1. 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 Analysis: See Site Development Permit Finding 1 above.
2. The Special Use Permit, as approved, conforms with the zoning code and all other provisions of the San José Municipal Code applicable to the project; and
Analysis: The project also allows up to four commercial condominiums. Therefore, pursuant to Section
20.175.040 of the Zoning Code, a Special Use Permit is required. As conditioned in this Special Use Permit Resolution (Attachment B), all commercial condominiums are required to be a minimum of 750 square feet. As currently proposed, the four commercial spaces range from 865 square feet to 5,692 square feet. Additional findings for the commercial condominiums are made below.
3. The Special Use Permit, as approved, is consistent with applicable City Council policies, or counterbalancing considerations justify the inconsistency; and Analysis: See Site Development Permit Finding 3 above.
4. 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
b. Impair the utility or value of property of other persons located in the vicinity of the site; or c. Be detrimental to public health, safety, or general welfare; and Analysis: The mixed-use project, including the residential, office, and commercial retail space, would not impact the peace, health, safety, morals or welfare of persons residing or working in the surrounding area, or impair the utility or value of property in the surrounding area. The residential, office, retail space, and common areas would be located wholly within the project site, and all activity in these spaces would not impact the area outside of the building. The project’s common interest development (commercial condominiums) would not adversely impact the economic viability of large-scale commercial uses in the vicinity in that the size of the commercial units adequately accommodates a variety of potential uses, and the anticipated uses such as office or retail uses would add to the economic viability of the area. If the applicant wishes to subdivide the property into up to four commercial condominiums, a Tentative Map is required prior to approval of any Final Subdivision Map.
5. The proposed site is adequate in size and shape to accommodate the yards, walls, fences, parking and loading facilities, landscaping and other development features prescribed in this title, or as is otherwise required in order to integrate the use with existing and planned uses in the surrounding area; and Analysis: The approximately 0.22-gross acre site is adequate in size to accommodate the existing and proposed structure as well as the necessary common outdoor space and associated landscaping.
Common outdoor space is located on the rooftop courtyard of the building. As discussed, the buildings include height transitions to soften the change in height and scale from neighboring development and the existing historic building. All necessary bicycle parking, utility rooms, and trash rooms are located interior to the building on the first floor or basement level.
6. The proposed site is adequately served:
a. By highways or streets of sufficient width and improved as necessary to carry the kind and quantity of traffic such use would generate; or by other forms of transit adequate to carry the kind and quantity of individuals such use would generate; and
Exhibit C
17 File No. SP21-044, HP21-001 & ER20-249
b. By other public or private service facilities as are required.
Analysis: As discussed above, there is no vehicle parking or vehicle circulation on site. Pedestrian and bicycle access is provided from the project frontage along North 2nd Street. The project site is within a ¼ mile of multiple transit options including the Santa Clara and Saint James VTA Light Rail Stations. Numerous VTA bus routes also serve the immediate area, including VTA Bus Routes 72, 73, 22, 23, and Rapid 523. The project site is approximately 550 feet from the planned BART station on East Santa Clara Street between Market Street and 1st Street. The project also provides ample bicycle parking with the inclusion of a secure bicycle storage room on the basement level.
State Density Bonus Findings.
Chapter 20.190.090 of the San José Municipal Zoning Code requires that any project with a Density Bonus, incentives, or development standard waivers must make the following findings:
1. The Housing Development is eligible for a Density Bonus and any Incentives, waivers or modifications requested.
Analysis: The project is a 100% senior affordable housing project, which provides up to 14% of the units for low-income households, as defined in Section 65915 of the Government Code for the State of California and is therefore, eligible for the State Density Bonus Law for affordable housing projects.
2. If the Density Bonus is based on all or in part on donation of land, a finding that all the requirements for a land transfer Density Bonus that are specified in the State Housing Density Bonuses and Incentives Law have been or will be met.
Analysis: The project does not include a land donation.
