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Town of Fairfax

Community Venture Partners comments on improper planning review in Fairfax

At the request of several members of the Fairfax community, Community Venture Partners has submitted the following comment letter, regarding the CEQA Initial Study and recommendation for a Mitigated Negative Declaration for the proposed Victory Village housing project. All comments were due by end of day on December 20th.

Although CVP strongly supports the need for affordable senior housing in Marin County, the project processing and approval precedures being used by Fairfax are, in our opinion, both improper and illegal. To not contest such procedures would set a bad precedent for all future development and significantly and negatively impact Fairfax and other towns in Marin. It is with that in mind that our comments were submitted.

Linda Neal, Town of Fairfax Planning Department

142 Bolinas Road, Fairfax, CA 94940

Dear Ms. Neal:

Community Venture Partners (“CVP”) is submitting this comment letter on behalf of Charles Cornwell and other concerned residents of Fairfax. Our comments regard the proposal before the Fairfax Planning Commission to recommend the Victory Village Senior Housing Project (the “Project”) for approval, its Initial Study and proposed adoption of a Mitigated Negative Declaration, and its requisite General Plan Amendment and the Planned Development District Ordinance, and approval of the zoning text and map amendments, a parcel map, a density bonus agreement, design review, and excavation permit and a traffic impact permit as first submitted to and heard by the Fairfax Planning Commission on December 15, 2016.

This letter is a companion letter to the previous correspondence on this project by our legal counsel, Michael Graf, dated December 15, 2016, and is incorporated herein, by reference (copy is linked below).

Let me state from the outset that our comments are not about senior housing, per se, or the need for affordable senior housing in Fairfax and Marin County. CVP fully supports the important goal of providing affordable senior housing. However, we believe that any project proposed to meet that goal must be appropriate to its location and neighboring community, and its approval process must be transparent, equitable to all concerned, and consistent with the requirements of State Housing Law, the California Environmental Quality Act (“CEQA”) and the town’s municipal codes and regulations, and any decisions made regarding it must be evidence based and the result of adequate public input.

It is with regard to these issues that we have significant concerns.


In recent years, the Town approved a General Plan Update and a new zoning ordinance that provided for “by right,” high density residential use in downtown commercial zones and on sites identified as “opportunity sites.” There was no environmental impact report (“EIR”) or requisite analysis that would have been required under an EIR to support either the General Plan Update or the proposed zoning ordinance. The CEQA process used was that of an Initial Study and Negative Declaration.

Subsequently, the residents of Fairfax brought a successful petition, signed by more than 1,000 Fairfax voters, to overturn the new zoning ordinance through a referendum. After much delay, this petition was endorsed by the Town Council, apparently because they knew that bringing it before the public for a vote would have only resulted in the same outcome.

The Town Council made no secret of its displeasure about this turn of events. A disconnect between the elected officials of the Town and a significant number of its residents appears to have persisted ever since.

The newly proposed Planned Development District Ordinance (the “Ordinance”) and its “streamlining” review process appears to be an attempt to resurrect the provisions of the previous “by right” zoning ordinance in a way that ensures less public awareness of zoning changes in the future (fewer public notices) and fewer opportunities (public hearings) where the public can provide input on the Town’s project review process. This brings into question the Town’s commitment to transparency. As it stands, the public is faced with what can only be described a highly unusual public process for Victory Village that raises significant questions regarding CEQA and compliance with the Town’s own municipal codes.

Inadequate Public Notice and Public Comment Period

There is no question that the proposed approval of the Victory Village project is major decision for the Town of Fairfax that will be precedent setting for decades to come. At the December 15th Planning Commission hearing, Town Manager and acting Planning Director Garret Toy stated that [there is]

No question the project before you, its 54 units, 53 affordable senior units, one manager unit… It's the largest project this town has seen in thirty years.

This statement considered, one would hope that the Town would make a significant effort to provide the Planning Commission and the general public with adequate time and opportunity to evaluate and comment on the proposal. Instead, the Town has pursued a fast track process that seems designed to do the exact opposite.

Although a public workshop on the project was held on November 12, 2016, the December 15th hearing was set to be the first and last opportunity the Planning Commission would have to review and recommend the final Project Proposal for approval. And, they were not only being asked to recommend the Victory Village project itself but to endorse a host of lengthy, interrelated and complex documents, including the Initial Study, a Planned Development District Ordinance, parcel and zoning map changes, a density bonus agreement, project design review, and a long list of formal Resolutions, in one fell swoop.

