Metropolitan News-Enterprise


Monday, August 7, 2006


Page 1


Court Rejects Plan to Demolish Historic San Jose Building


By a MetNews Staff Writer


The California Environmental Quality Act requires a detailed analysis before a proposal to avoid demolition of a historically significant building to create a retail center is rejected, the Sixth Court of Appeal ruled Friday.

The court affirmed Santa Clara Superior Court Judge Leslie C. Nichols’ judgment requiring the City of San Jose to rescind its approval of the EIR for a new Lowe’s home-improvement center.

Lowe’s HIW, Inc. applied to the city to build the center on property—owned by IBM—that contains a building, referred to in the opinion as Building 025, with historic significance because it is “one of the finest examples of modern industrial architecture in Santa Clara County,” and because the “flying head” disk drive was invented in it.

Lowe’s proposal called for Building 025, which was built in the 1950’s, has been unused since the late 1990s, and consists of five low-ceiling wings connected by a narrow spine, to be demolished.

The EIR rejected as infeasible several alternatives that would have saved Building 025, including plans for an L-shaped warehouse with underground parking below Building 025, a two-story center with a parking structure, to use Building 025 as a warehouse, and a plan for a reduced-size center.

The most detail was given to the two-story alternative which the EIR said was not feasible due to the large and heavy items that would have to be transferred between floors, which would have been cumbersome and inconvenient for customers, and would have put Lowe’s in an competitive disadvantage compared with other home improvement centers in the area that were on a single level.

The reduced-size plan was deemed infeasible because:

 “Lowe’s cannot significantly scale down its program requirements . . . without placing it at a competitive disadvantage in the marketplace. . . . because it would be unable to meet the demands and requirements of a large market store in terms of throughput and merchandise availability.”

The EIR contained a letter from James Manion, Lowe’s site development manager, stating:

“[D]evelopment of a Lowe’s store layout requires years of research and planning as it relates to the structure, the logistics of moving merchandise, and effective operational plans. The store that Lowe’s proposes for this San Jose location is the cumulative result of 57 years of customer input, merchandise planning, and significant market research.”

Manion also said that Lowe’s had 910 stores in 45 states, all of which were on a single level and that a two-story or L-shaped structure “would prove operationally and functionally infeasible for Lowe’s in that the structure would deviate from Lowe’s historical prototype, resulting in reduced convenience and loss of consumer expectation.”

But Manion’s letter did not give any information about the sizes of Lowe’s stores and did not address the reduced-size alternative.

The city council found that “the Project will result in significant impacts to historic resources . . . [which are] significant and unavoidable,” but “no feasible alternatives considerably different from those analyzed in the Draft EIR have been proposed that would lessen significant environmental impacts of the Project.”

After the city certified the EIR and approved the project, the Preservation Action Council filed suit.

Nichols granted PAC’s petition for a writ of mandate, finding that that there was not substantial evidence to support the rejection of the reduced-size plan, along with other errors. Lowe’s and the city appealed.

Justice Nathan D. Mihara, writing for the Sixth District, noted that the “sole basis” supporting the conclusion that the reduced-size alternative was infeasible was Lowe’s belief that a smaller store would place it at a “competitive disadvantage.”

But Mihara found that the EIR’s analysis was ambiguous as to the actual square footage of the alternative that was considered, and that no information was given regarding the square footage of competing home-improvement centers in the area, making a competitive-comparison analysis impossible.

The justice said:

“This ambiguity in the [EIR’s] analysis of the reduced-size alternative meant that the public and the City Council were not properly informed of the requisite facts that would permit them to evaluate the feasibility of this alternative. The [EIR] was inadequate because it lacked ‘detail sufficient to enable those who did not participate in its preparation to understand and to consider meaningfully’ the reduced-size alternative.”

Mihara also found that the city erred by failing to make a specific finding regarding the infeasibility of the reduced-size alternative.

“Lowe’s claimed that a reduced-size store would put it at a competitive disadvantage ‘in terms of throughput and merchandise availability.’ The [EIR] provides no independent facts or analysis to support that claim,” she said.

The case is Preservation Action Council v. City of San Jose , 06  S.O.S. 4093.


Copyright 2006, Metropolitan News Company