Palo Alto Matters – October 10, 2017
Public trust and damaged community life.
Ask a typical Palo Altan what code enforcement is all about and odds are the first thing they’ll mention is gas-powered leaf blowers. But it also encompasses zoning and building compliance, Use and Occupancy permits, parking, signage, construction noise and more – complex, wonky, and sometimes seemingly nitpicky, issues that have both immediate and cumulative impacts on land use and quality of life. While most residents may not know a specific code violation when they see one, they experience the impacts of noncompliance and it feels unfair.
Immediate neighbors suffer from unabated violations. Worse, Palo Altans city-wide endure a double loss: they suffer lasting changes in the character of their neighborhoods and they feel abandoned, or even duped, by their city government. Supposedly protected retail converts to other uses; burdens on public parking increase unnecessarily; traffic safety in neighborhoods deteriorates; and businesses freely flout rules designed to protect residential quality of life. Rumblings rise about city bias favoring non-resident interests.
When an electric generator failed for a giant dewatering project near California Avenue, the construction company replaced it with a much louder diesel version that was so noisy, 24/7, that neighbors were unable to sleep or work. Increasingly desperate residents got the run-around, sent back and forth to the Police and Planning departments, and it took several days and countless calls and emails to city staff and Council before the problem was resolved.
“For a week they’ve had a loud pump going and has been going on for 24/7. I have not slept. It is not an exaggeration.” – Mayfield resident
In residents’ view, city reluctance to impose costly penalties on the violator delayed resolution of the problem, leaving residents paying the price as they endured the impacts or retreated to other locations. Additional stories below exemplify wide-reaching impacts and frustration with weaknesses in the code enforcement system.
When the city inadequately enforces the promises embedded in its own rules, public trust diminishes. This weakens the citizen-government partnership and creates a climate of suspicion in which it’s hard to secure public support for valued purposes (such as Transportation Management Association (TMA) funding) or innovative, yet unproven strategies (such as car-light housing).
“I’m concerned that the City increasingly demonstrates an open door policy to developers but a closed door (and deaf ear) policy to residents.” – Fairmeadow resident
It also compounds frustration with the “Palo Alto process” as residents seek greater scrutiny of planning decisions. Indeed, a recent permit applicant told the Planning Commission “We should not suffer simply because [residents don’t] trust the city to do its job.”
The code enforcement audit currently underway is much needed. While its findings may be constrained by limited public understanding and active participation in code enforcement, public dialogue about this decidedly “unsexy” topic offers a critical step toward rebuilding the goodwill and partnership Palo Alto needs to confront the challenges before us.
Who’s responsible for code enforcement?
The Police Department, and the Planning Department’s three Code Enforcement Officers are on the front lines investigating citizen Complaints. However, code enforcement begins long before violations manifest on the ground, with Planning staff at the helm.
Planning supervisors interpret the code and how it is applied in any given case, and exercise substantial discretion in construing the letter of the law. At the front end, they recommend approval of project designs and permits, making judgments about whether a proposed project or use complies with the rules; and at the back end, once a complaint is lodged, they make interpretations that define compliance and the scope of enforcement.
The community also plays an important role. In Palo Alto, enforcement of violations is primarily a complaint driven process. The City relies on residents to flag problems. Ideally, individuals report what they see and hear in their neighborhoods by filing complaints, city staff investigates, and problems are solved.
However, based on stories like those below, residents increasingly feel as though an inordinate burden falls on them not only to report possible violations, but also to police code interpretation, the adequacy of investigations, and compliance follow-through.
Code Enforcement Stories
Shift away from neighborhood serving uses
This in-depth article by the PA Weekly highlights two examples demonstrating resident frustration with a system perceived to bend over backwards to find businesses in compliance, while neighborhood services, supposedly protected by the zoning code, disappear.
In the case of CC Restaurant Supply on El Camino Real, it took nearly two years of concerted citizen complaints, documentation, and follow-through (with an intervening finding of compliance in response to superficial corrections) before the city concluded on follow up inspection that the business was indeed masquerading as a retail use.
In the other, the corporate offices and catering kitchen of Asian Box were allowed to occupy a former restaurant in Midtown Shopping Center by counting a small bakery counter and tiny seating area in the rear as the site’s primary use. Despite a prohibition on ‘general business or administrative office use’ in that location, code enforcement staff concluded that Asian Box’s workstations “aren’t an office per se. They are also a place for [business catering] customers to place large food orders.”
Undelivered public benefits and impact management
Residents near Edgewood Plaza have struggled since March 2015 to get their promised grocery store – a public benefit required in exchange for substantial and lucrative exemptions from the zoning code. Despite issuing a notice of noncompliance in April of 2015, it wasn’t until 18 months later, after residents organized and repeatedly appealed to City Council, that the City imposed sufficient penalties to stimulate effective action toward compliance.
