History seems to play in a maddening loop for residents of Alviso, the bayside neighborhood that persistently calls for better city services, concessions from developers and enforcement of local laws to little avail. So, they litigate.
When Coyote Creek spilled its banks into Alviso in 1983, victims teamed up with the Federal Emergency Management Agency to sue the city of San Jose, which annexed the town in 1968 in a controversial vote. When un-permitted trucking and other industrial operations kicked up asbestos and flouted zoning laws in the early 1990s, residents sued the companies into compliance. When the city eschewed an environmental review for a large-scale trucking and manufacturing facility right next to George Mayne Elementary School in 2014, residents sued and settled for nearly $1.2 million.
Last week, the pattern repeated itself, stirring longstanding tensions between pro-development forces and residents who worry that their concerns continue to fall on deaf ears. Frustrated by the city approving a golf-themed entertainment complex without an environmental review, local activists once again took their grievance to court.
“It really brings down the morale of the community when time and time again we get that same attitude from the city,” says Mark Espinoza, 42, a native Alvisan and lead plaintiff in the lawsuit. “It’s a slap in the face.”
The complaint, filed in Santa Clara County Superior Court under the aegis of a group called Organizacion de la Comunidad de Alviso, claims the Topgolf at Terra project will inundate the quiet neighborhood with traffic and noise. It also accuses the city of skirting the Alviso Master Plan, a document designed in 1998 to protect the small-town character of the shoreline community. A second lawsuit filed a day later by the Santa Clara Valley Audubon Society also raises environmental concerns, saying the development would infringe on burrowing owl habitat.
“If you put a project like this into this type of environment, it changes forever,” Santa Clara Valley Audubon Society advocate Shani Kleinhaus says. “It changes the landscape from one of beauty, harmony and nature near the Guadalupe River and the bay.”
Topgolf has become a wildly popular franchise for its Dave & Busters-style driving range games. The facilities—about 20 nationwide—include a bar, an on-site restaurant and a multi-level structure with dozens of “hitting bays,” where players swing micro-chipped golf balls at a course dotted with round netted targets.
The proposal for the 36-acre site off of North First Street includes 110,000 square feet of commercial and retail space, a 200-room hotel and 72,000 square feet of indoor and outdoor recreation use surrounded by 170-foot-high netting. Terra Hospitality, the developer and landowner, shelled out $32 million for the property and invested $100 million into the project.
“They want to stay open until 2am playing music and serving alcohol,” Espinoza says. “To me, that sounds like a nightclub pretending to be a golf course. And it’s right across from an elementary school.”
San Jose’s City Council approved the project in a 9-2 vote last month, despite months of protests from Espinoza’s group and the Audubon Society. According to City Attorney Rick Doyle, the planning department decides what level of environmental review under the California Environmental Quality Act (CEQA) is needed for each project.
“Here, planning determined that a ‘mitigated negative declaration’ was sufficient and an [Environmental Impact Report] was not required,” Doyle explained. A mitigated negative declaration is a short document stating that the project, revised to include measures that alleviate environmental impact, would have no significant effect on its surroundings. The alternative sought by the two lawsuits would entail a full-scope Environmental Impact Report, which is much more detailed and includes considerably more public input.
Councilman Lan Diep, who represents District 4, which covers Berryessa, Alviso and parts of north San Jose, was sworn in weeks after the council voted on Topgolf. CEQA lawsuits are notoriously used to stall development, he says. San Jose, incidentally, is in the middle of suing the neighboring city of Santa Clara over claims that a proposed development skirts CEQA requirements. Diep says he doesn’t begrudge Alviso residents for taking legal action, however.
“I’m a lawyer, so litigation doesn’t faze me,” says Diep, who started his career as a public interest attorney helping victims of the Gulf Coast oil spill. “I have great affection for Alviso. It reminds me of New Orleans, where I lived. I know there is this narrative of Alviso being ignored, and there’s some truth to it.”
At the same time, the councilman adds, development is transforming all of Silicon Valley, and Alviso can’t be an island unto itself. Richard Santos, a Santa Clara Valley Water District director and impassioned development supporter whose family has owned land in Alviso for the better part of a century, says Topgolf is the best anyone could hope for that swath of land. A driving range already sits on the property anyway, he adds.
“It provides jobs,” Santos says. “It’s walking distance for our community. It has open spaces. It doesn’t block our school or our views. They’ll put in streets and sidewalks because of this. So it’s a blessing to get this.”
Santos says he supported Espinoza when he filed the lawsuit in 2014 against Trammell Crow, the company that built the 36-acre warehouse and trucking facility across from the elementary school. But this time, the two men fail to see eye to eye, and Santos fears that losing Topgolf would pave the way for the city to approve dense housing at that location.
“That would destroy Alviso,” says Santos, who sat on the task force that hammered out the Alviso master plan. “Anybody who suggests residential doesn’t have the good of the community at heart.”
Yet Espinoza believes Santos is motivated by self-interest—the family owns property next to the Topgolf site and would financially benefit from the development. And Santos, for his part, questions Espinoza’s motivation and the validity of Organizacion de la Comunidad de Alviso, the group he revived a few years ago to challenge Trammell Crow.
“I used to trust this guy,” Santos says, “but I think now that I might have been naive.”
Bob Gross, who has bought and restored historic properties in the waterfront enclave for decades, says San Jose should reject any development in Alviso that goes against the spirit of the master plan. City officials would do well to consider the fraught relationship it has with Alviso, he adds, and take extra care to honor the interests of the community.
“A decision has to be made wisely,” Gross says. “Not financially, not selfishly. San Jose is too hungry for development. They don’t seem to care what kind it is.”
Mark Wolfe, the attorney representing plaintiffs in the Topgolf lawsuit, considers the city’s fast-tracking industrial development in Alviso an unintended consequence of Prop. 13, which starved local governments of property tax revenue.
“We live in the era of the fiscalization of land use,” says Wolfe, who also worked with Espinoza on the Trammell Crow case. “It’s hard for cities to say no to development, particularly non-residential development. Cities feel very pressed to approve projects that raise tax revenue.”
Espinoza says he has no qualms about new development as long as it’s shaped by the will of the people who have to live with it. If the City Council required an environmental review in the first place, he says, there would have been more chances to demand concessions that temper the impact.
“When we think something is bad for us, they don’t even want to talk about it,” he says. “It they want to build it, they’re going to build it. They’re not going to listen to us.”