Chapter 14.02 GENERAL PROVISIONS AND DEFINITIONS
Sections:
Article 1. General
14.02.010 Short title.
This chapter shall be known and cited as the "zoning regulations of the city."
14.02.020 Purpose.
There is hereby adopted a precise zoning plan for the city. The zoning plan is adopted in order to protect and promote the public health, safety, peace, comfort, convenience, prosperity, and general welfare. More specifically, the zoning plan is adopted in order to achieve the following objectives:
A. To guide community growth along sound lines;
B. To ensure a harmonious, convenient relationship among land uses; C. To promote a safe, workable traffic circulation system; D. To provide appropriate locations for needed community facilities; E. To promote business activities of appropriate types; F. To protect and enhance real property values within the city; and G. To conserve the city's natural beauty, to improve its appearance, and to preserve and enhance its distinctive physical character.
14.02.030 Nature.
The zoning plan consists of a zoning map designating certain districts and a set of regulations set forth in this chapter controlling the uses of land, the uses and locations of structures, the height and bulk of structures, the open spaces about structures, and the areas of sites in the districts; controlling the external appearance of structures in certain districts; and requiring the provisions of off-street parking spaces and off-street loading spaces in certain districts.
14.02.040 Interpretation.
A. In their interpretation and application, the provisions of this chapter shall be held to be minimum requirements.
B. This chapter is not intended to abrogate, annul, impair, or interfere with any deed restriction, covenant, easement, or other agreement between parties; provided, however, 404
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where this chapter imposes a greater restriction on the use of land or structures or the height or bulk of structures, or requires greater open spaces about structures or greater areas of sites than are imposed or required by deed restriction, covenant, easement, or other agreement, the provisions of this chapter shall control, but the provisions of this chapter shall not be construed as limiting in any way the provisions of the Los Altos offstreet parking district No. 1.
14.02.050 General provisions and definitions.
The provisions of this chapter shall apply to all property located within the city except public streets, property and property rights owned by the city, and public utility lines within the public right-of-way. With the above-noted exceptions, this chapter applies to all such property whether the same is owned by private persons, firms, corporations or organizations, or by the state or any of its agencies or political subdivisions, or by any county, or by any city with the exception of the city of Los Altos. Land uses that are not provided for herein as permitted uses, conditional uses, or limited conditional uses, are prohibited.
14.02.055 Landscaping required in connection with a development project.
Any landscaping required as an objective design standard or as a condition of project approval for a development project approved pursuant to this title shall be maintained by the property owner or occupant of the property for the life of the development project. Failure to do so shall constitute a nuisance.
14.02.060 Statement of annexation policy.
A. In future annexations of property to the city, the council intends that zoning standards shall conform to those shown in the master plan for land use. In the event the property being considered for annexation is outside the planning area described in the master plan land use map, zoning standards comparable to those shown for similar areas shall be required unless the council shall specifically decree otherwise.
B. No zoning contrary to that shown in the master plan, no matter by whom previously granted, shall be recognized as binding upon the commission and/or the council until a change of zoning is processed through normal commission-council channels as provided in this chapter.
Article 2. Definitions
14.02.070010 Definitions.
For the purposes of this chapter, certain words and phrases used in this chapter are defined as follows:
"Abut" means two adjoining parcels of property with a common property line. Where two or more lots adjoin only at a corner or corners, they shall not be considered as abutting unless 405
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the common property line between the two parcels measures not less than eight feet in a single direction.
"Accessory dwelling unit" means an attached or detached residential dwelling unit which provides complete independent living facilities for one or more persons. It shall include permanent provisions for living, sleeping, eating, cooking, and sanitation on the same parcel as a single-family dwelling is situated. An accessory dwelling unit also includes an efficiency unit, as defined in California Health and Safety Code section 17958.1, and a manufactured home, as defined in California Health and Safety Code section 18007. Formerly referred to as "second living unit."
"Accessory structure" means a building that is incidental to and customarily associated with a specific principal use or facility and is not utilized as sleeping quarters. "Advertising structure" means any notice of advertisement, pictorial or otherwise, and all such structures used as an outdoor display, regardless of size and shape, for the purpose of making anything known, the origin or place of sale of which is not on the property with such advertising structure.
"Affordable housing unit" means a for-sale or rental dwelling unit affordable to households with extremely low, very low, low, or moderate incomes as published periodically by HCD for households in Santa Clara County.
"Agriculture" means the tilling of the soil or the raising of crops as a commercial operation. "Alley" means a public or private right-of-way permanently reserved as a secondary means of access to an abutting property.
"Alter" means to make a change which will prolong the life of the supporting members of a structure, such as bearing walls, columns, beams, or girders. "Animal clinic" means a place where the public may obtain examinations, prescriptions, and treatment for small animals. Major surgery or confinement overnight shall be limited to emergency cases only.
"Animal hospital" means a place where animals or pets are given medical or surgical treatment and are cared for during the time of such treatment. Use as a kennel shall be limited to short-time boarding and shall be only incidental to such hospital use. "Apartment" shall mean, for the purposes of this chapter only, a dwelling in a structure designed or used to house four or more families living independently of each other. "Approving authority" means the legislative body, commission, committee, or official of the city designated under the provisions of this title as having the authority to approve or deny a particular type of application.
"Arcade" means any business establishment in which there are more than three game machines as defined in this section which are available for use by the public or by business invitees, or both.
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“Art Galleries” means a business or place which displays a variety of art and/or artifacts for viewing or purchase.
"Attic" means the unfinished level between the ceiling of the top floor and the roof and enclosed by walls. Attic shall be an uninhabitable area and is excluded from the definition of a “story”.
“Balcony” means a platform that extends from an upper floor of a building and is enclosed by a parapet or railing and has no roof.
"Banks (commercial)" means financial institutions including federally-chartered banks, savings and loan associations, industrial loan companies, and credit unions providing retail banking services to individuals and businesses. This classification does not include payday lending businesses or check cashing businesses, and as a result, the establishment, expansion, or relocation of such businesses is prohibited. The term "payday lending business" as used herein means retail businesses owned or operated by a "licensee" as that term is defined in California Financial Code Section 23001(d), as amended from time to time. The term "check cashing business" as used herein means a retail business owned or operated by a "check casher" as that term is defined in California Civil Code Section 1789.31 as amended from time to time.
"Basement" means living or storage area which is constructed wholly underground, meaning below the exterior finished grade on all sides, with no more than 20% percent of the lineal footage of the exterior wall broken by light wells, no light well wider than four (4) feet and no light well within four (4) feet of another light well. the following:
1. For all R1 zoning districts, basement means that portion of a structure located entirely below grade, with the exception of the top of such basement which may extend for a vertical distance not exceeding two feet from the outside grade to the finished floor above. As used herein, the term "grade" shall mean either the natural grade or finished grade adjacent to the exterior walls of the structure, whichever is lower. No portion of any structure with an exposed wall shall be considered a basement, with the exception of below-grade garages that are screened from public view by either topography or built improvements.
2. For all other zoning districts, basement means that portion of a building between the floor and the ceiling, which is wholly or partly below grade and so located that the vertical distance from the grade to the floor below is equal to or greater than the vertical distance from the grade to the ceiling.
"Bay window" means a large window or series of windows cantilevered from the outer wall of a building and forming a recess within.
“Below Market Rate Unit” shall have the same meaning as “Affordable housing unit”. "Board-formed concrete" means concrete that has textured patterns on its finished surfaces that retain the wood grain of boards or molds used to form the wet concrete. 407
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“Building” means any structure having a roof supported by columns or walls, used or intended to be used for the shelter or enclosure of persons, animals or property. “Building frontage” means that portion of a building located adjacent to a street. "Bulk reverse vending machine" is a reverse vending machine that is larger than fifty (50) square feet; is designed to accept more than one container at a time; and will pay by weight instead of by container.
“Business and Professional Offices shall have the same meaning as “office-administrative”. "Business, professional, and or trade school" means a use, except a college or university, providing education or training in business, commerce, language, or other similar activity or pursuit, and not otherwise defined as a home occupation or private educational facility. "Cannabis" means any or all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, whether growing or not; the seeds thereof; the resin or separated resin, whether crude or purified, extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. The term "cannabis" shall also include "medical marijuana" as such phrase is used in the August 2008 Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use, as may be amended from time to time, that was issued by the office of the Attorney General for the State of California or subject to the provisions of the California Health and Safety Code Section 11362.5 (Compassionate Use Act of 1996) or California Health and Safety Code Sections 11362.7 to 11362.83 (Medical Marijuana Program Act). "Cannabis" includes marijuana as defined by Section 11018 of the Health and Safety Code, and includes "cannabis" as defined in Business and Professions Code, Section 26001. For purposes of this code, the terms "marijuana" and "cannabis" may be used interchangeably.
"Cannabis cultivation" means growing, planting, harvesting, drying, curing, grading, trimming, or processing of cannabis, regardless of whether there is an intent to produce, distribute, or sell the resulting product commercially. "Cannabis delivery" means the commercial transfer of cannabis or cannabis products to a customer. "Delivery" also includes the use by a cannabis retailer of any technology platform that enables customers to arrange for or facilitate the commercial transfer by a licensed retailer of cannabis or cannabis products.
"Cannabis distribution" means the procurement, sale, and transport of cannabis and cannabis products and any other activity allowed under the state distributor license(s), including, but not limited to, cannabis storage, packaging, quality control and collection of state cannabis taxes.
"Cannabis manufacture" means to compound, blend, extract, infuse, or otherwise make or prepare a cannabis product. Cannabis manufacture includes the production, preparation, propagation, or compounding of manufactured cannabis, or cannabis products either directly or indirectly or by extraction methods, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis at a fixed location that packages or repackages medical cannabis or cannabis products or labels or relabels its container. 408
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"Cannabis products" means cannabis that has undergone a process whereby the plant material has been transformed into a concentrate, including, but not limited to, concentrated cannabis, or an edible or topical product containing cannabis or concentrated cannabis and other ingredients. Cannabis products include "cannabis products" as defined in Business and Professions Code, Section 26001.
"Cannabis retailer" means a facility where cannabis or cannabis products are offered, either individually or in any combination, for retail sale to customers, including an establishment that delivers cannabis and cannabis products as part of a retail sale or conducts sales exclusively by delivery. For purposes of this code, the term "cannabis retailer" includes microbusinesses, nonprofits licensed under Business and Professions Code, Section 26070.5, and any other state license designation that authorizes distribution, whether for free or in exchange for any consideration, of cannabis and/or cannabis products to individual customers.
For purposes of this code, "cannabis retailer" also includes medical cannabis dispensaries, patient collectives and cooperatives operating, or proposing to operate, pursuant to the Compassionate Use Act (Health and Safety Code, § 11362.5) and/or the Medical Marijuana Program (Health and Safety Code, § 11362.7 et seq.), as may be amended. "Cannabis testing laboratory" means a facility, entity, or site in the state that offers or performs tests of cannabis or cannabis products and that is both accredited by an accrediting body that is independent from all other persons involved in the medical cannabis industry in the state, and licensed by the Bureau of Cannabis Control. "Carport" means a covered area open on two or more sides designed for the storage of not more than three automobiles.
"C District" means any zone district with a commercial designation. "Chamfered corner" means a building corner which is cut back at a forty-five (45) degree diagonal from the primary façade to provide a corner surface at least eight feet in length "Church" shall have the same meaning as “Religious institution”. "Cocktail lounge" means a business establishment which has, as its primary business, the sale of alcoholic beverages for consumption on the premises and where, if food is served, it is incidental to the sale of beverages.
"Collection facility" means a center for the acceptance by donation, redemption, or purchase of recyclable materials from the public. Such a facility does not use power-driven processing equipment, except as indicated in Chapter 14.68. Collection facilities may include the following:
1. Reverse vending machine(s);
2. Small collection facilities that occupy an area of not more than five hundred (500) square feet and may include:
a. A mobile unit,
b. Bulk reverse vending machines or a grouping of reverse vending machines occupying more than fifty (50) square feet,
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c. Kiosk type units which may include permanent structures, and d. Unattended containers placed for the donation of recyclable materials; and
3. Large collection facilities that may occupy an area of more than five hundred (500) square feet and may include permanent structures.
"Commercial cannabis use" includes all cannabis cultivation, cannabis manufacture, cannabis distribution, cannabis testing laboratories, cannabis retailers, cannabis delivery, and sale of cannabis and/or cannabis products, whether intended for medical or adult-use, and whether or not such activities are carried out for profit. "Commercial cannabis use" includes "commercial cannabis activity" as defined in Business and Professions Code, Section 26001, and includes any activity that requires a license from a state licensing authority pursuant to the Medicinal and Adult-Use Cannabis Regulation and Safety Act, Business and Professions Code, Division 10, as may be amended. "Commercial cannabis use" does not include possession or indoor cultivation of cannabis for personal use that is not sold and in strict accordance with Health and Safety Code, Section 11362.1 et seq.
"Commercial recreation" means a use providing recreation, amusement, or entertainment services, including theaters, bowling lanes, billiard parlors, skating arenas, and similar services, operated on a private or for-profit basis, but excluding uses defined as outdoor recreation services. Commercial recreation also includes art, dance, music, and fitness studios and health clubs that exceed seven thousand (7,000) gross square feet. "Community housing" and "community housing project" shall mean and include the following:
1. "Residential condominium" as defined in Section 783 of the Civil Code of the state: an estate of real property consisting of an undivided interest in common areas, together with a separate right of ownership in space;
2. "Community apartment" as defined in Section 11004 of the Business and Professions Code of the state: containing two or more rights of exclusive occupancy, excluding nonconforming uses;
3. "Residential planned development" as defined in Section 11003 of the Business and Professions Code of the state: a plan consisting of distinguishable use activity areas, including separately owned parcels of land with contiguous or nearby property owned in common; and
4. Stock cooperative as defined in Section 11003.2 of the Business and Professions Code of the state: property consisting of dwelling units owned by a corporation whereby the tenants are the shareholders of the corporation.
"Convalescent hospital" means a building and premises for the care of sick, injured, aged, or infirm persons to be housed, or a place of rest for those who are bedfast or needing nursing care, but not including facilities for the treatment of sickness or injuries or for surgical care. “Country Club” means a private club operated for profit, maintaining and operating but not limited to, a golf course and other associated recreational activities both indoors and outdoors.
