• Variances
• Home Improvement Exceptions
• Yard Encroachments
• Exceptions to Development Standards (NP Combining District)  
• Use Exceptions (GF Combining District) 
• Transfer of Development Rights 
• Design Enhancement Exception Process 
• Provisions For Nonconforming Uses And Noncomplying Structures 
• Appeal Provisions 
• Zoning Text and Map Amendments 

We have not evaluated how well these provisions actually have worked; we simply note they are available.

ROLE OF DESIGN GUIDELINES

Palo Alto has adopted Design Guidelines for El Camino Real and for Downtown, and voluntary guidelines for R-1 Property Owners and Builders. The El Camino Real Design Guidelines will likely be updated as a result of the City's future corridor study.

Within the zoning ordinance itself, the City has established multifamily residential design guidelines applicable to the RM-15, RM-30 and RM-40 districts. However, these guidelines are advisory, and the architectural review board is granted explicit authority to interpret them on a project-by-project basis. These create the potential for conflicts within underlying standards and with performance requirements established elsewhere in the zoning ordinance.

As a general rule, it is best to exclude guidelines from a zoning ordinance in order to avoid any misunderstanding about what the development standards actually are and to ensure internal consistency. For example, is it City policy to require underground parking for projects with six units or more? If it is, then this should be a zoning requirement, not a guideline. If the threshold is flexible, and the undergrounding requirement may not apply in certain circumstances, it is preferable to explain what these circumstances are or what findings have to be made to justify waiving a guideline.

The guideline on landscaping for parking structures likewise is not clear in that it calls for "adequate setbacks" to accommodate planting. Are these greater than the setback standards that otherwise would apply? Is the five-foot wide perimeter landscaping strip set for parking facilities applicable here? How does the design standard for parking facilities, set in Chapter 18.83, fit with the design guideline?

Further, guidelines should not incorporate numerical standards (e.g. "trash disposal should be screened by a six foot enclosure") unless the City clearly intends this number to be advisory, and would allow deviations of 10-20 percent from the guideline. Provisions for small deviations, under 5 percent, should be handled as waivers or exceptions, or if they are based on unique and special circumstances and specific hardships, as variances.

Options for Increasing Flexibility   [top]

APPROACHES TO ZONING

In considering a new zoning framework for Palo Alto that will accommodate the City's interest in flexibility, it may be helpful to identify the various available approaches to zoning and districting. The most basic concept in zoning is the idea of a district. Within each district, the zoning code applies a uniform set of regulations. There are three approaches to be considered in designing a zoning framework, each of which involves tradeoffs in ease of use and administration and ability to ensure neighborhood diversity and community character. The initial approach is the traditional (Euclidean) framework for a zoning ordinance, while the other two options are more "design-oriented" approaches favored by New Urbanist practitioners:

• Land Use Approach. Districts are intended to segregate different uses, consistent with Comprehensive Plan land use designations. This approach emphasizes the needs of a single group of uses or a mix of uses.

• Development Type/Community Character Approach. Districts are intended to create urban or suburban environments meeting specified standards or performance criteria. This approach emphasizes the development types over a range of uses.

• Geographic/Neighborhood Approach. Districts reflect specific characteristics of the natural or built environment, such as neighborhood districts, heritage districts, redevelopment areas, Downtown, etc.

The following briefly outlines the basic characteristics of these approaches. As circumstances generally require a blend (hybrid) of these approaches-as is the case in Palo Alto-the challenge becomes striking the right balance while avoiding complex regulation. These tradeoffs are illustrated in the diagram on the following page.

Land Use-Based Approach

The emphasis of this approach is the control of uses within each district. Generally only a single use type is permitted in each district, such as single-family residential or light industrial. Other uses allowed would be accessory to or compatible with the primary use. The result is a uniform pattern of development within each district. One advantage of this Euclidean approach is the predictability it offers both property owners and developers with respect to what the zoning permits on any undeveloped parcel in a district. Another is the fact that this approach is well understood, resulting in minimized need for staff training and administration, and an easier transition with respect to community concerns.

A disadvantage of this approach is that it does not work as well in areas that contain a wide variety of uses or a wide variety of development standards, such as differing lot sizes or building heights. As a result, land use districts alone are not usually the best way to implement community design concepts. Another is the fact that this approach may not be responsive to many of the Comprehensive Plan policies calling for mixed use and other new zoning categories with a range of uses.

