Colleen and Joseph Petersen
3886 Magnolia Drive
Palo Alto, CA 94306
August 3, 2025
City Council
City of Palo Alto
250 Hamilton Avenue
Palo Alto, CA 94301
Subject – Appeal of Director’s Application of PAMC § 18.70.100 to Project Concerning 3886 Magnolia Drive, #25BLD-00025
Dear Mayor Lauing and Members of the City Council:
Thank you for the opportunity to be heard at the August 18, 2025 Council meeting regarding the Director’s May 8, 2025, Interpretation Regarding Relocation of Noncomplying Residential Gross Floor Area Under PAMC Chapter 18.70 (the “Determination”). The Planning Department, on the sole basis of the Determination, has preliminarily denied our application for a very modest remodel of our home in Barron Park. That remodel is designed to convert our home to a one story residence in the interest of allowing us to “age in place” in a home built in 1948 in full compliance with Santa Clara county building code, long prior to Palo Alto’s annexure of our section of the City of Palo Alto.
Introduction and Summary of Issue
Our home is currently two stories. Our second story is quite small and is essentially a permitted loft space that is accessed through a very steep and narrow staircase (as a shorthand, we will refer to it here as the “existing second-floor room”).
Our project is designed to convert our home fully into a single-floor home (in that respect, it has far less neighborhood impact than the many second story additions routinely processed by the Planning Department). Essentially, the aim of the project is to create a closet in the room that we are using as our primary bedroom and relocate some utilities, such as the laundry and additional kitchen and cleaning storage, to a permitted rumpus room and provide interior access to that room from our existing kitchen.
We designed our project to comply with existing Palo Alto planning and building code.
Specifically, Palo Alto Municipal Code § 18.70.080 expressly permits “enlargements” of noncomplying facilities provided they do not “affect the particular degree of or manner in which the facility does not comply with one or more provisions of this title.” § 18.70.080 (emphasis added). Our project does not “affect the particular degree of or manner in which the facility does not comply with one or more provisions of this title” because it does not: (i) enlarge the lot coverage or add total floor area. In fact, it reduces FAR by 11 square feet by eliminating the upstairs loft and building out on the first floor less square footage than we are removing from the second floor.
2 Nonetheless, the Director has delayed the application for many months on the basis of the Department’s relatively new interpretation of a different provision, § 18.70.100. That section, on its face, is applicable to noncomplying facilities that are damaged or destroyed and the owner seeks to reconstruct that portion.
Notwithstanding the fact that this provision is facially inapplicable to my project and does not override § 18.70.080 either explicitly or implicitly, the Department has invoked it and has refused to allow my application to proceed. There are two very significant flaws with the Department’s interpretation.
First, it has no support in the actual language of § 18.70.100 (the full text of which is appended below). The Department’s grafting of additional restrictions in Section 100 effectively nullifies the standard governing “enlargements” in Section 80.
Second, even the Department viewed Section 100 as having no such limitation until relatively recently. An e-mail produced by the City pursuant to a California Public Records Act request confirms that the City actually expressly permitted projects such as mine until September, 2016 and then abruptly abandoned that practice without seeking any changes to the actual language of § 18.70.100 (or even seeking any guidance from the Council). A copy of this e-mail is attached and the relevant language reads as follows:
In the past, staff has permitted homeowners to remove square footage from one part of a house and add it back to another portion when the property was over FAR. This was done on a case by case basis and there was criteria to ensure the new square footage would be less impactful. Unfortunately, while this was a long standing staff policy, there is no provision in the code that allows this type of “cut and paste”. Therefore “cut and paste” is officially dead! Please ensure all projects conform to Code Section 18.70.
Email from Jodie Gerhardt, Development Center Manager, September 23, 2016.
In fact, Ms. Gerhardt had it backwards and the City’s prior interpretation of § 18.70.100 was the correct one because it simply does not speak to remodeling projects such as mine and has no language supporting the City’s new interpretation. Instead, Section 80 applies and it authorizes our modest project because that project does not “affect the particular degree of or manner in which the facility does not comply with one or more provisions of this title.”
