HomeMy WebLinkAboutStaff Report 8353
City of Palo Alto (ID # 8353)
City Council Staff Report
Report Type: Consent Calendar Meeting Date: 9/18/2017
City of Palo Alto Page 1
Summary Title: 4157 El Camino Way: Hearing Request for CUP
Title: 4157 El Camino Way, Unit C-3 & C-4 [17PLN-00051]: Request for a
Hearing on the Director's Tentative Approval of a Conditional Use Permit
(CUP) to Allow Medical Office Use (Dentist). Environmental Assessment:
Exempt from the provisions of the California Environmental Quality Act
(CEQA) per Guidelines Section 15301. Zoning District: Neighborhood
Commercial (CN).
From: City Manager
Lead Department: Planning and Community Environment
Recommendation
Staff recommends that Council take the following action:
1. Adopt the Record of Land Use Action approving, based on findings and subject to
conditions, the proposed Conditional Use Permit to allow continued use of the subject
tenant space for medical office use.
Background
The Hamlet is a mixed use commercial and residential development located at the subject
address. It was approved and began construction prior to the city’s adoption of a 1985
ordinance limiting ground floor office to 5,000 square feet in this zone. Based on
correspondence from the time, it appears the development was authorized to have 8,960
square feet of office space, or approximately 70 percent of the commercial ground floor area.
However, a review of the administrative record over the intervening three decades provides
insufficient details regarding which tenant spaces were authorized for retail and which may
have been rendered nonconforming by the 1985 Ordinance. Moreover, an apparent inattention
to this limit over time has resulted in further expansion of office uses at this property.
Presently, nine out of 11 commercial tenant spaces (including the subject space) are being used
for office or medical related uses; this represents approximately 9,085 square feet or 79.4
percent of commercial space today. A further complication to this site is that each commercial
tenant space is individually owned, which may frustrate efforts to restore to the site to its pre-
City of Palo Alto Page 2
1985 office floor area. The remaining two tenant spaces consist of a vacant 1,181 square foot
space (4153 - Suite A) most recently utilized for office use by the Integrated Healing Arts
practice and a 555 square foot space (4155 - Suite A) currently serving as a hair studio, which is
a retail or retail-like use and protected under the city’s recent retail preservation ordinance.
However, because the subject tenant space has historically been used as a medical office, it is
not subject to the retail preservation ordinance.
The subject conditional use permit (CUP) application was filed in response to a code
enforcement action and stop work order issued at the tenant space for illegal construction to
establish the subject dental use. While the specific tenant space has a 22-year history of
medical related uses, the confused entitlement history made it difficult for staff to determine
which uses were legal nonconforming, approved in error, or illegally established. Accordingly,
and based on guidance provided in the code, staff determined resolution of the matter was
best achieved with the filing of a CUP application. The Director’s tentative approval was
challenged by another Hamlet occupant and the matter is now before the Council for final
action. The Council may accept this report and grant the CUP on consent, or at least three
councilmembers may agree to pull the item from consent to conduct a future hearing on the
matter.
The individual requesting the hearing noted six reasons the CUP should be rejected. Staff
concluded all but one were based on incorrect information. The remaining objection related to
the the lack of administrative history that the CUP application attempts to remedy, at least for
the subject tenant space. It is noteworthy that the individual requesting the hearing did not
attend the Planning and Transportation Commission (PTC) hearing.
The PTC reviewed the application on July 26, 2017. The commission’s report is included as
Attachment B and includes all the relevant history, including analysis of the hearing requestor’s
reasons against the CUP application. The PTC concurred with staff and recommended approval
of the CUP 4-1. The dissenting commissioner expressed concern for the need to retain ground-
floor retail and the potential precedent setting nature of future developments with multi-party
ownership. Staff appreciates these dissenting remarks, but suggests the evidence that is
available shows a long history of medical related uses at the subject tenant space and improved
record keeping and documentation should mitigate the risk of facing similar conditions for
more contemporary projects.
Notwithstanding these conclusions, the Council has discretion to review the project as it relates
to the CUP findings (see Attachment A). If findings cannot be made to support the CUP and it is
denied, only a conforming use can occupy the building, specifically, retail or retail-like uses.
While there are clearly stated policies promoting the preservation of retail in the city, this
interest may also be balanced with the history of office-related uses at the site generally, and
more specifically at this tenant space; it’s location just off El Camino Real on El Camino Way;
City of Palo Alto Page 3
and the significant challenges in equitably determining which of the commercial tenant owners
at the Hamlet may be permitted to retain office and which ones must convert their tenant
spaces to other uses. The city has limited records that help resolve these challenges.
The attached documents provide more background and analysis for the Council’s consideration.
Environmental Review
The subject project has been assessed in accordance with the authority and criteria contained
in the California Environmental Quality Act (CEQA), the State CEQA Guidelines, and the
environmental regulations of the City and determined to be categorically exempt in accordance
with CEQA Guidelines Section 15301.
Attachments:
Attachment A: Location Map (PDF)
Attachment B: Record of Land Use Action (DOCX)
Attachment C: May 30, 2017 Tentative Letter of Approval (PDF)
Attachment D: Request for Hearing Letter (PDF)
Attachment E: Correspondence from Hamlet Commercial Assoc. President (PDF)
Attachment F: City/Developer Correspondence from June 1985 (PDF)
Attachment G: Parking Analysis (PDF)
Attachment H: Project Plans (DOCX)
Attachment I: PTC Staff Report - July 26, 2017 4157 ECW CUP (w/o attachments) (PDF)
Attachment J: PTC Excerpt Minutes for July 26, 2017 (DOCX)
DRAFT Attachment B
APPROVAL NO. _______
RECORD OF THE COUNCIL OF THE CITY OF PALO ALTO LAND USE ACTION FOR 4157 EL CAMINO WAY –
SUITE C3 & C4: CONDITIONAL USE PERMIT
[FILE NO. 17PLN-00051]
On ______, 2017, the City Council upheld the Planning and Transportation
Commission’s recommendation to approve the applicant’s request for approval of a Conditional Use
Permit to allow the operation of a Medical Office use (dentist office) located at 4157 El Camino Way –
Suite C3 & C4, making the following findings, determination and declarations:
SECTION 1. BACKGROUND. The City Council of the City of Palo Alto (“City Council”) finds,
determines, and declares as follows:
A. On February, 16, 2017, the applicant applied for a Conditional Use Permit to allow a
Medical Office use for the operation of a dental practice at the existing site located at 4157 El Camino
Way – Suite C3 & C4.
