PLANNING & DEVELOPMENT SERVICES
250 Hamilton Avenue, 5th Floor
Palo Alto, CA 94301
(650) 329-2441
CITY OF PALO ALTO | 250 HAMILTON AVENUE, PALO ALTO, CA. 94301 | 650-329-2441
DATE: May 8, 2025
TO: Planning & Development Services Staff and Interested Community Members FROM: Jonathan Lait, Director
SUBJECT: Director’s Interpretation Regarding Relocation of Noncomplying Residential Gross Floor Area Under PAMC Chapter 18.70
Authority
Palo Alto Municipal Code (PAMC) Section 18.01.025 authorizes the Director of Planning and Development Services to interpret provisions of Titles 16, 18, and 21 of the Palo Alto Municipal Code.
When warranted, formal written interpretations may be issued and posted on the City’s website. Such decisions become effective fourteen days after posting unless appealed in accordance with PAMC Section 18.77.070.
Director’s Interpretation
Where an existing residential building exceeds the allowable gross floor area (GFA) PAMC Chapter 18.70 prohibits the relocation of non-complying floor area from one location to another.
Applicable Code Section(s)
• 18.70.080: Noncomplying Facility – Enlargement
• 18.70.090: Noncomplying facility – Maintenance and repair • 18.70.100: Noncomplying facility – Replacement
Discussion
Palo Alto’s zoning code limits the allowable GFA on residential properties to regulate bulk, scale, and neighborhood compatibility. Some structures that comply with development standards at the time they are constructed may become noncomplying as a result of a change in the applicable regulations (e.g. rezoning or annexation). PAMC Chapter 18.70 sets forth the rules under which such noncomplying facilities may be maintained. Relocation of noncomplying GFA may be independently prohibited by PAMC Sections 18.70.080 and 18.70.100; in addition, relocated GFA does not fall within the scope of permitted alterations under PAMC Section 18.70.090.
PAMC Section 18.70.080: Noncomplying Facility – Enlargement Section 18.70.080, subd. (a), expressly prohibits any improvement to a noncomplying facility that increases the noncompliance. If further clarifies that it does not prohibit improvement of a facility, Docusign Envelope ID: 3A798A6F-1F4E-4D19-8275-72D1C645C1F0
otherwise permitted by Title 18 (the zoning code), which does not affect the particular degree or manner of the noncompliance.
Taken holistically, staff interprets this section to prohibit an improvement that does affect the particular degree or manner of the noncompliance. For example, if a structure is noncomplying because a parapet at the rear of the property exceeds the maximum height by five feet, it would not be permitted to demolish the parapet and reconstruct it identically at the front of the property instead. Even if the new parapet would not increase the amount by which the structure exceeds the maximum height, the change in location would affect the particular manner of noncompliance. Similarly, the relocation of non-complying floor area would violate this prohibition.
Section 18.70.080 is intended to allow the improvement of a noncomplying facility in a manner unrelated to the particular degree or manner of noncompliance. For example, it would allow a structure that is non-complying for height to receive additional GFA provided the new area otherwise complied with the zoning code (e.g. setbacks, lot coverage and floor area limitations, height).
PAMC Section 18.70.090: Noncomplying Facility – Maintenance and repair Section 18.70.090 allows for the maintenance and repair of a noncomplying facility. It allows for incidental alterations that do not increase the degree of noncompliance. It also allows for structural alterations that do not increase the degree of noncompliance, so long as they are “necessary to comply with the requirements of law or to accommodate a conforming use.” Incidental alterations are defined in PAMC Section 18.04.030 to mean alterations to the interior of a building that do not increase its structural strength; alterations to mechanical, electrical and plumbing systems; and changes to fenestrations that do not increase the building’s structural strength. Structural alterations are defined as any other alteration.
