Good evening.

My name is Carlos Rosario, and I'm the chair of the Planning Commission.

Welcome to this Planning Commission meeting.

Please remember to turn off your cell phones.

The parking validation machine for City Hall is located at the rear of the chambers.

and right now if you are able please stand up to salute the flag

All right, we'll start out with the roll call.

Chair Rosario, I'm here.

Bickford here Commissioner Borosio

Commissioner Bondall is not here Commissioner Cantrell is not here yet

Commissioner Cowell here Commissioner Casey is not here yet Commissioner Nguyen

yeah Commissioner Oliverio is not here yet and Commissioner Young here that is

is seven and seven and we have quorum before we begin I want to remind the

Planning Commissioner members and members of the public to follow our code

of conduct at these meetings this includes commenting on the specific

agenda item only and addressing the full body public speakers will not engage in

conversation with the commissioners or staff all members of the Planning

Commission staff and public are expected to refrain from abusive language

repeated failure to comply with this code of conduct which will disturb

disrupt or impede the orderly conduct of this meeting may result in removal

from the meeting this meeting of the Planning Commission will now come to

order summary of the hearing procedures if you want to address the Commission

please fill out a speaker card located near the audio visual technician and

deposit the completed card into the plexiglass into one of the plexiglass

baskets there are also speaker cards in the back of the chambers and at the side entrance the

procedure for this hearing is as follows after staffs presentation applicants or appellants may

make up to a five-minute presentation during the public comment period the chair will call out names

on submitted speaker cards and the order received for those members of the public who attend in

person as your name is called line up in front of the microphone at the front of the chamber or on

on the stairs. Generally, each speaker will be given up to two minutes for public testimony

and speakers using a translator will have up to four minutes. At the discretion of the

chair, the time allotted for each speaker will be changed depending on the number of

items on the agenda, the number of speakers, and other factors. Speakers using a translator

will have double the time allotted. After the public testimony, the applicant or appellant

may make closing remarks for up to an additional five minutes. Planning commissioners may ask

questions of the speakers response to commissioner questions will not reduce

the speaker's time allotments the public hearing will then be closed and the

Planning Commission will take action on the item Planning Commission may

request staff to respond to the public testimony ask staff questions and discuss

them if you challenge these land use decisions in court you may be limited to

raising only those issues you or someone else raised at this public hearing or

in written correspondence delivered to the city at or prior to the public

hearing planning commission's actions on rezonings prezonings general plan

amendments and code amendments is only advisory to the city council the city

council will hold public hearings on these section 21 2400 of the municipal

code provides the procedures for legal protests the city council on rezonings

and prezonings the planning commission's action on conditional use permits is

appealable to the city council in accordance with section 20 100 220 of

the municipal code agendas and all staff reports for this meeting may be accessed

on the city on the city's website

public comment so public comments of the Planning Commission on non-agendized

items please fill out with the speaker's card and give it to the technician each

member of the public may address the Commission for up to two minutes the

Commission cannot take any formal action without the item being properly noticed

and placed on the agenda in response to public comment the Commission is limited

to the following options responding to statements made or questions posed by

members of the public requesting staff to report back at a matter at a subsequent

meeting or directing staff to place an item on a future agenda do we have any

speakers for public comment for items that are not on the agenda for today we

have one Elizabeth

Hello.

So this is going to be, I really hope that as a planning commission for the city of San

Jose that we make an intentional plan to how we're going to help maintain the black and

African-American population in Silicon Valley.

Me and myself, I'm half black, half Latina,

and it's disheartening seeing the small percentage

that we have and how it's continuing to dwindle

and we're continuing to be pushed out,

either pushed out, displaced, homeless, or dead.

And so I think that's important that as we're building

and wanting to grow as a city, which I do support,

that we keep that in mind so that we're not displacing

the people who have been here,

the people who are working hard here each and every day.

And so I just want to say that,

that in all of our things,

we make sure to keep the importance

of the black community in mind.

And we make sure to focus on affordability

as much as we can.

Not saying that y'all don't,

but just making sure that we continue

to do that and try to have that framework

in all of the decisions that we make.

Thank you.

Thank you, I appreciate that.

Any other comments on non-agendized items?

All right, seeing none, we will move on to deferrals

and removals from the calendar.

Any item scheduled for this hearing, which is,

for this evening for which deferral is being requested

will be taken out of order to be heard first on the matter of deferral or removal.

Staff will provide an update on the items for which deferral and removal is being requested.

If you want to change any of the deferral dates, recommend, or speak to the question

of deferring or removing these or any other items, you should say so at this time.

Staff, do we have any items to defer today?

We do not.

All right.

Thank you.

the consent calendar there will be no separate discussion of individual consent

calendar items as they are considered to be routine and will not and will be

adopted in one motion if a member of the Commission requests debate separate vote

or recusal on a particular item and that I may be removed from the consent

calendar by the chair and considered separately the public may comment on the

entire consent calendar and any items removed from the consent calendar by the

chair staff will provide an update on the consent calendar if you wish to speak

on one of these items individual please come to the podium at this time we have

a motion from Commissioner from Commissioner Oliverio and a second from

vice chair Bigford to approve the minutes which is the entirety of the

consent calendar we'll now go to a roll call vote Vice Chair Bickford yes

Commissioner Borossio yes Commissioner Bondal yes Commissioner Cantrell yes

Commissioner Cow yes Commissioner Casey is not here

Commissioner Nguyen yes Commissioner Oliverio yes Commissioner Young yes

and I am yes as well making that nine to zero and the consent calendar the

motion to approve the consent calendar carries all right on the public hearing

generally the public hearing items are considered by the Planning Commission

in the order in which they appear on the agenda however please be advised that

the Commission may take items out of order in order to facilitate the agenda

such as to accommodate for public testimony or may defer discussion to

items to a later agenda for public hearing and for time management purposes

staff do we have a presentation on CP 24 036 yes we do this is the after bar and

grill

Good evening, Chair, Vice Chair, and Commissioners.

My name is Zachary Johnson, Project Manager from the Planning Division.

This project consists of a conditional use permit to allow late-night use until 2 a.m.

Friday through Sunday for an existing public eating establishment located at 1692 Story

Road, Suite No. 100.

The tenant space is currently occupied by the After Bar and Grill Public Eating Establishment

and is located within a commercial shopping center.

The site is surrounded by single family residences to the southeast and southwest, commercial

uses to the northeast, and Emma Prusch Farm Park across Story Road to the northwest.

The site has a general planned land use designation of neighborhood community commercial and is

within a commercial neighborhood zoning district. Here's the existing floor plan

for the approximately 7,442 square foot tenant space where the existing public

eating establishment after bar and grill operates. The project does not include

any external modifications to the existing commercial building or site. The

establishment currently operates with the type 47 ABC license, on sale general

eating place. This license type allows the sale of beer, wine, and distilled spirits for on-site

consumption. The establishment must operate and maintain the licensed premises as a bonafide

eating place. The project was reviewed for consistency with the general plan,

the San Jose Municipal Code, the California Environmental Quality Act, the City Council's

24-hour late-night policy and the City Council's public outreach policy.

The project was reviewed by the San Jose Police Department,

who have stated that they are opposed to the conditional use permit for late-night use

and will not allow entertainment uses.

Staff found that the project is inconsistent with

Council Policy 6-27, Area Use Compatibility Finding,

which states that 24-hour uses should not be approved unless the facility can operate without

detriment to nearby residential uses or the general welfare of the surrounding area.

Council Policy 6-27 Police Issues Finding, which states that crime statistics and police

safety issues, which are directly related to uses operating between 12 midnight and 6am,

will be analyzed and considered in determining the appropriateness of 24-hour uses.

And conditional use permit finding 2100-720-A4, which requires that the proposed use at the location requested will not

A. Adversely affect the peace, health, safety, morals, or welfare of persons residing or working in the surrounding area,

or C. Be detrimental to public health, safety, or general welfare.

We are unable to find consistency with these findings due to the After Bar and Grill's history of noncompliance with state and local laws.

After Bar and Grill has violated their ABC license by not serving food in conjunction with alcohol sales,

which is a requirement for a Type 47 license for a public eating establishment,

provided live entertainment, including dancers, without an entertainment permit as required by the police department,

operated past midnight without a conditional use permit and received noise and public nuisance

citations from the police department despite warnings instruction and an opportunity to

achieve compliance granted by the police department the project applicant has continued to operate out

of compliance with public eating establishment requirements per section 2100 720b of the san

jose municipal code the planning commission or the city council shall

deny the application where the information submitted by the applicant

and are presented at the public hearing fails to satisfactorily substantiate

such findings staff recommends denial of the conditional use permit under

sequel the project is exempt from environmental review pursuant to section

15 301 for existing facilities if approved and exempt pursuant to section

15-270 if denied. This concludes staff's presentation. We have Sergeant Pham from the San Jose Police

Department here to answer any questions related to public safety, and we have the applicant team,

which includes Representative Javier Campos, Jerry Stranges, and the project applicant Elmer

Thank you.

All right.

At this time, we'll have five minutes for a presentation from the applicant.

Good evening, Mr. Chair, members of the Planning Commission.

We are here to request a CUP to extend operating hours for an existing restaurant,

bar and grill, from midnight to 2 a.m.

Mr. Oriana is an experienced restaurant owner with restaurants in Los Altos and Morgan Hill

and a previous restaurant in Gilroy.

As you all know, with all that's going on in our community,

it's been very difficult on restaurants in our city,

including the Tropicana Village Shopping Center.

I'm sure most of the businesses have experienced a lot of hardship

in trying to make ends meet as a thriving business.

Mr. Oriana has acknowledged the items discussed in the staff report.

And from October 3rd of 2024, Mr. Oriana, to now, Mr. Oriana has worked very hard

to correct the violations and operate to the requirements of the City of San Jose Ordinance

for Restaurants and Bars and to comply with his ABC license.

Mr. Oriana has agreed to place conditions as part of the CUP that demonstrate his commitment

to safety and his confidence that after Barr in the past year has turned a corner

in making and implementing improvements moving forward.

Here to discuss the conditions that Mr. Orellana would like to have placed

on his establishment is Jerry Stranges.

Thank you.

Mr. Chair, members of the commission, Jerry Stranges representing after Barr and Grill.

The issue is security and what type of security we will be able to provide.

And there's really two choices.

There's the secondary employment with active police officers.

That's difficult at this time to do that.

We would prefer that and we're going to try to do that.

Outside of that, there's armed private security.

And we intend to do everything we can to ensure that it is a safe place

to be. With that, we're suggesting a six-month compliance hearing. So rather than taking my

word for it right now, we will come back and we will show and the evidence will show that

we've run a good shop and we deserve to be open for those two extra hours. So with that,

I would hope that you can support us giving us a shot to be open for six months,

and we'll make it work.

Thank you.

And also in the audience are some of the business owners of the Tropicana Village

that, again, have also experienced, you know, hardship in trying to, you know,

operate a thriving business.

And with that, we're here to take questions and provide you any answers that you might have regarding the project.

Thank you again.

Well, first we'll have a public comment.

I don't see any cards here.

Would anybody, members of the public, like to speak to the item?

Please come down.

Please come down to the podium and you have two minutes and state your name.

Okay.

My name is Victor Fong.

I actually work at Tropicana Shopping Center and I've seen how Mr. Oriana runs his business.

Okay.

It's very clean, you know, front and back.

And he provides security, you know, when it's busier.

And not only that, he takes a bit of responsibility for the whole area.

Like back a few weeks ago, there was a homeless person

that filled up a shopping cart with cardboard in the back alley,

and he actually set it on fire.

And Mr. Oriana was close by.

He saw him.

He shooed away the homeless, possibly could have burnt down the building,

and then he put out the fire.

So he was a very responsible member of the business community

within Tropicana Shopping Center.

And I witnessed that happen myself on the security footage

because I worked there at the shopping center.

So I'd like to put in a good word for him as a responsible business person.

Thank you very much.

Any other members of the public that would like to speak?

All right, seeing none, we will turn it over to the commissioners.

Before we begin, I would like to ask if anybody had any ex parte communications?

Yes, I had ex parte communications with the applicants team.

I also had communications with the applicants team, spoke to the representative.

Anybody else?

All right.

We will turn it over to Commissioner Young.

Thank you, Chair.

Let's see.

Thank you, Sergeant Pham, for being here.

here thank you for the service you provide to our city as well I've been

on the Commission for five years and we quite routinely review either

applications for sale of alcohol or extension of business hours and generally

speaking the police department is neutral they'll give us a letter that's

neutral that's certainly not the case here I don't think I've ever seen a worse

record of an establishment than this year according to the police department

report that sergeant fam prepared we had three significant incidents in 2023 two

in 2023 one in 2024 which include brandishing a weapon and underage

subjects inside the business. However, it looks like the police department was

going to give a chance to the owner to kind of clean things up. So Sergeant Pham

and Lieutenant Payne met with the owner, Elmer Oriana, on June 26, 2024 and

explained to him that I'm sure I'm sure the sergeant and the lieutenant

explained the concerns they had about your business and what things you would

need to do to get the permit approved and yet not even a month after that at

an undercover operation that the police department held the officers ordered

food we're told there was not food being served they they were served alcohol

after midnight in violation of your permit and and issues with doors being

locked I can tell you as a retired fire chief that's a huge issue they're very

fortunate that you didn't have a fire in the establishment and have people killed

with that and then police department visited again on July 26th again violations

were found and again on August 3rd another undercover officers went into

the establishment and found major major major violations so I'm a little

skeptical that the operator has experienced running restaurants because

I can't understand if you had experienced how these things could

happen especially after the police department met with you and explained

what need to be done and as far as excuse me as far as security goes that's

not the issue here really the issue is that you're not operating in accordance

with your alcohol with your ABC license you're you're serving alcoholic beverages

without serving food you're serving after hours you're doing all kinds of

stuff so I don't see any reason to approve this permit I'm not I'm gonna

and make a motion we deny the application

and approve the staff recommendation.

Do we have a second on Commissioner Young's motion?

Okay.

If we don't have a second then.

I second the motion.

All right, Commissioner Cowell with the second

and we will move to commissioner bickford followed by commissioners bondal and cantrell

commissioner bickford thank you chair i have a question for the applicant um specifically

i we've all heard what commissioner young said so my question is

what functionally has changed and how would you show that to the community and the officers?

The police officers have a heavy weight here that they're carrying in ensuring that the public safety

is held and hearing a police officer and their reports say that they are opposed to this is a

fairly heavy weight. So I just want to ask once again, what do you think will be different now?

What is going to be different is that I'm going to do everything that I can to work with the

police department to make sure that we don't encounter those issues ever, ever again. And

like I say, it's not the first business that I run. I have run a bigger club in Gilroy,

and I have worked with the city and the police department for a long time.

At the beginning, when I met with them, I asked them,

they told me that they have a project that they're going to start

and that they're going to let us know when they're going to start the project.

So I think it was more of misunderstanding what they were asking me to exactly do

on the project that they have on the Tropicana,

that they're gonna be closing the business for a few months

so they can give us the opportunity.

So I asked them that I have some shows booked

and I needed them to give me some time

to coordinate with promoters.

And I think it was more about miscommunication

or understanding exactly the stuff that they want me to do.

So on Wednesday, I think that was Wednesday 1st or Wednesday 31st, something like that, on October,

that I meet with the officer and I told him that I will comply with everything.

