HomeMy WebLinkAboutStaff Report 118-10City of Palo Alto
City Manager's Report
TO: HONORABLE CITY COUNCIL
FROM: CITY MANAGER
DATE: FEBRUARY 1, 2010
REPORT TYPE: ACTION
DEPARTMENTS: CITY CLERK AND
PLANNING AND COMMUNITY
ENVIRONMENT
CMR: 118:10
SUBJECT: Adoption of an Ordinance Amending Section 21.04.030(a)(30) of the
Subdivision Code (Title 21) of the Municipal Code to Revise the Definition
of "Private Street"
EXECUTIVE SUMMARY
On September 21,2009, the City Council adopted Ordinance No. 5059 to revise the Subdivision
Code (Title 21) of the Municipal Code to define minimum widths for private streets and to exclude
(in both the Subdivision Code and Zoning Code) private street width from site area for the pmpose
of calculating the allowable floor area and density allowed on a site. The ordinance implemented a
proposed initiative that had qualified for the November ballot, according to the certification of the
Santa Clara County Registrar of Voters on July 15; 2009. Staff advised the Council, however, that
the ordinance would have negligible effect unless the definition of "private street" is changed to
reflect current subdivision law and practice. Staff indicated to the Council that a revised definition of
"private street" would be prepared and brought forward to better accomplish the goals of the
initiative for subsequent projects. The draft ordinance before the Council achieves this objective, and
applies to private streets whether they are designated as separate parcels ofland or as easements and
regardless of whether they serve parcels that are platted in fee ownership, condominium" townhome
or other ownership configurations. On December 9, 2009, the Planning and Transportation
Commission recommended adoption of the ordinance.
RECOMMENDATION
Staff recommends that the City Council adopt the proposed ordinance amendment (Attachment A)
revising the definition of "private street."
BACKGROUND
On September 21 , 2009, the City Council adopted Ordinance No.5 05 9 (Attachment B) to revise the
Subdivision Code (Title 21) ofthe Municipal Code to define minimum widths for private streets and
to exclude (in both the Subdivision Code and Zoning Code) private street width from site area for the
pmpose of calculating the allowable floor area and density allowed on a site. The ordinance
CMR: 118:10 Page 10f5
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.. SJ
implemented a proposed initiative that had qualified for the November ballot, according to the
certification of the Santa Clara County Registrar of Voters on July 15,2009. On July 27,2009, the
Council directed staffto bring the ordinance back for adoption rather than setting the measure on the
November ballot.
mtent and Provisions of fuitiative Ordinance
The intent ofthe proposed fuitiative, as stated, was to address concerns about vehicle circulation on
private streets (particularly for fire and garbage trucks), inclusion of streets in determining lot size
and floor area, and overflow traffic and parking onto nearby residential streets. The Arbor Real
project was cited as an example of the kind of development with private streets that has resulted in
such problems.
The specific provisions ofthe mitiative, as reflected in the ordinance adopted in September, amend
the Subdivision Ordinance of the City to:
• Generally limit private street width to a minimum of 32 feet (as compared to a public street
width of 40 feet);
• Allow lesser width at a minimum of26 feet where either a) at least a 6-foot parking strip is
provided adj acent to the street or b) homes are set back at least 20 feet from the street;
• Allow lesser width at a minimum of 22 feet where the street serves 4 or fewer lots;
• Provide that all of those widths are "minimums" and the streets must be shown to be
adequate to the satisfaction of the Director of Planning and Community Environment and, for
widths less than 32 feet, by the City Council; and '
• Exclude the area of private streets from the calculation of Floor Area Ratio for determining
allowable development.
Additionally, the definition of "Lot area" was amended in the Zoning Ordinance to exclude "public
or private" street right-of-way (current code interpretations only exclude public right-of-way). This
would again further limit the floor area allowed on a site.
Finally, the ordinance indicated an effective date ofJuly 31,2009, although the ballot measure would
not have been considered by voters until November 3,2009. There is a provision that notes that, if
the retroactive date is voided or otherwise deemed unenforceable by judicial action, then November
4, 2009 would be the effective date.
Staff did not object to the revisions, and believed that the substance of the ordinance changes was
reasonable and will help clarify the recent concerns regarding private street width, parking, and floor
area. The proposed 32-foot width still provides for flexibility for applicants to use less than the 40-
foot public street width, and allows lesser widths under certain circumstances.
Applicability and Enforceability of Ordinance
m order to avoid the costs of an election the Council was required to adopt the initiative ordinance
exactly as written. It is the opinion of the City Attorney and Planning staff, however, that the
retroactive provision of the ordinance is not legal and that the applicability of the ordinance would be
negligible given the current definition of "private street," which is not changed by the initiative
ordinance. The City Attorney has indicated that although the retroactive provision is unenforceable,
it would not nullify the ordinance if adopted as written because the ordinance contains a severability
clause that would leave all legally enforceable portions of the ordinance intact.
CMR: 118:10 Page 2 of5
Using the City's current defini tion of private streets, the initiative would apply only to non-dedicated
streets which are on a "separate parcel of land used for ingress to or egress from two or more lots
which do not have the minimum street frontage" or non-dedicated streets that provide access to one
lot that does not meet minimum street frontage "if the parcel of land used for ingress or egress is
more than two hundred feet in length." Because this definition predates enactment of the Davis
Stirling Common Interest Development Act (State statute), it is unlikely that any future development
will propose vehicular access in a way that would meet the City's definition of private streets. As
such, absent further clean-up, the initiative would not have any direct impact on any project currently
in the planning or development process and would not likely affect projects in the future in the way
intended by the initiative supporters.
The ordinance will have no impact upon the Alma Plaza development as the tentative map was
already passed by the Council long before the initiative. Due to the improper definition it is the City
Attorney's opinion that the ordinance will have no impact upon any current application including the
proposed Palo Alto Bowl project.
Staff indicated to the Council, however, that a revised definition of "private street" would be
prepared and brought forward to better accomplish the goals ofthe initiative for subsequent projects.
The draft ordinance before the Council achieves this objective.
DISCUSSION
Staff has met with the Initiative sponsor and believes that a few revisions to the City'S subdivision
ordinance, specifically to the definition of "private street," would allow for effective implementation
ofthe intent of the Initiative. The key changes proposed in the ordinance include:
• Deletion of the reference to "required minimum lot frontage" in the definition of "Private
Street."
• Clarification that a "Private Street" could also be an easement or other right-of-way, and is
not necessarily designated as a separate parcel of land.
• Clarification that a "Private Street" provides access to "parcels" of land rather than "lots"
and explicit indication that the term "parcel" includes fee ownership, condominium,
townhome or other ownership configurations.
Staff has recommended (Section 5) that the ordinance "shall not be applicable to any subdivision for
which a tentative map has been ~ubmitted prior to November 3, 2009." This is not the original intent
of the initiative, but staff, including the City Attorney, believes that State law precludes applying new
regulations to subdivision maps submitted prior to the consideration of the new regulations.
PLANNING AND TRANSPORTATION COMMISSION RECOMMENDATION
On December 9, 2009, the Planning and Transportation Commission (PTC) voted 6-0
(Commissioner Feinberg absent) to recommend that the City Council approve the proposed
ordinance amendments. A few minor corrections were noted. The Commission's minutes from that
meeting are attached. The PTC staff report is not attached since it is virtually identical to this City
Manager's Report.
POLICY IMPLICATIONS
Comprehensive Plan policies and programs that support the revisions ofthe initiative ordinance and
CMR: 118:10 Page 3 of5
this clean-up of the definition of "private street" include:
• Policy L17: Treat residential streets as both public ways and neighborhood amenities.
