3. Planning Considerations for a Highway Airspace Project
Needless to say, a freeway cap project starts with planning. Planning a freeway cap starts with the idea and a motivated person or group, and, preferably, community outreach. Bringing a freeway cap project to will be a mult-year, if not multi-decade, effort. Putting together a sustainable vision, plan, and organization is critical to ultimate success.
Establish Project Goals and Vision:
An early step in the planning process is to establish project goals. The project goals will help to shape a vision that is resilient. Project goals should relate to both new opportunities and the preservation of existing community assets and benefits. It can be a useful strategy to try to make the project part of the solution to as many community goals as possible. Typical goals include:
- Reconnect neighborhoods divided by the highway / freeway;
- Create new open space or extend existing open space;
- Create recreational facilities;
- Preserve / restore urban street grid;
- Preserve view corridors;
- Create active transportation (walking, bicycling) corridors;
- Mitigate / reduce air pollution from auto emissions;
- Mitigate stormwater runoff;
- Create parking reservoir;
- Create new developable space;
- Utilize freeway cap to provide space and infrastructure for important public facilities, including but not limited to, transit facilities, conference space, and cultural facilities.
Seek Synergy Opportunities
It may also be useful to seek out other planning and transportation initiatives for synergy, coordination, and cross-use. Making the project multi-use and multi-purpose may lead to additional support and funding opportunities. This strategy will require maintaining some flexibility early in the process. For example, in our San Diego effort, many people and groups who were connected with Balboa Park and Downtown felt there was a need for more parking, particularly for the park. There were also multiple efforts underway to create transit connections, including a gondola project initiative and two streetcar project initiatives. These circumstances created potential opportunities for a transit station and for additional parking resources for the park, which in turn created potential for the related infrastructure funding to build shared highway cap infrastructure. The same is true of the the Ventura Beach + Town project.
Plug into Planning Documents and Capital Expenditure Programs
Being part of formal planning documents is an important step toward securing funding. For example, San Diego’s Downtown Community Plan contained several references to a highway cap, such as:
“To restore downtown’s historic connection to Balboa Park, the Community Plan proposes a green lid over I-5 to integrate them, along with a new connector at 8th Avenue.”
This inclusion in the Downtown’s central planning document in turn placed it in the City’s Development Impact Fee budget (below).
Additionally, most cities have some sort of capital improvement project list and prioritization program (CIP). Getting the project into a formal planning document is usually a prerequisite to getting on the CIP.
Research future right of way plans
A critical piece of information for any highway air space plan is to determine potential conflicting plans for the right of way. Most obviously, highway expansion and reconfiguration plans must be determined. It is important to check with all potential agencies, not simply the state’s DOT. Check with regional and local planning agencies. Even when there are expansion plans for a right of way, a freeway cap project may still be feasible by designing the cap to accommodate the expansion. Additionally, check to determine whether existing bridges within the project boundaries are scheduled for upgrades or replacement, or whether they satisfy current bridge construction requirements. If a bridge within the project boundaries is structurally or otherwise deficient, this fact may have implications for the cap project. It may also create an opportunity for synergy if a case can be made to the SDOT to accelerate bridge replacement or upgrades.
Additionally, nearby railway right of ways may impact the ability to cap a highway, including rail right of ways that cross over the relevant highway. Railways not only reserve the right to use certain land for their trains, but also limit rail crossings
Engage Community, Elected Officials, and Agency Chiefs
Public outreach and participation by all “stakeholders” is critical, not only to gain support but also to create a project that reflects the priorities of the community.
Residents and community groups near proposed freeway cap are the most important participants. They will be most directly effected by the freeway cap and should have the most prominent role in designing it. Gaining the support of adjacent communities, and neutralizing opposition, is a prerequisite to ultimate success.
In reaching out to residents and community organizations, create a Powerpoint slide presentation or renderings. Include examples of other cap projects. Include documentation of helpful planning documents. Schedule presentations to local community groups and business groups. Consider hosting a workshop with a broad spectrum of invitees. Solicit and record their goals and ideas, and incorporate them into the design.