B. The proposed use is defined as a Medical Office use in accordance with PAMC Section
18.04.030 (95). This is a conditionally permitted land use in the CN zoning district in accordance with
PAMC Section 18.16.040 – Table 1.
C. Following staff review, the Director of Planning considered and proposed approval of
the Conditional Use Permit application on May 30, 2017.
D. Following a timely request for hearing received on June 12, 2017, the Planning and
Transportation Commission (Commission) reviewed the project on July 26, 2017, and recommended
approval of the project to City Council.
E. On_______, 2017, the City Council reviewed the request. After hearing public
testimony, the Council voted to approve the project.
SECTION 2. ENVIRONMENTAL REVIEW. The subject project has been assessed in accordance
with the authority and criteria contained in the California Environmental Quality Act (CEQA), the State
CEQA Guidelines, and the environmental regulations of the City and determined to be categorically
exempt in accordance with CEQA Guidelines Section 15301.
SECTION 3. CONDITIONAL USE PERMIT FINDINGS. The proposed use complies with the Findings
for a Conditional Use Permit as required in Chapter 18.76.010 (c) of the PAMC.
Finding #1: The proposed use, at the proposed location, will not be detrimental or injurious to property or
improvements in the vicinity, and will not be detrimental to the public health, safety, general welfare, or
convenience.
This finding can be made in the affirmative. The proposed Medical Office use is a permitted
conditional use in the Commercial Neighborhood District (CN). The 1,244 square foot subject tenant
space (Unit “C”) is located in an existing building (Building #3) located at 4157 El Camino Way within
a 75,050 square foot mixed-use development (4149-4161 El Camino Way). The proposed use meets
the definition of Medical Office, as the tenant would provide consultation, diagnosis, therapeutic,
preventive, or corrective personal treatment services by doctors, dentists, medical and dental
laboratories, and similar practitioners of medical and healing arts for humans, licensed for such
practice by the state of California. The use would be compatible with surrounding retail uses
because the occupants would provide another customer base during weekday operating hours and
would generally not add to parking demand during busy retail hours on weekends. The Medical
Office use would not conflict with the adjacent uses in the vicinity and provides the requisite parking
requirements as prescribed by municipal code for the CN zoning district and proposed use.
Finding #2: The project will be located and conducted in a manner in accord with the Palo Alto
Comprehensive Plan and the purposes of this title (Zoning).
This finding can be made in the affirmative. The proposed Medical Office use is compatible with the
parcel’s land use designation of Commercial Neighborhood (CN). The Medical Office use would
contribute to the area’s economic vitality and well-being of residents by providing nearby healthcare
facilities. Though the proposed Medical Office use would exceed the maximum square footage for office
uses permitted on the lot, based on the history of the site, the proposed use is appropriately treated as
a legal non-conforming use.
SECTION 4. CONDITIONS OF APPROVAL
Planning Division
1. The use shall be conducted in substantial conformance with the project plans received on May
26, 2017, and related documents on file with the City of Palo Alto Planning Division, except as
modified by these conditions of approval.
2. The applicant shall apply and obtain a Use & Occupancy Permit prior to the time of Building
Permit.
3. This approval letter, including the Conditions of Approval, shall be printed on the plans
submitted for any associated building permit review.
4. The use is limited to the “Medical Office” land use classification defined in Palo Alto Municipal
Code Section 18.04.030(a)(95). “Medical Support Service” means a use providing consultation,
diagnosis, therapeutic, preventive, or corrective personal treatment services by doctors,
dentists, medical and dental laboratories, and similar practitioners of medical and healing arts
for humans, licensed for such practice by the state of California. Incidental medical and/or
dental research within the office is considered part of the office use, where it supports the
onsite patient services. Medical office use does not include the storage or use of hazardous
materials in excess of the permit quantities as defined in Title 15 of the Municipal Code. Medical
gas storage or use shall be allowed up to 1,008 cubic feet per gas type and flammable liquids
storage and use shall be allowed up to 20 gallons total (including waste).
5. The use shall be operated in a manner to protect adjacent residential properties from excessive
noise, odors, lighting or other nuisances from any sources during the business hours.
6. The proposed use shall be comply with all applicable City codes, including Titles 9 (Public Peace,
Moral and Safety) and 15 (Uniform Fire Code) of the Palo Alto Municipal Code and 19 (Public
Safety) of the State of California Administrative Code.
7. Any intensification of use, such as an increase in size of the 1,244 square foot tenant space, shall
require an amendment to the conditional use permit and any other entitlements as specified in
the Palo Alto Municipal Code.
8. Revocation or Modification of Approvals: The director may issue a notice of noncompliance for
any failure to comply with any condition of this permit approval, or when a use conducted
pursuant to a conditional use permit is being conducted in a manner detrimental to the public
health, safety and welfare.
9. To the extent permitted by law, the Applicant shall indemnify and hold harmless the City, its City
Council, its officers, employees and agents (the “indemnified parties”) from and against any
claim, action, or proceeding brought by a third party against the indemnified parties and the
applicant to attack, set aside or void, any permit or approval authorized hereby for the Project,
including (without limitation) reimbursing the City its actual attorney’s fees and costs incurred in
defense of the litigation. The City may, in its sole discretion, elect to defend any such action with
attorneys of its own choice.
SECTION 5. VOTE. The requisite findings described in PAMC Section 18.76.010 (c) for approval of
a conditional use permit can be made for the proposed project. This decision is effective immediately
upon adoption.
PASSED:
AYES:
NOES:
ABSENT:
ABSTENTIONS:
ATTEST:
City Clerk Mayor
APPROVED AS TO FORM: APPROVED:
Senior Assistant City Attorney Director of Planning and Community
Environment
Attachment H
Project Plans
Hardcopies of project plans are provided to ARB Members. These plans are available to the
public online and by visiting the Planning and Community Environmental Department on the 5th
floor of City Hall at 250 Hamilton Avenue.