Finally, we note that in the days prior to our appeal appearing on the Consent Calendar the City advised us that it was willing to amend the Code in a manner that would authorize projects like ours under a de minimis exception. We are grateful for that positive step and proposed that this appeal be suspended pending adoption of the exception but the City was not willing to agree to any sort of timeline on the amendment. Since we are literally “not getting any younger” and without any assurances on timing of the amendment, we believe we have no choice but to move forward with our appeal. We, along with similarly situated homeowners, eagerly await Council’s position on the Director’s Interpretation and thank the Council for its consideration of our appeal.
3 Executive Summary
Relief Requested: Reverse the May 8, 2025 Determination and direct ministerial processing of Permit #25BLD-00025.
Basis: PAMC § 18.70.080 permits the proposed work because it does not increase the particular degree or manner of noncompliance. PAMC § 18.70.100 applies only when a damaged or destroyed noncomplying portion is replaced or reconstructed; here, the noncomplying second- floor room is being removed—not replaced or reconstructed—and thus § 18.70.100 does not constrain the new first-floor work, which is instead evaluated under § 18.70.080.
Support: (i) the text of PAMC § 18.70.100; (ii) 2016 staff email stating that PAMC § 18.70.100 does not bar reconfiguration of floor area within the same nonconforming structure where the degree or manner of noncompliance is not increased; (iii) plan-set metrics table below demonstrating no increase.
Before/After Zoning Metrics (Attach as Exhibit A)
Metric Existing Proposed
Lot Area (sf) 8,100 SF No Change
Allowable GFA (sf) 3,180 SF No Change
GFA (sf) 3,455.30 SF 3,444.06 SF
FAR 3,455.30 SF = 42.65% 3,444.06 SF = 42.52%
Site Coverage (%) 3,922.39 SF (48.42%) 3,912.53 SF (48.30%) Setbacks (F/R/S) (ft) 20’-2”/45’-1”/ 4’-10” No Change/43’-1”/ 4’-10” Height / Daylight Plane 18’-5”/(E) Non-
Conforming gable on L
Side to Remain
NO Change/No Change
Parking
(covered/uncovered)
1/1 tandem
No Change
Analysis
Relevant Law and the Standard of Review
When interpreting an ordinance, courts apply the same rules of interpretation applicable to statutes. See Save Our Heritage Organisation v. City of San Diego, (2015) 237 Cal.App.4th 163, 174, 187 Cal.Rptr.3d 754.). Courts first examine the language of the ordinance, giving the words their usual and ordinary meaning, in the context of the ordinance as a whole and its purpose. See 4 Audio Visual Services Group, Inc. v. Super. Ct., 182 Cal. Rptr. 3d 748, 754 (Cal. App. 2d Dist. 2015). In addition, courts “apply common sense to the language at hand” and interpret a provision in a manner that makes “it workable and reasonable” and avoids an absurd result.
Wasatch Property Management v. Degrate, (2005) 35 Cal.4th 1111, 1122, 29 Cal.Rptr.3d 262, 112 P.3d 647.
Interpretation of the Municipal Code presents a pure question of law and as such the Director’s interpretation is entitled to no deference. See MacIsaac v. Waste Management Collection & Recycling, Inc. (2005) 134 Cal.App.4th 1076, 10. See also Manriquez v. Gourley, 130 Cal. Rptr. 2d 209, 214 (Cal. App. 4th Dist. 2003) (review of an agency’s factual determinations are subject to the substantial evidence rule but “where … the determinative question is one of statutory or regulatory interpretation, an issue of law, [courts] may exercise … independent judgment.”). 1 If we are forced to proceed with an appeal to Santa Clara Superior Court, the City would face the prospect of a significant award of attorneys’ fee award as we would be seeking to vindicate the public’s interest in the proper interpretation of the Palo Alto Municipal Code. See CCP § 1021.5 (“Upon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest …”). Also, in litigation the Planning Department would be subject to discovery aimed at determining whether it is invoking Section 100 even-handedly to small remodels like ours (this issue is also the subject of a pending request under the California Public Records Act and I respectfully reserve the right to update the Council once the City has produced adequate records in response to our request).
