Attachment H: Public Comments
Attachment H: Public Comments
Attachment H: Public Comments
Thanks for sending code section 20.120.100(B), I am seeing that it does, in fact, apply to the case where the landowner initiates the petition.
Here is where I am finding it confusing and could use your help to interpret:
This implies that there is normally a statutory Planning Commission hearing, because "in lieu of Planning Commission hearing" , the Director can "prepare a report or recommendation for the City Council" . Is that exactly what has happened in this case? Is the report/recommendation prepared by the Director actually the report that your department prepared? If it is something else, where is it and how can I get a copy? If the Director prepared no such report, then it appears that a Planning Commission hearing is required, and probably has to happen before the City Council meeting. There is no such agenda item on any upcoming Planning Commission meeting.
Section 20.120.100.B. If the Director determines that a petition for zoning or rezoning, filed pursuant to Section 20.120.020, conforms to the land use/transportation diagram of the General Plan, the Director may, in lieu of the Planning Commission hearing, prepare a report or recommendation for the City Council. No public hearing will be required. Nothing shall prevent the Council from referring such petition to the Planning Commission for its report and recommendation when it receives the report or recommendation from the Director.
This project is following Section 20.120.100.B.
The project conforms to the General Plan so staff has prepared a report on behalf of the Director, and the project will go before City Council. The staff report can be accessed here.
All other docs which include the draft ordinance, general plan map, zoning map, legal descriptions, and plat maps can be accessed via the link under agenda item 10.1. Link to agenda: Agenda
It also says "No public hearing will be required" . The context is not completely clear, but I take that to mean that no public hearing will be required in the specific case that the Director prepares this report or recommendation in lieu of the Planning Commission hearing. So if this is in fact the case in point, why is a public hearing being held? Or, is the upcoming City Council meeting not the "public hearing" that the code section envisions? When it says “no public hearing will be required” it is referring to a Planning Commission hearing. The project is going straight to City Council. The item will be on consent, but the public can still request to speak on the item.
What I am trying to understand is:
Attachment H: Public Comments
(a) how the current state of affairs maps to, follows and is controlled by the law in 20.120.100(B), and
(b) whether it is a violation of process to not have had a Planning Commission hearing prior to the City Council meeting.
The project does follow Section 20.120.100.B. which states that the project can go directly to City Council. This is standard for Conforming Rezonings.
I hope that makes more sense. I have so many details running around in my head and on paper that I don't think I spoke very clearly about this issue on the phone with you. -----------------------------------
Regarding the 1979 General Plan amendment I mentioned that describes the industrial portion as 30 acres - I wasn’t able to find it. However, I do have two documents from the City that describes the acreage that way (attached).
1999 GENERAL PLAN ANNUAL REVIEW REPORT 20500 Harry Rd.pdf, on page 10-18 (the second page of the file) mentions it several times in its discussion of the GP amendment being proposed by IBM to rezone some of its land for housing (we discussed this). 1998-09-30 Derryberry Letter from Draft EIR re IBM Parcel Acreage Division.pdf is a Memorandum from James R. Derryberry, the Director of the Department of Planning, Building and Code Enforcement, to the San Jose Planning Commission regarding Protests of a Negative Declaration for a General Plan Amendment. Essentially, the same acreage claims are made here as in the GP Annual Review. See "Response to Comment 1" on the second page of the document.
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Regarding the origin and history of the "permanent" designation for the 500+ acres of the open space on the IBM Almaden property, I believe that the actual original PD Permit PD82- 12-079 would likely contain the original wording of that conditioning, and this is one of the PD Permits that the City claimed it could not find. The document "PD 82-079.pdf" you sent to me contains only a map, and not the actual permit, unfortunately. If you can find the actual permit, it would be extremely helpful.
I was able to find the permit and plans. Please see attached.
But permit aside, the actual history is described in other City documents that we already have. The attached Derryberry letter lays it out very plainly, and this is in September 1998 (my emphasis added):
Attachment H: Public Comments
During the 1979 General Plan Annual Review, the land use designation on the 580 acre IBM property was changed from Non-Urban Hillside and Rural Residential to Private Open Space (550 acres) and Research and Development (30 acres), and the entire 580 acre site was included within the Urban Service Area. The 36.5 acres, which are the subject of the present amendment request, had previously been designated Rural Residential prior to this change in 1979 to Private Open Space. At the time the land use change was approved, both the City Council and IBM indicated an intent to preserve the Private Open Space portion of the IBM property as permanent open space.
The current zoning on the site restricts the subject portion of the IBM site to permanent open space in conformance with the General Plan. The zoning, approved by the City Council in 1981, constitutes the City's only requirement of IBM to maintain the site as open space. Since there was no requirement in the zoning for IBM to establish a permanent open space easement on the property, future development of the site is restricted only by zoning and General Plan requirements. If the land use change is approved by the City Council, the site would also have to be rezoned prior to development.
