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Parcel Number 467-20-079), 49 North Fourth Street (Accessor’s Parcel Number 467- 20-081), and 60 North Third Street (Accessor’s Parcel Number 467-20-080).
The Project’s Approvals include the following:
Special Use Permit (SP21-031) to allow the demolition of all existing buildings on site totaling approximately 22,527 square feet, the removal of 39 trees (four ordinance-size, 35 non-ordinance-size) for the construction of a mixed-use project consisting of up to 415 multifamily residential units, 525,000 square feet of retail space, 8,500 square feet of retail space and allow up to 10 commercial condominiums with extended construction hours from 7:00 am to 7:00 pm Monday through Saturday on an approximately 2.10- gross acre site;
Vesting Tentative Map (T21-033) to reconfigure four parcels into two parcels and allow up to 10 commercial condominiums and 415 residential condominiums on an approximately 2.10-gross acre site.
Historic Preservation Permit (HP21-007) to allow the demolition of three noncontributing buildings and the construction of a 267-foot-high tower consisting of 415 multifamily residential units within the St. James Square City Landmark District. The Project would be approved under Section
13.48.260 (Hardship) of the Historic Preservation Ordinance.
On October 5, 2022, the Historic Landmarks Commission (“HLC”) recommended to the City Council that there was insufficient evidence to grant a hardship under Section 13.48.260.
The City, as the lead agency for the project, prepared a Draft Supplemental Environmental Impact Report (“DSEIR”) to the Downtown Strategy 2040 Final EIR, which was circulated for public review and comment for 45 days, from June 17, 2022 through August 1, 2022. Silicon Valley Residents submitted comments on the DSEIR during this comment period. Our comments on the DSEIR show that the DSEIR failed to accurately analyze, disclose, and mitigate the Project’s air quality, greenhouse gas (“GHG”), hazards, noise, transportation, and growth-inducing impacts. We incorporate these prior comments by reference.
The City’s FSEIR contains responses to our comments, and makes revisions to the DSEIR aiming to address some of the issues we raised. These revisions include a condition of approval requiring enrollment in SJCE’s TotalGreen level (100 percent renewables) program, changing the Project to no longer propose October 26, 2022
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natural gas usage, and edits to the Project’s hazards mitigation. But the FSEIR fails to resolve or mitigate all of the Project’s potentially significant impacts. As will be discussed herein, the Project contributes to a significant cumulative health risk through emissions of Toxic Air Contaminants. The Project’s construction will generate significant noise impacts, but fails to adopt mitigation committing to meaningfully reduce these impacts. And the Project conflicts with state and local policies requiring generation of affordable housing by failing to include affordable housing units. For these reasons, and others discussed herein, the City lacks substantial evidence to make the requisite findings to make the Project’s Approvals.
Silicon Valley Residents urges the Planning Commission to recommend that the City revise and recirculate the FSEIR before any further action is taken on the Project, and to require the Applicant to bring the Project into compliance with all State and local land use policies before the Project can be considered for approval.
I. STATEMENT OF INTEREST
Silicon Valley Residents is an unincorporated association of individuals and labor organizations that may be adversely affected by the potential public and worker health and safety hazards, and the environmental and public service impacts of the Project. Residents includes the International Brotherhood of Electrical Workers Local 332, Plumbers & Steamfitters Local 393, Sheet Metal Workers Local 104, Sprinkler Fitters Local 483 and their members and their families; and other individuals that live and/or work in the City of San José and Santa Clara County.
Individual members of Silicon Valley Residents live, work, recreate, and raise their families in the City and in the surrounding communities. Accordingly, they would be directly affected by the Project’s environmental and health and safety impacts. Individual members may also work on the Project itself. They will be first in line to be exposed to any health and safety hazards that exist on site.
In addition, Silicon Valley Residents has an interest in enforcing environmental laws that encourage sustainable development and ensure a safe working environment for its members. Environmentally detrimental projects can jeopardize future jobs by making it more difficult and more expensive for businesses and industries to expand in the region, and by making the area less desirable for new businesses and new residents. Indeed, continued environmental degradation can, and has, caused construction moratoriums and other restrictions on growth that, in turn, reduce future employment opportunities.