2 The Director’s Determination
The Director largely bases his rejection of our plan on Section 18.70.100. 3 That section governs
reconstruction of a residential structure that already exceeds current zoning limits and is
1 The Department has argued that it is entitled to some degree of deference when interpreting the City’s own municipal code. While this may be correct as a general matter, that principle should not apply here when the Department’s interpretation has no grounding in the actual language of the Code and the Department followed the exact opposite interpretation prior to its unexplained about-face in 2016 (see Ms. Gerhardt’s September 23, 2016 e-mail). 2 Indeed, if Section 100 applies to our small project the Planning Department would necessarily have to reject every single remodel of any noncomplying facility (action which would invite a cascade of litigation centered on unlawful taking of property). Judging by the number of projects that are ongoing in Barron Park every day of the week, not even the Planning Department is taking such a restrictive view of Section 100. Indeed, and to its credit, the Planning Department attempted to get some clarity around the meaning and scope of Section 100 back in 2015 but that effort did not gain traction with the members of the City Council at that time. See City Council Staff Report # 6333. We suspect that the Planning Department would benefit from and even appreciate this Council’s guidance on this important issue.
3 Until the Determination was issued on May 8, 2025, the Director entirely rested his rejection on Section 100. In the Determination, he attempts to buttress the rejection with a new claim that we 5 damaged or deliberately demolished, and it generally (and sensibly) requires that if that facility is “replac[ed]” or “reconstruct[ed] that such replacement or reconstruction not reinstate the noncompliance. The full text of that provision is appended below with relevant highlighting.
We are clearly not “replacing” or “reconstructing” the existing second-floor room. We are converting it to attic space and not replacing or reconstructing it. The Director would be correct if we were altering the existing second-floor room and keeping it as loft space. But that is not our plan.
Since we are not replacing or reconstructing the existing second-floor room, Section 100 is inapplicable because it only governs replacing or reconstructing space (see highlighting below).
The Director elides this unmistakable fact by arguing in the Determination that what we are doing is “relocating” non-complying floor area and that somehow triggers Section 100. We in fact do not agree that we are “relocating” square footage. Instead, and consistent with § 18.70.080, we are “enlarging” or “improving” a facility in a manner that does not “affect the particular degree of or manner in which the facility does not comply with one or more provisions of this title.”
However, even if the Director were correct in characterizing our project as “relocating” square footage, even then he would be incorrect in claiming that such “relocating” triggers Section 100.
This is for the simple and unmistakable reason that Section 100 applies to replacing or reconstructing a portion of a noncomplying facility and we are not replacing or reconstructing the existing second-floor room. The ordinary dictionary definition of replace is “to restore to a former place or position.” See https://www.merriam-webster.com/dictionary/replace . The
ordinary dictionary definition of “reconstruct” is “to build or assemble (something) again.” See https://www.merriam-webster.com/dictionary/reconstruct. Our project does not restore the existing second-floor room nor does it assemble it again. As such, Section 100 is wholly inapplicable and the Director has invoked it erroneously.
Essentially, and improperly, the Director attempts to graft the additional terms bolded in red below to the following portion of Section 100:
When the damage or destruction of a noncomplying facility affects a portion of the facility that constituted or contributed to the noncompliance, any replacement or reconstruction to such damaged portion, [or relocation thereof,] shall be accomplished in such manner as not to reinstate the noncompliance or degree of noncompliance caused by the destroyed or damaged portion of the facility, and otherwise in full compliance with this title.
But the term “relocation” appears nowhere in the text of Section 100. It is clearly improper for the Director to insert new terms and limitations in existing Code. If the City wishes to revise the
do not satisfy Section 80. This late argument clearly suggests that the Director lacks confidence in his application of Section 100. In any event, the Director’s belated interpretation of Section 80 suffers from the same type of flaw that infects his analysis of Section 100, namely that he inserts terms that are not found in the text of the Code (see infra at 6). 6 Code it is of course free to do so after complying with State and local procedure for such modifications. Until then, the Planning Department is obligated to apply the Code as written. See CCP § 1858 (“In the construction of a statute or instrument, the office of the Judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.”). 4 Our Project Is In Full Compliance with § 18.70.080
Fortunately, the Palo Alto Municipal Code has a provision that is specifically crafted to provide Palo Alto homeowners with homes that do not comply with current code (which is in fact a significant percentage of homes in Palo Alto) with much needed breathing room to update and modernize their homes. Section 80 allows “enlargements” of facilities so long as they “do not increase the degree or manner of noncompliance.”
The flexibility offered by Section 80 is essential to the Code’s statutory scheme. Without it, the City would invite challenges under both the California and U.S. Constitutions (regulatory takings jurisprudence), as well as under the Housing Crisis Act of 2019 and the Housing Accountability Act, which limit a local agency’s ability to down zone or impose new standards midstream.
