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June 29, 2005

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Publication Date: Wednesday, June 29, 2005

No Atherton acre needed for these houses No Atherton acre needed for these houses (June 29, 2005)

** Peculiar subdivision proves a headache for council.

By Andrea Gemmet

Almanac Staff Writer

It's not easy to build a house in Atherton on a piece of property that's smaller than the standard "Atherton acre." Pretty much the only way is to build on a lot that was subdivided before Atherton passed rules about minimum lot sizes and subdivisions in 1926 and 1927.

Which explains why three houses are planned for three tiny lots at 50 Ashfield Road near Atherton's Town Council Chambers.

Put together, the three lots total less than an acre and, until recently, held a single house that straddled property lines. However, since the lots were originally subdivided in 1907, they predate the one-acre minimum rules, according to Town Attorney Marc Hynes.

Of course, it's not quite that simple, as the Atherton City Council learned during a lengthy, late-night discussion at its June 15 meeting.

Nearby neighbors of 50 Ashfield Road first realized something was going on with the property when the old house was razed and the heritage-size oak tree felled.

They said there were numerous irregularities with the original subdivision and pointed to some possibly illegal "adjusting" of the property lines that enlarged the three Ashfield lots by taking strips of land from three abutting lots on Maple Avenue in the 1930s.

These irregularities appear to have led town officials to reject previous development plans to build three houses at 50 Ashfield in 1989, according to Paul Quinlan.

Mr. Quinlan, an attorney who lives at one of the abutting lots on Maple Avenue, said that Building Official Mike Hood should not have issued certificates of compliance to the properties' new owner, BK Development. If the 1907 subdivision is grandfathered, then the smaller, original 1907 lot lines should be reinstated, he said. Mr. Quinlan compiled a lengthy dossier of correspondence, legal cases and maps that he presented to the council.

Town Attorney Hynes countered with a lengthy document of his own, arguing that Mr. Hood acted appropriately. The rarely used certificates essentially resolve any lingering problems with the old subdivision, and there was no reason for Mr. Hood not to issue them, Mr. Hynes said.

Other neighbors of the property at the meeting complained that they didn't receive notification of the Planning Commission hearing where permission was given to cut down the heritage oak. Several said they thought the Planning Commission should be empowered to issue certificates of compliance, not the building official, so that they would have a chance to weigh in on the decision.

In its discussion, the council contemplated matters such as the history of the Subdivision Map Act, a 1991 attorney general opinion on the purpose of certificates of compliance, and quitclaim deeds. Councilman Alan Carlson, an attorney himself, closely questioned Mr. Hynes about the situation, and at one point remarked, "This is why I hated real property in law school."

Council members eventually concurred with Mr. Hynes and declined to take any action on the issue. They were able to offer disgruntled neighbors one small bit of solace: Before development of the property can proceed, the Planning Commission must hold a public hearing called an "exception review."

"Neighbors will receive notice and have an opportunity to appear before (the Planning Commission) and argue for whatever conditions that they would like to see," said Mr. Carlson. "Whoever is dissatisfied can appeal (the commission's decision) before the City Council."

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