HomeMy WebLinkAboutStaff Report 363-09TO: HONORABLE CITY COUNCIL
FROM: CITY MANAGER DEPARTMENT: PLANNING AND
COMMUNITY ENVIRONMENT
CMR: 363:09
DATE: SEPTEMBER 14, 2009
REPORT TYPE: PUBLIC HEARING
SUBJECT: Adoption of an Un codified Ordinance Extending The Life Of Valid
Permits Which Are Currently Active Or Are Approved By June 30,
2010, Pursuant To Title 18 (Zoning) Of The Palo Alto Municipal Code
EXEClTTIVE SUMMARY
The City has received an increasing number of requests for extensions of both building permit
plan checks and planning entitlements associated with major construction projects. Along with
these requests, there has been a decrease in both the issuance of new major building permits and
the submittal of major planning applications, coinciding with substantial changes in the local,
national and world ,economy. It is likely many planning entitlements and building permit plan
checks will expire before retail, office, and residential tenants can be found and financing can be
obtained to pay for development impact fees and project construction. The attached un-codified
ordinance is designed to allow for additional extensions of valid permits beyond the existing one-
year extensions currently allowed, so that affected projects can remain ready for a turnaround in
the finance market, enabling applicants to pay impact fees in effect at time of building permit
issuance, obtain building permits and begin construction. The ordinance would also allow the
City to recover the processing costs for extensions and to require projects benefitting fronl
additional extensions to comply with green building requirements adopted after the initial
approval of the entitlement. On July 29,2009, the Planning and Transportation Commission
recomnlended approval of the ordinance, allowing an automatic one-year extension and a second
year at the discretion of the Planning Director for most permits. For Site and Design and Planned
Community approvals, however, extensions would only be allowed upon approval by the City
Council after recommendation from the Commission.
RECOMMENDATION
The Planning and Transportation Commission (PTC) recommends that the City Council adopt
the proposed ordinance (Attachment A) to include:
• Automatic one,..year extensions of approved planning entitlements for certain permit types
(excluding Site and Design Reviews and Planned Community zoning, and excluding
CMR: 363:09 Page 1 of7
residential properties eligible and potentially eligible for listing as historic structures)
once other currently allowable extensions are exhausted;
• An additional one-year extension by the Director of Planning and Community
Environment (Director) beyond the extensions currently allowed by zoning regulations
for those applications, based on specific findings and subject to modification of
conditions (including imposition of green building requirements);
• Council review and approval of extensions for Site and Design Review approval and
Planned Community zoning, based on specific findings after recommendation by the
Planning and Transportation Commission (PTC); and
• The collection of fees to recover staff costs in processing such extensions.
Staff generally concurs with the PTC recommendations, but differs with respect to the Site and
Design and Planned Con1ll1unity projects. Staff recommends an automatic one-year extension
for those projects as well, with subsequent extensions requiring PTC review and Council
approval.
BACKGROUND:
This ordinance is presented as "uncodified" (not intended for placement within the Palo Alto
Municipal Code) since it is designed to "sunset" (become null and void) within a short time
period following adoption. The regulations in the following chapters of the Palo Alto Municipal
Code would be affected by the proposed uncodified ordinance:
Chapter 18.38 Planned Community District Regulations
Chapter 18.30(G) Site and Design (D) Review Combining District Regulations
Chapter 18.76 Permits and Approvals
Chapter 18.77 Processing of Permits and Approvals
The PTC reports and minutes provide additional background regarding the connection with
recent state law for subdivisions. The proposed ordinance would not apply to subdivision map
approvals because extensions are already available in accordance with State law. Lists of major
approved planning entitlements which have not commenced construction, and major projects for
which decisions are likely to be made prior to June 30, 2010, were provided to the PTC and have
been updated for Council (Attachment G). Recently, Council approved a development
agreement to extend approvals for the 200 San Antonio subdivision map and architectural review
for up to five years, so that project does not appear on the list of projects. Staff is concerned that,
unless Council approves the ordinance allowing additional extensions of valid permits, additional
development agreement applications will be submitted, necessitating the expenditure of
extensive City resources to process those requests.
Requests for extensions of Building Permit plan checks with associated major and minor
planning entitlements have been received with increasing regularity since early 2009. Staff has
been concerned that, unless additional extensions are allowed via Council approval of the draft
ordinance, building permit extensions approved by Building Division staff after review and
approval by the proj ect planner may result in permit issuances past the effective date of already
extended planning entitlements, with associated missed opportunities to require that projects
meet more recent legislation such as the City's mandatory green building ordinance.
CMR: 363:09 Page 2 of7
Director's Approvals
Most Director-approved planning entitlements expire if the use or construction has not
commenced prior to the expiration of the entitlement within one year of the effective date of the
approval, unless extended by the Director once for an additional year, totaling two years
(pursuant to PAMC Chapter 18.77). The effective date is considered to be 14 days after the
approval date. One exception to the two-year expiration is the phased Architectural Review
approval, which may be requested for major Architectural Review projects requesting phased
construction up to a maximum of five years and approved by the Director in conjunction with the
initial approval. The Director's approvals subject to the proposed ordinance are associated with
three different processes: (1) the Standard Staff Review Process (Variances, Conditional Use·
Permits and Neighborhood Preservation Exceptions); (2) the Architectural Review Process
(Major and Minor Architectural Reviews and Design Enhancement Exceptions); and (3) the Low
Density Residential Review Process (Single Family Individual Reviews and Home Improvement
Exceptions). Major architectural reviews are heard at an Architectural Review Board (ARB)
public meeting. The other Director's approvals listed above do not involve automatic public
hearings, but hearings may be requested within 14 days after issuance of a tentative Director's
decision.
Council Approved Entitlements
Discretionary planning permits approved by the City Council that would be subject to this
ordinance include Planned Conununity (PC) Zone Changes and Site and Design Reviews, and
appealed Director's approvals. Currently, PC zonings may be extended one time by Director's
approval for a period of one year after the approved development schedule; any additional
extensions can only be approved by Council. Staff recommends that Council approve a one-
year, automatic extension beyond the currently allowed one-year Director's extension of the PC
development schedule, whereas the PTC does not recommend an automatic extension. PC
development schedules are submitted by applicants with application materials and often are
outdated or otherwise unrealistic by the time the PC application and associated applications, such
as subdivision maps, are acted upon by City Council.
Currently, Site and Design Review permits expire after two years, unless associated with a
Vesting Tentative Map, and there are no extensions of time available by the Director's approval.
Staffrecommends that Council approve a one-year, automatic extension, whereas the PTC does
not recommend such automatic extension.
DISCUSSION:
The draft un-codified ordinance (as recommended by the PTC) is included as Attachment A, and
Attachment B indicates the permit life extensions that could result from Council adoption of the
proposed ordinance. The draft ordinance also includes that, beginning the first quarter of2011,
the PTC would review the ordinance for potential changes, then annually thereafter until it is
either repealed or extended. The planning permits that would be considered valid for application
of this ordInance are those permits still active as of July 1, 2009 and any permits approved
through June 30, 2010.
The proposed ordinance is intended to address the permit and project uncertainties resulting from
extraordinary current economic conditions. Director's and Council extensions would require the
CMR: 363:09 Page 3 of7
applicant possessing valid permits to submit a letter requesting such extension. Automatic
extensions following discretionary extensions would not require submittal of an extension
request and these extensions would not affect other performance or time requirements imposed
or associated with the subject permit, such as conditions of approval.
The projects that would qualify for application of this ordinance ("valid" permits) would include
active entitlements and entitlement applications that have been both filed ("pending" permits)
and approved before June 30,2010. The attached table (Attachment B) indicates the proposal
for planning entitlement time extensions and overall "permit life" for each type of permit.
For the proposed additional one-year Director's extension (beyond the one year Director's
extension already allowed as set forth in Titles 18 and the one-year automatic extension), the
Director would need to make specific findings as set forth in the draft ordinance, and would have
the discretion to add conditions of approval to the previously issued conditions of approval;
particularly, a condition requiring compliance with the City's Green Building Ordinance.
Active Planning Entitlements
Active planning entitlements are those entitlements that have been approved to date but have not
received a building permit and which have not yet expired. One example is an active project
reviewed by the ARB and initially approved by the Director in September 2007. The project
received a one-time, one-year extension in September 2008 but the applicant is not able to pay
fees and pick up a Building Permit in September 2009. The ordinance would allow the
automatic extension of the permit approval for one year and the potential for one additional year
extension by the Director until September 2011.
Pending Discretionary Review Proj ects
Pending discretionary review projects are those project applications that have not yet completed
the public hearing process and/or staff review process. June 30,2010 is proposed as the "cut-off'
date for approvals that may benefit from the time extensions set forth in the proposed ordinance,
such that a Director's approval issued between the effective date of the ordinance and June 30,
2010 would have one year on the original approval, and could request a one-year extension from
the Director under current regulations, followed by an automatic one-year extension if still
needed and then a request for a subsequent year at the Director's discretion. A Director's
approval issued June 30, 2009 could be stretched to June 30, 2013 under the proposal, rather than
2011 as allowed currently.
Return to Current Ordinance Regulations July 1, 2010
Beginning July 1, 2010, initial project approvals would once again be subject to the permit
expirations and extensions currently set forth in the Zoning Code, such that an applicant for a
Site and Design Review or Architectural Review (AR) application approved July 1, 2010, would
have to pay fees, pull a building permit and begin construction by July 1, 2012 (with one
extension in the case of the AR approval) to exercise that planning entitlement. However, given
that the proposed ordinance includes an annual review of the ordinance until repealed, the
extension process could be revised again at that time.
CMR: 363:09 Page 4 of7
COMMISSION REVIEW AND RECOMMENDATIONS
On July 22 and July 29, 2009, the PTC held public hearings regarding the proposed ordinance.
There were three speakers at the first hearing and two speakers at the second hearing. The PTC
staff reports, meeting minutes, and responses to Commissioner questions are attached to this
report as Attachments C-F (for Councilmembers only) and are available on the City's website at
http://www .cityofpaloalto.orglci vica/filebank/blobdload.asp ?BlobID= 16640
The PTC voted unanimously (5-0-2, with Garber and Rosati absent) to recommend Council
adoption of the draft ordinance that was presented with the July 29,2009 report with changes
and amendments incorporated into the annotated revised draft (Attachment A).
The PTC changes included moving the fee language, adding language allowing for the Director's
denial of an extension request based upon public health and safety findings and/or upon findings
related to compliance with applicable Zoning Code and Comprehensive Plan changes adopted
since the original application was deemed complete, and allowing adjustment ofproject approval
conditions to address such changes. The PTC also added conditions to allow automatic
extensions only after all other available extensions have been exhausted or the project would
otherwise expire, only for projects on non-historic properties (eligible and potentially eligible
residential properties included), and to disallow automatic extensions of Planned Community
zoning and Site and Design Review approvals. The PTC also added language to require the
ordinance to return to the PTC for review in the first quarter of 20 11, then annually thereafter
until it is either repealed or extended.
Items discussed by the PTC but not included in motions, amendments or the vote included the
addition of wording "substantially changed physical conditions" having to do with Site and
Design and PCs and also whether public notice of Director's extensions was appropriate. The
PTC also did not support requiring public notice prior to considering extensions by the Director.
ALTERNATIVES
An alternative or amendment to the PTC recommendation, as recommended by staff, would be to
allow automatic extensions to (1) extend Site and Design Reviews one year (one-time only), and
(2) extend Planned Community zones (PCs) by one additional year beyond the currently
allowable one-year Director's extension of a PC approval. The reasons staff continues to
recommend one-time, one-year automatic extensions for these permits include resource impacts
and public hearing scheduling concerns. If the Council supports this alternative, Ordinance
Section 2, item (a) 3 would be deleted, and items (b) 3 and (c) would be modified.
A variation of this alternative would allow the Director, based upon the same approval findings
as set forth in the draft ordinance, to extend the permit approvals for an additional year prior to
review and approval by the PTC and City Council. The reason staff would support this option is
to address the concern expressed by the PTC regarding automatic extensions for such projects, to
allow the Director to adjust approval conditions or deny the extension request based upon public
health and safety and any applicable Zoning and Comprehensive Plan changes. Implementation
of this variation would necessitate changes to items (a) 3, (b) 3 and (c) of Ordinance Section 2.
CMR: 363:09 Page 5 of7
RESOURCE IMPACT
The proposed ordinance would generally not affect City revenues or costs, but would preserve
opportunities to move forward with development projects (with attendant economic benefits),
and would minimize City costs associated with processing Development Agreements or other
forms of extension requests. The extensions allowed by the proposed ordinance would not reduce
the amount of impact fees received by the City. Development impact fees are generally due upon
issuance of building permits and are assessed at the rate in effect at the time of building permit
issuance. Some fees, such as Parkland Dedication In-Lieu Fees, nlay be required at the submittal
of a Final Map or Parcel Map. Other fees are also due at the time of building permit issuance.
POLICY IMPLICATIONS:
Applicable Comprehensive Plan goals and policies were shared with the PTC and are contained
in the PTC staffreport of July 22,2009 (Attachment D). Some of the major projects on the list
shared with the PTC (updated for Council as Attachment G) have the potential to bring new
businesses to Palo Alto to enhance economic vitality. By extending the life of these permits,
development can occur with nlinimal delay once financing is obtained. The City would be
positively affected by being able to accommodate these developments as soon as the economy .
turns around.
If the ordinance is not enacted, applicants of major and minor discretionary projects would need
to re-apply and go through public hearings all over again. Staff might need to process each major
project approval extension request as an individual ordinance amendment or development
agreement. Having to refocus on past approved projects in addition to new project planning
applications would consume staff, ARB, PTC and Council time and resources and could result in
insufficient staffing to process all of the applications and other special projects, such as the retail
protection ordinance.
ENVIRONMENTAL REVIEW:
Pursuant to Title 14 of the California Code of Regulations, Section 15061(b)(3), this ordinance is
exempt from the requirements of the California Environmental Quality Act (CEQA) in that it is
not a project which has the potential for causing a significant effect on the environment.
Previously approved proj ects would have undergone environmental review during the initial
approval process.
PREPARED BY:
. H
Planning Manager
DEPARTMENT HEAD:
CURTIS WILLIAMS
Director of Planning and Community Environment
CITY MANAGER APPROVAL:
CMR: 363:09 Page 6 of7
ATTACHMENTS:
Attachment A:
Attachment B:
Attachment C:
Attachment D:
Attachment E:
Attachment F:
Attachment G:
Draft Ordinance Extending Valid Planning Entitlements
Time Extensions for Valid Planning Entitlements
PTC staffreport dated July 29,2009 (w/o attachments)
PTC staffreport dated July 22,2009 (w/o attachments)
Excerpt Minutes ofPTC meeting July 29,2009 (Council only)
Excerpt MinutesofPTC nleeting July 22, 2009 (Council only)
Updated List of Approved and Pending Major Projects
COURTESY COPIES:
Architectural Review Board
Larry Perlin, Chief Building Official
CMR: 363:09 Page 7 of7
NOT YET APPROVED
Ordinance No. ----An Uncodified Ordinance of the Council of the City of Palo
Alto Extending the Life of Specific Permits Which Are
Currently Active Pursuant to Title 18 (Zoning) of the Palo alto
Municipal Code
The Council of the City of Palo Alto does ORDAIN as follows:
SECTION 1. Recitals.
A. Title 18 (Zoning) of the Palo Alto Municipal Code (P AMC) establishes
permit types, specific plan districts and general procedures including approval process, life of
permit and extensions, and
B. PAMC Title 18 provides that permits shall become null and void if not
exercised within one (1) year from the date of approval by the final review authority, with the
exception of Site and Design Review Permits which shall become null and void if not exercised
within two (2) years of such approval; and
C. PAMC Title 18 allows the Director of Planning and Community
Environment to approve extensions of time up to one (1) year to exercise certain permits if
requests for an extension of time are received and approved prior to the expiration of the original
permit; and
D. The City of Palo Alto has approved numerous permits of varying scale
pursuant to Title" 18 of the Municipal Code. Such permits have been reviewed and approved by
the Director of Planning and Community Environment or City Council. Current timelines
established by Title 18 will result in the expiration of such permits within the near future; and
E. The current economic climate caused many construction projects to be
deferred until adequate finanCing can be secured by applicants and property owners. The current
time line established for permits issued by the City of Palo Alto is an undue hardship on these
applicants and requires interim local government assistance; and
F. On July 22, 2009, the Planning and Transportation Commission conducted a
public hearing to consider this ordinance and on July 29, 2009, the Commission recommended
approval to the City Council.
SECTION 2. Permit Extensions -Uncodified Ordinance.
(a) All permits, approved pursuant to the provisions of the City of Palo Alto
Municipal Code, Title 18, that are valid as of July 1, 2009 through June 30, 2010, are granted an
additional one (1) year Automatic Extension in which to exercise the permit, subject to the
following limitations:
1
090901 syn 0120391
NOT YET APPROVED
(1 ) Automatic Extensions may only be applied after all other existing extensions
available in the zoning code have been exhausted and the project would otherwise expire;
(2) Project approvals that involve historic structures (including those identified as
potentially eligible for California Register designation) may only be extended with approval of
the Director pursuant to item (b) below; and
(3) Site and Design Review approvals and Planned Community zoning approvals
may only be extended with City Council approval pursuant to item (c) below.
(b) In addition to the provisions in ( a) above and all other extensions of time that
are allowed (Allowed Extensions) pursuant to Title 18 of the Palo Alto Municipal Code, any
permit approved by the Director of Planning and Community Environment or City Council that
is valid as of the adoption of the this ordinance through June 30, 2010, may be granted up to an
additional one (1) year (Additional Extension) by the Director of Planning and Community
Environment if approved before the pending expiration date of the permit, subject to the
following limitations or allowances:
(1) The Director must find that the project would not adversely affect public
health or safety and would not substantially conflict with any applicable Zoning Code or
Comprehensive Plan changes that have been adopted by the City Council since the original
application was deemed conlplete, and may otherwise adjust project conditions to address minor
changes. The Director shall deny an extension request if either of these findings are not made.
(2) The Director may grant two one (1) year extensions for project approvals that
involve historic structures (including those identified as potentially eligible for California
Register designation) and did not receive an Automatic Extension; and
(3) Site and Design Review approvals and Planned Community zoning approvals
may only be extended with City Council approval pursuant to item (c) below.
(c) Site and Design Review approvals and Planned Community zoning approvals
may be extended for a maximum of two (2) years with City Council approval after review and
recommendation by the Planning and Transportation Commission. In order to grant such an
extension, the City Council must find that the project would not adversely affect public health or
safety and would not substantially conflict with any applicable Zoning Code or Comprehensive
Plan changes that have been adopted by the City Council since the original application was
deemed complete, and may otherwise adjust project conditions to address minor changes. The
City Council shall deny an extension request if either of these findings are not made.
(d) All Additional Extensions shall be subject to compliance with the City's
Green Building Requirements set forth in PAMC Chapter 18.44 as further defined in Green
Building requirements adopted by Council Resolution.
2
090901 syn 0120391
NOT YET APPROVED
(e) Fees for all extensions shall be collected to recover staff costs of
processing such extensions.
(f) This ordinance shall be reviewed by the Planning and Transportation
Commission and City Council not later than March of 2011 and annually thereafter to determine
whether it should remain in effect, be repealed or further extended.
(g Nothing in this ordinance shall affect other performance or time
requirements imposed or associated with the subject permit (Conditions of Approval).
SECTION 3. Constitutionality; Severability. If any section, subsection, sentence,
clause or phrase of this ordinance is for any reason held to be invalid by a court of competent
jurisdiction, such decision shall not affect the validity of the remaining portions of this
ordinance. The City Council hereby declares that it would have passed this ordinance, and each
section, subsection, sentence, clause and phrase thereof irrespective of the fact that anyone or
more sections, subsections, sentences, clauses or phrases be declared invalid.