3. If the Density Bonus or Incentive request is based all or in part on the inclusion of a Child Care Facility, a finding that all of the requirements for a Child Care Facility Density Bonus that are specified in the State Housing Density Bonuses and Incentives Law have been or will be met.
Analysis: The project does not include a Child Care Facility.
4. If the Incentive request is for a Mixed-Use development, a finding that all the requirements for a MixedUse Incentive development approval that are specified in the State Housing Density Bonuses and Incentives Law have been or will be met.
Analysis: The project is not requesting any incentives. However, the project is eligible as a “Housing Development” pursuant to Government Code Section 65915(i) as it includes five or more residential units.
The project allows the construction of 220 multifamily residential units.
5. If the Incentive includes a request for approval of condominium conversion, a finding that all the requirements for a condominium conversion Incentive that are specified in the State Housing Density Bonuses and Incentives Law have been or will be met.
Analysis: The project does not include a request for condominium conversions.
CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA)
The City of San José, as the lead agency for the project, prepared a Draft Supplemental Environmental Impact Report (Draft SEIR) to the Downtown Strategy 2040 Environmental Impact Report (Resolution No. 78942). The Notice of Preparation (NOP) for the SEIR was circulated from July 28, 2021 to August 27, 2021, and the Draft SEIR was circulated for public review and comment from August 29, 2022 to October 13, 2022. An environmental scoping meeting for the SEIR was also held on August 9, 2021 via virtual conference meeting.
Exhibit C
18 File No. SP21-044, HP21-001 & ER20-249
Summary of Environmental Impacts Reduced to Less than Significant with Mitigation The Draft SEIR identified potential environmental impacts related to cumulative construction air quality, hazards and hazardous materials during construction due to an adjacent sites’ historical uses, construction noise and vibration, and potentially previously unknown and undocumented historic-era and Native American archaeological resources. With implementation of the mitigation measures specified in the Mitigation Monitoring and Reporting Program (MMRP) and prepared for the project, these impacts are reduced to less than significant levels. As part of the certification of the Final SEIR, the City Council will need to approve the associated MMRP for the project.
Significant and Unavoidable Impacts and Statement of Overriding Considerations The Draft SEIR also found that the project would result in a significant and unavoidable impact to Cultural Resources due to the project’s partial demolition of a registered City Landmark building (Realty Building, HL01-136). The project would cause a substantial adverse change in the historic significance of the designated City Landmark and mitigation measures to be adopted for the proposed project would not reduce this impact to a less than significant level.
Significant and unavoidable impacts were also identified for Land Use and Planning in the Draft SEIR because the project would not comply with General Plan Policies related to historic preservation, such as General Plan Policies LU-13.2, LU-13.6, LU-13.7, and LU-13.8. Furthermore, the project is mostly inconsistent with the Secretary of the Interior’s Standards for Rehabilitation as the project would remove the majority of extant building components except for the front façade, the exterior walls, and a portion of the interior core including the central entry vestibule and corridor on the first floor, the stairs, and the secondfloor central lobby, and construct a 22-story tower. Therefore, the project would affect the historic status of the City Landmark building and its eligibility for the National Register of Historic Places (NRHP) and the California Register of Historic Resources (CRHR).
If City Council were to approve the project as proposed, in compliance with CEQA Guidelines Section 15093, a Statement of Overriding Considerations must be adopted with findings that the specific economic, legal, social, technological, or other benefits, including region-wide or statewide environmental benefits, of a proposed project outweigh the unavoidable adverse environmental effects if an environmentally superior alternative is not chosen.
The Statement of Overriding Considerations found that the economic and social benefits of construction of the project which consists of a 22-story building with 18,643 square feet of commercial space, and 220 affordable residential units outweigh impacts associated with the partial demolition of the City landmark building at 19 North Second Street that would result from the proposed project, and given the scope of the project, the rehabilitation or reuse of any of the existing buildings on-site would not be feasible.
