HomeMy WebLinkAboutStaff Report 412-06TO:
FROM:
DATE:
SUBJECT:
City of Palo Alto
City Manager’s Re9:
HONORABLE CITY COUNCIL
CITY MANAGER DEPARTMENT: PLANNING AND
COMMUNITY ENVIRONMENT
NOVEMBER 20, 2006 CMR: 412:06
610 CALIFORNIA AVENUE [05PLN-00358]: APPEAL OF THE
DIRECTOR OF PLANNING AND COMMUNITY ENVIRONMENT’S
DECISION TO APPROVE A PARCEL MAP FOR CONDOMINIUM
PURPOSES TO ESTABLISH "AIR SPACE RIGHTS" WITHIN THE TWO
EXISTING BUILDINGS ON A LOT UNDER COMMON OWNERSHIP.
ENVIRONMENTAL ASSESSMENT: EXEMPT FROM THE PROVISIONS
OF CEQA. ZONE DISTRICT: RMD(NP).
RECOMMENDATION
The Planning and Transportation Commission (Commission) recommends that the City Council
deny the appeal and affirm the Director of Planning and Community Environment’s decision to
approve a parcel map at 610 California Avenue for condominium purposes to establish "air space
rights" within the two existing buildings. The Record of.Land Use Action denying the appeal is
contained in Attachment B.
BACKGROUND
The existing site is located in the Two Unit Multiple Family Residential District (RMD) with a
Neighborhood Preservation Combining District (RMD(NP)) and contains two single-family
residential structures and a detached garage.
On August 4, 2006, the Director of Planning and Community Environment approved the Parcel
Map’. This decision was based upon the information contained in the project file, testimony
received at the Director’s Heating held on July 20, 2006, and an analysis of the project’s
compliance with Title 18 (Zoning), Title 21 (Subdivisions) and the Comprehensive Plan. In
particular, the decision was based on the City Attorney’s opinion that state law allows for such
"air fights" condominiums, notwithstanding the intent of the zone regulations and the
Comprehensive Plan.
Joy Ogawa submitted a letter dated July 20, 2006 to the Director of Planning and Community
Environment at the Director’s Hearing arguing against the proposed subdivision. This letter was
not included in the Commission staff report. The letter is contained in Attachment G.
CMR: 412:06 Page 1 of 4
On August 14, 2006, the City received a request for an appeal from Pria Graves. The Planning
and Transportation Commission held a public hearing on the appeal on September 27, 2006.
Prior to hearing the appeal, the Commission considered an urgency ordinance that would prohibit
the separate sale of airspace rights to second units in the R-2 and RMD zones.
Staff concluded that the RMD and R-2 zone regulations did 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 Commission
voted 7-0 to recommended approval, with corrections suggested by the City Attorney.
This motion included exemption of 610 California Avenue from the provisions of the ordinance.
During the public hearing, members of the public generally spoke in favor of the urgency
ordinance and the appeal to overturn the Director’s decision.
On October 16, 2006, the City Council enacted the urgency ordinance, including the exemption
for this project.
DISCUSSION
Basis for the Appeal
The basis for the appeal, as stated in the letter submitted by Ms. Graves, is that the purpose of the
RMD District (Palo Alto Municipal Code (PAMC) Section 18.10.010(c)) does not allow separate
ownership of second dwelling units. The appellant states that the subdivision would undermine
the intent of the NP Combining District to preserve existing single-family structures, in that the
subdivision would reduce the protection and preservation of the existing historic structure on the
site. The appellant also states that the subdivision would not be consistent with the
Comprehensive Plan with regards to the loss of rental housing, in that the Housing Element’s
Program H-29 requires that a subdivision be denied if there is a loss of rental units (as would be
the case with this Parcel Map). The appellant’s letter is contained in the September 27, 2006
Commission staff report Attachment C.
Property Owner Arguments in Favor of the Subdivision
The applicant submitted a letter (Attachment F) to the Commission, dated September 27, 2006,
which responds to the appellant’s arguments for denial of the parcel map. In summary, the
applicant argues that the RMD district does not specifically prohibit condominium conversions.
According to the applicant, the condominium form of ownership is consistent with the purpose
of the district to allow a second dwelling unit under the same ownership as the initial dwelling
unit. The applicant states that, "the lot and all but the air-space rights would remain under
common ownership. As noted in the (September 27, 2006) staff report, a commonly owned
parcel qualifies as a single lot of record." The applicant also argues that the character of the
neighborhood would not be affected by the subdivision and that the types of housing
opportunities would be further increased within an area that already has varied housing types.
The applicant responded to the appellant’s claim that the subdivision would reduce the protection
and preservation of the existing historic structure on the site by stating that the CC&Rs would
typically contain protections regarding changes or modifications to the property, thereby
increasing the protections for preservation of the structures.
CMR: 412:06 Page 2 of 4
Staff Basis for Approval of the Parcel Map
Staff concluded that the creation of air-space condominium lots would not be consistent with the
purpose of the RMD District, but that the text of the ordinance did not expressly prohibit them.
This was based upon the existing language within the Zoning Ordinance, PAMC 18.10.010,
which did not expressly prohibit such subdivisions, and understanding of State law, where a
common parcel qualifies as a "single lot of record for a use or .group of uses" with the group of
uses being the two homes. The rational is that if the lot itself was not being subdivided and
would continue to exist under single, albeit common ownership, individual air space
condominium units could be created, each having individual ownership.
Existing Condominiums in College Terrace
The applicant, in his presentation to the Commission, indicated that the RMD District in the
College Terrace neighborhood contains two properties with condominium units: 2385 & 2395
Williams Street and 2333 & 2337 Williams Street. Staff has reviewed the status of these
properties. These properties were subdivided to create air-space condominium units. The first
two addresses received approval in 1981 and 2333 & 2337 Williams Street received approval in
1982. In 1983, the RM-3 District was changed to the Two Unit Multiple Family Residential
District with a Neighborhood Preservation Combining District (RMD(NP)), thus creating the
current ownership requirements for two units on one lot.
COMMISSION REVIEW AND RECOMMENDATION
At the September 27, 2006 Planning and Transportation Commission public hearing, staff
recommended that the Commission continue the public hearing to allow staff to present the City
Council with an urgency ordinance that would prohibit the separate sale of airspace rights to
second units in the R-2 and RMD zones, and return to the Commission after a decision by the
City Council. The Commission considered the information contained in the staff report, heard
testimony from the applicant, appellant and members of the public, and voted to uphold the
Director’s decision to approve the Parcel Map (4-3-0-0, with Commissioners Itolman, Sandis,
and Keller voting against the motion).
Commissioners who spoke in favor of the subdivision noted that each residential building on the
site is distinct and can operate independently from each other, each building has access to
different streets (Yale Street and California Avenue), and that the buildings and landscaping are
of high quality and design. The concern was that the urgency ordinance would create the
perception of overruling a previous decision if it was unpopular. Commissioners who spoke in
favor of the appeal to overturn the Director’s decision maintained that the purpose Of the RMD
district to allow a second dwelling unit under the same ownership as the initial dwelling unit is
clear. The condominium association’s ability to enforce the Covenents, Conditions and
Restrictions (CC&Rs) was cited as a possible problem, in that maintenance, repairs and
improvements would require approval from the association, which can result in conflicts
between the respective owners.
The Commission staff report and attachments are contained in Attachment C and the meeting
minutes are contained in Attachment D.
CMR: 412:06 Page 3 of 4
RESOURCE IMPACTS
Property taxes will likely increase as a consequence of the subdivision and sale of the properties
at market value. The City will receive a one-time transfer tax upon sales. These taxes are
dependent upon the value of the eventual transactions. No net incremental costs to the City are
expected from this project.
ENVIRONMENTAL REVIEW
The California Environmental Quality Act (CEQA), Section 15303 lists a minor land division of
property in an urbanized area into four or fewer parcels as exempt from CEQA if the subdivision
is in conformance with all zoning regulations. As this project would create two units, the project
is exempt from the provisions of CEQA, in accordance with Section 15303.
PREPARED BY: - -"
STEVEN TURNER--~,
Senior P1,
DEPARTMENT HEAD:
/ Director of Planning and Community Environment
CITY MANAGER APPROVAL:
HARRISON
Assistant City Manager
ATTACHMENTS/EXHIBITS
Attachment A -Site Map
Attachment B -Record of Land Use Action to Deny the Appeal and Uphold the Director’s
Decision
Attachment C -Planning and Transportation Commission Staff Report, September 27, 2006
with Attachments
Attachment D-Planning and Transportation Commission Verbatim Minutes, September 27,
2006
Attachment E -Applicant’s Letter to the Planning and Transportation Commission, September
27, 2006
Attachment G- Letter from Joy Ogawa dated July 20, 2006
COURTESY COPIES
Brian Wilson
Pria Graves
John Hanna
Bill Garrett
Joy Ogawa
CMR: 412:06 Page 4 of 4
Attachment A
137-01-110 137-01-144
137-01-088
137-01-145
137-01-089
The City of
Palo Alto
610 California Avenue
Location Map
This map is a product of the
City of Palo Alto GIS
ATTACHMENT B
ACTION NO. 2006-
RECORD OF THE COUNCIL OF THE CITY OF PALO ALTO
LAND USE ACTION FOR 610 CALIFORNIA AVENUE:
PRELIMINARY PARCEL MAP 05PLN-00358
(BRIAN WILSON, APPLICANT)
At its meeting on , 2006, the City Council of the City
of Palo Alto approved the Preliminary Parcel Map to create two air-
space condominium units, each containing a single-family
residential structure in the RMD(NP) residential district, making
the following findings, determination and declarations:
SECTION I.Background. The City Council of the City
of Palo Alto ("City Council") finds, determines, and declares as
follows:
A. The applicant, Brian Wilson, has requested a
Preliminary Parcel Map to create two alr-space condominium units,
each containing a single-family residential structure. The existing
site is located in the RMD(NP) zone district and contains two
single-family residential structures and a detached garage. The
existing density is allowed within the RMD(NP) district, based upon
the size of the lot at 5,750 square feet. The residential building
at the corner of California Avenue and Yale Street is designated as
Category 2 on the City’s Historic Preservation Inventory. The
second unit facing Yale Street was constructed in 2003. The total
floor area for the site is approximately 2,875 square feet, which
is the maximum allowed floor area for the site.
B. As this project would create four or fewer
condominium units, the application was processed as a minor
subdivision. The intent of the minor subdivision was to ~convert
each residential structure to ownership units. The underling lot
would not be subdivided, but would be owned by a single entity
comprised of the owners of the residential buildings.
C. The project was deemed complete in June, 2006. A
public hearing was held on July 25, 2006 to accept public testimony
on the map. Staff received comments from members of the public. A
Director’s Decision was prepared approving the map, which was
signed on August 4, 2006.
D. The Director’s Decision was appealed on August 14,
2006. Upon receipt of the appeal request and after further
consideration of the Zoning Ordinance, staff determined that the
creation of air-space condominium lots would not be consistent with
the purpose of the RMD district, as described above. Although the
underlying lot itself would not be subdivided and would remain
under a single ownership entity, the air-space condominiums could
1
be owned by two separate individuals. The individual ownership of
each condominium unit would not be consistent with the intended
purpose of the RMD district. In order to clarify the intent of the
RMD district, staff prepared an urgency ordinance to expressly
prohibit the separate sale of airspace rights to second units in
the R-2 and RMD zones. The Planning and Transportation Commission
voted to recommend approval of the urgency ordinance but exempted
the 610 California Avenue project from the provisions of the
ordinance. The City Council approved the urgency ordinance, with
the 610 California Avenue exemption, on October 16, 2006.
E. The Commission held a public hearing on September 27,
2006 to consider the appeal. The Commlssion voted to deny the
appeal and uphold the Director’s decision.
SECTION 2.Environmental Review. The California
Environmental Quality Act (CEQA) lists a minor land division of
property in an urbanized area into four or fewer parcels as exempt
from CEQA if the subdivision is in conformance with all zoning
regulations. As this is a project that would create two units, the
project is exempt from the provisions of CEQA, pursuant to Section
15303 of the CEQA Guidelines.
SECTION 3.Preliminary Parcel Map Approval Findings.
A legislative body Of a city shall deny approval of a Preliminary
Parcel Map, if it makes any of the following findings (California
Government Code Section 66474):
i. That the proposed map is not consistent with
applicable general and specific plans as specified in Section
65451:
The site does not lie within a specific plan area and
is consistent with the provisions of the Comprehensive Plan.
