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Atherton: King family drops lawsuit, will keep Tallwood house, for a price
• Atherton council's deal a bitter pill for couple, but lawsuit dropped.

by Andrea Gemmet

For $10,000, Charles and Leslie King can resolve their dispute with Atherton over the fate of their new house on Tallwood Court. Although they've spent far more than that in legal fees to fight the town, it's still a bitter pill.

The Kings swallowed hard and accepted the deal from the City Council to end a year-long battle over the house, which town officials said was oversized and erroneously given a permit by the Atherton Building Department.

Last October, when the Kings' new home was nearly complete, the town told the couple that it was shutting down the project due to permit "irregularities" discovered during audits of the building department. It was one of a handful of properties singled out by the audits.

The problem, according to town officials, is that the Kings' hillside home has a basement that protrudes too far above ground, and as a result, the two-story-plus-basement house is essentially a three-story house that exceeds the maximum size allowed.

In Atherton, a basement's square footage is a freebie, and doesn't count against the total square footage allowed. If it's not a basement, the square footage counts.

The Kings, facing the prospect of having to tear down a portion of their new house, filed a lawsuit against Atherton, saying they should not be faulted for the building department's errors.

After living out of their suitcases for several months, the Kings and their three children got a court order allowing them temporary occupancy of the house in May. They put their lawsuit against the town on hold while pursuing a conditional use permit to essentially legalize their home and end the dispute.

In June, the Planning Commission voted 4-0 to reject the permit request, but last week the council reversed that decision.

"I think this has gone on long enough," said Councilwoman Kathy McKeithen. "This was not meant to be part of the building department audit. I think it's the unfortunate offspring of the building department audit."

Saying that mistakes were made on both sides, the council granted the Kings a conditional use permit at the Oct. 17 meeting, overturning the earlier Planning Commission decision.

As a condition of approval, however, the Kings are required to pay a building permit fee for their home's additional 1,183 square feet that were not included in the original permit calculations. Ms. King said it would amount to about $10,000.

The Kings' initial reaction was to reject the deal and resume their lawsuit against the city, on the principle of fairness, she said. But by the next morning, they decided to give in and put the issue behind them.

"The council had the opportunity to publicly make things right," Ms. King told the Almanac after the meeting. "We all admitted there were mistakes, honest mistakes. To grant us the conditional use permit alone would've taken away all the bitterness and resentment we felt, but by imposing additional fees on us, we felt like they were trying to stick it to us one more time."

The conditional use permit was granted on a 3-1 vote, with Charles Marsala opposed. Mr. Marsala supported granting the permit, but said he didn't believe the Kings should be charged any additional permit fees.

Mayor Alan Carlson, whose home was recently revealed to be slightly over-height, recused himself, as did City Attorney Marc Hynes.

There were public requests for both Ms. McKeithen and Mr. Marsala to recuse themselves, but they declined.

"I am prepared to hear the evidence presented, keep an open mind and make a determination. I'm going to stay involved," Mr. Marsala said.

Getting the permit

The Kings were able to take advantage of a somewhat loose interpretation of an exception in the municipal code for steep properties with a 20 percent or greater cross-slope in order to get the permit. The Tallwood parcel has a flat area, but then drops dramatically, and its cross-slope averages out to 18.6 percent. The Kings' attorney argued that the 18.6 percent slope was "in substantial compliance" with the code.

Mr. Marsala spoke at the June Planning Commission meeting in favor of legalizing the project, said Commissioner Jim Dobbie.

"Mr. Marsala appeared and urged us to approve it on the basis of substantial compliance," Mr. Dobbie said at the council meeting. "I think substantial compliance is a very dangerous precedent for the Planning Commission."

In overturning the Planning Commission's denial, council members said they doubted such an unusual set of circumstances would ever recur, so they weren't concerned about setting a precedent.

"Nobody wants to have the Kings tear down their house, or any part of their house, but it's clear that there is more square footage there than is contemplated in the code," said Vice Mayor Jim Janz.

Ms. McKeithen reasoned that the house did not represent a threat to public health or safety, and the view of it would be obscured by landscaping. However, she said, in the interest of equity, the Kings should pay the difference of what the permit fee would have been if all the square footage had been calculated correctly the first time. She suggested imposing a late payment penalty, but dropped the idea.

The Kings' plight generated a good deal of public sympathy. Mr. King turned in what he said were nearly 40 letters of support from residents, and all five people who spoke at the Oct. 17 council meeting supported the Kings.

The comment that mattered most to the Kings came from their 6-year-old daughter, after the meeting.

"Our poor daughter this morning said, 'I don't want to hear about this anymore! Don't talk about this!'" Ms. King said. "I said, 'You are so right, Grace. We're almost done with it."

