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HomeMy WebLinkAboutStaff Report 2505-4747CITY OF PALO ALTO CITY COUNCIL Monday, June 16, 2025 Council Chambers & Hybrid 5:30 PM     Agenda Item     12.Approval of a Director’s Interpretation Pursuant to PAMC Section 18.01.025 Concluding That Noncomplying Residential Gross Floor Area may not be Relocated Within a Structure; Denial of the Associated Appeal; Direction to Prepare a Future Code Amendment for Administrative De Minimis Exceptions to the Zoning Code; CEQA: Exempt Pursuant to CEQA Guidelines Section 15061(b)(3) Consent Questions 7 4 4 4 City Council Staff Report From: City Manager Report Type: CONSENT CALENDAR Lead Department: Planning and Development Services Meeting Date: June 16, 2025 Report #:2505-4747 TITLE Approval of a Director’s Interpretation Pursuant to PAMC Section 18.01.025 Concluding That Noncomplying Residential Gross Floor Area may not be Relocated Within a Structure; Denial of the Associated Appeal; Direction to Prepare a Future Code Amendment for Administrative De Minimis Exceptions to the Zoning Code; CEQA: Exempt Pursuant to CEQA Guidelines Section 15061(b)(3) RECOMMENDATION Staff recommends that the City Council: 1. Uphold the Director of Planning and Development Services’ formal interpretation dated May 8, 2025, concluding that noncomplying residential gross floor area may not be removed and restored elsewhere on the property pursuant to Palo Alto Municipal Code (PAMC) Chapter 18.70, denying the associated appeal; and 2. Direct staff to prepare a text amendment authorizing the Director of Planning and Development Services to consider or approve de minimis exceptions from noncomplying facility regulations and similar minor adjustments that are not impactful to adjacent properties or public realm. EXECUTIVE SUMMARY On May 8, 2025, the Director of Planning and Development Services issued a formal interpretation of PAMC Chapter 18.70, concluding that noncomplying gross floor area (GFA) may not be removed and replaced elsewhere on a site, even where total GFA is not increased. This interpretation was prompted by a minor remodel of a single-family home that remains over the district’s GFA limit. A timely appeal challenged the interpretation, arguing that the project does not intensify noncompliance and should be allowed. Staff believe that the Director‘s interpretation reflects the most reasonable and consistent application of the Municipal Code and that it supports the broader policy goal of reducing 7 4 4 4 noncomplying conditions over time. While the proposal in the appellant‘s case is minor, permitting it would render portions of the code meaningless and could create a precedent for larger changes inconsistent with the Code’s purpose. Staff recommend that the City Council deny the appeal, uphold the interpretation, and direct staff to prepare a future code amendment to allow administrative de minimis exceptions for minor residential modifications that do not impact neighbors or the public realm. BACKGROUND 7 4 4 4 Appellant’s Position The appellant’s statements are provided in Attachment B and summarized below. ANALYSIS 7 4 4 4 improvement to a noncomplying facility shall be permitted which increases the noncompliance. This section shall not be construed to prohibit enlargement or improvement of a facility, otherwise permitted by this title, which does not affect the particular degree of or manner in which the facility does not comply with one or more provisions of this title. b) …. (not applicable to residential properties) The appellant asserts that their proposal is permitted by PAMC Section 18.17.080 because it does not affect the particular degree or manner of non-compliance. In essence, the appellant argues that a change in the location of a noncomplying feature cannot be considered a change in the manner of noncompliance because the word “manner” refers only to the general type of noncompliance (e.g. height, setback, or GFA) and cannot refer to “location.” The appellant’s position, however, eliminates the word “particular” from the code. The word “particular” adds a level of specificity to the requisite analysis. The “particular manner” of noncompliance is reasonably understood to mean the specific way in which a structure is noncomplying, which would include location. Rather than introducing new code language, as suggested by the appellant, the Director’s interpretation reflects a reasonable reading of the code that gives effect to all of its provisions. While the proposal at issue is a relatively minor change to the rear and side of the house, the code must be applied consistently across all residential project types. If the appellant’s reasoning were followed, a one-story home that exceeds the maximum GFA limit could demolish a large portion of the existing structure and rebuild the same amount of floor area as a second story. Though a second story may otherwise be allowed, this reconfiguration would significantly alter the form, massing, and presentation of the noncomplying structure, an outcome that meaningfully affects the manner in which the facility does not comply. Rather, this provision is intended to distinguish between improvements that preserve the nature and location of a nonconformity and those that materially alter it. For example, a home with a legal noncomplying front yard setback may be permitted to construct a second story or expand toward the rear of the property, so long as the new work complies with all applicable development standards and does not intensify or extend the existing noncompliance. In that scenario, the front yard setback remains unchanged and the particular degree and manner of noncompliance are not affected. Section 18.70.090 states: a) Normal and routine maintenance of a noncomplying facility shall be permitted for the purpose of preserving its existing condition, retarding or eliminating wear and tear or physical depreciation, or complying with the requirements of law. 7 4 4 4 b) Incidental alterations to a noncomplying facility shall be permitted, provided such alterations do not increase the degree of noncompliance, or otherwise increase the discrepancy between existing conditions and the requirements of this title. c) Structural alterations to a noncomplying facility shall be permitted when necessary to comply with the requirements of law, or to accommodate a conforming use when such alterations do not increase the degree of noncompliance, or otherwise increase the discrepancy between existing conditions and requirements of this title. This