In our opinion, this was unreasonable and did not and does not allow sufficient time for public comment.

The Project’s truncated public comment period violated CEQA

In my experience attending project planning hearings for 23 years in Marin, the type of expedited processing employed by Fairfax for this project is unprecedented. The documents to be reviewed, which were only released to the public in the Staff Report on December 9, 2016, were over 450 pages in length. Yet, in spite of this massive “data dump” by the Town on the Planning Commission and its citizenry, the public comment period was set at 20 days, six days after the Staff Report’s publication. Technically, the Initial Study was published on November 30, 2016 with minimum public notice and a public comment period of 20 days: the bare minimum allowable under statute for comment under CEQA, see Pub. Res.Code § 21091(b). As has been expressed by many, coming right before the biggest holiday season of the year, the public comment period was truncated to the point of absurdity.

In addition, by scheduling the decision-making approval hearing on December 15th, a full 5 days before the end of the public comment period (allowing only 15 days to comment), the Town was not only in violation of the law under CEQA, but for all intents and purposes it suggests its decision to approve the project was already predetermined before all comments by the public would even be received, much less considered.

An objective observer would be hard pressed to conclude that the Town has been acting in good faith. It also raises serious legal and ethical questions about the integrity of this project’s entire review and approval process. Under CEQA public comments are required to be an integral part of an agency’s decision-making process, not an afterthought, as the Town of Fairfax has treated public comment on the Project.

To repeat the opinion voiced in Mr. Graf’s comment letter,

In Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 130–131, the Supreme Court noted that to “be consistent with CEQA's purposes, the line [for conducting CEQA review] must [not] be drawn so...late that such review loses its power to influence key public decisions about those projects.” In our view, the Planning Commission’s proposed Resolutions are entirely premature given that the CEQA process is still underway and no one in the Town has even considered public input on the project or MND. See Pub. Res. Code § 21091(d)(1) (“lead agency shall consider comments it receives on proposed mitigated negative declaration.”).

Here, the Town’s process violates the entire purpose of CEQA, which is that environmental review must take place during and not after the agency planning process.

[T]he later the environmental review process begins, the more bureaucratic and financial momentum there is behind a proposed project, thus providing a strong incentive to ignore environmental concerns that could be dealt with more easily at an early stage of the project. ... For that reason, '"EIRs should be prepared as early in the planning process as possible to enable environmental considerations to influence project, program or design.” Save Tara, supra, 45 Cal.4th at 130.

In essence, the Town of Fairfax has not complied with either the planning or the zoning process established in the Government Code or the CEQA process set out in the Public Resources Code. Specifically, Fairfax appears to be adopting an unprecedented truncated planning process which does not provide a legally adequate level of public review or impact assessment.

Under these rules, at a minimum, the entire Initial Study should be recirculated for a proper public comment period to occur and the previously drafted Resolutions reconsidered and redrafted and recirculated after all public comment has been received and considered.

The Project Description is defective under CEQA

Neither the Staff Report nor the Resolutions or the Initial Study provide a clear and complete Project Description, which is required under CEQA to assist the public in fully understanding the decisions the Planning Commission is being asked to make and the Project’s environmental impacts.

“An accurate, stable and finite project description is an essential element of an informative and legally sufficient EIR under CEQA”( see CEQA Guidelines §15124, citing County of Inyo v. City of Los Angeles (1977) 71 Cal. App.3d 185, 199 [139 Cal. Rptr. 396]. Several courts have invalidated CEQA documents for their failure to provide an adequate Project Description. For example, in Friends of the Eel River v. Sonoma County Water Agency (2003) 108 Cal. App. 4th 859 [134 Cal.Rptr.2d 322], the California Supreme Court found that an EIR was invalid because it omitted a meaningful discussion of the conditions in the northern part of the proposed water supply system. (See also Laurel Heights Improvement Association v. Regents of the University of California (1988) 47 Cal. 3d 376.)

In fact, it appears that the Town has deliberately attempted to hide what is arguably the most significant and impactful aspect of the Project in what are essentially footnotes in the documents, regarding the required approval of an amendment to the General Plan, e.g.,

The existing Planned Development District Ordinance (Town Code Chapter 17.112) will require revision in order to reflect General Plan requirements and to allow a more streamlined review process for sites, such as this one, that are identified as Opportunity Sites in the Town’s Housing Element.

As such, the Project Description is incomplete and inadequate because it does not sufficiently alert the reader to the significance and impacts of the proposed Ordinance.