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"Coverage" means the percentage of net site area covered in structures in excess of six feet in height measured to the outside surfaces of exterior walls and the perimeter of any supports, coverage does not include uncovered porches, verandas, balconies, alcoves, or other similar elements, which are uncovered and open on at least one side. "Cul-de-sac" means any street having but one outlet for vehicular traffic. "Day care center Daycare facility" means any group day care program, except regular elementary schools. Included are day nurseries, nursery schools, preschools, playgroups, and after-school groups.
"Daylight plane," for lots seventy (70) feet or greater in width, means an inclined plane beginning at a stated height above grade at each side property line and extending perpendicularly from the side property line into the site at a stated upward angle relative to the horizontal. For lots less than seventy (70) feet in width, the daylight plane begins at a stated height above grade at each second story setback line.
"District" means a portion of the incorporated area of the city within which certain regulations common to such portion controlling land use, site area, coverage, yards and other open spaces, height of structures, and other physical development standards apply under the provisions of this chapter.
"Drive-through facility" means any business or service that involves transactions between an attendant and a customer in a vehicle, including drive-in restaurants and car washes. "Dwelling" means a structure containing one or more rooms and one kitchen designed for human occupancy.
"Emergency shelter" means housing with minimal supportive services for homeless persons in accordance with Health and Safety Code 50801 that is limited to occupancy of six months or less by a homeless person. No individual or household may be denied emergency shelter because of an inability to pay.
"Enclosed accessory structure" means a structure with three or more walls, or an equivalent percentage of enclosure for an area with more than four walls, and a solid roof. "Façade" means the exterior wall on any side of a building. "Family day care home" means a dwelling where day care is provided for children under eighteen (18) years of age who are unrelated to the licensee. A small family day care home may provide care for up to eight children, and a large family day care home may provide care for up to fourteen (14) children, as regulated by the California Health and Safety Code. Both limitations include the number of children residing in the dwelling. "Floor area ratio" means the maximum ratio of gross floor area on a site to the total site area.
"Frontage" means the property line(s) of a site abutting on a street. "Game machine" means any device, game or contrivance, including but not limited to pinball machines, video games, computer games, electronic games, slot machines, and similar 411
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machines and devices for which a charge or payment is received for the privilege of playing, using or operating the same and which, as the result of such use, operation or playing, does not entitle the person using, operating or playing the same to receive equivalent value in the form of tangible merchandise; excepting, however, pool tables and shuffleboard games. "Garage" means an accessory structure, or a portion of a main structure designed for the storage of automobiles.
"General hospital" means any building, or portion thereof, used for the accommodation and medical care of sick, injured, or infirm persons, including sanitariums, alcoholic sanitariums, and institutions for the cure of chronic drug addicts and mental patients. “Grade” means the elevation of the ground surface.
“Grade, adjacent” means the average elevation of the ground immediately next to an existing or proposed structure. Average grade shall include the average elevation along the entire building elevation of an existing or proposed structure. “Grade, finished" means the elevation of the ground after the completion of a project. “Grade, natural” means the elevation of the ground which exists prior to the start of any site preparation, grading, or construction related to the project being proposed. "Gross floor area" means the total floor space under roof of all floors of a building measured to the outside surfaces of exterior walls, finishes, windows and doors including halls, stairways, elevator shafts, ducts, service and mechanical equipment rooms, interior courts, garages, enclosed accessory structures, and carports. In the case of a sloped ceiling or ground surface, the floor area shall be measured to the point at which the interior height is five feet. "Gross floor area" does not include: porches, verandas, balconies, alcoves, or other similar elements, which are open on at least one side; basements or attic areas; unenclosed accessory structures; exterior roof overhangs or chimney projections; porte cocheres; interior heights less than five feet; or structures under six feet in height. "Gross site area" means the total horizontal area included within the property lines of a single site.
"Height of buildings" means the vertical height of a structure measured as provided in the specific regulations of the for all R1 zoning districts, and as provided in Section 14.66.240 for all other zoning districts unless otherwise specified.
"Height of fences and walls" means a vertical line from the highest point of the fence or wall to a point directly below. Where a fence is constructed upon a retaining wall, the height of the fence shall be the vertical distance measured from the top of the fence to the highest adjacent grade.
"Home occupation" means an occupation carried on in a home, provided no assistants are employed and provided such use is conducted within a dwelling and carried on by the occupants of the property, and is clearly incidental to the residential use of the dwelling, and does not change the residential character or appearance of the dwelling or adversely affect the uses permitted in the residential district of which it is a part, and wherein no product, other 412
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than those produced on the premises, is sold and no mechanical equipment is used, other than that necessary for domestic purposes, and where there is no indoor or outdoor storage of materials, equipment, and/or supplies, other than those necessary for domestic purposes.
Home occupations shall be limited to a maximum of eight (8) visitors a day which include clients and deliveries to and from the property.
"Horticulture/floriculture" means the growing of fruits, vegetables, or ornamental plants as a commercial operation.
"Hotel" means a structure in which there are three or more guest rooms or suites, where lodging with or without meals is provided for compensation, and where provisions for cooking may or may not be provided in any individual guest room or suite. "Housing unit, nontransient" means a dwelling, mobile home or trailer, single room, or group of rooms that is occupied as separate living quarters for a period of more than thirty (30) consecutive days or, if vacant, intended for occupancy as separate living quarters for a period of more than thirty (30) consecutive days. Separate living quarters are those in which the occupants live and eat separately from any other persons in the building and which have direct access from outside the building or through a common hall. "Housing unit, transient" means a dwelling, mobile home or trailer, single room, or group of rooms that is occupied as separate living quarters for a period of thirty (30) consecutive days or less or, if vacant, intended for occupancy as separate living quarters for a period of thirty (30) consecutive days or less. Separate living quarters are those in which the occupants live and eat separately from any other persons in the building and which have direct access from outside the building or through a common hall.
"Industry" means the manufacture, fabrication, processing, reduction, or destruction of any article, substance, or commodity, or any other treatment thereof in such a manner as to change the form, character, or appearance thereof, including storage elevators, truck storage yards, warehouses, wholesale storage, and other similar types of enterprise. "Interior courts" as used herein means an area within the structure enclosed on all sides. "Kennel" means any lot or premises on which four or more dogs and cats at least four months of age are kept, boarded, or trained, whether in special buildings or runways. "Kitchen" means any room or area intended or designed to be used or maintained for the cooking, storing, and preparation of food.
"Lined" parking refers to a building configuration where residential, commercial, or office uses are located between a street-facing property line and above-ground parking levels. Also referred to as a "wrapped" building.
"Loading space" means an off-street space or berth for the temporary parking of a commercial vehicle while loading or unloading merchandise or materials, which space abuts on a street, alley, or other appropriate means of access.
"Lodging" means the furnishing of rooms or groups of rooms within a dwelling unit or an accessory structure to persons other than members of the family residing in said dwelling unit; 413
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or in the case of an accessory structure, a dwelling unit on the same site, for overnight occupancy on a residential occupancy basis, whether or not meals are provided to such persons.
“Loft “means a room or space directly under the roof of a structure used as habitable area and open to the rooms below on at least one side.
"Lot" means a parcel of land consisting of a single lot of record.
1. "Lot of record" means a lot which is part of a subdivision and shown on a map thereof as recorded in the office of the county recorder, or a legally created parcel of land described by metes and bounds or shown on a parcel map which has been so recorded.
2. "Corner lot" means a lot abutting the intersection of two or more streets. A lot abutting on a curved street or streets shall be considered a corner lot if straight lines drawn from the intersections of the lot lines with the street lines meet at an interior angle of one hundred thirty-five (135) degrees or less, or if the centerline of the street abutting the lot has an interior angle over the distance of any curve of one hundred thirty-five (135) degrees or less. A lot abutting a street and an alley shall not be considered a corner lot.
3. "Interior lot" means a lot other than a corner lot.
4. "Flag lot" means a lot having access to a street by means of a corridor of land not otherwise meeting the requirements of this chapter for site width.
5. "Double frontage lot" means an interior lot having frontage on two parallel or approximately parallel streets.
“Lot depth” means the horizontal distance between the front and the rear lot lines. "Lot line" means any boundary of a lot.
1. "Front lot line" means, on an interior lot, the lot line abutting a street, or, on a corner lot, the shortest dimension of the lot fronting the street, or, on a double frontage lot, the lot line abutting the street providing the primary means of access to the lot, or, on a flag lot, the interior lot line most parallel to and nearest the street from which the means of access is obtained, except that where the average width of a flag lot exceeds its average depth and the longer dimension is considered the depth, the front lot line will be the property line from which the front yard is measured. On a corner lot, if more than one property line abutting on a street can be designated as a front lot line without creating a nonconforming lot or structure, then either property line may be deemed the front lot line.
2. "Rear lot line" means the lot boundary opposite, or approximately opposite the front lot line. A lot bounded by only three lot lines will not have a rear lot line.
3. "Side lot line" means any lot line, which is not a front or rear lot line, as follows:
a. "Interior side lot line" means any lot line not abutting a street. 414
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b. "Exterior side lot line" means any lot line abutting a street.
4. The city planner shall assign or designate lot lines for irregular-shaped parcels. “Lot width” means the horizontal distance between the side lot lines measured within the lot boundaries or the mean distance between the side lot lines within the buildable area. "Low-barrier navigation center" means a housing-first, low-barrier, service-enriched shelter focused on moving people into permanent housing that provides temporary living facilities while case managers connect individuals experiencing homelessness to income, public benefits, health services, shelter, and housing. "Low barrier" means best practices to reduce barriers to entry, and may include, but is not limited to, the following:
1. The presence of partners if it is not a population-specific site, such as for survivors of domestic violence or sexual assault, women, or youth.
2. Pets.
3. The storage of possessions.
4. Privacy, such as partitions around beds in a dormitory setting or in larger rooms containing more than two beds, or private rooms.
"Maintenance and repair services" means a use, not conducted within an office, providing services for the maintenance or repair of personal effects and not primarily for the sale of goods or merchandise.
"Medical and dental clinic" means a use that provides diagnostic and outpatient care in more than one medical or dental specialty, but is unable to provide long term in-house medical or surgical care. Clinics will commonly have lab facilities, supporting pharmacies and provide a range of services.
"Medical and dental office" means a use that provides diagnostic and outpatient care on a routine basis, but is unable to provide in-house medical or surgical care. Offices will commonly provide specialized or individual physicians. Medical and dental offices include, but are not limited to, physical therapy, acupuncturist, dental services, psychiatric services, chiropractic care, counselor/psychotherapy, diagnostic services and skilled nursing facilities. Medical and dental office does not include medical spas for aesthetic services. "Medical marijuana collective" or "cooperative or collective" means any group that is collectively or cooperatively cultivating and distributing marijuana for medical purposes that is organized in the manner set forth in the August 2008 Guidelines for the Security and NonDiversion of Marijuana Grown for Medical Use, as may be amended from time to time, that was issued by the office of the Attorney General for the State of California or subject to the provisions of the California Health and Safety Code Section 11362.5 (Compassionate Use Act of 1996) or California Health and Safety Code Sections 11362.7 to 11362.83 (Medical Marijuana Program Act).
"Motel" means a group of attached or detached structures containing individual sleeping or living units, designed for or used primarily for transient guests, with a garage attached or 415
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parking space located in proximity to each unit, including auto courts, motor courts, motor ledges, and tourist courts.
"Multiple-family dwelling" means a dwelling or group of dwellings on one site containing separate living units for two or more families that may have joint services or facilities or both. “Museum” shall have the same meaning as “Art Galleries”. "Net site area" means that portion of gross site area remaining after deducting therefrom the following:
a. Any portion of a site within the right-of-way of an existing public or private street, road, or access easement, except an emergency access street; b. Any portion of a site within the proposed right-of-way of a future street (except an emergency access street), as shown on an approved tentative subdivision map or a recorded subdivision map;
c. The portion of a flag lot constituting the access corridor lying between the front lot line and the frontage line of the corridor at the street. "Nonconforming lot" means a lot that no longer conforms to the regulations for the district in which such lot is located.
"Nonconforming structure" means a structure, or a portion thereof, which no longer conforms to the regulations for the district in which such structure is located. "Nonconforming use" means a use that no longer conforms to the use regulations for the district in which such use is located.
"Nursing home" means a structure in which sick, injured, or infirm persons are housed for compensation, including a convalescent home or rest home. "Office-administrative" means uses that predominantly sell professional and/or business services. The contact with the general public is not as frequent as with retail businesses or personal services, and a significant portion of the business may take place at other locations.
Examples include banks, law offices, accountants, medical and dental offices, advertising, real estate companies, financial advisory, and computer support. "Outdoor recreation service" means a privately owned or operated use providing facilities for outdoor recreation activities, including golf, tennis, swimming, riding, or other outdoor sport or recreation, operated predominantly in the open, except for accessory or incidental enclosed services or facilities.
"Parapet" means a wall or roof structure projecting up from the roof to define a roof line and/or to screen mechanical equipment. Roof elements with a sixty-degree slope or greater may be considered parapets. Parapets may not be used to provide additional usable floor space for dwelling, commercial use, or storage of any type. Parapets shall be integral to the architectural design of the building.
"Parking facility" means an area on a lot or within a building, or both, including one or more parking spaces, together with driveways, aisles, turning and maneuvering areas, 416
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clearances, and similar features, and meeting the requirements established by this title. Parking facility includes parking lots, garages, and parking structures. "Parking space" means an off-street space, either enclosed in a structure or an open area, the principal use of which is the storage or parking of automotive vehicles. "Penthouse" means a non-habitable structure housing machinery on the roof of a building intended to provide an architecturally pleasing cover to stairwells, elevator equipment and other building systems that may be found on a roof top. "Personal service" means a use, not conducted within an office, providing services for the personal care of an individual or the fitting, cleaning, repair, or maintenance of personal effects and not primarily for the sale of goods or merchandise. Personal services include beauty shops, barber shops and nail salons, pet grooming, shoe repair, laundry and cleaning services, repair and fitting of clothes, and other similar services. Personal services also include art, dance, music, tutoring centers, fitness studios and health clubs that do not exceed seven thousand (7,000) gross square feet.
