existing rail corridors. He said that through interim use as trails, they are preserved for national security interests, therefore, the corridors can be converted back to regular rail use should the need arise. He stated that Kentucky has recreation liability laws that protect the private landowners from liability. He said there are also recreation authorities that are helpful sources when dealing with multi-county projects. Mr. Gorton said that the state's statutory framework was well in hand to allow this program to move forward.
Mr. Lovan stated that the Rails to Trails Council would like to see a full-time Rail Trail Coordinator within state government. He said they would also like the General Assembly to enact a special task force to help aid the Lexington-Big Sandy Project. He commented that support from local and city governments as well as state agencies, at the cabinet level, would help the program to move forward. Mr. Lovan said that need for trail funding and public involvement was essential to make the program grow and be successful.
Representative Harmon asked how the Council has addressed limiting the property liability without a Constitutional Amendment. Mr. Gorton said that they have not had to consider that at this point.
Representative Palumbo thanked the Council representatives for their presentation and commented that she considered the rail trail program to be strong economic development because it encourages tourism and brings in tax dollars.
Chairman Ballard asked if the Council had heard of problems relating to vandalism. Ms. Shafer said they have not had such problems.
Chairman Ballard asked if there have been problems with ATVs. She said, to her knowledge, there have been no problems relating to ATVs and the program was designed for non-motorized use.
Chairman Stine said statutorily, the Department of Local Government is responsible for coordinating and promoting rail trail development efforts in the state of Kentucky. She said there are several agencies that are supposed to play a role in the rail trail program. She asked why the Council felt they needed an advocate within state government when statutorily there is a structure in place that is responsible for meeting the needs of the rail trail program. Ms. Shafer said that when HB 221 was passed, it came with $440,000 in which staff was part in parcel to those funds. She said those funds are no longer available and staffing issues have evolved.
Chairman Stine asked Mr. Gorton about environmental concerns relating to herbicides used to help maintain the grounds of the rail trail areas. Mr. Gorton said that before they acquire any property an environmental audit would have to be conducted.
Chairman Stine asked if anyone had witnessed any deterrent to the various governmental entities along the Lexington-Big Sandy Trail being able to veil themselves of the Inner Local Cooperative Act, in KRS 65.210, that allows for the different entities to form these coordinated regional parks. Mr. Gorton said the primary problem is failure to get the message out about rail trail development.
Chairman Stine introduced Mark Friedlin, Real Estate Division, CSX Transportation.
Mr. Friedlin said that he handles the real estate assets in Kentucky and several other states. He pointed out that the Lexington-Big Sandy Trail was not a railbanking candidate because it has already been abandoned. He said that a contiguous corridor no longer exists. He said the main obstacles are the funding sources. He stated that CSX does a great deal of work with an organization called The Trust for Public Lands. He explained that they are a third party intermediary that coordinates negotiations between the railroad and landowners or other entities, and they also seek funding for a rail trail project. Mr. Friedlin said the organization has three projects underway in several counties within the state. Mr. Friedlin also discussed environmental issues. He said that years ago, most rail yards and highway personnel used arsenic as a herbicide, which could be in the ground throughout the trail. He stated that there are ways to set up barriers and protect the public from exposure to these herbicides. He said that CSX is establishing a practice for 23 states and two provinces in Canada on how to manage rail trails. Mr. Friedlin provided examples of rail trail programs that have been successful in other states. He told the members that a trail can revert back to the railroad unless it has not been maintained. He added that this particular activity has only happened twice in history thus far. He said there is an advantage to interim trail use because the process is easier and less expensive. He said the Lexington-Big Sandy Trail is going to be a difficult project because of its current status, and due to property rights, ownership, and public opposition.
Representative Lindsay said that a railroad, being a highly regulated corporation, can not get adverse possession against a governmental unit unless you put them on notice. He asked if adverse possession could be obtained against the railroad without putting them on notice. Mr. Friedlin said that adverse possession could be obtained if the railroad has abandoned the property through the Surface Transportation Board (STB), removed its infrastructure, and is no longer used as a rail corridor for interstate commerce.
Chairman Stine asked how many abandonments have taken place since 2000. Mr. Friedlin said he would have to get that information for the committee.
Representative Pullin asked if there was a map that could be distributed to the members showing the available segments of the Lexington-Big Sandy Trail. Mr. Friedlin said he would get that for the committee so they could see what has been disposed of, and what currently may be of interest to other parties.
Chairman Ballard asked about the appraising process concerning corridors. Mr. Friedlin said that when the railroad establishes value, whether it be for donation or sell, the process is to hire a MAI-designated appraiser who has the qualifications to appraise corridors. He said different areas have different values assigned to them depending where their location and surroundings.
Representative Belcher asked about the percentage of the Lexington-Big Sandy Trail that has reverted back to private owners. Mr. Friedlin said the forthcoming map will include that information.
Chairman Stine introduced George Ward, Commissioner of Parks; Carey Tichenor, Park Naturalist/Trails Coordinator; and David Pollack, Archaeologist from the Kentucky Heritage Council.
Mr. Ward thanked the committee for having them and said that the Department of Parks is very excited about the rail trail program.
