The Resident

News

Development becomes neighborhood nightmare

By Mary Gottschalk

Residents on three blocks backing up to the former Fiesta Lanes bowling alley on W. San Carlos Street believe their recent experiences are a blueprint for everything that can go wrong with infill housing in the city of San Jose.

Owners of single-story homes built in the 1920s along N. Buena Vista, Sierra and Willard avenues have had their trees sheared off at their backyard fences, have endured shaking generated from earth compacting machines so intense that many mistook the vibrations for earthquakes, and now, they've all received letters from the developer saying that they are going to lose as much as 10 feet of space from their back yards.

On April 7, ROEM, the development company that is building housing on the former bowling alley site, distributed letters to approximately 17 property owners informing them that a recent ROEM survey of property lines "has determined our property line to lie in the enclosed portion of property behind your fence.

"In most cases, the property line was determined to lie somewhere between one and two feet beyond the existing fence. In some of the worst cases, the property line was determined to lie nearly 10 feet beyond the existing fences."

The one-page letter carried the name but not the signature of Jonathan Emami, vice president of ROEM Builders.

The last paragraph says:

"This letter is to inform you at this time that your fence, and in some cases, personal property is on our property. Enclosed is a form we would like you to complete and send back to us so we know which action you would like to proceed with."

The action options are for ROEM "to remove all the items along the property line" or for the homeowners to remove it themselves.

The letter says ROEM wants to start building a new fence on what its survey shows is its property line "within the next 10-15 days."

ROEM has not released copies of the survey, which it conducted independently. Neighbors say they are waiting to view the survey and obtain county records for a comparison.

The property owner of 90 N. Buena Vista discovered her side fence and a portion of concrete foundation under the garage taken down on April 8, before she was even aware of the developers' letter.

"There is a great deal of enthusiasm for infill building, but no one seems to have thought out the way these developments are going to impact existing neighborhoods," says Bill Knickel, who has lived at the corner of Buena Vista and Sierra for more than 14 years.

Terri Balandra, who has lived on Sierra for 11 years and in the neighborhood for 39 years, agrees.

"We are absolutely stunned."

Balandra says when she opened the letter, "I started laughing. I thought it was a cruel joke. Can you imagine anyone telling you this?

Emami says ROEM sent out letters in response to numerous neighborhood phone calls from residents asking when the company planned to install a fence at the back of the property.

Usually fences are installed at the time the landscaping is done, near the end of the project, he says, adding, "They didn't want to wait, so we got more proactive."

He says he's working with the surveyors to prepare a map "to show where their fences are encroaching on our property. It takes about a week and as soon as it's done, I'll respond to them in writing..

"We want to work with them. We don't want any animosity, and that's why we sent out the letter," Emami says.

Diane Hunt, who lives on N. Buena Vista, says when she opened the letter her first thought was of the giant redwood tree in her back yard very close to the back fence.

Hunt says that when she and her husband bought their home three years ago they were told of the planned development, but nothing prepared them for what it was going to be like living next to the construction site.

The biggest shock was to Andrew Riziel Ricaforte, who owns the house at 90 N. Buena Vista Ave. but does not reside there.

Ricaforte drove by on April 8 and saw that the concrete block fence that had separated her driveway and garage from the development had been torn down and the concrete footing under her garage had been partially knocked out.

The ROEM letter had been left on the doorstep.

After trying to talk to the construction crew, Ricaforte went to city hall and says she spent half the day there being sent from one department to the next.

Emami says Ricaforte's garage was on ROEM's property. The company's intent was to put up a small portion of fence to see what it would look like.

"The intent is not and has never been to tear down all their fences and install our fence. We want them on board; we want to work with them."

Still, Emami says any of the fences on ROEM's property will have to come down because it would be unfair to the new home owners at the low-income development if they are required to pay taxes on land they don't have access to.

Chet Lockwood, a 14-year resident of N. Buena Vista Avenue across the street from the homes backing up to the development, shares Balandra's frustration.

"We did everything we thought was proper. We had 150 neighbors actively involved from 2003 to 2004 and a total consensus with the builder at the time of the finalization of the permit process in 2004, with the promise we'd be brought back into the process for the final revisions," he says.