section governs routine maintenance and repair of noncomplying structures. While it permits work necessary to preserve the structure’s safe and sanitary condition, it does not allow for modifications that expand or reconfigure the noncompliance. Because the proposed project involves removing existing GFA and enclosing a separate area with new exterior walls, it constitutes a reconfiguration, not routine repair, and is therefore outside the scope of Section 18.70.090. Section 18.70.100 states: A noncomplying facility which is damaged or destroyed by any means except ordinary wear and tear and depreciation may be reconstructed only as a complying facility, except as follows: a) When the damage or destruction of a noncomplying facility affects only a portion of the facility that did not constitute or contribute to the noncompliance, said portion may be repaired or reconstructed to its previous configuration. b) When the damage or destruction of a noncomplying facility affects a portion of the facility that constituted or contributed to the noncompliance, any replacement or reconstruction to such damaged portion shall be accomplished in such manner as not to reinstate the noncompliance or degree of noncompliance caused by the destroyed or damaged portion of the facility, and otherwise in full compliance with this title; however, if the cost to replace or reconstruct the noncomplying portion of the facility to its previous configuration does not exceed fifty percent of the total cost to replace or reconstruct the facility in conformance with this subsection, then the damaged noncomplying portion may be replaced or reconstructed to its previous configuration. In no event shall such replacement or construction create, cause, or increase any noncompliance with the requirements of this title. c) …. (not applicable to residentially zoned properties) 7 4 4 4 d) Notwithstanding subsections (a), (b) and (c) hereof, a noncomplying facility housing a conforming use in the R-1 and RE zones, which when built was a complying facility, which is damaged or destroyed by non- willful means (i.e., acts of God) shall be permitted to be replaced, on the same site, and in its previous configuration, without necessity to comply with the current site development regulations, provided that any such replacement shall not result in increased floor area, height, length or any other increase in the size of the facility. e) Except as otherwise provided in this section with regard to replacement or reconstruction of a portion of a facility to its previous noncomplying condition, all reconstruction shall be subject to all applicable laws, regulations, and procedures otherwise governing construction on the site at the time said construction is undertaken. The appellant acknowledges that that PAMC Section 18.70.100 sensibly requires that if a noncomplying structure is deliberately demolished and subsequently replaced or reconstructed, that such replacement or reconstruction may not reinstate the noncompliance. The appellant argues this section is inapplicable to their project, however, because they do not propose to “replace” or “reconstruct” the GFA that is being removed. The appellant relies on the Merriam-Webster dictionary to assert that the term “replace” does not encompass the “relocation” of GFA from one place to another. In fact, the Merriam-Webster definition of “replace,” also includes “to take the place of especially as a substitute or successor,” and “to put something new in the place of.” Under both of these ordinary dictionary definitions, the appellants proposal to remove GFA from a second story and add GFA to the ground floor could reasonably be considered “replacement.” Again, the Director’s interpretation does not introduce the term ‘relocation’ into the code, but instead relies on the ordinary meaning of the terms already present. Reconstructing noncomplying GFA elsewhere on the site, regardless of whether the total GFA increases, constitutes an effort to replicate or replace the prior noncompliance in a new location. The provision makes clear that unless narrowly exempted, such features may not be rebuilt. This aligns with the broader purpose of Chapter 18.70 to phase out noncomplying conditions over time. The appellant’s interpretation is not only contrary to this purpose, but it leads to an absurd result: there is no rational explanation for why the code would prohibit reconstruction of a noncomplying feature once removed, while permitting the same noncompliance to be reintroduced elsewhere as a new improvement. Finally, the appellant asserts that their project does not involve the relocation of GFA but instead involves the demolition of GFA on the upper floor and a separate enlargement on the ground floor. This argument attempts to conceptually separate the removal and addition components of the project. However, if treated independently, the ground floor expansion would constitute a prohibited increase in noncompliance. The appellant’s position relies on 7 4 4 4 linking the two elements to claim there is no net change in the degree of noncompliance, an approach that selectively combines and separates aspects of the project depending on the desired outcome. Harrington v. City of Davis (2017) 16 Cal.App.5th 420, 434- 45.) Greater deference is particularly appropriate where, as here, there are “indications of careful consideration by senior agency officials.” (Ibid.) FISCAL/RESOURCE IMPACT 7 4 4 4 STAKEHOLDER ENGAGEMENT ENVIRONMENTAL REVIEW ATTACHMENTS APPROVED BY: PLANNING & DEVELOPMENT SERVICES 250 Hamilton Avenue, 5th Floor Palo Alto, CA 94301 (650) 329-2441 CITY OF PALO ALTO | 250 HAMILTON AVENUE, PALO ALTO, CA. 94301 | 650-329-2441 DATE: May 8, 2025 TO: Planning & Development Services Staff and Interested Community Members FROM: Jonathan Lait, Director SUBJECT: Director’s Interpretation Regarding Relocation of Noncomplying Residential Gross Floor Area Under PAMC Chapter 18.70 Authority Palo Alto Municipal Code (PAMC) Section 18.01.025 authorizes the Director of Planning and Development Services to interpret provisions of Titles 16, 18, and 21 of the Palo Alto Municipal Code. When warranted, formal written interpretations may be issued and posted on the City’s website. Such decisions become effective fourteen days after posting unless appealed in accordance with PAMC Section 18.77.070. Director’s Interpretation Where an existing residential building exceeds the allowable gross floor area (GFA) PAMC Chapter 18.70 prohibits the relocation of non-complying floor area from one