EXHIBIT E
Background Section of this Appeal
Memorandum
Attachment E: Background
B
ACKGROUND
S
ite Location
The project site (Assessor’s Parcel Numbers: 259-28-001 and 259-28-002) is located at 32 and 60 Stockton Avenue in downtown San José. The approximately 1.1-gross acre project site is located on the north side of West Santa Clara Street between Stockton Avenue and the Union Pacific Railroad and Caltrain tracks and is currently developed with a two-story automotive business located at 60 Stockton Avenue (approximately 106 years old), an automotive/equipment steam cleaning and vehicle washing business (approximately 31 years old), multiple carports, and small storage buildings associated with the existing on-site. None of the existing buildings or structures on the project site are eligible as Candidate City Landmarks or Contributing Structures in a Candidate City Landmark District, nor are they listed in the National Register of Historic Places. There are two historical resources located offsite within 200 feet of the project site, but it was determined that the construction of the project would not cause a substantial adverse change in the significance of these two resources.
2014 D
iridon Station Area Plan and 2021 Diridon Station Area Plan Amendment T
he project site is located within the boundaries of the Diridon Station Area Plan (DSAP), which is a sub-area of the Downtown Strategy 2040 project area. The purpose of the DSAP is to focus on high-density development near Diridon Station to take advantage of increased transit accessibility with the forthcoming Caltrain Electrification Project, BART expansion, and HSR project. Both the original and amended DSAP show the conceptual location of these transit improvements in relation to planned development. The original DSAP, approved by City Council in June 2014, included a change in the General Plan Land Use Designation of the project site from Transit Employment Center to Urban Village. This change allowed the development of residential and commercial uses on the project site of up to 250 dwellings/acre and a 10.0 Floor Area Ratio at a maximum height of 100 feet. Subsequently, in May 2021, the City Council approved an amendment to the 2014 DSAP which modified planned land uses, altered DSAP boundaries, and increased maximum heights and development capacity within DSAP. The 2021 DSAP included a further change to the General Plan Land Use Designation for the project site from Urban Village to Downtown, allowing the increased density of residential and commercial uses of up to 800 dwellings/acre and 30.0 Floor Area Ratio with a maximum height of 200 feet.
T
he project site is also located within the Transit Boundary of the DISC and the footprint of the preferred alignment for the San José to San Francisco segment of the HSR project.
T
he project site is surrounded by mixed uses such as commercial, industrial and transportation, and residential. The site is in the DC Downtown Primary Commercial Zoning District and is designated in the General Plan as Downtown. The Downtown designation allows a density of up to 800 du/ac and a FAR of up to 30.0 at heights of three to 30 stories.
P
roposed Project: Apollo Residential
Exhibit E
The Site Development Permit and Vesting Tentative Map applications, File Nos. H21-048 and T21-043, were filed on October 28, 2021. The project applicant is Urban Catalyst, represented by Matt Bernardis. The Site Development Permit would allow the demolition of the existing buildings on-site (totaling approximately 15,908 square feet) and construct a 20-story residential tower with up to 471 units and 7,661 square feet of ground-floor retail, on an approximately 1.1- acre site. The proposed project is consistent with the DC Downtown Primary Commercial Zoning District and the Downtown General Plan Land Use designation.
The Project would also include an outdoor plaza along the western edge of the project site and would have a maximum height of up to 198 feet and six inches to the roof. The proposed project includes below-grade and above-grade vehicle parking for up to 359 vehicles. The Project provides 176 bicycle parking spaces and proposes to replace the existing Class II bicycle lane along the Stockton Avenue and Santa Clara Street frontages with a Class IV raised, protected bicycle lane. The Project proposes to widen the project frontage sidewalks from approximately 20 to 22 feet wide. The project site is located approximately 800 feet from the San José Diridon Transit Center.
Environmental Review
The environmental impacts of the Project were addressed by the Downtown Strategy 2040 Final Environmental Impact Report adopted by City Council Resolution No. 78942 on December 19, 2018, and subsequent Addendum to the Downtown Strategy 2040 Final Environmental Impact Report for the DSAP Amendment adopted by City Council Resolution No. 80021 on May 25, 2021. CEQA Guidelines Section 15164, states that “The lead agency or responsible agency shall prepare an addendum to a previously certified EIR if some changes or additions are necessary but none of the conditions described in CEQA Guidelines Section 15162 calling for preparation of a subsequent EIR have occurred.” Pursuant to Section 15164, and as part of the entitlement processing for this Project, an Addendum to the Downtown Strategy 2040 Final EIR was determined to be the appropriate CEQA clearance. The Initial Study, Addendum, and supporting technical reports were posted to the environmental review webpage on August 10, 2022, and are available on the City’s website at: www.sanjoseca.gov/activeeirs.
