HomeMy WebLinkAboutStaff Report 164-07TO:
City of Palo Alto
City Manager’s Report
HONORABLE CITY COUNCIL
FROM:CITY MANAGER DEPARTMENT: PLANNING AND
COMMUNITY ENVIRONMENT
DATE:
SUBJECT:
MARCH 12, 2007 CMR: 164:07
ORDINANCE AMENDING SECTION 18.10.070(A) OF THE PALO ALTO
MUNICIPAL CODE TO PROHIBIT SECOND DWELLING UNITS,
INCLUDING AIRSPACE RIGHTS THERETO, UNDER DIFFERENT
OWNERSHIP FROM THE INITIAL DWELLING UNIT, IN THE R-2 AND
RMD ZONING DISTRICTS.
RECOMMENDATION
Staff and the Planning and Transportation Commission (P&TC) recommend that the City
Council adopt the attached ordinance (Attachment A) to prohibit second dwelling units,
including associated airspace rights, under different ownership from the initial dwelling unit in
the RMD and R-2 zoning districts.
BACKGROUND
On November 20, 2006, the City Council denied an appeal and upheld the Director’s decision to
allow a parcel map to accommodate two "airspace" condominium lots on an existing parcel at
610 California Avenue. The intent of the minor subdivision was to Convert each residential
strncture to ownership units. The underlying lot would not be subdivided, but would be owned
by a single entity comprised of the owners of the residential buildings (in the form of a
homeowners association).
Also on November 20, 2006, the Council adopted an extension of an interim urgency ordinance
(Attachment B) to prohibit ownership of second units in the R-2 and RMD zones, to be effective
through October 15, 2008 or earlier if a permanent ordinance is enacted to repeal the interim
ordinance. The interim ordinance exempted the 610 California Ave. project from its provisions.
The Council stated that this action and the permanent revision should be considered a
"clarification" of the existing ordinance, intended to specify the original purpose of the R-2 and
RMD regulations to limit second units to rentals.
CMR: 164:07 Page 1 of 3
DISCUSSION
The amended ordinance (Attachment A) adds language to Section 18.10.070(a) that states "Any
second dwelling unit, and any airspace rights thereto, under different ownership from the initial
dwelling unit, shall be prohibited in the R-2 and RMD districts." The purpose of this language is
to clarify Council’s original intent to explicitly preclude the Condominium approach proposed for
610 California Ave.
Planning and Transportation Commission (P&TC) Action
On January 10, 2007, the P&TC voted unanimously to recommend that the Council adopt the
attached draft ordinance. The Commission discussed the potential to tie condominium
conversions to preservation of historic homes, but determined that was outside the scope of the
present ordinance review. A motion to defer the adoption until other historic preservation oPtions
could be evaluated was defeated 3-4. The Commission did, however, request that discussion of
such potential historic preservation incentives be set for a future P&TC study session. Two
members of the public spoke at the hearing, one in favor and one opposed to the change (their
correspondence is included in Attachment E).
The P&TC staff report (Attachment C) and minutes (Attachment D) of the January 10, 2007
meeting are also attached.
RESOURCE IMPACT
The recommendations in the proposed zoning amendment will have no impact on City resources.
The modifications would preserve and clarify the intent of the current zoning ordinance
provisions.
POLICY IMPLICATIONS
The zoning amendment would be consistent with Comprehensive Plan and Zoning Ordinance
purpose and intent statements to retain second dwelling units as rental units in the City of Palo
Alto.
ENVIRONMENTAL REVIEW
The California Environmental Quality Act (CEQA) lists "minor alterations in land use
limitations" as exempt from CEQA (Section 15305). It is readily apparent that the ownership
differences noted in the ordinance amendment could have no significant physical environmental
impacts.
PP~EPARED BY:
DEPARTMENT HEAD REVIEW:
CITY MANAGER APPROVAL:
CURTIS WILLIAMS
Assistant Director of Planning and Community Environment
S~TEVE EMSLI~
Director of Pla]a~ning and Community Environment
EMILY H~SON--
Assistant City Manager
CMR: 164:07 Page 2 of 3
ATTACHMENTS
Attachment A:
Attachment B:
Attachment C:
Attachment D:
Attachment E:
Draft Ordinance No.
Interim Ordinance No. 4921
January 10, 2007 Planning and Transportation Commission Staff Report
January 10, 2007 Planning and Transportation Commission Minutes
Correspondence
COURTESY COPIES
CMR: 164:07 Page 3 of 3
¯ NOT YET APPROVED
ATTACHMENT A
ORDINANCE NO.
ORDINANCE OF THE COUNCIL OF THE CITY OF PALO ALTO
AMENDING SECTION 18.10.070(a) OF THE PALO ALTO MUNICIPAL
CODE PROHIBITING SECOND DWELLING UNITS, INCLUDING
AIRSPACE RIGHTS THERETO, UNDER DIFFERENT OWNERSHIP
FROM THE INITIAL DWELLING UNIT IN THE RMD AND R-2
ZONING DISTRICTS
The City Council of the City of Palo Alto does ORDAIN as follows:
SECTION 1. Findings. The Council finds and declares that:
A. Preservation of the visual and historic character of existing single-family
neighborhoods is of great cultural, aesthetic, and economic importance to the CitY and all of its
residents.
B. On June 20, 1983, the City Council enacted Ordinance No. 3447, establishing the
RMD, (Two-Unit Multiple-Family Residence District) allowing a second dwelling unit under the
same ownership as the initial dwelling unit on site in areas designated formultiple-family use’. The
purpose of establishing the zone was to minimize incentives to demolish existing single-family
dwellings, maintain neighborhood character, and increase the variety of housing opportunities
available within the community.
C. The City Council has recognized that the current regulations of second dwelling
units in the RMD and R-2 districts (Palo Alto Municipal Code Section 18.10.070(a)) do not
adequately protect single-family structures and second units located on sites within the Two Unit
Multiple-Family Residential District from potential subdivision and sale.
D. As written, Section 18.10.010(c) states that the purpose of the Two Unit Multiple-
Family Residential District is intended to allow a second dwelling unit under the same ownership as
the initial dwelling unit on appropriate sites in areas designated for multiple-family use by the Palo
Alto Comprehensive Plan. Section 18.10.070(a) does not adequately implement that purpose.
E. On October 16, 2006, the City Council approved, based on the above findings and
on an urgency basis, Ordinance No. 4921 to prohibit second dwelling units, and the airspace rights
thereto, from different ownership than the initial dwelling unit in the RMD and R-2 districts. On
November 20, 2006, the City Council extended the prohibition through October 15, 2008, unless
repealed by the passage of a permanent ordinance revising Section 18.10.070(a).
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NOT YET APPROVED
F. On November 14, 2006, the Planning and Transportation Commission conducted a
duly noticed public hearing and recommended approval of the ordinance to prohibit second dwelling
units, and the airspace rights thereto, from different ownership than the initial dwelling units in the
RMD and R-2 districts.
SECTION 2. Definitions. All terms in this ordinance shall have the definition provided
in Section 18.04.030 of the Palo Alto Municipal Code unless expressly provided otherwise.
