P. O. Box 1327, San Jose, CA 95109-1327
for immediate release
Contact: attorney Susan Brandt-Hawley
susanbh@preservationlawyers.com
707.732.0007
Appellate Court Reverses Approval of
Proposed Levitt Pavilion at St. James Park
San José. March 14, 2024. The Sainte Claire Historic Preservation
Foundation has prevailed on appeal in its suit against the City of San José
initially filed in the Santa Clara County Superior Court. The Sixth District
Court of Appeal reversed the trial court ruling. The unanimous 90-page
opinion issued on March 12, authored by Superior Court Judge Helen
Williams, on assignment to the Court of Appeal, with concurrences by Acting
Presiding Justice Cynthia C. Lie and Associate Justice Daniel H. Bromberg,
ruled that that the City violated its Municipal Code in approving the St. James
Park Capital Vision and Performing Arts Pavilion Project. The project
approval must be set aside pending the city’s compliance with its Historic
Preservation Ordinance.
The Opinion states in relevant part:
“[We] hold that the City abused its discretion, largely by failing to proceed in
the manner required by law.”
“Detriment to historical resources protected by the Ordinance remains
despite the conditions imposed in the issued Historical Preservation permit.“
And from the concurring Opinion by Justice Bromberg: “[The] City of San Jose
violated its historic preservation ordinance (San Jose Mun. Code, § 13.48.010
et seq.) in issuing a permit for the St. James Park project.”
***
The city concedes that the proposed large concert venue would alter
the park to such an extent that the St. James Square National Register Historic
District would no longer qualify for the National Register of Historic Places.
That district includes St. James Park and nine adjacent buildings,including the
1893 Sainte Claire Club Building.
The city’s Historic Preservation Ordinance does not allow approval of a
project that is “detrimental to an historic district or to a structure ... of
significant architectural, cultural, historical, aesthetic or engineering interest
or value ...”
The Court of Appeal agreed with the Foundation that approval of the
project’s substantial impacts to the historic district violated the ordinance:
“While we recognize that deference to an agency’s interpretation of its
own regulation is sometimes warranted … we do not view the City’s
proffered interpretation of the Ordinance, infused with overriding
discretion that appears nowhere in it, as correct…
… As chronicled at length by the Foundation, … the Project as approved
will indisputably have significant adverse cultural and aesthetic
impacts to the Park as an historical resource and to the historical
district in which it sits.
… On this record, … These impacts… include the loss of historic
integrity, the loss of identified and remaining character-defining
features of the Park, the threatened status of the current listings
in the National Register of Historic Places and the California
Register of Historic Resources because of acknowledged
inconsistencies with the Secretary’s Standards and the applicable
1989 St. James Square Historic District Design Guidelines, and
alterations to the character of the existing Park that would
impact or affect its historic significance and that of the district.
These impacts are fully supported and uncontradicted in the
record
“We are very greatful for the Court of Appeal’s comprehensive review of our
appeal,” said Foundation President Stephen Walwyn. “We fully support
revitalization of St. James Park, if the project conforms to the historic
requirements and values of the district. The Historic Preservation Ordinance
serves the city well in protecting its landmarks. The problem with this project
is transformation of the district into a commercial concert venue. Up to 5000
people would attend up to 300 annual music concerts and performing arts
events. We look forward to working with City leaders in support of a revised
project to revitalize the park without detriment to its important history.”
The Sainte Claire Historic Preservation Foundation filed has suit against the City of San José in the Santa Clara County Superior Court. The case alleges that the city violated its Municipal Code and the California Environmental Quality Act (CEQA), a citizen-enforced statute, when approving the St. James Park Capital Vision and Performing Arts Pavilion Project.
“We fully support revitalization of St. James Park, if the project conforms to the historic requirements and values of the district” said Foundation President Stephen Walwyn. “The problem is the transformation of the historic district into a commercial concert venue. Up to 5000 people would attend up to 300 annual music concerts and performing arts events.”
