January 25, 2005

SUBJECT: Review of Construction Hours and Construction Duration for Attached Housing 

REPORT IN BRIEF

This Study Issue originated when a citizen expressed concern at the City Council meeting on December 16, 2003, about an on-going construction project by a neighboring homeowner. The Council ranked this issue number 3 for study in 2004 by the Community Development Department. At the July 13, 2004 City Council meeting, Council reviewed the study issue report and made modifications to the hours of construction for work performed by the homeowner. Council also directed staff to further study the following issues for attached housing units (e.g. townhouses and condominiums):

• Hours of construction
• Overall duration of construction
• Potential to limit the number of permits issued within a period of time 

Based on the research and findings, staff is recommending the following modifications to the hours of construction ordinance:

• Limit homeowner construction hours for attached housing to be the same as construction hours for contractors.
• Clarify who is allowed to perform construction work during the additional homeowner construction hours.
• Restrict construction activity on national holidays that City offices are closed, rather than all national holidays.
• Eliminate the allowance of unlimited construction hours (where the noise level does not exceed 45 dBA at the property line) for homeowners in detached housing.

BACKGROUND

This issue was raised at a City Council public hearing on December 16, 2003 by a citizen. The specific complaint was regarding an addition that had been under construction by a neighboring homeowner for over one year, including continuous work on the weekends. At that meeting Councilmember Miller sponsored this item to be placed as a Study Issue for consideration for 2004 (Attachment A). At the Council Study Issue Workshop in December 2003, this item was ranked number three for the Community Development Department.

At the July 13, 2004 City Council meeting, Council reviewed the study issue report and made modifications to the hours of construction for work performed by the homeowner. Council also directed staff to further study the following issues for attached housing units (e.g. townhouses and condominiums):

• Hours of construction
• Overall duration of construction
• Potential to limit the number of permits issued within a period of time 

EXISTING POLICY

At the July 13, 2004 City Council meeting, Council approved a modification to overall construction hours and to the homeowner hours of construction to allow construction activity to occur at any time as long as the noise level does not exceed 45dBA. This noise level is consistent with the maximum level of this noise type allowed during nighttime hours in the noise ordinance. The Municipal Code currently allows construction activity to occur as follows:

The ordinance is more restrictive for contractor performed work than for homeowners working on their own property. The increased hours for homeowner construction is designed to provide adequate time for homeowners to complete work on their property considering many homeowners work full time jobs during the week and have time to work on their property only in the evenings and on weekends.

The current ordinance also allows a contractor or homeowner to request extended hours of construction. These requests are reviewed by the Chief Building Official and only approved if the additional construction activity will not be a nuisance to surrounding properties, based on the location and type of construction.

DISCUSSION

Following is discussion for each of the three areas of study as directed by Council:

Hours of Construction

Construction activity can be loud and therefore is exempt from the requirements of the noise ordinance. In order to limit the impact on neighboring properties, construction activity is limited to specific hours and days. Currently, homeowners are allowed extended construction hours to work on their own property. The intent of the increased hours for homeowner construction is designed to provide adequate time for homeowners to complete work on their property considering many homeowners work full time jobs outside of the home. As a policy, staff has only permitted the actual homeowner(s), and not extended family or other individuals, to perform construction work during these additional times. There have been a few situations where a homeowner has been working with his/her extended family during the extended homeowner construction hours. While this does not comply with the policy, there is currently no specification in the Municipal Code to clarify the individuals who are allowed to perform construction activity during the homeowner hours.

Because of the potentially high level of noise that construction activity can cause, Council was concerned with the impact of the extended homeowner construction hours on residents of attached housing because they share common walls (e.g. townhouses and condominiums).

Staff surveyed 13 other local jurisdictions (Attachment B) and found that no other jurisdiction has specific hours of construction limits for attached housing.

Overall Duration of Construction

Part of this study issue also included research regarding limiting the overall duration of construction projects.

Currently, building permits are valid as long as activity on the project does not cease for a period of 180 days. To monitor this, staff uses building inspection records. If an inspection has not been scheduled for over 180 days, the permit will be expired. Prior to expiration of a permit, staff takes several steps to notify the applicant of the permit status. Automated letters are generated and mailed monthly to inform project applicants when their permit is about to expire. A series of three letters are mailed and, in most cases, a telephone call from the project building inspector is made before a permit is expired.