In addition to living with a vacant grocery, Edgewood neighbors are also grappling with a site design that encourages delivery trucks to eschew the designated loading area and park illegally in the street, as well as construction, delivery and maintenance noise during prohibited hours. City staff informed the property owner of potential code violations in June, but almost five months (and more than 30 code enforcement complaints) later, the situation remains unresolved.
Intended use, attention to detail and lasting effect of lenient interpretations
In 2013, a development at 260 California Avenue was approved with a planned “general retail use” on the ground floor. Three years later, after the site was constructed, the developer sought to change the use to “restaurant,” for which the building was under-parked (too few parking spaces). To some, the fact that the building was constructed with grease traps on the ground floor suggested an intention of eventual restaurant use from the start, creating suspicion that the developer had been allowed to game the system to avoid building more on-site parking.
Planning staff deemed the revised use to be up to code with the addition of two parking “puzzle-lifts,” but careful scrutiny by a resident revealed, and staff confirmed, a miscalculation that undercounted the building’s gross floor area (which determines the amount of required on-site parking). Rather than adjusting the parking count, staff interpreted vague code language to exclude both “common areas” and outdoor seating “where customers are not served” from the relevant floor area calculations, allowing the project to be under-parked.
While that interpretation prevented disapproval of the project over a single parking space, it also set a significant precedent that changes the relationship between floor area and required parking for all future projects. Some think that it also will allow existing buildings to go back and add square footage.
Systemic Challenges
- Planning culture, transparency and consistency – Desire to find a way to let people do what they want to do results in judgment calls about interpretation of the code and when and how to enforce it, based on the facts and sympathies presented in individual circumstances. There is no centralized, public record of such interpretations to communicate their substance or assure their consistent future application. But each new interpretation, minor exception or decision to look the other way carries forward and accumulates, impinging on the rights and expectations of others, including entire neighborhoods.
In addition, the relative paucity of significant enforcement actions invites public suspicion about the use of discretion and masks the implications of policies enshrined in the code. For example, a recent crack-down on non-compliant community services operating out of First Baptist Church raised significant public interest in revising zoning codes to ensure that such services can find a home in Palo Alto.
- Communication shortcomings – The city’s “Palo Alto 311” system offers an efficient intake tool for staff and an easy and convenient way to report concerns, but it gives little feedback to the complainant, serving more like a suggestion box than a tool for resolving Complaints. While complainants get status updates, like “violation found and will monitor” or “case completed,” they are typically not informed of what is being done about their complaint, left to wonder “Why is it taking so long? What did the investigation find? What was done about it? What is being monitored and for how long?” Inadequate communication about resolution of the issue undermines the citizen/city partnership and deters continued participation.
- No mechanism to address recidivism – Consistent with Palo Alto’s municipal culture, code enforcement officers work hard to help violators come into compliance without facing penalties. Under current procedures, every case/complaint triggers that lengthy effort. Thus, even for repeat offenders, the process starts at square one for subsequent complaints at significant cost to the city in time and resources. Many cities have rules that fast track penalties for repeat violations, but ours does not. And issuing citations and fines seems to be off the table but for a single example in years.
- Lack of clarity and integration of oversight – New businesses often don’t know they need a Use and Occupancy permit (U&O), and if they don’t apply for one, city staff doesn’t know they exist. This leaves businesses operating without compliance oversight until a neighbor complains. Even when completed, U&O documentation is often incomplete. For example, many U&O records show no record regarding required fire inspections – are they being done? The same holds true for required sign-ups on the Business Registry – not all apply and the data provided is often vague or incomplete.
What can you do?
Speak up.
If you see or experience something that impacts you in a negative way, tell the city about it. You can opt to keep your identity confidential and you don’t have to be expert on city codes. Just visit the city’s reporting site (link here) or download the PaloAlto311 mobile app and follow the prompts. Describe what you’re concerned about: “This is happening, different than before. Is this legal?” Provide the address of the property and attach a photo if you have one.
Support policies that:
- Improve transparency through publication of the number of complaints by type, location and corrective action, if any.
- Fast track meaningful penalties for recidivists, having City Council pass any needed ordinances to facilitate a rapid response.
- Hold staff accountable for documenting and communicating judgment calls about interpretation of the code – A centralized record of such interpretations would provide transparency for residents and businesses, facilitate consistent application by city staff, and flag shortcomings in the code that might merit policy and code revisions.
- Update the 311 intake site to better serve complainants. Allow submittal of updated information, multi-photos, and documents from complainants. Put date stamps on submittals and provide more substantive staff feedback.
- Make monitoring and compliance easier and more automatic – For example, requiring proof of the Use and Occupancy application and registration on the business registry when signing up for utilities would use a universal process (turning on the power) to help businesses know what they need to do and help the City know when uses change. This is more efficient for the City and serves resident interests.