Provide continuous sidewalks, healthy street trees, benches, and other amenities that favor
pedestrians.
• Policy T23: Encourage pedestrian-friendly design features such as sidewalks, street trees,
on-street parking, public spaces, gardens, outdoor furniture, art, and interesting
architectural details.
• Policy T25: When constructing or modifying roadways, plan for usage of the roadway space
by all users, including motor vehicles, transit vehicles, bicyclists, and pedestrians.
• Program T33: Develop comprehensive roadway design standards and criteria for all types of
roads. Emphasize bicycle and pedestrian safety and usability in these standards.
• Program T53: Discourage parking facilities that would intrude into adjacent residential
neighborhoods.
• Policy C30: Facilitate access to parks and community facilities by a variety of transportation
modes.
Staff does not believe that the prior street width allowances necessarily conflicted with those policies
and programs, but concurs that those policies and programs are further supported by the proposed
standards and this clean-up of the definition.
ENVIRONMENTAL REVIEW
No environmental review is required pursuant to Categorical Exemption Section 15303 (Minor
Changes to Land Use Limitations) ofthe California Environmental Quality Act (CEQA) Guidelines.
RESOURCE IMPACT
The proposed amendment will make the prior initiative ordinance more effective, and is likely to
constrain to some degree the intensity of development on occasional development sites in the future,
where private streets are proposed. The ongoing costs of private street maintenance are anticipated to
be negligible, since the costs of such maintenance will be borne by project developers and
subsequent owners and homeowners' associations.
DEPARTMENT HEAD REVIEW:
CURTIS WILLIAMS
Director of Planning and Community Environment
CITY MANAGER APPROVAL:
CMR: 118:10 Page 4 of5
ATTACHMENTS
Attachment A:
Attachment B:
Attachment C:
COURTESY COPIES
Robert Moss
CMR: 118:10
Proposed Ordinance Amending Subdivision Code (Title 21)
Ordinance No. 5059, Adopted September 21,2009
December 9,2009 PTC Excerpt Minutes
Page 5 of5
_
NOT YET APPROVED ATTACHMENT A
Ordinance No.
Ordinance of the Council of the City of Palo Alto Amending
Section 21.04.030(a)(30) of Title 21 (Subdivisions) of the Palo
Alto Municipal Code to Amend the Definition of "Private
Street"
The Council of the City of Palo Alto does ORDAIN as follows:
SECTION 1. The City Council finds as follows:
A. On July 15, 2009, an initiative petition defining the minimum width of private
streets and excluding private streets from the calculation of floor area was certified by the Santa
Clara County Registrar of Voters as qualified to be submitted to voters on the November 2009
ballot.
B. On July 27, 2009, the City Council directed that the City should adopt the
ordinance amendments proposed in the initiative petition rather than placing the initiative on the
November 2009 election ballot.
C. On September 21,2009, the City Council adopted Ordinance No. 5059, reflecting
the amendments as proposed in the initiative petition, and directed that the definition of "private
street" be amended to reflect current circumstances.
D. On December 9, 2009, the Planning and Transportation Commission conducted a
duly noticed public hearing regarding this amendment and recommended approval to the City
CounciL
E. The Councjl finds that the ordinance amendment furthers the public interest,
health and welfare of the community and is consistel,1t with the Comprehensive Plan.
SECTION 2. The City Council hereby amends Section 21.04.030(a)(30) to read as
follows:
"(30) "Private street" means any parcel of land right of way, including vehicular access
easements, not dedicated as a public street which is used for ingress and egress vehicular traffic
a) to or from two or more lots parcels which do not have the required minimum frontage on a
public street, or hl to or from one lot parcel which does not have the required minimum frontage
on a public street if the parcel of land right of way or easement used for ingress or egress is more
than two hundred feet in length. For the purpose of this section, "parcel" includes fee ownership,
condominium, townhome or other ownership configurations. Private streets shall be excluded
for the purpose of determining Floor Area Ratio (FAR). Minimum width of "private streets"
shall be as defined in 21.20.240(b)(4). For the purpose of the provisions of Section
21.20.240(b)(4), the term "lot" includes fee ownership, condominium, townhome or other
ownership configurations."
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100111 syn 0120422
NOT YET APPROVED
SECTION 3. The Council hereby finds that this amendment is categorically exempt
from environmental review under Class 5 of the CEQA Guidelines as it comprises a minor
alteration to land use limitations and can be seen to have no significant environmental impacts.
SECTION 4. The provisions of this ordinance amendment shall not be applicable to
any subdivision for which a tentative map has been submitted prior to November 4, 2009.
SECTION 5. This ordinance shall be effective upon the thirty-first (31 st) day after its
passage and adoption.
INTRODUCED:
PASSED:
AYES:
NOES:
ABSTENTIONS:
ABSENT:
ATTEST:
City Clerk
APPROVED AS TO FORM:
Assistant City Attorney
100111 syn 0120422
2
APPROVED:
Mayor
City Manager
Director of Planning and
Community Environment
ATTACHMENT B
~f. ....
Ordinance No. 5059
Ordinance of the Council of the City of Palo Alto Amending
Title 21 (Subdivisions) and Title 18 (Zoning) of the Palo Alto
Municipal Code to Defme Minimum Widths for Private
Streets and Excluding Private Streets from the Calculation of
Floor Area
The Council of the City of Palo Alto does ORDAIN as follows:
SECTION 1. The City Council finds as follows:
A. On July 15, 2009, an initiative petition defining the minimum width of private
streets and excluding private streets from the calculation of floor area was certified by the Santa
Clara County Registrar of Voters as qualified to be submitted to voters on the November 2009
ballot.
B. On July 27, 2009, the City Council directed that the City should adopt the
ordinance amendments proposed in the initiative petition rather than placing the initiative on the
November 2009 election ballot.
C. The Council finds that the ordinance amendments further the public interest,
health and welfare of the community and are consistent with the Comprehensive Plan.
SECTION 3. The City Council hereby amends Section l8.04.030(a)(85) to read as
follows:
(85) "Lot area" means the area of a lot measured horizontally between bounding
lot lines, but excluding any portion of a flag lot providing access to a street and
lying between a front lot line and the street, and excluding any portion of a lot
within the lines of any natural watercourse, river, stream, creek, waterway,
channel, or flood control or drainage easement and excluding any portion of a lot
within a public or private street right-of-way whether acquired in fee, easement,
or otherwise.
SECTION 4. The City Council hereby amends Section 21.04.030(a)(30) to read as
follows:
(30) "Private street" means any parcel of land not dedicated as a public street
which is used for ingress and egress from two or more lots which do not have the
required minimum frontage on a public street, or to or from one lot which does
not have the required minimum frontage on a public street if the parcel of land
used for ingress or egress is more than two hundred feet in length. Private streets
shall be excluded for the purpose of determining Floor Area Ratio (FAR).
Minimum width of "private streets" shall be as defined in 21.20.240(b)(4).
1
091106 syn 0120405
SECTION 5. The City Council hereby amends Section 21.20.240(b)(4) to read as
follows:
(4) Private streets: Such right-of-way as would be required for a comparable
public.street, except as specified below. Streets serving five or more lots shall be
no less than thirty two feet wide. Streets serving four or fewer lots shall be no less
than twenty two feet wide providing that the Director of Planning and Community
Environment and the City Council specifically approves the twenty two foot street
width. .