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I. THE FSEIR FAILS TO ADEQUATELY RESOLVE THE PROJECT’S
POTENTIALLY SIGNIFICANT IMPACTS
A. The FSEIR Fails to Adequately Mitigate Significant Noise Impacts
In our comments on the DSEIR, we explained that the City’s construction noise mitigation fails to adequately mitigate the Project’s construction noise impacts. The DSEIR acknowledged that the Project’s construction would cause significant noise impacts, exceeding ambient noise levels at nearby residences by five dBA Leq or more throughout construction.1 But MM NOI-2.1 merely calls for a “noise logistics plan” to be prepared after project approval. In our comments on the DSEIR, we explained by failing to include performance standards in MM NOI-2.1, the City improperly defers mitigation.
The City’s response to this comment in the FSEIR argues that the mitigation is sufficient because “[t]here are no quantifiable construction noise level thresholds at the federal, state, or local level, only operational noise,”2 and by requiring preparation of a construction noise logistics plan, the Project would be consistent with General Plan Policy EC-1.7.3 Policy EC-1.7 provides:
The City considers significant construction noise impacts to occur if a project located within 500 feet of residential uses or 200 feet of commercial or office uses would: […] Involve substantial noise generating activities (such as building demolition, grading, excavation, pile driving, use of impact equipment, or building framing) continuing for more than 12 months.4 This reasoning ignores that the CEQA Guidelines explicitly prohibits deferring formulation of mitigation measures unless the agency (1) commits itself to the mitigation, (2) adopts specific performance standards the mitigation will achieve, and (3) identifies the types of potential actions that can feasibly achieve that performance standard” [emphasis added].5
1 DSEIR, pg. 131, Table 3.6-5; See also Appendix F, pg. 29 (“ambient levels at the surrounding uses would potentially be exceeded by 5 dBA Leq or more at various times throughout construction.”). 2 FSEIR, pg. 42, Response E.26.
3 Id.
4 Envision San José 2040 General Plan, EC-1.7.
5 CEQA Guidelines, § 15126.4(a)(1)(B).
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Further, courts have held that Courts have held that compliance with noise regulations alone is not substantial evidence of a less-than-significant impact.6 In Keep our Mountains Quiet v. County of Santa Clara,7 neighbors of a wedding venue sued over the County of Santa Clara’s failure to prepare an EIR for a proposed project to allow use permits for wedding and other party events at a residential property abutting an open space preserve. Neighbors and their noise expert contended that previous events at the facility had caused significant noise impacts that reverberated in neighbors’ homes and disrupted the use and enjoyment of their property.8 The County’s Mitigated Negative Declaration relied on the noise standards set forth in its noise ordinance as its thresholds for significant noise exposure from the project, deeming any increase to be insignificant so long as the absolute noise level did not exceed those standards.9 The Court examined a long line of CEQA cases which have uniformly held that conformity with land use regulations is not conclusive of whether or not a project has significant noise impacts10 in holding that the County’s reliance on the project’s compliance with noise regulations did not constitute substantial evidence supporting the County’s finding of no significant impacts.11
Here, the SEIR relies on consistency with the City’s noise standards (Policy EC-1.7) to conclude that the Project’s significant noise impacts are reduced to a lessthan-significant level. As in Keep Our Mountains Quiet, the standards in Policy EC1.7 do not address the actual increase in noise caused by the Project. And whereas the noise threshold in Keep Our Mountains Quiet was held insufficient for merely setting a maximum noise level, Policy EC-1.7 does not even set a maximum allowable noise level or increase.
Additionally, the DSEIR seems to adopt a 5 dBA noise threshold in Impact NOI-2: “[c]onstruction noise would exceed ambient levels by five dBA for a 6 King & Gardiner Farms, LLC v. Cnty. of Kern (2020) 45 Cal.App.5th 814, 865. 7 Keep our Mountains Quiet v. County of Santa Clara (2015) 236 Cal.App.4th 714. 8 Id. at 724.
