Photo by Monique Schoenfeld, Town Crier
Mike Paiva stands in the back yard of his Topar Avenue home in an unincorporated area of Los Altos. A judge ended four years of litigation by ruling last week that Paiva's 6,300-square-foot addition was in compliance with county building code.
Town Crier Staff Writer
Even though the Los Altos house on Topar Avenue may look from the street like it is four stories, a judge ruled Friday that legally it is two stories.
For homeowner Michael Paiva, 52, whose house is in the unincorporated area of Los Altos around the Los Altos Golf & Country Club, the five day trial ended four years of litigation.
Members of the San Antonio Hills, Inc., Homeowners' Association, sued Paiva in 1994 for what they considered to be a violation of their CC&R two-story height limit.
Two weeks later the court dismissed the suit saying San Antonio Hills had no standing. Two residents then carried the suit forward.
When Paiva built the 6,300-square-foot addition to his 1,700-square-foot house on a sloping lot, he added a basement with two bathrooms, two floors of living space and an attic with a circular staircase.
"I can readily understand how a lay opinion would be that it is four stories," said Santa Clara County Superior Court Judge Jack Komar. "It has four distinct levels with windows on each level. But even if an attic was not there, you could have a beamed ceiling to that same height. Having an attic in that space doesn't make it a story."
Faye Brown, a member of the San Antonio Hills Homeowners' Association who was in court during the judge's ruling, said, "It may technically comply, but it does not fit harmoniously in the neighborhood."
Komar decided to see for himself. Last Thursday he took the court on a tour of Paiva's home and neighborhood.
After seeing the house and area, Komar said that Paiva's "home is consistent with the houses (in that neighborhood) that have been modified. It is obviously larger than homes on his block. But that doesn't mean it isn't consistent. And the building in question is two stories high as defined."
The San Antonio Hills Homeowners' Association Approval Committee OK'd Paiva's addition in November 1989 on the condition that he follow the county building code.
In March 1990 the county approved the 34.5-foot height of Paiva's building. The next month the county height limit was changed from a 35-foot maximum to 27 feet.
In December 1991 the county planning department approved Paiva's plans for a 6,300-square-foot addition, stating that the basement was not a story per the zoning ordinance; that the 34.5-foot building height was OK because it had been approved before the change to 27 feet; and that the attic was allowed as long as it was used as storage only and not for living space.
In 1992 a new county ordinance went into effect limiting the square-footage to 4,750, Paiva said.
"If I had started the process 30 days later, the maximum house I could build - including the garages and porches - is 4,750-square-feet," Paiva said.
Paiva made changes to the plans as the addition progressed, like the second bathroom in the basement "for cleanup," and a wine cellar called "storage."
"They were not on the plans submitted to San Antonio Hills but were always on the approved plans with the county. Everything I've done is with county approval," said Paiva, an electrical engineer who does technical marketing.
Caryn Fabian, the attorney for San Antonio Hills officers, told the judge her clients felt Paiva was "playing games with them, that his development was beyond the scope of what they approved."
Paiva's attorney, Michael McCracken, in an earlier letter, called the lawsuit "malicious prosecution."
Officers of the San Antonio Hills Homeowners' Association - Peter McSweeney, Henry Rome and Marian Balster - did not return phone calls to the Town Crier.