The Fiesta Lanes Action Group that Lockwood refers to was formed around 2002 when Core Development, which is now in partnership with ROEM Builders, made its first development proposal. Core wanted to put in 179 rental apartments and townhomes with a height of 38.5 feet.

With help from then San Jose City Councilman Ken Yeager's office and the planning department, FLAG members believed that they had reached an accord with Core and its representative Chris Neale for a scaled-down development of 34 townhomes and 94 senior rental units with maximum heights of 28.5 feet.

However, when construction on the project actually started last November, residents found they were no longer dealing with Neale and Core but with ROEM, and agreements they thought were in place were not, including retaining the old trees at the back of the development.

Balandra says she was awakened at 7:15 a.m. on the first day of construction hearing "a god-awful sound."

She went out in her back yard to find that a ROEM crew had, she says, "sliced off my own trees in my own back yard.

"It wasn't just my yard. The neighbors on both sides of me had their trees cut."

Susan Claire, one of the founders of FLAG and an 18-year resident of N. Buena Vista, recalls the day well.

"I woke and could hear the chain saws buzzing and the chipper machines; they had six or seven of them," Claire says.

"I looked over the fence and watched them going around and shirring off the trees."

Claire immediately called Neale at Core, but it took close to two hours to stop the shearing and by then all the properties on Willard and Sierra had been sheared.

Emami says he has no knowledge of the tree shearing incident on the first day of construction.

The planned development permit allowed ROEM to remove all the trees they wanted. Residents believed ROEM would leave some, but the developer didn't. Residents also believed they would get eucalpytus trees along the property lines since it was in the permit, but ROEM made a change and the planning department says it's the developer's right to do that.

Lockwood, who has owned his home for 14 years, points out, "The bowling alley was there 50 years ago and the houses and fences were built 80 to 90 years ago. Now, toward the end of the project, they're telling property owners that their fences, garages, plantings and back yards are built over their property lines.

Knickel says he's "extremely aggravated" over the letter.

He says the back fence lines have been in place since the houses were built in the 1920s and 1930s and on some properties, the back garage wall is the fence.

"Those back fences have been replaced over time and the bowling alley paid half the costs of some of the fences that now exist there," Knickel says.

Lee Butler, project director with the city planning department, said, "There's a lot of misunderstanding in the community we've been in contact with.

"I'm not sure why things aren't understood, but unfortunately, it seems the community doesn't have the right perspective on what has been approved and what hasn't and what's going to be done."

When it comes to the fence issue and loss of backyard space, Butler says the city has no comment.

"That's a civil issue. The location of the property lines is something they're going to have to work out," Butler says, adding, "If I were the property owners, I'd seek legal counsel regarding that."

Neighbors say Councilman Pierluigi Oliverio met with FLAG representatives in his office in March and then sent a four-page letter outlining their concerns and the city's position on each one. Essentially the letter, which Butler help prepare, says that things residents thought would be decided mutually were outlined in the planned development permits issued in 2004.

Oliverio, who succeeded Yeager in District 6 and now represents the affected residents, has not been responsive to their calls, residents say.

A staff member who asked not to be named said Oliverio considers it a civil issue "that they will have to deal with."

Claire called Mayor Chuck Reed's office on April 9 and was told they would look into the letters.

On April 10 she got a call back saying the city attorney decided it's a civil issue that the city would not get involved in, and suggesting that perhaps she should ask Oliverio to step in and mediate.

City attorney Rick Doyle says that while the issue could have been better handled by ROEM, the question of property boundaries is between property owners.

However, Doyle says that since the city is a lender on the development, having already loaned $4.7 million to Core and ROEM and given them a $4.8 million grant, the city as a lending institution "may have concerns about the neighborhood relationships."

Since the money comes from taxpayers and the developers are expected to ask for additional funds for the second phase of the project, Doyle says, "we might be concerned if the developer is doing something that might trigger a lawsuit."

Property owners are now talking to attorneys, but remain angry at what they see as a lack of support from elected officials and the city.