HomeMy WebLinkAboutStaff Report 411-06City of Palo Alto
City Manager’s Report
TO:
FROM:
HONORABLE CITY COUNCIL
CITY MANAGER DEPARTMENT: PLANNING AND
COMMUNITY ENVIRONMENT
DATE:
SUBJECT:
NOVEMBER 20, 2006 CMR: 411:06
ADOPTION OF AN EXTENSION TO AN URGENCY ORDINANCE
AMENDING SECTION 18.10.070 "SECOND DWELLING UNITS" OF
THE PALO ALTO MUNICIPAL CODE TO PROHIBIT INDIVIDUAL
SALE OF SECOND UNITS IN THE RMD AND R-2 ZONING DISTRICTS
RECOMMENDATION
Staff recommends that the City Council adopt and extend the attached Interim Ordinance No.
4921 for a period of 22 months and 15 days (through October 15, 2008), prohibiting new
airspace condominiums for buildings within the RMD and R-2 zone districts.
BACKGROUND
On October 16, 2006, the City Council adopted Ordinance No. 4921, prohibiting new airspace
condominiums for buildings within the RMD and R-2 zone districts. The ordinance responded to
an approval of an application for airspace condominiums on a property zoned RMD at 610
California. An appeal for that project was heard by the Planning and Transportation Commission
on September 27, 2006, and will be heard by the Council on November 20, 2006. The
Commission recommended that the Council uphold the Director’s approval of the application.
The interim ordinance, however, exempts the 610 California project from its limitations.
DISCUSSION
The existing ordinance was adopted pursuant to Government Code Section 65858, which applies
for an initial 45-day period, and would expire on December 1, 2006. State law allows for an
interim ordinance adopted after a noticed heating to be extended for up to two years. Staff has
scheduled consideration of a permanent ordinance by the Planning and Transportation
Commission for December 13, 2006, and recommends extension of the interim ordinance for a
total of one year, through October 15, 2008, or upon adoption of the permanent ordinance prior
to that date.
CMR: xxx:06 Page 1 of 2
No changes are proposed to the Interim Ordinance. This action would only extend the ordinance
adopted by the Council on October 16, 2006.
RESOURCE IMPACTS
Staff will assess the economic and other resource impacts of the ordinance when a permanent
ordinance is proposed.
PREPARED BY:
CURTIS WILLIAMSChief Planning and~ ~Tran~p/grtati°
Environment
CITY MANAGER APPROVAL:
EMILY HARRIS ON
Assistant City Manager
ATTACHMENTS:
A.Ordinance No. 4921
B.October 16, 2006 City Manager’s Report
CMR: xxx:06 Page 2 of 2
ATTACHMENT A
NOT YET APPROVED
ORDINANCE NO.
ORDINANCE EXTENDING ORDINANCE NO.4921 OF THE
COUNCIL OF THE CITY OF PALO ALTO AMENDING SECTION
18.10.070 OF THE PALO ALTO MUNICIPAL CODE
PROHIBITING SECOND DWELLING UNITS UNDER DIFFERENT
OWNERSHIP FROM THE INITIAL DWELLING UNIT ON AN
INTERIM BASIS PURSUANT TO GOVERNMENT CODE
SECTION 65858 TO TAKE EFFECT IMMEDIATELY
The City Council of the City of Palo Alto does ORDAIN as
follows:
SECTION I. Findings. The Council finds and declares that:
A.Preservation of the visual and historic character of
existing single-family neighborhoods is of great cultural,
aesthetic, and economic importance to the City and all of its
residents.
B.On June 20, 1983, the City Council enacted Ordinance
No. 3447, establishing the RMD, (Two-Unit Multiple-Family Residence
District) allowing a second dwelling unit under the same ownership
as the initial dwelling unit on site in areas designated for
multiple-family use. The purpose of establishing the zone was to
minimize incentives to demolish existing single-family dwellings,
maintain neighborhood character, and increase the variety of
housing opportunities available within the community.
C..The City Council has recognized that the current
regulations of second dwelling units in the RMD and R-2 districts
(Palo Alto Municipal Code Section 18.10.070(a)) do not adequately
protect single-family structures and second units located on sites
within the Two Unit Multiple-Family Residential District from
potential subdivision and sale.
D.As written, Section 18.10.010(c) states that the
purpose of the Two Unit Multiple-Family Residential District is
intended to allow a second dwelling unit under the same ownership
as the initial dwelling unit on appropriate sites in areas
designated for multiple-family use by the Palo Alto Comprehensive
Plan. Section 18.10.070(a) does not adequately implement that
purpose.
E. If a new ordinance is not adopted on an urgency
basis to prohibit multiple ownership, there is a clear and imminent
061114 syn 0120189
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NOT YET APPROVED
danger that a property owner within a Two Unit Multiple-Family
Residential District could subdivide his or her parcel into two
distinct airspace parcels and sell the air and rights to the
separate parcels. This would be inconsistent with the intent of
Chapter 18.10.
F.Based on findings A through E, the Council finds
that there is a current and immediate threat to the public health,
safety or welfare if Ordinance No.is not adopted pursuant to
Government Code section 36937.
SECTION 2. Definitions. All terms in this ordinance shall
have the definition provided in Section 18.04.030 of the Palo Alto
Municipal Code unless expressly provided otherwise.
SECTION 3. Prohibition. Second dwelling units, and any
airspace rights thereto, under different ownership from the initial
dwelling unit, shall be prohibited in the R-2 and RMD districts.
SECTION 4. Exemption. This ordinance does not apply to
any application for the subdivision of airspace rights that has
been deemed complete as of the effective date of this ordinance.
SECTION 5. Initial Interim Ordinance. An interim ordinance
No. 4921 was passed on October 16, 2006 by a four-fifths vote after
a public hearing pursuant to Government Code Section 65858 and will
expire on December i, 2006.
SECTION 6. Effective Date and Applicability. This
ordinance was passed by a four-fifths vote after a public hearing
pursuant to Government Code Section 65858 and shall be effective
immediately upon adoption and shall cease to have force and effect
on October 15, 2008 unless rescinded upon adoption of a permanent
ordinance.
SECTION 7. The Council finds that this project is exempt
from the provisions of the Environmental Quality Act (~CEQA")
because it can be seen with certainty that there is no possibility
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061114 syn 0120189
NOT YET APPROVED
that this project will have a significant effect on
environment, and because this ordinance falls within the exce
to CEQA set forth in Section 15301 of the CEQA Guidelines.
INTRODUCED AND PASSED:
AYES:
NOES:
ABSTENTIONS:
ABSENT:
ATTEST:APPROVED:
the
3tion
City Clerk
APPROVED AS TO FORM:
Sr. Deputy City Attorney
Mayor
City Manager
Director of Planning and
Community Environment
061114 syn 0120189
ATTACHMENT B
City of Palo Alto
City Manager’s Report
7
TO:HONORABLE CITY COUNCIL
FROM:CITY MANAGER DEPARTMENT: PLANNING AND
COMMUNITY ENVIRONMENT
DATE:OCTOBER 16, 2006 CMR :389:06
SUBJECT:ADOPTION OF AN URGENCY ORDINANCE AMENDING SECTION
18.10.070 "SECOND DWELLING UNITS" OF THE PALO ALTO
MUNICIPAL CODE TO PROHIBIT INDIVIDUAL SALE OF SECOND
UNITS IN THE RMD AND R-2 ZONING DISTRICTS
RECOMMENDATION
The Planning and Transportation Commission (Commission) and staff recommend that the City
Council adopt an Ordinance (Attachment A) on an urgency basis, prohibiting new airspace
condominiums within existing buildings within the RMD and R-2 zone districts.