The type and intensity of development proposed are consistent with the anticipated development in Downtown Strategy 2040 FEIR. The Downtown Strategy 2040 FEIR included the project site in the evaluation for the Downtown land use designation. This designation allows for office, retail, service, residential, and entertainment uses in the Downtown at very high intensities of up to 800 dwelling units per acre and a floor area ratio of up to 30.0. The project conforms to the Downtown General Plan land use designation in that it includes high-density residential and commercial uses, consistent with the Downtown Strategy 2040 FEIR.
The Downtown Strategy 2040 FEIR identified measures to minimize impacts and adopted statements of overriding consideration for all identified significant impacts resulting from the maximum level of a proposed development that could not be avoided. No new or more significant environmental impacts beyond those identified in the Downtown Strategy FEIR have not been identified, nor have any new mitigation measures or alternatives which are considerably different from those analyzed in the FEIR been incorporated. As analyzed in the Apollo Residential Project Exhibit E
Initial Study/Addendum, the project would comply with the Greenhouse Gas Reduction Strategy identified in the 2040 General Plan and would not result in greenhouse gas emission impacts beyond those identified in the General Plan FEIR and SEIR. The Addendum included Appendices A through J that include technical reports and analysis to demonstrate that no additional environmental impacts beyond those analyzed in the Downtown Strategy 2040 FEIR would occur with the implementation of the Apollo Residential Project.
The Project is located within the Diridon Station Area Plan (DSAP) and within the Transit Boundary of the DISC and is located in the vicinity of the conceptual footprint of the preferred alignment for the San José to San Francisco segment of the HSR project. No final engineered plans have been approved for the San José to Merced or San José to San Francisco segments HSR at this time, so any footprint of the HSR in this area is considered conceptual.
A preliminary project application was submitted and reviewed by the City in September 2021 and Vesting Tentative Map and Site Development Permit applications were submitted to the City for review in October 2021. The baseline for evaluating the Project is the date of a complete application, and the City decided to prepare an Addendum for the Project, which occurred prior to the April 2022 approval of the Environmental Impact Report/Environmental Impact Statement (EIR/EIS) for the HSR Merced to San José, and the August 2022 approval of the EIR/EIS for the HSR San José to San Francisco segments. The City has land use authority over the project site and the development proposed on privately owned land is permissible if it is consistent with the local land use, zoning, and other regulatory requirements. In addition, the project site was part of the DSAP Amendment approved in May 2021 that included changes to the General Plan Land Use/Transportation Diagram from Urban Village to Downtown to allow for higher development intensity. As noted in the Addendum, the current focus of the DISC Plan is the functionality of the station rather than its architectural appearance. Later phases of work will include detailed design and engineering, as well as an environmental review. The DISC is a conceptual plan that is not under consideration for approval as a project for implementation at this time, and the proposed project would not interfere with any approved or finalized plan for the DISC.
However, the baseline for evaluating the Project is the date the City decided to prepare an Addendum for the project, which occurred prior to the April 2022 approval of the Environmental Impact Report/Environmental Impact Statement (EIR/EIS) for the HSR Merced to San José and the August 2022 approval of the EIR/EIS for the HSR San José to San Francisco segments. The Addendum found that implementation of the Project would not result in more significant impacts identified in the Downtown Strategy 2040 FEIR, and significant impacts identified can be mitigated to a less than significant level with the incorporation of mitigation measures.
A Mitigation, Monitoring and Reporting Program (MMRP), consistent with the measures in the Downtown Strategy 2040 FEIR, was prepared for the Project and includes mitigations to bring impacts from construction air quality, biological resources, hazards and hazardous materials, and construction noise and vibration to less than significant levels. Standard environmental permit conditions are also included to lessen the environmental effects of the Project.
Considering that the preferred HSR alternative alignment was not available under the baseline conditions, the site is currently owned and controlled by the project applicant, and the proposed Exhibit E
project is consistent with the City’s General Plan, zoning, and other regulatory requirements, it was reasonably concluded that the Project would not conflict with the HSR transit plan under the baseline conditions. Section 15151 of the CEQA Guidelines discuss that disagreement among experts does not make an EIR inadequate, but that the EIR, or as is the case with the project, Addendum to the Downtown Strategy 2040 Integrated Final EIR, should summarize the main points of disagreement among the experts. The summary of the main points of disagreement among the experts is included in the Transportation section of the Addendum. The main point of disagreement is whether the Project conflicts with a program, plan, ordinance, or policy addressing the circulation system, as described in Appendix G of the CEQA Guidelines.
Planning Director’s Public Hearing
On November 9, 2022, the Hearing Officer held a public hearing to consider the Apollo Residential Project Addendum and Site Development Permit No. H21-048. At the public hearing, there were five speakers. The five speakers spoke generally in favor of the Project’s design, site improvements, and the addition of residential units to the downtown area. None of the five speakers submitted an appeal for the Project.
