San Jose is changing its preservation ordinance to create a new pathway for projects that typically would be considered too “detrimental” to its landmarks and historic districts to move forward — a move that clears the way for the redevelopment of St. James Park.
The ordinance mirrors the override process of the California Environmental Quality Act for these types of projects.
While the amendment applies citywide, the decision to change the existing law on Tuesday by a 9-2 vote was prompted by the findings in the legal saga between the Sainte Claire Historic Preservation Foundation and the city. The findings revealed San Jose had erred in granting a historic permit for a concert venue at St. James Park because it did not have a mechanism to consider the public benefits.
“This particular ordinance, as currently written, stands out like a sore thumb, because it doesn’t even give us the discretion to do the kind of override we do in all other CEQA cases,” San Jose Mayor Matt Mahan said. “This council, on behalf of the community, should have the discretion to weigh the benefit of a given project against the impacts through a very robust public process with many steps ultimately, and (we) clearly have the sole authority to turn that over.”
San Jose has eyed the redevelopment of St. James Park for more than a decade, approaching the Levitt Foundation — which partners with communities to transform underutilized spaces into destinations — in 2013 to turn the 7.6-acre park “into a vibrant and amazing public space.”
But the potential transformation of the park has turned into a long legal drama since the city first approved permits in 2020 to the chagrin of the Sainte Claire Club — a men’s social club — which argued that the city failed to properly evaluate the impacts on historic structures.
While a Santa Clara County Superior Court judge initially ruled in the city’s favor in 2022, the Sixth District Court of Appeal handed the social club a partial win last year. It found that while the city correctly followed CEQA in approving a project, San Jose violated its existing local historic ordinance.
Before the City Council approved the changes on Tuesday, the only path forward for incompatible projects was through a hardship waiver that showed rehabilitation was technically, structurally or economically infeasible. The city has granted a hardship provision only four times to downtown projects.
Manira Sandhir, deputy director of planning, said city staff had identified three other cities that have enacted override provisions with more specific language.
For example, Sacramento has a historic override that allows consideration of the general plan and community goals.
Supporters of the ordinance change noted that it also removes a hurdle to building the Levitt Pavilion venue at the park. Earlier this year, the city negotiated a three-way agreement with the Mortimer & Mimi Levitt Foundation and Friends of Levitt Pavilion for the development and operation of the future concert venue. Under the terms, San Jose would provide $15 million of the project’s $20 million estimated cost, while Friends of Levitt Pavilion intends to raise the remaining capital costs needed for construction.
“It’s taking longer to get Levitt built than the Shark Tank, so let’s stop handcuffing great public benefit projects that will help enrich and restore our historic spaces,” said Suzanne St. John-Crane, director of strategy for the Levitt Pavilion San Jose. “Let’s give St. James Park the love and activation it deserves by filling it with diverse, free, family-friendly live music for all by providing a state-of-the-art plug-and-play stage for local schools, nonprofits and community activities.”
However, the Sainte Claire Club and preservationists warned that the city’s ordinance was too broad and could open itself to unintended consequences.
“We’re putting things in jeopardy by reducing the protections of historic ordinance, allowing this first one to happen,” said Shawn Atkisson, general manager of the Sainte Claire Club. “There was a city attorney in one of our meetings that said, ‘Hey, if they make a mistake on this ordinance, just vote them out.’ And one of the commissioners said, ‘Gosh, but the damage will already be done,’ and that’s our concern. Is that where we’re going with this?”
Responding to concerns from preservationists, District 1 Councilmember Rosemary Kamei proposed that the city further define “a compelling public interest,” which she argued would add guardrails without removing council discretion.
“This approach is also far less restrictive than the standard use in many cities, which often require extensive technical findings, hardship analysis or limits overrides to narrow categories of public projects,” Kamei said. “Our proposal preserves flexibility while still adding the needed clarity.”
However, the bulk of Kamei’s colleagues shot down her proposal, citing the potential to expose the city to further legal complications.
“If we start adding new terms and more complexity and uncertainty, we are undermining the direction we gave to staff to come back and give that authority clearly to the council,” Mahan said. “I would trust us being elected and accountable to the people and our future councils to make a better decision to weigh those trade-offs more effectively than any administrator, lawyer or judge.”