BACKGROUND
A recent approval of an application for airspace condominiums on a property zoned RMD at 610
California was appealed and heard by the Planning and Transportation Commission on
September 27, 2006. The Commission voted 5-2 to recommend that the Council uphold the
Director’s approval of the application. The Council will hear the appeal at its meeting on October
23, 2006. The project raised concerns that the approval would set precedent for other, similar
applications for airspace condominiums which would conflict with the intent of the RMD and R-
2 zone districts as well as Comprehensive Plan policies supporting the retention of rental housing
in Palo Alto.
Comprehensive Plan
The Comprehensive Plan Housing Element includes a section on Housing Conservation with the
stated goal (Goal H-2) of conservation and maintenance of Palo Alto’s existing housing stock
and residential neighborhoods. The applicable Housing Element programs, excerpted as
Attachment B, support the retention of rental units and the provision of a variety of housing
types in Palo Alto, by encouraging the retention and rehabilitation of multi-family rental and
smaller single family residences (Program H-26) and the continued restrictions on condominium
conversions (Programs H-27 and H-29).
CMR: 389:06 Page 1 of 3
Purpose and Requirements of R-2 and RMD Zones
Palo Alto Municipal Code (PAMC).Section 18.10.010 (b) indicates the purpose of the R-2 zone
is to allow a second dwelling unit under the same ownership as the initial dwelling unit on
appropriate sites in areas designated for single-family use by. the Palo Alto Comprehensive Plan,
under regulations that preserve the essential character of single-family use. Section 18.10.010
() indicates that the purpose of the RMD zone is to allow a second dwelling unit under the same
ownership °as the initial dwelling unit on appropriate sites in areas designated for multiple-family
use by the Palo Alto Comprehensive Plan, to minimize incentives to replace existing single-
family dwellings, maintain existing neighborhood character and increase the variety of housing
opportunities available within the community, with no more than 17 dwelling units per acre.
PAMC section 18.10.070 (a) states, "Second dwelling units are allowed on R-2 or RMD lots that
meet lot size requirements in Table 2 to accommodate two units on a lot. For R-2 zoned lots of
6,000 square feet or greater, but less than 7,500 square feet, a second dwelling unit of 450 square
feet or less is permitted, subject to all other regulations of the R-1 Chapter outlined in section
18.12.070." This wording does not include a prohibition against airspace condominiums.
Definitions
A second dwelling unit is defined in the Palo Alto Municipal Code (PAMC) section 18.04.030
(46.5) as "a separateand complete dwelling unit, other than and subordinate to the main dwelling
unit, whether a part of the same structure or detached, on the same residential lot." A lot is
defined in the PAMC section 18.04.030 (84) as "a parcel of land consisting of a single lot of
record, used or intended for use under the regulations of this title as one site for a use or group of
uses." PANIC Chapter 18.04 does not include a definition for airspace condominium, which is
the individual ownership of the space inside a structure on a site. Common ownership of the
actual structures, other site improvements, and the parcel of land (or lot) underneath the
structures and site improvements is governed by Convenants, Conditions and Restrictions
(CC&R’s).
DISCUSSION
The existing RMD and R-2 zone regulations do not adequately protect single family structures
and second dwelling units from potential subdivision and sale as airspace condominiums, which
could impact the stock of rental housing in Palo Alto.
The proposed Urgency Ordinance would prohibit the separate sale of airspace rights to second
units in the R-2 and RMD zones. Passage of the ordinance requires a four-fifths vote of the
Council. The Urgency Ordinance would be in effect for forty-five days, after which it can be
extended twice (for a total of up to two years). Council may adopt permanent restrictions or
regulations prohibiting or limiting the sale of airspace rights for second units in the RMD and R-
2 districts while the Urgency Ordinance is in effect. The Urgency Ordinance would be repealed
when permanent regulations are adopted.
If Council adopts this Urgency Ordinance, it is unclear what effect the potential passage of
Proposition 90 would have on the City’s ability to adopt permanent regulations. Proposition 90
may prohibit City action that imposes "limitations on the use of private airspace" without
compensation for economic damages caused by such limitations. However, the text of the
CMR: 389:06 Page 2 of 3
initiative measure also states that Proposition 90 "shall not apply to any statute, charter
provision, ordinance, resolution, law, rule or regulation in effect on the date of enactment..."
While staff believes that the continuation of the regulations adopted by this Urgency Ordinance
would be considered exempt from Proposition 90as a "regulation in effect on the date of
enactment," the vague language of the initiative measure makes it difficult to predict the impact
passage of Proposition 90 would have on the proposed Urgency Ordinance. I-t is clear that
passage of Proposition 90 may place significant limitations on the City’s ability restrict the sale
of airspace units in the RMD zone without compensation to property owners.
BOARD/COMMISSION REVIEW AND RECOMMENDATIONS
At its September 27, 2006 meeting, the Planning and Transportation Commission (Commission)
voted 7 - 0 to recommended approval of the draft Urgency Ordinance, with corrections
suggested by the City Attorney and exempting 610 California Avenue from the provisions of the
ordinance. After consideration of the draft ordinance, the Commission voted 5 - 2 to
recommend the Council uphold the Director’s decision approving a preliminary parcel map at
610 California Avenue creating air space condominiums, which had been. appealed by a
neighbor. The draft has been revised as noted in the attached ordinance (Attachment A).
Minutes of the Commission meeting are also attached (Attachment C).
RESOURCE IMPACTS
Staff will assess the economic and other resource impacts of the ordinance when a permanent
ordinance is proposed.
PREPARED BY:
Manager of Current~
DEPARTMENT HEAD REVIEW: ~~,~
/STE-*V~ E
Director
AMY 161~NCH
~ Planning and Community Environment
CITY MANAGER APPROVAL:
Assistant City Manager
ATTACHMENTS:
A.Urgency Ordinance
B.Applicable Comprehensive Plan Programs
C.Planning Commission Minutes of September 27, 2006
COURTESY COPIES:
Interested parties
CMR: 389:06 Page 3 of 3
Attachment B: Applicable Comprehensive Plan Programs
Program H-26: Enact development regulations that encourage retention and
rehabilitation of historic residential buildings, older multifamily rental buildings and
smaller single family residences.
Program H-27: Continue implementation of the Condominium Conversion Ordinance
Program H-29: Where a proposed subdivision or condominium would cause a loss of
rental housing, grant approval only if at least two of the following three circumstances
exist:
The project will produce at least a 100 percent increase in the number of units
currently on the site and will comply with the City’s Below Market Rate (BMR)
program (described in Program H-34 or 35); and/or
The number of rental units to be provided on the site is at least equal to the
number of existing rental units; and!or
No less than 25 percent of the units will comply with the City’s BMR program.
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Planning and Transportation Commission
Verbatim Minutes
September 27, 2006
DRAFT EXCERPT
Urgency Ordinance: Review and recommendation of an urgency ordinance amending
18.10.070 "Second Dwelling Units" to prohibit individual sale of second units in the
RMD and R-2 zoning districts.