SECTION 4. This ordinance shall be effective upon the thirty-first (31st) day after
its adoption.
INTRODUCED:
PASSED:
AYES:
NOES:
ABSTENTIONS:
NOT PARTICIPATING:
ABSENT:
ATTEST:
City Clerk
APPROVED AS TO FORM:
Assistant City Attorney
090901 syn 0120391
3
APPROVED:
Mayor
City Manager
Director of Planning and
Community Environment
ATTACHMENT B
Time Extensions for Valid Planning Entitlements
Permit Type
ARB, DEE, CUP, V AR,
IR, HIE, NPE
Site and Design Review
Planned Community
Table 1 (PTe recommendation)
Time Extension -Permit Life
Current Code Requirements
Initial Permit Allowed
Life Extension(!SJ . ~~
1 year 1 year 1 year;
available
only after
Allowed
Extensions
2 years unless 0 o years
associated with
a Vesting
Tentative Map
Per 1 year o years
development
schedule
-~-~,--~---~ .... ~ "4~O_ .. ~.
I-year Up to 4 years
extension by unless
Director associated with a
Vesting Tentative
One Up to 4 years
extension by unless
Council up to associated with a
two Vesting Tentative
additional Map
rears
One Up to 3 years +
extension by timeline in
Council up to development
2 additional schedule
1. The proposed ordinance would apply to column one permit types valid from ordinance adoption through June 30, 2010.
2. Project applicants must apply for any extension prior to the permit expiration date.
3. Maximum permit life may be acquired through a combination of initial permit life, allowed extensions, additional extensions and
automatic extension.
ATTACHMENT C
PLANNING AND TRANSPORTATION
DIVISION
STAFF REPORT
TO: PLANNING AND TRANSPORTATION COMMISSION
FROM: Amy French
Planning Manager
DEPARTMENT: Planning and
Comnluluty Environment
AGENDA DATE: July 29,2009 (continued from July 22,2009)
SUBJECT: Un-Codified Ordinance -Time Extensions affecting the expiration and
allowed extensions of various planning entitlenlents as permitted through
the Palo Alto Municipal Code, Title 18, Zoning Code
BACKGROUND:
On July 22, 2009, the Planning and Transportation Commission (PTC) heard from three speakers
on this item and continued the public hearing after taking a "straw poll" of PTC members. The
consensus vote by PTC mernbers was for:
• No automatic extensions;
• Up to two, one-year extensions by the Director;
• Green Building requirements apply to extended projects;
• Director can add conditions to address changes to Zoning Code and Comprehensive Plan;
• No demolitions before issuance of building permits for extended projects, unless unsafe;
• Site & Design and Planned Community approvals extended by Council after PTC review.
One Commissioner requested information about approved major entitlements having exceptions,
noted past practice for extending approved entitlements, and corresponded with staff after the
PTC hearing regarding her concern about extending approvals for historic properties which may
not have been previously subject to CEQA review.
RECOMMENDATION AND DISCUSSION:
Staff recommends that the PTC recommend Council approval of the attached ordinance
(Attachment A), revised to address the July 22,2009 PTC comments. The attached ordinance as
revised does not include any automatic extensions; however, staff continues to advocate for at
least a one year automatic extension for all permits except Site and Design Reviews and Planned
Communities, to facilitate workload and address financial issues of applicants for smaller
projects approved within the past several years.
Page 10f2
The revised ordinance provides for up to two additional one-year extensions by Director of
Planning and Con1ll1unity Environment (Director) approval, except for Site and Design Review
and Planned Communities, in addition to current code regulations for extensions. For Site and
Design Reviews and Planned Communities, the revised ordinance proposes an additional
extension up to two years by Council upon recommendation by the PTC, beyond the one-year
Director's extension currently allowed for Planned Community approvals but not allowed for
Site and Design Review approvals. The revised table (Attachment B) attached to the Ordinance
provides further specificity.
ATTACHMENTS:
Attachment A:
Attachment B:
PREPARED BY:
Revised Draft Ordinance Extending Valid Planning Entitlements
Revised Time Extensions for Valid Planning Entitlements
Amy French, AICP, Current Planning Manager
DEPARTMENT HEAD APPROVAL:
Curtis Williams, AICP, Director
City of Palo Alto Page 2 of2
ATTACHMENT D
PLANNING AND TRANSPORTATION
DIVISION
STAFF REPORT
TO: PLANNING AND TRANSPORTATION COMMISSION
FROM: Amy French
Planning Manager
AGENDA DATE: July 22,2009
DEPARTMENT: Planning and
Community Environment
SUBJECT: Un-Codified Ordinance -Time Extensions affecting the expiration and
allowed extensions of various planning entitlements as permitted through
the Palo Alto Municipal Code, Title 18, Zoning Code
RECOMMENDATION:
Staff recommends that the Planning and Transportation Commission (PTC) recommend Council
approval of the attached ordinance (Attachnl~!lt A), which would automatically extend valid
planning entitlements two years and would allow for an additional year of extension by the
Director of Planning and Community Environment (Director) beyond the one-year extension
currently allowed for most entitlements as well as to allow the Director to extend Site and Design
Review approvals up to a year beyond the automatic extension. The planning permits which
would be considered valid are those active permits as of July 1, 2009 and approved permits
through June 30, 2010. The table (Attachment B) attached to the Ordinance provides further
specificity.
BACKGROUND:
Since late 2008 there has been a steady decline in the issuance of rp.ajor building permits, and a
decrease in the submittal of major planning applications beginning the first quarter of 2009. This
reduction coincides with dramatic changes in the local, national and world economy. The City
has received an increasing number of requests for extensions of building permit plan checks and
planning entitlements associated with major construction projects. In one recent case, an
applicant submitted a development agreement to extend approvals for up to five years. Due to the
current state of the economy, it is likely many planning entitlements and building permit plan
checks will expire before financing can be obtained to pay for development impact fees and
project construction.
Page 1 of6
Development impact fees are generally due upon issuance of Building Permits and are assessed
at the rate in effect at the time of building permit issuance. Some fees, such as Parkland
Dedication In-Lieu Fees, may be required at the submittal of a Final Map or Parcel Map. Other
fees are also due at the time of building permit issuance. To facilitate implementation of
approved projects and projects pending approvals within this fiscal year, staffhas prepared an
un-codified ordinance to allow these projects to remain ready for a turnaround in the finance
market, so that applicants may quickly respond to pay impact fees, obtain building pennits and
begin construction.
Connection with Subdivision Expirations
On July 15, 2008, the California State Senate approved Senate Bill (SB) 1185, which provides a
one year automatic extension of subdivision maps due to the current economic state. This is
similar to past legislation adoptea in the 1990' s which also extended the life of subdivision nlaps
due to a recession. SB 1185 is an important piece of legislation that allows developers to retain
valid subdivision maps and thus future financing once the economy improves. The proposed
ordinance does not pertain to approved Tentative Maps and Preliminary Parcel Maps, since
extensions of subdivision approvals are covered by state law.
However, the legislation does not address planning permits that have been issued by local
government. Title 18 sets forth the expiration of discretionary permits from the effective date of
the approval and for most applications, allows for a one-time, one-year extension by the
Director. Therefore, planning permits for construction projects may expire before the associated
subdivision map if a developer does not obtain necessary building permits and commence
construction. This leaves the developer in the awkward position of having to re-apply for the
same or similar planning entitlements.
Director's Approvals
Most Director-approved planning entitlements expire if the use or construction has not
commenced prior to the expiration of the entitlement within one year of the effective date of the
approval, unless extended by the Director for an additional year, totaling two years. The
effective date is considered to be 14 days after the approval date. One exception to the two-year
expiration/is the phased Architectural Review approval, which may be requested for major
Architectural Review proj ects requesting phased construction up to a maximum of five years and
approved by the Director in conjunction with the initial approval.
As set forth in Chapter 18.77 'Processing of Permits and Approvals', Section 18.77.090
'Expiration of Approvals', permits automatically expire after twelve months unless otherwise
provided in the permit or approval unless the proposed use of the site or construction of the
building has conlillenced or unless a request for a one-year, one-time extension has been
received by the Director prior to the permit expiration.
The Director's approval is associated with four processes: (1) the Standard Staff Review Process,
which includes Variances, Conditional Use Permits and Neighborhood Preservation Exceptions;
(2) the Architectural Review Process, which includes Major and Minor Architectural Reviews
and Design Enhancement Exceptions; (3) the Low Density Residential Review Process, which
includes Single Family Individual Reviews and Home Improvement Exceptions; and (4) the
City of Palo Alto Page 2 of6
Preliminary Parcel Maps (without exception) Process, which allows the Director to approve
subdivisions of land into four units or less. As noted earlier, the proposed ordinance would not
apply to subdivisions since extensions are already available in accordance with state law. Major
architectural reviews are heard at an Architectural Review Board (ARB) meeting, and
preliminary parcel maps (without exceptions) are heard at a Director's Hearing. The other
Director's approvals listed above do not involve automatic public hearings, but hearings may be
requested within 14 days after issuance of a tentative Director's decision.
Council Approved Entitlements
Discretionary planning permits approved by the City Council include Zone
AmendmentslRezonings and Comprehensive Plan Amendments (which do not expire), Planned
Community Zone Changes, Site and Design Reviews, Tentative Subdivision Maps and
Preliminary Parcel Maps with Exceptions, Vesting Tentative Maps, and Development
Agreements.
Planned Community zonings can be extended one time by the Director's approval for a period of
one year after the approved development schedule, but any additional extensions can only be
approved by Council. Site and Design Review permits expire after two years, unless associated
with a Vesting Tentative Map, and there are no extensions of time available by the Director's
approval.
Affected Code Sections
The regulations in the following chapters of the Palo Alto Municipal Code would be affected by
the un-codified ordinance:
Chapter 18.3 8
Chapter 18.30(G)
Chapter 18.76
Chapter 18.77
DISCUSSION:
Planned Community District Regulations
Site and Design (D) Review Combining District Regulations
Permits and Approvals
Processing of Permits and Approvals
The proposed, un-codified ordinance is intended to address the extraordinary, current economic
conditions. The proposal is for a two-year automatic extension beyond the initial approval
effectiveness for valid permits, such that no hearings would need to be held nor paperwork
processed for the automatic extensions. The automatic extension would not require submittal of
an extension request by the applicant, and the extension would not affect other performance or
time requirements imposed or associated with the subject permit, such as conditions of approval.
"Valid" permits would include both active entitlements, and pending entitlen1ents approved on or
before June 30, 2010.
For the proposed additional year extension by the Director beyond the one year Director's
extension already allowed as set forth in Titles 18, the Director would have the discretion to add
conditions of approval to the previously issued conditions of approval; particularly, a condition
requiring compliance with the City's Green Building Ordinance. The attached table (Attachment
B) graphically indicates the proposal for planning entitlement time extensions and overall
"permit life".
City of Palo Alto Page 3 of6
Active Planning Entitlements
Active planning entitlements are those entitlements that have been approved to date but have not
received a building permit and which have not yet expired~ A list of the active major planning
entitlement projects is provided as Attachment C. Hundreds of other smaller projects, such as
Individual Reviews and minor Architectural Reviews, are also active but are not included on the
list for brevity.
One example is an active project reviewed by the ARB and initially approved by the Director in
Septenlber 2007. The project received a one-time, one-year extension in September 2008 but the
applicant is not able to pay fees and pick up a Building Permit in September 2009. The
ordinance would allow the entitlement to remain in the active state until September 2011, when
development fees must be paid at rates then in effect in order for the building permit to be issued.
Construction must commence to maintain the active status, and the project would be subject to
the same conditions of approval issued in 2007. If the applicant were still unable to pull a
building permit, the applicant could then request a second, one-year Director's extension to
September 2012, but would be subject to meeting the City's Green Building regulations and
. other additional conditions at the discretion of the Director. Architectural Review approvals that
included phasing as a part of the initial approval could also benefit from the ordinance. Phased
Architectural Review approvals have been uncommon in recent years.
Pending Discretionary Review Proj ects
Pending discretionary review projects are those project applications that were submitted prior to
the effective date of the proposed ordinance, but which have not yet completed the public
hearing process and/or staff review process. A list of pending major planning entitlement
projects is provided as Attachment D.
June 30, 2010 is proposed as the "cut-off' date for approvals which may benefit from the time
extensions set forth in the proposed ordinance, such that a Director's approval issued between
the effective date of the ordinance and June 30, 2010 would have three years on the original
approval, and could request two more one-year extensions from the Director. Therefore, a
Director's approval issued June 30, 2009 could be in effect until June 30, 1014, subject to two
Director's extension approvals and any additional conditions imposed. A Council approved
project such as a Site and Design Review approval issued by June 30, 2010, could be in effect
until June 30,2015, with an automatic four years effectiveness plus one year Director's
extension.
Return to Current Ordinance Regulations July 1, 2010
Beginning July 1,2010, initial project approvals would once again be subject to the permit
expirations and extensions currently set forth in the Zoning Code, such that an applicant for a
Site and Design Review or Architectural Review application approved July 1, 2010, would have
to pay fees, pull a building permit and begin construction by July 1,2012 (with approval of one
extension in the case of the architectural review approval) to exercise that planning entitlement.
Green Building Requirements
It was not intended that the proposed automatic, two-year-Iong extension of valid approvals
would result in minor projects being subject to the City's green building requirements, as long as
City of Palo Alto Page 4 of6
the project was initially approved prior to the effective date of the ordinance. However, staff
anticipates that the PTC and C9uncil may wish to require major projects to comply with the
City's Green Building regulations in effect at the time of the extension. Requests for extension
beyondthe initial, automatic extension would be subject to the Director's discretion, and all such
projects would likely be subject to the City's green building requirements.
POLICY IMPLICATIONS:
The applicable Comprehensive Plan goals and policies below provide support for the proposed
time extensions:
• Goal B-3 states, "New businesses that provide needed local services and municipal
revenues, contribute to economic vitality and enhance the City's physical environment."
Under Goal B-3, Program B-2 states, Implement the City's Economic Resources Plan;
objectives of the plan include revisiting past policies that affect business to determine
whether they are still relevant, and establishing a market perspective within the City
organization.
Staff s approach to the proposed extensions is in response to market conditions. Some of the
projects on the lists (Attachments C and D) have the potential to bring new businesses to Palo
Alto to enhance economic vitality.
• Goal B-4 states, "City regulations and operating procedures that provide certainty and
predictability and Help Businesses Adapt to Changing Market Conditions." Under Goal
B-4, Policy B-16 states "encourage streamlining of City administrative and regulatory
processes wherever possible. Reduce inefficiencies, overlap and time delays associated
with these processes." Program B-1 0 states, "Revise zoning and other regulations as
needed to encourage the revitalization of aging retail areas."
By extending the life of these permits, development can occur with minimal delay once
financing is obtained. The City would be positively affected by being able to accommodate
these developments as soon as the economy turns around. If the ordinance is not enacted,
applicants would need to re-apply and go through public hearings all over again, or staff would
need to process each project approval extension request as an individual ordinance amendment
or development agreement, which would consume much more staff, ARB, Commission and
'Council time and resources.
NEXT STEPS/TIMELINE:
The ordinance is tentative scheduled for City Council consideration on September 21, 2009. The
Council could adopt the ordinance with time frames as suggested, or with modified time frames
or other modifications, or take no action.
ENVIRONMENTAL REVIEW:
Pursuant to Title 14 of the California Code of Regulations, Section lS061(b)(3), this ordinance is
exempt from the requirements of the California Environmental Quality Act (CEQA) in that it is
not a project which has the potential for causing a significant effect on the environment.
City Page 5
ATTACHMENTS:
Attachment A:
Attachment B:
Attachment C:
Attachment D:
Draft Ordinance Extending Valid Planning Entitlements
Time Extensions for Valid Planning Entitlements
List of Approved Major Projects without Building Permits
List of Pending Major Discretionary Review Projects
COURTESY COPIES:
McNellis Properties
James E. Baer, Premier Properties
Friends of Alma Plaza
Dr. VanDer Wilt
PREPARED BY: Amy French, AICP, Current Planning Manager
DEPARTMENT HEAD APPROVAL:
City of Palo Alto
Curtis Williams, AICP
Interim Director
Page 6of6
ATTACHMENT E
1 Planning and Transportation Commission
2 Verbatim Minutes
3 July 29, 2009
4
5 EXCERPT
6
7 Review and Recommendation of an Uncodified Ordinance relating to Time Extensions for active
8 pennits previously approved pursuant to Palo Alto Municipal Code, Title 18, Zoning Code.
9 Environmental Assessment: Exempt from the requirements of the California Environmental
10 Quality Act (CEQA) requirements pursuant to Title 14 of California Code of Regulations,
11 Section 15061 (b )(3). (This item was continued from the July 22 Special PTe Meeting).
12
13 Ms. Amy French, Current Planning Manager: Yes, and emailed to you yesterday what is at
14 places tonight, an addendum update citing the six bullet points of the straw poll taken last
15 meeting, as well as reflecting one of the Commissioner's statements in an email. We did have
16 questions from Commissioner Keller today that were responded to again at places so you should
17 all have that. Also included in that was a response to Commissioner Holman's question that was
18 forwarded to Julie Caporgno.
19
20 So basically we came back with a revised ordinance to reflect what had gone through the straw
21 poll last time. There is an associated table, revised Attachment B that is attached to that updated
22 memo showing kind of the elimination of any automatic extension though Staff still would
23 support an automatic extension if desired, and showing kind of the maximum pennit life if
24 extended out with these additional extensions. I will leave it at that.
25
26 Vice-Chair Tuma: Okay. At places I am seeing just the response to Commissioner Keller's
27 question. I see on the back is Commissioner Holman's.
28
29 Okay, Commissioners we came just short of a motion at our last meeting. So I think where we
30 left off was we had taken a straw poll on the items that are identified in this week's Staff memo.
31 There were some other items that we didn't poll on that obviously are still fair game for this
32 evening's discussions, but to the extent that we can avoid going back through ground we have
33 been through that would be great.
34
35 At this point I open the public hearing. I don't have any cards from anybody from the public. I
36 do have two cards so Commissioners we will go to the public first and then come back to the
37 Commission. The first speaker is Roxy Rapp followed by Rick Barry. You will have three
38 minutes.
39
40 Mr. Roxy Rapp, Palo Alto: Good evening. As you probably all are aware I kind of grew up here
41 since 1947 and seen a lot of changes in Downtown Palo Alto. I am here to support the City
42 Staff s report. I personally really need it. I have approval for 278 University which is a four
43 story office building where Noah's and Starbuck's used to be right across the street from the new
44 Walgreen's building being built.
45
Page 1
1 Basically there is no financing out there to build it. You are being penalized because you have
2 retail on the ground floor and the lending community because of the recession that we are in is
3 penalizing you for having retail. Then the other thing is that there is so much vacancy they are
4 requiring you to have it three-quarters vacant when you go out to get a construction loan or even
5 a permanent loan. You just can't get one.
6
7 I wish I could see the light at the end of the tunnel. I really feel it is going to be a good year or
8 two years. I really feel it is closer to two years before we are going to see a change on this. So I
9 think it is going to support all of us. I talked to John McNellis. I talked this evening with Chop
10 Keenan. He couldn't be here. He is in support of this also. So I am just here to say Amy, thank
11 you for writing up this excellent report, and I am here to support it for the future. I want improve
12 Downtown Palo Alto and as soon as the financial market changes I am going to get started
13 immediately. Thank you.
14
15 Vice-Chair Tuma: Thank you. Rick Barry. Welcome.
16
17 Mr. Rick Barry, Palo Alto: I also have a project in Downtown and I also am here to encourage
18 you to support this ordinance. We have a project on University Avenue and given the current
19 situation I agree with Roxy. I think it is going to be a couple of years before we can really
20 proceed with this given the retail situation, given the financial situation with the banks fmancing
21 is difficult, retail tenants are difficult to find, and the requirements the banks are putting on us are
22 just ridiculous at this point We can't meet them. So in short I would just like to thank Staff for
23 recognizing what is going on in the Palo Alto community, and I strongly encourage you to
24 support this. Thank you.