2, That the design or improvement of the proposed
subdivision is not consistent with applicable general and specific
plans :
The map is consistent with the following Comprehensive
Plan policies: (i) Policy L-I - Limiting future urban development
to currently developed lands within the urban service area; (2)
Policy L-12 - Preserve the character of residential neighborhoods
by encouraging new or remodeled structures to be compatible with
the neighborhood and adjacent structures.
3. That the site is not physically suitable for the
type of development:
The site currently contains two dwelling units. Each
dwelling unit is compatgble with the neighborhood, in that the
development of the second unit was reviewed by the Architectural
Review Board and Historic Resources Board in 2002. The second unit
was found to meet the required Architectural Review and Historic
Resources findings for Neighborhood Preservation Exception. The
site also contains a structure ranked as Category 2 in the City’s
~Historic Resources Inventory. This structure would remain on the
site. The Preliminary Parcel Map, as conditioned, is suitable for
the existing single-family residences to remain in the present
condition and location.
4. That the site is not physically suitable for the
proposed density of development:
The minor subdivision is consistent with the permitted
density requirements of the RMD(NP) district. In addition, the
subdivision does not alter the exterior site boundaries and site
area.
5. That the design of the subdivision or the proposed
improvements are likely to cause substantial environmental damage
or substantially and avoidably i.njure fish or wildlife or their
habi tat :
The minor subdivision will not cause environmental damage
or injure fish, wildlife, or their habitat, as the .site is
currently developed with two s±ngle-family residences that would
not be substantially changed as a result of this project. The
existing structures would not cause substantial environmental
damage to wildlife areas, in that the site is over 1,200 feet from
the local creek along Stanford Avenue.
6. That the design of the subdivision or type of
improvements is likely to cause serious public heal£h problems:
The minor subdivision of the existing parcel will not
cause serious public health problems, as it does not substantially
affect the existing conditions and overall function of the property
as a site for low density housing.
7. That the design of the subdivision or the type of
improvements will conflict with easements, acquired by the public
at large, for access through or use of, property within the
proposed subdivision. In this connection, the governing body may
approve a map if it finds that alternate easements, for access or
for use, will be provided, and that these will be substantially
equivalent to ones previously acquired by the public. This
subsection shall apply only to easements of record or to easements
established by judgment of a court of competent jurisdiction and no
authority is hereby granted to a legislative body to determine that
the public at large has acquired easements for access through or
use of property within the proposed subdivision.
The minor subdivision of the existing parcel will not
conflict with easements of any type, as there are no pre-existing
easements on site nor are any easements required as a condition of
this approval.
SECTION 4.Approval of Preliminary Parcel Map. The
Preliminary Parcel Map is approved by the City Council under Palo
Alto Municipal Code (~PAMC") Sections 21.13 and 21.20 and the
Californla Government Code Section 66474.
PASSED:
AYES:
NOES:
ABSENT:
ABSTENTIONS:
ATTEST:APPROVED:
City Clerk
APPROVED AS TO FORM:
Director of Planning and
Community Environment
Senior Asst. City Attorney
PLANS AND DRAWINGS REFERENCED:
Those plans prepared by Lea & Braze Engineers, Inc titled
"Preliminary Parcel Map for Condominium Purposes", consisting of
one page, dated and received November 14, 2006.
4
ATTACHMENT C
PLANNING DIVISION
STAFF REPORT
TO:PLANNING & TRANSPORTATION COMMISSION
FROM:
AGENDA DATE:
SUBJECT:
Steven Turner
Senior Planner
DEPARTMENT:Planning and
Community Environment
September 27, 2006
610 California Avenue [05PLN-00358|*: Appeal of the Director’s
decision to approve a Parcel Map requested by Brian Lee Wilson for
condominium purposes to establish "air space rights" within the two
existing buildings on a lot under common ownership. Environmental
Assessment: Exempt from the provisions of CEQA. Zone District:
RECOMMENDATION
Staff recommends the Planning and Transportation Commission (Commission) continue their
review of this appeal to October 25, 2006, to allow staff to present the City Council with an
urgency ordinance that would prohibit condominium conversions in the RMD district.
Staff would return to the Commission on October 25, 2006, after the decision by the City
Council on the urgency ordinance. At that time, the Commission would be able to recommend to
the City Council whether to overrule the Director’s decision to approve the Preliminary Parcel
Map, pursuant to Palo Alto Mtmicipal Code (PAMC) 21.36.020~ The Council would conduct a
hearing on the appeal within 30 days of receiving the Commission’s recommendation on the
appeal.
PROJECT DESCRIPTION AND BACKGROUND
The existing site is located in the RMD(NP) zone district and contains two single-family
residential structures and a detached garage. The existing density is allowed within the
RMD(NP) district, based upon the size of the lot at 5,750 square feet. The residential building at
the comer of California Avenue and Yale Street is designated as Category 2 on the City’s
Historic Preservation Inventory. The second unit facing Yale Street was constructed in 2003.
The total floor area for the site is approximately 2,875 square feet, which is the maximum
allowed floor area for the site.
City of Palo Alto Page 1
The applicant submitted an application on October 12, 2005 for a Preliminary Parcel Map to
create two "air-space" condominium lots on the existing lot. As this project would create four or
fewer condominium units, the application was processed as a minor subdivision. The intent of
the minor subdivision was to convert each residential structure to ownership units. The
underlying lot would not be subdivided, but would be owned by a single entity comprised of the
owners of the residential buildings.
The application was deemed incomplete on November 22, 2005, based upon technical
corrections to the map that were required prior to a public hearing. The applicant submitted
corrections and the project was deemed complete in June, 2006. A public hearing was held on
July 25, 2006 to accept public testimony on the map. Staff received comments from members of
the public. A Director’s Decision was prepared approving the map, which was signed on August
4, 2006. A copy of the approval letter in contained in Attachment B.
The project was appealed by Pria Graves on August 14, 2006. A copy of the appeal request letter
is contained in Attachment C.
DISCUSSION
Prior to the Director’s Decision, staff had determined that the request for condominium
conversion could be permitted within the RMD residential district. Staff determined that the
requested subdivision would be consistent with the purpose of the Zoning Ordinance, Title
18.10.010(c), which states that the purpose of the RMD district 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. The RMD district is intended to
minimize incentives to replace existing single-family dwellings, maintain existing neighborhood
character and increase the variety of housing opportunities available within the community. The
maximum density in this zone shall not exceed seventeen dwelling units per acre.".
The site contains two dwelling units on a single parcel. The subdivision would create two
airspace condominium units that would exist on the single parcel. The parcel itself would not be
subdivided. Although ownership of each condominium unit may be transferred to separate
owners, the existing parcel would continue to be controlled by a single owner or entity. The
existing structures, including a Category 2 Historic structure and the second dwelling unit
constructed in 2003, would be retained. The second unit was reviewed and approved for
neighborhood compatibility by the Architectural Review and Historic Resources boards. The
addition of the second unit contributed to the housing stock of the city. The creation of the
condominium units would increase the variety of housing, in that the two detached condominium
units on a single lot represents additional ownership opportunities for lower-density housing in
an area that already contains single-family, multiple-family and rental dwelling units. Based
upon the project request, the review of the project for compatibility with the Zoning Ordinance,
the Comprehensive Plan, and the Subdivision Map Act, staff processed an approval for the
project.
Upon receipt of the appeal request and after further consideration of the Zoning Ordinance, it has
been determined that the creation of air-space condominium lots would not be consistent with the
City of Palo Alto Page 2
purpose of the RMD district, as described above. Although the underlying lot itself would not be
subdivided and would remain under a single ownership entity, the air-space condominiums could
be owned by two separate individuals. The individual ownership of each condominium unit
would not be consistent with the intended purpose of the RMD district.
Staff’s original interpretation of the RMD district purpose was based upon the existing language
within the Zoning Ordinance, PAMC 18.10.010(c) and understanding of state law where a
common parcel qualifies as a "single lot of record for a use or group of uses" with the group of
uses being the two homes, The PAMC language implied that the creation of lots with dwelling
units under different ownership would not be allowed. But because of state law, staff reasoned
that if the lot itself was not being subdivided and would continue to exist under single, albeit
common ownership, individual air space condominium units could be created, each having
individual ownership.
The City Attorney’s Office has prepared an urgency ordinance that would correct and clarify the
purpose of the RMD district with regard to subdivisions and residential unit ownership. This
urgency ordinance will be presented to the Commission on September 27, 2006 prior to the
public hearing for the appeal of the Director’s decision on 610 California Avenue.
If the urgency ordinance is adopted by the City Council, the Director’s decision on 610
California Preliminary parcel map would not be consistent with the revised purpose of the RMD
district. Staff would return to the Commission with a recommendation to overrule the August 4,
2006 Director’s Decision. If the urgency ordinance is not adopted by the City Council, or if this
project is exempted, the Commission would then consider the appeal on its merits.
POLICY IMPLICATIONS
Zoning Ordinance Compliance
Proj ect approval was based on compliance, consistent with application of State law regarding the
definition of a common parcel. It has been determined, however, that the project would not be
consistent with the zoning ordinance, if the proposed urgency ordinance is approved by the City
Council.
Comprehensive Plan
The proposed subdivision was
Comprehensive Plan:
found to be consistent with the following policies of the
Policy L-12: Preserve the character of residential neighborhoods by encouraging new or
remodeled structures to be compatible with the neighborhood and adjacent structures. No
changes are proposed for the existing structures, which include a Category 2 historic building
and a second detached dwelling unit which was built in 2003. This second unit was reviewed by
the Historic Resources and Architectural Review Boards and was found to be compatible with
existing structures on the site and in the general vicinity of the neighborhood.
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:
City of Palo Alto Page 3
The project will produce at least a l OO 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-36); 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 25percent of the units will comply with the City’s BMRprogram.
Although the project would result in the loss of a rental housing unit (all units after the first unit
are considered rental units), the number of non-rental units would increase by one (a 100%
increase). Furthermore, projects that contain three units or fewer are not subject to Program H-
29 (applies to multi-family district only). The project would also not be subject to additional
BMR requirements.
ENVIRONMENTAL REVIEW
The California Environmental Quality Act (CEQA) lists a minor land division of property in an
urbanized area into four or fewer parcels as exempt fi:om CEQA if the subdivision is in
conformance with all zoning regulations. As this is a project that would create two units, the
project is exempt fi:om the provisions of CEQA, Section 15303.
NEXT STEPS
The appeal would return to the Commission after the City Council reviews the urgency
ordinance as described above.
ATTACHMENTS:
Attachment A -Site Map
Attachment B -Director’s Decision, August 4, 2006
Attachment C -Appeal Request, August 14, 2006
Attachment D -Preliminary Parcel Map [Commission members only]
COURTESY COPIES:
Brian Wilson, 2389 South Cliffview, Flagstaff, AZ 86001
Pria Graves, 2130 Yale Street, Palo Alto, CA 94306
Prepared by:Steven Turner, Senior Planner
Reviewed by:
Department/Division Head Approval:
Amy French, AICP, Manager of Current Planning
Curtis Williams
Chief Planning and Transportation Official
City of Palo Alto Page 4
137-01-086
Attachment A
137-01-089
137-01-140
137-01-110
/
,, ,/~.~.137-01-145
137-01-088
137-01-144
The City of
Palo Alto
610 California Avenue
Location Map
This map is a product of the
City of Palo Alto GIS
sturner, 2006-Q9-20 15:48:30 This document is a g~ph~c repre~n~t~on orgy of best a~itabk~A~ses~r Par~[s (~cc-m a p s~3is$~gis~admiNtm e ta\’~le w.Mdb)The City of palo ,AJto ~ssumes no respons~i~ty for any errors, ¢)1989 to 2006 Cit-j of paso
City of Palo Alto
Department of Planning and Attachment B
Community Environment
August 4, 2006
Brian Lee Wilson
2389 South Cliffview
Flagstaff, AZ 86001
Subject: 610 California Avenue, Preliminary Parcel Map; 05PLN-00358
Planning Division Dear Mr. Wilson:
I am writing to inform you of my decision on behalf of the Director of Planning and
Community Environment (Director) regarding your request for approval of the
Preliminary Parcel Map pursuant to the Palo Alto Municipal Code (PAMC) Sections
21.12 and 21.20 and the California Government Code (CGC) Section 66474.