Project Alternatives
The Draft SEIR analyzed four project alternatives, including a No Project – No Development Alternative, Preservation/Adaptive Reuse Alternative, and two reduced project alternatives. Alternatives were crafted based on their ability to reduce the significant and significant adverse impacts summarized above and to identify an environmentally superior proposal and to inform decision-making. The environmentally superior alternative would be the No Project/No Development Alternative, which would avoid the identified significant impacts of the proposed project; however, CEQA requires that another alternative be chosen when the No Project Alternative is environmentally superior. The Preservation/Adaptive Reuse Alternative would consist of modifying and altering the existing building (in compliance with the SOI Standards for Rehabilitation) to accommodate residential units – per the calculations, approximately 20 residential units could be accommodated. This alternative would eliminate the significant unavoidable impacts to historic resources and associated land use/planning effects and thus, be the next best environmentally superior Exhibit C
19 File No. SP21-044, HP21-001 & ER20-249
alternative. However, this alternative would not support any commercial space or meet the primary project objective of providing 220 affordable senior housing units. Therefore, the Preservation/Adaptive Reuse Alternative was not considered further.
The reduced project alternatives (Reduced Alternative and Decreased Alternative) would both decrease the project. The Reduced Alternative would reduce the project to a two-story addition (totaling four stories) resulting in approximately 55 residential units and 5,000 square feet of commercial space and the Decreased Alternative would result in a 22-story tower with 120 residential units. Compared to the proposed project, both reduced project alternatives would fall short of the 222 units and 18,643 square feet of commercial space.
Summary of Comments Received
The City received five comment letters during the public circulation period of the Draft SEIR. Comments were submitted by Pacific Gas & Electric Company (PG&E), Valley Transportation Authority (VTA), Kanyon Konsulting, LLC., on behalf of the Indian Canyon Band of Costanoan Ohlone People, J. Michael Sodergren on behalf of Preservation Action Council of San Jose, and Valley Water. The main concerns raised by commenters are as follows:
• The project’s site Area of Potential Effect overlaps or is near the management boundary of a potentially eligible cultural site, recommendation for monitoring, and potential approaches to Indigenous cultural awareness/history during/after implementation of the project. • Reminder to coordinate with PG&E prior to any digging or excavation due to underground gas and electric distribution facilities currently serving property. • Non-compliance with SOI Standards resulting in a significant impact to a historical resource under CEQA.
• Project alternatives were ultimately not given serious consideration by the applicant • Environmentally Superior Preservation/Adaptive Reuse Preservation would activate the site while preventing the permanent loss of a historic resource.
• Non-compliance with General Plan policies adopted for the purpose of protecting historic resources. • Non-compliance with the Historic Preservation Ordinance (Title 13 of the Municipal Code) • Cumulative impacts to historic resources
• Concurrent construction of Downtown projects, including VTA’s BART Phase II Extension Project, and related coordination
None of the comments received address an issue of deficiency or adequacy of the Draft SEIR, or the mitigation measures to be adopted as part of the Final SEIR.
The City responded to all comments received on the Draft SEIR and incorporated them into the First Amendment to the Draft SEIR. SEIR text revisions were included in the First Amendment to address clarifications to the text of the Draft SEIR and other suggested text revisions from commenters; therefore, recirculation of the Draft SEIR is not required. The First Amendment, taken together with the Draft SEIR, and the Mitigation Monitoring and Reporting Program (MMRP) constitutes the Final SEIR. The Draft SEIR and First Amendment to the Draft SEIR (Final SEIR) are available for review on the project page on the City’s Active EIR website at: https://www.sanjoseca.gov/your-government/departments-offices/planningbuilding-code-enforcement/planning-division/environmental-planning/environmental-review/activeeirs/sp21-044-19-north-second-street-mixed-use-project. A copy of the MMRP is included in the proposed CEQA resolution.