Mr. Larkin: Before I turn it over to Curtis I just want to clarify the intent of the ordinance. It is
not to reflect a change in City policy but it is intended to bring the RMD regulations into
compliance with the stated purpose of the zone and with the Comprehensive Plan. Under the
code the RMD district is intended to allow a second dwelling unit under the same ownership of
the initial dwelling unit however this isn’t reflected as clearly it could be in the regulations
themselves. The purpose of this ordinance is to add clarity. In addition the ordinance would
have the effect of making our RMD zoning requirements consistent with the state law regarding
second units.
I also wanted to add this is being brought as an Urgency Ordinance. The role of the Commission
is to make recommendations on policy matters. The Commission can certainly vote on or make
recommendations regarding the urgency of this ordinance but it is not required that it be a two-
thirds vote of the Commission to forward this on to Council. It goes to Council either way with
the recommendation either majority for or majority against. I would add that one area of
urgency that we have talked about but it is not reflected in the Urgency findings or the proposed
Urgency findings is Proposition 90 and an abundance of caution. We are proceeding as though
Proposition 90 will become law on November 8 and the passage of that initiative could preclude
the City from adopting a prohibition on the subdivision and sale of second units. However,
Proposition 90 doesn’t apply to regulations already in effect; which would be the case if the
Council adopts this as an Urgency Ordinance.
The StaffReport outlines some of the issues and I am going to let Curtis elaborate on those.
Mr. C. Williams: Thank you, Don. As Don mentioned we believe this is an important step to
take because we are concerned that the inconsistency that exists riglit now in terms of the
ordinance language could allow for rental units to be converted to ownership units in the RMD
and to a lesser extent probably the R-2, but particularly the RMD. The purpose there is to try to
on one property allow the option for a property owner retain a second unit to help make it more
viable to keep the existing unit and there a neighborhood preservation overlay that applies on all
of the RMD area that is oriented in that direction as well. We have a number of Housing
Element policies that relate to preserving rental units in the community and that is part of what
this does. We also as Staff have concern about the precedent if this were to happen of having a
lot of separate ownerships of two residential units with common areas around them that
historically have created headaches for neighbors and Staff in terms of code enforcement and
trying to sort of officiate the disputes over who maintains the driveway and who maintains the
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landscaping and these kind of things. We do not want to get into the business of somehow
requiring maintenance agreements and reviewing maintenance agreements for what are
essentially two neighbors. We have concerns that you start to get more driveways with more
ownership units than if it is a rental where you probably are more likely to have a common
driveway that serves both properties, not necessarily but generally that is the case. They would
need separate utilities and a lot. of things that end up being more disturbance on the site than if
we had a unit and a rental and one owner who owns both the units as well as the parcel. So for
all for all of those reasons we think the intent was and is for RMD and R-2 to allow these second
units as rentals but apparently it is not crystal clear at least in the RMD section that that’s what
we have now as a requirement despite what the general purpose statement says. So we think this
is an order to adopt this regulation on an urgency basis.
Don didn’t explain about what the interim nature fs of the ordinance and he can correct me ifI
misstate this. This is what is called an interim ordinance under state law. It is effective 45 days
from when the Council adopts it. We may then extend that 45 days for an additional year and
then there is a second extension possible beyond that which we shouldn’t even think about but
we can extent it basically as a Consent Calendar item for the Council. In the interim we need to
come back to you with a permanent ordinance. So the Urgency Ordinance will set essentially the
language you see here in place. You will see that it doesn’t reference or go into a specific code
section. Right now this just says this ordinance has this language which amounts to about two
sentences and then we will come back to you with the appropriate amendment like with our
commercial zones here that says, ’revise section such-and-such in the code to read,’ and we can~
have more of a discussion at that point of if there are some exceptions to this that you would like
to consider for historic properties or for some other purpose. That could be part of that
discussion but at this point this essentially puts the breaks on things so that we can study it a bit
more and come back to you which I would anticipate us doing as quickly as we can which most
likely will be in about six weeks. I’ll be glad to answer any questions.
Chair Holman: Are there any clarifying questions of Staff at this time? Commissioner Tuma.
Commissioner Tuma: I have a question. If this is an interim ordinance or has an interim
duration to it what is the effect, let’s say Prop 90 passes and this is for an interim period and then
eventually as it was explained we would then come back and extend it. So the first question is
can we extend it if Prop 90 passes? Then the second question would be you said you could come
back for potentially a permanent revision can that also be done if Prop 90 were to pass?
Mr. Larkin: It is hard to answer that question confidently because Prop 90 is not the most clearly
written initiative however, the language of Prop 90 says it doesn’t apply to restrictions on
property that are already in effect. Just simply extending restrictions that are in effect are at least
we have a pretty good argument that that would not be impacted by Prop 90.
Commissioner Tuma: So that goes to extending ones that are already in effect but as I
understood from Curtis we would then also come back and discuss whether a permanent one
would be put into effect. Would that de facto be an extension? Is that the position that you
would take legally?
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Mr. Larkin: Exactly, an extension of the restrictions that were in effect on the date of the
passage of Prop 90. So making them permanent, or extending them for a year or conceivably
extending them permanently would be the same analysis.
Chair Holman: Commissioner Keller, I believe you had a question.
Commissioner Keller: It has already been asked.
Chair He lman: Commissioner Sandas, you have a question?
Commissioner Sandas: Thank you, yes actually I do. Maybe I am asking this question out of
sequence so ifI am let me know. In light of the positioning of this ordinance in our packet and
that we needed to discuss this prior to discussing item three on the agenda, I am just wondering
what the legality is of that. I don’t mean to imply illegality but just what is the reasoning for our
doing it in this manner.
Mr. Larkin: I know the applicant’s attorney is going to be speaking and you have received his
letter. I would only point out that to the extent that he is relying Government Code Section
66474.2A that section wouldn’t be applicable to this application. First of all this is not a
Tentative Map this is a Parcel Map and if the legislature wanted to talk about Parcel Maps they
wouldn’t have said Tentative Map. Second, even with regard to Tentative Maps I am not aware
of any case that interprets that code section the same way as the applicant. The statute basically
codifies the vest rights doctrine that we have talked about before. Herethe applicant doesn’t
have a vest right, we are not imposing new conditions, and we are saying that it is a clarification
of our existing policy not to subdivide RMD lots. I agree with the applicant that as written it is
not as clear as it should be with regard to that policy.
Mr. C. Williams: IfI could also add that item number three is on appeal to you. It is not an
approved project until it is through the appeal process and is approved ultimately the Council in
this case.
Commissioner Sandas: Thanks Curtis, that was going to be my next question.
Chair Holman: Commissioner Garber.
Commissioner Garber: Could you please review the concept of air rights relative to the concept
of condominiums here? Excuse me not air rights, air space.
Mr. Larkin: I am not sure I understand the question. Maybe you could clarify it or I could take a
stab.
Commissioner Sandas: I will clarify it. What exactly is an air space condominium?
Mr. Larkin: It is what most of us know as a condominium where you have ownership of the air
space within the building. You don’t own the property, the ground. You own the air space
above the ground.
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Chair Holman: Commissioner Burt.
Commissioner Burt: Don, you clarified that this isnot a Tentative Map but rather a Parcel Map
but then Curtis alluded to completion of the approval process and I see that the applicant talks
about whether the application is complete. Now maybe that is a mute point if that Government
Code does not apply but could you comment on the difference between the approval process
being complete versus the application being complete.
Mr. C. Williams: Yes. The application being complete simply means that we have all the
materials that we need to process the request. It doesn’t imply that the project meets our codes
or anything it just means that we can proceed to agendize it, do our Staff work, etc. and that we
-are not asking the applicant for more information. The approval process is when we get through
and have in this case Council’s stamp over the Parcel Map and can then basically take that to the
Recorder’s Office and record the map.