Posted by Charles Marsala, a resident of the Atherton: West Atherton neighborhood, on Oct 24, 2007 at 9:32 am

I want to compliment the Almanac on their web site design, which allows for additional comments to be added to stories. I believe the reporters do a great job dealing with all the statements from the various people involved to report both sides of a story and deal with the space limitations of a printed paper.

Here are additional details to the Kings’ Tallwood home that readers may find interesting and which have lead to my opinions and votes on this home.

In Atherton the limit as to how many square feet a home can be built is a ratio of the lot size. Unless a basement is more than 2’ above the average natural grade of a lot it does not count; so homes are designed for the basements to be under that 2’ threshold.

Our Zoning code 17.08.054 created in 1998 on Basements reads: “For the purpose of this chapter, “basement” means that story below the "finished floor of the first story" of a building that is in no point in excess of two feet in height above the surrounding average natural grade. Basements are subject to the requirements of Section 17.36.190.

In Woodside a basement is defined as: The improved or unimproved portions of a building which are fully or partially below grade so that the vertical distance from the "ceiling to the grade of the adjoining ground" is no more than two feet above grade.

In Atherton we add the foundation of the first floor (approximately 16”) to the height of the basement compared to Woodside. I proposed at the June council meeting when we were changing the Basement ordinance back to 2001 standards to allow basements under accessory structures that we also change the point of reference. That change would have meant that the King’s basement would not count towards FAR and there would be no issues.

My suggestion was tabled till next year when the consultant’s report on updating our General Plan is done. Last year City Manager Jim Robinson brought in Gary Binger from the Association of Bay Area Governments (ABAG) to review Building Dept issues. Mr. Binger concluded that the Atherton Zoning Code and been changed frequently during the last 20 years, causing the Building official to make interpretations on many jobs as to what was “Grandfathered” and acceptable and what was not, how and when to apply new rules, and how to deal with contradictions in the codes, etc…

When I reviewed the facts on the King’s home this is what I found.

1. During his Phase Three Audit report in October 2006, Finance Director John Johns reported the home to be 2,500 square over FAR. In February he reduced his number to 1800, but these were both miscalculations and the home is 1183 square feet over FAR when the basement is counted. One of Mr. Johns errors was under calculating the lot size. I have presented that a flaw of the audits was having a Finance Director interpret building codes, without getting a second opinion.

2. The home across the street from the Kings, which was built many years ago before the 1998 changes, looks the same as the Kings. Early in the process those residents asked the council to drop the abatement against the Kings.

3. At times due to work flow, the Atherton Building Dept will use contract plan checkers; this was the case on the Kings property. When the plans were submitted to the contract plan checker, he did not do a physical takeoff of the square footage, he also he not notice and did not advise the homeowner the basement would count towards FAR as it would be above the 2’ height threshold.

4. The King’s house sits on top a hill with a steep drop-off at the front. The house is not over the height limitations for Atherton. Had the Plan Checker advised them of the basement issue, they could have removed 16” of topsoil to lower the finished first floor and the basement would not have counted. This is a costly solution for the Town of Atherton, the Environment, the Kings, and their neighbors. Many truckloads of dirt would put wear and tear on our roads, the neighbors have to deal with the off haul, the off-haul dirt adds to landfills, and the Kings get the bill.

5. Shortly before the home was to be completed in December of 2006, the FAR problem was noticed and the Building Dept advised not to issue a certificate of occupancy. At the council meeting of October 17, 2007 Mr. King reported that he then offered to pay the Town the fees as if the basement square footage would be part of FAR, approximately $10,000 to settle. He reported this offer was declined.

6. In February 2007 an Abatement Notice was issued by a 4-1 council vote (I opposed) and both sides began legal expenses.

7. On October 17, 2006 the council offered Mr. King to settle for paying the square footage fees.

8. Many residents have contacted me during this issue. I have suggested the residents West of Alameda come to the council meeting when the consultant’s report on our General Plan is presented. Back in 1998 when this basement ordinance was written, there probably was no one from West of the Alameda on the General Plan, the Planning Commission, nor the City Council to press they concerns. Adding the phrase “Basement height is measured to the ceiling” to the Atherton ordinance will solve many problems in the future for residents West of the Alameda.

Charles Marsala

Council Member

Posted by Tim Wulff, a resident of the Atherton: other neighborhood, on Oct 26, 2007 at 2:52 pm

I would like to respond to some of Mr. Marsala’s comments – reproduced below – with my comments to follow:

“3. At times due to work flow, the Atherton Building Dept will use contract plan checkers; this was the case on the Kings property. When the plans were submitted to the contract plan checker, he did not do a physical takeoff of the square footage, he also he not notice and did not advise the homeowner the basement would count towards FAR as it would be above the 2’ height threshold.”