And I called him and I said, seeing that it's going to be the first week that I have to tell my customers

that starting from this weekend, we will no longer be staying open after 12,

that it might take me a little bit more time to get them out

since it is the first time that I have to communicate

as they are leaving the business.

And explaining to them that that day we were shutting down

and then stopped selling at 12 o'clock

so they can understand that from now on

they're no longer going to be able to come to the business

and stay after 12.

And that's when I explained to Mr. Chao

that I'm going to be doing that.

He told me, oh, it's okay, Elmer, you can tell it.

But exactly at 12 o'clock, you see, the doors were closed

because we were not letting anybody come in after that.

We just, the people that we have over there,

we start telling them that, you know,

that our business is going to be closing at 12 o'clock.

Afterwards, they came.

They gave me that citation that day,

and I even talked to him, you know,

a few days prior to the weekend

that I would be telling my customers

that we're going to be close.

It's not that I don't obey the law.

I always try to obey the law because with the police department,

we need their support, you know, to keep our business safe.

If there is any problem, you know, our priority is that we work with the police department

because we don't want to be afraid of calling the police department, you know,

to come and help us when there is a little issue.

You know, sometimes people dream, people misbehave,

and we always want them to work with us and not be afraid

to work with the police department.

You see, all I'm asking is for an opportunity to show them

that I'm here to work with them,

not to feel afraid of the police department.

Thank you for answering my question.

Thank you.

Sergeant Pham, it sounds like you were there

at the end of October.

Do you have any reason to think that the function

of the location has changed from your previous visits?

Good evening, Chair, and good evening, Commissioners.

My name is Chow Pham.

I'm a Sergeant with the San Jose Police Department,

and I'm a supervisor for the Vice Unit.

So to answer that specific question,

the last time my team or a group of officers

was there to conduct some of these inspections

was August of last year.

So since then, that project that we had

during the summer ceased,

And so I haven't physically visited or inspected that business since then.

So I wouldn't be able to answer if those changes have been made.

It sounded like the applicant said that there was some meeting on October 31st.

Can you address that?

Yeah, so last year we had a meeting with the applicant, Mr. Oriana, myself,

and now Captain Payne in June of 2024.

and we had two subsequent meetings,

so a total of three separate meetings in June, July, and August,

speaking with Mr. Oriana and really giving him an opportunity to say,

these are the rules, these are the laws and policies you have to follow anyway.

We're just reminding you how to, that this is going to work if everybody works.

We also had individual meetings with every business owner within Tropicana.

So it wasn't necessarily just after Borrow.

we had about five other business owners that we met with individually,

provide them the same information,

and gave them the same opportunity to be in compliance with the ABC laws

and some of the laws we have here in San Jose.

And we had positive feedback from those meetings,

and during the two-month project,

we were able to really work with those other businesses,

and they were able to comply with what we were asking them to do.

And unfortunately, my commissioner Young said,

there's some some acts in july and august that that showed something different with after bar

thank you i'm finished commissioner bondall

thank you chair thank you staff for the presentation thank you to the applicant

for your application and thank you sergeant fan for being here today and respect to your service

you know we want to see small businesses winning in San Jose and relatively speaking you want

destinations for young adults to be able to attend and enjoy the nightlife outside of downtown

and if there was something open to two in the morning in the East San Jose it's not a bad idea

not just in San Jose and Willow Glen as well,

and most of our city.

So it's not that we don't want you to win,

we want you to win, but some of the things

that Commissioner Young brought up are what's scary.

So, but I do wanna ask the business owner,

how long have you been in business?

How long have you been operating this business for?

In the cities or just in the Tropicana?

in the Tropicana.

I've been there almost three years since February 2023.

Okay.

So you've been in business since 2023.

The violations happened in 2023.

So just assuming you were kind of new that time.

And then, okay, and then you've had a clean record since 2024?

Yes.

Okay. I have a question for staff.

the applicant brought up a compliance hearing,

how does that work?

And if we were to give them something

and they would come back,

is that something that we're open to do?

Or how does a compliance hearing really work?

Well, this is the first time essentially

we've ever heard a compliance order.

I'm assuming it's the same as a deferral

or something to give them an opportunity.

So there isn't a term of compliance order

necessarily for planning.

So if the applicant does a hypothesis here if we were to approve this tonight and they said that they want to do a compliance hearing after six months is that something that the city offers or does not offer?

I mean it's something I guess the commission can actually say but I would probably say the word deferral more than a compliance order because I think a compliance order has certain types of requirements that you need to put in to meet right?

that's not something that plan typically does I'd probably say it's a deferral

and the planning commission can recommend more than a compliance order

I'll defer the city attorneys if they have anything else now that's some

quick thinking there deferral does sound like but this is we don't have a process

for a compliance hearing that I know of under our code so that's not something

that we can follow there's no it's not a policy that we have currently so it

would be a deferral and we just come back and see staff does want to clarify

that even the project gets here tonight it doesn't mean the project can't

operate they can still operate as a as a restaurant until midnight so really it's

issue of should we approve the extended hours of their operation so if you defer

it in theory they can still operate as a restaurant I know it's a it's a huge

shopping center there it's a it's a lot of foot traffic a lot of people there a

a lot of other shops as well. Is any other shop there until 2 in the morning?

Yeah, not that I'm currently aware of. There are

a couple other bars in the area. Sergeant Femi, you got something too?

Yes, there's actually one out of the five restaurants and bars that

operate in the Tropicana. One has a CUP already in place.

So one is operating until 2 in the morning?

as of as of last summer they had to see you the conditional use permit in place

that allow them be open and past two however they chose to close at midnight

okay I'm gonna defer thank you chair that's it Anna thank you Commissioner

Ambroso perfect thank you yeah that was my question about that six month

grace period in terms of if the staff recommendation is approved how soon can

they come back and repetition for a 2 2 a.m. sales of alcohol so the only one

that I'm aware of for restriction for denials of rezoning which you have to

wait a year otherwise there's no other permits that restrict every application

after a denial. So then it would be indefinite like forever? No they can apply again tomorrow.

Oh I see okay okay I see okay thank you. That's it for now thank you. Thank you Commissioner Bickford.

One more question for the applicant. There was a comment about food and your ABC license requires

you to also serve food and there was a comment that there was no food available.

Have you resolved that problem?

Yes, ma'am.

We resolved that.

And is it your intention, if you were open until 2 a.m., to have food until 2 a.m.?

To comply with the law.

Thank you.

Mr. Chair, just to add on to that, again, Javier Campos with the ER engineers.

He actually, the applicant actually would like for that to be a condition,

just so that it's recorded, he'll serve food until he closes.

Thank you so much.

One of the questions that I had was, were there any incidents in 2025?

The report from the police department has the incidents in 23 and 24,

but have there been any incidents in the past year?

Yes, there have.

There are about a total of 60 calls related in the area

that could be surrounding after bar,

but not necessarily all those calls related here.

So the ones that I believe that might be related are four specific calls.

One was a fight and three other ones was an assault and battery.

Okay.

Regarding this additional condition to add

to the conditional use permit, have you discussed it

with anybody from the city or the police department

or the planning department for the six months?

I'm trying to understand how it worked logistically

or if that's been discussed at all.

Yeah, if I may, Mr. Chair, again,

Javier Campos with the ER engineers.

So in the 2000s, I was sitting up there as well, and I do recall that we did put those conditions on some bar and nightclub owners that had negative comments from PD.

and we actually offered it up, the commission,

that if they were willing to come back for compliance hearing.

Thank you.

Commissioner Borossio and then Commissioner Young.

Thank you.

Question in terms of what would it take

for San Jose Police Department to become neutral

become neutral in this issue is there something that's been communicated to

to the business owner in terms of what sort of criteria and for how long do they

need to maintain that good standing in order for a neutral decision to be to

be rendered from the police department that's a great question we had we had

those discussions not too long ago and we we will review the application very

similar to a review in the applicant where we look at the criteria where crime stats uh crime index

call service generation or uh uh police resource being utilized and so we'll take we look at a

global perspective and we see the bigger picture so not only in the vacuum of this is what happened

during this this 18 month or 12 month period but a larger picture so we have to follow set criteria

to offer recommendation whether we stay neutral or opposed.

And once we reviewed this at the beginning of this year,

it was hard for the PD to overlook what happened during that 12-month period.

So the answer for us would be we would review everything again

and see how that plays out.

So it is hard for us to say, hard for me to say,

yes, this applicant in good faith in the past six months

has proven a good track record.

This is what they did.

but eight months prior to that, they had all sorts of issues.

So we take a look at everything and see what we would offer as our recommendation.

So for us to become neutral, I believe we would have to have a larger sample size.

Right. Perfect. Thank you.

And would you say it's a combination of the issues that have arisen at the bar

and the location in terms of the,

just the phone calls that come out of that area?

Or is there a way to really tease out what are their issues

and what are the issues of the surrounding community?

Yes, so for clarity, we did a deeper dive

for the calls for service that are being generated in that block,

in the Tropicana, and we did a deeper dive saying

which broke down each individual call,

which was attributed to after bar which was or not and the ones that commissioner young pointed

out it was two years ago that was drawn to my attention when the watch commanders that worked

in the area said during thanksgiving there's a large fight that broke out and it was attributed

to after bar and from then until august of 2024 we really did a deep dive and really try to uh

correct or collaboratively with all the business owners to try to work correct some of these

behaviors and I saw it as a success because there's some business owners

that are here that are present during this meeting that we spoke to and we

work together to try to make make their business successful and thrive like some

of the Commissioners have spoke about so we we saw some success and we believe

that we as a police department gave plenty of opportunities to to show the

path for what success looks like so we can take a look at it again review and

assess right perfect thank you I think there's a path forward I think just

possibly a little bit more time to to establish that good standing you know to

clean up some of the some of the mistakes I guess or some of those things

that were that were brought up but I could see where there's an opportunity

If it's a no today, it may not be a no tomorrow,

and it looks like there's,

from the planning department, opportunity

to re-petition this or to re-submit.

And the police department, I think,

is pretty clear about what they're looking for

in order for them to give a neutral stance.

a

Neutral stance, so if it's not today, I think I think there is a path forward. Thank you

Thank You Commissioner young

Thank You chair yeah actually Commissioner and Borossio actually just said what I was going to say which is that

The city attorneys already told us that we don't have a compliance process however

Our planning staff has told you that you can reapply as soon as you want to and what I would recommend is that

you meet with the police department and get a plan going forward and

Establish a certain amount of time and then and then come back and reapply. So with that in mind

I'm going to call the question and ask for a vote

Move to call the question

Still on the table that's right that's right

All right, let's move to a vote to call the question

Chair excuse me if Commissioner control would like to chime in that's totally fine

All right, Vice Chair Bickford.

So, yeah, so Commissioner Young called the question to ask for a vote, and it wasn't until

afterward that Commissioner Cantrell had raised his hand, so we're going to vote on whether

or not we vote at this time oh it was on okay we still vote on whether to call the question you

can vote now that we're not going to vote right now allow commissioner Cantrell to speak and

then we'll vote I'm voting no because I believe commissioner Cantrell should be allowed to speak

commissioner Borossio

if no will get us one more input yes then I also vote no commissioner Cantrell

I'd say no for now my apologies Commissioner Bundall no Commissioner

cow no Commissioner Casey's absent Commissioner Nguyen no for now

Commissioner Oliverio no Commissioner Young no and I am a no making that

unanimous no so we will move to Commissioner Cantrell's comments

questions thank you and thank you Commissioner Young I understand the

spirit of your ask actually I'd like to ask the applicant a question and then I

have a question for the officer as well

I just want to ask you, can you please characterize your relationship with the police department?

With the police department here in San Jose?

Since I've been here, a little bit rough, but I'm still trying to see if I can, if they can let me, give me the opportunity to work with them to show them that I have, that I'm different than what they think.

Because I have also, you can get reference from Morgan Hill,

Giroi, and Los Altos.

I have worked with the city in the police department

and I have never encountered what I'm going through here

in San Jose, but I still believe that all I can do is ask

for an opportunity for Mr. Chao to be able to work with him

to make sure that we can make Tropicana a better place

and give something nice to the community.

Because I have always worked to be part of the community

and to help the community.

It has never been to be giving problems

to the police department.

My issue with the police, I think has been more

understanding or communicating what I'm trying to

speech across, so, but I'm totally different than

how he addresses that I'm a very bad operator.

I think all I'm asking is for the opportunity

to be able to show that I'm not alive,

you know, that I deserve the opportunity to show

that I can make a difference in the Tropicana.

As long as the police department is willing to work with me,

I think we can do something nice there.

Okay, thank you, I appreciate that.

Officer, I'm not sure if you have the data

the information on this the time where food was not being served but alcohol was what time was that

so great question so uh commissioner just i'll just go down from the notes that we have from

the uh the memo that we prepared so on july 20th of 2024 undercover officers entered in around

11 30 at night and from 11 30 until until they left about within an hour no food was served

alcohol was so that's one example a week later went in around 11 45 at night same thing no food

was served only only alcohol was served and they were there for about an hour as well and the same

thing on august 3rd of that year went in around 11 20 at night and then this is when we were there

for close to an hour and a half and then that's that's actually the same night we made contact

with Mr. Oriana as well.

Okay.

What time does your kitchen close?

Right now, I live in 30

because we're only able to stay open until 12

because we have to start selling alcohol.

30 minutes before closing.

What time?

30 minutes before closing.

So let's say you guys give us the opportunity to stay open.

and we have to close the kitchen at 1.30 a.m. every day

because we cannot be serving food afterwards

because people will need more time to stay inside.

What time do you make last call for drinks?

1.30.

Right now, 11.30.

11.30.

Okay.

So explain to me how a restaurant would not have food

before the kitchen closes?

The restaurant?

Yes, correct.

All the other restaurants that I have,

they close Les Altos,

they close at 9 on the weekend at 10.

Morgan Hill at 9 on the weekend at 10.

So I'm saying, I'm asking,

if you are a restaurant

and your kitchen closes 20 minutes

before closing time.

How are you out of food

any time before that?

We are not out of food.

We always have food.

The day that he came

that he was a person

that he was new

that we hired from other places

that she worked at the bar

and she thought that we didn't have food.

But we did have people in the kitchen when people ordered food

because we have to have the kitchen open that day.

And I explained that, but it's, you know, like,

it's my words again what they say,

especially when an employee told them, but I tried to correct that.

So now I make sure that all my employees know

since that day that we hired them.

Do you have a manager on staff?

Yes, could you?

Do you have a manager on staff?

Yes, sir.

Now we do.

Did you have a manager on staff at that time?

Yes.

Okay.

All right.

Just one more question for you.

The community that surrounds the area,

how would you characterize the crime in that community?

high medium low I would say for San Jose that's a it's a medium to high

concentration of crime in the area especially on that on on King Road and

Story Road so I'm just trying to understand I think we should always try

to be as fair as possible so I want to understand because sometimes we don't

have good relationships with other people.

It happens.

So that would set up a relationship

where you'd get reported for things all the time.

But that does not appear to be exactly the case.

Looking at a restaurant that has a closing time,

you told me what it was, and you should have

had food available, period.

I mean, you may not have every menu item available,

but you can still serve food.

And you understand the reason for serving food in that establishment is the absorption of alcohol is deterred by eating.

That makes you more palatable to the community.

However, it appears to me that there's a propensity for bad outcomes that surround you.