SECTION 3. Amendment. Section 18.10.70(a) (Second Units in the R-2 and RMD
Districts) is hereby amended to read as follows:
"Second dwelling units are allowed on R-2 or RMD lots that meet lot size
requirements in Table 2 to accommodate two units on a lot. For R-2 zoned
lots of 6,000 square feet or greater, but less than 7,500 square feet, a second
dwelling unit of 450 square feet or less is permitted, subject to all other
regulations of the R-1 Chapter outlined in section 18.12.070. Any second
dwelling unit, and any airspace rights thereto, under different ownership
from the initial dwelling unit, shall be prohibited in the R-2 and RMD
districts."
SECTION 4. Exemption. This ordinance does not apply to any application for the
subdivision of airspace rights that has been deemed complete as of October 16, 2006. ~
SECTION 5. CEQA. The Council finds that this project is exempt from the provisions
of the Environmental Quality Act ("CEQA") because it can be seen with certainty that there is no
possibility that this project will have a significant effect on the environment, and because this
ordinance falls within the exception to CEQA set forth in Section 15301 of the CEQA Guidelines.
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NOT YET APPROVED
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SECTION 6. Effective Date and Repeal of Ordinance No. 4921. This ordinance shall be
effective 31 days after the date of its adoption. Upon the effective date, Ordinance No. 4921 shall be
repealed and have no further effect or applicability.
INTRODUCED AND PASSED:
AYES:
NOES:
ABSTENTIONS:
ABSENT:
ATTEST:APPROVED:
City Clerk
APPROVED AS TO FORM:
Sr. Deputy City Attorney
Mayor
City Manager
Director of Planning and
Community Environment
070306 synO120214
ATTACHMENT B
ORDINANCE NO. 4921
ORDINANCE OF THE COUNCIL OF THE CITY OF PAL0 ALTO
PROHIBITING SECOND DWELLING UNITS UNDER DIFFERENT
OWNERSHIP FROM THE INITIAL DWELLING UNIT ON AN INTERIM
BASIS PURSUANT TO GOVERAIMENT CODE SECTION 658’58
TO TAKE EFFECT IM}4EDIATELY
The City Council of the City of Palo Alto does ORDAIN as
follows :
SECTION i. Findings. The Council finds and declares that:
A. Preservation of the visual and historic character of
existin~ single-family neighborhoods is of great cultural,
aesthetic, and economic importance to the City and all of its
residents.
Bo On June 20, 1983, the City Council enacted Ordinance
No. 3447,~ establishing the RMD, (Two-Unit Multiple-Family Residence
District) allowing a second dwelling unit under the same ownership
as the initial dwelling unit on site in areas designated for
multiple-family use.. The purpose of establishing the zone was to
minimize incentives to demolish existing single-family dwellings,
maintain neighborhood character and increase 9he variety of housing
.opportunities available within the community.
C.The City Council has recognized, that the current
regulations of second dwelling units in the RMD and R-2 districts
(Palo Alto.Municipal Code Section 18.10.070(a)) do not adequately
protect single-family structures and second units located on sites
within the. Two Unit Mult±ple-Family Residential District from
potential subdivision and sale.
D.As written, Section 18.10.010(c) states that the
purpose of the Two Unit Multiple-Family Residential District is
intended to allow a second dwelling unit under the same ownership
as the initial dwelling unit on appropriate sites in area~
designated for multiple-family use by the PaloAlto Comprehensive
Plan. Section 18.10.070(a) does not adequately implement that
purpose.
E.If a new ordinance is not adopted on an urgency
basis to prohibit multiple ownership, there is a clear and imminent
danger that a property owner within a Two Unit Multiple-Family
Residential Distri~ct could subdivide his or her parcel into two
distinct airspace parcels and sell the. air and rights to the
separate parcels. This would be inconsistent with the intent of
Chapter I8-i0.
F.Based on findings A through E, the Council finds
that there is a current and immediate threat to the public health,
safety or welfare if Ordinance No. 4921 is not adopted pursuant to
Government Code section 36937.
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SECTION 2. Definitions. All.terms in this ordinance shall
have the definition provided in Sectfon 18.04.030 of the Palo Alto
Municipal Code unless, expressly .provided otherwise..
SECTION 3. Prohibition. Second dwelling units, and any
airspace rights thereto, under different ownership from the initial
dwelling, unit, shall be prohibited in the R-2 and RMD districts.
SECTION 4. Exemption. This ordinance does not apply~ to
any application for the subdlvlslon of airspace rights that has
been.deemed) complete as of the effective date of this ordinance.
SECTION 5. Effective Date and Applicability. This
ordZnance was passed by a four-fifths vote after a public hearing
pursuant to Government Code Section 65858 and shall, be effective
immediately upon adoptio~ and shall cease to have force and effect
On. December I~ 2~O<~6!~nless further extended after additional public
hearing.
SECTION 6. The Council finds that this project is exempt
from the provisions of the Environmental Quality Act ("CEQA")
because it can be seen with certainty that there is no possibility
that this project will have a significant effect on the
environment, and because this ordinance falls within the exception
to CEQA set forth in Section 15301 of the CEQA Guidelines.
INTRODUCED AND PASSED: October 16, 2006
AYES:BARTON, CORDELLI DREF~MEIER,
KLEINBERG, MORTON
KISHIMOTO,KLEIN,
NOES:
ABSTENTIONS:
ABSENT:
ATTEST:
BEECHAM
MOSSAR
APPROVED:
lity Clerk
APPROVED AS TO FORM:
Asst. City~’~torney
061019 sya 0120169
Manager
or of
Community
2
g and
ronment~
TO:
FROM:
City of Palo Alto
City Manager’s.Report
HONORABLE CITY COUNCIL
CITY MANAGER DEPARTMENT: PLANNING AND
COMMUNITY ENVIRONMENT
DATE:
SUBJECT:
NOVEMBER 20, 2006 CMR: 411:06
ADOPTION OF AN EXTENSION TO AN URGENCY ORDINANCE
AMENDING SECTION ~18.10.070 "SECOND DWELLING UNITS" OF
THE PALO ALTO MUNICIPAL CODE TO PROHIBIT INDIVIDUAL
SALE OF SECOND UNITS IN THE RMD AND R-2 ZONING DISTRICTS
RECOMMENDATION
Staff recommends that the City Council adopt and extend the attached Interim Ordinance No.
4921 for a period of 22 months and 15 days (through October 15, 2008), prohibiting new
airspace condominiums for buildings within the RMD and R-2 zone districts.
BACKGROUND
On October 16, 2006, the City Council adopted Ordinance No. 49.21, prohibiting new airspace
condominiums for buildings within the RMD and R-2 zone districts. The ordinance responded to
an approval of an application for airspace condominiums on a property zoned RMD at 610
California. An appeal for that project was heard by the Planning and Transportation Commission
on September 27, 2006, and will be heard by the Council on November .20, .2006. The
Commission recommended that the Council uphold the Director’s approval of the application.
The interim ordinance, however, exempts the 610 California project from its limitations.
DISCUSSION
The existing ordinance was adopted pursuant to Government Code Section 65858, which applies
for an initial 45-day period, and would expire on December 1, 2006. State law allows for an
interim ordinance adopted after a noticed hearing to be extended for up to two years. Staff has
scheduled consideration of a permanent ordinance by the Planning and Transportation
Commission for December 13, 2006, and recommends extension of the interim ordinance for a
total of one year, through October 15, 2008, or upon adoption of the permanent ordinance prior
to that date.
CMR: xxx:06 Page 1 of 2
No changes are proposed to the Interim Ordinance. This .action would only extend the ordinance
adopted by the Council on October 16, 2006.
