Item No. 8
Town of Atherton
CITY COUNCIL STAFF REPORT – PUBLIC HEARINGS
TO: HONORABLE MAYOR AND CITY COUNCIL
GEORGE RODERICKS, CITY MANAGER
FROM: BRITTANY BENDIX, CONSULTING TOWN PLANNER
DATE: JULY 16, 2025
SUBJECT: APPEAL OF A PLANNING COMMISSION DECISION TO APPROVE
A REQUEST FOR FRONT AND REAR SETBACK VARIANCES
(VAR24-003) AND TREE PROTECTION ZONE EXCEPTIONS
(PTPZ25-00002) TO CONSTRUCT A NEW SINGLE-FAMILY
DWELLING WITH AN ACCESSORY DWELLING UNIT (ADU) AT 94
PALMER LANE (APN 060-163-290).
RECOMMENDATION
It is recommended that the City Council conduct the public hearing, deny the appeal, and uphold the decision of the Planning Commission to approve the Variance and Tree Protection Zone Exception requests at 94 Palmer Lane to allow construction of a single-family dwelling within portions of the required front and rear setbacks and construction of a gravel driveway within portions of the tree protection zone, based on the findings outlined below.
BACKGROUND
The subject property is located at 94 Palmer Lane (APN 060-163-290) and is a 0.32-acre flag lot within the R-1A zoning district. The property is located along the northeast edge of the Town, situated on Palmer Lane, between Middlefield Road and Fair Oaks Avenue. In 2023, the subject property was created through the approval of an urban lot split, pursuant to Senate Bill (SB) 9 and Atherton Municipal Code (AMC) Section 17.53. The original parcel included the front property, 98 Palmer Lane, and was approximately 0.55 acres, established in 1922.
Immediately east of the subject site is the community of North Fair Oaks, under the jurisdiction of San Mateo County. Neighboring properties along Palmer Lane are developed with single-family dwellings and range in lot size from 0.12- to 0.77-acres, diminishing in size as lots approach Fair Oaks Avenue. To the rear of the property, lots fronting onto Holbrook Lane similarly become smaller beyond the town’s boundary. All of the properties within this area and under Atherton’s jurisdiction are zoned R-1A, which requires a minimum lot size of one acre. The inconsistency between the zoning and the existing Atherton lots date to a 1922 subdivision (Barney Park) that predates the Town of Atherton’s incorporation and adoption of its zoning code. See Figure 1 for a map identifying the subject and neighboring properties and the Town’s boundary.
July 16, 2025, City Council Staff Report
94 Palmer Lane – Appeal of Variance and Tree Protection Zone Exception
Figure 1: Locator Map, Parcel Map (Google Maps, 2023)
Subsequent to the property’s completion of the lot split in 2023, the property owner is now seeking to develop the lot with a single-family dwelling and accessory dwelling unit (ADU). The state’s urban lot split law requires the Town to approve development under certain criteria that accommodate two dwelling units up to 800 square-feet each and require a minimum four-foot setback. However, the Town provides an option through AMC Section 17.53 for property owners to develop beyond the 800 square foot limits, if the project conforms to the development standards of the underlying zoning district.
At this location, the required setbacks would be determined by the R-1A development standards. The applicant is seeking a variance from the R-1A standards for the front and rear yard requirements to accommodate a primary residence with an attached ADU. See Figure 2 for a site layout of the lot’s developable area and the location of the trees. The buildable area resulting from an application of R1A setbacks results in a buildable area of approximately 185 square feet.
In addition to the variance request, the proposed driveway that accesses the detached garage requires an exception from the Town’s tree protection zone (TPZ) requirements for six heritage trees, subject to approval by the Planning Commission. These exceptions accommodate a driveway, as shown in Figure 3.
A reduced plan set is provided in Attachment 1.
July 16, 2025, City Council Staff Report
94 Palmer Lane – Appeal of Variance and Tree Protection Zone Exception
Figure 2: Developable Area Comparison and Tree Locations (Attachment 1, Sheet A-2) Figure 3: Developable Area Comparison and Tree Locations (Attachment 1, Sheet A-3) July 16, 2025, City Council Staff Report
94 Palmer Lane – Appeal of Variance and Tree Protection Zone Exception
On May 28, 2025 the Planning Commission voted unanimously to approve the Variance and Tree Protection Zone Exception requests. The May 28, 2025 Planning Commission staff report and attachments are included as Attachment 1 and draft meeting minutes as Attachment 2. Link to video recording of the Planning Commission meeting is included as Attachment 3. No public comment was received prior to or during the Planning Commission meeting.
