October 19, 1997
Janis Moore
Department of Planning
801 N First St
San Jose, CA 95110
Dear Janis,
Once again the Redevelopment Agency (RDA) is asking for comments on a proposal that was negotiated and finalized before the public has had any chance to understand the great harm it will do to the city's shrinking pool of historic resources. The insult is compounded by the agency's own admission (SJ Mercury 8/10/97) that it is holding up a similar hotel development (Alternative F, EIR page 46) on another parcel nearby, which is vacant and otherwise ready for development, to give more favorable terms to the developer of the Fairmont Hotel Expansion.
While pretending to comply with the California Environmental Quality Act (CEQA) process the RDA is already done with the planning development process in which it used its own private agenda not the required public process. The most startling thing about this project is that there is a clearly superior project which meets all the stated objectives and saves the historic Montgomery Hotel. This superior project (EIR Alternatives C or D) is the one that should have been proposed initially had the RDA taken its policies and guidelines seriously. That it was not proposed is proof that a major motivation for this project is the removal of the Montgomery Hotel.
Because of the private negotiations that led to this proposal and the associated predevelopment agreement, already approved by the Agency Board, the current CEQA process is fatally flawed. No meaningful changes to the proposed project are conceivable as a result. The effect of predevelopment agreements in freezing the contents of a proposed project has already been seen with the agency's handling of the similarly flawed New Century Center development plans.
Unless the agency rescinds the predevelopment agreement and begins a fresh development process the city is violating the California Environmental Quality Act. This is not the first time, recently the city was found by the Superior Court to have violated CEQA in CV762931. City Attorney Joan Gallo provided further evidence that the city does not seriously regard the CEQA process by her statement, quoted in the SJ Mercury, following the writ of mandate requiring an EIR, saying the basis for the ruling was just a technical matter and would not prevent the city from accomplishing its goals. If those goals were to be the demolition of historic buildings, would this be a fair and reasonable position?
RDA representative David Gazek was quoted in the SJ Mercury as saying that an EIR "by definition" does not look at economic feasibility for project alternatives. This conflicts with the whole reason for performing an EIR to identify feasible alternatives to projects which create significant adverse impacts to the environment. The EIR needs to provide sufficient information, including economic information, for decision makers to evaluate feasibility of alternatives and mitigations. Otherwise the EIR will be of little use.
During HUD's prior ownership of the property a restriction to the deed was added requiring consultation regarding development with SHPO due to the building's eligibility for the National Register. The RDA has not incorporated any SHPO recommendations into the development plans.
The site for this project was a foundry for many decades. Very likely there will be a significant amount of toxics underground. The demolition of the Montgomery Hotel will trigger a costly clean up, which has not been considered in the overall cost and feasibility analysis. This issue has previously caused significant cost overruns on other RDA projects. Any known likely cost such as this must be factored into the feasibility analysis.
The EIR states, "... The proposed new building is similar in character to the predominant high-rise development along Paseo de San Antonio and South First Street in the vicinity of the project site." This statement is utterly false and misrepresents the character and setting of the project. There are four buildings as tall as the proposed structure within an area of 8 square blocks around the project. The Paseo de San Antonio has only one high-rise, the Fairmont, on its entire length. Buildings such as the two story retail pavilion, two story State Building, three story Federal Building, four story UA cinemas, and the four story Paseo Condominiums typify the neighboring development. All of downtown only has about 10 buildings approaching 15 stories. Most of the low-rise buildings nearby are RDA projects, which raises the question if previous development justified low-rise projects why this project requires 15 stories? Is this a case of the RDA using previous errors to justify this project?
Page 37 of the EIR suggests that the loss of the Montgomery will not have a significant effect on the Twohy Building across the street. However at an earlier City Council hearing regarding the Jose Theatre, the lack of complimentary buildings across the street from the Jose Theatre was used by the RDA architect to justify high density development adjacent to the Jose Theatre. This suggests that once the Montgomery is gone, the RDA will have created a justification for the future Twohy demolition by removing the only other historic building on the Paseo de San Antonio (EIR page 37). Even now, previous demolitions (Julia Morgan's YWCA, City Hall, Carnegie Library, etc.) have created the "justification" for the removal of the very last few historic buildings downtown because they are now isolated and have less historic value.