Directions to review Project plans online:
1. Go to: https://paloalto.buildingeye.com/planning
2. Search for “4157 El Camino Way” and open record by clicking on the green dot
3. Review the record details and open the “more details” option
4. Use the “Records Info” drop down menu and select “Attachments”
5. Open the attachment named “4157 ECW_Revised 5.26.2017 (approved)” and
dated 05/26/2017
Planning & Transportation Commission
Staff Report (ID # 8296)
Report Type: Action Items Meeting Date: 7/26/2017
City of Palo Alto
Planning & Community Environment
250 Hamilton Avenue
Palo Alto, CA 94301
(650) 329-2442
Summary Title: 4157 El Camino Way: Hearing Request for CUP
Title: PUBLIC HEARING / QUASI-JUDICIAL. 4157 El Camino Way, Unit
C-3 & C-4 [17PLN-00051]: Request for a Hearing on the
Director’s Tentative Approval of a Conditional Use Permit
(CUP) for Medical Office use (Dentist). Environmental
Assessment: Exempt from the provisions of the California
Environmental Quality Act (CEQA) per Guidelines Section
15301. Zoning District: Neighborhood Commercial (CN). For
More Information Contact the Project Planner Phillip Brennan
at phillip.brennan@cityofpaloalto.org.
From: Hillary Gitelman
Recommendation
Staff recommends the Planning and Transportation Commission (PTC) take the following
action(s):
1.Recommend approval of the draft Record of Land Use Action (Attachment B) to the City
Council approving the proposed Conditional Use Permit (CUP) to allow Medical Office
Use, subject to findings and conditions of approval.
Report Summary
On February 16, 2017, Dr. Kathy Lee filed an application for a CUP for dental office, which is
considered a medical office use and a conditionally permitted use in the CN zoning district as
specified in Palo Alto Municipal Code (PAMC) Section 18.16. The entitlement request would
allow tenant improvements to the interior of a 1,244 sf ground floor commercial office space in
the mixed-use development known as the Hamlet (i.e. 4149 – 4161 El Camino Way).
On May 30, 2017, the Director of Planning and Community Environment tentatively approved
the request (Attachment C). Notice of the proposed director’s decision was mailed to all
property owners and occupants within 600 feet of the subject property. On June 12, 2017, a
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Planning & Community Environment Department Page 2
request for hearing was submitted within the 14-day request period for the reasons outlined in
this report and as described in the formal request letter included in Attachment D.
Background
The project site is located within a mixed-used development known as the Hamlet, which is
comprised of two- and three-story commercial-office uses and residential condominium units
that are located in seven separate buildings on a 50,447 sf lot. Plans for the Hamlet at the time
of approval (circa 1983) were vague in regards to what portions of the project site were
proposed to be used for retail and similar uses. At about the same time, the City was processing
Code changes to restrict the total amount of office use allowed in the CN and CS zoning districts
to 5,000 square feet, which went into effect while the Hamlet was being constructed (PAMC
Section 18.16.050(b)).
Correspondence between the City and the developer (see Attachment G), dated 1985,
demonstrates that at the time the office space restriction went into effect, 30 percent of the
commercial floor area was to be used for retail, personal or eating and drinking establishments
uses; the remaining 70 percent of the commercial floor area would be used for medical,
professional or general business offices. Although the planned office space exceeded the 5,000
square feet, the Hamlet was entitled to maintain its offices uses as legal, non-conforming uses.
Because this was a non-conforming condition, however, the Hamlet could not expand or
intensify its office uses.
City records from the time of project approval are not available to specify which commercial
spaces were to be used for retail, and which for office and in the intervening 30 years, the
ground-floor commercial suites have been leased and subleased by subsequent condominium
owners without regard to maintaining the approved ratio. This can be attributed to the lack of a
clear designation or condition regarding space(s) to be maintained as retail, a lack of proactive
oversight by the City in documenting the uses of each occupying business through the
recordation of Use & Occupancy Permits, and the lack of record-keeping by condominium
owners and the Hamlet’s Commercial Association.
This lack of documentation has created an issue that cannot be fairly resolved by rejecting or
imposing conditions on the current application. At this time, eight of the 11 commercial
condominium spaces are occupied by businesses performing medical or health services that
would be categorized as Medical Office Use. Because the City has no record of which
condominiums were originally used for office purposes, and because each condominium is
independently owned, the City does not have an equitable means to reduce office square
footage to the original legal, non-conforming amount.
New development proposals for use of ground-floor commercial space in the Hamlet are
reviewed in relation to existing Use & Occupancy Permit records on file. Existing non-Retail or
non-Retail-Like spaces are permitted to continue operating in a non-Retail or non-Retail-Like
capacity if they maintain the same land use type (e.g. Medical Office Use such as a physical
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Planning & Community Environment Department Page 3
therapist office to dental office) of the last tenant that occupied the space within the previous
12 months. The 12 month threshold is found in PAMC Section 18.70.040 (b) which states “On
any site not subject to subsection (a), a nonconforming use of facilities designed and
constructed for nonresidential purposes which is discontinued or abandoned or otherwise
ceases operation and use of the site for a period of one year or more shall not be resumed […]”
If and when any space is vacant for 12 months or more, the City may have the ability to require
ground floor retail use.
The subject space (Suites C-3 and C-4) was sold to Dr. Kathy Lee and Shaun Woo (co-owner) in
early November 2016. The previous owner and current president of the Hamlet Commercial
Association, Dr. Larry Freeman, submitted a letter to the Planning Department which detailed
the occupancy history of the commercial space in question. The letter (Attachment E) named
the last four tenants (a psychologist, two nutritionists and a physical therapist) dating back 22
years that have occupied the space to practice their respective medical and health professions,
with the last tenant moved out on November 30, 2016. These uses would be classified under
Medical Office use. As such, the Planning Division determined the requested proposal to allow
the suites to be utilized as a dental office would be consistent with the land use type the suites
previously operated as, the property has not been vacant for more than 12 month, and would
not be in conflict with PAMC Section 18.70.040 (b).
Project Information
Owner: Kathy Lee
Architect: Thomas Bouffard Architects, Inc.
