HomeMy WebLinkAboutStaff Report 2506-4843CITY OF PALO ALTO
CITY COUNCIL
Special Meeting
Monday, August 18, 2025
Council Chambers & Hybrid
5:30 PM
Agenda Item
16.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) Public Comment
City Council
Staff Report
From: City Manager
Report Type: ACTION ITEMS
Lead Department: Planning and Development Services
Meeting Date: August 18, 2025
Report #:2506-4843
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.
BACKGROUND
On June 16, 2025, City Council members Burt, Lu, and Lythcott-Haims pulled the subject report
from the consent calendar to schedule the subject hearing.
Attachment A includes the previous report containing staff’s analysis and related attachments.
Attachment B includes additional correspondence from the appellant subsequent to the
Council’s action to pull the item. This correspondence appears to generally restate the
appellant’s statement from the June 16, 2025 item, but adds an expanded introduction, an
executive summary, a new footnote, and several references to a September 2016 email
announcing a change in staff implementation of Chapter 18.70. The additional material does
not affect staff’s analysis.
FISCAL/RESOURCE IMPACT
The recommendation in this report is not anticipated to have a significant fiscal or budgetary
impact. Work related to the recommended text amendment will be folded into other work as
able and can reasonably be absorbed within the department budget and resources.
STAKEHOLDER ENGAGEMENT
The interpretation was posted on the City’s website in accordance with PAMC Section
18.01.025. Notice was provided to known interested parties. One formal appeal was submitted.
ENVIRONMENTAL REVIEW
The City Council’s action is categorically exempt from the California Environmental Quality Act
(CEQA) under CEQA Guidelines Section 15061(b)(3), the common sense exemption, because it
can be seen with certainty that there is no possibility that the activity in question may have a
significant effect on the environment.
ATTACHMENTS
Attachment A: Council Report with Attachments, Dated June 16, 2025
Attachment B: Additional Appellant Correspondence, Dated August 3, 2025
APPROVED BY:
Jonathan Lait, Planning and Development Services Director
CITY 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)
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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
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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
PAMC Section 18.01.025 authorizes the Director of Planning and Development Services to
interpret Titles 16, 18, and 21 of the Municipal Code. Formal interpretations are posted publicly
and may be appealed within 14 calendar days under Section 18.77.070.
On May 8, 2025, the Director issued an interpretation concluding that PAMC Chapter 18.70
prohibits the relocation, or removal and replacement, of noncomplying GFA, see Attachment A.
Noncomplying GFA arises when a structure was legally constructed under earlier zoning rules
but exceeds current GFA limits due to annexation or subsequent code amendments. The
interpretation affirms that once a noncomplying feature is voluntarily removed, it may not be
restored elsewhere on the site, except in a conforming manner.
The proposed project that prompted the interpretation involves a single-family residence
located in the R-1 zone in a previously unincorporated area of the Barron Park neighborhood.
The existing structure exceeds the maximum allowable GFA for the district, rendering it
noncomplying. Any alterations are therefore evaluated in accordance with Chapter 18.70,
which governs maintenance, enlargement, and replacement of noncomplying facilities. In this
case, the project proposes a residential remodel modifying a second-floor loft by removing stair
access such that it no longer qualifies as GFA. No exterior modifications are proposed for this
portion of the project. Concurrently, the applicant proposes to remodel, expand and enclose
new floor with new exterior walls toward the side and rear of the residence on the first floor.
The amount of enclosed space would then count as GFA, but would not exceed the GFA
removed from the loft and would be located at the side and rear of the residence.
For the reasons set forth in Attachment A, the Director determined that this relocation of
noncomplying GFA constituted a prohibited action under both PAMC 18.70.080 and 18.70.100.
A timely appeal was submitted on May 14, 2025.
Appeal Procedures
This item appears on the Consent Calendar. If it is not pulled by three members of the City
Council, the City Council’s action to deny the appeal and uphold the interpretation will be final
upon adoption of the Consent Calendar. If the item is pulled, it will be agendized for a future
noticed public hearing.
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Appellant’s Position
The appellant’s statements are provided in Attachment B and summarized below.
The appellant argues that the Director’s interpretation improperly applies PAMC Section
18.70.100, which they assert only governs scenarios involving damage or destruction, not
voluntary modifications. They contend that their project is instead governed by Section
18.70.080, which allows improvements to noncomplying structures that do not increase the
degree or manner of noncompliance.
The appellant further disputes the use of the term “relocation,” arguing it introduces a new
standard not supported by the Code. The appellant asserts that moving floor area from one
location to another within the same structure does not alter the manner of noncompliance,
particularly if the total GFA does not increase.