Exhibit C
20 File No. SP21-044, HP21-001 & ER20-249
EIR Recirculation Unnecessary
The comments received do not identify substantive inadequacies in the Draft SEIR or present new previously unidentified significant impacts that require recirculation. The recirculation of an EIR is required when significant new information is added to the EIR after public notice is given of the availability of the Draft EIR for public review but before certification. Information can include changes in the project or environmental setting as well as additional data or other information. New information added to a Draft EIR is not significant unless the Draft EIR is changed in a way that deprives the public of meaningful opportunity to comment on a substantial adverse environmental effect of the project or a feasible way to mitigate or avoid such an effect, including a feasible project alternative that the project’s proponents have declined to implement (CEQA Guidelines Section 15088.5).
In accordance with CEQA Guidelines Section 15088, the First Amendment to the Draft SEIR for the project includes written responses to all comments received during the public review period for the Draft SEIR. As required by Section 15132 of the CEQA Guidelines, the responses in the First Amendment to the Draft SEIR address significant environmental points and comments on the content and adequacy of the SEIR. The responses and comments provide clarification and refinement of information presented in the Draft SEIR and, in some cases, correct or update information in the Draft SEIR. No significant new information requiring recirculation has been added to the SEIR since publication of the Draft SEIR, and the mitigation measures to be adopted with the Final SEIR would not result in a new significant environmental impact and feasible mitigation measures requested by commenters would be adopted as part of project approval.
Therefore, the Draft SEIR does not need to be recirculated.
PUBLIC OUTREACH
Staff followed Council Policy 6-30: Public Outreach Policy in order to inform the public of the proposed project. A notice of the public hearing was distributed to the owners and tenants of all properties located within 1,000 feet of the project site and posted on the City website. An on-site sign was posted on the project frontage on February 1, 2021. The staff report is also posted on the City’s website. Staff has also been available to respond to questions from the public.
In accordance with Chapter 13.48 of the Municipal Code, the project was referred for comment to the Design Review Committee on January 20, 2021 and the Historic Landmarks Commission on June 2, 2021.
Summaries of those meetings are outlined in the attached Historic Preservation Permit Staff Report (Exhibit D). A formally noticed Community Meeting with Environmental Scoping was held on Monday, August 9, 2021 to introduce the proposed project to the community. Approximately 15 members of the public attended the meeting. The questions and comments from community members included the following:
1. Concerns about the impacts to the City Landmark and compliance with the Secretary of the Interior standards
2. Concerns about parking, and since there is no parking provided, concerns that there is no designated pick-up and drop-off area
3. Concerns about the impact to privacy to nearby residential towers
4. Concerns about the construction of the basement and how it will impact the foundations of the surrounding buildings
Exhibit C
21 File No. SP21-044, HP21-001 & ER20-249
5. The facade is worth saving, but there is a concern that some of tiles at entry have been replaced, bathrooms are from the 1970s, skylights are boarded up, single pane windows, party walls not up to code, and the top floor is not usable.
As noted above, all these concerns have been addressed as part of the development and environmental review of the proposed project.
Project Manager: Alec Atienza
Approved by: /s/ , Robert Manford, Deputy Director for Christopher Burton, Director ATTACHMENTS:
Exhibit A: Draft EIR Resolution
Exhibit B: Draft Special Use Permit Resolution
Exhibit C: Special Use Permit Plan Set
Exhibit D: Historic Preservation Permit Staff Reports and Attachments Exhibit E: Signed MMRP
Owners: Applicant:
Loida C. Kirkley
Roygbiv Real Estate Development LLC
38 North Almaden Boulevard, Suite 1608
San Jose, CA 95110
Kurt Anderson
Anderson Architects, Inc.
120 West Campbell Avenue, Suite D
Campbell, CA 95008
Wendy Warren
34 West Santa Clara Street
San Jose, CA 95113
Exhibit C
22 SP21-044, HP21-001 & ER20-249
Links to Attachment A - E
Click on the title to view document
Exhibit A: Draft EIR Resolution
Exhibit B: Draft Special Use Permit Resolution
Exhibit C: Special Use Permit Plan Set
Exhibit D Historic Preservation Permit Staff Reports and Attachments Exhibit E Signed MMRP
Exhibit C
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