Preliminary Parcel Map approval is granted for the creation of two airspace condominium
units on a 5,662 square foot lot in the Two Unit Multiple-Family Residential District with
Neighborhood-Preservation Combining District (RMD(NP)). This determination is based
on the following outcomes: review of all information contained within the project file; all
public comments received; thereview of the proposal in comparison to all applicable
zomng, subdivision, and other municipal code requirements and the presentation and
discussion of this project in a public forum at the Director’s Hearing on Thursday, July
25, 2006
Consistency with the Two Unit Multiple-Family Residential District (RMD)
The requested subdivision would be consistent with purpose of the Zoning Ordinance,
Title 18.10.010(c), which states that the purpose of the RMD district 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.
The RMD district is intended to.minimize incentives to replace existing single-family
dwellings, maintain existing neighborhood character and increase the varietyof housing
opportunities available within the community. The maximum density in this zone shall
not exceed seventeen dwelling units per acre."
The site currently contains two dwelling units on a single parcel. The subdivision would
create two airspace condominium units that would exist on the single parcel. The parcel
itself would not be subdivided. Although ownership of each condominium unit may be
transferred to separate owners, the existing parcel would continue to be controlled by a
single owner or entity.
The existing structures, including a Category 2 Historic structure and the second dwelling
unit constructed in 2003, would be retained. The second unit was reviewed and approvedzou r~arrmton Avenue
P.O. Box 10250
PaloAlto, CA 94303
650.329.2441
650.329.2154
Printed with sov-ha~ecl ink~ ~n 100% recycled ~aner orocessed without chlorine
610 California Avenue, Preliminary Parcel Map
05PLN-00358
August 4, 2006
Page 2 of 4
for neighborhood compatibility by the Architectural Review and Historic Resources
boards. The addition of the second unit contributed to the housing stock of the city. The
creation of the condominium units Would increase the variety of housing, in that the two
detached condominium units on a single lot represents additional ownership opportunities
for lower-density housing in an area that already contains single-family, multiple-family
and rental dwelling units.
PROJECT DESCRIPTION
Request by Brian Wilson for a preliminary parcel map to create two air-space
condominium lots for the two existing single-family residences. Environmental
Assessment: The City as the lead agency for the project has determined that it is
categorically exempt form the California Environmental Quality Act under Guidelines
Section 15305--Minor Alterations in Land Use. Zone District: RMD(NP).
PRELIMINARY PARCEL MAP FINDINGS
A legislative body of a city shall deny approval of a Preliminary Parcel Map, if it makes any
of the following findings (CGC Section 66474):
1.That the proposed mcip is not consistent with applicable general and specific plans as
specified in Section 65451."
The site does not lie within a specific plan area and is consistent with the provisions
of the Comprehensive Plan.
2.That the design or improvement of the proposed subdivision is not consistent with
applicable general and specific plans."
The map is consistent with the following Comprehensive Plan policies: (1) Policy L-1
- Limiting future urban development to currently developed lands within the urban
service area; (2) Policy L-12 -Preserve the character of residential neighborhoods by
encouraging new o1: remodeled structures to be compatible with the neighborhood and
adjacent structures.
3. That the site is notphysically suitable for the type of development:
The site currently contains two dwelling units. Each dwelling unit is compatible with
the neighborhood, in that the development of the second unit was reviewed by the
Architectural Review Board and Historic Resources Board in 2002. The second unit
was found to meet the required Architectural Review and Historic Resources findings
610 California Avenue, Preliminary Parcel Map
05PLN-00358
August 4, 2006
Page 3 of 4
for Neighborhood Preservation Exception. The site also contains a structure ranked as
Category 2 in the City’s Historic Resources Inventory. This structure would remain on
the site. The Preliminary Parcel Map, as conditioned, is suitable for the existing
single-family residences to remain in the present condition and location.
That the site is notphysically suitable for the proposed density of developmont:
The minor subdivision is consistent with the permitted density requirements of the
RMD(NP) district. In addition, the subdivision does not alter the exterior site boundaries
and site area.
5.That the design of the subdivision or the proposed improvements are likely to cause
substantial environmental damage or substantially and avoidably injure fish Or wildlife
or their habitat:
The minor subdivision will not cause environmental damage or injure fish, wildlife, or
their habitat, as the site is currently developed with two single-family residences that
would not be substantially changed as a result of this project. The existing structures
would not cause substantial environmental damage to wildlife areas, in that the site is
over 1,200 feet from the local creek along Stanford Avenue.
That the design of the subdivision or type of improvements is likely to cause serious
public health problems."
The minor subdivision of the existing parcel will not cause serious public health
problems, as it does not substantially affect the existing conditions and overall function
of the property as a site for low density housing.
That the design of the subdivision or the type of improvements will conflict with
easements, acquired by the public at large, for access through or use of property within
the proposed subdivision. In this connection, the governing body may approve a map if
it finds that alternate easements, for access or for use, will be provided, and that these
will be substantially equivalent to ones previously acquired by the public. This
subsection shall apply only to easements of record or to easements established by
judgment of a court of competent jurisdiction and no authority is hereby granted to a
legislative body to determine that the public at large has acquired easements for access
through or use of property within the proposed subdivision.
The minor subdivision of the existing parcel will not Conflict with easements of any type,
as there are no pre-existing easements on site nor are any easements required as a
condition of this approval.
610 California Avenue, Preliminary Parcel Map
05PLN-00358
August 4, 2006
Page 4 of 4
CONDITIONS OF APPROVAL
Planning Division
A Parcel Map, in conformance with the approved Preliminary Parcel Map, all
requirements of,the Subdivision Ordinance (PAMC Section 21.16), and to the
satisfaction of the City Engineer, shall be filed with the Planning Division and the
Public Works Engineering Division within two (2) years of the Preliminary Parcel
Map approval date.
The Parcel Map submitted for review and approval by the Director shall be in
substantial conformance with the Preliminary Parcel Map prepared by Lea & Braze
Engineering titled "Preliminary Parcel Map for Condominium Purposes", consisting
of 1 page, received August 3, 2006, except as modified to incorporate the conditions
of this approval. This requirement shall be met, unless the applicant makes a request
in writing to the Director for approval, of a waiver of the above requirement. A copy
of this plan is on file in the Department of Planning and Community Environment,
Current Planning Division.
Should you have any questions regarding the Director’s Hearing determination, please do
not hesitate to contact the Project Planner, Steven Turner, at (650) 329-2155.
Sincerely,
Manager of Current Planning
Pria Graves, 2130 Yale Street, Palo Alto, CA 94306
Joy Ogawa, 2305 Yale Street, Palo Alto, CA 94306
Att~ichrnent C
Pria Graves
2130 Yale Street
Palo Alto, CA
94306
14 August 2006
Office of the City Clerk
City of Palo Alto
250 Hamilton Avenue
Palo Alto, CA 94303
Re: 610 California Avenue, Preliminary Parcel Map; 05PLN-O0358
To Whom It May Concern:
I am appealing the August 4th ruling granting approval of this Preliminary Parcel Map
on three grounds:
i. it is not consistent with the base RMD zoning,
ii.it is not consistent with the intent of the NP Neighborhood Preservation
Combining District overlay, and
iii. it is not consistent with the Comprehensive Plan. ~
First, this property is zoned RMD-NP. The RMD zoning states:
" The RMD two-unit multiple-family residence district is intended to allo~
second dwelling unit under the same ownership as the initial dwelling unit ohm.
appropriate sites in areas designated for multiple-family use by the Palo Alto ~,~
Comprehensive Plan."
The ruling makes a distinction between the ownership of the "airspace" rights, a term
not defined in Palo AIto’s Zoning code but apparently referring to the right of
occupation and use of the building, and the ownership of the underlying parcel. But
the zoning does not speak of parcel ownership; it speaks of dwelling unit ownership.
The definition of dwelling unit is ,,a room or group of rooms including living, sleeping,
eating, cooking, and sanitation/bathing facilities, constituting a separate and
independent housekeeping unit, occupied or intended for occupancy on a nontransient
basis and having not more than one kitchen~’° Applying the "reasonable person"
interpretation to this definition, it is impossible to see how ownership o~ an occupied
group of rooms can be separated from the ownership of the right of occupancy.
It ts particularly telling that the sections of the zoning code which address medium-
and high-density areas (R-15, R-30 etc.)are silent as to ownership. From that, it is
clear that the authors of the RMD (and R-2) zoning intended to distinguish these
zones from the higher density areas where condominiums are common. I have been
assured in discussing the issue with one of the code’s authors that they did not
intend this convoluted distinction between ownership of the parcel and ownership of
the occupancy rights. To the authors, as to the "reasonable person", ownership of
the dwelling unit was indivisible.
The second unit at 610 California was made possible by this uncommon zoning, which
allows second units on these fairly small lots "to minimize incentives to replace
existing single-family dwellings, maintain existing neighborhood character and
increase the variety of housing opportunities available within the community". The surrounding R-1 zoning
makes no such provision. Having allowed a second dwelling to be built, it hardly seems onerous for the City
to require that ownership be kept to one person as required by the zoning.
Second, the proposed subdivision undermines the intent of the NP Neighborhood Preservation Combining ~
District overlay. The combining district is "intended to foster retention of existing single-family
structures." The additional unit was constructed using several exceptions permitted under that overlay,
which allows exceptions to the setback, daylight plane, and parking requirements. Among the findings
necessary to support each exception is that it "will facilit.ate the preservation of an existing
residential structure on the same property." The preservation and repair of the original building on the
site were made part of the conditions for granting the requested variances. However, once ownersl~ip of
the two dwellings is separated (even if ownership of the underlying parcel remains intact), it seems to me
that the City has no way to bind the new owner of the historic structure to any of the requirements
imposed by the variance process. Despite the assurances of the applicant of his good intent, if the future
owner of the historic structure condominium wishes to modify or even demolish it, we’re left with only
our pathetically weak historic preservation ordinance for "protection".
Finally, this subdivision is not consistent with Comprehensive Plan Program H-29 which states that where
a proposed subdivision or condominium would cause a loss of rental housing, it should be granted only if it
meets at least two of the following three sets of circumstances:
¯ The project wifl produce at least a 100 percent increase in the number of units currently on the site and
will comply with the City’s Below AAarket Rate (BAAR) 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 B/~R program.
It is clear that creation of this condominium will result in a decrease of rental units (even if not during
the current lease terms). And since it fails to meet any of the required sets of circumstances, it must,
therefore, be denied as inconsistent with the Comprehensive Plan.
As a final note, let me state that I am very distressed by the fact that this ruling in favor of the
proposed condominium parcel map was made in the face of these multiple reasons for denial, all of which
the Current Planning Manager was made aware of prior to the date of the ruling. It is little wonder that
the residents of Palo Alto distrust the City staff!
Sincerely,
Pria Graves
2130 Yale Street
Palo Alto, CA 94306
Attachment D
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Planning and Transportation Commission
Verbatim Minutes
September 27, 2006
EXCERPT
610 California Avenue [05PLN-00358|*: Appeal of the Director’s decision to approve a Parcel
Map requested by Brian Lee Wilson for condominium purposes to establish "air space rights"
within the two existing buildings on a lot under common ownership. Environmental
Assessment: Exempt from the provisions of the California Environmental Quality Act. Zone
District: RMD(NP).
Mr. Turner: Just very briefly. Staff is recommending that the Commission continue the review
of this appeal to October 25 to allow Staff to present the City Council with an Urgency
Ordinance that would prohibit condominium conversions in the RMD district.
Just some quick background, the property is at the corner of California and Yale Street. There
are two single-family homes, there is an older building, which is a category II historic structure,
and there is a second dwelling unit which is a newer building constructed in 2003. That second
building went through an Historic Resources Board Review process and different Director’s
Hearing processes for variances and Architectural Review Board as well for that second
building.
In terms of the application timeline for the current application the applicant had submitted an
application to create two air space condominium units, there would be no other changes to the
buildings. That application was made on October 3, the Staff Report say October 12 but it
should be October 3, it was deemed complete in late November and during that time map
corrections were made and requested by the City. Those were reviewed during May and June of
2006 and after those corrections had been made the application was deemed complete. The City
held a Director’s Hearing on July25 and heard from the project applicant and members of the
public regarding the subdivision. The public hearing was closed and a decision was made on
August 4, 2006. Then finally the application was appealed on August 14 and the project is
considered to be on hold while this appeal is being considered.