Of the 13 jurisdictions surveyed (Attachment B), none limit the overall duration of a construction project. Staff was not able to find any jurisdiction in California that has implemented such restrictions.

The City Attorney’s Office has opined that there may be legal issues that complicate the ability to place a limit on the overall duration of construction. One potential issue is that property owners who have performed construction with a valid permit have a vested right to finish the project. Imposing construction duration limits may interfere with that vested right. Another potential issue is that the Uniform Administrative Code and the California Building Code (both adopted by the City) do not contain limits on the overall duration of construction. State law requires that local amendments to the California Building Code must be based on local geological, climactic, or topographical conditions.  Since no known jurisdiction has attempted to place an overall duration on construction, there is no precedent to determine whether these specific findings must be met.

If limits were placed on the overall duration of construction projects, there are several policy issues that would need to be determined such as:

• What is the time limit for various types of construction projects (e.g. interior remodels, additions, new construction, new residential developments, etc.)?
• If a project is not completed in the required timeframe, what would the penalty be? Additional fees, fines, stop the project?
• Would the limitation be based on each building permit issued? How would cases of multiple permits be handled (i.e. if separate permits were issued consecutively for different projects such as a re-roof, kitchen remodel, bathroom remodel, etc.)?
• Would any exceptions be allowed (e.g. financial hardship on the part of the homeowner)?
• What is the amount of additional staff time needed to administer and enforce such an ordinance? 

Because these potential issues require further direction from Council, this report does not expand on these details.

Potential to Limit the Number of Permits Issued Within a Period of Time

The third area of study for this issue is the possibility of limiting the number of building permits issued within a given time period (e.g. each year) for each individual attached housing unit. The intent of studying this requirement is to limit the length of time that construction noise occurs and limit impacts on adjacent neighbors in attached housing units.

Of the 13 jurisdictions surveyed (Attachment B), none limit the overall duration of a construction project. Staff was not able to find any jurisdiction in California that has implemented such restrictions.

The City Attorney’s office has also raised a concern regarding limiting the number of permits issued. The issuance of a building permit is generally considered a ministerial action that is required by the building code. The building code requires that a permit shall be issued once the applicant has provided all necessary information and paid required fees. Therefore, the City cannot legally deny a permit to an applicant if all plan and fee requirements have been met.

Furthermore, permits are required for certain repair work, not just voluntary remodeling. For example, a permit is required to re-roof a damaged or leaking roof or replace a water heater. The building code requires dwelling units to be water tight and have hot water. Therefore these types of repairs must be corrected and a permit must be issued. If, due to permit limits, the maximum number of permits was reached and necessary repairs are needed, the property owner may be enticed to do the work without obtaining a permit.

ENVIRONMENTAL REVIEW

This study issue is exempt from the California Environmental Quality Act because it does not meet the definition of a “project”; there is no reasonably foreseeable physical change to the environment as a result of the recommended ordinance modification.

FISCAL IMPACT

No fiscal impact to the City is expected if modifications to the existing hours of construction are approved. If limits are placed on the overall duration of construction, additional staff time will be required to track permits and administer the new requirement. The amount of additional staff time needed and fiscal impact would depend on the scope of the new requirement.

Conclusion

Construction hours are limited because construction activity can be loud, and by restricting the time this activity can occur, the impact on surrounding properties is reduced. This report focuses on the impact of construction activity on attached housing units. Because of the close proximity of attached housing units, the noise generated by construction activity can have a greater impact than on detached structures. Three various methods of limiting construction activity and noise have been discussed in this report.

PUBLIC CONTACT

Staff notified the community of this study issue in the following ways:

• Mailed letters to all homeowner associations;
• Placed information on the Building Division web site;
• Published a legal advertisement in The Sun on December 8; and
• Posted the agenda of this meeting and the staff report at the Library and on the City of Sunnyvale web site. 

ALTERNATIVES

1. Amend the Municipal Code to limit homeowner construction hours for attached housing to be the same as construction hours for contractors.

2. Direct staff to prepare an amendment to the Municipal Code to limit the overall duration of construction projects by homeowners.

3. Direct staff to prepare an amendment to the Municipal Code to limit the number of permits which can be issued to a homeowner in a year.

4. Amend the Municipal Code to clarify that the additional homeowner construction hours are for work performed exclusively by the legal property owner and immediate family members residing in the house.

