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Atherton: King family drops lawsuit, will keep Tallwood house, for a price
Original post made
on Oct 24, 2007
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.
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posted Wednesday, October 24, 2007, 12:00 AM
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Posted by Tim Wulff
a resident of Atherton: other
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.