Chair Holman: Commissioner Lippert.
Vice-Chair Lippert: I don’t understand why this would be a headache for the City. Wouldn’t it
be similar to say the owner of the property, not the air space, would maintain the property and
then have the person who is the owner of the air space have encroachment rights on that property
to get to their air space. Would that not be the case?
Mr. C. Williams: Well, we would hope that would generally be the case but if the owner of the
other unit is not thinking things are kept up and he complains that owner of the property and then
we end up in the middle of that it tells us that something - if he is not able to use the driveway
the way he was promised he would be able to use it before. I don’t anticipate that would happen
on every project, it may not happen on this one, that is before you on number three but it is
problematic and it is not where, we want to go with all of our R-2 and RMD lots.
Vice-Chair Lippert: Doesn’t that occur though with where you have encroachment rights on
another property where the owner of the one property they need to encroach over doesn’t
maintain say the driveway there?
Mr. C. Williams: When we have those kinds of things come through new today we generally
have easements and maintenance agreements that specify who does what. So that is where again
we are not looking to go there with all of these small parcels and that is usually something of
more size than what we are talking about.
Chair Holman: IfI could I just want to make sure that we are asking only clarifying questions
rightnow before we go to the public. So if they are clarifying questions I am happy to recognize
them but we need to get to the public too. Commissioner Lippert.
’ Vice-Chair Lippert: Then one last question. What happens in terms of if sometime down the
road they want to demolish the building, what happens to that air space right? Does it still exist
or does that evaporate with the demolition of the building?
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Mr. Larkin: That would likely be spelled out in the agreement between the various property
owners that have fights to the property.
Chair Holman: Commissioner Keller, did you have a clarifying question?
Commissioner Keller: Well, I am not sure whether it is but let me ask and if it is not we can
defer it until later. Do we have any other RMD or R-2 properties that have been converted to
condos? Has this ever been done before?
Mr. C. Williams: Not that we are aware of and we do know that there are folks out there that are
interested in doing that.
Commissioner Keller: The second question is I am a little confused. My understanding is when
you have a condo arrangement that the entire property is owned by a condo association, which is
owned by the people who have the condos. I am confused because I think that what might be
being proposed under number three is not that but that one entity owns the property and two
other entities own the two air fights condominiums. Is that what is going on or am I confused?
Mr. Steven Turner, Senior Planner: We don’t know if that is the case with this particular
property owner. They are simply seeking air space rights on the property. They are not required
to show the City how they would be owned.
Chair Holman: Commissioner Burt.
Commissioner Burt: Because items two and three are so linked I want to ask a clarifying
question on how we potentially and not necessarily might deal with these as two separate issues.
My understanding is that Staff is concerned that we clarify the City policy and that we are
confident that the intent of the policy is as Staff has stated. Given that our overriding concern is
that we not have a future trend of these kinds of conversions. Would we necessarily have to do
both of these recommended items as Staff has suggested? If we thought that Staff correct in
principle and it would clarify this going forward and do so before the potential Prop 90 are we
then left with the smaller issue of whether or not to allow this request on this particular property
under item number three and might be able to judge it even if we might deem that they are wrong
in principle that we would consider it based upon the lack of clarity whether to allow it
essentially as an exception and not create the circumstance of a precedent?
Mr. Larkin: You could do that.-
Chair Holman: Commissioner Sandas.
Commissioner Sandas: One more clarify~ng question. So the issue with 610 California Avenue
is coming back to us on October 25 come hell or high water?
Mr. Larkin: Not unless you are ready to make a recommendation tonight.
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Commissioner Sandas: Okay.
Chair Holman: I have one, maybe two questions. All of the RMD property in Palo Alto is it
RMD(NP)?
Mr. C. Williams: Yes it is.
Chair Holman: Okay. I will leave it there for now. So if there are no other clarifying questions
I have four cards from members of the public. My understanding is from prior conversation that
Mr. Hanna who is a representative for the owner of 610 California Avenue would like a little
additional time to speak to this item is that accurate or is this only for item three? For this item.
Normally .you would be allowed five minutes. I think what is fair here and if the Commission
would agree to this because this item is so linked to item number three that if we grant Mr.
Hanna extra time then we should also grant the appellant additional time as well. So I am going
to suggest just kind of arbitrarily seven minutes to both the appellant and the applicant for item
number three to speak to item number two. Then the other members of the public will be given
their five minutes is that agreeable to the Commission? Okay. Mr. Hanna you have seven
minutes.
Mr. John Hanna, Palo Alto: Mr. Brian Wilson who is the applicant under item number three
would like the opportunity to address you on item number two and after his remarks I will have
something brief to say if that is all right, Madam Chairman.
Chair Holman: You can use your seven minutes however you would like.
Mr. Hanna: Thank you.
Mr. Brian Wilson, Flagstaff, AZ: I wanted to answer a question from Commissioner Keller
about the traditional condominium where the association owns the property and then the two unit
owners own a share in that association and that is what we intend to have here. The attorney has
been working on the CC&Rs and that is what the CC&Rs will represent.
What I wanted to talk today about is the Urgency Ordinance tonight. The first point that I
wanted to make is that it is clearly appropriate for the City to have the right to amend the code
and there is a well-defined process to do that. What we have tonight though is an Urgency
Ordinance, which is something that has a substantial requirement to justify its use. The goal is
stated to preserve the visual and historic character of single-family neighborhoods but then it also
says that converting a condo conversion in the RMD zone would jeopardize those
neighborhoods. But if the conversion is for existing units basically there is no Visual or historical
change in the property.
Another point I would like to make is that also the RMD already does have condos and it is also
zoned areas that are not really near single-family neighborhoods. There are three pockets of
RMD. Two that are west of Downtown are almost 100 percent surrounded by commercial and
multi-family zones. In the north part of College Terrace the entire east side is solid commercial,
the west side is Stanford and the north is commercial and multi-family. Going south it does
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transition into R-1 around Williams but it is not a clean transition zone. Even on the south side
of Williams half of the R-1 lots there have multiple units. Even as you travel further south below
Williams there are still many R-1 lots that have multiple units.
How does this ordinance really protect the visual character of the neighborhood? If you have an
RMD lot that is near or next to an R,1 this ordinance still allows you to build a second home but
it says it has no impact on the visual character of the neighborhood. I would say though at some
point in time the light bulb is going to go off and people in that area are going to notice that there
is a new 30-foot tall two story home on the street. But conversely if there is a small two unit
complex that has been unchanged for decades and it converts to a condominium, and that is
something that some neighbors may not ever even know, this ordinance says that that’s a danger.
I do agree that it says the most significant purpose of this ordinance was to increase the variety of
the housing opportunities but condo conversions according to the code actually do achieve that
result. Ifwechange the code which means removing that option of ownership, that condo option
of ownership, what it does is force people to end up buying two homes which means there isa
higher price and there is less variety in the housing opportunities.
The ordinance also talks about dangerous activities and those are anything that jeopardized
health, safety and welfare. Well, the Municipal Code has an entire dedicated section that talks
about dangerous activities like possession or discharging firearms or drinking in public, smoking
in public. There are 25 activities that are identified and codified and not one of them come everi
close to talking about condo conversion.