"Porte cochere" means a roofed structure covering a driveway that is not designed for the storage of automobiles.
"Precise plan line" means a line established by an ordinance or other action of the council to control the location of structures with respect to an existing or proposed street, alley, parking space, or loading space.
"Principal living unit" means the primary dwelling on a single-family residential lot or parcel which dwelling contains one or more rooms and one kitchen designed for occupancy by one family for living and sleeping purposes.
"Property line" means a line bounding a parcel of real property. "Qualified employee housing" means employee housing defined in Health & Safety Code section 17008, even if the housing accommodations or property are not located in a rural area, as defined by Health & Safety Code section 50101. Any housing development project approved pursuant to Health & Safety Code section 17021.8 is also "qualified employee housing," and shall be a permitted use notwithstanding anything to the contrary in this code. "Recycling facility" means center for the collection and/or processing of recyclable materials. A certified recycling facility or certified processor shall mean a recycling facility certified by the Department of Conservation of the state as meeting the requirements of the State Beverage Container Recycling and Litter Reduction Act of 1986. Recycling facility shall not include storage containers or processing activity located on the premises of a residential, commercial, or manufacturing use and used solely for the recycling of material generated by such residential property, business, or manufacturer.
“Religious institution” means a seminary, retreat, monastery, conference center, or similar use for the conduct of religious activities, including accessory housing incidental thereto, but excluding a private educational facility. Any such use for which a property tax exemption has been obtained pursuant to Section 3(f) of Article XIII of the Constitution of the State of 417
Agenda Item # 19.
California, and Section 206 of the Revenue and Taxation Code of the State of California. or successor legislation, or which is used in connection with any church which has received such an exemption, shall be prima facie presumed to be a religious institution. "Residential care home" means a structure in which nonmedical services are provided for persons sixty (60) years of age and over in accordance with California Health and Safety Code Section 1569.2.
"Residential care facility" or "residential care facilities" shall be defined consistent with the California Health & Safety Code Section 1502 which may be amended from time to time. The following shall constitute a residential care facility within the City of Los Altos:
1. "Community care facility" means any facility, place, or building that is maintained and operated to provide nonmedical residential care, day treatment, adult day care, or foster family agency services for children, adults, or children and adults, including, but not limited to, the physically handicapped, mentally impaired, incompetent persons, and abused or neglected children, and includes the following:
a. "Residential facility" means any family home, group care facility, or similar facility determined by the director, for twenty-four (24) hour nonmedical care of persons in need of personal services, supervision, or assistance essential for sustaining the activities of daily living or for the protection of the individual.
b. "Adult day program" means any community-based facility or program that provides care to persons eighteen (18) years of age or older in need of personal services, supervision, or assistance essential for sustaining the activities of daily living or for the protection of these individuals on less than a twenty-four (24) hour basis. c. "Therapeutic day services facility" means any facility that provides nonmedical care, counseling, educational or vocational support, or social rehabilitation services on less than a twenty-four (24) hour basis to persons under eighteen (18) years of age who would otherwise be placed in foster care or who are returning to families from foster care. Program standards for these facilities shall be developed by the department, pursuant to Section 1530, in consultation with therapeutic day services and foster care providers. d. "Foster family agency" means any public agency or private organization engaged in the recruiting, certifying, and training of, and providing professional support to, foster parents, or in finding homes or other places for placement of children for temporary or permanent care who require that level of care. Private foster family agencies shall be organized and operated on a nonprofit basis.
e. "Foster family home" means any residential facility providing twenty-four (24) hour care for six or fewer foster children that is owned, leased, or rented and is the residence of the foster parent or parents, including their family, in whose care the foster children have been placed. The placement may be by a public or private child placement agency or by a court order, or by voluntary placement by a parent, parents, or guardian. It also means a foster family home described in Section 1505.2.
418
Agenda Item # 19.
f. "Small family home" means any residential facility, in the licensee's family residence, that provides twenty-four (24) hour care for six or fewer foster children who have mental disorders or developmental or physical disabilities and who require special care and supervision as a result of their disabilities. A small family home may accept children with special health care needs, pursuant to subdivision (a) of Section 17710 of the Welfare and Institutions Code. In addition to placing children with special health care needs, the department may approve placement of children without special health care needs, up to the licensed capacity. g. "Social rehabilitation facility" means any residential facility that provides social rehabilitation services for no longer than eighteen (18) months in a group setting to adults recovering from mental illness who temporarily need assistance, guidance, or counseling.
Program components shall be subject to program standards pursuant to Article 1 (commencing with Section 5670) of Chapter 2.5 of Part 2 of Division 5 of the Welfare and Institutions Code. h. "Community treatment facility" means any residential facility that provides mental health treatment services to children in a group setting and that has the capacity to provide secure containment. Program components shall be subject to program standards developed and enforced by the State Department of Health Care Services pursuant to Section 4094 of the Welfare and Institutions Code.
"Restaurant" means any eating or drinking establishment having seating capacity which sells or offers for sale to the public any food or drink for immediate consumption on the premises, and includes any coffee shop, cafeteria, cafe, tavern, bar, soda fountain, or dining room.
"Retail uses" means uses that predominantly sell products rather than services, directly to the public, and generally for consumer or household use. Retail uses are designed to attract a high volume of walk-in customers and have floor space that is devoted predominantly to the display of merchandise to attract customers. Retail businesses may also provide incidental after-sales services, such as repair and installation, for the goods sold.
1. "Extensive retail" as used with respect to parking requirements, means a retail use primarily selling large commodities such as home or office furniture, floor coverings, stoves, refrigerators, other household electrical and gas appliances, including televisions and home sound systems, and outdoor furniture, such as lawn furniture, movable spas and hot tubs.
2. "Intensive retail" as used with respect to parking requirements, means any retail use not defined as an extensive retail use.
"Reverse vending machine" means an automated mechanical device which accepts at least one or more types of empty beverage containers, including, but not limited to, aluminum cans and glass or plastic bottles, and issues a cash refund or a redeemable credit slip with a value not less than the container's redemption value as determined by the state. A reverse vending machine may sort and process containers mechanically, provided the entire process is enclosed within the machine. In order to accept and temporarily store all three container types in a proportion commensurate with their relative redemption rates, and to meet the requirements 419
Agenda Item # 19.
of certification as a recycling facility, multiple grouping of reverse vending machines may be necessary.
"Scale" means proportionality in the relationship between a building and the size of parts to one another and to the human figure.
"Second living unit" means a second dwelling on a single-family residential lot; refer to the definition of "accessory dwelling unit."
"Service station" means an occupancy that provides for the servicing of motor vehicles, and operations incidental thereto, including retail sales of gasoline, oil, tires, batteries, and new accessories.
“Setback” means the minimum required horizontal distance from a given point or line of reference such as a property line, to the nearest vertical wall or other element of a building or structure.
"Short-term rental" means a use that provides lodging in a dwelling unit, for compensation, for a period of fewer than thirty (30) consecutive calendar days. "Short-term rental" does not include transient lodging in city-approved hotels and motels. “Single-family dwellings” means a detached building designed for and/or occupied exclusively by one (1) family or household. Also includes factory-built, manufactured or modular housing.
"Single-room occupancy housing" means a residential project with small units between one hundred fifty (150) and three hundred fifty (350) square feet each, with or without integral bathroom and/or kitchen facilities. Individual single-room occupancy units designated for extremely low-income households or designated as supportive housing in accordance with Section 53260 of the Health and Safety Code are exempt from the density limits. "Site" means a lot, or group of contiguous lots, that is proposed for development in accordance with the provisions of this title. as defined in this chapter.
1. "Gross site area" means the total horizontal area included within the property lines of a single site.
2. "Net site area" means that portion of gross site area remaining after deducting therefrom the following:
a. Any portion of a site within the right-of-way of an existing public or private street, road, or access easement, except an emergency access street; b. Any portion of a site within the proposed right-of-way of a future street (except an emergency access street), as shown on an approved tentative subdivision map or a recorded subdivision map;
c. The portion of a flag lot constituting the access corridor lying between the front lot line and the frontage line of the corridor at the street.
3. "Site frontage" means the length of the front lot line. 420
Agenda Item # 19.
4. "Site width" means the horizontal distance between side lot lines, measured at right angles to the site depth at a point midway between the front and rear lot lines, or if there is no rear lot line, at the midway points of the intersecting side lot lines.
5. "Site depth" means the horizontal distance from the midpoint of the front lot line to the midpoint of the rear lot line, or to the most distant point on any other lot line where there is no rear lot line.
6. "Site coverage" means the land area covered by all the structures on a site, including all projections except eaves. Site coverage does not include paved surfaces or structures under six feet in height.
"Storage garage" means a structure, or part thereof, used for the storage, parking, or servicing for compensation of automotive vehicles, but not for the repair thereof. "Story" means a space in a structure between the surface of any floor and the surface of the floor or roof next above, but not including any basement, attic, or underfloor space. "Street" means a public or private thoroughfare, including the easement area or dedicated public right-of-way, which affords access to two or more sites. "Structure" means anything constructed or erected which requires a location on the ground, but not including fences or walls used as fences. "Supportive housing" shall mean a housing development project as defined in Government Code section 65582(g), as may be amended or renumbered from time to time, as being housing with no limit on length of stay, that is occupied by the target population, and that is linked to an on-site or off-site service that assists the supportive housing resident in retaining the housing, improving his or her health status, and maximizing his or her ability to live and, when possible, work in the community. Supportive housing is a residential use and is subject to only those restrictions that apply to other residential uses of the same type in the same zone. "Target population" means persons with low incomes who have one or more disabilities as described in section 65582(i) of the Government Code.
"Take-out service" means a characteristic of an eating or drinking service which encourages, on a regular basis, consumption of food or beverages, such as prepared or prepackaged items, outside of a building, in outdoor seating areas where regular table service is not provided, in vehicles parked on the premises, or off-site. Take-out food services do not include ice cream parlors, candy stores, and other similar specialty, primarily retail food businesses.
"Tower" means a building or part of a building that is exceptionally high in proportion to its width and length or tall and slender.
"Transitional housing" shall mean a housing development project as defined in Government Code section 65582(j), as may be amended or renumbered from time to time, as being building(s) configured as a rental housing development, but operated under program requirements that require the termination of assistance and recirculating of the assisted unit to another eligible program recipient at a predetermined future point in time that shall be no less 421
Agenda Item # 19.
than six months from the beginning of the assistance. Transitional housing is a residential use and is subject to only those restrictions that apply to other residential uses of the same type in the same zone.
"Transportation terminal" means a depot, terminal, or transfer facility for passenger transportation services.
“Wall plate” means the top most structural element of a wall frame. "Yard" means an area within a lot, adjoining and measured from a lot, street, or plan line for a specified distance, open and unobstructed except for the uses and structures otherwise permitted the regulations of this chapter:
1. Yard measurement. Required yards shall be measured as the minimum horizontal distance from the lot line to a line parallel thereto on the site.
2. "Front yard" means a yard measured into a lot from the front lot line, extending the full width of the lot.
3. "Rear yard" means a yard measured into a lot from the rear lot line, extending the full width of the lot, provided that for lots having no defined rear lot line, the rear yard shall be measured into the lot from the rearmost point of the lot depth to a line parallel to the front lot line. On a corner lot, the rear yard shall terminate at the exterior side yard.
4. "Side yard" means a yard measured into a lot from a side lot line. An exterior side yard is a side yard measured from an exterior lot line or a street or plan line, extending between the front yard and the rear lot line; an interior side yard is a side yard measured from an interior lot line, extending between the front yard and the rear yard.
422
Agenda Item # 19.
CHAPTER 14.81
VARIANCES
14.81.010 Intent and Purpose.
California Government Code Section 65906 establishes the authority of the City to grant variances to the development standards and provisions of the Zoning Code in cases where, because of special circumstances applicable to the property, the strict application of the Zoning Code deprives such property of privileges enjoyed by other property in the vicinity and under identical land use zones.
14.81.020 Applicability.
A. A variance application shall be limited to deviations from any provision of Title 14 of the Los Altos Municipal Code is proposed, including, but not limited to, those standards related to height, lot area, yards, open spaces, setbacks, lot dimensions, signs and parking, unless otherwise specified. Deviations from code requirements not contained within Title 14 shall not be authorized to submit for a variance request.
B. Variances may not be approved for uses or activities not otherwise expressly authorized by the Zoning Code. A variance is not a substitute for a zone change, zone text amendment, or conditional use permit.
C. Personal, family, medical, and financial hardships and neighboring violations or legal non-conformities do not represent grounds on which to file a variance application.
D. Variances to use provisions of the Zoning Code are prohibited.
14.81.030 Submittal Requirements and Review.
A. Filing. An application for a variance shall be filed and processed in compliance with all applicable provisions of Title 14 of the Los Altos Municipal Code. The application shall include the information and materials specified in the Development Services Department handout for variance applications, together with the required fee. It is the responsibility of the applicant to provide evidence in support of the findings required by this chapter.
B. Project Review Procedures. Following receipt of a completed application, the Zoning Administrator shall investigate the facts necessary for action consistent with the purpose of this chapter.
C. Notice, Hearings, and Appeals.
1. A public hearing shall be required on a variance application. Notice of the public hearing shall be given and the hearing shall be conducted in compliance with Chapter 14.01.130 (Public Notice Requirements).
2. The Commission's decision is appealable to the Council in compliance with Chapter 14.01.100 (Appeals).
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Agenda Item # 19.
14.81.040 Findings and Decision.
A. A variance may be granted provided that the Zoning Administrator or Planning Commission, or the City Council on appeal, finds, after a full investigation and public hearing, that all the following are true:
1. The variance does not grant or authorize a use or activity that is not otherwise allowed in the zone; and
2. Special circumstances exist applicable to the subject property, including size, shape, topography, location, or surroundings such that strict application of the Zoning Ordinance deprives such property of privileges enjoyed by other property in the vicinity and the same zoning district; and
3. The granting of the variance does not constitute a grant of special right or privilege inconsistent with the limitations upon other properties in the vicinity and the same zoning district; and
4. The granting of the application will not be detrimental or injurious to property or improvements in the vicinity and will not be detrimental to the public health, safety, general welfare or convenience.