A little bit of the rationale for the August 4 decision. It was our interpretation of the RMD
district based on the existing language within the ordinance and the understanding of state law
where a common parcel qualifies as a single lot of record for a use or group of uses and in this
case the groups of uses being the two homes on the site. The Municipal Code language implied
that the creation of the lots with the dwelling units under different ownership would not be
allowed but because of state law Staff reasoned that if the lot itself was not being subdivided and
would continue to exist under a single common ownership that individual air space
condominium units could be created each having individual ownership. Staff is now bringing
forward an Urgency Ordinance after careful consideration of the project and the appeal. You
have heard from Staff who has prepared that ordinance which you have recently discussed and
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voted to move up to Council. This would clarify the purpose of the RMD district with regard to
subdivisions and residential unit,, ownership. If the Urgency Ordinance were adopted by the City
Council the Director’s Decision on this project would not be consistent with the revised purpose
of the RMD district. Staffwould then return to the Commission with a recommendation to
overrule the August 4 Director’s Decision. If the Urgency Ordinance is not adopted by the
Council or if this project is exempted the Commission would then hear the appeal on its merits.
So if the Urgency Ordinance doesn’t pass and is dead then the appeal would continue to be heard
by the Commission and we would be bringing that back to you. That concludes the Staff Report.
The applicant and the appellant are here to make presentations. Thank you.
Chair Holman: Thank you, Are there any important clarifying questions for Staff at this time?
Commissioner Burt.
Commissioner Burt: I guess two. One Don has clarified that as an alternative to deferring this
until October 25 we could actually act on this tonight.
Mr. Turner: That is correct.
Commissioner Burt: And I would like to encourage the applicant and the members of the public
and the Commission to in the interest of the time tonight not rehash the broader issues of the
merits or lack thereof of the existing ordinance and the intention of the broad code to the extent
that we already discussed them in item number two. I think we had a pretty good airing of a lot
of this. Instead to focus on the narrower issue of what specifically should be done for this
proposed project in its appeal so that we have a chance to see whether we want to actually act on
this tonight versus defer it to the October 25.
Chair Holman: Well stated and we will see if there is agreement to that. The applicanthas 15
minutes as does the appellant. Sorry, Commissioner Lippert.
Vice-Chair Lippert: What was the rationale or the reasoning for the historic Category II portion
of this project to go forward before the Historic Resources Board?
Mr. Turner: I believe it was a requirement at that time for the neighborhood preservation
exception that was also a part of this application to be reviewed by the Historic Resources Board.
Vice-Chair Lippert: So there were development entitlements that were associated with this
property?
Mr. Turner: Yes, for the second unit, yes.
Vice-Chair Lippert: Okay.
Chair Holman: I actually would like a little bit of clarification here. I have cards from both Mr.
Hanna and Mr. Wilson. Are you going to speak separately or use your 15 minutes, combined?
Mr. Brian Wilson, Flagstaff, AZ: Whatever would please the Commission.
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Chair Holman: Since we have hashed a lot of the issues if you could all combined use the 15
minutes that would be helpful.
Mr. Wilson: I believe that is what we can do.
Chair Holman: Okay, so if you would move to the microphone please.
Mr. Wilson: Just to give you a sense or an overview this is an application for a preliminary
parcel map at 610 California Avenue. As a review we are basically looking to enact this
preliminary parcel map. There is no change in any of the structures that are on the property. So
there is no change in the visual historical character. Everything stays as is. There is no change it
is currently rented to two tenants. There is no change in the tenants their leases will be exactly as
is. My primary intent was to use this as a vehicle to be able to setup a long-term capital reserve
fund that I can fund over time so that basically I can pay for ongoing maintenance, roofing,
painting, new fences and whatever to insure that everything remains as is going forward.
This is what the project looks like, This is the historic property it is about 115 years old is what
the best guess is. This is the new property built off of Yale in 2003. This was heard during the
Director’s Hearing and the application was approved. There were a couple of neighbors that
raised some objections that I wanted to address here.
Number one it is the permitted use. Actually there was a comment about this process by one of
the members of the public and a Commissioner. I would like to specifically say that it was not
our intent to find a loophole. I actually took this question to the Planning Department over two
years ago and asked them if this was a permitted process. After over a six month period they
came back and said that the Planning Department, the Planning Staff, the City Attorney had
reviewed it and said that it was permitted. I know since that time there have been three
additional reviews at least including the Director’s approval. So it was something that I reached
out to the City and basically said this is what I would like to do can I do it? I was given a go
ahead.
The other point is about increasing the availability of the housing. Two objections that came up
in the Director’s Hearing dealt with.landscaping and I wanted to address that. One was about
missing street trees. What I would like to do is show you what the original landscaping plan was
approved as. There were some planting areas around the new house. I put in some new trees on
the property and then added two new street trees. As this construction was nearing completion I
found that I really like the project the way it was coming out and wanted to spend some time
investing more in landscaping. So I hired a local landscape architect who came and said you
have it all wrong, you can’t put the trees there in part because the street parking planting area is
too narrow it is only a foot. So she said let’s put the five trees here so that we can spread it out.
Then what we need to do is put new lawns in then let’s refurbish the lawn in front of the old
house. Then we can put in your planting areas you had but let’s add some planting areas in the
back and add trees between the neighbor’s house for additional privacy. Let’s put something in
front of the new picket fence. Let’s put something of the old picket fence that matches then we
will add more in the backyard of the historic property and then fill out the front. So basically this
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is what the approved landscaping was, this is what the revised landscaping was. This is actually
what it looked like installed. This is in front of the new unit and this is a street view of down the
historic property.
Now about a year after I finished this I received an enforcement letter that there was a neighbor
that complained that I did not plant the two new street trees. I felt that I not only did
substantially the same but actually substantially more of the same with what my revised plan
was. I ended up coming to the City to discuss that with them. They said they are missing you
have to put them in. I re-contacted my landscape architect who had talked with the arborist
earlier who felt at that point it wasn’t the fight place to put it. By getting the contractor out there,
following Planning instructions that were setup for, a five foot versus a one-foot planting area,
requesting actual locations. Each time we dealt with the City, they are very busy Staff and it
would take a couple of months to basically get an answer or a solution. So this did take time to
resolve but we did end up putting in the new trees and that is where they are.
Now there was another complaint about an apricot tree that was on the original lot. On here you
can see in orange where the apricot tree was. When I bought the house 23 years ago the apricot
tree was mature. Over the last decade it was basically declining and it lost over 80 percent of its
canopy. I was required by the building permit conditions to remove dead or decaying plant and
tree material but then I was also asked to protect this tree during construction so it was a bit of a
catch-22. I called the City to ask for some guidance and they said the protection order would
cease after the certificate of occupancy was issued. It wasn’t a protected species so you could
remove it if you wanted to and that is what I did.
Another one that had come up was some comments dating back to the original permitting on the
second unit was a neighbor that had complained that I hadn’t maintained the home and actually
felt like it was in danger of falling down. This was after I bought it that I had gutted it and
completely restored it replacing all the plumbing, electrical, new fixtures, insulation, sheetrock
and so forth. I also seismically reinforced the home. The City asked for a building contractor to
inspect it who did. He found it in very good shape not only up to current code but surpassing
code in a number of ways. I had bolted it to the foundation, had structural panel, there is a
concrete entry and porch-way that he was surprised to find there were no cracks in it which is
hard for even younger homes rather than 115 years old. This is what the house looked like
before the cosmetic improvements in 2003 in winter. I say winter because in this one there are
sparse flowers because all of the rosebushes have been pruned back for the winter but this is
beforehand and this is what it looked like after. This is three-plus years after the cosmetic ~
improvements.
Now another comment that has come up and this is a neighboring land use. I would like to point
out where this property is located up in the northeast coruer. There it is located. My nearest
neighbors all the way around are commercial, commercial, commercial. I have lenders who have
refused to talk about loaning on this property because they didn’t think it was residential let
alone single family residential. Then around there there are eight other lots that have 13 units
and of that there are basically two condos at this point in time. So 25 percent of the lots
representing 31 percent of the units are condo basically within just 200 feet.
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As a summary, the proposed use is allowed. Again, I just rely on a number of conversations I
had with everybody involved in the Planning Department over a two year time period. It is
consistent with neighboring land use where there are other condos in that zone and other condos
very close to my property. I feel the landscaping and maintenance objections just dealt with an
incomplete set of facts. I am requesting that the Planning Commission confirm the Director’s
approval on this and would appreciate your consideration. Thank you for your time and I am
going to yield this to John Hanna,
Mr. John Hanna, Palo Alto: Thank you. I will be very brief because I want to yield the rest of
my time to Mr. Garrett. I think the point here is simply this. This project has been through the
mill for a year. It has been gone over, and over, and over. It has been approved. It has been
approved by Staff. It was approved by the City Attorney, the City Planner, and the Director and
the only thing now that has come up is we are saying well, we now have this need for this
Urgency Ordinance so maybe we shouldn’t let this get through even though it has already been
approved. The findings are there in the record. It does comply and it was found to comply and
so you can’t un-ring that bell. It would be totally unfair to hang this person up who has an
approved project because you want to go off and have the Council study this thing for another 45
days.
I would like to yield the rest of my time to Mr. Bill Garrett who has a card I believe on file.
Thank you.
Mr. Bill Garrett, Palo Alto: Thank you, Mr. Hanna. I am a partner of Mr. Hanna and we
represent Brian Wilson, as you know. The subject appeal before you tonight is pretty interesting
because you have a situation where you have several means of ruling in Mr. Wilson’s favor
denying the appeal and upholding your Director’s Decision. Those grounds range from deemed
approval under the Permit Streamlining Act because as Mr. Hanna stated earlier we disagree
respectfully with Mr. Larkin that indeed the Permit Streamlining Act does apply here and for that
matter so does the Subdivision Map Act provisions both with respect to deemed approval and
also deemed completeness of an application. Those are set fo~h in my letter brief to the
Commissioners.
I urge you to if you have any questions whatsoever about the grounds for finding deemed
completeness of the application 30 days after it was filed on October 3. That first deemed
complete date would be November 2. The first time that the City notified Mr. Wilson with
anything to do with his application status was 20 days too late on November 22. By operation of
law the application was deemed complete. Now that is important. The reason that is important
is because application deemed completeness triggers the running of the time within which under
both the Palo Alto Municipal Code Ordinances cited in our letter brief and also under the
Government Code provisions the Subdivision Map Act triggers the running of the time within
which the Director has to act. Both the Palo Alto Municipal Code Ordinance and the applicable
provisions of the Subdivision Map Act require that the preliminary parcel map be acted upon that
is approved, conditionally approved, or disapproved within 50 days. Fifty days after November
22 is roughly the middle to third week of December. By that time this preliminary parcel map
was deemed approved by operation of law. Now with all due respect to Mr. Larking I think that
he is incorrect with respect to saying that the provisions of the Subdivision Map Act relative to
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Tentative Maps don’t apply here to this preliminary parcel map. Why? Because the Palo Alto
Municipal Code Ordinance Section 21.04.030B defines preliminary parcel map. The definition
of preliminary parcel map is virtually identical to the definition of a tentative map found in
Government Code Section 66424.5. Now that is one way to obtained deemed approval of the
preliminary parcel map. There is another way it is set forth in my brief. It is under the Permit
Streamlining Act. That is a second wayto obtain deemed approval of this map. Still unique to
this particular matter is we had an actual approval. The map was actually approved, as we know
on August 4 of this year. Now I know that Mr. Larkin has urged that the Commissioners take the
position that the Municipal Code provisions don’t apply but they do. I think that Commissioner
Tuma is really on point when he says something about this just doesn’t feel right because really
is just targeted zoning against this one applicant where he has deemed completeness, he has a
couple of deemed approvals and ways to get there, he had many conversations with Staff where
it was reported to him as you know that the City Attorney, the Staff in the Planning Department
had run through this and it was all permitted. He complied with and does comply with all local
ordinances. So I think it is important that you realize that the applicable provisions of the
Subdivision Map Act prohibit the retroactive application of an ordinance such as is being
recommended to the City Council to an application which has been deemed complete to a project
and a map that has been deemed approved. It is not allowed under the Subdivision Map Act and
I urge you to help us amicably resolve this because nobody wants to waste time, money, effort
on this matter. I think that one of the Commissioner’s ideas for an exception was an excellent
one. Thank you very much.