So here we have the City stating that the intent of the City Council (and IBM) was to keep the land as permanent open space, but because no one at that time required IBM to bake that requirement into an open space easement on the property, the "permanent" restriction exists now only because it was a condition of the PD Permit. Clearly the City here, in the person of Derryberry, recognizes the intent and also the lack of follow-through needed to preserve that intent.
Fast forward to 1999 during IBM's attempt to amend the General Plan and allow for housing on its permanent open space. The Draft EIR that Derryberry's report comes from also contains numerous citizen and group comments on the proposal. I have attached one from the Almaden Preservation Committee, dated February 11, 1999, that sums up my concerns that we discussed yesterday. Strangely, I did not see this letter until after you and I had spoken, so clearly I am not the first one to come to the conclusion that the ball was dropped by the city on making the "permanent" label permanent:
"Uninformed residents were not made aware of the necessity of a Conservation Easement to legally retain this area as permanent open space. "
Fast forward again to December 1999, and in the 1999 General Plan Annual Review Report (attached), there is a Memorandum from Council member Pat Dando (attached) that requests the City to close this loophole once and for all, and he recommends that City Council make the existing IBM permanent open space permanent with a legally binding Attachment H: Public Comments
agreement, and further that the City Council establish a general procedure for making open space permanent for the future.
What I don't have yet, but hope to find soon, is some evidence that the City Council took action on Dando's memo and recommendation, but even without that, I think it is clear from everything else I have presented that the intent of the Council originally was to keep those lands as open space permanently, but once the original PD Permit was granted, the Council went back to other business and never followed through because there were no consequences to that failure at that time.
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I have attached the Cushman & Wakefield executive summary of the IBM parcel. You can see that their first suggested use for the IP portion is for a data center, and the first suggested use for the open space is a housing development. If anything, this validates all the concerns I am expressing.
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I need to take a little time to go through all the documents you sent me - very much appreciated! The documents I would still like to receive from you are:
• The actual PD Permit PD82-12-079
See attached.
• The complete files for C26-008 and ER26-088
All documents can be accessed through the City Council Agenda under item 10.1. Link to agenda: Agenda
• A detailed account of the acreage designated as IP on the IBM parcel in the 2040 General Plan (as opposed to the large rectangle it shows online) We have approximately 35.12 acres shown according to GIS for the approximate Industrial Park General Plan designation area. General Plan Designations are not meant to be exact boundaries and instead capture the general area for the land use designation. Please also see General Plan Policy IP-1.4 which is referenced in the staff report for the project.
Attachment H: Public Comments
• The list of the names/addresses that the notifications were sent out to (the one I never received), and whether a 300-foot or 1000-foot radius was used to generate the list See attached. The project was noticed at a radius of 500 feet in compliance with our Public Outreach Policy for a “Standard Development Proposal” . • Anything else that we discussed yesterday that you haven't been able to find yet -----------------------------------
I'll edit my list of questions to avoid anything that your documents and our discussion have already answered.
One issue I can see already, since we are talking about unintended consequences, is that the original PD Permit specified the acreage that could be used for "research" and for "parking" separately - it was roughly a 50/50 split. One consequence of rezoning the entire 35-ish acres as IP is that the development intensity could effectively double, filling the Attachment H: Public Comments
entire 35 acres with buildings, instead of that tpe of development being restricted to only half of those 35 acres currently. I guess my point overall is that a "conforming rezoning" really sounds innocuous, and it unintentionally implies that there really won't be any changes - it's just paperwork. But if you dig a little deeper, the potential consequential changes are notable and concerning.
Thank you for this comment. This will be incorporated into the public record.
Thank you again for all of your time, assistance and willingness to share your knowledge and experience with me. I'm hoping for a good outcome for all. -----------------------------------
Thanks, Zachary. After some more research, I was able to find the city council minutes from Dec. 7, 1999, where Councilmember Dando's motion directing staff to create a legal mechanism that would permanently preserve the BM open space was considered and passed. I'm attaching it for you. What I need now is to see if staff actually acted on those instructions, finding that either they never followed up, or finding exactly how they did implement them. That's really where I could use your help and access to non-online materials.
I do not see any permit conditions requiring preservation easements in PD Permit PD82-12- 079. I also do not see a recorded easement that permanently preserves the open space portion of the site as open space.
Thanks again for all of your help.
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Hi Zachary,
After re-reading your first email to me, I realized that there were a number of attachments, and not just the URL links you sent in the body of the message. My apologies.
After going through them, I have a few questions/notes:
(a) The city council meeting notification card you sent me had the original owners listed on the address. What database does Planning use to get the names? There was one other owner after them before me, so somehow things are not even close to up-to-date. Why this is relevant is that post office will sometimes divert mail if the wrong name is on it, especially if a previous owner or tenant has moved, passed away, or so on. This is possibly why I never received the card.
Attachment H: Public Comments
The list is from the County. A notice was sent to the property. See attached noticing list.
(b) How does the rezoning application and attachments map to the two case numbers on the meeting notice (C26-008 and ER26-088)? Is there more to the file than what you sent me so far?