Staff interprets this section to allow structural alterations only when necessary to comply with the requirements of law (e.g. building code) or when necessary to accommodate a change to a conforming use (e.g. to provide sufficient egress for a residential use). Absent a change to a conforming use, structural alterations would only be permitted to comply with requirements of law. An alternative interpretation would leave the phrase “necessary to accommodate a conforming use” without any meaning and collapse the distinction between the allowances for incidental and structural alterations in Section 18.70.090.
Section 18.70.090 is intended to allow incidental maintenance and repair of noncomplying facilities in a manner that does not increase noncompliance. It is less permissive regarding structural alterations. The relocation of noncomplying floor area will typically involve structural alterations; in the absence of a change to a conforming use, such alterations are only permitted to the extent necessary to comply with law.
PAMC Section 18.70.100: Noncomplying Facility – Replacement Section 18.70.100 governs the reconstruction of a noncomplying facility that is damaged or destroyed by any means other than ordinary wear and tear. This includes willful damage and destruction as part of a Docusign Envelope ID: 3A798A6F-1F4E-4D19-8275-72D1C645C1F0
construction project as well as non-willful means.1 The general rule expressed this section is that a damaged or destroyed noncomplying facility may only be reconstructed as a complying facility unless an enumerated exception applies.
Proposed relocation of noncomplying GFA falls under subdivision (b), which states that a portion of a facility that contributes to the noncompliance, if damaged or destroyed, may only be replaced or reconstructed in a manner that does not reinstate the noncompliance or the degree of noncompliance.2 Staff interprets the term “replacement” to include replacing demolished GFA in the same or a different location. This section therefore prohibits the removal of floor area that was willfully destroyed and contributed to a noncomplying GFA condition, as well as its reinstatement – whether in whole or in part – at any location within the structure. For example, a project that removes existing GFA and proposes to reconstruct that floor area in a location that requires demolition and reconstruction of exterior building walls to accommodate the removed GFA would involve reconstruction that constitutes a reinstatement of the noncompliance.
The interpretations provided herein are the only ones that give coherent and internally consistent meaning to each of the code sections discussed. In particular, if either section 18.70.080(a) or section
18.70.090(c) is interpreted to allow the relocation of noncomplying floor area, it is unclear what meaning section 18.70.100(b) could have. These interpretations are also consistent with prior direction from the City Council regarding interpretation of similar provisions in PAMC section 18.18.120; in 2015, the City Council directed that the noncomplying facility provision in that section should not be interpreted to allow the relocation of noncomplying floor area in the CD district.
_____________________________
Jonathan Lait, Director
Planning and Development Services
Attachment: Applicable Municipal Code Sections
Posted on Website: May 8, 2025
Appeal Deadline: May 22, 2025
1 An alternative interpretation that applies section 18.70.100 only to non -willful damage or destruction would render subdivision (d) unnecessary, as that section provides a different rule for noncomplying facilities that are damaged and destroyed by non-willful means.
2 Subdivision (b) also provides an exception where the cost to replace or reconstruct the facility in compliance would be at least double the cost to replace or reconstruct the facility to its previous configuration; this analysis assumes that the exception is not triggered.
Docusign Envelope ID: 3A798A6F-1F4E-4D19-8275-72D1C645C1F0
Attachment: Applicable Municipal Code Sections
18.70.080 Noncomplying facility - Enlargement.
(a) Except as specifically permitted by subsections (b) and (c) hereof or by Section 18.12.050(a), no enlargement, expansion, or other addition or improvement to a noncomplying facility shall be permitted which increases the noncompliance. This section shall not be construed to prohibit enlargement or improvement of a facility, otherwise permitted by this title, which does not affect the particular degree of or manner in which the facility does not comply with one or more provisions of this title. (b) Except in areas designated as special study areas, the director of planning and development services may permit minor additions of floor area to noncomplying facilities in the commercial CC, CS and CN zones and in the industrial MOR, ROLM, RP and GM districts, subject to applicable site development regulations, for purposes of on-site employee amenities, resource conservation, or code compliance, upon the determination that such minor additions will not, of themselves, generate substantial additional employment. Such additions may include, but not be limited to, the following:
(1) Area designed and used solely for providing on-site services to employees of the facility, such as recreational facilities, credit unions, cafeterias and day care facilities; (2) Area designated for resource conservation, such as trash compactors, recycling and thermal storage facilities; and
(3) Area designed and required for hazardous materials storage facilities, handicapped access, and seismic upgrades.