B. Failure to make all the required findings shall require denial of the variance.
14.81.050 Conditions of approval/guarantees.
A. In granting a variance, certain safeguards may be required and certain conditions established to protect the public health, safety, convenience and general welfare and to assure that the purposes of the Zoning Code shall be maintained with respect to the particular use on the particular site and in consideration of the location, use, building and characteristics and environmental impact of the proposed use and of existing and potential uses within the general area in which such use is proposed to be located.
B. The conditions attached to variance may include such provisions concerning height, area, yards, open spaces, setbacks, parking, loading, signs, improvements, site design, operation characteristic, land use compatibility, general character, appearance, environmental impact, time limits for commencing the construction authorized, revocation dates, and other conditions the Zoning Administrator or Planning Commission may deem appropriate and necessary to carry out the purposes of the Zoning Code and Chapter.
14.81.060 Precedents.
Each application shall be reviewed on an individual case-by-case basis and the approval of a prior variance is not admissible evidence for the approval of a new variance.
14.81.070 Runs with the Land.
Variances shall run with the land and confer the rights granted to and conditions placed upon the applicant onto subsequent property owners.
424
Agenda Item # 19.
City Council Agenda Report
Meeting Date: November 12, 2024
Prepared By: Anthony Carnesecca
Approved By: Gabe Engeland
Subject:
Discuss Theater Capital Campaign Analysis Update and Request for Funding from City
COUNCIL PRIORITY AREA
☒Business Communities
☐Circulation Safety and Efficiency
☐Environmental Sustainability
☐Housing
☐Neighborhood Safety Infrastructure
☐General Government
FISCAL IMPACT
The fiscal impact will depend upon City Council direction. The Los Altos Stage Company requests two $2.5 million requests with one as the lead gift for the project and another at the $10 million goal mark and a campaign fundraising consultant that will cost roughly $300,000 over 3 years.
The total initial fiscal impact would depend upon when the City Council requests to hire a consultant, present the lead gift, and when the fundraising campaign would hit the $10 million goal mark.
ENVIRONMENTAL REVIEW
No known or intended environmental impacts at this stage.
The City and Los Altos Stage Company acknowledge that any financial commitments are subject to the compliance with all legal requirements, including and but not limited to compliance with the California Environmental Quality Act (CEQA). No financial commitment shall be construed to compel Los Altos Stage Company or the City to approve or make any particular findings with respect to any environmental documentation that is prepared, pursuant to CEQA, for any portion of the Project. The City retains full discretion to approve any CEQA documents prepared or to analyze environmental impacts or the Project.
PREVIOUS COUNCIL CONSIDERATION
November 9, 2021, November 30, 2021, May 9, 2023 & June 13, 2023 425
Agenda Item # 20.
SUMMARY
With City Council support and direction, the Los Altos Stage Company is pursuing a downtown theater located on half of Parking Plaza #2. The City has an existing MOU with them through November 9, 2025 while they completed a Capital Campaign Analysis.
BACKGROUND
The Los Altos Stage Company has operated in the Bus Barn Theater at the Los Altos Civic Center site for 29 years.
Since August 2018, a community theater was identified as part of the Los Altos Downtown Vision Plan that would relocate the Los Altos Stage Company to a new theater in the downtown triangle.
During the November 9, 2021 meeting, the Los Altos Stage Company presented to the City Council and requested a Memorandum of Understanding (MOU) with the City of Los Altos in order to pursue building a downtown theater. At that meeting, the City Council directed staff to prepare a MOU under which the City would reserve a specified City-owned parking plaza through November 9, 2024 as a potential site for a community theater, in order to give the Los Altos Stage Company an opportunity to raise funds towards building a community theater During the November 30, 2021 meeting, the City Council approved the MOU for a three year agreement through November 30, 2024.
During this time, the Los Altos Stage Company hired AMS Research to do a Feasibility Study built around project objectives, program possibilities, and costs. The results of this study were presented to the City Council in May 2023. This analysis presented an estimated cost of $24 million with $1 million escalation for a 23,400 square foot building with a 160-seat theater and other performing arts spaces.
During the May 9, 2023 study session with the Los Altos Stage Company, City Council directed staff to bring a one year extension of this MOU in order to support their next step in completing a capital campaign analysis.
During the June 13, 2023 meeting, the City Council voted to extend the existing MOU through November 9, 2025 with the updated language.
DISCUSSION/ANALYSIS
The Los Altos Stage Company hired BuildingBlox Consulting who completed their findings in June 2024. BuildingBlox created a prospective donor list with over 200 names, conducted indepth interviews with 20 prospective donors, and drafted an analysis on the potential for a fundraising campaign.
The analysis showed that they were likely to raise roughly $9 - $12 million without a lead gift. In order to reach a $25 million goal, it was recommended that Los Altos Stage Company should hire a capital campaign manager to cultivate the largest gifts between $2.5 and $5 million. 426
Agenda Item # 20.
The Los Altos Stage Company is requesting the City to fund two $2.5 million requests, with one as the lead gift for the project and another at the $10 million goal mark, and to hire a Capital Campaign Consultant, which is estimated at roughly $300,000 over 3 years. The final request is to extend the MOU with the City to continue their work.
ATTACHMENTS
1. Los Altos Stage Company Presentation
2. Los Altos Stage Company Feasibility Study Executive Summary
3. Downtown Theater MOU Extension
427
Agenda Item # 20.
VISION FOR THE
FUTURE • Increase capacity, versatility,
and utilization
• Elevate our youth focus • Increase civic pride • Benefit local businesses • Provide a community hub for arts and culture
• Create greater sustainability
and financial viability
428
Agenda Item # 20.
HOW IT STARTED
• City Council adopted Downtown
Vision in 2018 with theater
identified as best use
• Stage Company (LASC) was asked
to form the New Theater Working
Group
• City Council signed non-binding
MOU for Parking Plaza #2
• AMS Research hired to do
Feasibility Study built around
project objectives, program
possibilities, and costs
• Presented to City Council in 2023
• MOU extension approved to hold
Parking Plaza #2 to complete
funding feasibility study
429
Agenda Item # 20.
• 23,400 square feet
• 13,500 square feet “footprint”
• 160-seat theater
• Dedicated youth lounge
• Back of house support spaces
(dressing rooms, restrooms, etc.)
• Rehearsal and teaching spaces
• Lobby, patio and community
gathering spaces
• $1000/sf cost estimated
AMS RECOMMENDATIONS
ESTIMATED COST OF $24M,
WITH $1M escalation
430
Agenda Item # 20.
NEXT PHASE:
FINANCIAL •
FEASIBILITY STUDY LASC hired BuildingBlox Consulting
who complete findings in June 2024
with report to LASC
• Meetings held to review
BuildingBlox summary with each
individual council member and City
Manager Gabe Engeland
• Now reporting to community and
City Council on November 12, 2024
with request for support
WHAT’S HAPPENED
SINCE:
431
Agenda Item # 20.
FINDINGS FROM
BUILDINGBLOX
STUDY:
• Prospective donor list created with
over 200 names
• In-depth interviews conducted with 20
prospective donors
• Most funders were in mid-range level
of interest in donating
432
Agenda Item # 20.
FINDINGS FROM
BUILDINGBLOX
STUDY:
• Likely to raise total funds of $ 9 to
12 million without a lead gift
• LASC needs to cultivate largest
gifts between $2.5 to 5 million
• To reach $25 million goal, capital
campaign manager must be hired
to find largest gifts
• BuildingBlox recommends
engaging more deeply with the
City
• LASC must systematically build
additional community support
433
Agenda Item # 20.
TIMELINE:
• Capital Campaign will take two
years of effort with first year
focusing on major gifts
• Break ground in three years
• One year of actual construction
• 5-year Operating Budget built
into AMS study
434
Agenda Item # 20.
NEXT STEPS:
• Request Financial Support from
City Council with lead gift of
$2.5 million and second gift of
$2.5 million at the $10 million
goal
• Continue to build the LASC
board to maximum size
• Hire a Capital Campaign
consultant (estimated $300,000
over 3 years)
• Extend the expiration date of the
MOU with the City
435
Agenda Item # 20.
June 2024
Nate Levine [email protected]
Charlene Akers [email protected]
Nancy Monnig [email protected]
Barbara Lundquist [email protected]
Andy Kastner [email protected]
Gabriel Larsen Santos [email protected] 436
Agenda Item # 20.
BuildingBlox Consulting (BBC) was honored to collaborate with Los Altos Stage Company (LASC) as you prepare to launch your capital campaign to enliven the arts in Los Altos. We conducted fundraising planning and a feasibility study and provided recommendations to maximize your fundraising success. For detailed information, charts, and supporting data, please refer to the full final report and appendices. Research and ratings on probable major gift donors have been supplied to the LASC staff.
The following is a summary of the scope of our work which started in November 2023:
• Create a case for giving: an engaging narrative that tells the LASC story to probable major donors
• Identify and prioritize ~200 of LASC’s most probable major gift donors and assign them a likely ask amount
• Assess your leadership’s fundraising readiness through survey and interviews with staff and board members
• Develop a detailed breakdown of staff tasks required for campaign success and an estimation of the amount of time needed to perform those tasks • Provide systems for tracking and reporting fundraising activity to create efficiency and accountability
• Conduct fundraising feasibility interviews with 20 probable donors to ascertain impressions of LASC, solicit feedback on your plan and messaging, determine their likely giving to the capital campaign, and assess the likelihood of your raising your stated target of $25M to be raised over five years.
• Develop a 5-year campaign plan and make recommendations for implementing your campaign
Between April 8, 2024, and May 28, 2024, BBC conducted 20 confidential interviews with a subset of your top probable donors. We have reported the feedback we received without attribution (see Appendix 4: Feasibility Interview Quotes for the full set of responses). These interviews were conducted online via Zoom, each lasting between 45 and 75 minutes. In these interviews, we sought feedback on interviewees’:
• Impressions of Los Altos Stage Company, including the board and staff • Perceptions of Los Altos Stage Company’s priority issues • Reactions to your case for giving, including the project plan and budget • Willingness to support the campaign
Our interviews revealed widespread enthusiasm and interest in creating a downtown theater.
Naturally, some concerns were raised (see the full report for our interview findings). Many interviewees indicated their willingness to make extraordinarily generous gifts to the campaign.
However, we did not interview many probable donors with a likely ask amount of $1M-$5M+. 437
Agenda Item # 20.
The absence of feedback from the largest potential donor base makes projections more challenging.
Without feedback from the largest potential donors, we believe it will be difficult but not impossible for LASC to raise $25M over the next five years. However, if LASC can secure 1 to 4 lead gifts totaling approximately $10M or more, the probability of success will be significantly higher.
To determine your likelihood of success, BBC asked feasibility study participants if they were likely to contribute to this capital campaign. Interviewees provided a low and high range estimate of their potential gift levels. It is important to note that interviews were confidential, and the responses were not firm commitments but serve as estimations of likely giving.
Our fundraising feasibility projections stemmed from examining three populations:
1. Probable Major Donors – $9.4M to $15.5M
We projected the probable levels of giving from all 187 probable major donors identified by LASC, based on the responses and the rating assigned to each interviewee.
2. Community Campaign – $900K to $1.25M
Projections of likely giving from community-level annual donors (who give less than $25K over five years) who were not top probable major donors.
3. X Factor: Giving from Donors Not Yet Identified – $1M to $3M An additional projection based on the assumption that LASC will grow their pipeline of major gift asks as they open new networks throughout the campaign.
For each population, we provided conservative, moderate, and aggressive projections.
Figure 1: Campaign Giving Projections Based on Feasibility Study Results 18% 26% 33% $3,035,000 $4,250,000 $5,575,000
24% 31% 38% $6,366,250 $8,235,000 $9,976,250
$9,401,250 $12,485,000 $15,551,250
$900,000 $1,000,000 $1,250,000
$1,000,000 $2,000,000 $3,000,000
$11,301,250 $15,485,000 $19,801,250
• Tiers 0 & 1: Includes all board members and probable donors closest to LASC. • Tiers 2 & 3: Includes probable donors who are less engaged with LASC. 438
Agenda Item # 20.
Based on the chart above, the following probability curves show a range of your most probable fundraising outcomes along our conservative, moderate, and aggressive confidence levels of success. The blue boxes indicate the range of probability that we recommend you consider when establishing your campaign goal.
Figure 2: LASC Campaign Fundraising Feasibility
One line shows our projections including 1-4 large lead gifts totaling $10M+, and the other line shows our projections in the absence of those securing those early gifts.
The lines indicate your most probable outcomes for this five-year campaign range from $20M on the conservative end (80% probability) to $30M on the aggressive end (40% probability).
Therefore, we strongly recommend that the initial focus of your campaign be on securing those lead gifts from individuals, foundations, local businesses, corporations, or government sources.
439
Agenda Item # 20.
Securing those gifts not only numerically increases the amount of your fundraising but also builds momentum and raises the giving sights of others. But without those early lead gifts, your probable outcomes dramatically decrease to $11.3M (80% probability) to $19.8M (40% probability).
After making an extensive effort to secure those early lead gifts, reconsider the scope of your project and whether to scale back or move forward. Among those early donors, you may find individuals who can facilitate introductions, those who want to take a more active role in the campaign, or potential future leaders of LASC.
Additionally, 11 respondents indicated a possible interest in including LASC in their estate plans, with two mentioning possible testamentary gifts of $500K to $1M, indicating significant upside potential. Actively expanding your legacy giving program could enhance LASC's long-term financial sustainability, though is less likely to help in funding your short-term goals.
The following is a summary of the most common themes mentioned by interviewees. See the full report for a detailed collection of interview themes and quotations.
1. Nearly all interviewees agree that theatre, art, and culture significantly benefit the community.
2. Interviewees appreciate the quality of LASC productions, especially considering its limited resources and facilities. However, some expressed concerns about the choice of plays.
3. LASC is highly valued as a resource for children, and interviewees were excited about the theater serving more kids.
4. There is a strong need for better publicity, outreach, fundraising, and donor stewardship.
5. Most interviewees acknowledged the serious limitations of the Bus Barn facilities, though some appreciated its intimacy.
6. There is widespread support for a new theatre and cultural center downtown, in line with Los Altos’ Master Plan. However, concerns include parking and potential disruptions to businesses. Many emphasized the importance of offering a variety of programs in the new facility, not just LASC's.
