Fri, Jan 17, 1997
Janis Moore
Planning Department
City Hall Annex, Room 400
City of San Jose San Jose CA 95110
Dear Janis,
The Preservation Action Council is commenting on the severe impacts this project will have on the historic integrity of the entire downtown, and on how the city is breaching its own policies adopted under the 2020 General Plan, Downtown Strategy Plan and the 1992 Downtown Strategy Plan EIR by proceeding on a project that will demolish the Jose Theater. These comments will also be directed at showing that a more comprehensive project level EIR must be completed for this project. A Focused EIR as per PRC sections 21158 is not permissible given the facts of this project. A Focused EIR may only be performed in very specific situations, as described in PRC 21157 and PRC 21158. The 1992 EIR was programmatic and does not adequately address the range of impacts that will occur from this previously un-planned project. Finally, the analysis used in the EIR must be comprehensive, exploring the use of the State Historic Building Code and by considering the many alternatives available to the Redevelopment Agency for the preservation and productive use of this building.
A Focused EIR as proposed in the Notice of Preparation dated 12/20/96 is not appropriate for this project under the following sections of the California Public Resources Code:
21158(b)2 Due to insufficient detail in 1992 EIR relating to this project. This project was not even planned at that time, and the 1992 EIR was programmatic. The Century Center was to serve as a retail area; this is primarily a housing project.
21158(c) Due to new and additional information: Costa Hall loss, and changes in CEQA and other sections of the Public Resources Code, including those covering the significance of interior historic features.
21157.1 Because the city cannot make the findings required under items:
c - Additional new impacts include potential loss of National Register Listing, and secondary effects from possible loss of tax credits for rehabilitation of other historic building in the area.
Furthermore the 1992 EIR(pg. 222) calls for a supplemental EIR not a Focused EIR. The 1992 EIR acknowledges (pg. 220) that new impacts which have not been studied could occur under the implementation of the Downtown Strategy Plan:
The effect of the entire project on the Jose Theatre and the adjoining listed structures needs to be addressed. As Per the 1992 EIR (pg. 222):
In order to follow the process adopted by the city in the 1992 EIR (pg. 223) it is stated that the:
Under PRC 21157.6 (a) the Master EIR is invalid because CEQA and sections of the Public Resources Code have changed to include interior features of historic buildings. This and previous projects have not been evaluated for significant interior impacts. Additionally Pages 6 and 7 of 1992 EIR did not propose housing at this site. This project is outside of the scope of the original EIR.
Elements Required in Project EIR Analysis The EIR process for this project must include the following:
The EIR also needs to show why the mitigations of the 1992 EIR are being ignored.
As a City Landmark and a Contributing Structure any work performed on this building is required to adhere to the Secretary of the InteriorÕs Standards for Rehabilitation. This building contains murals which are original and in good shape, along with numerous original interior features. The SecretaryÕs Standards state:
(2) The historic character of a property shall be retained and preserved. The removal of historic materials or alteration of features and spaces that characterize a property shall be avoided.
...
(5) Distinctive features, finishes, and construction techniques or examples of craftsmanship that characterize a historic property shall be retained and preserved.
...
(10) New additions and adjacent or related new construction shall be undertaken in such a manner that if removed in the future, the essential form and integrity of the historic property and its environment would be unimpaired.
This project will most certainly fail to follow all of these standards, which will lead to serious and significant impacts.
The following likely significant impacts should be but are not addressed by the proposed focused EIR:
Previously Adopted Mitigations The city is at risk of violating its own mandated polices in the Downtown Strategy Plan Environmental Impact Report, which require that for historic structures "preservation should be a key consideration in the development review process." The city is bound by the 1992 EIR to "foster the rehabilitation of individual buildings and districts of historic significance," especially when it will "preserve the historic fabric of the area."
Alternatives The EIR must propose alternatives with the project modified to not demolish the historic structures. Considering that most of the space gained by the auditorium demolition will be used for a courtyard, the EIR must study different configurations of the courtyard which do not require the footprint of the theatre.
One of the critical goals of redevelopment is the maintenance and enhancement of the unique character of downtown. This can only be accomplished by making the best use of the few remaining historic buildings left after what the 1992 EIR describes as their "devastation during the period from the late 1950s into the 1970s."
cc: Susan Hammer, David Pandori, Frank Taylor, Carol Roland-OHP, Barbara Vroman
Public Resources Code Sections Cited
21157.1. The preparation and certification of a master environmental impact report, if prepared and certified consistent with this division, may allow for the limited review of subsequent projects that were described in the master environmental impact report as being within the scope of the report, in accordance with the following requirements: (a) The lead agency for a subsequent project shall be the lead agency or any responsible agency identified in the master environmental impact report. (b) The lead agency shall prepare an initial study on any proposed subsequent project. This initial study shall analyze whether the subsequent project may cause any significant effect on the environment that was not examined in the master environmental impact report and whether the subsequent project was described in the master environmental impact report as being within the scope of the report.
