Item No. 5
Town of Atherton
CITY COUNCIL STAFF REPORT – CONSENT AGENDA
TO: HONORABLE MAYOR AND CITY COUNCIL
FROM: GEORGE RODERICKS, CITY MANAGER
DATE: JANUARY 15, 2025
SUBJECT: APPROVAL OF REFUND REQUEST – 71 SELBY LANE
RECOMMENDATION
It is recommended that the Council authorize a refund of 50% of the Variance application fee.
BACKGROUND
The property owner at 71 Selby Lane is requesting consideration of a refund for a Variance Permit approval that resulted from errors in the process. The City Council is the only body that can authorize a refund of permit fees paid.
Below is a history of the application and process.
A full-site development for the main residence was initially reviewed by the Planning Department in January 2022 and approved on February 22, 2022. The associated building permit for the main residence was then approved on August 17, 2022 by the Building Department. On that permit, there was a notation for a “proposed sports court” in the rear yard and setbacks, 10- feet from the side and rear property lines.
The image below shows the approved plan set (Attachment 4, Sheet A-1 – Approved Building Permit Set (BP 22-00438)), including the proposed sports court as it was presented during this stage of review. While labeled “proposed” on the approved plan set, the sports court was not included in the application and scope of work for the main residence and details related to the court’s materials and design were not provided. Therefore, the sports court was not issued an associated building permit number.
Fee Waiver Request – 71 Selby Lane
JANUARY 15, 2025
On August 17, 2022 the Applicant submitted a grading and drainage permit application. This permit was reviewed by the Building and Public Works Department and approved in December 2022. During this review period, records indicate that the Applicant communicated with the Town Arborist who recommended moving the sports court to a new location to avoid encroaching into a Tree Protection Zone and requiring an exception. The applicant applied this recommendation; however, there is no record of the Planning Department reviewing the re-location of the court; nor had the “separate permit” for the sports court been submitted. The scope of work reviewed at this time was strictly related to grading and drainage. The sports court was reviewed for its related surface treatments, not for compliance with land use regulations.
On January 22, 2024, the Building Department reviewed and approved a landscape screening plan at the subject site. The Applicant has described this plan as a “Site Improvement Plan” although application materials support that this project is a landscape screening plan. Landscape screening plans are not reviewed by the Planning Department and are issued by the Building Department. A second figure below provides an enlarged image of the approved landscape screening plan set, including the proposed sports court at this stage. In this plan set, the sports court is more clearly defined as a “permeable concrete sports court” approximately 35-feet 7.5-inches long by 60-feet 8-inches wide and located within the 10-foot side setback.
While some details about the sports court are provided within this plan set – image below - (Sheet A-1, Approved Building Permit Set (BP 24-00040)), the sports court was not described in the scope of work for the landscape screening plan/application and specific details related to the court’s materials, design, and location were not provided. Therefore, the sports court was not issued an associated building permit number. Approval of the landscape screening plan did not grant approval for the applicant to proceed with the construction of a new accessory structure, particularly one within the setback requirements associated with the lot. However, upon receiving the landscape screening permit, the homeowner proceeded with construction of the landscape screening materials as well as the sports court at the location shown.
Fee Waiver Request – 71 Selby Lane
JANUARY 15, 2025
During final inspections for the main residence, Town Staff identified concerns regarding the location of the sports court in the required setback area and directed the homeowner to contact the Planning Department. As a result of this issue being identified during a final inspection, finalizing the building permit originally issued for the main residence was put on hold pending remedy of the sport court issue. A building permit for the pre-constructed sports court was formally applied for on May 21, 2024, after the final inspection occurred. This building permit was not immediately issued. Permits were only allowed to proceed following approvals for a Variance from the Planning Commission for the sports court.
The Commission approved the Variance for the sports court in September 2024 but suggested that the applicant request a waiver of fees paid for the Variance. The argument presented by the applicant is that the sports court was clearly noted on the plans. The Town Arborist suggested that it be moved from the tree protection zone, but had they known that the selected new location would trigger a variance application they would have relocated it to be compliant, instead of triggering the Variance. Only after it had been constructed was it caught by the Town.