Development Type/Community Character Approach

The emphasis of this approach is not the control of uses within each district, but control of the unique development characteristics and design. While each district may incorporate a broad range of uses, these uses must conform to strict, detailed development standards designed to recognize and enhance the development characteristics. Heritage districts are perhaps the most common form of this approach, whereby the historic qualities of the buildings in the area are to be protected, but a wide range of uses are permitted.

An advantage of this approach is that within established urban areas-where the uses themselves are less important than how they fit into a neighborhood-the physical form is more predictable. As a result, the standards and expectations for development character are easily established and time spent on development review reduced. In terms of the subject of this paper, this approach to zoning offers considerable flexibility in accommodating a broad range of uses, but limited flexibility in architectural design where the zoning "envelope" is highly prescribed. The disadvantages of this option are that extensive upfront time and cost may be required to define all of the various design forms desired, especially where there is considerable design variety existing.

Geographic/Neighborhood Approach

Specific areas in Palo Alto, such as Downtown, Stanford shopping center, the El Camino Real corridor and California Avenue, could be the subject of special area zoning under the geographic/neighborhood approach. Under this approach, regulations for each district are individually tailored to reflect the existing conditions and planning concepts for area development expressed in the respective specific plans. The resultant regulations may include design examples or criteria to guide the development.

One advantage of this approach is that it can facilitate the implementation of area-specific plans, and the tailoring of district regulations and standards to plan policies. Another is the fact that this approach may be more effective than relying on the PC (Planned Community) District, which does not have the underpinning of a specific or area plan prepared with community input and participation of the Planning and Transportation Commission and City Council in its formulation. A disadvantage of this approach is the extensive time and effort involved with preparing such specific plans, zoning and design details, and the administrative cost of training staff to administer the plans and code on an ongoing basis.

BASE VS. COMBINING OR OVERLAY DISTRICTS

The districts created under the three approaches to zoning described above are "base districts." These districts set the basic regulations that apply within the district. A community may want to vary some of the regulations within the base district to respond to particular conditions within defined areas. "Combining districts" and "overlay districts" are often selected for this purpose, and Palo Alto has used them quite extensively to achieve specific objectives.

Combining districts are lain over the base district to modify the uses permitted or the standards required in the base district. Combining districts currently are used to regulate building height and minimum site area in residential neighborhoods, retail frontages in the City's shopping areas, locations for hotel development, and ground floor uses within Downtown. Overlay or combining districts also are used in other communities in the regulation of floodplains, historic preservation areas, hillsides, and transit-station areas.

Combining districts make effective use of the Zoning Map; as a result, they can reduce the complexity of the text and the rules that apply. For example, instead of having a complicated formula for calculating average setbacks and variations in setbacks that may be appropriate, Zoning Map designations can be used to indicate specific frontage where different setback standards apply.

Where combining districts address similar subjects, however, it may make sense to combine them, as in the case of the 'R' retail shopping and the 'P' pedestrian shopping combining districts, or to merge them into a base district, as in the case of the 'GF' ground floor combining district or the 'H' hotel combining district.

Combining districts are most effective when they apply to two or more base districts; when they are limited to a single base district, it may make more sense to merge the standards and map designation into the base district regulations.

RELATED CONSIDERATIONS

Other considerations related to providing flexibility in the basic zoning framework may include:

• Whether to maintain a 1:1 correspondence between Comprehensive Plan land use designations and zoning districts, or to allow greater flexibility through zoning?

• How to protect residential neighborhoods, while also providing incentives for appropriate alterations and additions that add variety, street life and vitality either with a simplified residential districting scheme using housing prototypes and performance standards, or with land use districts that rely on updated residential design guidelines and case by case review?

• Whether to maintain the current system of combining districts, or to consolidate and simplify them, where appropriate?

• How to establish development prototypes and performance standards for residential and commercial uses in mixed use areas and in new zoning categories suggested in the Comprehensive Plan?

• Whether to incorporate a stronger geographic focus into the zoning ordinance and eliminate flexibility provided by the PC Planned Community District?

Because the Planned Community District introduces so much flexibility into the current zoning framework, further discussion of this approach is warranted.

PLANNED COMMUNITY ZONING

In thinking about how to achieve flexibility in zoning, a key question is whether the City's PC (Planned Community) zoning is a model that should be retained. The PC zoning offers the flexibility of a planned development with a mix of uses; as such, it works well for "greenfield" development in rapidly growing communities where a city wants to defer to private developers the details of site planning. In a mature community like Palo Alto, this broad grant of authority to the private sector may no longer be consistent with current policy direction in the Comprehensive Plan or may not satisfy the community's desire for some greater degree of certainty in the process.