9 Id. at 732.
10 Id., citing Citizens for Responsible & Open Government v. City of Grand Terrace (2008) 160 Cal.App.4th 1323, 1338; Oro Fino Gold Mining Corp. v. County of El Dorado (1990) 225 Cal.App.3d 872, 881–882; Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1416 (project’s effects can be significant even if “they are not greater than those deemed acceptable in a general plan”); Environmental Planning & Information Council v. County of El Dorado (1982) 131 Cal.App.3d 350, 354, (“CEQA nowhere calls for evaluation of the impacts of a proposed project on an existing general plan”).
11 Id. at 732-734; see also King & Gardiner Farms, LLC v. County of Kern (2020) 45 Cal.App.5th 814, 893, as modified on denial of rehearing (Mar. 20, 2020).
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period of more than one year within 500 feet of residential uses or 200 feet of commercial or office uses, which exceeds the City thresholds defined in General Plan Policy EC-1.7” [emphasis added].12 The DSEIR also provides analysis showing that ambient noise levels at the nearby land uses would be exceeded by approximately five dBA Leq or more throughout construction.13 Since the DSEIR seems to identify 5 dBA as the relevant noise increase threshold, the City’s mitigation must commit to reducing increases in noise to below 5 dBA (or some other specific performance standard) and identify specific types of actions that can feasibly achieve that standard .
B. The Project Fails to Adequately Analyze and Mitigate Cumulative Health Risk Impacts
The FSEIR states that the Project would not have a cumulatively significant health risk impact due to emission of Toxic Air Contaminants (“TACs”). The combined PM2.5 concentration from existing sources and construction of nearby projects have a pre-existing cumulative health risk impact, and the Project would contribute to this impact during the Project’s construction and operation.14 The FSEIR provides the following as the significance threshold for a cumulatively significant contribution to this impact:
As mentioned on pages 40-41 and Appendix B of the Draft SEIR, BAAQMD CEQA Guidelines state that in instances where a pre-existing cumulative health risk impact exists, the project’s individual contribution to that cumulative impact should be analyzed and if project health risks would be reduced to below the single-source thresholds with best available mitigation measures, the project’s contribution to pre-existing cumulative impacts would not be cumulatively considerable. [emphasis added]15 According to the City’s significance threshold, the Project must adopt best available mitigation measures to conclude its impacts are not cumulatively considerable.
BAAQMD, in comments on the DSEIR, proposed that the Project require additional controls to mitigate construction-related exhaust emissions:
12 DSEIR, pg. 131.
13 Id. 14 FSEIR, pg. 9, Response B.2
15 Id.
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Off-road construction equipment should be zero-emission, where available; the City should require commitments to zero-emission equipment in applicable bid documents, purchase orders, and contracts; successful contractors should demonstrate the ability to supply the compliant construction equipment for use prior to any ground-disturbing and construction activities. At minimum off-road diesel construction equipment should meet Tier 4 emissions standards.
Medium and Heavy-Duty diesel on-road vehicles should be equipped with engine model year 2010 or newer, or powered by zero or near zero-emissions technology, as certified by the California Air Resources Board, whenever feasible.
Provide electrical hook ups to the power grid, rather than using diesel-fueled generators, for electric construction tools, such as saws, drills, and compressors, and using electric tools whenever feasible.16 BAAQMD also proposed that the City should require a site-specific dust control plan that includes measures that go beyond the Air District’s Basic and Enhanced Air Quality Construction Measures.17
BAAQMD’s recommended measures represent examples of the best available mitigation measures. Thus, the City should include these measures as binding mitigation measures to ensure the Project’s contribution to the community’s health risk is not cumulatively considerable.
