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Planned San Jose townhomes may lead to flood and environmental hazards, critics say

By Julia Reis | 11 Mar 2013

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Upper Penitencia Creek in San Jose borders homes and businesses and serves as a habitat for wildlife and vegetation. (Photo: Julia Reis/ Peninsula Press)

Upper Penitencia Creek in San Jose borders homes and businesses and serves as a habitat for wildlife and vegetation. (Photo: Julia Reis/ Peninsula Press)

A San Jose proposal to build up to 20 detached townhomes in a residential neighborhood is being challenged by environmental advocates who say that its location in a floodplain and its proximity to creek wildlife could pose problems for residents and animals alike.

Though the San Jose Planning Commission was tentatively scheduled to review the proposal this week, there is currently no hearing scheduled. It originally appeared on the commission calendar in December but has since been delayed.

The delay came after an outpouring of widely negative public comments on the city’s initial study of the development, which deemed that increasing the housing density would not pose any significant hazards to wildlife or flooding concerns for residents. The 3.4-acre lot, which currently houses two ranch-style single-family homes, sits on the edge of Upper Penitencia Creek, a watershed that serves as a habitat to a variety of riparian animals and vegetation.

Animals that live along riverbanks are known as riparian wildlife, and Upper Penitencia Creek hosts many different kinds of plant and animal life, including the steelhead trout and western pond turtle, both special status species (meaning that they are rare enough that they may require special protection). The area is also a Federal Emergency Management Agency designated flood zone, and the creek has flooded seven times since 1978.

“The reason we object is because the development has located structures too close to the creek, so it could potentially cause all these problems,” said Alice Kaufman, legislative advocate with the Committee for Green Foothills, a local preservation nonprofit.

Erik Schoennauer, the land use consultant representing current landowner Murphy Sabatino Jr., said he believes these claims are overblown and questions local environmentalists’ concern for this proposal given what he characterizes as a lack of outrage over the nearby Berryessa BART station development, which sits beside the same creek.

“Where was the Committee for Green Foothills and Audubon Society when” the BART station proposal “happened?” Schoennauer asked. “Somehow this little project signifies the end of the world.”

The land being proposed for the townhomes sits at the corner of Mabury Road and Educational Park Drive and backs up to Upper Penitencia Creek. The surrounding area is home to 5,000 businesses, residences and schools, including three schools within a half mile of the property.

The property originally belonged to Sabatino Jr.’s great grandparents, who farmed there. One of the houses is vacant, while renters occupy the other. Both homes would have to be removed to make way for the townhomes.

Plans for the project, which has been dubbed Sabatino Townhomes, were submitted to the Department of Planning last October. A public meeting was held in the neighborhood that same month but was more widely attended by city officials than concerned residents, according to San Jose senior planner Mike Enderby.

At the same time, the city conducted an environmental review and released its findings at the end of October. The report concluded that the development would not have a significant environmental impact if protective measures were included. These measures include maintenance and monitoring of the setback area, as well as the addition of at least 15 trees and 40 shrubs, as recommended by Live Oak Associates, Inc., an ecological consulting firm used for the report.

In a letter submitted during the project’s public comment period, Kaufman outlined her dissatisfaction with the report, saying it “fails to adequately analyze impacts to special status species, riparian habitat, movement of wildlife and wildlife corridors, and conflicts with local policies.”

The local policy Kaufman refers to is San Jose’s Riparian Corridor Policy Study, in which the city mandates a 100-foot setback from the creek edge for all development. The guideline is in place to prevent encroachment on native vegetation and wildlife. Kaufman and others found fault with the original proposal because it called for the property to be an average distance of 96 feet away from the creek, meaning that by nature of the lot’s shape and the developer’s request the townhomes would come within 66 feet of the creek edge.

“It’s not just a matter of what’s good for the environment, but from the point of view of saving the taxpayers money not to put development in an area prone to flooding,” Kaufman said.

Although Schoennauer says he and Sabatino Jr. may consider tweaking project plans to meet the riparian corridor policy, he says it is merely a recommendation and not a requirement. The policy study’s language does suggest that these are guidelines, and Schoennauer provided a list of projects that were less than 100 feet from the riparian corridor that were accepted. Moreover, he believes the proposal as currently constructed vastly improves the riparian corridor by adding 50,901 square feet of new habitat.

“All of the greenhouses, the roadway, the domestic landscaping that you see here will all be removed,” Schoennauer says, gesturing to the fenced-off yard beyond the dirt driveway. “The new development will be pushed way back away from the creek and this area will be restored to new riparian habitat.”

He adds that there are exceptions to the riparian corridor policy, including one that addresses lots that are unusually shaped, which he believes is applicable to this property.

Laurel Prevetti, San Jose’s Assistant Director of Planning, Building and Code Enforcement, says the riparian policy is “not meant to be an average” setback “but an absolute from every point along that creek corridor.” She believes that if the developer were to revise its plans to comply with the policy, that would help to mitigate concerns about flooding and wildlife encroachment.

“If the project is changed and increases the setback, then that may have implications for the flooding issue,” she says.

Schoennauer, however believes flooding concerns are unwarranted, calling warnings from Kaufman and other environmental advocates “just a side issue to get attention.”

“If one reads the facts in the flood analysis, what it says is the only water that flows to the side of the road is what can fit through that culvert,” Schoennauer says, pointing to a drain that sits near the property. “If that’s the only volume that can flow into the creek channel, it would mean that the water would not rise onto our property.”

While Kaufman acknowledges that complying with the riparian corridor would be “a big improvement,” she is still concerned about locating the project on a floodplain and would want to see any revisions before changing her opinion. She adds that continuing to approve developments that encroach on riparian corridors could severely damage these wildlife habitats.

“In California where water is scarce, stream corridors are extremely valuable habitats. So when you impact a creek corridor so much that you’re destroying the habitat” she insists “then you really are having an impact over a much wider area.”

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