The city concedes that such a large concert venue at the park would cause significant noise impacts on the surrounding community, and that the pavilion would alter the park to such an extent that the St. James Square National Register Historic District would no longer qualify for the National Register of Historic Places. That district includes St. James Park and nine surrounding buildings, including the 1893 Sainte Claire Club Building.
The record before the city includes substantial concerns of area residents about environmental impacts. Tim Quigley, whose bedroom at St. James Place is approximately 65 feet from the proposed commercial pavilion commented that “the Environmental Impact Report clearly states that there is no guarantee that the sound levels and duration requirements can be completely adhered to during a performance. The debilitating impact on my quality of life is incalculable!” While Bollard Acoustical Counsultants, the City’s contracted noise experts, recommended mitigations for noise, the City ignored several of the major measures that would decrease noise impacts on surrounding neighbors and businesses. Mr. Quigley and other neighbors have written numerous letters to the City regarding the pavilion impacts but have reported frustration with the lack of response from City leaders. At the project approval hearing Councilmember Pam Foley acknowledged the significant noise concerns of the park’s immediate neighbors.
The lawsuit claims that because of the acknowledged significant environmental impacts of the pavilion, the city’s approval violates CEQA because the project EIR analyzed and identified a feasible alternate downtown location that the city discarded. Further, the city’s Historic Preservation Ordinance does not allow approval of a project, like this one, that is “detrimental to an historic district or to a structure ... of significant architectural, cultural, historical, aesthetic or engineering interest or value ...”
“We simply ask the Court to enforce clear requirements of CEQA and the city’s own ordinances that protect the historical integrity of St. James Park and the historic district,” said Shawn Atkisson, Executive Director of the Foundation. “The park project should proceed, and our legal action will not prevent it when revised to relocate the Levitt Pavilion to a compatible site without significant environmental impacts.”
The Sainte Claire Historic Preservation Foundation has begun the planning process for the next of its priority projects, the repair and replacement of the roof of the 127 year old Sainte Claire Club building.
A preliminary survey has been commissioned to determine the extent to which asbestos and/or lead may be encountered in the roof replacement process. Given the age of the building, it would be surprising if this were not an issue, and the presence of either or both may significantly affect the scope of the intended work and hence the ultimate bids for the project. Whether any rectification could be accomplished by a primary contractor or would require the services of a dedicated hazardous materials sub-contractor would depend on the extent of the clean-up that proved necessary.
The preliminary survey indicates that the existence of both lead and asbestos is probably relatively minor and can most likely be dealt with by the primary contractor. The Foundation is currently awaiting bids from a number of prospective contractors, all of which have been initially vetted to satisfy the Foundation Board that they are capable of undertaking such a project on an historic building. A major consideration is the extent to which the existing terra cotta tiles of the roof can be salvaged and re-used. The more tiles that can be saved, the more can be re-used, thus lowering the cost of the project. A certain amount of breakage is inevitable with tiles over 100 years old, but keeping that loss to a minimum through the care and attention of a skilled contractor would be of major importance. As to those tiles that are not capable of being re-installed, we are advised that matching tiles can almost certainly be obtained and that, should they vary slightly, they can be used in "blocks" on various portions of the roof so that variations are not readily visible.
Three things will determine whether this project can be accomplished during the 2020 dry season. First and foremost, the Foundation is having difficulty at present getting bids from roofing contractors due to the slowing or shutdown of their businesses as a result of the the COVID-19 virus. Second, assuming bids can be secured in a timely fashion, there is reason to conclude that there will be a shortfall between a likely bid range and the funds presently available to the Foundation. Assuming funds are sufficient, there is the practical issue of timing, i.e., whether a successful bid can be obtained, the contract let and the work brought to completion by the end of September, before the onset of the next rainy season. The project itself would take ten to twelve weeks once begun, so we have until approximately the beginning of July to solicit bids, let the contract and get the project permitted and under way. The second of the considerations, that of funding, may well be the ultimate determinant of whether this job can get done this year. We anticipate that the project will cost at least $170,000, which is somewhat more than the Foundation presently has available.
