Developer threatens to sue after project is panned by architectural board | April 29, 2022 | Palo Alto Weekly | Palo Alto Online |

Palo Alto Weekly

News - April 29, 2022

Developer threatens to sue after project is panned by architectural board

SummerHill says city's rejection of townhome plan near Greer Park would run afoul of state law

by Gennady Sheyner

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

The threat from SummerHill Homes came on April 21 as the board was preparing to demand further revisions to the 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 also reviewed the project on Jan. 20, concluded at both hearings that the buildings in the development are too similar to one another, that the architecture is lackluster and that the road network offers insufficient amenities for bicyclists and pedestrians.

Board members 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 along the roofs.

While the developer 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 deny 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 its 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 city staff is now working on a permanent ordinance to codify the design rules in the 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."

Email Staff Writer Gennady Sheyner at [email protected]


Posted by Evergreen Park Observer
a resident of Evergreen Park
on Apr 27, 2022 at 10:39 am

Evergreen Park Observer is a registered user.

Oh, good grief. This is a great location for such a project, and it does not stand out in terms of style from the rest of the area. Except for the possible exception of noting a lack of parking, the ARB's criticisms seem very vague and unnecessary. This is why we get a reputation for being difficult. Please save your energy for projects that really are bad and don't fit into the neighborhood.

Posted by plantfruittrees
a resident of Greendell/Walnut Grove
on Apr 27, 2022 at 10:45 am

plantfruittrees is a registered user.

Summerhill Homes is the company whose representative claimed with a straight face at a meeting with the neighbors I attended that adding 28 homes on the old church/daycare site on San Antonio Avenue, while creating a U-shaped new street with no room for fire trucks to maneuver through, would add zero burden (read: students) to the school system. Never mind that the outdated sewer system here couldn't sustain it. That project got rejected so as to keep the land for future schools, and rightfully so. I'm not surprised they're threatening the city--they have demonstrated that integrity is not their strong point. Future fires? They don't care.

Is there anything in the state law that allows cities to require large developers to include schools or other infrastructure in their proposals? Eight three-story buildings--that's a lot of school children to add to the system. Is Palo Alto just supposed to add extra stories to the schools at Palo Alto's expense, disrupting the school year, while the developer walks away? Then where do all those extra children play on the playground during recess?

It's never just about adding a few more housing units. Make them add a school and a playground if they want to build an entire neighborhood's worth.

Posted by Consider Your Options.
a resident of Another Palo Alto neighborhood
on Apr 27, 2022 at 10:58 am

Consider Your Options. is a registered user.

State law explicitly prohibits a city from considering impacts on schools in environmental review of new housing projects.

Posted by plantfruittrees
a resident of Greendell/Walnut Grove
on Apr 27, 2022 at 11:10 am

plantfruittrees is a registered user.

Thank you, Consider Your Options, that's disappointing but not surprising.

In one part of Summerhill's presentation I mentioned, they talked about building a high-rise on the playground of a school in Washington DC and how great it was that they'd provided all this funding for the school with that purchase. When I asked, But where do the children play? Where do they run now? Where do they get to be kids? I got a blank look, like, why would they need to do that?

Posted by Online Name
a resident of Embarcadero Oaks/Leland
on Apr 27, 2022 at 11:15 am

Online Name is a registered user.

Isn't Summerhill the company that was granted all sorts of variances and concessions in return for promising a supermarket in Edgewood Shopping Center near 101 which they then stalled on, backtracked on etc. until FINALLY residents pressured the city to fine Sumnerhill until they kept its promise? (Why the city always has to be pressured to fine companies that cnsistently violate agreements is beyond me.)

Posted by plantfruittrees
a resident of Greendell/Walnut Grove
on Apr 27, 2022 at 11:19 am

plantfruittrees is a registered user.

Online Name, that was Sand Hill, actually.

Posted by Online Name
a resident of Embarcadero Oaks/Leland
on Apr 27, 2022 at 11:35 am

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@plantfruittrees, thanks for the correction. Apologies.

Posted by Andy
a resident of Stanford
on Apr 27, 2022 at 12:03 pm

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Would be great to see these buildings taller with underground parking, but regardless, I encourage the developer to sue and force NIMBYS to stop making lame excuses to deny new housing.

Posted by Deborah
a resident of Evergreen Park
on Apr 27, 2022 at 12:05 pm

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I hope they sue. City of Palo Alto has been, in my opinion, down right criminal in it's resistance and/or refusal to build housing. They deserve to get sued.

Posted by Esther
a resident of Leland Manor/Garland Drive
on Apr 27, 2022 at 2:20 pm

Esther is a registered user.