(c) If the lead agency, based on the initial study, determines that a proposed subsequent project will have no additional significant effect on the environment, as defined in subdivision (d) of Section 21158, that was not identified in the master environmental impact report and that no new or additional mitigation measures or alternatives may be required, the lead agency shall make a written finding based upon the information contained in the initial study that the subsequent project is within the scope of the project covered by the master environmental impact report. No new environmental document nor findings pursuant to Section 21081 shall be required by this division. Prior to approving or carrying out the proposed subsequent project, the lead agency shall provide notice of this fact pursuant to Section 21092 and incorporate all feasible mitigation measures or feasible alternatives set forth in the master environmental impact report which are appropriate to the project. Whenever a lead agency approves or determines to carry out any subsequent project pursuant to this section, it shall file a notice pursuant to Section 21108 or 21152. (d) Where a lead agency cannot make the findings required in subdivision (c), the lead agency shall prepare, pursuant to Section 21157.7, either a mitigated negative declaration or environmental impact report.
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21157.6. The master environmental impact report shall not be used for the purposes of this chapter if (1) the certification of the report occurred more than five years prior to the filing of an application for the subsequent project, or (2) if the approval of a project that was not described in the report may affect the adequacy of the environmental review in the report for any subsequent project, unless the lead agency reviews the adequacy of the master environmental impact report and does either of the following: (a) Finds that no substantial changes have occurred with respect to the circumstances under which the master environmental impact report was certified or that no new information, which was not known and could not have been known at the time that the master environmental impact report was certified as complete, has become available. (b) Certifies a subsequent or supplemental environmental impact report which has been either incorporated into the previously certified master environmental impact report or references any deletions, additions, or any other modifications to the previously certified master environmental impact report.
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21158. (a) A focused environmental impact report is an environmental impact report on a subsequent project identified in a master environmental impact report. A focused environmental impact report may be utilized only if the lead agency finds that the analysis in the master environmental impact report of cumulative impacts, growth inducing impacts, and irreversible significant effects on the environment is adequate for the subsequent project. The focused environmental impact report shall incorporate, by reference, the master environmental impact report and analyze only the subsequent project's additional significant effects on the environment, as defined in subdivision (d), and any new or additional mitigation measures or alternatives that were not identified and analyzed by the master environmental impact report. (b) The focused environmental impact report need not examine those effects which the lead agency finds were one of the following: (1) Mitigated or avoided pursuant to paragraph (1) of subdivision (a) of Section 21081 as a result of mitigation measures identified in the master environmental impact report which will be required as part of the approval of the subsequent project. (2) Examined at a sufficient level of detail in the master environmental impact report to enable those significant environmental effects to be mitigated or avoided by specific revisions to the project, the imposition of conditions, or by other means in connection with the approval of the subsequent project. (3) Subject to a finding pursuant to paragraph (2) of subdivision (a) of Section 21081. (c) A focused environmental impact report on any subsequent project shall analyze any significant effects on the environment where substantial new or additional information shows that the adverse environmental impact may be more significant than was described in the master environmental impact report. The substantial new or additional information may also show that mitigation measures or alternatives identified in the master environmental impact report, which were previously determined to be infeasible, are feasible and will avoid or reduce the significant effects on the environment of the subsequent project to a level of insignificance. (d) For purposes of this chapter, "additional significant effects on the environment" are those project specific effects on the environment which were not addressed as significant effects on the environment in the master environmental impact report. (e) Nothing in this chapter is intended to limit or abridge the ability of a lead agency to focus upon the issues that are ripe for decision at each level of environmental review, or to exclude duplicative analysis of environmental effects examined in previous environmental impact reports pursuant to Section 21093.
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21081. Pursuant to the policy stated in Sections 21002 and 21002.1, no public agency shall approve or carry out a project for which an environmental impact report has been certified which identifies one or more significant effects on the environment that would occur if the project is approved or carried out unless both of the following occur: (a) The public agency makes one or more of the following findings with respect to each significant effect: (1) Changes or alterations have been required in, or incorporated into, the project which mitigate or avoid the significant effects on the environment. (2) Those changes or alterations are within the responsibility and jurisdiction of another public agency and have been, or can and should be, adopted by that other agency. (3) Specific economic, legal, social, technological, or other considerations, including considerations for the provision of employment opportunities for highly trained workers, make infeasible the mitigation measures or alternatives identified in the environmental impact report. (b) With respect to significant effects which were subject to a finding under paragraph (3) of subdivision (a), the public agency finds that specific overriding economic, legal, social, technological, or other benefits of the project outweigh the significant effects on the environment.
21081.5. In making the findings required by paragraph (3) of subdivision (a) of Section 21081, the public agency shall base its findings on substantial evidence in the record.
Wed, Jan 22, 1997
Tom Simon