To: HONORABLE MAYOR AND From: Del D. Borgsdorf
                         CITY COUNCIL Susan F. Shick

Subject: CONSTRUCTION IMPACT Date: 9-29-03

MITIGATION ORDINANCE

Council District: Citywide

RECOMMENDATION

a) Approval of an ordinance amending Title 13 of the Municipal Code to revise Chapter 13.36, and amending various sections in Chapter 15.50 of Title 15 setting forth a requirement that a Construction Impact Mitigation Plan be prepared for all major construction projects, unless the City has otherwise entered into an agreement requiring such a Plan.

b) Approval of a resolution amending Resolution No. 71216, as amended, the City’s schedule of administrative fines, to establish a $5,000 per day administrative fine for violations of the Construction Improvement Mitigation Plan ordinance and Construction Improvement Mitigation Plan requirements, to take effect upon the same date as the ordinance.

c) Direction to City and SJRA staff to comply with the provisions of the Ordinance for all City and SJRA major construction projects.

CEQA: Exempt, PP03-09-304.

BACKGROUND

The intent of the Construction Impact Mitigation Ordinance is to reduce the impacts on residents and businesses from major construction projects.

This issue has previously been discussed at Council meetings on May 28 and September 26, 2002. This issue has previously been discussed at the Building Better Transportation (BBT) Committee on April 7, June 2, August 4, and September 8, 2003 and at the Driving a Strong Economy Committee on August 25, 2003.

During these working sessions, there has been discussion on the following topics:

• A “best practices” report was prepared, indicating that the state of construction impact mitigation efforts across the country is moving to more proactively address the concerns of impacted businesses and residences.
• A presentation was made by the Valley Transportation Authority (VTA), indicating their commitment to implement Construction Impact Mitigation measures for the BART to San Jose Project.

• A report was prepared describing concerns of the VTA relating to the adoption of an Ordinance by the City and its recommendation that cooperative agreements be used for implementing the provisions of Construction Impact Mitigation plans.

• A report was prepared which discussed the relative merits of policies versus ordinances for implementation, with consensus by the BBT that an ordinance should be implemented.

• A report was prepared which discussed public outreach efforts that were conducted with businesses, public agencies, utility companies and developers regarding the proposals. This report indicated that there were significant concerns from the private development community that the proposed construction impact mitigation ordinance duplicated many current requirements that they already must comply with and imposed new requirements that would be costly and burdensome.

• A report was prepared which documented the current practices and procedures (Attachment A) for the mitigation of construction impacts for private and public projects and recommended that a threshold value for requiring construction impact mitigation plans be set so that the majority of private development projects would be excluded from the requirements of the construction impact mitigation ordinance.

ANALYSIS

From discussions at Committee and Council meetings as well as public outreach meetings, there is consensus that the most significant construction impacts are from publicly funded projects, such as VTA rail projects, extensive public infrastructure projects, such as sewer and storm drain improvements, and from quasi-public and private projects such as energy, water and telecommunications utility provider projects. In addition, there is a need for more attention to be focused on construction impact mitigation for smaller projects. Current regulations are sufficient to require adequate construction impact mitigation for most private developer projects.

Attached to this report is a recommended ordinance (Attachment B) to require the preparation of a Construction Impact Mitigation Plan (CIMP) for “major construction projects” (as defined below) and a recommended resolution (Attachment C) establishing a $5,000 per day administrative fine for violations of the CIMP requirements which would take effect upon the same date as the ordinance if adopted by Council.

The proposed ordinance would apply to all major construction projects that require a public right-of-way encroachment permit from the City. It would not directly apply to City and SJRA construction projects since these projects do not require encroachment permits. For this reason, the second recommendation directs City and SJRA staff to comply with the provisions of the ordinance for all City and SJRA-funded major construction projects.

Some of the upcoming major construction projects in San Jose are rail transit projects within the street right-of-way. VTA has proposed and staff concurs that a cooperative agreement between the City and the VTA may be a more flexible means for clearly delineating the obligations and responsibilities for construction impact mitigations for VTA projects. In recognition of the benefits of cooperation versus regulation, the proposed ordinance would not be applicable to major construction projects where Construction Impact Mitigation plans are addressed in agreements that are approved by the City Council. The requirements within the ordinance serve as the basis when negotiating such agreements.

The proposed ordinance defines a major construction project as one where the work in the existing public right-of-way has a value in excess of $10 million and where at least one of the following conditions exists:

1. Two or more signalized intersections will be impacted by the project;
2. Pedestrian access will be precluded for the length of a block; or
3. The project is located within the lesser of 500 feet or one block from another project located in the right of way.