So I think when that's the case, the community deserves the right to have very clear guidelines

for what behavior is acceptable from its bar owners.

A bar license is a privilege, a very unique privilege.

In order to stay consistent with what the community would need from you, you have to stay very close to the law.

It's really important.

So with that, I really hope that you can establish a much better record with the police so that you can grow your business.

I fully support that.

but we just need to make sure that the community is not harmed.

That's what we have to do.

So thank you very much.

Thank you, Commissioner Cantrell.

I'm sorry.

I had one additional question for the applicant or for the owner.

You said that you never encountered what you're seeing here in San Jose

or other establishments.

Could you elaborate on that?

Is there something unique about just the location or police enforcement?

If you guys check my records from the other city, you can check with the police department in Los Altos, Morgan Hill, and Gilroy,

and review if I ever have any issues with my license or with the police department, neither with the city.

It's the first time that I have encountered this situation here in San Jose.

And I don't want to, seeing that we're in this, I respect Mr. Shaw.

And I don't want to say any comments because, you know, it's the police department.

You know, and sometimes you have to respect that.

But, so I just want to leave it at that.

It's just a little bit different.

I have encountered, like I would here in San Jose, to do business.

It's just a little bit different than the other cities.

how they address the problem. To me, you know, the police department is to set and

protect and work with the community. And I can say a lot more, but I will not say

anything. You know, sometimes you have to stay quiet and just do what the law tells

you to do. So, all I'm asking them is to give me the opportunity to be able to do

It's simple.

You know, that's why we put the restrictions

so at least we can show that we can do things the right way.

Thank you.

You know, I think that Commissioner Cantrell said it's a privilege

to be able to do business in this town,

but particularly at that intersection because it's so well known.

I actually stumbled across a book in a library in Los Angeles,

sat down in the library and read the entire book.

The book was about that particular intersection,

and including that particular Plaza of Tropicana.

And I think what you see here is us really wanting

the business to thrive.

But it's very difficult to overlook the multiple

infractions that have occurred in the past few years.

And I think a big desire from that area is public safety.

And that is, and it seems like this establishment is sort

of a detriment to public safety.

And that's really what we're worried about when,

and answering to the folks in the neighborhood,

although we want you to survive, or to thrive, and to do well,

and to make that area of that intersection a beautiful place.

Those are my comments.

We have Commissioner Olivier, Oliverio,

and then Commissioner Bickford.

Thank you, Chair.

As we've covered tonight, the applicant or any applicant

under this circumstance can apply later.

But with that process is time and money.

And if we want them to comply, it would be better for them

to use that time and money to make themselves

a stellar business.

So what I would suggest as an alternative,

rather than deny this, simply defer this six months

to the last meeting in May.

That'll give the business owner more time.

It'll give the police department a longer track record

and that you do your best to manage this.

And I think then we as a commission

must have some understanding,

should this come back in May, what is the test?

Is it one incident?

Is it two incidents?

Personally, having worked in restaurants in a long time,

you sometimes can't control who comes into your business.

And if God knows what the outcome of a sports game is,

Things can get crazy.

So with that said, I would make the suggestion to defer this item six months to the last week, second meeting in May.

And then there should be no more than two incidents.

But, of course, the police should evaluate.

There might be zero.

There might be two.

There might be one.

I don't know what it will be.

but because if we deny the permit today, the application,

there's no incentive to the business owner

to operate it any better than it is today.

By deferring it for six months,

they have skin in the game to comply.

And if it doesn't turn out,

my guess is they're gonna work a lot harder

the next six months.

So I would just offer that as an alternative.

If I see a nod on the commission,

I would make an alternative motion to substitute motion to,

I'll restate it again, sorry,

to defer the item six months, the last meeting in May,

and then, and this is where we might want to discuss,

and to have a criteria of no more than two incidents,

and of course the police providing the input.

That would be a substitute motion.

Next we'll have discussion, but would the applicant like to say anything?

So the business owner would prefer for you to make a decision tonight with all due respect.

Then I withdraw my substitute motion.

If it doesn't work for you, then there's no point in making the motion.

providing an alternative so no substitute I'm withdrawing my substitute motion all

right Commissioner Bickford thank you chair first mr. ariano I want to say

thank you for being a great member of our community the testimony of one of

the other owners in the facility said that you did this great thing in putting

out a fire that's respecting our community and supporting it.

I personally would really love to give this to you

because I understand the economic impact

of those two additional hours.

I'm just finding it really hard to,

given that I haven't seen the actual track record

of having the doors shut at midnight,

making sure people are out and safe.

And I would have liked to have given you that six months

and had you come back and tell us how you've created a good relationship

with the local beat policemen and that you have done everything up to your ABC permit.

And then I think this entire committee would have handed you an easy win on this.

At this point in time, I don't feel like we can give that to you.

Commissioner Borossio.

How much would it cost for the applicant to reapply?

Like how much is it on the business side

to try this again?

It'd be approximately $28,000 roughly.

28,000, okay, so I don't know if y'all wanna sidebar on that

because I don't know if he's reading the room.

28,000 or six months.

If I may, Mr. Chair, I believe the business owner would like to be able to have this deferred,

but economic-wise, he might not be in business in six months.

And so he'd prefer for the decision to be made this evening.

Thank you.

a question for the city attorney would deferring result result affect their

ability to appeal the decision to City Council you're asking to defer if it's

I guess I'm can you rephrase the question so if they were to say agree or

want to do something like deferred for six months until May would that affect

their ability to and the Commission voted to recommend that they would then

appeal that deferral decision or what did it would it affect their ability to

appeal. There's you know I don't think. If it's deferred there's no counsel action. There's no action. There would be no action right so they couldn't appeal it if they had anyone

to feel if it was deferred. Okay all right yes that's the question I had. All right Commissioner Young. Thank you Chair. I'm opposed to a deferral. I don't think it's a good

idea for us to put conditions on whether we approve it we don't know what could

be two explosions in the building or two you know right you understand I'm saying

Commissioner Oliverio so and I don't think that's a good I I've never

supported us putting conditions I'd rather have conditions come from our

planning staff I'm not sure what else there is to discuss we've given the

applicant I think three times now to accept a delay he does not want a delay

He's told us he wants a vote.

So I would recommend we...

So call the question again.

I'm not going to call the question.

I would recommend that we do what the applicant is requesting and take a vote.

Thanks.

Anything else?

All right.

Then we shall go to a roll call vote.

Vice Chair Bigford.

I vote to support the recommendation of staff.

Commissioner Borosio.

Yes.

Commissioner Bundall.

Yes.

Commissioner Cantrell.

Regrettably, yes.

Commissioner Cow.

Yes.

Commissioner Casey is absent.

Commissioner Nguyen.

yes Commissioner Olivera yes Commissioner Young yes and I myself am a yes making

that 9 to 0 and the recommendation the motion to approve to approve the

recommendation by staff passes so clarifying it's a it's a motion to accept

denial to accept the denial thank you

okay moving on to let's see item it's the item PP 24-012 that is item 5b the

Eichler agenda item do we have a presentation from staff?

Yes, we do

Good afternoon, Chair, Vice Chair, and Planning Commissioners.

My name is Dana Peek.

I'm a principal planner and historic preservation officer for the city.

The item that we have tonight is the San Jose Eichler Neighborhood Design Standards.

Just a brief overview of the standards.

They were, the purpose of the standards, they were written to establish clear and objective

design standards for Eichler neighborhoods listed in the historic resources inventory.

They were designed to provide predictable guidance for property owners, applicants,

and staff project review, and to preserve the historic and architectural significance

of Eichler homes while allowing for compatible updates, additions, and new construction.

And for those who may not be familiar with Eichler Homes, they are mid-century modern

homes that were built in San Jose by developer Joseph Eichler between 1952 and 63 in San

Jose.

He started developing in Sunnyvale in 1949 and then moved to other cities like Palo Alto

and Redwood City.

San Jose has five Eichler Track developments.

They're very distinctive buildings, mid-century modern features, with elements like one-story

massing, low broad gable roofs, post and beam construction, and vertical groove plywood

siding.

The key features of the standards are that this was a community-driven process by the

residents of the Fair Glen Editions neighborhood.

The design standards are only for Eichler tracks that are listed on the Historic Resources

Inventory and currently that's only one neighborhood, the Fair Glen Editions neighborhood.

There's no new or additional requirements that are coming with these design standards.

Exterior changes for properties listed in the inventory already require a planning permit

so it's not going to change any of the regulations.

It includes optional design guidance beyond the mandatory standards.

There's no retroactive application of standards and the standards don't apply to interiors

or landscaping.

They align with the Secretary of the Interior standards for the treatment of historic properties

And also the existing document that we use to review changes to historic properties on the inventory,

which is the year old house guidelines.

Where these are not as adequate for mid-century modern buildings is they mainly have examples of, you know,

1900s type architecture and revival styles.

And the examples that they provide really are a little bit deficient with mid-century modern buildings.

buildings.

They're very distinct from other buildings and so this serves to provide clarity for

applicants.

Just to summarize the guidelines, you can see the types of elements that they include,

standards on massing and additions, roof lines, exterior cladding materials, windows, doors,

etc.

we had a fairly extensive public outreach process we had a project website that was set up in

September of 2024 the draft guidelines standards were circulated in October and November 2024

there was a community meeting that was held in October 2024 that went before the Historic

Landmarks Commission meeting on November 6 in terms of the draft and public input was

received and those that input was taken into consideration the document was just finalized

last August.

The applicable CEQA is a exemption both common sense exemption and for historic resource

rehabilitation so there's no further environmental review required.

So staff recommends consideration of the exemption under CEQA and recommend to City Council adoption

of a resolution approving the San Jose Eichler Neighborhood Objective Design Standards.

It will go to Council on December 2nd.

And that concludes staff's report.

Thank you.

At this time we will do public comment.

Each speaker will have two minutes.

We only have one card for this item from Sally Zarnovitz.

Thank you.

I am a member of the Fair Glen Editions Preservation Committee that asked for these guidelines.

We were listed on the National Register a couple of years ago, thanks to with support

of the city.

And people really were looking for, again, specific guidance as to how to maintain the

houses and also to get the streamlined single-family house permit that planning staff reviews.

process has been going really well from the neighborhood's perspective and also I just wanted

to say that we had the landmarks commission had a retreat and staff put together a great

presentation they came out to the neighborhood we got a lot of planners who are actually looking at

this work to be able to walk through the neighborhood with us and that was in a kind of a

very cool moment for them to actually see how their work is is built in the field and so the

neighborhood is really thriving and I think it's a great example of you know

when the community when people want preservation and they proactively agree

to that and take pride in it also allowing for of course you know

continued use of the houses and even of course you know ADUs or whatever that

you know understanding that we still need density and we need housing in the

city but to maintain the character of the place and and these guidelines go a

long way to doing that and we've you know huge huge thank you to staff for

working on this thank you

do we have any other members of the public who would like to comment now

will conclude public comment and provide an additional so turn it over to

the Commissioners Commissioner Oliverio thank you chair I do as well want to

thank staff and Sally and the Fair Glen Eichler track back in 2013 when I was on

the City Council I hosted a documentary film viewing of Eichler's people inside

glass houses and we had about 60 plus people in the small room and the

majority were from the Fair Glen Eichler track and what by preserving these

neighborhoods it allows now and later for people to literally drive through

history and the fact that Eichler owners are some of the proudest homeowners I

know I'm excited that I was actually on the Planning Commission to be here to do

this I'd like to make a motion to approve

All right, we have a motion to approve Commissioner Borosio.

Apologies.

Thank you.

I see myself approving as well, but I do have a question for staff.

I do remember that there was a community, I think on Stockton, and they said, oh my goodness,

it takes us three years or 10 years to change a window

because of certain historical designations

and it sort of backfired on some community members.

Is this one of these situations where

if we approve these standards,

that any, like what sort of changes may be typical now

but may not be feasible moving forward

that maybe a homeowner should know now

before we approve and this continues to move forward?

I wouldn't say there really are any. I think that these modern homes are a little bit different than some of the older homes in the Sheely Alameda district. They tend to have wood frame windows and that type of thing, which are their character defining features.

because these are mid-century modern houses.

They have more modern 20th century

where after World War II,

you have aluminum windows

and other types of windows that come in.

So they're a little bit more compatible

with more modern materials that we see today.

So I wouldn't say there's really anything

that would be an issue.

It's a little bit different animal

than than that other district perfect thank you

all right we have a motion from commissioner oliverio and a second from commissioner bigford

bickford we'll go to a roll call vote commission vice chair bickford yes

Commissioner Borosio yes Commissioner Bundall yes Commissioner Cantrell yes and thank you for your work as well

Commissioner Cal yes Commissioner Casey is absent Commissioner Nguyen yes Commissioner Oliverio yes

Commissioner Young?

Yes.

I myself am a yes.

So the motion to recommend to,

for staff's recommendation carries 9-0.

Okay. Moving on to item PP25-005.

At this time we'll have a five minute presentation from the applicant.

Or, I'm sorry, not the applicant, it's from the staff, my apologies.

Thank you.

and vice chair planning commissioners again Dana Peake historic preservation

officer for the city of San Jose tonight we're here to consider amendments to the

historic preservation ordinance just as background the historic preservation

ordinance is chapter 13.48 of the municipal code this is a different

section than you normally deal with which is title 20. It lives in its own section because

historic preservation doesn't regulate use so it's kind of a completely different section.

But the ordinance defines the historic preservation framework for the city.

It establishes the historic resources inventory,

lays out a process and criteria for the designation of city landmarks and city historic districts.

It lays out a process for the issuance of historic preservation permits for exterior

changes to landmarks and historic districts, and provides some incentives like historical

property contracts or Mills Act contracts which provide a property tax break for in

exchange for preservation of homes and buildings.

also regulates historic districts and landmarks through historic preservation permits the purpose

of the ordinance is to maintain the historic significance of the city landmarks and districts

and the community identity of city council designated landmarks and districts

so just to be clear this ordinance only applies to designated city landmarks we have approximately

200 and then we have several city landmark districts so it doesn't apply to everything

in the historic resources inventory

so how the buildings the landmarks and districts buildings the districts are preserved are through

a design review process a historic preservation permit is required for voluntary changes to

landmarks and properties and districts on the exterior it ensures that projects can adapt old

buildings for new uses in a compatible way and those projects are compatible with the historic

materials and features of landmarks and districts and they follow the secretary of the interior

standards for the treatment of historic properties

projects that are detrimental to historic character are typically denied unless

somebody applies for hardship

so there is an existing provision in historic preservation ordinance for hardship hardship

is specifically for projects where there's technical, structural, or economic infeasibility

for compatible rehabilitation.

And the applicant typically submits documentation to substantiate that.

So it's architect-engineer reports, property expenses, how they try to sell or rent,

performance that type of thing to establish that an existing building

couldn't be rehabilitated

when we're reviewing historic preservation permits on a parallel

process there's also the sequel analysis that's conducted historic districts and

city landmark properties are considered historical resources under sequa so we

have to comply with CEQA regardless of what our ordinance says projects with

significant unavoidable impacts which would be a detriment require

environmental impact reports mitigation measures and alternative analysis and

if there's a significant unavoidable impact then City Council adopts a

statement of overriding considerations so we've had other projects that have

gone probably before the Planning Commission we had a 4th Street pizza

project that was the demolition of a city landmark we've had another project

on 19 North 2nd Street and those all use the hardship provision but there was

also an EIR disclosing those significant and unavoidable impacts

The ordinance amendments are really coming forth to address a court case.