5. Amend the Municipal Code to restrict construction activity on national holidays that City offices are closed, rather than all national holidays.

6. Amend the Municipal Code to eliminate the allowance of unlimited construction hours for homeowners in detached housing if the noise level at the property line does not exceed 45 dBA.

7. Do not modify the Municipal Code.

RECOMMENDATION

Staff recommends Alternatives 1, 4, 5, and 6. The attached ordinance (Attachment B) is in accordance with the staff recommendation. Following are the reasons for the staff recommended modifications.

Hours of Construction

By nature, construction activity can be loud and disruptive. Because residents living in attached housing units are in close proximity to their neighbors and share common walls, further limitations to the hours of construction for attached housing is appropriate to reduce noise impacts. Staff recommends eliminating the increased homeowner construction hours for attached housing. This would result in property owners of attached housing being allowed to perform construction activity during the same hours that are allowed by a contractor, as follows:

Staff also recommends clarifying the individuals who are allowed to perform construction work during the additional homeowner construction hours. If Council approves the recommendation discussed above (to have additional homeowner construction hours apply only to detached housing units), then extended homeowner hours would not apply to attached housing. Staff further recommends clarifying the ordinance to state that homeowner construction activity can be done by the property owner of record and immediate family members living in the home.

Overall Duration of Construction

Staff does not recommend limiting the overall duration of construction for attached housing units. In addition to the legal issues  discussed earlier in this report (vested rights and amending the state building code), the administrative work involved in tracking and enforcing limits on the overall duration of construction would be significant.

Potential to Limit the Number of Permits Issued Within a Period of Time

Staff does not recommend placing limits on the number of permits issued for attached housing units. The issuance of a building permit is a ministerial action that is required whenever the applicant has provided the necessary plan and documents and paid the required fees. The City does not have the authority to refuse a building permit when the applicant has completed all necessary plans, approvals, and paid fees.

Other Recommended Modifications

The current hours of construction ordinance has a specific construction hour for national holidays. Construction activity is limited on national holidays because many residents are home on these days and construction noise may be disruptive for holiday activities. Following are the observed national holidays:

New Year's Day	Independence Day
Martin Luther King, Jr.'s birthday	Labor Day
President's Day	Veteran's Day
President's Day	Thanksgiving
Memorial Day	Christmas
Flag Day

This is a reasonable requirement for the majority of national holidays; however, the City does not observe Veteran’s Day or Flag Day and City offices are open for business on these days. The majority of contractors and construction worker unions also do not observe Veteran’s Day or Flag Day as a holiday and are working on those days. Staff does not believe it is practical to have building inspection staff working and available for inspections on certain days, but not allow construction activity on those days. Therefore, staff recommends modifying the ordinance to restrict construction activity on national holidays on which City offices are closed.

The final modification to the ordinance that staff is recommending is to the recently adopted modification to allow homeowner construction in detached housing at any time of day as long as the noise level does not exceed 45 dBA at the property line. The limit of the 45 dBA is consistent with the level of noise allowed by the noise ordinance during nighttime hours. This modification was adopted by Council in July 2004. The reasoning for this allowance was that the noise ordinance allows any other noise to occur at a maximum of 45 dBA during the nighttime.

After discussion and input from staff in Neighborhood Preservation and Public Safety, staff is concerned with the enforcement of this requirement. Violations of the noise ordinance are difficult to enforce, especially during non-business hours. When a complaint about noise is received, the noise has frequently stopped by the time staff reaches the site and can easily occur again after staff leaves. During regular business hours, complaints about noise are directed to and investigated by the Community Development Department. During non-business hours, it is the responsibility of Public Safety to follow up on such complaints. Public Safety prioritizes such calls and responds accordingly. Also, homeowners do not generally have a method of measuring noise levels and therefore, it is difficult for them to determine if they are within the allowable levels. Because of these issues, staff is recommending deleting this allowance from the hours of construction ordinance in order to limit the potential for complaints and violations.

Reviewed by:

Robert Paternoster Director, Community Development
Prepared by: Ali Fatapour, Chief Building Official

Approved by:

Amy Chan
City Manager 

Attachments

A. Study Issue Paper (pdf format)

B. List of Local Jurisdictions Surveyed

C. Draft Ordinance