Subject:  CONSTRUCTION IMPACT MITIGATION

RECOMMENDATION

Accept this report updating the City Council on Best Practices for Construction Impact Mitigation and authorize staff to prepare policies and guidelines for implementation of Construction Impact Mitigation Plans for extraordinary projects.

BACKGROUND

At its Policy Setting meeting in September 2001, the City Council directed preparation of a Construction Impact Mitigation Ordinance with respect to extraordinary projects.  Staff was directed to “bring forward the construction impact mitigation best practices of other cities and agencies” for consideration of inclusion into an ordinance.  The City Council’s policy direction reflects concern for the impacts of construction on residents and businesses.  Special concern was referenced in the Policy Referral to the large-scale projects envisioned in the Downtown Strategy Plan, VTA light rail plans, and BART extension to San Jose.

ANALYSIS

Construction projects typically have impacts that fall into four general categories:  physical, environmental, communication, and economic.  Physical impacts include constrained access to a property because of traffic lane closures or sidewalk closures.  Environmental impacts include dust and noise.  Communications impacts include inadequate notice of impending work and confusion stemming from changes in scheduled work.  Economic impacts include disruption in delivery schedules and loss of visibility to potential customers.

Through discussions with other cities and in evaluating best practices, no jurisdiction was identified that provides direct rent or other operating subsidies to businesses or residents.  All jurisdictions and agencies generally seem to make efforts to assist businesses to remain open, by maintaining pedestrian and vehicular access, through marketing and promotional assistance, and by keeping the businesses informed of work schedules and changes.

Current Practices

Cities throughout the United States were contacted to determine their efforts to mitigate construction impacts.  These cities include Washington, D.C., Boston, Portland, Oregon, Seattle, San Diego, Anaheim, Los Angeles, Oakland, and San Francisco.  Through this outreach and analysis of documents a number of opportunities to create a “best practices” program were identified.  For each of the typical construction impacts the attached chart (Attachment A) provides:

 1)       standard City of San Jose efforts (those either required by Municipal Code or through City specifications)

 2)       special project efforts (generally developed for unique projects and situations) and

 3)       best practices (as selected from other cities). 

In general, City of San Jose projects and those of contractors working in the City are held to standards equivalent to other cities throughout the country.  However, there is an opportunity to use appropriate “special mitigations” to develop construction impact mitigation plans for projects with extraordinary impacts.

Best Practices

Based on discussions with other cities, and upon evaluation of projects that have been successful in dealing with impacts on commercial and residential properties, there are a number of recurring themes. 

 ·         Successful projects involve affected citizens in the initial programming and planning of the construction. 

 ·         Successful projects provide considerable and constant notice of activities to as broad an audience as possible. 

 ·         Successful projects celebrate the work through signage and other devices to alert the public to the need to support businesses and others affected by the work. 

 ·         Successful projects provide direct opportunities for personal contact in the field, rather than relying on telephone messages or flyers.

The most successful public projects are the ones that focus on personal service and issue resolution at the street level.  Large projects and small seem to affect businesses and residents less when there is prompt personal response to questions and concerns, and when there is continuing public involvement in the project.  This level of commitment can be used to structure the project specifications around the needs of a business district, or to accommodate the needs of special residents, such as senior citizens.

Construction Impact Mitigation Plans

Through its regulatory role, the City of San Jose has considerable opportunity to require private developers to mitigate the impacts of construction projects and to a lesser extent public agencies.  Presently, there are no specific policies or standards that determine the nature or extent of mitigations that will be required of an agency or a developer.  There are, however, controls and rules placed on projects requiring permits from the City or Agency.  Some of these controls, such as working hours, are controlled by Ordinance.  Others, such as public notice and outreach, are implemented as standard practice, but not in a consistent manner.  That is, the extent and nature of outreach can range from door hangers to newspaper advertisements to project signage.  Some controls are dictated by the environmental review process, which may identify specific impacts for which a mitigation-monitoring plan must be prepared. 

The Council Policy Referral anticipates that Construction Impact Mitigation Plans are prepared for extraordinary projects.  Such a Plan should include analysis of potential physical, environmental, communication, and economic impacts and include proposed solutions or mitigations to identified impacts.  A Construction Impact Mitigation Plan would address specifically how a project sponsor would work to keep businesses open and how to measure the success of those efforts.  The impacts of a project and the proposed mitigation will vary according to the length of time it is under construction, the nature of that construction, and the physical extent of the construction zone.  A project that affects the length of a neighborhood business district likely would have different impacts and solutions than one constrained to a single lot in Downtown.

The mechanisms for requiring and enforcing Construction Impact Mitigation Plans are in place with the current powers of the City to issue encroachment permits, to issue environmental clearance, through the project entitlement process, and through the contractual arrangements of Development Agreements.  These tools would continue to be used, but through the sharpened lens of the policies and guidelines to be developed in the upcoming months.

The Plan should be approved by the City at the appropriate permit level.  That is, Plans for projects requiring staff-level approval would be approved by staff; Plans for projects requiring Council approval would be approved by the City Council as a part of the project approval.

There are projects by other public agencies such as VTA, CalTrans, and the federal government, which are not subject to regulation by the City.  For example, the construction of a federal building on property owned by the federal government would not necessarily be subject to local planning or building regulations.  However, if the project required access to the City’s public right-of-way, such as street or sidewalk closure, that portion of the work would require a permit from the City and could have conditions or mitigations required.  Further, if there is any City or Redevelopment Agency involvement in the project, the Plan could be required by agreement with the public entity.

Next Steps

Within the next 90 days staff will prepare guidelines and policies for preparation of Construction Impact Mitigation Plans, including the definition of extraordinary impacts that would trigger the requirement for special mitigation measures.  Because the authority to require development of a Construction Impact Mitigation Plan already exists, preparation of an ordinance does not appear to be necessary.  Policy direction that outlines the elements of a Plan will retain greater flexibility for the City Council to adapt to changing economies and construction techniques.

COORDINATION

This report has been coordinated with the Department of Public Works, Department of Transportation, Office of Economic Development, City Attorney and Redevelopment Agency General Counsel Offices, Office of the City Manager, and the Redevelopment Agency.

DEL BORGSDORF    SUSAN F. SHICK

City Manager   Executive Director