RESOURCE IMPACTS
Staff will. assess the economic and other resource impacts of the ordinance When a permanent
.ordinance is proposed
CURTIS WILLIAMS
ChiefPlarming and Trans, p/ortatio,~~al
"~STEVE ]~/~SLIE ’
Director/,ofPlarming and Community Environment
CITY MANAGER APPROVAL:
Assistant City Manager
ATTACHMENTS:
A.Ordinance No. 4921
B.October 16, 2006 City Manager’s Report
CMR: xxx:06 Page 2 of 2
ATTACHMENT A
NOT YET APPROVED
ORDINANCE NO.
ORDINANCE EXTENDING ORDINANCE NO.. 4921 OF THE
COUNCIL OF THE ~CITY OF PALO ALTO AMENDING .SECTION
18 . i0 . 070 OF THE PAL0 ALTO MUNICIPAL CODE
PROHIBITING SECOND DWELLING UNITS UNDER DIFFERENT
OWNERSHIP FROM THE INITIAL DWELLING. UNIT ON AN
INTERIM . BAS IS ¯PURSUANT TO GOVERNMENT CODE
SECTION 65858 TO TAKE EFFECT IMMEDIATELY
The City Council of the City of Palo Altodoes .ORDAIN as
follows:
SECTION i. Findings. The Council finds and declares that:
A.Preservation of thevisual and historic character of
existing single-family neighborhoods is of great cultural,
aesthetic, and economic importance tO the City and all of its
res-[dents..
B.On June 20, 1983, the City Council enacted Ordinance
No. 3447, establishing the RMD, (Two-Unit Multiple-Family Residence
District). allowing a second dwelling unit under the same ownership
as the initial dwelling unit on site in areas designated for
multiple-family use. The purpose of establishing the zone was to
minimize incentives to demolish existing single-family dwellings,
maintain neighbor~hood character, and increase .the .variety of
housing opportunities available within the community.
C..The City council has recognized that the current
regulations of second dwelling units in the RMD and R-2 districts
(Palo Alto Municipal Code Section 18.10.070(a)) do not .adequately
protect single-family structures and second units located on sites
within the Two~Unit Multiple-Family Residential District from
potential subdivision and sale.
D.As written, Section 18.10.010(c) states tha£ the
.purpose of the Two Unit Multiple-Family Residential District is
intended to allow a second dwelling unit under the same ownership
as the initial dwelling unit on appropriate sites in areas
designated for multiple-family use by the Palo Alto Comprehensive
Plan. Section 18.10.070(a) does not adequately implement that
purpose.
E. If a new ordinance is not adopted on an urgency
basis to prohibit multiple ownership, there is a clear and imminent
061114 syn 0120189
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NOT YET APPROVED
danger that. a property owner within a Two Unit Multiple-Family
Residential District could subdivide his or her parcel into two
distinct airspace parcels and Sell the air and rights to the
separate parcels. This would be inconsistent with theintent of
Chapter 18.10.
F.Based on-.findings A through E, the Council finds
that there is a current and immediate threat to the public health,
safe~y or welfare if Ordinance No.is not adopted pursuant to
Government Code section 36937.
SECTION 2. Definitions. All terms in this ordinance shall
have the definition provided in Section 18..04.030 of. the Palo Alto
Municipal Code unless expressly provided otherwise.
SECTION 3. Prohibition. Second .dwell.ing. units, and any
airspace, rights thereto, under different ownership from the initial-
dwelling unit, shall be prohibited in the R-2 and RMD districts.
SECTION 4. ~Exemption. This ordinance does not apply to
any application for the subdivision of airspace rights that has
been deemed complete as of the effective date of this ordinance.
SECTION 5. Initial Interim Ordinance. An interim ordinance
No. 4921 Was passed on October 16, 2006 by a four-fifths vote after
a public hearing pursuant to Government Code Section 65858 and will
expire on December i, 2006.
SECTION 6. Effective Date and Applicability. This
ordinance was passed by a four-fifths vote after a public hearing
pursuant to Government Code Section 65858 and shall be e-ffective
immediately upon adoption and shall cease to have force and effect
on October 15, 2008 unless rescinded upon adoption of a permanent
ordinance.
SECTION 7. The Council finds that this project is exempt
[rom the provisions of the Environmental Quality Act (."CEQA")
because it can be seen with certainty that there is no possibility
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NOT YET APPROVED
that this project will have a significant effect on the
enVironment, and because this ordinance falls within the exception
to CEQA set forth in Section 15.301 ofthe CEQA Guidelines.
INTRODUCED AND PASSED:
AYES :
NOES:
.ABSTENTIONS:
ABSENT:
ATTEST:APPROVED:
City Clerk
APPROVED AS TO FORM:
Sr. Deputy City Attorney
Mayor
City Manager
Director of Planningand
Community Environment
061114 syn 0120189
ATTACHMENT C
"°. PLANNING & TRANXPOR TA TION
DIVISION
STAFF REPORT
TO:
FROM:
PLANNING & TRANSPORTATION COMMISSION
Curtis Williams DEPARTMENT:Planning and
Assistant Director Community Environment
AGENDA DATE:
SUBJECT:
January 10, 2007
Zoning Ordinance Amendment: Amendment to Tide 18 (Zoning
Ordinance) Amending Section 18.10.070(a) to Prohibit Second Dwelling
Units, Including Airspace Rights Thereto, Under Different Ownership
from the Initial Dwelling Unit in the RMD and R-2 Zoning Districts.
Environmental Assessment: Exempt from CEQA. Zone District: R-2 and
RMD.
RECOMMENDATION
Staff.recommends the Planning and Transportation Commission (Commission) recommend to
the City Council approval of the proposed revision to the Zoning Ordinance (Attachment A).
BACKGROUND
On November 20, 2006, the City Council denied an appeal (approved the Director’s decision) to
allow a parcel map to accommodate two "airspace" condominium lots on an existing parcel at
610 California Avenue. The Planning Commission had recommended approval of the project on¯¯September 27, 2006. The intent of the minor subdivision was to convert each residential
structure to ownership units. The underlying lot would not be subdivided, but would be owned
by a single entity comprised of the owners of the residential buildings (in the form of a
homeowners association).
Also on November 20, 2006, the Council adopted an extension of an Interim. (Urgency)
Ordinance (Attachment B) to prohibit ownership of second units in the R-2 and RMD zones, to
be effective through October 15, 2008 or earlier if a permanent ordinance is enacted to repeal the
interim ordinance. The interim ordinance exempted the 610 California Ave. project from its
provisions. The Commission had also recommended the interim ordinance and exemption of the
610 California Ave. project. The November 20, 2006 staff report to the Council (Attachment C)
provides further background.
City of Palo Alto Page I
At the Council hearing on November 20, 2006, the Council strongly stated that. this action and
the ~permanent revision should be considered a "clarification" of the existing ordinance, intended
to specify what they understood to be the purpose of the R-2 and RMD regulations to limit
second units to rentals.
DISCUSSION
The amended ordinance (Attachment A) adds language to Section 18.10.070(a) that states ."__~_.y
second dwelling unit, and any airspace rights thereto, under different ownership from the initial
dwelling unit, shall be prohibited in the R-2 and RMD districts." The purpose of this language is
to clarify Council’s original intent to explicitly preclude the condominium approach proposed for
610 California Ave.
Options
The Commission; in its considerationof the interim ordinance, noted that some variations of the
ordinance change might be considered to allow condominium lots where, .for instance, an historic
structure was to be preserved. Staff believes that considerable analysis would be necessary to
determine the effectiveness of any such changes, and that the Council’s direction on November
20, 2006, was to simply clarify the current language so the condominium option is not presented
in the future.
