Posted by Charles Marsala, a resident of the Atherton: West Atherton neighborhood, on Sep 13, 2007 at 11:06 am
For those who want to read my complete letter and my opinion see below:
In 2006 I had the privilege, honor, and responsibility of serving as Atherton’s Mayor. Atherton is a town blessed not only with great business, government, and philanthropic leaders, but also a talented and dedicated staff.
Last year a survey of our Police Department received a 97% customer satisfaction, our Public works repaved major streets of Valpariso and Selby, repaired the Atherton Channel, and many other streets. The Town Arborist created the first Atherton Earth Day; and our Finance Dept achieved its sixth consecutive non-qualified Audit.
Our Building Dept was audited, but rather than report the successes of the large picture- approximately $1 Billion in new construction; 6,647 permits processed under Mike Hood's elevan years; and strict requirements in place to to prevent homes being built too large or too tall, and no findings of appropriate funds not being collected- the negatives of a few minor errors were reported. The Financial Audit reports misinterpreted building codes and were presented in a manor that suggested the errors were favoritism.
This was not the case and as the smoke has settled after three Financial Audits, two Grand Jury Audits, and two reviews initiated by the City Manager the integrity of the Building Department deserves to be reinstated.
Former Building Official Mr. Hood needs to be thanked and praised for his knowledge and service to the residents of Atherton. Former City Manager Mr. Robinson needs to be thanked and praised not only for supervising the success of all departments, but for within days obtaining Gary Binger, Former Deputy Executive Director and Planning Director of the Association of Bay Area Governments to be interim Building Dept Director and do a report on the Building Dept to present an unbiased and impartial finding to the allegations from the Audits.
Mr. Binger’s report differed from the Finance Director’s which alleged errors were intentional because of favoritism. Mr. Binger’s report supported the personal integrity of individuals in the Building Dept, stated that the staff was overworked needed to be increased, software upgraded, some duties should be separated, and the Building Code updated. Mr. Binger was critical of having the Finance Director interpret Building Codes and did not support Finance Director John Johns’ interpretations.
In March of 2005, Mr. Johns proposed that the Council pass a fee of $22 per cubic yard (CY) for off hauling of dirt, to recover damages to roads. Council passed the proposal and after a 60 notice to residents the fee went into effect. At the June 2006 budget meeting, he proposed increasing the fee. Approximately 25 cities in CA have an off-haul fee; the closest being San Carlos ($4 CY) and Belmont ($12 CY). The following week Mr. Hood told me that he thought the fee was a tax and was illegal. At that point I asked the City Manager and City Attorney to get a second opinion on the Off-Haul fee.
At a friend’s July 4th Bar-B-Que I had a discussion with a resident being faced with a $90,000 off-haul fee and shortly after heard from his neighbor who was facing a $60,000 off-haul fee, and was preparing for legal action against the town. In September 2006 the council voted to end the fee and return all funds collected. I wonder if Mr. Hood retired in June to avoid trying to collect something he felt was wrong.
A Finance Committee meeting was called for June 28, 2006, and somehow the press was informed that something “news worthy” would be reported. The Finance Director reported that he had audited the collection of the Off-Haul fee from May 2005 to June 2006 and uncovered eleven cases totaling $134,000 where the Off-Haul fee was not charged and should have been.
In my opinion Mr. Johns made several errors during this meeting or “press conference”. These eleven cases were either before the May 17, 2005 effective date of the fee or the day after; there were no findings of the fee not being collected after May 18, 2005. In fact the Building Dept had collected approximately $500,000 in Off-Haul fees from May 2005 to June 2006 without exception and that was not reported.
Mr. Johns did not show the eleven cases to the building dept for comment prior to issuing the report; maybe Mr. Hood would have explained that you can not charge a fee before the effective date it goes into place- so there was no wrong doing. Mr. Johns claimed that the town would seek to recover the $134,000, but he did not have support of the city manager to do so; and he never received it.
In his Phase 2 audit Mr. Johns claimed that he had found another $6,193 dollars of apparent under charges and that 23% of the 6,647 files he had reviewed during Mike Hoods’ eleven years had “exceptions”. In June, 2007 I asked Mr. Johns for worksheets to support those finding. After six weeks of delays I finally requested them under the Freedom of Information Act and then was told they were not readily available and a full council vote would be needed to compile them as more than 30 minutes would be needed. I think Mr. Johns should have had both the city manager and building department comment on his findings before going public.