Projects with a $10 million threshold include the vast majority of the major public and quasi-public projects with significant construction impacts. However, it would be very rare for a private development project, other than utility and telecommunication projects, to meet the $10 million threshold. By using a value-based threshold, the CIMP Ordinance will be applicable to the majority of the projects that create the impacts of concern to the Council and the public, while excluding the majority of projects that already are significantly regulated. The other three thresholds will exclude large projects if there does not appear to be actual physical impacts from the project on traffic or pedestrian access.

If a CIMP is required, the proposed ordinance defines the study area to be all residents and businesses within a 500-foot radius of the project site. The proposed ordinance will require the project sponsor to prepare a study to determine all potential impacts on businesses and residents within this study area, resulting from the proposed construction project. The proposed ordinance recognizes that environmental and physical impacts of construction may already have been studied and assessed under the CEQA process and allows the Construction Impact Mitigation Plan to incorporate by reference such analysis and any proposed mitigation measures discussed in any CEQA document prepared for the same project.

The proposed ordinance defines the requirements of a Construction Impact Mitigation Plan. The CIMP will be required to include:

a) Detailed description of the project, including site maps, construction phasing schedule, location and timing of activities.

b) Detailed analysis of potential impacts to the study area.

c) Detailed description of proposed mitigation measures.

d) A comprehensive communications plan, including public information and outreach efforts.

The proposed ordinance requires that impacts are to be reasonably mitigated to the extent practicable. A number of potential mitigation measures are included, but other mitigation measures can be proposed by the project proponent. The following measures are listed as examples in the proposed ordinance.

a) Limited hours of construction;

b) Provision of alternative access routes;

c) Outreach to business to schedule utility outages;

d) Increased signage to provide visibility, notice of alternative parking, notice of alternative access;

e) Marketing assistance, technical business support, and cross-promotion efforts with adjacent businesses.

f) Direct or indirect financial assistance, such as, but not limited to, that which may be available through government loan or grant programs.

The proposed ordinance requires that the CIMP be approved by the City Council prior to the Director of Public Works issuing an encroachment permit under Titles 13 and 15 of the Municipal Code. For projects covered by a Council-approved cooperative agreement, the agreement will address both the content and process for the development and implementation of a Construction Impact Mitigation Plan for the project.

One other issue expressed by the BBT Committee was the concern when there are concurrent large private developments and/or major public projects proximate to one another. The cumulative impacts of these projects often warrant special attention and close coordination between project proponents. To address this situation, additional coordination must and will take place at all stages of project implementation. Staff from PBCE, DOT, DPW and SJRA will work more closely on coordinating both public and private projects to ensure that appropriate coordination takes place during the construction phases of a project.

In addition, the current encroachment permit ordinance is recommended to be modified in two ways: First, since current encroachment permits have a life of six months and have to be renewed if the project remains longer in the public right-of-way, staff recommends a provision that the permit can be revised at the time of renewal or extension if construction conditions or conditions in the area of the project have changed. Second, it is recommended that the fines and penalties section of the CIMP Ordinance also apply for non-compliance with normal encroachment permit conditions.

PUBLIC OUTREACH

Outreach was conducted with utility companies (San Jose Water, Comcast, SBC, PG&E), the Contracting Community (AGC), Business Community (Chamber of Commerce, Manufacturing Group), Neighborhood / Business Associations (Downtown Association, NBD Members, SNI Committee), the Development Community (Public Works/Development Industry Meeting, Planning Roundtable) and ethnic Chambers of Commence (Hispanic, Black and Vietnamese).

COORDINATION

This memo and draft ordinance have been coordinated with the City Attorney’s Office, and the Departments of Public Works, Transportation, and Planning, Building and Code Enforcement.

FISCAL IMPACT

The adoption of this ordinance would require that sponsors of “major construction projects” bear the following additional costs:

1. Costs of preparing a Construction Impact Mitigation Plan

2. Costs of implementing impact mitigation measures

When the City or SJRA is a sponsor of a major construction project, the proposed policy would increase the cost of the project. There will also be costs for City staff to review construction impact mitigation measures for major construction projects for projects not sponsored by the City or SJRA. Neither the sponsor costs nor the City staff costs can be estimated at this time. These costs could be substantial.

Performance objectives and measurement criteria will be developed and recommended to Council upon adoption of this ordinance.

CEQA

Exempt, PP03-09-304

DEL D. BORGSDORF SUSAN F. SHICK

City Manager Executive Director