(a) If a building ,adjacent to a private street has a setback of at least 20 feet
between the street and b'!lilding allowing on-site parking, then the width
of the private street may be no less than twenty six feet at the discretion
of the Director of Planning and Community Environment and the City
Council.
(b) If a private street has a public parking strip of at least six feet in width
between the street and the building location, then the width of the private
street may be no less than twenty six feet at the discretion of the Director
of Planning and Community Environment and the City Council.
Effective Date: This private street width requirement applies to any project or
development that has not obtaifl,ed a fmal map, building permit, and performed
significant construction as of July 31, 2009. If the effective date of July 31, 2009
is held by a. court of competent jurisdiction in a final judicial action to be void,
voidable, or unenforceable, then the effective date of this ordinance as it applies
to private street width shall be November 4, 2009.
SECTION 6. Severability. If any section of this initiative ordinance, or part hereof,
is held by a court of competent jurisdiction in a final judicial action to be void, voidable, or
unenforceable, such section or part hereof, shall be deemed severable from the remaining
sections of this initiative ordinance and shall in no way affect the validity of the remaining
sections hereof.
SECTION 7. The Council hereby finds that this rezoning is subject to environmental
review under the provisions of the California Environmental Quality Act (CEQA). An
environmental assessment was prepared for the project and it has been determined that no
potentially adverse impacts would result from the rezoning of the property; therefore, the project
would have no significant impact on the environment.
II
II
II
II
2
0911 06 8yn 0 J 20405
SECTION 8. This ordinance shall be effective upon the thirty-first (31 st) day after its
passage and adoption.
INtRODUCED:. SEPTEMBER 21, 2009
PASSED: OCTOBER 5, 2009
AYES: BURT, DREKMEIER, ESPINOSA, KlSHIMOTO, KLEIN, MORTON,
SCHMID, YEH
NOES: BARTON
ABSTENTIONS:
ABSENT:
ATfEST:
City Clerk
APPROVED AS TO FORM:
Assistant City Attorney
091106 syn 0120405
3
APPROVED:
Mayor
City Manager
Director of Planning and
Community Environment
-
ATTACHMENT C
1 Planning and Transportation Commission
2 Verbatim Minutes
3 December 9, 2009
4
5 EXCERPT
6
7 Private Streets Ordinance: An Ordinance Amending the Subdivision Code (Title 21) of the
8 Municipal Code to Revise the Definition of "Private Street"; California Environmental Quality
9 Act (CEQA) Review: Categorically Exempt.
10
11 Mr. Curtis Williams, Planning Director: Yes, thank you Chair Garber and Commissioners. I am
12 Cutis Williams, Director of Planning. This item comes to you following the Council's adoption
13 in September of an ordinance that effectuated the provisions of an Initiative Petition that has
14 been developed and circulated and qualified for the ballot to regulate the width of private streets.
15 That ordinance that was adopted by the Council is attached. Also, we did send to you, and I think
16 you had at places, the actual initiative language, which is mirrored in the ordinance. There is
17 some advantage to that initiative language in that it actually shows it in a redline form so you can
18 see what the changes were that were made.
19
20 In any event, that ordinance essentially established minimum width for private streets, which we
21 as you know currently or previously did not have. However, in looking at the initiative language
22 it was apparent to the City Attorney and Planning Staff that it would not be applicable to
23 virtually anything that we have right now for two or three different reasons.
24
25 They all surround the definition of the term 'private streets' that is in our code right now.
26 So the main concerns were first of all that there was a requirement in the current code that a
27 private street be a separate parcel of land used for ingress or egress from two or more lots, which
28 do not have the minimum street frontage. We don't have minimum street frontage to start with so
29 there is not really a basis for making that kind of determination. The word 'lots' is difficult
30 because in subdivision law that doesn't apply to condominium lots which are generally termed
31 'parcels' and I think Don can explain that in more detail if you need. So it really only applied to
32 platted fee simple type of lots. Then also because it says 'separate parcel of land' that didn't
33 really apply to easements, which are sometime the form that we see private streets. So for several
34 reasons the ordinance did not appear to be applicable to subdivisions we would see as it was
35 intended to be. So we told the Council that we would follow up with an ordinance that revised
36 the definition of private street to address those issues, and make it applicable to future
37 subdivisions that come in as it was intended.
38
39 So we have deleted the reference to required minimum frontage in this proposed definition. We
40 have clarified that a private street could be an easement or other right-of-way and not necessarily
41 a separate parcel of land. Then we have also clarified that the private street provides access to
42 parcels ofland rather than lots, and we have explicitly indicated that the term parcel includes fee
43 ownership, condominium, townhome, or other ownership configuration. So we have tried to be
44 more inclusive there and capture the types ofprojects that you have been seeing in the last few
45 years that more often than not the lots are platted as condominium lots even though they may
46 look very much like a single-family home subdivision.
Page 1
1 So we recommend that you recommend to the City Council that this ordinance be adopted and
2 that helps then clean up the definition in a way that makes the amendments that were adopted
3 September 21 meaningful.
4
5 I did want to point out one error in the ordinance itself. On the third line of the definition of
6 private streets it says, under A, to or from two or more, it should say parcels there where lots is
7 stricken, which do not have the required minimum frontage on a public street. Actually, that
8 'minimum frontage' shouldn't be there. So the word 'parcels' should be in there rather than lots.
9 I didn't notice that before but where it says, 'do not have the minimum required frontage' should
lObe the same as the line before that which should just say, which do not have frontage on a public
11 street. So if you would just strike the 'required minimum' just as it is in the fourth line down
12 from that. We don't want to refer to a 'required minimum' because we don't have one.
13
14 The other thing I wanted to mention is that it is Staffs opinion and there may be differing
15 interpretations of this out there but that this ordinance would not apply to either Alma Plaza or
16 Palo Alto Bowl because state subdivision law essentially says that you are subject to the
17 subdivision regulations that are in effect at the time that you submit your map. In this case Alma
18 Plaza's map is not only submitted but finaled. The Palo Alto Bowl map is still in process but was
19 submitted July 9, 2009. I will be glad to answer any questions.
20
21 Chair Garber: Commissioners, we have one speaker from the public shall we have that member
22 speak and then we will go to our questions and comments? Let's open the public hearing. We
23 have one card from Robert Moss. Let's give him five minutes.
24
25 Mr. Robert Moss, Palo Alto: Thank you Chairman Garber and Commissioners. I urge you to
26 correct the definition of private streets, which have been corrected yet again tonight. I want to
27 give you a little bit of background.
28
29 When I wrote this initiative it wasn't done in a vacuum. I interchanged comments with Curtis on
30 a number of occasions to try and make sure that it was written so that it wouldn't create major
31 problems and give them huge amounts of heartburn. One of the changes that I made at his
32 suggestion, if you look at the definition of street width in the existing code it is defined by the
33 length of the street. The longer the street the wider it has to be, longer streets 60 feet wide and so
34 on. So my original definition of a private street was based on the street length and I believe I had
35 100 feet. So anything that was longer than 100 feet had to have the 32-foot wide width. I also
36 had a suggestion that we impose the restriction if there were six or more lots. Curtis suggested
37 we just talk about lots and get rid of the street length and reduce it to four. So that is why lots
38 were put in instead of street length. I think if I had left street length in we would have had a little
39 bit less of a problem with the definition.
40
41 The second is the definition of private streets is what it has been for decades. When I looked at it
42 I did have any reason to think there problems. Since Curtis and let's just say the legal department
43 without naming names had looked at what I was proposing I had assumed that the definition was
44 valid. It was not until the Registrar of Voters certified that the petitions were valid and they went
45 back and looked at the entire packet again that they realized, oops the definition is wrong. So we
46 were defining requirements on a private street that really couldn't be called a private street. So
Page 2
1 when it came to the Council the Staff said they would make that correction and we will redefine
2 it. That is what you have before you tonight.
