Larry and Jeanne Lowry agonized over remodeling their Stockbridge Avenue home for 10 years, but on May 16, 2007, after finalizing their plans — but just before submitting them to the Atherton Building Department — a key building policy changed.
As a result, the Lowrys' remodeling plans went from perfectly legal to perfectly impossible because they could no longer keep a couple of their existing home's nonconforming rooms — the linchpin of their building plans.
Attorneys for Mr. Lowry allege that Atherton violated state law by not publishing an announcement in the local newspaper to notify the public that the ordinance might be changed.
Atherton's city attorney said that the town fulfills its legal obligations by posting notices on town bulletin boards, such as the one outside the Town Council Chambers, and is not required to run newspaper ads.
The Atherton City Council could resolve the Lowrys' situation at next month's council meeting, when it is set to re-hear the couple's appeal of the building department's denial of their remodeling plans.
The council may also choose to go above and beyond current noticing requirements, said Atherton City Attorney Marc Hynes.
"With all the people who come in say, 'You never tell us, you need to do a better job to get the word out,' the City Council might make a determination to start to publish (ads)," Mr. Hynes said. "I wouldn't be surprised."
As a longtime resident who makes a point of reading the local newspapers and keeping up with what's going on in Atherton, Mr. Lowry said he was shocked that the new ordinance was passed without either him or his architect knowing about it.
According to Mr. Lowry and his attorneys, Atherton is circumventing public hearing notification requirements by posting notices on town bulletin boards instead of buying legal ads in newspapers that circulate in Atherton, such as The Almanac, the Palo Alto Daily News and the Palo Alto Weekly.
"We see so many (legal notices), we didn't notice they were all from Palo Alto, Woodside, Portola Valley and Menlo Park," Mr. Lowry said.
Mr. Hynes said the law clearly says that publishing legal ads is only required if there is a general circulation newspaper printed and published in the jurisdiction. Since there is no newspaper based in Atherton, the legal alternative is to post notices in public locations, he said.
Posting notices after an ordinance is changed is legally acceptable, according to Mr. Lowry's attorney, John Hanna of Hanna & Van Atta in Palo Alto. But before an ordinance is passed, when it's under consideration, a "notice of hearing" ad must be published to let people weigh in on proposed ordinance changes, Mr. Hanna said.
"(It) gives them an opportunity to voice their objection to the adoption of the ordinance, should they have an objection," Mr. Hanna said in a March 10 letter to Mr. Hynes. "More importantly, in the case of the Lowrys, it gives them the opportunity to file their application for approval of the plans before the new ordinance is heard and/or adopted."
Mr. Hynes said he doesn't agree with that assessment.
"That's their opinion, and they are entitled to it," Mr. Hynes told The Almanac.
According to his appeal letter, Mr. Lowry and his architect met with Atherton building staff multiple times and specifically asked about the Atherton regulation that allows nonconforming portions of buildings — for example, a room built closer to a property line than currently allowed — to be rebuilt in the same location.
Mr. Lowry said in his letter that he was repeatedly assured that it would be fine. And, if the plans had been submitted in April 2007, when they were ready, the project could have gone on as planned.
However, for reasons that aren't entirely clear, the building department didn't receive the plans until June 22 — a month after a new ordinance came into effect that removes the exemption for nonconforming buildings, if 50 percent or more of the structure is being remodeled.
The City Council unanimously adopted the amended ordinance on April 18, 2007. It became law 30 days later.
The Lowrys appealed their project's denial in February, but the council sided with the building department on a 2-1 vote, with Charles Marsala opposed and Kathy McKeithen absent. The Lowrys asked the council to reconsider their appeal, in light of the lack of public notification alleged by their attorneys.
"This probably needs a little more thinking and consideration before moving ahead on it," said Councilman Jerry Carlson at the March 19 meeting, when the council voted 4-0 to rehear the appeal next month.