Chair Holman: Thank you Mr. Garrett.
Mr. Larkin: I just want to jump in very quickly because I want to keep the discussion on track. I
think it is important that the Commission decide this on its merits. If the Commission thinks that
it is appropriate to grant an exception and wants to go back and reconsider the prior motion to
grant that exception that is perfectly appropriate.
My concern is on the Permit Streamlining Act a case came out within the last two months
reiterating what has been law for a long time that you can’t use the Permit Streamlining Act to
play gotcha and say that an application was deemed approved because the city failed to act. That
deprives the other neighboring properties and the appellant of their fight to due process and to
make a decision on that basis would be an error. So with respect to Mr. Garrett’s analysis of the
legislation is correct it is the application of it in this case isn’t and I think that you will find
yourself in trouble if that forms the basis of your decision. So make the decision on the merits of
the application not on the legal analysis.
Chair Holman: Thank you. The appellant, Ms. Graves, you have 15 minutes.
Ms. Pria Graves, Palo Alto: Good evening. First I want to thank the City Attorney for
reinforcing the fact that as a resident of the city I have the right to appeal this decision that was
taken in August. I have already stated both in my appeal letter and in my previous remarks most
of the ~easons that I think that the RMD zone is a good one with the fact that it supports the
existence of rental housing.
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1 My objection to this subdivision is not based on landscaping. It is not based on anticipated
2 changes to this house. It is based entirely on the fact that the meaning and intent of the ordinance
3 I believe is quite clear to an ordinary person reading it. I have been a resident in this exact zone
4 for over 20 years. I have read this section of the zoning code many, many, many times. I
5 understand now where this ambiguity arises but the purpose of the zone is a second dwelling unit
under the same ownership.
In less creative times this never would have arisen. The second unit would have been a rental
unit throughout its entire existence. I think that while I regret the fact that the applicant was
misdirected as I see it by City Staff that City Staff did not fully grasp the intent of this code and
believed that this proposed parcel map was a legal permitted use under the RMD zoning. I think
that was a mistake. I think regardless of the proposed Urgency Ordinance there are valid
grounds for overturning the approval of the application. I would like to encourage you to do
that. I think that really about sums it up.
I want you not to be thinking about this Urgency Ordinance as much as about the fact that in just
reading the purpose of that zoning. The owner of the property should have understood and
clearly did seem to understand when we went through the approval process for the second unit
that it was to remain under the same ownership. I supported his building the second unit because
of the fact that it increased the housing stock in an appropriate way. I supported his getting the
NP exceptions. So it is rather an awkward position for me now to be here in this rather
adversarial role appealing the decision. I just feel that it is, to quote one of the Commissioners,
"it just feels wrong." It feels wrong to me that something that was so clearly designed to foster
rental units as a second building on a property with an existing structure should be so used.
Thank you very much.
Chair Holman: Thank you. At this time are there any questions by the Commission for Staff or
the applicant before we hear from the public? Commissioner Keller.
Commissioner Keller: Thank you. I have a question. It was asserted by the applicant that there
are two parcels adjacent or nearby that have condos on them. Could you tell us something about
the circumstances of those if that is the case?
Mr. Turner: I have been here for about eight years and I am not aware of any condo conversion
project in the R-2 or RMD district. Perhaps those happened at an earlier time. We can certainly
look those up and report back to you.
Chair Holman: Commissioner Tuma.
Commissioner Tuma: A clarifying question about the recommendation from Staff on this. If the
Urgency Ordinance is not passed or if it is determined that this project would be exempted for
whatever reason from that ordinance is it your position or your recommendation that the
Director’s Decision not be overturned? I will quote from your memo here. It says, "If the
Urgency Ordinance is not adopted or if the project is exempted the Commission would then
consider appeal on its merits." It seems to be an implication that if it is not adopted it would be
considered on its merits. Here is what I was looking for. The project would not be consistent
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with the zoning ordinance if the proposed Urgency Ordinance is approved by City Council.
by implication if it is not approved by City Council would it be your position that it is in
compliance?
Is
Mr. C. Williams: I think looking at the Urgency Ordinance and the fact that it is trying to
implement the intent of the purpose statement we still would feel like it is not appropriate to
approve the project and it would still be appropriate to uphold the appeal but that is a very gray
area. So I think that sort of the judgment call that the Commission needs to make is is this intent
statement/purpose statement strong enough that it essentially says that we made the wrong call
with the other section of the code that we are sort of forced to deal with on the second dwelling
units. Not a real clear answer but I think that is where we were left sort with deciding in the first
place and we are still stuck on that.
Chair Holman: Commissioner Garber. Again, these should be clarifying questions, please.
Commissioner Garber: The wording here, ’second dwelling unit under the same ownership,’ I
guess I need some clarification again although you had explained it at the beginning as to why
the Planning Department made the approvals it did and how that is different. I am excluding
entirely the whole issue of urgency.
Mr. Larkin: Looking at our definition of a dwelling unit, a dwelling unit is a structure, and
because it is a multi-family district the only distinction between that and the R-2 is the multi-
family aspect of it. But because it is a structure we determined that the structure was under the
same ownership which was the association, the air space rights could be subdivided because the
state law and absent any other authority in our code the state law allows the subdivision of air
space rights.
Commissioner Garber: Are you saying the air space fights within, there are two houses here, you
are saying the subdivision between the two houses or subdivision within each one of the houses?
Mr. Larkin: If you look at the map that you have been provided it is probably clearer.
Commissioner Garber: The map talks about each individual house.
Mr. Larkin: Right, but it is the air space within those structures that would be subdivided, that
would be individually owned, private space. So the owners would own separately from wall-to-
wall, floor-to-ceiling but they wouldn’t own anything outside of that. Everything else would be
owned by the association, the two owners combined.
Commissioner Garber: Tell me again for what reasons it was approved originally, not originally
but the last time.
Mr. Larkin: That was it because our code doesn’t apply to the ....
Commissioner Garber: The bricks and mortar.
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Mr. Larkin: Right. It applies to the bricks and mortar not the air space and we don’t have any
restriction explicit in our code on the air space. Now I agree with the appellant that that was the.
intent and the advice was that if we didn’t want this to be happening we needed to make our code
explicit that it applied to air space and not just the dwelling unit.
Chair Holman: Commissioner Sandas.
Commissioner Sandas: So a clarifying question. Were you just saying that the state law trumps
our ordinance that was written in 1983 or because we have not specific ordinance pertaining to
-air space condominiums that you had to interpret? This was subject to the interpretation of Staff.
Mr. Larkin: Yes, it was subject to a lot of people’s interpretation and there was a lot of
discussion but we came down on the fact that since we didn’t specifically address it in our code
that we would default to what state law was.
Commissioner Sandas: So you are asking the Commission tonight for our interpretation. Am I
fight about that?
Mr. Larkin: Not necessarily your legal interpretation but we are asking you to look at the
application and the appeal on the merits and make a determination. We are asking you to
continue it but if the Commission is inclined to make a decision tonight to do it on the merits of
the application and appeal.
Chair Holman: Commissioner Keller.
Commissioner Keller: Suppose just for discussion sake that an owner of a property like this
were to create what is referred to I think as tenants-in-common where there was a property
owned by two families in its entirety but rather than a condo association kind of thing the
agreement between them was that each one occupied one house how would that be different? I
am just trying to understand.
Mr. Larkin: It wouldn’t be and I think it would be permitted.
Chair Holman: What I would like to do now seeing no other hands is go to the public. We have
one card from a member of the public, Joy Ogawa.
Ms. Joy Ogawa, Palo Alto: Good evening again. One thing I wanted to say I said before that I
didn’t get noticed and I live really close. So that is a big concern. I really should have gotten
notice of this. I spoke at the Director’s Heating so there is no excuse, no excuse. I also turned in
a written document at the Director’s Hearing and there is no record in the Staff Report of the
Director’s Hearing. There is no record of the document that I submitted at the Director’s
Heating. I am going to have to rehash a lot of what I said at the Director’s Hearing because there
is no record of it in this Staff Report, which is very inefficient.
The applicant talked a lot about the street trees and the apricot tree. i want to just point out that
they are ARB conditions of approval written down, these are the ARB conditions of approval
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specifying two street trees. Because in order to build that thing, the second unit, they had to
move the driveway and they cut down an existing street tree. So it was part of the conditions of
approval that they are supposed to replace that cut down street tree with two street trees. It was a
condition of approval. The apricot tree was also - I personally didn’t care about the apricot tree
but it was a condition of approval that it be kept, maintained and not cut down. So because of
the NP overlay in the zoning there was ARB review of this project. With the ARB approval
there were specified conditions of approval.
I lived through the construction and everything and then the house is occupied and there were no
street trees. I was like where are the street trees? Why is this occupied and no street trees?
Do I only have three minutes? I didn’t realize I only had three minutes.
So let me just say there were specified conditions of approval and that the Planner had not even
been contacted, did not know that this was being occupied, they didn’t go through the fight
process before issuing the occupancy. Also my understanding was that the arborist that kind of
gave the verbal okay on not having to do the street trees was the Public Works Arborist, Dave
Savage, and that the Planning Department Arborist had never been contacted. He didn’t know
about it.
The neighborhood preservation exceptions were really big. Not enough parking, having only
one covered space...
Let me just say the Staff’s original Director’s Approval to me indicates that there was a lack of
institutional memory as far as the intent of the ordinance. There was analysis of the code but the
intent of the ordinance wasn’t taken into account. At this point they have looked at the intent of
the ordinance and they kind of realized they should have taken that into account. So I would
thank Staff for rethinking that and I would urge you to uphold the appeal. Thank you.
Chair Holman: Thank you. I have a question for the City Attorney. Our procedures say that on
tonight’s agenda say that the applicant has three minutes for closing comments. I thought the
appellant did too but I don’t see it here. Am I remembering incorrectly? I thought I had
experience in the past that both the applicant and appellant did.
Mr. Larkin: Typically the party that speaks first gets three minutes for rebuttal. If the Chair
wanted to give three minutes to both parties it wouldn’t hurt but I don’t have the procedures in
front of me so you are looking at them and I am not.
Chair Holman: I am remembering them differently than what is here. So the applicant has three
minutes and I am going to trust my memory that the appellant will have three minutes as well
and we will go by that I guess. So who would like to speak for the applicant if you want your
three minutes? Do you feel you need your three minutes?
Mr. Wilson: Yes, I’ll take that. Really there are just a couple of different topics .and they all
seem to come back about this ordinary person, how someone would read this code and how they
would interpret it. I have had a lot of people over the years not call me ordinary but in this sense
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I feel like I looked at with some of the experiences I had. About 30 years ago I bought my first
home and that is what I called it and it was a condominium. It was from the developer and I
happen to take over as president of the association. So I ran that association. I read all of the
documents. I understood the different forms of ownership. So when I read this ’under same
ownership’ I knew what it meant from a condominium that the condominium association owns
the lot, they own the structures and people own what is inside. That way the condominium takes
care of long term maintenance, the painting, landscaping, roofing and things like that. So when I
saw it it meant something different maybe than other ordinary people would read it. Again, that
is why I went and talked to the City. Remember this was two years ago when I went and asked
them is this something that works. During that time I went back and back and back and they said
they were still looking at it. After over six months they came back and said yes. That is when I
started the process. I went back to them again and again and again. So I think from an ordinary
person perspective it is reasonable to reach out and say help me with clarification and when you
get that clarification to be able to act on it.
I do understand the items that you are talking about as far as this Urgency Ordinance. I have
heard different views of one potential way of handling this and that is basically looking at this
and treating it as something that had started prior to the process and basically being exempt from
the Urgency Ordinance. I feel like I have owned this property for 23 years. I feel like I have
been a strong steward of that property. I feel like I have reached out to the City and to the
neighborhood to take good care of it and I feel I did a good job in terms of this application, and I
would like to get some recognition and consideration for that if it please the Commission.
Chair Holman: Thank you. As appellant does Ms. Graves want to speak for three minutes?
Ms. Graves: Thank you. I will try and keep it very short. I really appreciate you taking the time
to listen to this. I really do appreciate Staff’s rethinking their decision of August 4. I hope that
you will decide either to continue this until after the Urgency Ordinance has gone to Council or
will decide to uphold my appeal. Thank you so much.
Chair Holman: Thank you. Commissioner Lippert.
