JENNIFER ACHESON
Attorney at Law | Mediator | Early Neutral Evaluator
1 July 14, 2025
VIA EMAIL
Rick DeGolia
[email protected]
[email protected]
Diana Hawkins-Manuelian
[email protected]
[email protected]
Stacy Holland
[email protected]
[email protected]
Elizabeth Lewis
[email protected]
[email protected]
Bill Widmer
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[email protected]
Copied: Michael Templeton, Appellant;
Eric Lane, Planning Commission Chair;
Paul Tonelli, Planning Commissioner;
Sandy Levison, Planning Commissioner;
Bob Polito, Planning Commissioner;
Jerome Leugers, Planning Commissioner
[email protected]
Brittany Bendix, Consulting Town Planner
[email protected]
Tom Ford, Senior Planner
[email protected]
Mona E. Ebrahimi, City Attorney
[email protected]
Re: Town of Atherton City Council JULY 16, 2025 REGULAR MEETING 6:00 PM PUBLIC HEARING AGENDA ITEM 8
Council Chambers 80 Fair Oaks Lane Atherton, CA 94027
Dear Honorable Atherton City Council Members:
I write to emphatically oppose the recommendation of Brittany Bendix, Consulting Town Planner, under Agenda Item 8, to deny the APPEAL of the PLANNING COMMISSION
DECISION TO APPROVE A REQUEST FOR FRONT AND REAR SETBACK VARIANCES (VAR24003) AND TREE PROTECTION ZONE EXCEPTIONS (PTPZ2500002) TO ONSTRUCT
A NEW SINGLE-FAMILY DWELLING WITH AN ACCESSORY DWELLING UNIT (ADU) AT 94 PALMER LANE (APN 060163290) (“Planning Commission Decision”).
I am a 34 year long, active resident of Palmer Lane and former 10 year-long Planning Commissioner. I have followed the affordable housing mandate, i.e., Senate Bill (SB) 9 (Chapter 162, Statutes of 2021). As an active resident, I am aware that Atherton has been very hard at work in endeavoring to comply with SB 9. I also fully recognize that Government Code Section 66411.7
JENNIFER ACHESON
Attorney at Law | Mediator | Early Neutral Evaluator
2 (SB 9), and Chapter 17.53 of the Atherton Municipal Code purportedly permit the Town to approve the Planning Commission’s decision of May 28, 2025 (Commission Decision) to grant these variances. 1
I wish to offer my own perspective on, and opposition to, the Commission Decision. In short, (1) the approval of subject Front and Rear Setback Variances (VAR24003) is not based on a careful and thoughtful analysis of the well-established four (4) findings required by State law permitting the grant of a variance; and (2) the Tree Protection Zone Exceptions (PTPZ2500002) are not in keeping or spirit with our General Plan. The Commission’s Decision seems to rotely rubber stamp the recommendations by the Town Planner, but more importantly does not in fact comply with California law.
The four (4) requirements and findings endorsed by the Commission in support of the Variances are:
“1. There are special circumstances applicable to the property, including size, shape, topography, location or surroundings, where the strict application of the Zoning Title deprives such property of privileges enjoyed by other property owners in the vicinity and under identical land use zoning district classification. (Emphasis added.)
Commission Review: Finding met.
“The 0.32-acre subject property is uniquely small, even prior to its 2023 lot split, compared to other R-1A lots that must have a minimum size of 1-acre. Additionally, the property is situated at the edge of the Town’s boundaries, next to properties that range in lot size from 0.12- to 0.77-acres. The strict application of 60-foot front and rear yard setbacks deprives the property owner of reasonable development of a residence, otherwise consistent with R-1A development standards.” (Emphasis added.) Appellant is legally correct. “The need for setback variances is a problem of the applicant’s own making. By choosing to split an already small parcel under SB 9, the applicant created the limitations themselves and now seeks exceptions to zoning rules in order to maximize financial gain through the construction and potential sale of a much larger residence than the zoning would otherwise allow.” (Meeting Agenda Packet July 16, 2025, Attachment 1 at page 96.) Self-created hardships may not be considered a special circumstance. A self-created hardship results from actions taken by present or recent owner of the property which create the very 1 The Notice of the Public Hearing was delivered to my house shortly before the May 28, 2025 Planning Commission Regular Meeting. I was out of town in New York through July 5, and thus unable to attend in person or remotely. I also apologize for not getting this to the Council sooner but for personal health reasons, I was unable to do so.