25
26 Vice-Chair Tuma: Thank you. Commissioners, so far I have a light from Commissioner
27 Lippert. Do you want to get us started?
28
29 Commissioner Lippert: No.
30
31 Vice-Chair Tuma: Okay, Commissioner Keller.
32
33 Commissioner Keller: So I asked a few questions and I would like to make some comments on
34 that, or do you want questions first?
35
36 Vice-Chair Tuma: Go ahead and do comments and questions together. Are these follow-ups to
37 the questions?
38
39 Commissioner Keller: Yes, they are some analysis of the questions I asked. So it seems to me
40 that in terms of the answers to my questions, it seems to me that allowing an automatic one-year
41 extension on the projects that would otherwise expire after exhausting all extensions in the
42 period from the ordinance enactment to June 30, 2010 seems like a reasonable thing to do.
43 Essentially if you do A on my list then B is moot the way it should be worded which is,
44 exhausting all other possible extensions. The other thing is if you do that you have a maximum
45 one-year discretionary extension. So if you have the automatic extension then you have one
46 more year after that as opposed to two extra years, if that makes sense. So a maximum of two
Page 2
1 total. So that is A. A is only exhausting all available extensions that would otherwise expire
2 during the year through June 30, 2010.
3
4 B basically says that you get two extensions, either two discretionary or one automatic and one
5 discretionary.
6
7 With respect to C and D I think that the con1ffients back from Staff indicate something to the
8 effect of would like to have minor and major ARB for multifamily residential but not ARB only
9 mixed use on 195 Page Mill. I actually like that division myself. So I would actually go for D,
10 which is an automatic one-year extension applies only to residential projects, no actually applies
11 to but also there is the issue of historic. So I am wondering what people's thoughts are in
12 terms of residential or commercial. I certainly agree with Karen Holman's question and the
13 implication of her comment on the back about I-C. So I would like to hear from other people
14 and then maybe I will make a motion.
15
16 Vice-Chair Tuma: Planning Director, I know we got answers to questions here but did you want
17 to make any comments on the various different options we are looking at here with respect to the
18 automatic extensions in terms of what is workable?
19
20 Ms. French: Sure. Well, automatic makes it easy. A one-year automatic that would be great. If
21 we want to exclude from that automatic extension mixed use projects, residential projects that
22 are on the Historic Inventory or Eligible for California or National register that's fine, if you are
23 leaning towards allowing a one-year automatic for certain types of projects. It would be not hard
24 to craft that wording to send to Council.
25
26 As far as the other responses, what about the cost recovery? Right now we don't take in any fee
27 to extend because it is not a lot of effort to extend permits as long as they have met the timeline.
28 With the Commission's proposal to send it to the Planning Commission and Council for a
29 decision on permit extensions for Site and Design and Planned Communities that would incur
30 Staff time so we would need to come up with a fee to cover that. So those are my comments.
31
32 Mr. Curtis Willianls, Planning Director: Just to add to that I think we had originally
33 recommended two years automatic extension. So our preference certainly of these options is
34 probably I would think B, which is that if you are not comfortable with two years automatic then
35 oh, yes C and a variation of -you are saying D.
36
37 So essentially having a one-year automatic in addition to whatever they are allowed now and
38 then having a discretionary one additional year and that's it kind of thing. As you mentioned, for
39 PCs and Site and Designs that would be more of a discretionary type of exception where we
40 would come to the Commission and Council. So I think the only difference probably between D
41 and where we would really prefer to be is that for the ARB projects, mixed use or strictly
42 commercial, that it seems to us that one-year automatic is appropriate there too but if you are not
43 comfortable with that then we would suggest the two one-year discretionary exceptions that Mr.
44 Keller's motion had in last week. So we think those are generally clean projects and those are
45 exactly the kind of situations that Mr. Rapp spoke about, well both speakers spoke about,
46 projects that are in that category. It seems like to have at least one-year automatic would be a
Page 3
1 reasonable way to go but we can certainly live with two one-year Director discretionary
2 exceptions if that is what you are comfortable with.
3
4 Vice-Chair Tuma: Commissioner Lippert, you had a follow on to that?
5
6 Commissioner Lippert: Yes. I am interested with regard to the Housing Element of the
7 Comprehensive Plan. If there was a project that was zoned as part of our Housing Element and
8 the approval on that expired, in other words the discretionary approval on it, would that impact
9 us then not being in compliance with our own Comprehensive Plan?
10
11 Mr. Williams: No, it doesn't. The Housing Element never is tied to actually constructing the
12 housing anyway. It is just that you have planned to do that. Now if for some reason the City
13 reversed course on that and said before the site was approved and now weare not going to allow
14 it to be extended and we are not going to approve a new proj ect on there that would be
15 something. In this case, the reality is, and I think there is only one project on this list that is a
16 designated housing site that is out there. We certainly wouldn't want to lose that affordable
17 housing but by the same token we happen to know that on that project they are getting hopefully
18 some federal funding that is going to make this a very fast tracked construction project, and a
19 real project in a hurry. If that doesn't happen for some reason then there is some dilemma there,
20 but I don't really think legally it affects our Housing Element.
21
22 Commissioner Lippert: Okay.
23
24 Vice-Chair Tuma: Commissioner Fineberg.
25
26 Commissioner Fineberg: My question is for Planning Director. Can you recap the conditions or
27 findings that would apply in the discretionary reviews? Let's say it is a PC or a multifamily
28 housing project where there is no automatic extension and it comes to you with discretionary
29 review, what findings would be applied or be required?
30
31 Mr. Williams: There are no findings that are specifically outlined in the code. I don't think we
32 have outlined specific findings for.
33
34 Conlffiissioner Fineberg: Does that mean then if someone comes with an application you must
35 approve it?
36
37 Mr. Williams: It doesn't mean we must approve it. It says that the Director n1ay approve it. It
38 doesn't say shall approve it. What the criteria are are not specified. My thought is that generally
39 we have approved those and unless there was some really substantive change in conditions where
40 there were drastically different codes in effect or there is a new Comprehensive Plan designation
41 for that site or something like that had happened that we would extend it, and that is what we
42 have done. I am not aware of a case where we have not approved a request for extension. We
43 had talked last time about if it is desirable in this case where it says that the Director can make an
44 extension, these one-year extensions, there is language that says the Director may adjust project
45 conditions via these additional extensions to address any applicable zoning code, and
46 Comprehensive Plan changes that have been adopted by City Council since the original approval.
Page 4
1 So we would be looking at that aspect of it if there were new code changes or Comprehensive
2 Plan changes then we could use that and adjust the conditions for the proj ect, or I assume if they
3 were really completely out there that it didn't even allow us to do that we would deny the
4 extension.
5
6 We could change that and make that a finding. In fact that might be a good idea to say that they
7 may find if there are not these conflicts that now exist or something like that.
8
9 Commissioner Fineberg: I would wonder, and appreciate the thoughts and comments of my
10 colleagues about whether - I guess I am thinking having a discretionary review with absolutely
11 no guidance puts a lot of pressure on Staff, gives them the most authority in terms of approval,
12 but then maybe doesn't give them authority for denials. I am wondering if there are conditions
13 that can be foreseen where we would want the findings to give Staff the authority so it doesn't
. 14 appear to be capricious and has the weight of the ordinance. I am not sure what those conditions
15 would be so if there could be some thought to that.
16
1 7 Vice-Chair Tuma: Let me ask a clarifying question of your question here. Did I understand you
18 to say that you were concerned about the discretionary approval for Staff on things like PCs?
19
20 Commissioner Fineberg: Yes.
21
22 Vice-Chair Tuma: Well, PCs are not - I think what we are doing here is saying that anything
23 that requires PC and Sight and Design Review has to go back to Commission and then to
24 Council. That was a change that was made as a result of the discussions last week. So when you
25 look at the Table in Attachment B with PCs there is no automatic extension and the additional
26 extension is only the result of Council action. So I think what we are looking at here are the
27 other projects. I don't disagree with you, I think that having some criteria against which to make
28 a decision is always a good thing, makes it more defensible, and makes the job a little bit more
29 straightforward. It also makes it more predictable for the development community if they know
30 kind of what the standards are. So I am supportive of that concept. I think we need to make sure
31 that we are clear, and it is a bit complicated or confusing at times. We are not talking about PCs
32 and Site and Design Review. Those are out of this equation.
33
34 Commissioner Fineberg: Thank you for the correction. I acknowledge that I missed that.
35 Which of the projects then would go to the Director or Staff for a discretionary review, if there
36 are automatic reviews for the housing?
37
38 Ms. French: If you look at Attachnlent B, the Table there, you might find this is reflecting the
39 straw poll that said no automatic extensions, no way. If you were inclined to allow one-year
40 automatic extensions for that first row, ARB, DEE, CUP, Variance, IR, HIE, NPE, those
41 Director level approvals that is where you would be focusing that one-year automatic. Whereas,
42 the Site and Design and Planned Community, as I have noted there, would be eligible for two
43 years extension only by Council approval.
44
45 Commissioner Fineberg: Okay, got it. Thank you.
46
Page 5
1 Vice-Chair Tuma: Commissioner Holman.
2
3 Commissioner Holman: Thank you. This is probably the easiest one to pick off, to go to the
4 single family residence issue the response is actually given in response to Commissioner Keller's
5 question I-C. It talks about automatic extensions for approvals involving demolition of single
6 family homes except for those listed on the City's Historic Inventory Categories 1 through 4, and
7 Eligible for National or California Register, but allowing autonlatic extensions for projects
8 involving potentially eligible homes. That is counter to what the new process is in place.
9
10 Ms. French: It is not counter. I spoke with Julie before this meeting. Eligible for California and
11 Eligible for National Historic are the ones that are subject to the new process. Potentially
12 Eligible for California are not. That is the policy.
13
14 Commissioner Holnlan: I don't disagree with that except there is a nuance that definitely does
15 create a difference to this. That is that Potentially Eligible for California or National does
16 require notification. So anybody who has the expertise and thinks that those are actually Eligible
17 and not Potentially Eligible there can be evaluation made as to whether they are Eligible or not.
18 In other words, because the City has never finished that survey there are these properties out
19 there that should be swept up and I thought were being swept up, had been told that they are
20 being swept up in this new process in the Development Center.
21
22 Mr. Williams: I see the distinction that you are making. So the process is for all those other
23 ones clearly there is a CEQA review that is associated with those. If we have not done that in the
24 past then we would need to do that before any extension could occur. That involves notice as
25 well. So then we have the Potentially Eligible category which what I think Julie and Amy are
26 saying is not assunled to require a CEQA review, but as you are pointing out there is a notice
27 associated with the IR review and during that process and timeframe there is an opportunity for
28 someone to come forward and essentially document that this Potentially Eligible house should be
29 considered Eligible and historic and that CEQA should be carried out for it. That has not been
30 done previously so we are sort of missing the opportunity to do that again, or get that notice out
31 at least and see if anybody does come forward. Isn't that the crux of it?
32
33 Commissioner Holman: That is exactly what I was saying and thank you for that. What is a
34 concern is it seems like if we give automatic extensions to these properties it seems like we
35 would be in violation of CEQ A again.
36
37 Mr. Williams: What I am thinking is maybe in that category we indicate that the extension
38 requires notice in which case someone could conle forward and challenge it on that basis.
39
40 Commissioner Holman: Yes. It needs to be consistent with the new process so that we are not
41 violating CEQA.
42
43 Ms. French: I would just say then if you are going to want to have notice, you are going to
44 exempt all those other ones from automatic, so it wouldn't be automatic it should be Director's
45 discretion then for those Potentially California Eligible, right? We would be sending a notice
46 out. You wouldn't want to do it automatically. The way I responded to Commissioner Keller's
Page 6
1 question 1-C was saying allowing automatic extensions for Potentially Eligible so I think the best
2 course with this discussion would be to not allow automatic extensions for those. Throw those in
3 with all the other historic ones.
4
5 Commissioner Holman: Thank you. So what you said was not inaccurate it just wasn't quite
6 complete. That's all. So thank you for that.
7
8 The question that Commissioner Keller had raised about fees, it would seem to me that there
9 should be some fee identified or associated with any kind of extension, whatever kind it is,
10 because to write a letter, to process a letter it takes time and there should be an appropriate fee. I
11 am not going to say what that fee should be if it is $100 or $300. I leave Staff to determine what
12 that is but it should be some kind of cost recovery. I think that is the responsible thing to do and
13 I think it is an appropriate thing to do. Did Staffhave something to add?
14
15 Ms. French: We do have something that we do now that we charge $50.00 or something that is a
16 Zoning Letter where we have to do some research, and talk about a property. Maybe we can say
17 that this is a Zoning Letter for now because we don't have a fee structure setup. Or we could
18 come back at midyear to specifically put in a fee for extensions.
19
20 Commissioner Holnlan: I can't imagine anything being done for $50.00.
21
22 Mr. Williams: That is about right. That's why I think we don't want to go sort of outside. It is a
23 pain to amend the Fee Schedule. So in the next cycle of the Fee Schedule, which is mid year,
24 which means it would probably be February or March of next year before the fee is actually in
25 there, but we are not going to get a whole lot of requests just in that timeframe. I think we can
26 look at and we can put in a fee at that tinle. We should probably have one that is just a
27 Director's detemlination and another one ifit has to come through the Commission and Council.
28 Then we definitely need to have a deposit and cost recover for that kind of extension request. So
29 we will do that in conjunction with our midyear budget review and we will probably have other
30 amendments to the Fee Schedule at that time as well.
31
32 Commissioner Holman: So it could be tracked, if there could be some way whatever Staff
33 suggests, some way to see that that information travels with the Staff Report so that it somehow
34 or other it can be captured coming up.
35
36 The questions about the new revised ordinance talk about projects that can be extended. It is
37 akin to Commissioner Fineberg's question. It says, the Director may adjust project conditions
38 and has to do with findings. On the B of that, on page 2 at the top, talking about Site and Design
39 and PCs it says that upon review and recommendation by the Planning and Transportation
40 Commission if request is submitted prior to the pending expiration date, etc. So the question
41 there is how would we be reviewing this? What is the purview? Would it just come to us? It is
42 akin to findings. Is it a cursory review of some fashion? Is it changing conditions? What is it?
43
44 I can imagine for instance a project coming to us, in either extreme, and saying well it has been
45 approved before so all you are doing is looking at it to see if .... So if we don't have some kind
46 of clarity here on what our purview would be of the Planning Commission and Council in
Page 7
1 reviewing an extension then we are just in the dark arid flailing and nlaybe even open to
2 challenge.
3
4 Mr. Williams: Possibly. What I think might be most appropriate as I look at this, I was playing
5 with this language up here as Commissioner Fineberg was pointing out in terms of fmdings, and
6 thinking that maybe the last sentence of the section above that could say something like Director
7 may approve, instead of saying may adjust project conditions, etc. It may say the Director may
8 approve the extension if the Director finds that any applicable zoning code and Comprehensive
9 Plan changes that have been adopted by City Council since the original approval do not
10 substantially conflict with the project, and may otherwise adjust project conditions for the
11 extension to address such changes. So it would give the Director in the Director's Review
12 opportunity to look at those changed conditions, if they were substantive we could say no, if they
13 were fairly minor it might have some more conditions, if they were not changed at all then they
14 would probably approve it. We could put language very similar to that in this next section under
15 B and that would be essentially what you are looking at as well. So that if you feel like it is just
16 a higher level and more discretionary review but if that is what you feel like those
17 Comprehensive Plan and zoning is roughly comparable to what was there before or didn't
18 conflict with it then you would not be bound to approve it but it sort of would direct you that
19 way. If you saw that there were major conflicts then you could deny it. If you saw that there
20 were just a few minor things and adjusting some conditions would address those that would give
21 you the purview to do that. So I think some language like that would help.
22
23 Then also I just noticed, back to the previous question about fees, that there is language at the
24 end of that paragraph about fees for such extensions shall be collected. I am thinking that nlaybe
25 we put a new E under here and put a new statement down there to cover everything. That covers
26 all the projects, fees for such extensions. The fees would be different obviously for the ones that
27 conle to you, but just say fees for any extension shall be collected to recover Staff costs and
28 processing such extensions.
29
30 Commissioner Holman: That would be great because as you note here the only one that is
31 collecting fees is the PC review. So as an example, if the PC Ordinance because this
32 Commission has been working on revising the PC Ordinance for some time, so if the PC
33 Ordinance changes for instance if an old project comes to us for extension then the new PC
34 Ordinance would apply. Do I interpret that correctly?
35
36 Mr. Williams: I'm sorry say that again. I was writing down the notes that Ijust said.
37
38 Commissioner Holman: If a PC comes to us or a Site and Design comes to the Commission and
39 the Council and there is a new PC Ordinance, which this body has been working on for awhile
40 could it be applied to a project that is coming to us for an extension?
41
42 Mr. Williams: I don't see why it couldn't be applied. I think there is again discretion if you feel
43 like it is, and I know you have to determine whether this is conflicting. I think it should
44 primarily be sort of the substance of that ordinance as opposed to the process. If the process of
45 PC had changed that probably wouldn't be a very good basis for denying an extension. If there
Page 8
1 were substantive criteria in there then I don't know. I think Don probably should weigh in on
2 that.
3
4 Mr. Donald Larkin, Assistant City Attorney: I actually agree with what the Director just said.
5 The thing I was going to add, not to confuse the issue, but to make sure the Commission has
6 information to make a decision, one caveat if this comes to fruition and down the road this comes
7 up. Under state law a change in condition is something that could have been applied to the
8 Tentative Map at the time the original application was filed then it wouldn't be able to be
9 imposed later even if the ordinance was changed. So in other words, if there was something, to
10 use an example if street width was something that was changed in the intervening time if we
11 could have applied that to the Tentative Map at the time it was originally applied for then we
12 couldn't apply it through some other means.
13
14 Commissioner Holman: How would that apply or not to a revised or changed PC Ordinance or
15 Site and Design criteria?
16
17 Mr. Larkin: To the extent that the Site and Design is captured in the Tentative Map then we
18 would have difficulty. Essentially what the state law says is you can't do through a zoning
19 ordinance what you could have done through a Tentative Map that has gotten extensions on their
20 Tentative Map. That is nothing to do with the ordinance itself it is more because it is something
21 the Commission should be aware of for future reference, particularly when coming up with these
22 findings.
23
24 Commissioner Holman: I am sorry to take the time with this. I apologize for that. It is the
25 details that are either going to kill us or bless us going forward. What we are doing is not just
26 changing the rules say for Tentative Maps. We are considering extensions, changing the process
27 so that we are allowing an extension and at this point it is discretion that we are taking to do that.
28 So that is a little different I think than the example that you present.
29
30 Mr. Larkin: Actually, that is why I was raising it, because the state has already given these
31 extensions for Tentative Maps, automatic, no discretion, and said that the cities can't apply new
32 conditions on the projects that they could have applied on the Tentative Map originally. It is
33 more just a caution if the Commission is going to add findings other than just the zone changes
34 and Comprehensive Plan changes that are already in here. It is a caution to the Commission that
35 those conditions may not be enforceable if they are the types of conditions that could have been
36 imposed on the Tentative Map.
37
38 Commissioner Holman: Last one and I will pass. It is, but significant to a PC Ordinance could
39 be applied.
40
41 Mr. Larkin: They could and this is where the caution comes in. They could as long as they are
42 not conditions that could have been imposed on the Tentative Map. In other words, if a
43 developer came forward with a project, got their Site and Design Review, submitted a Tentative
44 Map that conformed to the Site and Design Review, and then got the extensions on the Tentative
45 Map, and then applied for the extensions on their Site and Design Review and the Commission
46 requested a change to that Site and Design Review that will impact that Tentative Map that has
Page 9
1 already been approved then those changes may not be applicable to that project. I know it is
2 confusing but I wanted to put that out there.