It says there is a clear and imminent danger the owner may subdivide. I would like to point out
that a likely event isn’t necessarily dangerous. When I finish here I am going to clearly and
imminently go back and sit down and clear and imminent sitting is not dangerous and clear and
imminent splitting is not dangerous unless there is some justification and that justification is not
in this ordinance.
I would like to show you some current RMD properties. These are in the three pockets of zones
we have here. This ordinance basically rates these properties whether it impacts the visual or
historic neighborhood at all. What do you think those ratings are? According to the ordinance
there is one safe property and there are two dangerous properties because they are condos in
RMD.
Here is another RMD property. You can see the side there that the backyard is in the back. Here
is the fagade on the street and something that is designed to basically not alter the visual or
historic character of the marketplace. This one is rated safe. It is not clear what the justification
is behind that.
I would like to show you three other properties. Here is one on the northern-most part of the
RMD zone in College Terrace. This is a property also with the second unit and you can see the
sign down there pointing to the second unit. Here is another property over on the west side of
College Terrace. Here is another property on the east side of College Terrace all on Yale.
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How would you rate those basically reading the ordinance? The way that it comes out is that this
property is safe, here is another safe property that is viewed to protect the visual and historic
character of the single family neighborhood but this property is called an immediate threat to the
public health, safety and welfare of Palo Alto.
Chair Holman: Mr. Wilson you are down to about ten seconds.
Mr. Wilson: Okay. I think that what we are basically saying is there is no visual change in this
ordinance by converting existing units. If you converted existing units there is no historical
change and we would like to ask you to find that there is not sufficient justification in this
ordinance to consider it. Thank you.
Mr. Larkin: I just want to jump in because I think there might be some confusion because we
kind of deviated by allowing the extra time. Mr. Hanna still has a right to address the
Commission for the five minutes because he is a separate individual. Even though the applicant
used the seven minutes he still has his remaining time.
Chair Holman: Just as a matter of order would we not hear from Ms. Graves next?
Mr. Larkin: You can take the public comment in whichever order you wanted. I just wanted to
make it clear that Mr. Hanna still has an opportunity to speak.
Mr. C. Williams: What is before you on item two is not the appeal in terms of the appellant.
Chair Holman: I understand. I am just trying to keep some order in terms of the amount of time
allowed that’s all. I guess it doesn’t matter and Ms. Graves says it doesn’t matter either. So
okay, Mr. Hanna you have five minutes.
Mr. Hanna: Thank you: I’ve stated my name and address for the record. Thank you Mr. Larkin
for that clarification. Of course we disagree with the earlier comment that Tentative Maps are
different from Parcel Maps. Your ordinance defines the Parcel Map using almost exactly the
same language as the State Map Act. We contend they are the same. They are governed by the
same rules and if you had the time to read our brief you will understand why we take the position
that we do that the map has already been deemed approved as a matter of law. We hope not to
have to go there. There has been an awful lot of trouble gone to here for the seeming purpose of
torpedoing one little tiny two-unit project.
We have done literally dozens, probably somewhere between 50 and 100, two and three unit
condominiums all around Menlo Park, Mountain View, whatever. They are not a problem.
There is zero evidence despite what Curtis Williams says that these can be problems. To the
contrary they are much less likely to be problematic than rental units. Why? For two reasons,
you have pride of ownership. Secondly you have CC&Rs that require people to keep their
properties up. The truth of the matter is that they do. Condos are better maintained than rental
projects by and large. You go to a lender, there are lenders that won’t loan money on projects
that have too many non-owner-occupied projects for a very good reason. They understand
ownership means better control, better upkeep, you have an additional layer of protection with
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CC&Rs that would be put on this project. There is really no difference, I defy you to tell me the
difference between someone who owns a lot with two dwellings on it versus two people own the
lot and each occupies, one of the two dwellings. What is the threat, if you will, to .the public
health, safety and peace and welfare in having somebody sell one of his two units to another
owner as a condominium? It just isn’t there.
The problem that you have here is you are dealing with an Urgency Ordinance which you are
only permitted to do this, and by the way it is the Council has to do this by the four-fifths vote,.
but there has to be a showing of a clear, present, imminent threat to and the words are very
specific health, safety, in the case of Palo Alto it is peace, in the case of the state it is welfare.
There is no showing of that. There are some conclusive statements that there is a threat. Well,
the threat here is that you are going to get so caught up in this that we are all going wind up
somewhere where we don’t want to be. The suggestion was made earlier, which I think is a good
one, that if you want to take the time to study this fine, do so but give the public a chance to be
here, come back at a later meeting when you can do that or bump it up to the Council. If the
Council thinks there is a problem let them by majority vote direct and ordinance be drafted. If
they want to vote it by four-fifths vote fine but don’t try to hang up this man’s little two-unit
project on account of that. It doesn’t make any sense at all and there isn’t any legal justification
for the findings that you would have to have to support the adoption or even the recommendation
of an Urgency Ordinance. Thank you.
Chair Holman: Thank you. The next speaker will be Pria Graves and you will have seven
minutes to be followed by Bob Moss.
Ms. Pria Graves, Palo Alto: Good evening Chair Holman and members of the Commission. I
have been a resident in the RMD(NP) zone for 21 years. Contrary to what the pervious speaker
said there are many single family dwellings still left on Yale Street. Most of the buildings at
Wellesley are in fact multiple unit dwellings but Yale Street still a lot of its single family
residences including my own.
I am going to restrict my remarks other than that one to purely the Urgency Ordinance and leave
610 California as a specific out of this. This process of turning small parcels into condominiums
does pose a really serious threat to our already rather meager stock of rental housing in this
community and particularly in College Terrace. College Terrace is one of the areas of Palo Alto
that has more rental housing than most of the city and it is largely because of these odd little bits
and pieces where we have multiple units on small lots. If they start becoming units for sale it
will price out of the community a lot of the people that can only afford rentals. I think that that’s
counter to the intent of our Comprehensive Plan even if the H-29 provision does not specifically
apply to small changes like this. The intent of the Comp Plan is clear that we need to foster
rental properties and I think moving in this direction ..of allowing condominiumization of two and
three unit parcels is really counterproductive .to that.
Finally, I would like to speak a little bit to the original intent of the RMD zoning. I spoke with
Gail Wooley who was the Council Member who proposed this when it was first brought forth in
the 1970s. She was very clear that their intent was that these should be subdivided into
condominiums. The intent was that the second dwelling would essentially be a rental unit to
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compensate the owner for retaining the existing house. That was the intent. I think it is clearly
reflected in the language of the code as far as the intent of what that zone means. I think that as
Council has pointed out we need to clarify other aspects of the code to make it clear that that is
the intent but I don’t think a reasonable person reading the intent of the code as it is today would
make any mistake about that. So I ask you to support this Urgency Ordinance particularly in
light of the threat of Proposition 90 making impossible for this to be enacted in any other way
and go ahead and recommend to Council that they pass this Urgency Ordinance. Thank you so
much.
Chair Holman: Thank you. Bob Moss. You have five minutes.
Mr. Robert Moss, Palo Alto: Thank you Chairman Holman. As you may know I was intimately
involved with the creation of the RMD zone more than 25 years ago. What Pria said about the
intent of the zone is absolutely correct. City Council explicitly, clearly, [fondly] stated we want
one owner of two units the second unit is to be a rental, It is not to be sold or subdivided. End of
discussion.
When the lawyers tell you that there is no reason to worry about this the lawyers are full of it.