Vice-Chair Lippert: Well, the evening is late and I just want to give a couple of points of
thought on this. I look at this site and while we just made a recommendation on an Urgency
Ordinance I am very much in support of the Director’s Decision here. This is a very unique lot.
It is a very unique situation. I don’t think necessarily that the Urgency Ordinance would apply to
this particular lot for a couple of different reasons.
Number one, we are not talking about air space within one building. We actually have two
distinct buildings here that are being defined. Furthermore, these buildings are located on a site
where they are both accessed by different streets possibly. You don’t need to traverse or go
through one person’s space in order to get to the other person’s space, therefore, they actually
can operate almost as distinct units here. So off of Yale Street unit one is accessed very easily.
In fact there is a garage there adjacent to it. Then unit two can be accessed from both Yale Street
and California Avenue.
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So with regard to maintenance and all sorts of problems that might crop up the biggest one is
going to be the landscaping. Now I am going to tell you something, looking at this I realized all
of a sudden that I was on the Architectural Review Board that reviewed this project. We gave it
very high marks at the time that we reviewed it. The one area though that it did fall a little short
is in the area of the landscaping. So as part of my thoughts for this I think that I would uphold
the Director’s Decision but definitely all of the conditions of approval from the Architectural
Review Board need to be met here.
Chair Holman: I overlooked something too. I think it probably is the hour. This is quasi-
judicial and I was wondering if anybody had disclosures to make. I do.
Vice-Chair Lippert: I just made mine.
Chair Holman: Some time ago before there was ever any thought or any realization that this
might come to the Planning Commission I had conversation with the appellant. I have no
information that isn’t available in public record and it was innocent but nevertheless it was a
conversation. So having disclosed that, Commissioner Tuma.
Commissioner Tuma: I come to the same conclusion that Commissioner Lippert does but from a
completely different path. Most of the Commissioners other than Arthur and myself have spent a
considerable amount of time in the past working on Zoning Ordinance Update and we are going
to continue to work on that in the coming months. We have a Comprehensive Plan Update
coming up and we are going to spend a lot of time with that. We have zoning regulations. We
have a whole body of direction out there and it is direction to impart the development community
as to what they should or shouldn’t be doing, what the allowed or permitted uses are. I think as
we set these items in place we are trying to encourage certain types of development and
encourage certain types of actions. So fundamentally I have a problem what I consider to be a
very late hour, no pun intended, an Urgency Ordinance being put forward to essentially derail a
project that a lot of effort and time on a lot of people’s part had been put into it. I think from a
policy perspective, and I realize the procedural posture is such that there opportunity for appeal,
etc. but I think we are sending the wrong message to the development community at large which
is you can do all the work, get all the way down to the end, and we don’t really like the way
something reads so we will change it. I just think that that’s wrong. So I think my view is that
the Urgency Ordinance should not apply to this project because I just fundamentally think that it
is the wrong thing to do, it is the wrong message to send to the development community. So I
don’t know procedurally whether we are going to vote first on whether we are going to go
forward with deciding this on the merits or whether we are going to recommend to Council that
they not apply the ordinance to it. I just don’t know procedurally how we go about that tonight.
Chair Holman: We will come to that shortly I am sure. Commissioner Keller.
Commissioner Keller: First of all I am not a lawyer but I work with lawyers as an expert witness
on patent cases on occasion. One of the things that I understand about interpreting patents is that
you interpret as one of ordinary skill and you try to interpret it in a way that it is as much as
possible is meaningful. So. with that as the basis for how I read these things the ordinance in
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question says that to allow a second dwelling unit under the same ownership as the initial
dwelling unit. So what I am trying to understand is when would that not be the case?
Mr. Larkin: You couldn’t further subdivide the property. There are other ways to do common
interest developments where a property owner owns the physical structure you couldn’t do that
on this property. Two different property owners can’t own the physical structure. Different
property owners, at least under our interpretation of the ordinance, can own air space because we
define the unit as the structure. If we defined the unit differently then that would change things.
But because of the way we define it is at a minimum ambiguous and the determination that Staff
made at the initial level was that it was allowed but certainly not was conceived of in 1983.
Commissioner Keller: So what you are saying is that you couldn’t take the property and
subdivide it but on the other hand aren’t there other regulations about minimum lot size that
prevent the lot from being subdivided?
Mr. Larkin: You couldn’t do a common interest development that resulted in a sale of the
physical structure. In a common interest development you just have to have common area so
you could have individual owners of the structures, divide the lot fight in half and have
individual owners of the structures, and then just create common areas to allow access to the two
structures. That is not what the applicant is proposing because if the applicant had come forward
with that project we would have said no.
Commissioner Keller: It seems to me that the intent of this ordinance as it was passed in 1983
was to require that there be a single ownership of this entire parcel.
Mr. Larkin: I don’t disagree that that was the intent in 1983. It is just not what the regulations
say and that’s why we came to you with the Urgency Ordinance to clarify that and to fix that
going forward.
Commissioner Keller: One last question. It was stated by the applicant that there are several
condos nearby and that Staff was not aware of that circumstance. I would be much more
favorably disposed to approve this condo-ization, if that is a word, if in fact the two nearby
parcels were condos. So I would be in favor of a continuation at least until we were able to
clarify that distinction. That would be in large part [dispositive] from my point of view.
Chair Holman: Commissioner Burt.
MOTION
Commissioner Burt: First I would like to commend the appellant for bringing this issue to the
City. As a result of the appeal we have this proposal for an emergency ordinance going to the
City Council and this issue will have the opportunity to have a full and complete hearing on the
merits of what we should do as a policy going forward. I think that that is a significant
accomplishment and I think it was necessary and appropriate.
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So having said that I think in regards to this particular project I would like to place a motion on
the table. It doesn’t preclude other discussion but perhaps it will help us move forward at this
late hour. So I would move that the Commission recommend that the appeal be denied and the
project be allowed to proceed consistent with the original recommendation of the Director’s
Hearing.
SECOND
Vice-Chair Lippert: Second.
Chair Holman: I think I heard Commissioner Lippert first. Would you care to speak to your
motion, Commissioner Burt?
Commissioner Burt: Yes. Ideally we would have had an unambiguous ordinance that would be
consistent with the Comp Plan and with the 1983 ordinance but that just doesn’t appear to have
been the case. Staff went through and they did diligent consideration and it was initially their
best interpretation that per our existing ordinance this would be allowed. I think that as has been
stated it is ambiguous and gray enough that we don’t have clarity. We may have clarity after we
get a revision to the ordinance or presumably we will have clarity one way or another after we
get a permanent ordinance. So my feeling is that given that the applicant was given this direction
over an extended period of time, as Commissioner Tuma had stated, it is really out of fairness it
would be appropriate to uphold the original Director’s Hearing. That is the primary reason. We
don’t have something that is clear. We don’t have a sound basis to uphold the appeal and that we
have the greater good that is going to occur here which is that we will address this and the
Council will address this in a comprehensive way that is much more significant than what
happens to this particular property.
The final thought that had escaped me is that I just can’t find any overriding harm that would
occur from allowing this. to go forward. Yes, we have a long-term issues but this going forward
is not going to in my mind create any irreparable harm. Those are the reasons that I made the .
motion that I did.
Chair Holman: Commissioner Lippert do you care to speak to your second?
Vice-Chair Lippert: Yes. Actually I spoke to my second as the first comments that I had made.
I just want to say that I am in agreement with Commissioner Tuma and Commissioner Burt in
terms of their comments as well. I just wanted to ask Commissioner Burt if he would entertain a
friendly amendment which is simply that before this is approved by Council, if it is approved by
Council, that in fact the all of the Architectural Review Board’s findings and conditions are
applied to this site before anything goes into effect.
Commissioner Burt: I appreciate the principle of that. After hearing this explanation of the
particular changes that were done to the landscaping I guess I don’t feel qualified to make the
judgment of whether those final details on the street trees are better or worse for the project as a
whole. I would be receptive to deferring to Staff to assure substantial conformance with the
ARB.
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Vice-Chair Lippert: That is agreeable or if they can’t make that determination then to return it to
the ARB.
Commissioner Burt: Okay.
Chair Holman: Commissioner Garber.
Commissioner Garber: To that comment I agree entirely and Commissioner Burt has hit all of
my topics so I don’t think I need to repeat them but I am in agreement with them and will vote
for the motion that is on the table.
Chair Holman: Commissioner Sandas, do you have comments?
Commissioner Sandas: Yes. I can’t support the motion. As I have inarticulately tried to explain
before I am not a fan of the air space condo as individual distinct dwellings on one parcel. I once
again would bet that I am the only person in this room who has had actual experience in an air
space condominium of three houses on a single parcel of land where each was a very distinct
dwelling unit. There are issues, and I can see the lawyers in the audience are chuckling, but this
kind of thing is rife with problems. I have lived through problems that have to do with tearing up
of driveways, of somebody letting their grass grow too long, somebody not taking care of their
house, etc., etc. There have been times when legal involvement has had to take place. So I think
that there are problems with this and I am not a fan of them. Having said that, everybody has
rights and they can get into whatever they want to get into. However I believe that the intent of
the 1983 ordinance was sincerely misinterpreted by our faithful Staff. I would rather that we had
kept within the intent.
Chair Holman: Commissioner Keller.
Commissioner Keller: I have two questions or requests. One is I assume that regardless of what
happens tonight that this will go in front of the City Council, is that correct?
Mr. C. Williams: Yes, this particular item will be on their Consent Calendar. Isn’t that the way
it works?
Mr. Larkin: This is a parcel map and I believe it does on the Consent but I am not entirely
certain.
Mr. C. Williams: It will go before them one way or another it will either be on a Consent
Calendar and they can pull it off or it will be a public heating before them.
Commissioner Keller: Thank you. The second question or comment or request ifI may is when
this does go before the City Council either in a Consent or discussed agendized item that
definitively a study is done of the units that the applicant has claimed are condos and
determination be given to the City Council as part of your report to them that indicates whether
or not that is the case.
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Mr. C. Williams: I think within reasonable bounds that is reasonable. You mean the ones
immediately adjacent to ....
Commissioner Keller: They are not immediately adjacent I believe they are on the same block.
They are the ones that the applicant had on his map that was shown on the screen. I believe they
are in the next block over, not Yale but the next block, but adjacent to Williams.
Mr. C. Williams: We will look at that information before it goes to Council for their
information.
Commissioner Keller: Thank you.
MOTION PASSED (4-3-0-0, Commissioners Burt, Tuma, Lippert, Garber in favor and
Commissioners Sandas, Holman and Keller opposed)
Chair Holman: Okay. Well, I have sympathetic thoughts toward the comments of
Commissioner Tuma earlier about the fairness. By way of disclosure there have been two other
items that have come to the Commission that I have voted against which were changing the
roles, changing our ordinances after the fact because there were lawsuits pending. I have voted
against both of those changes to code because I felt like it was unfair to change the roles after the
fact in order to try to seek a positive judgment for ruling from a judge.
This occasion there are all sides to the fairness issue. There is more than one RMD comer lot I
feel pretty confident in saying that. I think one other was even shown to us. So would we then
be granting special privilege to this one parcel if we let this project go forward? If the City
Council determines that and confirms that the intention was not to allow condominiumization
then we will have indeed granted special privilege to this one parcel. So there is a fairness issue.
There is a fairness issue about going this far down a process without learning until late in the
process that well, perhaps we did misinterpret the intention of the code. I think Staff has to be
greatly complimented on their willingness to bring that forward and bring that to the
Commission and ultimately to the Council to make a determination.
To me and I am not an attorney but to me I think the intention of the code is pretty obvious.
Now I think Commissioner Burt in his recommendation for the Urgency Ordinance to go
forward said do we.want to make a Comp Plan change or do we want to make a code change
then that is a different subject. To me it seems like the man on the street kind of interpretation of
this would be that it would not allow condominiumization. So I think I will not be supporting
the motion. I think it is fair that this project, this appeal, go to the Council for their
determination along with their determination about the Urgency Ordinance to see what the
Council’s interpretation is and I do think that is a fair thing to do. I respect very much your
comments, Commissioner Tuma, I struggle with the fairness issue all the time but I think that in
this case this is the fairest way to deal with this.
So if there are no other comments I will call the vote for the motion to uphold the Director’s
determination and deny the appeal. All those in favor? (ayes) That is four Commissioners. All
Page 16
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those opposed? (nays) Three opposed. So we have Commissioner Tuma, Commissioner
Garber, Commissioner Lippert and Commissioner Burt voting aye. Commissioner Keller,
Commissioner Sandas and Commissioner Holman voting nay.