location to another. Applicable Code Section(s) • 18.70.080: Noncomplying Facility – Enlargement • 18.70.090: Noncomplying facility – Maintenance and repair • 18.70.100: Noncomplying facility – Replacement Discussion Palo Alto’s zoning code limits the allowable GFA on residential properties to regulate bulk, scale, and neighborhood compatibility. Some structures that comply with development standards at the time they are constructed may become noncomplying as a result of a change in the applicable regulations (e.g. rezoning or annexation). PAMC Chapter 18.70 sets forth the rules under which such noncomplying facilities may be maintained. Relocation of noncomplying GFA may be independently prohibited by PAMC Sections 18.70.080 and 18.70.100; in addition, relocated GFA does not fall within the scope of permitted alterations under PAMC Section 18.70.090. PAMC Section 18.70.080: Noncomplying Facility – Enlargement Section 18.70.080, subd. (a), expressly prohibits any improvement to a noncomplying facility that increases the noncompliance. If further clarifies that it does not prohibit improvement of a facility, Docusign Envelope ID: 3A798A6F-1F4E-4D19-8275-72D1C645C1F0 Page 2 otherwise permitted by Title 18 (the zoning code), which does not affect the particular degree or manner of the noncompliance. Taken holistically, staff interprets this section to prohibit an improvement that does affect the particular degree or manner of the noncompliance. For example, if a structure is noncomplying because a parapet at the rear of the property exceeds the maximum height by five feet, it would not be permitted to demolish the parapet and reconstruct it identically at the front of the property instead. Even if the new parapet would not increase the amount by which the structure exceeds the maximum height, the change in location would affect the particular manner of noncompliance. Similarly, the relocation of non-complying floor area would violate this prohibition. Section 18.70.080 is intended to allow the improvement of a noncomplying facility in a manner unrelated to the particular degree or manner of noncompliance. For example, it would allow a structure that is non-complying for height to receive additional GFA provided the new area otherwise complied with the zoning code (e.g. setbacks, lot coverage and floor area limitations, height). PAMC Section 18.70.090: Noncomplying Facility – Maintenance and repair Section 18.70.090 allows for the maintenance and repair of a noncomplying facility. It allows for incidental alterations that do not increase the degree of noncompliance. It also allows for structural alterations that do not increase the degree of noncompliance, so long as they are “necessary to comply with the requirements of law or to accommodate a conforming use.” Incidental alterations are defined in PAMC Section 18.04.030 to mean alterations to the interior of a building that do not increase its structural strength; alterations to mechanical, electrical and plumbing systems; and changes to fenestrations that do not increase the building’s structural strength. Structural alterations are defined as any other alteration. Staff interprets this section to allow structural alterations only when necessary to comply with the requirements of law (e.g. building code) or when necessary to accommodate a change to a conforming use (e.g. to provide sufficient egress for a residential use). Absent a change to a conforming use, structural alterations would only be permitted to comply with requirements of law. An alternative interpretation would leave the phrase “necessary to accommodate a conforming use” without any meaning and collapse the distinction between the allowances for incidental and structural alterations in Section 18.70.090. Section 18.70.090 is intended to allow incidental maintenance and repair of noncomplying facilities in a manner that does not increase noncompliance. It is less permissive regarding structural alterations. The relocation of noncomplying floor area will typically involve structural alterations; in the absence of a change to a conforming use, such alterations are only permitted to the extent necessary to comply with law. PAMC Section 18.70.100: Noncomplying Facility – Replacement Section 18.70.100 governs the reconstruction of a noncomplying facility that is damaged or destroyed by any means other than ordinary wear and tear. This includes willful damage and destruction as part of a Docusign Envelope ID: 3A798A6F-1F4E-4D19-8275-72D1C645C1F0 Page 3 construction project as well as non-willful means.1 The general rule expressed this section is that a damaged or destroyed noncomplying facility may only be reconstructed as a complying facility unless an enumerated exception applies. Proposed relocation of noncomplying GFA falls under subdivision (b), which states that a portion of a facility that contributes to the noncompliance, if damaged or destroyed, may only be replaced or reconstructed in a manner that does not reinstate the noncompliance or the degree of noncompliance.2 Staff interprets the term “replacement” to include replacing demolished GFA in the same or a different location. This section therefore prohibits the removal of floor area that was willfully destroyed and contributed to a noncomplying GFA condition, as well as its reinstatement – whether in whole or in part – at any location within the structure. For example, a project that removes existing GFA and proposes to reconstruct that floor area in a location that requires demolition and reconstruction of exterior building walls to accommodate the removed GFA would involve reconstruction that constitutes a reinstatement of the noncompliance. The interpretations provided herein are the only ones that give coherent and internally consistent meaning to each of the code sections discussed. In particular, if either section 18.70.080(a) or section 18.70.090(c) is interpreted to allow the relocation of noncomplying floor area, it is unclear what meaning section 18.70.100(b) could have. These interpretations are also consistent with prior direction from the City Council regarding interpretation of similar provisions in PAMC section 18.18.120; in 2015, the City Council directed that the noncomplying facility provision in that section should not be interpreted to allow the relocation of noncomplying floor area in the CD district. _____________________________ Jonathan Lait, Director Planning and Development Services Attachment: Applicable Municipal Code Sections Posted on Website: May 8, 2025 Appeal Deadline: May 22, 2025 1 An alternative interpretation that applies section 18.70.100 only to non-willful damage or destruction would render subdivision (d) unnecessary, as that section provides a different rule for noncomplying facilities that are damaged and destroyed by non-willful means. 