3
4 Commissioner Holman: I am trying to get some clarity on something here and I am not getting
5 it. I am sorry. Let's say for instance, I will use an example because it is a topic of conversation
6 much in the community. Let's say for instance a project comes to us and the public benefit that
7 is offered by a project does not begin to satisfy what the new ordinance is. That is different than
8 Site and Design although I understand the project the way it is laid out the public benefit is
9 included in some location on the Site and Design. That is what I am trying to get at and I am not
10 getting there.
11
12 Mr. Larkin: Well it is difficult to talk about in the abstract. I think in general if it is not going to
13 impact a condition that could have been imposed on the Tentative Map then it could be done. So
14 for example the public benefit is a park and the City decides that that no longer is going to be
15 accepted a public benefit and they would like that parcel that was going to be a park rezoned as
16 something different then that is something that could be done. If it there was a new condition
17 that now all projects have to have parks that could have been done through the Tentative Map
18 that would probably not be something that could be done.
19
20 Commissioner Holman: Thank you.
21
22 Vice-Chair Tunla: I assume it would also make a difference in that some PCs have maps and
23 some don't. So if you have a PC that doesn't have a map then the previous SB 1125 or whatever
24 it was wouldn't apply. So if we are looking at a PC that didn't have a subdivision map then this
25 issue would not be pertinent, is that right?
26
27 Mr. Larkin: That is correct. It is just the state has done this for those projects that are getting
28 extensions on their maps.
29
30 Vice-Chair Tuma: Okay. Commissioner Lippert.
31
32 Commissioner Lippert: I just basically had a couple offollow-ups on Comnlissioner Holman's
33 questions. Again regarding the historic, I guess it is the properties that would be Potentially
34 Eligible Historic Honles. Wouldn't the original approval sort of codify or identify these as
35 historic homes and therefore all we are really doing is extending the time period by which the
36 project can be or the approval is implemented? It is not changing anything. Nothing is changed
37 in terms of the potential eligibility of that house and its approval. Is that correct?
38
39 Mr. Williams: Generally that is correct. I think the point that Commissioner Holman has made
40 is that we have a process when you go through the IR review now where as part of that public
41 notice period if someone believes that that Potentially Eligible house is actually historic and
42 provides documentation to that effect then we need to do CEQA on it, which we wouldn't
43 otherwise do, and make a determination. Now, that either didn't happen the first time through its
44 original approval and we didn't do CEQA, and there wasn't any identification of an issue, or it
45 was identified and we sort of cleared it under CEQA and the project. If the latter happened,
46 which is an unusual case, then it would make sense probably to just extend that. In most of these
Page 10
1 cases that hasn't happened and I think her point is that two years have gone by and now we are
2 going to extend something that may be recognized or more recognizable as an historic structure
3 at that point in tinle, or potentially should be looked at least as that, and there may be more
4 documentation or evidence or something like that or somebody is aware of it that wasn't before.
5 We shouldn't just automatically extend that for another year. We should at a minimum provide
6 notice of that and if someone does have that information come forward.
7
8 You are speaking to sort of the fundamental issue around extensions which is do you essentially
9 assume that it was done right the first time that process happened and the extension should occur
10 at the back end, which is where we started from as well I think. That is just a sort of difference
11 in philosophy of it is, the extension sort of something that should happen because they ran the
12 gauntlet in the first place and now it is just another year or is this another opportunity to at least
13 check in on it and be sure that we don't have some conflict that has arisen now and take a little
14 more time to check that out before granting the extension which is where I think Commissioner
15 Holman is with that. We are comfortable either way with that and certainly understand the point
16 that is being made. I don't think in 95 percent of the cases it is going to be an issue but there
17 may be one out there that comes up.
18
19 Commissioner Lippert: Let me just point out where I am coming from, which is that we do have
20 a review process for a number of discretionary approvals. That process is supposed to be
21 thorough in terms of flushing out what the issues are. I admit that like any process it is not a
22 perfect process, but it is the process that we have. What is distinguishing this from I guess where
23 I would hate to see this go is that why not make the applicant reapply for a new application to
24 begin with if we make this too cumbersome. Then in fact we are just going back to the
25 beginning again. I can understand circumstances changing. When I say circumstances changing
26 I mean the Zoning Ordinance change in terms of our development regulations and having to
27 conlply with those, our Sustainability and Green Building code changing and having to comply
28 with those rules. I can understand us making changes to the Comprehensive Plan and again
29 applicants having to comply with those rules. But if everything is status quo and hasn't changed
30 why make an applicant go back through the process again or create other impediments that well,
31 we might as well just go back to the beginning again.
32
33 I also understand that in terms of developers and applicants wanting to change the scope of their
34 projects as well, saying I can't build the whole thing so I will only build a portion of it. Again.
35 that is going back to the beginning and that is not what we are saying here. This is the approval
36 nothing has changed other than the timeline. What we are recommending putting in there is
37 automatic extension and then the discretionary additional extension by the Director, which is just
38 simply making sure that things are in compliance with what the approval was. I have ended my
39 comments.
40
41 Vice-Chair Tuma: Okay. Commissioner Fineberg.
42
43 Commissioner Fineberg: Actually one really quick one and one question. Regarding the fee
44 recovery I think it is great to be able to do that so projects are net neutral at worst. I would
45 caution the $50.00 fee. My guess is it costs the City more to collect and process it than the funds
Page 11
1 generated. So I would concur that waiting for the fee structure change would be the time to
2 implement it at whatever the appropriate amounts are determined to be.
3
4 Second thing, I am still grappling with the issue on what discretion or what purview Council or
5 the Planning Commission would have in a situation let's say where there is Site and Design
6 Review with a Vesting Tentative Map. If the state law trumps and the Vesting Tentative Map
7 gets the extension based on state law and it comes back to the Commission and then Council for
8 discretionary review, what would we have discretion to review?
9
10 Mr. Williams: Well you wouldn't have much to review as far as the Map purview goes. So
11 things that were associated with the Map as far as easements and street widths and a lotting
12 pattern or something like that probably wouldn't be up for review. The use of the property and
13 such would and Don can talk about some nuances where even those would be affected. It is not
14 any different than the situation you are in right now without being able to extend it somebody's
15 Site and Design permit expires, and they have a Tentative Map, well they have to start over again
16 with a Site and Design permit and they don't automatically just because they have a Tentative
17 Map get to approve the same uses and FAR and all that kind of stuff as they originally had
18 approved in the Site and Design. What is likely to happen there is that in order to effectuate
19 something meets the Site and Design regulations they may have to tweak the Map in the end to
20 make that work.
21
22 So I think in the end you are looking at it as long as it is the zoning criteria related to what the
23 appropriate land use is, what the intensity of that land use is kind of thing you have discretion
24 over those aspects of the project in the Site and Design or PC review. If you feel like the codes
25 and Comprehensive Plan have changed so much at that point in time that it is really not
26 consistent and you can't extend it then you don't, and they are in the same situation they would
27 be in today if all their permit extensions had expired. On the other hand if you think it is pretty
28 close and any changes are minimal then you make that determination and you can continue them
29 along their way for another year or two.
30
31 Commissioner Fineberg: Okay, so let me see if I understand it. I appreciate the chance to clarify
32 this. Staying strictly in the hypothetical, let's say there is a PC that has been approved with
33 mixed use. Let's say the PC Ordinance has changed zoning, everything has changed, different
34 universe out there in several places. Would the Commission or Council then be able to say no
35 we don't want this to be a mixed use? We want this to be let's say all houses or all retail. Would
36 that kind of use decision or recommendation be possible even though it is impossible given the
37 existing Tentative Map?
38
39 Mr. Larkin: I guess yes and no. It is hard to talk about in the hypothetical. To the general extent
40 yes you can apply zoning. In your first question you said Vesting Tentative Map as opposed to
41 just plain Tentative Map, Vesting Tentative Map vests the rules and regulations as they exist at
42 the time the Map is filed. So a Vesting Tentative Map maybe not but the regular Tentative Map
43 yes you can apply the zoning and regulations that are in place at the time they come for the
44 extension. That may not work in every case but in n10st cases that is going to be applicable.
45
Page 12
1 Commissioner Fineberg: So in a Tentative Map there would be something that there would be
2 purview. In a Vesting Tentative Map why would we bother to do a discretionary review then?
3
4 Ms. French: Well, with a Site and Design in particular the Site and Design would not expire.
5 That was in the first Staff Report from last week. So if it was a Vesting Tentative Map there
6 would be no need to request an extension of Site and Design because the Site and Design would
7 still be active with that Vesting Tentative Map. You would never see it. It is only if it is a
8 Tentative Map or no Tentative Map that a Site and Design would come to you if they requested
9 an extension.
10
11 Vice-Chair Tuma: Okay. I have a question and then we are going to go to Commissioner Keller
12 and I think he is pretty close to having a motion. The one piece of this that I am still struggling
13 with a little bit is if we look at Commissioner Keller's I-D saying that the automatic extension
14 does not apply to commercial or mixed use. I don't see a rationale for making that distinction. I
15 don't know why we would not allow the automatic extension to apply to commercial and mixed
16 use assuming they are not PC or subject to Site and Design Review. So I guess that is more ofa
17 comment than a question. Maybe I would direct that question to Commissioner Keller as to why
18 we would make that distinction. I understand that there may only be a limited number of
19 projects that fall into that category but I still don't see a rationale for that distinction.
20
21 Commissioner Keller: I guess you are calling on me. Let me address that question by asking the
22 question, if you look at Attachments C and D from last week, the annotated ones. If you
23 basically consider based on my questions say I-A, so if I-A is used in other words only those
24 things which have their final expiration prior to June 30, 2010 how many things would be subject
25 to automatic extension? So I assume that D, none of those would expire during that one-year
26 timeframe, is that right?
27
28 Ms. French: Are you talking about Attachment D now?
29
30 Commissioner Keller: Attachment D and Attachment C. Attachment D I am assuming that none
31 of those would have any final expiration date in the one-year period that ends with June 30, 2010
32 so that wouldn't even apply. In terms of Attachment C there seemed to be very few of those.
33
34 Ms. French: Yes, Attachment D these would not expire before the end of the year and going
35 with your I-A saying they have to exhaust other possible extensions you can just stop thinking
36 about Attachment D, yes.
37
38 Commissioner Keller: Thank you.
39
40 Mr. Williams: But aren't we saying that Attachment D if they are approved before July of next
41 year would have this extension provision attached to it.
42
43 Ms. French: Yes, but they will still have to exhaust all of their.
44
45 Mr. Williams: They would still have two years from then before they wOl1ld be up for an
46 extension.
Page 13
1
2 Commissioner Keller: So in other words, nothing in Attachment D would be eligible for the
3 automatic extension under the rule that it only applies to those things which if you took I-A,
4 which says you only can do an automatic extension if they are about to expire.
5
6 Ms. French: No, well the way it is written it would be anything that on Attachment D if these
7 got approved this year or through June 30 of next year they could be allowed to get an automatic
8 extension after they have exhausted, if we are going to go with I-A, after they have exhausted
9 their one-year extension. So let's sayan ARB project gets approved in December, they can
10 come back next December and say I need another year. They can come back before the
11 following year, or we can say it is an automatic extension if it goes that way or here is another
12 additional extension.
13
14 Commissioner Keller: I think that may be misinterpreting what intended. What I intended is
15 that these are things that would exhaust all of their extensions between 2009 and 2010 and no
16 further extensions are eligible during those years. We are going to give them automatic
17 extensions of one-year.
18
19 Mr. Williams: That was not our understanding. We thought all you were saying was that if you
20 got the approval before July of 2010 that they had to exhaust all their other extensions before
21 they could apply. They could not come in six months later and ask for an extension that took
22 them out three years or something like that, that they had to go through and exhaust all of their
23 allowable extensions before they could make a request. So that is our misunderstanding of that.
24
25 Commissioner Keller: Sorry if my wording was unclear. What I really wanted was the things
26 that are about to expire we will give them a year automatic because those are clearly the ones
27 that are urgent to deal with. Things that had extra years to go they don't really need the
28 automatic extension. The discretionary extensions are intended based on economic conditions.
29 So actually I will get to that issue in a moment. If you think about it that way there are very few
30 in Attachment C that actually expire in the next year so that is why I was thinking that
31 Attachment C seems to be the ones that are relevant.
32
33 Ms. French: Actually, I was looking today on our tracking system, Excel Ed, and on Attachment
34 C a bunch of building pennits have already been issued for those. So as long as they proceed
35 with the construction we have dropped almost half of those.
36
37 Commissioner Keller: So let me ask three other questions. The first question is in general when
38 we have a Zoning Ordinance change that once the project is deemed complete we do not apply
39 changes to that project. So for example if the CN zone changes and somebody submits a project
40 in the CN zone that is deemed complete that they are no longer affected by those changes to the
41 CN ordinance. It seems to me that what we are basically saying is that if you get an extension
42 you are affected by those changes to the CN ordinance. I am assuming that is what we are
43 talking about.
44
45 Mr. Willianls: You mean in tenns of the discretion to grant the discretion?
46
Page 14
1 Commissioner Keller: Exactly.
2
3 Mr. Willianls: If the CN ordinance changed in some way and the FAR was decreased for
4 instance in it then at that extension point we may either say if it is a small amount revise it to
5 make it consistent or deny the extension based on that. If the CN ordinance hadn't changed we
6 would just grant the extension as far as a discretionary extension goes.
7
8 Commissioner Keller: Okay. So I am not sure if that is explicit in this but if you talk about
9 findings that might be a good way of making that much more clear.
10
11 Can other conditions be applied by the Director? Can we put a catchall that says that the
12 Director can apply conditions to the discretion? For example, say that it is based on economic
13 conditions of the market that if the market has turned around then we are not going to apply extra
14 conditions and if the market is still in bad shape then we will apply extensions.
15
16 Mr. Williams: I don't think that would be a good way to look at it. I think it has to be more of a
17 planning related criteria not based on what the market conditions are doing at that point in time.
18
19 Commissioner Keller: Even if market conditions are the rationale for uS doing this?
20
21 Mr. Williams: I think that is why we have a certain time period. If you felt like that, well you
22 have already taken it down from a two-year automatic extension to something that is more
23 discretionary so that at least if conditions change we have an opportunity to make those changes.
24 I am a little leery of where some of this discussion heads towards creating a complexity of this
25 extension process that gets back to what I think Commissioner Lippert was saying about it
26 almost gets to where you are applying for a new project whenever you ask for an extension, and
27 it kind of defeats the purpose of an extension, at least an automatic extension. That was one of
28 the reasons why we were supportive of that is trying to keep away from getting into a
29 discretionary mode of making those judgment calls, and why it sounds to us like maybe a one-
30 year automatic and then a one-year discretionary thing is a good balance of trying to not extend it
31 out too long automatically and giving us a little more flexibility.
32
33 I think the language we have talked here about changes in zoning conditions and changes in
34 Comprehensive Plan are the kinds of things that we really need to be able to factor into that
35 decision. Very planning related but not trying to base it on economics or something sort of
36 outside the realm of what we would normally be reviewing it for.
37
38 Commissioner Keller: So we couldn't use economics even for Site and Design or PC kind of
39 thing?
40
41 Mr. Williams: Well, I don't know. I will leave that to Don to maybe comment on. I certainly
42 wouldn't advise using it that way.
43
44 Commissioner Keller: Okay. Commissioner Fineberg has two quick things. Con1ffiissioner
45 Fineberg had a comment about whether it is cost effective to collect the $50.00. Wouldn't the
Page 15
1 $50.00 be collected at the Development Center, which has straightforward techniques for
2 collecting money, and so it would not be that expensive to collect the $50.00?
3
4 Ms. French: Well, the $50.00 fee I was thinking of is called a Zoning Letter and I was using that
5 as an example of something that exists already that we could potentially use. It is actually
6 $50.00 minimum and that is supposed to cover about an hours worth of work. So that could be a
7 member of Staff preparing a draft letter for signature. If it goes over that hour then we can
8 continue to charge based on our existing fee schedule.
9
10 Commissioner Keller: That we have mechanisms for and it is cost effective to collect that
11 money? It adds up?
12
13 Mr. Williams: The actual collection isn't an issue for that. I think the fee is what is at issue. I
14 don't want to imply to Mr. Rapp and Mr. Barry that we are charging $50.00 an hour because I
15 know they have both paid a lot more than that for the time that we spent reviewing their projects.
16
17 Commissioner Keller: Thank you. One final question, with respect to what is in a map as
18 defined in the terms of the state two-year extension. Let's suppose we have a project, which is
19 mixed use, and the map seems to have boxes on it that mayor may not necessarily have uses
20 associated. Can we say we want to change some of those boxes from housing to be retail? Is
21 that something that is allowed in a Site and Design that is within the purview of what we can
22 review in terms of a map, a Tentative or Final Map?
23
24 Mr. Larkin: As Curtis said it depends on whether they have sold it or not. Actually, I think you
25 could, speaking in general terms. There are conditions that might change that analysis on a
26 specific case-by-case basis, but as a general proposition yes, if the zoning changes and it is a
27 Tentative Map and right now it is for housing and want to rezone that property to become
28 commercial only then that is certainly something that could be done.
29
30 Commissioner Keller: Or in a mixed use project if we and the Council felt that the old mix of
31 housing and retail was not conformant with the Comprehensive Plan as it currently existed we
32 could say that you need to change the mix?
33
34 Mr. Larkin: In theory.
35
36 Commissioner Keller: Thank you. Okay.
37
38 Vice-Chair Tuma: Commissioner Lippert had a follow up to that.
39
40 Commissioner Lippert: I wanted to just make a couple of clarifying comments. First of all, Staff
41 are non-union so I think $50.00 an hour probably is more than what it would cost to cover their
42 time to review something.
43
44 We don't set fees. That is not in our purview here. In fact I would caution against it. It is very
45 explicit as to how the City arrives at fees and how they do their cost recoveries and we really
Page 16
1 don't have anything to say about that. So I would just be very, very careful about how we
2 structure that.
3
4 The second thing I wanted to say is that 95, maybe 90, percent of the reviews that we are really
5 talking about here even though they are discretionary reviews they are. either happening at an
6 ARB level or Director's Hearing. They are not really the types of items that come before us in
7 terms of land use and zoning. I think probably when it comes to the Architectural Review Board
8 the one thing that we want to steer away from is becoming very capricious and subjective in
9 terms of our review of quality and character issues. There are very specific findings and
10 guidelines that the ARB need to use, but that Board rotates and its members change at a
11 frequency that is beyond what this review process is. If you begin to open up this can of worms
12 what you are going to wind up with is personal whims are going to begin to enter into that
13 review process as those Board Members rotate off of that Board. What is going to happen is that
14 people that have their approvals and it is based specifically on very, very strict quality and
15 character issues are going to become subject to how new Board Members begin to define or
16 relate to those. It is greatjfyou can do it on the long-term it is not so great ifit is stuff that is
17 turning over very quickly. So the three-year process I am afraid is going to wind up becoming
18 almost a capricious football so to speak. So it becomes more of a game than really having set
19 guidelines.
20
21 The next thing I wanted to say is with regard to the automatic extension versus the additional
22 extension and applying a fee. Automatic extensions have very little work involved. It is a matter
23 of just saying okay the applicant has asked for an automatic extension or it is granted. Whereas
24 something that is an additional extension is subject to review so it really needs to be looked at.
25 What I am trying to say is we could create a process which is going to take a lot of time or we
26 could create a process that seems rather fluid and automatic, and maybe the fee really belongs in
27 the area of where there is actual time spent rather than in something that is automatic.
28
29 So those are really comments. I am in support of moving ahead and trying to allow for some
30 latitude in terms of the approval process to allow for these extensions. It is just a question of
31 how stringent we want to make this. I would really hate for us to become too draconian and have
32 this become so mired under that the applicant has to basically reapply all over again and start at
33 square one.