3
4 As to whether or not this applies to Alma Plaza and Palo Alto Bowl in the case of Palo Alto
5 Bowl the private street, Ryan Street, is 24-feet wide but it has parking along the side. So it meets
6 the intent of this initiative. The initiative actually says you would have to have 26 feet if you
7 have parking along the side. I thought about whether it was worth making a fuss for two feet and
8 I decided no, the garbage trucks can still get through. You are not going to have overflow
9 parking because they have parking in the area. So it meets the intent of the initiative.
10 As for Alma Plaza, I am quite confident that Mr. McNellis will have no luck whatsoever in
11 finding anybody else to come in and work with him. Say a developer for the housing and he says
12 you know we are fighting a lawsuit from the previous housing developer for not performing
13 properly. I am fairly confident that the project which was approved is not ever going to come
14 back to be built. They will make some changes. However, ifhe does try to build what has been
15 approved my understanding of the law is that an initiative by the people governs. The language
16 that I used was the legal definition for what you have a vested right in developing a project. So if
17 by some happenstance and McNellis does come in and try build what he has we will find out
18 how the courts interpret my opinion versus the City Attorney's opinion.
19
20 Chair Garber: Thank you. Commissioners, questions, comments? Commissioner Keller. ,
21
22 Commissioner Keller: A question for Mr. Moss. The private streets as is written refers to lots.
23
24 Mr. Moss: Right.
25
26 Commissioner Keller: It is interesting how the definition of private streets is being modified to
27 refer to parcels. Do you have any comments about what the interaction of those are and whether
28 it makes sense? I realize an initiative of the public can't be amended by the Council. It can only
29 be amended by the public but about the problem of when you have a condominium development
30 there not necessarily four separate lots, or five separate lots, or five or more lots as in the
31 definition of private streets.
32
33 Mr. Moss: Well, when I put in lots in the first place my interpretation was that a condominium or
34 townhouse was a lot because you have a defmed area or volume. It wasn't until after I was
35 informed by Staffthat that definition was not complete that we had this issue. Now they have
36 come back and said parcel, and they have defmed it as condominiums and so on. So they have
37 been more explicit in the defmition.
38 If you look at the definition of 'lot' in the City Ordinance to me it looked like it meant condos
39 but I am not a lawyer. So if this definition does what it is supposed to and includes townhouses,
40 condominiums, single-family homes, and commercial property that is the intent. That is what is
41 supposed to be done.
42
43 Commissioner Keller: I realize that but the definition of private streets has to do with the street
44 width depending on how many lots there are adjacent. Even though the definition of a private
45 street refers to parcels the definition of this issue of right-of-way in definition four doesn't refer
46 to or make specific mention to lots.
Page 3
1 Mr. Moss: That is correct. Maybe I was being a little bit optimistic but I had expected when the
2 City Attorney's Office wrote the definition that lots would be something that you could enforce
3 in terms of four lots or more is where you have the private streets apply. Now ifthere is any
4 possible uncertainty that should be clarified with the definition. I am going to have to defer to
5 Staff on that one. We have gone back and forth on this and that was the intent of what they
6 wrote.
7
8 Commissioner Keller: So let me ask a question of the attorney then. Is it possible to add a
9 definition to the number four private streets, a section on there defining lots in the same manner
10 is in section 21.20.240(b) (4), a paragraph (c) where lots is defined the same way parcels are
11 defined in the definition?
12
13 Chair Garber: Could you give us a page number as well please?
14
15 Commissioner Keller: The definition oflots I am talking about is in Attachment B.
16
17 Chair Garber: At the bottom ofthe page there or the second page?
18
19 Commissioner Keller: Yes, it is the second page. I am talking about putting it as a paragraph (c)
20 indicating defining what lots is there. In the ordinance we have defined exactly what a parcel is
21 and using that definition for a parcel to refer to a lot. Alternatively maybe what you want to do is
22 define lots for the purposes of21.20.240(b) (4) to refer to buildings. Maybe that is appropriate.
23 Maybe one or the other maybe you want to refer to it as buildings or in some sense define the
24 word lots to be what we intended it to be. I am wondering if it is legal to add that definition to
25 this. I am assuming that the people who circulated the petition would be happy with that change
26 but I am not sure about the legality of doing that.
27
28 Mr. Donald Larkin, Assistant City Attorney: It is legal to add that definition. I would recommend
29 against doing it generally because the term 'lots' has a specific legal definition in the Subdivision
30 Map Act. What we could do is do something narrowly say for purposes ofthat particular
31 subsection that defines private street widths, and have a broader definition for the term 'lots.'
32
33 Commissioner Keller: Yes, in other words only for that paragraph four saying in this particular
34 section lots is interpreted to mean however we define parcels in the other definition.
35
36 Mr. Larkin: I think we could do that.
37
38 Commissioner Keller: So let me go back to Mr. Moss. Do you feel comfortable with that
39 improvement?
40
41 Mr. Moss: Yes, I think that will work. The other possibility would be to have a second section of
42 the code modified to define lots to make clear the lot includes condominium air space or any
43 other legally defined living area. That is what I thought it did but apparently it doesn't.
44
45 Mr. Larkin: I would recommend against doing it that second way only because 'lot' and 'parcel'
46 are two different terms. They are not interchangeable. I think the intent is clear in here was to say
Page 4
1 parcels. So I think we can make that clarification for purposes of that paragraph but for the
2 remainder of the subdivision code we should not be using those terms interchangeably.
3 Mr. Moss: If 'parcels' and 'lots' are made interchangeable then the section in the initiative that
4 refers to lots would be carried over correctly. That is the intent.
5
6 Commissioner Keller: Okay. Well, let me suggest that when whoever makes the motion basically
7 adds an additional paragraph, subparagraph (c) to 21.20.240 (b) (4) which defines lot to be the
8 same way that parcel is defined in Attachment A under definition 30. Does that make sense?
9
10 Mr. Williams: I don't know if this is what you are getting at but I would just suggest that at the
11 end of this paragraph on private street it says, minimum width of private street shall be defined in
12 21.20.240 (b) (4) that we add a sentence that for the purpose of the provisions of section
13 21.20.240 (b) (4) the term 'lot' includes fee ownership, condominium, townhome or other
14 ownership configurations.
15
16 Commissioner Keller: That is fine with me too. I think that would affect the intent of the petition
17 and would complete the effect we are trying to accomplish.
18
19 Mr. Williams: I think it avoids getting into any ofthe language around the actual section on the
20 widths, which might be construed as messing with the initiative language. I am not sure you were
21 suggesting this either.
22
23 Commissioner Keller: No, I was not intending that. Thank: you.
24
25 Chair Garber: Nice catch. Commissioner Holman.
26
27 Commissioner Holman: I had asked a question earlier about the 200-foot length and if that would
28 be compatible with our preservation subdivision ordinance in allowing those subdivisions if there
29 was any conflict foreseen?
30
31 Mr. Larkin: With the situations that we looked at when we were considering changes to the
32 ordinance so that we wouldn't necessarily have to use a PC to achieve those same goals we
33 didn't come across any examples where this defmition of private streets would impact those
34 projects. It is not inconceivable that there could be something in the Open Space area for
35 example where there would be a long enough driveway into the second lot that would meet the
36 definition of a private street if those are parcelized. I don't know of any language that would be
37 able to correct that situation that wouldn't alter the initiative as proposed. I am certainly open to
38 suggestions if other people have ideas. I think that it would be the narrower of the possible
39 definitions but if we have two lots that are parcelized and the same driveway is providing access
40 to both of those lots or parcels then it would meet this definition of a private street.
