HomeMy WebLinkAbout2017-09-18 City Council Agenda PacketCity Council
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Monday, September 18, 2017
Special Meeting
Council Chambers
5:00 PM
Agenda posted according to PAMC Section 2.04.070. Supporting materials are available in the Council Chambers on the Thursday 11 days preceding the meeting.
PUBLIC COMMENT Members of the public may speak to agendized items; up to three minutes per speaker, to be determined by the presiding officer. If you wish to address the Council on any issue that is on this agenda, please complete a speaker
request card located on the table at the entrance to the Council Chambers, and deliver it to the City Clerk prior to discussion of the item. You are not required to give your name on the speaker card in order to speak to the Council, but it is very helpful.
TIME ESTIMATES Time estimates are provided as part of the Council's effort to manage its time at Council meetings. Listed times are estimates only and are subject to change at any time, including while the meeting is in progress. The Council
reserves the right to use more or less time on any item, to change the order of items and/or to continue items to another meeting. Particular items may be heard before or after the time estimated on the agenda. This may occur in order to best manage the time at a meeting or to adapt to the participation of the public. To ensure participation in a particular item, we suggest arriving at the beginning of the meeting and remaining until the item is called.
HEARINGS REQUIRED BY LAW
Applicants and/or appellants may have up to ten minutes at the outset of the public discussion to make their remarks and up to three minutes for concluding remarks after other members of the public have spoken.
Call to Order
Closed Session 5:00-6:00 PM
Public Comments: Members of the public may speak to the Closed Session item(s); three minutes per speaker.
1.CONFERENCE WITH LABOR NEGOTIATORS
City Designated Representatives: City Manager and his Designees
Pursuant to Merit System Rules and Regulations (James Keene,
Ed Shikada, Molly Stump, Rumi Portillo, Lalo Perez)
Employee Organization: Utilities Management and Professional
Association of Palo Alto (UMPAPA)
Authority: Government Code Section 54957.6(a)
Special Orders of the Day 6:00-6:30 PM
2.Proclamation of the Council of the City of Palo Alto Honoring Daryl
Savage for her Service to the Human Relations Commission
3.Proclamation of the Council of the City of Palo Alto Honoring Greer
Stone for his Service to the Human Relations Commission
REVISED
2 September 18, 2017
MATERIALS RELATED TO AN ITEM ON THIS AGENDA SUBMITTED TO THE CITY COUNCIL AFTER DISTRIBUTION OF THE AGENDA
PACKET ARE AVAILABLE FOR PUBLIC INSPECTION IN THE CITY CLERK’S OFFICE AT PALO ALTO CITY HALL, 250 HAMILTON AVE.
DURING NORMAL BUSINESS HOURS.
4.Proclamation Honoring Cybersecurity Awareness Month
5.Proclamation Declaring the Month of September as Emergency
Preparedness Month
Agenda Changes, Additions and Deletions
City Manager Comments 6:30-6:40 PM
Oral Communications 6:40-6:55 PM Members of the public may speak to any item NOT on the agenda. Council reserves the right to limit the duration of
Oral Communications period to 30 minutes.
Consent Calendar 6:55-7:00 PM Items will be voted on in one motion unless removed from the calendar by three Council Members.
6.4157 El Camino Way, Unit C-3 & C-4 [17PLN-00051]: Request for a
Hearing on the Director's Tentative Approval of a Conditional Use
Permit (CUP) to Allow Medical Office Use (Dentist). Environmental
Assessment: Exempt From the Provisions of the California
Environmental Quality Act (CEQA) per Guidelines Section 15301.
Zoning District: Neighborhood Commercial (CN)
7.Adoption of an Ordinance Establishing a Permitting Program for
Tobacco Retailers to be Administered by Santa Clara County
8.Request for Authorization to Increase Existing Contract for Legal
Services With the Law Firm of Renne Sloan Holtzman & Sakai by an
Additional $15,000 for a Total Not-to-Exceed Amount of $210,000 for
Litigation Services
9.SECOND READING: Adoption of an Ordinance of the Council of the City
of Palo Alto Extending Interim Ordinance No. 5357 That Added
Sections 18.85.200 Through 18.85.208 to Chapter 18.85 of Title 18
Imposing an Office Annual Limit of 50,000 Square Feet in Designated
Areas of the City (FIRST READING: September 5, 2017 PASSED: 9-0)
Action Items
Include: Reports of Committees/Commissions, Ordinances and Resolutions, Public Hearings, Reports of Officials, Unfinished Business and Council Matters.
7:00-9:00 PM
10.PUBLIC HEARING / QUASI-JUDICIAL 3877 El Camino Real
[14PLN-00464]: Adoption of a Mitigated Negative Declaration and
Mitigation Monitoring and Reporting Plan and Approval of a Site and
Design Review for the Demolition of the Vacant 5,860 Square-foot Commercial Building and Construction of a new Mixed-use Project. The
Project Includes a 4,027 Square-foot Commercial Building and 17
Q&A
Q&A
3 September 18, 2017
MATERIALS RELATED TO AN ITEM ON THIS AGENDA SUBMITTED TO THE CITY COUNCIL AFTER DISTRIBUTION OF THE AGENDA
PACKET ARE AVAILABLE FOR PUBLIC INSPECTION IN THE CITY CLERK’S OFFICE AT PALO ALTO CITY HALL, 250 HAMILTON AVE.
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Dwelling Units (Flats and Townhouses). Parking for the Project is
Provided in a Basement. The Applicant Also Requests Approval of a
Design Enhancement Exception to Allow the Basement to Encroach
Into the Required Rear Yard Setback Below Grade. Environmental
Assessment: A Mitigated Negative Declaration was Circulated Between
March 6, 2017 and April 7, 2017. Both the Planning & Transportation
Commission (March 8, 2017) and Architectural Review Board (May 18,
2017) Have Recommended Approval of the Project. Zoning Districts:
CS and RM-30 (Continued From August 28, 2017)
9:00-10:00 PM
11.Presentation by the Palo Alto Transportation Management Association
and Approval of an Amendment to the Funding Agreement Between
the City of Palo Alto, the Silicon Valley Community Foundation, and the
Palo Alto Transportation Management Association to Provide $480,000
in FY2018
Inter-Governmental Legislative Affairs
Council Member Questions, Comments and Announcements
Members of the public may not speak to the item(s)
Adjournment
AMERICANS WITH DISABILITY ACT (ADA) Persons with disabilities who require auxiliary aids or services in using City facilities, services or programs or who
would like information on the City’s compliance with the Americans with Disabilities Act (ADA) of 1990, may contact (650) 329-2550 (Voice) 24 hours in advance.
12.Review of the Letter From the City of Palo Alto to the Caltrain Board, VTA Board, and County Supervisors Regarding Support for SB 797 and
Necessary Board Governance Changes Allowing for Fair City
Representation
4 September 18, 2017
MATERIALS RELATED TO AN ITEM ON THIS AGENDA SUBMITTED TO THE CITY COUNCIL AFTER DISTRIBUTION OF THE AGENDA
PACKET ARE AVAILABLE FOR PUBLIC INSPECTION IN THE CITY CLERK’S OFFICE AT PALO ALTO CITY HALL, 250 HAMILTON AVE.
DURING NORMAL BUSINESS HOURS.
Additional Information
Standing Committee Meetings
Finance Committee Meeting
Sp. Policy and Services Committee Meeting
Sp. City/School Committee Meeting
September 19, 2017
September 20, 2017
September 21, 2017
Schedule of Meetings
Schedule of Meetings
Tentative Agenda
Tentative Agenda
Informational Report
City of Palo Alto's Energy Risk Management Report for the Third and Fourth Quarters of Fiscal Year 2017
Public Letters to Council
Set 1
Joint Recycled Water Oversight Committee September 19, 2017
City of Palo Alto (ID # 8389)
City Council Staff Report
Report Type: Special Orders of the Day Meeting Date: 9/18/2017
City of Palo Alto Page 1
Summary Title: Proclamation Honoring Daryl Savage
Title: Proclamation of the Council of the City of Palo Alto Honoring Daryl
Savage for her Service to the Human Relations Commission
From: City Manager
Lead Department: Community Services
Attachments:
Attachment A: Proclamation Honoring HRC Commissioner Daryl Savage
Proclamation
Honoring Daryl Savage
WHEREAS, Daryl Savage served on the Human Relations Commission (HRC) for 12 years and, during her
tenure, served as both Vice Chair and Chair; and
WHEREAS, Daryl dedicated herself to serving as a bridge between the HRC and the Palo Alto Police
Department. She created and served on the HRC Police Liaison Committee her entire tenure as a commissioner,
participated in the candidate selection process for the Police Chief Advisory Group, served as a member of the
Citizens Advisory Group for its duration, and participated on numerous panels to recommend officers for
promotions; and
WHEREAS, Daryl was instrumental in the effort to promote the HRC to key media outlets, which
increased press coverage of numerous HRC activities; and
WHEREAS, Daryl was the first HRC liaison to Project Safety Net and represented the HRC at Board of
Education meetings; and
WHEREAS, Daryl served on an ad hoc subcommittee for recommendations for the Community
Development Block Grant (CDBG) program; and
WHEREAS, Daryl was committed to regional relationships with other HRC commissioners, attended many
Santa Clara-wide HRC Commissioner gatherings, as well as attended the California Association of Human
Relations Organizations conference; and
WHEREAS, Daryl, along with other commissioners, conducted site visits of many of the agencies that
receive Human Services Resource Allocation Process (HSRAP) funding to become more aware of the services
offered, as well as hear about the agencies’ successes and challenges.
NOW, THEREFORE, I, Gregory Scharff, Mayor of the City of Palo Alto, on behalf of the City Council
do hereby gratefully extend appreciation to Daryl Savage for her years of faithful service to the City of Palo
Alto.
Presented: September 18, 2017
______________________________
H. Gregory Scharff
Mayor
City of Palo Alto (ID # 8388)
City Council Staff Report
Report Type: Special Orders of the Day Meeting Date: 9/18/2017
City of Palo Alto Page 1
Summary Title: Proclamation Honoring Greer Stone
Title: Proclamation of the Council of the City of Palo Alto Honoring Greer
Stone for his Service to the Human Relations Commission
From: City Manager
Lead Department: Community Services
Attachments:
Attachment A: Proclamation Honoring HRC Commissioner Greer Stone
Proclamation
Honoring Greer Stone
WHEREAS, Greer served on the Human Relations Commission (HRC) for four years and as Chair his last
year; and
WHEREAS, Greer helped to organize a well-attended and well-received Veterans Summit on ending
chronic homelessness; and
WHEREAS, during his tenure on the HRC, Greer served on ad hoc subcommittees for funding
recommendations for both Community Development Block Grant (CDBG) funding program and the Human
Services Resource Allocation Process (HSRAP) funding program; and
WHEREAS, Greer served as the HRC’s liaison to the Palo Alto Mediation Program and Project Safety Net
and was an advocate for issues related to youth well-being; and
WHEREAS, Greer served as one of the HRC’s liaisons to the Palo Alto Police Department and assisted on
a community panel to recommend officers for promotions; and
WHEREAS, Greer, along with other commissioners, conducted site visits of many of the agencies that
receive HSRAP funding to become more aware of the services offered, as well as hear about the agencies’
successes and challenges; and
WHEREAS, during his last year on the commission as Chair, Greer committed himself to addressing issues
of inclusion, with a focus on immigrant rights.
NOW, THEREFORE, I, Gregory Scharff, Mayor of the City of Palo Alto, on behalf of the City Council
do hereby gratefully extend appreciation to Greer Stone for his years of faithful service to the City of Palo Alto.
Presented: September 18, 2017
______________________________
H. Gregory Scharff
Mayor
City of Palo Alto (ID # 8486)
City Council Staff Report
Report Type: Special Orders of the Day Meeting Date: 9/18/2017
City of Palo Alto Page 1
Summary Title: Cybersecurity Awareness Month Proclamation
Title: Proclamation Honoring Cybersecurity Awareness Month
From: City Manager
Lead Department: IT Department
Attachments:
Attachment A: Proclamation Honoring Cybersecurity Awareness Month
Proclamation
Cybersecurity Awareness Month – October 2017
WHEREAS, the City of Palo Alto recognizes it plays a vital role in identifying, protecting and responding
to cyber threats that may have a significant impact on security and privacy; and
WHEREAS, critical infrastructure sectors are increasingly reliant on information systems to support
financial services, energy, telecommunications, utilities, health care and emergency response systems; and
WHEREAS, the “Stop.Think.Connect.™” Campaign is designated as the National Public Awareness
Campaign implemented through a coalition of private companies, nonprofit and government organizations and
academic institutions, aimed at increasing the understanding of cyber threats and empowering the American
public to be safer and more secure online; and
WHEREAS, in support of the Cybersecurity Framework, and to better assist businesses and government
entities in addressing cyber threats, the Center for Internet Security/Multi-State ISAC, the Council on
Cybersecurity, the Governors’ Homeland Security Advisors Council and public and private sector entities have
developed a campaign to promote good cyber hygiene through actionable guidance for government and
businesses, and to promote innovation, strengthen cybersecurity investment and enhance resilience across all
sectors; and
WHEREAS, maintaining the security of cyberspace is a shared responsibility in which each of us has a
critical role to play by being aware of computer security essentials that will improve the security of the City of
Palo Alto’s information infrastructure and the economy; and
WHEREAS, the U.S. Department of Homeland Security (www.dhs.gov/cyber) and the National
Cybersecurity Alliance (www.staysafeonline.org) have declared October as National Cybersecurity Awareness
Month, where all citizens are encouraged to visit the “Stop.Think.Connect.” Campaign website
(https://www.dhs.gov/stopthinkconnect) and put that knowledge into practice in their homes, schools,
workplaces, and businesses.
NOW, THEREFORE, I, H. Gregory Scharff, Mayor of the City of Palo Alto, on behalf of the City
Council do hereby proclaim that the City of Palo Alto officially supports National Cybersecurity Awareness
Month and the National Public Awareness Campaign “Stop.Think.Connect.™”
Presented: September 18, 2017
______________________________
H. Gregory Scharff
Mayor
City of Palo Alto (ID # 8357)
City Council Staff Report
Report Type: Special Orders of the Day Meeting Date: 9/18/2017
City of Palo Alto Page 1
Summary Title: Proclamation- Emergency Preparedness Month
Title: Proclamation Declaring the Month of September as Emergency
Preparedness Month
From: City Manager
Lead Department: Office of Emergency Services
Attachments:
Attachment A: Emergency Preparedness Month Proclamation
Proclamation
Emergency Preparedness Month
September 2017
WHEREAS, this is a unique opportunity for Palo Alto to join forces with thousands of other communities
across the country to promote personal preparedness; and
WHEREAS, the City of Palo Alto wants to change perceptions about emergency preparedness and help
Palo Altans take simple steps to get "Ready" and to prepare for emergencies and disasters, including all
hazards, including, crime, terrorism, earthquakes, infrastructure failure, and other risks. Even though we don't
know when or where disasters and emergencies may strike, we do know that we can do more to be prepared
for the unexpected; and
WHEREAS, many things compete for our attention these days, and while it may seem overwhelming to
get prepared, we know from experience that taking steps to prepare ahead of time can help us respond better
and stay safer in an emergency; and
WHEREAS, the time and effort we invest now in preparing will help us and our family navigate through
and recover quickly from what may come our way at the most unexpected moment. The time to act is now,
before the next disaster strikes; and
WHEREAS, the Office of Emergency Services has developed a comprehensive emergency preparedness
program for the community, including the Emergency Services Volunteer (ESV) program, that encourages
neighbors, businesses, and non-government organizations to volunteer or otherwise to help improve our
community's resilience.
NOW, THEREFORE, I, H. Gregory Scharff, Mayor of the City of Palo Alto, on behalf of the City
Council do hereby proclaim the month of September Emergency Preparedness Month in the City of Palo Alto,
and call upon all citizens of the Palo Alto Community to join together as we support National Preparedness
Month sponsored nationally by the Department of Homeland Security.
Presented: September 18, 2017
______________________________
H. Gregory Scharff
Mayor
City of Palo Alto (ID # 8353)
City Council Staff Report
Report Type: Consent Calendar Meeting Date: 9/18/2017
City of Palo Alto Page 1
Summary Title: 4157 El Camino Way: Hearing Request for CUP
Title: 4157 El Camino Way, Unit C-3 & C-4 [17PLN-00051]: Request for a
Hearing on the Director's Tentative Approval of a Conditional Use Permit
(CUP) to Allow Medical Office Use (Dentist). Environmental Assessment:
Exempt from the provisions of the California Environmental Quality Act
(CEQA) per Guidelines Section 15301. Zoning District: Neighborhood
Commercial (CN).
From: City Manager
Lead Department: Planning and Community Environment
Recommendation
Staff recommends that Council take the following action:
1. Adopt the Record of Land Use Action approving, based on findings and subject to
conditions, the proposed Conditional Use Permit to allow continued use of the subject
tenant space for medical office use.
Background
The Hamlet is a mixed use commercial and residential development located at the subject
address. It was approved and began construction prior to the city’s adoption of a 1985
ordinance limiting ground floor office to 5,000 square feet in this zone. Based on
correspondence from the time, it appears the development was authorized to have 8,960
square feet of office space, or approximately 70 percent of the commercial ground floor area.
However, a review of the administrative record over the intervening three decades provides
insufficient details regarding which tenant spaces were authorized for retail and which may
have been rendered nonconforming by the 1985 Ordinance. Moreover, an apparent inattention
to this limit over time has resulted in further expansion of office uses at this property.
Presently, nine out of 11 commercial tenant spaces (including the subject space) are being used
for office or medical related uses; this represents approximately 9,085 square feet or 79.4
percent of commercial space today. A further complication to this site is that each commercial
tenant space is individually owned, which may frustrate efforts to restore to the site to its pre-
City of Palo Alto Page 2
1985 office floor area. The remaining two tenant spaces consist of a vacant 1,181 square foot
space (4153 - Suite A) most recently utilized for office use by the Integrated Healing Arts
practice and a 555 square foot space (4155 - Suite A) currently serving as a hair studio, which is
a retail or retail-like use and protected under the city’s recent retail preservation ordinance.
However, because the subject tenant space has historically been used as a medical office, it is
not subject to the retail preservation ordinance.
The subject conditional use permit (CUP) application was filed in response to a code
enforcement action and stop work order issued at the tenant space for illegal construction to
establish the subject dental use. While the specific tenant space has a 22-year history of
medical related uses, the confused entitlement history made it difficult for staff to determine
which uses were legal nonconforming, approved in error, or illegally established. Accordingly,
and based on guidance provided in the code, staff determined resolution of the matter was
best achieved with the filing of a CUP application. The Director’s tentative approval was
challenged by another Hamlet occupant and the matter is now before the Council for final
action. The Council may accept this report and grant the CUP on consent, or at least three
councilmembers may agree to pull the item from consent to conduct a future hearing on the
matter.
The individual requesting the hearing noted six reasons the CUP should be rejected. Staff
concluded all but one were based on incorrect information. The remaining objection related to
the the lack of administrative history that the CUP application attempts to remedy, at least for
the subject tenant space. It is noteworthy that the individual requesting the hearing did not
attend the Planning and Transportation Commission (PTC) hearing.
The PTC reviewed the application on July 26, 2017. The commission’s report is included as
Attachment B and includes all the relevant history, including analysis of the hearing requestor’s
reasons against the CUP application. The PTC concurred with staff and recommended approval
of the CUP 4-1. The dissenting commissioner expressed concern for the need to retain ground-
floor retail and the potential precedent setting nature of future developments with multi-party
ownership. Staff appreciates these dissenting remarks, but suggests the evidence that is
available shows a long history of medical related uses at the subject tenant space and improved
record keeping and documentation should mitigate the risk of facing similar conditions for
more contemporary projects.
Notwithstanding these conclusions, the Council has discretion to review the project as it relates
to the CUP findings (see Attachment A). If findings cannot be made to support the CUP and it is
denied, only a conforming use can occupy the building, specifically, retail or retail-like uses.
While there are clearly stated policies promoting the preservation of retail in the city, this
interest may also be balanced with the history of office-related uses at the site generally, and
more specifically at this tenant space; it’s location just off El Camino Real on El Camino Way;
City of Palo Alto Page 3
and the significant challenges in equitably determining which of the commercial tenant owners
at the Hamlet may be permitted to retain office and which ones must convert their tenant
spaces to other uses. The city has limited records that help resolve these challenges.
The attached documents provide more background and analysis for the Council’s consideration.
Environmental Review
The subject project has been assessed in accordance with the authority and criteria contained
in the California Environmental Quality Act (CEQA), the State CEQA Guidelines, and the
environmental regulations of the City and determined to be categorically exempt in accordance
with CEQA Guidelines Section 15301.
Attachments:
Attachment A: Location Map (PDF)
Attachment B: Record of Land Use Action (DOCX)
Attachment C: May 30, 2017 Tentative Letter of Approval (PDF)
Attachment D: Request for Hearing Letter (PDF)
Attachment E: Correspondence from Hamlet Commercial Assoc. President (PDF)
Attachment F: City/Developer Correspondence from June 1985 (PDF)
Attachment G: Parking Analysis (PDF)
Attachment H: Project Plans (DOCX)
Attachment I: PTC Staff Report - July 26, 2017 4157 ECW CUP (w/o attachments) (PDF)
Attachment J: PTC Excerpt Minutes for July 26, 2017 (DOCX)
DRAFT Attachment B
APPROVAL NO. _______
RECORD OF THE COUNCIL OF THE CITY OF PALO ALTO LAND USE ACTION FOR 4157 EL CAMINO WAY –
SUITE C3 & C4: CONDITIONAL USE PERMIT
[FILE NO. 17PLN-00051]
On ______, 2017, the City Council upheld the Planning and Transportation
Commission’s recommendation to approve the applicant’s request for approval of a Conditional Use
Permit to allow the operation of a Medical Office use (dentist office) located at 4157 El Camino Way –
Suite C3 & C4, making the following findings, determination and declarations:
SECTION 1. BACKGROUND. The City Council of the City of Palo Alto (“City Council”) finds,
determines, and declares as follows:
A. On February, 16, 2017, the applicant applied for a Conditional Use Permit to allow a
Medical Office use for the operation of a dental practice at the existing site located at 4157 El Camino
Way – Suite C3 & C4.
B. The proposed use is defined as a Medical Office use in accordance with PAMC Section
18.04.030 (95). This is a conditionally permitted land use in the CN zoning district in accordance with
PAMC Section 18.16.040 – Table 1.
C. Following staff review, the Director of Planning considered and proposed approval of
the Conditional Use Permit application on May 30, 2017.
D. Following a timely request for hearing received on June 12, 2017, the Planning and
Transportation Commission (Commission) reviewed the project on July 26, 2017, and recommended
approval of the project to City Council.
E. On_______, 2017, the City Council reviewed the request. After hearing public
testimony, the Council voted to approve the project.
SECTION 2. ENVIRONMENTAL REVIEW. The subject project has been assessed in accordance
with the authority and criteria contained in the California Environmental Quality Act (CEQA), the State
CEQA Guidelines, and the environmental regulations of the City and determined to be categorically
exempt in accordance with CEQA Guidelines Section 15301.
SECTION 3. CONDITIONAL USE PERMIT FINDINGS. The proposed use complies with the Findings
for a Conditional Use Permit as required in Chapter 18.76.010 (c) of the PAMC.
Finding #1: The proposed use, at the proposed location, will not be detrimental or injurious to property or
improvements in the vicinity, and will not be detrimental to the public health, safety, general welfare, or
convenience.
This finding can be made in the affirmative. The proposed Medical Office use is a permitted
conditional use in the Commercial Neighborhood District (CN). The 1,244 square foot subject tenant
space (Unit “C”) is located in an existing building (Building #3) located at 4157 El Camino Way within
a 75,050 square foot mixed-use development (4149-4161 El Camino Way). The proposed use meets
the definition of Medical Office, as the tenant would provide consultation, diagnosis, therapeutic,
preventive, or corrective personal treatment services by doctors, dentists, medical and dental
laboratories, and similar practitioners of medical and healing arts for humans, licensed for such
practice by the state of California. The use would be compatible with surrounding retail uses
because the occupants would provide another customer base during weekday operating hours and
would generally not add to parking demand during busy retail hours on weekends. The Medical
Office use would not conflict with the adjacent uses in the vicinity and provides the requisite parking
requirements as prescribed by municipal code for the CN zoning district and proposed use.
Finding #2: The project will be located and conducted in a manner in accord with the Palo Alto
Comprehensive Plan and the purposes of this title (Zoning).
This finding can be made in the affirmative. The proposed Medical Office use is compatible with the
parcel’s land use designation of Commercial Neighborhood (CN). The Medical Office use would
contribute to the area’s economic vitality and well-being of residents by providing nearby healthcare
facilities. Though the proposed Medical Office use would exceed the maximum square footage for office
uses permitted on the lot, based on the history of the site, the proposed use is appropriately treated as
a legal non-conforming use.
SECTION 4. CONDITIONS OF APPROVAL
Planning Division
1. The use shall be conducted in substantial conformance with the project plans received on May
26, 2017, and related documents on file with the City of Palo Alto Planning Division, except as
modified by these conditions of approval.
2. The applicant shall apply and obtain a Use & Occupancy Permit prior to the time of Building
Permit.
3. This approval letter, including the Conditions of Approval, shall be printed on the plans
submitted for any associated building permit review.
4. The use is limited to the “Medical Office” land use classification defined in Palo Alto Municipal
Code Section 18.04.030(a)(95). “Medical Support Service” means a use providing consultation,
diagnosis, therapeutic, preventive, or corrective personal treatment services by doctors,
dentists, medical and dental laboratories, and similar practitioners of medical and healing arts
for humans, licensed for such practice by the state of California. Incidental medical and/or
dental research within the office is considered part of the office use, where it supports the
onsite patient services. Medical office use does not include the storage or use of hazardous
materials in excess of the permit quantities as defined in Title 15 of the Municipal Code. Medical
gas storage or use shall be allowed up to 1,008 cubic feet per gas type and flammable liquids
storage and use shall be allowed up to 20 gallons total (including waste).
5. The use shall be operated in a manner to protect adjacent residential properties from excessive
noise, odors, lighting or other nuisances from any sources during the business hours.
6. The proposed use shall be comply with all applicable City codes, including Titles 9 (Public Peace,
Moral and Safety) and 15 (Uniform Fire Code) of the Palo Alto Municipal Code and 19 (Public
Safety) of the State of California Administrative Code.
7. Any intensification of use, such as an increase in size of the 1,244 square foot tenant space, shall
require an amendment to the conditional use permit and any other entitlements as specified in
the Palo Alto Municipal Code.
8. Revocation or Modification of Approvals: The director may issue a notice of noncompliance for
any failure to comply with any condition of this permit approval, or when a use conducted
pursuant to a conditional use permit is being conducted in a manner detrimental to the public
health, safety and welfare.
9. To the extent permitted by law, the Applicant shall indemnify and hold harmless the City, its City
Council, its officers, employees and agents (the “indemnified parties”) from and against any
claim, action, or proceeding brought by a third party against the indemnified parties and the
applicant to attack, set aside or void, any permit or approval authorized hereby for the Project,
including (without limitation) reimbursing the City its actual attorney’s fees and costs incurred in
defense of the litigation. The City may, in its sole discretion, elect to defend any such action with
attorneys of its own choice.
SECTION 5. VOTE. The requisite findings described in PAMC Section 18.76.010 (c) for approval of
a conditional use permit can be made for the proposed project. This decision is effective immediately
upon adoption.
PASSED:
AYES:
NOES:
ABSENT:
ABSTENTIONS:
ATTEST:
City Clerk Mayor
APPROVED AS TO FORM: APPROVED:
Senior Assistant City Attorney Director of Planning and Community
Environment
Attachment H
Project Plans
Hardcopies of project plans are provided to ARB Members. These plans are available to the
public online and by visiting the Planning and Community Environmental Department on the 5th
floor of City Hall at 250 Hamilton Avenue.
Directions to review Project plans online:
1. Go to: https://paloalto.buildingeye.com/planning
2. Search for “4157 El Camino Way” and open record by clicking on the green dot
3. Review the record details and open the “more details” option
4. Use the “Records Info” drop down menu and select “Attachments”
5. Open the attachment named “4157 ECW_Revised 5.26.2017 (approved)” and
dated 05/26/2017
Planning & Transportation Commission
Staff Report (ID # 8296)
Report Type: Action Items Meeting Date: 7/26/2017
City of Palo Alto
Planning & Community Environment
250 Hamilton Avenue
Palo Alto, CA 94301
(650) 329-2442
Summary Title: 4157 El Camino Way: Hearing Request for CUP
Title: PUBLIC HEARING / QUASI-JUDICIAL. 4157 El Camino Way, Unit
C-3 & C-4 [17PLN-00051]: Request for a Hearing on the
Director’s Tentative Approval of a Conditional Use Permit
(CUP) for Medical Office use (Dentist). Environmental
Assessment: Exempt from the provisions of the California
Environmental Quality Act (CEQA) per Guidelines Section
15301. Zoning District: Neighborhood Commercial (CN). For
More Information Contact the Project Planner Phillip Brennan
at phillip.brennan@cityofpaloalto.org.
From: Hillary Gitelman
Recommendation
Staff recommends the Planning and Transportation Commission (PTC) take the following
action(s):
1.Recommend approval of the draft Record of Land Use Action (Attachment B) to the City
Council approving the proposed Conditional Use Permit (CUP) to allow Medical Office
Use, subject to findings and conditions of approval.
Report Summary
On February 16, 2017, Dr. Kathy Lee filed an application for a CUP for dental office, which is
considered a medical office use and a conditionally permitted use in the CN zoning district as
specified in Palo Alto Municipal Code (PAMC) Section 18.16. The entitlement request would
allow tenant improvements to the interior of a 1,244 sf ground floor commercial office space in
the mixed-use development known as the Hamlet (i.e. 4149 – 4161 El Camino Way).
On May 30, 2017, the Director of Planning and Community Environment tentatively approved
the request (Attachment C). Notice of the proposed director’s decision was mailed to all
property owners and occupants within 600 feet of the subject property. On June 12, 2017, a
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request for hearing was submitted within the 14-day request period for the reasons outlined in
this report and as described in the formal request letter included in Attachment D.
Background
The project site is located within a mixed-used development known as the Hamlet, which is
comprised of two- and three-story commercial-office uses and residential condominium units
that are located in seven separate buildings on a 50,447 sf lot. Plans for the Hamlet at the time
of approval (circa 1983) were vague in regards to what portions of the project site were
proposed to be used for retail and similar uses. At about the same time, the City was processing
Code changes to restrict the total amount of office use allowed in the CN and CS zoning districts
to 5,000 square feet, which went into effect while the Hamlet was being constructed (PAMC
Section 18.16.050(b)).
Correspondence between the City and the developer (see Attachment G), dated 1985,
demonstrates that at the time the office space restriction went into effect, 30 percent of the
commercial floor area was to be used for retail, personal or eating and drinking establishments
uses; the remaining 70 percent of the commercial floor area would be used for medical,
professional or general business offices. Although the planned office space exceeded the 5,000
square feet, the Hamlet was entitled to maintain its offices uses as legal, non-conforming uses.
Because this was a non-conforming condition, however, the Hamlet could not expand or
intensify its office uses.
City records from the time of project approval are not available to specify which commercial
spaces were to be used for retail, and which for office and in the intervening 30 years, the
ground-floor commercial suites have been leased and subleased by subsequent condominium
owners without regard to maintaining the approved ratio. This can be attributed to the lack of a
clear designation or condition regarding space(s) to be maintained as retail, a lack of proactive
oversight by the City in documenting the uses of each occupying business through the
recordation of Use & Occupancy Permits, and the lack of record-keeping by condominium
owners and the Hamlet’s Commercial Association.
This lack of documentation has created an issue that cannot be fairly resolved by rejecting or
imposing conditions on the current application. At this time, eight of the 11 commercial
condominium spaces are occupied by businesses performing medical or health services that
would be categorized as Medical Office Use. Because the City has no record of which
condominiums were originally used for office purposes, and because each condominium is
independently owned, the City does not have an equitable means to reduce office square
footage to the original legal, non-conforming amount.
New development proposals for use of ground-floor commercial space in the Hamlet are
reviewed in relation to existing Use & Occupancy Permit records on file. Existing non-Retail or
non-Retail-Like spaces are permitted to continue operating in a non-Retail or non-Retail-Like
capacity if they maintain the same land use type (e.g. Medical Office Use such as a physical
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therapist office to dental office) of the last tenant that occupied the space within the previous
12 months. The 12 month threshold is found in PAMC Section 18.70.040 (b) which states “On
any site not subject to subsection (a), a nonconforming use of facilities designed and
constructed for nonresidential purposes which is discontinued or abandoned or otherwise
ceases operation and use of the site for a period of one year or more shall not be resumed […]”
If and when any space is vacant for 12 months or more, the City may have the ability to require
ground floor retail use.
The subject space (Suites C-3 and C-4) was sold to Dr. Kathy Lee and Shaun Woo (co-owner) in
early November 2016. The previous owner and current president of the Hamlet Commercial
Association, Dr. Larry Freeman, submitted a letter to the Planning Department which detailed
the occupancy history of the commercial space in question. The letter (Attachment E) named
the last four tenants (a psychologist, two nutritionists and a physical therapist) dating back 22
years that have occupied the space to practice their respective medical and health professions,
with the last tenant moved out on November 30, 2016. These uses would be classified under
Medical Office use. As such, the Planning Division determined the requested proposal to allow
the suites to be utilized as a dental office would be consistent with the land use type the suites
previously operated as, the property has not been vacant for more than 12 month, and would
not be in conflict with PAMC Section 18.70.040 (b).
Project Information
Owner: Kathy Lee
Architect: Thomas Bouffard Architects, Inc.
Representative: Not Applicable
Legal Counsel: Not Applicable
Property Information
Address: 4157 El Camino Way, Condo Units C-3 & C-4
Neighborhood: Charleston Meadows
Lot Dimensions & Area: (Condo Units C-3 and C-4) 31.5’ x 39.5’, 1,244 sf; The Hamlet
(i.e. entire mixed-use development site) is located on a 1.16 acre
(50,447 sf) lot
Housing Inventory Site: Not Applicable
Located w/in a Plume: Not Applicable
Protected/Heritage
Trees: Yes; in City sidewalk fronting the width of the Hamlet complex
Historic Resource(s): No
Existing
Improvement(s):
Existing commercial office space used most recently as a physical
therapy office
Existing Land Use(s): Medical Office
Adjacent Land Uses & North: CN (medical offices, personal services and residential)
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Zoning: West: CN (eating & drinking services, private education services,
retail), PC- 4190 (Zen Hotel)
East: RM-40 (multi-family condominiums)
South: CS (Camino Place)
Special Setbacks: Not Applicable
Aerial View of
Property:
Source: Google Earth
Land Use Designation & Applicable Plans/Guidelines
Zoning Designation: CN; RM-40; RM-15 (subject Condo Units located in CN)
Comp. Plan Designation: Commercial Neighborhood; Multi-Family
Context-Based Design: Not Applicable; interior remodel work only
Downtown Urban Design: Not Applicable
SOFA II CAP: Not Applicable
Baylands Master Plan: Not Applicable
ECR Guidelines ('76 / '02): Not Applicable; interior remodel work only
Proximity to Residential
Uses or Districts (150'): Yes, immediately adjacent to north, east and south
Located w/in AIA
(Airport Influence Area): Not Applicable
City of Palo Alto
Planning & Community Environment Department Page 5
Prior City Reviews & Action
City Council: None
PTC: None
HRB: None
ARB: None
Director: Tentative approval of a CUP issued on May 30, 2017
Requested Entitlements, Findings and Purview:
The following discretionary applications are being requested and subject to PTC purview:
Conditional Use Permit: Conditional Use Permits (CUP) are intended to provide for uses
and accessory uses that are necessary or desirable for the development of the
community or region but cannot readily be classified as permitted uses in individual
districts by reason of uniqueness of size, scope, or possible effect on public facilities or
surrounding uses.
The process for evaluating this type of application is set forth in PAMC Section
18.77.060. CUP applications are subject to standard staff review process to evaluate
compliance with applicable zoning district requirements and ensure application
completeness. Not less than 21 days following the date an application is deemed
complete, the director shall prepare a proposed written decision to approve, approve
with conditions, or deny the application based on the required findings specified in
PAMC Section 18.76.010 (c). All findings must be made in the affirmative to approve the
application.
Any person may request a hearing by the PTC regarding the director’s tentative decision
and the PTC is required to hold a noticed public hearing within 45 days. Following the
hearing, the PTC makes a recommendation on the application, which is forwarded to the
City Council for a final decision.
Project Description
The subject application is a request for a CUP to allow Medical Office Use in accordance with
PAMC Section 18.16.040 (a) Table 1, in a ground floor commercial condominium space located
in Unit C-3 and C-4 at 4157 El Camino Way. This site is within an existing mixed-use,
commercial and residential complex known as the Hamlet (i.e. 4149-4161 El Camino Way).
Construction would be limited to interior remodeling of the existing ground-floor commercial
space to accommodate the proposed dental practice, which requires approval of a Building
permit.
Discussion
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Planning & Community Environment Department Page 6
Medical Office Use in the Commercial Neighborhood District (CN) is a permitted land use
requiring a CUP and is subject to the following findings per PAMC Section 18.76.010 (c)(1)(2):
1. Not be detrimental or injurious to property or improvements in the vicinity, and will not
be detrimental to the public health, safety, general welfare, or convenience;
2. Be located and conducted in a manner in accord with the Palo Alto Comprehensive Plan
and the purposes of this title (Zoning).
With respect to the above findings, staff was able to make the determination that the project
was not detrimental to the existing property or general welfare of the public and that it met the
requirements of the applicable zoning code.
Staff recommended findings and conditions of approval are included in the draft record of land
use action and tentative letter of approval found in Attachments B and C.
Hearing Request
On June 12, 2017, a timely request for hearing was submitted by Mr. Ivan Khoshnevis after
issuance of the Director’s decision for tentative approval of the CUP application. Mr.
Khoshnevis listed six primary contentions of protest in his submitted hearing request letter.
Provided below are those itemized contentions (quoted and italicized in bold) and planning
staff’s response to each claim:
“1 – Insufficient parking space for current tenant or owner of (Medical and other commercial
businesses) at premises.”
The applicant was required to submit a parking analysis and site layout of the existing parking
conditions at the Hamlet complex (Attachment H). In addition, a site inspection was performed
by the project planner to confirm the parking count and layout indicated in the provided
analysis.
A total of 59 commercial parking spaces (includes one accessible space) exist in the
subterranean parking facility to serve the Hamlet’s 11 commercial condominium spaces. These
spaces are located in close proximity to the commercial condominiums and are separated from
the 92 residential parking spaces by an automated security gate.
Utilizing the most restrictive parking space ratio (i.e. one space per 200 sf) for a permittable use
(e.g. retail or personal service use) in the CN zoning district results in 57 required parking
spaces, which is satisfied by the Hamlet’s current parking provision. As such, staff has
determined there are a sufficient number of parking spaces for any array of commercial tenant
uses provided at the complex.
“2 – Lack of handicap dedicated parking space (Currently there is only one space in the
garage).”
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Planning & Community Environment Department Page 7
There is presently one accessible space provided in the commercial tenant parking area.
Current parking standards would require the Hamlet to provide three (3) accessible spaces per
PAMC Section 18.54.030 Table 1. Building plans on file dating back to 1984 indicate the general
parking layout and provision of one accessible space coincides with the existing conditions
found in the garage today. Because the applicant is not proposing any improvements to the
garage or any increase in commercial floor area, the City cannot require alterations be made to
the parking garage to bring it up to code at this time. Nonetheless, City staff can suggest that
the condominium owners and the Hamlet’s Commercial Association pursue changes to the
garage through a separate building permit process.
“3 – This permit is in violation of current city of Palo Alto code, which prohibit any medical
office to be operate (sic) at ground floor (Street level).”
The provisions outlined in PAMC Section 18.40.180 – Retail Preservation are intended to
protect and create neighborhood-serving retail opportunities, preserve ground-floor
pedestrian-oriented streetscape experience, maintain reasonable retail lease rates, and prevent
additional traffic associated with new office uses. This is accomplished by placing the restriction
that any existing ground floor Retail or Retail-Like use permitted or operating as of March 2,
2015, can be replaced only by another Retail or Retail-Like use, as permitted in the applicable
district. The applicant has submitted evidence that indicates the subject office suites (C-3 & C-4)
have historically been leased for Medical Office use to health practitioners, as was true at the
time the suites were purchased by the applicant and when the last tenant moved out in
November 2016. As such, staff has determined the issuance of the requested CUP to allow
Medical Office use in a ground-floor retail space is not in conflict with the aforementioned
municipal code. (See the Background section above for more history on the use of ground floor
units for office space.)
“4 – Above unit should not be included in Grandfathered clause, since there was no history of
medical or dental business at this location for at least past (sic) 10 years.”
Dental offices are a conditionally permitted land use in the CN zoning district and categorized
under Medical Office. To utilize the space for a non-conforming use, the applicant needs to
demonstrate that the space was used for purposes that could be categorized under Medical
Office use. As noted in the background section of this staff report, documentation (Attachment
E) was submitted to the Planning Department which details the occupancy history of the
subject space and indicates the tenants were utilizing the space for land uses that can be
categorized as Medical Office Use and, as such, contradict the hearing requestor’s claim.
“5 – Start of construction without permit which enforcement department red tagged the unit
on early March 2017.”
On January 23, 2017, a formal complaint was submitted to the City’s Code Enforcement
Department via the 311 public reporting platform. The complaint reported unpermitted work
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being performed at the subject site; a stop work order was subsequently issued the next day
and posted at the site. In the following weeks, additional complaints of continued unpermitted
work were reported informally by Mr. Khoshnevis at the Planning Department offices on
multiple occasions. The complaint was furthering investigated by a City building inspector and
on March 6, the subject site was red-tagged and utilities were pulled to restrict any further
work from being performed until the required building permit has been issued
As it relates to the tentatively approved CUP application, the aforementioned issues are
unrelated.
“6 – The ratio of allowed medical/Dental area to retail space exceed zoning department (sic),
by allowing use of above property for Dental use.”
There is no medical/dental to retail space ratio mandated by the PAMC. As noted previously,
the Retail Preservation ordinance is applicable to existing ground-floor space permitted or
operating as a Retail or Retail-Like use as of March 2, 2015. The subject site is not converting a
space previously occupied by a Retail or Retail-Like use.
As noted in the Background section, with the limited information staff has been able to find on
this site, we believe only 70 percent of the commercial floor area was entitled to be used for
office purposes. Unfortunately, in the years since the site’s construction, the commercial
condominiums have changed hands and this requirement was not made clear to new
commercial condominium owners. As such, the Hamlet’s ground-floor commercial spaces have
not been regulated and over time developed organically into a de facto medical office center
and because the commercial condominium spaces are individually owned rather than part of a
planned community, enforcement of the prescribed ratios is difficult and it would not be fair to
impose the retail requirement on the current applicant.
Environmental Review
The subject project has been assessed in accordance with the authority and criteria contained
in the California Environmental Quality Act (CEQA), the State CEQA Guidelines, and the
environmental regulations of the City. The project is an existing building that is exempt from
the provisions of the California Environmental Quality Act (CEQA) per Guidelines Section 15301.
Public Notification, Outreach & Comments
The Palo Alto Municipal Code requires notice of this public hearing be published in a local paper
and mailed to owners and occupants of property within 600 feet of the subject property at least
ten days in advance. Notice of a public hearing for this project was published in the Palo Alto
Weekly on July 14, 2017, which is 12 days in advance of the meeting. Postcard mailing occurred
on July 12, 2017, which is 14 days in advance of the meeting.
Public Comments
As of the writing of this report, no project-related, public comments were received.