Representative: Not Applicable
Legal Counsel: Not Applicable
Property Information
Address: 4157 El Camino Way, Condo Units C-3 & C-4
Neighborhood: Charleston Meadows
Lot Dimensions & Area: (Condo Units C-3 and C-4) 31.5’ x 39.5’, 1,244 sf; The Hamlet
(i.e. entire mixed-use development site) is located on a 1.16 acre
(50,447 sf) lot
Housing Inventory Site: Not Applicable
Located w/in a Plume: Not Applicable
Protected/Heritage
Trees: Yes; in City sidewalk fronting the width of the Hamlet complex
Historic Resource(s): No
Existing
Improvement(s):
Existing commercial office space used most recently as a physical
therapy office
Existing Land Use(s): Medical Office
Adjacent Land Uses & North: CN (medical offices, personal services and residential)
City of Palo Alto
Planning & Community Environment Department Page 4
Zoning: West: CN (eating & drinking services, private education services,
retail), PC- 4190 (Zen Hotel)
East: RM-40 (multi-family condominiums)
South: CS (Camino Place)
Special Setbacks: Not Applicable
Aerial View of
Property:
Source: Google Earth
Land Use Designation & Applicable Plans/Guidelines
Zoning Designation: CN; RM-40; RM-15 (subject Condo Units located in CN)
Comp. Plan Designation: Commercial Neighborhood; Multi-Family
Context-Based Design: Not Applicable; interior remodel work only
Downtown Urban Design: Not Applicable
SOFA II CAP: Not Applicable
Baylands Master Plan: Not Applicable
ECR Guidelines ('76 / '02): Not Applicable; interior remodel work only
Proximity to Residential
Uses or Districts (150'): Yes, immediately adjacent to north, east and south
Located w/in AIA
(Airport Influence Area): Not Applicable
City of Palo Alto
Planning & Community Environment Department Page 5
Prior City Reviews & Action
City Council: None
PTC: None
HRB: None
ARB: None
Director: Tentative approval of a CUP issued on May 30, 2017
Requested Entitlements, Findings and Purview:
The following discretionary applications are being requested and subject to PTC purview:
Conditional Use Permit: Conditional Use Permits (CUP) are intended to provide for uses
and accessory uses that are necessary or desirable for the development of the
community or region but cannot readily be classified as permitted uses in individual
districts by reason of uniqueness of size, scope, or possible effect on public facilities or
surrounding uses.
The process for evaluating this type of application is set forth in PAMC Section
18.77.060. CUP applications are subject to standard staff review process to evaluate
compliance with applicable zoning district requirements and ensure application
completeness. Not less than 21 days following the date an application is deemed
complete, the director shall prepare a proposed written decision to approve, approve
with conditions, or deny the application based on the required findings specified in
PAMC Section 18.76.010 (c). All findings must be made in the affirmative to approve the
application.
Any person may request a hearing by the PTC regarding the director’s tentative decision
and the PTC is required to hold a noticed public hearing within 45 days. Following the
hearing, the PTC makes a recommendation on the application, which is forwarded to the
City Council for a final decision.
Project Description
The subject application is a request for a CUP to allow Medical Office Use in accordance with
PAMC Section 18.16.040 (a) Table 1, in a ground floor commercial condominium space located
in Unit C-3 and C-4 at 4157 El Camino Way. This site is within an existing mixed-use,
commercial and residential complex known as the Hamlet (i.e. 4149-4161 El Camino Way).
Construction would be limited to interior remodeling of the existing ground-floor commercial
space to accommodate the proposed dental practice, which requires approval of a Building
permit.
Discussion
City of Palo Alto
Planning & Community Environment Department Page 6
Medical Office Use in the Commercial Neighborhood District (CN) is a permitted land use
requiring a CUP and is subject to the following findings per PAMC Section 18.76.010 (c)(1)(2):
1. Not be detrimental or injurious to property or improvements in the vicinity, and will not
be detrimental to the public health, safety, general welfare, or convenience;
2. Be located and conducted in a manner in accord with the Palo Alto Comprehensive Plan
and the purposes of this title (Zoning).
With respect to the above findings, staff was able to make the determination that the project
was not detrimental to the existing property or general welfare of the public and that it met the
requirements of the applicable zoning code.
Staff recommended findings and conditions of approval are included in the draft record of land
use action and tentative letter of approval found in Attachments B and C.
Hearing Request
On June 12, 2017, a timely request for hearing was submitted by Mr. Ivan Khoshnevis after
issuance of the Director’s decision for tentative approval of the CUP application. Mr.
Khoshnevis listed six primary contentions of protest in his submitted hearing request letter.
Provided below are those itemized contentions (quoted and italicized in bold) and planning
staff’s response to each claim:
“1 – Insufficient parking space for current tenant or owner of (Medical and other commercial
businesses) at premises.”
The applicant was required to submit a parking analysis and site layout of the existing parking
conditions at the Hamlet complex (Attachment H). In addition, a site inspection was performed
by the project planner to confirm the parking count and layout indicated in the provided
analysis.
A total of 59 commercial parking spaces (includes one accessible space) exist in the
subterranean parking facility to serve the Hamlet’s 11 commercial condominium spaces. These
spaces are located in close proximity to the commercial condominiums and are separated from
the 92 residential parking spaces by an automated security gate.
Utilizing the most restrictive parking space ratio (i.e. one space per 200 sf) for a permittable use
(e.g. retail or personal service use) in the CN zoning district results in 57 required parking
spaces, which is satisfied by the Hamlet’s current parking provision. As such, staff has
determined there are a sufficient number of parking spaces for any array of commercial tenant
uses provided at the complex.
“2 – Lack of handicap dedicated parking space (Currently there is only one space in the
garage).”
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Planning & Community Environment Department Page 7
There is presently one accessible space provided in the commercial tenant parking area.
Current parking standards would require the Hamlet to provide three (3) accessible spaces per
PAMC Section 18.54.030 Table 1. Building plans on file dating back to 1984 indicate the general
parking layout and provision of one accessible space coincides with the existing conditions
found in the garage today. Because the applicant is not proposing any improvements to the
garage or any increase in commercial floor area, the City cannot require alterations be made to
the parking garage to bring it up to code at this time. Nonetheless, City staff can suggest that
the condominium owners and the Hamlet’s Commercial Association pursue changes to the
garage through a separate building permit process.
“3 – This permit is in violation of current city of Palo Alto code, which prohibit any medical
office to be operate (sic) at ground floor (Street level).”