C26-008 is the rezoning file number and ER26-088 is the environmental file number.
(c) The last page of the rezoning application shows a procedural flow chart that appears to be at odds both with actual events and with Gov. Code 20.120.100 (which I have already sent you questions about). From the flowchart, it appears a community meeting and notice of such meeting was required, and I have no knowledge of such notification or meeting, This is prior to the City Council meeting. The flowchart also claims that a conforming rezoning does not require the involvement of the Planning Commission. Could you please help me make sense of the flowchart, GC 20.120.100, and actual events? This flow chart shows the process if a community meeting was necessary. This proposal is considered a “Standard Development Proposal” per our Public Outreach Policy 6-30.
Therefore, a community meeting is not required.
Thanks again for sending all that. I look forward to getting the rest of this settled and being able to timely file a concise and accurate comment on this issue for the record, and am grateful for your help.
Attachment H: Public Comments
Attachment H: Public Comments
Zoning Protest Application received on 8/11/2026.
Pursuant to Section 20.120.410 – Majority protest determination.
A. A majority protest occurs when the director determines that written protests have been filed by the owners of sites bounded by fifty (50) percent or more of the total length of the protest line, or by the owners of not less than fifty (50) percent or more of the area of the subject property.
As of 8/11/2026 one zoning protest application was received. The zoning protest application is signed by one property owner and the owner’s adjacent lot line is not 50% or greater of the eligible protest line or perimeter line of the site. Therefore, as of 8/11/2026 the Zoning Protest does not warrant any change in process and the application and its contents are retained as public comment.
Attachment H: Public Comments
Attachment H: Public Comments
establishing open space easements or covenants, where appropriate, on lands that are understood to be permanent private open space. (2) Memorandum from Director of Planning, Building and Code Enforcement, James R. Derryberry, dated December 2, 1999, recommending Council uphold the certification by the Planning Commission of the Environmental Impact Report for the Harry Road Residential Development, finding it adequate and complete under the California Environmental Quality Act. (3) Memorandum from the Planning Commission, dated November 29, 1999, recommending No Change in the General Plan on the requested amendment on 36.5 acres located on the east side of Harry Road north of Arroyo Calero Creek from Private Open Space to Low Density Residential (5 DU/AC). (4) Petitions with approximately 1,250 signatures of San José residents opposed to the General Plan amendment, collected by The Almaden Preservation Committee. (5) Communications sent by E-mail from approximately sixty residents opposing the General Plan amendment.
Discussion/Action: Director of Planning, Building and Code Enforcement James Derryberry stated the Environmental Impact Report (EIR) found a number of significant adverse impacts that were not mitigated with the proposed change in land use, therefore, Staff believes the EIR fully discloses all of the environmental impacts if the project were to go forward and Staff recommends Council deny the appeal and uphold the Planning Commission’s certification of the EIR as complete and in compliance with the California Environmental Quality Act.
Regarding the proposed amendment, he stated the request is to change the land use designation from Private Open Space to Low Density Residential (5 DU/AC) on approximately 36 acres which is a portion of the IBM Property that is within the City’s urban service area. He stated Staff believes the amendment goes against a decision made by a previous City Council to preserve the site and all of the remaining site in the IBM laboratory in permanent open space, which is consistent with the current zoning of Private Open space, and the Planning Commission and Planning Director strongly recommend No Change in the General Plan and retention of the site as open space. Charles Davidson, one of the developers of the property, stated the request to develop 17.4 acres of a 36 acre site, a flat parcel which would yield 49 lots, with 21 acres going to creek and riparian corridor, is consistent with the City’s policy of allowing development inside urban service areas where the slope is less than 15% percent. He stated the parcel is separate from the parcel in which the IBM facility is located and one, which IBM had to purchase in order to have an entry road to their property. He maintained the parcel’s General Plan designation of private open space is the same as other parcels, which Council has permitted to be developed. He stated the original EIR did not preclude the possibility of other options in the long term for the 540 acres designated as private open space. He disagreed that IBM had promised the site as permanent open space and questioned the use of the term “permanent open space” in reference to the General Plan. He stated IBM has agreed to grant over 500 acres in an easement to the City for private open space if the request is approved and the Planned Development rezoning could be conditioned in such a way that no subdivision map could be recorded until IBM has recorded an easement to the City of San José. He stated the confusion over the issue centers on the assumption that the hill portion, which is over 15% slope, would remain private open space based on the City’s 15% grade policy. However, he noted that assumption applies to the hill portion and is not applicable to the subject parcel, which is flat land. Based on the shortage of housing and available land in San José, he requested Council approve the amendment. The following individuals spoke in opposition to the proposed amendment: John Mariani; Robert Boydston, Almaden Valley Community Association Board Member; Mike Knefaty; Jillian Rebecca Bruhn; Courtney Ann Klosterman; Attachment H: Public Comments
Attachment H: Public Comments
Attachment H: Public Comments
Attachment H: Public Comments
Attachment H: Public Comments