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Alternative Actions
In addition to the recommended action, the Architectural Review Board may:
1. Approve the project with modified findings or conditions;
2. Continue the project to a date (un)certain; or
3. Recommend project denial based on revised findings.
Report Author & Contact Information PTC1 Liaison & Contact Information
Phillip Brennan, Project Planner Jonathan Lait, AICP, Assistant Director
(650) 329-2493 (650) 329-2679
phillip.brennan@cityofpaloalto.org jonathan.lait@cityofpaloalto.org
Attachments:
Attachment A: Location Map (PDF)
Attachment B: Draft Record of Land Use Action (DOCX)
Attachment C: Conditional Use Permit Tentative Approval (PDF)
Attachment D: Request for Hearing (PDF)
Attachment E: Correspondence from Hamlet Commercial Assoc. President (PDF)
Attachment F: Applicant's Project Description (PDF)
Attachment G: City/Developer Correspondence (June 1985) (PDF)
Attachment H: Parking Analysis (PDF)
Attachment I: Project Plans (DOCX)
1 Emails may be sent directly to the PTC using the following address: planning.commission@cityofpaloalto.org
City of Palo Alto Page 1
Call to Order/Roll Call
Present: Commissioner Gardias, Commissioner Monk, Commissioner Rosenblum, Commissioner
Summa and Vice-Chair Waldfogel (Acting Chair)
Absent: Chair Alcheck and Commissioner Lauing
3. 4157 El Camino Way, Unit C-3 & C-4 [17PLN- 00051]: Request for a Hearing on the Director’s
Tentative Approval of a Conditional Use Permit (CUP) for Medical Office use (Dentist).
Environmental Assessment: Exempt from the provisions of the California Environmental Quality
Act (CEQA) per Guidelines Section 15301. Zoning District: Neighborhood Commercial (CN). For
More Information Contact the Project Planner Phillip Brennan at
phillip.brennan@cityofpaloalto.org.
Acting Chair Waldfogel: Ok, so let's move on to Agenda Item 3, the public hearing, quasi-judicial for 4157
El Camino Way. I believe there’s a short staff report on this?
Phillip Brennan, Project Planner: Correct.
Acting Chair Waldfogel: Yes, please.
Mr. Brennan: Good evening to the Members of the Commission. My name is Phillip Brennan. I’m the
Project Planner for this Conditional Use Permit (CUP) application. As we begin I'd like to provide just a
brief overview of the hamlet mixed-use development and the pertinent issues as it relates to this
application. This is a mixed-use development that was approved in 1983. At the time it was approved
with the prescribed 70 to 30 ground floor to or ground floor office to retail square foot ratio. We know
this through correspondence, post approval correspondence between the Zoning Administrator and the
builder. Construction commenced in May 1984 and this is important to note because during around
that time the City was adopting an ordinance which placed a cap on the maximum amount of office
space in the CN zoning district. The developer provided evidence that demonstrated significant
construction had taken place prior to the adoption of that ordinance and as a result the approved
conditions were maintained. Oh, I’m so sorry. I apologize. There we go… As a result of that vesting the
excess square footage which was close to 9,000 square feet (sf) of commercial office space the excess
over 5,000, the 5,000 square foot cap was designated legal non-conforming.
A bit about the application timeline; the application was submitted in February 2017 requesting a CUP
filed by Dr. Kathy Lee requesting a medical office use for condo units C3 and C4 located at 4157 El
Camino Way. The application was reviewed by staff to ensure the applicable zoning codes were
Planning & Transportation Commission
EXCERPT DRAFT MINUTES: July 26, 2017
City Hall/City Council Chambers
250 Hamilton Avenue
6:00 PM
8:30 AM
City of Palo Alto Page 2
complied with. Part of that review included a request from the applicant to provide a parking analysis to
ensure that adequate parking provision could accommodate the medical office use. In addition because
this was a medical office use request the tenant history was requested and the applicant provided
documentation identifying the previous four tenants that were concurrently co-occupying this space.
And that was they were occupying the space within 12 months, within the previous 12 months, and
using the space in a capacity that could be defined as medical office use. As such staff moved the
application forward and in May the Director of Planning and Community Environment tentatively
approved the CUP request. In June of 2017 the Request for Hearing was submitted by Mr. Ivan
Khoshnevis.
As stated Mr. Khoshnevis requested a Request for Hearing and provided six primary points of contention
which I've paraphrased here. Staff reviewed these contentions and responded to them in detail in the
staff report. I won't go through every point, but I'll be happy to address any specifics of these points.
Many of these points of contention are resolved with just an understanding and application of the
existing municipal code in terms of continuance of non-conforming use and the retail preservation
ordinance. Others such as the lack of accessible parking space is not the responsibility of the applicant
because the applicant is not, the scope of work proposed is not increasing the square footage of the unit
nor are they proposing to modify the parking layout and so they cannot be held responsible for bringing
the accessible parking count up to code. That will, can be addressed at a later date through a separate
building permit with the Commercial Association.
The one point we do feel has some merit is point Number 6, the medical and dental office ratio
exceeding the zoning code. It is true that the existing uses at the hamlet do not meet the prescribed
ratio as the current tenants are utilizing the commercial spaces for non-retail land uses. For many years
the City did not do a good job of record keeping and monitoring the use and occupancy permits over the
past 30 years which has resulted in a commercial complex of predominantly medical and health
practices because these are individually owned placed or excuse me, spaces with no record or
documentation identifying which spaces were designated for retail or office use it's difficult for the City
to enforce the prescribed ratio equitably to both the existing tenants and commercial condo owners.
The City is trying to resolve this issue fairly through the provisions that are outlined in the municipal
code in terms of allowing the continuance of nonconforming uses, prohibiting the conversion of any
existing retail to non-retail, and being more vigilant in terms of researching tenant improvement
requests and tracking U and O history of commercial spaces. As such, excuse me, with that said staff is
determined to determine the subject application for medical office use would be consistent with the
land use types the suites were previously operating as and that space had not been vacant for more
than 12 months and therefore would not be in conflict with municipal code. As such staff is
recommending the Planning and Transportation Committee, excuse me, the staff is recommending
Planning and Transportation Committee (PTC) recommend this CUP to the City Council. Thank you.
Acting Chair Waldfogel: Great, thank you. Do we have any speaker cards for this? I did not receive
any... Nothing. Any members of the public planning to speak on this because this would be the point to
do so. Ok.
Albert Yang, Senior Deputy City Attorney: Chair can I ask for any Commissioner disclosures if there are
any to be made?
Mr. Yang: Right, yeah. This would be about ex-parte communications, but if there are none that’s great.
City of Palo Alto Page 3
Acting Chair Waldfogel: Great. Ok, let's open up, let’s open this up. You want to start [Art] do you have
anything you want to say?
Commissioner Rosenblum: I don't have much. I feel like this one is fairly straight forward and that staff
did a good job to answer the concerns of the petitioner for this hearing. So I'm not to take up more time
when if my other fellow Commissioners wanted to have their round I'm happy to make a Motion at the
end of that.
Acting Chair Waldfogel: Please, Commissioner Summa.
Commissioner Summa: So I do have a few questions. So I appreciate the applicant coming forward and
bringing us medical use which we need places to put medical uses, but I do have a kind of a problem
with the 30/70 split and I understand that that ratio was lost over the years. And that is something I
don't think that we can it can be explained through grandfathering. And I understand that it might not
be possible for staff to go back and investigate it, though we have had in the past really good historic
investigations in the staff reports. My concern is that we also have a very strong need to retain retail in
the City so I would is there any idea when all these conversions to medical that violated the 30/70 split
happened? Was or when it became a condo? It seemed like from the letters that staff provided that it
was originally a for lease built, the whole complex was for lease by the developer. Is that correct?
Mr. Brennan: As I, I believe that's correct.
Commissioner Summa: So do we have any idea when it became a condo? And my concern is the original
is the violation of the original condition of approval which I assume was specific to this development and
not a citywide requirement at that time. Is that right?
Mr. Brennan: The prescribed ratio was a condition.
Commissioner Summa: Special condition (interrupted).
Commissioner Summa: Ok. Because there's already a lot of medical there and there's only 555 sf of
retail so it would be really nice to get some retail back in especially since the CN zone is the zone the
little C as I call them zones: the CS, [CC, and CC] that are the most neighborhood oriented medical being
sort of a secondary use to retail. And also there was some discussion in the staff report about the
difficulty because it's a multiparty owned building and indeed the whole complex is, but I wonder I mean
there are many, many, many buildings that are multiparty owned so I wonder if this sets a precedent
that that's kind of unusual to me that if you have more than one owner of a given property or parcel
that it gives you more access to not following the zoning which in this case is a special condition. And I
think that's kind of a difficult thing for me to contemplate becoming a precedent. So those are really my
concerns. So do we know when it became condo-ized?
Mr. Brennan: Well I'd like to walk back the I may have misspoken. I'm not sure if it was ever as
described [unintelligible] you were describing as for lease and then converted it to condo.
Commissioner Summa: Well I think the letter Exhibit H maybe, the letter from the developer says the
he’ll keep the leasing agreement it's I forget which… It's Exhibit G that he'll keep the lease agreement I
think is where I came up with that.
Hillary Gitelman, Planning Director: While Phillip is looking up that information maybe I can hop in on
this issue of just kind of how do you deal with ownership situations. These are commercial
City of Palo Alto Page 4
condominiums so each one are owned by a separate entity. I don't think first of all that if we had this
project to do over again and approved it today we would be vague about where the retail was supposed
to be (interrupted).
Commissioner Summa: Right, I understand that.
Ms. Gitelman: Where the commercial was going to be, but in this case we think the records were vague
at the time of approval. And our thought is that it just wouldn't be fair to tell this particular owner who
purchased a space that had been in use as medical office that now because of some record keeping
problem they couldn't use it for the use that it has been used for when they purchased it.
Commissioner Summa: Right.
Ms. Gitelman: So that's why our recommendation to approve the CUP and if any of the units ever
become vacant for more than 12 months and lose their kind of non-conforming status then we would
have more leverage to ask for the retail use again. But as long as they're kind of in continuous use as
medical office it's hard to I mean it just wouldn’t be fair to the property owner in this case the
commercial condo owner to force a change in use.
Commissioner Summa: I was thinking maybe I understand there’s a commercial condo association. I
was thinking maybe the fair thing to do would be to give them an opportunity to discuss how they
wanted to handle this in the future. It may have been the case that this didn't come up for years
because people didn't apply for CUPs necessarily which I think has kind of been common. And so maybe
this is a question for our attorney. Is this creating a precedent for properties that are owned by multiple
parties which is very common?
Mr. Yang: Yeah. I mean I think the problem that's created here is a result of the City's lack of any record.
I mean we don't even have the originally approved plans. So I think it's the lack of records in this case
that's creating the issue and I don't think that we would necessarily be creating a precedent for any
other uses.
Commissioner Summa: But we do have clear records that state there was a condition of approval that
was a 30/70 percent split with 30 percent being retail. And I note at this location what's needed is retail
more than medical especially since there's already I think three or four dentists, dental practitioners.
Ms. Gitelman: Yeah, again if we had the project plans and they showed that it was this space that was
supposed to be retail we would be able to force retail at this location, but we don't have an approved
set of plans. We don't have anything from the time that this condition was applied that shows that this
was one of the spaces that was in the 30 percent.
Mr. Brennan: There's five buildings that contain ground floor commercial space which is all located in
the CN district. As Hillary is stating we know the split what we don't know are which spaces are
designated strictly for retail, which were designated for commercial which is why we're having the
problem of trying to resolve this fairly.
Mr. Yang: Just to clarify the CN zone has a limit of 5,000 sf per parcel. It's not a 70/30 split in the CN
zone; 70/30 was just the (interrupted).
Commissioner Summa: It was a condition of approval for this project, the entire project.
City of Palo Alto Page 5
Mr. Yang: Right. I guess I want to clarify also that we don't have records necessarily showing that it was
a condition of approval. It was certainly the way that the project was intended to be used when it was
constructed, but we don't have the conditions of approval from the approval either.
Acting Chair Waldfogel: Thank you. We have one speaker card. Do you mind if I let Mr. Moss… Bob
Moss do you want to come speak on this?
Robert Moss: Thank you. [It was] interested in your comments so let me give you some history on that
site. Forty years ago there was a commercial area. It was basically a garden shop and we rezoned it CN
with the intent of making it ground floor retail with housing up above. And at the same time condos
were being built along East Meadow between El Camino Way and Wilkie. And so we wanted to have
retail to serve those condos, Ventura, and Barron Park. When the property was developed the ground
floor was built as a retail site, but retail at that time included medical not just shops if you will. And the
developer held almost all the properties off the market for over a year. And then he said oh, I can't rent
these to retail. This is a bad area for retail because it's not on El Camino and it's doesn't have adequate
parking and I can't get people to move in there so I'm going to put medical in there. Putting in offices
because they're willing to go in there and that's why we got the medical in. And once the medical went
in it basically eliminated any retail vitality because there were only a few parcels left for retail and retail
businesses weren’t going to go in where they were the only one or there were only a couple of others
along with them. So that's why it's been office for almost 40 years. That's where the money was and
that’s what the developer wanted. And the public had no right to say you can't do it. It’s your property.
So that's why we have offices medical on the ground floor.
Now in theory you could prohibit offices from reentering. An office leaves you can say no, retail has to
go in there not an office to replace it. That's in theory. In practice I think that would be very difficult to
do. You can talk to Legal staff and you can talk to the Planning staff and see if they think it's practical. I
have my doubts, but that's why we have that facility being used in that way as it is today. The developer
did not do what he was supposed to do and what the public and what originally the Planning
Commission and the City Council wanted which was to have a retail area along El Camino Way. So we're
stuck.
Acting Chair Waldfogel: Thank you for the historical perspective; let’s move on to Commissioner Monk.
Commissioner Monk: Just briefly aside from the hearing request from Mr. Khoshnevis and from what we
just heard from Mr. Moss I didn’t see any other contentions brought up with regard to the CUP. I felt as
though all the issues that he brought up in his appeal were sufficiently addressed by the staff. And the
analysis that followed addressed all of those concerns so I would support moving forward with a Motion
when we're ready to do so.
Acting Chair Waldfogel: Thank you. Commissioner Gardias.
Commissioner Gardias: Thank you. So just Mr. Moss thank you very much for interesting perspective
and by the way it's always nice to have you here. So what is the plan? Do we have any is there a
possibility to have a plan to really just regain the retail in there? I know that you may just tell me that
this is not scope of today's meeting, but we should pretty much prospectively think about converting
some of that space into retail in the future. Was it a subject of your conversations and?
Ms. Gitelman: Yeah, again anything that's currently in ground floor retail would have to maintain that
retail. If one of these spaces were to become vacant for 12 months or more then also they would lose a
non-conforming status and we could potentially ask for retail. We’d have it’s the same challenge which
City of Palo Alto Page 6
is the records aren't super clear about where in the development retail is required, but we would have
certainly a better leg to stand on then we do right now.
Commissioner Gardias: Yes and this is exactly what you said was in the staff report, right? I was thinking
if there is something else some other perspective that you can offer to us. Maybe we can when we are
working on the Comprehensive Plan maybe we can look into this as an example and adjust one of our
policy.
Ms. Gitelman: I think we all recognize the retail preservation policies we have a very strong. This is a
situation where it's really about the property right and the individual ownership of this unit and their
expectation that it can continue to be used for the purpose that it's been used most recently. So I'm not
sure it's something we could address in the Comprehensive Plan, but I certainly recognize that the
Commission at least a couple of the Commissioners are concerned about this and we certainly have to
do a better job today than we did in the past with documenting spaces that are required to maintain
their retail function.
Commissioner Gardias: So what was the purpose of the construction that was taking place? I don't
remember this being explicitly stated in the staff report. I remember reading about this, but I was
wondering what work was being conducted without the permits?
Mr. Brennan: Could you clarify what you mean when you're asking what was the purpose of the
construction?
Commissioner Gardias: What was the scope of the work, of the construction work that was taking place
before conditional permit was, before the preliminary permit was issued?
Mr. Brennan: They were… right, right, right, right. They were pouring the subgrade parking garage. Is
a…
Commissioner Gardias: They were pouring?
Mr. Brennan: Oh, I'm so sorry. Yeah, they were doing interior remodeling of the space.
Commissioner Gardias: Of that very space?
Mr. Brennan: Yeah.
Commissioner Gardias: That they would be remodeling once we grant them the permit.
Mr. Brennan: Right.
Commissioner Gardias: From the perspective of Americans with Disabilities Act (ADA) would they be
required to with remodeling of the space itself would they be requiring to comply with California ADA?
Ms. Gitelman: Again Commissioners we indicated in the report we don't feel like the City can force them
to bring the garage up to ADA based on the tenant improvements that are proposed. You know ADA is a
federal law. I think the condo association would be wise to consider that, but we don't feel like it's the
City's position at this point to force it.
City of Palo Alto Page 7
Commissioner Gardias: Yes it is. I remember reading about this, but I'm asking about the space. The
parking garage it's a different story, but then when they're remodeling the space it should be still
compliant with California ADA.
Ms. Gitelman: The tenant’s space itself, absolutely. Yes, absolutely.
Commissioner Gardias: Ok. So now let's talk about ADA for the garage, right? So it's the law was
enacted by George Bush in 1999, 1991. So it's been 26 years. What is the how what is the timeline of
the of compliance of those grandfathered spaces, parking spaces to ADA laws? Would they be would
this association and this collection of separate owners be able to pretty much keep grandfathering this
space for ever until let's say unless somebody brings litigation and sues them for noncompliance based
on some accident?
Ms. Gitelman: Yeah, I think we could consult with the Chief Building Official on that. I don't know that
we have an answer for you on the spot.
Commissioner Gardias: Yes, I was asking this being concerned because giving the ownership structure I
can hardly see any changes for this building in there from retail perspective or from compliance with
ADA. Thank you.
Acting Chair Waldfogel: Thank you. Let's see, so just my comments I plan to support the CUP based on
the recent previous use argument. I do want to flag something maybe echo something that
Commissioner Gardias just said that as we look at code updates maybe we should look at this as an
example of lessons learned. I'm sure that at the time when the permit was originally issued that the
planning officials at that time thought that they were the requirements were completely clear and that
everything was stored in a permanent record somewhere. I'm sure they believed that and I'm sure that
we believe that about everything that we do, but maybe the lesson we should take away is that some of
these complicated conditions that require constant monitoring and surveillance and good record
keeping may not be great ideas to capture and code. So anyway I would just like us to take note that
maybe there's a lesson to learn here, but I don't my view is I don't want to hold out that lesson as an
obstacle for this applicant.
Ms. Gitelman: If I can add one thing and just piggyback on that. In the category of best practices
Commissioner Monk noted that we have an error in the Record of Land Use Action here in the California
Environmental Quality Act (CEQA) finding and so if the Commission is ready to make a Motion we would
ask that you forward your recommendation with the direction for us to correct that deficiency in the
Draft Record of Land Use Action.
Acting Chair Waldfogel: Great, thank you for the clarification. Anyone ready to make a Motion? One,
one further comment.
Commissioner Summa: Very, very quickly. Is the appellant not here? Does that affect the status of this
hearing at all or not?
Ms. Gitelman: No not unless he actively withdrew the request for hearing.
Commissioner Summa: Ok. And I had one last comment and that is my understanding of grandfathering
in legal nonconformity is that it had to be legal when built and so I'm just having a hard time seeing how
the commercial portion of this could be the 30/70 split which is clearly referred to in the letter how that
could be considered legally nonconforming at this time since there's no proof that it was legal when a
City of Palo Alto Page 8
law changed. So I just and that being said I'm very supportive and do not wish to be appear to be not
supportive of the dental group that wishes to go in. So I just wanted to make that clear.
Acting Chair Waldfogel: Ok, great. Any further comments or do we have a Motion?
Commissioner Monk: Yeah as far as the changes that need to happen also at the top it says North
California Avenue conditional use so I don't know if that's appropriate language.
Ms. Gitelman: Yeah we’ll do a scrub through the Record of Land Use Action and make sure it matches
the staff report. Thank you.
Commissioner Monk: Ok. Great, thanks.
Acting Chair Waldfogel: Great. Please.
MOTION
Commissioner Rosenblum: So like to make a Motion that we approve the Council's recommendation of
the CUP to allow the medical office use for this property.
SECOND
Commissioner Monk: Second.
VOTE
Acting Chair Waldfogel: Great, moved and seconded. Any further discussion? All in favor? Aye.
Opposed? 4-1, Commissioner Summa voting against. The Motion carries. Great, thank you.
MOTION PASSED (4-1-2, Commissioner Summa against, Chair Alcheck and Commissioner Lauing absent)
Commission Action: Motion to Approve Staff Recommendation of CUP to Allow Medical Office use for
property (Motion: Commissioner Rosenblum, Second Commissioner Monk) Motion Passed 4-1 (Summa
Against, Chair Alcheck/Commissioner Lauing Absent)
City of Palo Alto (ID # 8348)
City Council Staff Report
Report Type: Consent Calendar Meeting Date: 9/18/2017
City of Palo Alto Page 1
Summary Title: Approval of an Ordinance Establishing a Permitting Program
for Tobacco Retailers
Title: Adoption of an Ordinance Establishing a Permitting Program for
Tobacco Retailers to be Administered by Santa Clara County (PW)
From: City Manager
Lead Department: Public Works
Recommendation
Staff recommends that Council approve a Palo Alto ordinance (Attachment A)
establishing a permitting program for tobacco retailers to be administered by
Santa Clara County.
Background
Council approved an agreement with Santa Clara County (County) in December
2016 (CMR #7371) in which the County agreed to administer a permit program in
Palo Alto for retailers selling tobacco products, including e-cigarettes. More than
100 cities and counties in California have similar permit programs that prohibit
tobacco sales to underage persons and other related ordinance requirements.
County staff is motivated to run this program, but must have the Palo Alto
ordinance be essentially the same as the County ordinance (which governs
unincorporated areas) to avoid confusion.
Discussion
The proposed Palo Alto ordinance would:
1. Effective July 1, 2018, require:
a. all tobacco retailers to have a Tobacco Retail Permit;
b. after initial permits are issued, prohibit the transfer of the permit
when a business changes hands to the new owner (new owners must
obtain a new permit and permits will not be re-issued to new owners
City of Palo Alto Page 2
if stores are within 1,000 feet of a school, or 500 feet of an existing
tobacco retailer).
c. prohibit pharmacies from selling tobacco products;
2. Effective January 1, 2019, other requirements would go into effect
including:
a. discontinued sales of flavored tobacco products;
b. limits on storefront advertising of tobacco products.
A key provision is the state-wide smoking age requirement of 21. This is the only
permit provision for which an annual sting-type inspection will be conducted by
Palo Alto Police Department. The other provisions of the Palo Alto ordinance and
permits will be inspected by the County. If formal enforcement action is needed
for any provision, Palo Alto would take that action.
Of all the new provisions, the one generating the most comments is the change of
ownership provision. Some small businesses believe the monetary value of their
businesses will be significantly reduced if a buyer cannot sell tobacco products.
This ordinance will also repeal the City’s existing regulations on tobacco vending
machines and replace them with the County’s ban on tobacco vending machines.
Resource Impact
The County will administer the permit program and the collection of fees to cover
costs and take the lead on general outreach efforts. Public Works and Palo Alto
Police Department can accommodate the small additional costs related to
enforcement.
Policy Implications
The proposed Ordinance is consistent with existing Policies and Palo Alto’s
“Healthy City” goal.
Environmental Review
The ordinance does not constitute a Project under CEQA.
Attachments:
Attachment A: Ordinance of the Council of the City of Palo Alto Repealing Section
9.14.080 and Adding Chapter 4.64 to Regulate the Sale of Tobacco Products
City of Palo Alto Page 3
Attachment B: Staff Report 7371 - Approval of an Agreement With the County of Santa
Clara With Respect to a Tobacco Retailer Permit Program
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Ordinance No. _____
Ordinance of the Council of the City of Palo Alto Repealing Section 9.14.080
(Location of Tobacco Vending Machines) and Adding Chapter 4.64 to Title 4
(Business Licenses and Regulations) to Regulate the Sale of Tobacco Products
The Council of the City of Palo Alto does ORDAIN as follows:
SECTION 1. Findings and Recitals. The Council of the City of Palo Alto finds and declares
as follows:
A. The California Legislature has recognized smoking as “the single most important
source of preventable disease and premature death in California.” (Health and Safety Code
section 118950(a)(1)).
B. In 2016, the State of California raised the minimum age to purchase or consume
tobacco products (including through electronic vaporizing devices) from 18 to 21.
C. Researchers at Stanford University School of Medicine have found that teens’
exposure to tobacco advertising at retail outlets substantially increases the odds they will start
smoking.
D. The County of Santa Clara reported that, in Palo Alto, the percentage of stores
found to be selling tobacco to minors rose from 5.5% in 2013 to 15.3% in 2014 (4 of 26 stores in
2014).
E. The State of California’s Cigarette and Tobacco Products Licensing Act of 2003
allows local licensing laws for tobacco sales. (Business and Professions Code section 22971.3).
F. The County of Santa Clara has adopted a tobacco retail permit program in order
to encourage responsible retailing of tobacco products and to deter the sale and distribution of
tobacco products to persons under 21. (County of Santa Clara Ordinance Code, Title A, Division
A18 (§ A18-367 et seq.)).
G. On December 5, 2016, the City Council approved an agreement with the County
of Santa Clara to administer a tobacco retail permit system in the City, pending the passage of a
retail permit ordinance.
H. The City desires to protect the public health, safety, and welfare by discouraging
the sale and distribution of tobacco products to persons under 21.
I. In order to protect the public health, safety, and welfare, the City Council desires
to amend Palo Alto Municipal Code, Title 4 to add a new chapter 4.64 to regulate the sale of
tobacco products.
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SECTION 2. Title 4 (Business Licenses and Regulations) is hereby amended to add new
Chapter 4.64 to read as follows:
Chapter 4.64 Permits for retailers of tobacco products.
4.64.010 Intent.
(a) This Chapter is adopted to:
(1) Ensure compliance with the business standards and practices of the City;
(2) Encourage responsible retailing of tobacco products;
(3) Discourage violations of laws related to tobacco products, especially those that prohibit
or discourage the sale or distribution of tobacco products to persons under 21; and
(4) Protect the public health and welfare.
(b) This Chapter does not expand or reduce the degree to which the acts regulated by federal
or state law are criminally proscribed or alter the penalties provided by such laws.
4.64.020 Definitions.
For the purposes of this Chapter, the following definitions shall apply:
(a) “Arm's length transaction” means a sale in good faith and for valuable consideration that
reflects the fair market value in the open market between two or more informed and willing
parties, neither of which is under any compulsion to participate in the transaction. A sale
between relatives, related companies or partners, or a sale for which a significant purpose is
avoiding the effect of the violations of this Chapter is not an arm's length transaction.
(b) “Designee” means the agency selected or designated by the City to enforce and/or
administer the provisions of this Chapter.
(c) “Ownership” means possession of a ten percent or greater interest in the stock, assets, or
income of a business, other than a security interest for the repayment of debt.
(d) “School” means a public or private elementary, middle, junior high or high school.
(e) “Tobacco product” means:
(1) Any product subject to: 21 U.S.C. § 387 et seq. (“Subchapter IX”) of the Federal Food,
Drug, and Cosmetic Act (See 21 U.S.C. § 387a(b)) (“products subject to Subchapter IX”);
or 21 C.F.R. §§ 1100.1- 1100.3 (“tobacco products subject to Subchapter IX”). Products
subject to Subchapter IX include, but are not limited to, cigarettes, cigarette tobacco,
roll-your-own tobacco, smokeless tobacco, cigars, pipe tobacco, waterpipe tobacco, and
electronic nicotine delivery systems (such as, but not limited to, electronic cigarettes,
electronic cigars, electronic hookahs, vape pens, personal vaporizers, and electronic
pipes). Products subject to Subchapter IX also include components or parts of tobacco
products, such as, but not limited to, liquids that are for use in an electronic nicotine
delivery system and that contain tobacco or nicotine or are derived from tobacco or
nicotine (“e-liquids”), vials that contain e-liquids, and atomizers. Products that are not
subject to Subchapter IX include accessories of tobacco products, such as, but not
limited to, ashtrays, spittoons, and conventional matches and lighters that solely
provide an external heat source to initiate but not maintain combustion of a tobacco
product.
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(2) Any product for use in an electronic nicotine delivery system, whether or not it contains
tobacco or nicotine or is derived from tobacco or nicotine.
(f) “Retailer” means any person who sells, exchanges, or offers to sell or exchange, for any
form of consideration, tobacco products. “Retailing” shall mean the doing of any of these
things. This definition is without regard to the quantity of tobacco products sold,
exchanged, or offered for sale or exchange.
4.64.030 Requirements and prohibitions.
(a) Permit required. It shall be unlawful for any person to act as a retailer of tobacco products
in the City without first obtaining and maintaining a valid retailer permit pursuant to this
Chapter for each location at which that activity is to occur. Tobacco product retailing
without a valid tobacco retailer permit is a nuisance as a matter of law.
(b) Lawful business operation. It shall be a violation of this Chapter for any retailer to violate
any local, state, or federal law applicable to tobacco products or the retailing of such
products.
(c) Display of permit. Each current retailer permit shall be prominently displayed in a publicly
visible place at the permitted location.
(d) Notice of minimum age for purchase of tobacco products. Retailers shall post
conspicuously, at each point of purchase, a notice stating that selling tobacco products to
anyone under 21 years of age is illegal and subject to penalties. Such notice shall be subject
to the approval of the City or its Designee.
(e) Positive identification required. No retailer shall sell or transfer a tobacco product to
another person who appears to be under 30 years of age without first examining the
customer's identification to confirm that the customer is at least the minimum age required
under state law to purchase and possess the tobacco product.
(f) False and misleading advertising prohibited. A retailer either without a valid retailer permit
or with a suspended retailer permit:
(1) Shall keep all tobacco products out of public view.
(2) Shall not display any advertisement relating to tobacco products that promotes the sale
or distribution of such products from the retailer's location or that could lead a
reasonable consumer to believe that tobacco products can be obtained at that location.
(g) Limitation on storefront advertising. No more than 15 percent of the square footage of the
windows and clear doors of an establishment used for retailing shall bear advertising or
signs of any sort, and all advertising and signage shall be placed and maintained in a manner
that ensures that law enforcement personnel have a clear and unobstructed view of the
interior of the premises, including the area in which the cash registers are maintained, from
the exterior public sidewalk or entrance to the premises. However, this latter requirement
shall not apply to an establishment where there are no windows, or where existing windows
are located at a height that precludes a view of the interior of the premises by a person
standing outside the premises.
(h) Flavored tobacco products.
(1) Except as permitted in paragraph (3) of this subsection (h), no retailer shall sell a
tobacco product containing, as a constituent or additive, an artificial or natural flavor or
aroma (other than tobacco) or an herb or spice, including strawberry, grape, orange,
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clove, cinnamon, pineapple, vanilla, coconut, licorice, cocoa, chocolate, cherry, or
coffee, that is a characterizing flavor or aroma of the tobacco product, smoke or vapor
produced by the tobacco product.
(2) A tobacco product shall be subject to a rebuttable presumption that the product is
prohibited by paragraph (1) of this subsection (h) if:
(A) The product's manufacturer or any other person associated with the manufacture or
sale of tobacco products makes or disseminates public statements or claims to the
effect that the product has or produces a characterizing flavor or aroma, other than
tobacco; or
(B) The product's label, labeling, or packaging includes a statement or claim—including
any text and/or images used to communicate information—that the product has or
produces a characterizing flavor or aroma other than tobacco.
(3) Paragraph (1) of this subsection (h) shall not apply to any retailer that meets all of the
following criteria:
(A) Primarily sells tobacco products;
(B) Generates more than 60 percent of its gross revenues annually from the sale of
tobacco products;
(C) Does not permit any person under 21 years of age to be present or enter the
premises at any time, unless accompanied by the person's parent or legal guardian,
as defined in Section 6903 of the Family Code;
(D) Does not sell alcoholic beverages or food for consumption on the premises; and
(E) Posts a sign outside the retail location that clearly, sufficiently, and conspicuously
informs the public that persons under 21 years of age are prohibited from entering
the premises.
(i) Vending machines prohibited. No tobacco product shall be sold, offered for sale, or
distributed to the public from a vending machine or appliance, or any other coin or token
operated mechanical device designed or used for vending purposes, including, but not
limited to, machines or devices that use remote control locking mechanisms.
(j) Prohibition on sale or distribution of tobacco products to persons under 21 years. No
retailer shall sell, offer for sale, or distribute any tobacco product to any individual who is
under 21 years of age.
4.64.040 Eligibility requirements for a permit.
(a) No retailer permit may be issued to authorize retailing at other than a fixed location. For
example, retailing by persons on foot or from vehicles is prohibited.
(b) No retailer permit may be issued to authorize retailing at a temporary or recurring
temporary event. For example, retailing at flea markets and farmers' markets is prohibited.
(c) No retailer permit may be issued to authorize retailing at any location where the profession
of pharmacy is practiced by a pharmacist licensed by the State of California in accordance
with the Business and Professions Code and where prescription drugs are offered for sale.
(d) No retailer permit may be issued to authorize retailing at any location within 1,000 feet of a
school, as measured by a straight line between any point along the property line of any
parcel on which a school is located and any point along the perimeter of the applicant's
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proposed business location; provided, however, that the prohibition contained in this
subsection (d) shall not apply to the following:
(1) Any retailer of tobacco products operating lawfully on the date immediately prior to this
Chapter becoming effective; and
(2) Any lawfully operating retailer of tobacco products that would otherwise become
ineligible to receive or renew a retailer permit due to the creation or relocation of a
school.
(e) No retailer permit may be issued to authorize retailing at a location which is within 500 feet
of a location occupied by another retailer, as measured by a straight line between any point
along the perimeter of an existing retailer’s business location and any point along the
perimeter of the applicant's proposed business location, provided, however, that the
prohibition contained in this subsection (e) shall not apply to existing retailers of tobacco
products operating lawfully on the date immediately prior to this Chapter becoming
effective.
(f) Any exemption granted to a retailer pursuant to this Chapter shall cease to apply upon the
earlier of the following to occur:
(1) The retailer fails to timely renew the retailer permit pursuant to this Chapter.
(2) A new person obtains ownership in the business.
4.64.050 Application procedure.
(a) It is the responsibility of each retailer to be informed of all laws applicable to retailing,
including those laws affecting the issuance of a retailer permit. No retailer may rely on the
issuance of a retailer permit as a determination by the City that the retailer has complied
with all laws applicable to retailing. A retailer permit issued contrary to this Chapter,
contrary to any other law, or on the basis of false or misleading information supplied by a
retailer shall be revoked pursuant to this Chapter.
(b) All retailer permit applications shall be submitted on a form supplied by the City or its
Designee to implement this Chapter.
(c) A permitted retailer shall inform the City or its Designee in writing of any change in the
information submitted on an application for a retailer permit within 14 calendar days of a
change.
(d) All information specified in an application pursuant to this Chapter shall be subject to
disclosure under the California Public Records Act (Government Code Section 6250 et seq.)
or any other applicable law, subject to any exemptions.
4.64.060 Issuance of permit.
(a) Upon the receipt of a complete application for a retailer permit, the application fee, and the
annual permit fee, the City or its Designee shall issue a retailer permit unless substantial
evidence demonstrates that one or more of the following bases for denial exists:
(1) The information presented in the application is inaccurate or false.
(2) The application seeks authorization for retailing at a location for which this Chapter
prohibits issuance of a retailer permit.
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(3) The application seeks authorization for retailing by a person to whom this Chapter
prohibits issuance of a retailer permit.
(4) The application seeks authorization for retailing that is prohibited pursuant to this
Chapter (e.g., mobile vending) or that is unlawful pursuant to any other law.
(b) A retailer permit shall be revoked if the City or its Designee finds that one or more of the
bases for denial of a retailer permit under this Chapter existed at the time application was
made or at any time before the retailer permit issued. Such a revocation shall be without
prejudice to the filing of a new permit application.
(c) A decision to deny issuance of a retailer permit or to revoke a retailer permit that has been
wrongly issued may be appealed pursuant to this Chapter.
4.64.070 Permit term, renewal, and expiration.
(a) Term of permit. The term of a retailer permit is one year. A retailer permit is invalid upon
expiration.
(b) Renewal of permit. The City or its Designee shall renew a valid retailer permit upon timely
payment of the annual permit fee. The City or its Designee may, in its discretion, agree to
renew any expired retailer permit within the three-month period following expiration if the
retailer pays the annual permit fee and applicable late charges. For every calendar month,
or fraction thereof, that a retailer fails to renew an expired retailer permit, a late charge
equal to 20 percent of the annual permit fee shall be assessed. A retailer permit renewed
within three calendar months of expiration shall be treated as if timely renewed.
(c) Issuance of permit after revocation or expiration of permit. To apply for a new retailer
permit more than three calendar months after expiration of a retailer permit or following
revocation of a retailer permit that was wrongly issued, a retailer must submit a complete
application for a retailer permit, along with the application fee and annual permit fee. The
City or its Designee shall issue a retailer permit pursuant to the requirements of this
Chapter.
4.64.080 Permits nontransferable.
(a) A retailer permit may not be transferred from one person to another or from one location
to another. Whenever a new person obtains ownership in a business for which a retailer
permit has been issued, a new retailer permit shall be required, but any exemption granted
pursuant to Section 4.64.040(d) or (e) shall cease to apply.
(b) Notwithstanding any other provision of this Chapter, prior violations of this Chapter at a
location shall continue to be counted against a location and permit ineligibility and
suspension periods shall continue to apply to a location unless:
(1) One hundred percent of the interest in the stock, assets, or income of the business,
other than a security interest for the repayment of debt, has been transferred to one or
more new owners; and
(2) The City or its Designee is provided with clear and convincing evidence, including an
affidavit, that the business has been acquired in an arm's length transaction.
4.64.090 Permit conveys a limited, conditional privilege.
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Nothing in this Chapter shall be construed to grant any person obtaining and maintaining a
retailer permit any status or right other than the limited, conditional privilege to act as a
retailer at the location in the City identified on the face of the permit.
4.64.100 Fees.
The City or its Designee shall not issue or renew a retailer permit prior to full payment of any
applicable fees. The City shall, from time to time, establish by resolution the fees to issue or to
renew a retailer permit. The fees shall be calculated so as to recover the cost of administration
and enforcement of this Chapter, including, for example, issuing a permit, administering the
permit program, conducting retailer education, performing retailer inspection and compliance
checks, documenting violations, and prosecuting violators, but shall not exceed the cost of the
regulatory program authorized by this Chapter. All fees and interest earned from such fees shall
be used exclusively to fund administration and enforcement of this Chapter.
4.64.110 Compliance monitoring.
(a) Compliance with this Chapter shall be monitored by the City or its Designee. In addition, any
peace officer may enforce the penal provisions of this Chapter. The City Manager may
designate any number of additional persons to monitor and facilitate compliance with this
Chapter.
(b) The City or its Designee shall check each retailer at least once per 12-month period to
determine if the retailer is complying with all laws applicable to retailing, other than those
laws regulating underage access to tobacco products. Nothing in this paragraph shall create
a right of action in any retailer or other person against the City or its agents.
4.64.120 Prevention of underage sales.
(a) The City or its Designee shall check each retailer to determine whether the retailer is
conducting business in a manner that complies with laws regulating youth access to tobacco
products. Nothing in this paragraph shall create a right of action in any retailer or other
person against the City or its agents.
(b) The City or its Designee shall not enforce any law establishing a minimum age for tobacco
product purchases against a person who otherwise might be in violation of such law
because of the person's age ("Youth Decoy") if the potential violation occurs when:
(1) The Youth Decoy is participating in a compliance check supervised by a peace officer or
a code enforcement official of the City or its Designee;
(2) The Youth Decoy is acting as an agent of a person designated by the City or its Designee
to monitor compliance with this Chapter; or
(3) The Youth Decoy is participating in a compliance check funded in part, either directly or
indirectly through subcontracting, by the City, or the California Department of Public
Health.
4.64.130 Penalties for a violation by a retailer with a permit.
NOT YET APPROVED
170809 th TS/ORD Amending 4.64
(a) In addition to any other penalty authorized by law, an administrative fine shall be imposed
and a retailer permit shall be suspended if any court of competent jurisdiction determines,
or the City or its Designee finds based on a preponderance of the evidence, after the
retailer is afforded notice and an opportunity to be heard, that the retailer, or any of the
retailer's agents or employees, has violated any of the requirements, conditions, or
prohibitions of this Chapter, has pled guilty, "no contest" or its equivalent to such a
violation, or has admitted to such a violation.
(b) Amount of fine. Each such violation shall be subject to an administrative fine as follows:
(1) A fine not to exceed $100.00 for a first violation within a 12-month period;
(2) A fine not to exceed $200.00 for a second violation within a 12-month period; and
(3) A fine not to exceed $500.00 for each additional violation within a 12-month period.
(c) Time period for permit suspension.
(1) For a first violation of this Chapter at a location within any 24-month period, the retailer
permit shall be suspended for up to 30 calendar days.
(2) For a second violation of this Chapter at a location within any 24-month period, the
retailer permit shall be suspended for up to 90 calendar days.
(3) For each additional violation of this Chapter at a location within any 24-month period,
the retailer permit shall be suspended for up to one year.
(d) Waiver of penalties for first violation. The City or its Designee may waive any penalties for a
retailer's first violation of any requirement, condition or prohibition of this Chapter, other
than a violation of a law regulating youth access to tobacco products, if the retailer admits
the violation in writing and agrees to forego a hearing on the allegations. Regardless of the
City's or its Designee’s waiver of penalties for a first violation, the violation will be
considered in determining the penalties for any future violation.
(e) Corrections period. The City or its Designee shall have discretion to allow a retailer a period
of time to correct any violation of any requirement, condition or prohibition of this Chapter,
other than a violation of a law regulating youth access to tobacco products. If a retailer's
violation is corrected within the time allowed for correction, no penalty shall be imposed
under this Chapter.
(f) Appeals. Any penalties imposed under this Chapter may be appealed pursuant to Section
4.64.150 of this Chapter.
4.64.140 Penalties for retailing without a permit.
(a) Administrative fine. In addition to any other penalty authorized by law, an administrative
fine and an ineligibility period for application or issuance of a retailer permit shall be
imposed if a court of competent jurisdiction determines, or the City or its Designee finds
based on a preponderance of evidence, after notice and an opportunity to be heard, that
any person has engaged in retailing at a location without a valid retailer permit, either
directly or through the person's agents or employees, has pled guilty, “no contest” or its
equivalent to such a violation, or has admitted to such a violation.
(b) Amount of fine. Each such violation shall be subject to an administrative fine as follows:
(1) A fine not to exceed $100.00 for a first violation within a 12-month period;
(2) A fine not to exceed $200.00 for a second violation within a 12-month period; and
NOT YET APPROVED
170809 th TS/ORD Amending 4.64
(3) A fine not to exceed $500.00 for each additional violation within a 12-month period.
(c) Time period for permit ineligibility.
(1) For a first violation of this Chapter at a location within any 24-month period, no new
retailer permit may be issued for the person or the location (unless ownership of the
business at the location has been transferred in an arm's length transaction) until 30
calendar days have passed from the date of the violation.
(2) For a second violation of this Chapter at a location within any 24-month period, no new
retailer permit may be issued for the person or the location (unless ownership of the
business at the location has been transferred in an arm's length transaction) until 90
calendar days have passed from the date of the violation.
(3) For each additional violation of this Chapter at a location within any 24-month period,
no new retailer permit may be issued for the person or the location (unless ownership
of the business at the location has been transferred in an arm's length transaction) until
one year has passed from the date of the violation.
(d) Waiver of penalties for first violation. The City or its Designee may waive any penalties for a
retailer's first violation of this Chapter, unless the violation also involves a violation of a law
regulating youth access to tobacco products, if the retailer admits the violation in writing
and agrees to forego a hearing on the allegations. Regardless of the City’s or its Designee's
waiver of penalties for a first violation, the violation will be considered in determining the
penalties for any future violation.
(e) Appeals. Any penalties imposed under this Chapter may be appealed pursuant to this
Section.
4.64.150 Appeals.
(a) A decision to deny issuance of a retailer permit, to revoke a retailer permit that has been
wrongly issued, or to impose penalties for a violation of this Chapter can be appealed to a
hearing officer, subject to the following requirements and procedures. The hearing officer
shall be the City Manager or its Designee.
(b) All appeals must be in writing, state the grounds asserted for relief and the relief sought,
and be filed with the City or its Designee within ten calendar days of receipt of notice of the
appealed action. If such an appeal is made, it shall stay enforcement of the appealed action.
(c) No later than 15 calendar days after receipt of the appeal, the hearing officer shall set an
appeal hearing at the earliest practicable time and shall give notice of the hearing to the
parties at least ten calendar days before the date of the hearing.