Cap project proponents should make the regional DOT head one of the first officials with whom to get an audience. The DOT will figure prominently in most such projects. This will be an opportunity to assess the agency’s attitude toward cap projects in general and the proposed project in particular. More importantly, proponents can learn of conflicting or synergistic plans, regulations, and initiatives. It may be an opportunity to establish a positive and cooperative relationship, or at least mitigate a hostile one.
Ask for meetings with elected officials and their staff. This strategy includes local, state, and federal officials. These unique projects typically benefit from support at all levels. As with any major project, mayors and city council members are needed for approval and funding. State officials may be important for expedited environmental review, regulatory relief, and funding. The support of federal officials may be needed for similar reasons. It is not necessary to gain support of the project at the early stages. Simply getting on the elected officials’ radars can be helpful in learning about conflicting initiatives or synergistic opportunities. Additionally, these meetings are an opportunity to educate the official feasibility and usefulness of a cap project, and to overcome preconceived prejudices regarding their feasibility or usefulness. The Friends of Hollywood Central Park puts together annual trips to Washington D.C. to meet with federal officials.
Environmental, social justice, architecture and urban planning, and arts organizations can all be important allies or difficult adversaries.
Create a Positive Public Image
As part of the overall campaign, the title and visual image of the project can be a powerful aid. The branding should quickly and intuitively convey the most important benefit of the project. It should create a positive first impression. Branding includes the title and logo used for the project. For example, in the City of Ventura, the city and project design team changed the title of its planned freeway cap project from The U.S.-101 Freeway Capping Project to The Ventura Beach + Town project. They wanted to convey the ultimate goal of the project: reunifying its downtown to the beach. The two are separated by Highway 101. The former title merely conveyed the means of doing so without communicating any benefits of the project. In contrast, the current title seeks to convey the positive vision.
Consider Adaptive Re-use Opportunities
In the Ventura project, the design team determined that certain exit and entry ramps were not needed. After looking at the cost of removal of the ramps, they considered adaptive re-use alternatives. They came up with a plan to use ramps as linear parks and pedestrian passages to parking and other project development. The most famous recent adaptive reuse project is the Highline Park in New York City. It’s not noteworthy as a highway cap project (because it wasn’t). Rather, it involved abandoned rail infrastructure that was reused as a landscaped pedestrian parkway.
Identify or Create Non-profit Entity and Board to Lead Project Planning
The Klyde Warren Park had (and has) The Woodall Rodgers Park Foundation. The Hollywood Central Park project has the Friends of Hollywood Central Park. My city’s own effort has the Balboa Park Conservancy. A non-profit organization, most likely a 501(c)(3) foundation or corporation, can be very useful in several ways. It can receive tax deductible charitable donations. It can utilize volunteers and interns without violating labor laws. It can form a board of directors with critical experience and connections, who also help to guide and sustain the effort. With adequate funding, it can apply dedicated staff to the project. It can contract with consultants and other service providers. When the project is completed, it can act as the entity which maintains, operates, programs, and fundraises for the freeway cap.
Identify Project Lead Developer
“[A] ‘Lead Agency’ is the public agency that has the primary responsibility for approving a project that may have a significant impact upon the environment.” A lead agency is thus not synonymous with project proponent. However, a lead agency can also be the lead proponent or lead developer. In any case, it is important to identify who will be the lead agency. In some cities Planning efforts can then be tailored to gaining the cooperation and approval to the lead agency. The lead agency for the project may be the State’s Department of Transportation or a municipality or county government. DOTs are most often the lead agency when the highway cap is part of the construction or expansion of an existing highway. In contrast, local governments are more likely be the lead agency in a retrofit highway cap. Delineation of responsibilities with other agencies should be set forth in a memorandum of understanding between the agencies, and any private developers.