The provisions outlined in PAMC Section 18.40.180 – Retail Preservation are intended to
protect and create neighborhood-serving retail opportunities, preserve ground-floor
pedestrian-oriented streetscape experience, maintain reasonable retail lease rates, and prevent
additional traffic associated with new office uses. This is accomplished by placing the restriction
that any existing ground floor Retail or Retail-Like use permitted or operating as of March 2,
2015, can be replaced only by another Retail or Retail-Like use, as permitted in the applicable
district. The applicant has submitted evidence that indicates the subject office suites (C-3 & C-4)
have historically been leased for Medical Office use to health practitioners, as was true at the
time the suites were purchased by the applicant and when the last tenant moved out in
November 2016. As such, staff has determined the issuance of the requested CUP to allow
Medical Office use in a ground-floor retail space is not in conflict with the aforementioned
municipal code. (See the Background section above for more history on the use of ground floor
units for office space.)
“4 – Above unit should not be included in Grandfathered clause, since there was no history of
medical or dental business at this location for at least past (sic) 10 years.”
Dental offices are a conditionally permitted land use in the CN zoning district and categorized
under Medical Office. To utilize the space for a non-conforming use, the applicant needs to
demonstrate that the space was used for purposes that could be categorized under Medical
Office use. As noted in the background section of this staff report, documentation (Attachment
E) was submitted to the Planning Department which details the occupancy history of the
subject space and indicates the tenants were utilizing the space for land uses that can be
categorized as Medical Office Use and, as such, contradict the hearing requestor’s claim.
“5 – Start of construction without permit which enforcement department red tagged the unit
on early March 2017.”
On January 23, 2017, a formal complaint was submitted to the City’s Code Enforcement
Department via the 311 public reporting platform. The complaint reported unpermitted work
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Planning & Community Environment Department Page 8
being performed at the subject site; a stop work order was subsequently issued the next day
and posted at the site. In the following weeks, additional complaints of continued unpermitted
work were reported informally by Mr. Khoshnevis at the Planning Department offices on
multiple occasions. The complaint was furthering investigated by a City building inspector and
on March 6, the subject site was red-tagged and utilities were pulled to restrict any further
work from being performed until the required building permit has been issued
As it relates to the tentatively approved CUP application, the aforementioned issues are
unrelated.
“6 – The ratio of allowed medical/Dental area to retail space exceed zoning department (sic),
by allowing use of above property for Dental use.”
There is no medical/dental to retail space ratio mandated by the PAMC. As noted previously,
the Retail Preservation ordinance is applicable to existing ground-floor space permitted or
operating as a Retail or Retail-Like use as of March 2, 2015. The subject site is not converting a
space previously occupied by a Retail or Retail-Like use.
As noted in the Background section, with the limited information staff has been able to find on
this site, we believe only 70 percent of the commercial floor area was entitled to be used for
office purposes. Unfortunately, in the years since the site’s construction, the commercial
condominiums have changed hands and this requirement was not made clear to new
commercial condominium owners. As such, the Hamlet’s ground-floor commercial spaces have
not been regulated and over time developed organically into a de facto medical office center
and because the commercial condominium spaces are individually owned rather than part of a
planned community, enforcement of the prescribed ratios is difficult and it would not be fair to
impose the retail requirement on the current applicant.
Environmental Review
The subject project has been assessed in accordance with the authority and criteria contained
in the California Environmental Quality Act (CEQA), the State CEQA Guidelines, and the
environmental regulations of the City. The project is an existing building that is exempt from
the provisions of the California Environmental Quality Act (CEQA) per Guidelines Section 15301.
Public Notification, Outreach & Comments
The Palo Alto Municipal Code requires notice of this public hearing be published in a local paper
and mailed to owners and occupants of property within 600 feet of the subject property at least
ten days in advance. Notice of a public hearing for this project was published in the Palo Alto
Weekly on July 14, 2017, which is 12 days in advance of the meeting. Postcard mailing occurred
on July 12, 2017, which is 14 days in advance of the meeting.
Public Comments
As of the writing of this report, no project-related, public comments were received.
City of Palo Alto
Planning & Community Environment Department Page 9
Alternative Actions
In addition to the recommended action, the Architectural Review Board may:
1. Approve the project with modified findings or conditions;
2. Continue the project to a date (un)certain; or
3. Recommend project denial based on revised findings.
Report Author & Contact Information PTC1 Liaison & Contact Information
Phillip Brennan, Project Planner Jonathan Lait, AICP, Assistant Director
(650) 329-2493 (650) 329-2679
phillip.brennan@cityofpaloalto.org jonathan.lait@cityofpaloalto.org
Attachments:
Attachment A: Location Map (PDF)
Attachment B: Draft Record of Land Use Action (DOCX)
Attachment C: Conditional Use Permit Tentative Approval (PDF)
Attachment D: Request for Hearing (PDF)
Attachment E: Correspondence from Hamlet Commercial Assoc. President (PDF)
Attachment F: Applicant's Project Description (PDF)
Attachment G: City/Developer Correspondence (June 1985) (PDF)
Attachment H: Parking Analysis (PDF)
Attachment I: Project Plans (DOCX)
1 Emails may be sent directly to the PTC using the following address: planning.commission@cityofpaloalto.org
City of Palo Alto Page 1
Call to Order/Roll Call
Present: Commissioner Gardias, Commissioner Monk, Commissioner Rosenblum, Commissioner
Summa and Vice-Chair Waldfogel (Acting Chair)
Absent: Chair Alcheck and Commissioner Lauing
3. 4157 El Camino Way, Unit C-3 & C-4 [17PLN- 00051]: Request for a Hearing on the Director’s
Tentative Approval of a Conditional Use Permit (CUP) for Medical Office use (Dentist).
Environmental Assessment: Exempt from the provisions of the California Environmental Quality
Act (CEQA) per Guidelines Section 15301. Zoning District: Neighborhood Commercial (CN). For
More Information Contact the Project Planner Phillip Brennan at
phillip.brennan@cityofpaloalto.org.
Acting Chair Waldfogel: Ok, so let's move on to Agenda Item 3, the public hearing, quasi-judicial for 4157
El Camino Way. I believe there’s a short staff report on this?
Phillip Brennan, Project Planner: Correct.
Acting Chair Waldfogel: Yes, please.
