Almanac

News - June 2, 2010

Atherton: Was councilwoman's house built lawfully?

• Atherton investigates the question, but Mayor Kathy McKeithen says any probe should be conducted by an independent party.

by Renee Batti

The question has been raised, publicly and emotionally, for at least two years: Did Atherton City Councilwoman Elizabeth Lewis and her husband, Joe, violate town building law when they constructed a new house and accessory unit on their half-acre lot on Emilie and Alejandra avenues some five years ago?

In response to a request by Mayor Kathy McKeithen for enough information to determine whether the town should hire an independent investigator to resolve the issue once and for all, the town recently embarked on an in-house review of the matter.

That, however, is the wrong response, according to the mayor.

"I do not believe it is appropriate for ANYONE in our town administration to be investigating this matter," Ms. McKeithen said in a letter to Town Attorney Wynne Furth, who is handling the review. If an investigation is to be done, it should be by an independent outside party, she insisted.

The Lewis house, which had an Emilie Avenue address before it was demolished and rebuilt in 2005-06, now fronts Alejandra. Ms. Lewis, who co-owns a property management company, was elected to the council in 2008.

Complaints about the size of her house, and possible code violations in its construction, were growing in volume even during Ms. Lewis' campaign for office. A key critic was former finance director John Johns, who was suing the town for wrongful termination, asserting that his firing was in retaliation for his building department audit that revealed a range of irregularities.

The issue seemed to drop beneath the radar for a time. But when Mr. Johns won a hefty lawsuit settlement from the town earlier this year, he renewed his public campaign to have the town investigate whether the Lewis home construction project violated the town's building laws. At the April 21 council meeting, packets of town documents and analysis by Mr. Johns pertaining to the project were handed out.

The documentation, he wrote in the packet's cover letter, included evidence of "falsification of permit records and violations of Atherton's zoning ordinance" by Ms. Lewis — accusations Ms. Lewis hotly denies.

"Who are the people accusing me here — and why?" she said in frustration last week when asked to comment about the review. "We followed every rule, every regulation ... followed every approval process," she said, adding that the project was signed off by the building department in March 2006.

Mike Wasmann, the current building official, told The Almanac in 2008, when the issue was first raised publicly, that he was unaware of any problems or questions regarding the building project. He noted that calculating fees and checking for zoning issues would have been handled by Mike Hood, who was the building official at the time.

Ms. Lewis said she and her husband bought the property in 1997, when "it was a run-down shack" with an abandoned car overgrown with weeds on the parcel. The couple's improvement to the property cleaned up "an eyesore" while following all direction given by the town.

"I was not an elected official at the time," she said. "I was simply an Atherton resident ... and did not receive any special treatment.

"This should not happen to residents — this kind of after-the-fact dredging up of something."

Looking at the record

Mayor McKeithen said that soon after the April council meeting, she and Councilman Jim Dobbie met with City Manager Jerry Gruber about a possible way to put the matter to rest — with the help of an outside review, if necessary. But she was dismayed when she learned that an in-depth review by staff was being launched, she said.

In her letter to Ms. Furth, the town attorney, Mayor McKeithen said she believed that "the only question which should be raised by Atherton administration is: 'Is there any indication, based on the facts, that the Atherton Building Code was not adhered to in the building of Ms. Lewis' home?'"

If the answer is yes, she said, an independent review by "an impartial person having no relationship with the town or any of its staff or council and recommended by an independent outside source should proceed."

Ms. Furth told The Almanac that she and Mr. Gruber decided to do an internal review after she consulted other city attorneys. "The consensus was that this is the kind of work that is typically done in-house," she said. "In a case like this, we think this is the appropriate procedure."

She noted that the council could call for an outside investigation, but if it doesn't, she will "provide accurate legal analysis" of the matter.

Ms. Furth also noted that neither she nor Mr. Gruber was employed by the town at the time the building project was in progress, so there shouldn't be a perception of a conflict of interest.

She said she hopes to complete the review by this week, but that will depend on whether more documentation is needed.

Complicating the matter is an apparent lack of access to pertinent documents in the building and planning departments. Ms. McKeithen's original request for a review was converted into an official Public Records Act request at the direction of Mr. Gruber, although the mayor said she didn't intend for the matter to be handled that way because she wasn't interested in reviewing the documents herself.

City Clerk Theresa DellaSanta then took charge of Ms. McKeithen's request for "any and all documents which a qualified outside planner would need to determine that the property ... either complies with or exceeds the town's established (floor space requirements), set-backs or any other Atherton/statutory/state building requirements applicable at the time the home was built."

Within the 10-day response period legally required for PRA requests, Mayor McKeithen received a copy of a building permit issued in January 2003, but no other documents. Ms. DellaSanta also sent a form that Ms. McKeithen could fill out if she wanted copies of the home construction plans, but noted that the law requires consent of the current property owner and the professional who prepared the plans before copies could be provided to anyone.

Where are the documents?

Ms. McKeithen said she was surprised when she received only one document. She expected to be provided town staff and Planning Commission reports and calculations, building department approvals, and other documents. "It looks like I'm being led around by the nose," she said last week.

The home construction plans are available to the public on microfiche, but cannot be copied or removed from the building department. An incomplete survey by The Almanac of some of the items on microfiche revealed public documents mixed in among the construction plans, including a permit issued in September 2003, and a town-approved demolition permit dated May 2004.

There was no file pertaining to the project in the Planning Department, according to a staff member there, although Mr. Johns had provided a document dated July 10, 2000, signed by former building official Mike Hood, indicating that the project had gone before the town's Planning Commission the month before.

On May 27, The Almanac submitted a Public Records Act request for planning and building department documents pertaining to the project.

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