Letter from Herb Borock
Staff and the Commission received a letter, dated December 7, 2006, from Herb Borock, urging
the Commission to reject the zoning amendment, based on the legislative .history associated with
adoption of the RMD district. Staff concurs that the intent of the ordinance was to provide for
common ownership, but the language of the ordinance is not clear enough to preclude someone
making the same argument as for the 610 California Ave. project. Planning staff and the. City
Attorney believe that, regardless of the interpretation of the legislative history, the- proposed
amendment will clarify the issue and .avoid potential disputes in the future.
In summary, the added language would clarify that the creation of air-space condominium lots is
not consistent with the purpose of the R-2 and RMD districts.
ENVIRONMENTAL REVIEW
The California Environmental Quality Act (CEQA) lists "minor alterations in .land use
limitations" as exempt from CEQA (Section 15305). It is readily apparent that the ownership
differences noted in the ordinance amendment could have no significant physical environmental
impacts from a project.
ATTACHMENTS/EXHIBITS:
Attachment A:
Attachment B:
Attachment C:
Attachment D:
Attachment E:
Draft Ordinance No.
Interim Ordinance No. 4921
November 20, 2006 City Manager’s Report
November 20, 2006 City Council Minutes
December 7, 2006 Letter from Herb Borock
City of Palo Alto Page 2
COURTESY COPIES:
Brian Wilson, 2389 South Cliffview, Flagstaff, AZ 86001
.Pria Graves, 2130 Yale Street, Palo Alto, CA 94306
Herb Borock, P.O. Box 632, Palo Alto, CA 94302
Reviewed by: Amy French, AICP, Manager of Current Planning
Department/Division Head Approval: ~k_~_i I~ ~~-4%-
Curtis Williams, Assistant Director
City of Palo Alto Page 3
ATTACHMENT D
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Planning and Transportation Commission
Verbatim Minutes
January 10, 2007
EXCERPT
Zoning Ordinance Update: Planning and Transportation Commission review and
recommendation of an Ordinance Amending Section 18.10.070(a) of the Zoning Ordinance to
prohibit Second Dwelling Units (and any Airspace Rights Thereto) under Different Ownership
from the Initial Dwelling Unit in the R-2 and RMD Districts. Environmental Assessment:
Categorical Exempt from CEQA per Section 15305.
Mr. Williams: Commissioners, you have seenpreviously the proposed and ultimately adopted
interim ordinance that tried to close this loophole in our code. I think everybody is onboard that
the intent of these zoning districts was that the second unit be a rental but the language in the
code is not specific enough to absolutely preclude that. So as an interim ordinance the Council
adopted your recommendation to make that more explicit through the language we have
proposed here. We have taken virtually the identical language from the interim ordinance and
put it into a permanent format for you and recommend that for your approval the Council in
extending the interim ordinance through October of 2008, I think it is, indicated that they
strongly felt that this was a clarification to close this loophole and not an invitation to further
explore the various potential ramifications of ownership versus rental on these properties.
So we recommend this to you with one specific change in the ordinance. The second finding,
Finding B, on the first page refers to ordinance number 3447 and that is not the correct
ordinance. It is 3446. Ordinance 3447 was actually the NP, Neighborhood Preservation
Combining District, which was adopted at the same time as the RMD. They were all basically
the same discussion but 3446 was the RMD ordinance.
Mr. Borock sent you some letters and correspondence. There were a couple of pages that were
not included in the transmittal in the Staff Report. I am not sure we had those but we did get
those to you yesterday just to be sure that you had those and they are the last two pages of the
minutes from the 1983 Council Meeting. I would be glad to answer any questions.
Chair Holman: Do Commissioner have any clarifying questions for Staff at this time?
Commissioner Lippert.
Vice-Chair Lippert: Yesterday I asked the City Attorney’s Office to look into co-ops and would
that something that would be permitted on such an RMD property? I guess the difference
between a condominium and a co-op is as a condominium you actually own your unit and then
there is a corporation that takes care of the property, an association, whereas in a co-op you own
a certain percentage of the property and it is run jointly, correct7
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Ms. Tronquet: That is correct. I believe the development on this particular parcel would be
based on density and as long as the project complied with the underlying zoning rules I believe
that would be okay because cooperative housing is permitted under California law.
Vice-Chair Lippert: So in other words, there wouldn’t need to be an ownership house and a
rental piece it could be all jointly owned as a co-op.
Ms. Tronquet: Yes, to the best of my knowledge at this point it is permitted in California. So if
a project came before us we could look at it again but yes, generally.
Chair Holman: Curtis, did you have something to add to this?
Mr. Williams: I was just going to say as long as it is one ownership entity and not two where
you could sell one of the units to somebody else then that is fine. When two people own it, it is
basically two people jointly owning the property.
Vice-Chair Lippert: That’s the point that I am trying to make that with a co-op when you cash
out or you sell you sell your ownership in that co-op.
Mr. Williams: I don’t know that we have the answer to that legal issue.
Ms. Tronquet: I believe the legal structure and I don’t know many 0fthe details is similar to sort
of a corporation. So when you buy into a cooperative housing project you are sort of buying a
share. We would have to look at that further to really confirm though.
Vice-Chair Lippert: I guess where I am going in this line of questioning is that we don’t want to
¯ diminish the rental housing stock. Once one of these units enters into it does it not become part
of the rental stock in the rental numbers in Palo Alto?
Mr. Williams: I don’t know that we count that per se unless we are creating new units that we
are trying to represent to the state.
Chair Holman: Commissioner Tuma.
Commissioner Tuma: Along those same lines there is nothing that would prohibit two
individuals from buying the property as tenants in common so you could in fact achieve that
same sort of ownership that you are alluding to simply through use of tenants in common. So I
think that adopting this is not going to stop that sort of ownership and that is a legal right that
people have anyway so I don’t think there is anything we can do about that.
Chair Holman: Seeing no other clarifying questions we do have two members of the public who
would like to speak. Pria Graves to be followed by Herb Borock and you will have five minutes.
Ms. Pria Graves, Palo Alto: Good evening Chair Holman and members of the Commission. I
think I have said most of what I need to say already on this issue. I don’t feel that this
clarification should have been necessary. I think that the language was abundantly clear that
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there was never any intent that the two units on a piece of property should be owned separately
in any fashion. However, given the outcome and the fact that the Council and the Commission
were swayed by the applicant at 610 California it is apparent to me that this change needs to be
made and I hope you will make it.
I strongly encourage you not to veer off into a discussion of whether condominiums in College
Terrace are appropriate in this setting. If you wish to have that discussion it needs to be handled
much more carefully, there needs to be adequate opportunity for input from the entire
neighborhood since this zone comprises approximately a quarter of our rather small
neighborhood. So the potential for any kind of massive change to allow condominiums in the
neighborhood would potentially change the neighborhood radically.. I think on that score that the
comment in the CMR from 1982 is interesting that this whole idea of the RMD zoning came
about because it was apparent that older single family homes including lower cost rental units
were being demolished and replaced by relatively expensive condominium units. I think the
economics for that still exist and I would hate to see our neighborhood change in this fashion
where some of the smaller houses would be demolished and replaced by larger units intended for
sale as airspace condominiums. That said I hope you will adopt this tonight so we can move on
with it. If you wish to have a discussion at some future time about condominiums we can do that
certainly. Thank you.
