The Preservation Action Council of San Jose (PAC-SJ) is acting solely in the public interest to protect a San Jose landmark and other unique historic resources. The parties in this case agree on the point: "petitioner's motives are laudatory." City Brief (CB) at 2. PAC-SJ did not suddenly appear to hijack a long-studied project, but worked tirelessly throughout the long administrative process to find a way to make preservation work. PAC-SJ went so far as to retain adaptive reuse experts to find an alternative solution to the Century Block Project impacts.
Along the way, City staff, the Planning Commission, the Historic Landmarks Commission, the State Office of Historic Preservation, the National Trust for Historic Preservation, the California Preservation Foundation, and three members of the City Council were persuaded of the feasibility of full adaptive reuse of the landmark Jose Theater and its historic companions to accomplish redevelopment objectives.
The Supreme Court has made clear from its first review of CEQA that the Act's interpretation must "afford the fullest possible protection to the environment within the reasonable scope of the statutory language." Friends of Mammoth v. Board of Supervisors of Mono County (1972) 8 Cal.3d 247, 259; CEQA Guideline § 15003. Deference to the City's attempts to find adaptive reuse of a City landmark somehow infeasible must be tempered by this mandate.
The question of feasibility has special meaning in the context of redevelopment, which assumes the need for public assistance to
benefit areas which have become legally "blighted." Indeed, the
whole point of redevelopment is to make economically infeasible
projects become feasible through infusion of public money. The New Century Block Project as approved was considered feasible by the City and the Redevelopment Agency despite the need for contribution of public funds in the range of $14 million to make the project work. Only a minor percentage of public funds are due to be repaid from the project developers if the project is successful. E.g., AR 1992. The concept of economic feasibility of reasonable alternatives to this project is therefore almost irrelevant.
In reviewing the whole record, there is no showing that an adaptive reuse alternative which avoids demolition of the Jose Theater and the other three historic buildings is infeasible; indeed, the EIR specifically finds to the contrary. As Planning Director James Derryberry told the Historic Landmarks Commission:
AR 1573, emphasis added; see also 1574-1575.
The City's findings of infeasibility are admittedly based not on economics, but on use. The City's formal Findings conclude that project alternatives are infeasible solely because they do not provide viable new downtown housing/enhance downtown vitality "to as great a degree" as the project. AR 1478-1481; emphasis added. This reasoning, based on the loss of 24 parking spaces, does not lead to a conclusion of infeasibility.
The caption above Public Resources Code § 21002 states: "No project approval if feasible alternative or mitigation measures." [Emphasis in original.] The statute goes on to state that "it is the policy of the state that public agencies should not approve projects as proposed if there are feasible alternatives . . . which would substantially lessen the significant environmental impacts of such projects . . ." Alternatives need not accomplish all project objectives. E.g., CEQA Guideline § 15126(d). Feasibility is defined as capability of "being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors." PRC § 21061.1. The primary issue before the court is whether the City erred in approving the New Century Block Project -- which has significant adverse impacts on historic resources including a City landmark -- without adopting feasible alternatives. The feasibility of a project alternative which provides for adaptive reuse of the Jose Theater, the Hong Kong Market, and other contributing buildings to the Downtown Commercial Historic District is well-documented in the administrative record, and the fact that such an alternative may provide slightly less housing is not proof of infeasibility.
The peremptory writ should issue in the first instance.
Petitioner PAC-SJ continues to rely on the facts and law presented in its comprehensive opening brief, and focuses its reply on responses to specific points raised in the opposition briefs.
In discussing the feasibility of saving the auditorium of the Jose Theater, the opposition briefs underscore the high costs associated with a prior development project considered by El Teatro Campesino. CB at 6. The City notes, for example, that "renovation" of the entire theater could cost up to $14 million. Ibid. This terminology is very misleading; the high figure for the El Teatro project was because the project required demolition and rebuilding of the theater -- including doubling the size of the theater footprint. This proposal was not renovation or adaptive reuse. AR 820 (EIR) Appendix 2; see DB at 15. The El Teatro project was very different from the reuse project proposed by PAC-SJ and the Century Block Project EIR. Id. at Appendix J.
The historical and architectural evaluation of the New Century Block Project in the EIR, prepared by the City's consultant, fully reviewed the current status of the historic buildings affected by the project and found that
Id. at Appendix D, page 18. The theater does not have to be restored to performing space.
The developer attempts to discount the importance and historic status of the Jose Theater, Hong Kong Market, the Allens Furniture Receiving Department building, and the Second Street Plaza building. E.g., DB at 2. The brief inaccurately describes the Downtown Commercial District as "an historical district arising from the age of many of its structures." Ibid. The qualifications of the historic district relate to the historic status of the structures, not just the age of the buildings. E.g., AR 820 (EIR) Appendix D, pages 11-15. All four buildings contribute to the historic district, while the Jose Theater is the most significant individual building and warrants landmark status. Ibid.
The developer's brief claims, without citation to the record, that the Jose Theater auditorium "had been determined to be both structurally unsound and functionally inadequate for modern theater." DB at 3, 12. There is no factual basis for this. In fact, there is no reason why the auditorium is not salvageable, given that the lobby of the theater is, as reflected in the final revised project approved by the City. The project as approved includes no specified use for the auditorium space which is being purchased by the Agency. This begs the question of why the Agency cannot just keep the landmark auditorium intact while determining a viable adaptive reuse.
The City and the developer repeatedly argue that the adaptive reuse alternatives approved and championed by all advisory bodies to the City Council were properly rejected as not feasible. As discussed supra, the Findings of the City Council are insupportable. While the opposition briefs stress economic arguments to attempt to justify the City's actions, these arguments are not supported by the record. Even if an alternative could cost more, there is no showing that the Redevelopment Agency, with almost $300 million earmarked for new construction for upcoming projects, could not make up the difference. In Citizens of Goleta Valley v. Board of Supervisors (Goleta I) (1988) 197 Cal.App.3d 1167, 1181, the Court made clear that economic infeasibility was not established simply by showing that an alternative would be more expensive or less profitable:
With the City already contributing over $14 million to the project as approved, and with millions of other redevelopment monies available for numerous other projects, including many other downtown housing projects, there is no showing in the record that additional contributions of redevelopment funds could or would not be made available. E.g., AR 1286-1354.
Further, the City did not cite economic reasons to justify its denial of alternatives in its official Findings, and it is too late to add findings which are not there. AR 1478-1481. See Sierra Club v. Contra Costa County (1992) 10 Cal.App.4th 1212, 1221-1222; CEQA Guideline § 15091. "[T]he purpose for the statutory requirement for findings is to ensure that the decision-making agency actually considers alternatives and mitigation measures." Resource Defense Fund v. LAFCO (1987) 191 Cal.App.3d 886, 896.