Following the decision of the Planning Commission, the appellant submitted a letter (Attachment 4) on June 9, 2025 to the City Council requesting that it overturn the decision of the Planning Commission approving the Variance and Tree Protection Zone Exception requests.
ANALYSIS
Appeal Hearings and Actions by the City Council
AMC Section 17.06.100 provides the framework of the appeals of all planning and zoning matters.
This appeal is considered a new hearing and subject to the public notification process consistent with the prior Planning Commission meeting. The City Council may reverse, modify, or affirm the decision in whole or in part. The Council may refer the item back to the Planning Commission, and may also modify, delete, or add conditions as it deems necessary. In taking its action, the Council must state the basis for its action. The action of the City Council is final on the date of the decision and may not be further appealed. A person may seek judicial review of a final decision of the Town in accordance with applicable sections of the California Government Code or Code of Civil Procedure.
Appellant’s Letter of Appeal
The appellant, Michael Templeton, has submitted a letter of appeal providing background as an adjacent property owner and basis for the appeal of the Planning Commission’s decision to approve the application (Attachment 4). The appellant’s letter of appeal describes ten (10) arguments as to why he believes the Variance and Tree Protection Zone Exception request should July 16, 2025, City Council Staff Report
94 Palmer Lane – Appeal of Variance and Tree Protection Zone Exception
not be granted. These points are described by the appellant in greater detail within Attachment 4.
Staff has provided a summary of each of these ten (10) points and a staff response to each point below.
1. Privacy Intrusion
The appellant argues that the proposed two-story residence would cause a significant invasion of privacy. With second-story windows positioned 26 feet from his property line, the appellant’s backyard could be exposed to direct views from above.
Staff Response: The 26-foot side setback provided is fully compliant with the R-1A Zoning District and is consistent with the development pattern in the neighborhood. Furthermore, under SB 9, the applicant is entitled to develop two residences on the subject lot with a minimum side setback of only four feet. SB 9 does not limit the height of these structures to a single-story, so a compliant structure could potentially result in far greater impacts to privacy. It is the position of staff as well as the Planning Commission that the approved design results in a more sensitively designed development than what is possible were the applicant to bypass local regulations and utilize the remedies allowed by SB 9 instead.
2. Excessive Visual Impact
The appellant contends that the scale and massing of the proposed structure are disproportionately large for the lot and the neighborhood. Including the two-story building, a detached garage, a walkway, and roof eaves, the visual presence along the shared property line would create a dominating and intrusive visual impact from his property.
Staff Response: The length of the main residence is approximately 51.5 feet, and the detached garage is approximately 13.5 feet. There is a required 8-foot gap between the two structures. The provided 26-foot side setback is compliant with the requirements of the R-1A zoning district and is significantly more than the 4-foot setback allowed under SB 9. Furthermore, the existing stand of oaks trees along the property line provide substantial visual screening.
3. Inadequate and Imbalanced Screening
The proposed screening of the new residence is largely dependent on oak trees located on the appellant’s property. Because the applicant plans to use their side yard as a driveway, they offer little to no visual buffering of their own, leaving the burden of privacy mitigation entirely on the appellant, who would need to install and maintain understory vegetation at his own expense.
Staff Response: The facts that the trees are existing and are primarily located on the appellant’s property do not affect the trees’ effectiveness as visual screening elements. Further, once the applicant submits a Building Permit they are required to include a landscaping plan consistent with AMC Chapter 17.50 that identifies any existing or proposed landscape screening.
4. Noise and Door Orientation
July 16, 2025, City Council Staff Report
94 Palmer Lane – Appeal of Variance and Tree Protection Zone Exception
The appellant raises concerns about the orientation of the main entrance of the new structure, which faces directly toward his backyard. He cites previous problems with a neighboring home where a similar configuration resulted in frequent, disruptive door-slamming.
Staff Response: The main entrance is fully compliant with the development standards for the R1A Zoning District, including a 26-foot side setback from the shared property line. Chapter 8.16 of the AMC provides regulations for noise control to maintain the peace, health, and safety of the Town’s residents.
5. Anticipated Construction Disturbance
Citing his experience during the lengthy renovation of 98 Palmer Lane (formerly part of the same parcel) the appellant anticipates that construction at 94 Palmer Lane will again result in ongoing noise and congestion. He previously endured years of construction traffic, work activity adjacent to his property, and materials being moved through driveways bordering his yard, all of which he expects to repeat.