Chair Holman: Thank you. Herb Borock.
Mr. Herb Borock, Palo Alto: Thank you Chair Holman and good evening Commissioners. I
sent you a letter by email today and it includes comments on a number of typographical errors
and I will start with my own. In the first sentence I refer to my previous letter as being dated
January 8, 2007 that was actually my letter of December 7, 2006. I don’t know where I got the
other date from. There were I believe three items that I mention in the ordinance. First the
reference to the section number in the body of the ordinance leaves out one of the digits. It says
after the last decimal point .70 and it should be .070. Secondly, the enactment date, I did provide
you with the minutes of the June 20, 1983 City Council meeting but that was not the enactment
date of the ordinance. The enactment date is the second reading of the ordinance, which I
believe was July 11, 1983. The final one had to do with the effective date of the ordinance. We
have had over 4,000 ordinances in Palo Alto most of which require two readings and are
effective the 31st day after adoption to permit a 30-day period for citizens to have the right to
circulate referendum petitions. However~ recently some ordinances have come to you and said
30 days instead of 31 days. So this is at least the second time I’ve brought this up I believe the
first time was to the City Council. I don’t know why it is happening. I believe there may even
be one case where the documents before the City Council said 30 days and the final ordinance
said 31 days. This seems to be something that is easily fixed but the fact that it hasn’t been
concerns me and I hope it will be taken care of in the future.
I believe that the language before you from Staff is the declarative of existing law. I don’t
believe you will be getting the questions that you heard from Vice-Chair Lippert about
cooperatives or Commissioner Tuma about tenancies in common if the Council had voted the
other way on 610 California Avenue. Suddenly people are trying to look for ways to make the
ordinance say the opposite of what it has said for over 20 years. I believe if the Council had
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1 been provided the kind of background work that previous Councils had been provided by
2 previous Staff prior to what was institutionalized with our streamlining ordinance but which has
3 happened prior to then the Council would have had adequate history before it to make the correct
4 decision which would have been opposite the one that it made on 610 California and we would
5 not be here this evening.
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That being said I believe there is enough comments on the record, the administrative record,
before the City Council of what was at issue which was whether or not condominiums are
permitted under the existing ordinance that was first enacted in 1983. I believe that the purpose
of the language that was placed into the ordinance by the City Council was to prohibit
condominiums. So here we are trying to get back to, as Pria Graves said, where we were at the
beginning.
Also there was an implication in the Staff Report that if somebody can make a legal argument
that should affect how the Council votes on an application before it. Certainly you can find an
attorney to make a legal argument on either side that is why we have the kind of judicial system
that we have. So the mere fact that someone is threatening a lawsuit should not affect the way
the Council makes its decision. It should make it on the basis of the law and I believe it did not
do that on the 610 California item and that has led us to where we are now with these two
urgency ordinances and the proposal before you this evening. Thank you.
Chair Holman: Thank you. This might be a question for Mr. Borock or it might be a question
for Staff. Is there clarification on the enactment date that would be in this ordinance of
ordinance from 1983? I understood Mr. Borock to say July 11, 1983 but that is not 31 days after
the June 20, 1983 date.
Ms. Tronquet: I think the first reading of that ordinance was on June and the second was in July
and then it would have been effective 30 days following the second reading.
Chair Holman: So the second reading was July 11, is that what you are saying Mr. Borock?
Mr. Borock: Enactment is the second reading. Effective is the 31 days after.
Mr. Williams: We don’t have any problem. We will find the effective date and we will plug that
in here just to be certain. This date was in the interim ordinance as well but we will go ahead
and put the enactment date in, the final effective date in there and the .070 in there. I will defer
to the City Attorney on all the ordinance I have seen recently say 30 days.
Ms. Tronquet: The code says I believe the effective date is the commencement of the 31st day
after the date of adoption. So it would be the passage of 30 days and then on the 31st day the
ordinance becomes effective. We will clarify and make sure.
Chair Holman: Thank you. I think it is important to have the enactment date clarified because if
one wanted to research it again it might be easier to find. Questions from Commissioners? I
have a couple. I will close the public hearing too.
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I happen to live in an R-2 district but I am not conflicted because it is a general enough
application that I Can participate I am told. IfI live in an R-2 district or anyone lives in an R-2
district and they have two housing units on this one lot and those two units are allowed can one
or both of those units be demolished?
Mr. Williams: They can unless there is some kind of historical limitation or restriction on them
being demolished.
Chair Holman: So that demolition would result in the loss of a housing unit, a rental unit.
Mr. Williams: Right.
Chair Holman: When you have two living units on one lot one can presume that both of those
living units are smaller than a resultant project after the demolition of two units that are on the
same parcel. Would that be accurate to assume?
Mr. Williams: Not necessarily but you can generally probably figure that is the case.
Chair Holman: If someone has a property in an RMD(NP) zone and they choose to build a
second unit is there any protection or any reason that that property owner couldn’t build the
second unit and then demolish, let’s presume the first unit is an historic building, is there
anything that would keep that property owner from then after they build the second unit from
then demolishing the historic building?
Mr. Williams: Again, I am assuming unless there is some restriction against demolishing that
they could demolish that one first and then come in and build a new house too.
Chair Holman: So I guess where I am going with this is there is much talk in the community
about, and I am one of those talkers, about retention of more affordable housing units and
appreciate rental units as well. I am just wondering if only prohibiting the condominiumization
of RMD and R-2 accomplishes the goals of the City and the City Council even. When this went
to the City Council I agree with the Staff’s ultimate recommendation for denial of the
condominiumization on 610 California Avenue given on the ordinance that was place. I guess
what I would rather see is some protection that when they got the second unit that there would
also be a covenant on the historic house that allowed them to build the second house. One quick
observation on that too is according to the code the second unit is supposed to be subservient or
smaller than the original building. That just didn’t seem to be the case on 610 California
’Avenue. That is just a comment.
So I am in favor of this ordinance but with a couple of exceptions. I would suggest to
Commissioners that where there is an historic building, perhaps property but certainly where
there is an historic building, that in the RMD where a second unit is built to take advantage of
that that a protection covenant be put on the historic building. In the R-2 district that a second
unit is automatically allowed but that if there is an historic building, if one of those buildings is
an historic building, that they could condominiumize as long as they put a covenant on the
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historic building so that it couldn’t then be demolished. Are people following what I am saying
here?
Essentially what I am saying is that the purpose of the ordinance is to protect neighborhood
character and historic structures. What I am saying is that this ordinance really doesn’t do that
because the whole property can be demolished or a second unit could be built in the RMD
district and then the historic building demolished after that. So I think it doesn’t accomplish
what the intention is. Commissioner Sandas.
Commissioner Sandas: I just was wondering if that is a separate ordinance or issue all together
from this.
Chair Holman: I think it could very well be integral to this. It might be that Staff might
recommend coming back with that as a change to this ordinance or supplement to this ordinance
but I think if we don’t have the discussion now it is not going to happen and even if it did come
back later it is going to be quite some time. I can tell you that I do witness regularly not just in
the R-2 districts of course or the RMD but I do witness regularly demolition of smaller units that
go down whether it is two, three or four on the same parcel and what goes up in place is one
much larger, much less compatible, much less affordable living unit, So that is where I am going
with this. Commissioner Garber.