Approval of development under PC zoning does require a finding that the PC (Planned Community) district "will result in public benefits not otherwise obtainable" through applicable zoning districts. PC zoning must be consistent with the Comprehensive Plan; and the Planning and Transportation Commission and the City Council also are to cite the specific "public benefits" that are to be obtained.

The PC district regulations do not have a list of specific public benefits desired, such as affordable housing, public amenities or extraordinary contributions to financing public improvements beyond the amount normally required for a project's fair share. As a consequence, the community may be concerned that when the City is asked to allow increased density, as an example, the applicant is not providing a significant community value in return. A solution would be to clarify what the City's specific expectations are if an increase in development density/intensity is requested. This could be in the form of a menu of public benefits or a formula that links additional FAR or density to specific commitments to housing, open space protection or other public benefit.

Alternatively, the PC zoning could be restructured so that there is no presumption that increased density or FAR would be granted and the primary purpose is limited to allowing flexibility in meeting physical development standards. With this approach, the underlying zoning remains, but the PC (Planned Community) process could allow for some variations in standards affecting building relationships, height or massing within a project. Buffering or transitional requirements would still apply, as they now do with PC zoning, where a project abuts a residential neighborhood.

Another idea would be to recast PC zoning so it focuses specifically on implementing new urban land use concepts, such as Village Residential, Transit-Oriented Residential, and Mixed Use. The zoning ordinance update would define when planned community zoning can be used for these land use designations and explain to what extent flexibility can be provided and how applications will be judged. The new ordinance would rescind the broad grant of authority for planned communities, replacing it with more specific and limited authority for specified types of land use.

The new zoning ordinance also could provide explicitly for specific plans, area plans and neighborhood conservation plans to be incorporated into the City's regulatory framework through Zoning Map amendments. Zoning Map designations (e.g. SP-1, SP-2, NC-1, NC-2, etc.) would show where these plans apply. The process envisioned here would include more opportunities for public participation, design workshops and charrettes than with the current developer-driven PC zoning, which would be consistent with the public participation policies of the Governance Element of the Comprehensive Plan. It also would allow for multiple property owners to participate in the process and development plans would not be limited to sites under unified control.

If the development community is concerned about possibly losing flexibility if PC zoning were eliminated, offering new provisions for specific plans, area plans and neighborhood conservation plans may allow for a reasonable alternative. There is, however, extensive upfront time and cost associated with preparing specific plans or other area plans. The current effort anticipates that area plans would be a follow-up to the zoning update.

USE REGULATIONS AND STANDARDS

A certain degree of flexibility is inherent in the way that zoning ordinances treat land uses, including permitted and conditional uses, special uses and nonconforming uses.

Permitted Vs. Conditional Uses

Palo Alto is typical of jurisdictions its size in making distinctions between permitted uses and conditional uses. Relying on a conditional use permit process offers the potential for flexibility in administering use regulations, but at a cost to applicants as well as to the City. Also, without clear standards and criteria for evaluating conditional uses, there is some potential for inconsistency in zoning administration and decisions. If the Planning and Transportation Commission is interested in reducing the number of conditional uses and the hearings they entail, they may choose instead to permit with limitations some or all of those uses currently permitted with conditions.

Conditional uses in commercial districts, such as service stations, drive-in facilities and automotive services that are accessory to a permitted use, for example, could be permitted subject to specific standards or limitations. These standards or limitations could offer some flexibility in siting or building design as long as the performance criteria established for the use are met (e.g. buffering adjacent uses, hours of operation, landscaping and screening, etc.). This approach would require a special use review process, which would likely be similar to an administrative review process. Administrative review of "special" uses would certainly simplify the use regulations, avoid excessive reliance on conditional use permits, and streamline approvals by deeming such uses permitted with limited conditions. Some examples of "special" uses frequently identified in updated zoning ordinances include: service stations, home occupations, large family day care, and outdoor storage.

The Code then could have three designations for use regulations, which would provide additional flexibility:

• Permitted uses - no discretionary review;

• Special uses, which are permitted provided specified requirements are met - administrative review, but no discretionary review or public hearing requirement; and

• Conditional uses, which are subject to public hearings and discretionary review - additional conditions of approval may be imposed.

This three-tier system is simple from an administrative standpoint, and enhances predictability in the application review process.

