When Anthony Secviar and Dennis Kelly, alums of three-Michelin-starred restaurant The French Laundry in Yountville, decided three years ago to open a "world-class" restaurant on Palo Alto's California Avenue, they didn't expect to find themselves ensnared in intense zoning debates.
But that's exactly what they say has happened in their quest to open their establishment, called Protégé. To accommodate the restaurant, the developer of the new mixed-use building at 260 California asked the city to modify the building's plans, which led to a resident's challenge of the proposal, a 10-month process to obtain a permit, a series of public hearings and a bitter dispute over parking spaces, zoning regulations and the nature of public sidewalks.
The debate could conclude on Monday night, when the City Council is scheduled to consider approving Protégé's alcohol permit and affirming the recent conclusions of the city's Planning and Transportation Commission and Architectural Review Board that the project complies with a vague zoning provision that deals with "common spaces." Both bodies voted unanimously last week to move the project ahead.
At the heart of the debate is the switch of the ground-floor space from planned use as general retail (which was in the development's initial application that the city approved in 2013) to restaurant, which has more stringent parking requirements. In the eyes of Palo Alto resident Jeff Levinsky, a land-use watchdog, the project no longer complies with requirements for parking; it's short by one space.
Last week, he argued in front of both the planning commission and the architectural board that the error stemmed from the city staff's miscalculation of the floor area, which determines how much parking the development needs to provide. City planning staff acknowledged as much: It had initially failed to include the outdoor seating areas -- tables, chairs and space to access the seating area -- as part of the gross floor area of the building. That outdoor space added up to about 150 square feet. While the zoning code is vague on the subject, staff concluded in the revision of the floor area that outdoor areas where customers are not served should not be counted.
Now, staff and the developer maintain that the error has been corrected through several minor revisions. The developer, Mark Conroe, agreed to add two parking spaces through installation of "puzzle lifts" for cars in the garage. Levinsky, however, argued that this isn't enough and that another space is needed because even the revised calculations fail to consider sections of the building that are deemed "common areas." He said those areas should be counted as part of the restaurant and thus contribute to the restaurant's parking requirements.
"We do have a parking crisis in Palo Alto," Levinsky said. "We have many under-parked buildings. We're missing hundreds of parking spaces, and that's a burden to everybody -- commuters, business owners, customers and nearby residents.
"And it shifts the cost from the building owner to everyone else."
Levinsky also argued that the city is trying to have it both ways when it comes to the eating areas located on sidewalks: It treats them as relevant when discussing the restaurant's encroachment into public space but not when calculating the density of the building.
Levinsky called it a "Schroedinger's cafe" -- an allusion to the theoretical cat that both is and isn't alive -- and said the paradox makes the city's laws seem absurd.
"I don't think it's a good way to make a law that the same area is both an eating area and not an eating area at the same time," he said.
But for Secviar and Kelly, the debate has already gone on for far too long and has already been settled by planning staff. After 10 months of delays, Secviar told the planning commission on May 31, "To say I am frustrated and confused is but a tip of the iceberg."
Secviar, a former sous chef at French Laundry, said the permitting process has been frustrating, confusing and costly. Repeatedly, he said, the city had made requests with which his team complied, only to see further requests and, ultimately, an appeal. The restaurant, he said, is up to code, as determined by planning staff.
"We should not be held hostage in order to provide a forum to debate the city's policies and how you uphold and enforce the laws," Secviar told the planning commission. "We should not suffer simply because Mr. Levinsky does not trust the city to do its job."
Conroe, the developer, also argued that Protégé is being targeted for political reasons.
"We've been unfairly caught up in a political crossfire between Mr. Levinsky and the city," he said. "We're being used by Mr. Levinsky as his whipping boy or battering ram to promote his political agenda."
The planning commissioners last week agreed that the process has taken too long and that the restaurant should be approved. Commissioners Susan Monk and Eric Rosenblum both fully endorsed staff's interpretation and favored approving the project, which Rosenblum said is "exactly in keeping" with the city's objective of developing California Avenue. Having an empty space on a street that the city recently spent $7 million to renovate and revitalize is "exactly anti-public interest."
"We're trying to balance these things," Rosenblum said, referring to parking requirements and the public interest. "It seems to me this is compliant. In addition to that, there is a strong interest in having vibrant space in a place we're trying to develop."
Commissioners Doria Summa and Przemek Gardias were more skeptical and suggested that the developer provide an additional parking spot. Gardias said he was concerned about a "domino effect" of other restaurants providing insufficient parking. Summa seemed frustrated after Conroe acknowledged that the building was constructed with grease traps on the ground floor, suggesting that he had always intended to have a restaurant there.
"What that indicates to me is that it was built to be a restaurant, not general retail," Summa said. "In 2013, I think everybody would've been served better if it (provided parking) for restaurant use."
Commissioner Ed Lauing agreed with his colleagues about the project's merits and empathized with the applicants' frustrations.
"It's really unfortunate that it's taken this long to get there, but that's probably a discussion for another night: What can we do internally so that someone who has a great project like this doesn't have to go through nine or 10 months of pain?" Lauing said. "That's not what the message should be coming to potential entrepreneurs who are building world-class restaurants, which this is certain to be."
The Architectural Review Board reached a similar conclusion after a vigorous debate about density calculations, parking and the nature of outdoor seating. While the city generally encourages more activity on its sidewalks -- as evidenced by the council's decision to widen sidewalks and create new plazas on California Avenue -- it also has provisions barring restaurants from intruding into pedestrians' pathway.
The permit for 260 California specifies that the restaurant needs to apply for and receive an "encroachment permit" from the Public Works Department before it can place tables, chairs and planters in the public right-of-way. The business is also required to maintain an 8-foot-wide pedestrian right-of-way clear of all obstructions.
During the Architectural Review Board's June 1 hearing, board member Peter Baltay argued that the city needs to be vigilant about its parking requirements and told Conroe that it's unrealistic for him to change the ground-floor use and then expect a quick approval. Yet he was among those who said outdoor dining at places like 260 California should be encouraged -- and excluded from density requirements.
"We should let them put whatever sidewalk seating is appropriate for safety of the sidewalk and for their business," Baltay said.