(d) Neither the provisions of the Administration Procedure Act (Government Code Section
11500 et seq.) nor the formal rules of evidence in civil or criminal judicial proceedings shall
apply to such hearing. At the hearing, the hearing officer may admit any evidence, including
witnesses, relevant to the determination of the matter, except as otherwise provided in
Section 4.64.160(c) of this Chapter. A record of the hearing shall be made by any means,
including electronic recording, so long as a reasonably accurate and complete written
transcription of the proceedings can be made.
(e) The hearing officer may continue the hearing from time to time, in his or her sole discretion,
to allow for orderly completion of the hearing.
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170809 th TS/ORD Amending 4.64
(f) After the conclusion of the hearing, the hearing officer shall issue a written decision, which
shall be supported by substantial evidence. Notice of the written decision, including findings
of facts, conclusions of law, and notification of the time period in which judicial review may
be sought pursuant to Code of Civil Procedure Section 1094.6, shall be served upon all
parties no later than 20 calendar days following the date on which the hearing closed. Any
decision rendered by the hearing officer shall be a final administrative decision.
4.64.160 Enforcement.
(a) Any violation of this Chapter is hereby declared to be a public nuisance.
(b) Causing, permitting, aiding, abetting, or concealing a violation of any provision of this
Chapter shall also constitute a violation of this Chapter.
(c) Whenever evidence of a violation of this Chapter is obtained in any part through the
participation of a person under the age of 18 years old, such a person shall not be required
over his or her objection to appear or give testimony in any civil or administrative process
brought to enforce this Chapter and the alleged violation shall be adjudicated based upon
the sufficiency and persuasiveness of the evidence presented.
(d) Violations of this Chapter may be remedied by a civil action brought by the City, including,
but not limited to, administrative or judicial nuisance abatement proceedings, civil code
enforcement proceedings, and suits for injunctive relief. For the purposes of the civil
remedies provided in this Chapter, each day on which a tobacco product is offered for sale
in violation of this Chapter, and each individual retail tobacco product that is distributed,
sold, or offered for sale in violation of this Chapter, shall constitute a separate violation of
this Chapter.
(e) Any person found guilty of violating any provision of this Chapter shall be deemed guilty of
an infraction, punishable as provided by California Government Code § 25132.
(f) The remedies provided by this Chapter are cumulative and in addition to any other
remedies available at law or in equity.
SECTION 4. Section 9.14.080 (Location of tobacco vending machines) of Chapter 9.14
(Smoking and Tobacco Regulations) is hereby repealed effective January 1, 2019.
SECTION 5. Severability. If any provision, clause, sentence or paragraph of this
ordinance, or the application to any person or circumstances, shall be held invalid, such
invalidity shall not affect the other provisions of this ordinance which can be given effect
without the invalid provision or application and, to this end, the provisions of this ordinance are
hereby declared to be severable.
SECTION 6. CEQA. The City Council finds and determines that this Ordinance is not a
“project” within the meaning of section 15378 of the California Environmental Quality Act
(CEQA) Guidelines because it has no potential for resulting in physical change in the
environment, either directly or ultimately. In the event that this Ordinance is found to be a
project under CEQA, it is subject to the CEQA exemption contained in CEQA Guidelines section
15061(b)(3) because it can be seen with certainty to have no possibility of a significant effect on
the environment.
NOT YET APPROVED
170809 th TS/ORD Amending 4.64
SECTION 7. Effective Date. This ordinance shall be effective on the thirty-first date after
the date of its adoption except for the following sections:
(a) Sections 4.64.030(a) through (e) inclusive, section 4.64.110, section 4.64.120,
section 4.64.130, section 4.64.140, section 4.64.150, and section 4.64.160 shall
be effective July 1, 2018.
(b) Sections 4.64.030(f) through (i) inclusive shall be effective January 1, 2019.
(c) The repeal of Section 9.14.080 shall be effective as noted in Section 4 of this
ordinance.
INTRODUCED:
PASSED:
AYES:
NOES:
ABSTENTIONS:
ABSENT:
ATTEST: APPROVED:
______________________________ ____________________________
City Clerk Mayor
APPROVED AS TO FORM: ____________________________
City Manager
______________________________
Deputy City Attorney
City of Palo Alto (ID # 7371)
City Council Staff Report
Report Type: Action Items Meeting Date: 12/5/2016
City of Palo Alto Page 1
Summary Title: Approval of Ordinance and Agreement with the County of
Santa Clara on Tobacco Retailer Permits
Title: Approval of an Agreement With the County of Santa Clara With
Respect to a Tobacco Retailer Permit Program; and Discussion and Potential
Adoption of an Ordinance Amending Chapter 9.14 to Restrict Smoking in
Multi Family Housing
From: City Manager
Lead Department: Public Works
Recommendation
The Policy and Services Committee recommends that Council:
1. Approve an agreement with the County of Santa Clara (Attachment A)
relating to the administration and enforcement of a Tobacco Retail Permit
Program in the City of Palo Alto;
2. Direct staff to draft an ordinance amending Chapter 9.14 Smoking and
Tobacco Regulations) of the Palo Alto Municipal Code to establish a
Tobacco Retail Permit Program; and
3. Discuss and potentially adopt on first reading the attached ordinance
amending Chapter 9.14 (Smoking and Tobacco Regulations) of the Palo Alto
Municipal Code to ban smoking in units in multi-unit residences and
common areas, and make other minor amendments to smoking restrictions
(remove bingo games as places and workplaces exempt from the City’s
prohibition against smoking in enclosed places) (Attachment C).
City of Palo Alto Page 2
Background
On February 9, 2016, the Policy and Services Committee directed staff to continue
discussions with the County of Santa Clara on regulatory mechanisms related to
retail sale of tobacco, and report to Council with an ordinance substantially
similar to the County’s Ordinance. In addition, the Policy and Services Committee
approved the draft multi-family smoking ordinance with minor changes for
discussion with Council; and deleting bingo games as places exempt from the
City’s prohibition against smoking in enclosed places (see Attachment D for Policy
and Services Action Minutes and Staff Report).
Discussion
Tobacco Retail Permit Ordinance and Agreement
Staff from the County of Santa Clara and the City of Palo Alto met twice since
February 2016 to develop an agreement for the County to administer and enforce
a new tobacco retail permit program in the City of Palo Alto. Presently the County
only enforces the County’s tobacco retail permit program in unincorporated areas
of the County, but is hoping to establish similar administration and enforcement
partnerships with other cities in the County. Under the Agreement, staff from the
County’s Department of Public Health and Environmental Health would handle
permitting of retailers, collect permit application and annual permit fees
(currently $340 and $425, respectively), review permit applications for new
retailers to determine compliance, provide education to retailers on ordinance
requirements, conduct inspections for compliance with the ordinance, and handle
most enforcement tasks. The City of Palo Alto’s responsibility would be to
conduct annual undercover operations to verify retailers are not conducting
underage sales and to issue citations for such sales. The City and County would
share information on any enforcement and provide annual summaries of retailers
and compliance and alert the County to any new planning applications for
tobacco retailers. The agreement outlining the roles and responsibilities is
contained in Attachment A.
Under the Agreement, the City of Palo Alto must adopt a local ordinance that
contains the same regulatory provisions as the County's tobacco retailer permit
ordinance and any future County amendments to its retail tobacco permit
ordinance. The County’s current retail tobacco permit ordinance is attached as
Attachment B. The County is scheduled in December 2016 to update its ordinance
to better align its provisions with changes in state law, align definitions with
City of Palo Alto Page 3
federal definitions, include a ban of menthol flavored tobacco, and expand the
definition of flavored e-cigarettes. The anticipated operable date of the County’s
December 2016 amendments to its Ordinance is July 1, 2017.
In February 2017, staff will return to Council with a draft local ordinance that will
contain the County’s regulatory provisions, including the December amendments.
The anticipated operable date of the City’s Tobacco Retail Permit ordinance is July
1, 2017.
Smoking Ban in Units in Multi-Unit Residences and Common Areas
Staff made changes requested by the Policy and Services Committee and
completed a final draft of the multi-unit residence smoking ban, including the
one-year implementation time-frame for outreach and education (Attachment C).
The effective date of the ordinance is January 1, 2018. Due to staffing shortages,
staffing capacity and competing projects and assignments for all departments
involved (Police, Planning, Public Works, City Manager’s Office), staff is not in a
position to dedicate resources for enforcement of the ordinance. Nonetheless,
the City would:
1) Require Landlords to give written notice to tenants and buyers and sellers
of units in multi-unit residences of the City’s prohibition effective January 1,
2018, against smoking in units in multi-unit residences and commons areas;
and
2) Require, effective January 1, 2018, Landlords to include the smoking
prohibition as a term in a lease or other rental agreement entered into or
continued.
While there would not be an active enforcement program, Committee members
noted that adopting the Ordinance would help to create a social norm for Palo
Alto. Several Bay Area cities have done this, and believe that it has been
successful. Council may decide that this approach is desirable. There remains a
concern, however, that Palo Alto residents may expect outreach and
enforcement, for which there are no available resources.
Removal of Exemption of Bingo Games from Smoking Ban in Enclosed Places
City of Palo Alto Page 4
As directed by the Policy and Services Committee, Staff made changes to the Palo
Alto Municipal Code Section 9.14.070 to remove the exemption of bingo games
from the places and workplaces exempt from the City’s prohibition of smoking in
enclosed places.
Policy Implications
The adoption of the proposed ordinance would further Comprehensive Plan
policies: N-5: Clean, Healthful Air for Palo Alto and N-6: An Environment Free of
the Damaging Effects of Biological and Chemical Hazardous Materials.
In addition, this effort is consistent with Council’s adopted four priorities that will
"receive particular, unusual and significant attention during the year," including
“Healthy City, Healthy Community.”
Resource Impact
The tobacco retail permit agreement and subsequent ordinance establishing the
program would have a minor impact on the City staff and financial resources and
can be absorbed with existing budgets.
The multi-unit residence smoking ban ordinance could have moderate or
significant impact on City staff and financial resources due to potential resident
requests for enforcement, complaints and inquiries. The City has no budgeted
resources to perform outreach, education or to respond to complaints and
inquiries.
Environmental Review
Provisions of this ordinance do not constitute a project under the Environmental
Quality Act because it can be seen with certainty that no significant negative
environmental impact will occur as a result of the amended ordinance.
Attachments:
A: Agreement for Palo Alto Tobacco Retail Permit Program (PDF)
B: Permits For Retailers Of Tobacco Products (PDF)
C: Ordinance re: Smoking Restrictions for Multi-Family Housing (PDF)
AGREEMENT BETWEEN
THE COUNTY OF SANT A CLARA
AND CITY OF PALO ALTO FOR
A TOBACCO RETAIL PERMIT PROGRAM
This Agreement is entered into by and between the County of Santa Clara ("County") and City
of Palo Alto ("City") relating to administration and enforcement of a tobacco retail permit
program in the City of Palo Alto. County and City may be referred to in this Agreement
individually as a "Party" and collectively as "Parties."
Background I Purpose
In 201 O. the County added Chapter XXIII to Division A 18 of its Ordinance Code, thereby
establishing a permit requirement for retailers of tobacco products in the unincorporated areas of
the County of Santa Clara. The County has since expanded the scope of Chapter XXIII and
modified provisions therein. The City now wishes to adopt one or more ordinance(s) to mirror
the provisions of Chapter XXIII in their entirety. The City and County intend for the County to
administer and enforce the City's tobacco retail permit program within the City, except as
otherwise provided in this Agreement. The County intends to cite violators of the City's
Ordinance Code pursuant to this Agreement.
Agreement
The Parties agree as follows:
1. Scope of Work
Each Party shall perform the work as described in Exhibit A, attached hereto and
incorporated herein by this reference; provided, however, that the County shall have no
responsibility for administering or enforcing any provisions of the City's tobacco retailer
permit ordinance that are in addition to or otherwise different from the County's
provisions.
2. Relationship of Parties I Independent Contractors
Each Party shall perform all work described herein as an independent contractor and not
as an officer, agent, servant or employee of the other Party. None of the provisions of
this Agreement are intended to create, nor shall be deemed or construed to create, any
relationship between the Parties other than that of independent parties contracting with
each other for purpose of effecting the provisions of this Agreement. The Parties are not,
and will not be construed to be in a relationship of joint venture, partnership or employer-
employee. Neither Party has the authority to make any statements, representations or
commitments of any kind on behalf of the other Party, or to use the name of the other
Party in any publications or advertisements, except with the written consent of the other
Party or as is explicitly provided herein. Each Party will be solely responsible for the
acts and omissions of its officers, agents, employees, contractors, and subcontractors, if
any.
3. Term of Agreement
This Agreement is effective from the date that this Agreement is executed, until
terminated in accordance with this Agreement.
4. Payment
The City shall adopt, by reference, the County's fee schedule for annual tobacco retail
permits and tobacco retail permit applications. All annual permit fees and application
fees for the tobacco retail permit program shall be collected and retained by the County.
The County shall advise City of the initial permit fee and application fee necessary to
cover County's anticipated costs under this Agreement. Thereafter, the County shall
provide notice to the City and tobacco retail permit holders in the City of any increases or
decreases in the cost of the County's work under this Agreement and any need to revise
permit fees and/or application fees accordingly.
5. Termination
Either Party may terminate this Agreement for any reason upon ninety (90) days' written
notice. Upon service of a termination notice, the Parties shall use their best efforts to
develop a mutually-agreeable plan for transition of the County's responsibilities to the
City. Upon termination of this Agreement, the City will be responsible for replacing the
County-issued permits.
6. Indemnification and Insurance
City shall indemnify and hold harmless County, its officers, agents and employees for 50
percent of the amount of any claim, liability, loss, injury or damage arising out of, or in
connection with, performance of this Agreement by County and/or its agents, employees
or subcontractors, excepting only loss, injury or damage caused by the negligence or
willful misconduct of personnel employed by County. County shall defend the City, its
officers, agents and employees against any claim, liability, loss, injury or damage arising
out of, or in connection with, performance of this Agreement by County and/or its agents,
employees or subcontractors.
City shall immediately notify County upon learning of any potential or asserted claim,
liability, loss, injury or damage for which the City may be obligated to indemnify or hold
the County harmless pursuant to any provision of this Agreement. County shall
immediately notify City upon learning of any potential or asserted claim, liability, loss,
injury or damage for which the City may be obligated to indemnify or hold the County
harmless pursuant to any provision of this Agreement.
Page 2 of7
Agreement for Palo Alto Tobacco Retail Pcnnit Program
Without limiting the indemnification, City shall maintain or cause to be maintained the
following insurance coverage: (I) a policy of commercial general liability with limits of
liability not less than one million dollars ($1,000,000) per occurrence and two million
dollars ($2,000,000) annual aggregate; (ii) a policy of workers' compensation providing
statutory coverage; (iii) a policy of professional errors and omissions liability with limits
of liability not less than one million dollars ($1,000,000) per occurrence/aggregate; and
(iv) such other insurance or self-insurance as shall be necessary to insure it against any
claim or claims for damages arising under the Agreement. Insurance afforded by the
commercial general liability policy shall be endorsed to provide coverage to the County
as an additional insured. A Certificate of Insurance certifying that coverage as required
herein has been obtained shall be provided to the County. The requirements of this
section may be satisfied by the provision of similar coverage through a self-insurance
program.
7. Compliance with All Laws, Rules, Regulations, Policies and Procedures
The Parties shall comply with all applicable federal, state and local laws, rules,
regulations, policies and procedures.
8. Monitoring I Records
8.1 Monitoring
Each Party shall pennit the other Party to monitor its perfonnance of this
Agreement. To the extent pennitted by law, such monitoring may include, but not
be limited to, audits and review of records related to this Agreement. Upon
request, a Party shall provide the other Party with access to facilities, financial and
employee records that are related to the purpose of the Agreement, except where
prohibited by federal, state or local laws, regulations or rules. Monitoring shall be
permitted at any time during nonnal business hours upon no less than 10 business
days advance notice and may occur up to one year following termination of the
Agreement.
Each Party shall designate a project director/coordinator responsible for
overseeing that Party's perfonnance of this Agreement. Each Party shall notify
the other Party in writing of the designation of the project director/coordinator and
of any change thereto.
8.2 California Public Records Act
The Parties are public agencies subject to the disclosure requirements of the
California Public Records Act ("CPRA"). In the event of a CPRA request for
infonnation related to this Agreement, each Party will use its best efforts to notify
the other Party before such disclosure.
Page 3 of7
Agreement for Palo Alto Tobacco Retail Pennit Program
9. Representations and Warranties
II
II
9.1 Conflict oflnterest
Each Party shall comply, and require its subcontractors to comply, with all
applicable (i) requirements governing avoidance of impermissible client conflicts;
and (ii) federal, state and local conflict of interest laws and regulations including,
without limitation, California Government Code section 1090 et. seq., the
California Political Reform Act (California Government Code section 87100 et.
seq.) and the regulations of the Fair Political Practices Commission concerning
disclosure and disqualification (2 California Code of Regulations section 18700 et.
seq.). Failure to do so constitutes a material breach of this Agreement and is
grounds for immediate termination of this Agreement by either Party.
9.2 Authority
Each individual executing this Agreement on behalf of a Party represents that he
or she is duly authorized to execute and deliver this Agreement on that Party's
behalf.
10. Assignment, Delegation, Subcontracting
Neither Party may assign any of its rights, delegate any of its duties or subcontract any
portion of its work or business under this Agreement without the prior written consent of
the other Party, which such other Party may withhold in its sole and absolute discretion.
No assignment, delegation or subcontracting will release a Party from any of its
obligations or alter any of its obligations to be performed under the Agreement.
11. Governing Law, Jurisdiction and Venue
This Agreement shall be construed and its performance enforced under California law. In
the event that suit shall be brought by either Party to this Agreement, the Parties agree
that venue shall be exclusively vested in the state courts of the County of Santa Clara or,
if federal jurisdiction is appropriate, exclusively in the United States District Court for the
Northern District of California, in San Jose, California.
12. Waiver
No delay or failure to require performance of any provision of this Agreement shall
constitute a waiver of that provision as to that or any other instance. Any waiver granted
by a Party must be in writing, and shall apply to the specific instance expressly stated.
13. Notice
Any notice required to be given by either Party, or which either Party may wish to give,
shall be in writing and served either by personal delivery or sent by certified or registered
Page 4 of7
Agreement for Palo Alto Tobacco Retail J>ennit Program
mail, postage prepaid, addressed as follows:
Ifto COUNTY:
County of Santa Clara
Public Health Department
Sara H. Cody, MD
Health Officer and Public Health Director
976 Lenzen A venue
San Jose, CA 95126
Ifto CITY:
City of Palo Alto
Mike Sartor
Director of Public Work
250 Hamilton Ave., 6th Fl.
Palo Alto, CA 94301
Notice shall be deemed effective on the date personally delivered or, if mailed, three (3)
days after deposit in the mail. Either Party may designate a different person and/or
address for the receipt of notices by sending written notice to the other Party.
14. Third Party Beneficiaries
This Agreement does not and is not intended to confer any rights or remedies upon any
person or entity other than the Parties.
15. Entire Agreement
This document represents the entire Agreement between the Parties with respect to the
subject matter hereof. All prior negotiations and written and/or oral Agreements between
the Parties with respect to the subject matter of this Agreement are merged into this
Agreement.
16. Amendments
This Agreement may only be amended by a written instrument signed by the Parties.
17. Survival
The rights and duties under the following provisions shall survive the termination or
expiration of this Agreement: Section 6 -Indemnification and Insurance; Section 8 -
Monitoring/ Records; Section 9 -Representation and Warranties; and Section lH-7-
Goveming LawN enue, and in any instrument, certificate, exhibit, or other writing
attached hereto and incorporated herein.
18. Severability
If any term, covenant, condition or provision of this Agreement, or the application thereof
to any person or circumstance, shall to any extent be held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms, covenants,
conditions and provisions of this Agreement, or the application thereof to any person or
Page S of7
Agreement for Palo Alto Tobacco Retail Permit Program
circumstance, shall remain in full force and effect and shall in no way be affected,
impaired or invalidated thereby.
19. Contract Execution
Unless otherwise prohibited by law or County policy, the Parties agree that an electronic
copy of a signed contract, or an electronically signed contract, has the same force and
legal effect as a contract executed with an original ink signature. The tenn "electronic
copy of a signed contract" refers to a transmission by facsimile, electronic mail, or other
electronic means of a copy of an original signed contract in a portable document fonnat.
The tenn ''electronically signed contract" means a contract that is executed by applying
an electronic signature using technology approved by the County.
20. Counterparts
This Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute one and the same
instrument.
II
II
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates written
below.
Signed:
County of Santa Clara:
Dave Cortese, President
Board of Supervisors
Attest:
Date
Megan Doyle Date
Clerk of the Board of Supervisors
Approved:
Sara H. Cody, MD Date
Health Officer and Public Health
Director
Agreement for Palo Alto Tobacco Retail Pennit Program
City of Palo Alto
Date
Page 6of7
Approved as to Form and Legality:
Jenny S. Lam Date
Deputy County Counsel
Approved:
John Cookinhaµi Date
SCVHHS Chief Financial Officer
Exhibits to this Agreement:
Exhibit A: Scope of Work
Page7 of7
Agreement for Palo Alto Tobacco Retail Permit Program
Exhibit A
County-City of Palo Alto Tobacco Retail Permit Partnership
Description of Roles by Agency
County of Santa Clara
Department of Environmental Health
1. Send out permit applications to all existing retailers selling tobacco products and/or electronic
smoking devices in the City of Palo Alto and issue permits as necessary
2. Maintain database tracking system for all permitted tobacco retailers
3. Provide list of permitted tobacco retailers to Public Health Department and City of Palo Alto on
an annual basis or more frequently as requested
4. Collect required permit fees
5. Conduct at least one annual inspection of tobacco retailers to ensure compliance with local,
state, and federal laws (except sales to minors)
6. Conduct follow up inspections if necessary
7. Keep records of inspection outcomes for each tobacco retailer and provide annual inspection
report summaries to a single point of contact at the Public Health Department and the City of
Palo Alto
8. Take appropriate enforcement action if a violation is not corrected
9. Coordinate with City of Palo Alto Police Department when violations of sales to minors occur in
order to take the appropriate enforcement action (may include fines and suspension of permit)
10. Conduct administrative hearings if retailer appeals violation; Director of Environmental Health
or his/her designee serves as the Administrative Hearing Officer
Public Health Department
1. Provide initial list of tobacco retail facilities to DEH
2. Obtain monthly list from Board of Equalization to establish current list of tobacco retailers and
map for any new retailers
3. Map any new retailers to ensure meet requirements related to distance from schools, distance
from existing tobacco retailers -provide timely comments to City of Palo Alto Planning
Department for new tobacco retailers whose plans have been routed.
4. Proactively engage the business community so that they are aware of the TRL ordinance (e.g.,
effective date, requirements, fines/penalties)
5. Respond to requests for information from Palo Alto tobacco retailers and the public regarding
requirements under the Tobacco Retail Permit ordinance
6. Meet with all related personnel to: (1) coordinate enforcement strategy; and (2) develop/
maintain policy and procedure for enforcement
7. Meet with all related personnel as necessary to: (1) coordinate post-compliance check strategy;
and (2) next steps for violators
8. Conduct outreach to impacted Palo Alto stakeholders (retailers, the public) if the County
proposes any amendments to their current ordinance and engage with Palo Alto Public Works
staff prior to outreach to notify them of any proposed changes;
City of Palo Alto
Police Department
1. Conduct undercover decoy operations with tobacco retailers once a year
2. Issue citations for violations of PC 308(a)
3. Immediately notify the County (Department of Environmental Health and Public Health) on
outcomes of enforcement operations, particularly when violations of PC 308(a) occur
4. Provide any requested documentation or evidence as part of the Administrative Hearing should
a retailer appeal a violation
Public Works Department
1. Provide annual enforcement report summaries to a single point of contact at the Public Health
Department and Department of Environmental Health
2. Act as a resource to other cities that may be interested in a similar partnership with the County
3. Update ordinance as needed in collaboration with Attorneys office
Planning Department
1. Route plans for any new tobacco ore-cigarette retailers to a designated contact at the County
Public Health Department to obtain input.
Santa Clara County, CA Code of Ordinances Page 1of13
CHAPTER XXlll. -PERMITS FOR RETAILERS OF TOBACCO PRODUcrsc221
Footnotes:
--(22)···
Editor's note-Ord. No. NS-300.903, adopted Oct. 78, 2016, amended Ch. XX/II in its entirety to read as herein set out. Former Ch.
XX/II, pertained to permits for retailers of tobacco products and electronic smoking devices, and derived from Ord. No. NS-300.873,
adopted June 24, 2014; and Ord. No. NS-300.883, adopted June 23, 2015.
Sec. A 18-367. -Intent.
This chapter is adopted to:
(1) Ensure compliance with the business standards and practices of the County;
(2) Encourage responsible retailing of tobacco products;
(3) Discourage violations of laws related to tobacco products, especially those that prohibit
or discourage the sale or distribution of tobacco products to persons under 21: and
(4) Protect the public health and welfare.
This chapter does not expand or reduce the degree to which the acts regulated by federal or
state law are criminally proscribed or alter the penalties provided by such laws.
(Ord. No. NS-300.903, § 1, 10-18-16)
Sec. A 18-368. -Definitions.
For the purposes of this chapter, the following definitions shall apply:
(a) Arm's length transaction means a sale in good faith and for valuable consideration that
reflects the fair market value in the open market between two or more informed and
willing parties, neither of which is under any compulsion to participate in the transaction.
A sale between relatives, related companies or partners, or a sale for which a significant
purpose is avoiding the effect of the violations of this chapter is not an arm's length
transaction.
(b) Department means the County's Department of Environmental Health and any agency or
person designated by the director of the Department of Environmental Health to enforce
or administer the provisions of this chapter.
(c) Ownership means possession of a ten-percent or greater interest in the stock, assets, or
income of a business, other than a security interest for the repayment of debt.
(d) School means a public or private elementary, middle, junior high or high school.
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(e) Tobacco product means (unless specifically noted elsewhere):
(1) Any product subject to Subchapter IX (21 U.S.C. § 387 et seq. ("Subchapter IX")) of the
Federal Food, Drug, and Cosmetic Act. (See.11 U.S.C. § 387a(b) (products subject to
Subchapter IX); 21 C.F.R. §§ 1100.1-1100.3 (tobacco products subject to Subchapter
IX).) Products subject to Subchapter IX include, but are not limited to, cigarettes,
cigarette tobacco, roll-your-own tobacco, smokeless tobacco, cigars, pipe tobacco,
waterpipe tobacco, and electronic nicotine delivery systems (such as, but not limited
to, electronic cigarettes, electronic cigars, electronic hookahs, vape pens, personal
vaporizers, and electronic pipes). Products subject to Subchapter IX also include
components or parts of tobacco products, such as, but not limited to, liquids that are
for use in an electronic nicotine delivery system and that contain tobacco or nicotine
or are derived from tobacco or nicotine ("e-liquids"), vials that contain e-liquids, and
atomizers. Products that are not subject to Subchapter IX include accessories of
tobacco products, such as, but not limited to, ashtrays, spittoons, and conventional
matches and lighters that solely provide an external heat source to initiate but not
maintain combustion of a tobacco product.
(2) Any product for use in an electronic nicotine delivery system, whether or not it
contains tobacco or nicotine or is derived from tobacco or nicotine.
(f) Retailer means any person who sells, exchanges, or offers to sell or exchange tobacco
products for any form of consideration. "Retailing" shall mean the doing of any of these
things. This definition is without regard to the quantity of tobacco products sold,
exchanged, or offered for sale or exchange.
(NS-300.903, § 1, 10-18-16)
Sec. A18-369. -Requirements and prohibitions.
(a) Permit required. It shall be unlawful for any person to act as a retailer of tobacco products in
an unincorporated area of the County without first obtaining and maintaining a valid retailer
permit pursuant to this chapter for each location at which that activity is to occur.
(b) Lawful business operation. It shall be a violation of this chapter for any retailer to violate any
local, state, or federal law applicable to tobacco products or the retailing of such products.
(c) Display of permit. Each retailer permit shall be prominently displayed in a publicly visible
place at the permitted location.
(d)
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Notice of minimum age for purchase of tobacco products. Retailers shall post conspicuously,
at each point of purchase, a notice stating that selling tobacco products to anyone under 21
years of age is illegal and subject to penalties. Such notice shall be subject to the approval of
the Public Health Department.
(e) Positive identification required. No retailer shall sell or transfer a tobacco product to another
person who appears to be under 30 years of age without first examining the customer's
identification to confirm that the customer is at least the minimum age required under state
law to purchase and possess the tobacco product.
(f) Minimum age for persons selling tobacco products. No person who is younger than the
minimum age established by state law for the purchase or possession of tobacco products
shall engage in retailing.
(g) False and misleading advertising prohibited. A retailer either without a valid retailer permit or
with a suspended retailer permit:
(1) Shall keep all tobacco products out of public view.
(2) Shall not display any advertisement relating to tobacco products that promotes the sale
or distribution of such products from the retailer's location or that could lead a
reasonable consumer to believe that tobacco products can be obtained at that location.
(h) Limitation on storefront advertising. No more than 15 percent of the square footage of the
windows and clear doors of an establishment used for retailing shall bear advertising or
signs of any sort, and all advertising and signage shall be placed and maintained in a manner
that ensures that law enforcement personnel have a clear and unobstructed view of the
interior of the premises, including the area in which the cash registers are maintained, from
the exterior public sidewalk or entrance to the premises. However, this latter requirement
shall not apply to an establishment where there are no windows, or where existing windows
are located at a height that precludes a view of the interior of the premises by a person
standing outside the premises.
(i) Flavored tobacco products.
(1) Except as permitted in paragraph (3) of this subsection (i), no retailer shall sell a tobacco
product containing, as a constituent or additive, an artificial or natural flavor or aroma
(other than tobacco) or an herb or spice, including strawberry, grape, orange, clove,
cinnamon, pineapple, vanilla, coconut, licorice, cocoa, chocolate, cherry, or coffee, that is
a characterizing flavor or aroma of the tobacco product, smoke or vapor produced by the
tobacco product.
(2) A tobacco product shall be subject to a rebuttable presumption that the product is
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prohibited by paragraph (1) of this subsection if:
(i) The product's manufacturer or any other person associated with the manufacture or
sale of tobacco products makes or disseminates public statements or claims to the
effect that the product has or produces a characterizing flavor or aroma, other than
tobacco; or
(ii) The product's label, labeling, or packaging includes a statement or claim-including
any text and/or images used to communicate information-that the product has or
produces a characterizing flavor or aroma, other than tobacco.
(3) Paragraph (1) of this subsection (i) shall not apply to any retailer that meets all of the
following criteria:
(i) Primarily sells tobacco products;
(ii) Generates more than 60 percent of its gross revenues annually from the sale of
tobacco products;
(iii) Does not permit any person under 21 years of age to be present or enter the
premises at any time, unless accompanied by the person's parent or legal guardian,
as defined in Section 6903 of the Family Code;
(iv) Does not sell alcoholic beverages or food for consumption on the premises; and
(v) Posts a sign outside the retail location that clearly, sufficiently, and conspicuously
informs the public that persons under 21 years of age are prohibited from entering
the premises.
ij) Vending machines prohibited. No tobacco product shall be sold, offered for sale, or
distributed to the public from a vending machine or appliance, or any other coin or token
operated mechanical device designed or used for vending purposes, including, but not
limited to, machines or devices that use remote control locking mechanisms.
(k) Prohibition on sale or distribution of tobacco products to individuals under 21. No retailer
shall sell, offer for sale, or distribute any tobacco product to any individual who is under 21
years of age.
(Ord. No. NS-300.903, § 1, 10-18-16)
Sec. A 18-370. -Eligibility requirements for a permit.
(a) No retailer permit may be issued to authorize retailing at other than a fixed location. For
example, retailing by persons on foot or from vehicles is prohibited.
(b) No retailer permit may be issued to authorize retailing at a temporary or recurring
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temporary event. For example, retailing at flea markets and farmers' markets is prohibited.
(c) No retailer permit may be issued to authorize retailing at any location where the profession
of pharmacy is practiced by a pharmacist licensed by the State of California in accordance
with the Business and Professions Code and where prescription drugs are offered for sale.
(d) No retailer permit may be issued to authorize retailing at any location within 1,000 feet of a
school, as measured by a straight line between any point along the property line of any
parcel on which a school is located and any point along the perimeter of the applicant's
proposed business location; provided, however, that the prohibition contained in this
subsection (d) shall not apply to the following:
(1} Any retailer of tobacco products (as such term was defined in this chapter of the
Ordinance Code on January 22, 2011} operating lawfully on January 21, 2011;
(2) Any retailer of electronic smoking devices (as such term was defined in this chapter of
the Ordinance Code on August 23, 2014) operating lawfully on August 22, 2014; and
(3) Any lawfully operating retailer of tobacco products that would otherwise become
ineligible to receive or renew a retailer permit due to the creation or relocation of a
school.
(e} No retailer permit may be issued to authorize retailing at a location which is within 500 feet
of a location occupied by another retailer, as measured by a straight line between any point
along the perimeter of an existing retailer's business location and any point along the
perimeter of the applicant's proposed business location; provided, however, that the
prohibition contained in this subsection (e} shall not apply to:
(1} Any retailer of tobacco products (as such term was defined in this chapter of the
Ordinance Code on January 22, 2011} operating lawfully on January 21, 2011; and
(2) Any retailer of electronic smoking devices (as such term was defined in this chapter of
the Ordinance Code on August 23, 2014) operating lawfully on August 22, 2014.
(f) Any exemption granted to a retailer pursuant to this section shall cease to apply upon the
earlier of the following to occur:
(1} The retailer fails to timely renew the retailer permit pursuant to Section A 18-373(b) of
this chapter.
(2) A new person obtains ownership in the business.
(Ord. No. NS-300.903, § 1, 10-18-16)
Sec. A 18-371. -Application procedure.
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(a} It is the responsibility of each retailer to be informed of all laws applicable to retailing,
including those laws affecting the issuance of a retailer permit. No retailer may rely on the
issuance of a retailer permit as a determination by the County that the retailer has complied
with all laws applicable to retailing. A retailer permit issued contrary to this chapter, contrary
to any other law, or on the basis of false or misleading information supplied by a retailer shall
be revoked pursuant to Section A 18-372 of this chapter.
(b) All retailer permit applications shall be submitted on a form supplied by the Department.
(c} A permitted retailer shall inform the Department in writing of any change in the information
submitted on an application for a retailer permit within 14 calendar days of a change.
(d} All information specified in an application pursuant to this section shall be subject to
disclosure under the California Public Records Act (Government Code Section 6250 et seq.) or
any other applicable law, subject to the laws' exemptions.
(Ord. No. NS-300.903, § 1, 10-18-16)
Sec. A 18-372. -Issuance of permit.
(a) Upon the receipt of a complete application for a retailer permit, the application fee, and the
annual permit fee, the department shall issue a retailer permit unless substantial evidence
demonstrates that one or more of the following bases for denial exists:
(1) The information presented in the application is inaccurate or false.
(2) The application seeks authorization for retailing at a location for which this chapter
prohibits issuance of a retailer permit.
(3) The application seeks authorization for retailing by a person to whom this chapter
prohibits issuance of a retailer permit.
(4) The application seeks authorization for retailing that is prohibited pursuant to this
chapter (e.g., mobile vending) or that is unlawful pursuant to any other law.
(b) A retailer permit shall be revoked if the Department finds. that one or more of the bases for
denial of a retailer permit under this section existed at the time application was made or at
any time before the retailer permit issued. Such a revocation shall be without prejudice to the
filing of a new permit application.
(c) A decision to deny issuance of a retailer permit or to revoke a retailer permit that has been
wrongly issued may be appealed pursuant to Section A18-381 of this chapter.
(Ord. No. NS-300.903, § 1, 10-18-16)
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Sec. A18-373. -Permit term, renewal, and expiration.
(a) Term of permit. The term of a retailer permit is one year. A retailer permit is invalid upon
expiration.
(b) Renewal of permit. The Department shall renew a valid retailer permit upon timely payment
of the annual permit fee. The Department may, in its discretion, agree to renew any expired
retailer permit within the three-month period following expiration if the retailer pays the
annual permit fee and applicable late charges. For every calendar month, or fraction thereof,
that a retailer fails to renew an expired retailer permit, a late charge equal to 20 percent of
the annual permit fee shall be assessed. A retailer permit renewed within three calendar
months of expiration shall be treated as if timely renewed.
(c) Issuance of permit after revocation or expiration of permit. To apply for a new retailer permit
more than three calendar months after expiration of a retailer permit or following revocation
of a retailer permit that was wrongly issued, a retailer must submit a complete application for
a retailer permit, along with the application fee and annual permit fee. The Department shall
issue a retailer permit pursuant to the requirements of Section A 18-372 of this chapter.
(Ord. No. NS-300.903, § 1, 10-18-16)
Sec. A18-374. -Permits nontransferable.
(a) A retailer permit may not be transferred from one person to another or from one location to
another. Whenever a new person obtains ownership in a business for which a retailer permit
has been issued, a new retailer permit shall be required, but any exemption granted pursuant
to Section A 18-370 of this chapter shall cease to apply.
(b) Notwithstanding any other provision of this chapter, prior violations of this chapter at a
location shall continue to be counted against a location and permit ineligibility and
suspension periods shall continue to apply to a location unless:
(1) One hundred percent of the interest in the stock, assets, or income of the business,
other than a security interest for the repayment of debt, has been transferred to one or
more new owners; and
(2) The County is provided with clear and convincing evidence, including an affidavit, that
the business has been acquired in an arm's length transaction.
(Ord. No. NS-300.903, § 1, 10-18-16)
Sec. A 18-375. -Permit conveys a limited, conditional privilege.
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Nothing in this chapter shall be construed to grant any person obtaining and maintaining a
retailer permit any status or right other than the limited, conditional privilege to act as a retailer
at the location in the County identified on the face of the permit.
(Ord. No. NS-300.903, § 1, 10-18-16)
Sec. A 18-376. -Fees.
The Department shall not issue or renew a retailer permit prior to full payment of any
applicable fees. The Board of Supervisors shall, from time to time, establish by resolution the fees
to issue or to renew a retailer permit. The fees shall be calculated so as to recover the cost of
administration and enforcement of this chapter, including, for example, issuing a permit,
administering the permit program, retailer education, retailer inspection and compliance checks,
documentation of violations, and prosecution of violators, but shall not exceed the cost of the
regulatory program authorized by this chapter. All fees and interest earned from such fees shall
be used exclusively to fund administration and enforcement of this chapter.
(Ord. No. NS-300.903, § 1, 10-18-16)
Sec. A18-377. -Compliance monitoring.
(a) Compliance with this chapter shall be monitored by the Department. In addition, any peace
officer may enforce the penal provisions of this chapter. The County Executive may designate
any number of additional persons to monitor and facilitate compliance with this chapter.
(b) The Department or other person designated to enforce the provisions of this chapter shall
check each retailer at least once per 12-month period to determine if the retailer is
complying with all laws applicable to retailing, other than those laws regulating underage
access to tobacco products. Nothing in this paragraph shall create a right of action in any
retailer or other person against the County or its agents.
(Ord. No. NS-300.903, § 1, 10-18-16)
Sec. A 18-378. -Prevention of underage sales.
(a)
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The Public Health Department or other persons designated to enforce the provisions of this
chapter shall, in conjunction with the Sheriff's Office, check each retailer at least twice per 12-
month period to determine whether the retailer is conducting business in a manner that
complies with laws regulating youth access to tobacco products. Nothing in this paragraph
shall create a right of action in any retailer or other person against the County or its agents.
(b) The County shall not enforce any law establishing a minimum age for tobacco product
purchases against a person who otherwise might be in violation of such law because of the
person's age ("Youth Decoy") if the potential violation occurs when:
(1) The Youth Decoy is participating in a compliance check supervised by a peace officer or a
code enforcement official of the County;
(2) The Youth Decoy is acting as an agent of a person designated by the County to monitor
compliance with this chapter; or
(3) The Youth Decoy is participating in a compliance check funded in part, either directly or
indirectly through subcontracting, by the County or the California Department of Public
Health.
(Ord. No. NS-300.903, § 1, 10-18-16)
Sec. A 18-379. -Penalties for a violation by a retailer with a permit.
(a) Administrative fine. In addition to any other penalty authorized by law, an administrative fine
shall be imposed and a retailer permit shall be suspended if any court of competent
jurisdiction determines, or the Department finds based on a preponderance of the evidence,
after the retailer is afforded notice and an opportunity to be heard, that the retailer, or any of
the retailer's agents or employees, has violated any of the requirements, conditions, or
prohibitions of this chapter, has pied guilty, "no contest" or its equivalent to such a violation,
or has admitted to a such a violation.
(b) Amount of fine. Each such violation shall be subject to an administrative fine as follows:
(1) A fine not to exceed $100.00 for a first violation within a 12-month period;
(2) A fine not to exceed $200.00 for a second violation within a 12-month period; and
(3) A fine not to exceed $500.00 for each additional violation within a 12-month period.
(c) Time period for permit suspension.
(1) For a first violation of this chapter at a location within any 24-month period, the retailer
permit shall be suspended for up to 30 calendar days.
(2) For a second violation of this chapter at a location within any 24-month period, the
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retailer permit shall be suspended for up to 90 calendar days.
(3) For each additional violation of this chapter at a location within any 24-month period, the
retailer permit shall be suspended for up to one year.
(d) Waiver of penalties for first violation. The Department may waive any penalties for a retailer's
first violation of any requirement, condition or prohibition of this chapter, other than a
violation of a law regulating youth access to tobacco products, if the retailer admits the
violation in writing and agrees to forego a hearing on the allegations. Regardless of the
Department's waiver of penalties for a first violation, the violation will be considered in
determining the penalties for any future violation.
(e) Corrections period. The Department shall have discretion to allow a retailer a period oftime
to correct any violation of any requirement, condition or prohibition of this chapter, other
than a violation of a law regulating youth access to tobacco products. If a retailer's violatio.n is
corrected within the time allowed for correction, no penalty shall be imposed under this
section.
(f) Appeals. Any penalties imposed under this section may be appealed pursuant to Section A 18-
381 of this chapter.
(Ord. No. NS-300.903, § 1, 10-18-16)
Sec. A 18-380. -Penalties for retailing without a permit.
(a) Administrative fine. In addition to any other penalty authorized by law, an administrative fine
and an ineligibility period for application or issuance of a retailer permit shall be imposed if a
court of competent jurisdiction determines, or the Department finds based on a
preponderance of evidence, after notice and an opportunity to be heard, that any person has
engaged in retailing at a location without a valid retailer permit, either directly or through the
person's agents or employees, has pied guilty, "no contest" or its equivalent to such a
violation, or has admitted to such a violation.
(b) Amount of fine. Each such violation shall be subject to an administrative fine as follows:
(1) A fine not to exceed $100.00 for a first violation within a 12-month period;
(2) A fine not to exceed $200.00 for a second violation within a 12-month period; and
(3) A fine not to exceed $500.00 for each additional violation within a 12-month period.
(c) Time period for permit ineligibility.
(1)
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For a first violation of this section at a location within any 24-month period, no new
retailer permit may be issued for the person or the location (unless ownership of the
business at the location has been transferred in an arm's length transaction) until 30
calendar days have passed from the date of the violation.
(2) For a second violation of this section at a location within any 24-month period, no new
retailer permit may be issued for the person or the location (unless ownership of the
business at the location has been transferred in an arm's length transaction) until 90
calendar days have passed from the date of the violation.
(3) For each additional violation of this section at a location within any 24-month period, no
new retailer permit may be issued for the person or the location (unless ownership of
the business at the location has been transferred in an arm's length transaction) until
one year has passed from the date of the violation.
(d) Waiver of penalties for first violation. The Department may waive any penalties for a retailer's
first violation of this section, unless the violation also involves a violation of a law regulating
youth access to tobacco products, if the retailer admits the violation in writing and agrees to
forego a hearing on the allegations. Regardless of the Department's waiver of penalties for a
first violation, the violation will be considered in determining the penalties for any future
violation.
(e) Appeals. Any penalties imposed under this section may be appealed pursuant to Section A 18-
381 of this chapter.
(Ord. No. NS-300.903, § 1, 10-18-16)
Sec. A 18-381. -Appeals.