JENNIFER ACHESON
Attorney at Law | Mediator | Early Neutral Evaluator
3 difficulties or hardships claimed as the basis for the variance. California courts and planning authorities hold that self-created hardships cannot be considered as "special circumstances" or "unnecessary hardship" that would justify granting a zoning variance. To grant a variance based on a self-created hardship would be seen as excusing or rewarding a lack of reasonable diligence on the part of the property owner. 2
Here, the sole special circumstances, according to the Planner, is the small, nonconforming size of the newly created lot at 94 Palmer Lane as a result of the owner’s own planned lot split in 2022 when the SB 9 application was made. The owner of 98/94 Palmer Lane elected to create a
0.32-acre flag lot within the R-1A zoning district.
It is well established, well recognized law that if an owner sells a portion of a conforming lot, making the remaining portion non-conforming, the resulting limitations on the non-conforming lot are considered self-created and cannot be used to justify a variance for building on that lot. That is exactly the case here. When the original owner of 98 Palmer Lane, Dr. Linda Fenney, sold the parcel (which included the now newly created non-conforming lot 94 Palmer Lane) in 2022 to Andrea Magozo, former property owner of 98 Palmer Lane, now current property owner of 94 Palmer Lane, he was on actual and constructive notice of 98 Palmer Lane’s original lot size of 0.55 acres and that it was already approximately half the size of the minimum 1-acre lot size normally required and characteristic of the R-1A zoning.
The Planner’s conclusion that the property is situated at the edge of the Town’s boundaries, next to smaller properties at the border with the unincorporated County is and should be irrelevant to the required findings. To the best of my knowledge, Atherton does not look to the size of lots at shared borders or outside the Town in implementing development within the Town.
The Town Planner concluded,
As noted in the Variance findings, the subject lot is unique regardless of the SB 9 lot split in that the original lot size of 0.55 acres was already approximately half the size of the minimum 1-acre lot size required and characteristic of the R-1A zoning. (Meeting Agenda Packet July 16, 2025, page 96.)
The Town Planner’s further justification, that the original lot size of 0.55 was already “half the size of the minimum 1-acre lot size acres required and characteristic of R-1A zoning,” is meaningless since none of the surrounding properties in “Barney Park,” including mine, was ever the minimum 1-acre lot size, to my knowledge. As such, the first finding is not supported by fact or law.
2 In consideration of the Council’s time, I will not provide legal citations here, but the City Attorney should be familiar with them, and in any case, I can do so on request.
JENNIFER ACHESON
Attorney at Law | Mediator | Early Neutral Evaluator
4 “2. Granting the Variance does not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zone in which such property is situated.
Commission Review: Finding met.”
The Town Planner concluded,
“The development pattern on Palmer Lane is inherently inconsistent with regard to lot size and applicable development standards given the disparity between the R-1A standards, age of lots (circa 1922) and transition between jurisdictional controls. The applicant is requesting a variance to apply setback standards that are consistent with an existing R-1A exception provision that would apply to lots of a similar characteristic. Therefore, while a variance is required, its granting does not convey special privileges. (Meeting Agenda Packet July 16, 2025, Attachment 1, pages 99-100.)