Commissioner Garber: If I may I am going to ask a different set of questions not to negate the
thrust of your inquiry. Section number three, the prohibition that is being recommended here
says second dwelling units and any airspace rights thereto under different ownership from the
initial dwelling unit shall be prohibited in the R-2 and RMD districts. I read through this and I
am going to need some help here because as I am going through it I am trying once again piece it
together and what I do not have in front of me although I have read it are the other two pages that
were sent to us this afternoon of the original ordinance. Thank you. However, what I was
focusing on was the amendment that was on June 20, 1983 where Council Member Witherspoon
moved, seconded by Renzel, to add a phrase that prohibits separate ownership. Very narrowly
that is what this conversation is about, right? That is it.
Mr. Williams: Yes.
Commissioner Garber: If that is true can I just ask for you to confirm that the phrase that was
seconded to here to add a phrase that prohibits separate ownership was that integrated into the
final motion back in 1983?
Mr. Williams: The language that exists, the ordinance that was approved in 1983 says
essentially what this says without that additional sentence.
Commissioner Garber: I am sorry, more specifically?
Mr. Williams: It is basically the intent statement that RMD is intended to allow a second
dwelling under the same ownership as the initial dwelling unit on appropriate sites and areas
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designated for multi-family use by the Palo Alto Comprehensive Plan. That was the intent
statement of the RMD in 1983 and that is the same intent statement that we have today.
Commissioner Garber: So that same sentence is being used in both of them?
Mr. Williams: The same sentence in the intent statement, yes. This sentence here that you see,
second units are allowed, etc., the beginning of that section is not underlined which is the
existing language essentially is a combination of R-2 and RMD language that has existed for
some time as well. So all we have done is added something that really the difference is that it
clarifies that this airspace issue associated with condominiums is considered a separate unit and
you cannot sell that.
Commissioner Garber: What you have done is taken the language out of the intent and put it into
section three and described it as a prohibition.
Mr. Williams: Exactly,
Commissioner Garber: Would our legal counsel help me? Does that in fact provide any greater
benefit than it being simply in the intent statement as it was previously?
Ms. Tronquet: Yes, that is the reason we are doing it. It provides much greater clarification.
The problem before was that it was too vague.
Commissioner Garber: Thank you.
Chair Holman: Commissioner Burt.
Commissioner Butt: I would just like to address briefly the issues that Commissioner.Holman
brought up. I think that those are important considerations for future discussion and I agree with
Commissioner Sandas it is probably problematic to try to fold them in tonight. With Staff’s
recommendation as well that we address the more narrow issue tonight my question for Staff is if
the issues that Commissioner Holman raised are really akin to the same issues and
Comprehensive Plan policies that led us to do a prohibition of lot combining? There are really a
lot of parallels between the two. Is there any future opportunity to look at the issues
Commissioner Holman raised in that context and have a more thorough exploration of it?
Mr. Williams: Well, there is the potential to do that. I think when we looked at lot combining
we also had some of this discussion with the R-2 and RMD districts about some ways to do this
and it is very complex. These issues of particularly the legality of essentially saying somebody
can’t teardown a unit and those kinds of issues. The lot combining seemed to be a very
straightforward way to deal with one issue that didn’t have that legal ambiguity to it and didn’t
have the potential for controversy that we think this might. So it was pretty easy to make that
step forward and this is more complex now. We have talked about issues about some of the
Housing Element policies about protecting rental units and particularly ones that deal with multi-
family with three or more units and coming back first internally with some policy direction on
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how we are handling the three or more unit situation but then ultimately again after the ZOU and
Comp Plan coming back with some of these in terms of ordinance amendments.
Commissioner Burt: So could we necessarily have this as a portion of that future discussion?
Mr. Williams: I think we have something like this on the list but we should make sure it is
explicitly including this item too. We can do that.
Chair Holman: I am going to say a couple more things before we probably go to a motion. The
Section 1.A. of the ordinance says the Council finds and declares that preservation of the visual
and historic character of existing single family neighborhoods is a great cultural, aesthetic, and
economic importance to the City and all of its residents. I guess my point is that our current
ordinances including this one do not accomplish that. Again the points just briefly are that an
owner can demolish both units on an R-2 lot that has two living units thus eroding the
neighborhood character and losing not only the rental unit but two smaller living units thus
making Palo Alto less affordable, which is a huge issue in our community. In the RMD they can
take advantage of that zoning and build a second unit where otherwise they could not and after
taking advantage of that having an historic house on the property build the second unit and then
demolish the historic building. So to me this is an ordinance that in its time was appropriate and
addressed the needs of the time. Given what our marketplace has been and is currently I find
that it really finds quite short of the goals stated and set forth in the ordinance. The Comp Plan is
ripe with goals and policies that seek incentives for historic preservation that is one. We also
talk about the affordability of housing in Palo Alto a lot, which I also stated. It seems to me that
it wouldn’t be a complicated thing, and I am not an attorney, but it would seem to me that if you
were allowed for instance condominiumize an R-2 lot that had a second unit on it because you
have an historic structure and the reason that you were able to do that was because of the historic
property and you put the covenant on it that that would be the incentive and the benefit and the
purpose of allowing the condominiumization. Palo Alto currently, has covenants that it has
policy, and law for for those properties that get TDR rights. So it seems to me that that language
could be picked up for this purpose. So to me it seems less complicated but again I am not an
attorney. Vice-Chair Lippert.
Vice-Chair Lippert: Just following up on Chair Holman’s comment here on Section 1, paragraph
A, what is meant by historic character? How do we define that versus what we generally call
historic resources or historic inventory which we actually a list of those structures that are
historic?
Mr. Williams: I was just going to say that I don’t think this is intended to mean - this is a
general finding that -- some of this language is in the existing RMD, it is in the NP overlay. If
we start putting things like that in the actual - those are findings. What is actually codified is
that one sentence that goes into the code. That is what people generally read. So if we start to
get into trying to change the code to talk about historic we do have to then start saying what
historic structures are we talking about and we get into what I think Ms. Graves was talking
about. That is a discussion that a lot of folks need to have. It hasn’t been advertised for that
level of change and we would have a very serious concern about not going through a very
thorough public review process with something like that.
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Vice-Chair Lippert: I understand that but what I am trying to get at is I think what the intent here
though is in the sentence in the first paragraph is historic character is really talking about the
fabric of the city not necessarily any specific property in terms of historic inventory. That is the
distinction that I was trying to make in my question. Is that correct?
Mr. Williams: Yes I think that probably is a very broad term used in this context.
Chair Holman: I am going to chime in on that because if you look back to the Staff Report of
December 23, 1982 the Staff Report says that the study objectives are one, maintain existing
neighborhood character, and this wasn’t what was in the ordinance this was the study objectives,
so that was one. Two was maintain and increase rental stock and three was preserve historic
structures and settings. This did as you can see from this report on page three this did go to the
Historic Resources Board for recommendation. So it would read to me that the study intention at
least was to protect historic structures. Any other comments or questions or a motion?
Commissioner Garber.
MOTION
Commissioner Garber: I was going to offer a motion that I suspect may be amended by those to
the right of me.