(a) A decision to deny issuance of a retailer permit, to revoke a retailer permit that has been
wrongly issued, or to impose penalties for a violation of this chapter can be appealed to a
hearing officer, subject to the following requirements and procedures. The hearing officer
shall be the director of the Department, his or her designee, or another individual selected by
the County.
(b) All appeals must be in writing, state the grounds asserted for relief and the relief sought, and
be filed with the director of the Department or his or her designee within ten calendar days
of receipt of notice of the appealed action. If such an appeal is made, it shall stay
enforcement of the appealed action.
(C)
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No later than 15 calendar days after receipt of the appeal, the hearing officer shall set an
appeal hearing at the earliest practicable time and shall give notice of the hearing to the
parties at least ten calendar days before the date of the hearing.
(d) Neither the provisions of the Administration Procedure Act (Government Code Section 11500
et seq.) nor the formal rules of evidence in civil or criminal judicial proceedings shall apply to
such hearing. At the hearing, the hearing officer may admit any evidence, including witnesses,
relevant to the determination of the matter, except as otherwise provided in Section A 18-382
(c) of this chapter. A record of the hearing shall be made by any means, including electronic
recording, so long as a reasonably accurate and complete written transcription of the
proceedings can be made.
(e) The hearing officer may continue the hearing from time to time, in his or her sole discretion,
to allow for orderly completion of the hearing.
(f) After the conclusion of the hearing, the hearing officer shall issue a written decision, which
shall be supported by substantial evidence. Notice of the written decision, including findings
of facts, conclusions of law, and notification of the time period in which judicial review may be
sought pursuant to Code of Civil Procedure Section 1094.6, shall be served upon all parties no
later than 20 calendar days following the date on which the hearing closed. Any decision
rendered by the hearing officer shall be a final administrative decision.
(Ord. No. NS-300.903, § 1, 10-18-16)
Sec. A 18-382. -Enforcement.
(a) Any violation of this chapter is hereby declared to be a public nuisance.
(b) Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter
shall also constitute a violation of this chapter.
(c) Whenever evidence of a violation of this chapter is obtained in any part through the
participation of a person under the age of 21 years old, such a person shall not be required
over his or her objection to appear or give testimony in any civil or administrative process
brought to enforce this chapter and the alleged violation shall be adjudicated based upon the
sufficiency and persuasiveness of the evidence presented.
(d) Violations of this chapter may be remedied by a civil action brought by the County, including,
but not limited to, administrative or judicial nuisance abatement proceedings, civil code
enforcement proceedings, and suits for injunctive relief. For the purposes of the civil
remedies provided in this chapter, each day on which a tobacco product is offered for sale in
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violation of this chapter, and each individual retail tobacco product that is distributed, sold, or
offered for sale in violation of this chapter, shall constitute a separate violation of this
chapter.
(e) Any person found guilty of violating any provision of this chapter shall be deemed guilty of an
infraction, punishable as provided by California Government Code§ 25132.
(f) The remedies provided by this chapter are cumulative and in addition to any other remedies
available at law or in equity.
(Ord. No. NS-300.903, § 1, 10-18-16)
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*NOT YET APPROVED*
1
150310 sh 0170010
Ordinance No. ______
Ordinance of the Council of the City of Palo Alto Amending
Chapter 9.14 (Smoking and Tobacco Regulations) of the Palo Alto
Municipal Code to Establish New Smoking Restrictions for Multi-
Family Housing
The Council of the City of Palo Alto does ORDAIN as follows:
SECTION 1. Findings and Declarations. The City Council finds and declares as follows:
(a) That the adoption of this Ordinance is necessary to protect the public health,
safety and welfare for the reasons set forth in section 9.14.005. The purposes of this Ordinance
are to ban smoking in multi-unit housing in order to reduce the risks of second hand smoke and
vapor, reduce litter, and enhance enjoyment of these areas.
SECTION 2. Chapter 9.14 of the Palo Alto Municipal Code is hereby amended to read as
follows:
Palo Alto Municipal Code Chapter 9.14: Smoking and Tobacco Regulations
9.14.005 Purpose.
The purpose of this Chapter is to:
(a) Protect the public health, safety and general welfare by prohibiting smoking and
use of electronic smoking devices in multi-unit housing, public parks, public places, service
locations, city pool cars, child day care facilities, and unenclosed eating establishments.
(b) Ensure a cleaner and more hygienic environment within the city, reduce litter,
and protect the City's natural resources, including creeks and streams.
(c) Enhance the welfare of residents, workers, and visitors by reducing exposure to
second hand smoke, which studies confirm can cause negative health effects in non-smokers.
(d) Balance the needs of persons who smoke with the needs of nonsmokers,
including children and youth, to be free from the discomforts and health threats created by
exposure to second-hand smoke and vapor.
9.14.010 Definitions.
The following words and phrases, whenever used in this chapter shall be construed as defined
in this section:
(a) “Adjacent Unenclosed Property” means any Unenclosed Area of property, publicly or
privately owned, that abuts a Multi-Unit Residence
(ab) "Bar" means an area which is devoted to serving alcoholic beverages and in
which serving food is only incidental to the consumption of such beverages. "Bar" shall include
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bar areas within eating establishments which are devoted to serving alcoholic beverages and in
which serving food is only incidental to the consumption of such beverages.
(bc) ”City car" means any truck, van or automobile owned by the city and operated
by a city employee.
(d)(c) “Commercial Area” means an area, including all publicly owned sidewalks, alleys,
parking areas, public places, outdoor dining areas, service areas, etc. within areas zoned
in the City’s Comprehensive Plan as regional/community commercial (including
Downtown, California Avenue Business District, Town and Country, and Stanford
Shopping Center) and Neighborhood Commercial.
(e) “Common Area” means every Enclosed Area and every Unenclosed Area of a Multi-
Unit Residence that residents of more than one Unit are entitled to enter or use,
including, without limitation, halls, pathways, lobbies, courtyards, elevators, stairs,
community rooms, playgrounds, gym facilities, swimming pools, parking garages,
parking lots, grassy or landscaped areas, restrooms, laundry rooms, cooking areas,
and eating areas.
(df) "Eating establishment" means a coffee shop, cafeteria, short-order café,
luncheonette, sandwich shop, soda fountain, restaurant, or other establishment serving food to
members of the public.
(eg) “Electronic smoking device” means an electronic and/or battery-operated device
that can deliver an inhalable dose of nicotine to the user. “Electronic smoking device” includes
any product meeting this definition, regardless of whether it is manufactured, distributed,
marketed or sold as an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe,
electronic hookah, electronic vape, vaporizer or any other product name or descriptor.
(fh) "Employee" means any person who is employed by any employer in
consideration for direct or indirect monetary wages or profit.
(gi) "Employee eating place" means any place serving as an employee cafeteria,
lunchrooms, lounge, or like place.
(hj) "Employer" means any person who employs the services of an individual person
or persons.
(ik) "Enclosed" means either closed in by a roof and four walls with appropriate
openings for ingress and egress or not open to the sky due to a cover or shelter consisting of a
tarpaulin, tent structure or other impermeable or semi-permeable materials or fabric.
(l) “Enclosed Area” means an area in which outside air cannot circulate freely to all parts
of the area, and includes an area that has:
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(1) any type of overhead cover, whether or not that cover includes vents or other
openings and at least three (3) walls or other physical boundaries of any height, whether or not
those boundaries include vents or other openings; or
(2) four (4) walls or other vertical boundaries that exceed six (6) feet in height, whether
or not those boundaries include vents or other openings.
(m) “Landlord” means any Person or agent of a Person who owns, manages, or is
otherwise legally responsible for a Unit in a Multi-Unit Residence that is leased to a residential
tenant, except that “Landlord” does not include a tenant who sublets a Unit (e.g., a sublessor).
(jn) "Motion picture theater" means any theater engaged in the business of
exhibiting motion pictures.
(o) “Multi-Unit Residence” means property containing two (2) or more Units, including,
but not limited to, apartment buildings, condominium complexes, senior and assisted living
facilities, and long-term health care facilities. Multi-Unit Residences do not include the
following:
(1) a hotel or motel that meets the requirements of California Civil Code section
1940, subdivision (b)(2);
(2) a mobile home park;
(3) a single-family home; and
(4) a single-family home with a detached or attached in-law or second unit
(p) “Nonsmoking Area” means any Enclosed Area or Unenclosed Area in which Smoking is
prohibited by (1) this chapter or other law; (2) binding agreement relating to the ownership,
occupancy, or use of real property; or (3) designation of a Person with legal control over the
area.
(kq) “Public Event” means events open to the general public, including but not
limited to a farmers’ market, parade, craft fair, festival, or any other such event.
(lr) "Public places" means enclosed areas within publicly and privately owned
buildings, structures, facilities, or complexes that are open to, used by, or accessible to the
general public. Public places include, but are not limited to, stores, banks, eating
establishments, bars, hotels, motels, depots and transit terminals, theaters and auditoriums,
enclosed sports arenas, convention centers, museums, galleries, polling places, hospitals and
other health care facilities of any kind (including clinics, dental, chiropractic, or physical therapy
facilities), automotive service centers, general business offices, nonprofit entity offices and
libraries. Public places further include, but are not limited to, hallways, restrooms, stairways,
escalators, elevators, lobbies, reception areas, waiting rooms, indoor service lines, checkout
stations, counters and other pay stations, classrooms, meeting or conference rooms, lecture
rooms, buses, or other enclosed places that are open to, used by, or accessible to the general
public.
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(ms) "Service locations" means those enclosed or unenclosed areas open to, used by,
or accessible to the general public that are listed below:
(1) Bus, train and taxi shelters;
(2) Service waiting areas including, but not limited to, ticket or service lines, public
transportation waiting areas, and public telephones;
(3) Areas within twenty-five feet of the entrance or exit to an enclosed public place,
where smoking is prohibited;
(4) Areas in dedicated parks or other publicly accessible areas that are within
twenty-five feet of bleachers, backstops, or play structures.
(nt) "Smoking" means the combustion of any cigar, cigarette, tobacco or any similar
article inhaling, exhaling, burning, or carrying any lighted, heated, or ignited cigar, cigarette,
cigarillo, pipe, hookah, Eelectronic Ssmoking Ddevice, or any plant product intended for human
inhalation.
(ou) "Tobacco product" means any substance containing tobacco leaf, including but
not limited to cigarettes, cigars, smoking tobacco, and smokeless tobacco.
(pv) "Tobacco store" means a retail store utilized primarily for the sale of tobacco
products and accessories and in which the sale of other products is incidental.
(qw) "Tobacco vending machine" means any electronic or mechanical device or
appliance the operation of which-depends upon the insertion of money, whether coin or paper
bill, or other thing representative of value, which dispenses or releases a tobacco product
and/or tobacco accessories.
(x) “Unenclosed Area” means any area that is not an Enclosed Area.
(y) “Unit” means a personal dwelling space, even where lacking cooking facilities or
private plumbing facilities, and includes any associated exclusive-use Enclosed Area or
Unenclosed Area, such as, for example, a private balcony, porch, deck, or patio. “Unit” includes,
without limitation, an apartment; a condominium; a townhouse; a room in a senior facility; a
room in a long-term health care facility, assisted living facility, or hospital; a room in a hotel or
motel; a dormitory room; a room in a single room occupancy facility; a room in a homeless
shelter; a mobile home; a camper vehicle or tent; a single-family home; and an in-law or second
unit.
(rz) “Vapor” means aerosol produced from use of an electronic smoking device.
(saa) "Workplace" means any enclosed area of a structure or portion thereof used as a
place of employment as well as unenclosed workplaces, such as outdoor construction sites.
9.14.020 Smoking prohibited - Enclosed Places.
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Smoking and the use of electronic smoking devices is prohibited in the Enclosed Areas of the
following places within the City of Palo Alto, except in places subject to prohibition on smoking
contained in Labor Code section 6404.5, in which case that law applies
(1) Workplaces;
(2) Public places;
(3) Units within Multi-Unit residences; and
(4) Common Areas of Multi-Unit residences.
The effective date of the smoking prohibition provided in subdivisions (3) and (4) of this Section
is January 1, 2018.
Any places exempted by the California smoke free workplace law (Labor Code Section
6404.5(d)) are not exempt under this chapter. Smoking is prohibited by this chapter in all places
exempted by that State law, except as provided in 9.14.070.
9.14.025 Smoking prohibited - Unenclosed Areas.
(a) Smoking and the use of electronic smoking devices in all unenclosed areas
defined as Service Locations shall be prohibited, including a buffer zone within 25 feet from any
doorway, window, opening, crack, or vent into an Enclosed Area in which Smoking is
prohibited, except while the Person Smoking is actively passing on the way to another
destination and provided Smoke does not enter any Enclosed Area in which Smoking is
prohibited.
(b) Smoking and the use of electronic smoking devices is prohibited in unenclosed
eating establishments and bars.
9.14.030 Smoking prohibited - City cars.
Smoking and the use of electronic smoking devices is prohibited in all city cars.
9.14.035 Smoking Prohibited - Public Parks and Public Events.
Smoking and the use of electronic smoking devices is prohibited in all parks, including at public
events.
9.14.040 Smoking prohibited - Child day care facilities.
Smoking is prohibited in a private residence which is licensed as a child day care facility within
the meaning of Health and Safety Code Section 1596.750 and Section 1596.795 and
amendments.
9.14.045 Smoking prohibited – Commercial Areas and Public Events.
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Smoking and the use of electronic smoking devices is prohibited in commercial areas, except
places where smoking is already prohibited by state or federal law, in which case those laws
apply. This prohibition includes public events held on public streets. A shopping center or
commercial areas may establish a designated smoking area that is at least 25 feet away from
any openings and includes receptacles to control litter.
9.14.050 Smoking Prohibited - Outdoor Common Areas of all Multi Unit Residences.
Smoking and the use of electronic smoking devices is prohibited in Outdoor Common Areas of
all Multi-Unit Residences, provided, however, that a Person with legal control over a Common
Area may designate a portion of the Unenclosed Area of the Common Area as a designated
Ssmoking area if the area meets the following criteria:
(1) Must be an Unenclosed Area;
(2) Must be at least twenty-five (25) feet from Unenclosed Areas primarily used by children
and Unenclosed Areas with improvements that facilitate physical activity including, for
example, playgrounds, tennis courts, swimming pools, and school campuses;
(3) Must be at least twenty-five (25) feet in any direction from any operable doorway,
window, opening or other vent into an Enclosed Area that is located at the Multi-Unit
Residence and is a Nonsmoking area;
(4) Shall have a clearly marked perimeter;
(5) Shall have a receptacle for cigarette butts that is emptied and maintained, and
(6) Shall be identified by conspicuous signs.
9.14.055 Smoking Prohibited - Nonsmoking Buffer Zones.
Smoking and the use of electronic smoking devices is prohibited in Adjacent Unenclosed
Property within twenty-five (25) feet in any direction of any doorway, window, opening, or
other vent into an Enclosed Area of a Multi-Unit Residence.
9.14. 060 Required and Implied Lease Terms for all New and Existing Units in Multi-Unit
Residences.
(a) Every lease or other rental agreement for the occupancy of a Unit in a Multi-Unit
Residence, entered into, renewed, or continued month-to-month, effective January
1, 2018 shall include the following:
(1) A clause stating that Smoking is prohibited in the Unit, including exclusive-use areas
such as balconies, porches, or patios.
(2) A clause providing that it is a material breach of the lease or agreement for the
tenant, or any other Person subject to the control of the tenant or present by
invitation or permission of the tenant, to (i) Smoke in any Common Area of the
property other than a designated Smoking area; (ii) Smoke in the Unit, or (iii) violate
any law regulating Smoking anywhere on the property.
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(3) A clause providing that it is a material breach of the agreement for tenant or any
other Person subject to the control of the tenant to violate any law regulating
Smoking while anywhere on the property. Such a clause might state, “It is a material
breach of this agreement for tenant or any other person subject to the control of the
tenant or present by invitation or permission of the tenant to violate any law
regulating smoking while anywhere on the property.”
(4) A clear description of all areas on the property and in the buffer zone where
Smoking is allowed or prohibited.
(5) A clause expressly conveying third-party beneficiary status to all occupants of the
Multi-Unit Residence as to the Smoking provisions of the lease or other rental
agreement. Such a clause shall provide that any tenant of the Multi-Unit Residence
may sue another tenant/owner to enforce the Smoking provisions of the agreement
but that no tenant shall have the right to evict another tenant for a breach of the
Smoking provisions of the agreement.
(b) Whether or not a Landlord complies with subsections (a) above, the clauses required
by those subsections shall be implied and incorporated by law into every agreement
to which subsection (a) applies and shall become effective as of the earliest possible
date on which the Landlord could have made the insertions pursuant to subsections
(a).
(c) This chapter shall not create additional liability for a Landlord to any Person for a
tenant’s breach of any Smoking provision in a lease or other rental agreement for
the occupancy of a Unit in a Multi-Unit Residence if the Landlord has fully complied
with this Section.
(d) Failure to enforce any Smoking provision required by this chapter shall not affect the
right to enforce such provision in the future, nor shall a waiver of any breach
constitute a waiver of any subsequent breach or a waiver of the provision itself.
9.14.065 Other Requirements And Prohibitions.
(a) Every Landlord shall deliver the following, on or before July 1, 2017, to each Unit of a Multi-
Unit Residence:
(1) a written notice of the new requirements prohibiting smoking in units and common areas as
stated in 9.14. 020
(b) As of July 1, 2017, every seller of a Unit in a Multi-Unit Residence shall provide prospective
buyers with written notice clearly stating that:
(i) Smoking is prohibited in Units, including any associated exclusive-use Enclosed Area or
Unenclosed Area, such as, for example, a private balcony, porch, deck, or patio, as of January 1,
2018; and
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(ii) Smoking is prohibited in all Common Areas, except for specifically designated Smoking
areas, as of January 1, 2018.
(d) Clear and unambiguous “No Smoking” signs shall be posted in sufficient numbers and
locations in Common Areas where Smoking is prohibited by this chapter or other law. Such
signs shall be maintained by the Person or Persons with legal control over the Common Areas.
The absence of signs shall not be a defense to a violation of any provision of this chapter.
9.14.060 Reserved.*
* Editor's Note: Former Section 9.14.060, Regulation of Smoking in the Workplace, previously
codified herein and containing portions of Ordinance Nos. 4056 and 4164 was repealed in its
entirety by Ordinance No. 4294.
9.14.070 Exemptions.
The following places and workplaces are exempt from Section 9.14.020:
(a) Smoking at theatrical production sites is not prohibited by this subsection if the
theater general manager certifies that smoking is an essential part of the story and the use of a
fake, prop, or special effect cannot reasonably convey the idea of smoking in an effective way
to a reasonable member of the anticipated audience. This exception will not apply if minors are
performers within the production.
(b) Bingo games, consistent with prohibition on smoking contained in Labor Code
section 6404.5 and licensed pursuant to the Palo Alto Municipal Code, which do not permit
access by minors under eighteen years of age
(c)(b) A fully enclosed room in a hotel, motel, other transient lodging establishment
similar to a hotel, motel, or public convention center which is being used entirely for a private
function and which is not open to the general public, except while food or beverage functions
are taking place, including setup, service, and cleanup activities, or when the room is being
used for exhibit purposes, sixty-five percent of the guest rooms in a hotel, motel, or similar
transient lodging establishment;
(d)(c) Tobacco stores with private smokers' lounges meeting the requirements of the
applicable portions of subdivision (d)(4) of Labor Code Section 6404.5.
9.14.80 Location of tobacco vending machines.
(a) No person shall locate, install, keep or maintain a tobacco vending machine
except in a place which under state law is not lawfully accessible to minors.
(b) This section shall become effective ninety days after its enactment. Any tobacco
vending machine not in conformance with this section upon its effective date shall be removed.
9.14.090 Display of tobacco products for sale.
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No person shall display or offer tobacco products for sale except in an area, or from within an
enclosure, which physically precludes the removal of the tobacco products without the
assistance of the person authorizing such display or offer, or an employee of such person.
(Ord. 4056 § 4 (part), 1991)
9.14.100 Posting of signs required.
With the exception of service locations, wherever this ordinance prohibits smoking and the use
of electronic smoking devices, conspicuous signs shall be posted. Signs of similar size containing
the international "no smoking" symbol consisting of a pictorial representation of a burning
cigarette and electronic smoking device enclosed in a red circle with a red bar across it may be
used in addition to or in lieu of any signs required hereunder. Such signs shall be placed by the
owner, operator, manager, or other persons having control of such room, building, or other
place where smoking and the use of electronic smoking devices is prohibited. Signs placed at
each entrance of buildings in which smoking is totally prohibited shall be sufficient. The
absence of signs shall not be a defense to a violation of any provision of this chapter.
9.14.110 Enforcement.
Pursuant to Section 6 of Article IV of the Palo Alto City Charter, the city manager is hereby
granted authority to enforce the provisions of this chapter and Labor Code Section 6404.5.
9.14.120 Public nuisance.
Any violation of this chapter is a public nuisance and may be abated in accordance with Chapter
9.56 of the Palo Alto Municipal Code and/or Code of Civil Procedure Section 731.
9.14.130 Violations.
Violation of any provision of this chapter shall be punishable as provided in this code. Violations
shall be punishable by the following:
(1) An administrative citation and a fine not exceeding $250 for the first violation;
(2) An infraction and a fine not exceeding $300 for the second violation
(3) An infraction or a misdemeanor and a fine not exceeding $500 for each
additional violation within one year
SECTION 3. Severability. If any provision, clause, sentence or paragraph of this
ordinance, or the application to any person or circumstances, shall be held invalid, such
invalidity shall not affect the other provisions of this Ordinance which can be given effect
without the invalid provision or application and, to this end, the provisions of this Ordinance
are hereby declared to be severable.
SECTION 4. The Council finds that this project is exempt from the provisions of the
California Environmental Quality Act (“CEQA”), pursuant to Section 15061 of the CEQA
Guidelines, because it can be seen with certainty that there is no possibility that the ordinance
will have a significant effect on the environment.
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INTRODUCED:
PASSED:
AYES:
NOES:
ABSENT:
ABSTENTIONS:
ATTEST:
____________________________ ____________________________
City Clerk Mayor
APPROVED AS TO FORM: APPROVED:
____________________________ ____________________________
Principal City Attorney City Manager
____________________________
Director of Public Works
CITY OF PALO ALTO OFFICE OF THE CITY ATTORNEY
September 18, 2017
The Honorable City Council
Palo Alto, California
Request for Authorization to Increase Existing Contract for Legal
Services With the Law Firm of Renne Sloan Holtzman & Sakai by an
Additional $15,000 for a Total Not-to-Exceed Amount of $210,000 for
Litigation Services
The City Attorney's Office requests authorization to amend the existing contract with
the law firm of Renne Sloan Holtzman & Sakai, Attorneys at Law (Renne Sloan) to increase the
contract amount by an additional $15,000. This amendment will bring the not to exceed
amount of the contract to $210,000.
The City retained Renne Sloan in October 2014 to represent the City in court
proceedings in the case of City of Palo Alto v. Public Employment Relations Board, International
Association of Fire Fighters, Local 1319 AFL-CIO, real party in interest, California Court of
Appeal, Sixth Appellate District, H041407. An additional $15,000 is needed to cover the
additional cost of preparing a Petition for Review with the California Supreme Court. Funding
for this contract amendment does not require additional budgetary authority as it can be
accommodated within the Office of the City Attorney’s FY 2018 budget.
Department Head: Molly Stump, City Attorney
Page 2
CITY OF PALO ALTO OFFICE OF THE CITY CLERK
September 18, 2017
The Honorable City Council
Palo Alto, California
SECOND READING: Adoption of an Ordinance of the Council of the City
of Palo Alto Extending Interim Ordinance No. 5357 that Added
Sections 18.85.200 through 18.85.208 to Chapter 18.85 of Title 18
Imposing an Office Annual Limit of 50,000 Square Feet in Designated
Areas of City (FIRST READING: September 5, 2017 PASSED: 9-0)
This ordinance was first heard by the City Council on September 5, 2017 and was passed 9-0
without any changes. It is now before the City Council for a second reading.
ATTACHMENTS:
Attachment A: Annual Office Limit Extension Ordinance (DOCX)
Department Head: Beth Minor, City Clerk
Page 2
Attachment A
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170818 jb Lee/PLANNING 1
Ordinance No.__________
Ordinance of the Council of the City of Palo Alto Extending Interim Ordinance
No. 5357 that Added Sections 18.85.200 through 18.85.208 to Chapter 18.85 of
Title 18 Imposing an Office Annual Limit of 50,000 Square Feet in Designated
Areas of City
The Council of the City of Palo Alto does ORDAIN as follows:
SECTION 1. Findings and Recitals. The Council of the City of Palo Alto finds and declares
as follows:
A. On October 26, 2015, the City Council adopted Interim Ordinance No. 5357, and
related findings, establishing an annual limit of 50,000 square feet of net new office/R&D
development in specified areas of the City including Downtown, the California Avenue area, and
the El Camino Real Corridor. By its terms, Ordinance No. 5357 will expire within two years of its
effective date of November 26, 2015 or upon adoption of the Comprehensive Plan Update,
whichever occurs earlier.
B. On January 30, 2017, during consideration of the Comprehensive Plan Update,
the City Council directed staff to prepare and bring forward, separate from the Comprehensive
Plan, an ordinance establishing the annual office limit on a continuing basis without a specified
sunset date.
C. A limited extension of the interim ordinance through June 30, 2018 will allow
time for the City to complete the necessary work and analysis to prepare the annual office limit
ordinance.
D. The findings adopted in Ordinance No. 5357 are incorporated herein by
reference and reaffirmed.
SECTION 2. Extension. The City Council hereby extends Interim Ordinance No. 5357
through June 30, 2018.
SECTION 3. Supersede. This Ordinance supersedes any provision of the Palo Alto
Municipal Code and Interim Ordinance No. 5357 inconsistent with the provisions of this
Ordinance.
SECTION 4. Severability. If any provision, clause, sentence or paragraph of this
ordinance, or the application to any person or circumstances, shall be held invalid, such
invalidity shall not affect the other provisions of this Ordinance which can be given effect
without the invalid provision or application and, to this end, the provisions of this Ordinance
are hereby declared to be severable.
170613 jb Lee/PLANNING 2
SECTION 5. Effective Period. This Ordinance shall be effective on the thirty-first date
after the date of its adoption. This Ordinance shall expire on the earlier of June 30, 2018 or
upon Council adoption of an ordinance replacing the interim ordinance and establishing an
annual office limit on a continuing basis.
SECTION 6. CEQA. The City Council finds that this Ordinance falls under the California
Environmental Quality Act (CEQA) exemption found in Title 14 California Code of Regulations
Section 15061(b)(3) because it is a temporary measure designed to slow the rate of change in
some commercial areas of the City.
INTRODUCED:
PASSED:
AYES:
NOES:
ABSTENTIONS:
ABSENT:
ATTEST: APPROVED:
______________________________ ____________________________
City Clerk Mayor
APPROVED AS TO FORM: ____________________________
City Manager
______________________________
Assistant City Attorney ____________________________
Director of Planning and Community
Environment
City of Palo Alto (ID # 8458)
City Council Staff Report
Report Type: Action Items Meeting Date: 9/18/2017
City of Palo Alto Page 1
Summary Title: 3877 El Camino Real Mixed-Use Project
Title: PUBLIC HEARING / QUASI-JUDICIAL. 3877 El Camino Real [14PLN-
00464]: Adoption of a Mitigation Monitoring and Reporting Plan and
Approval of a Site and Design Review for the Demolition of the Vacant 5,860
Square-Foot Commercial Building and Construction of a new Mixed-Use
Project. The Project Includes a 4,027 Square Foot Commercial Building and 17
Dwelling Units (Flats and Townhouses). Parking for the Project is Provided in
a Basement. The Applicant Also Requests Approval of a Design Enhancement
Exception to Allow the Basement to Encroach Into the Required Rear Yard
Setback Below Grade. Environmental Assessment: A Mitigated Negative
Declaration was circulated between March 6, 2017 and April 7, 2017. Both
the Planning & Transportation Commission (March 8, 2017) and Architectural
Review Board (May 18, 2017) have Recommended Approval of the Project.
Zoning Districts: CS and RM-30 (Continued From August 28, 2017)
From: City Manager
Lead Department: Planning and Community Environment
Recommendation
Staff recommends that Council take the following actions:
1. Adopt the attached Mitigated Negative Declaration and Mitigation Monitoring and
Reporting Program as set forth in the Record of Land Use Action (Attachment B)
2. Adopt the Record of Land Use Action approving Site and Design and Design
Enhancement Exception applications, based on findings and subject to conditions
of approval as recommended by the Planning & Transportation Commission
(March 8, 2017) and Architectural Review Board (May 18, 2017)
Executive Summary
The applicant requests approval of a Site and Design and a Design Enhancement
Exception to allow the demolition of a vacant commercial building and construction of a
City of Palo Alto Page 2
new mixed-use project. The project is located on a 32,825-square foot L-shaped parcel
with street frontage along El Camino Real and Curtner Avenue. The site includes two
zoning designations: commercial and residential zoning. The project includes a three-
story mixed-use building including six residential flats along the site’s frontage on El
Camino Real (the CS zoned area), 11 residential two-story townhouses in the rear
portion of the site (RM-30 zoned area), and a below-grade garage that would include all
of the required parking for the site. A total of two deed restricted affordable housing
units are being provided on site. The requested Exception is for a reduction in the rear
setback of the basement garage from 10’-0” to 6’-2” and will be entirely below grade.
The Planning and Transportation Commission conducted a public hearing on the project
on March 8, 2017 and recommended approval of the project to the City Council (3-1).
The Architectural Review Board conducted a public hearing on the project on May 18,
2017 and recommended approval of the project to the City Council (3-0-2).
Background
The project site consists of approximately 32,825 square feet (0.75 acres) and supports
an existing 5,860 square-foot vacant building and parking lot. The site is “L” shaped
with street frontage on both El Camino Real (CS zoning district) and Curtner Avenue
(RM-30).
The proposed project involves demolition of the existing building along El Camino Real
and construction of a new mixed-use project (mixed-use building & 11 townhomes).
The contemporary-designed mixed-use building is proposed to be three stories
containing 4,035 square feet of commercial area (including 896 square feet of common
area—lobby, etc.) and six residential flats (five market rate and one affordable unit) on
the commercially zoned portion of the property (0.25 acres). The project is designed
with smooth stucco, composite paneling, rain-screens and glass. Behind this building on
the portion of the lot zoned RM-30 (0.50 acres), the proposed residential townhouses
would be two stories each and are configured as four duplexes and one triplex for 11
more two bedroom units, for a total of 17 units for the site. The total residential floor
area is 22,243 square feet; and the total project floor area is 26,278.
All the parking for the project is provided below grade. The garage would include 34
spaces assigned to the residential units, seven guest spaces, and 21 commercial
parking spaces for a total of 62 parking spaces. The proposed parking slightly exceeds
the City’s requirements. Garage access is provided with a two-way driveway ramp
accessed from Curtner Avenue and an ingress-only (one-way) ramp on El Camino Real.
Trash facilities for the project are in the basement area as well as bicycle lockers. Both
stairwells and elevators are provided. The Design Enhancement Exception (DEE)
request is for the decrease in the 10’-0” setback in the rear at the basement to 6’-2”.
This allows for the basement to provide the necessary dimensions accommodating the
parking spaces and drive aisles.
City of Palo Alto Page 3
The project is proposing ownership units (condos), so 15% of the units are required to
be affordable. This equates to two units, plus in-lieu fees for the remaining fraction (17
DU x 15% = 2.55). The provision of on-site affordable housing qualifies the project for
design concessions under the State density bonus law and the applicant is seeking a
code-authorized concession related to floor area (see discussion below).
The pedestrian access to the commercial portion of the project would be provided from
the existing sidewalk along El Camino Real. A wide walkway would be created at the
southwestern corner of the building leading to the interior of the site. This would
provide access to the lobby for the residential portion of the mixed-use building and to
a pedestrian gate leading to the common open space area at the northern end of the
mixed-use building and farther into the site to access the residential townhouses.
Security proposed for the site includes both active and passive measures including the
use of patrols, cameras and security gates. Other measures will be reviewed as part of
a security plans submitted to the City prior to the operation of the site.
Previous Meetings
The project was the subject of one preliminary ARB meeting, one study session ARB
meeting, two formal ARB meetings and one PTC meeting.
December 19 2013 Preliminary ARB
The ARB conducted a preliminary meeting to provide comments on the proposal. At
that time, the project had a similar amount of dwelling units and commercial square
footage, however, it had a a different design and vehicular ingress/egress proposal with
an entry from El Camino Real.
Staff report:
http://www.cityofpaloalto.org/civicax/filebank/blobdload.aspx?BlobID=38231
December 2015 ARB Study Session (no staff report)
The ARB conducted a study session on the project receiving an update on the project.
At that time, the El Camino Real entry was eliminated. The ARB commented that the
retail component would be more successful with the entry along El Camino Real to be
restored.
Video http://midpenmedia.org/architectural-review-board-34/
March 8, 2017 PTC
The PTC conducted a hearing on the application and recommended approval of the
project 3-0-0-2 to the City Council. There was public testimony regarding the historic
resources evaluation completed for the project site. The evaluation concluded that the
existing building was not considered eligible for historic listing.
Staff report:
http://www.cityofpaloalto.org/civicax/filebank/blobdload.aspx?BlobID=56281
Video: http://midpenmedia.org/planning-transportation-commission-44/
City of Palo Alto Page 4
Minutes: http://www.cityofpaloalto.org/civicax/filebank/blobdload.aspx?BlobID=56645
April 6, 2017 Formal ARB
The ARB conducted a formal meeting and provided comments to the applicant to revise
the project including landscaping, colors/materials, security and commemorative plaque
to acknowledge former use of site. The vehicular entry to the basement at El Camino
Real was restored.
Staff report:
http://www.cityofpaloalto.org/civicax/filebank/blobdload.aspx?BlobID=56818
Video: http://midpenmedia.org/architectural-review-board-60/
Minutes: http://www.cityofpaloalto.org/civicax/filebank/blobdload.aspx?BlobID=57470
May 18, 2017 Formal ARB
The applicant returned with a revised project that addressed the Board’s issues from
the previous meeting. The Board recommended approval of the project 3-1 to the City
Council.
Staff report:
http://www.cityofpaloalto.org/civicax/filebank/blobdload.aspx?BlobID=57841
Video: http://midpenmedia.org/architectural-review-board-62/
Minutes: http://www.cityofpaloalto.org/civicax/filebank/blobdload.aspx?BlobID=58269
Discussion & Summary of Key Issues
The City Council is requested to adopt the project’s Mitigated Negative Declaration
(MND) along with its Mitigation and Monitoring Reporting Program (MMRP); approve
the project’s Site and Design application; and approve the project’s Design
Enhancement Exception application.
The following summarizes the key issues that arose during the public meetings this year
leading to the PTC and ARB recommendations including the historic resource evaluation
associated with the existing building, traffic, affordable housing, and neighborhood
compatibility.
Existing Building
The project site currently contains one approximately 5,860 square-foot building, the
vacant former Compadres restaurant. A portion of the building dates to 1938; however,
the building has been substantially modified since that time and retains very little
architectural character of the original building.
Because the project proposes to demolish the structure to make way for the
development and due to its age, a Historic Resources Evaluation was prepared by
Dudek (authors of the CEQA document) on behalf of the City. The methodology
included the review of City Building records, review of any records that the Palo Alto
Historical Association may have had, personal communication with the Silvestre family
(previous owners) and other community members with knowledge of the building and
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site and a field survey evaluating the exterior and interior of the building.
The existing building has not been recognized by City Council resolution, is not listed on
the City’s Historic Inventory, and was not surveyed as part of the City’s Historic Survey
Update completed in 2000. Upon review, the building does not appear eligible for listing
on the City’s inventory, the National Register of Historic Places, or the California
Register of Historical Resources eligible due in large part to its lack of physical integrity
resulting from numerous exterior and interior alterations.
Some of the comments from the public centered on whether the existing building was
eligible for historic listing. The following summary from the Historic Resources
Evaluation describes why the building is not considered eligible.
Significance Criteria
There are strict significance criteria that need to be made for any structure to be
eligible for historic listing under the California Register of Historic Resources and the
National Register of Historic Resources.
Archival research on the subject property failed to indicate associations with
events that have made a significant contribution to the broad patterns of history.
While the subject property is associated with the life of a historic person
(Gonzalo Silvestre, a master blacksmith of ornamental iron), it suffers from a lack
of physical integrity that prevents it from conveying those associations.
The subject property is a vernacular adobe building altered with more recent
building materials. While it may have stood as an intact example of a twentieth
century adobe building at one time in history, it no longer retains requisite
integrity of its original design, setting, materials, workmanship, feeling, or
association to convey its original architectural character.
There is no evidence to indicate that the subject property is likely to yield any
information important in prehistory or history, beyond what has already been
identified as a result of the current study. The subject property is also not
associated with an archaeological site or a known subsurface cultural
component.
More detailed analysis on these findings and the evaluation in its entirety can be found
in Appendix C of the Mitigated Negative Declaration.
Traffic
The project’s transportation was evaluated by Hexagon Transportation Consultants in
2016 (included as Appendix G of the project Mitigated Negative Declaration). The traffic
study evaluated a larger, but similar project (18 dwelling units and 4,024 square feet of
commercial compared to 17 dwelling units and 3,139 square feet). Using industry
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standards, the study indicated that the project would generate 256 daily trips that
would include 14 peak hour morning trips and 23 peak hour afternoon trips. Based on
standard criteria, the traffic study indicates no impacts to signalized intersections within
the study area.
The study also evaluated the parking for the project and determined that since the
project proposes to be consistent with the standards (drive aisle widths) that there
would be adequate back up distance; provided the DEE is ultimately approved. The
study recommends that additional red-curb be added on either side of the ramp along
Curtner Avenue to ensure adequate sight-distance.
The project provides an amount of vehicular and bicycle parking that exceeds the City
requirements and access to and throughout the site is sufficient. Each townhouse
provides bicycle parking near the front entrance in a void caused by the stairwell of
each building. This area would be secured and include bicycle parking apparatus so that
the space can only be used for parking bicycles.
The Curtner Avenue frontage is a suggested walking and bicycle route to Barron
Elementary School. The opposite side of El Camino Real is a suggested walking route to
Barron Elementary School. To alleviate potential conflicts with temporary construction
activities, the conditions of approval require that a “logistics plan” be submitted to the
City for review and approval. This would include information about phasing,
construction staging and construction routes. This would be the opportunity for the City
to ensure that construction, while temporary, does not impact the safety of those within
the vicinity of the project site.
Affordable Housing
Ownership housing projects with three or more units are required to meet the City’s
Below Market Rate (BMR) Housing Program. In accordance with PAMC Section
16.65.030, this project’s total BMR requirement is 2.55 units. When the BMR
requirement results in a fractional unit, an in-lieu payment to the Residential Housing
Fund may be made for the fractional unit.
To satisfy this requirement, the applicant is required to provide two BMR for-sale
housing units affordable to lower income households within the project in accordance
with the requirements set forth in Program H3.1.2 of the City of Palo Alto
Comprehensive Plan, Chapter 16.65 of the Palo Alto Municipal Code, and the BMR
Program rules and regulations. The fractional unit will result in an in-lieu payment to
the housing fund.
By meeting the City’s BMR requirements, the project also qualifies as a state density
bonus housing project pursuant to state law, which is codified in the City’s municipal
code in PAMC Chapter 18.15. This law allows a developer to increase the density of
housing units in a project beyond the standard provided in local regulations; take
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advantage of reduced parking requirements; and, receive concessions, or deviations
from the development standards in order to help off-set the cost of providing the
affordable units. The amount of concessions granted is dependent on the percentage
and restricted income level of the affordable units provided. To help guide developers
toward incentives that do not have a specific adverse impact to the public health, safety
or the physical environment, the city has adopted a list of incentives that the city has
already determined acceptable.
The proposed project is below the maximum allowed density for the site (22 units
allowed 17 units proposed) and the applicant is not seeking a density bonus for
additional units. However, the applicant proposes two deed restricted housing units or
11.7% of the units as affordable to moderate income levels (120% of the median
County income). This qualifies the applicant to receive one development concession. As
authorized in the City’s zoning code (PAMC 18.15.050[d][iv]) the applicant selected an
increase to residential floor area. The code allows an increase in the floor area ratio up
to 25% or up to the square footage of the restricted affordable units, whichever is less.
A 25% increase to the project’s floor area ratio dedicated to housing is 4,924 square
feet of area. The proposed deed restricted housing includes a total of 2,596 square feet
of area. Since the latter floor area is less than the 25% calculation, this is the maximum
floor area that can be added. According to the applicant, the additional floor area
offsets area that would attributed to the lobbies and elevator shafts and offsets the
costs of providing the BMR units.
While eligible for a parking reduction, the applicant is not seeking any modification to
required parking requirements. As designed, the project complies with the requirements
of the City’s BMR program, the state density bonus law, and the City’s implementing
regulations.
Neighborhood Compatibility
Context-Based Findings
According to Section 18.16.090 (CS zoned area) of the PAMC, compatibility is achieved
when apparent scale and mass of new buildings is consistent with the pattern of
achieving a pedestrian oriented design, and when new construction shares general
characteristics and establishes design linkages with the overall pattern of buildings, so
that the visual unity of the street is maintained.
In addition, according to Section 18.13.060 (RM-30 zoned area) of the PAMC,
compatibility is achieved when the apparent scale and mass of new buildings share
general characteristics and establishes design linkages with the overall pattern of
buildings so that the visual unity of the neighborhood or street is maintained.
The project site is mid-block on El Camino Real. A coffee shop (Starbucks) is located
immediately east of the project site and an automobile service use (Nine Minute Oil &
City of Palo Alto Page 8
Lube) is immediately west. A medical office (Agile Physical Therapy) is on the corner of
El Camino Real and Curtner Avenue. A multi-family residential development is located to
the north of the commercial properties that front on El Camino Real. Land uses on the
southern side of El Camino Real are similar, with commercial properties fronting El
Camino Real and multi-family and single-family residential properties to the south.
Within the vicinity of the site, buildings are generally low, one to two-story buildings.
Buildings are located along the sidewalk, however, the sidewalk within the vicinity is not
wide. The project proposes development that is consistent with the zoning code
development standards and the vision of the South El Camino Real Design Guidelines.
This includes providing the wide sidewalk, where none exists now and providing the
build-to setback as encouraged in the guidelines. The buildings within the vicinity are
not mixed-use; only commercial buildings. The proposed mixed-use building is
consistent with the zoning development standards and design guidelines, however,
there is no other comparable development nearby.
Performance Standards
The project is consistent with the City’s performance standards (PAMC Chapter 18.23)
which are applicable because of the project’s adjacency to other land uses. The project
includes adequate screening areas that act as buffers between the project and adjacent
residential uses. It is not expected that the operations of the site will interfere with the
privacy and general welfare of the neighboring properties.
Design Enhancement Exception
The applicant requests a DEE to allow for a reduced setback in the basement. This will
allow for the basement to accommodate all the parking for the project. Alternatively,
surface parking would need to be considered. Having the parking below grade is ideal
from an aesthetic perspective and is consistent with the context-based findings.
Policy Implications
The proposed project has been analyzed for conformance with the City’s zoning
regulations and the South El Camino Real Design Guidelines as described above, and
has also been analyzed for conformance with the City’s Comprehensive Plan. The
project is exempt from the Retail Preservation ordinance because the discretionary
entitlement project was submitted prior to March 2, 2015. Relevant Comprehensive Plan
Policies are identified in the Record of Land Use Action in Attachment B, and while
some may find inconsistencies with individual policies, the project complies with the
applicable Comprhensive Plan land use designations and on balance, the project is
consistent with the Comprehensive Plan as a whole.
Resource Impact
The site was expected to develop with residential and commercial uses so the impact
on resources (fire/police protection) is within expectations. The project is subject to
development impact fees to support various government functions including parks.
City of Palo Alto Page 9
Environmental Review
The subject project has been assessed in accordance with the authority and criteria
contained in the California Environmental Quality Act (CEQA), the State CEQA
Guidelines, and the environmental regulations of the City. Specifically, the project is
subject to a Mitigated Negative Declaration (MND). The document was circulated on
March 6, 2017 for 20 days. A link to the MND is provided in Attachment G. There are
mitigation measures related to biological resources.