The way the Project is described and presented forces the reader to attempt to sift through the voluminous and numerous documents to gain this important project information. This violation of this project description requirement is further demonstrated throughout the Staff Reports, the Initial Study and the other project documents in that the potential overall environmental impacts of the sum total of all the approvals sought for the project are never actually discussed, rendering reasonable environmental analysis impossible.

Cart before the horse decision-making

The Staff’s recommendation to endorse the Planned Development District Ordinance and its requisite streamlining provisions are procedurally improper and inadequate under CEQA. As presented to the Planning Commission and the public, the “project” constitutes an improper attempt by Staff to “hide” the requisite streamlining approval inside the approval of Victory Village, an individual project, and sabotages the public process to achieve its approval.

Of the nine items included for approval only eight only pertain to the Victory Village project itself, while one other, the Planned Development District Ordinance impacts all of the identified “opportunity sites” that are located throughout the Town, in addition to Victory Village. As noted, the approval of Victory Village is fully contingent and solely dependent upon a prior approval of “streamlining.” This fact is not clearly explained in the Staff Report’s presentation to the public and the Planning Commission.

Further, the approval of the Ordinance and streamlining, and the appropriate public process that this would demand under the Town’s own codes and regulations, is in no way similar to the eight approvals sought for the Victory Village proposal itself. This action by Staff, and the inclusion of the approval of other aspects of the Project, such as design review and granting specific entitlements, violates Chapter 17 of the Town’s Code, regarding Planned Development Districts, and discards the public process required to make such General Plan and zoning changes. In addition, by bundling the Planned Development District Ordinance and its dependence upon a General Plan Amendment to allow for a streamlined approval process inside of the approval of the Victory Village project, the Town has entered into an improper and inadequate environmental review process under CEQA.

To an objective observer, by including the approval of the Planned Development District Ordinance within a single project approval, the Staff Report’s recommendations to the Planning Commission appear to be an attempt to circumvent the Town Code in order to streamline the rezoning of all other opportunity sites in Fairfax, for future high density projects, without adequate public process or comment in the future, and without any analysis of the environmental impacts of those future projects.

Worse still, the Staff Report is not only recommending that the Planning Commission approve the Planned Development District Ordinance and assume the future approval of the streamlined approval process for all other opportunity sites in Fairfax, but it is attempting to actually implement the streamlining process to gain approval of the Victory Village project before that streamlining process has even been considered or created by the lead agency (the Town Council).

This nonsensical and improper “cart before the horse” process alone potentially invalidates the Staff Report, its drafted Resolutions, and this project’s public review process so far, in its entirety.

Failure to comply with CEQA in considering the Ordinance

The Staff Report states:

Planned Development District ordinance (Town Code Chapter 17.112) will require revision in order to reflect General Plan requirements and to allow a more streamlined review process for sites, such as this one, that are identified as Opportunity Sites in the Town's Housing Element. This revision was specifically contemplated in the 2015-2023 Housing Element.

However, when Fairfax considered its General Plan Update and its prior “by right” zoning ordinance, the Town did not conduct an EIR or do the studies and analysis that would have required. The Town addressed CEQA requirements by conducting an Initial Study and the adoption of a Negative Declaration. Therefore, the Town has no prior document to tier off to satisfy CEQA requirements for Victory Village or for the recommendation of the Planned Development District Ordinance and streamlining.

The fact that streamlining was “contemplated” in the 2015-2023 Housing Element does not in any way satisfy the CEQA requirements for identification of significant impacts, their analysis and mitigation if needed, or for an evidenced based decision-making process for the Ordinance or any individual project subject to that Ordinance, including Victory Village..

Further, since the entire Initial Study and all its attachments and conclusions are based solely on the specific Victory Village project, and since there was no EIR conducted for the General Plan Update, the consideration of the Planned Development District Ordinance and the implementation of streamlining on the Victory Village project itself has not been properly or adequately analyzed or considered. To propose the Planning Commission recommend the Ordinance in absence of its compliance with CEQA clearly violates both the spirit and the letter of the law.

In summary, the Initial Study does not in any way assess the impacts of the Planned Development District Ordinance, despite clear CEQA requirements that the Initial Study do so. Instead, the Initial Study simply makes unsupported conclusions that impacts are not significant, without citing adequate data or qualitative analysis regarding those impacts.

In a situation such as this, a full EIR is required.