II. THE PROJECT DOES NOT PROVIDE AFFORDABLE HOUSING, IN
CONFLICT WITH LOCAL LAND USE GOALS, OBJECTIVES, AND
POLICIES
The Project proposes to construct 415 multi-family residential units, but fails to provide any of the residential units at a below-market rate.18 The SEIR does not provide any information regarding whether any these units will be offered as affordable housing. This lack of affordable housing conflicts with applicable local goals, objectives, and policies promoting affordable housing. CEQA Guidelines section 15125(d) requires that an environmental impact report “discuss any inconsistencies between the proposed project and applicable general plans, specific 16 FSEIR, pg. 12, Comment B.4.
17 FSEIR, pg. 10, Comment B.3
18 DSEIR, pg. 4.
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plans and regional plans,” which includes regional housing plans.19 Therefore, the Project’s inconsistency with affordable housing goals, objectives, and policies is also a violation of CEQA.
A. The Project is Inconsistent with the Housing Element Update of the General Plan
The Regional Housing Needs Assessment (“RHNA”) is the California Staterequired process that seeks to ensure cities and counties plan for enough housing in their Housing Element cycle to accommodate all economic segments of the community.20 Accordingly, the Housing Element of the City’s General Plan identifies the City’s housing conditions and needs, evaluates the City’s ability to meet its RHNA numbers, and establishes the goals, objectives, and policies of the City’s housing strategy. The Housing Element Annual Progress Report (“APR”), as required by Government Code Section 65400, requires jurisdictions to report on the annual progress towards meeting the RHNA during the calendar year, as well as on the status of implementation programs identified in the Housing Element.
The City’s 2021 Housing Element APR shows that “San José is ahead of schedule in delivering market-rate housing and is behind schedule in delivering all other income levels of affordable housing.”21 Affordable units are those offering rents affordable to extremely low-, very low-, low- and moderate-income households.22 The APR states that “[t]he City’s annual production of "extremely low- , very low-, low- and moderate-income housing remained well below the annual goals for each income level.”23
19 See also Golden Door Properties, LLC v. County of San Diego (2020) 50 Cal. App. 5th 467, 543. 20 Cal. Gov. Code Section 65580 – 65589.9; see City of San Jose, 2014‐2023 San José Housing Element (January 27, 2015), pg. 1-2.
21 City of San Jose, 2021 Housing Element and FY 2020-21 Housing Successor Annual Report to State of California (“2021 APR”), pg. 12, available at
https://www.sanjoseca.gov/home/showpublisheddocument/87578/637926224037070000. 22 Id. at 10. 23 Id.
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As shown in the table24 above, excerpted from the 2021 APR, the City still has not produced enough affordable housing at any level (extremely low-, very low-, low- and moderate-income). San Jose was obligated to identify capacity for 35,080 new units of housing in the 2015-2023 RHNA cycle. And while the City produced more than 15,655 new units, the City has a deficit of 19,425 units. The 2021 APR concludes that “[a]s the City remains far short of meeting its RHNA housing goals, despite diligent staff work and the dedication of considerable resources, San José will need to be aggressive in pursuing all production strategies appropriate and feasible to grow and diversify its housing stock – both with new types of housing and with more housing affordable to lower- and moderate-income residents.”25
Because the City has not produced and is not expected to produce enough affordable housing to meet its RHNA, projects that do not contribute to the City’s RHNA are inconsistent with the City’s Housing Element, a primary goal of which is to meet the RHNA. The Project does not state it will provide any affordable units, and is therefore inconsistent with the Housing Element affordable housing goals.
B. The Project Does Not Provide Information Regarding
Compliance with the Inclusionary Housing Ordinance
The City has a city-wide inclusionary housing ordinance (“IHO”) that requires a minimum of 15% of residential units built on-site to be affordable, or pay 24 Id., Table B.
25 Id. at 16.
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an in lieu fee.26 The IHO contains exemptions and waivers for “Downtown High Rises.” According to the City’s 2022 Inclusionary Housing Guidelines, “Downtown High Rise” shall mean a Residential Development that:
1. is located in the Downtown Core Area (as described in Resolution Number 73587 adopted January 9, 2007) or located in such other geographic area as may be specified in a Resolution adopted to implement SJMC Section 5.08.520(F);
2. has ten (10) or more floors or stories in height, not including any nonresidential uses, with the highest occupied floor at an elevation at least 150 feet above street level;
3. for which the Developer has provided the information requested by the City for compliance with Government Code (GC) Section 53053 and Resolution 77135 for disclosure of public subsidies and the public hearing has been held; and
4. receives its final certificates of occupancy for 80% of the dwelling units on or prior to June 30, 2025 or such deadline as may be specified in a Resolution implementing SJMC Section 5.08.520(F).