34
35 Vice-Chair Tuma: Commissioner Keller, you have a motion for us?
36
37 MOTION
38
39 Commissioner Keller: Yes. I move the Staff recommendation with the following changes. The
40 first change is easy. Move the fee language from 1-B to a new paragraph I-E. Then whatever
41 fee process currently exists for assigning fees would exist independent of whatever we do. The
42 next change is that the findings for the extension would be that it is consistent with the then
43 current zoning code, and consistent with the then current Comprehensive Plan. If there is major
44 conflict with these two consistency requirements then that is a basis for denying and if it is a
45 minor conflict then the project can be adjusted to conform to the then current zoning code and
46 then current Comprehensive Plan. Third, that one-year automatic extensions are possible only
Page 17
1 under the following four conditions all of which are applied. One, it applies only after all other
2 available extensions have been exhausted and the project would otherwise expire between
3 enactment of the ordinance through June 30, 2010. Two, if the automatic one-year extension is
4 used then only one additional one-year discretionary extension applies. Three, the automatic
5 extension is not available for historic or Potentially Eligible properties. Four, it applies only to
6 residential projects, not mixed use, commercial, office, or whatever. That is the end of my
7 motion.
8
9 I will entertain a friendly anlendment from Commissioner Holman about how to handle this issue
10 Qf potentially eligible and such because I don't really understand that.
11
12 Vice-Chair Tuma: You need a second first.
13
14 Commissioner Holman: Could you repeat your last point, please?
15
16 Commissioner Keller: My last point is I would entertain a friendly .....
17
18 Commissioner Holman: I'm sorry I was not clear. You gave four conditions under which the
19 one-year automatic extension would apply, or only if those four conditions were met. I didn't
20 catch your fourth point.
21
22 Commissioner Keller: The fourth one is it applies only to residential properties, not mixed use,
23 not commercial, not office projects.
24
25 Vice-Chair Tuma: And also not to PCs and Site and Design Review?
26
27 Commissioner Keller: That is right not PCs and not Site and Design Review, correct.
28
29 Vice-Chair Tuma: So is there a second for the motion?
30
31 SECOND
32
33 Comnnssioner Fineberg: I will second.
34
35 Mr. Williams: Could I make one clarification? The findings part I am assuming belongs for
36 both Band C? Is it B and C, or A and B?
37
38 Commissioner Keller: The findings apply to both I-A and I-B.
39
40 Mr. Williams: So both the Director's discretionary determination as well as the Commission and
41 Council's.
42
43 Commissioner Keller: That is correct.
44
45 Vice-Chair Tunla: Okay, would the maker like to speak to the motion or have you spoken
46 enough?
Page 18
1
2 Commissioner Keller: I think I have spoken enough. I think this affects the market conditions
3 and we are making it more flexible in terms of automatic extensions I think in an area that I think
4 is relatively non-controversial.
5
6 Vice-Chair Tuma: Seconder?
7
8 Commissioner Fineberg: Can I propose a friendly amendment on the first one? I will speak to
9 the nlotion first and then propose a friendly amendment on the first one. I think these
10 amendments will strengthen the force of the ability to give automatic extensions when it is a
11 straightforward project with fewer complications, with fewer things in the environment
12 changing, and yet retain a little bit more control on the more complex projects that are going to
13 probably have more changes in Comprehensive Plan and zoning code. I think that it will go
14 towards not making a complicated review process that subjects developers to a capricious review
15 process. Contrary to what Commissioner Lippert said right now if there is no automatic review
16 every proj ect, or if there are shorter automatic extensions, would then expire and every proj ect
17 would have to start over, and all would be subject to whatever changing minds of the new ARB
18 Members or new PTC or Council Members. So any extension whether it is narrowly defined or
19 broader removes whatever projects get the automatic extension from that changing environment.
20
21 Now that I have spoken to it would it be a time to? Okay. On the first one I think there is a little
22 bit of a stumbling on the language of just how I am sorry the second one that the required - I
23 am sorry. It is the third point but the first of the four where he is saying that it would apply only
24 after all other extensions have been exhausted. Staffhad an issue understanding what that meant
25 and I think that continues to exist. Would it be possible to word it that all available extensions
26 will expire without the ability to apply for another extension? Something so that when the
27 project let's say has two years left they can't apply for an extension with two years left on it.
28
29 Commissioner Keller: Let me suggest this wording, which is the first point, is if the project
30 would otherwise expire and no other extensions are available between the enactnlent of the
31 ordinance and June 30, 2010. Is that much clearer?
32
33 Comnussioner Fineberg: To me, yes.
34
35 Mr. Williams: Say it again.
36
37 Commissioner Keller: Ifno other extensions are available and the project permit or whatever
38 would otherwise expire between the enactment of the ordinance and June 30,2010 then that is
39 one of the conditions for having an automatic extension. In other words, we are dealing with the
40 things that are about to expire and we need to renew them. Those are the things that are most in
41 need of extension and those are the ones for which automatic extensions make the most sense.
42
43 Vice-Chair Tuma: I have a question and a comment related to this motion. On this first item, if
44 there is a proj ect that is in the pipeline but has not been approved yet but gets approved prior to
45 2010 are they still subject to this first component of this?
46
Page 19
1 Commissioner Keller: My understanding -are you asking Staff or me?
2
3 Vice-Chair Tuma: I am asking Staff for your interpretation.
4
5 Mr. Williams: My understanding of it the way it is worded is that they are subject to the
6 allowable extensions but they are not subject to an allowable automatic extension. Theywould
7 be back under the provision that would allow thenl to have two one-year discretionary
8 extensions. Is that right Mr. Keller?
9
10 Commissioner Keller: My intent is that they would be allowed to have two one-year extensions
11 after they have exhausted whatever other extensions they were eligible for.
12
13 Vice-Chair Tuma: But what you are saying is they would be the discretionary extensions not an
14 automatic extension.
15
16 Commissioner Keller: That is correct. If somebody is planning a project now they know what
17 environment they are in, they are still eligible for the two one-year extensions because they are in
18 flight now.
19
20 Vice-Chair Tuma: Okay. I am not going to be able to support that. You may have people who
21 are "in flight" now but they have been working on a project for a period of time, it is in the
22 pipeline, it is going to get approved in the relatively near future. The logic of what we are doing
23 and the reason why we are doing it you would most definitely apply that same logic to that
24 particular project. Just because they have not made it under the wire and gotten the approval
25 prior to us enacting this ordinance, to me there is no rationale that makes sense to exclude that
26 particular proj ect from an automatic extension because they are one week, or two weeks, or a
27 month after this has gone into place.
28
29 Commissioner Keller: I actually respectfully disagree with my fellow Commissioner. My intent
30 is to give the automatic extension to those things that are about to expire. Therefore anything
31 that is just about to be approved isn't going to expire for at least a year or two from now. So
32 they are on the same footing as those things that would expire after June 30, 2010.
33
34 Vice-Chair Tuma: I understand your intent. I don't agree with it. The original concept here was
35 extensions for any project that would get approved between now and June of20l0. That is given
36 the current economic situation and the forecast for the future that is to me where we should be
37 going. We should not be only for those that are imminently going to expire. I believe that we
38 should be looking at -this is not an economic situation particularly when it comes to commercial
39 development and commercial loans and the ability to finance these projects this is not going to .
40 tum around in a year. I personally am convinced of that and I think what we are doing here is
41 creating more work for the developers, more work for Staff, really without a basis for it. So let
42 me just finish my comments.
43
44 With respect to this not applying to commercial projects for the automatic extension I likewise
45 am not able to support that. I don't see again any rationale for this not applying to commercial
46 projects. There is no difference other than their ability to pay. Just because it is a bigger project
Page 20
1 and there is more money involved that doesn't mean that we should be sonlehow sticking
2 commercial projects with these fees. There is no basis in my mind for distinguishing between
3 what could be a large multifamily project and maybe even a smaller mixed use project. Just
4 because it is mixed use we would somehow require these people to go through the process of a
5 discretionary review with findings that have to be done and the expense to do that. We are in a
6 situation where these things have been approved. There may be some desire on the behalf of
7, some members of the public to undo some approvals that have been done, but that to me is not
8 what this is about. This is about recognizing the fact that we have an economic situation that has
9 created a burden. We don't want this going back through Staff and having to redo these things
10 unless there really, truly are changed conditions. So I am completely unconvinced and not in
11 support of excluding the commercial and mixed use projects other than as we already defined
12 from the one-year extension.
13
14 So those are my two issues with the motion as currently proposed. I have a light from
15 Commissioner Lippert and then Commissioner Holman.
16
17 Commissioner Lippert: I agree with Vice-Chair Tuma that in some ways -well, first of all I
18 would vote in support of the motion because it is necessary. But I find that it is cUITlbersome, it
19 is punitive, and it is almost an arduous task. It is heavily weighted. If there some way to
20 simplify it and just make it easier to administer and use it is going to be far more easily applied.
21 I understand all the distinctions that you are making in terms of your motion but it is running a
22 gauntlet or an obstacle course in order to get there rather than recognizing the fact that we have a
23 very tough economic climate.
24
25 To make things even simpler it would probably make more sense to just enact the ordinance the
26 way it is written and put a sunset date on it that would thereby end it at a time that we think the
27 recession might be over. Then just simply if the recession continues extend that out beyond.
28
29 Vice-Chair Tuma: Isn't there a sunset of June 30, 2010?
30
31 Mr. Williams: We have suggested that projects that are approve by that point would then be in
32 this extension process. If they are after that they wouldn't be unless we came back in a year and
33 said well things are looking even worse and we want to go another year and take another year's
34 worth of projects and offer them an opportunity for extensions.
35
36 Commissioner Lippert: The point that I am trying to make here is that according to Vice-Chair
37 Tuma, why begin to make distinctions here in terms of the use of projects. The only one that I
38 think is really valid is the PC and the subdivisions.
39
40 Vice-Chair Tuma: Okay. Commissioner Keller.
41
42 Commissioner Keller: Let me ask a question of Staff Does this ordinance vest a right to apply
43 for an extension in the future that is discretionary? In other words, suppose for example that the
44 go-go days appeared just for a hypothetical situation, and we were to determine that 2013 came
45 around and there were still some projects that still had discretionary extensions possible. It is
Page 21
1 possible at that time to day sorry we are going to remove the discretionary extensions because we
2 don't think they are needed any more, or does the discretionary extension vest in some sense?
3
4 Mr. Larkin: The ordinance could be repealed or amended at any time if the circumstances
5 change.
6
7 Commissioner Keller: Would that be the case even for automatic extensions?
8
9 Mr. Larkin: As long as the automatic extension wasn't already approved. You couldn't approve
10 an automatic extension and then repeal the ordinance and say sorry you are out of luck. If a year
11 from now all of a sudden a miracle happened and the economy completely turned around and
12 there were all kinds of construction financing available and we said this is no longer necessary
13 and we repealed it, if somebody came in a week later and wanted an extension we would say no,
14 there is no mechanism for that.
15
16 Commissioner Keller: So let me try to put this out as an idea to see whether it would bring some
17 fellow Commissioners on board. Suppose we allowed an automatic extension in more cases, I
18 am not going to define exactly what those more cases are, but let's assume some definition of
19 more cases, but all of the extensions under this ordinance had to follow all of the other
20 extensions that were currently available to them, in which case that repeal is still possible.
21 Would that make sense?
22
23 Vice-Chair Tuma: I for one am not sure exactly what you are referring to.
24
25 Commissioner Keller: Well, their current ordinance allows for a certain amount of extensions.
26 Doesn't the current ordinance allow for some kind of extensions?
27
28 Mr. Williams: Right, except Site and Design is a two-year period to start with. Most of the rest
29 of them are one-year plus one Director extension.
30
31 Commissioner Keller: Right. So what I am basically saying is that after you can apply for the
32 automatic or the one-year discretionary extension but only after you have exhausted whatever
33 else is available. Therefore if the economy were to turn around we can retract those based on
34 what the attorney said if they have not yet been issued.
35
36 Vice-Chair Tuma: That helps. Let me ask you one other clarifying question about that. What
37 about projects that are in the pipeline but have not yet approved?
38
39 Commissioner Keller: Well, let me put it this way, I have not yet said what exactly what set of
40 projects this applies to. I am just trying to work our way toward something that might make
41 sense.
42
43 AMENDMENT
44
Page 22
1 So let me suggest this. This is kind of editing online if you will. Firstly, in terms of the number
2 three, one-year automatic extension applies only if, it is after all other available extensions. Then
3 delete the termination date of June 30, 2010. Does the seconder agree with that Amendment?
4
5 SECOND
6
7 Commissioner Fineberg: Yes.
8
9 Commissioner Keller: Thank you. The third thing is I am trying to understand which projects it
10 should apply to. I am wondering what people th.illk: about simply saying it doesn't apply to Site
11 and Design Review and PCs and that is the only restriction. I am wondering what other
12 Commissioners think of that potential.
13
14 Vice-Chair Tuma: I would be in favor of it for one.
15
16 Commissioner Keller: We already have the restriction of not historic potentially eligible. That is
17 a separate restriction.
18
19 Commissioner Holman: Is your change then saying that you are removing your fourth point,
20 which said it applied only to residential projects?
21
22 Commissioner Keller: That is right. I am thinking about removing the fourth condition and
23 keeping Site and Design and PC as not applied condition.
24
25 Commissioner Holman: I understand. Thank you.
26
27 Vice-Chair Tuma: Hold on a second. Do you have a question?
28
29 Ms. French: It is maybe more of point. Your point number three was automatic not available for
30 historic. I think the context that we had talked about earlier was with residential ones, if it had
31 gone through Architectural Review it would have been subject to CEQA. SO maybe that is
32 particularly related to residential, that point three.
33
34 Commissioner Keller: Yes, that is for residential. It is for historic and potentially eligible for
35 historic, is point three.
36
37 So I am going to make the amendment of deleting the "applies only to residential" and retaining
38. the "automatic doesn't apply to Site and Design and PC."
39
40 Commissioner Fineberg: Isn't that already in another part of the ordinance as Staffhas stated it?
41
42 Commissioner Keller: Yes, I am just being clear. So I am deleting the fourth bullet which is
43 applies only to residential.
44
45 Commissioner Fineberg: Right, so the whole fourth point is gone because there is nothing extra
46 except for the multifamily and the mixed use.
Page 23
1
2 Vice-Chair Tuma: That is correct.
3
4 Commissioner Keller: Well, there is also commercial and office and all of that. That is all gone.
5 But we do have the condition that it doesn't apply to Site and Design and doesn't apply to PC
6 and that is already there.
7
8 Vice-Chair Tuma: Okay. So I still have the question I had before, which was under the first of
9 these sub-bullet points for this item. Would the automatic extension be available, as you are
10 envisioning it, for projects that either have been approved or would be approved prior to June 30,
11 2010?
12
13 Commissioner Keller: Yes, but only after they exhaust all the other extensions they have
14 available.
15
16 Vice-Chair Tuma: Okay. I would be supportive of all of those modifications and therefore
17 supportive of the entire motion. Commissioner Holman.
18
19 Commissioner Holman: I have perhaps a couple of clarifications. Director had suggested a
20 couple of wording changes in A. The Director may approve. So if you want to restate that just
21 so it is on the record. I think the Commission would probably agree with that language.
22
23 Mr. Williams: Yes, and this was a little bit different than the way Commissioner Keller said it.
24 So I am not sure if it still quite works. Then this would also be inserted in B under the
25 Commission and Council purview. The Director may approve the extension if the Director finds
26 that project does not substantially conflict with any applicable zoning code and Comprehensive
27 Plan changes that have been adopted by City Council since the original application, and may
28 otherwise adjust project conditions to address such changes. I don't know if you want to put the
29 'minor.' Maybe we should just say to address minor changes in those circumstances or
30 something like that.
31
32 Commissioner Keller: I think that is fine. The important thing is it should be based on since the
33 application was deemed complete, because obviously there is a period between deemed complete
34 and approval where changes could have happened that should also be applied.
35
36 Mr. Williams: Is that useful to say deemed complete or just say since application?
37
38 Ms. French: The first time the application was approve it was approved based on the operative
39 codes and regulations when it was deemed complete the first time. So are you saying at the
40 extension you could go back to the time it was complete?
41
42 Commissioner Keller: Right. You go back to the time it was complete not merely when it was
43 approved. Because if there were changes made in between the deemed complete and the
44 approval those changes should be taken into account.
45
Page 24
1 Ms. French: So then that leaves out the part that you had said which was if it is a major conflict
2 it can be denied, which I guess is implicit in.
3
4 Commissioner Keller: You can say that if you wish.
5
6 Vice-Chair Tuma: Commissioner Lippert. I am sorry, Commissioner Holman was not fmished.
7
8 Commissioner Holman: On B if Commissioners and Staffwould be agreeable to it to add in
9 addition to zoning code and Comprehensive Plan applicable ordinances and changed conditions,
10 having to do with Site and Design and PCs.
11
12 Vice-Chair Tuma: Let me ask a clarifying question about that. You said additional ordinances
13 and changed conditions?
14
15 Conmrissioner Holman: Applicable ordinances, any applicable ordinances, and changed
16 conditions.
17
18 Vice-Chair Tuma: What does, 'and changed conditions' mean?
19
20 Commissioner Holman: Changed conditions meaning the environment can change. Palo Alto's
21 needs may change. It gets addressed in the Staff considerations too.
22
23 Mr. Williams: It might be helpful to say changed physical conditio~ or something like that.
24 Theoretically, suppose it is in the floodplain now and it wasn't before. So changed conditions is
25 pretty broad but I think if you are going to go there I would certainly try to nail it down to
26 something like substantially changed physical conditions or whatever. Then on the ordinance I
27 would steer you away from the subdivision ordinance because as Don said you can't really do
28 anything about that once they have a Tentative Map approved.
29
30 Commissioner Holman: Well, if Staff wants to make recommendation what I am trying to do is
31 just see that we don't have a project that we are extending that is in conflict with significant
32 changes that have been made per ordinance.
33
34 Mr. Larkin: I guess the one I could see is if there were changes to the Unifonn Building Code
35 that would require substantial changes. I think we could say something about significant
36 changes to health and safety, necessary for health and safety, or health, safety and welfare as a
37 way to capture those kinds of things without capturing some of the ones that probably we
38 wouldn't be able to apply.
39
40 Commissioner Holman: That wasn't at all where I was headed. I was headed where the whole
41 conversation we had earlier was where I was headed. So for instance if the PC Ordinance
42 changes significantly.
43
44 Mr. Larkin: Well that would be zoning. We covered 99 percent of what we want to cover in
45 zoning. The only thing I can think of would be health and safety conditions that the City has
Page 25
1 adopted subsequent. If there is a health and safety condition those are things we probably do
2 want to apply.
3
4 Commissioner Holman: Okay. All right then the only other couple of comments or possible
5 suggestions. I have mentioned to Staff a couple of times that there used to be public notification
6 for extensions. That has been my understanding at least.
7
8 Ms. French: I did the research. That was never in any zoning code. It was an attorney
9 suggesting it as a courtesy to do so but that was never written in the code.
10
11 Commissioner Holman: Interesting. We can talk about something that happened in the past.
12 Anyway, public notification would seem like it would be appropriate for mixed use and
13 commercial projects. It doesn't have to be a hearing or anything just a public notification, just as
14 simple as that. So that whatever findings have to be made the public has some, it is a
15 transparency issue, so the public has some knowledge of that.