Attachments:
Attachment A Location Map
Attachment B RLUA
Attachment C Zoning Comparison RM-30
Attachment D Zoning Comparison CS
Attachment E Performance Criteria
Attachment F Project Narrative
Attachment G CEQA Document
Attachment H MMP 3877 El Camino Real
Attachment I Project Plans
ACTION NO. 2017-____
RECORD OF THE COUNCIL OF THE CITY OF PALO ALTO LAND USE
ACTION FOR 3877 EL CAMINO REAL: SITE AND DESIGN REVIEW,
DESIGN ENHANCEMENT EXCEPTION, MITIGATED NEGATIVE
DECLARATION, AND MITIGATION MONITORING AND REPORTING
PROGRAM (14PLN-00464)
On ____________, 2017, the Council of the City of Palo Alto approved the Site and
Design Review and Design Enhancement Exception applications for the demolition of a 5,860
square foot commercial building and construction of a new mixed-use project. The project includes
a three-story 35-foot tall, 4,027 square foot mixed use building and 17 two-story (29’-8”) dwelling
units (flats and townhouses). Parking for the project is provided in a basement and includes 62
parking spaces on a 32,825 square foot lot having two zoning districts (CS and RM-30). The project
also includes a reduction in a rear setback for the basement from 10 feet to 6’-2”. The City Council
made its determination by making the following findings, determination and declarations:
SECTION 1. Background. The City Council of the City of Palo Alto (“City Council”)
finds, determines, and declares as follows:
A. Stuart Welte of EID Architects on behalf of Zijin, LLC, property owner, has requested
the City’s approval to allow the demolition of the existing building and on-site improvements and
the construction of a three-story mixed-use building including six residential flats along the site’s
frontage on El Camino Real (the CS zoned area), 11 residential two-story townhouses in the rear
portion of the
site, and a below-grade parking garage that would include all of the required parking for the site. A
total of two income deed restricted housings units are being provided on site. (“The Project”).
B. The project site is a single parcel (APN 132-41-091) of 0.75 acres in size in the Palo
Alto Ventura Neighborhood. The site is currently developed with a vacant two-story 5,860 square
foot restaurant building and the site contains and is accessible to existing utilities. The site is
designated on the Comprehensive Plan land use map as Service Commercial and Multiple Family
Residential and is located within the Service Commercial (CS) and Residential Multi-Family (RM-30)
zoning districts.
The project includes the demolition of existing on-site structures and the construction of a new
mixed-use project.
C. The Planning and Transportation Commission (Commission) reviewed and
recommended approval of the Project on March 8, 2017. The Commission’s recommendations are
contained in CMR_______ and the attachments to it.
D. The Architectural Review Board (Board) reviewed and recommended approval
of the Project on May 18, 2017. The Board’s recommendations are contacted in CMR _______ and
the attachments to it.
SECTION 2. Environmental Review and Findings. The City as the lead agency for the
Project has determined that the project is subject to environmental review under provisions of the
California Environmental Quality Act (CEQA) under Guideline section 15070, Decision to Prepare a
Negative or Mitigated Negative Declaration. An Initial Study/Mitigated Negative Declaration was
prepared in March 2017 for the project and identified potential significant impacts with the
implementation of the project. Those impacts can be reduced to a level of less than significant with
the incorporation of mitigation measures. On the basis of the whole record before it, that there is
no substantial evidence that the project will have significant effect on the environment and that
the mitigated negative declaration reflects the lead agency’s independent judgment and analysis.
The City of Palo Alto Planning & Community Environment Department is the custodian of these
documents. The City Council hereby approves the Mitigated Negative Declaration and
incorporates the Mitigation and Monitoring Report attached as Exhibit A into the Record of Land
Use.
SECTION 3. Site and Design Review Findings
1. The use will be constructed and operated in a manner that will be orderly,
harmonious, and compatible with existing or potential uses of adjoining or nearby sites. According
to the project’s Mitigated Negative Declaration (MND), the project’s construction would result in
some temporary impacts; however, they would not result in any incompatible activities. A logistics
plan is required to ensure that construction activities would not be harmful to the neighborhood.
Regarding the operation of the site, the site would comply with regulations regarding late-night
uses, noise ordinance, and solid waste handling. These are in place to ensure compatibility
between different sites and uses. While at this time, there is no specific use proposed, the project
would develop commercial spaces that would include retail and office uses. Those uses are
consistent with other uses along El Camino Real and the surrounding neighborhoods that include
both commercial and multi-family residential. Future specific uses would need to be consistent
with the City’s regulations.
The design of the site includes appropriate separation between the mixed-use building and the
solely residential component and the adjacent multi-family properties. The project is consistent
with the City’s Performance Standards set forth in Palo Alto Municipal Code 18.23, ensuring
compatibility between commercial and residential uses. Proposed lighting is directed downward to
prevent spillover to adjacent properties. Trash enclosures are located in the basement of the
project. The project provides the required setback above ground and includes vegetation and tree
plantings within the setback and open spaces. Mechanical equipment areas are screened
appropriately.
The site circulation facilitates access for all modes of transportation. The project includes short-
term
and long-term bike parking. On-site vehicular traffic will be directed underground, leaving the
above-ground for pedestrians and bicyclist. Wide walkways and plazas surround the commercial
areas and provide connectivity to the residential areas.
In compliance with the City’s affordable housing requirements, the project proposes to include two
below market rate dwelling units. This makes the project eligible for the State’s density bonus
concessions. In which the project proposes to provide additional square footage to the project
(2,596 square feet). Even with the additional square footage, the design of the project blends the
additional square footage into the overall site design.
2. The project is consistent with the goal of ensuring the desirability of investment,
or the conduct of business, research, or educational activities, or other authorized occupations, in
the same or adjacent areas. The project proposes a transformation in the site from a vacant
commercial building with a large surface parking lot into a mixed-use (vertical and horizontal) site
that is consistent with current zoning regulations, with the exception of a setback deviation for the
basement parking, which does not affect the above ground improvements.
The mixed-use building along El Camino Real proposes ground-floor commercial that is consistent
with the City’s requirements and would provide a place for commerce and interactions for
residents and business owners.
The project is located in an area that has numerous older low-intensity commercial buildings. The
proposed project is an example of a project that is consistent with the South El Camino Real Design
Guidelines and the vision for mixed-use development. The project’s mixed-use building along El
Camino Real is larger than the surrounding buildings along El Camino Real as expected because it
includes both commercial on the first and second floor and residential uses on the upper floors,
however, the balance of the site transitions to solely residential and is consistent in massing and
height with the adjacent properties.
3. To ensure that sound principles of environmental design and ecological balance
are observed in the project. The project provides the required setback above ground and includes
vegetation and tree plantings within the setback and open spaces. The site includes plazas and
open areas to promote connectivity spaces for wildlife to flourish. These open spaces include
vegetation and trees along the side and rear setbacks of the property. While the plant palette
demonstrates many non-native species of plants, these trees will provide the potential habitat for
birds and other wildlife.
The parking for the project is located completely underground, which avoids a surface parking lot.
However, at the same time the project will follow the appropriate regulations regarding
dewatering and providing the basement space.
4. The use will be in accord with the Palo Alto Comprehensive Plan. The project
proposal complies with the policies of the Land Use and Community Design element of the
Comprehensive Plan, including: The project is consistent with a number of Comprehensive Plan
goals and policies. These include: Goal L-1, Policy L-4, Policy L-5, Policy L-9, Goal L-4, Policy L-19,
Policy L-20, Policy L-21, Policy L-22, Goal L-9, Policy L-72, Goal T-3, Policy T-23, Goal, N-4, Policy N-
21 and Goal B-5.
The project is a mixed-use development that would include commercial and residential spaces,
with some affordable housing units consistent with the City’s regulations. The project will comply
with the stormwater codes, and include the appropriate amount of vehicular and bicycle parking.
The site includes plazas and open space to encourage connectivity and interaction between the
residents and commercial spaces. The buildings are placed orderly providing a mixed-use building
along El Camino Real, where it is expected to have more intensive commercial development, with
multi-family density located on the balance of the property, which is consistent with the
surrounding development. Parking for the site is located completely below ground, which avoids
many negative aspects of parking lots.
The project provides two below market rate housing units, which promotes the availability of
affordable housing.
SECTION 4. Site and Design Approvals Granted.
Site and Design Approval is granted by the City Council under Palo Alto Municipal Code Section
18.82.070 for application 14PLN-00464, subject to the conditions of approval in Section 7 of the
Record.
SECTION 5. Architectural Review Findings
The design and architecture of the proposed improvements, as conditioned, complies with the
Findings for Architectural Review as required in Chapter 18.76 of the PAMC.
1. Finding #1: The design is consistent with applicable provisions of the Palo Alto
Comprehensive Plan, Zoning Code, coordinated area plans (including compatibility requirements),
and any relevant design guides.
The project is consistent with Finding #1 because:
The El Camino frontage is Service Commercial, while the Curtner Avenue frontage is Multi-Family.
On balance, this project is consistent with the Comprehensive Plan Goals and Policies as further
described in Attachment C. The project is consistent in mass and scale and considers appropriate
transitions between commercial and residential properties. The project has streetscape
consideration along El Camino Real and Curtner Avenue providing context-based treatment.
The project redevelops a site and is considered infill. Along El Camino the project includes a vertical
mixed-use component including a large sidewalk consistent with the South El Camino Real Design
Guidelines. The project also includes an outdoor plaza area for the ground floor retail and on-site
bicycle parking for the commercial and residential uses.
The buildings onsite are placed orderly and provide sufficient open space and connectivity between
the streets, entrances and open spaces. The parking for the site is provided below ground, which
frees up space on the ground level for the buildings and landscaping. The project provides plazas
that are open to the public and include seating areas. The project supports full height tenant
facades to help create a high-quality streetscape. The project will pay the in-lieu fee to support the
public art program and is required to comply with the NPDES Stormwater Permit, which includes
bio-retention areas for stormwater management.
The project is consistent with the City’s Zoning Code with the exception of the request to deviate
from the rear setback requirement for the below-grade garage. This request is supported through
the affirmative findings for the Design Enhancement Exception (DEE) request as further discussed
below.
The project is consistent with the South El Camino Design Guidelines in that it creates a wide
sidewalk along El Camino Real, provides the required build-to setback, and massing for the building
is considered by stepping the upper floors back.
2. Finding #2: The project has a unified and coherent design, that:
a. creates an internal sense of order and desirable environment for occupants, visitors, and
the general community,
b. preserves, respects and integrates existing natural features that contribute positively to the
site and the historic character including historic resources of the area when relevant,
c. is consistent with the context-based design criteria of the applicable zone district,
d. provides harmonious transitions in scale, mass and character to adjacent land uses and land
use designations,
e. enhances living conditions on the site (if it includes residential uses) and in adjacent
residential areas.
The project is consistent with Finding #2 because:
The area is comprised of various commercial buildings of differing heights and size. The commercial
buildings range between one and two stories. Residential buildings range between one and three
stories in height in the area. The project proposes to construct a building that is taller and includes
residential along El Camino as well as removing a surface parking lot and creating townhouses to
the rear with frontage along Curtner Avenue. The proposed mixed-use building is three stories and
is no taller than 35 feet, which is consistent with the zoning development standards. The
commercial component is two-stories, consistent with commercial properties in the vicinity, while
the residential component is on the second and third floors. The proposed townhouse buildings
are two stories and under 30 feet in height, which is lower than the maximum zoning development
standards.
The project’s design includes consistency throughout with similar colors and provides plaza spaces
near commercial spaces and other areas in the residential component of the project site to allow
for connectivity and gathering places.
The mixed-use building along El Camino Real is taller by one story than the commercial buildings
within the vicinity. However, the building provides both commercial and residential, and a taller
building is appropriate to accommodate both uses. The balance of the site with the residential
buildings are consistent in height with other surrounding development.
The project is consistent with the context-based design criteria for the applicable zone district:
(a) Pedestrian and Bicycle Environment. The design of new projects shall promote
pedestrian walkability, a bicycle friendly environment, and connectivity through design elements.
This finding can be made in the affirmative in that the project provides bike racks near the building
entrances for short term use as well bike lockers in the garage to support the bicycle environment.
In addition, the townhouses include bicycle lockers. The project meets the requirements for
vehicular egress along El Camino Real that limits conflicts with pedestrians since it is one-way.
Vehicular access is two-way off Curtner Avenue and provides sufficient sight-distance at the
driveway curb cut. As required, the project creates a 12-foot sidewalk along the frontage of the
building.
(b) Street Building Facades. Street facades shall be designed to provide a strong
relationship with the sidewalk and the street(s), to create an environment that supports and
encourages pedestrian activity through design elements. This finding can be made in the
affirmative in that project’s mixed-use building provides a 12-foot sidewalk and maintains a build-
to line setback (50% of the property frontage). The entry plaza is designed to guide pedestrians to
the building entry. A planter is in the front to provide visual interest. The residential component
provides a larger setback to accommodate a vehicular ramp and elevator access to the basement
garage.
(c) Massing and Setbacks. Buildings shall be designed to minimize massing and conform
to proper setbacks. This finding can be made in the affirmative in that the proposed project
complies with the CS zoning development standards and the design is consistent with the South El
Camino Real Design Guidelines since the project complies with the height and setback
requirements and the performance standards for projects adjacent to different land uses.
Additionally, the use of balconies, light colored materials and appropriate fenestration facilitates
the appearance of reducing the mass of the mixed-use building. The residential components
include angled roofing that reduces the mass of the building and provides visual interest, while
providing a uniform design. As with the mixed-use building, the colors palette is warm with
balconies and fenestration provide adequate relief. Setbacks and open spaces are provided that
include vegetation and trees that help offset perceived massing.
(d) Low-Density Residential Transitions. Where new projects are built abutting existing
lower scale residential development, care shall be taken to respect the scale and privacy of
neighboring properties. This finding is not applicable to the project since there is no low-density
residential development adjacent to the site.
(e) Project Open Space. Private and public open space shall be provided so that it is
usable for residents, visitors, and/or employees of the site. This finding can be made in the
affirmative in that the project provides a plaza near the entry of the mixed-use building and
between the building and the residential component. In addition, the project provides balconies
for the enjoyment of the employees and residents. The residential component includes open
spaces for outdoor gathering.
(f) Parking Design. Parking needs shall be accommodated but shall not be allowed to
overwhelm the character of the project or detract from the pedestrian environment. This finding
can be made in the affirmative in that the project provides all of its parking below grade. The El
Camino Real access to the garages is limited to a one-way ingress into the garage, while access
from Curtner Avenue is two-way. Curtner Avenue at El Camino Real is signal-controlled
intersection. The basement design requires a deviation from the required rear setback through a
Design Enhancement Exception (DEE). However, no changes are required on the surface to
accommodate this request. Providing basement parking for the project allows for the site to be
used efficiently for site planning of buildings and open space with limited amount of space required
for the ramps from the basement to the streets.
(g) Large (Multi-Acre) Sites. Large sites (over one acre) shall be designed so that street,
block, and building patterns are consistent with those of the surrounding neighborhood. This
finding can be made in the affirmative in that the project is consistent with the contemporary
development patterns of the vicinity. The project is adjacent to the newly constructed multi-family
project (six-units) on Curtner Avenue that has similar design themes.
(h) Sustainability and Green Building Design. Project design and materials to achieve
sustainability and green building design should be incorporated into the project. This finding can be
made in the affirmative in that the project is subject to the California Green Building Code
(CalGreen, Tier 2), as further detailed on Finding #6.
3. Finding #3: The design is of high aesthetic quality, using high quality, integrated
materials and appropriate construction techniques, and incorporating textures, colors, and other
details that are compatible with and enhance the surrounding area.
The project proposes a contemporary style that is compatible with recent development along El
Camino Real. Likewise, the residential component is consistently designed and is similar to the
newly constructed multi-family (six-unit) project adjacent to the project along Curtner Avenue. The
project as a whole includes metal, smooth troweled stucco finish, and composite wood paneling.
All of which work cohesively to portray a high-quality mixed-use project. The mixed-use building
along El Camino Real is consistent with the residential townhouses on the balance of the site. In
response to the Board’s direction, the project uses trespa “wood” panels and modified the colors
to be more muted. The use of trespa will aid in the long-term maintenance of the building and
preserving its high-quality look.
4. Finding #4: The design is functional, allowing for ease and safety of pedestrian and
bicycle traffic and providing for elements that support the building’s necessary operations (e.g.
convenient vehicle access to property and utilities, appropriate arrangement and amount of open
space and integrated signage, if applicable, etc.).
The project is consistent with Finding #4 because:
The design of the new building is consistent with contemporary development within the City and
the use of the space as office and retail on the ground floor for the mixed-use building. The site
layout provides common areas for employees, patrons, residents and enlivens El Camino Real with
the outdoor patio space adjacent to the building entry.
For the residential component, the design includes appropriate setbacks and separation between
buildings. The design is consistent in massing and design to the surrounding development.
The project provides all of its parking below grade. The El Camino Real access to the garages is
limited to a one-way ingress into the garage, while access from Curtner Avenue is two-way. Curtner
Avenue at El Camino Real is signal-controlled intersection. The basement design requires a
deviation from the required rear setback through a Design Enhancement Exception (DEE).
However, no changes are required on the surface to accommodate this request. Providing the
basement parking for the project allows for the site to be used efficiently for site planning of
buildings and open space with limited amount of space required for the ramps from the basement
to the streets.
The project will include a security plan that would address concerns regarding the safety of those
using the basement. This security plan would outline the proposed passive and active security
measures that would be implemented. These measures include, but not limited to the physical
design of the basement, cameras, patrols and security gate. With the implementation of these
measures, the parking design is enhanced.
5. Finding #5: The landscape design complements and enhances the building design and its
surroundings, is appropriate to the site’s functions, and utilizes to the extent practical, regional
indigenous drought resistant plant material capable of providing desirable habitat that can be
appropriately maintained.
The project is consistent with Finding #5 because:
The project will protect off-site trees during construction. The project provides a variety of
drought-tolerant species. The site proposes open space areas that are designed to encourage
gathering and connectivity between the mixed-use building and the residential units to the rear.
The trees would provide appropriate habitat for wildlife as a part of a bigger neighborhood and
community wide system. In response to the Board’s direction, the project includes additional trees
along the northern property line adjacent to the multi-family property. These trees add more visual
screening and are consistent with the performance standards for this project that is adjacent to
other residential uses.
6. Finding #6: The project incorporates design principles that achieve sustainability in areas
related to energy efficiency, water conservation, building materials, landscaping, and site planning.
The project is consistent with Finding #6 because:
In accordance with the City’s Green Building Regulations, the building will satisfy the requirements
for CALGreen Mandatory + Tier 2. Many green building elements are included in the design and
construction including a reduction in heat island effect, light pollution reduction, water efficiency
with low-irrigation systems and appliances; and reduction in material and resource waste through
reduction in cement use, pre-cut materials and details, prefinished building materials.
SECTION 6. Design Enhancement Exception Findings
1. There are exceptional or extraordinary circumstances or conditions applicable to the
property or site improvements involved that do not apply generally to property in the same zone
district.
The site is “L”-shaped, has frontage on two streets and includes two separate zoning and
comprehensive plan land use designations. There are no other properties within the vicinity with
similar design and shape characteristics that would support a mixed-use project. While the
adjacent property has a similar “L”-shape with frontage on two streets, there is not sufficient area
in the rear to do anything more than a driveway and parallel parking, unlike the project site where
there is sufficient land area to develop.
The project proposes to transform a vacant restaurant building and adjacent surface parking lot
into a vertical and horizontal mixed-use project that would be compatible with the zoning
development standards and the South El Camino Real Design Guidelines. To do so, the parking for
the site would need to be underground, which is consistent with the South El Camino Real Design
Guidelines and the context-based findings for development. The only vehicular designed area that
would be visible from the streets would be the ramps leading down to the basement. The
exception is to allow a reduction in the required rear setback that applies to the basement from
10-feet to six feet. This would allow for the necessary space to provide drive aisles, appropriate
turning radius and back-up distance and parking spaces to accommodate the project.
2. The granting of the application will enhance the appearance of the site or structure, or
improve the neighborhood character of the project and preserve an existing or proposed
architectural style, in a manner which would not otherwise be accomplished through strict
application of the minimum requirements of this title (Zoning) and the architectural review findings
set forth in Section 18.76.020(d).
Not granting the setback deviation from 10-feet to 6-feet would necessitate surface parking and
would compromise the congruent design of the site introducing negative aspects of vehicular
activity. Having the parking below ground allows for the site above ground to have more flexibility
in site design, which leads to more open space for gathering and wildlife to flourish.
3. The exception is related to a minor architectural feature or site improvement that will
not be detrimental or injurious to property or improvements in the vicinity and will not be
detrimental to the public health, safety, general welfare or convenience.
Allowing the setback deviation of four feet below ground does not affect the surrounding
development above ground. The above ground project provides an additional four feet at the
surface than what is required. The types of tree species chosen and the setback between the
property line and the edge of the basement would allow for the perimeter trees to grow
sufficiently.
Traffic associated with the site would enter either from El Camino Real or Curtner Avenue, while
traffic exiting the site will only exit onto Curtner Avenue and it is expected that traffic would then
use the signalized intersection of Curtner and El Camino Real, rather than traverse through the
residential neighborhood. The design of the frontage and vehicular ramp at Curtner Avenue would
have sufficient sight-distance to ensure that pedestrians would not be at any unduly risk.
SECTION 7. Conditions of Approval.
Planning Division
1. SUBSTANTIAL CONFORMANCE. Construction and development shall conform to the approved
plans entitled “3877 El Camino Real May 4, 207” stamped as received by the City on May 5,
2017 on file with the Planning Department, 250 Hamilton Avenue, Palo Alto, California except
as modified by these conditions of approval.
2. BUILDING PERMIT. Apply for a building permit and meet any and all conditions of the
Planning, Fire, Public Works, and Building Departments.
3. BUILDING PERMIT PLAN SET. The ARB approval letter including all Department conditions of
approval for the project shall be printed on the plans submitted for building permit.
4. PROJECT MODIFICATIONS: All modifications to the approved project shall be submitted for
review and approval prior to construction. If during the Building Permit review and
construction phase, the project is modified by the applicant, it is the responsibility of the
applicant to contact the Planning Division/project planner directly to obtain approval of the
project modification. It is the applicant’s responsibility to highlight any proposed changes to
the project and to bring it to the project planner’s attention.
5. INDEMNITY: To the extent permitted by law, the Applicant shall indemnify and hold harmless
the City, its City Council, its officers, employees and agents (the “indemnified parties”) from
and against any claim, action, or proceeding brought by a third party against the indemnified
parties and the applicant to attack, set aside or void, any permit or approval authorized
hereby for the Project, including (without limitation) reimbursing the City for its actual
attorneys’ fees and costs incurred in defense of the litigation. The City may, in its sole
discretion, elect to defend any such action with attorneys of its own choice.
6. Density Bonus/Below Market Rate (BMR) Housing Requirement: This project’s total BMR
requirement is 2.7 units. When the BMR requirement results in a fractional unit, an in-lieu
payment to the Residential Housing Fund may be made for the fractional unit instead of
providing an actual BMR unit, except that larger projects of 30 or more units must provide a
whole BMR unit for any fractional unit of one-half (0.50) or larger.
To satisfy this requirement, the applicant shall provide 2 BMR for-sale housing units
affordable to lower income households within the project in accordance with the
requirements set forth in Program H3.1.2 of the City of Palo Alto Comprehensive Plan,
Chapters 18.14 and 18.15 of the Palo Alto Municipal Code, and the BMR Program rules and
regulations. The applicant shall also provide in lieu fees equal to 7.5 percent of the greater of
the actual sales price or fair market value of each unit in accordance with the schedule set
forth in H3.1.2 (e) to satisfy the fractional component of the BMR requirement. The fractional
in-lieu fee shall be paid prior to issuance of any building permits for the project; provided,
however, that prior to issuance of the first building permit for the project, the applicant may
elect to provide one additional inclusionary unit instead of paying the fractional in lieu
payment.
All Density Bonus/BMR units constructed under this condition shall be in conformance with
the City’s BMR Program rules and regulations. A BMR Agreement in a form acceptable to the
City Attorney for the 2 BMR units shall be executed and recorded prior to final map approval
or building permit issuance, whichever occurs first. Failure to comply with the timing of this
condition and any adopted BMR Program rules and regulations shall not waive its later
enforcement.
The applicant is hereby notified, as required by Government Code § 66020, that the approved
plans, these conditions of approval, and the adopted City fee schedule set forth in Program
H3.1.2 of the City of Palo Alto Comprehensive Plan constitute written notice of the
description of the dedications, reservations, amount of fees and other exactions related to
the project. As of the date of project approval, the 90-day period has begun in which the
applicant may protest any dedications, reservations, fees or other exactions imposed by the
City. Failure to file a protest in compliance with all of the requirements of Government Code
§ 66020 will result in a legal bar to challenging the dedications, reservations, fees or other
exactions.
7. DEVELOPMENT IMPACT FEES: Estimated Development Impact Fees in the amount of
$311,130.37 plus the applicable public art fee, per PAMC 16.61.040, shall be paid prior to the
issuance of the related building permit.
8. IMPACT FEE 90-DAY PROTEST PERIOD. California Government Code Section 66020 provides
that a project applicant who desires to protest the fees, dedications, reservations, or other
exactions imposed on a development project must initiate the protest at the time the
development project is approved or conditionally approved or within ninety (90) days after
the date that fees, dedications, reservations or exactions are imposed on the Project.
Additionally, procedural requirements for protesting these development fees, dedications,
reservations and exactions are set forth in Government Code Section 66020. IF YOU FAIL TO
INITIATE A PROTEST WITHIN THE 90-DAY PERIOD OR FOLLOW THE PROTEST PROCEDURES
DESCRIBED IN GOVERNMENT CODE SECTION 66020, YOU WILL BE BARRED FROM
CHALLENGING THE VALIDITY OR REASONABLENESS OF THE FEES, DEDICATIONS,
RESERVATIONS, AND EXACTIONS. If these requirements constitute fees, taxes, assessments,
dedications, reservations, or other exactions as specified in Government Code Sections
66020(a) or 66021, this is to provide notification that, as of the date of this notice, the 90-day
period has begun in which you may protest these requirements. This matter is subject to the
California Code of Civil Procedures (CCP) Section 1094.5; the time by which judicial review
must be sought is governed by CCP Section 1094.6.
9. COMMEMORATIVE PLAQUE. The owner or designee shall produce and mount a bronze
plaque in the retail plaza with a description of the work that Gonzalo Silvestre and Carlos
Campos created on the site. The specific verbiage would be developed in consultation with
the heirs of Gonzalo Silvestre to develop the most complete picture of the artist work. The
plaque would be mounted on a built-in bench in the plaza area, facing into the plaza. As
feasible and in conjunction with the Silvestre family any ironworks salvaged should be
integrated into the bench design.
10. SECURITY PLAN. The owner or designee shall prepare, submit and receive approval from the
City for a plan that would include passive and active security measures for the project site
including the basement area. Such measures shall include, but not limited to increased
lighting levels, glass backed stair/elevator towers, access control, monitored cameras,
intercoms and panic buttons, security guard patrols, blue light system, public safety escort
services, security gates and effective signage.
11. NOISE PRODUCING EQUIPMENT: All noise producing equipment shall be located outside of
required setbacks, except they may project 6 feet into the required street side setbacks. In
accordance with Section 9.10.030, No person shall produce, suffer or allow to be produced by
any machine, animal or device, or any combination of same, on residential property, a noise
level more than six dB above the local ambient at any point outside of the property plane.
12. FINAL INSPECTION: A Planning Division Final inspection will be required to determine
substantial compliance with the approved plans prior to the scheduling of a Building Division
final. Any revisions during the building process must be approved by Planning, including but
not limited to; materials, landscaping and hard surface locations. Contact your Project
Planner, Sheldon S. Ah Sing at sahsing@m-group.us to schedule this inspection.
13. ARCHITECTURAL REVIEW BOARD SUBCOMMITTEE: Prior to submittal of a Building Permit for
the project, the owner or designee shall obtain approval from the Architectural Review Board
Subcommittee for the following items:
a. The owner or designee shall provide details on the wall pack lighting used in the
project in particular at the first floor of the mixed-use building along the area with
the building overhang.
b. The owner or designee shall provide updated landscape plans that incorporate
native plantings that would improve the habitat for native birds and animals.
c. The owner or designee shall revise the plans to provide detail on the hardscape
proposed for the project.
d. The owner or designee shall revise the plans to increase the size of the
commemorative plaque to a minimum 16 inches by 24 inches.
14. MITIGATION MEASURE (BIOLOGICAL). BIO-1 If feasible, vegetation on the project site shall be
removed outside of the bird-nesting season. If the start of site clearing, tree removal, or
building demolition occurs between February 1 and August 31, a pre-construction survey for
nesting birds protected under the Migratory Bird Treaty Act shall be conducted by a qualified
biologist to identify the location of nests in active use that were established prior to the start of
project implementation activities. The pre-construction survey shall take place no more than 7
days prior to initiation of construction. All trees and shrubs on the site shall be surveyed, with
particular attention to any trees or shrubs that would be removed or directly disturbed.
Further, the project applicant shall retain a qualified biologist to perform additional nesting bird
surveys at least every 2 weeks during all phases of construction that occur during the nesting
season. If an active nest of a protected bird is found on site at any time, the qualified biologist
shall, in consultation with the California Department of Fish and Wildlife (CDFW), determine
whether construction work would affect the active nest or disrupt reproductive behavior.
Criteria used for this evaluation shall include presence of visual screening between the nest and
construction activities and behavior of adult raptors in response to the surveyors or other
ambient human activity. If construction could affect the nest or disrupt reproductive behavior,
the qualified biologist shall, in consultation with CDFW, determine an appropriate construction-
free buffer zone around the nest to remain in place until the young have fledged or other
appropriate protective measures are taken to ensure no take of protected species occurs.
If it is determined that construction will affect an active raptor nest or disrupt reproductive
behavior, then avoidance is the only mitigation available. Construction shall not be permitted
within 300 feet of such a nest until a qualified biologist determines that the subject nest is no
longer active.
Prior to issuance of a demolition permit, the City shall verify that pre-construction surveys
have been conducted within 7 days of the proposed start of demolition. If active bird nests
are present, the City shall verify that CDFW has been consulted and either determined that
construction will not affect an active bird nest or that appropriate construction-free buffer
zones have been established or other appropriate protective measures have been taken.
15. MITIGATION MEASURE (BIOLOGICAL). BIO-2 A pre-construction survey shall be conducted by
a qualified biologist (i.e., a biologist holding a California Department of Fish and Wildlife
(CDFW) collection permit and a Memorandum of Understanding with CDFW allowing the
biologist to handle bats) no earlier than 30 days prior to initiation of construction and
demolition activities to determine if active bat roosts or maternal colonies are present on or
within 300 feet of the construction demolition area. Surveys shall include the structures
proposed for demolition.
Should an active maternity roost be identified, the roost shall not be disturbed, and
demolition and construction within 300 feet of the maternity roost shall be postponed or
halted until the juveniles have fledged and the roost is vacated, as determined by a qualified
biologist. Consultation with CDFW shall also be initiated. Under no circumstance shall an
active roost be directly disturbed.
If nonbreeding bat hibernacula are found on the project site, the individuals shall be safely
evicted under the direction of a qualified bat biologist and with consultation with CDFW.
These actions shall allow bats to leave during nighttime hours, increasing their chance of
finding new roosts with a minimum of potential predation during daylight.
If it is determined that demolition or construction will not affect roosting behavior or disrupt
a maternal colony, demolition or construction may proceed without any restriction or
mitigation measure.
If it is determined that demolition or construction will affect an active bat roost or
disrupt reproductive behavior, then avoidance is the only mitigation available. Under no
circumstance shall an active roost be directly disturbed. Demolition or construction within
300 feet shall be postponed or halted until the roost is naturally vacated as determined by a
qualified biologist.
Prior to issuance of a demolition permit, the City of Palo Alto (City) shall verify that pre-
construction surveys have been conducted within 30 days of the proposed start of
demolition. If bats are present, the City shall verify that CDFW has been consulted and either
determined that construction will not affect an active bat roost or disrupt a maternal colony
or that individuals in a nonbreeding bat hibernacula have been safely evicted.
Due to regulations from the California Department of Public Health, direct contact by
construction workers with any bat is not allowed.
Public Works Engineering
PRIOR TO BUILDING PERMIT AND GRADING AND EXCAVATION PERMIT SUBMITTAL
15. MAPPING: Applicant shall file for a Minor or Major Subdivision Application. Five parcels would
trigger a major subdivision. Public Works’ Tentative Maps and Preliminary Parcel Maps
checklist must accompany the completed application. All existing and proposed dedications
and easements must be shown on the submitted map. The map would trigger further
requirements from Public Works, see Palo Alto Municipal Code section 21.12 for Preliminary
Parcel Map or Tentative Map requirements and section 21.16 for Parcel Map or Final Map
requirements. If a Map is required, it shall be recorded prior to issuance of a building permit
or excavation and grading permit.
16. PUBLIC ACCESS EASEMENT: Owner shall create a public access easement for the additional area
behind the property line needed to create a 12-foot wide sidewalk along El Camino Real. Plot
and label the Public Access Easement along El Camino Real that provides the 12-foot wide
sidewalk.
17. Subdivision Improvement Agreement is required to secure compliance with condition of
approval and security of improvements onsite and offsite per PAMC Section 21.16.220.
18. Please verify if the existing sub-surface transformer within the sidewalk will continue to serve
the development. If the existing transformer cannot serve the project then a new transformer
upgrade may be required. The new transformer shall be located completely within private
property. Plot and label the location of the new transformer, if needed. Or provide a note on the
plans that indicate existing transformer to be used and if a new one is needed it will be located
within private property.
19. OFF-SITE IMPROVEMENTS: Submit a copy of the off-site improvement plans that includes the
replacement of curb, gutter, sidewalk, utilities, landscape, etc. Provide Caltrans standard details
along the project frontage. Plans shall include the proposed public access easement, grades
along the conforms.
20. Submit a construction cost estimate associated with the off-site improvements.
PRIOR TO DEMOLITION BUILDING PERMIT ISSUANCE
21. Map shall be recorded prior to issuance of a Building Permit or Grading and Excavation Permit.
22. LOGISTICS PLAN: The contractor must submit a logistics plan to the Public Works Department
prior to building permit demolition that addresses all impacts to the City’s right-of-way,
including, but not limited to: pedestrian control, traffic control, truck routes, material deliveries,
contractor’s parking, concrete pours, crane lifts, work hours, noise control, dust control, storm
water pollution prevention, contractor’s contact, noticing of affected businesses, and schedule
of work. Plan shall include the following, but not limited to, construction fence, construction
entrance and exit, stockpile areas, equipment and material storage area, workers parking area,
construction office trailer, temporary bathroom, measures for dewatering if needed, crane
location, working hours, contractor’s contact information, truck traffic route, setbacks from
environmentally sensitive areas, erosion and sediment control measures to be implemented
during construction.
23. DEMOLITION PLAN: Place the following note adjacent to an affected tree on the Site Plan and
Demolition Plan: “Excavation activities associated with the proposed scope of work shall occur
no closer than 10-feet from the existing street tree, or as approved by the Urban Forestry
Division contact 650- 496-5953. Any changes shall be approved by the same”. Also plot and label
the tree protection zone.
24. GRADING PERMIT: The grading and drainage plan must include an earthworks table with the
estimated cut and fill volumes. If the total is more than 100 cubic yards, a grading permit will be
required. An application and plans for a grading permit are submitted to Public Works
separately from the building permit plan set. The application and guidelines are available at the
Development Center and on our website.
Provide a Rough Grading Plan for the work proposed as part of the Grading and Excavation
Permit application. The Rough Grading Plans shall include the following: pad elevation,
basement elevation, elevator pit elevation, ground monitoring wells, shoring for the proposed
basement, limits of over excavation, stockpile area of material, overall earthwork volumes (cut
and fill), temporary shoring for any existing facilities, ramps for the basement access, crane
locations (if any), etc. Plans submitted for the Grading and Excavation Permit, shall be stand-
alone, and therefore the plans shall include any conditions from other divisions that pertain to
items encountered during rough grading for example if contaminated groundwater is
encountered and dewatering is expected, provide notes on the plans based Water Quality’s
conditions of approval. Provide a note on the plans to direct the contractor to the approve City
of Palo Alto Truck Route Map, which is available on the City’s website.
Provide the following note on the Rough Grading Plan and the Final Grading Plan. “In my
professional judgement, the highest projected groundwater level to be encountered in the area
of the proposed basement in the future will be feet below existing grade.”
25. LOGISTICS PLAN: The applicant and contractor shall submit a construction logistics plan to
the Public Works Department that addresses all impacts to the City’s right-of-way,
including, but not limited to: pedestrian control, traffic control, truck routes, material
deliveries, contractor’s parking, on-site staging and storage areas, concrete pours, crane
lifts, work hours, noise control, dust control, storm water pollution prevention, contractor’s
contact. The plan shall be prepared and submitted along the Rough Grading and Excavation
Permit. Plot the construction fence, entrances, shoring, limits of over excavation, tree
protection zone, construction workers parking area, staging and storage areas within the
private site for equipment and material. The plans shall include notes as indicated on the
approved Truck Route Map for construction traffic to and from the site. Note that there is a
project immediately adjacent to another active construction site located at 405 Curtner
Avenue. On the Logistics Plan provide a note for the project contractor to coordinate
directly with the general contractor of 405 Curtner Avenue, to avoid conflicts in right-of-
way. At no point, will both projects be permitted to close off Curtner Avenue.
26. BASEMENT SHORING: Shoring for the basement excavation, including tiebacks, must not extend
onto adjacent private property or into the City right-of-way without having first obtained
written permission from the private property owners and/or an encroachment permit from
Public Works or Caltrans. On the Basement Plan, provide a dimension between the property
lines and the basement walls, to verify that the shoring will be located completely within the
subject property. In particular, near the proposed driveway ramps.
27. BASEMENT DRAINAGE: Due to high groundwater throughout much of the City and Public Works
prohibiting the pumping and discharging of groundwater, perforated pipe drainage systems at
the exterior of the basement walls or under the slab are not allowed for this site. A drainage
system is, however, required for all exterior basement-level spaces, such as lightwells, patios or
stairwells. This system consists of a sump, a sump pump, a backflow preventer, and a closed
pipe from the pump to a dissipation device onsite at least 10 feet from the property line, such as
a bubbler box in a landscaped area, so that water can percolate into the soil and/or sheet flow
across the site. The device must not allow stagnant water that could become mosquito habitat.
Additionally, the plans must show that exterior basement-level spaces are at least 7-3/4” below
any adjacent windowsills or doorsills to minimize the potential for flooding the basement. Public
Works recommends a waterproofing consultant be retained to design and inspect the vapor
barrier and waterproofing systems for the basement.
28. DEWATERING: Basement excavations may require dewatering during construction. Public Works
only allows groundwater drawdown well dewatering. Open pit groundwater dewatering is
disallowed. Dewatering is only allowed from April through October due to inadequate capacity
in our storm drain system. The geotechnical report for this site must list the highest anticipated
groundwater level. We recommend a piezometer to be installed in the soil boring. The
contractor must determine the depth to groundwater immediately prior to excavation by using
the piezometer or by drilling an exploratory hole if the deepest excavation will be within three
(3) feet of the highest anticipated groundwater level. If groundwater is found within two (2) feet
of the deepest excavation, a drawdown well dewatering system must be used, or alternatively,
the contractor can excavate for the basement and hope not to hit groundwater, but if he does,
he must immediately stop all work and install a drawdown well system before he continues to
excavate. Public Works may require the water to be tested for contaminants prior to initial
discharge and at intervals during dewatering. If testing is required, the contractor must retain
an independent testing firm to test the discharge water for the contaminants Public Works
specifies and submit the results to Public Works. Applicant shall install a water station for the
reuse of dewatering water. This water station shall be constructed next to the right-of-way and
shall be accessible 24 hours a day for the filling of water carrying vehicles (i.e. street sweepers,
etc.). The water station shall also be sued for onsite dust control. Applicant shall meet with
Public Works to coordinate the design details.
Public Works reviews and approves dewatering plans as part of a Street Work Permit. The
applicant can include a dewatering plan in the building permit plan set in order to obtain
approval of the plan during the building permit review, but the contractor will still be required to
obtain a street work permit prior to dewatering. The street work permit to dewater must be
obtained in August to allow ample to time to dewater and complete the dewatering by October
31st. Alternatively, the applicant must include the above dewatering requirements in a note on
the site plan. Public Works has a sample dewatering plan sheet and dewatering guidelines
available at the Development Center and on our website
http://www.cityofpaloalto.org/gov/depts/pwd/forms_and_permits.asp
The following links are included to assist the applicant with dewatering requirements.
http://www.cityofpaloalto.org/civicax/filebank/documents/30978
http://www.cityofpaloalto.org/civicax/filebank/documents/51366
http://www.cityofpaloalto.org/civicax/filebank/documents/47388 .
Green Building
Green Building Requirement for Mixed-Use Projects
29. The project shall meet both the residential and non-residential requirements for the
corresponding areas. Green building requirements are subject to field inspection.
Residential Area
30. For design and construction of residential projects, the City requires use of the Build It Green
(BIG), Green Point Rated (GPR) program to comply with the mandatory measures of Chapter
4.(Ord. 5220 § 1 (part), 2013)
The project is a new construction residential building and therefore must achieve BIG GPR
minimum requirements and achieve 70 points + 1 point per additional 70 square feet over 2500
square feet. The applicant must hire a Green Point Rater and should use Green Point Rated
Multi-family Checklist.
The project must meet the enhanced construction waste reduction at tier 2 (75% construction
waste reduction). PAMC 16.14.160 (Ord. 5220 § 1 (part), 2013)
The project is a new multifamily residential project and therefore must comply with the City of
Palo Alto Electric Vehicle Charging Ordinance 5263. For resident parking, the project must supply
one EVSE-Ready Outlet or EVSE Installed for each residential unit in the structure. For guest
parking, the project shall provide Conduit Only, EVSE Ready Outlet, or EVSE Installed for at least
25% of the guest parking, among which at least 5% (and no fewer than one) shall be EVSE
installed. See PAMC 16.14.370 for definitions on the types of EVSE parking. (Ord. 5263§ 1 (part),
2013).
Non-Residential Area
31. For design and construction of non-residential projects, the City requires compliance with the
mandatory measures of Chapter 5, in addition to use of the Voluntary Tiers. (Ord. 5220 § 1
(part), 2013)
32. The project is a new nonresidential construction project greater than 1,000 square feet and
therefore must comply with California Green Building Standards Code Mandatory plus Tier 2
requirements, as applicable to the scope of work. PAMC 6.14.180 (Ord. 5220 § 1 (part),
2013). The project has indicated sustainable design objectives. The project applicant shall
indicate the requirements on the Permit Plans. Green building requirements are subject to
field inspection. The submittal requirements are outlined here:
www.cityofpaloalto.org/gov/depts/ds/green_building/default.asp.
33. The project is a nonresidential new construction projects with a landscape of any size included
in the project scope and therefore must comply with Potable water reduction Tier 2.
Documentation is required to demonstrate that the Estimated Total Water Use (ETWU) falls
within a Maximum Applied Water Allowance (MAWA) using the appropriate
evapotranspiration adjustment factor (ETAF) designated by the prescribed potable water
reduction tier. PAMC 16.14.220 (Ord. 5220 § 1 (part), 2013). The project applicant shall indicate
the requirements on the Permit Plans. The submittal requirements are outlined on the
following site:
http://www.cityofpaloalto.org/gov/depts/utl/residents/resrebate/landscape.asp.
34. The project is outside the boundaries of the recycled water project area and is greater than
1,000 square feet and therefore must install recycled water infrastructure for irrigation systems.
PAMC 16.14.230 (Ord. 5220 § 1 (part), 2013). The project applicant shall indicate the
requirements on the Permit Plans.
35. The project is either new construction or a rehabilitated landscape and is greater than 1,000
square feet and therefore must install a dedicated irrigation meter related to the recycled water
infrastructure. PAMC 16.14.230 (Ord. 5220 § 1 (part), 2013). The project applicant shall indicate
the requirements on the Permit Plans.
