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City Council
Staff Report
From: City Manager
Report Type: CONSENT CALENDAR
Lead Department: Planning and Development Services
Meeting Date: June 16, 2025
Report #:2505-4747
TITLE
Approval of a Director’s Interpretation Pursuant to PAMC Section 18.01.025 Concluding That Noncomplying Residential Gross Floor Area may not be Relocated Within a Structure; Denial of the Associated Appeal; Direction to Prepare a Future Code Amendment for Administrative De Minimis Exceptions to the Zoning Code; CEQA: Exempt Pursuant to CEQA Guidelines Section 15061(b)(3)
RECOMMENDATION
Staff recommends that the City Council:
1. Uphold the Director of Planning and Development Services’ formal interpretation dated May 8, 2025, concluding that noncomplying residential gross floor area may not be removed and restored elsewhere on the property pursuant to Palo Alto Municipal Code (PAMC) Chapter 18.70, denying the associated appeal; and
2. Direct staff to prepare a text amendment authorizing the Director of Planning and Development Services to consider or approve de minimis exceptions from noncomplying facility regulations and similar minor adjustments that are not impactful to adjacent properties or public realm.
EXECUTIVE SUMMARY
On May 8, 2025, the Director of Planning and Development Services issued a formal interpretation of PAMC Chapter 18.70, concluding that noncomplying gross floor area (GFA) may not be removed and replaced elsewhere on a site, even where total GFA is not increased.
This interpretation was prompted by a minor remodel of a single-family home that remains over the district’s GFA limit. A timely appeal challenged the interpretation, arguing that the project does not intensify noncompliance and should be allowed.
Staff believe that the Director‘s interpretation reflects the most reasonable and consistent application of the Municipal Code and that it supports the broader policy goal of reducing
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noncomplying conditions over time. While the proposal in the appellant‘s case is minor, permitting it would render portions of the code meaningless and could create a precedent for larger changes inconsistent with the Code’s purpose. Staff recommend that the City Council deny the appeal, uphold the interpretation, and direct staff to prepare a future code amendment to allow administrative de minimis exceptions for minor residential modifications that do not impact neighbors or the public realm.
BACKGROUND
PAMC Section 18.01.025 authorizes the Director of Planning and Development Services to interpret Titles 16, 18, and 21 of the Municipal Code. Formal interpretations are posted publicly and may be appealed within 14 calendar days under Section 18.77.070.
On May 8, 2025, the Director issued an interpretation concluding that PAMC Chapter 18.70 prohibits the relocation, or removal and replacement, of noncomplying GFA, see Attachment A.
Noncomplying GFA arises when a structure was legally constructed under earlier zoning rules but exceeds current GFA limits due to annexation or subsequent code amendments. The interpretation affirms that once a noncomplying feature is voluntarily removed, it may not be restored elsewhere on the site, except in a conforming manner.
The proposed project that prompted the interpretation involves a single-family residence located in the R-1 zone in a previously unincorporated area of the Barron Park neighborhood.
The existing structure exceeds the maximum allowable GFA for the district, rendering it noncomplying. Any alterations are therefore evaluated in accordance with Chapter 18.70, which governs maintenance, enlargement, and replacement of noncomplying facilities. In this case, the project proposes a residential remodel modifying a second-floor loft by removing stair access such that it no longer qualifies as GFA. No exterior modifications are proposed for this portion of the project. Concurrently, the applicant proposes to remodel, expand and enclose new floor with new exterior walls toward the side and rear of the residence on the first floor.
The amount of enclosed space would then count as GFA, but would not exceed the GFA removed from the loft and would be located at the side and rear of the residence.
For the reasons set forth in Attachment A, the Director determined that this relocation of noncomplying GFA constituted a prohibited action under both PAMC 18.70.080 and 18.70.100.
A timely appeal was submitted on May 14, 2025.
Appeal Procedures
This item appears on the Consent Calendar. If it is not pulled by three members of the City Council, the City Council’s action to deny the appeal and uphold the interpretation will be final upon adoption of the Consent Calendar. If the item is pulled, it will be agendized for a future noticed public hearing.
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Appellant’s Position
The appellant’s statements are provided in Attachment B and summarized below.
The appellant argues that the Director’s interpretation improperly applies PAMC Section
18.70.100, which they assert only governs scenarios involving damage or destruction, not voluntary modifications. They contend that their project is instead governed by Section
18.70.080, which allows improvements to noncomplying structures that do not increase the degree or manner of noncompliance.
The appellant further disputes the use of the term “relocation,” arguing it introduces a new standard not supported by the Code. The appellant asserts that moving floor area from one location to another within the same structure does not alter the manner of noncompliance, particularly if the total GFA does not increase.
The appellant further argues that the interpretation functions as a de facto code amendment, effectively restricting common remodels without formal legislative action. They raise concerns about fairness and procedural overreach and cite principles of statutory interpretation, asserting that municipal ordinances should be interpreted according to their plain meaning. The appellant argues that the City’s interpretation would not be entitled to any deference from a court and that in the event the matter resulted in litigation, the City would expose itself to liability for attorneys’ fees.
