Cover story: Digging in -- Residents' penchant for underground construction has Atherton officials up to their necks in controversy | September 20, 2006 | Almanac | Almanac Online |


Cover Story - September 20, 2006

Cover story: Digging in -- Residents' penchant for underground construction has Atherton officials up to their necks in controversy

by Andrea Gemmet

Atherton has long had a reputation as being the best place on the Midpeninsula to build your dream house. If you can afford the price, your custom-built mansion can go up with a minimum of interference from town officials or neighbors.

The town has no design review process that questions your choice of roof tiles or taste in architecture, there are few restrictions, and there's a can-do, builder-friendly attitude in the Atherton Building Department.

At least, that was its reputation. Things have been changing, due in a large part to Athertonians' enormous enthusiasm for delving underground, and the consequences of all that excavation.

Basements, once almost unheard of in California, are de rigueur and growing to vast proportions in Atherton. And they are not just for storage, but often include game rooms, home theaters, wine cellars, and living quarters.

If you don't want your four-car garage cutting into the maximum size allowed for your house, put the garage underground, where the size isn't counted against your total.

Does a 1,500-square-foot guesthouse seem cramped? Put a full basement under it.

And if you need more living space than you can fit into a few thousand square feet, design a basement that spans the length and breadth of your entire lot, as one property owner did.

In fact, it was this massive basement plan that led Atherton's City Council to enact emergency restrictions on basements in May 2001.

Since then, as construction-related complaints have increased, so has the number of regulations.

This inexorable change in Atherton's handling of building projects has set the stage for a battle over the future of the Atherton Building Department — and the town.

On one side are residents, contractors and developers who see an erosion of property rights and an onslaught of frustrating regulations and expensive fees that will lead to an eventual decline in Atherton's property values.

On the other side are residents frustrated with intensive, intrusive, years-long construction projects, residents who see a loss of Atherton's character and harmful impacts to neighboring properties and town infrastructure caused by underground construction.

Getting involved

"When a city can tell a property owner what they cannot build, something is really, really, really wrong with that city," said Atherton resident Carol Flaherty.

Her perspective is emblematic of that of a group of increasingly vocal residents: they've never been particularly involved in town affairs, but now that Atherton has more restrictions on construction and an expensive surcharge on excavation, they are taking notice. And they don't like what they see.

Add to that the current turmoil surrounding the Atherton Building Department — the sudden retirement of longtime department head Mike Hood, a still-secret investigation into wrongdoing by staff, and an ongoing audit detailing uncharged fees, unkempt records and unusually lax procedures.

"I've lived in Atherton for 22 years, and I've never attended a council meeting, but next week I will," Ms. Flaherty declared at the September 13 Atherton General Plan Committee meeting, saying it's because "the situation with the Building Department has so interested me and so inflamed me."

Make it harder for people to build homes, and Atherton real estate will become less desirable, she contends. "What about the word that gets out? We'll become like Portola Valley, like Woodside, like Los Altos Hills, where people don't even want to buy (property to build on)."

Ms. Flaherty is part of a group calling itself Atherton Residents for Responsible Governance that recently drew about 60 people to its meeting. Members are challenging the town's year-old excavation fee, and Atherton officials' handling of the upheaval in the building department.

"In Hillsborough and Woodside, it's very adversarial between the building department and residents," said Joe Comartin, a builder and Atherton resident who is one of the group's organizers. "In the past several months I've seen Atherton slip-sliding that way."

City Manager Jim Robinson told the Almanac that service in the building department has not declined and that turn-around times for plan checks and inspections are shorter than they were five years ago.

Councilwoman Kathy McKeithen said she objects to the misinformation being spread by the group.

"People are saying it's taking a year for plans to get approved, or eight days for an inspection," she said. "Turnaround times and morale have never been better (in the Building Department)."

Ms. McKeithen has been singled out by the group for instigating the investigation of the building department. One of its organizers, Atherton resident Jillian Manus Salzman, said she is pursuing a recall campaign to remove Ms. McKeithen from office.

Property rights

While it's understandably frustrating for people who have paid huge sums of money for Atherton property, no building project is free of regulations, said Councilman Alan Carlson.