Staff Response: While construction noise can be bothersome, construction of new structures is a necessary and unavoidable component of any community. AMC Section 8.16.050 and Chapter
15.40 provide regulations for construction to mitigate and minimize noise and other impacts. The Town provides enforcement mechanisms to remedy violations of these ordinances should they occur.
6. Self-Created Hardship and Financial Motivation
The appellant asserts that the claimed 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.
Staff Response: Under SB 9, the Town cannot deny an urban lot split which meets the established criteria. The property owner has a right under state law to subdivide the property in this way.
Furthermore, SB 9 requires that the Town allow construction of up to two residences on the newly created lot within four feet of the property line. 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. The complex patchwork of state and local laws can sometimes result in difficult development sites that cannot be fairly attributed to the applicant. A remedy for applicants in these situations, as asserted by state law, is the variance process.
7. Incompatibility with Atherton’s Character
July 16, 2025, City Council Staff Report
94 Palmer Lane – Appeal of Variance and Tree Protection Zone Exception
The appellant argues that this type of small-lot, high-density development is out of step with Atherton’s traditional values of space, privacy, and low-intensity residential design. The appellant views the SB 9 split and resulting construction plans as inappropriate for the neighborhood and potentially damaging to the town’s character and community expectations.
Staff Response: The lot size and density of the subject lot result from a combination of the site’s history and current state laws. The original lot, measuring approximately 0.55 acres would not be allowed today in the R-1A zoning district, but the parcel was created in 1922 and predates both the incorporation of the Town and the introduction of the Town’s first zoning ordinance. A century later, SB 9 became effective on January 1, 2022, which overrides local authority mandating the allowance of urban lot splits such as the one which created the subject property. Regardless of any impact to local character, the lot size and density are legal and the Town cannot prevent this level of density from occurring on the site.
8. Environmental and Aesthetic Degradation
The appellant references recent actions by the owner of 98 Palmer Lane (the front parcel, which is not part of the proposal) that have resulted in loss of trees and screening, with negative consequences for neighborhood aesthetics.
Staff Response: The property at 98 Palmer Lane is not part of the proposal and actions taken by its owner or tenants are outside the scope of the Council’s review of this appeal.
9. Excessive Lot Coverage
The appellant believes the proposed development covers far too much of the available land. The appellant suggests design alternatives that could reduce the structure’s footprint and lessen its overall impact.
Staff Response: The R-1A Zoning District does not set a lot coverage maximum. However, this zoning district does provide a maximum floor area ratio, which for the subject property is calculated at 3,007 square feet. The proposed structure complies with this requirement.
10. Lack of Proper Notice and Neighbor Outreach
The appellant states that neither he nor his neighbors received timely or appropriate notification of the project or its requested variances.
Staff Response: Public notification was achieved by posting the agenda for the May 28, 2025 Planning Commission hearing, with this agenda item being listed, at least 72 hours prior to the meeting in print and electronically. Legal advertisement of this hearing was published in The Almanac newspaper. Additionally, a mailed notice to owners and occupants within 500 feet of the subject lot was mailed 12 days prior to the hearing date. The signed Affidavit of Mailing Notices is included as Attachment 5.
Applicant’s Response to Appeal
July 16, 2025, City Council Staff Report
94 Palmer Lane – Appeal of Variance and Tree Protection Zone Exception
The applicant, Kelly Johnson of Zak Johnson Architects, subsequently submitted a rebuttal to the letter of appeal (Attachment 6). The following summary has been prepared by staff.
1. Request to Uphold Planning Commission’s Approval
The applicant respectfully asks the Town Council to deny the appeal and affirm the Planning Commission’s unanimous 5–0 approval of the requested front and rear setback variances. They emphasize that Planning Staff also recommends approval and assert that the project meets all required findings under both local and state law.
2. Unique Design Constraints Due to Lot Size
The applicant explains that the 0.32-acre lot was legally created through an SB 9 urban lot split approved by the Town in 2023. Due to its smaller dimensions and current zoning requirements (60-foot front and rear setbacks and 26-foot side setbacks), the remaining buildable area would be reduced to just 185 square feet, making construction of any livable single-family home impossible without a variance.
3. Long-Term Collaborative Planning Effort
The applicant notes that they have been working with the Planning Department since April 2024 and underwent a 15-month process involving multiple plan revisions, planner reassignments, and requests for additional information. The applicant states that their design evolved through this process in response to staff guidance and regulatory constraints.