ANALYSIS
The Director’s interpretation is grounded in the plain reading and combined intent of PAMC Sections 18.70.080, 18.70.090, and 18.70.100. These provisions set forth the regulatory framework to implement the general application of the nonconforming facilities chapter of the code and allow the continued use and maintenance of noncomplying facilities while limiting future modifications of such facilities. These three sections serve related but distinct functions in the regulation of noncomplying structures and should be read together to understand their cumulative policy intent.
Section 18.70.080 governs enlargement to noncomplying structures and prohibits changes that increase noncompliance. It further clarifies that it does not prohibit changes that do not affect the particular degree or manner of noncompliance. Section 18.70.090 addresses maintenance and repair, including the limits of allowable structural alterations. Section 18.70.100 regulates the replacement or reconstruction of noncomplying facilities following their partial or full removal. Together, they reinforce a consistent policy that disfavors reestablishing nonconforming conditions once removed or altered. More specifically:
Section 18.70.080 states:
a) Except as specifically permitted by subsections (b) and (c) hereof or by Section 18.12.050(a), no enlargement, expansion, or other addition or 7 4
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improvement to a noncomplying facility shall be permitted which increases the noncompliance. This section shall not be construed to prohibit enlargement or improvement of a facility, otherwise permitted by this title, which does not affect the particular degree of or manner in which the facility does not comply with one or more provisions of this title.
b) …. (not applicable to residential properties)
The appellant asserts that their proposal is permitted by PAMC Section 18.17.080 because it does not affect the particular degree or manner of non-compliance. In essence, the appellant argues that a change in the location of a noncomplying feature cannot be considered a change in the manner of noncompliance because the word “manner” refers only to the general type of noncompliance (e.g. height, setback, or GFA) and cannot refer to “location.” The appellant’s position, however, eliminates the word “particular” from the code. The word “particular” adds a level of specificity to the requisite analysis. The “particular manner” of noncompliance is reasonably understood to mean the specific way in which a structure is noncomplying, which would include location. Rather than introducing new code language, as suggested by the appellant, the Director’s interpretation reflects a reasonable reading of the code that gives effect to all of its provisions.
While the proposal at issue is a relatively minor change to the rear and side of the house, the code must be applied consistently across all residential project types. If the appellant’s reasoning were followed, a one-story home that exceeds the maximum GFA limit could demolish a large portion of the existing structure and rebuild the same amount of floor area as a second story. Though a second story may otherwise be allowed, this reconfiguration would significantly alter the form, massing, and presentation of the noncomplying structure, an outcome that meaningfully affects the manner in which the facility does not comply.
Rather, this provision is intended to distinguish between improvements that preserve the nature and location of a nonconformity and those that materially alter it. For example, a home with a legal noncomplying front yard setback may be permitted to construct a second story or expand toward the rear of the property, so long as the new work complies with all applicable development standards and does not intensify or extend the existing noncompliance. In that scenario, the front yard setback remains unchanged and the particular degree and manner of noncompliance are not affected.
Section 18.70.090 states:
a) Normal and routine maintenance of a noncomplying facility shall be permitted for the purpose of preserving its existing condition, retarding or eliminating wear and tear or physical depreciation, or complying with the requirements of law.
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b) Incidental alterations to a noncomplying facility shall be permitted, provided such alterations do not increase the degree of noncompliance, or otherwise increase the discrepancy between existing conditions and the requirements of this title.
c) Structural alterations to a noncomplying facility shall be permitted when necessary to comply with the requirements of law, or to accommodate a conforming use when such alterations do not increase the degree of noncompliance, or otherwise increase the discrepancy between existing conditions and requirements of this title.
This section governs routine maintenance and repair of noncomplying structures. While it permits work necessary to preserve the structure’s safe and sanitary condition, it does not allow for modifications that expand or reconfigure the noncompliance. Because the proposed project involves removing existing GFA and enclosing a separate area with new exterior walls, it constitutes a reconfiguration, not routine repair, and is therefore outside the scope of Section
18.70.090.
Section 18.70.100 states:
A noncomplying facility which is damaged or destroyed by any means except ordinary wear and tear and depreciation may be reconstructed only as a complying facility, except as follows:
a) When the damage or destruction of a noncomplying facility affects only a portion of the facility that did not constitute or contribute to the noncompliance, said portion may be repaired or reconstructed to its previous configuration.
b) When the damage or destruction of a noncomplying facility affects a portion of the facility that constituted or contributed to the noncompliance, any replacement or reconstruction to such damaged portion shall be accomplished in such manner as not to reinstate the noncompliance or degree of noncompliance caused by the destroyed or damaged portion of the facility, and otherwise in full compliance with this title; however, if the cost to replace or reconstruct the noncomplying portion of the facility to its previous configuration does not exceed fifty percent of the total cost to replace or reconstruct the facility in conformance with this subsection, then the damaged noncomplying portion may be replaced or reconstructed to its previous configuration. In no event shall such replacement or construction create, cause, or increase any noncompliance with the requirements of this title. c) …. (not applicable to residentially zoned properties) 7 4
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d) Notwithstanding subsections (a), (b) and (c) hereof, a noncomplying facility housing a conforming use in the R-1 and RE zones, which when built was a complying facility, which is damaged or destroyed by non- willful means (i.e., acts of God) shall be permitted to be replaced, on the same site, and in its previous configuration, without necessity to comply with the current site development regulations, provided that any such replacement shall not result in increased floor area, height, length or any other increase in the size of the facility.
e) Except as otherwise provided in this section with regard to replacement or reconstruction of a portion of a facility to its previous noncomplying condition, all reconstruction shall be subject to all applicable laws, regulations, and procedures otherwise governing construction on the site at the time said construction is undertaken.
