The San Jose City Council voted Dec. 2 to amend the city’s historic‑preservation ordinance, adopting language staff says restores the council’s ability to weigh project benefits against detrimental impacts to designated landmarks and districts.

The amendments to Chapter 13.48 of the San Jose Municipal Code create an explicit finding process—modeled on CEQA’s statement of overriding considerations—by which council may approve projects despite impacts if social, economic, legal, technical or other benefits outweigh the harm. City planners said the change responds to a Court of Appeal decision that found the previous ordinance lacked a clear override mechanism in the Levitt Pavilion litigation.

Supporters including the Levitt Foundation, Friends of Levitt Pavilion San Jose and downtown business and arts leaders told council they want clarity so a 13‑year community effort to build a free outdoor concert pavilion at Saint James Park can move forward without repeated litigation. "The Court of Appeal directed the city to include language that clarifies the override power the city already holds," Suzanne St. John Crane of Levitt Pavilion San Jose told the council during public comment. Levitt backers argued the pavilion will activate an underused park, attract downtown foot traffic and host family‑friendly programming.

Opponents—local preservation advocates, the Preservation Action Council of San Jose and residents adjacent to Saint James Park—argued the change would weaken protections for historic resources and that the city should distinguish public projects from private ones. "This ordinance change reduces current protections and will cause more impacts to the city's historic resources," said Susan Brant Holly for the Saint Clair Historic Preservation Foundation.

Councilmembers debated the tension between providing clear legal authority to address court findings and protecting historic resources. Councilmember Kamay proposed adding a "compelling public interest" standard to provide clearer guardrails; the mayor and several colleagues expressed concern that inserting that phrase without a formal definition could create new legal ambiguity. Councilmember Tordellos offered a substitute motion to adopt the staff recommendation (as refined during the meeting); Councilmember Mulcahy seconded. The substitute motion passed 9–2, with Kamay and Casey voting no.

City staff emphasized that the amendment does not remove CEQA review or public hearings. Planning staff said the changes were presented to the Historic Landmarks Commission and the Planning Commission and that the proposed language is intended to mirror long‑standing council authority used in other contexts. The council’s action concluded the ordinance vote; any specific projects that would rely on the override—such as the Levitt Pavilion—remain subject to separate project‑level review and any required environmental analysis.

Next steps: the ordinance amendment will be codified and applied to future historic‑permit decisions. Opponents signaled they may continue to press for distinctions between public and private projects or seek additional safeguards in future actions. The council did not take a separate vote on the Levitt Pavilion project itself during the Dec. 2 session.

Provenance: Staff presentation and staff recommendation (topic introduction: SEG 2090; topic finish: SEG 3866).