November 16th Ruling on Jose Theatre

Preservation Action Council received an order denying our request for a writ of mandamus written on November 16th 1998. By denying the our petition, Judge Herlihy dimmed our hopes for saving the Jose Theatre and Hong Kong Market. In the 18 page ruling the key issue dealt with the city's argument that the alternative projects, which saved historic buildings and thus avoided Significant Environmental Impacts, were not feasible. Judge Herlihy wrote of the EIR alternative E, which would have saved only the Jose Theatre:
 

• "...that Alternative "E" is infeasible on two bases. The first basis is that Alternative "E" would not provide for the construction of housing to the same degree as that of the NCBP (New Century Block Project). The second basis is that Alternative "E" would not revitalize Downtown San Jose to the same degree as that of the NCBP.

  With regard to the second basis that Alternative "E" is infeasible because it would not revitalize Downtown San Jose to the same degree as that of the NCBP, there is substantial evidence in the record to support the City Counsel's [sic] finding."

CEQA Guidelines State( from http://www.ceres.ca.gov ):

15021. Duty to Minimize Environmental Damage and Balance Competing Public Objectives

• (a) CEQA establishes a duty for public agencies to avoid or minimize environmental damage where feasible.

  (1) In regulating public or private activities, agencies are required to give major consideration to preventing
  environmental damage.

  (2) A public agency should not approve a project as proposed if there are feasible alternatives or mitigation
  measures available that would substantially lessen any significant effects that the project would have on the
  environment.

  (b) In deciding whether changes in a project are feasible, an agency may consider specific economic,
  environmental, legal, social, and technological factors.

  (c) The duty to prevent or minimize environmental damage is implemented through the findings required by
  Section 15091.

  (d) CEQA recognizes that in determining whether and how a project should be approved, a public agency has
  an obligation to balance a variety of public objectives, including economic, environmental, and social factors and
  in particular the goal of providing a decent home and satisfying living environment for every Californian. An
  agency shall prepare a statement of overriding considerations as described in Section 15093 to reflect the
  ultimate balancing of competing public objectives when the agency decides to approve a project that will cause
  one or more significant effects on the environment.
   

Furthermore feasible is defined as:

15364. Feasible

• "Feasible" means capable of being accomplished in a successful manner within a reasonable period of time,
  taking into account economic, environmental, legal, social, and technological factors.
   

Judge Herlihy goes on to say:
 

• "Specifically, there is evidence that substantial and costly renovations would be necessary to preserve the entire theater. See Generally, the Administrative Record Appendices F&G. Costs of refurbishing the entire Jose Theater building would be at least 13,000,000."
   

The $13,000,000 figure in the Administrative Record came from a proposal to demolish  the auditorium and construct  a new modern broadcast-capable theater over two times the size of the existing building. The actual cost in the document cited for the actual rehabilitation of the original building was $6,900,000. An alternative use would be even lower, i.e. bookstore, restaurant...

Herlihy continues:
 

• "... Given the high cost of renovation/preservation along with the years of failed attempts to find a user with sufficient capital for said renovation/preservation, the City Counsel [sic] could reasonably conclude that the restoration would not adequately revitalize the area (i.e. the Jose Theater would be dependent on City funding)."
   

The court should have addressed the feasibility of the New Century Block Project as reduced by excluding the Jose Theatre from its footprint. Instead the court analyzes the feasibility of the theater as its own project. This is done on the pretext that the entire area will suffer from a single vacant storefront measuring 68 feet wide, even when a completely new housing project is built around it to fill in ~420 vacant feet of frontage on the same block.

In a footnote the court addresses this issue:
 

• "... The cost of preserving the Jose Theater is relevant because, as stated above, given the high cost of renovation/preservation along with years of failed attempts to find a user with sufficient capital for said renovation/preservation, the City Counsel [sic] could reasonably conclude that the restoration would not adequately revitalize the area."

But what is the city spending already on this building to tear it down? And why does this small frontage undermine the revitalization of the whole area? With what the city is spending already on the lobby, it will make the storefront active and contribute to the "revitalization" anyway.

Yet the city tolerated years of a vacant and unused nearby Fox Theater, with many failed attempts at finding a user, which now has a new funding source which will enable its rehabilitation.
 

Modified 11/98