Last fall, while serving as chair of Palo Alto's Planning and Transportation Commission, Michael Alcheck found himself at loggerheads with the city's senior planning staff.
The bone of contention wasn't a proposed development or a zoning change -- areas where the Alcheck, the commission's most pro-development member, has often found himself in the minority. It was something much closer to home: garages that the real estate attorney was looking to build at two newly constructed homes in the Duveneck-St. Francis neighborhood.
In early October, the city rejected both proposals, arguing that they violate zoning regulations pertaining to garage placement. The following month, his attorney sent the city a letter demanding approval, which he ultimately received.
In considering his request for garages in front of the two homes -- one on Madison Way and the other on Phillips Road -- planning staff concluded that the proposal failed to meet a zoning code provision on "contextual garage placement." That is, the garage should be oriented in a manner consistent with the "predominant neighborhood pattern" of garages at more than half of the homes on the same side of the block as the subject property (excluding flag lots, corner lots and multifamily projects of three units or more).
Thus, for example, if more than half of the homes on the block have garages in the rear, the new home should as well.
In Alcheck's case, the Philips home is one of four on that side of the block, and only one of the other homes has a garage. The house developed by Alcheck Investments LLC has a carport. The Madison block includes six homes: two homes with front-facing garages, one with a front-facing garage that is set back from the main residence, and two without a garage. Alcheck's home has a carport.
The dispute between the city and one of its own planning commissioners was particularly unusual because he had already been forbidden by the city in 2015 from building garages at his two new homes and instead opted to build carports. Then in 2017, he submitted another application to the city to convert those carports into garages.
In denying Alcheck's 2017 garage proposal, Assistant Planning Director Jonathan Lait -- who serves as liaison to the Planning and Transportation Commission (and who in this role worked with Alcheck in setting the commission's agenda) -- noted in an Oct. 2 memo that when the city issued in summer of 2015 the permits for constructing the single-family homes with carports, "the contextual garage placement regulations prohibited the development of a front-facing garage."
The request to now enclose the carports so that they would become garages just two years after city had approved the carports would be a violation of the city's zoning code, Lait concluded.
Alcheck pushed back. In late November, attorney David Lanferman of the firm Rutan & Tucker sent a letter to the city demanding an "immediate issuance of building permit" for each of the two properties. The letter from Lanferman argued that the language of the code does not support Lait's opinion that the application should be denied.
According to Planning Director Hillary Gitelman, Alcheck's attorney argued that the newly constructed carports have "changed the predominant neighborhood pattern so that a garage on the front of the parcel would be allowed under a strict reading of the code." In other words, the new carports that Alcheck constructed on the two properties where front-facing garages were deemed illegal, Alcheck effectively made these garages legal.
Gitelman told the Weekly that while staff's initial denial was consistent with the intent of the code, the actual language considers existing carports without any reference to when they were constructed.
"When the code was drafted, the city did not anticipate applications to replace a newly constructed carport with a garage, so there was no language speaking to this situation," Gitelman told the Weekly in an email. "Accordingly, staff acknowledged that under the explicit terms of the code, the construction of the new carports effectively altered the neighborhood context and allowed garages in the front half of site."
On Dec. 5, staff issued permits for garages at both properties. But in doing so, it specified that Alcheck cannot start construction until March 15. Gitelman said that in issuing the permit, staff still had concerns that the timing of the conversion from carport to garage "was effectively subverting the intent of the code related to garage placement."
"To address this concern, staff believed it was appropriate to approve the garage conversions effective after a reasonable period of time has passed since the carports' construction," Gitelman said.
The dispute between Alcheck and planning staff came at an awkward time: On Nov. 29, the commission was considering revising the city's zoning code, including to clarify that the provision on "contextual placement" of garages apply to carports as well.
This wasn't the first time the commission took up the issue. In September and October 2015, the commission had considered this very same change but declined to move ahead with it, arguing that the change is a significant policy direction rather than a minor revision.
At the Sept. 9, 2015 meeting, Alcheck was the prime proponent for not changing the "contextual placement" provision, which he said will have "really significant impacts on the way people lay out their homes." He proposed including it on a list of "Tier 2" items that the commission deems significant enough to warrant further discussion.
He reiterated that point at the Oct. 28, 2015 meeting, when the commission approved the omnibus zoning bill without making any changes to this provision.
"The way it's written allows certain projects to proceed in a way different than how they would be able to proceed after these changes, and that is going to affect people who are building homes," Alcheck said at the meeting. "Unless council said to you, 'We want you to correct this garage-placement problem' ... I don't see why our planning staff is making a decision on how a project that could have happened before should not be able to happen anymore. It just doesn't make sense to me."
Planning staff disagreed and made its case in a report last November. Allowing carports in the front portion of the lot where a garage was precluded "is anomalous to the historical application of the code," the report stated.
"Moreover, staff has found only a limited number of examples where building permits were issued that allowed carports in the front half of the lot when the neighborhood pattern clearly shows parking in the rear half," the report states. "To avoid any future misinterpretations, staff recommends adding text to clearly indicate that carports must also comply with the contextual placement requirement that apply to garages."
Alcheck participated in the Nov. 29 discussion without disclosing his pending projects and recent conflicts with city planners over this very issue. This failure to disclose caught the attention of College Terrace resident Fred Balin, who on March 5 filed a formal complaint with the city alleging that Alcheck had a conflict of interest by participating in the Nov. 29 discussion.
"Commissioner Alcheck's failure to disclose his material interest in these items constitutes a violation of the California Political Reform Act, including such instances as the item could have a substantial and material effect on his financial interest in the two properties and it also could be considered as a common law 'appearance of impropriety' forbidding his participation," Balin wrote in the March 5 complaint.
This wasn't the first time Balin took issue with Alcheck's conduct. In February, he attended a commission meeting to lodge a complaint about Alcheck's behavior during a January hearing on a new zoning district to encourage "workforce housing." Over the course of the discussion, Balin alleged, Alcheck repeatedly interrupted his colleagues and objected to the structure of the discussion. In addressing the commission on Feb. 14, Balin recapped the January meeting and concluded his remarks by asking Alcheck to resign.
Resident Jeff Levinsky also brought up the issue during the March 5 council meeting, when he argued that Alcheck's Duveneck-St. Francis neighbors are losing out because of his actions.
"They are being harmed because they bought into a neighborhood where the garages and carports are supposed to be in the back and instead the city has let them be in front," Levinsky said.
He argued that the city should prevent the carports from being enclosed or, at the very least, should specify that other homes should not place carports or garages in the front.
Gitelman said that to her knowledge, Alcheck did not use his position as a commissioner to influence the staff decision on his garage applications. And Alcheck, in response to the Weekly inquiry, said he was cleared to participate by the city's legal staff.
"With respect to the proposed code changes, I conferred with the City Attorney, prior to this item's review at the PTC level in November, to confirm that there was no impact to any of my property interests and no financial conflict," Alcheck said in an email.
But Balin's complaint raised concerns for Councilman Tom DuBois, who has requested a legal opinion on the matter.
DuBois told the Weekly that he will reserve his judgment on the legal issues. On the ethical front, Alcheck's behavior raises some concerns, DuBois said. He said he was particularly concerned about the 2015 meetings, when the commission elected not to revise the zoning code, as it pertains to "contextual garage placement" to treat carports like garages.
"Council members and commissioners and board members have to take ethical training every two years about recusal issues and not using their position for personal gain," DuBois told the Weekly. "That's my concern -- the ethical behavior. Was it done with the intent to gain financially, personally, by adding value to the home by adding garages where no garages were previously allowed?"