(Ord. 5494 § 3, 2020: Ord. 5381 § 7, 2016: Ord. 5373 § 22 (part), 2016: Ord. 3890 § 20, 1989: Ord. 3683 § 18, 1986: Ord. 3048 (part), 1978)
18.70.090 Noncomplying facility - Maintenance and repair. (a) Normal and routine maintenance of a noncomplying facility shall be permitted for the purpose of preserving its existing condition, retarding or eliminating wear and tear or physical depreciation, or complying with the requirements of law.
(b) Incidental alterations to a noncomplying facility shall be permitted, provided such alterations do not increase the degree of noncompliance, or otherwise increase the discrepancy between existing conditions and the requirements of this title.
(c) Structural alterations to a noncomplying facility shall be permitted when necessary to comply with the requirements of law, or to accommodate a conforming use when such alterations do not increase the degree of noncompliance, or otherwise increase the discrepancy between existing conditions and requirements of this title.
(Ord. 5381 § 7, 2016: Ord. 3683 § 17, 1986: Ord. 3048 (part), 1978)
18.70.100 Noncomplying facility - Replacement.
A noncomplying facility which is damaged or destroyed by any means except ordinary wear and tear and depreciation may be reconstructed only as a complying facility, except as follows:
(a) When the damage or destruction of a noncomplying facility affects only a portion of the facility that did not constitute or contribute to the noncompliance, said portion may be repaired or reconstructed to its previous configuration.
Docusign Envelope ID: 3A798A6F-1F4E-4D19-8275-72D1C645C1F0 Attachment: Applicable Municipal Code Sections
(b) When the damage or destruction of a noncomplying facility affects a portion of the facility that constituted or contributed to the noncompliance, any replacement or reconstruction to such damaged portion shall be accomplished in such manner as not to reinstate the noncompliance or degree of noncompliance caused by the destroyed or damaged portion of the facility, and otherwise in full compliance with this title; however, if the cost to replace or reconstruct the noncomplying portion of the facility to its previous configuration does not exceed fifty percent of the total cost to replace or reconstruct the facility in conformance with this subsection, then the damaged noncomplying portion may be replaced or reconstructed to its previous configuration. In no event shall such replacement or construction create, cause, or increase any noncompliance with the requirements of this title. (c) Notwithstanding subsections (a) and (b) hereof, a noncomplying facility in the commercial CS, CN and CC zones and the industrial MOR, ROLM, RP and GM districts, except for those areas designated as special study areas, existing on August 1, 1989, which when built was a complying facility, shall be permitted to be remodeled, improved or replaced in accordance with applicable site development regulations other than floor area ratio, provided that any such remodeling, improvement or replacement shall not result in increased floor area.
(d) Notwithstanding subsections (a), (b) and (c) hereof, a noncomplying facility housing a conforming use in the R-1 and RE zones, which when built was a complying facility, which is damaged or destroyed by non-willful means (i.e., acts of God) shall be permitted to be replaced, on the same site, and in its previous configuration, without necessity to comply with the current site development regulations, provided that any such replacement shall not result in increased floor area, height, length or any other increase in the size of the facility.
(e) Except as otherwise provided in this section with regard to replacement or reconstruction of a portion of a facility to its previous noncomplying condition, all reconstruction shall be subject to all applicable laws, regulations, and procedures otherwise governing construction on the site at the time said construction is undertaken.
(Ord. 5381 § 7, 2016: Ord. 4102 § 1 (part), 1992: Ord. 4016 § 46, 1991: Ord. 3905 § 18, 1989: Ord. 3890 § 21, 1989: Ord. 3048 (part), 1978)
Docusign Envelope ID: 3A798A6F-1F4E-4D19-8275-72D1C645C1F0