Millbrae city manager intervenes, halts neighbors’ ADU

“We were told they had a typo in the ordinance and everyone involved had missed it,” Joel Timpano said. “We could not believe our ears.”

According to emails reviewed by the Daily Journal, City Manager Tom Williams in a late night message to city staff requested the order be placed, citing a crawl space he believed was not within the city’s code and an overall height limit breach.

The city’s code states an ADU must be single-story and not exceed 16 feet tall, rules the Timpanos say the unit will heed. But a crawl space upon which the unit was being built, which measures several feet tall on the rear portion of the sloping lot, Williams argued was out of compliance and was closer to a first floor.

“I looked at it because I could see it, and saw that it looked like it exceeded the height and some other things, that the construction of it didn’t appear that it met the ADU ordinance,” Williams said. “I took that and reported it to community development and building [departments] to take a look at it, and then I stepped away.”

In his May 25 email to building inspector Jake Gonzales, Williams wrote “please issue a stop work order tomorrow and have the applicant submit a redesign eliminating the first story.”

An email the next morning from the city’s Community Development Director Darcy Smith to Gonzales reads “Tom is asking if a stop work had been issued yet?” The email also notes research into the code compliance issue was underway. Six minutes later a reply from Gonzales states “it will be issued within the next 30 minutes.”

Smith said despite the quick turnaround, she and others from the city’s planning and building departments thoroughly reviewed the issue. She emphasized that Chief Building Official Keyvan Irannejad is the only member of city staff with authority to issue a stop work order, per state law.

“Once the city manager inquired, we went through a very comprehensive and detailed process to research this further,” Smith said. “I dropped everything and worked on it all afternoon, came in early the next morning and worked on it, I looked at the plans, I looked at the pictures.”

Height, city typo

The stop work order, she said, was issued both because the “plate height” (essentially the ceiling height) for the structure would have been higher than the city’s ADU ordinance intended to allow, and that the construction observed by building inspectors did not comply with the plans submitted by the Timpanos.

In a letter sent to the couple June 10, Smith said plans showed a 4-foot-2-inch crawl space. Attached are photos of construction progress that appear to show the space is multiple feet taller.

But the plate height issue was the product of a typo in the city’s ADU ordinance. The city’s code states the plate height was not to be taller than 9 feet for detached ADUs, excluding crawl space height where applicable. Not mentioned in the ordinance, however, was such a rule for attached ADUs like the Timpanos, something Smith said was a mistake. Further, dimensions for crawl spaces are not included in the city’s code.

“The code does not explicitly define how to measure the plate height, so when that happens we come up with an interpretive definition,” Smith said. She said she reviewed past city meeting documents to arrive at an 18-inch maximum crawl space height.

Regarding revoking the previously approved permit, “It happens,” she said. “I’d love to say this never ever happens, but it happened. And, as a city official, I’m sworn to enforce the municipal code … they don’t have a vested right in a building permit that was invalid when issued, even if they’ve expended substantial funds in reliance on that.”

Williams similarly pointed to his obligation to report code violations, and said he did not want people to think he was playing favorites with his neighbors.

“Nor do I want people to think I’m trying to not have something happen, because obviously we support accessory dwelling units, we support, obviously, the need for housing and all that, but people have to do it right, they can’t take advantage of, or not follow, the rules,” he said.

‘Sick for weeks’

But the Timpanos said they believe Williams was motivated by not wanting to see the unit from his backyard, which is kitty-corner to theirs. The unit is on the side of the yard closest to Williams, and would rise well above the fence.

“That crawl space is not why he’s stopping our project,” said Joel Timpano, who described being “sick for weeks” as a result of stress, anxiety and financial worries following the order to stop work.

“We are $150,000 into our project and they asked us to scrap it,” he said. “I have been asking for a building official to come out and go over any discrepancies with our project and make any necessary adjustments so we can pull the stop work order and resume, no one has responded.”

Lisa Timpano said her father died late last year and her mother, who suffers several health issues, lives two hours away and cannot remain by herself.

“We have no desire to fight with the city of Millbrae,” she said, “I have lost much sleep and my stomach is in knots over my mother’s future and the severe financial loss we would experience.”

She said they do not have the money to start over, and are hoping for a compromise with the city. She added that during a meeting with Smith and Irannejad to go over the issue, Smith repeatedly warned the couple that litigation against the city would not be successful.

‘A challenging situation’

Smith said the city attorney was looking into the matter, and also being looked at was the feasibility of certain exemptions from the city’s code to allow the project to proceed, decisions that would ultimately need to be made by the city’s Planning Commission.

“I’m not sure the findings would be able to be met, so I don’t have an answer on that. We’re looking into it,” she said. “It is a challenging situation.”

Williams was hired as the city manager in 2018. He previously served as the city manager in Milpitas, a post he resigned from after allegedly using taxpayer money to pay personal attorney fees.

corey@smdailyjournal.com

(650) 344-5200, ext. 105