The Court of Appeal issued certain findings in March of last year in a case the St. Clair

Historic Preservation Foundation versus the City of San Jose.

The findings of the court were that the EIR that was prepared for this project, which

as Levitt Pavilion was properly conducted and certified, but the project had detrimental

effects under the Historic Preservation Ordinance, but we issued a Historic Preservation Permit

despite those detrimental effects, and that the ordinance lacked clarity on addressing

projects that are detrimental.

The Court said that the City may consider amendments to the Historic Preservation Ordinance

to provide a path for such discretion but that it didn't exist at the time that the

permit was approved.

The proposed amendments are to two sections.

One is the definition section, which is 13.48.20.

The changes are to clarify the definition of historic district and landmark and to add

three definitions for detrimental to address the court case, a historic integrity, and

substantial alteration, which support clarity for evaluating our historic preservation permit

applications.

The other section that is proposed to be amended in the ordinance is 13.48.240, and this is

finding section of the ordinance to issue historic preservation permits as i said earlier currently

only hardship allows for approval of projects where there's a detriment to the city landmark

or property in the district and what's proposed is that city council can override detrimental effects

if there are economic legal technical or other benefits that outweigh that impact

Projects with significant and unavoidable impacts under CEQA already require a statement

of overriding considerations, as I've mentioned, that we've prepared for other projects.

And the findings mirror CEQA override process under the Public Resources Code and Guidelines,

allowing approval despite the significant and unavoidable impacts that cannot be fully

mitigated.

Just for context in your packet, we did a survey of a number of California cities about

what other provisions cities have.

Mostly looked at the larger cities.

Most California cities do not have an override provision beyond hardship, so the hardship

provision is a very typical provision in a Stark Preservation Ordinance which provides relief.

But there are a few that provide specific findings that are more defined than what's proposed.

Sacramento has an override for general plan and community goal purposes,

and there are specific findings to make to make that override.

Pasadena has a compelling public interest only for demolition provision and again there's

specific findings around that that's in your packet and San Diego has an override for capital

improvement projects only again with specific findings the item was heard by the historic

Landmarks Commission in a hearing on October 1st.

The Historic Landmarks Commission requested that staff clarify the meaning of impair within

the definition that's proposed for substantial alteration and clarify that any project complying

with the Secretary of the Interior's standards is not a substantial alteration and to limit

the broad application of override by providing clear boundaries and decoupling the finding

from CEQA and providing separate demolition findings.

At that time, the Commission decided to continue the item

to November 5th to allow for additional input and for time

for staff to bring back some recommendations

modifying that language.

the item was heard again on November 5th and a historic landmarks Commission hearing the

historic landmarks Commission recommended approval to City Council but they made a

number of modifications to the language that they're recommending to the City Council that's

outlined in your packet.

The Commission recommended modifying the proposed definition of substantial alteration

to clarify that work in conformance with the Secretary of the Interior Standards would

not be a substantial alteration.

They recommended adding a definition for impair in relation to substantial alteration and

modify the override finding to limit its broad application.

I won't go over these too detailed.

They're all in your packet.

But you can see the underlying items are, again, trying to provide a little bit more

direction about how it's supposed to be used, that it provides a clear measurable benefit

to the community.

necessary for a specific public purpose that can't be accomplished through any

other means that it won't establish a precedent so each each each analysis or

project would be evaluated on its own merit and that there would be specific

findings stated in a resolution of the unique circumstances justifying that

approval the option that was recommended by the historic landmarks Commission laid out one finding

for that's more general for city sponsored projects on city land or facilities and then a separate

finding for private projects where there are five separate findings that would be

made for the override

as part of our sequel analysis the city prepared a addendum to the certified

Envision San Jose 2040 general plan final EIR and downtown strategy 2040 final EIR

the reason for this is that both those EIRs acknowledged that certain projects

could result in significant and unavoidable impacts to historic

resources there was also a detailed cumulative impact analysis where there

was going to be a significant impact in terms of the cumulative effect of

demolition with regard to those plans.

And also that override was specifically contemplated in those documents under certain circumstances.

Also that project level CEQA review will still be required as you see as projects come before you

when there's a detriment.

And that will all still be analyzed separately on a project-by-project basis.

your recommendation will be made to the city council and the city council will be considering

any specific language that you might have and the historic landmarks commission's recommendation

as well as staff's recommendation which is in the ordinance and text amendments that are in your

packet and then if the council decides to move forward there'll be a second reading on december

16th so staff's recommendation is to adopt a resolution approving the addendum to the downtown

strategy 2040 and envision san jose 2040 eirs and to recommend to city council amending section 13.48

point 20 which is the definitions section for detrimental historic integrity substantial

alteration clarifying the definitions for historic district in landmark and adding new permit

findings for override of detrimental impacts in section 13.48.240 and that concludes staff's

presentation thank you thank you and chair if you'd permit me before we begin public comment

I'd like to add a little bit of context, legal context.

I have a brief statement here that might be a little long for some of you,

but if you'll indulge me, I'd like to give a little bit of a history lesson.

So there's been a lot of interest surrounding this amendment

and the litigation that gave rise to this amendment

involving the St. James Historic District, Levitt Pavilion Project,

and now, as Ms. Peake mentioned,

this hearing is about the ordinance amendment, not about the Levitt Pavilion

project. However, I feel compelled to give you some background about the

litigation so that you know how we got to this point

of amending our historic preservation ordinance.

So November 10th, 2015,

10 years ago, City Council approved the St. James

revitalization strategy, and the revitalization strategy included

a multi-pronged approach to restoring the park, including

addressing homelessness and feeding programs,

enhanced maintenance, providing activation to encourage park use, establishing an updated

capital vision for the park, and establishing park governance and suitable and sustainable

funding strategies. So after 2015, the Levitt Foundation folks came in with some funding and

a mission aimed at revitalizing blighted areas around the U.S., and the design for the project

took shape. In 2019, after lots of staff and community work, the Parks Department applied

for historic preservation permit that Ms. Peake had mentioned for this music

pavilion and the city hired a consultant to conduct two historic reports as part

of the environmental impact report for the project and if you didn't know

historical resources are recognized as part of the environment under CEQA. On

October 27th 2020 City Council adopted the project EIR and master plan. The EIR

found the project would have significant and unavoidable impacts to cultural

resources, meaning St. James Park, as well as aesthetics, noise, and parks and recreation

areas under CEQA regardless of the implementation of mitigation measures.

However stated in the EIR, the environmental analysis included an historic expert disagreement

on the application of historic and cultural impact standards as it relates to the significant

historic impact being of cultural significance and not just physical significance.

As noted in the EIR, many historic features of St. James Park have been lost or reduced

over time and new features have been consistently added since 1980 following the evaluation

of listing the park in the National Register of Historic Places.

Because the EIR found significant and unavoidable impacts, the certification of the EIR required

the adoption of a statement of overriding considerations.

overriding considerations is a written statement explaining the specific

regions why the social economic legal technical and other beneficial aspects

of the proposed project outweigh the unavoidable adverse environmental

impacts and why the lead agency is willing to accept those impacts so

that's listed in Public Resources Code section two one zero eight one B that's

sequel the City Council adopted a statement of overriding considerations

finding the benefits of the project outweighed the impacts. Benefits included consistency with

general plan policies, implementation of the St. James Park revitalization strategy,

economic benefits detailed in the Trust for Public Land study, goals achieved through the

Activate SG Strategic Plan, etc. All of these benefits were explained in written findings as

to why the City Council chose to accept the significant and unavoidable impacts under CEQA

and certify the EIR.

So now we come to the issuance of the historic preservation permit for the project,

which also required its own findings, not based on state law,

but based on our local San Jose Municipal Code.

It went through three hearings before being issued by the planning director,

an HLC hearing and two director's hearings.

The planning director approved the historic preservation permit on October 28, 2020,

with the additional conditions of approval as recommended by the HLC,

and with the certification of the project's EIR.

The HP permit, however, did not find that the project

would be a detriment to the historic district,

despite the CEQA finding of a significant

and unavoidable impact to the historic district.

The director found, in compliance with the requirements

of San Jose Municipal Code 13.48.240,

that subject to conditions, the work will not be detrimental

to the significant architectural, cultural, historical,

and aesthetic interest or value of St. James Park

and is consistent with the purposes of chapter 13.48

of the San Jose Municipal Code.

Because, and it lists six findings,

which I won't read here,

but basically preserving the park's location,

preserving continuous historic use as a community park,

preserve most of the significant character defining features,

relates to historic design, intent, et cetera.

But I will say that the HP permit does list

that while the DEI, while the EIR concluded

The impacts to cultural resources are significant

and unavoidable.

The design of St. James Park has continued to evolve

as a center of civic life,

and the programming of public events

and their related structures,

such as the proposed Performing Arts Pavilion,

are viewed as evolutionary changes

within the cultural landscape

of the locally significant historical resource

that are consistent with its historic sense of place

and with the purpose of the Historic Preservation Ordinance.

St. James Park will continue to qualify

contributing property to the locally designated st. James Square City

Landmark District and is also eligible for designation as a candidate City

Landmark all right last almost last page the HP permit process contains with it

the discretion for the Planning Director the Planning Commission or City Council

as applicable to decide whether or not a project will be detrimental to a

resource. In addition to all the evidence, the historic reports,

the community input, the application of the Secretary of Interior Standards, the decision

maker decides whether the project will be detrimental to the

significant architectural, cultural, historical, or aesthetic interest or value of St. James

Park and is consistent with the purposes of Chapter 13

4.8. The determination of what is detrimental

involves the weighing of benefits and evidence.

So, fast forward, the St. Clair Historic Preservation Foundation, which is connected to the St. Clair

Club, a private gentleman's club located across the street from St. James Park, eventually

sued the city, challenging the EIR and the HP permit.

The city prevailed at the trial court level.

The case was appealed to the 6th District Court of Appeal.

The city prevailed on the CEQA challenge, but lost on the Historic Preservation Permit

challenge.

Ultimately, the Court of Appeal decided on its own, without cited legal authority, that

significant and unavoidable impacts under CEQA must equal a determination of detriment

under the City's own Historic Preservation Ordinance.

In its opinion, issued on March 12, 2024, the 6th District stated, quote,

We do not view the City's proffered interpretation of the ordinance infused with overriding discretion

that appears nowhere in it as correct.

What's more, the City has the authority to amend the ordinance if it so chooses to expressly provide

for overriding discretion currently lacking."

The court goes on to say that Historic Preservation Ordinance, quote,

in its omission of a provision parallel to CEQA's statement of overriding considerations,

the ordinance does not include a discretionary override once detriment under the ordinance,

however assessed, is found.

Following this language, City staff sought to provide for such an overriding discretion,

SEQA's provision from Historic Resources Code 21081B to create a parallel provision in the

Historic Preservation Ordinance.

So here we are, currently with an Historic Preservation Ordinance that allows the decision

maker to weigh evidence, consistency with the Secretary of Interior Standards, consistency

with the general plan, public benefits, and then decide whether or not it's a detriment,

to now having to create a provision

to specifically allow for overriding discretion.

I just wanna make clear that we're being forced

to codify a provision that we believe

already exists within our code.

Because if a project has significant

and unavoidable impacts under CEQA

and requires an overriding statement,

shouldn't the decision maker be able to weigh

all the evidence and benefits and decide

whether there is a detriment or not

through written findings

under our own historic preservation ordinance.

Unfortunately, a common reading that CEQA impacts

somehow equal detrimental impacts under our local ordinance

led to the city paying out over $650,000 in attorney's fees

paid out of our city parks trust

just to create an override provision

that virtually already exists.

So this amendment's not gonna lead to any changes

in preservation or new impacts.

It's just gonna clarify what we believe already exists.

Thanks.

Before I turn it over to the commissioners,

I would just like to ask, did anybody

have any ex parte communications in relation to this item?

Can I please the public comment?

Oh, can I get this?

Yes, we will.

We can move on to public comment first, then.

I have about a dozen cards here.

We'll have two minutes each.

let's start with please line up behind the podium or on the stairs we'll start

with Suzanne st. John Crane Sally's Zarmitz and Michael McDermott

good evening commissioners thank you for your service and I really appreciate the

city attorneys a very thoughtful explanation of the history. Many folks in

the audience tonight live that history and have been working on this project

longer than it took the SAP building to get built, 13 years. The lawsuit that

brought us to this moment resulted in the Court of Appeals telling the city to

make changes as was stated to its historic preservation ordinance in order

to be completely transparent about the authority you already have. And so the

city is doing exactly that I just want to encourage you to not get distracted by

manufactured concerns or save the st. James Historic District I this does not

give the city carte blanche to go bulldoze buildings this is required based

on a lawsuit that happened so that we can move forward and I just want to

share that as of the end of August the city of San Jose the Levitt Pavilion of

San Jose and the Levitt Foundation signed a contract that was eight years in the

making. We have a deal. This is moving forward and we're in the middle of campaigns. We are

so excited to be respectful stewards of this park and to actually kickstart the transformation

that was envisioned by the city 10 years ago now and to be a thoughtful, respectful contributor

to this historic park. So, commissioners, I just want to thank you again. Let's move

the language forward that is not that uncommon when you look at other big cities and so that

we can move our city forward and be a contributor of over 14 million dollars of economic activity

we predict to downtown San Jose make it safer and kickstart kickstart the transformation thank you

thank you next we have Sally Zarmitz

hi I'm also speaking this evening with PACSJ I not to be too mushy but I was thinking driving

down here the first time I stepped foot in downtown San Jose I had grown up in the Bay Area I was a

young architect I'd lived in Boston I'd lived in New York City I came back to California and

somebody invited us to dinner at Gordon Biersch right on San Fernando. It was a

beautiful summer night and we could sit in that warm patio, you know, and I

thought I had no idea this existed. I had no idea these beautiful buildings

stood here. And so, you know, I credit the preservation ordinance for the fact

that those buildings were there when I first went there and that they're still

there today. And so PAC has been watching these ordinance provisions very closely. The

court did say that the city could make these changes for public buildings. They could specifically

make provisions to make overrides for public projects. And that's really what we're asking

you for. Go ahead and do that. Cities need to evolve. They need to, you know, live and

breathe. They're additive. And so it makes sense to do this in order to allow the project

to move forward, but not to weaken the whole ordinance.

So we ask you just to put the word public in that provision

so that this applies to public projects, much as you see

in like Pasadena, for instance.

And that's it.

So thank you very much for your consideration.

Thank you.

Next will be Michael McDermott,

and then we will have Sean Atkinson, Sally Schrader,

and Alexandra Urbanowski.

Good evening, Commissioners. My name is Michael McDermond. I've been a San Jose resident for over 30 years, and I've lived in District 3 for the last 15.

I'm here to urge you to recommend the Historic Preservation Ordnance Language as written by the Planning Department and City Attorney's Office.

This clarification, I believe, is essential to move forward with the Levitt Pavilion project in St. James Park.

As the Court of Appeal already confirmed, the city has the authority to balance a project's impact against its broader community benefits.

This ordinance simply codifies that authority, ensuring transparency and fairness in evaluating important civic projects for our city.

I'm also here to speak in support of the Levitt Pavilion.