If all these criteria are met, then the Downtown High Rise may request that the applicable reduced In Lieu Fee rate be applied in the Residential Development’s Affordable Housing Compliance Plan and Inclusionary Housing Agreement and a waiver letter or partial waiver letter be provided at the time the In Lieu Fee is due.27
The In Lieu fees for qualifying Downtown High Rise Developments that obtain all Certificates of Occupancy on or prior to June 30, 2025 are as follows:
Building permit by June 30, 2021 – $0/Square Foot
Building permit by June 30, 2022 – $0/Square Foot
Building permit by June 30, 2023 – $0/Square Foot
Building permit by June 30, 2024 – $13/Square Foot
26 City of San José. Inclusionary Housing Ordinance, available at:
http://www.sanjoseca.gov/index.aspx?nid=3979. 27 Revised Guidelines for Implementation of the Inclusionary Housing Ordinance of the City of San José, Chapter 5.08 of the San José Municipal Code (August 24, 2022), pg. 4-5, available at https://www.sanjoseca.gov/home/showpublisheddocument/89225/637980703088770000.
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Building permit by June 30, 2025 – $23/Square Foot28
Here, the Project’s documentation does not provide any information on whether it would construct affordable housing, or would seek a waiver from the IHO. A waiver could result in the Project paying $0 in In Lieu fees. Thus, compliance with the IHO may not resolve the Project’s inconsistency with the Housing Element affordable housing goals.
C. The Project is Inconsistent with the Downtown Strategy 2040 The Project’s lack of affordable housing conflicts with the Downtown Strategy 2040. The policy document states that its “top priorities” are to “[d]evelop housing with an emphasis on very high densities, and at least 20 percent of which is deedrestricted affordable to extremely low, very low, low, and moderate-income households.”29 The Project lacks deed-restricted affordable housing, and is thus inconsistent with this goal.
D. The Project is Inconsistent with the Envision San José 2040 General Plan
The Envision San José 2040 General Plan contains goals and policies promoting development of affordable housing:
H-2.1 Facilitate the production of extremely low-, very low-, low-, and moderate-income housing by maximizing use of appropriate policies and financial resources at the federal, state, and local levels; and various other programs.
H-2.2 Integrate affordable housing in identified growth locations and where other housing opportunities may exist, consistent with the Envision General Plan.
The Project’s DSEIR and FSEIR fails to analyze consistency with these provisions. The instant Project’s lack of affordable housing is inconsistent with these goals.
28 Revised Guidelines for Implementation of the Inclusionary Housing Ordinance of the City of San José, Chapter 5.08 of the San José Municipal Code (August 24, 2022), Attachment 3, available at https://www.sanjoseca.gov/home/showpublisheddocument/89231/637980706325400000. 29 Downtown Strategy Update (Downtown Strategy 2040), pg. 13.
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III. THE CITY CANNOT MAKE THE REQUISITE FINDINGS TO
APPROVE THE PROJECT
In order for the Project to be approved, the City must be able to make all required findings for a Special Use Development Permit, Site Development Permit, Tree Removal Permit, Demolition Permit, and Historic Preservation Permit.
A. The City Cannot Make the Findings to Approve the Special Use Permits
Pursuant to San José Municipal Code Section 20.100.820, the City can only approve the Project’s Special Use Permits if the following findings are made:
The special use permit, as approved, is consistent with and will further the policies of the general plan and applicable specific plans and area development policies; and
The special use permit, as approved, is consistent with applicable city council policies, or counterbalancing considerations justify the inconsistency; and The proposed use at the location requested will not:
o Adversely affect the peace, health, safety, morals or welfare of persons residing or working in the surrounding area; or
o Impair the utility or value of property of other persons located in the vicinity of the site; or
o Be detrimental to public health, safety, or general welfare; and The environmental impacts of the project, including but not limited to noise, vibration, dust, drainage, erosion, storm water runoff, and odor which, even if insignificant for purposes of the California Environmental Quality Act (CEQA), will not have an unacceptable negative affect on adjacent property or properties.