Thank you to the applicant and the appellant for bringing this matter forward. We will close that
matter at this time.
Mr. Larkin: I hate to bring this up at 12:15 but to make sure there is some clarity when this goes
to Council on item number two if either the maker or the seconder of the motion wanted to do a
very brief motion for reconsideration to change the motion to create the exemption that you are
asking for that would make it more clear when it goes to Council that you are recommending to
exempt this project from the previously passed Urgency Ordinance in full. So Pat if you wanted
to do a reconsideration to clarify that exemption.
Chair Holman: I think Commissioner Garber has a question.
Commissioner Garber: We would only need the exception if the Council were to take action on
the Urgency exception first.
Mr. Larkin: The exception was for applications in the pipeline as of this date and there is only
one so it would be saved.
Mr. C. Williams: Yes, you are right. If and that is what we anticipate would likely happen is the
Council would act on the Urgency Ordinance. They probably will be on the same agenda. So it
is possible that they would act on the Urgency Ordinance before acting on the project.
MOTION
Vice-Chair Lippert: I will move for reconsideration and that it be exempt from the Urgency
Ordinance.
SECOND
Commissioner Burr: I will second that.
Chair Holman: So I have a question.
Mr. Larkin: I think you want Pat to make that motion because he was the maker of the motion.
MOTION
Commissioner Butt: Then I will move that it be exempted.
SECOND
Vice-Chair Lippert: I will second that.
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Chair Holman: Do you need to speak to your motion, Pat?
Commissioner Burt: No.
Chair Holman: Commissioner Lippert?
Vice-Chair Lippert: No.
MOTION PASSED (4-3-0-0, Commissioners Burt, Tuma, Lippert, Garber in favor and
Commissioners Sandas, Holman and Keller opposed)
Chair Holman: Okay. That is a separate motion so we need to vote on that motion. So all those
in favor of that motion say aye, please. (ayes) Those opposed? (nays) So passed on a vote of
four to three with Commissioners Tuma, Garber, Lippert and Burt in favor. Those opposed were
Commissioners Keller, Sandas and Holman.
Page 18
JOHN PAUL HANNA
A PROFESSIONAL CORPORATION
DAVID M. VAN ATTA
A PROFESSIONAL CORPORATION
WILLIAM R. GARRETT
A PROFESSIONAL CORPORATION
HANNA & VAN ATTA
ATTORNEYS AT LAW
A PARTNERSHIP OF PROFESSIONAL CORPORATIONS
525 UNWERSITY AVENUE, SUITE 705
PALO ALTO, CALIFORNIA 94301-1921
www.hanvan.com
September 27, 2006
Attachment E
TELEPHONE
(650) 321-5700
FACSIMILE
(650) 321-5639
HAND DELIVERED
City of Palo Alto
Planning Commission
250 Hamilton Avenue
Palo Alto, CA 94301
610 California Avenue [05PLN-003581|: Appeal of the Director’s
decision to approve a Parcel Map requested by Brian Lee Wilson for
condominium purposes
Dear Planning Commissioners:
We represent Brian Lee Wilson concerning the above-referenced application. The appeal
by Ms. Pria Graves of the Director’s decision approving the proposed project is item number 3
on the September 27, 2006 Agenda. This letter in opposition to the appeal is intended to set
forth both the facts and the law applicable to your determination of the matter. It is Mr.
Wilson’s sincere hope that each of you will recognize how ill-advised it would be to consider the
appeal and reverse the Director’s decision.
Each of you has no doubt read the Staff Report concerning this matter. In the Staff
Report, without identifying who made such a determination and despite the fact.Mr. Wilson was
consistently, repeatedly told by planning department staff that his project would comply with all
applicable zoning ordinances, staff is now taking the erroneous position that "the creation of air-
space condominium lots would not be consistent with the purpose of the RMD district..." The
only way Staff’s statement is true is ifa proposed urgency ordinance prohibiting subdivision for
condominium purposes in areas zoned R-2 or RMD is passed by the City Council. Then, and
only then, would the Proj ect no longer be consistent with the purpose of the RMD district
because that purpose would have been completely revised and expanded to prohibit
condominium conversion in RMD zones. In this respect, one of the major purposes of the RMD
district under Section 18.10.010(c)--to increase the variety of housing opportunities within the
community--will have been eviscerated. One type of distinct housing opportunity,
condominium ownership, will have been severely restricted.
The law--both the Subdivision Map Act and applicable provisions of the Palo
Alto Municipal Code~oes not support appellant’s position, especially where, as here, the Map
City of Palo Alto Planning Commissi~,.
September 27, 2006
Page 2 of 7
has received actual approval and, as will be explained below, it has been deemed approved by
operation of law. Moreover, the hearing of the appeal by the planning commission conflicts with
the Subdivision Map Act as the heating would impermissibly extend the mandatory timing
requirements of Government Code section 66452.5.
SUMMARY OF FACTS
The subject property (the "Property") is located at 610 California Avenue, Palo Alto,
California, and consists of two single-family residential structures plus a detached garage on the
5,750 square foot lot. The residence at the corner of California Avenue and Yale Street is
designated as Category 2 on the City’s Historic Preservation Inventory while the second unit,
which faces Yale Street, was constructed in 2003. The Property is zoned RMD(NP)
The application and preliminary parcel map (as revised and resubmitted, the "Map") for
his 2-unit condominium conversion project (the "Project!’) was submitted on October 3, 2005.
[Note: The undated Staff Report states the application for a preliminary parcel map was
submitted on October 12, 2005 but that is incorrect.] There was no notification by the city as to
application completeness until November 21, 2005, when Mr. Wilson contacted planning
department staff to inquire about the status of his application. On November 22, 2005, Mr.
Wilson was notified that the application was incomplete based on technical corrections to the
Map which he was told were required prior to a public heating. The Map was revised and
resubmitted on May 19, 2006.
The application was processed as a minor subdivision as it sought to create fewer than
five condo units. Palo Alto’s definition of"preliminary parcel map" tracks very closely the
definition of a tentative map set forth in the Subdivision Map Act. (See Palo Alto Municipal
Code section 21.04.030(b)(29) and Government Code section 66424.5.) The timing
requirements under the Subdivision Map Act for processing, acting upon and deemed approval
of tentative maps thus apply equally to preliminary parcel maps.
The Planning Department’s Mr. Steven Tumer confirmed the application was complete
on June 27, 2006. A Director’s Hearing was held on July 20, 2006 at which comments from the
public were accepted. On August 4, 2006, Amy French, Manager of Current Planning, notified
Mr. Wilson in writing that the,Map is approved (the "Director’s Approval").
On August 14, 2006, an appeal of the Director’s Approval was filed with the city clerk
by Ms. Pria Graves.
Both the Director’s Approval and the undated Staff Report for the appeal hearing (the
"Staff Report") make clear that in all respects, the Project complies with the Subdivision Map
Act and all applicable local ordinances, specifically including Palo Alto’s applicable zoning
ordinance for RMD districts. That ordinance, Palo Alto Municipal Code section 18.10.010(c),
states the following as the purpose of the RMD district:
...to allow a second dwelling unit under the same ownership as the initial
dwelling unit on appropriate sites in areas designated for multi-family
City of Palo Alto Planning Commiss~,,..
September 27, 2006
Page 3 of 7
use by the Palo Alto Comprehensive Plan. The RMD district is intended
to minimize incentives to replace existing single-family dwellings,
maintain existing neighborhood character and increase the variety of
housing opportunities available within the community. The maximum
density in this zone shall not exceed seventeen dwelling units per acre.
DEEMED COMPLETENESS OF APPLICATION
There are several reasons an appeal either does not lie or cannot be heard in this matter.
These arguments are based on the following Palo Alto Municipal Code and Government Code
provisions. In a nutshell, once the application was deemed complete, the Map became deemed
approved long ago by operation of law. It was also actually approved, and Ms. Graves’ appeal is
both untimely and without merit.
Palo Alto Municipal Code section 21.12.010 provides that except as otherwise required,
all requirements for tentative maps set forth in Chapter 21 of the Palo Alto Municipal Code shall
be applicable to preliminary parcel maps. Section 21.12.080 concerns the date of filing of
tentative maps and, therefore, arguably applies to preliminary parcel maps.
Section 21.12.080 requires the director of planning to give notice to the applicant within
thirty (30) days of receipt of the tentative map indicating pursuant to Government Code section
65943 whether the application is complete. Section 21.12.080 is consistent with Government
Code section 65943, which provides that the effect of failing to timely determine application
completeness is that the application is deemed complete. (Government Code section 66943(a)
and (b).)
Here, based on the October 3, 2005 filing date, the 30-day period for determining
application completeness expired on November 2, 2005, twenty (20) days before the city sent its
notice of incompleteness. The application was, therefore, deemed complete by operation of law
as of November 2, 2006 ("Deemed Complete #1 Date").
If the resubmittal date of May 19, 2006 is used, the application was deemed complete on
June 19, 2006 (June 18th being a Sunday) ("Deemed Complete #2 Date").
In fact, Mr. Wilson was not notified that his application was complete until June 27,
2006, eight (8) days after such 30-day period had expired.
DEEMED APPROVAL OF MAP
Such deemed completeness of the application starts the clock running with respect to the
time within which the director of planning must act on the Map. Pursuant to Palo Alto
Municipal Code section 21.12.090(e) governing action on preliminary parcel maps, the director
of planning was required to approve, conditionally approve or deny a preliminary parcel map
within fifty (50) days of its filing, unless extended by the mutual consent of the director of
planning and the applicant. This provision of the Palo Alto Municipal Code is consistent with
Government Code section 66452. l(b), which requires an advisory agency authorized by local
City of Palo Alto Planning Commissio.
September 27, 2006
Page 4 of 7
ordinance to approve, conditionally approve or disapprove the tentative map (in this case, the
advisory agency for purposes of the Subdivision Map Act is the director ofplarming) to do so
within 50 days of the filing thereof with its clerk and report its action to the subdivider. If the
advisory agency does not timely act on the tentative map, "the tentative map, as filed, shall be
deemed approved, insofar as it complies with other applicable requirements of [the Subdivision
Map Act] and any local ordinances, and it shall be the duty of the clerk of the legislative body to
certify or state his or her approval." (Government Code section 66452.4(a).)
Here, the Map was actually approved by the director of planning on August 4, 2006
("Actual Approval Date"), which date is within the applicable 50-day period regardless of
whether such period commenced on the application deemed complete date of June 19, 2006 or
the later date of June 27, 2006.
Based on the Deemed Complete #1 date of November 2, 2005, however, the Map was
deemed approved by operation of law much earlier than the Actual Approval Date. The Map, as
originally filed, was deemed approved pursuant to Government Code section 66452.4(a) as of
December 22, 2005 ("Deemed Approval Date #1), which date is 50 days after Deemed
Complete Date #1. The fact the Map was later resubmitted is not determinative here; it has been
held that where the city did not timely determine application completeness, resubmission of an
application for a development permit does not trigger a new 30-day period within which the city
could determine the completeness of the application. (Orsi v. City Council of the City of Salinas
(1990) 219 Cal. App. 3d 1576.)
In OrsL the court found that the city’s determination that the application was incomplete
came eleven (11) days after the 30-day period for determining application completeness had
expired and therefore the project was deemed approved by operation of law pursuant to
Government Code section 65943. The developers’ resubmittal of their application, which
ordinarily would trigger a new 30-day period for determining application completeness, was of
no consequence because the city had not timely determined that the original application was
incomplete. (ld, at p. 1585-1586.) The city’s November 22, 2006 notice of application
incompleteness came twenty-two days late.
There is yet another deemed approval date applicable here. Government Code section
65950(a)(4) mandates that any public agency that is the lead agency for a development project
shall approve or disapprove the project within sixty (60) days of the lead agency’s determination
that the project is exempt from CEQA and Section 65952.1 makes this 60-day period applicable
to the approval or disapproval of tentative maps.
Here, the Proj ect is categorically exempt from CEQA under Guidelines Section 15305-
Minor Alterations in Land Use, which categorical exemption was applicable the day the
application was first filed. Therefore, the city, as the lead agency, was required to approve or
disapprove the Project no later than 60 days from November 2, 2005 (that being the latest date
any determination of exemption should have been made)--i.e., by January 3, 2006 (January ist
being a Sunday and January 2na a holiday).