The night before the hearing, the California High-Speed Rail Authority (Authority) submitted a comment letter detailing conflicts between the proposed Project and their recently approved Final EIR/EIS for the San José to Merced segment of the high-speed rail project. The Authority’s letter commented primarily on the desire to develop a parking lot on the project site, and that with the implementation of the proposed Project, there would be a conflict with their planned use of the site. A few minutes prior to the hearing, an email and attachments from the law firm of Adams, Broadwell, Joseph & Cardozo, on behalf of Silicon Valley Residents for Responsible Development, was received by staff. The letter commented primarily on the adequacy of the environmental clearance of an Addendum used for the Project.
Staff responded verbally to the comments raised by Adams, Broadwell, Joseph & Cardozo’s November 9, 2022, comment letter at the public hearing as follows. The City’s Principal CEQA Planner addressed that the project description was adequate for the purpose of CEQA and that the Project went through a thorough environmental review under full compliance with CEQA to determine that an Addendum was the correct clearance level for the Project. Similar to the October 6, 2022, DOT memo and the Authority’s letter, the Adams Broadwell, Joseph & Cardozo letter raises that the project would “conflict with a program, plan, ordinance, or policy addressing the circulation system, including transit, roadways, bicycle lanes, and pedestrian facilities,” namely the California High-Speed Rail Project, the Diridon Integrated Station Concept Plan (“DISC”), and the Amended Diridon Station Area Plan (“DSAP”).”
Adams, Broadwell, Joseph & Cardozo, on behalf of Silicon Valley Residents for Responsible Development, did not submit an appeal of the CEQA determination for the proposed Project.
The Hearing Officer considered the information presented and determined that the Addendum is the appropriate environmental clearance under CEQA and approved the Site Development Permit.
Exhibit E
The Planning Director’s Hearing Agenda of item 4a. including the draft Site Development Permit and all associated documents for the Planning Director’s Hearing on November 9, 2022, can be viewed at https://www.sanjoseca.gov/your-gover
nment/departments-offices/planning-
building-code-enforcement/planning-division/commissions-hearings-and-developers- roundtable/planning-director-hearings/planning-director-s-hearing-agendas-minutes. The audio and video recording of the meeting is available at
https://sanjose.granicus.com/MediaPlayer.php?view_id=51&clip_id=13462.
Environmental Appeal
On November 15, 2022, a timely environmental appeal of the Apollo Residential Project Addendum was filed by Carolyn Gonot (Santa Clara Valley Transportation Authority) and Boris Lipkin (Authority). The Planning Director’s approvals of Site Development Permit Nos. H21- 048 and T21-043 were not appealed. The appellants allege that the Addendum is inadequate CEQA clearance for the project because the Project would conflict with planned facilities of regional and statewide significance, including the California High-Speed Rail Project and the Diridon Integrated Station Concept with the implementation of the project, resulting in a significant and unavoidable impact. The appeal urges the City Council to have the Planning Director require the applicant to prepare a full EIR for the Project. A copy of the appeal is included as Exhibit A to this memorandum.
A letter was also submitted with the appeal. The appeal letter cites the October 6, 2022, DOT memo as grounds for the appeal, but does not specifically detail the points of conflict. The points of conflict discussed in the October 6, 2022, DOT memo include:
1) The Project site is located entirely within the footprint of the proposed California High-Speed Rail Project,
2) The project site is located within the proposed Transit Boundary of the Diridon Integrated Station Concept Plan (DISC),
3) The proposed DISC Transit Boundary was incorporated in the Amended Diridon Station Area Plan (DSAP), which City Council adopted on May 25, 2021; therefore 4) These conflicts make the Addendum inadequate, and an Environmental Impact Report (EIR) is required for the project.
Pursuant to Section 21.04.140 of the San José Municipal Code, any interested person can submit a timely request to appeal to the City Council the determination made by the Planning Director, Planning Commission, or non-elected decision-making body regarding the appropriate environmental clearance for a project. As outlined above, at the Appeal Hearing, the City Council may uphold the Planning Director’s reliance on the Apollo Residential Project Addendum to the Downtown Strategy 2040 FEIR or require the preparation of a new environmental document.
Denying the environmental appeal and upholding the Planning Director’s reliance on the Addendum for the Apollo Residential Project (CEQA determination) would allow the project applicant to move forward under Permit Nos. H21-048, T21-043, and ER21-276 were approved by the Director on November 9, 2022, to allow the demolition of the existing buildings on-site Exhibit E
(totaling approximately 15,908 square feet) and construct a 20-story residential tower with up to 471 units and 7,661 square feet of ground floor retail, on an approximately 1.1-acre site located at 32 & 60 Stockton Avenue. The Planning Director’s approvals of Site Development Permit Nos. H21-048 and T21-043 were not appealed.
Upholding the environmental appeal would void both the Planning Director’s CEQA determination and the Site Development Permit. The project applicant would be required to prepare a new or revised environmental document prior to reconsideration of the proposed project. Alternatively, the applicant could choose to not proceed with the proposed project.
Exhibit E