The City Council has stated repeatedly that they want to encourage rental housing. College
Terrace is not the only neighborhood in Palo Alto that has RMD zones and has sec.gnd units.
Barron Park has a number of them and so does South Palo Alto. When a person in Barron Park
about 15 or 20 years ago wanted to explicitly to divide a property that had a granny unit on it he"
was crashed by the Barron Park Association and by the City Council. Crushed. You may recall
several years ago the City Council attempted to increase the presence of granny units in the city.
Residents basically rioted and the City Council withdrew the attempt to increase the number and
the conditions under which granny units could be allowed. The reason is that excessive granny
units and especially two owners of one unit create major problems with enforcement of both the
codes and what operates on that unit. Not every one of them is out of line but enough of them
are that the City can’t control them. When you hear about other cities like Menlo Park and other
places having condos and granny units the reason that Palo Alto doesn’t allow it is because of all
the problems we’ve seen in our neighboring cities with this type of use. The ordinance is
explicitly clear to allow a second dwelling unit under the same ownership as the initial dwelling
unit. If you create an air right that is wonderful as long as that air right is not a dwelling unit
because only one person can own both dwelling units. The ordinance is very clear.
Now let’s talk about why it is an urgency. The City Council has explicitly stated on at least two
occasions that because of the possibility of Proposition 90 being passed they want all zoning
issues resolved before early November. They want them handled if necessary on an emergency
basis. The City Council has stated that explicitly and if the lawyers had bothered reading the
City Council minutes they would know that. So that is your justification .for taking action
tonight and for enacting this emergency ordinance. I will say that when this application was first
given to the City the City Staff’s proper approach should have been to reject it. The error was in
the City even taking its possibility seriously. The ordinance is clear. If it is an RMD and there
are two units there is only one owner. Only one property owner. Only one owner of the
buildings. Not two. Not subdivided. You want to retain the rental units. So I would suggest
without any further delay pass the emergency ordinance since they seem to feel we need more
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clarification. As far as I am concerned when it says only one owner that means one owner forget
anything else. That is all we need.
Chair Holman: Thank you and I have one more card from Joy Ogawa.
Ms. Joy Ogawa, Palo Alto: I learned about this about 20 minutes ago when I switched the
channel on my TV to see what was happening with Planning Commission. I was really surprised
at this. I kind of figured out what is going on. I was listening to Curtis’ presentation, which was
very clear so I think I understand what is going on here.
I have to say thank you to Staff for bringing forward this Urgency Ordinance. It is a surprise but .
thank you.
I will defer to Pria and Bob as to - to me the way the ordinance reads is pretty clear. I actually
think the owner of this property in the next item was aware of the intention of the ordinance as
well becguse I remember when he wanted to build that second unit which is bigger than his
original house, the historic house, that two story new unit. He spoke in front of the ARB he
represented it as I have every intention of coming back to live in this historic house that I
restored and retire here and this new second unit is going to be income for me when I live in that
historic house and I can get income from the second unit. So I think the intention of the
ordinance is pretty clear and I think that representation was made to encourage that this is what I
plan to do with it which is in keeping with the intention of the ordinance. He got a neighborhood
preservation exception that was pretty exceptional. There was reduced parking, and well, I’ll
talk about that in the next item.
The other thing is I did not receive any notice about the next item and I was really surprised
because I spoke at the Director’s Hearing and I live within 300 feet. So to have to find out about
it by turning the channel was pretty surprising although the traffic is pretty low at this time of
night.
So I guess I am speaking in support of this Urgency Ordinance. I hope you go, forward with it.
Thank you.
Chair Holman: Thank you. Thank you to the speakers and we will return to the Commission.
Are there any more questions of Staff by the Commissioners? Commissioner Burt.
Commissioner Burt: Don, could you just clarify something that you alluded to earlier that the
potential adoption by the voters of Prop 90 in itself is an adequate basis to justify an emergency
ordinance to correct a lack of clarification that we have between intent and existing ordinance
verbiage?
Mr. Larkin: I don’t know that that would be in and of itself enough. I would leave that to
Council to make that determination and if it justifies the four-fifths vote but it is a factor.
Just to respond to something that was brought up and I encourage the Commission to look at this
on the merits and make a decision on the merits because one of the things that was mentioned
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was a couple things actually but one there was a lot of talk about health, safety and welfare and
how can you find a threat to health safety and welfare? Health, safety and welfare define the
police power. The police power is what gives us the authority to do just about everything that
the Commission does. So unless there is a threat to health, safety and welfare that is what gives
us zoning, that is what gives us all of our police power. So you can make the decision on the
merits but when it comes to legal analysis I think that is something that should be left to lawyers.
Then the other thing I wanted to mention was there was a mention of the Permit Streamlining
Act and the application was already deemed approved. In order to invoke the Permit
Streamlining Act the applicant must first invoke the Act either in the application in a subsequent
filing with the City. Four o’clock this afternoon is not sufficient notice to invoke the Permit
Streamlining Act and have the project deemed approved. Likewise notice has to be mailed to the
neighbors that the Permit Streamlining Act has been invoked. Typically it is up to the City to
provide that notice but if the City fails to do so in order for a project to be deemed approved the
applicant would need to notice the neighbors that the applicant intends to use the Permit
Streamlining Act if the City fails to do so. As far as I know that notice hasn’t been sent out
either. So I am not advocating a positionon the ordinance I am encouraging you to look at it on
its merits and not look at some of the extraneous items that have been brought up.
Commissioner Butt: Don, I am still not clear on the question that I was attempting to ask. That
is, from a legal standpoint would it be permissible to have as one of the reasons for adopting the
emergency ordinance the potential imminent passage of Prop 90?
Mr. Larkin: I think, and we are still looking at this, but my initial impression is that that can
certainly be one of the factors that go into the passage of an Urgency Ordinance.
Chair Holman: Commissioner Lippert.
Vice-Chair Lippert: In terms of the schedule originally you had mentioned that Council would
move on this and then 45 days after that this ordinance would go into effect...I’m sorry, it would
go into effect when7
Mr. C. Williams: The ordinance is in effect immediately upon a Council approval. What we are
saying is that it is only effective for 45 days and then it has to either have a permanent ordinance
replace it or it could be extended for up to a year. Council can extend it as a Consent item on
their agenda which would likely happen because it is unlikely that we would get a pertnanent
ordinance before you and before the Council with all the notice that is required, etc., etc. within
45 days. So it is likely that it would be extended as a Consent item. So this ordinance would
remain in effect until such time as we brought that.
Vice-Chair Lippert: The reason I ask that question is I find the idea of smaller ownership of
houses very appealing. It actually allows first time homeowners to get into the market relatively
easily and then maybe move on. This idea has very intriguing I think implications with regard to
that. Right now we limit second dwellings to about 800 square feet. This allows for those
second units to be a little bit larger in terms of the air space plus it allows for ownership of those.
So what I am looking at as the bigger picture here of well, okay this is an emergency ordinance
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maybe I can live with it but maybe there is something here that we can look at in the bigger
picture but I don’t want it to just sit and sort of bubble for two or three years. So how do we get
something like that so that we can begin to look at how to resolve some of these issues?
Mr. C. Williams: Well, I think we have one case sitting there certainly that is dependenton how
this all turns out in the permanent ordinance. So there is a lot of pressure on us to move quickly
to do that. Also as far as Prop 90 goes and everything you should not be languishing in pursuing
any of these remedies. So I can’t tell you exactly when it will be but that this will be a high
priority for us to come with. It is not a lot of research and it is not a long ordinance. We are
looking at something pretty short to come back to you with on a permanent basis. Again,
probably six weeks or so.