41
42 Commissioner Holman: Obviously what I am trying to avoid here is having conflicting
43 ordinances. I was thinking that one of the responses had been that we might extend the 200 to
44 225. That is not the language that is in the initiative.
45
Page 5
1 Mr. Larkin: That is the struggle. I know you have raised this issue before and that is the struggle
2 we are having. The only way to alter that 200 feet is to go back to a vote of the citizens. So the
3 one area where we could make the change would be in the definition to somehow remove that
4 situation from the definition. I think if we do that we are creating more -there will be
5 unintended consequences where we will be taking things that I think were intended to be
6 considered private streets and not considering them to be private streets. If that is the
7 recommendation or the priority of the Commission and the Council is to make those projects,
8 that situation and find an exemption for that then that is what we will do, but we will need to do
9 it through the definition.
10
11 Commissioner Holman: Thank you for that. Actually, could you give an example of an
12 unintended consequence might be?
13
14 Mr. Larkin: Well, I think the intension is that if somebody has a 200-foot road that is going to
15 serve two lots or parcels that that road would be a private street and would have to meet the
16 private street definitions. If you read the stated purpose of the initiative it is so that garbage
17 trucks and fire trucks and that sort of equipment can get down that road. They are asking for that
18 width. Curtis pointed out that the length is in a couple of places and we actually inserted it into
19 the definition so we can change it within the definition on the 200-foot length.
20
21 Mr. Williams: The initiative didn't change the definition of200 foot in length. That has been in
22 there already and it doesn't conflict with anything. Elsewhere the provisions of the street width
23 generally talk about the number of parcels or lots not the length of the street. So I think we
24 probably could change that. I just don't know what is magic about 225 feet as opposed to 200
25 feet. Like Don said all the ones we looked at in terms of trying to identify some before when that
26 other ordinance was coming around nothing was over 200 feet. So it doesn't seem to us that it is
27 likely to but there may be something out there, but we don't know that 225 feet is going to solve
28 it either. So we would have to almost craft a very special exception for something we don't even
29 know exists. Don't even know if it is worth doing that or not.
30
31 Commissioner Holman: That's okay, the number 225 had come up in the meeting, and I am just
32 trying to be proactive rather than having to come back later. We did also talk about the fact that a
33 lot of those driveways are going to be ten or 12 feet wide. So okay.
34 Then just for clarification the ordinance in front of us has its own timelines but it is only
35 amending the definition of private street. Everything that is in the ordinance that was passed
36 previously, all ofthat language, still holds including the effective date because that was in the
37 language.
38
39 Mr. Williams: That is correct.
40
41 Commissioner Holman: Just clarifying that. Those are my only two questions.
42
43 Chair Garber: Thank you. Commissioner Fineberg and then Lippert.
44
Page 6
1 Commissioner Fineberg: Questions for Staff. Is there an industry standard definition of private
2 street? What does the state say? If one looked at a city planner's manual for the legal code is
3 there something that is standard? We are trying to wordsmith it.
4
5 Mr. Larkin: I looked a number of different local municipal zoning codes and the definition is
6 more frequently I would say a circular definition that a private street is a street that is not owned
7 by the city. There are some that have definitions that are more complicated than what we are
8 proposing, some that are way too simple, but there is no standard definition. The Map Act does
9 not have a specific definition of a private street. If it did that is probably what we would use.
10
11 Commissioner Fineberg: Okay. It just seems to me that by having detailed specifics about what a
12 private street is that there will be other loopholes that can't be anticipated. If there was
13 something that was sort of a generic if cars drive on it, it gets you to places, and it isn't public •
14 then it is private but in more generic terms it would be the catchall that we are aiming for.
15 Mr. Larkin: The difficulty and the reason that we put as much into this as we did is our goal was
16 to affect the intent of the initiative and a lot of the definitions that other cities use would not
17 capture the types ofprojects that I think the people circulating the initiative wanted to capture.
18 Many of them talk about thoroughfare, they use terms that really only apply to busy streets. It
19 was clear from the statement of purpose in the initiative that they weren't talking about the kinds
20 of things that this initiative --in particular under many of the definitions for example the Arbor
21 Real project wouldn't meet some of their definitions of private streets. That is stated right up
22 front in the initiative is the type of project that this initiative was intended to preclude from
23 happening again.
24
25 Commissioner Fineberg: Okay. For the most common kinds ofprojects that we can anticipate
26 that will come forward does this definition of parcel cover projects like a.mixed-use project
27 where there is a grocery store whether it is fee simple or condo? Would the projects that are in
28 the pipeline, disregarding date, but just thinking about the character of the projects, would the
29 projects that are in the pipeline or that we know are coming soon, would those be covered
30 adequately by this definition?
31
32 Mr. Larkin: It is probably easier to give an example ofprojects that are not covered. It would be
33 apartment buildings that are under single ownership. If there is an office complex that is not a
34 mixed use that is under single ownership those are driveways those are not streets. Anything that
35 is multifamily for sale. A parcel is a parcel of record that you pay property tax on. So if you own
36 your condo unit or your air space unit that is a parcel. Oversimplifying it but generally when you
37 are talking about a lot you are talking about a piece of earth and when you are talking about a
38 parcel you are talking about something you own. So parcel actually does cover far more lots and
39 that is why we chose to use the word 'parcel.'
40
41 Mr. Williams: In could add, the specific example you gave oflike College Terrace Center,
42 which with the grocery store and the office and all that would not be covered by this it is one
43 site, one lot. So we have driveway standards that dictate what the width is when you have that
44 kind of situation. If the eight residential units for instance were not rental and they were condo
45 then it still depends on how the subdivision is done. If they were just laid out as that and then the
46 street was not either an easc;;ment or a separate parcel then it wouldn't apply. So really you are
Page 7
1 trying to distinguish between driveways where parking is provided elsewhere and private streets
2 where we are looking at is parking provided along it and that helps dictate the width and that
3 kind of situation. So it clearly applies to or would have to Arbor Real, True Mark, Vantage, and
4 Echelon projects, the Summerhill Homes project at the Elk's, the Palo Alto Bowl would because
5 that Ryan Lane a street and that is a mixed use project but it has a separate parcel for that lane
6 that serves clearly two or more parcels.
7
8 Commissioner Fineberg: Okay, so if I understand it correctly then if there is one parcel, one
9 common ownership, even if it is 100 rental units it would be a driveway and not a private street.
10 So I am looking at Attachment A that paragraph at the bottom, Section 30, a) is the sentence, the
11 third line where we corrected 'lots' to 'parcels,' and then b) which is the second possible
12 scenario it is to or from one parcel which does not have the frontage. So how would you have a
13 private street to one parcel?
14
15 Mr. Williams: You would have a parcel up front on the street and then one behind it and you
16 would either have a platted lot for the street coming in to serve that parcel behind or as
17 Commissioner Holman if even for two single family homes on a long flag or if it were an
18 easement or a separate kind of parcel, if it were more than 200 feet long then that would be the
19 case. So you are essentially serving using that street to gain access to a parcel that is behind the
20 one that is right up on the street. So that would cover if it was a very long.
21
22 Commissioner Fineberg: I am sorry I am stuck. If it the definition though is that there is one
23 ownership it is a driveway not a street. How would it be a street?
