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Fairfax residents ask Town to preserve public engagement and transparency in planning decisions
The Residents for Sustainable Affordable Housing and Preservation of Community Values, a grassroots public advocacy group, has submitted the following letter to the Fairfax Town Council, asking them to affirm the importance of continued public engagement and full transparency in all planning decisions. They are asked the Town to reject the newly proposed development "streamlining" ordinance, which would increase unsustainable development and significantly reduce the public's ability to have their opinions heard.
Fairfax Mayor and Town Council
Town of Fairfax 142 Bolinas Rd. Fairfax, California 94930
Re: Town council agenda item #4, meeting of Feb 1, 2017. The elimination of safeguards in the current Planned District Development (PDD) rezoning procedures that have historically protected our community's values regarding potential over-development for three sites, the former Lutheran Church property, 10 Olema (former Asian restaurant site) and School Street Plaza.
Dear Mayor and Council Members:
We strongly support affordable housing solutions and community enhancing development that reflects our town’s character. We feel that the proposal before you, to approve a new “streamlining” process for reviewing development applications will encourage adversely impactful developments and severely limit public participation and community voices, and is therefore unacceptable.
In addition, such a proposal is unnecessary. Fairfax has had a Planned District Development (“PDD”) zoning process in place since the 1960’s, which has served the public well in protecting our shared community values and preservation goals.
For these and other reasons described herein, we respectfully ask that you reject the so-called streamlining proposal and retain and reinforce our town’s commitment to the PDD process, government transparency, and public engagement in all local planning decisions.
Unfortunately, a great deal of institutional knowledge has been lost in recent years due to the turnover of planning and Town staff, and the seemingly endless series of third party consultants and outside agency representatives that have influenced public policy and planning decisions.
As a result, our town council has been basing its decision making on a great deal of misinformation, biased input and incorrect legal advice.
For example, the consulting attorney who advised the Planning Commission about the existing Fairfax PDD projects, at their meeting of Jan 19, 2017, stated that Village West, Canon Village, Meadow Land and Bennett House were not processed by Fairfax using its PDD zoning three hearing process because it was basically too time consuming and cumber-some. She said the Fairfax PDD projects were processed by Marin County and annexed to Fairfax. That is totally false. A number of projects have been processed using Fairfax's PDD zone requirements and they were all processed in a timely fashion.
Also, none of Fairfax’s four approved PDD zones and existing projects, including the Bennett House, have ever been considered “Spot Zoning” according to Fairfax’s previous town attorneys. Simply applying special zoning to a parcel is not spot zoning. The California Supreme Court, in their discussion of spot zoning, as cited in Avenida San Juan Partnership v. City of San Clemente (2011) 201 Cal.App.4th 1256, noted that, "The essence of spot zoning is irrational discrimination." In other words, it typically has to do with favoritism, prejudice, discrimination, private inurement, or otherwise done without proper findings, public benefit or merit. None of this applies to PDD zoning or any of the proposed projects in Fairfax.
In addition, that Planning Commission meeting went to 1 AM and the planning commissioners never saw all of the changes they made to the 14 page ordinance in print before they voted on it. The video makes it clear the commissioners did not vote on a finished document. This was improper and state regulations require that under such circumstances, a meeting must be continued so that commissioners can review the amended zoning ordinance as a finished product and allow the public to be able to read the final document before the vote can be taken.
At the Fairfax town council meeting of Jan 24, 2017, the Fairfax town attorney advised the town council and planning commission on the State Density Bonus Law and Condominium Conversions regulations.
The attorney incorrectly stated that even if a parcel is not zoned for density "by right" and a proposed development application is made (for example in the current Highway Commercial (CH) zone), with a request to trigger the State Density Bonus Law, and needing a Conditional Use Permit for residential development, that project cannot be denied. However, that is not correct. That project can be denied for a wide variety of reasons including environmental and public health and welfare, State Density Bonus Law or not. What the law says is that if a project is otherwise approved or approvable by all other tests, and it qualifies for the State Density Bonus, that project cannot be denied for the impacts of the Density Bonus.
The same attorney is also contradicting existing town policy on Condominium Conversions with her legal advice on approving Condo conversions in Fairfax, which is incorrect and contrary to case law (see page 23 of the written Staff Report, dated January 24, 2017).
The existing PDD zoning, with its three step process, has served our Town well for over five decades. It provides Fairfax residents a hearing process that allows public participation to guarantee projects are consistent in scope and scale with Fairfax’s character. It is also expedient and does not cause undue delays in processing. For example, the senior Bennett House was processed in less than a year.
The three step hearing process has also allowed Fairfax to protect the interests and future rent structure for Bennett House seniors to guarantee low income senior housing and low income rents in perpetuity.
Fairfax residents are protective of our small town values and have historically used both the referendum and initiative process to guarantee compatible zoning and so that the scale of development projects meet strict height, bulk and massing limits.
Property owners, business owners and residents in the neighborhoods which will be impacted by this new streamlining process, including the School Street Plaza and 10 Olema areas, two of the three “opportunity” sites identified in the Fairfax Housing Element, have not been adequately informed about its potential impacts, cumulative impacts and unintended consequences. Those streets include Park, Merwin, School, Olema, Manor, San Miguel and SF Drake.
The County Board of Supervisors has very quietly rezoned the Oak Manor 7-11 Shopping Center, an unincorporated island in Fairfax, for Mixed Use-30 units per acre which allows 42 units, not counting any Density Bonus, at the corner of SF Drake Blvd and Oak Manor Dr., adding to the cumulative traffic impacts on SF Drake.
With regard to the Brown Act and adequate public notice, the agenda for your February 1, 2017 hearing, for item #4, is misleading and does not clearly or fully describe the scope of the decision being discussed. For example, consider the description of Item #4.
4. Public Hearing. Consideration of an ordinance revising the Planned District Development Ordinance (Town Code chapter 17.112) to amend the process for three (3) sites identified in the adopted Housing Element - Town Manager
Here, the agenda only refers to three opportunity sites, whereas a new streamlining ordinance could potentially affect all six “opportunity sites” noted in the Fairfax Housing Element, and once in place might be applicable to other future opportunity sites as well. State law requires that an agenda must clearly inform the public about what is being deliberated.
Finally, no councilmember with a conflict of interest or any type of beneficial interest can be allowed to vote on this streamlining proposal. Fairfax has recently removed the map with the 500 foot "conflict of interest spheres for each councilmember" from the Town’s website so we can no longer tell if any conflicts exist. However, Mayor Reed lives close to 10 Olema, council member Coler lives close to the former Lutheran church property and council member Goddard is employed by a local non-profit, who rents a School Street Plaza building, and she works at the School Street Plaza site.
In closing, we ask that the Town Council reject the proposed streamlining ordinance and process all applications for development on these three opportunity sites using the town’s existing town codes with its well tested PDD process available.
Thank you,
Residents for Sustainable Affordable Housing and Preservation of Community Values
S/ Niccolo Caldararo, Diane Hoffman, Valerie Hood, Deborah Benson, Jessica Green, Rich Cerick, Todd Greenberg, Helen Fauss, Frank Egger, Gina Farr, Denise Larson, Marc Hammerman, Laura Ralph, Kathy Flores, Charles Cornwell, Stephanie Burns, Diana Purdue, Denny Ferry and Suzanne Chaney.