Compensatory Mitigation Doesn't Apply to San Jose Historic Building

In a recent controversy in downtown San Jose, the City Council declined to declare a brutalist first-generation redevelopment building as an historic landmark, and a developer torn the building down quickly. Now an appellate court has rejected the argument from a local preservation group that the city violated the California Environmental Quality Act in the process. Importantly, the court rejected a novel argument by local preservationists that the developer who tore the building down should be responsible for “compensatory mitigation,” similar to the mitigation required when agricultural land or biological resources are replaced with new development. The reason is that, unlike on undeveloped rural land, in a situation involving urban historic buildings it can be difficult to find similar structures to save. While acknowledging that there is no statutory prohibition on applying the compensatory mitigation idea to a situation involving demolition of an historic building, the Sixth District Court of Appeal concluded: “Nothing in the administrative record here suggests the existence of any structures of similar architectural and historic significance, and PAC*SJ has offered no authority to support its argument that compensatory mitigation, broadly directed at historic preservation generally (such as by creating an historic preservation fund to identify and protect offsite historic resources), would serve as feasible mitigation in this context.: The situation involves what was originally known as Park Plaza, a redevelopment project built in downtown San Jose between 1968 and 1985, and especially the former Bank of America building – commonly known as “The Sphinx” -- designed by the famous architect Cesar Pelli and constructed in the early 1970s. A developer has changed the name of the project to City View Plaza and has proposed replacing the original redevelopment project with three 19-story office towers with approximately 3.5 million square feet of office space, 65,000 square feet of ground floor retail, and five levels of underground parking. A CEQA analysis began in 2018.

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