Failure to consider cumulative impacts

It is impossible for any agency to adequately identify, consider, analyze, or mitigate cumulative impacts on a project by project basis. Processing projects one at a time, as the Staff is recommending, would, therefore, forever ignore the cumulative environmental impacts. However, this appears to be precisely what Fairfax is proposing to do.


With regard to the Ordinance and streamlined approvals, CEQA prohibits the segmentation of related projects into smaller pieces in an attempt to avoid analysis of cumulative environmental impacts. A public agency may not divide several “projects” (e.g., opportunity sites) into smaller individual projects, such as Victory Village, in order to avoid its responsibility to consider the environmental impacts of the all the projects as a whole. See Orinda Assn. v. Board of Supervisors (1986) 182 Cal. App. 3d 1145, 1171.

Here, even though the Town is asking the Planning Commission to recommend a Planned Development District Ordinance and its requisite streamlined approval process, which will certainly impact the development, density and environmental impacts of other sites in Fairfax, the Initial Study fails to address or even mention those potential cumulative impacts in any way.

Worse, the Town is thereby indicating its conscious intention to engage in inappropriate segmenting or piece-mealing in considering of all potential cumulative impacts, for all future approvals of development projects on other opportunity sites, in addition to Victory Village. These potentially significant cumulative impacts that the agency has failed to consider, identify, analyze or mitigate include Aesthetics, Biological Resources, Greenhouse Gas Emissions, Land Use / Planning, Population / Housing / Traffic / Transportation / Mandatory Finding of Significance, Agricultural Resources, Cultural Resources, Hazards & Hazardous Materials, Mineral Resources, Public Services, Tribal Cultural Resources, Air Quality, Geology / Soils, Hydrology / Water Quality, Noise, Recreation, and Utilities / Service Systems.

Consideration of cumulative impacts is key to providing decision-makers and the public with a comprehensive view of the approvals being sought. It is clear that streamlining would provide significant incentives to build new high density, multifamily development. Some but by no means all of the concomitant impacts might include increases in housing density and population, traffic congestion and parking demand (irrespective of statistical density upper limits found in the code), public services and infrastructure demands, increases in permeable surfaces and subsequent polluted runoff, and floodplain and water resources impacts, to name just a few. All of these cumulative impacts require careful analysis and if found to be significant, require mitigation.

This fact alone potentially negates all of the finding of the Initial Study, because although dependent upon the approval of a new citywide Planned Development District Ordinance, the Initial Study only looked at the Victory Village in isolation, and therefore is far too limited in scope, analysis or evidence, regarding the cumulative impacts that would result.

Future opportunity site proposals

To this observer, then, it appears that the Staff is shamelessly attempting to use public support for senior housing as a Trojan Horse, to slip a major city wide zoning change past the unsuspecting eyes of the Planning Commission and the public, thus opening the door to a series of major developments, for which there will be inadequate analysis or fact-based decision-making, and for which there will be extremely limited public input opportunities.

Much more importantly this subterfuge by Staff, this attempt to put in place a process whereby projects are approvable under a general zoning ordinance streamlining review, but which will allow them to be approved on a case by case, standalone basis, completely disregards and circumvents ever having to recognize, account for, analyze or mitigate the cumulative impacts of those projects as an outcome of the Ordinance. This proposed future process violates both the spirit and the letter of the law under CEQA.

As written and submitted for review and approval, the Initial Study is grossly inadequate in all aspects and provides no evidence whatsoever, either way, regarding the impacts or lack thereof from the adoption of streamlining. It is also important to note that although Victory Village may be an affordable senior housing project, as proposed, future projects on other opportunity sites, which will also benefit from the approval of the Ordinance and streamlining, are not guaranteed to provide a significant amount of affordable housing above and beyond the Town’s inclusionary regulations. In fact, it is extremely likely the vast majority of new housing units proposed on other opportunity sites will consist of high priced, luxury units. The economics of development guarantee this outcome.

Based on the approval process Fairfax is attempting to put in place, facts such as this may never be addressed, adequately or otherwise, thereby denying the public their right to comment.

One example of inadequate impacts analysis: traffic

We have reviewed the Parisi Transportation Consultants Traffic Study dated October 16, 2016. We would note that a weekend day peak hour analysis was not conducted for existing conditions. It is the weekend, particularly in the good weather months, when recreational traffic would be highest on Sir Francis Drake Boulevard (S.F. Drake) that may result in greater traffic congestion in Fairfax than the Parisi Study indicates. Further traffic counts would need to be conducted to arrive at appropriate assumptions.

