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