ANALYSIS
Linked under Attachments is the online packet for the Commission’s meeting in September 2024.
The packet includes letters from neighbors that expressed support (Item 4C). The applicant paid $10,680 for the Variance permit application plus any associated reproduction costs for plans and other details.
Fee Waiver Request – 71 Selby Lane
JANUARY 15, 2025
The Planning Commission asserted that there were inconsistencies in the plans as well as inconsistencies in the Town’s review of the plans. It was suggested that the reviewing departments should have collaborated more during the plan review process to catch the discrepancies on the plans. Upon after action review, staff found that while there was collaboration on the application, each department is responsible for reviewing the plan submittals within their areas of expertise and they overlooked areas that were not within their focus. To facilitate review by all departments whenever there are plan changes, plans can be rerouted back through each department whenever the project applicant submits revised copies. However, this creates additional cost and delay for project applicants. There is no single individual that is simultaneously trained as an engineer, building inspector, building official, arborist and planner. Each department has trained and specialized expertise. While greater coordination is necessary, it must be done in a way that ensures that projects continue timely forward motion. Staff is looking at ways to streamline this process and improve it.
Following the suggestion received from the Planning Commission, the applicant is pursuing a refund request. Only the City Council can authorize a refund of permit fees paid. While I concur that there were inconsistencies on both sides and there were field/construction assumptions made by the applicant, I would caution against a full refund. I advised the applicant that I would place the item on the Council Consent Agenda in January with a recommendation for consideration by the Council.
Total fees paid by the applicant in relation to the Sports Court were $12,728.37. Of this totally, there were Building Permit Fees of $1,653.21 (including a $599.31 Stop Work Fee) and $11,076.16 for a Variance Permit. While the applicant did have the option to move the Sports Court (after its construction) rather than pursue a Variance application, if the proposed location had been reviewed for approval prior to construction the applicant states that they would have redesigned it to not require a Variance.
Staff recommendation is consideration of a 50% refund of the Variance Permit application fee - $10,680. A refund of $5,340.
In 2022, costs for a Variance application were $2,920. After the Town’s cost allocation study, in 2024, fees were found to be extremely low. Direct staff time costs connected to a Variance application were found to be $7,138 and indirect costs were $3,290. Costs were increased by the CPI on July 1, 2024. The Council opted not to subsidize the costs of a Variance as Variances creating non-conforming development were discouraged.
FISCAL IMPACT
The total fees paid by the applicant in relation to the Sports Court were Building Permit Fees of $1,653.21 and Planning Variance Permit fees of $11,075.16 (total $12,728.37). Of this total, $11,668.85 represent staff time and processing costs related to the application. A refund of $5,340 subsidizes 45% of those costs.
GOAL ALIGNMENT
This Report and its contents are in alignment with the following Council Policy Goals:
Fee Waiver Request – 71 Selby Lane
JANUARY 15, 2025
• Goal Area A – Maintain Fiscal Responsibility
POLICY FOCUS
Policy focus is on any precedent set by refunding fees where there are processing errors for permitting non-conforming uses.
PUBLIC NOTICE
Public notification was achieved by posting the agenda, with this agenda item being listed, at least 72 hours prior to the meeting in print and electronically. Information about the project is also disseminated via the Town’s electronic News Flash and Atherton Online. There are approximately 1,200 subscribers to the Town’s electronic News Flash publications. Subscribers include residents as well as stakeholders –to include, but be not limited to, media outlets, school districts, Menlo Park Fire Protection District, service provides (water, power, and sewer), and regional elected officials.
COMMISSION/COMMITTEE FEEDBACK/REFERRAL
This item has not been before a Town Committee or Commission
ATTACHMENTS
1. LINK TO: Item C – Planning Commission Staff Report and Approval of Variance Request – 71 Selby – September 25, 2024