2 Subdivision (b) also provides an exception where the cost to replace or reconstruct the facility in compliance would be at least double the cost to replace or reconstruct the facility to its previous configuration; this analysis assumes that the exception is not triggered. Docusign Envelope ID: 3A798A6F-1F4E-4D19-8275-72D1C645C1F0 Attachment: Applicable Municipal Code Sections Page 4 18.70.080 Noncomplying facility - Enlargement. (a) Except as specifically permitted by subsections (b) and (c) hereof or by Section 18.12.050(a), no enlargement, expansion, or other addition or improvement to a noncomplying facility shall be permitted which increases the noncompliance. This section shall not be construed to prohibit enlargement or improvement of a facility, otherwise permitted by this title, which does not affect the particular degree of or manner in which the facility does not comply with one or more provisions of this title. (b) Except in areas designated as special study areas, the director of planning and development services may permit minor additions of floor area to noncomplying facilities in the commercial CC, CS and CN zones and in the industrial MOR, ROLM, RP and GM districts, subject to applicable site development regulations, for purposes of on-site employee amenities, resource conservation, or code compliance, upon the determination that such minor additions will not, of themselves, generate substantial additional employment. Such additions may include, but not be limited to, the following: (1) Area designed and used solely for providing on-site services to employees of the facility, such as recreational facilities, credit unions, cafeterias and day care facilities; (2) Area designated for resource conservation, such as trash compactors, recycling and thermal storage facilities; and (3) Area designed and required for hazardous materials storage facilities, handicapped access, and seismic upgrades. (Ord. 5494 § 3, 2020: Ord. 5381 § 7, 2016: Ord. 5373 § 22 (part), 2016: Ord. 3890 § 20, 1989: Ord. 3683 § 18, 1986: Ord. 3048 (part), 1978) 18.70.090 Noncomplying facility - Maintenance and repair. (a) Normal and routine maintenance of a noncomplying facility shall be permitted for the purpose of preserving its existing condition, retarding or eliminating wear and tear or physical depreciation, or complying with the requirements of law. (b) Incidental alterations to a noncomplying facility shall be permitted, provided such alterations do not increase the degree of noncompliance, or otherwise increase the discrepancy between existing conditions and the requirements of this title. (c) Structural alterations to a noncomplying facility shall be permitted when necessary to comply with the requirements of law, or to accommodate a conforming use when such alterations do not increase the degree of noncompliance, or otherwise increase the discrepancy between existing conditions and requirements of this title. (Ord. 5381 § 7, 2016: Ord. 3683 § 17, 1986: Ord. 3048 (part), 1978) 18.70.100 Noncomplying facility - Replacement. A noncomplying facility which is damaged or destroyed by any means except ordinary wear and tear and depreciation may be reconstructed only as a complying facility, except as follows: (a) When the damage or destruction of a noncomplying facility affects only a portion of the facility that did not constitute or contribute to the noncompliance, said portion may be repaired or reconstructed to its previous configuration. Docusign Envelope ID: 3A798A6F-1F4E-4D19-8275-72D1C645C1F0 Attachment: Applicable Municipal Code Sections Page 5 (b) When the damage or destruction of a noncomplying facility affects a portion of the facility that constituted or contributed to the noncompliance, any replacement or reconstruction to such damaged portion shall be accomplished in such manner as not to reinstate the noncompliance or degree of noncompliance caused by the destroyed or damaged portion of the facility, and otherwise in full compliance with this title; however, if the cost to replace or reconstruct the noncomplying portion of the facility to its previous configuration does not exceed fifty percent of the total cost to replace or reconstruct the facility in conformance with this subsection, then the damaged noncomplying portion may be replaced or reconstructed to its previous configuration. In no event shall such replacement or construction create, cause, or increase any noncompliance with the requirements of this title. (c) Notwithstanding subsections (a) and (b) hereof, a noncomplying facility in the commercial CS, CN and CC zones and the industrial MOR, ROLM, RP and GM districts, except for those areas designated as special study areas, existing on August 1, 1989, which when built was a complying facility, shall be permitted to be remodeled, improved or replaced in accordance with applicable site development regulations other than floor area ratio, provided that any such remodeling, improvement or replacement shall not result in increased floor area. (d) Notwithstanding subsections (a), (b) and (c) hereof, a noncomplying facility housing a conforming use in the R-1 and RE zones, which when built was a complying facility, which is damaged or destroyed by non-willful means (i.e., acts of God) shall be permitted to be replaced, on the same site, and in its previous configuration, without necessity to comply with the current site development regulations, provided that any such replacement shall not result in increased floor area, height, length or any other increase in the size of the facility. (e) Except as otherwise provided in this section with regard to replacement or reconstruction of a portion of a facility to its previous noncomplying condition, all reconstruction shall be subject to all applicable laws, regulations, and procedures otherwise governing construction on the site at the time said construction is undertaken. (Ord. 5381 § 7, 2016: Ord. 4102 § 1 (part), 1992: Ord. 4016 § 46, 1991: Ord. 3905 § 18, 1989: Ord. 3890 § 21, 1989: Ord. 3048 (part), 1978) Docusign Envelope ID: 3A798A6F-1F4E-4D19-8275-72D1C645C1F0 1 Subject – Appeal of Director’s Application of PAMC § 18.70.100 to Project Concerning 3886 Magnolia Drive, #25BLD-00025 Dear Mayor Lauing and Members of the City Council: My wife and I hereby appeal the Director’s May 8, 2025, Interpretation Regarding Relocation of Noncomplying Residential Gross Floor Area Under PAMC Chapter 18.70 (the “Determination”). The Planning Department, on the sole basis of the Determination, has rejected our application for a small remodel of our home in Barron Park which was built in 1948, long prior to Palo Alto’s annexure of our section of the City of Palo Alto. Background on Our Proposed Project Our home is currently two stories (although the second story is quite small and is essentially a permitted loft space). Our project is designed to convert our home fully into a single-floor home (in that respect, it is very much unlike the many second story additions routinely processed by the Planning Department). Essentially, the aim of the project is to create a closet in the room that we are using as our primary bedroom and relocate some utilities, such as the laundry and additional kitchen and cleaning storage, to a permitted rumpus room and provide interior access to that room from our existing kitchen. Currently, we maintain a closet in an upstairs, permitted loft area which entails navigating a steep and narrow staircase (the “Unsafe Permitted Loft Area”). The project does not enlarge the building envelope, add floor area, or replace any space that is “damaged or destroyed.” It removes from FAR the Unsafe Permitted Loft Area and does not “replace” or “reconstruct” that space (i.e., there will no longer be an upstairs loft area in my home and my home will be a single floor structure). Despite the project’s very modest scope (which is wholly consistent with the City’s goals of enabling aging in place), the Director has arbitrarily and erroneously invoked Palo Alto Municipal Code § 18.70.100 to deny the application. By its express and unambiguous terms, that provision applies when property is “damaged or destroyed” and that portion is “replaced” or “reconstructed.” We are, in fact, not “replacing” or “reconstructing” the Unsafe Permitted Loft Area and thus § 18.70.100 is inapplicable on its face. Instead, § 18.70.080 applies and our project was carefully designed to comply with that provision. Analysis Relevant Law and the Standard of Review When interpreting an ordinance, courts apply the same rules of interpretation applicable to statutes. See Save Our Heritage Organisation v. City of San Diego (2015) 237 Cal.App.4th 163, 174, 187 Cal.Rptr.3d 754.). Courts first examine the language of the ordinance, giving the words their usual and ordinary meaning, in the context of the ordinance as a whole and its purpose. See Audio Visual Services Group, Inc. v. Super. Ct., 182 Cal. Rptr. 3d 748, 754 (Cal. App. 2d Dist. 2015). In addition, courts “apply common sense to the language at hand” and interpret a 2 provision in a manner that makes “it workable and reasonable” and avoids an absurd result. Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111, 1122, 29 Cal.Rptr.3d 262, 112 P.3d 647. Interpretation of the Municipal Code presents a pure question of law and as such the Director’s interpretation is entitled to no deference. See MacIsaac v. Waste Management Collection & Recycling, Inc. (2005) 134 Cal.App.4th 1076, 10. See also Manriquez v. Gourley, 130 Cal. Rptr. 2d 209, 214 (Cal. App. 4th Dist. 2003) (review of an agency’s factual determinations are subject to the substantial evidence rule but “where … the determinative question is one of statutory or regulatory interpretation, an issue of law, [courts] may exercise … independent judgment.”). If we are forced to proceed with an appeal to Santa Clara Superior Court, the City would face the prospect of a significant award of attorneys’ fee award as we would be seeking to vindicate the public’s interest in the proper interpretation of the Palo Alto Municipal Code. See CCP § 1858 (“Upon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest …”). Also, in litigation the Planning Department would be subject to discovery aimed at determining whether it is invoking Section 100 even-handedly to small remodels like ours (this issue is also the subject of a pending request under the California Public Records Act and I respectfully reserve the right to update the Council once the City has produced adequate records in response to our request).1 The Director’s Determination The Director largely bases his rejection of our plan on Section 18.70.100.2 That section governs reconstruction of a residential structure that already exceeds current zoning limits and is damaged or deliberately demolished, and it generally (and sensibly) requires that if that facility is “replac[ed]” or “reconstruct[ed] that such replacement or reconstruction not reinstate the noncompliance. The full text of that provision is appended below with relevant highlighting. 1 Indeed, if Section 100 applies to our small project the Planning Department would necessarily have to reject every single remodel of any noncomplying facility (action which would invite a cascade of litigation centered on unlawful taking of property). Judging by the number of projects that are ongoing in Barron Park every day of the week, not even the Planning Department is taking such a restrictive view of Section 100. Indeed, and to its credit, the Planning Department attempted to get some clarity around the meaning and scope of Section 100 back in 2015 but that effort did not gain traction with the members of the City Council at that time. See City Council Staff Report # 6333. We suspect that the Planning Department would benefit from and even appreciate this Council’s guidance on this important issue. 2 Until the Determination was issued on May 8, 2025, the Director entirely rested his rejection on Section 100. In the Determination, he attempts to buttress the rejection with a new claim that we do not satisfy Section 80. This late argument clearly suggests that the Director lacks confidence in his application of Section 100. In any event, the Director’s belated interpretation of Section 80 suffers from the same type of flaw that infects his analysis of Section 100, namely that he inserts terms that are not found in the text of the Code (see infra at 5). 