4. Compatibility with Neighborhood and Tree Protections The applicant argues that the proposed design respects the neighborhood in terms of scale and privacy, and that it aligns with surrounding development on Palmer Lane. They highlight their collaboration with the Town Arborist and Fire Department to protect heritage trees and ensure emergency access. The project complies with all development standards for the R-1A zoning district, with the sole exception of the front and rear setbacks, for which a variance is requested.
To justify the variance, the applicant points out that the proposed front and rear setbacks are 37 feet and 4.75 inches, which equal 30% of the lot depth of 124.78 feet. This configuration is consistent with Section 17.32.040(D)(1) of the Atherton Municipal Code, which allows for reduced setbacks on lots recorded before April 16, 1946 and less than 200 feet deep, provided the setbacks equal 30% of the lot depth and are at least 30 feet. The applicant argues that their proposed setbacks not only meet this guideline but also reflect a reasoned and proportional approach given the site’s physical constraints.
5. Clarification on Side Setbacks and Design Decisions
The applicant points out that they are not requesting a variance for the 26-foot side setback adjacent to the appellant’s property. They also emphasize that placing the ADU on the opposite side of the July 16, 2025, City Council Staff Report
94 Palmer Lane – Appeal of Variance and Tree Protection Zone Exception
lot was an intentional decision to reduce the impact on the appellant and better align with the denser development in the adjacent North Fair Oaks neighborhood of unincorporated San Mateo County.
6. Additional Privacy Concession in Response to Appeal
In a good-faith effort to address concerns, the applicant met with the appellant and Planning Department staff after the appeal was filed. While the applicant believes the existing tree canopy provides adequate screening, they have offered to obscure the lower portions of the second-story windows facing the appellant’s property as an added privacy measure. They include a diagram illustrating this proposed adjustment in Attachment 6.
FINDINGS ANALYSIS
Front and Rear Yard Variance Request
Variances are regulated by Chapter 17.16 of the AMC. The purpose of a Variance is to allow the Town to grant exceptions to the development standards and provisions in cases where, because of special circumstances applicable to the property, the strict application deprives such property of privileges enjoyed by other property in the vicinity and under identical land use zoning districts.
As noted above, the applicant’s submitted Variance application was approved by the Planning Commission at their May 28, 2025. Variances can be granted by the approval authority only if the designated approval authority makes all four (4) of the required findings:
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.
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.
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 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 July 16, 2025, City Council Staff Report
94 Palmer Lane – Appeal of Variance and Tree Protection Zone Exception
(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.
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 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.
4. The granting of the Variance is consistent with the objectives of the General Plan and the Zoning Code.
Commission Review: Finding met.
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.
Therefore, the project is consistent with the following goals and objectives of the General Plan:
• Land Use Goal LU-1: To preserve the Town’s character as a scenic, semi-rural, thicklywooded residential area with abundant open space. • Land Use Objective LU-1.3: To retain the quality of life, character and existing in the Town.
Tree Protection Zone Exception Request
The radii of Tree Protection Zones for heritage trees are determined by Section 2.2(A)(1)(b) of the Town of Atherton Heritage Tree Preservation Standards and Specifications. The radius of the Tree Protection Zone within the R-1A zoning district is eight times (8x) the diameter of the tree as measured at breast height (4.5 feet above natural grade). The project proposes tree protection zone exceptions reducing these radii for six trees up to 3.7x.
July 16, 2025, City Council Staff Report
94 Palmer Lane – Appeal of Variance and Tree Protection Zone Exception
Per Section 2.2(B)(4), the Planning Commission may authorize an exception to the Tree Protection Zone requirements, based on the following criteria from Section 2.2(B)(5):
1. The relation of the project to criteria listed in Section 2.2.B.2 of the Heritage Tree Ordinance and Tree Preservation Standards:
a. The utility location is required by a utility company and it cannot be moved. A confirmation in writing from the utility is required.
b. If the species is tolerant of construction based on species, health, size, and age from the Matheny and Clark tolerance chart.
c. There are no roots over 2-inches diameter that need to be cut. d. Other criteria as may be required by the Town Arborist.
2. The probability of failure which is a function of heritage tree and site conditions such as, but not limited to, structural defects, presence of disease, species history, age or remaining life span, and varying weather conditions.
3. The probability of a public safety hazard, personal injury or significant property damage as a function of proximity to existing structures and objects of value and interference with utility services.