Joint Powers Authority
In some states, two or more governmental agencies can create a distinct agency for a special purpose. Accordingly, a joint powers authority can be created for the purpose of designing and building a freeway cap structure. Such a Joint Powers Authority can have all the powers of the respective member agencies but their powers are limited by the authorizing agreement. JPA’s are distinct from their member agencies and have their own governing boards. They are particularly prevalent in California where there are approximately 1,800 JPAs, because they are expressly authorized by statute. They can enter into contracts on their own behalf and have the advantage of shielding the member agencies from liabilities and obligations incurred by the JPA. They can also formalize a commitment to the project from agencies important to the project, as well as lend the powers of those agencies necessary to accomplish the project.
As discussed in more depth in the chapter on private development, at present, a private developer of the freeway cap “backbone” infrastructure is unlikely due to the USDOT regulatory requirement that right of way (ROW) leases “[e]stablish terms for revocation of the ROW use agreement and removal of improvements at no cost to the FHWA.” However, there have been at least a couple of exceptions. First, the Presidio Parkway project involved a public-private partnership in which a private for-profit concessionaire was the lead developer of the project.
Additionally, the Capitol Crossing project described at the beginning of the book was able to be built by a private developer because the FHWA did not own the right but merely had an easement over the property, which was owned by the City. The City, in turn, sold the property to a private developer.
The ROW revocation requirements notwithstanding, there may yet be opportunities for private development outside of the ROW but adjacent or contiguous with the ROW cap infrastructure as part of an infrastructure district or other integrated planned development.
In the wake of the 2008 recession and the country’s transportation infrastructure repair and modernize backlog, there has been a push for more public-private partnerships (P3) as a means to finance and build transportation infrastructure projects. The USDOT and state agencies responded by adopting a new emphasis on creative ways to fund infrastructure, including P3s. The USDOT’s Build America Bureau (“Bureau”) and its Build America Transportation Investment Center (BATIC) exemplifies this new emphasis. The Burea’s website states its purpose as:
The Bureau streamlines credit opportunities and grants and provides access to the credit and grant programs with more speed and transparency, while also providing technical assistance and encouraging innovative best practices in project planning, financing, delivery, and monitoring.
The Presidio Parkway in San Francisco was California’s first (and thus far only) major transportation project built by a P3. It prominently features two freeway cap parks extending the Presidio National Park toward San Francisco Bay. The freeway caps were part of a project to replace Doyle Drive, a section of Hwy 101 built in 1936 connecting San Francisco and Marin via the Golden Gate Bridge. The project replaced Doyle Drive, a 4 lane roadway without center median with a six lane median separated parkway. The project was constructed in two phases. The first was accomplished via the traditional Design-Bid-Build process (DBB). The second phase was also considered for DBB, as well as for two P3 models: The Design-Bid-Finance (DBF) and the Design-Bid-Build-Finance-Operate-Maintain model (DBFOM). CalTrans selected the DBFOM model. Under this arrangement, the private partner (referred to as the “concessionaire”) would pay for and build the Parkway and related improvements, then operate and maintain it for 30 years. The public partner agreed to make a payment to the private partner after construction and thereafter make 28 annual payments (referred to as “availability payments”). Although in some DBFOM P3s, the private partner is repaid for its endeavors from sales, charges, or tolls related to the “concession,” in the Presidio Parkway and other P3s, the private partner’s repayment or profit comes from “availability payments,” derived from public funds such as tax revenue.
The Presidio Parkway P3 remains controversial, with debate over whether the public sector ends up paying too much over the long run, or whether the P3’s deferred payment and reduced risk justify the arrangement.
Given the limitations on direct private development in freeway ROWs, for the time being, P3s will be limited to complex transactions that facilitate building with deferred payment, or in integrated cap developments that incorporate land outside of the ROW.