RDA uses the justification of blight removal, yet historic buildings are not necessarily blighted and the condition of this structure is the responsibility of the RDA. Factors created by the owner/developer should not be used as justification for projects which have significant environmental impacts.
Significant blight in downtown San Jose can be found South of San Jose State and in other areas where recent development has not withstood the test of time. What were once elegant and gracious areas, are now populated with deteriorating stucco structures that are overcrowded and a source of crime and blight. Yet rather than acknowledge that this recently created blight should be corrected to create safe and desirable neighborhoods in downtown, the RDA would rather sacrifice the remaining historic structures to create new development which does nothing to remedy the plainly evident failures of development in the last 30 years. Communities all over the country have learned that historic preservation is the singularly best long term strategy to eliminate blight.
In Dallas the only part of downtown that is considered safe for visitors after dark is called Dallas Alley, the one remaining street of historic brick structures left after the rest of the historic downtown was razed for "redevelopment." Ironically it is the concierge at the Dallas Fairmont Hotel who will tell you to take a cab for the four blocks to Dallas Alley rather than risk walking there at night.
RDA is ignoring significant evidence that historic preservation creates more economic growth than new development, as stated by Charles Loveman at the Jose Theatre City Council hearing on September 2,1997
Throughout the EIR the assertion is made that the project is needed for the "removal of blighted conditions along The Paseo de San Antonio." It should be clear by examining Photos on page 27 and 28 in the EIR that the existing structure is not blighted, it is only vacant. The removal of the building will not reduce blight, instead it will increase it by having a devastating effect on downtown historic resources. There are many buildings downtown which are vacant. If vacancy is to be considered the criteria for establishing blight, then dozens of buildings, new and old, including the new RDA funded Retail Pavilion should qualify as blighted and likewise be subjected to demolition.
The aerial photograph of the project site in Figure 5 clearly shows the amount of surrounding vacant land available for development without removing historic structures. Outside the scope of this photograph ample vacant land is located nearby in several directions. No justification is given why the proposed project must however be built where there is a historically significant building, while not first utilizing adjacent vacant parcels. All the project objectives could be met while saving the historic Montgomery Hotel by choosing a different configuration or another nearby site.
Just North of the project area, in the Frame area, there is between 60 to 80 acres of vacant land that could be used at a future date to meet the objectives of the project and redevelopment overall. This land is situated between Stockton, Coleman, and Julian Streets. Why has the use of this land never been explored or offered as an alternative to the continued removal of historic buildings by the RDA to make room for new projects?
The San Jose General plan contains policies on historic preservation. Yet the 1992 Strategy Plan EIR, New Century Center EIR, and now the Fairmont Hotel Expansion EIR all suggest that even though all these projects have significant unavoidable impacts, which violate the historic preservation policies, they are in conformance with the General Plan. A policy is not a policy if it is never followed. The failure of the EIR to recognize this is profound.
If the city were to propose a project which did not contain a benefit though economic development, reduction in blight, or increased housing, the city's General Plan policies would not be fulfilled. Further, it is easy to see that the city would never propose a project that would hurt the economy, reduce housing or increase blight. Yet, by removing historic buildings, such as the Montgomery, the city is actually permanently reversing the intent of its policies. The EIR does not make clear that in addition to not following the General Plan policies, this project is working counter to them.
The EIR's determination that the project is consistent with the overall objectives is not true, unless certain objectives have more weight that others. If this is so, it is not stated anywhere within the General Plan, or other city policies.
The project alternatives need to be evaluated individually in the same manner as the project in terms of how they support the General Plan and Downtown Strategy Plan policies that the project is supposed to be implementing. If this were done, some of the alternatives will be found to better implement the policies underlying the specific project objectives than the proposed project itself. Policy conformance should be the determining criteria, rather than the ability of the alternatives to duplicate the metrics of the project itself.
Furthermore if the development process were not a rationalization of the predevelopment agreement and instead the RDA had followed policies on historic preservation during the development planning phase it would have prevented this destructive and harmful project from being proposed in the first place.
The objective in the San Antonio Plaza Plan to replace obsolete businesses seems strange because it seems it might lead to the displacement of viable businesses. Redevelopment should focus on long term structural improvement, not subjective judgment of "appropriate" businesses. This of course is not an issue for this project anyway. Whether or not the site of the Montgomery should be a hotel is not in dispute.