Referring to the 2000 Act, Mr. Tichenor said the Surface Transportation Board (STB), through the Transportation Cabinet, sends out abandonment notices. He stated that since 2000, the Department of Parks has received notice of approximately 20 abandonments. He said the majority of those abandonments were very small, remote corridors, less than a mile in length, that would not be conducive for a recreational trail. He said the Department of Parks reviews the notices of abandonments to determine if there is potential for a recreational trail. He said that if the potential was there for a good recreational trail, the Department of Parks then notifies the local county and city governments as well as any other interested parties in an attempt to get a railbanking process in place.
Chairman Stine asked if the Department of Parks gives notice to land owners whose land joins a trail. Mr. Tichenor said their department does not give such notice.
Mr. Pollack said the Kentucky Heritage Council supports the rail trail program and views it as a positive activity in relation to historic preservation. He said that the program is an opportunity to integrate historic resources with natural areas and trails which can bring in economic revitalization and new funds. He stated that the role of the Kentucky Heritage Council regarding rail trail programs comes from Section 106 of the National Historic Preservation Act, which requires federal agencies to take into account whether their activities will have an adverse impact on historic properties or architectural features associated with the rail line. He said that if some level of significant architectural or historic features have been identified, documentation is required. He stated their organization has not been contacted nor had any input on the Lexington-Big Sandy Rail Trail possibly since it was abandoned in 1985.
Chairman Stine asked if the Kentucky Heritage Council had been given notice of the abandonments taking place in the state. Mr. Pollack said that notice could be coming in with other correspondence but he is not aware of any at this time.
Chairman Stine introduced Paula Nye, Bicycle and Pedestrian Coordinator and Brent Sweger, both with the Transportation Cabinet.
Chairman Stine asked the Cabinet about the Kentucky Bicycle and Bikeway Commission as far as who makes up the Commission, are they still functioning, and information on current projects or activities.
Ms. Nye said that the Kentucky Bicycle and Bikeway Commission is still functioning and she is the current staff person for the Commission. She provided members with a handout giving annual report information regarding procedures and activities that have been practiced by the Commission in the past year as well as a list of its members. She said the Commission meets monthly through a conference call and is very active in their own communities.
Ms. Nye said that her connection with the Rails to Trails program is to promote walking and bicycling. She said there has been an increase in demand across the nation for bicycle and pedestrian facilities. She referred to the Transportation Cabinet's Pedestrian and Bicycle Travel Policy and said that every highway the Cabinet builds or reconstructs will have to consider bicycle and pedestrian rights and facilities.
Chairman Stine asked if there is any federal grant funding for encouraging people to walk and stay active. Ms. Nye said that there are several groups that attend public meetings held in various communities who express an interest in pedestrian facilities and sidewalks to promote an active lifestyle.
Chairman Stine asked if there has been any effort in Kentucky to pursue some of that funding. Ms. Nye said, to her knowledge, not at this time.
Mr. Sweger said he was the railroad liaison for the Transportation Cabinet. He said he receives notices of abandonments around the state and he notifies various state agencies of those abandonments.
Representative DeWeese asked if there is an increasing number of cyclists, and how does the department deal with safety issues concerning bicyclists and automobiles. Ms. Nye said that a bicycle is a legal vehicle and they have specific rules to follow concerning their rights to the road. She said that the public needs to be educated on the rules but at the same time the department is trying to better accommodate bicyclists by providing them with a bicycle lane and wider roadways.
Chairman Stine asked if bicycle issues are addressed on the driver's license test. Ms. Nye said they are currently working on educating the public through the driver's licensing process.
Chairman Stine introduced Jonathan Grate, Legislative Research Commission, and asked if he would address legal issues pertaining to the Rails to Trails program.
Mr. Grate addressed liability issues, acquisition issues, and task force issues dating back to 1998. He discussed railroads being required by law to provide notice of abandonment to the Surface Transportation Board (STB), regardless of size, as long as they are part of the interstate commerce system. According to the 2000 law, there are several places to find abandonment information: the Railtrail Development Office, Department of Parks, or possibly the Legislative Research Commission.
Mr. Grate discussed railbanking and said it was available under state and federal law. He said state railbanking preserves a railroad easement and allows a railroad corridor to be used for public, non-motorize recreational use. He said that rail service must be allowed to be restored if a bona-fide railroad seeks to repurchase the corridor, and meets construction and rail service deadlines set out by the Act. He added that the entity acquiring the corridor assumes financial and legal liability responsibility for the corridor. He explained that Kentucky's recreation use statute gives special liability protections to persons who open their land for recreational use. He said that under that statute, an individual owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure or activity on the premises to persons entering the trail. He said that the recreational use statute does not apply if a landowner charges admission or in the event of willful or malicious failure to guard or warn against a dangerous condition use, structure, or activity. He said that a railroad can acquire the right to build a railroad line through a "fee simple absolute title" or an "easement." He discussed recommendations given from the 1998 study
Representative Lindsay asked who actually controls the liability issues dealing with recreational use. Mr. Grate said the court states that the recreational use statute created a reasonable classification of persons and was valid so both played a part in the creation of the statute.
Co-Chairs Ballard and Stine thanked the all the speakers for their presentation. The motion was made and seconded for adjournment. The Interim Joint Committee on Economic Development and Tourism adjourned at 3:05 p.m.