As one might expect, donations to the Foundation have slowed to some extent as we enter a new tax year and prospective contributors assess their ability to participate, especially in what has become a very challenging economic environment thanks to the effects of COVID-19. Nonetheless, additional donations will very likely determine whether or not we can bring the roof project to fruition this year. The precise amount of the shortfall cannot be determined until contractors are able to provide a definitive bid.
The Foundation Board very much hopes the expected shortfall will be met by further generous tax-deductible donations of the kind the Foundation has been favored with over the past eighteen months. Great progress has already been made, as evidenced by the striking refinish and repaint of the Sainte Claire Club building and the much-improved landscaping of the grounds, but it is an ongoing process, largely dependent on the interest and generosity of Club members and non-members alike. Your gift to help us get over the top would, as always, be very much appreciated, and we hope the roofers (and everyone else) can get back to work very soon , enabling the Foundation to make this project a reality.
The Donation page on the Foundation's website is up and running. Donations can be made that way, using a PayPal account, which is linked to the Foundation's trust account, or by mail to SCHPF, P.O. Box 1327, San Jose, CA, 95109-1327.
Many thanks for your interest, and for your steadfast and generous support.
At its meeting of August 22, the Foundation Board of Directors welcomed Rick Slater, previously its advisor on construction issues, to the Board, following the death of much-mourned Foundation Vice-President Lou Tersini on May 22. We are extremely pleased that Mr. Slater has agreed to serve. His counsel, as well as his contributions in kind to the Foundation, have already been of great assistance.
The Foundation's first priority project since its revivification last year, that of refinishing and repainting the exterior of the Sainte Claire Club building, is now complete. We very much hope that Sainte Claire Club members are pleased with the result. The new color scheme incorporates some changes from that of the past quarter century. Though the body color of the building is only slightly altered, the color that forms a band around the base of the building and delineates window sills and the wall along the sidewalk on the Second Street frontage has been changed from a neutral dark grey to a rich, warm milk chocolate brown. In addition, all of the building's window frames and the coffers of the ceilings over the front and rear entrances have been painted in a muted satin burgundy which strikingly emphasizes these architectural details. Finally, the front balcony rail as well as the faux balconies on the east and west sides are picked out in satin black, complementing the wrought iron of the massive lanterns at the front entry and the fencing that surrounds the entire property. All these changes were coordinated with and approved by Sainte Claire Club President Jim Nielsen during the planning stages.
The Foundation singles out for special mention HPF Board member John Frolli, AIA, an extremely skilled architect specializing in the restoration and maintenance of historic buildings. The Foundation is very lucky to have Mr. Frolli as a member of the Board, and he has devoted many hours to the selection of the new color scheme, as the Board has considered at least four schemes and their various permutations, in order to show SCC's beautiful Mission Revival-style building to its best advantage, while carefully adhering to the aesthetic standards imposed by the building's status as an historic landmark in the National Register of Historic Places. Mr. Frolli has performed yeoman service in this regard, well beyond any voluntary "call of duty", and he is owed a vote of thanks not only by the Foundation's Board but by Sainte Claire Club members as well.
The Board also extends its thanks to Burdick Painting, Inc., our painting contractor, and specifically Eric Pauly and John Cintas not only for the self-evident excellence of their work but also for their cooperation and patience during the preliminary stages of this project, as we hashed out the details of color schemes and technique, which might have deterred a less committed contractor. Among other things, they went to considerable lengths to provide computerized simulations of several color schemes to enable the Board to visualize on screen the anticipated end result, and carried out four test patches on the building itself. Much of this took place while preparatory scraping, patching and filling was under way on the stucco so as not to lose time as the rainy season approached.
Our greatest vote of thanks, however, must go to the many generous donors whose outstanding generosity has made the undertaking of this major project possible. It is to them that the Foundation Board dedicates the handsome and reinvigorated result of their largesse, the newly-invigorated Sainte Claire Club building itself. Many thanks to all donors for their interest and commitment.
The Foundation's next priority project is the repair and replacement of the roof of the Sainte Claire Club, when and as further funds become available to supplement those now remaining in the Foundation's trust account. Planning is under way in anticipation.
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