36. The project includes a new or altered irrigation system and therefore must be designed and
installed to prevent water waste due to overspray, low head drainage, or other conditions
where water flows onto adjacent property, non-irrigated areas, walks, roadways, parking lots,
or structures. PA 16.14.300 (Ord. 5220 § 1 (part), 2013).
37. The project includes a new or altered irrigation system and therefore the irrigation must be
scheduled between 8:00 p.m. and 10:00 a.m. unless weather conditions prevent it. Operation of
the irrigation system outside the normal watering window is allowed for auditing and system
maintenance. Total annual applied water shall be less than or equal to maximum applied water
allowance (MAWA) as calculated per the potable water use reduction tier. PAMC 16.14.310
(Ord. 5220 § 1 (part), 2013)).
The project applicant shall indicate the requirements on the Permit Plans.
38. C&D: The project is a nonresidential new construction project and has a value exceeding
$25,000 and therefore must meet Enhanced Construction Waste Reduction Tier 2. PAMC
16.14.240 (Ord. 5220 § 1 (part), 2013). The project shall use the Green Halo System to
document the requirements.
39. The project includes non-residential demolition and therefore must meet the Enhanced
Construction Waste Reduction - Tier 2. PAMC 16.14.270 (Ord. 5220 § 1 (part), 2013). The project
shall use the Green Halo System to document the requirements.
40. Energy Star: The project is a nonresidential projects exceeding $100,000 valuation and therefore
must acquire an Energy STAR Portfolio Manager Rating and submit the rating to the City of Palo
Alto once the project has been occupied after 12 months. PAMC 16.14.250 (Ord. 5220 § 1 (part),
2013). Submittal info can be found at:
https://www.cityofpaloalto.org/gov/depts/utl/business/benchmarking_your_building.asp.
41. EVSE: The project is a new non-residential structure and therefore must comply with the City of
Palo Alto Electric Vehicle Charging Ordinance 5263. The project shall provide Conduit Only,
EVSE-Ready Outlet, or EVSE Installed for at least 25% of parking spaces, among which at least 5%
(and no fewer than one) shall be EVSE Installed. The requirements shall be applied separately to
accessible parking spaces. See Ordinance 5263 for EVSE definitions, minimum circuit capacity,
and design detail requirements. PAMC 16.14.380 (Ord. 5263 § 1 (part), 2013) See
https://www.cityofpaloalto.org/civicax/filebank/documents/43818 for additional details.
42. Zero Net Energy Design Review: The project is a new construction commercial project and
therefore may elect to engage the City of Palo Alto consultant, BASE Energy Inc, free of charge.
BASE will assist the project in targeting Zero Net Energy and exceeding the Title 24 Energy
Code. Rebates may be available via working with Base. For more information, visit
www.cityofpaloalto.org/commercial program or call 650.329.2241. The applicant may also
contact Ricardo Sfeir at BASE Energy at rsfeir@baseco.com to schedule a project kick-off.
43. Utilities Incentives & Rebates: The project may be eligible for several rebates offered through
the City of Palo Alto Utilities Department. These rebates are most successfully obtained when
planned into the project early in design. For the incentives available for the project, please see
the information provided on the Utilities website:
http://www.cityofpaloalto.org/gov/depts/utl/business/rebates/default.asp
44. Bird-Friendly Building Design: The west elevation on sheet A4.2 contains a glazed façade that
covers a large area. Glazing shown on A4.1 does not indicate finish and appears to be clear. The
project should consider bird-safe glazing treatment that typically includes fritting, netting,
permanent stencils, frosted glass, exterior screens, physical grids placed on the exterior of
glazing or UV patterns visible to birds. Vertical elements of the window patterns should be at
least 1/4 inch wide at a minimum spacing of 4 inches, or have horizontal elements at least 1/8
inch wide at a maximum spacing of 2 inches. The applicant should consider consulting the San
Francisco Standards for Bird Safe Buildings.
Transportation
45. The turn-around area in the parking garage adjacent to parking stall #1 as shown on sheet A1.1
may be mistaken as a common parking space. The area shall be filled with crosshatching and
potentially additional pavement markings and/or signage to prohibit parking or stopping within
the turn-around area.
Utilities-Water, Gas & Wastewater
PRIOR TO ISSUANCE OF A DEMOLITION PERMIT
46. Prior to demolition, the applicant shall submit the existing water/wastewater fixture unit loads
(and
building as-built plans to verify the existing loads) to determine the capacity fee credit for the
existing load. If the applicant does not submit loads and plans they may not receive credit for
the existing water/wastewater fixtures.
47. The applicant shall submit a request to disconnect all utility services and/or meters including a
signed affidavit of vacancy. Utilities will be disconnected or removed within 10 working days after
receipt of request. The demolition permit will be issued by the building inspection division after
all utility services and/or meters have been disconnected and removed.
FOR BUILDING PERMIT
48. The applicant shall submit completed water-gas-wastewater service connection applications –
load sheets for City of Palo Alto Utilities for each unit or place of business. The applicant must
provide all the information requested for utility service demands (water in fixture units/g.p.m.,
gas in b.t.u.p.h, and sewer in fixture units/g.p.d.). The applicant shall provide the existing (prior)
loads, the new loads, and the combined/total loads (the new loads plus any existing loads to
remain).
49. City prefers to have the utilities installed on Curtner Ave instead of El Camino Real.
50. Water meter(s) up to 2” to be located in the public right of way.
51. Due to limited space for individual meters, applicant can consider possibility for master metering.
The buildings can only be master metered for gas if: The building will contain central heating, air
conditioning, or central domestic hot Water and can be shown (using methods of calculation
acceptable to CPAU) to be more energy efficient and at a more favorable cost-benefit ratio than
would be the case if individual Metering were installed.
52. The applicant shall submit improvement plans for utility construction. The plans must show the
size and location of all underground utilities within the development and the public right of way
including meters, backflow preventers, fire service requirements, sewer mains, sewer cleanouts,
sewer lift stations and any other required utilities. Plans for new wastewater laterals and mains
need to include new wastewater pipe profiles showing existing potentially conflicting utilities
especially storm drain pipes, electric and communication duct banks. Existing duct banks need to
be daylighted by potholing to the bottom of the ductbank to verify cross section prior to plan
approval and starting lateral installation. Plans for new storm drain mains and laterals need to
include profiles showing existing potential conflicts with sewer, water and gas.
53. The applicant must show on the site plan the existence of any auxiliary water supply, (i.e.
water well, gray water, recycled water, rain catchment, water storage tank, etc).
54. The applicant may be responsible for installing and upgrading the existing utility mains and/or
services as necessary to handle anticipated peak loads. This responsibility includes all costs
associated with the design and construction for the installation/upgrade of the utility mains
and/or services.
55. The applicant's engineer shall submit flow calculations and system capacity study showing that
the on- site and off-site water and sanitary sewer mains and services will provide the domestic,
irrigation, fire flows, and wastewater capacity needed to service the development and adjacent
properties during anticipated peak flow demands. Field testing may be required to determined
current flows and water pressures on existing water main. Calculations must be signed and
stamped by a registered civil engineer. The applicant is required to perform, at his/her expense, a
flow monitoring study of the existing sewer main to determine the remaining capacity. The report
must include existing peak flows or depth of flow based on a minimum monitoring period of
seven continuous days or as determined by the senior wastewater engineer. The study shall meet
the requirements and the approval of the WGW engineering section. No downstream overloading
of existing sewer main will be permitted.
56. For contractor installed water and wastewater mains or services, the applicant shall submit to
the WGW engineering section of the Utilities Department four copies of the installation of
public water, gas and wastewater utilities improvement plans (the portion to be owned and
maintained by the City) in accordance with the utilities department design criteria. All utility
work within the public right-of-way shall be clearly shown on the plans that are prepared,
signed and stamped by a registered civil engineer. The contractor shall also submit a complete
schedule of work, method of construction and the manufacture's literature on the materials to
be used for approval by the utilities engineering section. The applicant's contractor will not be
allowed to begin work until the improvement plan and other submittals have been approved
by the water, gas and wastewater engineering section. After the work is complete but prior to
sign off, the applicant shall provide record drawings (as-builts) of the contractor installed water
and wastewater mains and services per City of Palo Alto Utilities record drawing procedures
(see last condition). For projects that take more than one month to complete, the applicant
shall provide progress record drawings of work completed on a monthly basis.
57. An approved reduced pressure principle assembly (RPPA backflow preventer device) is required
for all existing and new water connections from Palo Alto Utilities to comply with requirements
of California administrative code, title 17, sections 7583 through 7605 inclusive. The RPPA shall
be installed on the owner's property and directly behind the water meter within 5 feet of the
property line. RPPA’s for domestic service shall be lead free. Show the location of the RPPA on
the plans.
58. An approved reduced pressure detector assembly is required for the existing or new water
connection for the fire system to comply with requirements of California administrative code,
title 17, sections 7583 through 7605 inclusive (a double detector assembly may be allowed for
existing fire sprinkler systems upon the CPAU’s approval). reduced pressure detector assemblies
shall be installed on the owner's property adjacent to the property line, within 5’ of the property
line. Show the location of the reduced pressure detector assembly on the plans.
59. All backflow preventer devices shall be approved by the WGW engineering division. Inspection
by the utilities cross connection inspector is required for the supply pipe between the meter and
the assembly.
60. Existing wastewater laterals that are not plastic (ABS, PVC, or PE) shall be replaced at the
applicant’s expense.
61. Existing water services (including fire services) that are not a currently standard material
shall be replaced at the applicant’s expense.
62. The applicant shall pay the capacity fees and connection fees associated with new utility
service/s or added demand on existing services. The approved relocation of services, meters,
hydrants, or other facilities will be performed at the cost of the person/entity requesting the
relocation.
63. Each unit or place of business shall have its own water and gas meter shown on the plans. Each
parcel shall have its own water service, gas service and sewer lateral connection shown on the
plans.
64. All WGW utility installations shall be from Curtner Street instead of El Camino Real (see note #31).
65. A separate water meter and backflow preventer is required to irrigate the approved landscape
for landscaping areas in excess of 1,500 SF (including tree canopies). Show the location of the
irrigation meter on the plans. This meter shall be designated as an irrigation account an no
other water service will be billed on the account. The irrigation and landscape plans submitted
with the application for a grading or building permit shall conform to the City of Palo Alto
water efficiency standards.
66. A new water service line installation for domestic usage is required. For water meters 4” and
larger the applicant's contractor must provide and install an 4’ by 8’ meter vault with meter
reading lid covers and other required control equipment in accordance with the utilities
standard detail WD-05. Water meters 4” and larger shall be in a PUE on private property, water
meters 2” and smaller shall be located in the public right of way per the CPA WGW Utilities
Standards. Show the location of the new water service and meter on the plans.
67. If a new water service line installation for irrigation usage is required. Show the location of the
new water service and meter on the plans.
68. A new water service line installation for fire system usage is required. Show the location of the
new water service on the plans. The applicant shall provide to the engineering department a
copy of the plans for fire system including all fire department's requirements.
69. A new gas service line installation is required. Show the new gas meter location on the plans.
The gas meter location must meet the WGW Utility Standards. The City of Palo Alto normal
service pressure is 7” WC (.25 PSI). Increased pressure must be requested in writing and is only
provided if the houseline size calculates out at greater than 2” diameter for domestic (note:
domestic can only be increased to 14” WC max.) and greater than 4” diameter for commercial
at standard houseline pressure (7” WC) or the appliance requires increased pressure at the
inlet. Further, due to meter limitations there must a minimum of 800 CFH demand for
pressures greater than 14” WC. The only available pressure increments above 7” WC are 14”
WC (1/2 psi), 1#, 2# and 5# after approval. Pressures in excess of 14” WC, will require testing
the house piping at not less than 60 psig for not less than 30 minutes per the California
Plumbing Code section 1204.3.2, witnessed by Palo Alto Building Inspection. The City of Palo
Alto will not provide increased pressure just to save contractor money on the houseline
construction. Requests to increase the pressure will be evaluated with the following
submittals: The manufacturer’s literature for the equipment requiring increased pressure; the
specific pressure you are requesting; the gas load; and the length of house gas piping from the
gas meter to where the gas houseline starts branching off.
70. A new sewer lateral installation per lot is required. Show the location of the new sewer lateral
on the plans.
71. The applicant shall secure a public utilities easement for facilities installed in private property.
The applicant's engineer shall obtain, prepare, record with the county of Santa Clara, and
provide the utilities engineering section with copies of the public utilities easement across the
adjacent parcels as is necessary to serve the development.
72. Where public mains are installed in private streets/PUEs for condominium and town home
projects the CC&Rs and final map shall include the statement: “Public Utility Easements: If the
City’s reasonable use of the Public Utility Easements, which are shown as P.U.E on the Map,
results in any damage to the Common Area, then it shall be the responsibility of the
Association, and not of the City, to Restore the affected portion(s) of the Common Area. This
Section may not be amended without the prior written consent of the City”.
73. All existing water and wastewater services that will not be reused shall be abandoned at the
main per WGW utilties procedures.
74. Flushing of the fire system to sanitary sewer shall not exceed 30 GPM. Higher flushing rates
shall be diverted to a detention tank to achieve the 30 GPM flow to sewer.
75. Sewage ejector pumps shall meet the following conditions:
The pump(s) shall be limited to a total 100 GPM capacity and
The sewage line changes to a 4” gravity flow line at least 20’ from the City clean out.
The tank and float is set up such that the pump run time not exceed 20 seconds each cycle.
76. Utility vaults, transformers, utility cabinets, concrete bases, or other structures cannot be placed
over existing water, gas or wastewater mains/services. Maintain 1’ horizontal clear separation
from the vault/cabinet/concrete base to existing utilities as found in the field. If there is a
conflict with existing utilities, Cabinets/vaults/bases shall be relocated from the plan location as
needed to meet field conditions. Trees may not be planted within 10 feet of existing water, gas
or wastewater mains/services or meters. New water, gas or wastewater services/meters may
not be installed within 10’ or existing trees. Maintain 10’ between new trees and new water, gas
and wastewater services/mains/meters.
77. To install new gas service by directional boring, the applicant is required to have a sewer
cleanout at the front of the building. This cleanout is required so the sewer lateral can be
videoed for verification of no damage after the gas service is installed by directional boring.
78. All utility installations shall be in accordance with the City of Palo Alto utility standards for
water, gas & wastewater.
79. The applicant shall obtain an encroachment permit from Caltrans for all WGW utility work in the
El Camino Real right-of-way. The applicant must provide a copy of the permit to the WGW
engineering section.
80. The applicant shall obtain an encroachment permit from Santa Clara county department of
transportation for all utility work in the county road right-of-way. The applicant must provide
a copy of the permit to the WGW engineering section.
81. The applicant shall obtain a construction permit from Santa Clara county valley water district
for the utility service line to be installed by the City of Palo Alto Utilities.
Public Works-Urban Forestry
PRIOR TO DEMOLITION, BUILDING OR GRADING PERMIT ISSUANCE
82. BUILDING PERMIT SUBMITTAL‐ PROJECT ARBORIST CERTIFICATION LETTER. Prior to submittal for
staff review, attach a Project Arborist Certification Letter that he/she has; (a) reviewed the entire
building permit plan set submittal and, (b)* verified all his/her updated TPR mitigation measures
and changes are incorporated in the plan set, (c) affirm that ongoing Contractor/Project Arborist
site monitoring inspections and reporting have been arranged with the contractor or owner (see
Sheet T‐1) and, (d) understands that design revisions (site or plan changes) within a TPZ will be
routed to Project Arborist/Contractor for review prior to approval from City.
i. (b above) Other information. The Building Permit submittal set shall be accompanied by the
project site arborist’s typed certification letter shall state that the plans have incorporated
design changes and are consistent with City Standards, Regulations and following
information:
ii. Applicant/project arborist’s final revised Tree Protection Report (TPR) with said design
changes and corresponding mitigation measures. (e.g.: if Pier/grade beam=soils report
w/ specs required by Bldg. Div.; if Standard foundation= mitigation for linear 24” cut to
all roots in proximity)
a. Palo Alto Tree Technical Manual Construction Standards, Section 2.00 and
PAMC 8.10.080.
b. Specialty items. Itemized list of any activity impact--quantified and mitigated, in
the Tree Protection
iii. Zone (TPZ) for each tree.
i.Oaks, if present. That landscape and irrigation plans are consistent with CPA Tree
Technical
iv. Manual, Section 5.45 and Appendix L, Landscaping under Native Oaks and PAMC 18.40.130.
83. BUILDING PERMIT CORRECTIONS/REVISIONS‐‐COVER LETTER. During plan check review,
provide a separate cover letter with Correction List along with the revised drawings when
resubmitting. State where the significant tree impacts notes occur (bubble) and indicate
the sheet number and/or detail where the correction has been made. Provide: 1)
corresponding revision number and 2) bubble or highlights for easy reference. Responses
such as “see plans or report” or “plans comply” are not acceptable. Your response should
be clear and complete to assist the recheck and approval process for your project.
84. PLAN SET REQUIREMENTS. The final Plans submitted for building permit shall include the
following information and notes on relevant plan sheets:
d. SHEET T‐1, BUILDING PERMIT. The building permit plan set will include the City’s full‐ sized,
Sheet T‐1 (Tree Protection‐it's Part of the Plan!), available on the Development Center website
at http://www.cityofpaloalto.org/civicax/filebank/documents/31783. The Applicant shall
complete and sign the Tree Disclosure Statement and recognize the Project Arborist Tree
Activity Inspection Schedule. Monthly reporting to Urban Forestry/Contractor is mandatory.
(Insp. #1: applies to all projects; with tree preservation report: Insp. #2‐6 applies; with
landscape plan: Insp. #7 applies.)
e. The Tree Preservation Report (TPR). All sheets of the Applicant’s TPR approved by the City
for full implementation by Contractor, Monarch Consulting Arborists, Tree Inventory and
Assessment Plan, dated September 18, 2014, shall be printed on numbered Sheet T‐1 (T‐
2, T‐3, etc.) and added to the sheet index.
85. PLANS‐‐SHOW PROTECTIVE TREE FENCING. The Plan Set (esp. site, demolition, grading &
drainage, foundation, irrigation, tree disposition, utility sheets, etc.) must delineate/show Type I
or Type II fencing around each Regulated Trees, using a bold dashed line enclosing the Tree
Protection Zone as shown on Standard Dwg. #605, Sheet T‐1, and the City Tree Technical
Manual, Section 6.35‐Site Plans; or using the Project Arborist’s unique diagram for each Tree
Protection Zone enclosure.
86. SITE PLAN REQUIREMENTS: Plans with Public Trees shall show (a) Type II street tree fencing
enclosing the entire parkway strip or, (b) Type I protection to the outer branch dripline (for rolled
curb & sidewalk or no‐sidewalk situations.)
f. Add Site Plan Notes.
i. Note #1. Apply to the site plan stating, "All tree protection and inspection schedule
measures, design recommendations, watering and construction scheduling shall be
implemented in full by owner and contractor, as stated on Sheet T‐1, in the Tree Protection
Report and the approved plans”.
ii. Note #2. All civil plans, grading plans, irrigation plans, site plans and utility plans and
relevant sheets shall add a note applying to the trees to be protected, including neighboring
trees stating: "Regulated Tree‐‐before working in this area contact the Monarch Project Site
Arborist at 818.331.8982";
iii. Note #3. Utility (sanitary sewer/gas/water/backflow/electric/storm drain) plan sheets shall
include the following note: “Utility trenching shall not occur within the TPZ of the protected
tree. Contractor shall be responsible for ensuring that no trenching occurs within the TPZ of
the protected tree by contractors, City crews or final landscape workers. See sheet T‐1 for
instructions.”
iv. Note #4. “Basement or foundation plan. Soils Report and Excavation for basement
construction within the TPZ of a protected tree shall specify a vertical cut (stitch piers may be
necessary) in order to avoid over‐excavating into the tree root zone. Any variance from this
procedure requires Urban Forestry approval, please call (650) 496‐ 5953.”
v. Note #5. “Pruning Restrictions. No pruning or clearance cutting of branches is permitted on
City trees. Contractor shall obtain a Public Tree Permit from Urban Forestry (650‐ 496‐5953)
for any work on Public Trees”.
87. TREE REMOVAL—PROTECTED & RIGHT‐OF‐WAY TREES. Existing trees (Publicly‐owned or
Protected) to be removed, as shown accurately located on all site plans, require approval by
the Urban Forestry Tree Care Permit prior to issuance of any building, demolition or grading
permit. Must also be referenced in the required Street Work Permit from Public Works
Engineering.
i. Add plan note for each tree to be removed, “Tree Removal. Contractor shall obtain a
completed Urban Forestry Tree Care Permit # (contractor to complete) separate from the
Building or Street Work Permit. Permit notice hanger and conditions apply. Contact (650‐
496‐5953).”
ii. Copy the approval. The completed Tree Care Permit shall be printed on Sheet T‐2, or
specific approval communication from staff clearly copied directly on the relevant plan
sheet. The same Form is used for public or private Protected tree removal requests
available from the Urban Forestry webpage:
http://www.cityofpaloalto.org/gov/depts/pwd/trees/default.asp
88. NEW RIGHT‐OF‐WAY TREES‐‐PLAN REQUIREMENTS. New trees shall be shown on all relevant
plans: site, utility, irrigation, landscape, etc. in a location 10’ clear radius from any (new or
existing) underground utility or curb cut (see Note #4 above).
g. Add note on the Planting Plan that states, “Tree Planting. Prior to in‐ground installation,
Urban Forestry inspection/approval required for tree stock, planting conditions and
irrigation adequacy. Contact (650‐496‐5953).”
i. Plans shall state the Urban Forestry approved species, size and include relevant
Standard Planting Dwg. #603, #603a or #604 (reference which), and shall note the tree
pit dug at least twice the diameter of the root ball.
h. Landscape plan shall include planting preparation details for trees specifying digging the soil to
at least 30‐inches deep, backfilled with a quality topsoil and dressing with 2‐inches of wood or
bark mulch on top of the root ball keeping clear of the trunk by 1‐ inch.
i. Add note on the Planting & Irrigation Plan that states, “Irrigation and tree planting in the
right‐of‐way requires a street work permit per CPA Public Works standards.”
ii. Automatic irrigation shall be provided for each tree. Standard Dwg. #513 shall be included
on the irrigation plans and show two bubbler heads mounted on flexible tubing placed at
the edge of the root ball. Bubblers mounted inside an aeration tube are prohibited. The
tree irrigation system shall be connected to a separate valve from other shrubbery and
ground cover, pursuant to the City's Landscape Water Efficiency Standards.
89. NEW RIGHT-OF-WAY TREES—SOIL VOLUME. Unless otherwise approved, each new large* tree
shall be provided with 1,200 cubic feet of rootable soil area, utilizing Standard Dwg. #604/513.
Rootable soil shall mean compaction less than 90% over the area, not including sidewalk base
areas except when mitigated. Sidewalk Mitigation in lieu of compacted root conditions may
use Alternative Base Material methods such as: structural grid (Silva Cell), Engineered Soil Mix
base or other method as approved.
90. Minimum soil volume for tree size growth performance (in cubic feet): Large: 1,200 cu.ft.
Medium: 800 cu.ft. Small: 400 cu.ft.
a. Landscape Plan. When qualifying for parking area shade ordinance compliance
(PAMC 18.40.130) trees shall be labeled (as S, M or L).
i. Engineered Soil Mix (ESM). When applied, Engineered Soil Mix base material shall be
utilized in specified areas, such as a sidewalk base or channeling to a landscape area,
to achieve expected shade tree rooting potential and maximum service life of the
sidewalk, curb, parking surfaces and compacted areas. Plans and Civil Drawings shall
use CPA Public Works Engineering ESM Specifications, Section 30 and Standard Dwg.
#603a. Designated areas will be identified by crosshatch or other symbol, and specify a
minimum of 24" depth. The technology may be counted toward any credits awarded
for LEED or Sustainable Sites certification ratings.
87. LANDSCAPE PLANS
a. Include all changes recommended from civil engineer, architect and staff, including
planting specifications if called for by the project arborist, b. Provide a detailed landscape
and irrigation plan encompassing on‐and off‐site plantable areas out to the curb as
approved by the Architectural Review Board. A Landscape Water Use statement, water
use calculations and a statement of design intent shall be submitted for the project. A
licensed landscape architect and qualified irrigation consultant will prepare these plans, to
include:
i. All existing trees identified both to be retained and removed including street trees.
ii. Complete plant list indicating tree and plant species, quantity, size, and locations.
iii. Irrigation schedule and plan.
iv. Fence locations.
v. Lighting plan with photometric data.
vi. Trees to be retained shall be irrigated, aerated and maintained as necessary to ensure
survival.
vii. All new trees planted within the public right‐of‐way shall be installed per Public
Works (PW) Standard Planting Diagram #603 or 604 (include on plans), and shall
have a tree pit dug at least twice the diameter of the root ball.
viii. Landscape plan shall include planting preparation details for trees specifying digging
the soil to at least 30‐inches deep, backfilled with a quality topsoil and dressing with
2‐inches of wood or bark mulch on top of the root ball keeping clear of the trunk by
1‐inch.
ix. Automatic irrigation shall be provided to all trees. For trees, Standard Dwg. #513
shall be included on the irrigation plans and show two bubbler heads mounted on
flexible tubing placed at the edge of the root ball. Bubblers shall not be mounted
inside an aeration tube. The tree irrigation system shall be connected to a separate
valve from other shrubbery and ground cover, pursuant to the City's Landscape
Water Efficiency Standards. Irrigation in the right‐of‐way requires a street work
permit per CPA Public Works standards.
b. Landscape Plan shall ensure the backflow device is adequately obscured with the
appropriate screening to minimize visibility (planted shrubbery is preferred, painted dark
green, decorative boulder covering acceptable; wire cages are discouraged).
c. Add Planting notes to include the following mandatory criteria:
i. Prior to any planting, all plantable areas shall be tilled to 12” depth, and all
construction rubble and stones over 1” or larger shall be removed from the site.
ii. Note a turf‐free zone around trees 36” diameter (18” radius) for best tree
performance.
88. TREE PROTECTION VERIFICATION. Prior to demolition, grading or building permit issuance, a
written verification from the contractor that the required protective fencing is in place shall be
submitted to the Building Inspections Division. The fencing shall contain required warning sign
and remain in place until final inspection of the project.
DURING CONSTRUCTION
89. EXCAVATION RESTRICTIONS APPLY (TTM, Sec. 2.20 C & D). Any approved grading, digging or
trenching beneath a tree canopy shall be performed using ‘air‐spade’ method as a preference,
with manual hand shovel as a backup. For utility trenching, including sewer line, roots exposed
with diameter of 1.5 inches and greater shall remain intact and not be damaged. If directional
boring method is used to tunnel beneath roots, then Table 2‐1, Trenching and Tunneling
Distance, shall be printed on the final plans to be implemented by Contractor.
90. PLAN CHANGES. Revisions and/or changes to plans before or during construction shall be
reviewed and responded to by the (a) project site arborist, Monarch Consulting Arborists,
831.331.8982, or (b) landscape architect with written letter of acceptance before
submitting the revision to the Building Department for review by Planning, PW or Urban
Forestry.
91. CONDITIONS. All Planning Department conditions of approval for the project shall be
printed on the plans submitted for building permit.
92. TREE PROTECTION COMPLIANCE. The owner and contractor shall implement all protection and
inspection schedule measures, design recommendations and construction scheduling as stated
in the TPR & Sheet T‐1, and is subject to code compliance action pursuant to PAMC 8.10.080.
The required protective fencing shall remain in place until final landscaping and inspection of
the project. Project arborist approval must be obtained and documented in the monthly
activity report sent to the City. The mandatory Contractor and Arborist Monthly Tree Activity
Report shall be sent monthly to the City (pwps@cityofpaloalto.org) beginning with the initial
verification approval, using the template in the Tree Technical Manual, Addendum 11.
93. TREE DAMAGE. Tree Damage, Injury Mitigation and Inspections apply to Contractor.
Reporting, injury mitigation measures and arborist inspection schedule (1‐5) apply pursuant
to TTM, Section 2.20‐2.30. Contractor shall be responsible for the repair or replacement of
any publicly owned or protected trees that are damaged during the course of construction,
pursuant to Title 8 of the Palo Alto Municipal Code, and city Tree Technical Manual, Section
2.25.
94. GENERAL. The following general tree preservation measures apply to all trees to be
retained: No storage of material, topsoil, vehicles or equipment shall be permitted within
the tree enclosure area. The ground under and around the tree canopy area shall not be
altered. Trees to be retained shall be irrigated, aerated and maintained as necessary to
ensure survival.
PRIOR TO OCCUPANCY
95. URBAN FORESTRY DIGITAL FILE & INSPECTION. The applicant or architect shall provide a
digital file of the landscape plan, including new off‐site trees in the publicly owned right‐of‐
way. A USB Flash Drive, with CAD or other files that show species, size and exact scaled
location of each tree on public property, shall be delivered to Urban Forestry at a tree and
landscape inspection scheduled by Urban Forestry (650‐496‐5953).
96. LANDSCAPE CERTIFICATION LETTER. The Planning Department shall be in receipt of a
verification letter that the Landscape Architect has inspected all trees, shrubs, planting and
irrigation and that they are installed and functioning as specified in the approved plans.
97. PROJECT ARBORIST CERTIFICATION LETTER. Prior to written request for temporary or final
occupancy, the contractor shall provide to the Planning Department and property owner a
final inspection letter by the Project Arborist. The inspection shall evaluate the success or
needs of Regulated tree protection, including new landscape trees, as indicated on the
approved plans. The written acceptance of successful tree preservation shall include a
photograph record and/or recommendations for the health, welfare, mitigation remedies for
injuries (if any). The final report may be used to navigate any outstanding issues, concerns or
security guarantee return process, when applicable.
98. PLANNING INSPECTION. Prior to final sign off, contractor or owner shall contact the city
planner (650‐ 329‐2441) to inspect and verify Special Conditions relating to the conditions
for structures, fixtures, colors and site plan accessories.
POST CONSTRUCTION
99. MAINTENANCE. All landscape and trees shall be maintained, watered, fertilized, and pruned
according to Best Management Practices‐Pruning (ANSI A300‐2008 or current version) and the
City Tree Technical Manual, Section 5.00. Any vegetation that dies shall be replaced or failed
automatic irrigation repaired by the current property owner within 30 days of discovery.
SECTION 8. Term of Approval.
Site and Design Approval. In the event actual construction of the project is not
commenced within two years of the date of council approval, the approval shall expire and be of no
further force or effect, pursuant to Palo Alto Municipal Code Section 18.30(G).080.
PASSED:
AYES:
NOES:
ABSENT:
ABSTENTIONS:
ATTEST: APPROVED:
_________________________ ____________________________
City Clerk Director of Planning and Community Environment
APPROVED AS TO FORM:
___________________________
Senior Asst. City Attorney
Exhibit A
Mitigation Monitoring and Reporting Program
3877 El Camino Real
INTRODUCTION
Section 15097 of the Guidelines for the California Environmental Quality Act (CEQA) requires that,
whenever a public agency approves a project based on a Mitigated Negative Declaration (MND) or an
Environmental Impact Report (EIR), the public agency shall establish a mitigation monitoring or
reporting program to ensure that all adopted mitigation measures are implemented.
This Mitigation Monitoring and Reporting Program (MMRP) is intended to satisfy this requirement of
the CEQA Guidelines as it relates to the 3877 El Camino project. This MMRP would be used by City
staff and mitigation monitoring personnel to ensure compliance with mitigation measures during
project implementation. Mitigation measures identified in this MMRP were developed in the Initial
Study prepared for the proposed project.
As noted above, the intent of the MMRP is to ensure the effective implementation and enforcement
of all adopted mitigation measures. The MMRP will provide for monitoring of construction activities,
as necessary, and in the field identification and resolution of environmental concerns.
MITIGATION MONITORING PROGRAM DESCRIPTION
The City of Palo Alto will coordinate monitoring activities and ensure appropriate documentation of
mitigation measure implementation. The table below identifies each mitigation measure for the 3877
El Camino Real Project and the associated implementation, monitoring, timing and performance
requirements.
The MMRP table presented on the following pages identifies:
1. the full text of each applicable mitigation measure;
2. the party or parties responsible for implementation and monitoring of each measure;
3. the timing of implementation of each mitigation measure including any ongoing monitoring
requirements; and
4. performance criteria by which to ensure mitigation requirements have been met.
Following completion of the monitoring and documentation process, the final monitoring results will
recorded and incorporated into the project file maintained by the City’s Department of Planning and
Community Environment.
The mitigation measure numbering reflects the numbering used in the Initial Study prepared for the
3877 El Camino Real (Dudek 2016).
No mitigation measures are required for the following resources:
Aesthetics
Agricultural Resources
Air Quality
Cultural Resources
Geology, Soils, and
Seismicity
Hazards and Hazardous
Materials
Hydrology and Water
Quality
Land Use and Planning
Mineral Resources
Noise
Population and Housing
Public Services
Recreation
Transportation and Traffic
Utilities and Service Systems
Greenhouse Gas
Emissions
Mitigation Measure Implementation
Responsibility
Monitoring
Responsibility
Timing Performance
Evaluation
Criteria
BIOLOGICAL RESOURCES
Mitigation Measure BIO-1: If
feasible, vegetation on the project
site shall be removed outside of the
bird-nesting season. If the start of
site clearing, tree removal, or
building demolition occurs between
February 1 and August 31, a pre-
construction survey for nesting
birds protected under the
Migratory Bird Treaty Act shall be
conducted by a qualified biologist
to identify the location of nests in
active use that were established
prior to the start of project
implementation activities. The pre-
construction survey shall take place
no more than 7 days prior to
initiation of construction. All trees
and shrubs on the site shall be
surveyed, with particular attention
to any trees or shrubs that would
be removed or directly disturbed.
Further, the project applicant shall
retain a qualified biologist to
perform additional nesting bird
surveys at least every 2 weeks
during all phases of construction
that occur during the nesting
season. If an active nest of a
protected bird is found on site at
any time, the biologist shall, in
consultation with the California
Department of Fish and Wildlife
(CDFW), determine whether
construction work would affect the
active nest or disrupt reproductive
behavior. Criteria used for this
evaluation shall include presence of
visual screening between the nest
and construction activities, and
behavior of adult raptors in
response to the surveyors or other
ambient human activity. If
construction could affect the nest
Applicant City of Palo Alto
Department of
Planning and
Community
Environment
Prior to
issuance of
demolition
permit
Pre-
construction
survey is
completed
prior to
demolition.
Surveys are
repeated
throughout
construction.
Protection
measures are
implemented
during
demolition and
construction.
Nesting birds
are not
disturbed until
young have
fledged.
Mitigation Measure Implementation
Responsibility
Monitoring
Responsibility
Timing Performance
Evaluation
Criteria
or disrupt reproductive behavior,
the biologist shall, in consultation
with CDFW, determine an
appropriate construction-free
buffer zone around the nest to
remain in place until the young
have fledged or other appropriate
protective measures are taken to
ensure no take of protected species
occurs.
If it is determined that
construction will affect an active
raptor nest or disrupt reproductive
behavior, then avoidance is the
only mitigation available.
Construction shall not be permitted
within 300 feet of such a nest until
a qualified biologist determines
that the subject nests are no longer
active.
Prior to issuance of a demolition
permit, the City of Palo Alto (City)
shall verify that pre-construction
surveys have been conducted
within 7 days of the proposed start
of demolition. If active bird nests
are present, the City shall verify
that CDFW has been consulted and
either determined that
construction will not affect an
active bird nest or that appropriate
construction-free buffer zones have
been established or other
appropriate protective measures
have been taken.
Mitigation Measure BIO-2: A pre-
construction survey shall be
conducted by a qualified biologist
(i.e., a biologist holding a California
Department of Fish and Wildlife
(CDFW) collection permit and a
Memorandum of Understanding
with CDFW allowing the biologist to
handle bats) no earlier than 30 days
prior to initiation of construction
and demolition activities to
determine if active bat roosts or
Applicant City of Palo Alto
Department of
Planning and
Community
Environment
Prior to
issuance of
demolition
permit
Pre-
construction
survey is
completed
prior to
demolition.
Avoidance
measures are
implemented
during
demolition and
construction.
Mitigation Measure Implementation
Responsibility
Monitoring
Responsibility
Timing Performance
Evaluation
Criteria
maternal colonies are present on or
within 300 feet of the construction
demolition area. Surveys shall
include the structures proposed for
demolition.
Should an active maternity roost be
identified, the roost shall not be
disturbed, and demolition and
construction within 300 feet of the
maternity roost shall be postponed
or halted until the juveniles have
fledged and the roost is vacated, as
determined by a qualified biologist.
Consultation with CDFW shall also
be initiated. Under no circumstance
shall an active roost be directly
disturbed.
If nonbreeding bat hibernacula are
found on the project site, the
individuals shall be safely evicted
under the direction of a qualified
bat biologist and with consultation
with CDFW. These actions shall
allow bats to leave during nighttime
hours, increasing their chance of
finding new roosts with a minimum
of potential predation during
daylight.
If it is determined that demolition
or construction will not affect
roosting behavior or disrupt a
maternal colony, demolition or
construction may proceed without
any restriction or mitigation
measure.
If it is determined that demolition
or construction will affect an active
bat roost or disrupt reproductive
behavior, then avoidance is the
only mitigation available. Under no
circumstance shall an active roost
be directly disturbed. Demolition or
construction within 300 feet shall
be postponed or halted until the
roost is naturally vacated as
determined by a qualified biologist.
Prior to issuance of a demolition
Nonbreeding
bat
hibernacula
may be safely
evicted under
the direction of
a qualified bat
biologist and
with
consultation
with CDFW.
Mitigation Measure Implementation
Responsibility
Monitoring
Responsibility
Timing Performance
Evaluation
Criteria
permit, the City of Palo Alto (City)
shall verify that pre-construction
surveys have been conducted
within 30 days of the proposed
start of demolition. If bats are
present, the City shall verify that
CDFW has been consulted and
either determined that
construction will not affect an
active bat roost or disrupt a
maternal colony or that individuals
in a nonbreeding bat hibernacula
have been safely evicted.
Due to regulations from the
California Department of Public
Health, direct contact by
construction workers with any bat
is not allowed.
ATTACHMENT C
ZONING COMPARISON TABLE
3877 El Camino Real, 14PLN-00464
Table 1: COMPARISON WITH CHAPTER 18.13 (RM-30 DISTRICT)
Regulation Required Existing Proposed
Minimum/Maximum
Site Area, Width and
Depth
8,500 sf area, 70 foot width,
100 foot depth
21,867.8 sf (0.50 acres) 21,867.8 sf (0.50 acres)
Minimum Front Yard (2) 20 feet Parking lot 23 feet
Rear Yard 10 feet Parking lot 14 feet above grade
6’1” below grade*
Interior Side Yard 6 feet Parking lot 6 feet above grade
6 feet below grade
Street Side Yard 16 feet Not applicable Not applicable
Max. Building Height 35 feet Parking lot 29’8”
Side Yard Daylight
Plane
10 feet at interior side lot
line then 45 degree angle
Not Applicable Complies
Rear Yard Daylight
Plane
10 feet at rear setback line
then 45 degree angle
Not Applicable Complies
Max. Site Coverage 40% (8,747 sf) Parking lot 37% (8,067 sf)
Max. Total Floor Area
Ratio
60% (13,121 sf) Parking lot 60% (13,105 sf) + 1,311 sf
for BMR floor area **
Minimum Site Open
Space
30% (6,560 sf) Not Applicable 56.3% (12,333 sf)
Minimum Usable
Open Space
150 sf per unit (1,650 sf) Not Applicable 7,001 sf
Minimum Common
Open Space
75 sf per unit (825 sf) Not Applicable 1,114 sf
Minimum Private
Open Space
50 sf per unit (550 sf) Not Applicable 5,887 sf
* Design Enhancement Exception requested.
** Increase per 18.15.050d
Table 2: CONFORMANCE WITH CHAPTER 18.52 (Off-Street Parking)
for Multiple-Family Residential
Type Required Proposed
Vehicle Parking 2 spaces per unit, of which at least one space per unit
must be covered. 34 spaces required
Guest Parking: 1 space + 10% of total number of units.
3 required
34 spaces
7 spaces
Bicycle Parking 1 space per unit (100% long term) 17 required 28 spaces
ATTACHMENT D
ZONING COMPARISON TABLE
3877 El Camino Real, 14PLN-00464
Table 1: COMPARISON WITH CHAPTER 18.16 (CS DISTRICT)
Mixed-Use Development Standards
Regulation Required Existing Proposed
Minimum Site Area, width and
depth
None 0.25 acres (10,957.5 sf) 0.25 acres (10,957.5
sf)
Minimum Front Yard 0-10 feet to create an
8-12 foot effective
sidewalk width (1), (2), (8)
9 feet 12 feet
Rear Yard 10’ for residential
portion; no
requirement for
commercial portion
75 feet 16 feet
Interior Side Yard 10 feet Not applicable Not applicable
Street Side Yard 5 feet Not Applicable Not Applicable
Build-to-lines 50% of frontage built
to setback on El
Camino Real
33% of side street built
to setback (7)
70 feet (97%)
No Street side yard
36 feet (50%)
Special Setback 24 feet – see Chapter
20.08 & zoning maps
Not applicable Not applicable
Max. Site Coverage None 53.47% (5,860 sf) 50% (5,462.5 sf)
Landscape/Open Space
Coverage
30% (3,287 sf) Not Applicable 5,307 sf
Usable Open Space 150 sq ft per unit for 6
units or more (9)
Not Applicable 333 sf per unit
Max. Building Height 50 ft or
35 ft within 150 ft. of a
residential district
(other than an RM-40
or PC zone) abutting or
located within 50 feet
of the site
22 feet 37’-6”
Daylight Plane for lot lines
abutting one or more
residential zoning districts
Daylight plane height
and slope shall be
identical to those of
the most restrictive
residential zoning
district abutting the lot
line
Not Applicable Consistent
Max. Floor Area Ratio (FAR) Retail: 0.4:1 (4,383 sf)
Residential: 0.6:1
(6,574.5 sf)
Total: 1.0:1 (10,957.5
sf)
53.47% (5,860 sf)
Retail: 36.75% (4,027
sf)
Residential: 59.7%
(6,542 sf) + 1,285 sf
BMR bonus
(18.15.050d)
Total: 0.96:1 (10,569
sf)
Minimum Mixed-Use Ground
Floor Commercial FAR
0.15:1 (1,644 sf) Not applicable 1,682 sf
(1) No parking or loading space, whether required or optional, shall be located in the first 10 feet adjoining the street property line of
any required yard.
(2) Any minimum front, street side, or interior yard shall be planted and maintained as a landscaped screen excluding areas required
for access to the site. A solid wall or fence between 5 and 8 feet in height shall be constructed along any common interior lot line..
(7) 25 foot driveway access permitted regardless of frontage, build-to requirement does not apply to CC district.
(8) A 12 foot sidewalk width is required along El Camino Real frontage
(9) Required usable open space: (1) may be any combination of private and common open spaces; (2) does not need to be located on
the ground (but rooftop gardens are not included as open space); (3) minimum private open space dimension six feet; and (4) minimum
common open space dimension twelve feet.
18.16.080 Performance Standards. All development in the CS district shall comply with the performance
criteria outlined in Chapter 18.23 of the Zoning Ordinance, including all mixed use development
18.16.090 Context-Based Design Criteria. As further described in a separate attachment, development in a
commercial district shall be responsible to its context and compatible with adjacent development, and shall
promote the establishment of pedestrian oriented design.
Table 2: CONFORMANCE WITH CHAPTER 18.52 (Off-Street Parking and Loading)
for Retail Services*
Type Required Existing Proposed
Vehicle Parking 1/200 sf of gross floor
area for a total of 21
parking spaces
63 spaces
21 spaces
Bicycle Parking 1/2,400 sf (20% long
term and 80% short
term) equals 2 spaces
Zero 2 (1 long term, 1 short
term)
Loading Space 0 loading spaces for 0-
4,999 sf
Zero Zero
* On-site employee amenity space is exempted from the parking requirements
Performance Criteria 18.23
3877 El Camino Real
14PLN-00464
These performance criteria are intended to provide additional standards to be used in the design and
evaluation of developments in the multi-family, commercial, and industrial zones. The purpose is to balance
the needs of the uses within these zones with the need to minimize impacts to surrounding neighborhoods
and businesses. The criteria are intended to make new developments and major architectural review
projects compatible with nearby residential and business areas, and to enhance the desirability of the
proposed developments for the site residents and users, and for abutting neighbors and businesses.