The Parisi analysis of the project impact is based on previous Parisi analysis of General Plan traffic volumes. Of the 11 intersections reported for the General Plan conditions, 5 are found by Parisi to operate at LOS “E” and “F.” This LOS condition exists in spite of the fact that the Town of Fairfax has adopted LOS “D” as the minimum acceptable service level standard. It is not clear why this condition exists in the General Plan when several intersections were reported to operate in clear violation of the Town's adopted LOS standard. Therefore, the General Plan and the Town’s adopted LOS standards are inconsistent and demand clarification prior to any consideration of the Ordinance.

4 of the 5 intersections with substandard LOS traffic loads are also found by Parisi to now operate at LOS “E” and ”F” for existing traffic. Oddly, because Parisi claims the addition of project traffic to these intersections does not degrade the already substandard LOS letter grade, the project is found by Parisi, and in the Initial Study and Staff Report, to have no significant impact on existing conditions, even though it is in violation of the Town LOS standards, and clearly even the addition of a single car will certainly increase its lack of compliance with that Town standard, and therefore must be identified as significant.

Nowhere does the Town, the Ordinance or the Staff Report acknowledge this truth or attempt to define at what point this creates a significant impact that requires mitigation, if that is even possible. Where is a plan for that and where is it identified and analyzed as required under CEQA.

As written, the logic being employed by Parisi and Fairfax would mean one could always continue to add more traffic to a failing intersection without the impact ever becoming significant. However, the CEQA test is rather, whether the addition is cumulatively significant; the worse the existing levels, the less traffic, not more, needs to be added to cause a significant impact.

Parisi finds that the addition of project traffic would degrade one intersection from an acceptable LOS D to an unacceptable LOS E, assuming General Plan traffic volumes. This intersection, S.F. Drake at Mitchell Drive/Alhambra Circle, is described by Parisi as having such a low traffic volume that it is not suitable to mitigate the substandard LOS with a traffic signal. No other mitigation measure is suggested. But why not, since it is in violation of the Town’s LOS standard? Are the Town standards of Fairfax so fanciful and subject to political desires that they are essentially irrelevant? If so, how are the Planning Commissioners supposed to interpret or implement the standards?

All good questions, which remain unexamined.

Under commonly accepted interpretations of the standards for significant impact, the fact that a single project would add to an already unacceptable condition, e.g. the LOS “E” and “F” existing operation at 4 intersections, would be considered a significant impact of the project.

The awkward result of these procedures is demonstrated by the findings in the project Staff Report, which states that

... the proposed project would not cause the performance of intersection roadway linkages to fall below acceptable level of service or otherwise further reduce the system performance within the Town of Fairfax.

This is clearly not the case as found in the Parisi analysis of the intersection of S. F. Drake and Mitchell Drive/Alhambra Circle discussed above.

The Staff Report also finds

... the project's average daily traffic will not increase the traffic volume on any roadway segments or intersection approaches of the Town's principal circulation system by more than one percent or by more than 100 vehicles.

This is also incorrect because the Parisi study reports that the project would add 8 vehicles to the 10 peak hour vehicles projected for Mitchell Drive at its intersection with S. F. Drake. It appears that errors and miscalculations of this kind are found throughout the analysis of traffic impacts as well as other documents that purport to support the findings of the Initial Study. But, because the public comment period has been so extremely truncated and the documents so voluminous, it was simply impossible for us to go into this level of detail on all the information provided.

In addition, the issue of the cumulative impacts of Victory Village and all of the opportunity sites affected by the Planned Development District Ordinance and streamlining procedures being used to process the Victory Village project are never addressed or acknowledged by Parisi.

An EIR is required

There is little question that the Victory Village proposal and its Initial Study, as it has been presented, is inadequate for the purposes of asking the Planning Commission or the public to consider the Planned Development District Ordinance and the streamlined approval process being used for Victory Village and the approval of the Victory Village project itself.

The Town would be prudent to not allow any projects that are proposed on opportunity sites, including Victory Village, to be brought before the Planning Commission and the public until a thorough public process has been undertaken and completed with regard to the proposed streamlined approval process: to do otherwise would be both improper and in violation of the Town’s own regulations.

Our analysis of the Staff Report, the Initial Study and all their appurtenant documentation as presented, indicates that a complete EIR adequately assessing the overall and cumulative impacts of such a proposal is required in order to move forward.

We ask that the Town carefully consider this requirement and all our comments before continuing its present approval process for Victory Village.

Respectfully submitted for your consideration.


Bob Silvestri


Community Venture Partners, Inc.