City of Palo Alto Planning Commisslt,l,
September 27, 2006
Page 5 of 7
Pursuant to Section 65956(b), the consequence of the lead agency failing to approve or
disapprove within the 60-day period is a deemed approval of the permit application for the
development project; provided, however, that the public notice required by law has been given.
Here, the developer did not give such notice but the city did, prior to the Director’s Hearing on
July 20, 2006. Public comments were taken at the hearing and considered by staff as reflected in
both the Director’s Approval and the StaffReport. As of July 20, 2006 ("Deemed Approval
Date #2"), then, the application for the Project was deemed approved by operation of law.
UNTIMELINESS OF APPEAL HEARING
Government Code section 66452.5(d) governs an appeal from action taken by an
advisory agency. Specifically, an appeal by an interested person such as Ms. Graves must be to
the governing body (the city council) and must be heard by the governing body within thirty (30)
days of the date of filing of the appeal. Here, the appeal was filed on August 14, 2006 and must
have been heard by the city council--not the planning commission--no later than September 13,
2006.
Palo Alto Municipal Code section 21.36.010 conflicts with Government Code section
66452.5 in that the local ordinance purports to authorize the planning commission, acting as an
advisory appeal board, to review the appeal and make its recommendation to the city council.
Municipal Code sections 21.36.020 and 21.36.030 also conflict with Government Code section
66452.5 by effectively extending the 30-day period within which the governing body must hear
the appeal pursuant to Government Code section 66452.5 to seventy (70) days: Under Palo Alto
Municipal Code section 21.36.020, the planning commission must hold the hearing and consider
the appeal within thirty (30) days after the filing of the notice of appeal and then make its
recommendation to the city council within 10 days after the conclusion of the hearing; under
Section 21.36.030, the city council must set the matter for hearing within another thirty (30) days
of receiving the planning commission’s recommendation.
Regardless of these impermissible conflicts with state law, however, it is clear that the
timing requirements established by Government Code section 66452.5, as well as those set forth
in Palo Alto’s statutory scheme, have not been met: The appeal hearing by the city council
required under Government Code section 66452.5(d) did not take place within the required 30-
day period; nor did the hearing by the planning commission under Palo Alto Municipal Code
section 21.36.010 take place by September 13, 2006. There was never any extension of these
mandatory time limits by Mr. Wilson. In either case, the consequence of failing to timely hear
the appeal is that the Director’s Approval is deemed affirmed and the Map is deemed approved.
(Government Code section 66452.5(c) and (d).) The city clerk must certify or state that
approval. (Government Code section 66452.5(c).)
SUBSEOUENTLY ENACTED ORDINANCE INAPPLICABLE TO APPROVED MAP
Both the Director’s Approval and the Staff Report establish that the Project approval
was based on the fact the Project does comply with the Subdivision Map Act and all applicable
local ordinances. The Staff Report, prepared for purposes of this appeal, specifically states the
Project complies with the current zoning ordinance, Municipal Code section 18.10.010(c). In
City of Palo Alto Planning Commissx~,,l
September 27, 2006
Page 6 of 7
fact, the only way the Project would not be in compliance is if the applicable zoning ordinance
were to be changed and made applicable to the Project (which has already received actual
approval and is deemed approved by operation of law).
Fortunately for those who appreciate clarity and a lack of arbitrariness in government
action, the Subdivision Map Act prohibits the sort of shenanigans which prompted the hearing of
this appeal to be placed on the agenda after the hearing on a proposed urgency ordinance
changing the purpose of the applicable zoning ordinance In this case, the Subdivision Map
Act does not allow a zoning ordinance to be changed and then applied retroactivel~r to an
approved tentative map. Specifically, Government Code section 66474.2(a) states as follows:
Except as otherwise provided in subdivision (b) or (c), in
determining whether to approve or disapprove an application for a
tentative map, the local agency shall apply only those ordinances,
policies and standards in effect at the date the local agency has
determined that the application is complete pursuant to Section 65943 of
the Government Code.
Only if the local agency initiates procedures to amend zoning or subdivision ordinances before
the complete application is received may the ordinances enacted as a result of those proceedings
be applied to the approval of the tentative map. (Government Code section 66474.2(b);
Youngblood v. Board of Supervisors (1978) 22 Cal. 3d 644; Hanna & Van Atta On California
Common lnterest Developments, sections 12:91 and 12:108.)
SUBSTANCE OF APPEAL
As to the points raised in the appeal, the facts show appellant’s arguments are without
merit. Appellant tries to make the point that the Director’s Approval makes a distinction
between ownership of airspace rights and ownership of the underlying parcel; yet, the applicable
zoning ordinance for the RMD zone references dwelling unit ownership. Appellant then states
on page 1 of her letter that, "it is impossible to see how ownership of an occupied group of
rooms can be separated from the ownership of the right of occupancy," and she goes on to note
that other sections of the zoning code respecting medium and high-density areas are silent as .to
ownership and that the authors (not identified by appellant) of the RMD zoning ordinance
intended to distinguish these zones (RMD and R-2) from the higher density areas where
condominiums are common. Appell.__a_~t__’~s_p.o_!.n.t_, l~0~.eyy~:_.~.._b~f!~d._b.y_~he stated purpose of
Municipal Code section 18.10.010(c), which is to allow a second dwelling unit under the same
~~.’°’l~ii~i;~ is precisely what the condominium form of ownership accomplishes:
The lot and all but the airspace rights would remain under common ownership. As noted in the
Staff Report, a commonly owned parcel qualifies as a single lot of record.
Further, appellant completely ignores the fact that the existing character of the
n~h~borhood will not be affected bzt_h_~9.~,_n~,r.sion ~__d~at,~h~ygy~y~ of housing opportunities
fa~{i~-~d rental dwelligg~its.
City of Palo Alto Planning Commission
September 27, 2006
Page 7 of 7
On page 2 of the appeal, appellant’s second point appears to reflect a concern for
preservation and repair of the residences. However, appellant completely ignores the fact that
~’s control over any remodel is in no w~z~d.i,~m_i~i~sh_e__d_h,y_~a!!_o.~wi~n_g conversion. Ful;ther,
CC&R’s typically contain additional protections regarding,.~_h~ar~.g_e~_ or modifications to the
l~riS~ft-~i5~H~i:~~’ too, app-~ll~ii~-~ argument fails to ~ise any legitimate issue:.-
F~.,~t~.~g~3Jg~p!~’~.e.~_~y~.- l~l~0Lis~.that~thexenta!,~tock ~ill be decreased as a
result of the conversion. This simply is not necessarily true as many condominium owners
cl~6g~ t~d~f ~fif ~it~ffi~’~" units.
Appellant is simply misstating the purpose of the RMD zone. If the purpose of Section
18.10.010(c) was to prohibit condominiums then the city council should have said so. The city
council could have chosen to prohibit condominium conversions in RMD zones by adopting an
ordinance specifically designed for that purpose--which purpose would be completely different
from the expressed purpose of Palo Alto Municipal Code section 18.10.010(c).
For all of the foregoing reasons, Brian Lee Wilson submits the pending appeal must be
denied and the Director’s Approval upheld.
Very truly yours,
John Paul Hanna
William R. Garrett
WRG:ycg
cc: Mr. Brian Lee Wilson
Mr. Frank Benest, City Manager,
Donald Larkin, Senior Deputy City Attorney
Steve Emslie, Director, Planning & Community Environment Dept.
T:\WPW1N60\CLIENTS\WILSON, BRIAN\Planning Commsn 09.27.06 ltr (Appeal).doc
Attachment F
TO:Steve Emslie, Director, Planning and Community Environment
City of Palo Alto, 250 Hamilton Avenue, Palo Alto, CA 94301
FROM: Joy Ogawa, 2305 Yale Street, Palo Alto, CA 94306
DATE: July 20, 2006
RE: 610 California Avenue [05PLN-00358]
On December 11, 2000, a Neighborhood Preservation Exception was approved by then
Current Planning Manager John Lusardi for 610 California Avenue under the provisions
of the Neighborhood Preservation (NP) Combining District regulations, Chapter 18.30 of
the Palo Alto Municipal Code (PAMC). The Neighborhood Preservation Exception that
was approved allowed for the location and construction of an accessory garage structure,
1 ’4" from the rear property line, where a 20-foot setback is normally required, a street
side yard encroachment of 4’4", where a 16’ setback is required, and an exception to
provide one legal parking space, where three parking spaces are normally required. Mr.
Brian Lee Wilson was, and still is, the property owner of 610 California Avenue.
Using this Neighborhood Preservation Exception, Mr. Wilson built a second two-story
house, larger than the original single-story historic house, on the lot at 610 California
Avenue.
Subdividing the Property is Contrary to the Purposes of the NP Combining’District
Chapter 18.30.010 of the Palo Alto Municipal Code states that the specific purpose of the
neighborhood preservation combining district is as follows: ~
The neighborhood preservation combining district is
intended to modify the regulations of multiple family
residence districts in areas where it is deemed essential to
maintain the visual and historic single-family structures, to
foster additions to existing properties without demolition of
sound residential structures, and to assure compatibility of
design of new residential units with existing structures on
the same or surrounding properties.
Mr. Wilson was granted the Neighborhood Preservation Exception in December 2000, as
an incentive to maintain the pre=existing historic structure and to construct the second
structure to maintain the character of the existing historic structure. When Mr. Wilson
spoke before the ARB, he said that he planned to eventually return to live in the historic
house, and that the second house would provide income.
Page 1 of 3
Allowing the subdivision of the property now would subvert the purpose of the NP
Combining District, The second two-story housing unit could not have been built
without the NP Exceptions, which were only granted because of the second unit’s
relationship to the existing historic structure on the same lot. If the lot had been
subdivided before the second housing unit was constructed, the NP exceptions would
never have been granted.
Subdivision of the property after the NP Exceptions were used to built a two-story second
unit is a form of manipulation and piecemealing that subverts the intention of the NP
Combining District, and the should not be approved.
Parking
Subdivision of the property would create an untenable parking situation. Before the
second unit was built, the original garage had been directly adjacent to the historic
structure. The NP Exceptions allowed for the original garage to be demolished and
moved to the far side of the second unit and to encroach into the setback. The NP
Exceptions also allowed for reduced on-site parking: only two on-site parking spaces
(the garage and the driveway to the garage) were provided for the two housing units,
instead of the three spaces (1.5 per unit) that were required under the RMD regulations.
Because the two homes were on the same lot, it was assumed that the occupants of the
historic home could access and use one of the off-street parking spaces, even though they
were both located on the other side of the new two-story structure.
If the lot is subdivided, the historic house will be left with no off-street parking.
Failure to Comply with ARB Conditions of Approval
The applicant failed to comply with all of the ARB Conditions of Approval for
construction of the two-story second unit before occupying the unit.
The Conditions of Approval for the construction of the second unit (with the NP
Exceptions) recommended by the ARB on October 19, 2000, and approved by the
Director of Planning and Community Environment 9n October 24, 2000 included the
landscaping plan specifying two new Chinese Pistache curb trees to be planted (replacing
the removed Hawthorne street tree). The final conditions of approval also included the
provision that the "existing fruit tree between the existing structure and the proposed
structure shall be retained as indicated on the landscape plan."
After the two-story second unit was completed and occupied in the summer of 2003, I
waited for the street trees to be planted. In September 2003, I contacted Public Works
and the Planning Department to inquire why the new structure had been allowed to be
occupied prior to the street trees being planted. When I received no response, I filed a
formal complaint on October 4, 2003. The process dragged out over more than a year
until, finally, the two street trees were planted in January of 2005. During that time, I
Page 2 of 3
was told by city staff that the property owner of 610 California Avenue was fighting the
ARB condition of approval and trying to get it changed. As far as I know, no fines or
penalties were collected by the city to compensate for the noncompliance or for the
additional staff time that was expended in order to finally achieve compliance regarding
the street trees.
As far as I can tell, city staff just gave in on the property owner’s noncompliance with the
ARB condition to retain the "existing fruit tree between the existing structure and the
proposed structure." According to the adjacent property owner on California Avenue,
that that fruit tree was cut down. As far as I know, the city staff did not require the owner
to make up for that violation of the ARB condition in any way.
I oppose the granting of a subdivision of the property.
Page 3 of 3