I would like to make a motion that we recommend to Council that Council accept the Staff’s
recommendation to amend Title 18, the Zoning Ordinance, amending Section 18.10.070(a) to
prohibit second dwelling units including airspace rights hereto under different ownership from
the initial dwelling unit in the RMD and R-2 zoning districts.
I will address some of the other topic under comments in a moment.
SECOND
Vice-Chair Lippert: I second that.
Chair Holman: Commissioner Garber, would you care to speak to your motion?
Commissioner Garber: Yes, please. A couple of topics. First I think that the point has been
made that the intent of the issue of having separate units is both clear in 1983 as well as the
currently proposed ordinance amendment. However, it does not appear to have been a part of the
letter of the law in 1983 and that is the correction that.we are making today.
I think Chair Holman’s comments regarding the larger scope of the ordinance are pertinent and
worthwhile issues that should be brought into the discussion. I would propose that they are done
in a slightly broader context because I suspect that there are any number of other topics that can
be drawn into it and addressed in a more global way that address both the housing as well as the
rental issues, etc. that you have more eloquently than I described.
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Relative to the motion that I am making today I am really focused very keenly on just the single
aspect of it. That is it for the moment.
Chair Holman: Vice-Chair L]ppert.
Vice-Chair Lippert: I think that our purview here today is really to formalize and really set in
our recommendation what was started as an urgency ordinance and complete it thereby closing a
loophole and correcting some language and not to go much further than that. I agree with
Commissioner Garber in terms of that the points that Chair Holman did raise are important but I
don’t see their basis as part of this document.
Chair Holman: Commissioner Keller.
Commissioner Keller: I would like to offer a substitute motion. My motion is to continue this
item to a date certain with a request to Staff to consider adding to the motion a covenant
preserving historic structures when a subsequent structure is built as part of this process.
Chair Holman: I am going to second for purposes of discussion just briefly. Would you care to
speak to your motion?
Commissioner Keller: Yes. I think that I am moved by the Chair’s comments. I think that the
intent of what was going on in 1993 was not only that both dwelling units would be under same
ownership but that the ability to add a second unit was in order to preserve the initial unit in
terms of neighborhood character and that the consideration that we are only fixing a small part of
this and that we do not have the urgency here because the urgency ordinance is in effect until
October 15, 2008. While we should not wait until 2008 to fix this problem there is no urgency
on our part to replace the urgency ordinance with a permanent ordinance and therefore we do
have the opportunity to think about this a little bit more carefully, broadly, more broadly notice
this so we can consider that question and give Staff an opportunity to figure out if there is a
simple or at least not too complicated way of addressing the Chair’s concerns.
Chair Holman: Thank you. Can I get clarification too? Could you restate your motion, please?
I want to make sure I have it clearly understood.
Commissioner Keller: My motion is continue this item a date certain with a request to Staff to
consider how to add a covenant preserving historic structures when a second structure is added.
Chair Holman: How would that address the condominiumization issue?
Commissioner Keller: What I am suggesting is that I am not specifying at this time whether or
not we are making any further changes to the condominiumization of the property but that we do
attempt to address the issue of preserving the historic structure.
Chair Holman: Okay, thank you. As seconder I will support that motion. I think it could be
more simple than what at first blush it might look to be so I will support that motion. I think it
accomplishes more of what is intended in the City and even by the original makers of the motion,
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the original Council. If it turns out to be more complicated than what is anticipated on my part
then we can boot it to a time in the future. Commissioner Sandas.
Commissioner Sandas: Thank you. I have a question. Chair Holman, you implied that there
were several other ordinances that would benefit by having such a clause, which is why I would
like to hear an answer to that before I decide ifI can support this motion or not.
Chair Holman: I wouldn’t say that there are several other ordinances and Staff can correct me if
I misstate here. There aren’t several other ordinances there are many Comp Plan policies and
goals that address looking for incentives to preserving historic structures. There are a number of
those in the Comp Plan. So those aren’t ordinances they are Comp Plan policies and goals. The
ordinance that maybe you are referring to is we have TDRs, Transfer of Development Rights,
that are saleable in Palo Alto and those require a covenant to be placed on the property in
exchange for selling that TDR. So what I was implying was that perhaps that exact language
could be picked up and applied to a property that might be considered for condominiumization in
exchange for permanent preservation of the historic resource. That was the ordinance that I
referred to. So we are not starting from scratch.
Any other comments? So we will vote on the motion to continue this item to a date Certain,
February 28, to give Staff opportunity to consider means by which preserving the historic
structures as a substitute motion. So all those in favor say aye. (ayes) All those opposed?
(nays) That motion fails on a four to three vote with Commissioners Keller, Burr and Holman
voting aye and Commissioners Tuma, Garber, Sandas and Lippert voting no.
So we are back to the original motion from Commissioner Garber to accept the Staff
recommendation to approve the ordinance. Commissioner Garber.
Commissioner Garber: Is it possible for the maker to add a friendly amendment?
Chair Holman: It is your motion.
Commissioner Garber: Let me suggest that we add a friendly amendment to this and that is that
we recommend to Staff to agendize this item for a study session or some other appropriate time
to address it.
Ms. Tronquet: I think you are going to need to clarify what ’this item’ is. The discussion about
historic.
Commissioner Garber: The discussion about supporting the historic intent of this ordinance.
Chair Holman: Does the seconder of the motion accept that?
Vice-Chair Lippert: I just want to clarify something. What is meant is that we move forward
with.recommending this to Council and then separate from that is that Staff would arrange for us
to have a study session talking about the historic implications.
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Commissioner Garber: How we might better support the historic intent of the ordinance.
Vice-Chair Lippert: Sure I can support that.
MOTION PASSED (7-0)
Chair Holman: Thank you, I appreciate that. Any other comments or questions?
All those in favor of the motion vote aye. (ayes) Opposed? That motion passes on a seven to
zero vote,
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Betten, Zariah Attachment E
Su~ect: FW: Janua~ 10, 2007, Commission Meeting, Item #3: Amendment to R-2 and RMD Zones
Herb Borock
P. O. Box 632
Palo Alto, CA 94302
January i0, 2007
Palo Alto Planning and Transportation Commission
City of Palo Alto
250 Hamilton Avenue
Palo Alto, CA 94301
JANUARY i0, 2007, COMMISSION MEETING, ITEM #3
PROPOSED AMENDMENT TO
PALO ALTO MUNICIPAL CODE SECTION 18.10.070(a)
SECOND DWELLING UNITS IN THE R-2 AND RMD DISTRICTS
Dear Planning and Transportation Commission:
I have already presented evidence in my January 8, 2007, letter to you
that the original language in the ordinance adopting the RMD zone
implements Council’s policy to require joint ownership of two condominium
units on one lot.
The same reasoning applies to the R-2 zone.
Therefore, I request that you add the following sentence to the end of the
proposed Section 18.10o70(a) [which, by the way, should be 18.10.070(a)] :
"The preceding sentence is declarative of the regulations that have
existed since the enactment of Ordinance No. 3048 (R-2 zone district)and
Ordinance No. 3447 (RMD zone district) that require joint ownership of
both units."
You should also change the proposed language of Section I.B for the
enactment date of the original RMD ordinance.
The Council introduced the ordinance for first reading on June 20, 1983.
Ordinances require two votes by the Council at least ten days apart.
I believe the’ correct date of the second reading and adoption
(enactment) of Ordinance No. 3447 was July ii, 1983, and the effective
date was August ii, 1983.