The Levitt Pavilion represents over a decade of collaboration between the city, the Levitt Foundation, and the Friends of Levitt Pavilion San Jose.

This project will transform St. James Park into a vibrant community gathering space.

And I think the numbers tell a powerful story.

According to the San Jose Downtown Association, 92% of park visitors feel safe when there's an event in the park,

but only 30% feel safe when it's empty.

Activation equals safety for our citizens.

Beyond safety, the Levitt Pavilion will generate $14 million in economic activity in downtown,

provide paid performance opportunities for 40 to 50 local artists,

and offer free access to schools and community groups that want to make use of the pavilion once it's built.

St. James Park deserves to be a place where San Jose gathers, celebrates, and feels safe.

This ordinance update clears the path for that future.

I respectfully ask you to recommend the proposed language so that this long-awaited project can

finally move forward. I want to thank you for your time today and for your work for our city.

Thank you. Sean Atkinson.

Good evening, Mr. Chair, fellow commissioners. I'm Sean Atkinson, Executive Director of the

St. Clair Historic Preservation Foundation.

And for the record, that was 400,000, not 650,000.

And that was damages placed at the Court of Appeal

given to the attorney who acted as the attorney general

in finding that the city violated the law.

We contend, let's see, we contend the complex amended ordinance

will remove long-time city protections to historic properties.

That reduction creates a fair argument that the revised ordinance

will result in indirect significant impacts, and so must undergo an EIR process to comply

with CEQA.

An addendum is intended only for minor technical changes to a certified EIR.

The proposed amended ordinance eliminates protections to properties listed on the national

and state level contrary to CEQA.

The idea that the ordinance will simply mimic CEQA is not supportable.

If the CEQA process is sufficient, the historic ordinance would not be needed.

Further, CEQA requires consideration of feasible mitigation measures and alternatives while the proposed new historic ordinance does not.

As Justice Williams wrote in the March 2024 Court of Appeal ruling against the city of San Jose, and I quote,

it's true that our reading means that historic ordinance offers more protection to historical resources than CEQA affords,

but there is nothing absurd about that.

Municipalities could exercise that authority and may choose to grant themselves the power

to afford more protection to historical resources when not inconsistent with the state and federal

law.

Indeed, this ordinance would provide little more than redundancy and superfluidity if

it is operated in complete parallel to CEQA and afforded nothing over and above CEQA protections.

I therefore ask you to vote no on the amendments and CEQA addendum to the San Jose Historic

preservation ordinance thank you very much

Sally Schroeder hello my name is Sally Schroeder and I've been a resident of

San Jose for over 23 years and I'm currently on the board of Friends of

Levitt Pavilion San Jose and I just wanted to let you know that I I frequent

St. James Park a little bit, but when we started putting on concerts there for the last four years,

being in the park, sharing the lawn with our other San Jose residents, you really get to appreciate

the historical preservation of all the buildings surrounding St. James Park, and for us to bring

that to all residents of San Jose. And I survey our audience, and we have over 80% of our attendees

are from San Jose and the others are mostly from our surrounding communities, Campbell and Santa Clara.

So really the park of St. James is for the residents of San Jose to appreciate

and to appreciate the historical nature.

So I really want to encourage you to recommend the HP ordinance changes as recommended.

Thank you so much.

Thank you.

Next we have Alexandra Urbanowski and then we will have Phil Mareska, Ben Leach, and Randy Zechman.

Hi, thank you. Thank you for your time tonight and for all your service to the city.

I'm Alexandra Urbanowski. I'm the CEO of SV Creates.

We serve as the Arts Council for Santa Clara County,

and I'm speaking in support of the staff recommendation related to the ordinance

amendments which will allow appropriate City Council oversight and discretion

related to historic preservation and community best uses and interests and

benefits. SV creates funds and supports arts groups and artists in San Jose and

beyond including many of the local arts groups that we hope will have the

opportunity to use the Levitt Pavilion once it's up. We're strongly in support

of moving forward with the ordinance changes so that we can build and open

the Levitt Pavilion in San Jose. The Levitt Pavilion will provide more access

to music for more local residents, it will provide opportunities for work to

local artists, and it will preserve and activate our public park through arts

and entertainment. I'm also a resident of downtown. I live within a couple of

blocks of the park and I've been to the concerts that Levitt has done over the

past summer and really really just felt that joy in being in that park as a

downtown resident this is a game-changing project whose completion is long overdue

I encourage the Commission to move quickly forward with the amendments

required to advance the project thanks for your time

thank you good evening commissioners and staff thanks for the time I'm here to

urge you to accept the staff recommended changes to the language of the historic

preservation ordinance my name is Phil Mareska and I'm the current board chair

for the local nonprofit Friends of Levitt Pavilion San Jose.

I also live and work in the St. James neighborhood,

and my company has worked on scores of events and activations in St. James Park over the years.

I first came to San Jose 40 years ago to open a business on St. James Park.

Throughout the decades since, I've seen numerous master plans, big ideas, lots of language,

trying to make this park into something for everyone to enjoy.

but plans rarely took hold and this historic park continued to deteriorate in community activity and in reputation.

Tonight, I'm here with my other friends and neighbors because the city has invested millions of dollars into a beautiful new plan,

a plan that not only respects the heritage and history of the park,

but creates something new that will bring the vibrancy and activations needed to transform this long-neglected amenity.

We need your help to make that happen.

You're here tonight to approve corrected language that a higher court requested in order for

this beautiful new plan to move forward and to bring to my neighborhood the safe, vibrant

park that it deserves.

This small change in language should not be feared or rejected based on stories of the

terrible things that could happen that's too short-sighted for the vision that we've already

invested in this park, a clear vision of the proven joy we bring to the community.

The nonprofit Friends of Levitt Pavilion are the future operators of this free music venue

and future stewards of the Grand Park.

We can commit to being good neighbors to all our neighbors, including those that scream

in our face and those that struggle to accept change, even when change is executed intentionally

and respectfully to benefit the entire community.

My history with St. James Park says that if we don't make the right changes this time

to the language, and otherwise, we may never ever get this chance to change the park.

Thank you very much.

Ben Leach.

Thank you.

Good evening, Commissioners, Chair.

Ben Leach, Executive Director of the Preservation Action Council.

I really appreciate the summary from Ms. Edwards and Mr. Zazueta.

This is a very complicated issue that I don't envy your trying to wrap your head around

in the context of this sounding like it's really about pro-pavilion or anti-pavilion.

PACSJ, for the record, was not opposed to the pavilion.

We are not a party in that lawsuit, but we are very concerned about the unintended consequences

of an overly broad amendment to the ordinance that the Historic Landmarks Commission spent

two sessions over two months highlighting their concerns and recommendations to tighten

up the language that still allowed the city to proceed to address the court case that

they were identifying.

We really do believe that the language as proposed addresses far more than the court

case suggested.

There is language in the court case that acknowledged that the city has the ability

to write any kind of ordinance they want.

We acknowledge that.

We just think that the historic preservation ordinance is an inherent good for the city

and should be strong enough to allow for the preservation of the buildings that City Council

has so designated are worthy of preservation.

By creating a second override that's in addition to the hardship ordinance which has worked

that applies to both public and private projects, we're just concerned that it opens up uncertainty

and unpredictability about people's expectations of what a better thing that could be in the

place of a landmark. There are reasonable benefits of matching and override with CEQA,

but I really want to emphasize that CEQA is a different process, and this is an ordinance

that is intended to protect city landmarks, not the entirety of historic resources that CEQA addresses.

Thank you. Next we will have Randy Zekman and followed by Norman Klein, Dan Orloff, and Michael Brio.

Thanks, Commission. I'm Randy Zekman, and I've been a resident of this city for more than 25 years.

I'm a business owner, employee of about 100 people in here in this town with multiple different companies over the years.

and about 25 years ago I actually helped found an organization called the Downtown Retail Advocates

that's main mission was to have a vision for the growth of downtown San Jose.

And over the years we've struggled to really grow it to do all the things that all these people you hear talk about doing.

while I'm not an attorney and don't and don't understand all of the all the legal parts that

are needed here what I would say is this city has been been given a gift and and we shouldn't be

looking a gift horse in the mouth over some small language that is there to really help the community

and help all the people and help what all of us really want a park that's been generally under

utilized and and really we have an option to we have an opportunity to do something even grander

So I hope you will approve the new language that will help support that vision.

Norman Klein.

Good evening, Mr. Chairman and Planning Commission.

My name is Norman Klein.

I'm actually a former chair of this commission.

I have been a supporter of this project for, well, the beginning.

I didn't want to come out tonight, but I got an email a couple of days ago from a source that said,

come out and fight City Hall. This is a power grab.

And I went, hmm, this doesn't seem like a power grab to me.

This seems like more of a grassroots movement.

Clearly, it needs City Hall support, but it's not a power grab at all.

You already have that power to do what you're doing.

And is this going to happen? It's going to happen because of a wide, broad base of community support.

It will not happen unless there's a huge community support behind it, and there is.

Second, it's a little bit humorous to me that the opposition is a historically powerful special interest group.

That they're not fighting City Hall.

They didn't barely control City Hall.

Some would say it was City Hall.

In those smoke-filled dark rooms upstairs in the second and third floor.

I hope those days are gone.

We would also not be here if they had sued.

If they just simply let it go, we wouldn't be here changing the ordinance that we have to do.

I grew up around that park, shining shoes, selling newspapers.

I'm saddened all those years that the steward of the park, the city, did such a poor job.

Think of it.

Moving a historic fountain away from the center, putting basically a freeway down the middle,

and then on top of that, putting a railroad through it too.

So if this is a historic building, many people would say it's not historic anymore.

It is, of course.

Is the ordinance perfect?

No. I would, I would set some changes.

HLC had some good recommendations.

I would recommend public be put into it.

That makes sense.

This is for the public good, and the public resources makes sense to me.

But I could support this the way it is, if necessary,

because the overriding benefit is so great.

Again, think of the Golden State Park,

Golden State Park without the tea garden,

the New York Central Park without the ice skating rink,

the Louvre without thank you thank you very much Dan Orloff good evening I'm

Dan Orloff a San Jose resident for more than 40 years I've been promoting live

music in downtown San Jose whether it be music in the parks and as a jazz

festival Fountain Blues and Bruce festival San Jose Symphony in countless

clubs in downtown and throughout our city i know what it takes to activate public spaces with music

and culture i strongly urge to move staff's recommendation that you move staff's recommendation

forward tonight these ordinance updates will modernize our preservation framework and allow

transformational projects like levitt pavilion san jose to finally move forward after more than

a decade of planning review and overwhelming community support levitt pavilion represents

a once-in-a-generation opportunity to reimagine St. James Park as the vibrant heart of our city,

a place where music, culture, and community thrive together.

It's designed with deep respect for the park's historic character

and will serve as an excellent steward of this treasured space.

As founder of San Jose Rocks, a nonprofit celebrating our region's musical legacy,

from the world's first radio station in 1909

to being home to Los Tigres del Norte, Stevie Nicks, Creedence Clearwater, the Doobie Brothers, the Grateful Dead, Smash Mouth, the list goes on and on.

I know that San Jose has been a city where music and innovation meet to bring music to the masses.

What better way to honor that legacy than by activating our most historic park to ensure today's and tomorrow's rock stars have a stage.

By recommending these changes, you help unlock the full potential St. James Park

And ensure that San Jose keeps rocking for generations to come who knows we might just incubate the next TV nicks. Thank you

Next we have Michael Brio followed by Mike Sauterin

Testing one two testing one two

Hi, my name is Michael Brio

I'm an urban planner, musician, and a longtime San Jose resident.

I'm here tonight as a board member of the Friends of Levitt Pavilion San Jose,

and I'm here to urge you to approve staff recommended changes

to the Historic Preservation Ordinance as it relates to public projects.

The recommended changes are a needed step for the development of the Levitt Pavilion

in San Jose and St. James Park.

St. James Park is one of San Jose's oldest historic treasures however it is

often unused, underutilized, and neglected. One of the challenges of St. James Park

is that there is no reason for many people to go there. It needs a use that

will bring people to appreciate this treasure. The Levitt Pavilion is such a

use and will act as a catalyst to revitalize this park. By attracting

people up to 50 to up to 50 free concerts a year to the pavilion it will help build community

connections and pride in san jose and in its downtown the pavilion will also support the

economic vitality of downtown by bringing in an estimated 14 million in spending annually

contributing to thriving restaurants and small businesses furthermore the pavilion will contribute

to a healthy live music ecosystem giving local musicians an opportunity to showcase their music

in a city that currently has limited opportunities to perform thank you in advance for your support

for the proposed changes the historic preservation ordinance for public projects

such that projects like the the levitt pavilion can move forward thank you

Mike Sadegren, president of the Preservation Action Council.

I'd like to start by saying that we've spoken with all the parties involved.

It's heartbreaking that we're in this situation where we're fighting amongst ourselves.

I think of the image of the East Wing of the White House being torn down and thinking that

there was nobody that could stand in the way of that.

And I don't think ordinance ever stands in the way of bad decisions because it didn't

in that case, but that's where we are.

We're looking at changing something

that was established 50 years ago

to make sure that the structures

that the city has recognized as historically significant,

you know, have some protection, have some guardrails.

We love our city, we love activation.

As Ben Leach said earlier, we're not opposed

to the activation that has been proposed

via the Levitt Pavilion,

But that's not what we're talking about today.

We're talking about making a legal remedy

to enable a single project to go forward.

I would encourage you to look at Sam Liccardo's memo,

specifically for two words,

one word that is highlighted,

which is public serving projects.

I would strongly encourage you to look at this

with the distinction between a public project

and a private project.

The, we believe that the current hardship exemption remains the most appropriate mechanism

for weighing the impacts of privately initiated projects.

And you shouldn't get swept into that.

The ICON-ECO project, the Realty Building project, the State Meets project, the Gateway

Towers project were all approved by a statement of overriding consideration using that mechanism.

So please distinguish between public and private projects as you look at this.

If you are not clear, as the HLC was not clear, and there are experts in the city, please

defer this decision and make sure you're clear.

Thank you.

Is there anybody else that wishes to give public comment on this item?

Please come down and state your name.

Hello, my name is Carmen Gaines. I'm a lifelong resident here in San Jose. I have several

affiliations including the Arts Commission which recently passed a motion this Tuesday

to write a letter in support of the Levitt Billion project.

I have the privilege of living close to here,

so I was able to tune in online before arriving in person

to write public comment,

and I learned a lot in this session so far.

I do also support PACSJ's push for specificity

regarding the public project nature of this ordinance

and the change,

because I do also have those same concerns

of what could happen after,

but I also want to be clear in my support

of the Leavitt Pavilion project.

Thank you.

Could you please state your name for the record again?

Hi, my name is Elizabeth Agremont-Justignano,

and I live, I would say two blocks away from St. James Park, and I pass by every day on my way to

work. And so I think the idea of having music in the park is exciting. And I do want to like echo

the importance of being specific about if this is public serving. I think that another important

thing that we're that maybe hasn't been so much discussed in terms of revitalizing St. James and

or the downtown community is really making sure that we're serving everyone who's currently there

including our unhoused population so making sure that we are inclusive of resources that can

actually support them as well too is really important because we can't just have in something

new and force out people who are already there, especially the people who are struggling the most.