16
17 Then to along with that it would seem that it would be feasible and meaningful to have some
18 process where a hearing could be asked for if the community definitely disagreed with the
19 Director's opinion.
20
21 Mr. Williams: These are issues for the Commission to discuss. I think they run counter to, I
22 think all they do is raise the potential for someone to tum this into a highly discretionary issue
23 without basis. Just because somebody doesn't like a project it is going-to be extended and with
24 no necessarily particular reason and we end up with the applicant in jeopardy. One of the things
25 we are dealing with here as we talked about last week is we have long lead times for obtaining
26 financing and for preparing plans and getting building permits, all of which have to be done
27 before you are underway and meeting the requirements, you don't need an extension. To put that
28 all in jeopardy because the extension has a notice and somebody in the public can delay it at least
29 months based on that before some kind of hearing and discussion ultimately potentially at the
30 Council I would certainly advise against that.
31
32 Commissioner Holman: I would certainly hope not months but I am just trying to provide some
33 kind of transparency to the process. So if Staff has another suggestion or recommendation?
34
35 Mr. Williams: I don't have another suggestion. I don't think this is a public process. I do think
36 it is a public process for the Site and Design and PCs that are coming to you. But for the Staff
37 process I don't see as anymore than the existing one-year extension is and if it is going to be a
38 different process then it is very different.
39
40 Commissioner Holman: Any Commissioners support that or not?
41
42 Vice-Chair Tuma: First there are two issues that you raise. One dealing with the notice and I
43 think that there are a whole host of approvals that go on all the time that are Director discretion
44 and I think this falls into that category and we don't necessarily do notice. So I think we are
45 opening up a can of worms. We are talking about one-year extensions and then this could take
Page 26
1 several months to get to hearing and you are opening up something there that we don't want to
2 go. So I for one wouldn't be supportive of that.
3
4 . On the other topic of changed conditions I go back to my law school days. What we are trying to
5 do is give Staff and also when these things come to us specific criteria against which to evaluate
6 yes or no. Changed conditions or language like that to me is fairly vague. I think if anything it
7 opens up those decisions to more attack because what is that? When we talk about ordinance
8 changes or code changes or the Comprehensive Plan those are fairly concrete, measurable,
9 identifiable changes. So I wouldn't want to open up the process to sort of getting into a much
10 more wishy-washy area about whether something triggers that. So those are my issues with
11 those topics.
12
13 Commissioner Holman: Well, my purpose here is because marketplaces change and let's say for
14 instance what we have experienced --I am not going to beat this to death, but I will make this
15 comment. There are changed conditions that happen in the marketplace and in the community.
16 Whoever dreanled that we would have the force of so many housing development projects? The
17 community has not been particularly happy that all of that has happened. The marketplace drove
18 that because we had zoning that allowed that much. So if there had been an opportunity to put a
19 halt to some of those proj ects rather than, let's say we were in this situation, if there had been an
20 opportunity to put a halt to some of those nlultifamily projects those are changed conditions.
21 Because we have a schools situation, we have traffic situations, so markets change, and
22 conditions change. That is what I was trying to get at.
23
24 Vice-Chair Tuma: In my mind the distinction though is these are entitlements that have been
25 granted. Yes, there is an extension of time here but the difference between entitlements that have
26 \ been granted and things that have vested and reliance that people make on these things is
27 different. So it is a quarter of nine, and this is a good discussion so I don't want to cut it off, but
28 I do want to be mindful of the time. I have a light from Commissioner Lippert and one from
29 Commissioner Fineberg. Were you done, Commissioner Holman? Okay.
30
31 Commissioner Lippert: I would like to just address Commissioner Holman's comnlent with
32 regard to the notification. I think there is some latitude or sonle room in there. What I would
33 hate to see is for this to - I don't think the intent here is that we want it to reopen the
34 discretionary process. This is really an extension of entitlements and approvals with again
35 additional extensions that are reviewed at the Director's level.
36
37 Where I think we have some latitude however is for instance the Architectural Review Board at
38 the end of its agenda does currently list Staff level approvals. I think that would be an
39 appropriate place, because it is a notification really to the Architectural Review Board. At the
40 end of the agenda let thenl know that an extension has been granted or an extension is being
41 considered for a specific project. Those are publicly noticed agendas so they are posted at the
42 library and in the public domain on the internet. So there is a venue or way by which the
43 community can then voice to either the Director or the Architectural Review Board what their
44 concerns are. It mayor may not affect that extension but the point is that at least then it is made
45 part of the public record.
46
Page 27
1 The second point that I wanted to make and I guess this is more of a question for my colleague,
2 Commissioner Keller. Along EI Camino Real nlany, many, many years ago the City Council
3 rezoned properties along EI Camino Real making them multifamily residential properties. One
4 of the sites is the Palo Alto Bowl. That until recently has been a legally existing nonconforming
5 use. Recently we saw that property again and we made a recommendation on rezoning that
6 property along with reviewing the potential development along there. Two separate things, the
7 rezone of the property and the potential development on that property. What I am little
8 concerned about is where that rezone falls in relationship to the approval of the hotel and the
9 housing that would be going there. If the applicant were not able to find the financing by the
10 time this comes into play to build those then again the Palo Alto Bowl is a legally existing
11 nonconforming use once again. Anything that would be built there would have to follow the
12 approval or the recommendation we made on that property. So what I am concerned about is
13 that we have a rezone, a Comprehensive Plan Amendment on that property, a nonconforming
14 use, and then another proposal that if it did not receive its extensions would then become
15 another, you know it is a nonconfornling use, So I am just trying to understand how this would
16 all fit into that approval-extension timeline.
17
18 Vice-Chair Tuma: Commissioner Holman you had a clarifying question about Commissioner
19 Lippert's first point? Pass it? Okay. Did you hear the second of Commissioner Lippert's
20 issues?
21
22 Mr. Williams: Sorry I didn't get that. I apologize. Did you?
23
24 Ms. French: Yes, kind of.
25
26 Mr. Williams: Is there a question from it?
27
28 Comnlissioner Lippert: There was a question.
29
30 Mr. Williams: Can I just get the question part?
31
32 Commissioner Lippert: Okay. The question is along EI Canlino Real there are a number of
33 legally existing nonconforming uses. An example is the Palo Alto Bowl site. Recently we saw
34 the Palo Alto Bowl site and we made a recommendation of rezoning the property to something
35 else. It is a Comprehensive Plan Amendment, correct?
36
37 Mr. Williams: Well, we rezoned it back to commercial. So it is not nonconforming now except
38 for the back part of it.
39
40 Commissioner Lippert: So you have answered the question. Basically there would be no
41 conflict there.
42
43 Mr. Williams: Right.
44
45 Vice-Chair Tuma: Commissioner Fineberg.
46
Page 28
1 Commissioner Fineberg: Just two comments on Commissioner Holman's suggestion of public
2 notification. ,If the intent is so that the residents or businesses near a proj ect gain an
3 understanding that the approval is being extended and there is a thought that there is value in
4 that, and I believe that there is, then the public notification needs to be done in a way that those
5 affected will actually get the notification. So while posting it as part of minutes in the library
6 might legally support a definition of public notification, there would not be many residents nor
7 would there be many business owners that actually go to the library and read every set of our
8 minutes. So I think in practice it wouldn't satisfy the intent. Okay, excuse me, on the agenda.
9 So if the goal is for people that are impacted to understand what is happening and have
10 awareness of it it needs to be done in a productive fashion not just a legally satisfactory one.
11
12 On the question about changing conditions and how to handle that I would be hesitant to apply
13 that on a project-by-project basis because that might potentially become capricious. Would the
14 way to approach that be by requiring that the ordinance come back to us annually after 201 O?
15 Then if let's say in June 2011 the miracle of miracles happened and we have a green boom, there
16 is building everywhere, there is free money, lending is on, we could repeal the ordinance. That
17 way we are dealing with it evenhandedly across all projects. It would consider the changing
18 conditions. I don't know if an annual review -and that would mean that they would be entitled
19 to the extension ifit was happening between now and Jmle 2010 and then if the grim conditions
20 continued and we didn't repeal it they would still be entitled to the same extension.
21
22 Mr. Williams: If your suggestion is that it would come back to you in June 2011 I think that is
23 fine. I don't have any problem with that at all. We could reevaluate where we are with it, is
24 there a reason to cutback on it, is there reason because the economy has gotten worse and we
25 want to even extend it some more. I think we could have that. I think that is fine.
26
27 I did want to clarify you mentioned the thing about the notice. We are not suggesting notice. So
28 I think that was maybe mentioned up here but that is not a suggestion of ours that there be notice
29 on it. Certainly if there is notice then your points are well taken that it needs to be beneficial and
30 effective.
31
32 Commissioner Fineberg: Can we do a straw poll on notice and then I would like to propose a
33 friendly amendnlent?
34
35 Mr. Larkin: I don't think a straw poll is appropriate. If you want to make the amendment just
36 make the amendment.
37
38 AMENDMENT
39
40 Commissioner Fineberg: All right. I would like to make a friendly amendment that there be a
41 requirement that the ordinance come back to the Planning Commission annually for review and
42 potential changes beginning June 30,2011.
43
44 SECOND
45
Page 29
1 Commissioner Keller: Can I suggest that be it comes back to us annually starting in the first
2 quarter of20ll? The reason is if you really want to apply some period extension it takes a few
3 nlonths to get through the system. So you probably want us to come back the first quarter of
4 2011 and then annually thereafter until it is either repealed or extended or whatever. Does that
5 make sense? Okay. So I will make that amendment.
6
7 Commissioner Fineberg: I would accept that.
8
9 Vice-Chair Tuma: Are we ready to vote?
10
11 Commissioner Keller: One more thing.
12
13 Vice-Chair Tuma: Okay.
14
15 AMENDMENT
16
17 Commissioner Keller: I would like to make the amendment that was suggested by the Attorney,
18 which is that health and safety be added as a condition for the findings for an extension.
19
20 SECOND
21
22 Commissioner Fineberg: I guess I am still accepting the second.
23
24 Vice-Chair Tuma: I am not sure what that means.
25
26 Mr. Larkin: I think that the way that I suggested it is if the Director makes health and safety
27 findings that would be a ground for denying or conditioning the extension.
28
29 Commissioner Keller: That is what I meant.
30
31 Vice-Chair Tuma: All Right. Are we ready to vote? I am not even going to try, Planning
32 Director, do you believe that you have all this?
33
34 Mr. Williams: I think we are there.
35
36 MOTION PASSED (5-0-2-0, Commissioners Garber and Rosati absent).
37
38 Vice-Chair Tuma: Okay. All those in favor of the motion as made and amended by
39 Comnlissioner Keller say aye. (ayes) Opposed? That passes five to zero. Thank you.
Page 30
Planning and Transportation Comnlission
Verbatim Minutes
July 22,2009
EXCERPT
ATTACHMENT F
1 Review and Recommendation of an Uncodified Ordinance relating to Time Extensions for active
2 pennits previously approved pursuant to Palo Alto Municipal Code, Title 18, Zoning Code.
3 Environmental Assessment: Exempt from the requirements of the California Environmental
4 Quality Act (CEQA) requirements pursuant to Title 14 of California Code of Regulations,
5 Section 15061(b)(3).
6
7 Ms. French: Yes. Due to the current and projected economic conditions Staff has begun to get
8 an increasing number of requests for extensions of planning entitlements, along with requests for
9 extensions of Building Pennit Plan Checks. Developers are having a difficult time retaining
10 building occupants that they initially had as part of the deal and obtaining financing to pay for
11 both the construction and the development impact fees that are due at the time of Building Permit
12 Issuance.
13
14 The entitlement extensions of one year can be granted now by a letter from the Director for all
15 except for Sight and Design Reviews as long as we receive the request before the expiration
16 before the entitlement. To date these extensions have not involved adding new conditions to the
17 extended projects. The uncodified ordinance would extend Planning entitlements approved
18 pursuant to Title 18. It would provide more certainty in uncertain times for previously approved
19 proj ects and would streamline the extension process.
20
21 In exchange for extensions Staff proposes that the City would require future construction to meet
22 our mandatory Green Building requirements even if those requirements were not in place at the
23 time of the initial approvals. The proposed two year automatic extension of active Planning
24 entitlements and for those approved prior to July 2010 is very similar to the state assembly bill
25 that passed just last week, AB 333. It is a new statutory or automatic two-year extension of all
26 unexpired subdivision maps. This extension adds to the extensions that were already added for
27 subdivision maps back in July of last year, SB 1185.
28
29 Chair Tuma had asked Staff to identify the potential effects on resources both positive and
30 negative. First of all I want to make clear it is not going to extend construction periods as they
31 are currently defined now in our Building Department. It is just about getting projects to the
32 point where they can initiate that construction. It would not freeze the amount of fees to be paid
33 for projects. So Plan Check fees, Green Building fees, development impact fees would all be
34 paid at the rate in effect at the time of the Building Pennit submittal and issuance.
35
36 Then applicants for Building Pennits currently in Plan Check would still have to pay to extend
37 the Plan Check if the Plan Check time is nearing expiration. This ordinance would not affect
38 that. Applicants for Building Pennits that have been issued but yet received their inspection with
39 the six-month interval would still have to pay to extend the pennit for inspection purposes. lfthe
40 Building Pennit were to laps and the Planning entitlement had been automatically extended per
Page 1
1 this ordinance the applicant could then reapply for the Building Permit and pay the fees again in
2 effect at that tinle.
3
4 This ordinance could reduce the amount of permit fees and applications received by the City
5 during the coming years, not such a good thing. But since the applicant's would not need to
6 reapply for the same projects that may have otherwise expired. The applicant's would also not
7 have to pay an attorney to prepare a Development Agreement to apply for Council approval of an
8 ordinance associated with such a development permit. However, Staff could then focus on
9 pending entitlement projects, preliminary reviews, and other work on our plate such as
10 Corinnission and Council assigned special proj ects if we just simply extended them.
11
12 Commissioner Keller emailed questions to Staff today and answers are at places at the back of
13 your at places packet there. Per his request, the list of addresses of approved projects currently
14 needing Building Permits and projects that are now in discretionary planning processes have
15 been annotated to show the zone district for each project. Hopefully they came out okay in the
16 copying. If you have questions I can go through that.
17
18 Staff is interested to hear Commission input on the length of time for the automatic extension
19 and the Director extension. The Commission may wish to discuss the amount of time proposed
20 for each type of extension based upon the type of entitlement. So it is quite late. I think we still
21 have a few possibly supports, possibly others who want to discuss this. Thank you.
22
23 Vice-Chair Tuma: Thank you. At this point I have three members of the public. Thank you for
24 sticking with us to this hour. So we are going to hear from the public. The first speaker will be
25 Bruce Barry followed by Bob Moss. You will have three minutes each.
26
27 Mr. Bruce Barry, Palo Alto: Good evening and thank you for your time. I am with Barry Real
28 Estate. I am not going to tell you anything that you already don't know. Sitting out there
29 listening to you and I am very impressed with your knowledge of what is going on in the real
30 estate environment and the economy in general.
31
32 The project that I am going to talk about we started five years when the economy was much
33 better. Things have dramatically changed and we are at a point now were our project is approved
34 and we have until January 11 to pull the Building Permit. At this point our tenant has backed out
35 given the current situation. I work every day trying to talking to retail tenants, talking to office
36 tenants trying to secure tenants, and there is no interest. Every retail tenant I have talked to their
37 plans are on hold indefinitely, pretty much the same with the office tenants. I really believe it is
38 going to be not months but it could take years for things to come back to where they were.
39
40 I am just here to ask that you please support item four and get it passed. There are a lot of great
41 projects out there that should be built that are going to be a great improvement to the city and we
42 just need some time to ride this out to get them done. It is just the lending environment, dealing
43 with the banks, the restrictions that they have put on us. It is almost impossible to get funding or
44 even get a tenant to get your projects approved. So that is where I am at.
45
Page 2
1 Roxy Rapp was going to be here tonight but unfortunately he is flying back from Utah. So he
2 wanted me to convey the message. He has a big project he is working on too. So thank you and
3 I appreciate your time. I am very impressed with your knowledge. You are doing a great job.
4 Thank you.
5
6 Vice-Chair Tuma: Thanks, thanks for sticking with us. Bob Moss followed by Herb Borock.
7
8 Mr. Robert Moss, Palo Alto: Thank you Vice-Chair Tuma and Commissioners. I think the basic
9 concept of we have an economic problem we should do something about it is correct but the
10 timing is wrong. The recession started 19 months ago and is showing signs of coming out of it.
11 My prediction is it will actually be back in a growth mode probably by November or December,
12 and by this time next year I wouldn't be surprised if the growth is over three percent. So we
13 have gone through this and we are on our way out.
14
15 Of the 20 projects that are listed on Attachment C that are pending and may have to come in for
16 extensions one of them already has an extension to 2014, three of them Building Permits should
17 be issued within the next month. So there are 16 that are at issue and a number of them are good
18 until 2011. So I think it come to something like six or eight that really might be what we would
19 call at risk.
20
21 One of the things that bothers me about this extension is it takes all the pressure off to have
22 somebody really build something. There have been a number of developments in Palo Alto over
23 the years where somebody has come in and gotten an approval and then for various reasons
24 stopped work. You have this site that just sits there unused, vacant, and getting increasingly
25 ugly. There are two housing projects in Barron Park a few blocks from me that have been sitting
26 for nlonths with nobody doing any work. There is one right next to Briones School that has been
27 underway for almost three years, and that is kind of bad.
28
29 So my suggestion is a compromise. Don't give the automatic two-year extension. Allow a
30 second one-year Director's extension so that you can get three years total. Ifwe still find at the
31 end of another year that we have a down economy, we have a problem, then we could have yet
32 another Director's extension. When the Director does the extension he is talking about going
33 with Green Building he should also make sure that if there are changes in the code, Zoning
34 Ordinance, the Comprehensive Plan that the extension also imposes whatever those changes are
35 so that we have something that is modem and consistent with current practice rather than
36 something that was approved four or five years ago and you wouldn't want done exactly the
37 same way today. So I think leaving it to the Director and allowing a one-year additional
38 extension is a good compromise.
39
40 What really bothers me is the idea of something sitting there undeveloped for many, many years.
41 That would be unpleasant.
42
43 Vice-Chair Tuma: Thank you. Our last speaker of the evening, Herb Borock.
44
45 Mr. Herb Borock, Palo Alto: Thank you Vice-Chair Tuma and Commissioners. I guess the
46 simplest comment I can make is just say no. We have a social contract here for decades that
Page 3
1 there are limits on approvals. In good times when developers were making very high returns or
2 in some cases in relation to the previous item they were putting offices on the ground floor that
3 was prohibited until they got caught. They didn't take that extra money and give it to charity or
4 give to the community that was impacted by the developments.
5
6 The reasons Staff has given, Staff workload for example I don't believe it. The real reason they
7 are concerned is the community standards change, different people are elected to the City
8 Council and if proj ects laps, as they do under the current code, the same proj ect nlight not be
9 approved based on who gets elected. I just think you should say no.
10
11 One comment I would like to make is there are three ways to initiate changes to the zoning code.
12 One of them is the current agenda item where Staff initiates it and places it on your agenda. The
13 other two are either the City Council Of this Commission initiating the zoning change. That is
14 what the previous agenda item was supposed to be. The Commission initiating a zoning change
15 but you did not do that. You did not come to a collective concurrence to direct Staff as to what
16 should be in that ordinance.
17
18 I couldn't make that comment on the last agenda item because I didn't hear that advice from
19 Staffuntil after the public comment has been closed but I think that was a violation of the zoning
20 code. It is not only the first time I have heard the kind of advice you got on the previous agenda
21 item compared to other attorney's who have been here, but I think it is the first time I have heard
22 it during Gary Baum's tenure. Thank you.
23
24 Vice-Chair Tuma: Thank you. Back to Commissioners for questions or comments. Right now I
25 have Commissioner Keller, followed by Holman, followed by Fineberg.
26
27 Commissioner Keller: First I think this is very interesting. I am in sympathy with the comments
28 of Mr. Moss from the pUblic. I heard several different reports indicating that the recession is
29 likely to end sometime in the fourth quarter of this calendar year, and then see some upturn.