3 We are clearly not “replacing” or “reconstructing” the Unsafe Permitted Loft Area. We are demolishing it altogether and not replacing or reconstructing it. The Director would of course be correct if we were altering the Unsafe Permitted Loft Area and keeping it as loft space. But that is not our plan. Since we are not replacing or reconstructing the Unsafe Permitted Loft Area, Section 100 is inapplicable because it only governs replacing or reconstructing space (see highlighting below). The Director elides this unmistakable fact by arguing in the Determination that what we are doing is “relocating” non-complying floor area and that somehow triggers Section 100. We in fact do not agree that we are “relocating” square footage. Instead, and consistent with § 18.70.080, we are “enlarging” or “improving” a facility in a manner that does not “affect the particular degree of or manner in which the facility does not comply with one or more provisions of this title.” However, even if the Director were correct in characterizing our project as “relocating” square footage, even then he would be incorrect in claiming that such “relocating” triggers Section 100. This is for the simple and unmistakable reason that Section 100 applies to replacing or reconstructing a portion of a noncomplying facility and we are not replacing or reconstructing the Unsafe Permitted Loft Area. The ordinary dictionary definition of replace is “to restore to a former place or position.” See https://www.merriam-webster.com/dictionary/replace. The ordinary dictionary definition of “reconstruct” is “to build or assemble (something) again.” See https://www.merriam-webster.com/dictionary/reconstruct. Our project does not restore the Unsafe Permitted Loft Area nor does it assemble it again. As such, Section 100 is wholly inapplicable and the Director has invoked it erroneously. Essentially, and improperly, the Director attempts to graft the additional terms bolded in red below to the following portion of Section 100: When the damage or destruction of a noncomplying facility affects a portion of the facility that constituted or contributed to the noncompliance, any replacement or reconstruction to such damaged portion, [or relocation thereof,] shall be accomplished in such manner as not to reinstate the noncompliance or degree of noncompliance caused by the destroyed or damaged portion of the facility, and otherwise in full compliance with this title. But the term “relocation” appears nowhere in the text of Section 100. It is clearly improper for the Director to insert new terms and limitations in existing Code. If the City wishes to revise the Code it is of course free to do so after complying with State and locale procedure for such modifications. Until then, the Planning Department is obligated to apply the Code as written. See CCP § 1858 (“In the construction of a statute or instrument, the office of the Judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has 4 been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.”).3 Our Project Is In Full Compliance with § 18.70.080 Fortunately, the Palo Alto Municipal Code has a provision that is specifically crafted to provide Palo Alto homeowners with much needed breathing room to update and modernize their homes. Section 80 allows “enlargements” of facilities so long as they “do not increase the degree or manner of non-compliance.” The flexibility offered by Section 80 is essential to the Code’s statutory scheme. Without it, the City would invite challenges under both the California and U.S. Constitutions (regulatory takings jurisprudence), as well as under the Housing Crisis Act of 2019 and the Housing Accountability Act, which limit a local agency’s ability to down zone or impose new standards midstream. “Degree” in the context of Section 80 unquestionably speaks to quantity (the same 2,000 sq ft remains) and “manner” speaks to type of violation. Our proposed project keeps the existing Site Coverage and actually reduces FAR by 11 square feet. Nonetheless, the Director asserts that “relocating” floor area changes the “manner” of non-compliance because the second floor excess becomes first floor excess. To begin, and as noted above, the Director’s assertion that we are “relocating” floor area is simply incorrect. More fundamentally, there is nothing in the Code that says the vertical placement of excess floor area is itself a violation. The Director’s logic invents a brand-new metric—location—that appears nowhere in §§ 80, 90, or 100. Under the plain meaning rule, his attempt to graft new terms into existing code should be rejected. See Cnty. of Sacramento v. P. Gas & Elec. Co., 238 Cal. Rptr. 305, 311 (Cal. App. 3d Dist. 1987) (“Where the language is plain and admits of no more than one meaning, the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion.”) (quotation omitted); see also Franklin v. Appel, 10 Cal. Rptr. 2d 759, 765 (Cal. App. 2d Dist. 1992) (“The court will not, under the guise of construction, rewrite a law, and will not give the words an effect different from the plain and direct import of the terms used.”). Thus, there is no question that our project comports with Section 80. Indeed, during the application process the Planning Department based its rejection of our plan solely on Section 100. It was only in the Determination that the Director first claimed that we do not satisfy 3 In his Determination, the Director cites in support of his interpretation the 2015 Council’s consideration of an amendment to a different provision of the Code, section 18.18.120. This provision of the Code is not at issue here and relates to commercial buildings in the Palo Alto Commercial District. (Determination at 3). The proceedings referenced by the Director related to a proposed amendment to the Code and not an interpretation of it. The fact that the Planning Department recognized in 2015 that it needed to amend the Code to apply to relocated space as to commercial buildings in the Commercial District underscores that the Department would need to do the same here to obtain the outcome the Director seeks. 