Assure that development provides adequate and accessible
interior areas or exterior enclosures for the storage of trash
and recyclable materials in appropriate containers, and that
trash disposal and recycling areas are located as far from
abutting residences as is reasonably possible.
The trash enclosures are located in the
basement parking area. Prior to
trash/recycling pick up days, the bins/carts will
be brought up to the staging area along the
vehicular ramp along Curtner Avenue. Once
the bins/carts are serviced, then they are
brought back down to the basement.
To minimize the visual impacts of lighting on abutting or
nearby residential sites and from adjacent roadways.
The proposed exterior lighting is sufficient to
provide safe circulation and is directed
downward to reduce glare and impacts to
the project’s residents.
The purpose is to restrict retail or service commercial
businesses abutting (either directly or across the street) or
within 50 feet of residentially zoned properties or properties
with existing residential uses located within nonresidential
zones, with operations or activities between the hours of
10:00 p.m. and 6:00 a.m. Operations subject to this code may
include, but are not limited to, deliveries, parking lot and
sidewalk cleaning, and/or clean up or set up operations, but
does not include garbage pick up.
Future commercial uses will have to
comply with the City’s Late Night
Ordinance requirements. At this time, it is
unknown what tenants would occupy the
commercial spaces.
Any loading would occur off of El Camino Real
for the commercial component.
Privacy of abutting residential properties or properties with
existing residential uses located within nonresidential zones
(residential properties) should be protected by screening
from public view all mechanical equipment and service areas.
Landscaping should be used to integrate a project design into
the surrounding neighborhood, and to provide privacy
screening between properties where appropriate.
The project provides the required
setback above ground and includes
vegetation and tree plantings within the
setback and open spaces. In response to
the Board’s direction, the project
includes additional screening trees along
the north property line and also in-
between the townhome buildings.
Mechanical equipment areas are
screened appropriately.
18.23.020 Trash Disposal and Recycling Project Consistency
18.23.030 Lighting
18.23.040 Late Night Uses and Activities
18.23.050 Visual, Screening and Landscaping
The requirements and guidelines regarding noise and
vibration impacts are intended to protect residentially zoned
properties or properties with existing residential uses located
within nonresidential zones (residential properties) from
excessive and unnecessary noises and/or vibrations from any
sources in abutting industrial or commercially zoned
properties. Design of new projects should reduce noise from
parking, loading, and refuse storage areas and from heating,
ventilation, air conditioning apparatus, and other machinery
on nearby residential properties. New equipment, whether
mounted on the exterior of the building or located interior to
a building, which requires only a building permit, shall also be
subject to these requirements.
The project will comply with the City’s noise
ordinance. The trash enclosures are located
in the garage basement. The commercial
areas are located along El Camino Real and
there is a buffer area between the
commercial building and the surrounding
residential buildings.
The visual impact of parking shall be minimized on adjacent
residentially zoned properties or properties with existing
residential uses located within nonresidential zones.
The project provides all of its parking below
grade.
The guidelines regarding site access impacts are intended to
minimize conflicts between residential vehicular, pedestrian,
and bicycle uses and more intensive traffic associated with
commercial and industrial districts, and to facilitate
pedestrian and bicycle connections through and adjacent to
the project site.
The site circulation facilitates access for
all modes of transportation. The project
includes short-term and long-term bike
parking. On-site vehicular traffic will be
directed underground, leaving the
above-ground for pedestrians and
bicyclist. Wide walkways and plazas
surround the commercial areas and
provide connectivity to the residential
areas.
The requirements for air quality are intended to buffer
residential uses from potential sources of odor and/or toxic
air contaminants.
No proposed uses on the project site would
produce odor or toxic air.
In accordance with Titles 15 and 17 of the Palo Alto
Municipal Code, minimize the potential hazards of any use on
a development site that will entail the storage, use or
handling of hazardous materials (including hazardous wastes)
on-site in excess of the exempt quantities prescribed in
Health and Safety Code Division 20, Chapter 6.95, and Title
15 of this code.
This is not applicable to the proposed uses
associated with the project.
18.23.060 Noise and Vibration Project Consistency
18.23.070 Parking
18.23.080 Vehicular, Pedestrian and Bicycle Site Access
18.23.090 Air Quality
18.23.100 Hazardous Materials
February 28 2017
1 EID 3877 El Camino Mixed Use Site & Design Review Resubmittal
412 Olive Avenue, Palo Alto, 94306 off 650.226.8770
l
Environmental Innovations in Design
Eco-functional Architecture
----------------------------------------------------------------------------------------------------
412 Olive Avenue | Palo Alto | CA | 94306
dir. 650.793.2856 | off. 650.226.8770
Application Number: 14PLN-00464
Company Name: EID Architects, Environmental Innovations in Design
Contact: Stuart Welte stuart@EIDarchitects.com
Mark Wommack mark@EIDarchitects.com
Project Address: 3877 El Camino Real, Palo Alto, CA
Regarding: ARB Submittal for Major Project
Planning Commission Hearing
Document: Project Narrative including summary of comprehensive City Department
review comments and EID responses.
------------------------------------------------------------------------------------------------------------------------------------------------------------
March 08, 2016
To: Sheldon Ah Sing | Senior Planner
SAhsing@m-group.us
City of Palo Alto
Department of Planning and Community Environment
Fifth Floor
Palo Alto City Hall
250 Hamilton Avenue
Palo Alto, CA 94301
EID is resubmitting revised drawing sets for 3877 El Camino Real, Palo Alto, CA for Major Architectural
Review. EID Responses to City comments are below the project summary section of this letter.
Scope of work:
Existing Use: The parcel is an “L” shaped lot with frontage on both El Camino Real and Curtner Ave. There
is a vacant 2-story commercial building on El Camino Real with on grade parking accessed from Curtner
Avenue. All existing structures and paving is to be removed.
Proposed Use: A new mixed use project to include (17) residential units and approximately 4,035 square
feet of commercial/retail area. The commercial/retail space will be combined into a 3-story mixed use
building that will also include (6) residential flats. The remaining (11) residential units will be within 2-
story townhomes located behind the mixed use building and on the portion of the site that extends to
Curtner Ave. All vehicular parking will be located within a parking garage that will be completely below
grade.
February 28 2017
2 EID 3877 El Camino Mixed Use Site & Design Review Resubmittal
412 Olive Avenue, Palo Alto, 94306 off 650.226.8770
Design Concept:
The parcel is divided by a zoning boundary. The El Camino Real frontage is zoned CM and requires a more
urban design solution that conforms to the requirements of the ECR Design Guidelines. The rest of the site
is zoned RM-30. This includes the leg of the parcel that extends to Curtner Ave. This portion of the site is
surrounded with other RM-30 zoned lots, so a more residentially scaled design solution is needed in this
area to respect the context of the existing residential community. Our design concept responds to this by
transitioning in form and scale from the larger urban mixed use building that fronts on ECR down to the
smaller scaled townhomes that we propose on the balance of the site. Below-grade parking, provides
significantly more open space and landscaping than typical of the surrounding neighborhood, enhancing
both the private and public open spaces within the site, creating a welcoming, pedestrian friendly
community. The townhomes are clustered to create open areas between the units and to break the
massing of the buildings down into a residentially scaled structure.
Materials and Methods of Construction:
To reflect the complexity of the contextual aspects of the site, we’ve selected sustainably minded
materials that respond to the functions of each building with the intention of creating a synergy among
our two public entrances, the surrounding residential neighborhoods, and the vitality of the ECR.
Contextually there is little to draw from the immediate neighborhood in terms of style or detailing, as the
neighborhood is primarily comprised of painted stucco and concrete block construction, with nondescript
modular aluminum sliding windows and very little focus on neighborhood greeting, nor particularly
identifiable public open space.
All proposed entrances to this new design create recessed plaza courts allowing for ease of access to
generous common use areas. The commercial building employs large storefront windows to connect the
retail functions with ECR, and external terra cotta sunshades to filter the sunlight from this direction while
allowing inviting views into the Ground Level retail-commercial event spaces. We’ve framed the
storefront with refined smooth finishes comprised of composite wood-resin building panels, smooth hard
troweled stucco, and complimentary bronze colored metal and glass storefront entry systems which are
arranged to focus the eye in towards the retail plaza and storefront. As the site moves away from the busy
ECR corridor, we reduce the scale of the windows and transition into more residentially scaled materials.
Individual home entries and balconies are accented with the warmer hues and texture of the composite
wood-resin siding materials rendered in narrower board widths to complement the human scale. Each
resident’s private bicycle parking is conveniently located in sheltered, lockable closets adjacent to their
front door and multidirectional, landscaped walking paths allow for variety in one’s daily commute,
whether it be to the basement parking garage via stair or elevator, or to public sidewalks and convenient
bicycle, bus and commuter vehicle transportation, all the while provided with a variety of landscaped
seating, waiting, meeting areas.
Zoning Summary:
• Zoning: RM-30 & CS
• Lot Size: 32,825 SF / 0.75 Acre
CS Zone: 10,957.5 SF
RM-30 Zone: 21,867.8
February 28 2017
3 EID 3877 El Camino Mixed Use Site & Design Review Resubmittal
412 Olive Avenue, Palo Alto, 94306 off 650.226.8770
• APN: 132 41 091
CS Zone:
• Lot area: 10,957.5 SF
• Density Du/Ac : Permitted = 7.5 / Proposed = 6 (5 flats plus one BMR flat)
• Max FAR Allowed:
Commercial: 0.4 = 4,035 s.f.
Residential: 0.6 = 6,574 s.f.
BMR FAR Increase: 1,285 s.f.
• Proposed Floor Area: Total Commercial: 4,034 s.f.
Total Residential: 7,859 s.f.
RM-30 Zone:
• Lot area: 21,867 SF
• Density Du/Ac : Permitted = 15 / Proposed = 11 townhomes (10 townhomes plus one
BMR townhome)
• Max FAR Allowed:
Residential: 0.6 = 13,120 s.f.
BMR FAR Increase: 1,311 s.f.
• Proposed Floor Area: Total Residential: 14,416 s.f.
Project Description:
The proposed design will transform this blighted parcel into a vibrant and sustainable mixed-use
community at the southeast corner of El Camino Real and Curtner Avenue. The project will include a mix
of commercial and townhome style condominiums, which will be provided with ample parking located
within the basement below grade.
The existing structure, which has been unoccupied since 2008, is located on a parcel with two long and
narrow legs. The existing structure is an eclectic mix of poorly executed additions and renovations. The
balance of the site is paved to provide on-grade parking for this commercial building, this parking being
accessed from Curtner Ave. The immediate neighborhood is a mix of older structures in various stages of
reuse and condition. On El Camino, the immediate neighbors are a Starbucks that occupies a building that
formerly served as a fast food restaurant and an auto oil changer in a WWII vintage Quonset hut with a
“western storefront” facade. The residential neighborhood is predominantly comprised of 1960’s vintage
two-story residential apartment blocks. On one adjacent parcel a new 3-story 6-unit townhome building is
under construction.
Our team is collaborating with the City of Palo Alto Community Development staff to thoughtfully
synthesize a highly sustainable mixed use community for the proposed site. The project will complement
and support the existing urban fabric, and will be harmonious with the new developments underway in
close proximity to our site.
The commercial spaces within the mixed use structure will contribute significantly to the revitalization of
El Camino Real. New retail will be located on two levels and will open onto a large open courtyard space.
February 28 2017
4 EID 3877 El Camino Mixed Use Site & Design Review Resubmittal
412 Olive Avenue, Palo Alto, 94306 off 650.226.8770
Designed for pedestrian interaction, the commercial spaces are open, inviting, and buffered from the busy
El Camino Real traffic.
We are proposing a mix of housing options that includes two bedroom flats and three bedroom
townhomes. These units are planned to maximize energy efficiency and provide a range of entry level
housing options that will promote a healthy living environment for residents. This, in conjunction with
the inclusion of two affordable housing units within the project will provide housing for a diverse range of
income levels.
Parking is provided on site for the variety of uses including residential, retail and office, in numbers
consistent with the requirements of the zoning ordinance. The proposed parking infrastructure has been
carefully designed to meet the demands of each use and is supported by the analysis contained in the
project traffic report. Locating this parking completely below grade maximizes site landscaping and
enhances both the private and common open spaces within the parcel to an extent that far exceeds the
requirements of the zoning ordinance.
Summary of design revisions:
The purpose of the redesign was to respond to comments received during the previous ARB hearing that
identified areas of concern that had not been raised in prior ARB hearings.
The objective of this redesign was to address the following concerns raised at our last ARB meeting:
1. We moved the parking level down to position the parking and podium deck completely below
grade. This resulted in a reduction of the mass and bulk of the proposed project to levels that are
smaller than the adjacent neighborhood. This solution also creates much larger and more
functional private yard areas for the townhome residents.
2. Direct access from El Camino Real to the parking garage is provided via a one-way driveway
ramp. This ramp is limited to entering the site to balance concerns regarding negative impacts on
traffic on El Camino Real that a new driveway would create with ARB’s desire to provide direct
access to parking from El Camino Real. All traffic leaving the garage would exit onto Curtner Ave,
where a signalized intersection facilitates a safe path to re-enter El Camino Real traffic.
3. Provide a redesigned commercial building façade that conforms to the build-to setback line and
to provide a more contextual design solution for the community.
4. Provide enhanced common open areas that are positioned located closer to the intended users.
5. Provide a more direct, more open pedestrian path through the property with a clear link to El
Camino Real.
6. Reduce overall commercial area to conform to the maximum permitted based on the more
clearly identified boundary of the CS district.
BMR concession and Design Enhancement Exception.
We are requesting one on-menu concession consistent with providing 15% low income BMR units and
one Design Enhancement Exception for the rear yard setback of the underground basement parking.
We are requesting one on-menu concession to permit an increase in FAR by an amount that equals the
area of the BMR units that will be provided. This area is equal to the area of the BMR units and does not
exceed the maximum 25% permitted by section 18.15.050 (d) (iv).
February 28 2017
5 EID 3877 El Camino Mixed Use Site & Design Review Resubmittal
412 Olive Avenue, Palo Alto, 94306 off 650.226.8770
We are also requesting one Design Enhancement Exception for a 6 foot rear yard setback in the RM-30
zone for the below grade parking garage, which occurs entirely underground. This exception conforms to
the criteria outlined in 18.76.050 (b) Applicability and (c) Findings:
(1) There are exceptional or extraordinary circumstances or conditions applicable to the property or
site improvements involved that do not apply generally to property in the same zone district: This parcel is
very unusual in regards to the parcel size and shape. The L shaped parcel extends to both El Camino Real
and Curtner Avenue and crosses a zoning boundary. The narrow width of the parcel affords few options
for resolving vehicular parking and circulation while balancing the need to create an attractive pedestrian
environment. All of the neighboring residential parcels along Curtner Avenue employ long driveways to
access on grade parking and/or rows of garages and carports. The narrow 55’ width of the Curtner
frontage would make a similar solution on this site very unattractive. The requested 6’ rear yard setback
would apply only to the below grade parking structure and would be completely invisible to all of the
neighbors. This reduced setback permits double loaded parking within the basement, which is necessary
to achieve the required parking count for the various uses proposed for the site.
(2) The granting of the application will enhance the appearance of the site or structure, or improve the
neighborhood character of the project and preserve an existing or proposed architectural style, in a
manner which would not otherwise be accomplished through strict application of the minimum
requirements of this title (Zoning) and the architectural review findings set forth in Section 18.76.020(d);
This DEE promotes the development of a project that will enhance the residential character of the RM-30
portion of the site with generous open space and landscaping while facilitating the more urban use of the
CS portion of the site with the requisite build-to setback requirements and corresponding density. Given
the limited options for vehicular access and the narrow lot dimensions, a more traditional parking solution
is not possible and would require significantly more on grade vehicular paving.
(3) The exception is related to a minor architectural feature or site improvement that will not be
detrimental or injurious to property or improvements in the vicinity and will not be detrimental to the
public health, safety, general welfare or convenience. Far from being detrimental, this solution will
enhance the property or improvements in the vicinity by minimizing vehicular circulation and is in no way
detrimental to the public.
Sincerely,
MARK WOMMACK, ARCHITECT
Director of Architecture
Environmental Innovations in Design
Eco-functional Architecture
EID A R C H I T E C T S
----------------------------------------------------------------------------------------------------
412 Olive Avenue | Palo Alto | CA | 94306
dir 650.226.8862 | off 650.226.8770
mark@EIDarchitects.com
www.EIDarchitects.com
Please be advised that our office has a new address. Thank you!
Attachment G
Project Mitigated Negative Declaration Initial Study
The project Mitigated Negative Declaration Initial Study is available on-line at the following
address, which includes the Initial Study, response to comments and Appendices. A hardcopy of
the Initial Study/Mitigated Negative Declaration, response to comments, Traffic Study, and
Historical Analysis is available to the City Council members.
http://www.cityofpaloalto.org/news/displaynews.asp?NewsID=2488&TargetID=319
3877 El Camino Real Project
Mitigation Monitoring Program
3877 El Camino Real Project Page 1
Mitigation Monitoring & Reporting Program February 2017
INTRODUCTION
Section 15097 of the Guidelines for the California Environmental Quality Act (CEQA) requires
that, whenever a public agency approves a project based on a Mitigated Negative Declaration
(MND) or an Environmental Impact Report (EIR), the public agency shall establish a mitigation
monitoring or reporting program to ensure that all adopted mitigation measures are
implemented.
This Mitigation Monitoring Program (MMP) is intended to satisfy this requirement of the
CEQA Guidelines as it relates to the 3877 El Camino project. This MMP would be used by City
staff and mitigation monitoring personnel to ensure compliance with mitigation measures
during project implementation. Mitigation measures identified in this MMP were developed in
the Initial Study prepared for the proposed project.
As noted above, the intent of the MMP is to ensure the effective implementation and
enforcement of all adopted mitigation measures. The MMP will provide for monitoring of
construction activities, as necessary, and in the field identification and resolution of
environmental concerns.
MITIGATION MONITORING PROGRAM DESCRIPTION
The City of Palo Alto will coordinate monitoring activities and ensure appropriate
documentation of mitigation measure implementation. The table below identifies each
mitigation measure for the 3877 El Camino Real Project and the associated implementation,
monitoring, timing and performance requirements.
The MMP table presented on the following pages identifies:
1. the full text of each applicable mitigation measure;
2. the party or parties responsible for implementation and monitoring of each measure;
3. the timing of implementation of each mitigation measure including any ongoing
monitoring requirements; and
4. performance criteria by which to ensure mitigation requirements have been met.
Following completion of the monitoring and documentation process, the final monitoring
results will recorded and incorporated into the project file maintained by the City’s Department
of Planning and Community Environment.
The mitigation measure numbering reflects the numbering used in the Initial Study prepared
for the 3877 El Camino Real (Dudek 2016).
3877 El Camino Real Project
Mitigation Monitoring Program
3877 El Camino Real Project Page 2
Mitigation Monitoring & Reporting Program February 2017
No mitigation measures are required for the following resources:
Aesthetics
Agricultural Resources
Air Quality
Cultural Resources
Geology, Soils, and Seismicity
Greenhouse Gas Emissions
Hazards and Hazardous Materials
Hydrology and Water Quality
Land Use and Planning
Mineral Resources
Noise
Population and Housing
Public Services
Recreation
Transportation and Traffic
Utilities and Service Systems
Mitigation Measure
Implementation
Responsibility
Monitoring
Responsibility Timing
Performance
Evaluation Criteria
BIOLOGICAL RESOURCES
Mitigation Measure BIO-1: If feasible, vegetation on the
project site shall be removed outside of the bird-nesting
season. If the start of site clearing, tree removal, or building
demolition occurs between February 1 and August 31, a pre-
construction survey for nesting birds protected under the
Migratory Bird Treaty Act shall be conducted by a qualified
biologist to identify the location of nests in active use that were
established prior to the start of project implementation
activities. The pre-construction survey shall take place no more
than 7 days prior to initiation of construction. All trees and
shrubs on the site shall be surveyed, with particular attention to
any trees or shrubs that would be removed or directly
disturbed. Further, the project applicant shall retain a qualified
biologist to perform additional nesting bird surveys at least
every 2 weeks during all phases of construction that occur
during the nesting season. If an active nest of a protected bird
is found on site at any time, the biologist shall, in consultation
with the California Department of Fish and Wildlife (CDFW),
determine whether construction work would affect the active
nest or disrupt reproductive behavior. Criteria used for this
evaluation shall include presence of visual screening between
the nest and construction activities, and behavior of adult
Applicant City of Palo Alto
Department of
Planning and
Community
Environment
Prior to issuance of
demolition permit
Pre-construction
survey is completed
prior to demolition.
Surveys are
repeated throughout
construction.
Protection
measures are
implemented during
demolition and
construction.
Nesting birds are
not disturbed until
young have fledged.
3877 El Camino Real Project
Mitigation Monitoring Program
3877 El Camino Real Project Page 3
Mitigation Monitoring & Reporting Program February 2017
Mitigation Measure
Implementation
Responsibility
Monitoring
Responsibility Timing
Performance
Evaluation Criteria
raptors in response to the surveyors or other ambient human
activity. If construction could affect the nest or disrupt
reproductive behavior, the biologist shall, in consultation with
CDFW, determine an appropriate construction-free buffer zone
around the nest to remain in place until the young have fledged
or other appropriate protective measures are taken to ensure
no take of protected species occurs.
If it is determined that construction will affect an active
raptor nest or disrupt reproductive behavior, then avoidance is
the only mitigation available. Construction shall not be
permitted within 300 feet of such a nest until a qualified
biologist determines that the subject nests are no longer active.
Prior to issuance of a demolition permit, the City of Palo
Alto (City) shall verify that pre-construction surveys have been
conducted within 7 days of the proposed start of demolition. If
active bird nests are present, the City shall verify that CDFW
has been consulted and either determined that construction will
not affect an active bird nest or that appropriate construction-
free buffer zones have been established or other appropriate
protective measures have been taken.
Mitigation Measure BIO-2: A pre-construction survey shall be
conducted by a qualified biologist (i.e., a biologist holding a
California Department of Fish and Wildlife (CDFW) collection
permit and a Memorandum of Understanding with CDFW
allowing the biologist to handle bats) no earlier than 30 days
prior to initiation of construction and demolition activities to
determine if active bat roosts or maternal colonies are present
on or within 300 feet of the construction demolition area.
Surveys shall include the structures proposed for demolition.
Should an active maternity roost be identified, the roost shall
not be disturbed, and demolition and construction within 300
feet of the maternity roost shall be postponed or halted until the
juveniles have fledged and the roost is vacated, as determined
by a qualified biologist. Consultation with CDFW shall also be
Applicant City of Palo Alto
Department of
Planning and
Community
Environment
Prior to issuance of
demolition permit
Pre-construction
survey is completed
prior to demolition.
Avoidance
measures are
implemented during
demolition and
construction.
Nonbreeding bat
hibernacula may be
safely evicted under
the direction of a
qualified bat
biologist and with
3877 El Camino Real Project
Mitigation Monitoring Program
3877 El Camino Real Project Page 4
Mitigation Monitoring & Reporting Program February 2017
Mitigation Measure
Implementation
Responsibility
Monitoring
Responsibility Timing
Performance
Evaluation Criteria
initiated. Under no circumstance shall an active roost be
directly disturbed.
If nonbreeding bat hibernacula are found on the project site,
the individuals shall be safely evicted under the direction of a
qualified bat biologist and with consultation with CDFW. These
actions shall allow bats to leave during nighttime hours,
increasing their chance of finding new roosts with a minimum
of potential predation during daylight.
If it is determined that demolition or construction will not affect
roosting behavior or disrupt a maternal colony, demolition or
construction may proceed without any restriction or mitigation
measure.
If it is determined that demolition or construction will affect an
active bat roost or disrupt reproductive behavior, then
avoidance is the only mitigation available. Under no
circumstance shall an active roost be directly disturbed.
Demolition or construction within 300 feet shall be postponed
or halted until the roost is naturally vacated as determined by a
qualified biologist.
Prior to issuance of a demolition permit, the City of Palo Alto
(City) shall verify that pre-construction surveys have been
conducted within 30 days of the proposed start of demolition. If
bats are present, the City shall verify that CDFW has been
consulted and either determined that construction will not affect
an active bat roost or disrupt a maternal colony or that
individuals in a nonbreeding bat hibernacula have been safely
evicted.
Due to regulations from the California Department of Public
Health, direct contact by construction workers with any bat is
not allowed.
consultation with
CDFW.
Attachment I
Project Plans
Hardcopies of project plans are provided to ARB Members. These plans are available to the
public by visiting the Planning and Community Environmental Department on the 5th floor of
City Hall at 250 Hamilton Avenue.
Directions to review Project plans online:
1. Go to: https://paloalto.buildingeye.com/planning
2. Search for “3877 El Camino Real” and open record by clicking on the green dot
3. Review the record details and open the “more details” option
4. Use the “Records Info” drop down menu and select “Attachments”
5. Open the attachment named “5-4-2017 3877 El Camino Real Submittal”
City of Palo Alto (ID # 8122)
City Council Staff Report
Report Type: Action Items Meeting Date: 9/18/2017
City of Palo Alto Page 1
Summary Title: TMA Presentation and Amendment of the TMA Funding
Agreement
Title: Presentation by the Palo Alto Transportation Management Association,
and Approval of an Amended and Restated Funding Agreement between the
City of Palo Alto, the Silicon Valley Community Foundation, and the Palo Alto
Transportation Management Association to provide $480,000 to the Palo Alto
Transportation Management Association in FY2018
From: City Manager
Lead Department: Planning and Community Environment
Recommendation
Staff recommends that the City Council:
1. receive a report from the Palo Alto Transportation Management Association (TMA),
2. authorize the City Manager to execute an amended and restated funding agreement
(Attachment A) between the City of Palo Alto, the Silicon Valley Community Foundation
(SVCF), and the Palo Alto Transportation Management Association (TMA), to:
extend the term of the agreement from December 31, 2018 to July 1, 2020, and
provide $480,000 in funding in the approved FY2018 City budget for use by the
Palo Alto TMA in reducing single-occupant vehicle (SOV) commute trips to and
from Downtown Palo Alto; and
3. authorize the City Manager to execute future amendments to the agreement for the
purpose of providing any additional funding approved by Council and included in the
City’s FY2019 and FY2020 budgets for the express purpose of supporting the TMA, and
to remove the SVCF as a party to the agreement when the TMA receives formal IRS
approval as a Section 501(c)(3) organization.
Executive Summary
The City Council approved an agreement with the Palo Alto TMA and the Silicon Valley
Community Foundation (SVCF) in June 2016 to provide $100,000 in funding for TMA programs
City of Palo Alto Page 2
to reduce SOV commute trips to and from downtown Palo Alto. Under a subsequent
amendment, the City provided an additional $100,000 to support the TMA’s work in 2017. The
City Council adopted a FY18 budget in late June that included funding for the Palo Alto TMA to
continue to support its efforts to reduce SOV commute trips using a variety of strategies. The
proposed amended and restated agreement incorporates the approved funding, extends the
agreement’s term, and sets forth the parties’ obligations over the remaining years.
In the past year, the TMA has used City funds to purchase transit passes for low-income
workers, supporting their use of transit, and other programs such as carpooling and ride-share
aimed at getting downtown commuters into carpools and alternative modes of transportation.
The City’s funding in FY18 will allow the TMA to grow these programs and others at the same
time that the organization seeks to mature and increase its visibility and results. With the
budgeted funds, the Palo Alto TMA believes it can achieve a 14% decrease in SOV rates from
the 2015 baseline year by the end of calendar year 2018.
Background
Following direction from City Council in 2013, staff worked to develop transportation demand
management (TDM) strategies to encourage alternatives to solo driving as part of a multi-
faceted effort to address traffic and parking concerns in the downtown area and city at-large.
The development of a TMA for Palo Alto was seen as a key component of this approach, which
the City funded via a $499,880 contract with consultants Moore Iacofano Goltsman, Inc. (CMR
#4766 August 11, 2014). After the TMA was formed in January 2016, this contract continued to
fund sub-consultant Wendy Silvani, who has been serving as the TMA’s part time executive
director.
In June 2016, Council authorized the City Manager to formalize the provision of additional City
funding for TMA programs by executing a funding agreement between the City of Palo Alto, the
Silicon Valley Community Foundation (SVCF), and the Palo Alto TMA. Because the TMA is not
yet an approved Section 501(c)(3) organization (its application is pending with the Internal
Revenue Service), the TMA is currently operating as a program of SVCF. SVCF holds and
administers a fund restricted to specific charitable purposes and has legal discretion and control
over the restricted account. When the TMA receives its formal 501(c)(3) status (anticipated to
occur in three to six months), the SVCF will cease to be the organization’s program sponsor and
will no longer need to be a party to the agreement. Instead, the SVCF will simply act as the
TMA’s fiscal agent.
The City has provided funding for SOV commute trip reduction pilot projects since the TMA was
formed. The City provided $100,000 in initial funding in FY16 under the original tri-party
funding agreement between the City of Palo Alto, the Silicon Valley Community Foundation,
and the Palo Alto Transportation Management Association. In February 2017, the City Council
City of Palo Alto Page 3
authorized the City Manager to amend the funding agreement to provide an additional
$100,000 in funding from the City in FY2017 and in FY2018, for a total additional amount of
$200,000 over the two years (see City Manager Report 7704 at
http://www.cityofpaloalto.org/civicax/filebank/blobdload.aspx?BlobID=55797). The City has
provided the amount for FY2017, but not FY2018.
The City’s contract with Moore Iacofano Goltsman, Inc. will be exhausted shortly and the
PATMA is currently seeking to hire a permanent (part time) staff.
Discussion
At its June 27, 2017 meeting, City Council approved an increase to the downtown garage and
lot parking permit fees to add revenue to the University Avenue Parking Fund and support SOV
commute trip reduction activities of the PATMA with dedicated funding to the TMA of $480,000
for FY2018. With this funding, the PATMA has estimated that they could shift up to 750 people
to non-SOV modes, thereby achieving a 14% reduction in SOV commute trips (below the
baseline of 5,500 identified in the benchmark survey) by the end of calendar year 2018.
With the recommended action, staff is requesting that City Council authorize the City Manager
or his designee to execute an amended and restated tri-party funding agreement to provide a
total of $480,000 in funding in FY2018. Under the terms of the agreement, the funding would
be used for pilot SOV commute trip reduction pilot projects approved by the City Manager and
the TMA would be required to report on their progress quarterly. Up to 30% of the funds could
be used for TMA administration and the City Manager would have the authority to amend the
contract in FY19 and FY20 if the City Council budgets additional funding for the TMA in those
budget years.
For background on the TMA and a press release regarding their 2017 Downtown Palo Alto
employee survey, see the TMA website at: www.paloaltotma.org and:
www.paloaltotma.org/wp-content/uploads/2017/08/PATMA-Press-Release-Survey.pdf.
The 2017 Downtown Palo Alto Mode Share Survey summary is included as Attachment B and is
one of two ways that the TMA has been measuring its effectiveness. In addition to this
statistically valid survey, the TMA tracks the transit passes it distributes and commuter
participation in a variety of other programs. A representative of the TMA will provide an oral
summary/presentation.
Policy Implications
The support of the Palo Alto TMA is consistent with the following Comprehensive Plan Policies:
Goal T-1: Less Reliance on Single-Occupant Vehicles
Policy T-3: Support the development and expansion of comprehensive, effective
City of Palo Alto Page 4
programs to reduce auto use at both local and regional levels.
Resource Impact
Staff is requesting approval of an amended and restated tri-party funding agreement to provide
the TMA with access to $480,000 in funding included in the adopted Fiscal Year 2018 budget.
This action is to be funded through the University Avenue Parking Fund through increases in
parking permit rates that went into effect on July 1, 2017, thereby avoiding a General Fund
subsidy for this activity. Future funding needs will be brought forth as part of the annual budget
process subject to Council approval.
Environmental Review
The requested action is exempt from review under the California Environmental Quality Act
(CEQA) since it can be seen with certainty that there is no possibility of a significant impact on
the environment (State CEQA Guidelines Section 15061(b)(3)).
Attachments:
Attachment A - TMA Funding Agreement September 2017 (PDF)
Attachment B - PATMA 2017 Downtown Employee Survey Results (PDF)
TMA Funding Agreement
September 2017 1
AMENDED AND RESTATED AGREEMENT AMONG CITY OF PALO ALTO, SILICON VALLEY COMMUNITY FOUNDATION
AND THE PALO ALTO TRANSPORTATION MANAGEMENT ASSOCIATION TO
PROVIDE FUNDING FOR TRANSPORTATION DEMAND MANAGEMENT SERVICES FOR PALO ALTO TRANSPORTATION MANAGEMENT ASSOCIATION
This Amended and Restated Agreement to provide funding for transportation demand
management services (this "Agreement"), initially executed as of June 20, 2016 (the “Effective
Date”), as fully amended and restated as of September ____, 2017, is made and entered by and
between the City of Palo Alto, a California chartered municipal corporation (“City”), the Palo Alto Transportation Management Association, a California nonprofit public benefit corporation (“PATMA”), and Silicon Valley Community Foundation, a California nonprofit public benefit
corporation ("SVCF"), on the following terms and conditions.
RECITALS
1. Since 2013, the City has been actively engaged in developing Transportation Demand Management (TDM) strategies to encourage alternatives to solo driving to address Palo Alto’s
growing traffic and parking concerns.
2. The City engaged Moore Iacofano Goltsman, Incorporated (“MIG”), a consultant
group with significant experience designing Bay Area Transportation Management Associations
(TMA’s), to assist in forming a TMA. The Palo Alto Transportation Management Association (PATMA) was incorporated on January 1, 2016.
3. The City has an interest in the success of the PATMA, and made funding available for
technical support during the start-up phase of the organization using the funds set aside for the
MIG contract. The City has also provided funding for a survey of Downtown employee
commute patterns in each of the last several years.
4. SVCF and PATMA have entered into that certain Customized Philanthropy Services
Agreement (the “CPS Agreement”), pursuant to which SVCF holds and administers a fund
restricted to specific charitable purposes set forth in such agreement (“Restricted Account”). The
PATMA is presently a program of the SVCF and SVCF has legal discretion and control over the
Restricted Account.
5. The PATMA intends to seek funding from public and private foundations, private
businesses, public agencies and other financial supporters.
6. The mission statement of the PATMA is to reduce single occupancy vehicle (SOV)
trips, traffic congestion and demand for parking by delivering targeted transportation solutions to
the Downtown area’s diverse range of employers, employees, visitors and residents. The PATMA also serves as a one-stop transportation information resource, and is an active voice in
local and regional transportation issues. While the primary focus of the PATMA is the
Downtown population whose travel choices have the highest impacts, its programs and services
may ultimately extend beyond these constituents.
TMA Funding Agreement
September 2017 2
7. On June 20, 2016, the City entered into an agreement with PATMA and SVCF to
provide $100,000 in funding for pilot programs of the PATMA aimed at testing the effectiveness
of PATMA incentives and programs to reduce commuting to Downtown by SOVs (“Original
Funding Agreement”). The City, PATMA and SVCF are collectively referred to herein as the “Parties”.
8. On February 13, 2017, the Parties amended the Original Funding Agreement providing
for an additional $200,000 in funding from the City to PATMA over two years, with half paid in
FY 2017 and the balance paid in FY 2018. The City has to-date provided $100,000 under the
Original Funding Agreement and $100,000 under the amendment.
9. The PATMA pilot programs have been successful on a small scale, providing transit
passes to 100 low-income workers per month and encouraging carpool use by other workers, for
an estimated reduction of SOV commute trips by 8% below the 2015 baseline of 5,500.
10. The City and the PATMA wish to elevate the profile of the PATMA over the next
year and expand its programs to achieve a greater reduction in SOV commute trips. To this end, the PATMA is seeking a new executive director and the City has budgeted additional funding for
PATMA programs.
11. This Agreement amends and restates the Original Funding Agreement, as amended,
in its entirety. The Parties agree to enter into this Amended and Restated Funding Agreement to
provide additional funding to support the development and facilitate the effectiveness of the PATMA, through the expansion of pilot programs to reduce SOV trips by downtown workers in
Palo Alto, and to establish terms and conditions for the use of these funds.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the Parties hereby agree as follows:
1. Recitals. The recitals set forth above are true and correct and are hereby incorporated into this
Agreement in their entirety.
2. Term and Termination. The term of this Agreement shall be from the Effective Date
through July 1, 2020.
This Agreement may be terminated by the City, PATMA or SVCF by providing at least thirty (30) days’ notice to all Parties. Within six (6) months of termination, SVCF shall return to the
City any funds paid by the City that remain unexpended as of the date of termination.
3. City Deposit. The City shall transfer the sum of $680,000 (“City Funds”) to SVCF, to be
deposited into the Restricted Account for use for the purposes described in this Agreement. The
Parties acknowledge and agree that the City has transferred the sum of $200,000 to SVCF ($100,000 in June 2016 and $100,000 in July 2017), leaving $480,000 to be transferred
subsequent to the full execution of this Amended and Restated Agreement.
TMA Funding Agreement
September 2017 3
The City shall transfer the sum of $480,000 to SVCF, to be deposited into the Restricted Account
for use for the purposes described in this Agreement. The City shall transfer a quarter of the
remaining City Funds in the amount of $120,000 on a quarterly basis during the first year
following full execution of this Amended and Restated Agreement (2017-2018), upon receipt of an invoice submitted quarterly by PATMA.
City may transfer additional funds for the final two years of the Agreement subject to the
appropriation of funds by the City Council through City’s annual budget process. Should
additional funds be appropriated, the parties will amend this Agreement prior to any transfer of
funds to SVCF. The City Manager will be authorized to execute such an amendment for City.
4. Use of City Funds. SVCF shall hold and administer the City Funds pursuant to the terms of
the Restricted Account. SVCF and PATMA shall use the City Funds for the general purposes of
the Restricted Account, as defined in the CPS Agreement, as further restricted for “pilot
projects” intended to reduce single occupancy vehicle trips by downtown workers, as mutually
agreed upon by the City Manager and PATMA. Pilot projects may include purchase and distribution of transit passes, support for carpooling, and other measures to address first mile and
last mile connections. If PATMA uses City Funds to purchase transit passes to give away free-
of-charge, the free transit passes shall be provided solely to low income workers.
SVCF shall track the City Funds separately from other amounts held in the Restricted Account.
5. Strategic Plan and Budget. Within 90 days of the full execution of this Amended and Restated Agreement or with its first quarterly invoice, whichever occurs first, and annually
thereafter, PATMA shall provide a detailed, updated strategic plan and budget to the City. The
strategic plan may utilize scenarios to illustrate the return on investment associated with different
funding levels. The strategic plan shall identify the pilot projects proposed to be funded with the
City Funds for the City Manager’s review and approval.
6. Reporting Requirement. PATMA shall provide the City Council with quarterly written
reports on the implementation and effectiveness of pilot programs funded by the City, including
quantitative measures of SOV trip reduction and mode shift achieved, metrics used, cost per
employee mode shift, and how the City Funds were expended. PATMA shall submit the reports
at the same time that PATMA or SVCP submits the quarterly invoice to the City.
7. Survey. PATMA shall conduct a statistically valid survey of Downtown employee commute
patterns on an annual basis. PATMA shall submit the survey results and report to the City by
July of each year.
8. Public Meeting Requirement. The funding is expressly contingent on PATMA’s agreement
to provide 72 hours written advance notice to the public of all Board of Director meetings and to allow members of the public to attend all such Board of Director meetings.
9. Work Product. PATMA shall ensure any written document or other work product developed
with funds received through this Agreement is made available to the public to the extent not
otherwise prohibited by law.
TMA Funding Agreement
September 2017 4
10. Audits. PATMA and SVCF will make available all financial records related to the funds and
the use of the funds during the term of this Agreement and for three (3) years thereafter. PATMA
and SVCF further agree to maintain and retain such records for at least three (3) years after the
expiration or earlier termination of this Agreement.
11. Indemnity. To the fullest extent permitted by law, PATMA shall protect, indemnify, defend and hold harmless CITY and its Council members, SVCF, and each of the City’s and SVCF’s
officers, employees and agents (each an “Indemnified Party”) from and against any and all
demands, claims, or liability of any nature, including death or injury to any person, property
damage or any other loss, including all costs and expenses of whatever nature including attorney’s fees, experts fees, court costs and disbursements (“Claims”) resulting from, arising out of or in any manner related to performance or nonperformance by PATMA, its officers,
employees, agents or contractors under this Agreement, regardless of whether or not it is caused
in part by an Indemnified Party.
Notwithstanding the above, nothing in this section shall be construed to require PATMA to indemnify an Indemnified Party from Claims arising from the active negligence, sole negligence
or willful misconduct of an Indemnified Party.
The provisions of this section shall survive the expiration or early termination of this Agreement.
12. Insurance. PATMA, at its sole cost and expense, shall obtain and maintain, in full force and
effect during the term of this Agreement, the insurance coverage described in Exhibit "A". PATMA and its contractors, if any, shall obtain a policy endorsement naming CITY as an
additional insured under any general liability or automobile policy or policies.
All insurance coverage required hereunder shall be provided through carriers with AM Best’s
Key Rating Guide ratings of A-:VII or higher which are licensed or authorized to transact
insurance business in the State of California. Any and all contractors of PATMA retained to perform Services under this Agreement will obtain and maintain, in full force and effect during
the term of this Agreement, identical insurance coverage, naming CITY as an additional insured
under such policies as required above.
13. Other Provisions:
(a) Strategic Planning Session. PATMA shall conduct a strategic planning session within 90 days of the date of the full execution of this Amended and Restated Agreement, and annually
thereafter, producing 3-year goals and objectives and funding requirements, and a budget with
projected metrics (cost per mode shift, ROI, etc.).
(b) Business Registry Data. The City may elect to share certain data from its Business Registry
with PATMA for PATMA’s exclusive use in program development and marketing. PATMA agrees not to share any non-public data with others and will take all necessary steps to ensure the
continued confidentiality of any such non-public data.
TMA Funding Agreement
September 2017 5
(c) Performance Monitoring. The City may implement its own performance monitoring of City
funded programs to determine effectiveness of provided funds.
(d) Additional Use Restrictions. The City Funds will not be used for anything other than project
management and program costs of the agreed to projects until the funds are expired. Up to thirty percent (30%) of City Funds provided may be used for administration costs and purposes.
(e) Board Members. The City may request that the PATMA Board be expanded to include
additional members, possibly including residents and additional City representation.
(f) Fundraising. PATMA shall undertake significant efforts to raise funds from sources other
than the City, including but not limited to membership fees, grants and donations, to implement programs to achieve reductions in SOV commute trips by downtown workers in Palo Alto. The
parties expect that, assuming City funding remains constant over the term of the Agreement
(which it may not), the amounts raised from other funding sources will represent a
proportionately greater share of the PATMA’s total funding in the final two years of this
Agreement.
14. Notices.
All notices hereunder will be given in writing and mailed, postage prepaid, by certified mail,
addressed as follows:
To CITY:
Office of the City Clerk
City of Palo Alto
Post Office Box 10250
Palo Alto, CA 94303
With a copy to the Purchasing Manager
To PATMA:
Palo Alto Transportation Management Association
Attn: Wendy Silvani 791 Mandana Blvd.
Oakland, CA 94610
To SVCF:
Silicon Valley Community Foundation
Attn: Michelle Fries on behalf of PATMA, Fund #5495
2440 West El Camino Real, Suite 300
Mountain View, CA 94040
TMA Funding Agreement
September 2017 6
15. Authority to Bind. The individuals executing this Agreement represent and warrant that
they have the legal capacity and authority to do so on behalf of their respective legal entities.
16. Counterpart Signatures. This Agreement may be signed in multiple counterparts, which
shall, when executed by all the parties, constitute a single binding agreement.
17. Waiver. No delay or omission by either party to exercise any right occurring upon any
noncompliance or default by the other party with respect to any of the terms of this Agreement
shall impair any such right or power or be construed as a waiver thereof. A waiver by either of
the parties of any of the covenants, conditions or agreements to be performed by the other party
shall not be construed to be a waiver of any succeeding breach thereof or of any covenant, condition or agreement herein contained.
