Faced with a threat of a lawsuit, the Palo Alto City Council approved in one of its final actions of the year a highly contentious downtown development project that just two months ago was rejected by the city's own planning staff and panned by its Architectural Review Board.
In doing so, it handed a long-awaited victory to Elizabeth Wong, a developer who has been seeking approval to construct a four-story mixed-use building at 429 University Ave. in a process that has stretched over five years and has included at least four architects, dozens of public hearings and two appeals, the latest by Wong herself.
With its 6-3 vote early Tuesday morning, the council sought to conclude a process that began in 2014 and that has frustrated and exasperated both sides of the rancorous debate. Council members were well familiar with the project, having already approved it in February 2017. At that time, attached to their approval three conditions: that Wong's architects add a decorative design to the exterior wall, that they improve the landscaping plan and they include more "craftsmanship-related detailing" in the exterior.
This year, the Architectural Review Board heard three hearings on Wong's project to determine whether she had met those conditions. By a 2-1 vote, the board decided on Oct. 4 that it did not. Lait followed suit on Oct. 16 with his own "partial denial" after finding that she met the first two conditions but failed on "craftsmanship-related detailing." Wong promptly filed an appeal to Lait's letter of determination and her attorney, Timothy Kassouni, submitted several letters layout out numerous objections and threatening litigation.
In one such letter, Kassouni alleged that city planners had been "stonewalling" Wong in her attempt to obtain a building permit and accused the two members of the Architectural Review Board who voted against Wong's project — Robert Gooyer and Osma Thompson — of being "biased." He also blasted Lait for accepting the board's recommendation for denial.
Wong, meanwhile, has repeatedly pointed out that the project had already been approved and that the board's objections were based on general opposition to the project. Because the board was only charged with reviewing the elements included in the three conditions, Wong argued that its denial was improper.
But after a frustrating February, things began to look up for Wong in recent weeks. After several meetings between Kassouni and Palo Alto staff from the planning department and the city attorney's office, Wong last Friday submitted new plans. Lait promptly changed his mind about the earlier denial.
On Monday, Lait told the council that during the meetings between himself, the city attorney and the developer, he reiterated the items that he believes are vital to securing staff support. He presented the new memo to the council on Monday, immediately before the meeting.
Wong's recent revisions include an added sunscreen on the first floor, window screens on the second and a modified balcony on the third. Each of these changes, Lait wrote, "address concerns relevant to the Director's denial." The awnings, he wrote, "enhance the pedestrian space" and their fabric will "add warmth to the building colors." The window screens, he wrote, "add detailing, depth and visual relief that enhance the neighborhood."
"With these recent changes made by the applicant a meaningful effort has been made to address the concerns raised by the ARB and the Director's decision," Lait wrote. "Based on the entirety of the administrative record, including the recently submitted drawings, staff recommends the council modify the director's October 16, 2018 decision to provide for approval of all aspects of the architectural review application."
Wong's team continued to apply the pressure on Monday night, when Kassouni told the council that he had been authorized by Wong's company, Kipling Post, to immediately file a suit if the project is not approved.
"The timing is now. There really is no tomorrow," Kassouni said,
Jaime Wong, Elizabeth's husband, also complained about the city's process and staff's changing expectations. He told the council that "this is the end of the line."
"You get planted on the one-yard line and the goal posts move," Jaime Wong told the council. "That's not fair."
Michael Harbour, a vocal opponent of the project, agreed that the process is unfair. Harbour, whose appeal prompted the 2017 council hearing, noted that the public and the council hadn't had a chance to review Wong's recent design changes. He also observed that the building the council is being asked to approve looks very different from the one it supported in February 2017.
Other project opponents reiterated their prior objections to the glassy modernist building, which they argued is too massive in relation to Kipling, a narrow and eclectic street full of Victorian homes.
Sallyanne Rudd, a resident of Downtown North, described Wong's proposed development a "glass-and-steel Rubik's Cube" that lacks any pleasing or design linkages to neighboring structures. She also strongly objected to Wong's tactics in securing approval.
"I'm disgusted that the developer has resorted to threats like this against the City Council (and) against the city that acts to uphold agreed community standards for the design and livability of Palo Alto," Rudd said.
The unusual process also irked several council members and residents. Councilman Tom DuBois agreed with Harbour that the building no longer looks like the one the council considered in 2017, while Councilwoman Karen Holman took issue with Wong's late submissions, which run counter to the council's normal policy. Councilwoman Lydia Kou bristled at Wong's lawsuit threats.
"It almost feels like a lot of this is acting under duress," Kou said. "I did not appreciate being threatened over here by the attorney."
Vice Chair Eric Filseth was initially ambivalent and voiced concerns about one of the most significant recent changes to the development: The relocation of 400 square feet of space from the lower three floors to the fourth floor. The change, he noted, could impact how the building is seen from the ground floor. But he ultimately sided with the council's pro-growth majority, ensuring that the project would move ahead by a 6-3 vote.
Councilman Adrian Fine made the motion to approve the project and Mayor Liz Kniss seconded the motion. Kniss called the process difficult and confusing.
"I think what's important on the last meeting, on the last item of the year is to have a decision on this," Kniss said, just before the early Tuesday morning vote.