4. The number, species, size and location of existing trees in the area and the effect of the requested exception upon shade, noise buffers, protection from wind damage, air pollution, historic value, scenic beauty, health, safety and general welfare of the area and town as a whole
5. The necessity to allow reasonable use or other enjoyment of the property when there is no demonstrated feasible alternative to the exception while meeting other adopted goals and policies of the general plan to the greatest extent possible.
At their May 28, 2025 meeting, the Planning Commission considered the criteria above and approved the tree protection zone exceptions based on a memo with recommended conditions of approval prepared by the Town Arborist. In this memo, the Town Arborist acknowledges the need for access to the site and indicates concerns that five of the subject trees are shared or neighbor trees and asserts the needs for conditions of approval to ensure care is applied during related construction activities.
The Town Arborist also noted that the applicant had decreased the width of the driveway to allow more room for the existing trees. Additionally, the applicant agreed to apply materials that will require less grading and base rock. These materials will be better for the roots of the trees and will cause less compaction.
CONCLUSION
As indicated above, Planning Staff and the Planning Commission have found that the proposed project meets all four findings required pursuant to AMC Chapter 17.16 for the variance request.
July 16, 2025, City Council Staff Report
94 Palmer Lane – Appeal of Variance and Tree Protection Zone Exception
In addition, the Planning Commission has found that the Tree Protection Zone Exception request, with the conditions of approval as written, meets all of the requirements of the Town of Atherton Heritage Tree Preservation Standards and Specifications.
ALTERNATIVES AND RECOMMENDATION
The Council has the following options:
1. Uphold the decision of the Planning Commission and deny the appeal, thereby approving the requests for a Variance a Tree Protection Zone Exception.
2. Approve the appeal and thereby deny a Variance to allow to a reduction of the front and rear setbacks to 37-feet, 4.75-inches and deny the Tree Protection Zone Exception to allow construction of a gravel driveway within the Tree Protection Zone.
3. Refer the application back to the Planning Commission for consideration.
Staff is supportive of the Variance request as all four required findings in order to grant approval have been met. Staff also supports approval of the Tree Protection Zone Exception with the conditions authored by the Town Arborist and approved by the Planning Commission. It is worth noting that an SB 9 project would not be required to adhere to the Town’s Tree Protection Zone requirements and could therefore result in far greater damage to the existing trees. Therefore, Planning Staff recommends that the City Council deny the appeal and uphold the Planning Commission’s approval of both the Variance and the Tree Protection Zone Exception requests.
ENVIRONMENTAL IMPACT
This proposal has been determined to be categorically exempt from further environmental review pursuant to CEQA Section 15303, New Construction and CEQA Section 15311, Accessory Structures.
POLICY FOCUS
The 2023-2031 Housing Element, revisions of which were adopted by the City Council on February 19, 2025, includes several goals and programs consistent with the proposed development, including:
• Goal 3.710: Facilitate the private development of housing to meet the above moderate income housing need identified for Atherton.
• Program 3.811(A) New Single Family Housing Development: Continue to facilitate and expediate the development of new single-family housing units. • Program 3.811(B) New Single Family Housing Development from SB 9 Implementation:
The Town adopted an SB 9 ordinance consistent with State law provisions in 2022. If development trends and assumptions are not being met, the Planning Department will prepare an ordinance to further incentivize lot splits. • Program 3.812(A) New Construction of Affordable Accessory Dwelling Units: Continue to encourage the development of ADUs and approve ADUs ministerially in conformance with State law provisions.
July 16, 2025, City Council Staff Report
94 Palmer Lane – Appeal of Variance and Tree Protection Zone Exception
FISCAL IMPACT:
All costs covering the processing of this appeal application are paid for by the appellant.
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. Legal advertisement of this hearing was published in The Almanac newspaper and a mailed notice to owners and occupants within 500 feet of the subject lot was mailed 12 days prior to the hearing date. To date, the Town has not received any public comment on the proposal.
ATTACHMENTS
1. May 28, 2025 Planning Commission Staff Report and Attachments
2. May 28, 2025 draft Planning Commission minutes
3. Planning Commission Meeting Recording, May 28, 2025 (online external link, relevant portion for item at 94 Palmer Lane begins at the 46 minute:5 second mark)
4. Letter of Appeal, dated June 9, 2025
5. Signed Affidavit of Mailing Notices
6. Applicant’s Rebuttal to Letter of Appeal, dated July 7, 2025