24
25 . Mr. Williams: Right, you are right it wouldn't be a street if it is all one ownership. I am saying if
26 the second ownership is back behind the first parcel that is up on a street so that it doesn't have
27· direct access onto the street but then it has an easement through the front or access easement or it
28 is actually a separate parcel that maybe they share maintenance on or something like that that
29 would be considered a private street.
30
31 Commissioner Fineberg: Thank you. Okay. My last question on the Staff Report page 3 just
32 above the section where it talks about policy implication Staffis recommending that the
33 ordinance Section 5 specifically state that the ordinance should not be applicable to any
34 subdivision for which the Tentative Map has been submitted prior to November 4, 2009. Is there
35 an advantage or a reason to have that specific language stated versus if that is what our attorney's
36 think the state says, state law is there, why categorically state it, rather than just let it be tested in
37 court?
38
39 Mr. Larkin: The reason to categorically state it instead of having it be tested in court is testing in
40 court is expensive. We would prefer to put it right up front. We believe that is consistent with
41 state law. I know Mr. Moss has mentioned the vested rights doctrine. Vest right doctrine applies
42 to the Zoning Ordinance and many other development standards but in the Subdivision Map Act
43 a developer is constrained only by the rules that are in place at the time that their map is
44 complete. So that is our position on what state law is. I think it is abundantly clear and well
45 tested but rather than waste time a frivolous lawsuit it is better just to put it right up front in the
46 ordinance.
Page 8
1 Mr. Williams: If I could add this says November 4 so there is an argument that any project that
2 came in since November 4 until this is adopted by the Council also wouldn't be subject to this.
3 Originally when we started doing this had anticipated hopefully being to Council by October,
4 which is sort of why We put the November 4 to coincide with the election date and the initiative
5 date and all that. We are comfortable leaving this in because I think that was sort of the intent
6 and certainly if anybody came in at this point in time we would be telling them this is going to
7 apply to you. So rather than leaving it blank and just filling in the date it gets adopted I think we
8 are comfortable with doing this. By the way, we have not had anyone since November 4 come in
9 with a subdivision map.
10
11 Commissioner Fineberg: One follow up on that please if! could. Ifthere were to be a lawsuit I
12 am assuming it would be a private party suing the developer for enforcement of the ordinance. I
13 am seeing a head nod no. How would the City be involved if that were an issue?
14
15 Mr. Larkin: It would be a writ of mandate against the City. The developer would be the real party
16 in interest. The City would be the defendant in that lawsuit.
17
18 Commissioner Fineberg: Thank you.
19 Chair Garber: Thank you. Commissioner Lippert and then Commissioner Holman did you have
20 something?
21
22 Commissioner Lippert: I want to go back to Section 4 on page 1. I guess it is point 30. "Private
23 Street" means any parcel ofland not dedicated to a public street, which is used for ingress and
24 egress by two or more lots, which do not have the required minimum frontage on a public street,
25 etc. One ofthe advantages of being an architect is that I get to work with a variety of sites and
26 problems. I happen to have had a proj ect, which would have fit into that definition and would
27 have had to comply with the rules of a private street. The site is such that there would be
28 constraints that it just wouldn't work. It would negate my entire site. I will elaborate a little bit
29 more. This is in the Barron Park section of Palo Alto. As you know the lots there are a little bit
30 funky. It happens to be on a comer but it is the kind of comer that sort of rounds. It is a curved
31 radius comer. Due to that the site only has maybe a frontage of 34 feet. So in order to solve that
32 problem many years ago when they did the subdivision they actually put an ingress/egress
33 easement on the adjacent neighbor's property. So what you have is I think it is eight feet on the
34 neighbor's property and you have two feet on the target property on a wedge shaped lot. What is
35 even more horrendous is that this lot goes back and it is 200 feet long. So you wind up with a
36 very long, harrow croissant shaped lot. A point of fact is what you would wind up with if you
37 were to literally take the definition here and apply what a private street is between the two
38 parcels you would wind up with a private street there that would have to be built to the minimum·
39 width when a normal driveway would normally be needed to serve this.
40
41 Mr. Williams: So the driveway served both lots or just serves this one lot? It goes through the
42 other lot and serves this parceL
43
44 Commissioner Lippert: Exactly.
45
46 Mr. Williams: So it is just serving one lot.
Page 9
1 Commissioner Lippert: No, it could serve both lots. It serves both lots because it is an
2 ingress/egress easement. Then what adds insult to injury I guess is that the adjacent parcel on the
3 other side is very much like that because it is a fan.
4
5 Mr. Williams: So does the adjacent parcel use it for access?
6
7 Commissioner Lippert: Yes.
8
9 Mr. Williams: The first criterion isn't met though. It does have frontage. We have crossed out
10 that 'required minimum frontage.'
11
12 Commissioner Lippert: Okay, so that is gone.
13
14 Mr. Williams: So if the lot has frontage on a public street.
15
16 Mr. Larkin: The other thing I would point out is this only applies to new subdivisions. Because it
17 only applies to new subdivisions it is not the kind of thing where if you were to redevelop
18 without re-subdividing the lot. In your example if that rear lot that is being served only by this
19 easement was to redevelop the house on that property it wouldn't trigger a new subdivision so it
20 wouldn't trigger this ordinance, at least in terms of the street width.
21
22 Commissioner Lippert: The point that I guess I was going to make is that maybe the thing to do
23 is say three or more lots because geometries with threes begin to change radically. With two
24 what you have could very well be that you have two rectangular lots with a driveway that is
25 straddling both properties and both property owners have a right to use it as there is an easement
26 on both properties. You see that a lot in Los Angeles where you have one driveway between
27 houses and then it branches off and you have two separate garages in the back of the property.
28 Does that sound problematic or workable?
29
30 Mr. Williams: I think it would present a different set of problems. Those two parcels could be
3 1 two commercial parcels so having two might very well justify this as a private street and not a
32 driveway. So if you went to three you would be again excluding potentially a significant amount
33 of development that would otherwise be called a private street. So I think that there is sort of a
34 flips ide to that that would not work if the parcels are commercial/residential or whatever. Ijust
35 think the situation that you have outlined is disqualified by two or three things in this paragraph,
36 the first one being that it does have frontage on the public street.
37
38 Commissioner Lippert: Okay. I am interested in hearing from Bob Moss who is about to leave
39 the Chamber. I read through your legal preview. You live in Barron Park, which is really a
40 single-family development. It is rather rural. You don't live near any multifamily housing or
41 commercial lots to speak of I understand your rationale behind what you are looking for in the
42 intent of the law but what is your rationale or your reasoning for getting involved in this?
43
44 Mr. Moss: Why would we do it?
45
46 Commissioner Lippert: Why would you want to do this as an individual?
Page 10
1 Mr. Moss: Well, we were seeing an awful lot of problems with private street development.
2 People who live near Arbor Real in particular were complaining very vociferously about the
3 overflow parking. I drove in there and I could see there was a real problem getting equipment in,
4 getting garbage trucks and emergency vehicles, which has been verified by the Green Waste
5 action last week where they are going to start charging extra for servicing those areas.
6 The other thing, and this actually struck a chord among all of you was when it was identified that
7 the area occupied by the private streets was being used to calculate the floor area ratio, the lot
8 sizes and so on. I remember when Staff mentioned this all you kind of said, good heavens this is
9 terrible. It was creating all kinds of problems that had not been anticipated. We were seeing
10 projects come in with the private streets. The one that really pulled a lot of people's cords is the
11 one at West Bayshore and Lorna Verde where they are putting in 96 homes with all private
12 streets. That is going to cause significant overflow parking in that neighborhood. So we just felt
13 this was a loophole that the developers had seized on and we should fix it.