7. Interviewees emphasized the importance of securing large lead gifts from individuals and corporations, as well as active support from the City of Los Altos, for the project to succeed.
8. Those familiar with Gary Landis, the Executive Director, praised his artistic leadership but were uncertain about his fundraising potential.
9. Board members were commended for their dedication and commitment, particularly Vicki Reeder. However, concerns were raised about high turnover rates, fundraising abilities, and succession planning.
440
Agenda Item # 20.
As shown in the gift chart in Figure 3 below, a vast majority of your fundraising for this campaign will come from major gift fundraising which is predicated on face-to-face relationship building. Since your time is limited, it will be important to continue prioritizing your top, most likely major gift donors and the timeframe for cultivating and soliciting them. In other words:
who are you going to ask, for how much, and when?
Figure 3: Gifts Needed For a $25M Campaign
It will come as no surprise that a significant amount of the money to be raised for this campaign is expected to come from a relatively small number of donors.
LASC Identified and rated 187 probable donors with likely ask amounts totaling $39,325,000.
Figure 4 below summarizes the LASC top probable donor list by likely ask amount and assigned priority tier. In the chart, “$ Ask” represents the likely ask amount. For example, in the light blue section, 2 probable donors have a likely ask amount of $500K each and are assigned to priority Tier 3, indicating they are the least close to LASC. Note that identified prospects do not include government funders.
441
Agenda Item # 20.
Figure 4: Summary of Rated Top Probable Donors
To assess your fundraising readiness, we conducted confidential interviews with staff and board and administered a confidential online survey to all staff and board asking participants to evaluate LASC’s effectiveness in the following areas. The following are highlights from that assessment.
• ~97% of survey respondents felt that a new theater is essential to the ongoing sustainability and future success of LASC.
• Nearly everyone felt that it was reasonable to expect board and volunteer supporters to make a financial contribution to the campaign that is generous within their personal financial situation.
• For all respondents, enthusiasm for serving as an ambassador was high, with ~77% being extremely or moderately enthusiastic.
• Nearly everyone expressed willingness to participate in at least one or more fundraising activities in support of the campaign.
• If leaders live up to the number of visits they committed to in the survey, there is more than enough willingness among leadership to meet with your individual probable major gift donors.
The following are our top-level recommendations to maximize your fundraising results. See the full report for a complete set of detailed recommendations.
1. Secure Early Large Lead Gifts from Individuals, Corporations, and/or the City of Los Altos.
Emphasize the critical importance of securing these top lead gifts early in the campaign.
Aim to secure 1 to 4 lead gifts totaling $10 million. These contributions will not only provide substantial financial support but also serve as a strong endorsement of the campaign, encouraging other donors to contribute more generously. 442
Agenda Item # 20.
2. Include Legacy Giving in Your Discussions with Prospects.
While it may not assist with immediate cash flow, emphasizing estate plans and testamentary giving is potentially crucial for the long-term viability of LASC.
3. Discuss and Codify Board Member Expectations and Their Roles in the Campaign.
As the LASC board evolves over the next few years, clearly communicate the importance of the campaign to current and potential new board members. Emphasize that this will be a major focus in the coming years and outline the roles you expect board members to play, including making gifts and serving as ambassadors or introducers.
4. Train Your Board and Other Ambassadors to Use Your Case for Giving.
Because your ambassadors will represent LASC in the community at large and when meeting with probable donors, it is important that they deliver a clear, consistent, and compelling message about LASC and the campaign. It will be critical for them to learn to tailor their presentation to address the specific interests and concerns of individual potential donors.
5. Strengthen Ties with Probable Major Gift Donors Through Multiple Face-to-Face Visits.
It will likely take three or more visits to introduce potential donors to your plans, get their feedback, answer their objections, and show them that large gifts are critical to LASC meeting its goals.
6. Expand Your Pool of Major Gift Prospects and Adjust Ask Amounts to Suit Each Individual’s Capacity and Enthusiasm for the Project.
Our feasibility study showed a number of people willing to give more than their originally determined ask amount. Therefore, we encourage you to be more ambitious in your asks of potential donors within reason. The way to avoid offending would-be donors is to emphasize the size of gifts you need to be successful, rather than telling people what they ought to give.
7. Grow Your Team of Ambassadors.
Expand your team to increase your capacity for visits with prospects. Increasing the number of ambassadors for LASC will help open doors beyond your traditional donor base.
8. Recruit a Campaign Committee of Select Board Members and Other Community Leaders.
Only bring people onto your campaign committee once you have secured a commitment from them. Focus the committee on the identification, cultivation and solicitation of probable major donors.
443
Agenda Item # 20.
444
Agenda Item # 20.
6. The Parties further declare and further acknowledge that the City's and LASC's commitments are subject to the compliance with all legal requirements, including and but not limited to compliance with the California Environmental Quality Act (CEQA). Nothing in this MOU shall be construed to compel LASC or the City to approve or make any particular findings with respect to any environmental documentation that is prepared, pursuant to CEQA, for any portion of the Project.
The City retains full discretion to approve any CEQA documents prepared or to analyze environmental impacts or the Project.
7. This MOU is expressly non-binding and does not commit the City to approving the Project nor does it contain all of the terms and conditions related to the transaction contemplated herein. The City expressly retains the right to terminate this MOU at its convenience. If LASC abandons or does not pursue the Project, then this MOU shall be deemed to be null and void.
8. This MOU or Project may be subject to or superseded by any Federal, State, or local laws, including but not limited to, laws governing affordable housing.
CITY OF LOS ALTOS LASC
Name: Gabriel Engeland Name: Vicki Reeder
Title: City Manager Title: Board President
APPROVED AS TO FORM: APPROVED AS TO FORM:
Name: Jolie Houston Name:
Title: City Attorney, Los Altos Title:
4890-5154-7396v1
JH\00000999 -2-
445
Agenda Item # 20.
446
Agenda Item # 20.
1 North San Antonio Road
Los Altos, California 94022-3087
M E M O R A N D U M
DATE: November 12, 2024
TO: City Council
FROM: Anthony Carnesecca, Assistant to the City Manager SUBJECT: UPDATE ON WOODLAND LIBRARY PATIO PROJECT
In March 2022, the Library Commission Infrastructure Subcommittee presented a report on the Woodland Library Patio Project that had a conceptual framework of proposed programs and amenities for the outdoor space at Woodland Library. The Infrastructure Subcommittee was directed to continue working on the project.
In December 2022, the Library Commission unanimously approved the Woodland Expanded Patio Project as presented.
After that approval, the Infrastructure Subcommittee provided the general proposal for a Woodland Expanded Patio Project to the Los Altos Library Endowment to explore funding opportunities. It was determined that this project would wait until after the Main Library Patio project is considered by the Los Altos Planning Commission.
In August 2024, the Los Altos Library Endowment was made aware of a native plant garden project by Greentown Los Altos in the proposed area for the Woodland Library Patio. Accordingly, the Los Altos Library Endowment team gathered that group and key library stakeholders to discuss how the two projects could work together moving forward.
At the September 16, 2024, the Library Commission received a report from the Chair and LALE Liaison Fawcett regarding recent progress on the Woodland Library Patio project. This initial conversation amongst key stakeholders, which included individuals from Santa Clara County Library District, Los Altos Library Endowment, Greentown Los Altos, and the Library Commission LALE Liaison.
Since that meeting, the Los Altos Library Endowment team has created renderings of what the space could look like that are being circulated for feedback from Library patrons and staff. These renderings were completed based upon the proposal by the Library Commission Infrastructure 447
Agenda Item # 21.
Committee and match the existing area with decomposed granite and paver edgework that matches the existing Woodland Library Patio.
In addition to the patio, these renderings show what could potentially happen with the native plant garden project that is adjacent to the patio, but Greentown Los Altos is working on their own design of specific plants and layouts of the space.
City staff has attached the renderings to this memorandum.
At the first January Library Commission meeting, the Los Altos Library Endowment team will present these renderings and welcome feedback on the patio renderings.
Once the Library Commission has provided feedback on this project and any adjustments have been made, the Los Altos Library Endowment team will submit drawings for review and consideration of the City of Los Altos.
The City acknowledges that the Woodland Library Patio is subject to the compliance with all legal requirements, including and but not limited to compliance with the California Environmental Quality Act (CEQA). No financial commitment shall be construed to compel the City to approve or make any particular findings with respect to any environmental documentation that is prepared, pursuant to CEQA, for any portion of the Project. The City retains full discretion to approve any CEQA documents prepared or to analyze environmental impacts or the Project. 448
Agenda Item # 21.
449
Agenda Item # 21.
LANDSCAPE ARCHITECTS
CREATING BETTER PLACESwww.ssala.com
WOODLAND BRANCH LIBRARY
CONCEPTUAL RENDERINGS
OCTOBER 1, 2024
450
Agenda Item # 21.
LANDSCAPE ARCHITECTS
CREATING BETTER PLACESwww.ssala.com
WOODLAND BRANCH LIBRARY
CONCEPTUAL RENDERINGS
OCTOBER 1, 2024
451
Agenda Item # 21.
LANDSCAPE ARCHITECTS
CREATING BETTER PLACESwww.ssala.com
WOODLAND BRANCH LIBRARY
CONCEPTUAL RENDERINGS
OCTOBER 1, 2024
452
Agenda Item # 21.
LANDSCAPE ARCHITECTS
CREATING BETTER PLACESwww.ssala.com
WOODLAND BRANCH LIBRARY
CONCEPTUAL RENDERINGS
OCTOBER 1, 2024
453
Agenda Item # 21.
LANDSCAPE ARCHITECTS
CREATING BETTER PLACESwww.ssala.com
WOODLAND BRANCH LIBRARY
CONCEPTUAL RENDERINGS
OCTOBER 1, 2024
454
Agenda Item # 21.
LANDSCAPE ARCHITECTS
CREATING BETTER PLACESwww.ssala.com
WOODLAND BRANCH LIBRARY
CONCEPTUAL RENDERINGS
OCTOBER 1, 2024
455
Agenda Item # 21.
LANDSCAPE ARCHITECTS
CREATING BETTER PLACESwww.ssala.com
WOODLAND BRANCH LIBRARY
CONCEPTUAL RENDERINGS
OCTOBER 1, 2024
456
Agenda Item # 21.
LANDSCAPE ARCHITECTS
CREATING BETTER PLACESwww.ssala.com
WOODLAND BRANCH LIBRARY
CONCEPTUAL RENDERINGS
OCTOBER 1, 2024
457
Agenda Item # 21.
LANDSCAPE ARCHITECTS
CREATING BETTER PLACESwww.ssala.com
WOODLAND BRANCH LIBRARY
CONCEPTUAL RENDERINGS
OCTOBER 1, 2024
458
Agenda Item # 21.
PROGRAM SUB PROJECT INITIATION DATE HEU COMPLETION DATE STATUS Program 2.D: Encourage and streamline Accessory Dwelling Units (ADUs).
Budget & Hire Planning
Technician December 31, 2022 COMPLETED
Program 2.D: Encourage and streamline Accessory Dwelling Units (ADUs).
Amend ADU Ordinance
based upon HCD's letter 6 months or less COMPLETED
Program 6.G: Housing mobility
Allow more than one
JADU (at least two per
site)
with ADU Ordinance
Update COMPLETED
Program 3.H: Amend design review process and
requirements.
Eliminate 3rd Party
Architectural Review February 28, 2023 COMPLETED
Program 3.H: Amend design review process and
requirements.
Dismiss Design Review
Commission February 28, 2023 COMPLETED
Program 3.L: Eliminate the requirement of story poles. March 31, 2023 COMPLETED Program 2.E: Conduct annual ADU rental income surveys.
Budget & Hire Housing
Manager March 31, 2023 COMPLETED
Program 4.J: Facilitate alternate modes of transportation for Adopt VMT Policy & June 30, 2023 COMPLETED Program 2.D: Encourage and streamline Accessory Dwelling Units (ADUs).
RFP-Permit Ready ADU
Plans July 31, 2023 COMPLETED
Program 1.H: Facilitate housing on City-owned sites. Financial Analysis July 1, 2023 December 31, 2023 IN-PROGRESS Program 3.D: Evaluate and adjust impact fees. August 1, 2023 December 31, 2024 COMPLETED Program 1.H: Facilitate housing on City-owned sites. Release RFP December 31, 2023 COMPLETED Program 6.C: Target housing development in highest
resource areas. Initial Outreach September 31, 2023
Program 6.D: Promote Housing Choice (Section 8) rental
assistance program. September 31, 2023
Program 2.A: Continue to implement and enhance
inclusionary housing requirements. December 31, 2023 ONGOING Program 2.B: Establish an affordable housing in-lieu fee and commercial linkage fee. Housing in-lieu fee. December 31, 2023 COMPLETED Program 2.F: Water and Sewer Service Providers. December 31, 2023 COMPLETED Program 3.B: Modify building height in mixed-use zoning districts. Downtown Districts December 31, 2023 COMPLETED 459
Agenda Item # 22.
Program 3.E: Ensure that the density bonus ordinance
remains consistent with State law. December 31, 2023 ONGOING Program 3.H: Amend design review process and
requirements. Code Amendments December 31, 2023 COMPLETED Program 3.K: Standardize multimodal transportation
requirements.
Bicycle Storage and
Charging Regulations December 31, 2023 COMPLETED
Program 3.K: Standardize multimodal transportation
requirements.
Remove CSC Review of
Housing Developments December 31, 2023 COMPLETED
Program 4.C: Allow Low Barrier Navigation Centers
consistent with AB 101. December 31, 2023 COMPLETED
Program 4.D: Allow transitional and supportive housing
consistent with State law. December 31, 2023 COMPLETED
Program 4.E: Allow employee/farmworker housing
consistent with State law. December 31, 2023 COMPLETED
Program 4.F: Reasonably accommodate disabled persons’
housing needs. December 31, 2023 COMPLETED
Program 6.B: Maintain and expand an inventory of
affordable housing funding sources. Prepare Inventory. December 31, 2023 Program 6.E: Prepare and distribute anti-displacement
information. December 31, 2023
Program 1.A: Rezone for RHNA shortfall. January 31, 2024 COMPLETED Program 1.G: Rezone housing sites from previous Housing Elements. January 31, 2024 COMPLETED
Program 3.G: Amend Conditional Use Permits findings
applicable to housing developments. March 31, 2024 COMPLETED Program 3.I: Allow residential care facilities consistent with State law. January 31, 2024 COMPLETED
Program 3.J: Explicitly allow manufactured homes consistent with State law. January 31, 2024 COMPLETED
Program 3.F: Reduce Conditional Use Permit requirement for residential mixed-use and
multi-family. September 31, 2024 COMPLETED
Program 1.B: Facilitate higher density housing in the
Commercial Thoroughfare (CT) District. January 31, 2024 COMPLETED 460
Agenda Item # 22.