30 Nonetheless I do think that it is warranted to be able to provide some degree of extension.
31 Although I had first thought with respect to my question four about one year automatic extension
32 and two one year discretionary extensions I am now leaning towards, especially in response to
33 the comments that discretionary extensions actually are not a lot of work, I would suggest that
34 we have up to two one year discretionary extensions. That if this turns out to not be an upturn
35 within the next two years that we can revisit this further and do that.
36
37 In addition, that these discretionary extensions take into account not only Green Building but
38 also the potential for code and Comprehensive Plan amendment changes, and that we take those
39 into account as well. I appreciate those other suggestions from Mr. Moss.
40
41 I had furthermore suggested this not apply to Site and Design Review. That the process of
42 Development Agreements certainly exists in that and that we avail ourselves of Development
43 Agreements in that regard, as was mentioned in the response to my question number two. Where
44 it says that currently a Director may extend Planned Comnlunities one year; beyond that a
45 Development Agreement would be needed for an extension. Development Agreements executed
46 prior to expiration are currently the only method available to extend Site and Design Review
Page 4
1 approvals. So it looks like the process of Development Agreements already exists for a Planned
2 Community and already exists for Site and Design Review, and it seems to me that that process
3 should be followed. So in particular PCs involve Site and Design Review so I would want this
4 not to apply to Site and Design Review. If the Chair will allow me I will make that motion but if
5 the Chair prefers I can defer that.
6
7 Vice-Chair Tuma: I think it may be helpful just to hear comments from others as well and then
8 we will come back to you for a motion.
9
10 Commissioner Keller: Sure.
11
12 Mr. Williams: Chair, can I make one clarification?
13
14 Vice-Chair Tuma: Absolutely.
15
16 Mr. Williams: The reference is to Site and Design Reviews and you said that PCs require Site
17 and Design Review and that is not true. PCs have a process that is similar to Site and Design
18 Review with the exception of Alma Plaza PCs do not have separate Site and Design Review. So
19 you might want to focus more on the PC than a Site and Design Review or both if you feel it
20 necessary to do both. But you can have Site and Design with out a PC. The PC process has
21 embodied within it review by all three bodies which is essentially what Site and Design Review
22 is but it is not called Site and Design Review. So if you just said Site and Design Review that
23 doesn't necessarily attach to all PCs.
24
25 Vice-Chair Tuma: Commissioner Keller.
26
27 Commissioner Keller: In that case I would want to use the Development Agreement process for
28 both PCs and Site and Design Review. Thank you for that clarification.
29
30 Vice-Chair Tuma: Commissioner Holman.
31
32 Commissioner Holman: I have a couple of questions. How many properties are really
33 prompting this? If you go down the list there are 2455 EI Camino Real, it says the Building
34 Permit is issued. 278 University there is already a one-year extension available. There is an
35 extension available for 695 Arastradero it appears. I am just looking at the ones that expire in
36 2009. 49 Wells, 653 Homer one year extensions are available for those. 317-323 University no
37 Building Permit so is there a one-year extension available for that one?
38
39 Mr. Williams: No, that is the one the speaker was talking about before that expires in early
40 2010.
41
42 Commissioner Holman: Okay. Then the Building Permits are issued for the recently issued ones
43 the 2805 EI Camino and 3750 Fabian. They don't have to commence work for another many
44 months. So I guess I am a little bit interested in what is really prompting this. Is it the concern
45 for how long the downturn will last? Why are we looking at this now?
46
Page 5
1 Mr. Williams: Yes, two things. One is that we have had a couple. The main one that really
2 started us thinking about this was Channing House, a Planned Community for Channing House.
3 We just not too long ago wrote them an extension request so they would have to be back in do
4 we have that?
5
6 Ms. French: With a Planned Community they have a development schedule. So they have said
7 that they are going to by October 8,2011 start construction. If they don't start construction on
8 October 8, 2011 they are going to have to come forward with a Development Agreement or if we
9 have done this extension then they don't have to do that. The problem there too is it is OSHPD.
10 They are dealing with a different agency to get through permits, etc.
11
12 Mr. Williams: 200 San Antonio you saw as a Development Agreement that is somewhat
13 different than the other requests in that it is such a big project and involves Mountain View and
14 some other unusual things. Then this 317-323 University is there and then what you don't see on
15 these pages are dozens of single fanlily homes and other remodels and such that are in the same
16 situation. They have expiration dates and they are sitting now and some of them are going to
17 come up in the next six months to a year and some of them might be a little longer than that that
18 can have one additional extension. But again, appreciate what Mr. Moss has said but we are
19 seeing a lot of particularly commercial real estate reports coming out saying 2012-2013 for the
20 timeframe for bouncing back in the conlffiercial sector. It ends up being troublesome for Staff to
21 have to process extension requests and deal with that. It is very troublesome to have to develop a
22 Development Agreement. It has to go through Commission and Council, have to have the
23 Attorneys getting involved and that kind of thing, but what is more troubling is the applicant and
24 the uncertainty. I think this is a good example for 317-323 University. I talked to Rick Barry
25 last week about this and they are in a situation right now and there is a lot of lead-time associated
26 with doing these things. So the fact that we could say well, it has to have a permit by early this
27 says 12-27-09 but he has indicated I think January 10 or 11 or something like that, have to pull a
28 permit by then. Well, if they are going to pull a permit by then they need to have pr()bably their
29 working drawings submitted in the next month or so to Building. So they are at a point where
30 they really have to make a serious commitment of money to do that and then move forward.
31 Even at that they are not sure that they are going to be able to have the financing to make that
32 happen in that timeframe. So it is difficult.
33
34 Certainly, if the Commission wanted to go to something that is less than the two years out,
35 something like Commissioner Keller mentioned, and come back in a year and review and see
36 where things are kind of with the economy and see how things are looking and whether to
37 continue this, and maybe this is a report you see after a year and make a determination whether
38 to continue the extensions or not that would be sonlething that certainly would be better than sort
39 of where we are today.
40
41 Vice-Chair Tuma: I just want to interject a comment here. I spend a lot of time these days
42 reading about the status of the commercial real estate market and everything that I read says that
43 when you look at the statistics on the status of notice of default and foreclosure proceedings in
44 the commercial real estate market it is lagging the residential nlarket by between six and 12
45 months. So what I am reading says very strongly that while the residential market seems to be
46 stabilizing in some areas the commercial market is getting ready for what we went through six to
Page 6
1 12 months ago in the residential market. So I would concur with the comments of the Interim
2 Director that the commercial market may very well be in for a much bigger shock coming up.
3 So I think the worst of it is not over for tne commercial market. So just in terms of the why are
4 we doing this I think there really is a time horizon out here in the future where the commercial
5 market is going to be in a greater sense of disarray if you will. Commissioner Lippert do you
6 want to follow up on that one?
7
8 Commissioner Lippert: I just wanted to follow up on that real quick which is that the state of the
9 economy when it comes to commercial is probably far worse because commercial properties
10 generally have to refmance and they are takeout loans every ten to 15 years. So it is not just the
11 construction loans it is also the takeout loans as well. So it is really quite a terrible situation that
12 we could be facing in the near future if we don't take what we have in the way of permits here
13 entitlements and be able to extend them at least out through another year.
14
15 Vice-Chair Tuma: Okay, great. Thanks. Now back to Commissioner Holman.
16
17 Commissioner Holman: So unless I am really missing something here is the only one that is
18 really in jeopardy currently, we are not talking about the single family homes, but the
19 commercial ones is the 317-323 University?
20
21 Ms. French: You are looking at major projects. There are others out there that are not on this list
22 that are Individual Review homes, etc. I don't have a list.
23
24 Commissioner Holman: Right, excepting IR proj ects or single family homes, the conlmercial
25 ones.
26
27 Mr. Williams: There may be a few on these lists of the major projects there are not that many
28 that are imminent. But again in terms of planning, their building plans, their financing, etc.
29 trying to get there it is just our feeling that we don't want to wait until we are six months away
30 from their expiration before we do something.
31
32 Commissioner Holman: So how finitely can we say and nay? In other words without getting
33 into a situation of discriminating, it kind of goes to Commissioner Keller's comment perhaps,
34 could we carve out PCs? Could we carve out affordable housing proj ects? How can we slice
35 and dice.
36
37 Mr. Williams: Don might want to add to this but I think you probably can by the type of permit
38 at least. I don't know about affordable housing projects probably but certainly you can do PCs,
39 Sight and Design from architectural review, just standard architectural review or something like
40 that if that is what you would like to do. I don't think that is a problem especially since those are
41 items that go all the way through Commission and Council and that does imply that there is some
42 greater discretion associated with that kind of review.
43
44 Commissioner Holman: Could it also be by size ofproject? The reason I am going there is
45 because times and conditions do change in the real world so that is why I am asking that
46 question. And, a second question is if I understood Amy French's comment and I may not have
Page 7
1 understood it, the fees that are paid are the fees that are paid at the tinle of issuance. So if
2 somebody comes along and they don't get their Building Permit for two years then they pay the
3 fees applicable at that tinle. But if they have already paid the fees -never mind I just answered
4 my own question. So the size ofproject, could we?
5
6 Mr. Larkin: I think you do have a fair amount of latitude. I think the closer you drill down, the
7 more you differentiate, and the closer you drill down to specific types ofprojects the stronger the
8 rationale has to be. You have to come up with rationale for not extending -if you are going to
9 say all PCs except for PCs over 20 acres, just to use an extreme ex amp Ie, I think that is fine but
10 come up with the reason why it makes sense to distinguish those projects.
11
12 Commissioner Holman: Thank you.
13
14 Vice-Chair Tuma: Commissioner Fineberg.
15
16 Commissioner Fineberg: Could Staff please define proposed uncodified ordinance?
17
18 Mr. Williams: Yes. A lot of times when something is intended to be in effect for a temporary
19 period of time we do that or cities us an uncodified process. It doesn't get into the code because
20 it is not going to be in the code very long. So it is basically outside the code and says this is the
21 way you treat these permits in this case. Then in a couple of years it is gone. So nobody is
22 looking in there ten years in advance and says something is in here about this and it is ten years
23 old and outdated. So using the uncodified process is beneficial in that respect. It doesn't have to
24 be we could put it in the code but that is generally the way it is done. I know we had talked to
25 Sunnyvale and they did something like this too and that is the way they did it for their code.
26
27 Mr. Larkin: It is the kind of thing that could be done by a resolution. In fact our Charter says
28 that we could do legislative acts by ordinance or resolution. The problem with resolution is that
29 it is not tracked at the same level. An uncodified ordinance will at least get entered into the end
30 of the code where they list all the ordinances that are adopted. So if somebody needs to refer to
31 it you will have an ordinance number and can go pull the ordinance.
32
33 Commissioner Fineberg: So what does an uncodified ordinance live in ifit is not part of the
34 code? Are there other uncodified ordinances out there that we are all familiar with?
35
36 Mr. Larkin: There are uncodified ordinances out there that some of us are familiar with. All of
37 the City Council's actions that are legislative are either done by resolution or ordinance. If it is
38 resolution it gets filed in a draw and people may know where to find it. If it is an ordinance it
39 gets listed in the Table of Ordinances but the official record of those ordinances is the Ordinance
40 that is on file in the City Clerk's Office. So the code is a handy reference but it is the Ordinance
41 itself that is on file in the City Clerk's Office that is the implementing document. This would
42 just be an ordinance in the City Clerk's Office that doesn't get printed in the code.
43
44 Commissioner Fineberg: So are all the PC ordinances uncodified ordinances?
45
46 Mr. Larkin: That is actually a really good example. PC ordinances are uncodified ordinances.
Page 8
1
2 Commissioner Fineberg: Okay, thank you. Can Staff please clarify the existing conditions, I
3 think I am familiar with them but I just want to make sure, what is the length of time currently
4 allowed for the different types of projects? Then I understand we will be adding the two years or
5 the one-year in this proposal. But what is the baseline that we start from that exists now?
6
7 Ms. French: So there are different classifications. We grouped them during the permit
8 streamlining to be called different things. So if you want to look at the table in Attachment B
9 you can see ARB, DEE, CUP, Variance, IR, HIE, NPE those are all good for a year. If they
10 come in before that year is up and ask for an extension we give it to them through a letter, one
11 more year. So the total amount of time is two years before they have to have pulled their
12 Building Permit and started digging in the ground.
13
14 Then for Site and Design it is a two-year initial period unless it is associated with a Vesting
15 Tentative Map and there are no extensions by anybody. The Planned Community there is a
16 development schedule that is set forth and adopted by Council, and it could have a five year plan
17 it, it just depends, it is case-by-case. Then that can be extended by an additional year by the
18 Director. So that's it.
19
20 Commissioner Fineberg: Thank you. I had missed Attachment B. So that means that more or
21 less there is one year, plus a one year extension, so the current base condition is two years and
22 we would be going to either four or five years. How does and, where in that process, how does
23 demolition permit fit in there? Will we be having lots that get scraped and then sitting empty
24 five years or do they not get to scrape it until there is some condition that has been nlet? Will we
25 have vacant buildings with no tenants that are getting blighted? What is going to happen?
26
27 Ms. French: Technically in our code right now for let's say Architectural Review Board permits
28 or approvals we would not issue the demolition permit until after the architectural review in the
29 code it says this. We don't issue demolition permits unless there has been an Architectural
30 Review approval. Now we are looking at other policies as far as that goes. In other words,
31 sometimes there are reasons why if there are hazards in the building let's say, they want to
32 demolish it for health and safety reasons so there is an exception to that. The best situation
33 would be to be issuing the Building Permit and that would include the demolition permit and that
34 would come as a package that would include the construction and demolition debris diversion
35 requirements and paperwork, etc. So that is our ideal and that is what we try to work towards
36 with our applicants is to have it all happen in the same issuance.
37
38 Mr. Williams: We have recently affirmed that with the Building Official that for all types of
39 permits that in almost all cases the demolition would not occur prior to a Building Permit being
40 issued with the exception of if somebody does come because there is some unusual circumstance
41 and there is some hazard or nuisance created by a building remaining on a site that there would
42 be the ability for the Building Official and Planning Director to determine that it could be
43 demolished before hand. Up until like six months ago or so I know certainly on single family
44 homes you didn't even have to have an approval of a project for that site before you could
45 demolish. Now we have policy that not only do you have to have approved replacement but you
46 also have to do it simultaneous with the Building Permit.
Page 9
1
2 Commissioner Fineberg: Okay, so it sounds like the safety mechanisms have been put in place
3 that we won't have the demolitions and then empty lots.
4
5 I don't know if you could answer this tonight but I also have some questions about what the
6 impact in retail tenants would be. In light of our last conversation if we have projects that have
7 ground floor retail or office on second floor and the project is likely to undergo a renovation
8 there is a significant amount of uncertainty introduced for those tenants if they don't know if
9 they are staying one year, two years, or five years. I can imagine that that only degrades their
10 ability to have certainty and to want to have any kind of tenant improvements to want to remain
11 in that space with that uncertainty. So I don't know that it is necessarily a good thing for the
12 tenants. Also if you have spaces that are not the most desirable buildings, buildings that an
13 owner or developer might want to tear down and redevelop, those undesirable spaces add to our
14 less expensive office stock, less expensive housing stock, less expensive retail stock. We have
15 seen this in other areas when we redevelop we redevelop with typically higher density, with
16 better quality space which goes at higher rental rates or higher sales per square foot, the value of
17 the property, and the improvements are increased. So it drives up rents. It drives up land values.
18 It drives up property costs. One way to counteract that would be to not enact this ordinance. So
19 by not enacting this ordinance it would make rents more affordable. It would nlake single family
20 homes more affordable because it keeps that older, lower quality stock. It is kind of
21 counterintuitive to wanting to see everything improved. I would be curious to see more of an
22 analysis on that and whether that would increase our ability for local businesses to remain in
23 existing retail spaces. I am not sure this proposed uncodified ordinance would benefit local
24 business operators not necessarily owners. It looks like you have some feedback.
25
26 Mr. Williams: I do. I understand what you are saying but my take would be the opposite of that.
27 I don't think that your concern about redevelopment is I think outside the discussion here. I
28 think these properties are going to redevelop it is just a matter of whether when that occurs.
29 Then as far as the rents go, I am thinking of the situation with the tenants in the retail, I think
30 having some extension and some known extension there provides an opportunity for the property
31 owner to assure the retail tenant that they have more time there and to work something out with
32 them. I think if you look at the 278 University, the Roxy Rapp building as an example, at first
33 they were going to go ahead and Noah's and Starbuck's had moved out. He as been able to find
34 a couple of tenants as interim tenants in those spaces. I know that Kan Zeman is the other piece
35 of that and it has been looking and looking because they thought that they were going to be gone.
36 When it looked like he wasn't going to be able to develop right away they managed to strike a
37 deal. If they knew they had these extensions I think they could talk about a longer term, more
38 solid deal to keep people in spaces. If they don't then they are almost forced to say well the
39 lease is going to be up then and I don't know if I am going to be able to keep you there or not. I
40 might be forced to move ahead with a building I don't really want to go ahead with and there is a
41 lot of risk to do that. So I would see from the retail side at least that this would provide a little
42 more certainty in that situation, more opportunity to retain those retail tenants. On the home side
43 I think it is just a matter of timing and it might mean that somebody has to come back in and
44 resubmit but they are probably still going to ultimately do the home at some point. Just my
45 opInIon.
46
Page 10
1 Commissioner Fineberg: Okay. Thanks I appreciate that. I guess what I am seeing is that if a
2 developer knows before they start a project that they need to have tenants lined up, they need to
3 have financing lined up, they need to be able to do this in a finite period of time they might be
4 less likely to give their anchor tenants notice of five years. They might be more inclined to
5 retain tenants they have and unless they know they have a viable project they are not going to
6 take the gamble that hey I can start this project and I have five years to figure it out, and it
7 increases the amount of uncertainty, and it increases the risk they will take because they know
8 they have more time to sort of sort things out. I can see how that could go in several directions.
9
10 I would like to echo Commissioner Holman's comments of if we were to pursue this to somehow
11 differentiate how the ordinance might apply to single family homes, versus PC, versus
12 commercial properties, and I will leave it to Staff to figure out how to slice and dice that. But I
13 would be more inclined to favor the ordinance for certain types of developments and not for
14 others.
15
16 I also would want to see more thought and maybe Staff comnient on what the impact of this
17 ordinance would be given that we are on the cusp of a Comprehensive Plan Amendment.
18 Assuming we keep our 2012 date for having the Amendment in place sonle of the extensions that
19 we might be granting within let's say a year would carry these proj ects pas the 2012 date versus
20 if the current entitlements expire when they would come back would be governed under new
21 Comprehensive Plan guidelines. So at a time when our Comprehensive Plan is sun setting is it
22 wise to continue entitlements into a new Comprehensive Plan era. I don't what the full impacts
23 of that are so I would want to see more discussion of that. Thank you.
24
25 Vice-Chair Tuma: Commissioner Lippert.
26
27 Comnlissioner Lippert: I think this is a really fine idea considering the economic times. One
28 thing that this does I think is particularly important. The discretionary review process is just that.
29 It is an entitlement on a project, on a piece of property that is not a right that is just given away it
30 is something that needs to be reviewed and done following a set of rules, and there is a body that
31 reviews this. What I want to do with this is keep the discretionary review process from
32 becoming a subjective review process. What I nlean by that is that because a project might be
33 stalled by a year or so bodies turnover. On the Planning Commission we have already seen we
34 have lost two, perhaps three people here. The City Council again is going to be turning over and
35 we might lose three people there, four perhaps. So what happens is that when you get into these
36 entitlements that have been granted a body like the Planning Commission or the City Council if
37 they have to make reapplication for this it is a whole other set of eyes that are seeing this. In
38 addition to that the rules are changing. So you conlpound all of that and it is like a vehicle stuck
39 in mud. It can't get any traction. It can't get going. The gasoline is the financing. If they are
40 out of gas, they are stuck in the mud, they finally get the gas to get going again, but the process
41 bogs it down. When that begins to happen we begin to lose opportunities in this town. What I
42 mean by that is we see things like Tom Wing leave Stanford Shopping Center and goes to Menlo
43 Park. So I don't want what is our discretionary review process to suddenly become a subjective
44 review process.
