Atherton: Homes entangled in permit disputes

What happens when the building official who authorized your project retires, and his replacement tells you the plans never should have been approved in the first place?

In the case of several building projects in the town of Atherton, they shut down construction or tell you to tear down what you’ve built.

The headache-inducing aftermath of last year’s turmoil in the Atherton Building Department looks like it is going to be playing out in the Atherton Town Council Chambers — and possibly the courts — in the coming weeks and months.

Among those at issue are two new homes, one on Barry Lane and one on Tallwood Court, and one pool house with a basement on Belbrook Way.

What the projects have in common is that they were approved by the building department when former building official Mike Hood was at the helm. After Mr. Hood retired in June 2006, town officials took a closer look and determined that each of the projects violate Atherton regulations.

The three property owners filed appeals with the City Council that were on the agenda for this week’s meeting, but all three are likely to be postponed to the June council meeting.

Barry Lane

For a house under construction at Barry Lane, it comes down to the definition of “attic.” The plans were approved because the top floor of the home with a mansard-style roof was apparently considered attic space, so its square footage was not counted against the maximum.

But when Mr. Hood left and interim building official Mike Cully looked at the plans, he ruled that it can’t be considered an attic — it’s a second floor, and as a result, the 13,720-square-foot house is 5,666 square feet over the maximum size allowed on the property.

Attic space is generally considered to be non-inhabitable space between the ceiling and the roof, said Atherton’s new building official, Mike Wassmann.

The builder, Creative Habitats, and the homeowners, Linda and Robert Thomas, have each retained lawyers and are appealing to the Atherton City Council to reverse an abatement notice against the property.

“Prior to purchasing the home, the Thomases visited the Town of Atherton and were assured that there was a valid building permit for construction of the home and that there were no permit problems,” said attorneys Dan K. Siegel and E. David Marks in the appeal letter.

The original permit is valid and cannot be revoked, the attorneys maintain.

Belbrook Way

In the case of Belbrook Way, the dispute centers around a pool house with a basement built on allegedly expired permits. Between the time that the permit should have expired in 2003, and when construction actually began in 2005, Atherton clarified its rules to prohibit basements under any structure other than a main house.

The homeowners, Maryan Ackley and her husband Stephen, a principal with the Menlo Park-based development company Pacific Peninsula Group, hired a lawyer and are appealing their case to the City Council.

The pool house was singled out in the town’s audit of the problems and possible improprieties in the Atherton Building Department. Dubbed “Property C,” the audit says the building department allowed the permit to remain active more than 24 months past its expiration date.

Tallwood Court

In a third case, homeowners Charles and Leslie King have filed suit over their nearly completed home on a hillside property at 94 Tallwood Court. Town officials say the basement protrudes too far above ground, and as a result, the two-story house is essentially a three-story house that exceeds the maximum size allowed.

The Kings are also appealing to the town, and asking for a temporary residency permit, so they can move in while the dispute is being resolved.

They had already sold their old home when they received notice from the town about the problem, and they told the Almanac that, as a result, their family is essentially homeless while their house sits vacant.