Underground parking? To the best of my knowledge, the National Flood Insurance Program (NFIP) does not allow underground construction for residential buildings in the flood zone.

“Dry floodproofing is permitted for new and substantially improved non-residential and non-residential portions of mixed-use buildings in Zone A, but not for residential buildings in Zone A or any building in Zone V.” Requirements for the Design and Certification of Dry Floodproofed Non-Residential and Mixed-Use Buildings, p4, Web Link

Posted by SteveDabrowski
a resident of Duveneck/St. Francis
on Apr 27, 2022 at 4:05 pm

SteveDabrowski is a registered user.

Just another reason to ensure that the initiative returning zoning and development decisions back to local control and blocking the recent and future state mandates gets placed on the 2024 ballot-it is sure to win if it gets that far.

Posted by [email protected]
a resident of Palo Alto Hills

on Apr 27, 2022 at 5:11 pm

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Posted by ALB
a resident of College Terrace
on Apr 27, 2022 at 6:24 pm

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My take on this project is Summerhill did not follow necessary design elements. Chaotic lines and a variety of materials does not make for good design. Now Hickey is crying foul. Go back to the drawing board and follow directives. Give the city something decent in accordance with the ARB’s standards.

Posted by Online Name
a resident of Embarcadero Oaks/Leland
on Apr 27, 2022 at 6:30 pm

Online Name is a registered user.

@Alb nails it succinctly and accurately.

Posted by tmp
a resident of Downtown North
on Apr 27, 2022 at 6:58 pm

tmp is a registered user.

Despite the recent power grab by the state to try to force us to allow any type of building. I hope that the city will stand up to these developers and uphold some standards. They still need to build quality developments that won't burden the community with too much garbage to look at even if the overcrowd and burden us with over population and pollution.

The city should make a requirement for every new development to be zero net energy and see how the developers like that! That would be Palo Alto leading the way on fighting climate change by addressing use of petroleum products. Plus we should call out that they need to use cement and all building products that are sustainably sourced.

Posted by ArtL
a resident of Barron Park
on Apr 27, 2022 at 7:14 pm

ArtL is a registered user.

Mr. Hickey (VP developmentof Sumerhill), I think you woke up and put your pants on backwards. Instead of having your development face the park, with its trees and green open spaces, it is designed to face 101 - or more accurately an ugly sound wall your company would construct to partially, but only partially block the incessant noise from the cars and trucks. Did you really think this through?

Posted by Neil Shea
a resident of University South
on Apr 29, 2022 at 10:51 am

Neil Shea is a registered user.

Palo Alto’s planning head says they follow all the objective criteria, but once again Palo Alto wants to block and delay needed housing. The developer is going to have to sue, and we Palo Alto citizens are going to have to pay extra court costs and legal judgments, until Palo Alto stops playing games and approves housing that follows all the objective criteria

Posted by community member
a resident of University South
on Apr 29, 2022 at 2:55 pm

community member is a registered user.

Summerhill is the company that built the Mammoth development that replaced the Palo Alto Clinic downtown. They are used to fighting neighbors objections and city rules. They have unlimited lawyer money.

Great to see the ARB doing their job. Thank you!

Posted by Ryan
a resident of Downtown North
on Apr 30, 2022 at 1:41 pm

Ryan is a registered user.

People who think more housing will lower rents has never been to a big city

Posted by Curmudgeon
a resident of Downtown North
on Apr 30, 2022 at 5:15 pm

Curmudgeon is a registered user.

The ARB pans projects for only one reason: insufficient ugliness

Posted by rita vrhel
a resident of Crescent Park
on May 2, 2022 at 11:05 am

rita vrhel is a registered user.

So it seems 4 suits against PA have been threatened in the past week per the PA Weekly and Daily Post.

I hope PA does not continue to cave into all threatened lawsuits.

With the Foothills Park and previous threatened suits, IMO, PA has established that the best way to get what you want is to threaten to sue.

Only when PA stops folding will lawsuits become less frequent. Or at least not the initial line of action.

I believe the City has the right to say "NO". All they seem to be asking for in the above is better quality materials so the development does not look like junk in a few years.

Summerhill does not enjoy a solid reputation; seems to make enemies wherever they build.

The head of Planning should show more respect to the Commissioners and not undermine them. That is not helping the process.

Posted by toransu
a resident of Barron Park
on May 4, 2022 at 12:38 am

toransu is a registered user.

I continue enjoying see the city council play stupid games and win stupid prizes! The absolute clownery they embody is honestly stunning.

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