14
15 Commissioner Lippert: Excuse me. I am trying to understand. You live a mile from Arbor Real,
16 approximately.
17
18 Mr. Moss: Right.
19
20 Commissioner Lippert: Arbor Real doesn't impact your neighborhood. What is your interest?
21
22 Chair Garber: Commissioner, although it is a curious topic I don't know if we really need to or
23 the speaker needs to respond necessarily. You are welcome to but I am just giving you cover if
24 you don't feel like you need to.
25
26 Mr. Moss: Well, if the condition exists it is just a matter oftime before something like that is
27 going to happen in Barron Park, just like it is going to happen allover the city. As you know,
28 Barron Park has an unusual street system. We have public streets that are as narrow as 15 feet. I
29 have seen the problems on those streets. I have seen the problems on some of the public streets in
30 Barron Park where you can't get two cars passing each other at the end of Los Robles going
31 down toward Gunn High SchooL You can't get a garbage truck going down that street without it
32 having to backup and every once in awhile hit something like a fire plug which happened about
33 eight or ten years ago and ended up flooding my family room. So building developments with .
34 narrow streets creates problems. If each of us only worries about what happens next door to us
35 and not what happens in the rest of the community I don't think we are being good citizens. So
36 that is the reason that I took on the proj ect.
37
38 Commissioner Lippert: Thank you for answering that.
39
40 Chair Garber: Thank you. Did you have anything else? Commissioner Holman.
41
42 Commissioner Holman: Just one little thing, but I am prompted to make a comment. I would
43 hope as we look at involvement in our community that we look at people who live in the furthest
44 reaches of our community whether we live in Downtown North or Community Center or
45 wherever that we see everyone who lives here as our neighbor. So it does matter.
Page 11
1 Mine is kind of a housekeeping and tracking question, if not a suggestion. Presumably we will
2 get our search function even further improved than where we have it now. So I am just
3 wondering if it might be advantageous to reference Ordinance 5059 in this ordinance subject line
4 so that there can be a cross-reference.
5
6 Mr. Williams: In the findings above you mean? Like on B or C, the Council adopted the
7 amendments as proposed, and put that in the ordinance?
8
9 Commissioner Holman: I don't necessarily have the answer to this. I am sorry it just occurred to
10 me on the spot. I know when searching for things it is difficult sometimes to know what exists
11 pertaining to a particular ordinance. So I was thinking perhaps, this will be ordinance whatever it
12 is, and if you go to the last line of it, amend the definition of private street perhaps as set forth in
13 ordinance number 5059 or something of that nature. So there is just some kind of cross-reference
14 so that a search would tum up this other ordinance.
15
16 Mr. Larkin: We can do that. I was also just going to point out that when this codified in the
17 subdivision code it will have a reference at the end of the sections that identifies each ordinance
18 that amended that section and when that ordinance was adopted.
19
20 Commissioner Holman: That is helpful to know too, thank you.
21
22 Mr. Williams: If you are searching and you are not searching for ordinance number 5059 you are
23 just wanting it to pop up when you see this ordinance?
24
25 Commissioner Holman: Well, you might be looking for 5059 perhaps but if you want to know if
26 there is another ordinance that exists and what it did and what its intention was.
27
28 Mr. Williams: Yes, so I would think it would work in C, where it says on September 21 the
29 Council adopted the amendments as proposed in the initiative petition and then put in there in
30 parenthesis, ordinance number 5059. That should pop up.
31
32 Commissioner Holman: Yes, cross-references I find to be helpful.
33
34 Chair Garber: I see no more lights. Commissioner Keller, a motion perhaps? I apologize
35 Commissioner Keller, Commissioner Fineberg had a comment. We will close the public hearing,
36 thank you.
37
38 Commissioner Fineberg: I had sent a question to Staff about whether it made sense in the
39 definitions to add a definition of a gross lot area and net lot area. We have the ordinance that
40 currently excludes the private street area from the area when we are doing the lot area calculation
41 but we don't have a name to call that gross less private street. So would it make sense to
42 introduce, and obviously there would have to be some double-checking to make sure it doesn't
43 complicate other things in other places, but would it make sense to introduce a definition of a net
44 lot area, which is equal to gross minus private street?
45
Page 12
1 Mr. Williams: I don't think in this case that is helpful because our zoning code defines lot area. It
2 doesn't say gross or net right now. It basically says take your FAR and your density as applied to
3 the lot area and then the definition of lot area excludes. So really our definition of lot area is net
4 lot area because it excludes various easements and watercourses and it had been public right-of-
5 way for streets. Now with the changes that have been made in the initiative it excludes private
6 streets as well. So we would be introducing a net lot area, which would then compel us to then
7 create a gross lot area, which we don't really need to have two. The one works right now. So I
8 don't think it really adds anything to do that at this point.
9
10 Commissioner Fineberg: Okay, so when you are doing these calculations and there is a statement
11 that the parcel's lot area is X and that would exclude everything that should be excluded. What
12 do you call that measurement that you started with before you did the exclusions? For there to be
13 transparency and full information you have to know both numbers. What you started with, what
14 you excluded, and where you ended up. If you only talk about where you end up you don't know
15 what got excluded and where you start from. So that is just why I am asking that.
16
17 Mr. Williams: We call it lot area and then we exclude from that these right-of-ways and
18 easements and such. We don't then call it a net lot area after that. So it is basically a lot area and
19 then for calculation purposes as you get to these other criteria or standards we have excluded
20 those areas. I see your point but I would be very concerned that to come up with these then two
21 definitions that we are going to mess up something else. We are going to have to really think
22 through what kind of implications that has. Are we going to have to go through all of the zoning
23 code to be sure that we are saying gross or net in every place where we say 'lot area' right now?
24 It just says 'lot area.' So I think it is just overly complicated to do that. It is not an area where we
25 have had problems before. The only problem as pointed out in the initiative that it doesn't really
26 speak to the private street issue but now it does.
27
28 Chair Garber: Commissioner Keller, a motion.
29
30 Commissioner Keller: First a couple of brief questions. I think the intent of what Commissioner
31 Fineberg referred to might be met by whenever there are exclusions that are used in calculating
32 the lot areas defined in the code that those exclusion calculations be made part of the Staff
33 Report. That says if you will the plat line enclosed area is X and we excluded X, Y, and Z
34 amounting to or to create a lot area ofY. I think that would provide the intent without having any
35 need to change the ordinances.
36 The second thing is with respect to Commissioner Lippert's question. Is it the policy of Palo Alto
37 to discourage new flag lots that don't already exist?
38
39 Mr. Williams: Yes, it is the policy to.
40
41 Commissioner Keller: So if an existing flag lot exists it can be maintained but we are generally
42 not going to create new flag lots.
43
44 Mr. Williams: Generally not. It takes some kind of exception to create a flag lot.
45
Page 13
I Commissioner Keller: So ifthat even affects one parcel that would be removed from the street
2 for which there would be a driveway. So that is the issue.
3 The last question I am going to bring up is a little bit more interesting and I believe it comes to
4 Comniissioner Fineberg's question about rental housing. An entire development under one
5 ownership, which is some sort of rental process, which could be in a townhouse style if you will
6 but under one ownership I am assuming that the ordinance would not apply to that or would it?
7
8 Mr. Larkin: It wouldn't because this ordinance only comes into play if there is a subdivision and
9 there is no subdivision in that case.