The appellant acknowledges that that PAMC Section 18.70.100 sensibly requires that if a noncomplying structure is deliberately demolished and subsequently replaced or reconstructed, that such replacement or reconstruction may not reinstate the noncompliance.
The appellant argues this section is inapplicable to their project, however, because they do not propose to “replace” or “reconstruct” the GFA that is being removed. The appellant relies on the Merriam-Webster dictionary to assert that the term “replace” does not encompass the “relocation” of GFA from one place to another. In fact, the Merriam-Webster definition of “replace,” also includes “to take the place of especially as a substitute or successor,” and “to put something new in the place of.” Under both of these ordinary dictionary definitions, the appellants proposal to remove GFA from a second story and add GFA to the ground floor could reasonably be considered “replacement.” Again, the Director’s interpretation does not introduce the term ‘relocation’ into the code, but instead relies on the ordinary meaning of the terms already present.
Reconstructing noncomplying GFA elsewhere on the site, regardless of whether the total GFA increases, constitutes an effort to replicate or replace the prior noncompliance in a new location. The provision makes clear that unless narrowly exempted, such features may not be rebuilt. This aligns with the broader purpose of Chapter 18.70 to phase out noncomplying conditions over time. The appellant’s interpretation is not only contrary to this purpose, but it leads to an absurd result: there is no rational explanation for why the code would prohibit reconstruction of a noncomplying feature once removed, while permitting the same noncompliance to be reintroduced elsewhere as a new improvement.
Finally, the appellant asserts that their project does not involve the relocation of GFA but instead involves the demolition of GFA on the upper floor and a separate enlargement on the ground floor. This argument attempts to conceptually separate the removal and addition components of the project. However, if treated independently, the ground floor expansion would constitute a prohibited increase in noncompliance. The appellant’s position relies on 7 4
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linking the two elements to claim there is no net change in the degree of noncompliance, an approach that selectively combines and separates aspects of the project depending on the desired outcome.
The City Council’s determination will be entitled to significant deference from a court The appellant incorrectly asserts that the City’s interpretation of its own municipal code is entitled to no deference. While this may be true when the City has interpreted a statute or regulation promulgated by the State or another agency, it is quite the opposite when the City is interpreting its own codes. A city’s interpretation of the meaning and scope of its own regulations is entitled to deference (Harrington v. City of Davis (2017) 16 Cal.App.5th 420, 434-
45.) Greater deference is particularly appropriate where, as here, there are “indications of careful consideration by senior agency officials.” (Ibid.) Zoning Code Amendment
While the Director’s interpretation is a supportable application of the code and consistent with its text and policy objectives under PAMC Section 18.01.025, staff acknowledge that the proposed project involves a relatively minor change that is unlikely to have a noticeable impact on neighbors or the broader community. The issue raised in this case is not about the scale or character of the change itself, but how to apply the existing language of the Municipal Code consistently.
Because the plain reading of PAMC Chapter 18.70 does not allow for the reconfiguration or reinstatement of noncomplying GFA, staff could not identify a path forward that would permit this type of project without contorting the code and potentially setting a precedent for more significant and impactful modifications.
To address similar situations and introduce flexibility for minor residential projects, staff recommend that the City Council direct the preparation of a future amendment to the Municipal Code that would authorize the Director of Planning and Development Services to consider or approve de minimis deviations from the code, offering an alternative to strict adherence for minor cases. Such a provision would allow small-scale projects to proceed where the resulting change is clearly not consequential to adjacent properties or the broader community but may technically conflict with zoning regulations. The language and scope of the proposed amendment would be reviewed with the Planning and Transportation Commission and presented to the City Council for consideration at a future date. The timeline for this work has not been established and would likely be coordinated with other upcoming zoning code updates.
FISCAL/RESOURCE IMPACT
The recommendation in this report is not anticipated to have a significant fiscal or budgetary impact. Work related to the recommended text amendment will be folded into other work as able and can reasonably be absorbed within the department budget and resources. 7 4
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STAKEHOLDER ENGAGEMENT
The interpretation was posted on the City’s website in accordance with PAMC Section
18.01.025. Notice was provided to known interested parties. One formal appeal was submitted.
ENVIRONMENTAL REVIEW
The City Council’s action is categorically exempt from the California Environmental Quality Act (CEQA) under CEQA Guidelines Section 15061(b)(3), the common sense exemption, because it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.
ATTACHMENTS
Attachment A: Director's Interpretation of PAMC Chapter 19.70 Attachment B: Appeal Statement
APPROVED BY:
Jonathan Lait, Planning and Development Services Director