5 Section 80 as well (as noted above in footnote 2, the last-minute citation to Section 80 likely reflects the Director’s growing realization that Section 100 is not in fact applicable to our project). Once again, the Director tries to graft terms into the Planning Code that are simply not there. The Determination claims that Section 80 “is intended to allow the improvement of a noncomplying facility in a manner unrelated to the particular degree or manner of noncompliance.” (Determination at 2, emphasis added). But the Code uses the term “affect” not “unrelated.” Our home does not affect the degree of noncompliance because it does not add to it in any respect. Here as well the Director must apply the Code as written and not language that the Director apparently wishes it contained.4 Conclusion In sum, and viewing the provisions “holistically” (as the Director purports to do), Section 80 allows “enlargements” of noncomplying facilities provided they do not “affect the particular degree of or manner in which the facility does not comply with one or more provisions of this title.” § 18.70.080 (emphasis added). Section 100 applies when a property owner seeks to replace or reconstruct a non-complying facility or a portion of a non-complying facility. § 18.70.100 (emphasis added). With respect to our project, we are proposing an addition that does not affect the degree of non- compliance of our project. We are removing the Unsafe Permitted Loft Area and not reconstructing it. As such, Section 80 applies and is satisfied and Section 100 has no application as a matter of law. It is therefore not within the Director’s discretion to deny the application nor is his legal interpretation of provisions of the Code entitled to any degree of deference by the Council (or, if need be, a court). Relief Requested The relief we seek is modest: the ability to improve safety and accessibility in our longtime home without being compelled to demolish legally built, character defining portions of the structure. Timely intervention will spare everyone protracted appeals and public controversy, restore trust in the permitting system, and align City practice with the letter of its own ordinances. 4 California is of course in a housing crisis. It is therefore quite concerning to my wife and I and a number of other Palo Alto homeowners that the Director is so hostile to reasonable development efforts that he seems to create limitations on the right to develop property when none exist. Indeed, the State of California has directed complaints to the Planning Department for precisely this reason. See https://www.paloaltoonline.com/palo-alto/2025/04/03/state-orders-palo-alto-to- revise-laws-on-backyard-dwellings/. It is therefore no surprise that the Planning Department under the Director’s leadership receives abysmal reviews and remains the subject of much frustration in our community. See https://www.paloaltoonline.com/palo- alto/2024/12/10/residents-pan-permitting-laud-libraries-in-new-survey/. 6 My wife and I respectfully request that the Council reverse the Director’s May 8 determination and find that our remodel complies with § 18.70.080 and that § 18.70.100 does not apply and direct staff to issue ministerial approvals forthwith. We are available to answer any questions or provide supplemental material at the Council’s request. Respectfully submitted, /s/ Joseph and Colleen Petersen Owners / Applicants 3886 Magnolia Drive, Palo Alto, California 94306 (917) 859 9680 jpetersen@ktslaw.com 7 Appendix Relevant Provisions of the Palo Alto Municipal Code 18.70.100 Noncomplying facility - Replacement. A noncomplying facility which is damaged or destroyed by any means except ordinary wear and tear and depreciation may be reconstructed only as a complying facility, except as follows: (a) When the damage or destruction of a noncomplying facility affects only a portion of the facility that did not constitute or contribute to the noncompliance, said portion may be repaired or reconstructed to its previous configuration. (b) When the damage or destruction of a noncomplying facility affects a portion of the facility that constituted or contributed to the noncompliance, any replacement or reconstruction to such damaged portion shall be accomplished in such manner as not to reinstate the noncompliance or degree of noncompliance caused by the destroyed or damaged portion of the facility, and otherwise in full compliance with this title; however, if the cost to replace or reconstruct the noncomplying portion of the facility to its previous configuration does not exceed fifty percent of the total cost to replace or reconstruct the facility in conformance with this subsection, then the damaged noncomplying portion may be replaced or reconstructed to its previous configuration. In no event shall such replacement or construction create, cause, or increase any noncompliance with the requirements of this title. (c) Notwithstanding subsections (a) and (b) hereof, a noncomplying facility in the commercial CS, CN and CC zones and the industrial MOR, ROLM, RP and GM districts, except for those areas designated as special study areas, existing on August 1, 1989, which when built was a complying facility, shall be permitted to be remodeled, improved or replaced in accordance with applicable site development regulations other than floor area ratio, provided that any such remodeling, improvement or replacement shall not result in increased floor area. (d) Notwithstanding subsections (a), (b) and (c) hereof, a noncomplying facility housing a conforming use in the R-1 and RE zones, which when built was a complying facility, which is damaged or destroyed by non-willful means (i.e., acts of God) shall be permitted to be replaced, on the same site, and in its previous configuration, without necessity to comply with the current site development regulations, provided that any such replacement shall not result in increased floor area, height, length or any other increase in the size of the facility. (e) Except as otherwise provided in this section with regard to replacement or reconstruction of a portion of a facility to its previous noncomplying condition, all reconstruction shall be subject to all applicable laws, regulations, and procedures otherwise governing construction on the site at the time said construction is undertaken. (Ord. 5381 § 7, 2016: Ord. 4102 § 1 (part), 1992: Ord. 4016 § 46, 1991: Ord. 3905 § 18, 1989: Ord. 3890 § 21, 1989: Ord. 3048 (part), 1978) 18.70.080 Noncomplying facility - Enlargement. (a) Except as specifically permitted by subsections (b) and (c) hereof or by Section 18.12.050(a), no enlargement, expansion, or other addition or improvement to a noncomplying facility shall be permitted which increases the noncompliance. This section shall not be construed to prohibit enlargement or improvement of a facility, otherwise permitted by this title, which does not affect the particular degree of or manner in which the facility does not comply with one or more provisions of this title. 