The appellant further argues that the interpretation functions as a de facto code amendment,
effectively restricting common remodels without formal legislative action. They raise concerns
about fairness and procedural overreach and cite principles of statutory interpretation,
asserting that municipal ordinances should be interpreted according to their plain meaning. The
appellant argues that the City’s interpretation would not be entitled to any deference from a
court and that in the event the matter resulted in litigation, the City would expose itself to
liability for attorneys’ fees.
ANALYSIS
The Director’s interpretation is grounded in the plain reading and combined intent of PAMC
Sections 18.70.080, 18.70.090, and 18.70.100. These provisions set forth the regulatory
framework to implement the general application of the nonconforming facilities chapter of the
code and allow the continued use and maintenance of noncomplying facilities while limiting
future modifications of such facilities. These three sections serve related but distinct functions
in the regulation of noncomplying structures and should be read together to understand their
cumulative policy intent.
Section 18.70.080 governs enlargement to noncomplying structures and prohibits changes that
increase noncompliance. It further clarifies that it does not prohibit changes that do not affect
the particular degree or manner of noncompliance. Section 18.70.090 addresses maintenance
and repair, including the limits of allowable structural alterations. Section 18.70.100 regulates
the replacement or reconstruction of noncomplying facilities following their partial or full
removal. Together, they reinforce a consistent policy that disfavors reestablishing
nonconforming conditions once removed or altered. More specifically:
Section 18.70.080 states:
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
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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.
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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)
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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
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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.
The City Council’s determination will be entitled to significant deference from a court
The appellant incorrectly asserts that the City’s interpretation of its own municipal code is
entitled to no deference. While this may be true when the City has interpreted a statute or
regulation promulgated by the State or another agency, it is quite the opposite when the City is
interpreting its own codes. A city’s interpretation of the meaning and scope of its own
regulations is entitled to deference (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.)
Zoning Code Amendment
While the Director’s interpretation is a supportable application of the code and consistent with
its text and policy objectives under PAMC Section 18.01.025, staff acknowledge that the
proposed project involves a relatively minor change that is unlikely to have a noticeable impact
on neighbors or the broader community. The issue raised in this case is not about the scale or
character of the change itself, but how to apply the existing language of the Municipal Code
consistently.
Because the plain reading of PAMC Chapter 18.70 does not allow for the reconfiguration or
reinstatement of noncomplying GFA, staff could not identify a path forward that would permit
this type of project without contorting the code and potentially setting a precedent for more
significant and impactful modifications.
To address similar situations and introduce flexibility for minor residential projects, staff
recommend that the City Council direct the preparation of a future amendment to the
Municipal Code that would authorize the Director of Planning and Development Services to
consider or approve de minimis deviations from the code, offering an alternative to strict
adherence for minor cases. Such a provision would allow small-scale projects to proceed where
the resulting change is clearly not consequential to adjacent properties or the broader
community but may technically conflict with zoning regulations. The language and scope of the
proposed amendment would be reviewed with the Planning and Transportation Commission
and presented to the City Council for consideration at a future date. The timeline for this work
has not been established and would likely be coordinated with other upcoming zoning code
updates.
FISCAL/RESOURCE IMPACT
The recommendation in this report is not anticipated to have a significant fiscal or budgetary
impact. Work related to the recommended text amendment will be folded into other work as
able and can reasonably be absorbed within the department budget and resources.
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STAKEHOLDER ENGAGEMENT
The interpretation was posted on the City’s website in accordance with PAMC Section
18.01.025. Notice was provided to known interested parties. One formal appeal was submitted.
ENVIRONMENTAL REVIEW
The City Council’s action is categorically exempt from the California Environmental Quality Act
(CEQA) under CEQA Guidelines Section 15061(b)(3), the common sense exemption, because it
can be seen with certainty that there is no possibility that the activity in question may have a
significant effect on the environment.
ATTACHMENTS
Attachment A: Director's Interpretation of PAMC Chapter 19.70
Attachment B: Appeal Statement
APPROVED BY:
Jonathan Lait, Planning and Development Services Director
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
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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.
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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)
Colleen and Joseph Petersen
3886 Magnolia Drive
Palo Alto, CA 94306
August 3, 2025
City Council
City of Palo Alto
250 Hamilton Avenue
Palo Alto, CA 94301
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:
Thank you for the opportunity to be heard at the August 18, 2025 Council meeting regarding 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 preliminarily denied our application for a very modest
remodel of our home in Barron Park. That remodel is designed to convert our home to a one
story residence in the interest of allowing us to “age in place” in a home built in 1948 in full
compliance with Santa Clara county building code, long prior to Palo Alto’s annexure of our
section of the City of Palo Alto.
Introduction and Summary of Issue
Our home is currently two stories. Our second story is quite small and is essentially a permitted
loft space that is accessed through a very steep and narrow staircase (as a shorthand, we will
refer to it here as the “existing second-floor room”).