18. Applicable Law. This Agreement will be governed by the laws of the State of California.
19. Venue. In the event that an action is brought, the parties agree that trial of such action will be
vested exclusively in the state courts of California in the County of Santa Clara, State of
California.
20. Amendments. This document represents the entire and integrated agreement between the
parties and supersedes all prior negotiations, representations, and contracts, either written or oral.
This document may be amended only by a written instrument, which is signed by the parties.
21. Severability. If a court of competent jurisdiction finds or rules that any provision of this
Agreement or any amendment thereto is void or unenforceable, the unaffected provisions of this Agreement and any amendments thereto will remain in full force and effect.
[Signatures appear on the following page]
TMA Funding Agreement
September 2017 7
IN WITNESS WHEREOF, the Parties have executed this Agreement the day and year first
written above.
PALO ALTO TRANSPORTATION MANAGEMENT ASSOCIATION:
________________________________ Robert George
Chair, Palo Alto TMA
SILICON VALLEY COMMUNITY FOUNDATION:
________________________________ Mari Ellen Loijens Chief Business, Development and Brand Officer
CITY OF PALO ALTO: _______________________________
James Keene
City Manager
APPROVED AS TO FORM:
______________________________
Assistant City Attorney
TMA Funding Agreement
September 2017 8
EXHIBIT “A” INSURANCE REQUIREMENTS
CONTRACTORS TO THE CITY OF PALO ALTO (CITY), AT THEIR SOLE EXPENSE, SHALL FOR THE TERM OF THE CONTRACT OBTAIN AND MAINTAIN INSURANCE IN THE AMOUNTS FOR THE COVERAGE SPECIFIED BELOW, AFFORDED BY COMPANIES WITH AM BEST’S KEY RATING OF A-:VII, OR HIGHER, LICENSED OR AUTHORIZED TO TRANSACT INSURANCE BUSINESS IN THE STATE OF CALIFORNIA. AWARD IS CONTINGENT ON COMPLIANCE WITH CITY’S INSURANCE REQUIREMENTS, AS SPECIFIED, BELOW:
REQUIRE
D TYPE OF COVERAGE REQUIREMENT
MINIMUM LIMITS
EACH
OCCURRENCE AGGREGATE
YES YES
WORKER’S COMPENSATION
EMPLOYER’S LIABILITY
STATUTORY
STATUTORY
YES GENERAL LIABILITY, INCLUDING PERSONAL INJURY, BROAD FORM PROPERTY DAMAGE BLANKET
CONTRACTUAL, AND FIRE LEGAL LIABILITY
BODILY INJURY PROPERTY DAMAGE
BODILY INJURY & PROPERTY DAMAGE COMBINED.
$1,000,000 $1,000,000
$1,000,000
$1,000,000 $1,000,000
$1,000,000
YES AUTOMOBILE LIABILITY, INCLUDING ALL OWNED, HIRED, NON-OWNED
BODILY INJURY
- EACH PERSON - EACH OCCURRENCE PROPERTY DAMAGE BODILY INJURY AND PROPERTY DAMAGE, COMBINED
$1,000,000
$1,000,000 $1,000,000 $1,000,000 $1,000,000
$1,000,000
$1,000,000 $1,000,000 $1,000,000 $1,000,000
YES
PROFESSIONAL LIABILITY, INCLUDING, ERRORS AND OMISSIONS, MALPRACTICE (WHEN APPLICABLE), AND NEGLIGENT PERFORMANCE
ALL DAMAGES $1,000,000 YES THE CITY OF PALO ALTO IS TO BE NAMED AS AN ADDITIONAL INSURED: CONTRACTOR, AT ITS SOLE COST AND EXPENSE, SHALL OBTAIN AND MAINTAIN, IN FULL FORCE AND EFFECT THROUGHOUT THE ENTIRE TERM OF ANY RESULTANT AGREEMENT, THE INSURANCE COVERAGE HEREIN DESCRIBED, INSURING NOT ONLY CONTRACTOR AND ITS SUBCONSULTANTS, IF ANY, BUT ALSO, WITH THE EXCEPTION OF WORKERS’ COMPENSATION, EMPLOYER’S LIABILITY AND PROFESSIONAL INSURANCE, NAMING AS ADDITIONAL INSUREDS CITY, ITS COUNCIL MEMBERS, OFFICERS, AGENTS, AND EMPLOYEES.
I. INSURANCE COVERAGE MUST INCLUDE: A. A PROVISION FOR A WRITTEN THIRTY (30) DAY ADVANCE NOTICE TO CITY OF CHANGE IN
COVERAGE OR OF COVERAGE CANCELLATION; AND B. A CONTRACTUAL LIABILITY ENDORSEMENT PROVIDING INSURANCE COVERAGE FOR
CONTRACTOR’S AGREEMENT TO INDEMNIFY CITY. C. DEDUCTIBLE AMOUNTS IN EXCESS OF $5,000 REQUIRE CITY’S PRIOR APPROVAL. II. CONTACTOR MUST SUBMIT CERTIFICATES(S) OF INSURANCE EVIDENCING REQUIRED COVERAGE.
III. ENDORSEMENT PROVISIONS, WITH RESPECT TO THE INSURANCE AFFORDED TO “ADDITIONAL INSUREDS”
A. PRIMARY COVERAGE
WITH RESPECT TO CLAIMS ARISING OUT OF THE OPERATIONS OF THE NAMED INSURED, INSURANCE AS AFFORDED BY THIS POLICY IS PRIMARY AND IS NOT ADDITIONAL TO OR CONTRIBUTING WITH ANY OTHER INSURANCE CARRIED BY OR FOR THE BENEFIT OF THE ADDITIONAL INSUREDS.
TMA Funding Agreement
September 2017 9
B. CROSS LIABILITY THE NAMING OF MORE THAN ONE PERSON, FIRM, OR CORPORATION AS INSUREDS UNDER THE POLICY SHALL
NOT, FOR THAT REASON ALONE, EXTINGUISH ANY RIGHTS OF THE INSURED AGAINST ANOTHER, BUT THIS ENDORSEMENT, AND THE NAMING OF MULTIPLE INSUREDS, SHALL NOT INCREASE THE TOTAL LIABILITY OF THE COMPANY UNDER THIS POLICY.
C. NOTICE OF CANCELLATION
1. IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR ANY REASON OTHER THAN THE NON-PAYMENT OF PREMIUM, THE ISSUING COMPANY SHALL PROVIDE CITY AT LEAST A THIRTY (30) DAY WRITTEN NOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION.
2. IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR THE NON-PAYMENT OF PREMIUM, THE ISSUING COMPANY SHALL PROVIDE CITY AT LEAST A TEN (10) DAY WRITTEN NOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION.
NOTICES SHALL BE MAILED TO:
PURCHASING AND CONTRACT ADMINISTRATION CITY OF PALO ALTO P.O. BOX 10250 PALO ALTO, CA 94303
Downtown Palo Alto
Mode Share Survey
June 2017
17-6393 Palo Alto TMA | 2
The survey methodology of the 2017 mode share survey follows the same approach as the
2016 and 2015 mode share surveys.
892 surveys were conducted with employees at businesses located within an area of
Downtown Palo Alto bound by El Camino Real, Webster Street, Everett Avenue, and Forest
Avenue.
A random sample of worksites was pulled by worksite size, including small, medium and large
businesses. Sampled worksites were contacted directly to identify and recruit an onsite survey
coordinator who distributed the surveys to all employees at their respective worksites.
Surveys were conducted online, by phone, and by paper formats. Upon request, paper
surveys were offered in Spanish.
Data collection began May 11th and ended the week of June 26th. Each respondent was asked
commute mode questions for one calendar week previous to the date on which they took the
survey.
Where applicable, results are compared to the Downtown Palo Alto survey conducted in 2016
among 829 employees and in 2015 among 1,173 employees.
Methodology
17-6393 Palo Alto TMA | 3
Downtown Palo Alto
For this study, Downtown Palo Alto was defined as the area bound by El Camino Real,
Webster Street, Everett Avenue, and Forest Avenue.
17-6393 Palo Alto TMA | 4
Home Regions
Survey respondents were categorized into home regions based on zip code data.
2015 2016 2017
Region % %%
San Francisco 10%10%8%
Peninsula 20%26%23%
South Bay 33%26%33%
Palo Alto 22%19%17%
East Bay 7%10%10%
Else 8%9%9%
17-6393 Palo Alto TMA | 5
The 2017 survey data shows that focusing on service and light
office workers and providing transportation benefits is making
an impact.
Parking permits encourage SOV trips. If parking permits
become less accessible, commuters may be motivated to look
for commute alternatives.
Ridesharing is emerging as a more popular commute mode.
Additionally, more SOV commuters are willing to carpool or
vanpool to work if it was convenient, safe, and easy to find
someone to carpool with.
Overall Key Findings
Mode Share
17-6393 Palo Alto TMA | 7
To collect commute mode share data, respondents were asked –“Last week,
what mode of transportation did you use each day to commute to downtown
Palo Alto?”
Respondents chose one mode of transportation per day. If the respondent used
multiple modes, they were asked to mark the mode that covered the longest
distance of their trip.
For this report, transportation modes were grouped into the following
categories:
Mode Share Overview
Category Commute mode options provided
Drove alone Drove alone, Motorcycle/Moped
Transit Caltrain, VTA,SamTrans,Stanford Marguerite Shuttle, Palo Alto Shuttles,
AC Transit, Company-sponsored shuttle
Walk/Bike Walked, Rode a bicycle
Rideshare Carpooled (1 or more family/friends), Carpooled (through service like Scoop
or Karma or an employer match system), Lyft, Uber/rideshare service
Other Worked remotely, Other
17-6393 Palo Alto TMA | 8
57%56%53%
18%18%20%15%15%12%
5%6%8%5%5%7%
2015 2016 2017 2015 2016 2017 2015 2016 2017 2015 2016 2017 2015 2016 2017
Drove alone Transit Walk/Bike Rideshare Other
Mode Share Overall
In 2017, commuters driving alone has decreased, use of transit has increased slightly, and
rideshare has increased.
To compare overall mode share over time for all three surveys, datasets are weighted so that worksite type and
worksite size is held constant.
Q1. Last week, what mode of transportation did you use each day to commute TO downtown Palo Alto?
In 2017, 53% of all trips taken in the previous week
were workers driving alone.
Worksite Type
17-6393 Palo Alto TMA | 10
Worksites in downtown Palo Alto can be grouped into 4 general categories:
In 2015 and 2016, surveys found that those working in service and light
office worksites have the highest SOV rates, followed by government
workers.
The 2017 data shows that service worksites had the largest reduction in
SOV rates, decreasing from 80% to 70%. Increased use of transit and
ridesharing are responsible for the decrease.
Worksite Type Key Findings
Category % of Sample Description
Government 13%Work for the City of Palo Alto
Technology 28%Work in a tech related industry
Service 30%Work in restaurants, retail, lodging, salons, etc.
Light Office 29%Work for a law firm, insurance, realtor, eye care, dentist, etc.
17-6393 Palo Alto TMA | 11
Mode Share by Worksite Type
54%
30%
70%69%
23%
30%
10%13%
4%
23%
6%4%9%6%11%9%10%11%
3%6%
Government
(13%)
Technology
(28%)
Service
(30%)
Light office
(29%)
Drove alone Transit Walk/Bike Rideshare Other
Those working in service and light office worksites report the highest SOV rates, followed
by government. Technology worksites continue to have the lowest SOV rates. Technology
and government workers report the highest use of transit.
Numbers in parentheses represent the percentage of the sample for each respective subgroup.
Q1. Last week, what mode of transportation did you use each day to commute TO downtown Palo Alto?
17-6393 Palo Alto TMA | 12
59%57%54%
22%24%23%
6%7%4%7%4%9%7%8%10%
2015 2016 2017 2015 2016 2017 2015 2016 2017 2015 2016 2017 2015 2016 2017
Drove alone Transit Walk/Bike Rideshare Other
Mode Share Among Government Workers
Since 2015, SOV trips among government workers have steadily decreased and use of
ridesharing has increased.
Q1. Last week, what mode of transportation did you use each day to commute TO downtown Palo Alto?
Among Government Workers
%’s reflect the total amount of trips taken during the week
17-6393 Palo Alto TMA | 13
33%
26%30%31%31%30%26%28%23%
4%8%6%7%7%11%
2015 2016 2017 2015 2016 2017 2015 2016 2017 2015 2016 2017 2015 2016 2017
Drove alone Transit Walk/Bike Rideshare Other
Mode Share Among Technology Workers
SOV trips among technology workers have fluctuated since 2015 but remain low at 30%
and use of transit has remained high at 30%.
Q1. Last week, what mode of transportation did you use each day to commute TO downtown Palo Alto?
%’s reflect the total amount of trips taken during the week
Among Technology Workers
17-6393 Palo Alto TMA | 14
74%80%
70%
9%4%10%6%10%6%6%4%11%5%2%3%
2015 2016 2017 2015 2016 2017 2015 2016 2017 2015 2016 2017 2015 2016 2017
Drove alone Transit Walk/Bike Rideshare Other
Mode Share Among Service Workers
Compared to 2016, SOV trips among service workers are down 10 percentage points and
transit trips have increased by 6 percentage points and rideshare trips by 7 points.
Q1. Last week, what mode of transportation did you use each day to commute TO downtown Palo Alto?
%’s reflect the total amount of trips taken during the week
Among Service Workers
17-6393 Palo Alto TMA | 15
69%74%69%
10%14%13%12%
3%4%4%4%9%5%5%6%
2015 2016 2017 2015 2016 2017 2015 2016 2017 2015 2016 2017 2015 2016 2017
Drove alone Transit Walk/Bike Rideshare Other
Mode Share Among Light Office Workers
Most workers in a light office environment report driving alone to commute to work.
However, compared to 2016, the total share of SOV trips has dropped 5 points and use of
ridesharing has doubled.
Q1. Last week, what mode of transportation did you use each day to commute TO downtown Palo Alto?
%’s reflect the total amount of trips taken during the week
Among Light Office Workers
Transit Benefits
17-6393 Palo Alto TMA | 17
Providing workers with transit benefits like a discounted
transit pass or a contribution towards transit significantly
decreases SOV rates.
Transit benefits are most common among government and
technology worksites and are much lower among service and
light office worksites.
If transit benefits are able to reach those in the service and
light office worksites, SOV trips may continue to decrease.
Transit Benefits Key Findings
17-6393 Palo Alto TMA | 18
Transit Benefits Received
About a third of workers in downtown Palo Alto receive a transit subsidy like a discounted
transit pass or a contribution towards transit use. Among those that do receive transit
benefits, most receive a single benefit, as opposed to multiple benefits.
Q4. Do you receive…
32%
19%
7%
54%
Receives transit
subsidies
Information about
commute alternatives
Receives pre-tax payroll
deduction for transportation
Receives no
transit benefits
Do you receive any of the following?
(Multiple answers accepted)
54%
37%
7%
2%
Receives no benefits
Receives 1 benefit
Receives 2 benefits
Receives 3 benefits
Number of benefits received
17-6393 Palo Alto TMA | 19
Transit Benefits by Worksite Type
Government and technology workers receive the most transit benefits.
Q4. Do you receive…
(Multiple answers accepted)
49%
66%
8%
17%
44%
20%14%11%14%9%
1%7%
24%24%
78%
71%
Government
(13%)
Technology
(28%)
Service
(30%)
Light office
(29%)
Transit
subsidies
Information
about commute
alternatives
Pre-tax
payroll deduction
for transportation
No
transit benefits
17-6393 Palo Alto TMA | 20
Mode Share by Benefits Received
27%
65%
36%
70%
42%
8%
32%
7%
15%
9%6%9%5%10%
17%
10%10%8%9%5%
Receives transit
subsidies
(32%)
Receives information
about commute
alternatives
(19%)
Receives pre-tax payroll
deduction for
transportation
(7%)
No transit
benefits
(54%)
Drove alone Transit Walk/Bike Rideshare Other
Receiving transit subsidies and/or pre-tax payroll deductions for transportation results in
significantly lower SOV rates and higher transit rates. SOV rates are high among those
that do not receive any transit benefits.
Numbers in parentheses represent the percentage of the sample for each respective subgroup.
Q1. Last week, what mode of transportation did you use each day to commute TO downtown Palo Alto?
Parking Permits
17-6393 Palo Alto TMA | 22
About a third of survey respondents (35%) have a residential
parking permit for on street parking or a permit to park in a
downtown garage.
Government workers report the highest rates of having a
parking permit –followed by light office and service workers.
SOV rates among those that have a parking permit are much
higher than the overall average.
If parking permits become more expensive, less readily
available, or otherwise harder to secure, commuters will likely
explore other commute alternatives.
Parking Permit Key Findings
17-6393 Palo Alto TMA | 23
Parking Permits
About a third of workers in downtown Palo Alto have a residential parking permit for on
street parking or to park in a garage.
Q6. Do you have a Residential Parking Permit for on-street parking or a permit to park in a
Downtown garage?
35%
47%
18%
Has a parking permit
Do not have a parking
permit/Don't know
Don't drive to work
17-6393 Palo Alto TMA | 24
49%
22%
34%
41%40%42%
53%50%
11%
35%
13%9%
Government
(13%)
Technology
(28%)
Service
(30%)
Light office
(29%)
Has a
parking permit
Does not have a
parking permit/
Don't know
Doesn't drive
to work
Parking Permits by Worksite Type
Government and light office workers are most likely to have parking permits; technology
workers are the least likely to have parking permits.
Q6. Do you have a Residential Parking Permit for on-street parking or a permit to park in a
Downtown garage?
17-6393 Palo Alto TMA | 25
Mode Share by Parking Permit Ownership
75%
65%
0%
8%13%
49%
4%6%
32%
6%10%9%6%6%9%
Has a
parking permit
(35%)
Does not have a parking
permit/Don't know
(47%)
Doesn't drive
to work
(18%)
Drove alone Transit Walk/Bike Rideshare Other
Parking permit holders have the highest SOV rates.
Numbers in parentheses represent the percentage of the sample for each respective subgroup.
Q1. Last week, what mode of transportation did you use each day to commute TO downtown Palo Alto?
Transportation
Attitudes
17-6393 Palo Alto TMA | 27
Driving Attitudes
Driving attitudes among SOV drivers are similar to attitudes seen in 2016 –with many
agreeing that they prefer to drive to work and/or that they need to drive to work because
they need to make other stops for school, kids, or errands.
Q11-28. Please indicate whether you strongly agree, somewhat agree, somewhat disagree,
or strongly disagree with each of the following statements.
73%
66%
48%
45%
72%
68%
46%
51%
67%
60%
50%
44%
I prefer to drive to
work and plan on continuing
to do so.
I need to drive to work because
I make other stops (school, kids, errands)
before or after work.
I would rather not
drive to work, but I have
no other good options.
I need to drive to work because
I use my car for meetings, deliveries,
or other work-related tasks.
2017
2016
2015
Do you agree or disagree with the following?
(% Agree)
Among SOV drivers only
2017: 590n
2016: 772n
2015: 539n
17-6393 Palo Alto TMA | 28
Transit Attitudes
SOV drivers may be more open to taking transit to work compared to previous years.
More agree that they would take transit if certain conditions were better, like faster
service, or if it was easier to get to a transit stop.
Q11-28. Please indicate whether you strongly agree, somewhat agree, somewhat disagree,
or strongly disagree with each of the following statements.
53%
48%
47%
38%
37%
36%
45%
36%
42%
31%
29%
31%
47%
43%
46%
38%
I would take transit to work if the service was
faster or more frequent.
I would take transit to work if it was easier to
get to a transit stop.
I would take transit to work if the schedule was
better and it ran when I needed it.
I would take transit to work if it was less
expensive or I was given a discounted transit
pass.
I would take transit if parking at transit was less
expensive.
I would take transit if parking at transit stops
was available.
2017
2016
2015
Do you agree or disagree with the following?
(% Agree)
Among SOV drivers only
2017: 590n
2016: 772n
2015: 539n
17-6393 Palo Alto TMA | 29
Transit Attitudes by Worksite Type
Nearly half of service workers who drive alone indicate they would take transit to work if
it was less expensive or were given a discounted pass.
Q11-28. Please indicate whether you strongly agree, somewhat agree, somewhat disagree, or
strongly disagree with each of the following statements. Among SOV drivers only, 2017: 590n
40%
27%
47%
36%
27%
32%
26%
40%
33%
41%
26%24%
Government
(13%)
Technology
(28%)
Service
(30%)
Light office
(29%)
Agree Disagree Don't know/Does not apply
Agree/Disagree: I would take transit to work if it was less
expensive or I was given a discounted transit pass.
17-6393 Palo Alto TMA | 30
Non-Motorized Attitudes
Among SOV drivers, attitudes towards non-motorized commute options have remained
consistent since 2015. About a quarter of SOV drivers would be motivated to walk or bike
if there were better paths, trails, and sidewalks.
Q11-28. Please indicate whether you strongly agree, somewhat agree, somewhat disagree,
or strongly disagree with each of the following statements.
26%
16%
13%
24%
16%
24%
18%
I would walk or bike to work if there
were better paths, trails, and sidewalks.
I would bike to work if there was better
parking or storage options for my bike at
my work location.
I would bike to work if I had a
bicycle to use.
2017
2016
2015
Do you agree or disagree with the following?
(% Agree)
Among SOV drivers only
2017: 590n
2016: 772n
2015: 539n
17-6393 Palo Alto TMA | 31
Ridesharing Attitudes
In 2017, 3 new attitudinal questions about ridesharing were added to the survey. A little
less than half of SOV drivers agree that they would use a rideshare service if it was more
affordable and/or are willing to carpool at least some of the time.
Q11-28. Please indicate whether you strongly agree, somewhat agree, somewhat disagree,
or strongly disagree with each of the following statements.
40%
39%
38%
25%
31%
35%
I would be willing to use a ride-share
service like Lyft or Uber if it was more
affordable.
I would be willing to drive in a carpool at
least some of the time.
I would be willing to carpool or vanpool
to work if it was convenient, safe, and
easy to find someone to ride with.
I would be willing to carpool if it was
more affordable.
2017
2016
2015
Do you agree or disagree with the following?
(% Agree)
Among SOV drivers only
2017: 590n
2016: 772n
2015: 539n
17-6393 Palo Alto TMA | 32
Interest in Learning Commuter Options
Many SOV drivers are interested in learning more about commuting options and
incentives.
Q11-28. Please indicate whether you strongly agree, somewhat agree, somewhat disagree,
or strongly disagree with each of the following statements.
43%
40%
I am interested in learning more about
commuting options and incentives that
may be available to me.
2017
2016
Do you agree or disagree with the following?
(% Agree)
Among SOV drivers only
2017: 590n
2016: 772n
2015: 539n
17-6393 Palo Alto TMA | 33
Reasons for NOT Taking Transit –Top Mentions
Among SOV drivers, reasons for not taking transit have fluctuated since 2015. However,
the top reason for not taking transit has consistently been that the person needs their car
to run errands or attend meetings.
Q29. What is the main reason you do not take transit more often?
21%
18%
14%
11%
10%
8%
4%
4%
29%
15%
18%
9%
7%
9%
4%
2%
21%
16%
17%
12%
12%
5%
5%
I need my car to run errands
or attend meetings
Schedule is not convenient/
Service not available when I need it
I prefer to drive
Routes do not go where needed/
Service is not provided to the right areas
Location of stops is not convenient
Transit takes too long and/
or requires too many transfers
I take transit as often as I can/
As often as I need to
It's too expensive
2017
2016
2015
Why do you not take transit more often?
(One answer accepted, Top mentions listed)
Among SOV drivers only
2017: 590n
2016: 772n
2015: 539n
Parking
17-6393 Palo Alto TMA | 35
Parking
Since 2015, fewer drivers are parking on neighborhood streets.
Q5. Where do you typically park when you drive to work?
44%
29%
8%
7%
5%
5%
1%
2%
47%
26%
11%
9%
5%
1%
1%
40%
27%
5%
19%
5%
1%
3%
Public garage or parking lot
Private/employer garage or parking lot
In a 2- or 3-hour on-street parking zone
Neighborhood streets
I move my car throughout the day
It varies
Caltrain parking lot
Other
2017
2016
2015
Where do you typically park when you drive to work?
Among SOV drivers only
2017: 590n
2016: 772n
2015: 539n
17-6393 Palo Alto TMA | 36
Parking by Worksite Type
Among government workers, most park in a public garage or a private employer garage.
Q5. Where do you typically park when you drive to work?Among SOV drivers: 590n
55%
22%
32%
38%
26%28%
8%
36%
1%
7%
24%
5%
Government
(13%)
Technology
(28%)
Service
(30%)
Light office
(29%)
Public garage
or parking lot
Private/employer
garage or parking lot
Neighborhood
streets/2-3 hour
street park
Numbers in parentheses represent the percentage of the sample for each respective subgroup.
Where do you typically park when you drive to work?
Multiple Modes of
Transportation
17-6393 Palo Alto TMA | 38
Multiple Modes of Transportation
The percentage of commuters using multiple modes of transportation has fluctuated since
2015.
Q2. On your typical daily commute to work, do you use more than one mode of
transportation?
Do you use more than one mode of transportation to commute to work?
22%
24%
19%
2017
2016
2015
% Yes
17-6393 Palo Alto TMA | 39
Multiple Modes of Transportation
Among those who use more than one mode of transportation to commute to work, the
use of a car to arrive downtown has decreased and use of Caltrain has increased.
Q3. Which mode of transportation brings you INTO Downtown Palo Alto?
*“It varies” added as an option in 2017.
Which mode of transportation brings you into downtown Palo Alto?
67%
9%
8%
4%
4%
3%
2%
1%
63%
12%
3%
16%
3%
2%
0%
57%
23%
4%
8%
6%
0%
1%
Caltrain
Car
*It varies
Bike
Walk
Bus
Shuttle
Taxi/Uber/Lyft/Carshare/Carpool
Awareness of
Palo Alto TMA
17-6393 Palo Alto TMA | 41
Awareness of Palo Alto TMA
Awareness of the Palo Alto TMA has increased since 2016. The increase occurs among
workers who have a favorable opinion of the TMA.
Q31. Do you have a strongly favorable, somewhat favorable, somewhat unfavorable, or strongly
unfavorable opinion of the Palo Alto Transportation Management Association (TMA)? If you
have never heard of the Palo Alto TMA or heard of but can’t rate, please select that option.
22%
11%
30%
29%
39%
51%
9%
9%
2017
2016
Favorable Heard of but
cannot rate
Never
heard of
Unfavorable
What is your opinion of the Palo Alto TMA?
Mode Share
Trend Data
17-6393 Palo Alto TMA | 43
Mode Share Over Time
Employee size
1-25 26-100 101+
2015 2016 2017 2015 2016 2017 2015 2016 2017
Drove alone 74%68%66%61%78%73%41%34%38%
Transit 7%14%14%14%3%9%25%27%28%
Walk/Bike 7%6%7%12%7%4%22%23%17%
Rideshare 5%7%7%6%3%11%4%7%8%
Other 8%5%7%8%8%2%7%8%10%
Miles driven to work
<1 to 10 10 to 30 30+
2015 2016 2017 2015 2016 2017 2015 2016 2017
Drove alone 52%55%52%69%66%69%40%45%42%
Transit 6%5%8%19%20%19%39%42%38%
Walk/Bike 30%28%23%1%0%1%1%0%0%
Rideshare 4%6%10%5%5%7%5%4%6%
Other 7%7%6%6%8%5%15%9%14%
17-6393 Palo Alto TMA | 44
Mode Share Over Time
Home Geography
San Francisco Peninsula South Bay
2015 2016 2017 2015 2016 2017 2015 2016 2017
Drove alone 18%10%21%63%66%61%65%69%67%
Transit 70%74%63%16%11%12%20%16%18%
Walk/Bike 1%0%1%12%13%12%3%3%2%
Rideshare 1%3%3%3%5%8%6%7%10%
Other 10%12%13%7%5%6%6%5%4%
Home Geography
Palo Alto East Bay
2015 2016 2017 2015 2016 2017
Drove alone 41%36%44%76%79%66%
Transit 0%1%5%3%5%12%
Walk/Bike 48%47%35%0%0%2%
Rideshare 5%8%10%9%5%8%
Other 5%8%6%12%10%13%
17-6393 Palo Alto TMA | 45
Mode Share Over Time
Age
14-29 30-39 40-49
2015 2016 2017 2015 2016 2017 2015 2016 2017
Drove alone 43%36%47%51%47%50%67%69%59%
Transit 21%21%22%23%22%23%11%11%15%
Walk/Bike 26%29%18%13%15%10%7%7%4%
Rideshare 4%7%10%5%8%8%6%3%13%
Other 5%6%4%8%8%10%9%10%8%
Age
50-64 65+
2015 2016 2017 2015 2016 2017
Drove alone 68%76%72%81%69%72%
Transit 7%12%8%5%8%7%
Walk/Bike 10%4%6%5%6%11%
Rideshare 4%3%8%6%5%5%
Other 10%5%6%3%11%5%
17-6393 Palo Alto TMA | 46
Mode Share Over Time
Parents
Parent Not a parent
2015 2016 2017 2015 2016 2017
Drove alone 66%70%64%50%50%52%
Transit 11%9%12%20%19%22%
Walk/Bike 8%8%7%19%18%12%
Rideshare 7%4%11%4%7%7%
Other 8%10%6%7%7%7%
Work Schedule
Required to start at a
specific time
My work schedule is
flexible
My schedule
varies
2015 2016 2017 2015 2016 2017 2015 2016 2017
Drove alone 64%69%69%49%43%44%63%66%54%
Transit 14%15%15%20%19%21%11%11%19%
Walk/Bike 8%7%3%19%22%16%15%8%15%
Rideshare 5%3%10%5%8%8%2%6%6%
Other 9%6%4%7%8%11%8%9%6%
17-6393 Palo Alto TMA | 47
Mode Share Over Time
Job Type
Full time Part time More than one job
2015 2016 2017 2015 2016 2017 2015 2016 2017
Drove alone 53%52%54%75%69%70%66%77%65%
Transit 19%19%20%3%3%4%4%4%11%
Walk/Bike 16%15%11%8%15%9%11%10%5%
Rideshare 5%6%8%7%7%9%5%3%13%
Other 7%7%7%6%6%8%14%7%6%
Peak Hour Commuters
Yes (6-10am)No
2015 2016 2017 2015 2016 2017
Drove alone 54%52%55%57%64%67%
Transit 23%21%20%7%6%7%
Walk/Bike 11%13%11%22%17%10%
Rideshare 6%6%8%3%4%8%
Other 6%8%6%12%9%8%
17-6393 Palo Alto TMA | 48
Contact Information
Tom Patras
tom@emcresearch.com
614.827.9677
Doug MacDowell
doug@emcresearch.com
614.827.9673
City of Palo Alto (ID # 8518)
City Council Staff Report
Report Type: Inter-Governmental Legislative Affairs Meeting Date: 9/18/2017
City of Palo Alto Page 1
Summary Title: Review of letter to Caltrain Board regarding SB 797
Title: Approval of a Letter to the Caltrain Board, VTA Board, and County
Supervisors Regarding Support for SB 797 and Necessary Board Governance
Changes Allowing for Fair and Effective City Representation
From: City Manager
Lead Department: City Manager
Recommendation
Staff recommends that Council approve the draft letter from the City of Palo Alto to the
Caltrain board, the Santa Clara Valley Transportation Authority (VTA) board, and the
Santa Clara County Supervisors supporting SB 797 (Hill) and requesting governance
changes on the Caltrain and VTA boards leading to fair and effective City
representation.
Discussion
On September 5, 2017, Council discussed supporting SB 797 (Hill), a bill that, if it
becomes law would allow the various regional entities and ultimately, voters, to
increase the sales tax in 3 counties by 1/8 cent. (Item 1A). This tax increase would
become a new, stable revenue stream for Caltrain’s Modernization program, replacing
the current funding mechanism. At that meeting and after discussion, Council approved
a motion to support the bill and directed staff to return to Council with a letter to the
boards of Caltrain, VTA and the Board of Supervisors stating that our ongoing support
of SB 797 and additional funding measures for Caltrain will be dependent on timely
progress in a discussion about Caltrain governance. Today’s action is for Council to
review and approve staff’s draft letter. (ATTACHMENT A).
Timeline, Resource Impact, Policy Implications, Environmental Review (If
Applicable)
There is no resource impact associated with this action. This not a “project” under
CEQA requiring environmental review because it is an administrative governmental
activity which will not cause a direct or indirect physical change in the environment.
Attachments:
Attachment A: Final draft letter for council review
Draft – for Council review
September 19, 2017
Via email: board@caltrain.com
The Peninsula Corridor Joint Powers Board
1250 San Carlos Ave.
San Carlos, CA 94070-1306
Re: City of Palo Alto support for SB 797 (Hill)
Members of the Peninsula Corridor Joint Powers Board:
I write today to inform your Board of the Palo Alto City Council’s support of SB 797 (Hill). As you are aware, this
bill enables the creation of a new funding stream to be used for Caltrain’s operations and capital costs by
ultimately asking voters of three Bay Area counties to increase the sales tax by 1/8 cent. This new funding would
replace the revenue currently supplied by three Bay Area transportation agencies.
If passed by voters, we understand Caltrain will receive approximately $60 to $70 million annually, revenue that
will fund, in part, corridor electrification, the addition of high performance electric trains, infrastructure
improvements, and station upgrades. Such a revenue stream may help fund needed grade separation
improvements along the corridor. We are pleased to support SB 797 as our Council’s priorities include
promoting electrification initiatives and regional transportation. Additionally, as a Bay Area City that hosts two
Caltrain stations (including the second busiest in the whole system) and is impacted daily by thousands of
freeway commuters, most in single-occupancy vehicles, we support the improvement of established regional
public transportation.
At the same time that we support improvements to the Caltrain system, our Council is rightfully concerned over
the lack of effective and fair representation for our city on the governing board for Caltrain. It is our goal to
improve this gap in Caltrain governance for the benefit of its users, and make other governance changes that
will be needed to align with modernization of the Caltrain system. And while our support for SB 797 is strong,
our concern about governance reform and fair and effective representation could temper our ongoing support if
real efforts to make needed changes do not occur in parallel with the funding approval steps outlined in SB 797.
We are counting on that time being used wisely.
Our Council noted that SB 797 does not itself create a revenue stream; rather, it allows multiple bodies and
ultimately, the voters to impose one. While we expect to continue our support of this initiative, that support
hinges on the progress of your Board and the VTA board in addressing the current governance inequities.
We look forward to the modernization of Caltrain, a secure future for this critical transit corridor, and
modernization of the governing structure for Caltrain to match and ensure those objectives. We will be sharing
this letter with VTA and the Santa Clara County Board of Supervisors.
Yours,
H. Gregory Scharff,
Mayor, City of Palo Alto
Cc: Palo Alto City Council
Draft – for Council review
Palo Alto City Manager James Keene
City of Palo Alto (ID # 8408)
City Council Staff Report
Report Type: Informational Report Meeting Date: 9/18/2017
City of Palo Alto Page 1
Summary Title: Energy Risk Management Report
Title: City of Palo Alto's Energy Risk Management Report for the Third and
Fourth Quarters of Fiscal Year 2017
From: City Manager
Lead Department: Administrative Services
Recommendation
This is an informational report and no City Council action is required.
Executive Summary
Staff continues to purchase electricity and gas in compliance with the City’s Energy Risk
Management Policies, Guidelines, and Procedures. This report is based on market prices and
load and supply data as of June 30, 2017, the end of the third and fourth quarters of Fiscal Year
(FY) 2017.
The projected cost of the City’s fixed-price electricity purchases is $0.24 million lower than the
market value of that electricity as of June 30, 2017 for the 36-month period beginning July 1,
2017. In the third and fourth quarters of FY 2017 (January 1, 2017 through June 30, 2017) the
City’s credit exposure to fixed price contracts is minimal. The projected Electric Supply
Operations Reserve is above the FY 2017 minimum guideline reserve level and the projected
gas reserve is also above the FY 2017 guideline reserve level range.
There were no exceptions to the Energy Risk Management Policies, Guidelines, or Procedures
to report during the third and fourth quarters of FY 2017.
Background
The purpose of this report is to inform the Council about the status of the City’s energy
portfolio and transactions executed with energy suppliers as of the end of the third and fourth
quarters of FY 2017. The City’s Energy Risk Management Policy requires that staff report on a
quarterly basis to Council on: 1) the City’s energy portfolio; 2) the City’s credit and market risk
profile; 3) portfolio performance; and 4) other key market and risk information.
City of Palo Alto Page 2
The City’s Energy Risk Management Policy describes the management organization, authority,
and processes to monitor, measure, and control market risks. “Market risks” include price and
counterparty credit risk. These are risks that the City is exposed to on a regular basis in
procuring electric supplies and to a lesser extent for gas supplies which are purchased now at
market rates via a monthly index price. The energy risk management section is located in the
Treasury Division of the Administrative Services Department. Its role is to monitor and mitigate
these risks.
This third and fourth quarters FY 2017 energy risk management report contains information on
the following:
Electric Supplies
Hydroelectricity
Fixed-Price Forward Electricity Purchases
Gas Supplies
Credit Risk
Electric Forward Mark-to-Market Values
Electric and Gas Supply Operations Reserves Adequacy
Exceptions to Energy Risk Management Policies, Guidelines, or Procedures
Discussion
Electric Supplies
In order to serve the City’s electric supply demands, the City obtains electricity from:
hydroelectric resources (from Western and Calaveras Hydroelectric Projects); long-term
renewable energy contracts (from landfill gas converted to electricity, wind, and solar projects);
wholesale purchases which are carried out via fixed-priced forward market purchase contracts;
and the electric spot market.
Figure 1 below illustrates the projected sources and expected purchases of electricity supplies
by month for the 36 months from July 1, 2017 to June 30, 2020, in megawatt-hours (MWh). In
July and August 2017, 101,560 MWh in excess wholesale power was sold. While sales of surplus
energy in the summer months is typical due to the seasonal profile of the City’s generating
portfolio, the surplus was higher than normal as a result of increased availability in
hydroelectricity power due to the wet winter.
City of Palo Alto Page 3
Hydroelectricity
The cost of hydroelectricity received from Western over the 12-month period ending
June 30, 2017 is lower than the market value of electricity by $3.1 million. Hydroelectric power
from Calaveras was expected to cost $5.7 million (as of June 30, 2017) more than the market
value of electricity. Note that Calaveras provides benefits not reflected in the mark-to-market
(MTM) calculation, including, for example, ancillary services (e.g., the ability to regulate energy
output when the electric grid needs change), and that much of the above-market costs are
related to debt service on the cost of constructing the dam. This debt is due to be retired in
2032, and retirement would substantially improve the value of the project relative to the
market price of electricity.
Fixed-Price Forward Electricity Purchases
The City as of June 30, 2017 has purchased and/or sold fixed-priced supplies of electricity
totaling 133,960 MWh for delivery in FY 2017 with an average price of $33.81 per MWh. The
City contracted for these purchases with three of its approved counterparties: Powerex, Exelon,
and NextEra Energy Resources. The 12-month MTM value of the City’s forward transactions for
wholesale power was $0.24 million at the end of the quarter. In other words, the purchase cost
(contract price) for these transactions was lower than the market value as of June 30, 2017. The
City tracks the mark to market value of its forward contracts to measure the value that would
be lost due to a counterparty failing and being unable to deliver on its contractual
commitments, forcing the City to purchase replacement electricity in the market. The exposure
City of Palo Alto Page 4
listed above is well within risk management guidelines and presents little risk to the City’s
financial outlook.
The figures below represent the electric forward volumes (Figure 2) and MTM positions (Figure
3) for each electric supplier by month of delivery for all forward fixed-price electricity contracts
over the 12-month period ending June 30, 2018.
0
10,000
20,000
30,000
40,000
50,000
60,000
70,000
Me
g
a
w
a
t
t
H
o
u
r
s
Figure 2 -Electric Forward Volumes as of 06/30/17
Powerex
Exelon
NextEra Energy
Resources
City of Palo Alto Page 5
Gas Supplies
In order to serve the City’s natural gas needs, the City purchases gas on the monthly and daily
spot markets. The City purchases all of its forecasted gas needs for the month ahead at a price
based on the published monthly spot market index price for that month. Within the month, the
City’s gas operator buys and sells gas to match the City’s daily needs if the actual daily usage is
different from the forecasted daily usage. Those daily transactions are made at an average price
based on the published daily spot market index. These costs are passed through directly to
customers using a monthly rate adjustment mechanism, leaving the City with little or no price
risk or counterparty risk exposure for the gas utility.
Credit Risk
Staff monitors and reports on counterparty credit risk based on the major credit rating agencies
(S&P and Moody’s) scores, Ameresco has a 0.98 percent Expected Default Frequency (EDF)
which is above the recommended EDF level. As of December 31, 2016, the EDF was 1.72
percent so there has been a significant improvement. Staff is continuing to monitor Ameresco’s
EDF and will continue to report back to City Council in future quarterly reports on the status of
Ameresco’s EDF. Table 1 below shows the EDF values for the City’s renewable energy
counterparties. Table 2 below shows the EDF values and credit exposure for the City’s electric
suppliers. There is virtually no credit exposure to the City’s gas suppliers since the supplies are
purchased on a short-term basis.
City of Palo Alto Page 6
Table 1 - Renewable Counterparties Credit Ratings and EDFs as of 06/30/17
S&P Credit
Rating
Current
Expected
Default
Frequency
S&P
(EDF)
Implied
Rating
Ameresco n/a 0.98%B+
BBB+0.17%Aa2
Renewable Counterparty
Avangrid (fomerly Iberdrola)
Table 2 - Credit Exposure and Expected Default Frequency of Electric Suppliers as of 06/30/17
Electric
Counterparty
Cost of
Transaction
Market
Value of
Transaction
Current
Expected
Default
Frequency
S&P (EDF)
Implied
Rating
Exelon $1,735,620 $1,753,929 0.15%Ba1
Powerex $441,160 $456,712 n/a n/a
NextEra $2,352,896 $2,559,472 A-0.03%A-
Totals $4,529,676 $4,770,114
$18,309
$15,552 AAA
BBB $27
n/a
$59$206,576
$240,438 $86
Cost vs. Market to
Market (MTM) Value
S&P
Credit
Rating
Expected Loss
(MTM x
Expected
Default
Frequency)
Electric Forward Mark-to-Market Values
It is important to note that, for renewable energy companies, Council waived the investment
grade credit rating requirement of Section 2.30.340(d) of the Palo Alto Municipal Code, which
applies to energy companies that do business with the City. In addition, the City does not pay
for renewable energy until it is received, thereby reducing risk.
An EDF of 0.08% or below indicates supplier’s current expected default frequency falls within
the investment grade range. An EDF above 0.08% indicates the supplier may have financial
issues that require monitoring.
Electric and Gas Supply Operations Reserves Adequacy
As shown in Table 3 below, the Electric Supply Operations reserve’s unaudited balance as of
March 31, 2017 is $10.7 million, which is $4.3 million above the minimum reserve guideline
level. This balance is also above the immediate 12-month credit, hydro, and other risks that
have been identified, and are estimated at $4.4 million. The unaudited Gas Operations reserve
balance as of March 31, 2017 is $11.0 million, which is $5.1 million above the minimum reserve
guideline level.
Table 3 - Electric Supply Operations and Gas Operations Reserve Levels for FY 2017
City of Palo Alto Page 7
(Preliminary unaudited figures from City’s Financial System)
Fund
Reserve for
Operations
Balance as
of 07/01/2016
($ Millions)
Changes
to the
Reserves
for
Operations
($ Millions)
Unaudited Projected
Reserve for
Operations Balance as
of 03/31/17 *
($ Millions)
Minimum
Guideline
Reserve
Level
($ Millions)
Maximum
Guideline
Reserve
Level
($ Millions)
Electric $15.6 ($4.9)$10.7 $6.4 $12.8
Gas $9.5 $1.5 $11.0 $5.9 $11.8
FY 2017
* The accounting activity to date reflects what has been booked into the City’s financial
system. These figures are preliminary until outside auditors have completed their review
and the Comprehensive Annual Financial Report is produced. There could be significant
changes to the supply operation reserve balances based on year-end adjustments that have
not been booked yet.
Exceptions to Energy Risk Management Policies, Guidelines, or Procedures
There were no exceptions to the Energy Risk Management Policies, Guidelines, or Procedures
to report during the third and fourth quarters of FY 2017.