Nonconforming Uses and Structures

While many nonconforming uses are benign, some may pose land use issues, and an even smaller number may pose public health and safety issues, particularly when located in or adjacent to residential neighborhoods. Palo Alto has provided for some flexibility in administering its nonconforming use provisions with the 'N' Nonconforming Use Amortization Overlay District. Additional flexibility in administering nonconforming provisions might be obtained by establishing classes of nonconforming uses and expanding current licensing requirements to complement and reinforce zoning.

Classes Of Nonconforming Uses

In some cities, such as Cincinnati and Oakland, classes of nonconforming uses are being considered as a way of recognizing that certain types of nonconforming uses are benign, and some flexibility in applying zoning restrictions may be warranted. Other communities have used notification and exception provisions, which rely on case-by-case determinations of whether a nonconforming use is, in fact, benign.

If Palo Alto were to establish a classification system for nonconforming uses, the City may want to start with a three-tier system such as the following:

• Lawfully established residential uses in any zoning district except in districts where no residential uses are permitted - Alterations and additions would be permitted, subject to design review, and a nonconforming use could expand with approval of a conditional use permit. A nonconforming use also could rebuild if damaged by fire, flood or a seismic event whatever the extent of damage.

• Uses designated by the Planning and Transportation Commission - After a public hearing and based on findings, including that continuation would not be detrimental to public health, safety, or welfare, such lawfully established uses would need a conditional use permit for any alteration, no expansion would be allowed, and rebuilding would be permitted if up to 75 percent of the building were damaged or destroyed.

• Lawfully established nonresidential uses that are located within or adjacent to a lawfully established residential use or district - For those that involve activities that may be detrimental to public health and safety because of the potential to create conditions incompatible with residential use. In these cases, no alteration or expansion would be allowed, nor would reconstruction be permitted if over 50 percent of the building were damaged or destroyed.

Nonconforming use provisions and options are frequently a major issue as a zoning ordinance is updated.

Licensing

To complement zoning provisions for nonconforming uses, the City could expand its licensing provisions (health or safety) and link them more closely to zoning concerns. New licensing provisions might be limited specifically to nonconforming businesses that use hazardous materials, or they might apply to other problematic uses. Many uses are controlled to some degree by both a license and zoning. The idea here would be to establish a special license for industrial uses operating within residential or commercial areas to ensure that there are no adverse impacts.

Licensing has generally been used where some form of inspection for health or safety is appropriate, (e.g. restaurants or gasoline pumps). Where licensing has a very narrow specific purpose, it is appropriate for zoning to regulate the use with performance standards, intensity limits, noise, buffering or screening requirements. Zoning should not, however, duplicate health or safety-related licenses.

Potential uses that might be subject to licensing include adult uses, commercial filming, massage, restaurants with entertainment, pawn shops, and/or tattoo parlors. The City may find that licensing provides improved enforcement of nuisance conditions and discourages illegal activities for these uses.

The City Attorney's advice should also be sought on this subject.

ANNUAL REVIEW

Most communities adopt zoning text amendments in response to new state or federal law or Council direction or to implement new land use policies. Map amendments are typically adopted in response to property owners' requests or neighborhood petitions or to implement new land use policies. These amendments are usually piecemeal, and rarely is there a systematic evaluation of zoning amendments.

At the state and federal level, legislative review sometimes results in "cleanup" bills to correct technical errors and ensure internal consistency within major legislative programs. This approach also can be used effectively at the local level, not only for zoning regulations but also for other implementation programs. In fact, some communities have been successful in establishing a monitoring and review process following adoption of a comprehensive zoning update. All of the community concerns as well as problems noted by developers, design professionals and City staff are addressed in a set of zoning amendments adopted each year.

The annual General Plan report required by the Government Code could be used as the vehicle for reporting on zoning issues related to Plan implementation.

Such an annual review process would build in flexibility over the long term. As it would heighten awareness of whether zoning is doing the right job with the fewest set of rules and regulations and whether the City is getting the quality of development it expects under the ordinance.

Summary   [top] 

The City of Palo Alto has several means available to enhance flexibility in its zoning ordinance, while at the same time providing increased certainty in the review process. Options discussed include: limiting discretion in the PC (Planned Community) zone process, use of a more design-oriented approach to the code or the use of design guidelines to supplement the code, clarifying the current flexible zoning processes (variances, exceptions, etc.), reducing or merging the number of combining districts and base districts, reevaluating how permitted, conditional and "special" uses are addressed, and/or providing a reasonable method for accommodating nonconforming uses and structures.