The variances amount just that, i.e., to granting a special privilege, otherwise known as “spot zoning” since, the “development pattern” on Palmer Lane is no more inconsistent with the lot sizes and development standards than properties on the other adjacent streets, e.g., Holbrook Lane, San Benito, Heritage Court. It is no more inconsistent of other Atherton neighborhoods that were created circa 1922. The finding that these variances do not amount to a grant of special privileges, inconsistent with the limitations upon other properties in the vicinity and zone, is factually incorrect since none of the properties, to my knowledge, in the vicinity have been subdivided into 0.32-acre flag lot. Finding 2 is without merit.
“3. Granting the Variance will not adversely affect the interest of the public or the interest of the residents and property owners in the vicinity of the premise in question.
Commission Review: Finding met.”
The Town Planner concluded,
The variance request allows a centralized siting of the development. Alternatives to the proposal that are supported through state law and circumvent local standards would allow two independent residences, up to 800 square-feet with setbacks of four-feet and ancillary structures, such as detached garages of ten-feet. Therefore, although the project requires a variance from the R-1A standards for front and rear yard setbacks, it is more compliant with local regulations than the state-mandated alternatives. Additionally, beyond the request for front and rear yard variances, the proposal complies with all other R-1A standards. (Meeting Agenda Packet July 16, 2025, Attachment 1, page100.)
JENNIFER ACHESON
Attorney at Law | Mediator | Early Neutral Evaluator
5 This conclusion does not stand up to scrutiny. The finding that “a centralized siting of the development,” will adversely affect not only the residents of Palmer Lane but also the residents of Atherton in general by creating a precedent where a purchaser/developer may obtain a lot split and then justify any resulting non-conforming lot to seek and obtain variances anywhere in Atherton. It goes without saying that the finding also clearly and adversely affects the interests of the residents and property owners in the vicinity, inevitably caused by much denser development, loss of landscape screening and trees, greater traffic congestion, and so on. “4. The granting of the Variance is consistent with the objectives of the General Plan and the Zoning Code.
Commission Review: Finding met.”
The Town Planner concluded,
The stated purpose of the AMC Title 17: Zoning is to implement the General Plan. The regulations within Title 17 provide directions on the location, size, and height of residential structures within the Town’s private properties. As described within this report the proposed development on this property complies with all R-1A standards, with the exception of the front and rear yard setbacks. Additionally, the development is more compliant with local setback standards than are otherwise required by state law. (Meeting Agenda Packet July 16, 2025, Attachment 1, page100.)
The variances are at odds with the General Plan’s important policies and guidelines for developing and preserving the quality of life in Atherton. (https://www.ci.atherton.ca.us/208/GeneralPlan.) The General Plan is our “Constitution” for all future development in the Town. The Town is unique in that it contains primarily lower density residential uses. The majority of the community over the years have shown interest in preserving this character through the requirement of larger lots and preservation of open space and heritage trees. The Land Use Goal No.1 is: To preserve the Town’s character as a scenic, semi-rural, thickly-wooded residential area with abundant open space.
The Variances do not implement this Land Use Goal.
I am aware that Atherton is in the process of evaluating the formation of a City Charter, and that City Manager Rodericks recently presented a report which the Council considered and discussed, among others, issues related to benefits of becoming a charter city, obligations around affordable housing, importance of home rule and local control. (Meeting Agenda Packet July 16, 2025, Town Council Minutes of June 18, 2025 at page 37.) I support this process and am sure other residents will too. It is important to keep in mind that in the meantime, granting these Variances will cause irreparable harm to the residents of Palmer Lane, that will never be undone.
JENNIFER ACHESON
Attorney at Law | Mediator | Early Neutral Evaluator
6 In conclusion, I respectfully ask that the Council to grant the Appeal so that the Applicant can work with the Planning Commission and surrounding neighbors to consider other possibilities 3 that do not require the variance setbacks.
Sincerely yours,
3 For example, has any consideration been given to situating the front entrance of the to be built primary residence at 94 Palmer Lane facing Palmer Lane?