“Degree” in the context of Section 80 unquestionably speaks to quantity (the same 2,000 sq ft remains) and “manner” speaks to type of violation. Our proposed project keeps the existing Site Coverage and actually reduces FAR by 11 square feet.
Nonetheless, the Director asserts that “relocating” floor area changes the “manner” of noncompliance because the second floor excess becomes first floor excess. To begin, and as noted above, the Director’s assertion that we are “relocating” floor area is simply incorrect. More fundamentally, there is nothing in the Code that says the vertical placement of excess floor area is itself a violation.
The Director’s logic invents a brand new metric—location—that appears nowhere in §§
18.70.080, 18.70.090, and 18.70.100. Under the plain meaning rule, his attempt to graft new terms into existing code should be rejected. See Cnty. of Sacramento v. P. Gas & Elec. Co., 238 Cal. Rptr. 305, 311 (Cal. App. 3d Dist. 1987) (“Where the language is plain and admits of no more than one meaning, the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion.”) (quotation omitted); see also Franklin v. Appel, 10 Cal.
Rptr. 2d 759, 765 (Cal. App. 2d Dist. 1992) (“The court will not, under the guise of construction,
4 In his Determination, the Director cites in support of his interpretation the 2015 Council’s consideration of an amendment to a different provision of the Code, section 18.18.120. This provision of the Code is not at issue here and relates to commercial buildings in the Palo Alto Commercial District. (Determination at 3). The proceedings referenced by the Director related to a proposed amendment to the Code and not an interpretation of it. The fact that the Planning Department recognized in 2015 that it needed to amend the Code to apply to relocated space as to commercial buildings in the Commercial District underscores that the Department would need to do the same here to obtain the outcome the Director seeks. 7 rewrite a law, and will not give the words an effect different from the plain and direct import of the terms used.”).
Thus, there is no question that our project comports with Section 80. There is also no question that had we submitted our application prior to Ms. Gerhardt’s September 23, 2016 e-mail abruptly reversing its longstanding interpretation without citation to the applicable code text, the project would have been quickly approved.
Indeed, during the application process the Planning Department based its rejection of our plan solely on Section 100. It was only in the Determination that the Director first claimed that we do not satisfy Section 80 as well (as noted above in footnote 2, the last-minute citation to Section 80 likely reflects the Director’s growing realization that Section 100 is not in fact applicable to our project).
Once again, the Director tries to graft terms into the Planning Code that are simply not there. The Determination claims that Section 80 “is intended to allow the improvement of a noncomplying facility in a manner unrelated to the particular degree or manner of noncompliance.” (Determination at 2, emphasis added). But the Code uses the term “affect” not “unrelated.” Our home does not affect the degree of noncompliance because it does not add to it in any respect.
Here as well the Director must apply the Code as written and not language that the Director apparently wishes it contained. While we appreciate the Department’s commitment to approve our project in the future under a de minimis exception, our project satisfies current code and no such amendment is necessary.
Conclusion
In sum, and viewing the provisions “holistically” (as the Director purports to do), Section 80 allows “enlargements” of noncomplying facilities provided they do not “affect the particular degree of or manner in which the facility does not comply with one or more provisions of this title.” § 18.70.080 (emphasis added). Section 100 applies when a property owner seeks to replace or reconstruct a non-complying facility or a portion of a non-complying facility. § 18.70.100 (emphasis added). The Department properly recognized this distinction in its interpretation until Ms. Gerhardt’s announcement of a materially different approach, one that was not based on the actual language of the Code and one which constituted a significant and unexplained departure from past practice.
With respect to our project, we are proposing an addition that does not affect the degree of non- compliance of our project. We are removing the existing second-floor room and not reconstructing it. As such, Section 80 applies and is satisfied and Section 100 has no application as a matter of law. It is therefore not within the Director’s discretion to deny the application nor is his legal interpretation of provisions of the Code entitled to any degree of deference by the Council (or, if need be, a court).
8 Relief Requested
The relief we seek is modest: the ability to improve safety and accessibility in our longtime home without being compelled to demolish legally built, character defining portions of the structure.
Timely intervention will spare everyone protracted appeals and public controversy, restore trust in the permitting system, and align City practice with the letter of its own ordinances.