Chair Holman: Commissioner Tuma.
Commissioner Tuma: Don, is there any other mechanism other than the Urgency Ordinance for
getting something in place prior to the election that would allow us to continue to examine this
issue and get around the issue the potential handcuffs that Prop 90 would put on us other than the
Urgency Ordinance? Is there some other way to do this? I have to tell you it fundamentally just
doesn’t sit well with me. I can’t put my finger on it but it seems like there was an issue that was
brought up with respect to this particular property we are now trying to find justifications to wrap
around this and it just doesn’t sit well. That is just a feeling that I have.
Mr. Larkin: Well, tobe honest it was this application that raised the issue. It is not the one -
property that creates the urgency. So conceivably as Pat asked if the concern is this property
owner and how his application isproceeding you can recommend Council not apply this to
current applications and take 45 day or conceivably a.year but not that long to think about how
we want to deal with it long term. But there is no other mechanism to get a restriction on the
books prior to November 7.
Chair Holman: Commissioner Keller.
Commissioner Keller: I am trying to understand the existing ordinance that this is intended to in
some sense fix. My understanding is it says to allow a second dwelling unit under the same
ownership as the initial dwelling unit. So what I would like to know is what is the definition of a
dwelling unit and how is the definition of a dwelling unit affected in a condo association?
Mr. Turner: A dwelling unit essentially is a housing unit tl~at has a kitchen. We look at the
number of kitchens say in a single family residential home in the R-1 district. That unit would
only be allowed to have one kitchen. You couldn’t have a kitchen say in the basement and a
kitchen on the first level. We would see that as basically two units.
Commissioner Keller: The reason I am asking is because my parents live in a condo in Palo Alto
actually at the corner of Middlefield and Charleston in that complex. I had the impression,
correct me if I am wrong, but my parents living in a condo sort own their dwelling unit. Is that
sense wrong?
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Mr. Larkin: I think the question is offa tiny little bit because what we are talking about is a
s’econd dwelling unit, which is defined differently in our code. Second dwelling unit is defined
as a separate and complete dwelling unit other than and subordinate to the main dwelling unit
whether part of the same structure or detached on the same residential lot. So it would be a unit
on the same lot. The issue with the regard to specifically the RMD is that the inconsistency is
that the RMD is not a single-family zone it is a multiple family zone. So it allows up to 17 units
per acre so that is where we run into the inconsistency between whether something is a second
unit or whether this is truly a second unit at all or whether it is actually something different. That
is why we really feel the need to clarify this !n order to give fair notice to other applicants that
come in.
Commissioner Keller: I understand that there is some desire to clarify the wording. What I am
trying to understand you have a second dwelling unit which can be built on certain properties and
you have an original dwelling unit which you will have on that property and what I am trying to
understand is does creating air rights or air space condominium which is essentially giving
ownership of a dwelling unit to one or possibly two different owners what are they owning? Are
they owning a dwelling unit? How does that fit? I am trying to understand. Is there a
correspondence between the air space and the dwelling units or not?
Mr. Larkin: The structures themselves are owned by a single owner that is the association.
Chai{ Holman: Commissioner Garber.
Commissioner Garber: I have several questions. First, germane to the issue of why - has the
Council’s intent to drive the various zoning issues forward give us direction? Is that what is
giving us the direction here to look at this?
Mr. Larkin: No.and Curtis can elaborate but really this isn’t an issue that shouldn’t be decided
by Staff. It really should be decided by Council on the advice of the Commission. So Staff is
bringing it forward.
Commissioner Garber: I see but you are bringing it forward because tile Council has raised the
larger issue?
Mr, C. Williams: Well the timing is important because of the larger issue in the pending
Proposition.
Commissioner Garber: And this is just one piece.
Mr. C. Williams: The timing also is relevant to the item number three on your agenda. This
needs to be addressed at the same time as that although there is an option here for you to sort of
separate those two issues out and just be sure it doesn’t happen again. That is what drove the
timing initially and then creating the Urgency Ordinance is doing it as an Urgency Ordinance as
opposed to something else is also related to Prop 90. Council’s direction was on the Prop 90 part
of it not on the fact that this has anything to do with this project.
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Commissioner Garber: Understood. So ifI am understanding correctly the existing language as
Commissioner Keller has just mentioned states in the first sentence that is excerpted here to
allow a second dwelling unit under the same ownership as the initial dwelling unit on appropriate
sites in areas designed for family use by Palo Alto Comprehensive Plan. Is that not the
language?
Mr. Larkin: Of the existing stated purpose, yes. That is the language as I recall it.
Mr. C. Williams: That is the language of the purpose statement for RMD.
Commissioner Garber: And just so I am clear, what is being suggested to be added here is,
"Second dwelling units under different ownership from the initial dwelling shall be prohibited."
Mr. Larkin: We are going to need to revise this language somewhat. Unfortunately this was
written while I was out of town and so we haven’t firmed up the language but I think that the
Commission has at least a pretty good sense of the intent of what we are doing.
Commissioner Garber: Let me leave that for a moment and ask another question. The way that
condo agreements work is that, and this is a question, but for a single piece of property the units
that are on that property you can’t have one be a condo and the other be owned outright they all
have to be come condo-ized. Is that correct?
Mr. Larkin: That is correct. That is my understanding I am not a condo expert.
Commissioner Garber: Then the law requires that an association then own the underlying
property. Is that correct?
Mr. Larkin: The association has to own common area. They don’t actually have to own the
underlying property but that is the only way that it would work in this case is if the two units
were owned by an association and the individuals had air space rights. The Common Interest
Development law only requires that there be some common property that is owned by the
association. It is our interpretation of our ordinances that the units themselves have to be under
the same ownership, not the units but the physical property itself, the dwelling units have to be
owned by the same property and that air space rights within those could be divided.
Commissioner Garber: So in a circumstance where an individual does not own a property but
say a trust or a company or some other entity that is not an individual may own the property but
then rent or lease or condo-ize or whatever the circumstance may be, how is that different than
turning them into condos? Is the difference simply that you literally have somebody owning the
air space that is different from owning the air space in the second unit?
Mr. Larkin: Why do you always ask me these questions at eleven o’clock at night? I don’t know
the answ.er offthe top of my head.
Commissioner Garber: To the fourth piece here what I am hearing is the City’s primary concern
is the policing that this is an issue.
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Mr, C. Williams: That is not the case. The primary concem is that we believe that this is
contrary to the intent of the RMD and the R-2 to have one owner of the units, one owner that
owns both units, and so one unit will be a rental. It is analogous in some ways to in terms of
Housing Element policy and such to the fact that we don’t allow apartments to be converted to
condominiums, that we don’t allow these rental units to.be converted to condominiums either. I
think that is just a fundamental Comprehensive Plan and Housing Element policy. There is a
concern about policing I don’t want to present that as being our primary concern. Our primary
concern is we think it is fundamentally in conflict with the basic intent of the RMD zone and
with Housing Element policies to protect rental units.
Commissioner Garber: Just to ask the question another time what is the impact of making these
conversions if it was to be allowed? Or I should say the actual impact.
Mr. C. Williams: Besides just this, if we didn’t pass anything .....
Commissioner Garber: Aside from the concept of walking by the property, how it is policed,
how permits are run, are there impacts?