Mr. Brennan: Good evening to the Members of the Commission. My name is Phillip Brennan. I’m the
Project Planner for this Conditional Use Permit (CUP) application. As we begin I'd like to provide just a
brief overview of the hamlet mixed-use development and the pertinent issues as it relates to this
application. This is a mixed-use development that was approved in 1983. At the time it was approved
with the prescribed 70 to 30 ground floor to or ground floor office to retail square foot ratio. We know
this through correspondence, post approval correspondence between the Zoning Administrator and the
builder. Construction commenced in May 1984 and this is important to note because during around
that time the City was adopting an ordinance which placed a cap on the maximum amount of office
space in the CN zoning district. The developer provided evidence that demonstrated significant
construction had taken place prior to the adoption of that ordinance and as a result the approved
conditions were maintained. Oh, I’m so sorry. I apologize. There we go… As a result of that vesting the
excess square footage which was close to 9,000 square feet (sf) of commercial office space the excess
over 5,000, the 5,000 square foot cap was designated legal non-conforming.
A bit about the application timeline; the application was submitted in February 2017 requesting a CUP
filed by Dr. Kathy Lee requesting a medical office use for condo units C3 and C4 located at 4157 El
Camino Way. The application was reviewed by staff to ensure the applicable zoning codes were
Planning & Transportation Commission
EXCERPT DRAFT MINUTES: July 26, 2017
City Hall/City Council Chambers
250 Hamilton Avenue
6:00 PM
8:30 AM
City of Palo Alto Page 2
complied with. Part of that review included a request from the applicant to provide a parking analysis to
ensure that adequate parking provision could accommodate the medical office use. In addition because
this was a medical office use request the tenant history was requested and the applicant provided
documentation identifying the previous four tenants that were concurrently co-occupying this space.
And that was they were occupying the space within 12 months, within the previous 12 months, and
using the space in a capacity that could be defined as medical office use. As such staff moved the
application forward and in May the Director of Planning and Community Environment tentatively
approved the CUP request. In June of 2017 the Request for Hearing was submitted by Mr. Ivan
Khoshnevis.
As stated Mr. Khoshnevis requested a Request for Hearing and provided six primary points of contention
which I've paraphrased here. Staff reviewed these contentions and responded to them in detail in the
staff report. I won't go through every point, but I'll be happy to address any specifics of these points.
Many of these points of contention are resolved with just an understanding and application of the
existing municipal code in terms of continuance of non-conforming use and the retail preservation
ordinance. Others such as the lack of accessible parking space is not the responsibility of the applicant
because the applicant is not, the scope of work proposed is not increasing the square footage of the unit
nor are they proposing to modify the parking layout and so they cannot be held responsible for bringing
the accessible parking count up to code. That will, can be addressed at a later date through a separate
building permit with the Commercial Association.
The one point we do feel has some merit is point Number 6, the medical and dental office ratio
exceeding the zoning code. It is true that the existing uses at the hamlet do not meet the prescribed
ratio as the current tenants are utilizing the commercial spaces for non-retail land uses. For many years
the City did not do a good job of record keeping and monitoring the use and occupancy permits over the
past 30 years which has resulted in a commercial complex of predominantly medical and health
practices because these are individually owned placed or excuse me, spaces with no record or
documentation identifying which spaces were designated for retail or office use it's difficult for the City
to enforce the prescribed ratio equitably to both the existing tenants and commercial condo owners.
The City is trying to resolve this issue fairly through the provisions that are outlined in the municipal
code in terms of allowing the continuance of nonconforming uses, prohibiting the conversion of any
existing retail to non-retail, and being more vigilant in terms of researching tenant improvement
requests and tracking U and O history of commercial spaces. As such, excuse me, with that said staff is
determined to determine the subject application for medical office use would be consistent with the
land use types the suites were previously operating as and that space had not been vacant for more
than 12 months and therefore would not be in conflict with municipal code. As such staff is
recommending the Planning and Transportation Committee, excuse me, the staff is recommending
Planning and Transportation Committee (PTC) recommend this CUP to the City Council. Thank you.
Acting Chair Waldfogel: Great, thank you. Do we have any speaker cards for this? I did not receive
any... Nothing. Any members of the public planning to speak on this because this would be the point to
do so. Ok.
Albert Yang, Senior Deputy City Attorney: Chair can I ask for any Commissioner disclosures if there are
any to be made?
Mr. Yang: Right, yeah. This would be about ex-parte communications, but if there are none that’s great.
City of Palo Alto Page 3
Acting Chair Waldfogel: Great. Ok, let's open up, let’s open this up. You want to start [Art] do you have
anything you want to say?
Commissioner Rosenblum: I don't have much. I feel like this one is fairly straight forward and that staff
did a good job to answer the concerns of the petitioner for this hearing. So I'm not to take up more time
when if my other fellow Commissioners wanted to have their round I'm happy to make a Motion at the
end of that.
Acting Chair Waldfogel: Please, Commissioner Summa.
Commissioner Summa: So I do have a few questions. So I appreciate the applicant coming forward and
bringing us medical use which we need places to put medical uses, but I do have a kind of a problem
with the 30/70 split and I understand that that ratio was lost over the years. And that is something I
don't think that we can it can be explained through grandfathering. And I understand that it might not
be possible for staff to go back and investigate it, though we have had in the past really good historic
investigations in the staff reports. My concern is that we also have a very strong need to retain retail in
the City so I would is there any idea when all these conversions to medical that violated the 30/70 split
happened? Was or when it became a condo? It seemed like from the letters that staff provided that it
was originally a for lease built, the whole complex was for lease by the developer. Is that correct?
Mr. Brennan: As I, I believe that's correct.
Commissioner Summa: So do we have any idea when it became a condo? And my concern is the original
is the violation of the original condition of approval which I assume was specific to this development and
not a citywide requirement at that time. Is that right?
Mr. Brennan: The prescribed ratio was a condition.
Commissioner Summa: Special condition (interrupted).
Commissioner Summa: Ok. Because there's already a lot of medical there and there's only 555 sf of
retail so it would be really nice to get some retail back in especially since the CN zone is the zone the
little C as I call them zones: the CS, [CC, and CC] that are the most neighborhood oriented medical being
sort of a secondary use to retail. And also there was some discussion in the staff report about the
difficulty because it's a multiparty owned building and indeed the whole complex is, but I wonder I mean
there are many, many, many buildings that are multiparty owned so I wonder if this sets a precedent
that that's kind of unusual to me that if you have more than one owner of a given property or parcel
that it gives you more access to not following the zoning which in this case is a special condition. And I
think that's kind of a difficult thing for me to contemplate becoming a precedent. So those are really my
concerns. So do we know when it became condo-ized?