Project Labor Agreement
A freeway cap project will be a unique and high-profile project. It will also involve public funding or public resources, at least in part. Such projects are uniquely suited for project labor agreements (PLA). A PLA is a collective bargaining agreement in which the developer agrees to use unionized contractors, and which sets forth the terms for such use. PLAs (aka Community Workforce Agreements) are most often used when the project uses public funding. PLAs are recognized by federal statute, which exempts them from certain NLRA requirements in order to facilitate their use. However, federal policies and presidential executive orders have see-sawed between encouraging and discouraging their use, depending on whether the administration is pro-labor or pro-free market. Additionally, state and local policies may differ between themselves and with the federal policies in force at the time. Also, local non-unionized contractors may be active and organized in opposing PLAs. Whether to enter a PLA depends on the political landscape and contractor resources at hand. PLA’s can help gain labor allies for a project, but may add expense.
 These can also be referred to as “baseline assumptions” – Roesling Nakamura Terada Architects, Inc., Kimley Horn and Associates, Inc., Economic Planning Systems, Inc., and Van Atta Associates (September 06, 2012), Ventura Beach + Town Project White Paper, City of Ventura, p.4
 Ventura Beach + Town Project White Paper, 12
 City of San Diego (2016), Downtown Community Plan, p. 5-24
 San Diego’s Capital Improvements Program Review and Advisory Committee (CIPRAC) is an example. At the time of this writing, it can be found at: https://www.sandiego.gov/cip/about/ciprac
 Ventura Beach + Town Project White Paper, 19-20
 Lau, C., AICP (2012), Urban Freeway Cap Parks Policy Briefing Paper, Los Angeles Sustainability Collaborative, pp. 16-17, Retrieved on April 25, 2018 from http://lasustainability.org/wp-content/uploads/2012/07/LASC-ClementLau-CapParksPolicyBriefing.pdf
 Ibid., 7
 Ibid., 8
 Definition of “Lead Agency” from California Natural Resources Agency website, Retrieved on Jan. 16, 2018 from http://resources.ca.gov/ceqa/flowchart/lead_agency.html
 Ibid., 22
 Joint Powers Authority. (n.d.). In Wikipedia. Retrieved September 18, 2017 from https://en.wikipedia.org/wiki/Joint_powers_authority
 California Government Code § 6500, et seq.
 de Sousa Mills, Paula C.P. (Jan. 14, 2016). The Ins and Outs of Joint Powers Authorities in California, BB&Knowledge. Retrieved on Sept. 18, 2017 from https://www.bbknowledge.com/author/paula-c-p-de-sousa-mills/
 23 CFR sec. 710.405(b)(4)
 U.S.D.O.T. Build America Bureau. Retrieved on Sept. 21, 2017 from https://www.transportation.gov/buildamerica
 Wikibooks contributors, “Public-Private Partnership Policy Casebook/Presidio,” Wikibooks, The Free Textbook Project, https://en.wikibooks.org/w/index.php?title=Public-Private_Partnership_Policy_Casebook/Presidio&oldid=2721801 (accessed September 21, 2017).
 The terms “concession” and “concessionaire” are used in the P3 Agreement for Presidio Parkway to identify the transaction and the private partner, respectively. These terms are somewhat misleading to the extent that these terms imply the type of concession arrangement in a National Park, in which the concessionaire receives it’s compensation through charges to the public for goods and services. In the Presidio Parkway, the “concessionaire” was paid directly by the public agency. Thus, the private partner, i.e., concessionaire was really just designing, building, and maintaining the project in exchange for an installment payment plan.
 Bialick, A. (Sept. 11, 2014). “Not a Freeway” — Re-Branding the Excesses of the $1.4B Presidio Parkway. Streetsblog SF. Retrieved from http://sf.streetsblog.org/2014/09/11/not-a-freeway-re-branding-the-excesses-of-the-presidio-parkway/ on Sept. 21, 2017.
 Wikibooks contributors, “Public-Private Partnership Policy Casebook/Presidio,” supra at “Solicitation Process.”
 National Labor Relations Act (NLRA), 29 U.S.C. §§ 151-169
 Project Labor Agreement. (n.d.). In Wikipedia. Retrieved September 19, 2017 from https://en.wikipedia.org/wiki/Project_Labor_Agreement
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