Program 1.C: Allow housing in the Office Administrative (OA) District. January 31, 2024 COMPLETED
Program 1.E: Update the Loyola Corners Specific Plan. January 31, 2024 COMPLETED Program 2.D: Encourage and streamline Accessory Dwelling Units (ADUs).
Adopt-Permit Ready ADU
Plans December 31, 2024 IN-PROGRESS
Program 3.A: Prepare a Downtown parking plan and update citywide parking requirements. Downtown Parking Plan December 31, 2024 IN-PROGRESS Program 3.A: Prepare a Downtown parking plan and update citywide parking requirements.
Comprehensive Parking
Ordinance Update December 31, 2024 COMPLETED
Program 3.B: Modify building height in mixed-use zoning districts.
Commercial
Neighborhood (CN)
District December 31, 2024 COMPLETED
Program 3.C: Remove floor-to-area ratio (FAR) restriction at Rancho Shopping Center and
Woodland Plaza. December 31, 2024 COMPLETED
Program 3.M: Modify parking requirements for emergency
shelters consistent with State
law. December 31, 2024 COMPLETED
Program 2.B: Establish an affordable housing in-lieu fee and commercial linkage fee. Commercial linkage fee. December 31, 2025 COMPLETED Program 1.D: Allow housing on certain Public and
Community Facilities District sites and
facilitate housing on religious institution properties. December 31, 2025 Program 6.G: Housing mobility
Allow housing on all
religious sites within the
City December 31, 2025
Program 1.F: Rezone Village Court parcel. January 31, 2024 COMPLETED Program 4.H: Provide additional density bonuses and
incentives for housing that accommodates special needs
groups. December 31, 2025
Program 4.I: Allow senior housing with extended care
facilities in multi-family and mixed-use zoning districts. December 31, 2025 Program 1.I: Incentivize Downtown lot consolidation. July 31, 2026 461
Agenda Item # 22.
Program 4.G: Assist seniors to maintain and rehabilitate their homes. July 31, 2026
Program 6.C: Target housing development in highest
resource areas. Follow-up Outreach September 31, 2026
Program 1.H: Facilitate housing on City-owned sites. Entitlement Review December 31, 2026 Program 3.N: Modify standards in the R3 zoning districts. December 31, 2026 COMPLETED Program 4.J: Facilitate alternate modes of transportation for residents.
Capital Improvement
Project for above head
pedestrian crossing
signals on San Antonio
Road near Downtown Los
Altos December 31, 2027
Program 5.F: Incentivize the creation of play areas for multifamily housing projects. December 31, 2027 Program 1.K: Participate in regional housing needs planning efforts. Ongoing
Program 1.L: General Plan amendments. Ongoing
Program 1.M: SB 9 implementation. Ongoing
Program 1.N: Facilitate and monitor pipeline housing
projects. Ongoing
Program 2.C: Assist in securing funding for affordable
housing projects. Ongoing
Program 2.D: Encourage and streamline Accessory Dwelling Units (ADUs). Ongoing
Program 2.E: Conduct annual ADU rental income surveys. Annual Survey Annually ONGOING Program 4.A: Support efforts to fund homeless services. Ongoing Program 4.B: Continue to participate in local and regional forums for homelessness,
supportive, and transitional housing. Ongoing
Program 5.A: Monitor condominium conversions. Ongoing
462
Agenda Item # 22.
Program 5.B: Continue to administer the City’s affordable housing programs. Ongoing
Program 5.C: Restrict commercial uses from displacing
residential neighborhoods. Ongoing
Program 5.D: Implement voluntary code inspection program. Ongoing Program 5.E: Help secure funding for housing rehabilitation and assistance programs. Ongoing
Program 6.A: Assist residents with housing discrimination and landlord-tenant
complaints. Ongoing
Program 6.B: Maintain and expand an inventory of
affordable housing funding sources.
Inform, Evaluate
Apply/Submit Ongoing
Program 6.F: Affirmatively market physically accessible units. Ongoing Program 7.A: Promote energy and water conservation and
greenhouse gas reduction
through education and awareness campaigns. Ongoing
Program 7.B: Monitor and implement thresholds and
statutory requirements of climate change legislation. Ongoing 463
Agenda Item # 22.
City of Los Altos 2024 Tentative Council Agenda Calendar All items and dates are tentative and subject to change unless a specific date has been noticed for a legally required Public Hearing.
Items may be added or removed from the shown date at any time and for any reason prior to the publication of the agenda.
DECEMBER 10, 2024
CONSENT:
• Amendment to Bear Electric Contract
• Amendment No. 4 for Sewer Rate Structure Analysis with NBS Government Finance Group SPECIAL ITEM:
• Swearing-In of Elected Councilmembers
• Selection of 2025 Mayor and Vice Mayor
Remaining 2025 City Council agenda calendar items are pending and will be published at a later date. 464
Agenda Item # 22.
1 North San Antonio Road
Los Altos, California 94022-3087
MEMORANDUM
DATE: November 12, 2024
TO: Los Altos City Council
FROM: City Attorney
SUBJECT: NEW CALIFORNIA ATTORNEY GENERAL OPINION REGARDING
BROWN ACT AND REMOTE MEETINGS
The purpose of this memorandum is to address a recent California Attorney General (AG) Opinion regarding meetings of legislative bodies (Council and Commissions) and remote participation. The AG Opinion 23-1002 is attached.
In July 2024, California AG Opinion 23-1002 concluded that remote participation in Brown Act meetings is a “reasonable accommodation” under the Americans with Disabilities Act (ADA). This opinion overrules the prior AG Opinion that held attending Council meetings was an “essential function” of being a councilmember. Note that the new opinion applies to members of legislative bodies (Council and Commissions). There is no mention of members of the public. In addition, it only applies to members of the legislative body with a “qualifying disability.” Holding:
The ADA generally requires a local agency’s legislative body to allow remote participation as a reasonable accommodation for a member with a qualifying disability that precludes their in-person attendance at meetings of the body.
The traditional Brown Act (posting the location and providing members of the public access) and AB 2449 (requiring “just cause” or “emergency” and limited to 20% of the meetings) still apply to the Council and Commissioners as set forth in the Brown Act and Norms. If the ADA remote appearance is requested by a member of a legislative body, then the AB 2449 remote appearance rules apply.
• Real-time connection: member of the legislative body must use two-way audio and video to connect in real time.
• Disclose others present: member of the legislative body Participants must identify any adults present with them and their relationship to the participant. 465
Agenda Item # 23.
• No action on agenda items: If the member of the legislative body’s connection is disrupted, no action can be taken on agenda items until the connection is restored. 466
Agenda Item # 23.
_______________
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
ROB BONTA
Attorney General
:
OPINION :
: No. 23-1002
of :
: July 24, 2024
ROB BONTA :
Attorney General :
:
CATHERINE BIDART :
Deputy Attorney General :
The HONORABLE ELENI KOUNALAKIS, LIEUTENANT GOVERNOR, has requested an opinion on a question relating to the federal Americans with Disabilities Act and the California open meetings law known as the Ralph M. Brown Act.
QUESTION PRESENTED AND CONCLUSION
Under the Ralph M. Brown Act, a local agency’s legislative body must generally conduct its meetings in person at locations open to the public. Does the Americans with Disabilities Act (ADA) nonetheless require that a local agency’s legislative body allow remote participation for a member with a qualifying disability that precludes their inperson attendance at meetings of the body? Yes. The ADA generally requires a local agency’s legislative body to allow remote participation as a reasonable accommodation for a member with a qualifying disability that precludes their in-person attendance at meetings of the body. This duty to reasonably accommodate is subject, however, to the Brown Act’s requirement that the remote participation must be conducted in a manner that simulates in-person attendance at meetings held in person at a location open to the public. To accomplish this, the Act requires that individual members who participate remotely (1) use two-way video and audio streaming in real time and (2) disclose the identity of any adults who are present 1 23-1002
467
Agenda Item # 23.
with the member at the remote location. These two requirements should be applied to members who attend meetings remotely due to a qualifying disability.
BACKGROUND
The question before us involves the ADA, a federal law, and the Brown Act, a state law.1 “Congress enacted the ADA in 1990 to remedy widespread discrimination against” people with disabilities.2 Congress enacted amendments to the ADA in 2008 that reasserted that purpose.3 In furtherance of its purpose, the ADA generally requires “reasonable accommodation” be made in employment, government services, and public accommodations for individuals with disabilities.4 In the employment context, for example, a reasonable accommodation could be a modified work schedule.5 Determining what constitutes a reasonable accommodation in any given scenario is a fact-intensive, individualized, case-by-case inquiry.6
1 This question is implicated in a pending case in the United States District Court for the Northern District of California, Fischer v. City of Berkeley, 3:23-cv-04280-TSH. It appears that no decision will be issued soon, if at all, in that case: the district court postponed the deadline for responding to the complaint multiple times in anticipation of possible settlement and referred the case to mediation, which has been completed. As of the date of publication of this opinion, the case docket reflects that the case settled in mediation, and a dismissal or status report is due September 20, 2024. 2 PGA Tour, Inc. v. Martin (2001) 532 U.S. 661, 674; see Pub.L. 101-336, § 2 (July 26, 1990), 104 Stat. 327; 42 U.S.C. § 12101.
3 Pub.L. 110-325, §§ 1-2 (Sept. 25, 2008), 122 Stat. 3553. 4 See, e.g., 42 U.S.C. §§ 12112(b)(5) (employment), 12182(b)(2)(A)(ii) (public accommodations); 28 C.F.R. § 35.130(b)(7)(i) (government services); see also Where Do We Go Berkeley v. Cal. Dept. of Transportation (9th Cir. 2022) 32 F.4th 852, 860 fn. 4 (stating that “reasonable accommodation” in Title I of ADA and “reasonable modification” in Title II of ADA “create identical standards and may be used interchangeably,” quoting Payan v. L.A. Cmty. Coll. Dist. (9th Cir. 2021) 11 F.4th 729, 738 fn. 4).
5 See generally 42 U.S.C. § 12111(9) (referring to job restructuring and modifying facilities, schedules, and equipment, as examples); 29 C.F.R. § 1630.2(o)(2)(ii) (same). 6 McGary v. City of Portland (9th Cir. 2004) 386 F.3d 1259, 1270; Crowder v. Kitagawa (9th Cir. 1996) 81 F.3d 1480, 1486; see also Zivkovic v. Southern Cal. Edison Co. (9th Cir. 2002) 302 F.3d 1080, 1089 (“[E]mployer is not obligated to provide” employee’s preferred accommodation but “need only provide some reasonable accommodation,” quoting E.E.O.C. v. Yellow Freight Sys. Inc. (7th Cir. 2001) 253 F.3d 943, 951); see, e.g., (continued…)
2 23-1002 468
Agenda Item # 23.
The Legislature enacted the Ralph M. Brown Act in 1953 “to ensure the public’s right to attend the meetings of public agencies.”7 In furtherance of that purpose, the Act generally requires legislative bodies of local agencies to hold their meetings in person at locations open to the public.8
As to the interplay of these laws, the ADA plainly preempts contrary state law.9 But state law can be relevant to determining what the ADA requires.10 That means that Pruett v. Ariz. (D. Ariz. 2009) 606 F.Supp.2d 1065, 1068, 1079 (rejecting plaintiff’s accommodation claim for chimpanzee as service animal because plaintiff had not shown it “more adequately meets her disability-related needs than several alternatives,” and had conceded “even this mild-mannered, affable Chimpanzee could become aggressive” and is likely to grow too big to be a service animal).
7 Freedom Newsp. Inc. v. Orange Co. Employees Ret. Sys. (1993) 6 Cal.4th 821, 825; Stats. 1953, ch. 1558, § 1 (initial enactment of statutory scheme); Stats. 1961, ch. 115, § 1 (naming statutory scheme “Ralph M. Brown Act”).
8 See, e.g., Gov. Code, § 54953, subd. (a) (“All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided in this chapter”); id., subd. (b)(3) (requiring teleconferencing locations be accessible to public); see also id., § 54950 (reciting that “agencies in this State exist to aid in the conduct of the people’s business” and proclaiming “[i]t is the intent of the law that their actions be taken openly and that their deliberations be conducted openly”). The requirement for agency meetings to be open to public scrutiny is also enshrined in the California Constitution. (Cal. Const., art. I, § 3, subd. (b)(1) (“meetings of public bodies . . . shall be open to public scrutiny”).)
9 Shavelson v. Bonta (N.D. Cal. 2022) 608 F.Supp.3d 919, 926 (stating that ADA “‘requires preemption of inconsistent state law’ when necessary to comply with its command—including the ADA’s command that state and local governments provide ‘reasonable modification[s]’ to their programs in certain circumstances,” quoting Mary Jo C. v. New York State & Local Retirement System (2d Cir. 2013) 707 F.3d 144, 163; Crowder v. Kitagawa, supra, 81 F.3d 1480, 1485 (“When a state’s policies, practices or procedures discriminate against [people with disabilities] in violation of the ADA, Department of Justice regulations require reasonable modifications in such policies, practices or procedures”).
10 See Cripe v. City of San Jose (9th Cir. 2001) 261 F.3d 877, 884 (“If a disabled person cannot perform a job’s ‘essential functions’ (even with a reasonable accommodation), then the ADA’s employment protections do not apply”); 42 U.S.C. §§ 12111 (“[C]onsideration shall be given to the employer’s judgment as to what functions of a job are essential”), 12131-12132 (prohibiting discrimination against individuals who meet (continued…)
3 23-1002 469
Agenda Item # 23.
the details of the Brown Act’s provisions regarding in-person meeting attendance at public locations are relevant to a reasonable accommodation analysis under the ADA.