The Floor Area Ratio (FAR) discussion seems, if anything, to support the notion that this project is not in line with the low FAR of 4 suggested in the EIR discussion. The RDA chooses to selectively emphasis or ignore certain priorities in order to rationalize the proposed project.
The San Antonio Plan places a high value on new development, making it inconsistent with the General Plan and Downtown Strategy Plan, which purport to place a high value on preservation as indicated by the summary on EIR page 19 and 20. The notion that new development is always superior should not be used to deem consistency on EIR page 23.
There is no way to mitigate the demolition of a historic building. The EIR suggests mitigations on page 38 for the Montgomery demolition, however they are misleading, leading readers into thinking that they are somehow meaningful. While it may be nice or interesting to take pictures of a historic building prior to its demolition, it is not unlike suggesting that photographs of a deceased person can substitute in their absence. Salvaging elements of the building would not have any realistic value and can prove difficult to implement. Historic taxidermy is not a recognized preservation technique.
These mock mitigations should not be a part of this EIR. The EIR needs to state clearly that demolition cannot be mitigated.
None of the historic preservation policies adopted as mitigations in the 1992 Downtown Strategy Plan EIR have been used in the development of this project (EIR page 20). The failure to implement previously adopted mitigations is unlawful.
The 1992 Downtown Strategy Plan called for the preservation of the Montgomery Hotel. Although the Downtown Strategy Plan was adopted with a statement of overriding considerations, it contains a number of mitigations for the significant adverse impacts it required. The baseline for assessing the impacts of the 1992 Downtown Strategy Plan has changed so much in the intervening 5 years, that the entire scope of that plan and its impacts needs to be reassessed. New projects devised using the recently adopted focus on housing and entertainment not found in the original plan demonstrates a significant divergence from what was contemplated and approved though the public process.
Projects we are seeing proposed today appear to be the result of a private and secret process which probably violates the Brown Act. RDA staff have met and negotiated in private with developers, and these same staff have met with city council members in advance of public notification of proposed projects. The San Jose Mercury has reported a large donation from the Fairmont Hotel owner to RDA funded developers and favorite interests of elected officials. The prospect of favoritism and influence driving RDA projects and proposals is frightening. The EIR should contain full disclosure of any financial relationships between RDA staff, elected officials, and developers.
The predevelopment agreement approved by the RDA Board (City Council) creates an obligation to approve the proposed project by promising the developer up to $1.5 million dollars as compensation if the project is not approved. It is unimaginable that the council will deny this project, or has any thought of denying it, when they have already committed significant taxpayer funds as a golden parachute for the developer. The City Council cannot arguably vote impartially on this project. The EIR must disclose this fact.
The city has owned this building for many years, yet reports indicate that the building has been allowed to suffer considerable damage from the elements. This is indicative of the city's predisposition to demolish the building. Apparently the city is already acting on its internal decision to demolish.
The RDA told the Landmarks Commission in August of this year that it had decided sometime after 1991 that building would not be saved and stopped all maintenance, and allowed the building to deteriorate through neglect. Significant amounts of preventable damage have occurred as a result.
Based on the EIR (Figure 9) the design quality and appearance of the proposed annex will be significantly inferior to the existing Fairmont Hotel. This project should follow the design guidelines established for downtown redevelopment. The existing Fairmont Plaza exhibits a high quality of design. Any annex to the Fairmont should utilize these guidelines, or those of similar quality.
The RDA must rescind the predevelopment agreement, and start over with the development process. In doing so it must abide by and follow all the relevant policies so that valuable public resources are not squandered.
The EIR is flawed as indicated above, and will require redrafting once a new development plan is put forth.
The city must stop treating its historic resources carelessly. Elected officials are given a public trust to maintain these resources.
Finally the 1992 Downtown Strategy Plan, and its EIR, are no longer appropriate for continuing development downtown. The city must undertake a comprehensive review of its objectives and the process it will use for redevelopment. Without this process valuable time, energy and resources are wasted. Historic preservation must become a real objective of the city or these policies should be eliminated, even though it will put the city at odds with state and federal law.
Sincerely,
Tom Simon
Preservation Action Council
Modified 11/97