Mr. Brennan: Well I'd like to walk back the I may have misspoken. I'm not sure if it was ever as
described [unintelligible] you were describing as for lease and then converted it to condo.
Commissioner Summa: Well I think the letter Exhibit H maybe, the letter from the developer says the
he’ll keep the leasing agreement it's I forget which… It's Exhibit G that he'll keep the lease agreement I
think is where I came up with that.
Hillary Gitelman, Planning Director: While Phillip is looking up that information maybe I can hop in on
this issue of just kind of how do you deal with ownership situations. These are commercial
City of Palo Alto Page 4
condominiums so each one are owned by a separate entity. I don't think first of all that if we had this
project to do over again and approved it today we would be vague about where the retail was supposed
to be (interrupted).
Commissioner Summa: Right, I understand that.
Ms. Gitelman: Where the commercial was going to be, but in this case we think the records were vague
at the time of approval. And our thought is that it just wouldn't be fair to tell this particular owner who
purchased a space that had been in use as medical office that now because of some record keeping
problem they couldn't use it for the use that it has been used for when they purchased it.
Commissioner Summa: Right.
Ms. Gitelman: So that's why our recommendation to approve the CUP and if any of the units ever
become vacant for more than 12 months and lose their kind of non-conforming status then we would
have more leverage to ask for the retail use again. But as long as they're kind of in continuous use as
medical office it's hard to I mean it just wouldn’t be fair to the property owner in this case the
commercial condo owner to force a change in use.
Commissioner Summa: I was thinking maybe I understand there’s a commercial condo association. I
was thinking maybe the fair thing to do would be to give them an opportunity to discuss how they
wanted to handle this in the future. It may have been the case that this didn't come up for years
because people didn't apply for CUPs necessarily which I think has kind of been common. And so maybe
this is a question for our attorney. Is this creating a precedent for properties that are owned by multiple
parties which is very common?
Mr. Yang: Yeah. I mean I think the problem that's created here is a result of the City's lack of any record.
I mean we don't even have the originally approved plans. So I think it's the lack of records in this case
that's creating the issue and I don't think that we would necessarily be creating a precedent for any
other uses.
Commissioner Summa: But we do have clear records that state there was a condition of approval that
was a 30/70 percent split with 30 percent being retail. And I note at this location what's needed is retail
more than medical especially since there's already I think three or four dentists, dental practitioners.
Ms. Gitelman: Yeah, again if we had the project plans and they showed that it was this space that was
supposed to be retail we would be able to force retail at this location, but we don't have an approved
set of plans. We don't have anything from the time that this condition was applied that shows that this
was one of the spaces that was in the 30 percent.
Mr. Brennan: There's five buildings that contain ground floor commercial space which is all located in
the CN district. As Hillary is stating we know the split what we don't know are which spaces are
designated strictly for retail, which were designated for commercial which is why we're having the
problem of trying to resolve this fairly.
Mr. Yang: Just to clarify the CN zone has a limit of 5,000 sf per parcel. It's not a 70/30 split in the CN
zone; 70/30 was just the (interrupted).
Commissioner Summa: It was a condition of approval for this project, the entire project.
City of Palo Alto Page 5
Mr. Yang: Right. I guess I want to clarify also that we don't have records necessarily showing that it was
a condition of approval. It was certainly the way that the project was intended to be used when it was
constructed, but we don't have the conditions of approval from the approval either.
Acting Chair Waldfogel: Thank you. We have one speaker card. Do you mind if I let Mr. Moss… Bob
Moss do you want to come speak on this?
Robert Moss: Thank you. [It was] interested in your comments so let me give you some history on that
site. Forty years ago there was a commercial area. It was basically a garden shop and we rezoned it CN
with the intent of making it ground floor retail with housing up above. And at the same time condos
were being built along East Meadow between El Camino Way and Wilkie. And so we wanted to have
retail to serve those condos, Ventura, and Barron Park. When the property was developed the ground
floor was built as a retail site, but retail at that time included medical not just shops if you will. And the
developer held almost all the properties off the market for over a year. And then he said oh, I can't rent
these to retail. This is a bad area for retail because it's not on El Camino and it's doesn't have adequate
parking and I can't get people to move in there so I'm going to put medical in there. Putting in offices
because they're willing to go in there and that's why we got the medical in. And once the medical went
in it basically eliminated any retail vitality because there were only a few parcels left for retail and retail
businesses weren’t going to go in where they were the only one or there were only a couple of others
along with them. So that's why it's been office for almost 40 years. That's where the money was and
that’s what the developer wanted. And the public had no right to say you can't do it. It’s your property.
So that's why we have offices medical on the ground floor.
Now in theory you could prohibit offices from reentering. An office leaves you can say no, retail has to
go in there not an office to replace it. That's in theory. In practice I think that would be very difficult to
do. You can talk to Legal staff and you can talk to the Planning staff and see if they think it's practical. I
have my doubts, but that's why we have that facility being used in that way as it is today. The developer
did not do what he was supposed to do and what the public and what originally the Planning
Commission and the City Council wanted which was to have a retail area along El Camino Way. So we're
stuck.
Acting Chair Waldfogel: Thank you for the historical perspective; let’s move on to Commissioner Monk.
Commissioner Monk: Just briefly aside from the hearing request from Mr. Khoshnevis and from what we
just heard from Mr. Moss I didn’t see any other contentions brought up with regard to the CUP. I felt as
though all the issues that he brought up in his appeal were sufficiently addressed by the staff. And the
analysis that followed addressed all of those concerns so I would support moving forward with a Motion
when we're ready to do so.
Acting Chair Waldfogel: Thank you. Commissioner Gardias.
Commissioner Gardias: Thank you. So just Mr. Moss thank you very much for interesting perspective
and by the way it's always nice to have you here. So what is the plan? Do we have any is there a
possibility to have a plan to really just regain the retail in there? I know that you may just tell me that
this is not scope of today's meeting, but we should pretty much prospectively think about converting
some of that space into retail in the future. Was it a subject of your conversations and?
Ms. Gitelman: Yeah, again anything that's currently in ground floor retail would have to maintain that
retail. If one of these spaces were to become vacant for 12 months or more then also they would lose a
non-conforming status and we could potentially ask for retail. We’d have it’s the same challenge which
City of Palo Alto Page 6
is the records aren't super clear about where in the development retail is required, but we would have
certainly a better leg to stand on then we do right now.