Our project is designed to convert our home fully into a single-floor home (in that respect, it has
far less neighborhood impact than 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.
We designed our project to comply with existing Palo Alto planning and building code.
Specifically, Palo Alto Municipal Code § 18.70.080 expressly permits “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). Our project does not “affect the particular degree of or manner in which the facility does
not comply with one or more provisions of this title” because it does not: (i) enlarge the lot
coverage or add total floor area. In fact, it reduces FAR by 11 square feet by eliminating the
upstairs loft and building out on the first floor less square footage than we are removing from the
second floor.
2
Nonetheless, the Director has delayed the application for many months on the basis of the
Department’s relatively new interpretation of a different provision, § 18.70.100. That section, on
its face, is applicable to noncomplying facilities that are damaged or destroyed and the owner
seeks to reconstruct that portion.
Notwithstanding the fact that this provision is facially inapplicable to my project and does not
override § 18.70.080 either explicitly or implicitly, the Department has invoked it and has
refused to allow my application to proceed. There are two very significant flaws with the
Department’s interpretation.
First, it has no support in the actual language of § 18.70.100 (the full text of which is appended
below). The Department’s grafting of additional restrictions in Section 100 effectively nullifies
the standard governing “enlargements” in Section 80.
Second, even the Department viewed Section 100 as having no such limitation until relatively
recently. An e-mail produced by the City pursuant to a California Public Records Act request
confirms that the City actually expressly permitted projects such as mine until September, 2016
and then abruptly abandoned that practice without seeking any changes to the actual language of
§ 18.70.100 (or even seeking any guidance from the Council). A copy of this e-mail is attached
and the relevant language reads as follows:
In the past, staff has permitted homeowners to remove square footage from one
part of a house and add it back to another portion when the property was over
FAR. This was done on a case by case basis and there was criteria to ensure the
new square footage would be less impactful. Unfortunately, while this was a
long standing staff policy, there is no provision in the code that allows this type
of “cut and paste”. Therefore “cut and paste” is officially dead! Please ensure
all projects conform to Code Section 18.70.
Email from Jodie Gerhardt, Development Center Manager, September 23, 2016.
In fact, Ms. Gerhardt had it backwards and the City’s prior interpretation of § 18.70.100 was the
correct one because it simply does not speak to remodeling projects such as mine and has no
language supporting the City’s new interpretation. Instead, Section 80 applies and it authorizes
our modest project because that project does not “affect the particular degree of or manner in
which the facility does not comply with one or more provisions of this title.”
Finally, we note that in the days prior to our appeal appearing on the Consent Calendar the City
advised us that it was willing to amend the Code in a manner that would authorize projects like
ours under a de minimis exception. We are grateful for that positive step and proposed that this
appeal be suspended pending adoption of the exception but the City was not willing to agree to
any sort of timeline on the amendment. Since we are literally “not getting any younger” and
without any assurances on timing of the amendment, we believe we have no choice but to move
forward with our appeal. We, along with similarly situated homeowners, eagerly await Council’s
position on the Director’s Interpretation and thank the Council for its consideration of our
appeal.
3
Executive Summary
Relief Requested: Reverse the May 8, 2025 Determination and direct ministerial processing of
Permit #25BLD-00025.
Basis: PAMC § 18.70.080 permits the proposed work because it does not increase the particular
degree or manner of noncompliance. PAMC § 18.70.100 applies only when a damaged or
destroyed noncomplying portion is replaced or reconstructed; here, the noncomplying second-
floor room is being removed—not replaced or reconstructed—and thus § 18.70.100 does not
constrain the new first-floor work, which is instead evaluated under § 18.70.080.
Support: (i) the text of PAMC § 18.70.100; (ii) 2016 staff email stating that PAMC § 18.70.100
does not bar reconfiguration of floor area within the same nonconforming structure where the
degree or manner of noncompliance is not increased; (iii) plan-set metrics table below
demonstrating no increase.
Before/After Zoning Metrics (Attach as Exhibit A)
Metric Existing Proposed
Lot Area (sf) 8,100 SF No Change
Allowable GFA (sf) 3,180 SF No Change
GFA (sf) 3,455.30 SF 3,444.06 SF
FAR 3,455.30 SF = 42.65% 3,444.06 SF = 42.52%
Site Coverage (%) 3,922.39 SF (48.42%) 3,912.53 SF (48.30%)
Setbacks (F/R/S) (ft) 20’-2”/45’-1”/ 4’-10” No Change/43’-1”/ 4’-10”
Height / Daylight Plane 18’-5”/(E) Non-
Conforming gable on L
Side to Remain
NO Change/No Change
Parking
(covered/uncovered)
1/1 tandem
No Change
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
4
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
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.”).1
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 § 1021.5
(“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).2
The Director’s Determination
The Director largely bases his rejection of our plan on Section 18.70.100.3 That section governs
reconstruction of a residential structure that already exceeds current zoning limits and is
1 The Department has argued that it is entitled to some degree of deference when interpreting the
City’s own municipal code. While this may be correct as a general matter, that principle should
not apply here when the Department’s interpretation has no grounding in the actual language of
the Code and the Department followed the exact opposite interpretation prior to its unexplained
about-face in 2016 (see Ms. Gerhardt’s September 23, 2016 e-mail).
