To: BUILDING BETTER From: Del D. Borgsdorf
TRANSPORTATION COMMITTEE Susan F. Shick
Subject: CONSTRUCTION IMPACT Date: August 28, 2003
MITIGATION
COUNCIL DISTRICT: Citywide
RECOMMENDATION
1. Accept the report on current ordinance requirements for mitigation of impacts for private developments.
2. Discussion of a proposed ordinance amending Title 13 of the Municipal Code to revise Chapter 13.36 setting forth a requirement that a Construction Impact Mitigation Plan be prepared for all major construction projects, unless the City has otherwise entered into a Cooperation Agreement requiring such a Plan.
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, and August 4, 2003.
At the August 4, 2003 meeting, the BBT reviewed comments from public outreach meetings and heard public testimony regarding the draft ordinance. The Committee commented that there are many requirements already in place to regulate private developments and they directed staff to provide documentation of these requirements and to provide a comparative analysis as to how private development impacts can be mitigated using current requirements versus including them in the CIMP ordinance. The Committee further requested that staff explore the feasibility of exempting private developments from the Construction Impact Mitigation Ordinance requirements, while still addressing the issue of construction impacts that can result from the cumulative impacts of adjacent public and private major projects. The Committee was advised that there may be some concern with a pure public-private project distinction, especially since there are many quasi-public and private utility-type projects of water companies and telecommunications providers that may have major impacts in the public right-of-way similar to large public projects. The Committee also asked for a clear statement of the objectives of the CIMP ordinance and the methods for measuring results.
The public outreach component of this subject was also reviewed by the Driving A Strong Economy (DSE) Committee at their August 25, 2003 meeting. The DSE Committee concurred with comments by the BBT that there are already sufficient regulations in place to regulate most private developments and that the intent of the CIMP efforts should be focused on major publicly funded projects, utility projects and major telecom (private) projects. The DSE also recommended additional outreach be conducted, in particular with minority chambers of commerce such as the Hispanic, Black and Vietnamese Chambers of Commerce and others, because they represent many smaller businesses in areas where some major construction projects are scheduled. The DSE Committee also commented that staff needs to do a better job of implementing current regulations for smaller public and private projects, using a template or check list to ensure that businesses are not significantly impacted by smaller construction projects.
ANALYSIS
There appears to be
consensus that the most significant construction impacts are from publicly
funded projects, such as LRT Projects, BART to San Jose, and the CIM project
downtown, and from some major quasi-public and private projects such as energy,
water and telecommunications utility provider projects that are anticipated to
be disruptive to businesses and neighborhoods. In addition, there is a strong desire that more attention be
focused on construction impact mitigation for smaller projects.
Attachment A
provides the current requirements for mitigation of construction impacts
for major private developments as
required under current street encroachment permit ordinances, current site
development permit ordinances and current environmental regulations. The same encroachment permit conditions
would also apply to public projects in the City right-of-way.
Currently there is a
sense from most of the people reviewing the ordinance that there appears to be
sufficient regulations pertaining to private developments to require
appropriate construction mitigation measures for individual private
developments. The public outreach
conducted during July appears to confirm this conclusion, as evidenced by
comments made by participants in the outreach meetings. However, the issue of the possible exclusion
of major quasi-public and private utility projects with significant
construction impacts in the public right-of-way if the ordinance were to apply
only to public projects makes advisable reworking the ordinance to include all projects
with major impacts, most of which will be public projects anyway.
Attachment B is a
draft of a proposed ordinance, which includes changes from previous
drafts. One way to meet the intent of
the Committee’s direction while avoiding concerns with excluding private and
quasi-public projects with significant impacts in the public right-of-way
similar to public projects is to modify the definition of a “Major Construction
Project” in the ordinance.
Rather than defining
a "Major Construction Project" as a project that “includes
construction in the public right of way for over one year”, staff is instead
recommending that projects subject to the ordinance must have $10 million or
more construction cost in the public right-of-way. Staff has reviewed historical dollar values for projects and
believes that this threshold and the criteria would apply primarily to major
publicly-funded projects, including many VTA, BART, Water District and
CALTRANS, Public Works and SJRA projects, but many privately funded utility
company and telecom projects would also meet this criterion.
The other threshold
requirements for a “Major Construction Project” that were described in the
previous draft of the ordinance are not proposed to be changed. In addition to meeting the $10 million
value of construction cost, at least one of the following conditions will need
to exist:
a. The project will impact two (2)
or more signalized intersections;
b. Sidewalk access will be
precluded for the length of a block; or
c. The
project is located within the lesser of 500 feet or one block of another
project located in the right of way;
One other issue
expressed by the Committee was the concern when there are concurrent Major
Private Developments and /or Major Public Projects in close proximity. The cumulative impact of these projects
often warrant special attention and close coordination between Project
Proponents.
To address this,
staff recommends that additional coordination 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 6 months and have to be renewed if
the project will take longer in the public right-of-way, staff recommends a
provision that the permit can be revised upon consideration of an 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 during July 2003 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) and the Development Community (Public Works/Development Industry Meeting, Planning Roundtable). Additional outreach will be conducted with minority chambers of commence, including the Hispanic, Black and Vietnamese Chambers of Commerce and others, and staff will follow up with all organizations regarding the date that this item will be heard by the full Council.
COORDINATION
This memo and draft ordinance have been coordinated with the City Attorney’s Office, the Departments of Public Works, Transportation, and Planning, Building and Code Enforcement, and the Redevelopment Agency.
FISCAL IMPACT
The adoption of this ordinance would require that sponsors of “major construction projects” bear the following additional costs:
a. Costs of preparing a Construction Impact Mitigation Plan
b. Costs of implementing impact mitigation measures
When the City or Agency 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 Agency. 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.
DEL D. BORGSDORF SUSAN F. SHICK
City ManagerExecutive Director