What I did receive from Mr. Johns showed nine cases with “Apparent Undercharges” and eight cases with “Apparent Overcharges” for a net Apparent Undercharge of $6,193 but under “Possible Reason” what it is reported as “Do Not Know”. The 23% “Exception” Findings have no financial errors, no size or height errors, and only clerical. Almost half of the “Exceptions” are because the Building Dept used forms with the numbers preprinted and if a form was voided or not returned by a resident a gap in sequence occurred as was counted as an “exception”.
Webester's defines "Exception" as "something excepted from a general rule." If the rule was not to save voided forms,then what was the exception?
Thirty- four percent were “exceptions” because “expired permits were listed in active status”, but residents have challenged this finding because you can not get your PG&E turned on without a closed permit. Hence Mr. Johns’ Phase 2 audit could have been that of the 6,647 files audited there were little to no findings of funds not being collected, no homes being built to large or to tall and that the Building Department had done a great managing approximately $1 billion in residential construction under Mr. Hood.
In his Phase 3 Audit Mr. Johns reviewed 48 permit files and reported apparent violations on 4 files. One apparent violation was a Mansard roof. Mansard roofs were developed during Napoleon’s time as he forbid second story homes, and second floor living space under a Mansard roof did not count. Currently in America it is about 50-50 as to weather a city counts Mansard Roof space towards living space. In Atherton the practice for at least the last 14 years had been not to count the space and once the resident presented those facts to the council the abatement was dropped.
The second apparent violation is on Tallwood, Mr. Johns reported that a home on a steep slope with a basement was 2,500 feet over allowable square footage. However Mr. Johns miscalculated the square footage of the lot and the house is actually 1193 square feet over allowable square footage. That error is explained as the architect used Woodside rules and previous Atherton rules would not have resulted in the basement counting towards living space as is the case in the Tallwood neighbor’s home. The building dept did not catch the error. Atherton should change its method for hillside basements to be similar to Woodside which would make this property legal. Currently Atherton adds the first floor foundation towards basement height, and that put the basement over the allowable height limit.
The third apparent violation involved a doctor who had pulled permits back in 1978 and was building his own home, Mr. Hood inherited this project when he started back in 1995. The project was keep alive by requesting inspections every six months, and was completed this year.
The fourth apparent violation involved a family who had received approved permits in 2002 and failed to start the project on time due health concerns with their children. Instead of requiring the homeowner to use the “Golden Shovel” to mark the start of construction and do minimal work to keep the permit open; the Building Dept erred in giving to many extensions. That project has been complete for some time and the issue now resolved.
Mr. Binger reported to me that Mr. Hood had in place building requirements that many other cities do not require, such as having an independent licensed professional verify setbacks and building heights.
Mr. Robinson also brought in Mike Cully as a consultant to review Building Department procedures. During the Audits Mr. Cully informed Mr. Johns he had discovered that one page of the Permit price list was overcharging residents and contractors. This information would contradict any favoritism of the undercharging reported in Mr. Johns’ Phase one Audit. Mr. Johns elected to disregard the information.
The Grand Jury stepped in after the audits and did two studies. It did agree with the findings of the audits, but I do not know how it varified those findings. Since I have been told worksheets to not exist.
The Grand Jury also that only 63 out of 189 active permits had been sent to Menlo Fire for review. The current Atherton Building Official and a representative of Menlo Fire went over the files and found different numbers. They found that since Atherton had put in a sprinkler requirement in 2004, 100% of the files for new home construction had been sent to Menlo Fire for review. They found that 208 out of 229 files had been sent to Menlo Fire.
While it is clear that there were positive suggestions the Audit, Grand Jury, and Gary Binger Reports, it is also clear that there were no findings to suggest favoritism by allowing funds not to be collected, homes to be built too tall or too large. The final conclusion is that Mr. Hood had done a great job managing the 6,674 permits and approximate $1 Billion in construction during his tenure and that Mr. Robinson was on top of the situation and all departments preformed at 97% or better during his tenure.
I thank these men for all they have done for our town and wish them a happy and successful retirement.