2 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.
3 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
5
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.
We are clearly not “replacing” or “reconstructing” the existing second-floor room. We are
converting it to attic space and not replacing or reconstructing it. The Director would be correct
if we were altering the existing second-floor room and keeping it as loft space. But that is not our
plan.
Since we are not replacing or reconstructing the existing second-floor room, 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 existing second-floor room. 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
existing second-floor room 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
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 6).
6
Code it is of course free to do so after complying with State and local 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
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.”).4
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 homes that do not comply with current code (which is in fact a
significant percentage of homes in Palo Alto) 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 noncompliance.”
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
noncompliance 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 §§
18.70.080, 18.70.090, and 18.70.100. 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,
4 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.
7
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. There is also no question
that had we submitted our application prior to Ms. Gerhardt’s September 23, 2016 e-mail
abruptly reversing its longstanding interpretation without citation to the applicable code text, the
project would have been quickly approved.
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 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. While we appreciate the Department’s commitment to approve
our project in the future under a de minimis exception, our project satisfies current code and no
such amendment is necessary.
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). The Department properly recognized this distinction in its interpretation until
Ms. Gerhardt’s announcement of a materially different approach, one that was not based on the
actual language of the Code and one which constituted a significant and unexplained departure
from past practice.
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 existing second-floor room 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).
8
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.
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.
Sincerely,
/s/
Joseph and Colleen Petersen
Owners / Applicants
3886 Magnolia Drive, Palo Alto, California 94306
(917) 859 9680
jpetersen@ktslaw.com
9
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.
10
(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)
11
From:Jeff Levinsky
To:Council, City
Subject:Item 16: Appeal of Director’s Interpretation regarding 3886 Magnolia Drive
Date:Sunday, August 17, 2025 4:28:00 PM
Dear City Council Members:
Here’s a different way to evaluate this situation.
In essence, the appellant proposes to remove floor area on their second floor and expand the
first floor, ending up with 11 fewer square feet of floor area, which is still in excess of the
current legal amount on their lot.
Let’s think about the order of these two steps.
If they first remove the second floor portion and then seek to expand their first floor, that’s
clearly not allowed. The removal of the second floor portion would decrease their non-
compliance with their floor area limit and then the later expansion would increase their non-
compliance and thus be disallowed.
If they instead plan to first expand their first floor and then seal off their second floor space,
that too would not be allowed. Again, that’s because the first floor expansion would increase
their non-compliance.
No two actions of this complexity can actually be simultaneous, even if they overlap. So under
both practical scenarios, the appellant’s proposal does not comply with the municipal code.
That’s it in a nutshell.
The appellant doesn’t address this way of thinking about their proposal.
The appellant also somewhat incorrectly claims that “the term ‘relocation’ appears nowhere
in the text of Section [18.70.]100.” While the word “relocation” itself doesn’t appear, the
concept of relocation is in 18.70.100(c), which allows excess floor area to be relocated in a
building in specific zones but not R-1. As staff note, why would such a rule exist if the section
already allowed relocation, as the applicant claims?
However, staff’s argument about reconfiguration of non-compliant space being disallowed by
18.70.080 is also not compelling. Staff doesn’t seem to explain what actual non-compliant
aspect would increase due to the proposed reconfiguration. Staff talks about “form, massing,
and presentation,” but the proposed remodel would not be out of compliance with any of
those. So the appellant appears to be correct that their proposed remodel would not increase
by any measure their degree of non-compliance according to the staff's logic.
But it doesn't matter. I recommend you uphold staff’s position for the reason that in
whatever order the remodel occurs, it will at some point increase non-compliance and thus
isn't legal.
That said, clearly our laws could be improved. But we should do it the right way. Staff
recommends a new rule that would include the terms “consider”, “de-minimis”, “minor,” “not
impactful,” and “public realm.” Such subjective notions muddy rather than clear up the law.
The staff recommendation also doesn’t address which zones would be affected and relies on
individual discretionary approval rather than impersonal application of the law. It’s better to
have crisp rules that spell out exactly what you want. So I recommend you reword the staff
recommendation to request the amendment allow for relocated floor area in specific
circumstances that are determined objectively, not subjectively.
Thank you,
Jeff Levinsky