45
Page 11
1 The other point that I want to make here that I think is particularly important is that when it
2 comes to Planning entitlements the date you make application is the date the rules that you have
J 3 to follow are set. The rules you follow are as of the date of application. So if the one-year
4 period were to expire a whole other set of rules might come into play and then they would have
5 to redesign the building or the project based on the new rules. With Building it is a little bit
6 different. Again it is the day that you submit but you could be in Plan Check for up to a year and
7 resubmit your revisions and you are still in there. What I am afraid will happen with this is that
8 the rules would change whereas in the Building process when it comes to -it is much more
9 ministerial, this is discretionary. All that the Building Code is is it is ministerial. You just have
10 to meet each of the objectives in the Building Code, whereas this is discretionary. So it is a far
11 more difficult threshold to meet. What I am afraid of is that we are just going to have developers
12 that are going to throw up their hands and say hey, I am not going to build this project now.
13 Once that happens we are stuck in a time warp where we are not moving forward.
14
15 Vice-Chair Tuma: Okay. I have just a couple of quick comments and questions and then we are
16 going to go to Commissioner Keller because I believe he is prepared to make a motion.
17
18 A question of Staff. What is the standard of approval on discretionary extensions?
19
20 Mr. Williams: Generally I don't think there is a specific criteria for it. It just allows the Director
21 to make that extension upon written request. So unless there is some very obvious changed
22 circumstance that would cause us to highlight it that we wouldn't make an extension, we
23 generally would extend the approval.
24
25 Ms. French: They just have to get it in before their entitlement expires. That is the big rule.
26
27 Vice-Chair Tunla: So is this another one of those situations like the last one which is basically in
28 order to get the extension, they get it in it is almost mandatory that we give it to them?
29
30 Mr. Larkin: The one area I think Curtis alluded to is if in the interim the development standards
31 have changed and if Council has rezoned the property or the development standards have
32 changed then that would be a trigger for the Director to say no your approval is not valid
33 anymore because the circumstances have changed.
34
35 Vice-Chair Tuma: How would that work with a PC?
36
37 Mr. Larkin: Well, with a PC it wouldn't be confusing the PC would have to have been rezoned
38 by Council and the applicant would have to have been involved in the process. So there
39 wouldn't be a need for a trigger.
40
41 Vice-Chair Tuma: So a PC would essentially automatically get the extension by applying for it.
42 Is that right?
43
44 Ms. French: Well it is under the ordinance for PCs. Yes, it is a year. We haven't been saying
45 such as you need to conlply with the Green Building requirements. That is one of the reasons we
Page 12
1 put that in the proposed ordinance because we have not been extending things and saying and
2 now you have to meet the Green Building, which is a good idea.
3
4 Mr. Larkin: Just to clarify and it is getting a little bit late so we are getting a little groggy. I
5 think if Council made some development change that applied across the board even to PCs and
6 that came up for review and extension the Director could flag that and say no you have to go,
7 such as Green Building Ordinance. One of the things that we need to be careful of is that, and
8 we are still looking at this AB 333, which was adopted by the legislature last week, but there is
9 some language in there that talks about what new conditions can be imposed on projects that
10 have Tentative Maps.
11
12 Vice-Chair Tuma: Okay. So conceptually all this makes sense to me. I think from a practical
13 perspective dealing with the delays that the significant downturn in the economy are costing and
14 not putting a lot of extra burden back on Staff and to some extent the developers to have to go
15 back through this process. So conceptually I am okay with it. Also, it basically has a one-year
16 sunset in it. Well obviously it is going to be less than a year. So the time horizon is not huge. I
17 would not be surprised if we are back here a year from now talking about doing this again, just
18 for the record.
19
20 What I do have a little bit of trouble with are a couple of things. One is the durations. The five
21 years in total is a bit troublesome to me. I would rather see it broken up into smaller chunks and
22 maybe perhaps something along the lines of what Commissioner Keller was talking about.
23
24 The other areas are along the lines of what Commissioner Keller was talking about both with
25 respect to PCs and Site and Design. I would be in favor of carving those out in a nlanner that
26 Commissioner Keller had talked about. I am not sure that we want to get much more fine than
27 that in terms of carving things out. I am open to hearing a little bit more about that but at this
28 point those would be the two things I would be supportive of. So Commissioner Keller.
29
30 Commissioner Keller: Thank you. Let me make a comment or two first. First I have a quick
31 question of Staff as a follow up to the Chair's question. That is with respect to does it make
32 sense to think in terms of findings or sort of discretionary guidelines that nlight exist for why you
33 would extend it or would not extend it, and when you would include Green Building
34 requirements, or when you include code or Comprehensive Plan changes to incorporate those
35 into the requirements? Does it make sense to consider things like that?
36
37 Mr. Williams: So what did we say on the Green Building? Just that we may?
38
39 Ms. French: I think we were going to require it for automatic extensions.
40
41 Mr. Williams: Yes, all additional extensions shall be subject to compliance with Green Building
42 requirements. So that is a sort of mandatory thing. There aren't findings on that. As far as just
43 more criteria for when to do it, it could be that we could say something to the effect that we may
44 extend it unless it is determined that there are materially different circumstances that now apply
45 in terms of code provisions or something like that if we wanted to do that. I would just as soon
Page 13
1 just leave it open-ended and just deal with the time periods is more of the way to sort of
2 effectuate how it is done.
3
4 I was thinking for the PC and Site and Design thing another thing you might consider so we
5 don't get into this avenue of Development Agreements is you could say in here that for those for
6 the second extension or something like that so that they don't have to go to a Development
7 Agreement that an extension could be granted by the Council after review and recommendation
8 by the Commission or something like that. That way we don't have to go through a whole
9 Development Agreement process but the Commission and Council still get to review whether it
10 is appropriate to have that extension for that type ofproject. I think that would maybe be a
11 middle ground that would expedite the process but still allow the discretion that you were
12 looking for.
13
14 Ms. French: I was going to add to that maybe in the additional extension by the Director you
15 could just consider adding a phrase saying additional conditions may be added to address
16 changed circumstances.
17
18 Commissioner Keller: I appreciate that. I think that somebody else may want to make a
19 comment but let me just quickly indicate that sometin1es these ten1porary extensions can actually
20 cause problems. This happened in particular to the former Round Table Pizza that lost its Round
21 Table franchise and became Fandango Pizza in Alma Plaza because in order to keep their
22 franchise they have to have a ten-year lease. The owner of that property refused to give them a
23 ten-year lease and as a result of that they lost their Round Table franchise. In particular that
24 particular development which shall otherwise remain nameless actually caused a great deal of
25 vacancy in order to cause redevelopment and that can be problematic that I am concerned about.
26
27 Vice-Chair Tuma: Okay, I think we have a couple more quick comments before we get to the
28 motion. Commissioner Holman and then Commissioner Lippert.
29
30 Commissioner Holman: Yes, the way this has been described this evening it sounds like it is just
31 a letter that gets sent to an applicant but it is actually a public notification for an extension is it
32 not? It used to be.
33
34 This is one of the difficulties I have with a non-codified ordinance because it makes tracking and
35 public awareness a little bit more troubling. If my memory serves and I am pretty sure that
36 extensions did used to be a public process not that many years ago.
37
38 Do we have any way of knowing how many of these projects have, it is akin to Comn1issioner
39 Fineberg's question earlier, are already demolished and how many IR projects or how many
40 single family home proj ects it applies to?
41
42 Ms. French: I didn't do a big research project on the small projects, the non-major projects.
43
44 Commissioner Holman: This goes to changing conditions and changing rules, do we have any
45 idea how n1any of the projects, commercial or single family, how many involve exceptions?
46
Page 14
1 Ms. French: On the major list that was provided here?
2
3 Commissioner Holman: Anything, any of the projects.
4
5 Ms. French: These are the only ones that I have data on are the ones in front of you. I can go
6 through them.
7
8 Mr. Williams: Let's not. We would have to go through the whole list and look at that. I am sure
9 a few of them do but it would take awhile for us to look at each one and tell you that.
10
11 Commissioner Holman: The reason I asked the question is because again it has to do with
12 changing conditions.
13
14 Mr. Williams: I understand that. I think the intent here and if the Commission doesn't want to
15 do this let us know that and we will move it to the CounciL But the idea is like Mr. Lippert said,
16 there is an entitlement that has been granted and it is for economic reasons that we would move it
17 forward for maybe it is only a year not two years but without respect to trying to get back into
18 arguing the whole merits of the project again, and recognizing that yes there are some
19 exceptions, yes there are some projects that people would not like to see move forward, but if
20 you are looking at getting into that kind of discretionary review process again then there
21 shouldn't be an extension process at all.
22
23 Commissioner Holman: So my last question is we have a meeting next week and we have only
24 item on the agenda. I think this is a very important consideration. My sense is it is not going to
25 be a wholesale change if it is initiated. How would Staff feel if we continued this item until next
26 week so that we could further contemplate and ask other questions, especially given the hour?
27
28 Mr. Williams: That is the Commission's discretion. We don't have a problem with that if you
29 want to come back next week. We just have the Green Building Study Session on your agenda.
30
31 Commissioner Holman: So there is plenty of room. Thank you.
32
33 Vice-Chair Tuma: Commissioner Lippert.
34
35 Commissioner Lippert: With the late hour I would be inclined to continue it as well. But what I
36 would ask is that you keep the public comment period open.
37
38 Commissioner Holman: I would have made that motion but I think Commissioner Keller was
39 already set to make a motion.
40
41 Vice-Chair Tuma: So it won't come as a surprise to anybody that I am conceptually fine with
42 putting this over to next week to finish it but I don't want to do a rehash of all the things that we
43 have talked about tonight. It seems like we are very close to a motion. Let me explore an idea
44 here. Would it make sense to get a motion on the table at this point?
45
Page 15
1 Commissioner Lippert: No, it is a quarter after eleven now. We talked about having a time limit
2 on this. We have exceeded our time limit. I really think that at this point it is only fair to table it
3 and to continue the item until a date certain.
4
5 Vice-Chair Tuma: Okay, Commissioner Keller.
6
7 Commissioner Keller: I think that we have a member of the public who spoke to us tonight and
8 patiently waited through three other long items and we didn't get to this until after ten o'clock. I
9 believe that we are not that far away from actually concluding the item. If people want to
10 comment on the motion that I would make and decide that they don't want to do it or whatever, I
11 would like to make it, and then we can withdraw it if we wish to. I believe that considering that
12 the member of the public has been here listening through our other comments for roughly four,
13 other hours that ifhe can wait through comments of the Commission for four hours waiting for
14 us to make a decision that effects his livelihood then we can spend another five or ten minutes
15 dealing with the item ourselves.
16
17 Commissioner Lippert: Then if I might, that member of the public did sit patiently but he was
18 speaking on behalf of himself and another individual who was not able to be here this evening.
19
20 Vice-Chair Tuma: Commissioner Fineberg.
21
22 Commissioner Fineberg: I would be in favor of continuing this item until our next meeting not
23 because I am unwilling or not desiring to stay longer. We have suggested some revisions that
24 will dramatically change which projects this proposed ordinance would apply to and I would
25 love to see it as an opportunity for Staff to incorporate those changes so that they are part of the
26 proposed ordinance rather than hastily written amendments in a motion. That would give us a
27 chance and give the public a chance to review it, especially ifit meant that we keep the public
28 hearing open so there would be additional comment. I think the impact of this is potentially
29 significant and the fact that we have one member of the public here it is very important to him
30 but I think it is also very important to other members of the public about what this would mean
31 two, three and four years from now. I am not sure that the public fully understands that. So I
32 think continuing it for one week, maybe doing some outreach notification to PAN, developers,
33 other key members of the public that this would impact, whether they would consider it positive
34 or negative. I think that outweighs the expediency of taking care of it tonight.
35
36 Vice-Chair Tuma: Commissioner Keller.
37
38 Commissioner Keller: Hearing the sentiment of my fellow Commissioners I am going to suggest
39 the following two-step process. one is I am going to outline what my motion would have been,
40 which I suggest be a straw poll that the Staff if people sort of agree that is sort of a way to go
41 might be drafted by the Staff so that when they come back to us they could have this
42 incorporated into the motion as per Commissioner Fineberg's comments. Then after that straw
43 poll I would make a motion to continue it to a date certain being a week from tonight. Does that
44' sound reasonable to the Chair?
45
Page 16
1 Vice-Chair Tuma: I think that given that this is an ordinance. We are only going to see it once,
2 well sort of. It is not going to come back to us another time after it is drafted. I do think there is
3 some wisdonl in seeing -my sense is that this Commission wants to see a significantly different
4 ordinance than what it is there. So I think it may make sense to just spend a couple more
5 minutes, hear what is said, do a straw poll because that could give significant guidance so that
6 when we come next week we have an ordinance that is much closer to something that we would
7 potentially be comfortable with. Believe me, Commissioner Lippert I was bound and determined
8 to get out of here by eleven o'clock. It didn't happen but I do think this will make next week's
9 meeting on this topic much more productive. We will have something much closer to what we
10 might actually be willing to recommend approval on. So I think it is worth an extra two minutes
11 here. Go ahead.
12
13 Commissioner Keller: Here is what I would suggest that we can consider for straw poll. Firstly
14 that there be no automatic extension. That there be up to two discretionary one year extensions
15 which can be granted unless there are major changes, which is the comment or whatever wording
16 Staffhad before, or other general conditions that the Director may determine. So that these be
17 explicit conditions that people are aware of and they can get a list of the conditions. That in
18 order to get a discretionary one-year extension that the building has to satisfy the latest version of
19 the Green Building Ordinance. That code and Comprehensive Plan changes be incorporated at
20 the discretion of the Director. That it not apply to PCs or Site and Design Review items except
21 by either Development Agreement or upon recommendation of the Planning Commission and
22 Council approval. Finally, that there be no demolition before the Building Permit is issued. In
23 order to grant an extension they can't do a demolition unless the Chief Building Officer and
24 Planning Director approve and that is usually for things like unsafe conditions such as a fire in a
25 building that would be a hazard. Thank you.
26
27 Vice-Chair Tuma: A point of clarification, currently there is for certain of these there is an initial
28 -is there any automatic extension of these?
29
30 Ms. French: There is a one-year extension by Director for everything except Site and Design.
31
32 Vice-Chair Tuma: Okay. Are you proposing to eliminate that?
33
34 Conunissioner Keller: No, I am suggesting that this be beyond that automatic.
35
36 Vice-Chair Tuma: Okay, great.
37
38 Ms. French: So this is up to two one year extensions beyond the one year extension we have
39 now or?
40
41 Commissioner Keller: This is up to two additional one-year extensions beyond what is going on
42 now. One of the interesting things is I want to make sure that we don't have a rush to finish
43 before June 30, 2010 when suddenly if you get your approval on June 29, 2010 you get a whole
44 bunch of time to finish your stuff, and if you get your approval on July 2,2010 you are suddenly
45 foreshortened. So there are anomalies going on there. That is part of the reason for having it be
46 discretionary. Thank you.
Page 17
1 Vice-Chair Tuma: Commissioner Holman.
2
3 Comnlissioner Holnlan: A quick clarification for Staff to bring back is for Site and Design just
4 what is meant by a two-year extension unless associated with a Vesting Tentative Map. So if
5 you could come back with clarification of that. I think that would do it.
6
7 Vice-Chair Tuma: Okay, with that maybe by a show of hands, all those who would be
8 potentially supportive of an ordinance that has the contents that Commissioner Keller has
9 suggested indicate by raising their hand.
10
11 Commissioner Lippert: I am just going to go along with it. I will listen to it when it comes back.
12
13 Vice-Chair Tuma: Okay, very good. Commissioner Keller, do you have a motion to continue
14 this to a date certain?
15
16 MOTION
17
18 Commissioner Keller: Yes. I move to continue this to a date certain of one week from tonight.
19
20 SECOND
21
22 Vice-Chair Tuma: I will second that. Would you like to speak to your motion?
23
24 Commissioner Keller: I think there is enough said.
25
26 Vice-Chair Tuma: Okay. The only thing that I would say, ifpossible is let's do this item first
27 unless that presents a problem.
28
29 Commissioner Lippert: We can do that when we get the agenda.
30
31 Vice-Chair Tuma: Right, I am making that request.
32
33 Ms. French: The packet goes out tomorrow we can make it be what you want it to be.
34
35 Vice-Chair Tuma: Okay, let's make that one first. Commissioner Lippert do you have a
36 comment before we vote?
37
38 Commissioner Lippert: Yes, I had one other question for Staff. How does HRB review fit into
39 this approval?
40
41 Ms. French: Well, HRB is typically part of an ARB process that would recommend an addition
42 to the ARB to the Director for residential projects. There is input on modification to historic
43 residences, and these kinds of things.
44
45 Commissioner Lippert: So it would follow a parallel.
46
Page 18
1 Ms. French: There is no standalone HRB approval in other words. It is nlarried to one of these
2 other process.
3
4 Commissioner Lippert: Okay, that is what I wanted to make sure.
5
6 MOTION PASSED (5-0-2-0, Commissioners Garber and Rosati absent)
7
8 Vice-Chair Tuma: Okay, with that Commissioners, all those in favor of the motion say aye.
9 (ayes) Opposed? That passes unanimously.
Page 19
ATTACHMENT G: MAJOR PROJECTS THAT MAY NEED EXTENSIONS
Approved Major Projects Needing Building Permits (Bp)
Addresses
488 West Charleston
420 Cambridge
Expiration* Notes
4249 El Canlino Real (Elks Lodge)
3445 Alma (Alma Plaza PC/S&D)
1129 San Antonio (Google childcare)
2455 ECR (Coronet Motel)
3/30/10
5/5/10
2/12/10
1126/11
10/6/10
9/9/09
7/17/10
9/15/10
9/15/09
10/8/11
12/27/09
4/26/10
6/10/10
2/4/10
4/28/10
7/21/10
BP submittal expected·
1 yr extension available
BP close to issuance
no extension (Site & Design)
no extension (Site & Design)
BP close to issuance
777 Welch Road no extension available
3000 Alexis
278 University
850 Webster Planned Community
317 -323 University
no extension (Site & Design)
1 yr extension available
construction extension
no extension available
998 San Antonio
639 Homer
Lytton Plaza
2501 Embarcadero Way
3251 Hanover
1 yr extension available
1 yr extension available
1 yr extension available
no extension (Site & Design)
1 yr extension available
* Unless BP issued and construction commences
Pending Major Discretionary Review Projects
Addresses
1700 Embarcadero
385 Sherman
687 Cowper
265 Lytton
2995 Middlefield
801 Alma
4301 ECR (PA Bowl)
3800 Middlefield
2650 Birch PTOD
195 Page Mill Road
805 Los Trancos
350 Forest
2180 ECR
Notes Hearing Dates
Site and Design app submitted 7/29/09 not scheduled (PTC)
Formal ARB submitted 6/23/2009 10/15/09 tent. (ARB)
Prelim ARB held 6/18/09 formal app not in not scheduled (ARB)
First formal ARB 7/2/09; 2nd tentatively on 9/24/09 (ARB)
Prelim ARB held 7/16/09; formal app not in not scheduled (ARB)
Prelim ARB held 8/6/09; Formal scheduled 9/24/09 (ARB)
Site and Design, 2nd Formal ARB on 10/1/09 tent (ARB)
Mitchell Park; ARB Formal review on 9/3/09 (ARB)
Zoning hearing by Council postponed not scheduled (CC)
Formal app in, MND comments in not scheduled (ARB)
Site and Design Review not scheduled (PTC)
Filed July 2008, incomplete not scheduled (ARB)
Council initiated 7/13/09; PTC next not scheduled (PTC)
Page 1 of 1