For purposes of the question presented here, the relevant inquiry is whether the Brown Act considers in-person meeting attendance at public locations to be an “essential function” or “essential eligibility requirement.”
In 2001, we considered the same substantive question. We concluded that remote participation could not be a reasonable accommodation under the ADA.11 Among other considerations, we discerned from the Brown Act that in-person meeting attendance by a member of a Brown Act body at a public location was an “essential function” and “essential eligibility requirement.” At that time, the Brown Act did not allow a member to participate in a meeting remotely from a nonpublic location in any circumstance whatsoever.12 Although the Act did authorize members to participate in meetings by “teleconferencing” (by audio or visual means), that option was available only if the teleconferencing location itself was also open to the public.13 Since then, the Legislature has modified the Brown Act. Intervening amendments allow remote participation in meetings by members from nonpublic locations in certain circumstances.14 As we will explain, those amendments reveal that remote participation no longer falls outside the realm of what can be a “reasonable accommodation” for purposes of the ADA.
public entity’s “essential eligibility requirements”); see, e.g., Peden v. City of Detroit (2004) 470 Mich. 195, 209 (review of state law governing police officers to identify “essential functions” enabling such officers to perform duties). 11 84 Ops.Cal.Atty.Gen. 181, 185-188 (2001).
12 See ibid.
13 See Stats. 1998, ch. 260, § 1 (providing that “each teleconference location shall be accessible to the public,” “at least a quorum of the members of the legislative body shall participate from locations within” the agency’s jurisdiction, and that “agenda shall provide an opportunity for members of the public to address the legislative body directly . . . at each teleconference location” (Gov. Code, § 54953, subd. (b)(3)), and defining “teleconference” to mean a meeting of members “in different locations, connected by electronic means, through either audio or video, or both” (id., § 54953, subd. (b)(4)).) 14 See, e.g., Stats. 2023, ch. 534, § 1 (Gov. Code, § 54953, subds. (e), (f), (j)(4)); Stats. 2022, ch. 285, § 1 (same); Stats. 2021, ch. 165, § 3 (Gov. Code, § 54953, subd. (e)). 4 23-1002 470
Agenda Item # 23.
ANALYSIS
Reasonable Accommodation for a “Qualified Individual” with a Disability Under the ADA
Under the ADA, a person with a disability is someone who has “a physical or mental impairment that substantially limits one or more” of the person’s “major life activities.”15 Before a requirement for a reasonable accommodation applies, it must be established that the person is a “qualified individual” with a disability. The meaning of a “qualified individual,” and the factors informing whether an accommodation for such an individual is “reasonable,” turn on which portion of the ADA applies.16 The ADA is divided into titles, and the first two are implicated here.17 Title I applies to employment by “covered entities” (including local governments), which are defined in part by whether the entity employs more than a threshold number of employees in a specified period.18 Title II applies to participation in state and local government services, programs, and activities.19
Whether serving as a member on a board of a local agency governed by the Brown Act constitutes employment under Title I, or instead participation in a program or activity under Title II, can depend on the particular board, commission, or body.20 Thousands of 15 42 U.S.C. § 12102(1)(A); see 29 C.F.R. § 1630.2(i) (defining major life activities to include various tasks, such as working and “operation of a major bodily function”). 16 See, e.g., 42 U.S.C. §§ 12111(8) (defining “qualified individual” under Title I), 12131(2) (defining “qualified individual with a disability” under Title II). 17 See Pub.L. 101-336 (July 26, 1990), 104 Stat. 327 (enacting five titles). 18 42 U.S.C. § 12111(2) (“covered entity” includes “employer”); id., § (5)(A) (defining “‘employer’” as one “engaged in an industry affecting commerce” with “15 or more employees” for “20 or more calendar weeks in the current or preceding calendar year,” and includes “any agent of such” employer); see Zimmerman v. Oregon Dept. of Justice (9th Cir. 1999) 170 F.3d 1169, 1177 (“Congress consciously and expressly chose to include the employment practices of state and local governments in Title I”). 19 42. U.S.C. §§ 12132, 12131(1)(A); see, e.g., Willits v. City of Los Angeles (C.D. Cal. 2013) 925 F.Supp.2d 1089, 1093 (stating that City of Los Angeles is covered by Title II). 20 Compare Zimmerman v. Oregon Dept. of Justice, supra, 170 F.3d at pp. 1174, 1176, 1178-1179 (Title II applies to public agency “outputs,” not “inputs” like employment which is covered by Title I) with Where Do We Go Berkeley v. California Dept. of Transportation, supra, 32 F.4th at p. 861 (Title II “bring[s] within its scope anything a public entity does,” and “whether it is a normal function of a governmental entity,” quoting Barden v. City of Sacramento (9th Cir. 2002) 292 F.3d 1073, 1076); see, e.g., (continued…)
5 23-1002 471
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bodies governed by the Brown Act exist.21 Given the myriad ways in which these bodies may be formed and operate, it would appear infeasible and imprudent to make a universal pronouncement about whether board membership falls under Title I versus Title II. But we need not embark on such an endeavor; in either case, our answer to the question presented here is the same. To explain why, we must return to the concepts of a “qualified individual” and a “reasonable accommodation.” Those terms have multiple meanings under the ADA, but we focus only on those that are relevant to our purposes.22 Under Title I, a qualified individual with a disability is someone who “can perform the essential functions” of the job in question—that is, the “fundamental job duties of the employment position”—with or without reasonable accommodation.23 A job function may be essential, for example, “because the reason the position exists is to perform that function.”24 Factors that help to identify essential functions may include (among others) the employer’s judgment on what functions are essential, the employer’s written job descriptions, how much time is spent performing the function, consequences of not requiring the function to be performed, work by past employees in the job, and work of current employees in similar jobs.25
Mirka v. Langley, City of (9th Cir. 2001) 16 Fed.Appx. 665, 666 (rejecting city hall volunteer’s Title II claim because her services were “‘input’ rather than ‘output’ functions”); Holmes v. City of Aurora (N.D. Ill., Jan. 18, 1995, No. 93 C 0835) 1995 WL 21606, at *3-4 (stating that city’s pension board of mayoral appointees, current city employees, and former city employee would be covered by Title I if board “is considered to be plaintiff’s employer or an agent of the City,” but “should be considered a ‘public entity’” covered by Title II because of nature and extent of its relationship with city); see also fns. 60-73, post, and corresponding text in the body discussing members’ reasonable accommodation claims all brought under Title II.
21 See, e.g., Letter from David Chiu, City Attorney for the City and County of San Francisco to Deputy Attorney General Catherine Bidart, February 9, 2024, p. 2 (stating that San Francisco has “well over 100 Brown Act bodies”); see also Gov. Code, § 54952 (broadly defining “legislative body”).
22 See, e.g., 42 U.S.C. §§ 12102(1)(C) (defining “disability” to include individual “regarded” as having qualifying impairment), 12201(h) (no reasonable accommodation is required for such individual).
23 42 U.S.C. § 12111(8) (defining “qualified individual” with disability); 29 C.F.R. § 1630.2(n)(1) (defining “essential functions” to include “fundamental job duties of the employment position” and to exclude “marginal functions”). 24 29 C.F.R. § 1630.2(n)(2) (listing examples of reasons why function could be essential). 25 29 C.F.R. § 1630.2(n)(3).
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Agenda Item # 23.
A covered employer is responsible for providing a reasonable accommodation to a qualified individual with a disability unless it would cause the employer “undue hardship.”26 But no failure to accommodate occurs if an otherwise qualified individual cannot, even with a reasonable accommodation, meet the employer’s “qualification standards” that are both “job-related and consistent with business necessity.”27 The distinction between “qualification standards” and “essential functions” is that the latter are basic duties while the former are “personal and professional attributes,” which may include “skill, experience, education, physical, medical, safety and other requirements.”28 Under Title II, a qualified individual with a disability is an individual who “meets the essential eligibility requirements” to “participat[e] in programs or activities provided by a public entity,” with or without reasonable modification.29 An accommodation to a qualified individual is not reasonable under Title II if it would fundamentally alter the government program or activity or cause an undue financial or administrative burden.30 An accommodation would fundamentally alter a program if it would compromise the “essential nature” of the program.31
For its part, the United States Department of Justice has issued informal guidance that expresses its view on the availability of remote participation by members at city council meetings as a reasonable accommodation under the ADA in appropriate circumstances.32 The guidance states that:
26 42 U.S.C. § 12112(b)(5)(A); see 42 U.S.C. § 12111(10) (defining “undue hardship” as “action requiring significant difficulty or expense” in light of certain factors including cost of the accommodation and entity’s resources).
27 42 U.S.C. § 12113(a).
28 Bates v. United Parcel Service, Inc. (9th Cir. 2007) 511 F.3d 974, 989-990; 29 C.F.R. § 1630.2(n)(1) (essential functions) & id. (q) (qualification standards). 29 42 U.S.C. § 12131(2).
30 Tennessee v. Lane (2004) 541 U.S. 509, 532; 28 C.F.R. §§ 35.130(b)(7)(i),
35.150(a)(3).
31 Alexander v. Choate (1985) 469 U.S. 287, 300. For example, “moving a beach volleyball program into a gymnasium, so a player who uses a wheelchair can participate on a flat surface without sand, would ‘fundamentally alter’ the nature of the game.” (U.S. Dept. of Justice Civil Rights Division, “ADA Update: A Primer for State and Local Governments,” originally issued Jun. 1, 2015, and last updated Feb. 28, 2020, available at https://www.ada.gov/resources/title-ii-primer/ (as of July 24, 2024), (hereafter, “US DOJ ADA Primer”).)
32 See 42 U.S.C. § 12206; see also id., §§ 12134 (“Attorney General shall promulgate (continued…)
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[I]f an elected city council member has a disability that prevents her from attending council meetings in person, delivering papers to her home and allowing her to participate by telephone or videoconferencing would enable her to carry out her duties.[33]
Our independent analysis below reaches a similar conclusion with respect to local officials subject to the Brown Act. We first explain our conclusion from 2001. 2001 Opinion
Our 2001 opinion concluded that remote participation in a meeting subject to the Brown Act could not be a reasonable accommodation under either Title I or Title II.34 As to Title I, the opinion determined that the Brown Act’s requirement for in-person attendance at meetings at locations open to the public was an essential function of holding office on a local agency board.35 It observed that “[p]ublic attendance facilitates the people’s right to participate in all phases of local government decision-making and serves to prevent misuse of the democratic process by secret legislative action at the local government level.”36 The opinion also determined that, under the Brown Act, “the ability to attend scheduled meetings that are accessible to the public is both ‘job-related and consistent with business necessity,’” and “related to the requisite qualifications” to hold office at the local level.37 It explained:
[N]othing other than the presence of such person [that is, a member] at a publicly accessible site would serve the state’s legitimate interest in public attendance and participation in the decision-making process. While teleconferencing may consist of electronic connection through either audio, video, or both (Gov. Code, § 54953, subd. (b)(4)), no camera focused upon a member in a remote location closed to the public may detect the presence of other influences, including persons, within that location, and thus cannot regulations in an accessible format that implement this part [Title II]”); Fortyune v. City of Lomita (9th Cir. 2014) 766 F.3d 1098, 1104 (giving manual comprising “DOJ’s interpretation of its ADA implementing regulations” controlling weight unless plainly erroneous or inconsistent).
33 US DOJ ADA Primer, ante fn. 31.
34 84 Ops.Cal.Atty.Gen., supra, pp. 185-188.
35 Id., p. 185.
36 Ibid.
37 84 Ops.Cal.Atty.Gen., supra, pp. 185-186.
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with similar effectiveness serve the public’s interest in “curb[ing] misuse of the democratic process.”[38]
The opinion further determined that even if Title II instead applied, remote participation could not be a reasonable accommodation, for the same reasons set forth in the Title I analysis. It concluded that “the ability to attend a meeting of the board at a location accessible to members of the public, including individuals with disabilities, would constitute an essential eligibility requirement.”39 As discussed earlier, Title II does not require that a reasonable accommodation be made for an individual who does not meet an “essential eligibility requirement.”40 The 2001 opinion resolved the Title II analysis based on that factor alone.41
Subsequent Amendments to the Brown Act Illustrate That Remote Participation Can Be a Reasonable Accommodation
Subsequent changes to the Brown Act lead us to a different conclusion from the one described in the 2001 opinion. As the 2001 opinion observed, the Brown Act at that time authorized members to participate in meetings by audio or video “teleconferencing” only if, among other requirements, the teleconferencing location was open to the public.42 But the Legislature has since amended the Brown Act multiple times to authorize remote participation by members from nonpublic locations in certain circumstances, using twoway, real-time video and audio streaming—technology which was not nearly as developed and widely used in 2001 as it is today.43 The across-the-board prohibition on remote participation by members in nonpublic locations has been removed from the Act.
In 2021, during the COVID-19 pandemic, the Legislature amended the Brown Act to allow remote participation from nonpublic locations by all members (regardless of any disability), using two-way, real-time video and audio streaming.44 The authorization 38 Id., p. 186, quoting Cohan v. City of Thousand Oaks (1994) 30 Cal.App.4th 547, 555. 39 Id., p. 188.
40 See ante fn. 29 and corresponding text in the body.
41 84 Ops.Cal.Atty.Gen., supra, p. 188. As discussed above, if the essential eligibility requirements are met, a particular accommodation would still not be owed if the accommodation would fundamentally alter the nature of the government activity at issue or would be an undue burden. (See ante fns. 30-31 and corresponding text in the body.) 42 Gov. Code, § 54953, subd. (b), as amended by Stats. 1998, ch. 260, § 1; see ante fn. 13. 43 Stats. 2021, ch. 165, § 3, eff. Sept. 16, 2021; Stats. 2022, ch. 285, § 1, eff. Jan. 1, 2023; Stats. 2023, ch. 534, § 1, eff. Jan. 1, 2024.