You know, we can't just criminalize and put up zones and prohibit people from being there when

they're people, like where are people supposed to go? And so I think that it'd be really important for

the inclusion of the intentionality inclusion of them in terms of being able to have a space

that works for everyone. Because yes, I love music and it seems like an exciting thing that can happen

and bring a lot of energy to the area, but I also am very considerate about the people who are

suffering the most, the people who are currently on the streets in the park, right across the street

from the park, the people who are in need. And so I think that when we have projects like this,

it's really important to have them in mind and think about who we might be displacing in the area

when we're going to do these like revitalization projects. Thank you.

Your comments very much appreciated. I actually saw a presentation on the pavilion and when asked,

when the presenter was asked what would happen with the homeless people, the presenter answered

well I hope that they get up and dance with us.

And I found that personally refreshing in today's environment.

Is there any other public comment?

All right, seeing none, we will turn it over to the commissioners.

I did want to mention that I did have ex parte communication

with the representative of Friends of Levitt Pavilion.

So just for a record.

Did as well specifically with Susan st. John Crane

In the context of that conversations was just be hearing whatever she had to talk about

Commissioner Oliverio

Thank You chair

City attorney

I'd like to give you a scenario and if you'd be so kind as to try it, you know, of course

this is just coming off no preparation here, but

William McKinley a president not always popular by some and some communities want to remove their McKinley statue and that statue exists in St.

James Park San Jose if that were to come forward that which would that trigger CEQA

to if there's someone wanted to remove it with the City Council to get CEQA study or something like that

so this is a speculative question well it's a very realistic question and yes and so

the ordinance now versus the modify the modifications would it treat that decision

differently sorry so if you could rephrase so it would it treat what situation the removal the

that's right statute let's say how would it be different compared to today's statute versus

what's proposed and if you want to think about it and come back and answer it that's fine i just

wanted to ask so we're talking about a historic preservation permit to remove

the statute and they would it depends on I guess it's a public project I guess it

would be from the city right because we own yeah the city would be the applicant

we would be the ones removing it and your question is whether or not we could

do that now would it be a detriment to so would there be a finding of detriment

because so it wouldn't just be a count I'm assuming based on what I've heard it

wouldn't just be a council action to remove the president McKinley statute

from st. James Park it would trigger an EIR or a sequel sure that'd be sure there

would be an environmental analysis of the removal demolition whatever needed to

take place okay and but separate and apart from that's sequel which is

totally different than what the HP permit would require right so HP permit

it would be up to the decision maker to decide whether or not that is a detriment

to the historic resource so where the historic districts are yeah so you're

saying like the workflow the decision process the hurdles to removing a

historic statute from the park would be treated no differently today than this

proposed wording well so what this is doing is adding specific language that

if the decision maker wished they could use that language as an override for

example and it may not be any different than the findings they would make now

under let's say that they made a finding the decision maker makes a finding for

the HP permit that says this is not a detriment even though sequa says that

it is a detriment right so same kind of scenario with this added override

language the decision maker could utilize that language if they so wished to say

here are additional benefits right or let's weigh these other factors which

is social technical legal etc all those can come into play now but we've been

asked to have a specific override provision inserted into or that

discretion inserted into our HP permit so I believe we could do we could do it

now with the same findings but I don't know if that's quite answering what

you're no I think you're getting I think you're getting there I mean I'm this

just you know because it's been people been talking about it that and I thought

well prior to this I didn't sort of realize that the city would actually it

couldn't just succumb to public opinion to remove the statue it would have to

take a step of since we are in a historical overlay area whatever the

correct term is and then you've got a statue that's been there for you know

decades don't remember when the installation was there would be a level

of study or something that would have to be done so that's I guess my just you

know I'm not a fan of removing statuary by the way but I I understand that this

topic even though it's not st. James as a city-wide has certainly been about a

potential project and then I came to think about the statue and I just was

trying to sum up would this ordinance treat that historic element statue in

the park differently would it would it create a different process and again if

you want to think about it you know it's just it's it's laying out a different

tool to use right so and and the tool that I already I already believe is

there, jerked in, court of appeal disagreed. So that's what we're doing is

we're just spelling it out saying okay here it is right in black and white so

that that's that's what this is. It might simplify the removal of that statue that

the new word. No because the findings would still have to be researched and

in serious they're not just willy-nilly I'll just do an override and that's all

we have to do. No there's still findings involved it's still a serious analysis

It's not just checking a box. Okay. It's an override bomb done. No, that's not true

So then staying on that because again, this isn't a project. It's a ordinance citywide

It sounds like then

The or the proposed ordinance would make the removal of that statue easier

It could

Depending on on I mean, let's take statue out of it. Could it make any

issuance of a detrimental impact to let's say there's any application for

historic preservation permit and there's a detriment right city council planning

Commission director finds a detriment they can choose which way they want to

go right they can say okay we're gonna do an override or we're not gonna do the

override so they can say it's not a detriment or they could say it is a

detriment and we're gonna do the override does that make sense yes and no but

I again I didn't prepare you for this question it just kind of came up but it's

something very specific of some others think of some other examples yeah just

because people have talked about it and I've you know it's something uh anyway

it's it's it's been brought up and it can be done and I'm just curious how this

ordinance would reflect on that because at the outset it's not about maybe some

of the speakers came tonight about specific projects this is citywide so

yeah I don't think it would be I don't necessarily think it would be

easier it just clarifies the process a little bit more okay thank you appreciate it thank you

Commissioner Cantrell okay I come to this with two minds this is difficult stuff and I think

that's why we're here so we have to come to some sort of decision I have to tell you though I always

I always want to know why.

Why does the Gentleman's Club across the street from the park want to block this?

I guess we can't ask at this point if you, actually, yeah, you are, he's the attorney

for the Gentleman's Club?

Is it appropriate to ask him a question?

Yes, you can ask.

I don't believe he's the attorney.

I think he represents the St. Clair Foundation.

Okay, that's good enough for me.

I assume they're the folks who have been fighting this.

Sure.

So your question again?

So why is there a fight over this specific use of the park?

Or any use of the park?

I don't know if you fight any use.

And that's a great question from you and from the commission here.

If you read the EIR and you saw the unavoidable impacts,

you'd see from noise to the materials they're going to use,

to the fact that it's going to be built on the meandering pass,

to the destruction to a lot of different things from trees to other issues in the park,

then you'd kind of see if we didn't step up being right 75 feet away

and just say, where's the compromise?

Where's the, there was no, they'll say there was public hearings.

You'll say you had juries and you selected things,

but you never once brought the people, the condominium next door to us,

the people that are right on the park other than the very Reverend Byrd you didn't bring us in you

didn't say how can we solve some of these problems that's what the city of Pasadena did when they

took over their little historic downtown and revitalized it they met they met in ballrooms

they had big fights but they worked it out together and so we're here because of the impact

to a nationally recognized historic building that we have.

We're here because of the impact to that park

and the fact that there's not even a back on the pavilion,

that it goes, that their own,

if you look at the experts that did the EIR,

although the attorney will tell you,

we just disagree with the findings,

they were your findings.

And those historic experts said

that the noise would make it

so the people living in that condominium

can't open their window on a summer day.

And they were here at the last Historic Landmarks Commission meeting,

not your meeting, and they spoke of just that.

The pounding, the sounds, the things like that

that destroy the historical ambience.

We've been there since that building was built in 1891.

My building's full of developers, business people, families.

I do weddings.

I do, you know, baby showers.

I've done six of them in the last year.

We're not what people want to describe you.

We're just a private club.

And you know what? We are one of the longest employers in San Jose. We've been employing

people since 1888. And all we've ever said, if you read all of our briefs and you read our petitions,

we just want to compromise. There's people with Levitt Pavilion that'll tell you,

hey, we're just going to do events for about 2,500 people. And we're going to build 11 stalls,

right? That's 227 people per bathroom. Levi's Stadium has 65 per person. I mean, 65

so for every bath you know anyways they have for every 65 people they have a stall right

so what does that tell you they're going to do I've been to MacArthur Park I've been to some

of these parks I traveled with the exploratory committee with this city MacArthur Park smells

like urine you know why there was two urinals that's it so what we're concerned about is where

we're going okay and okay okay so has there not been an opportunity for you to have conversations

with the organization trying to locate the pavilion there

in order to seek more restrooms or whatever those concerns are?

I don't think the conversation needs to be with the vendor.

I think the conversation needs to be with the city.

And we've asked the attorney, we've asked our council,

that we need to sit down and talk.

But to talk with the friends of Leavitt, it's been one-sided.

I mean, we're not going to go there because they're signing.

You heard them speak tonight.

that we weren't supposed to speak about the Levitt Pavilion.

We were supposed to speak about that ordinance

that protects all these historic assets.

And now you're going to diminish it just to get around us.

And I'm telling you, what that court also said

was to be ready for a challenge if you don't do it legally, right?

That's what Bromberg said.

So if you read that ruling by the Court of Appeal,

which I think sometimes was diminished by the attorney,

it was a strong ruling.

And there's a lot of things in there.

I did have that specific question, but I do want to, I'm curious because you said some of your members are developers.

Yes.

And I'm sure with the, the club's been around how many years?

Well, since 1888.

Okay, so very long time.

Very long time.

So some of your members probably demolished more significant things along the way.

Well, I think if you, if you call it neglect and demolish, I think that's what they're doing in the park, right?

So I don't know if you want me to compare apples to apples or just say

No, I just want to know

Honestly, I couldn't answer that

It's very prescriptive

I'm right next door to a church that hasn't been demolished

That sits there blighted, right?

Next question

The members of your club are generally fairly well off, I would assume

I would say it's a fair assessment to pay dues and to join a private club

I think it's 35,000 membership

Excuse me?

Is it 35,000 membership initiation?

No.

Then membership fees?

I can't comment about it.

It's confidential.

It doesn't matter.

Because I think if your foundation was really concerned about that park,

your tenancy there for so long,

it seems like you've had ample opportunity to do more.

We've done a lot.

We've done a lot with our community.

It looks pretty similar.

I know.

One of your members, actually, oddly, which was a real strange coincidence,

to me, was Mr. Hart, who used to run the apartment stores,

whose son was murdered.

Right.

And the two men who murdered his son were lynched in that very same park.

That's right.

I would think he would have raised the park by now.

But at any rate...

They took the tree down anyway, so.

I understand.

I understand where you're going.

It's interesting to me.

So I'm not sure...

Our members would like to come up with a compromise

to build a park that everybody can use,

and the people around it can be happy and that there's not 300 shows a year.

And, you know, because you'll hear about the 50,

but they want 300 shows a year and up to 5,000 people.

When John Cicerelli and the city department said it can only accommodate 3,000,

but yet they signed an agreement with Levitt Pavilion

that they're going to have shows for 5,000.

So there's flaws in the plan.

But when you're that close to the development, you don't see your own flaws. Right.

So I really appreciate it.

Thank you.

Because it does give me more perspective.

Right.

I really appreciate your time.

Thank you, Commissioner.

And your willingness to come and speak to me about that.

Thank you.

Okay, thank you.

All right.

All right.

My other concern is I hear cultural concerns,

but I'm concerned about what culture we protect.

this park has had a dubious past for Chinese and Japanese Americans.

What culture are we protecting?

I don't understand the argument,

but I am concerned on my other mind about a slippery slope.

given this kind of room for decisions to be made in rooms that most of us are not in concerns me.

I think I'd like to know what's the next likely project that this would impact.

Do we have any idea?

That scares me.

I'm sorry.

I'll answer.

I'll answer.

Go ahead.

So it shouldn't scare you.

I'll tell you that.

But I guess I want to press on.

That's why you're here.

That's why the community is here.

That's why we have the HLC.

It's why we have a historic preservation officer.

It's why we have to inform our decision makers.

of the right decision. The discretion's there, right? It's there. And are we talking about

taking it away? Or are we talking about informing people to make the right decisions,

right? So that's what it is. It's about trust in our decision makers. If they make a mistake,

you vote them out by limiting their discretion, which they have. But are we taking that away to

say, oh, we don't trust you because you're going to overreach and you're going to do bad things.

So, I mean, I'm just saying.

I know, but that's not a good argument for me.

So I don't know what the next project might be, but it's up to all of us to instruct the decision makers on the correct approach.

Well, I can tell you, sometimes they do more harm than they can recognize.

Specifically, I'll give you an example of the requirement to shelter and the impact it has on the black community,

which is already marginalized and most likely to be in prison here five times more likely to be

arrested so they make decisions that can harm entire communities so I'm not sure I want to

just leave that decision in their hands because it's often too late once the decision is made

So that's my concern.

And I'll render my vote at the end of all of this, but I do want to say I'm concerned.

I think we should put some guardrails up because we don't, unless you know, I'm sorry,

you were going to speak a minute ago about the next likely project.

Unless we understand the downstream impact more clearly, it's hard to just say yes.

while at the same time we need to be careful about the desire for nostalgia that we live within in this city

that has caused the significant impacts through redlining and other processes that exclude entire segments of our community.

So we don't want to just say, well, since you're across the street from the park, you own it, you make the decision.

because culturally it's more important to you than anyone else.

That's not. We live here together.

At the same time, we should not be giving carte blanche.

We have to be careful,

because we don't know what the next likely project is.

We should be very careful,

because decisions are made by bodies elected,

and they're not always good.

Thank you.

We'll move to Commissioner Young followed by Commissioners Borossio and Bigford.

Thank you, Chair.

I have a question for staff.

So the folks that are concerned about maybe the overly broadness of this, they talk about

public versus private.

I know I think one of the speakers suggested just maybe limiting it to

public projects can you just talk a little bit about what discussions staff

had around around that issue we basically are processing the

recommendations of the historic landmarks Commission and the Planning

Commission staff has has not had a lot of discussion about this I don't know

Daniel whether you want to chime in yeah I mean I think the so inserting public

into this language is a policy decision not something I'm totally neutral to it

It's not part of this.

I think we could do that.

However, it's up to staff to decide whether or not,

which approach are we going to take?

Which recommendation are they going to put forward?

Are they going to say, okay, well, this is a public project,

so we think there's a big benefit to the public.

There's an easier way to say this isn't a detriment

because it's weighing more on the side of being a public benefit,

whereas if it's a private we may steer them towards hardship say we don't

believe this deserves an override we're not going to support an override but we

will support a hardship finding but it's up to staff really to guide that

conversation but again it's a policy decision it would be something that you

could recommend to insert public but it's also I don't know if we want to you

know, foreclose. I don't know, I can't think of a scenario where there would be a private

situation where we would want this override, you know what I mean? I don't know what I'm

saying. It's just that I think we're treating them both equally and leaving it up to the

professionals to decide how to recommend a course of action given the particulars of

the project, be it public or private.

Great, thank you. That was a very good explanation.

So, when I read the staff report on this, I found it extremely confusing.

And one of the first things I was trying to figure out is, who is the St. Clair Historic Preservation Foundation?

I mean, that to me sounds like a foundation, like a large group of people.

That's not what it is.

I'll quote from the San Jose Inside.

December 4th, 2020, the foundation is an alter ego of the St. Clair Club,

a men's only establishment, and the most elite private club in San Jose.

So let's just be honest about who they are.

And I'm, I appreciate Commissioner Cantrell asking the question of why.

Why were they opposed?

I have a theory.

I think they're opposed because they have a really expensive private club and they didn't

want a bunch of people in the park playing music, right?

That makes the most sense to me.