Mr. C. Williams: I don’t know that there are particularly necessarily visual impacts as such. I
would certainly take issue with the argument that the ownership creates a better maintenance
situation. These are for the most part very well maintained units fight now and they are rented is
well. But from a visual standpoint that is not the issue. The issue is that rental provides a variety
of housing stock that we don’t want to lose and almost all the new housing that we get is
ownership housing. So it becomes even more critical in that light.
Commissioner Garber: Does it change the way the properties would be permitted or changes to
the property would be made in any way?
Mr. C. WilliamS: I don’t think it would. I think you would still have to especially in the RNID
there is a design review for the second units so that would still be in place regardless of whether.
Commissioner Garber: Does it change the amount of parking that is required?
Mr. C. Williams: Nope.
Chair Holman: Commiss]oner Sandas you had one question and then I haven’t had a turn yet but
Commissioner Burt you think you have a way of moving this forward. So Commissioner Sandas
would you ask your question, please?
Commissioner Sandas: Actually, it is a couple of comments, The first comment is that I am the "
risk of becoming the most unpopular person in the room right now I have had experience with air
space condominium with three separate and distinct units on a single piece of property and we
can talk about the policing issues. It is .very messy. You are governed by CC&Rs I agree with
Mr. Hanna in his presentation. Yes, in fact you are governed by CC&Rs, however, three distinct
houses on a single lot as air space condominiums are not the same as a condo complex. I don’t
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want to take all night talking about this but there are issues and I have personally first-hand dealt
with them, number one. Number two, I think the other thing that we are talking about here, right
here and now, is item number two whether or not to encourage the City Council to adopt this
ordinance. We don’t have any jurisdiction over adopting ordinances in our town but we are
being asked to make a recommendation to Council. So in the interest of that I think I am
segueing to Commissioner Burt because he has a way to move us on.
Chair Holman: Commissioner Burt, and I will retain my right to speak after that.
MOTION
Commissioner Burt: Okay. So we all can see that it is almost eleven o’clock and we have item
three and returning to item one that we still have to do. There are a lot of nuances to the merits
of this issue. I think the Commission under normal circumstances would be wanting to fully
explore those merits. Given that this is an Urgency Ordinance, which is basically an interim
ordinance, and we will have the opportunity to return to the substantive discussion I think the
thing before us tonight is whether it is appropriate to adopt an Urgency Ordinance. So what I
would like to do is make a motion and then add some additional comments that I think will help
¯ us narrow the focus and move us forward.
So I move the Staff recommendation for adoption of the Urgency Ordinance at this time.
SECOND
Vice-Chair Lippert: I will second that.
Commissioner Burt: So first I would like to say that I think the intent of the Comprehensive Plan
and the original RMD ordinance from 1983 are clear. Staff has acknowledged that our existing
language has some ambiguity to it. So we are going to create the opportunity to clarify and make
the ordinance language unambiguous and consistent with the Comp.Plan and the 1983 ordinance
we need to put in place this Urgency Ordinance to give us the time to do so.
For tonight it is not really very relevant what we think of the merits of whether to do these
conversions or not. Let’s hold off that whole discussion both because it is complex and because
even whether we think it is a good idea or not we need to be bound by the Comprehensive Plan.
If we wanted to change something we might need to change the Comp Plan if we didn’t think
this was a good practice. But that is not what is really before us tonight. Then finally we are
going to have the opportunity to take up under item number three the separate issue of whether
we think it is appropriate to impose the Urgency Ordinance on the particular project that whether
the applicant found a loophole and is getting through one project that is going to be the subject of
our next item. That is a separate issue that we can address and I as I have indicated want to
address. I am not sure that we necessarily need to link an act on both items in the way that the
Staff has recommended. Having said that I think we need to just narrow our decision on whether
in order to give the City the opportunity to eliminate the ambiguity and in the long term be
assured that we can have consistency with our Comp Plan and with the 1983 ordinance we have
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to put the Urgency Ordinance in effect under the possibility that Prop 90 will pass otherwise we
foreclose that potential. So that is why I have made the motion.
Chair Holman: I wasn’t quite sure whether it was Commissioner Sandas or Commissioner
Lippert that made the second. Okay, Commissioner Lippert.
Vice-Chair Lippert: I think that Pat has summed it up very well. I wouldn’t normallybe putting
something like this in place except for the fact that we do have Prop 90 coming along. I think
that we really need to have language set in place so that we have a way of dealing with this in the
future. That is really the nut of why we are enacting an Urgency Ordinance. The fact that there
is one piece of property that is taking advantage of this is not really relevant. It is the fact that
we want to look at the big picture and how this is going to ultimately affect some smaller units,
for sale units in this community.
Commissioner Sandas: Just to share I wanted to reiterate one of the things that Commissioner
Burt had mentioned. There was wisdom in the intent of the existing 1983 ordinance and I think
that the wisdom still exists.
Chair Holman: Since I haven’t gotten to speak yet I am going to take this opportunity. I won’t
belabor it but I have just a couple of things. Staff had said that there were a couple of corrections
to the ordinance. Could you indicate for me what those are?
Mi. Larkin: Well, first off all in the prohibition I will need to do a small language tweak to just
clarify that were we talk about second dwelling units under different ownership from initial
dwelling units that it incorporates air space rights and I haven’t done that yet. That will be the
language change that we will make to clarify that part of it. Then the second would be under.the
exemption. We meant to say that it would not apply to any map which has received final
approvals as of the effective date not second unit obviously second units are allowed in the
RMD. It is the subdivision that the ordinance would be intending to address.
Chair Holman: That is helpful. Just soit isn’t something that isn’t carried forward ifI might,
this ordinance under Section 1-B has some language to which I did not find in the code.
Depending on one’s perspective is either appropriate or not, under B about midway.down it says,
the purpose of establishing the zone was to minimize, there were three things, minimize
incentives to demolish existing single family dwellings, maintain neighborhood character and
three it has been inserted more significantly increase the variety of housing opportunities
available within the community. ’More significantly’ is not in the original language in the "
ordinance and I would respectfully request that the maker and seconder of the motion accept that
as a friendly amendment just so we don’t carry that forward as agreeing with that. It sounds like
a nit but depending on one’s perspective that may not be the most important.
Mr. Larkin: I am more than happy to strike it if the maker and seconder want to endorse that
concept then that would be fine.
Commissioner Burr: So I am receptive to both that change and the two intended changes that the
City Attorney had referenced under prohibition and exemption.
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Vice-Chair Lippert: I will accept that as well.
Chair Holman: What I would like to do given what hour it is is since this would be coming back
to us within the 45 days unless there are any really burning, burning issues I would like to ask
that we vote on this. It is burning?
Commissioner Keller: Yes. I would just like to know whether or not you would like a timing of
the potential passing of Prop 90 to be added to the findings A through E that are already here?
Mr. Larkin: I suspect that there will be that and additional findings added. The purpose of the
Planning Commission review was to comment on the policy and commenting on the urgency is
important but not as necessary for the Commission and Staff will probably come back with a
couple of additional recommended findings for Council to make.
MOTION PASSED (7-0-0-0)
Chair Holman: Okay, any other issues we can address when this comes back to us. So I will call
the vote on the motion to approve the Staff recommendation of approval of this ordinance with
the changes that the City Attorney has indicated that are forthcoming and are agreeable to them.
So could we have a vote on the motion, please? All those in favor? (ayes) Opposed? So that
passes unanimously on a seven to zero vote. Thank you all.
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