Here, this Project conflicts with the policies of the general plan by failing to provide affordable housing necessary to meet Housing Element goals. And as demonstrated in the comments herein, as well as our comments on the DSEIR, the project has potentially significant environmental and public health impacts. Thus, the City lacks substantial evidence to make the requisite findings to approve the Special Use Permits.
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B. The City Cannot Make the Findings to Approve the Site Development Permit
To make the Site Development Permit findings pursuant to San José Municipal Code Section 20.100.630, and recommend approval to the City Council, the Planning Commission must determine that:
1. The Site Development Permit, as approved, is consistent with and will further the policies of the General Plan, applicable specific plans and area development policies; and
2. The Site Development Permit, as approved, conforms with the Zoning Code and all other Provisions of the San José Municipal Code applicable to the project; and Analysis:
3. The Site Development Permit, as approved, is consistent with applicable City Council policies, or counterbalancing considerations justify the inconsistency; and
4. The interrelationship between the orientation, location, and elevations of proposed buildings and structures and other uses on-site are mutually compatible and aesthetically harmonious.
5. The orientation, location, and elevation of the proposed buildings and structures and other uses on the site are compatible with and are aesthetically harmonious with adjacent development or the character of the neighborhood.
6. The environmental impacts of the project, including but not limited to noise, vibration, dust, drainage, erosion, storm water runoff, and odor which, even if insignificant for purposes of the California Environmental Quality Act (CEQA), will not have an unacceptable negative effect on adjacent property or properties.
Here, as discussed in the analysis for the Project’s Special Use Permits, the Project lacks affordable housing and has potentially significant environmental and public health impacts.
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Further, the City lacks substantial evidence to claim that the Project’s design is harmonious with the character of the neighborhood. The Historic Landmarks Committee concluded that, due to the Project’s features, size, scale, proportion, and massing, the Project does not conform with Saint James Square Historic District Design Guidelines. The Historic Landmarks Commission also recommended that there was insufficient evidence to grant a hardship under Section 13.48.260, which would exempt the Project from certain design requirements.
As a result, the City cannot make the requisite findings to approve the Site Development Permit.
C. The City Cannot Make the Findings to Approve the Vesting Tentative Map
Pursuant to Section 66474 of the California Government Code, the City shall deny approval of a Vesting Tentative Map, if it makes any of the following findings:
1. That the proposed map is not consistent with applicable General and Specific Plans as specified in Section 65451.
2. That the design or improvement of the proposed subdivision is not consistent with applicable General and Specific Plans.
3. That the site is not physically suitable for the type of development.
4. That the site is not physically suitable for the proposed density of development.
5. That the design of the subdivision or the proposed improvements are likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat.
6. That the design of the subdivision or type of improvements is likely to cause serious public health problems.
Here, the Project is inconsistent with General Plan Policies requiring production of affordable housing. The Project’s construction and operation generate potentially significant noise and health risk impacts. Further, the site is physically suitable for this type of development, as due to the Project’s features, size, scale, proportion, and massing, the Project does not conform with Saint James Square Historic District Design Guidelines. Thus, the City lacks substantial evidence to make the findings requisite to approve a Vesting Tentative Map.
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IV. CONCLUSION
For these reasons, and others discussed herein, the City lacks substantial evidence to make the requisite findings to make the Project’s Approvals. Silicon Valley Residents urges the Planning Commission to recommend that the City revise and recirculate the FSEIR before any further action is taken on the Project, and to require the Applicant to bring the Project into compliance with all State and local land use policies before the Project can be considered for approval. We thank you for the opportunity to provide these comments.
Sincerely,
Aidan P. Marshall
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