8 (b) Except in areas designated as special study areas, the director of planning and development services may permit minor additions of floor area to noncomplying facilities in the commercial CC, CS and CN zones and in the industrial MOR, ROLM, RP and GM districts, subject to applicable site development regulations, for purposes of on-site employee amenities, resource conservation, or code compliance, upon the determination that such minor additions will not, of themselves, generate substantial additional employment. Such additions may include, but not be limited to, the following: (1) Area designed and used solely for providing on-site services to employees of the facility, such as recreational facilities, credit unions, cafeterias and day care facilities; (2) Area designated for resource conservation, such as trash compactors, recycling and thermal storage facilities; and (3) Area designed and required for hazardous materials storage facilities, handicapped access, and seismic upgrades. (Ord. 5494 § 3, 2020: Ord. 5381 § 7, 2016: Ord. 5373 § 22 (part), 2016: Ord. 3890 § 20, 1989: Ord. 3683 § 18, 1986: Ord. 3048 (part), 1978) Dear Mayor and Council Members, On behalf of City Manager Ed Shikada, please see staff responses below for questions from Mayor Lauing and Council Member Lu on the June 16, 2025 and June 17, 2025 City Council Meeting. Monday June 16, 2025 Council Meeting Item 9. Approval of a Surveillance Use Policy for Security Cameras at Ada's Café at Mitchell Park Community Center and Library; CEQA Status - Not a Project 1.Have we considered expanding this policy to any private entity that leases city space? Or creating a director's approval process that allows this? Staff response: Surveillance use policies are required in situations enumerated by PAMC section 2.30.630. This includes approval of a use policy when approving "agreements with a non-City entity to acquire, share, or otherwise use surveillance technology or the information it provides." See PAMC 2.30.630(d). Once approved, the City is required to produce an annual report analyzing the use of each Council - approved technology, including its cost, any complaints received, and the number and nature of Public Record Act requests received. See PAMC 2.30.680(a). If the City wanted to consider allowing staff-level approvals of some or all surveillance use policies, the City Council could adopt an ordinance amending the Surveillance and Privacy Protection Ordinance at PAMC section 2.30.620 et seq. to allow that. Staff is considering expanding this policy to the Palo Alto History Museum at the Roth Building, as cameras were installed during renovation of the building. A director approval process is not in place, but will be considered. Item 12. Approval of a Director’s Interpretation Pursuant to PAMC Section 18.01.025 Concluding That Noncomplying Residential Gross Floor Area may not be Relocated Within a Structure; Denial of the Associated Appeal; Direction to Prepare a Future Code Amendment for Administrative De Minimis Exceptions to the Zoning Code; CEQA: Exempt Pursuant to CEQA Guidelines Section 15061(b)(3) 1.A Councilmember questioned why a formal text amendment was not being initiated now to address the minor adjustments recommended by staff in the council report. This approach could avoid setting an unclear precedent and ultimately resolve the applicant’s is sue. The Councilmember suggests rescheduling the item once the staff recommended amendment is ready. JUNE 17, 2025JUNE 16, 2025 Staff Response: Preparing the amendment is not currently part of the department’s workplan. If Council authorizes and prioritizes it, the ordinance could affect the timeline of other Council-directed efforts. While staff supports moving forward, the intent was to schedule it in a way that minimizes disrupting existing priorities, specifically related to bird safe glass and stream corridor protections. It typically takes 4–6 months to prepare an ordinance, which requires Planning & Transportation Commission and Council review. Alternatively, the appellant could submit their own text amendment application. This would not draw on policy planning resources but would require fees and still be resourced after processing housing development projects, though potentially faster overall. Regardless of the amendment, the decision to pull the item should focus on whether the interpretation was properly issued. If councilmembers believe it was not, the item should be removed from consent and set for hearing, anticipated for mid-August or early September; removing the item from consent would also delay any Council direction on a text amendment. If councilmembers find that the Director’s interpretation is correct, staff recommend approving the item on consent, which would also provide direction now regarding the text amendment. Item 17. Approval of Contract Amendment No. 4 to Contract Number C19171363 with Professional Account Management LLC, dba Duncan Solutions, to Extend the Contract for one year to June 30, 2026, and to Adjust Billing Rates, Without an Increase to Compensation, for a Not –to Exceed Amount of $767,000 for Parking Permitting and Citation Management Services; CEQA Status -- Not a Project. 1.Are there any more resources about how Duncan currently operates? Are there any areas or practices they use to prioritize where to look? (I understand they use automated license plate readers) Staff response: Duncan provides permit and citation management services, providing a website and personal staffing to permit purchases, primarily for RPP programs (all six) and to the California Ave. business district employee program. They also provide Citation processing services. Parking enforcement is provided by a different contractor. 2.Are there any metrics about traffic citations by year for the last 10 years? Staff response: Given Duncan’s limited role in RPP permit and parking citation processing, this information is not readily available for parking and traffic citations overall. Staff will review available information and transmit to the City Council at a later date. Tuesday, June 17, 2025 Council Meeting Item 14: Approval of Professional Services Contract No. C26193874 with Palo Alto Community Child Care in an Amount Not-to-Exceed $3,228,146 to Provide Management of the City’s Childcare Subsidy Program for a Term of Five Years. CEQA Status – Not A Project 1.To be clear, this is only for the administration of the subsidy, and there is no actual subsidy or childcare included in this funding, right? Staff response: The Fiscal Year funding allocated for this contract totals $606,793.73. Of this amount, approximately 10% ($58,565) supports the administration of the City’s Child Care Subsidy Program, while the remaining 90% ($538,138) is directed toward providing childcare subsidies for low -income families. This funding supports access to childcare services for up to 45 children annually.