Commissioner Gardias: Yes and this is exactly what you said was in the staff report, right? I was thinking
if there is something else some other perspective that you can offer to us. Maybe we can when we are
working on the Comprehensive Plan maybe we can look into this as an example and adjust one of our
policy.
Ms. Gitelman: I think we all recognize the retail preservation policies we have a very strong. This is a
situation where it's really about the property right and the individual ownership of this unit and their
expectation that it can continue to be used for the purpose that it's been used most recently. So I'm not
sure it's something we could address in the Comprehensive Plan, but I certainly recognize that the
Commission at least a couple of the Commissioners are concerned about this and we certainly have to
do a better job today than we did in the past with documenting spaces that are required to maintain
their retail function.
Commissioner Gardias: So what was the purpose of the construction that was taking place? I don't
remember this being explicitly stated in the staff report. I remember reading about this, but I was
wondering what work was being conducted without the permits?
Mr. Brennan: Could you clarify what you mean when you're asking what was the purpose of the
construction?
Commissioner Gardias: What was the scope of the work, of the construction work that was taking place
before conditional permit was, before the preliminary permit was issued?
Mr. Brennan: They were… right, right, right, right. They were pouring the subgrade parking garage. Is
a…
Commissioner Gardias: They were pouring?
Mr. Brennan: Oh, I'm so sorry. Yeah, they were doing interior remodeling of the space.
Commissioner Gardias: Of that very space?
Mr. Brennan: Yeah.
Commissioner Gardias: That they would be remodeling once we grant them the permit.
Mr. Brennan: Right.
Commissioner Gardias: From the perspective of Americans with Disabilities Act (ADA) would they be
required to with remodeling of the space itself would they be requiring to comply with California ADA?
Ms. Gitelman: Again Commissioners we indicated in the report we don't feel like the City can force them
to bring the garage up to ADA based on the tenant improvements that are proposed. You know ADA is a
federal law. I think the condo association would be wise to consider that, but we don't feel like it's the
City's position at this point to force it.
City of Palo Alto Page 7
Commissioner Gardias: Yes it is. I remember reading about this, but I'm asking about the space. The
parking garage it's a different story, but then when they're remodeling the space it should be still
compliant with California ADA.
Ms. Gitelman: The tenant’s space itself, absolutely. Yes, absolutely.
Commissioner Gardias: Ok. So now let's talk about ADA for the garage, right? So it's the law was
enacted by George Bush in 1999, 1991. So it's been 26 years. What is the how what is the timeline of
the of compliance of those grandfathered spaces, parking spaces to ADA laws? Would they be would
this association and this collection of separate owners be able to pretty much keep grandfathering this
space for ever until let's say unless somebody brings litigation and sues them for noncompliance based
on some accident?
Ms. Gitelman: Yeah, I think we could consult with the Chief Building Official on that. I don't know that
we have an answer for you on the spot.
Commissioner Gardias: Yes, I was asking this being concerned because giving the ownership structure I
can hardly see any changes for this building in there from retail perspective or from compliance with
ADA. Thank you.
Acting Chair Waldfogel: Thank you. Let's see, so just my comments I plan to support the CUP based on
the recent previous use argument. I do want to flag something maybe echo something that
Commissioner Gardias just said that as we look at code updates maybe we should look at this as an
example of lessons learned. I'm sure that at the time when the permit was originally issued that the
planning officials at that time thought that they were the requirements were completely clear and that
everything was stored in a permanent record somewhere. I'm sure they believed that and I'm sure that
we believe that about everything that we do, but maybe the lesson we should take away is that some of
these complicated conditions that require constant monitoring and surveillance and good record
keeping may not be great ideas to capture and code. So anyway I would just like us to take note that
maybe there's a lesson to learn here, but I don't my view is I don't want to hold out that lesson as an
obstacle for this applicant.
Ms. Gitelman: If I can add one thing and just piggyback on that. In the category of best practices
Commissioner Monk noted that we have an error in the Record of Land Use Action here in the California
Environmental Quality Act (CEQA) finding and so if the Commission is ready to make a Motion we would
ask that you forward your recommendation with the direction for us to correct that deficiency in the
Draft Record of Land Use Action.
Acting Chair Waldfogel: Great, thank you for the clarification. Anyone ready to make a Motion? One,
one further comment.
Commissioner Summa: Very, very quickly. Is the appellant not here? Does that affect the status of this
hearing at all or not?
Ms. Gitelman: No not unless he actively withdrew the request for hearing.
Commissioner Summa: Ok. And I had one last comment and that is my understanding of grandfathering
in legal nonconformity is that it had to be legal when built and so I'm just having a hard time seeing how
the commercial portion of this could be the 30/70 split which is clearly referred to in the letter how that
could be considered legally nonconforming at this time since there's no proof that it was legal when a
City of Palo Alto Page 8
law changed. So I just and that being said I'm very supportive and do not wish to be appear to be not
supportive of the dental group that wishes to go in. So I just wanted to make that clear.
Acting Chair Waldfogel: Ok, great. Any further comments or do we have a Motion?
Commissioner Monk: Yeah as far as the changes that need to happen also at the top it says North
California Avenue conditional use so I don't know if that's appropriate language.
Ms. Gitelman: Yeah we’ll do a scrub through the Record of Land Use Action and make sure it matches
the staff report. Thank you.
Commissioner Monk: Ok. Great, thanks.
Acting Chair Waldfogel: Great. Please.
MOTION
Commissioner Rosenblum: So like to make a Motion that we approve the Council's recommendation of
the CUP to allow the medical office use for this property.
SECOND
Commissioner Monk: Second.
VOTE
Acting Chair Waldfogel: Great, moved and seconded. Any further discussion? All in favor? Aye.
Opposed? 4-1, Commissioner Summa voting against. The Motion carries. Great, thank you.
MOTION PASSED (4-1-2, Commissioner Summa against, Chair Alcheck and Commissioner Lauing absent)
Commission Action: Motion to Approve Staff Recommendation of CUP to Allow Medical Office use for
property (Motion: Commissioner Rosenblum, Second Commissioner Monk) Motion Passed 4-1 (Summa
Against, Chair Alcheck/Commissioner Lauing Absent)