It took three years, 14 public hearings, four different architects and a threatened lawsuit for Elizabeth Wong to win an approval to build a four-story building in downtown Palo Alto.
And when she finally did so on Monday night, there was little celebration. After the long and contentious public hearing on the deeply divisive project, the applicants, their critics and the City Council all agreed that the project at 429 University Ave. falls short of what they would have liked to see at the site.
For Wong, who has been seeking the green light since June 2014, the design that the council approved by a 5-3 vote late Monday night was the worst of the three options on the table -- so inferior that her attorney maintained that it isn't an option at all. For Michael Harbour, a Kipling Street property owner who led the opposition to the project, the modernist four-story building is far too massive and deeply incompatible with the narrow street dominated by Victorian buildings. And for the council, which had rebuffed Wong on two prior occasions, the latest iteration was just good enough to eke out an unenthusiastic vote of approval.
"This has been a long road for the community," said Mayor Greg Scharff, who made a motion to approve the project. "It's been a long road for the appellant. It's time to put the issue behind us."
Four of his colleagues agreed. Eric Filseth, Cory Wolbach, Adrian Fine and Greg Tanaka provided the votes Wong needed for approval (Liz Kniss was absent), though their enthusiasm was conspicuously muted. Filseth and Wolbach both argued that the building, for all of its problems, complies with the city's zoning code and should be approved.
"Do I love the building? No. But the law is the law and the law doesn't say, 'You must love the building,'" Wolbach said.
Filseth was even more blunt in his assessment of the project, which will occupy a site that for a long time housed the art boutique Shady Lane. He argued that the new building would actually make the city's housing crunch worse and that it's "bad for sustainability." But he acknowledged that Wong has property rights that must be respected.
At prior hearings, the council rejected Wong's proposal on the grounds that it failed to meet compatibility criteria, which members acknowledged is subjective. Filseth said two of the three design options continue to be clearly incompatible with the surrounding area. But for one option, which calls for a building with less square footage and three -- rather than four or five -- housing units, it's a closer call. It's not clear that the slightly smaller building meets the compatibility criteria, Filseth said.
"But it's not quite certain that it doesn't," Filseth said. "And I think we should move forward."
The 28,547-square-foot building that the council approved Monday night will include ground-floor retail, offices and three housing units. Planning staff had concluded in a report that this option has been "the most responsive to concerns about the overall building mass and provides better transition to neighboring properties than others." The building will have a "two-story volume" all along University and Kipling, with the third story set back five feet on both sides (the only exception will be a stairway and elevator area on Kipling) and the fourth floor set back even farther.
All three options under consideration included 20,407 square feet of commercial space. The two that the council rejected would have included four and five residences, respectively. Each would have square footage of greater than 31,000.
The council's approval came despite fierce opposition from many neighbors and some council members. Karen Holman, Tom DuBois and Lydia Kou argued that all of the designs are incompatible with the neighborhood and sided with Harbour, the appellant.
"I really can't see this as a good transition or harmonious to the neighborhood or even fitting with the Victorian homes that are on (Kipling) street," Kou said.
DuBois said that he still can't make the compatibility findings for the project -- a problem that had halted approval in the past. Holman was more specific and argued that the mass of the proposed building clashes with the "rhythm of the street."
"This building has very strong horizontal elements that run the length of the project," Holman said. "There is no attempt to break up the mass and scale of the building.
"It's not the square footage; it's how the square footage is expressed."
The community was similarly divided, with both critics and supporters turning up to make their case. Harbour urged the council to reject the project, arguing that the developer hasn't even come close to complying with the council's prior direction.
"This is a colossal building on the narrowest street in Palo Alto," Harbour said, referring to Kipling.
Many residents echoed his concerns and asked the council to demand more revisions.
"I feel like this applicant is wasting your time, our time," said Rita Vrhel said. "Obviously it doesn't have the approval from most of the community.
"This is an ugly building that will be replacing a charming building next to a charming street."
But Jared Bernstein, who lives downtown, argued that because Wong followed all the zoning rules, she should get the go-ahead, despite the project's shortcomings.
"If I own a property and build a building and follow all the rules, it ought to be OK. ... The building is not too ugly. It's not to pretty. It's OK," Bernstein said.
Some project critics also raised questions about the process and pointed to the $5,000 campaign contribution that the Wong family made to Councilman Greg Tanaka last November. While Tanaka said he returned the money last week, several residents felt the transaction nevertheless tainted the process. Downtown resident Andrew Gottlieb asked Tanaka to recuse himself from the discussion.
"Even though you refunded it, it creates a cloud and appearance of impropriety, which undermines the public's confidence in the process if you don't recuse yourself," Gottlieb said.
Another cloud that hovered over the council is the threatened lawsuit. Prior to the meeting, the council met in a closed session for more than 90 minutes to discuss several letters that Wong's attorneys had submitted in recent weeks, alleging that the city is interfering with Wong's property rights and giving undue deference to Harbour.
Timothy V. Kassouni, Wong's attorney, pointed to emails in which city staff were soliciting Harbour's feedbacks about the latest design changes. In one August 2016 email, Current Planning Manager Jodie Gerhardt asks him to "describe what a compatible building would look like."
In these emails, the attorney asserts, Palo Alto staff are giving Harbour "impermissible and illegal veto power over the project's design."
Kassouni also argued that the city's code, which relies partly on subjective criteria, is "unconstitutionally vague and provides no explicit textual limitations on the City's discretion to deny a development project's approval." This, he wrote, "leaves the door open to arbitrary and discriminatory decisions."
"Unbridled discretionary grounds are inherent in phrases such as 'harmonious transitions,' 'rhythmic patterns,' and 'design linkages.' None of these terms is defined, nor could they be as they are so vague as to be virtually meaningless."
Kassouni also argued that any further delay in approving the project "will further violate my client's Equal Protection rights and continue to interfere with its distinct investment-backed expectations."
"The City's utter obeisance to the design whims of the Appellant, coupled with the Municipal Code's unworkably vague standards and the utter disregard for Kipling Post LP's property interest in Transferable Development Rights (TDR's), will only result in further depriving Kipling Post LP's investment backed expectations."
While Kassouni maintained in his letter that Option 3 (which had four residential units and 31,157 square feet) was the only one on the table, the council ultimately chose the design with less mass and density. After the meeting, Wong said she was surprised by the council's decision not to seek the extra housing unit.
Shortly before the vote, her husband, Jaime Wong, told the council that critics of the project have been engaged in "fear-mongering" on everything from shadow impacts to traffic. He also emphasized that even though his family is developing the project, they are also Palo Alto residents and neighbors.
"I live here, I raise my family here, I build here, shop here and invest here," Wong said. "I care about this town and I better, because my future and the future of my family depends on it."
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