And they have a lot of money and power so they could force the city to spend $600,000

to build a pavilion in a park that would make it better, right? I don't I don't get it. Well,

I do get it. I understand why they did it. So, you know, I think to me what it comes down to is

we have a potentially beautiful park. I like to spend time in St. James Park,

But, you know, we use the word activate. I like that word because what it means is to make a place more lively, right?

And what's the best thing to make a place more lively? More people, right?

I think one of the challenges of St. James Park right now is there's just not a lot of people down there,

at least during the day when I'm there. So anything we can do to bring more people to the park is a good thing

because if people come to a concert they'll say wow this is kind of nice you

know tomorrow I'm gonna bring my kids down and run around whatever so I guess

where I'm at on this is that I do not have a concern that this language will

create an overly broad situation we have such a process for looking at historic

preservation we we have an ordinance we have a commission you know much like our

Commission we have a historic preservation Commission we have staff we

have the Planning Commission and it ultimately the City Council that's a lot

of steps and I think it's a lot of transparency so you know I I'm

certainly in support of this of this recommendation I think we need to get

that pavilion built I'm really looking forward to going to a concert down there

so I'm gonna make a motion that we approve the staff recommendation and I'll

second second from Commissioner Cowell thank you chair next we have Commissioner

borosio

perfect thank you question for staff if this moves moves forward when would this

show up at City Council for for their vote the record of the Commission and

the historic landmarks Commission will be presented on December 2nd okay so a

a couple Tuesdays from now.

Okay.

So I think for everyone here,

that would be the next stop, right?

Because we're advisory, right?

So we're gonna weigh in and advise city council,

but the ultimate decision makers

will be making that decision on December 2nd.

And then the other one,

I'm very unfamiliar with the St. Clair group,

but we can find a lot of opinions about groups.

So I just, me personally, I would

like to learn more about every group.

But I was, I was, it hit me where we read,

an article or a piece of an article about a person who came or a group.

And it's a slippery slope for us to pick the article, pick the word, pick the language

that we put back out there.

I think that discourages people engaging with us.

If it's true or not true, I don't know.

but I think we have to be careful in what we put out there,

especially when we don't have an exchange.

Where they, you know, folks cannot clarify a certain editorial or certain article

and how true or not true that is.

so I'm sorry that I saw that today but again back to the business at hand so

December 2nd would be the next stop thank you next we'll go to Commissioner

Bickford followed by a Commissioner young I want to just address something

that Commissioner Young said earlier, and wonderful to ask the question about public

versus private and why we might or might not want that separation.

I just want to go on very clear record as saying I'm opposed to that separation.

I think that the city needs to give equal treatment to properties whether they are privately

held or publicly held.

as the steward of a private club that's almost as old as the St. Clair,

not in downtown San Jose, I would want the ability to bring this with this wording

and not have a different standard applied to me as a private club versus a public entity.

So just a statement, and I'm supportive.

I'd like to call for the question.

Oh, sorry.

Do we have somebody else who wants to speak?

I retract that.

Sorry.

Commissioner Young.

Yes.

Okay, thank you.

Thank you, Chair.

I just have a question for the audience.

How many members here are members of the St. Clair Historical Foundation?

Could you raise your hand?

Okay, my point exactly.

So, Commissioner Borossio, in relation to your comments,

normally a foundation has, like, many people in it.

we haven't had anyone here testify that lives in the area of St. James Park that

they're against the pavilion. None. And I would think when normally when we have

projects like this a lot of people come out that live in the neighborhood. We

have, excuse me it's not your turn to speak. So we have one person that's

really telling right so I just want to point that out thanks

go to Commissioner Borossio first right for me it's not the composition and he

sent this one it was it was the reading of the article and reading the alter

ego something something or other and I mean who's the author who's the editor

what's the news source what's the evidence I mean it may or may not be that

I don't know but I think just to say it out there at the Commission level I

think we can debate on the ordinance change on the language and not really

bring in that kind of those kind of statements. I think isolated it kind of

sways people and again it doesn't allow us to engage and to look further into

that where I don't think we need to discredit or label to get our arguments

across, I just heard it and it didn't land well to my ears.

And in terms of the work they do, how they represent the area

and the community, that to me wasn't the impact

that I felt was impactful.

Thank you.

Commissioner Cantrell.

Oh, okay.

I just didn't wanna be rude.

Okay, actually, I welcome hearing the thoughts of my fellow commissioners here.

I want to be clear that I don't, I'm not sure what you're referencing, because I didn't see that message, whatever that was about.

No, I thought you read an article or something?

Oh, okay.

It was a quote read from the San Jose Insider that depicted the Sinclair group in a certain way.

Oh, okay.

And it's tough to have deep, thoughtful conversations when a curveball is thrown, when, you know, yeah.

Okay, I respect and appreciate your thoughts there.

I just didn't, I thought maybe I'd missed something.

But I did want to say, I am listening to what fellow commissioners are saying here,

and I really respect and appreciate it, because I would really like to see,

I believe I really would like to see this project move forward.

I completely love the idea of the project and the spirit of the project

and the change for the use of the park for the entire community

and not just an asset to one organization who can dictate what happens there

because they have the means to do it.

I say if you can dictate what happens there because you have the mean to do it,

do something for the entire community, support this organization, and let's get on with it.

That's what I say.

However, I do think, once again, we have to be careful.

We have to be very deliberate.

So I'll listen.

I always listen to what you have to say, and I respect and appreciate it.

To move this project forward, I think I would do a lot of things.

I just, I'm not sure I can do that.

That's all.

but I'm interested in what you have to say.

Commissioner Bendell.

Commissioner Bendell.

Thank you, Chair.

First of all, thank you to everybody who's came out tonight.

I know it's a long meeting.

Your guys' item was third on the list

and a few of the ones before you guys took some time,

so thank you for being here today.

Thank you for joining us, and thank you for your input.

St. James Park is a park that reminds you of San Jose.

There's so many other parks.

San Francisco has many different parks

and all of them kind of remind you of San Jose,

but the one that really reminds you,

I'm sorry, a lot of them really remind you of San Francisco,

but the one that really reminds you of San Jose

is St. James Park.

I think that park's been kind of neglected.

It's hard to go to that park.

You guys all, I'm assuming, live close to that park,

so you guys have an easy access and easy way of going there.

But for someone who doesn't live close to that park,

who lives in a different side of the city,

San Jose's not small, it's pretty big.

It's kind of tough to go there.

Why would you go there?

Even though it's our park, right?

It's San Jose's park.

We're a part of San Jose too, but if you live far away,

you're not taking the commute to go there,

walk your dog there, or whatnot.

And you want to see San Jose thrive.

And you want to see San Jose win, right?

Regardless of which location in San Jose,

but you really wanted to see it win.

And I think this project brings life back to the park.

It brings music.

It brings something new,

something that we're kind of in need for.

And the park's been neglected.

And, you know, like Commissioner Young was saying,

and it's thriving when people attend

and people need a reason to attend.

So I support the project.

But before I give up the mic,

I did wanna give a special shout out to our city attorney.

He's been working hard tonight.

He did a lot of reading in the beginning.

He read about five pages, which felt like 15.

And he's done a phenomenal job answering questions

and thank you so much to the city attorney.

and now I'll give up the mic.

Okay, thank you, Chair.

Thank you very much.

I just have a few comments

and then I suppose we can move on to a vote

if there's no other words from the commissioners.

I think that the pavilion is something

that's needed by downtown so badly

and in downtown where we've always tried to improve it

and will give folks another place in San Jose to go and enjoy

and we'll come on some top ten list of things to do in San Jose, I'm sure.

But we're here about the ordinance today.

First, I respectfully disagree with Justice Williams and Justice Mnookin,

who I used to work for.

I think the city has the power to do this.

But that aside, the complaints that we hear all the time with its planning department

are about the time it takes to get projects through the city

and how much that costs.

And that that is one of the main drivers

that things are not built in the city, in downtown,

or like I said, around the city.

We have many checks and balances.

We are well within our rights to amend this ordinance

and the courts have said so.

And I think we already see abuses of CEQA

that prevent development around the state.

And from what I surmise, this change would remove avenues for additional unwanted litigation that would take more time.

When we already have a robust system of checks and balances between the commission, the department, the historic landmarks, the city council.

And I think without seeing development like this, we're going to continue to lose events to San Francisco.

And I think it could potentially be a detriment to the city.

so I would be in favor of the staff's recommendation were a motion made

young young cow there's nothing else we will go to a roll call vote yeah young

made the motion seconded cow vice chair Bickford

The motion is to recommend the city recommend the City Council adopt the resolution and

approve approve the ordinance yes Commissioner Borossio yes Commissioner Bondall yes Commissioner

Cantrell yes with a message to people who will use this change to be judicious and deliberate

and careful Commissioner cow yes Casey is absent Commissioner Nguyen yes

Commissioner Oliverio yes save the McKinley statute

Commissioner Young yes myself is a yes and the motion carries nine to zero

Thank you.

Thank you.

Thank you to all the members of the public who came out tonight.

I know it's late on a Wednesday.

All right.

Moving on to agenda item

5D, PP25-001.

Chair yes, we take a two-minute stretch break. Maybe I don't know if that is allowed

Yes, we can take a two-minute stretch

Thank you recess

Thank you.

Thank you.

Thank you.

Thank you.

Thank you.

Thank you.

Thank you.

Thank you.

Thank you.

Thank you.

Thank you.

Thank you.

Yeah.

Trying to throw the needle, but hey, policy decision.

You know, stay neutral.

Yeah.

Yeah.

It's a new year.

Go.

Yeah.

start moving forward and the recess we start deducting from your

stipend.

Web form.

All right.

Moving on to the last item of the night.

Agenda item 5D,

PP25-001, amending title

19 and title 20. Do we have a staff

presentation?

Good evening, chair. Yes, we do.

Okay.

Good evening, commissioners.

My name is Rina Jorie and I am the project manager for today's presentation on file

number PP25-001, zoning code update.

I'm joined here by my colleague, Brent Carvalho.

He is the co-project manager.

Also here with us today is supervising planner Aparna Ankola and division manager and principal

planner Martina Davis.

We are here to share the proposed code update for Title 19 subdivisions and various sections

of Title 20, the zoning code.

So today's presentation will cover a number of topics that have been brought together

through a series of multiple outreach efforts.

of these items being discussed today are because the city must comply with housing element actions,

state law updates, and city council direction. The yellow box represents updates for infill

housing. These are based on new state law, housing element action items, city council direction,

or the California Department of Housing and Community Development, commonly referred to as

HCD. The blue represents various updates to the code to comply with state bills, direction from

HCD, and alignment with existing processes. The last category in green is a cleanup of the zoning

codes chapter on density bonus, ministerial approvals, and to add a new chapter in Title 19's

subdivisions. All of these items will be further explained in today's presentation.

I'll go ahead and begin with a quick refresher on Senate Bill 9.

This bill was signed into law and has been in effect since January of 2022.

The goal of this bill is to encourage infill housing by allowing ministerial approval of

an urban lot split and two-unit developments for a maximum of four units for the undivided

lot.

Sites that are eligible under SB 9 are those that are in the city's R1 single family zoning district and must meet additional eligibility requirements as stated in the bill, such as four foot side and rear setbacks.

As of July of this year, SB 450 signed into law complements SB 9.

SB 450 prohibits local agencies from creating standards for ministerially approved infill housing that would constrain development.

In other words, the city cannot impose standards like height and setbacks that don't already apply to the city's R1 single-family zoning.

When SB 9 was first passed, the city initially created standards that fit the eligibility requirements of the bill at the time,

but did not include any modifications to the standards that were not strictly required to conform to state law.

At the time that Council adopted that ordinance, they directed us to go further.

The approval included direction for staff to, one, develop citywide design standards for the implementation of SB9,

two, to explore allowances for SB9-type housing projects within R2 zoning districts and historic resources otherwise not eligible under SB9,

and three, to develop standards for properties within the city's 12 historic districts.

Part of the council direction was to ensure that SB 9 implementation for R2 parcels with

structures built before 1950 could proceed once a clear discretionary historic review

process would be in place.

This recent revisit of the SB 9 standards allowed us to learn lessons from about three

years of implementation to draft updated standards to facilitate construction of SB 9 units.

It also included ample outreach to both residents and designers, which was not part of the initial SB9 update.

In addition, the city's Housing Element Action Item P7 directs staff to update the zoning standards to facilitate development as well.

As of June 2024, the city has engaged with various stakeholders across a series of focus groups with designers,

historic preservation stakeholders, and a neighborhood group, and three community

meetings. During this outreach our stakeholders provided input that would

guide the creation, modification, and refinement of design standards that will

allow for infill housing. Key takeaways from those meetings were understanding

how the city's existing zoning code for SB 9 implementation constrains

buildability such as access and unit configurations and from residents we

heard concerns over privacy, parking, open space, infrastructure and much more.

For the next few slides we'll go through the standards staff have identified to

address Council Direction 1. When an applicant has an eligible SB 9 site and

and is interested in what we call an urban lot split,

or basically subdividing their lots into two new lots,

the way the invisible line is drawn

can create what we call a flag lot.

This allows for a unit towards the front of the street

and another towards the rear of the property.

In order to access the rear property,

there must be an access way.

The existing standard for an access corridor

is 12 to 15 feet wide.

But during our update, we heard from designers

and saw that majority of single-family homes in San Jose are built with five-foot site setbacks.

The existing 12 to 15 feet driveway standard would require part of the existing home to be demolished in order to access the rear unit.

This would be a major feasibility constraint for homeowners.

Staff also spoke with the city's fire department to learn about what access width would be adequate during an emergency at these sites.

As shown on the diagram to the left, very narrow substandard streets requires a larger access corridor to ensure fire emergency personnel can adequately access the rear lot if a car is parked on the access corridor.

As shown on the diagram to the right, when the street meets current standards, fire trucks can maneuver as needed, and a pedestrian access way of 4 to 7 feet is adequate enough for fire emergency personnel to access the entire lot.

It also discourages cars to be parked, which otherwise would cause an obstruction to their path.

For the dwelling unit standards, staff proposes to increase the second story height.

We propose to increase the height within the rear setback by matching what we already allow for ADUs.

For dwelling unit configurations, in R1 one-family zoning districts, you can have one primary dwelling unit,

one detached ADU, and one junior ADU, and one conversion ADU, like a garage conversion, for a total of four units.

In R2, two family zoning districts, you can provide two units that are attached to each other,

which we would traditionally call a duplex, two detached ADUs, and one conversion,

which comes to a total of five units, which is the current state ADU law allowance.

In R2, another possible configuration is for the two primary units to be detached from each other,

which we would consider single-family, which allows the single-family ADU allowance of one detached ADU, one junior ADU, and one conversion ADU.

We also heard that the garage frontage requirement was also a constraint on buildability.

Therefore, we propose to remove this requirement.

The city currently allows a floor area ratio of up to 45% for single-family homes.

The FAR is a measurement of floor area of a dwelling divided by the entire lot area.

The development community expressed to us that the existing maximum FAR of 45% limits

viability of SB9 units.

At the same time, input from residents highlighted concerns regarding privacy, open space, and

ground permeability.