Section 6 of the proposed ordinance should be changed to make the
3/5/2007
Page 2 of 2
effective date of the ordinance 31 days,
not 30 days, after the enactment of the ordinance to conform to the
provision in Palo Alto Charter Article VI, Section 3, that ordinances are
not effective for the first 30 days after enactment to provide voters.~
30-day period to circulate referendum petitions:
Section 3. Referendum.
Any ordinance, other than such as may be required to be passed at a particular time or for the purpose of
complying with a charter or general law, and excepting such ordinances or measures for the immediate
preservation of the public peace, health, or safety, shall be subject to a referendum as herein provided. Provided
further that the petition for such referendum be filed within thirty days from the final passage of such ordinance,
and the same shall not be effective during said period during which the same is subject to referendum.
Staff recommendations, Commission recommendations, and Council actions
should not be based on whether somebody can make a legal argument or has
the resources to pay for a lawsuit.
The Council should not approve applications that violate the law when the
Council believes the applicant would sue if the Council made the correct
lawful decision.
The Council should not approve applications that violate the law when the
Council believes that nobody will challenge the Council’s unlawful action
in court.
The City Manager, the Director of Planning and Community Environment, and
the City Attorney should make recommendations and give advice to the
Council that enable the Counc±l to obey the law, regardless of the
financial resources of potential litigants.
Thank you for your consideration of these comments.
Sincerely,
Herb Borock
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3/5/2007
Herb Borock
P. O. Box 632
Palo Alto, CA 94302
December 7, 2006
DEC 0 ? 2006
~ent Of Ranning &
Community Environrr~mt
Palo Alto Planning and Transportation Commission
City. of Palo Alto
250 Hamilton Avenue
Palo Aito, CA 94301
DECEMBER 13, 2006, COMMISSION MEETING
PROPOSED AMENDMENT TO
PALOIALTO MUNICIPAL CODE SECTION 18.10.070(a)
SECOND DWELLING UNITS IN THE R-2 AND RMD DISTRICTS
Dear Planning and Transportatio~ Commission:
Please reject this proposed a~endment, because the legislative
history for the adoption of the.RMD zone district regulations makes
clear that requiring the same ownership for both units in an RMD-
zoned property is for the purpose of prohibiting the subdivision of a
lot of less than i0,000 square feet to create condominiums.
Similar reasoning leads to the conclusion that the regulations
requiring the same ownership for both units in an R-2 zoned property
is for the purpose o~ pr-ohibiting the subdivision of a lot~of less
than 12,000 square feet to create condominiums.
?he city council recently approved an illegal subdivision of an RMD
lot.
The individuals wh~ testified during the public hearing process on
that subdivision application have exhausted their administrative
remedies and now have the right to initiate litigation to overturn
the. Council’s action, because those individuals by their testimony
~ave the Council the opportunity to deny the subdivision application
and make litigation unnecessary.
The fact that nobody du.ring the public hearing process referred to a
specific remark in Council meeting minutes or a specific sentence in
a staff report does not prevent litigation, because the public
hearing testimony fairly apprised the Council of the issue contested.
In an administrative hearing, less specificity is required to
preserve an issue for appeal than in a judicial proceeding, because
the public in an administrative hearing is not represented by~
counsel.
Page 1 of 3
Attached to this.letter are copies of the legi.slative record for the
adoption of the RMD zone in 1983. ¯
CITY STAFF REPORT CMR:I05:3 (DECEMBER 23, 1982)
City Staff. Report CMR:I05:3 (December 23, 1982) for [he City Council-
~ee.ting of January i0, 1983,. recommended that Council direct staff to
draft an RMD ord±nance.
~e :foll~wing statements in CMR:i05:3 are relevant:
~t page 2, .last full paragraph, last sentence: "The ~ffect of ha.ving
ooth units under the.same ownership would be an increase in rental
ihousing which tends to be more affordable than condominium units
available for purchase.-" .
At page 4, second full paragrap.h, third sentence: "The Commission
ultimately recommended the.staff proposal on a 4-3 vote for two
principal reasons -- first, the ability to obtain additional rental
units would be a greater benefit to the community than additional
condominiums which have large~y~been unaffordable to all but higher
income households, ..."
CITY COUNCIL MINUTES, JUNE 20, 1983
On June 20, 1983, the City Eouncil considered the Planning Commission
recommendations for Zoning Ordinance amendments and zone changes in
College Terrace, including creating a new RM-D zone district.
(Agenda Item #3.)
The staff had recommended to the Planning Commission that the
Commission recommend to the Council that the new zone require both
residenti~l units to be under the same ownership.
The Commission deleted that requirement from its’recommendation to
the Council.
The Council restored the language {hat prohibited separate ownership
of the two units on a lot zoned RM-D.
The motion was made by Council Member Witherspoon, seconded by
Council Member Renzel, and approved by the Council on a 5 to 4 vote.
~he C~uncil then approved the ordinance for first reading, by a vote
of 8 to i, and adgpted the ordinance on th~ Consent Calendar of the
July ii, 1983, meeting by the same 8 to. i Vote.
~he purpose of the amendment was clearly stated by Chief Planning
9fficial Bruce Freeland as recorded on page 3454 of the Council
Minutes of J~ne 20, 1983:
Page 2 of 3
"Chief Planning Official Bruce Freeland clarified they were
talking about condominium subdivisions, ~and that in order to
physically divide one lot into two, each Xlot would require a minimum
of-5,000 square feet. For all practical purposes, the only way to
divide, the lots for separate ownership was through a condominium
division that would not actually affect the lot division. He further
clarified he was not attempting to undercut the thrust of th.e recent
arguments because staff still held its original position of
Preferring the joint ownership provision. "
DON’T ACT NOW
~he current urgency ordinance will be in effect long enough for you
to delay actin.g until the public has had the opportunity to challenge
the Council~s action in court.
36ntinuing this agenda item to a future date will aiso give staff the
ojportunity to document how ~nd why it made recommendatlons to the
Commiss±on and the council that are contradicted by the legislative
record, and that compelled the Commisslon and the Council to support
an urgency ordinance that provides an argument for one developer to
use to claim the language of the RMD ordinance means, the opposite of
what the legislative record says it means.
Thank you for your consideration of these comments.
Sincerely,
Herb Borock
Attachments:
i. CMR:i05:3 (December 23, 1982) (~ pages).
2. City Council Minutes, June 20, 1983, pages 3448 through 3455
(8 pages).
Page 3 of 3
Betten, Zariah
Subject:FW: RMD/R-2 Zoning Ordinance Amendment
..... Original N~essage .....
From: Pria Graves [mailto:priag@birketthouse.com]
Sent: Sunday, January 07, 2007 :~ :09 PN~
Dear Commission N~embers -
I encourage you to support adoption of the amendment as drafted. This is a simple clarification
R-2 zones.
While I agree with Herb Borak that the existing ordinance language should be quite clear enough,
Commission and the Council. So to prevent future misunderstandings, the code must be clarified.-
This proposed amendment does so.
During your discussion of the interim ordinance, at least one Commission member noted that some
modification to the rigorous prohibition of condominium creation might be beneficial. This is NOT
the purpose of the item before you: the Council was quite clear in their direction on November
20th that they were only requesting a clarification of the existing ordinance, not a change in the
other possible changes.
Thank you.
Pria Graves