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Planning commission recommends ordinance change to allow limited override for detrimental historic impacts; debate centers on Levitt Pavilion
Summary
After extended public comment and legal framing, the commission voted 9–0 to recommend amendments to the Historic Preservation Ordinance that clarify definitions and add narrowly defined override findings, a change prompted by a Court of Appeal ruling tied to the Levitt Pavilion project in Saint James Park.
The Planning Commission recommended a change to San Jose’s Historic Preservation Ordinance to add a narrowly framed override provision that would allow the City Council, under specific findings, to approve projects despite detrimental impacts to designated landmarks or districts.
Staff and the city attorney framed the amendment as a response to a Court of Appeal decision in Saint Clair Historic Preservation Foundation v. City of San Jose, which said the ordinance lacked explicit overriding-discretion language comparable to CEQA’s statement of overriding considerations. The city attorney told commissioners the text is intended to "clarify what we believe already exists," and to provide explicit findings when a decision maker determines the public benefit outweighs a detriment.
The item drew a large public turnout with sustained, divided commentary. Supporters — including Friends of Levitt Pavilion, arts organizations and downtown advocates — said the clarification is necessary to move long-planned public projects such as the Levitt Pavilion forward and said the proposed language creates transparency for weighing benefits and harms. Michael McDermott told commissioners the amendment ‘‘simply codifies that authority’’ and described the Levitt Pavilion’s potential economic and community benefits.
Opponents, including the Saint Clair Historic Preservation Foundation and Preservation Action Council (PAC SJ), argued that the proposed language is overbroad, weakens protections for designated historic resources, and may require further CEQA review. Sean Atkinson of the Saint Clair Foundation argued the amendment could eliminate long-standing safeguards and urged commissioners to oppose the addendum and revisions.
Commissioners debated whether the override should apply only to public projects or both public and private proposals; several commissioners asked staff to consider limiting scope, while others said the profession’s checks and processes (Historic Landmarks Commission, planning staff, public hearings and city council) provide sufficient safeguards. After debate, the commission voted 9–0 to recommend the ordinance text and the CEQA addendum to City Council (with commentary from commissioners urging judicious use of override authority). The council hearing was noted for Dec. 2.
The commission’s recommendation is advisory; City Council will consider the ordinance language and any refinements in December.