My wife and I respectfully request that the Council reverse the Director’s May 8 determination and find that our remodel complies with § 18.70.080 and that § 18.70.100 does not apply and direct staff to issue ministerial approvals forthwith.
We are available to answer any questions or provide supplemental material at the Council’s request.
Sincerely,
/s/
Joseph and Colleen Petersen
Owners / Applicants
3886 Magnolia Drive, Palo Alto, California 94306
(917) 859 9680
[email protected]
9 Appendix
Relevant Provisions of the Palo Alto Municipal Code
18.70.100 Noncomplying facility - Replacement.
A noncomplying facility which is damaged or destroyed by any means except ordinary wear and tear and depreciation may be reconstructed only as a complying facility, except as follows:
(a) When the damage or destruction of a noncomplying facility affects only a portion of the facility that did not constitute or contribute to the noncompliance, said portion may be repaired or reconstructed to its previous configuration.
(b) When the damage or destruction of a noncomplying facility affects a portion of the facility that constituted or contributed to the noncompliance, any replacement or reconstruction to such damaged portion shall be accomplished in such manner as not to reinstate the noncompliance or degree of noncompliance caused by the destroyed or damaged portion of the facility, and otherwise in full compliance with this title; however, if the cost to replace or reconstruct the noncomplying portion of the facility to its previous configuration does not exceed fifty percent of the total cost to replace or reconstruct the facility in conformance with this subsection, then the damaged noncomplying portion may be replaced or reconstructed to its previous configuration.
In no event shall such replacement or construction create, cause, or increase any noncompliance with the requirements of this title.
(c) Notwithstanding subsections (a) and (b) hereof, a noncomplying facility in the commercial CS, CN and CC zones and the industrial MOR, ROLM, RP and GM districts, except for those areas designated as special study areas, existing on August 1, 1989, which when built was a complying facility, shall be permitted to be remodeled, improved or replaced in accordance with applicable site development regulations other than floor area ratio, provided that any such remodeling, improvement or replacement shall not result in increased floor area. (d) Notwithstanding subsections (a), (b) and (c) hereof, a noncomplying facility housing a conforming use in the R-1 and RE zones, which when built was a complying facility, which is damaged or destroyed by non-willful means (i.e., acts of God) shall be permitted to be replaced, on the same site, and in its previous configuration, without necessity to comply with the current site development regulations, provided that any such replacement shall not result in increased floor area, height, length or any other increase in the size of the facility. (e) Except as otherwise provided in this section with regard to replacement or reconstruction of a portion of a facility to its previous noncomplying condition, all reconstruction shall be subject to all applicable laws, regulations, and procedures otherwise governing construction on the site at the time said construction is undertaken.
(Ord. 5381 § 7, 2016: Ord. 4102 § 1 (part), 1992: Ord. 4016 § 46, 1991: Ord. 3905 § 18, 1989:
Ord. 3890 § 21, 1989: Ord. 3048 (part), 1978)
18.70.080 Noncomplying facility - Enlargement.
(a) Except as specifically permitted by subsections (b) and (c) hereof or by Section 18.12.050(a), no enlargement, expansion, or other addition or improvement to a noncomplying facility shall be permitted which increases the noncompliance. This section shall not be construed to prohibit enlargement or improvement of a facility, otherwise permitted by this title, which does not affect the particular degree of or manner in which the facility does not comply with one or more provisions of this title.
10 (b) Except in areas designated as special study areas, the director of planning and development services may permit minor additions of floor area to noncomplying facilities in the commercial CC, CS and CN zones and in the industrial MOR, ROLM, RP and GM districts, subject to applicable site development regulations, for purposes of on-site employee amenities, resource conservation, or code compliance, upon the determination that such minor additions will not, of themselves, generate substantial additional employment. Such additions may include, but not be limited to, the following:
(1) Area designed and used solely for providing on-site services to employees of the facility, such as recreational facilities, credit unions, cafeterias and day care facilities; (2) Area designated for resource conservation, such as trash compactors, recycling and thermal storage facilities; and
(3) Area designed and required for hazardous materials storage facilities, handicapped access, and seismic upgrades.
(Ord. 5494 § 3, 2020: Ord. 5381 § 7, 2016: Ord. 5373 § 22 (part), 2016: Ord. 3890 § 20, 1989:
Ord. 3683 § 18, 1986: Ord. 3048 (part), 1978)
11