10
11 Commissioner Keller: In that case there is the potential, and I realize that part of what I do as a
12 computer scientist is look at boundary conditions, pun not intended. So the idea is that when you
13 have a rental-housing complex for which narrow driveways are put in which subsequently is
14 converted to a condo complex through a condo conversion I am wondering whether such condo
15 conversions should be prohibited if when it was built it should have had a wider driveway as a
16 condo. I am wondering what the proper way of handling that is.
17
18 Mr. Larkin: We already have an extremely restrictive condo conversion ordinance so it is
19 unlikely that we are going to have a lot of that situation. In the event that somebody was able to
20 meet those criteria and convert a project like that to a condo in most cases condo conversions are
21 required to come up to code. The only wrinkle in Palo Alto that is unique is that our variance
22 ordinance allows us to factor in for the built environment. I don't know how that would work.
23 Honestly, I have not thought of it.
24
25 Commissioner Keller: Allows you to look at the built environment but not the building that you
26 caused for the project. So you can't get benefit from your own created condition.
27
28 Mr. Larkin: In most other cities that is true. Almost all other cities that is true. Palo Alto's
29 variance ordinance at this does not preclude you from creating your own hardship. I think that is
30 something that will be looked at but that is the way that our ordinance is written right now. What
31 I am not sure of though is if you can get a variance from the subdivision ordinance and my guess
32 is that, although I have not looked at that specifically, they would need some sort of exception
33 and I don't know what the findings are for that.
34
35 Commissioner Keller: Okay, so we have two things from that. One is we need to revisit the
36 variance processes to make sure that one can't create one's own hardship and benefit from it.
37
38 Mr. Larkin: You have a subcommittee looking at that.
39
40 Commissioner Keller: Great. The second thing is the issue of the extent to which a subsequent
41 subdivision through the condo conversion has to obey this ordinance.
42
43 Mr. Larkin: My inclination is that they would but I just don't want to say that definitively. We
44 have not had a condominium conversion in well over 20 years.
45
46
Page 14
1 MOTION
2
3 Commissioner Keller: Okay, great. In that case I am ready to make a motion. My motion is to
4 accept Staff recommendation with the following amendments. First where it says Section 2 refers
5 to Section 21.040.030(a) (30) on the third line the word 'lots' is replaced by the word 'parcels' as
6 Staffhad said. The second change is that there be an additional section, which modifies Section
7 21.20.240(b) (4) to include after the first paragraph the words, 'for the purposes of this section
8 "lots" includes fee ownership, condominium, townhouse, or other ownership configurations.
9
10 Mr. Williams: My understanding was that was going in Section 2 under the definition of private
11 street at the end ofthat. For the purposes of the provisions of Section 21.20.240(b) (4) so we
12 don't have to get into the area of the initiative, the term lot includes .....
13
14 Commissioner Keller: Well, the problem is that the if we put it there would that I am not sure
15 whether that let me continue to finish the thing and then we can talk about that, okay? So the
16 third part is that Section 1, paragraph (c) makes reference to ordinance 5059 for the cross-
17 reference.
18
19 Now in terms of your comments about private streets I am not clear if you don't put the
20 paragraph in Section 21.20.240(b)(4) how that would modify the word 'lots' in that paragraph.
21
22 Mr. Larkin: We are putting it in the definition specifically to define the word 'lots' as it applies
23 to this provision. What we don't want to do is start to insert Commission or Council inserted
24 language in the middle of what was done by initiative because it becomes too difficult in the
25 future if 40 or 50 years ago when our private streets definition was first put in the code the
26 Council at that time had no idea how ownership would change in the ensuing 40 or 50 years. We
27 would like to keep the changes that we are going to make right to that definition that isn't part of
28 the initiative and leave the initiative in tact. Thatis the easier way to handle it and it
29 accomplishes you are intending to do.
30
31 Commissioner Keller: Okay, so you are suggesting at the end of 21.040.030( a) (30) a sentence to
32 the effect of for the purposes of what?
33
34 Mr. Williams: For the purpose ofthe provisions of Section 21.20.240(b) (4) the term 'lot'
35 includes fee ownership, condominium, townhome or other ownership configurations. So very
36 specifically here in the definitions we are clarifying that the lot means the same as parcel for that
37 particular purpose in the initiative ordinance.
38
39 Commissioner Keller: Fine. So the second provision that I stated in my motion is being replaced
40 by the one that Planning Director Williams just referenced.
41
42 SECOND
43
44 Commissioner Lippert: Second.
45
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1 Chair Garber: Seconded by Commissioner Lippert. Would the maker like to speak to their
2 motion?
3 I
4 Commissioner Keller: I think that these changes to the definition of private streets along with the
5 further changes that we have made effectuate the intent of the circulated petition and I think will
6 produce better projects and better law. Thank you.
7
8 Chair Garber: Commissioner Lippert.
9
10 Commissioner Lippert: Thank you very much. First of aH I want to thank Bob Moss. Bob, I
11 appreciate you taking the initiative to do this. My line of questioning was not meant to put you in
12 a compromising position. It really was to clarify what the motivation was behind doing this. You
13 are correct, this body and the City Council has struggled for a very, very long time with trying to
14 get our hands around some consistency in terms of standards for developments. What we have
15 always seemed to run up against is when we get the Tentative Map and we do the Site and
16 Design our hands are tied at a time when we need to make a recommendation to Council. What
17 this enables the City to do is to up front demand that developments take into consideration that
18 they are building more than just driveways and parking that they are actually building mini
19 neighborhoods. The benefit I believe of what you have proposed here or what you have brought
20 forward and Council has forwarded onto us is really a great step in terms of doing two things.
21 Number one is reinforcing the street fabric ofthe city, the circulation, how the city circulation
22 works. Number two I believe it also diminishes the possibility of having enclaves or gated
23 c?mmunities. What it really does is begin to create neighborhood within neighborhoods.
24
25 I have walked around a great many ofthese developments after they have been built and frankly
26 it is very difficult to find your way in and out of these developments. By doing this in some ways
27 it formalizes the street grid and says this is how you get in and out of this area. It makes widths
28 that are appropriate. It allows for the facilities in the way of garbage pickup, fire trucks access as
29 well as parking for the residents and it begins to establish those and formalize them as the
30 requirements of any large development here.
31 So first of all I want to thank you and I think that this is great. I appreciate you bringing this
32 forward.
33
34 Chair Garber: Thank you. Commissioner Fineberg, a friendly amendment?
35
36 Commissioner Fineberg: I would like to offer a friendly amendment, which I believe could be
37 characterized as a correction that Planning Director Williams stated earlier. In Attachment A that
38 last paragraph, the sentence (a) where we substituted the word 'parcels' for the word 'lot' if you
39 continue on in that sentence I believe, I am seeing a nod yes, we need to strike the words, 'the
40 required minimum.' So it would just read, the parcels, which do not have frontage on a public
41 street. The reason for that is because we don't have a required minimum.
42
43 Commissioner Keller: So that is in the third line of paragraph 30, I will accept that.
44
45 Commissioner Lippert: I will accept that as well. That was a concern that I had. Thank you for
46 picking that up.
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1 Commissioner Fineberg: Also my thoughts and,~<;;pmments. I will be supporting this amendment
2 to the ordinance. I believe it implements what was intended in the initiative and it is a good
3 thing.
4
5 MOTION PASSED (7-0-0-0)
6
7 Chair Garber: I see no other lights. Let's vote. All those in favor ofthe motion as stated please
8 say aye. (ayes) All those opposed? The motion passes unanimously with Commissioners
9 Holman, Martinez, Fineberg, Garber, Tuma, Keller, and Lippert voting aye.
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