44 Stats. 2021, ch. 165, § 3, eff. Sept. 16, 2021 (adding Gov. Code, § 54953, subd. (e) to (continued…)
9 23-1002 475
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was predicated on a declared state of emergency and the presence of health- or safetyrelated circumstances.45 In 2022, as those circumstances began to wane, California started planning for COVID-19 to become an endemic disease. The Governor announced that the declared state of emergency—one of the prerequisites for members to meet remotely under the 2021 amendment—would end in February 2023, setting the stage for in-person meetings to resume.46
Against this backdrop, the Legislature amended the Act in 2022 to temporarily authorize (until 2024) an individual member to occasionally participate from a nonpublic location in certain exceptional circumstances. That authorization was subject to various requirements, including two-way streaming and a requirement that a quorum of members participate from a single physical location open to the public.47 In 2023, the Legislature extended that limited authorization until 2026.48 Subject to various requirements, the allow remote meetings with conditions, such as allowing public to directly address members, and prohibiting action on agenda when disruption prevents broadcast or comment). This exception was originally set to expire in 2024 (id., adding Gov. Code, § 54953, subd. (f); later the exception was amended, including an amendment for the exception to last indefinitely (Stats. 2023, ch. 534, § 2, eff. Jan. 1, 2024, operative Jan. 1, 2026).
45 Stats. 2021, ch. 165, § 3, eff. Sept. 16, 2021 (amending Gov. Code, § 54953, subd. (e) to allow remote meetings during declared state of emergency when social distancing is officially imposed or recommended, or if meeting’s purpose is to determine whether inperson meeting would imminently risk attendee health or safety, with periodic related findings).
46 See Press Release, “Governor Newsom to End the COVID-19 State of Emergency,” Oct. 17, 2022 (announcing declared state of emergency from COVID-19 to end February 28, 2023), available at https://www.gov.ca.gov/2022/10/17/governor-newsom-to-end-thecovid-19-state-of-emergency/, as of July 24, 2024; Press Release, “Governor Newsom Marks End of California’s COVID-19 State of Emergency,” Feb. 28, 2023, available at https://www.gov.ca.gov/2023/02/28/governor-newsom-marks-end-of-californias-covid19-state-of-emergency/, as of July 24, 2024; see also Associated Press, “California Changes Its COVID Strategy and Announces a Plan to Live with the Virus,” updated Feb. 18, 2022, available at https://www.npr.org/2022/02/18/1081655623/californiaadopts-nations-first-endemic-virus-policy, as of July 24, 2024 (covering announced preparations for endemic stage).
47 Stats. 2022, ch. 285, § 1, eff. Jan. 1, 2023 (adding Gov. Code, § 54953, subds. (f), (j), (k)).
48 Stats. 2023, ch. 534, § 1, eff. Jan. 1, 2024 (amending Gov. Code, § 54953, subd. (k)).
A bill is pending to amend this legislation; as of the date of this opinion, the bill would (continued…)
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Agenda Item # 23.
new authorization allows a member to participate in a meeting remotely for a limited number of times, if there is either “just cause” or “emergency circumstances.”49 The first of those exceptions—the one for “just cause”—explicitly refers to ADA accommodations. Specifically, “just cause” can be established based on a need related to a disability that has not been “otherwise accommodated” under the ADA.50 In other words, the exception authorizes a member to participate at meetings remotely because of a need related to a disability, but excludes from its ambit a disability already accommodated under the ADA. The most logical explanation for that exclusion is that the Legislature presupposed that a member may already participate remotely for an unlimited number of sessions as an ADA accommodation.51 Returning to our chronology, in 2023 the Legislature extended indefinitely the authorization for all members to meet remotely from nonpublic locations during a declared state of emergency as specified.52 We refer to these as “pandemic-like” provide a more detailed specification for calculating the number of times a member may participate remotely. (Assem. Bill No. 2302 (2023-2024 Reg. Sess.), § 1, as introduced Feb. 12, 2024.)
49 Gov. Code, § 54953, subd. (f)(2).
50 “[J]ust cause” includes “[a] need related to a physical or mental disability . . . not otherwise accommodated by subdivision (g),” and subdivision (g) refers to the ADA. (Gov. Code, § 54953, subd. (j)(2)(C); see id., subd. (g) (reciting requirement for legislative body to have procedure for swiftly resolving requests for ADA reasonable accommodations).) A disability that has not been “otherwise accommodated” could be, for example, in the midst of an interactive process to identify a reasonable accommodation. (See Anthony v. Trax Internat. Corp. (9th Cir. 2020) 955 F.3d 1123, 1134 (recounting employer obligation to engage in interactive process with employees to find reasonable accommodation).)
51 The exception allowing remote participation for “just cause” may also be met by caregiving needs, a contagious illness, or official travel. (Gov. Code, § 54953, subd. (j)(2)(A), (B) & (D).) The other exception for an individual member to participate remotely—in “emergency circumstances”—defines such circumstances as “a physical or family medical emergency that prevents a member from attending in person.” (Gov.
Code, § 54953, subd. (j)(1).)
52 Stats. 2023, ch. 534, § 2, eff. Jan. 1, 2024 (amending Government Code section 54953 subdivisions (e) and (j), operative January 1, 2026, to amend and preserve authorization with no sunset date for entire body to meet remotely during declared state of emergency, if legislative body makes related findings, as specified). 11 23-1002 477
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circumstances.53 In such circumstances, if a majority of members makes certain healthor safety-related findings during a declared state of emergency, all members may participate remotely for an unlimited number of meetings at nonpublic locations.54 So even after the limited authorization for individual members to participate remotely for “just cause” or in “emergency circumstances” expires in 2026, the Act will continue to allow remote participation by all members in “pandemic-like” circumstances.
These recent changes to the Brown Act point to a conclusion that is different from the one we reached in 2001. Perhaps most telling is the new “just cause” exception, allowing remote participation for a need related to a disability—but not a disability that has been “otherwise accommodated” under the ADA.55 While this exclusion is currently set to expire in 2026, it nevertheless reveals a legislative belief upon its enactment that remote participation was already available for a qualifying individual as an accommodation under the ADA.56 We therefore conclude that, in light of the recent legislative amendments, in-person attendance is no longer an “essential job function” nor “an essential eligibility requirement” under Title I or Title II, as the Legislature has determined that remote participation is compatible with membership on a Brown Act body.
Conditions on Remote Participation
Although the Brown Act now allows remote participation in certain circumstances, in-person attendance at physical locations open to the public remains the default under the Act. The Act therefore places multiple conditions on remote participation. One requires virtual access by the member so the public can address members directly by video and audio streaming (which again, was not nearly as developed and used in 2001 as it is today); if such access is disrupted, the body (through its members) cannot take action on any agenda item until the streaming connection is 53 We do not foreclose the possibility that a declared state of emergency unrelated to a pandemic could entail circumstances and related findings that would satisfy the exception allowing all members to participate remotely. (See ibid.) 54 Gov. Code, § 54953, subd. (e); Stats. 2023, ch. 534, § 2 (amending Gov. Code, § 54953, subd. (e), operative Jan. 1, 2026).
55 See ante fn. 50.
56 Remote participation on an individual case-by-case basis as a reasonable accommodation under the ADA is also consistent as a policy matter with the Brown Act provision allowing all members to participate remotely in pandemic-like circumstances.
In such circumstances, the Act makes remote participation available for the safety of everyone. Safety concerns also support allowing an individual member to participate remotely if their particular disability puts them at heightened risk of serious illness or death due to COVID-19 (or other maladies or conditions). 12 23-1002 478
Agenda Item # 23.
restored.57 Another condition requires the member who is participating remotely in a non-public location to disclose the identity of any adults who are present in the room with the member and the nature of their relationship.58
We do not purport to prescribe here all of the conditions that could or should be placed on remote meeting attendance as part of a reasonable accommodation. Nor do we attempt to prescribe all of the ways in which technology can be employed to simulate inperson meetings to best promote the Act’s purpose of public participation—which will likely evolve over time. But mindful of the Act’s strong preference for in-person meetings, we conclude that remote participation as a reasonable accommodation must be done in a manner that simulates in-person attendance, as the Act requires where it allows remote participation for other reasons. This would include the Act’s requirements that remote participants (1) use two-way, real-time video and audio streaming and (2) disclose the presence of other adults at the remote location.59
Authority from Other Jurisdictions Supports Our Conclusion Our answer to the question presented generally accords with cases in other jurisdictions that have considered whether remote participation could be a reasonable accommodation despite state open-meeting laws that generally require in-person attendance. We are aware of three such cases, all decided by district courts. In the first two cases, the courts upheld remote participation as a reasonable accommodation. In the third case, the court found a lack of factual support for remote participation as a reasonable accommodation—but did not rule out the possibility of remote participation in other, more appropriate factual circumstances.
In Silver v. City of Alexandria, a federal district court in Louisiana granted a 98- year old city council member a preliminary injunction allowing him to participate remotely in city council meetings as a reasonable accommodation under Title II of the ADA because his cardiovascular-related disability and age made him “particularly 57 See Gov. Code, §§ 54953, subds. (e)(2)(A) (public access), (e)(2)(B) (disruption), (f)(1)(D) (same), subds. (f)(1)(A) (video and audio) & (f)(2)(C) (same). 58 Gov. Code, § 54953, subd. (f)(2)(B); cf. 84 Ops.Cal.Atty.Gen., supra, p. 186. 59 Many commenters pointed to advances in technology—and our collective experience with that technology during the pandemic—as a basis for concluding that remote participation is a reasonable accommodation. While we acknowledge that technology has advanced in this area, we stress that our analysis is not driven by those advances. Our analysis instead turns on legal changes to the Brown Act, which reveal that a member may, in appropriate circumstances, attend a meeting remotely from a nonpublic location as a reasonable accommodation under the ADA.
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susceptible” to succumbing to COVID-19.
60 The court observed that the state’s open
meetings law for many years contained no exception allowing remote participation, but that a recent amendment allowed such participation (on voting and debating) during public health emergencies such as the pandemic.61 The court also noted the prevalence of video-streaming technology, which was used for the hearing on the injunction.62 While “[i]t is true that virtual participation by an individual council member is not exactly the same as participation by physical presence,” the court ultimately determined there would be “no substantial negative impact on the operation of city government by the granting of injunctive relief,” and that the accommodation “would not alter the nature” of the meetings.63
Next, in Palmer v. Michigan, a federal district court in Michigan granted a preliminary injunction allowing a board member of a multi-county mental health agency to participate in meetings remotely as a Title II ADA reasonable accommodation.64 An exception to the Michigan open meetings law had allowed remote participation for medical conditions. But it expired at the end of 2021, after which the health agency denied plaintiff’s request to continue to participate remotely.65 While the agency mandated social-distancing and mask-wearing protective measures, plaintiff’s cerebral palsy made him at high risk of illness if exposed to COVID-19, and his disability interfered with his ability to communicate while wearing a mask.66 The court observed that the open meetings law continued to authorize remote participation for a member who was absent for military duty.67 The court therefore rejected the agency’s claim that any decision taken while plaintiff participated remotely could be rendered void for noncompliance with the law because “military members can already participate remotely.”68 The court concluded that the plaintiff’s remote participation would cause little or no 60 Silver v. City of Alexandria (W.D. La. 2020) 470 F.Supp.3d 616, 618, 620, 625. 61 Id., at pp. 623-624.
62 Id., at p. 623.
63 Id., at pp. 623-624.
64 Palmer v. Michigan (W.D. Mich., Mar. 29, 2022, No. 1:22-CV-90) 2022 WL 908966, at **1, 7 (hereafter, Palmer). This case mentions and reaches the same conclusion of opinions by the Attorney General of Michigan. (See id. at **2, 4, citing Atty. Gen. Op. 7, Atty. Gen. Op. 15-16, ECF No. 11-1.)
65 Palmer, supra, at **1-2.
66 Ibid.
67 Palmer, supra, at *6.
68 Ibid.
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harm, and that it “would not impose an undue burden” on the health agency nor “fundamentally alter its programs or services.”69
The last case is Chew v. Legislature of Idaho.
70 Although the Idaho district court
in that case denied a request for a temporary restraining order sought by members with disabilities seeking a Title II accommodation to participate remotely in sessions of the Idaho Legislature, that denial casts no doubt on our conclusion.71 The case instead illustrates that not every disability is one that necessitates remote participation. In rejecting the request, the court drew upon Ninth Circuit cases prescribing an individualized, case-by-case inquiry to determine the reasonableness of a requested accommodation.72 The court found nothing to rule out other types of accommodations such as masks, plexiglass barriers, and choice of seat.73 For the reasons discussed above, we conclude that the ADA requires a local agency’s legislative body to allow remote participation from a nonpublic location as a reasonable accommodation for a qualifying individual whose disability precludes their inperson attendance, subject to the requirements of the ADA.74 Under the Brown Act, the 69 Ibid.
70 Chew v. Legislature of Idaho (D. Idaho 2021) 512 F.Supp.3d 1124 (hereafter, Chew). 71 See id., at pp. 1126-1128; see also id., at p. 1127 (explaining that temporary restraining order, like preliminary injunction, is to preserve status quo, but typically lasts 28 days while preliminary injunction may extend until lawsuit ends). 72 Id., at p. 1129, citing Wong v. Regents of Univ. of Cal. (9th Cir. 1999) 192 F.3d 807, 818; Crowder v. Kitagawa, supra, 81 F.3d at p. 1486.
73 Chew, supra, at pp. 1130-1131.
74 We acknowledge that the ADA excuses a covered entity from providing an otherwise required accommodation to an employee where it “can demonstrate that the accommodation would impose an undue hardship” on its operations, defined as “an action requiring significant difficulty or expense” when considered in light of certain factors including cost of the accommodation and the entity’s resources. (See 42 U.S.C. §§ 12112(b)(5)(A) & 12111 (defining “undue hardship”); see also 28 C.F.R. § 35.164 (public entity not required to make modification for accessible communication “that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens”). While the accommodation at issue here—remote attendance by a member of a local agency legislative body—does not appear to be the type of accommodation that would typically present such financial or technical burdens, we cannot conclude that this would never be the case. We do not address these hypothetical concerns here. Such concerns, if they were to arise, would be determined based on the particular facts and circumstances, under controlling provisions and interpretations of the ADA.
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remote participation must be conducted in a manner that simulates in-person attendance at meetings held in-person and open to the public. To accomplish this, the Act provides conditions on how an individual member may participate remotely—namely, by the member using two-way live video and audio streaming and disclosing the identity of any adults who are present in the room with them at the remote location. 16 23-1002 482
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