Emboldened by recent state laws, a developer is threatening to sue Palo Alto after the city's Architectural Review Board panned its proposal to construct 48 townhomes next to Greer Park.

The threat from SummerHill Homes came as the board was preparing on April 21 to demand further revisions to its project at 2850 W. Bayshore Road, which includes eight three-story buildings at a former commercial and industrial site close to the U.S. Highway 101. The board, which had previously reviewed the project on Jan. 20, concluded at both hearings that the buildings in the development are too similar, that the architecture is lackluster and that the road network offers insufficient amenities for bicyclists and pedestrians.

Board members also contended last week that SummerHill has not made enough progress since the January hearing, at which time they had recommended that the developer add underground parking and reconsider various design elements such as the parapets at the roofs.

While the developer has made some revisions to the plans since January, all five board members argued on April 21 that these changes have not gone far enough. Board member Kendra Rosenberg suggested that rather than presenting a variety of buildings, as the board had previously recommended, the applicant returned with a "very superficial material variety." Board member Peter Baltay said he was disappointed that the developer was unwilling to redesign the floor plans inside the proposed development.

"Right now, each one (of the townhouses) is just a conglomeration of different architectural materials," Baltay said.

After hearing the board's comments, John Hickey, vice president for development at SummerHill, suggested that the company may take legal action against the city. He alluded to recent state laws such as Senate Bill 330, which created a five-hearing limit for review of housing developments that meet objective standards such as height limits and density restrictions. Another provision of the state law requires cities to make final decisions on housing projects within 90 days of the certification of the project's environmental analysis.

"If you were to continue today and someone were to appeal the approval, that would automatically be considered a denial of the project by the city, in which case we'd have to go to court and the city would potentially be subject to damages. I'm sure nobody wants that," Hickey said minutes before the vote.

Hickey also said that if the board were to schedule a third hearing, it would exceed the 90-day limit, which would be considered a denial under the provisions of the Housing Accountability Act.

Undaunted by the threat, the board unanimously voted to recommend rejecting the proposed development. The recommendation now goes to Planning Director Jonathan Lait, who will have a chance to either denying the project or unilaterally overrule the board.

In voting to reject the project, board members unanimously agreed that they cannot make the formal findings that are required to recommend approval. Specifically, they concluded that they could not make the finding that the development has a "unified and coherent design" and "creates an internal sense of order and desirable environment for occupants, visitors, and the general community."

They also could not make the finding relating to the project's "functionality," which refers to a development's ability to allow for "ease and safety of pedestrian and bicycle traffic." Chair Osma Thompson said the development is too "traffic-heavy" and described the building facades as "chaotic."

"There's too many materials," she said. "There's too many architectural moves of different styles as well — some flat roof moves, some dormer moves. It doesn't feel coherent."

Baltay lamented the fact that the board has consistently made the same comments about the project but had not seen the level of change that it normally expects to see.

"It's terrible, I feel really bad doing that," Baltay said. "This is a project that could succeed and should succeed, yet we haven't had much traction getting there. And now I feel threatened."

A lawsuit from the developer would test Palo Alto's famously thorough review process at a time of new state laws that give housing developers more leverage. Some laws, such as Senate Bill 35, create a streamlined approval process for housing projects in jurisdictions that have fallen well short on their regional housing mandates. Others, like SB 330, aim to give developers more certainty in getting their projects approved if they meet objective standards.

In response to the new laws, which make it difficult to deny projects based on subjective criteria, Palo Alto has been revising the objective standards in the zoning code. The overhaul began last year, when the council approved a list of new rules governing everything from garage placement and window sizes to roof styles and configuration of porches.

The City Council approved an urgency ordinance that created the new objective standards last December and staff is now working on a permanent ordinance to codify the design rules in the city's zoning code.

A recent report from Lait confirmed that the SummerHill project conforms with the city's objective development standards.

"As a result, the City's discretion to deny or reduce the density of the project is constrained by the Housing Accountability Act," the report states. "The HAA states that a city cannot disapprove a project or impose a condition that requires a lower density, when the project complies with objective standards."