To address both concerns, staff proposes to increase the maximum FAR for SB9 and SB9

type projects with using a combination of FAR and lot coverage. Generally, lot coverage is the area

of all buildings and roofed structures on a lot divided by the total lot area. The city's lot

coverage will exclude existing or proposed ADUs and junior ADUs. Staff analyzed that an increased

FAR of 65% on a typical single lot without the lot coverage standard would allow new units to

to be constructed right up to the four foot setbacks as allowed by SB 9.

This would leave essentially no yard space for these developments.

Now we'll move on to City Council's direction to analyze the potential

to expand SB 9 type housing project opportunities in R2

and historic districts in R1 and R2.

Staff has found that the city's R2 district is comparable

to the city's R1 single family zoning district in lot size

building typology, and neighborhood context. Therefore, the proposed design standards identified in R1 are extended to sites in R2.

This process streamlines approval for projects in R2 that are achieved through clearly defined objective design standards.

Staff also found that there are over 2,500 parcels that are either in R1 or R2 zoning districts that have a historic resource status.

City Council directed staff to ensure that for properties within the 12 historic districts in San Jose,

The standards explicitly disallow demolition of any contributing building or individually significant structure.

And if a single structure in a historic district is split into two or more units,

require the applicant to follow the city's your old house historic design standards

to ensure both the exterior and interior changes will minimally impact the existing exterior structure.

So for things like windows, doors, additions, and massing.

Staff has identified the process required for different types of historic resources.

A historic resource in an R1 or R2 zoning district other than a designated city landmark

will require a single family house permit process.

If designated as a city landmark, it will require a historic preservation permit.

The proposed objective design standards are listed on this slide.

After staff finalized these standards, the state signed a new bill, AB 1061, which extends SB 9 to historic properties within single-family zoning districts.

We are currently analyzing this new bill, and based on our analysis so far, we believe we are mostly compliant,

but will require additional updates for compliance with state law, and staff will bring forth these changes and additional state law conformance items by summer 2026.

As mentioned before, this ordinance update ensures that this ordinance includes a discretionary process for structures built before 1950 in our two zoning districts.

When staff conducted the analysis, we found that there are a little over 500 structures that exist that are eligible for SB9 type infill housing development.

As directed by City Council, we are proposing a requirement for applicants to submit a historic report

to identify whether their structure is eligible for listing on the National Register of Historic Places,

State Register, or as a candidate city landmark.

If they are, then they would follow the historic standards in new Part 9.5.

If they're not deemed eligible, they would follow the typical standards under Part 9

for city streamlined implementation for two unit developments on a single lot within two family zoning districts.

Moving forward to another type of infill housing, SB 684, effective as of July 1st, 2024,

is a state law that streamlines housing for projects on a lot zoned for multifamily residential.

No larger than five acres, new subdivided parcels must be at least 600 square feet,

and the site must be substantially surrounded by qualified urban uses.

SB 1123, effective as of July 1, 2025, is a bill that amends SB 684

and requires, in addition, streamlined housing on vacant single-family lots

of less than 1.5 acres with a minimum parcel size of 1,200 square feet.

If a site is within a housing element, the density must match 66% of what is required

by the housing element, which comes out to 19.8 dwelling units per acre.

If the site is outside of the housing element, the number of units required to be built must

be at least 66% of the base zoning or 19.8 dwelling units per acre, whichever density

is greater.

Each unit has to have an average size of 1750 net habitable square feet.

Staff is proposing to allow attached ADUs to be included with a project eligible under SB 684 and 1123.

Because this is a ministerial process, the proposed code is included in Title 20, Chapter 20.190 for ministerial approvals.

The city does not have a lot of discretion with this bill, so the proposed zoning amendment simply addresses the minimum requirements of the bill and includes the allowance for attached ADUs.

Staff would also like to point out that we have included an amendment to the ordinance

on page 3 and 76 as a response to comments from Airport Land Use Commission related to

the comprehensive land use plan.

And as about an hour, maybe two hours ago, they deemed it consistent.

State Senate Bill 1211, effective as of January of this year, requires local agencies to allow

up to eight detached accessory dwelling units in R22 family

or multifamily zoning districts.

The prior allowance under state law was two detached ADUs.

This code update ensures conformance with state ADU law.

The following items in this table are updates

to code references based on state law or direction from HCD.

SB 1418 streamlines the installation

of hydrogen fuel cell stations in commercial and industrial zoning districts, as well as

properties that were previously a gas station.

Assembly Bill 2632 requires cities to allow second-hand stores to be treated like any

other retailer.

The proposed update removes the requirement for a use permit for second-hand stores downtown

and includes a prohibition of outdoor drop-off of goods.

Regarding group homes, currently in the city, other than in R1 and R2 zoning districts,

We require a use permit for seven or more residents.

The state said we have to allow it in all residential and no longer require a use permit

for seven or more.

HCD directed staff to update the zoning code to allow unlicensed group homes of any number

of residents by right where other types of housing is allowed.

The city has allowed unlicensed group homes with up to seven residents by right and has

either disallowed or required a use permit for group homes of more than seven residents,

depending on the zoning district.

This ordinance update removes the cap of seven residents as required and adds a new definition

of group homes to better align with HCD required language.

As part of the cleanup and maintenance of the code, we are adding text to align with Title 13

to allow the consumption of off-sale alcohol within designated entertainment zone boundaries.

We're also cleaning up and clarifying mixed-use neighborhood standards.

We are also adding a code text to allow heat pumps within the setback area

and to modify the distance of tankless water heaters, heat pumps, and power inverters

to maintain a minimum 3-foot side setback.

These heat pumps will still need to conform to the city's noise standards.

Staff are proposing amendments to streamline the code written in the density bonus in ministerial

chapters as well as adding a new chapter in Title 19. The proposed amendments do not introduce any

changes to the existing provisions except that it ensures the city is in conformance with current

state laws. The streamlined text will reduce the need to amend the zoning ordinance every time the

state law provisions change. With Title 19, we are adding text to explain the

ministerial tentative map process, but please note this is a process that we

have been implementing, it just hasn't been written down in the code. And we are

proposing to take this with your recommendation to City Council. This

concludes staff's presentation. Thank you so much for your time and we're now

available to take your questions.

All right, we'll move to public comment.

We'll go with Glenn Garfunkel and then Alex Siwak?

Siwak?

Siwak.

Siwak.

Good evening.

Thank you for your service, Commissioners.

My name is Glenn Garhuckel.

I'm on the San Jose Climate Advisory Commission.

I support the proposed setback ordinance update, which facilitates heat pump installations

inside yards of commercial, residential, and zoning districts.

The current ordinance provides side yard setback exemptions for tankless water heaters, batteries,

and some other structures, but omits heat pumps.

The proposed update here adds heat pumps to the list and maintains the 3-foot side yard

setback standard.

The change can benefit heat pump installation affordability, operating costs, heating efficiency

and aesthetics and should also help reduce off-permit installations.

The three-foot side yard setback rule has been adopted by other Bay Area cities and has

been supported by the Climate Advisory Commission, by SPUR, the Bay Area Urban Planning Association,

RHA Associates and some other groups.

the full benefits is contingent on noise related details in the separate permit application

process which is in discussion.

We support the proposed ordinance and look forward to nailing down the application process

details.

Thank you.

Thank you.

Good evening, Commissioners.

My name is Alex Cywak.

I tried to send you a little e-mail, and unfortunately your published e-mail addresses

got kicked back.

There's some sort of technical problem about it.

developing a project in San Jose and we wanted to include attached ADUs as

allowed by state law in those units and we also wanted to be able to sell or make

available the ADUs as separate parcels to be either kept by a within the family

that purchases the the primary unit including the ADU as as well as at some

point they may want to rent the ADU or dispose of it in a separate transaction.

It just happened that these amendments and additions to the ordinances about the ADUs

came along.

We had a bunch of questions.

I have to compliment Ms. Ancola.

It was a godsend that she actually initiated calls to us, set up conference calls in the

last couple of days.

We had questions about how all of this was going to work.

She's clarified everything and we look forward to getting input from public works as to how

the term condoized parcel maps will work for this type of project.

So thank you very much.

Thank you very much.

Do we have any other members of the public that would like to speak on this?

All right.

Turning to the commissioners.

Commissioner Oliverio.

Thank you, Chair.

If you could go back to the PowerPoint starting at the end

and go to the slide under Density Bonus.

And then I'll take you to the front.

So question here, eliminating the state law references, isn't that informative to the

public on why the density bonus is there because of state law?

Thank you, Commissioner, for the question.

Martina Davis, division manager.

So we are not removing all references to state law, but yeah, we are removing many of the

very specific references to state law and the references to individual statutes.

Yeah, that's been a big debate as we thought through doing this because the ordinance is

informative, but regardless of what the ordinance says, those state laws do apply.

What we had to weigh was the informative value with the fact that we're back here every year

amending this ordinance every single time the state updates stuff.

And so it's become a real problem for us, right, for our workload.

so weighing that we did decide to recommend kind of removing a lot of those more specific references

to the state law and what we will do is for that public value of you know why are you doing this

what statute are you referencing that's where we're really going to rely on our application

forms and our materials that we publish on our website and elsewhere so that that track back

to state law still exists and so people can still understand you know that statute we're referencing

and whatnot, but it would make it so we don't have to come back year after year and updating

the code every single time the state law changes, which is unfortunately quite frequently in the

last few years. So fair enough to surmise, or whatever, you believe that a lay person reading

this will ultimately, after these modifications have been made, will understand that the city is

compelled to do so because of state law? Yes, yes, we believe we wrote it that way. And then again,

honestly I don't know that a lay person is going to read the ordinance regardless so that's why we

very much are trying to create some real good communication materials but I hear you for sure

great so then if you went forward or backwards on the presentation till you got to group homes

so um I was under so we're basically eliminating the SUP process is that correct

well um and that basically allowed for the community to understand what was coming in

next door to them and potentially get some rules set up because the city had to approve it I think

there's there was a law a decade prior that said you must accommodate so ultimately removing the

public process from these group homes is that correct correct and is that is the state mandating

that or are we choosing to the state is mandating this okay and it's not just us they are mandating

this from what we can tell just about every city that has a housing element is mandated to do this

Fair enough. Moving on. SB 684. It's up a couple slides.

Is this it? Yeah. Could you help me picture what this would look like?

You know, I love it when there's the, you know, you put a map on there and this and that.

Like, are we talking here, would you say it's a two-acre parcel and it's getting X number of units on it?

so 684 would allow up to 10 parcels and up to 10 units and what's the minimum size of that lot

so the minimum size you can if it is a single family it can go up to 1200 square feet

but if it's a multi-family it's going to be 600 square feet do you know where i can see something

like that in the city of San Jose? It essentially describes townhomes. That's kind of what it's

anticipating is townhomes, small apartment buildings. So you could do condominiums,

so you could do like a 10-unit apartment building potentially. But if you kind of boil down like

600 square foot lot, the unit sizes, it's really kind of anticipating townhomes or small lot,

single family cottages. People don't tend to build that anymore. So we think the market would really

push this more to the townhome model and again state law on this one too okay good times we'll

never have a planning commission meeting again um then uh going to sb9 where we're talking about the

driveway and the garage is that essentially uh eliminating on-site parking from the parcel

yes yes it is so for the record we do not have a minimum parking requirement in the city

So while we did require we currently require kind of the size of a driveway to access that rear spot

So effectively it creates, you know, the potential for a parking space

They never had to use that for parking. They could have landscaped it

But yes, you know, it effectively it did create essentially a driveway I would say in probably most cases

So this would allow units without a parking spot practically

Okay, and required state law?

or discretion so this one is somewhat discretionary it is a housing element action item to revamp our

SB 9 standards to make them more functional and more usable for development and this was actually

probably the number one thing that has come up it's actually called out in the housing element

as one of the things we should look at so yeah I mean I would say we if we could make the case that

our ordinance otherwise kind of broadly facilitated these units without doing that

would probably be okay but I'm not so sure what HCD would say and frankly again this was actually

probably the number one that came up as a constraint to subdivisions and HCD does not

care about parking correct they're concerned about units yes okay thank you very much

anything else from the other commissioners

anybody like to make a motion motion that we approve

Thank you.

Cantrell?

Second.

Okay.

Move to a roll call vote.

There's no discussion.

Great.

I have something to say.

Thank you, Chair.

Thank you, staff, for all your hard work.

I know the SB 9 is something that's challenging.

It's kind of hard to navigate.

We're experiencing that as well.

So thank you for all your hard work on this and looking forward to the next meeting.

Looking forward to the vote.

Anyone else?

All right, Vice Chair Bickford.

Yes.

Commissioner Borosio.

Yes.

Commissioner Bondal.

Yes.

Commissioner Cantrell.

Yes, and thank you for your very thorough, comprehensive work.

Commissioner Cao.

Yes.

Commissioner Casey is absent.

Commissioner Nguyen.

yes Commissioner Oliverio yes Commissioner Young yes and myself yes the motion carries

nine zero to one to recommend City Council take the actions suggested by

staff it's sorry I'm tired and those guys in Sacramento people in Sacramento

all right

we have good and welfare

That's the next question.

And what about e-mails?

Is it just we're going to use our personal e-mails forever?

Let me jump in on that because I have had discussions with both the clerk and the IT director,

and the hope is that you will have your e-mails back soon.

My hope was this week.

If not this week, this week is the assurance I received.

Hallelujah.

Thank you.

My personal e-mail thanks you.

Yes.

Yeah.

All right do we have any referrals from City Council boards commissions or other it's just about the emails

maybe this is the opportunity to

align

the number in the email to our district I

Don't have any ongoing conversation. So if I get five because I'm district five

So people that want to email me know that I'm five and seven and so on. I think this is the time

Yeah, well, let us look at that.

Yeah, that's a great suggestion.

We'll take a look and see what we can do.

Any referrals?

No referrals.

Good and welfare?

Report from City Council?

Just two projects have been to City Council since we saw you last.

They were the two PD Zonings, PD Permit and T-Maps,

the two separate projects for eight single-family units,

both on Roberts Avenue.

Both were approved by Council on the Consent Calendar.

I'm going to ask you to ask the question.

Okay.

Subcommittees, outstanding business, calendar,

study sessions.

None of the above.

Anything else for the public record?

One question regarding our general plan obligations.

We discussed the SB 79 maps,

which seems like it's going to take a long time.

Is it possible for staff to at least publish the transit stations

SB 79 will affect?

Yeah, so we do have an initial map that just shows the boundary around those stations we believe are applicable.

There's a little bit more work that needs to go into that.

Our intent had been to publish an information memorandum in January for the City Council.

It actually looks like we may be going with an item to City Council in January,

so we'll be able to provide the task force an update on that as we reconvene.

Question for the planning director.

It's because we missed you all day.

So the cost of development study,

I know it's happening for City Council in December.

Is it open to everybody?

Anybody can attend?

And also, will we have a separate one?

Or can you just kind of tell us about that?

So I don't think we have the intent of doing a separate one

for the planning commission,

but it's definitely something we can look at.

it is scheduled for December 8th the morning of the December 8th with the

City Council and certainly I think you can attend that as a Planning

Commissioner just to listen in it will be online so you can also watch it from

home or work depending on how you feel about that I really hope that we can get

our emails back to sorry we can get our emails back yes yeah working on it yeah

because yeah it's kind of challenging yeah so no we agree we think that's an

important thing and then what commission both you said to aligning the numbers

with the

I'm gonna work on that okay thank you

alright anything else

that the meeting is adjourned at 10 06

Thank you.

Thank you.

so