"You can't do anything you want on your property," he said matter-of-factly.

The need for a community to balance the interests of a property owner with the interests of neighbors and the surrounding neighborhood is long-established, he said.

"Is Atherton builder friendly? If you keep within the uniform building codes and setbacks, you can build anything you want," he said. "Things move through Atherton with much more ease (than in other communities)."

At the same time, the town has tightened up regulations in recent years, he said, pointing to restrictions on construction hours, excessive noise, and construction vehicle parking, all of which are meant to lessen the impact of construction on neighbors.

"Yes, you can build anything, but the way you go about building it has to be reasonable," Mr. Carlson said.

Basement construction is an easy way to get extra living space without going over Atherton's house size restrictions. Buildings can cover no more than 18 percent of a lot, which translates to a maximum house size of 7,800 square feet on a one-acre lot.

The ability to build basements under a pool house or guest cottage is another controversial topic. Atherton used to allow it, but for the past five years, basements have been restricted to the area below the footprint of the main house because accessory structures can be built at the edge of a lot.

"People shouldn't have to suffer having a basement built 10 feet from the property line," Mr. Carlson said.

However, some town officials, including members of the General Plan Committee, would rather see the restriction on accessory structure basements lifted, so the issue is likely to join the ongoing debate on Atherton's building regulations.

In recent years, the council chambers were filled with upset residents demanding that something be done to limit giant basement projects, Mr. Carlson said. People said that putting basements too close to property lines would kill heritage trees on neighboring properties and leave too little space for landscape screening. Residents of the hilly west-of-Alameda area of Atherton have complained that oversized houses and huge basements are causing major drainage problems for downhill neighbors.

However, that segment of Atherton was not at the September 13 General Plan meeting. Facing an incredulous group of homeowners and developers, Mr. Carlson defended the City Council's reasons for putting limits on basement construction. He suggested counting basement garages' square footage when calculating the total building size allowed, and requiring conditional use permits before they can be built.

The use permits would trigger a Planning Commission review and help prevent what some residents see as a problem: ugly, ski ramp-like driveways leading to underground garages that can be seen from the street.

"As much as I don't like design review, I think a conditional use permit ought to be required," Mr. Carlson said.

While his proposals didn't find much support among General Plan Committee members, the committee is set to consider the use-permit question at a future meeting.

Eschew review?

Atherton has no design review body, such as Woodside's Architectural and Site Review Board or Portola Valley's Architectural and Site Control Commission. Architectural review can add months to the approval process for building plans, one reason why plan checks take much less time in Atherton, said Michael Cully, Atherton's acting building official.

Current turnaround time is four to six weeks for plan checks, said City Manager Robinson. The department processes plans for 40 or more projects a year, both for remodels and complete rebuilds, he said.

However, there are indications that some Atherton officials are at least entertaining the idea that, in some cases, design review might not be such a bad idea.

When Audit Committee chair Mike Barsotti asked him if Atherton should have a design review process, Mr. Cully replied, "Possibly, for some of the larger projects."

Town officials are hashing out a plan to overhaul how the building department takes care of business, in an effort to prevent future problems. A comprehensive plan is due before the City Council at the October 18 meeting.

"(Design review) would be a change in the history of Atherton, in its philosophy," said Mr. Robinson. "From a community standpoint, I don't think it's been an issue."

Just what the new and improved building department will look like, and how it will differ from the status quo is a big issue. The department takes in about $2 million a year in various fees and charges, and oversees the roughly 100 current construction projects going on in town.

Members of Atherton Residents for Responsible Governance said they want to have a say in the selection of the next permanent building official.

"I've been an architect for 25 years," said John Stewart. "The Building Department is the best one on the Peninsula, and I'd like to see it stay that way."

Mr. Barsotti had a slightly different perspective on the situation.

"You're going to have tensions between builders and residents and building (department) staff," he said. "If you don't, you have a building department that's a pushover."

Ms. McKeithen said that the town could still provide a high level of service while treating all builders fairly and equitably, and upholding town rules. The building department probe has shown that wasn't always the case in the past, she said.


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