“4. The King’s house sits on top a hill with a steep drop-off at the front. The house is not over the height limitations for Atherton. Had the Plan Checker advised them of the basement issue, they could have removed 16” of topsoil to lower the finished first floor and the basement would not have counted. This is a costly solution for the Town of Atherton, the Environment, the Kings, and their neighbors. Many truckloads of dirt would put wear and tear on our roads, the neighbors have to deal with the off haul, the off-haul dirt adds to landfills, and the Kings get the bill.”

With all due respect to Councilman Marsala, I find it necessary to clarify misrepresentations of fact presented in the above statements regarding the Plan Review process, my level of expertise regarding Zoning Ordinance at the time of the review, and the authority with which I was empowered. I want to be clear that there is no way Mr. Marsala could have been aware of the realities I am about to describe without discussing them with one or more of the many witnesses to or participants in these events.

Mr. Marsala’s statement in Item #3 of his comments “When the plans were submitted to the contract plan checker, he did not do a physical takeoff of the square footage,…” is not factually accurate. The First Review Report of the property, word processed on April 18, 2005 contains a complete Building Square Footage review, and the hand-written tabulations in my file confirm that this review was performed.

The statement in Item #3: “he also did not notice that and did not advise the homeowner that the basement would count towards the FAR as it would be above the 2’ height threshold.” requires further contextual explication.

At the time the Building Official, Mike Hood, saw fit to assign this job to me I had a total of 140 hours of experience performing plan check or about 4.5 full time weeks over a period of 5 months. In the presence of multiple witnesses, Mr. Hood read every word of every report I ever wrote from the date of my hire in November, 2004 to the date of his retirement on July 1, 2006. No comment, calculation or zoning determination was issued or communicated at any point without his express awareness and approval.

In Building Departments, the dispensations of the Building Official are legally valid. No subordinate has the authority to unilaterally reverse or disregard the Building Official’s dispensations, and all subordinates function as agents of his authority and dispensations.

Regarding the failure to notify the owner of the condition of the Finish First Floor height relative to Average Natural Grade, Mr. Hood was entirely aware of the facts of the proposal relevant to Zoning issues.

Additionally, regarding the determination of Average Natural Grade, in the First Review Report, I sent to the client an Average Natural Grade determination of 349.5. This ANG was calculated by Mr. Hood in our First Review meeting using a six reference point basis for determination. In response to Plan check, the Client’s engineer faxed a letter to the Building Department using 30 points of reference which included points around the Cabana location upslope of the Main Residence. The concept of this use of points around the Cabana was that the Cabana was, for the purposes of determining ANG, regarded as part of the Main Residence. However, for the purposes of determining Floor Area, the Cabana was regarded as a separate structure, an apparent logical inconsistency.

The letter faxed by the engineer remains in the file, and in the possession of the auditors.

Prior to my writing the Second Review Report, Mr. Hood showed me the fax and informed me that the ANG proposed by the client was to be implemented. The new ANG was to be 351.1, or 1.6 feet higher than that determined by Mr. Hood in our previous meeting.

To the best of my recollection, at no time in my experience working with Mr. Hood on any project over a period of over 1 and one-half years, were more than 6 reference points used in the determination of Average Natural Grade, and there was never another instance when a client dictated to the Department what the Average Natural Grade would be.

Subsequent to this meeting, the following is the note in my Second Review Report regarding Building Heights:

“The Re-submittal Letter calls for a height increase from the Town of Atherton's determination of ANG of 349.5 to a value of 351.1, an increase of 1.6 ft. In addition, the Re-submittal Letter calls for an allowance of height increase of 1' for a setback increase of 1' 6". Chapter 17.20.010.A.a of the Zoning Ordinance allows for a ratio of 1' per 5' of setback increase to a limit of 34'. A set back increase of 1' 6" would create an allowable additional height increase of 0.3 feet. If the Average Natural Grade increase from 349.5 to 351.1 is approved, the final allowable ANG would be 351.1 and the allowable maximum Building Height would be 381.4. The proposed Building Height is 381.”

In summary, I know that Mr. Marsala is well-intentioned in his comments. Both he and anyone else who is familiar with the situation ought to have compassion for the considerable disruption and distress the owners have had to endure, and compassion is never wrong. However, assigning responsibility for occurrences to the appropriately empowered authority is as important as having concern for others.

Posted by grant johnson, a resident of the Menlo Park: Stanford Hills neighborhood, on Sep 30, 2008 at 4:49 pm

who cares his house is huge so wut give him a break