Plans for Topgolf Entertainment Complex in Alviso Drive Lawsuits

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.”

Jennifer Wadsworth is a staff writer for San Jose Inside and Metro Newspaper. Email tips to [email protected] or follow her on Twitter at @jennwadsworth.

14 Comments

  1. I can’t think of a land use that “will inundate the quiet neighborhood with traffic and noise” less than a golf course driving range. These self-appointed neighborhood do-ggoders had best think twice, because if they succeed in stopping this use they might regret it when a nightclub moves in…

  2. Open space – staggered traffic – jobs – possible retail – alternative, traffic mass in morning and afternoons and blockage of our view of the valley- mass amount of people who will require City services witch San Jose lacks greatly

    Beware of what might be with the unknown

    • > Beware of what might be with the unknown

      Translation: FEAR! FEAR! FEAR!

      It’s amazing how often open minded “progressives” resort to ignorant fear to stop progress.

  3. Let’s take a stab at identifying the REAL players:

    — “a grassroots group called Organizacion de la Comunidad de Alviso”: George Soros and New York intellectuals;

    — “Santa Clara Valley Audubon”: Al Gore and San Francisco trust fund children who own zillions of shares of Chevron and Occidental Petroleum stock.

  4. Alviso is a hidden gold mine developers have been trying to steal for about as long as I can remember. It’s maybe the last realy rural spot left in the south bay and has some tenacious residents with nothing to lose. Anyone wanting to develope this spot should bring a big checkbook and make sure every land owner never has to work a day in his life again. Well done Alviso I’m rooting for you the little guy!

    • Here here EG. Just look around San Jose if you want to see the result of letting City Hall- our wonderful councilpersons make all the decisions. Malls. Houses. Condos. Apartments. More houses. More condos. More apartments. Wires. Graffiti. Shopping carts full of trash. Potholes. Squalor. Ugliness. But Oh!! Lots and lots of revenue for the City!!!
      If anything we need MORE NIMBYism not less.

      • Alviso is a small beautiful community and we need leaders in the city counsel that aren’t greedy, and actually listen to the people this affects. They cut corners on everything! Alviso is on a superfund list and digging up dirt and ignoring to do an environmental impact report is not only lazy, but criminal. We have a right to know if we are going to be breathing in asbestos while you build a stupid driving range/night club. We have had recreational businesses before that served alchol and everyone knows all the awful things and people it attracted here. So if you do not live here, it doesn’t matter what you think.

        • I’m rooting for the little guys too. And the herons, the marshlands, the sloughs, the foxes, fish, and redtails. I’ve long witnessed the environmental destruction that our supposedly “green” city has allowed as it panders to every special interest and grabs at every revenue dollar.

  5. Don’t be silly. I’m on your side. Just like you I’d like for this project to be properly reviewed. There’s a lot of merit to the notion of preserving what’s left of Alviso’s small town waterfront character.
    But are we hamstrung here? Is there any way to reign in the development juggernaut and is a driving range/restaurant/bar/hotel complex the best compromise that we can hope for? As long as SJ City Council is comprised of cookie cutter crony Democrats it might just be.

  6. It’s general one or the other John, I’ve known some of the locals down there over the last 35 years and they have
    done well fighting one battle after another but sooner or later they will be surrounded by hi-rise’s and the old charm of the place will be lost, pretty much is already.
    That’s when it’s time to pick the pockets of politicians and developers, I not sure it will ever be the yacht club someone envisioned back before the great flood, and the stench means nothing outdoorsy will be a big seller.
    I can see a lot of fablabs going in.

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