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Appeal of Planning Commission approval of Treehouse MV Private Club

Posted by: Kenneth Wachtel - October 31, 2023 - 4:09 PM PDT

The following Appeal of the Mill Valley Planning Commission's October 24, 2023 approval of Design Review and Conditional Use Permit to convert the former Bank of America building into a membership based club with a restaurant, bar and meeting and event space at 60 Throckmorton Avenue, has been filed with the Mill Valley City Council.

Click here to read the original Appeal Letter.

Click here to read the Staff Report to the Mill Valley Planning Commission

NOTICE: The appeal hearing before the Mill Valley City Council is scheduled for November 20, 2023.

Dear Mayor Carmel,

The ill-conceived Planning Commission (“PC”) decision should not stand. The Project does not comply with 2040 and ignores and exacerbates inclusionary issues. The parking is totally insufficient and is prejudicial to local beloved businesses. The shuttle is meaningless and together with the valet proposal does nothing to mitigate a real parking problem. And the PC did nothing to mitigate noise from the 49 person roof patio (which was not even counted in the total floor area of the project.)

The Application should have been denied as presented.

Only the applicant’s promises and representations that are included in Conditions of Approval (“COA”) and CUP are binding on the applicant.In this case there are a multitude of such representations and promises which did not make it into the COA. As such, they are not relevant to an examination of the correctness of the PC’s decision.

In addition, the approval “runs with the land” and thus will be applicable to the use of the property regardless of who the owner/operator may be. Remember how Whole Foods got on Miller.

MV2040 and the City’s Diversity, Equity & Inclusion Goals Counsel Against Having a Private Club at This Site

A. There Was No Consideration of Diversity, Equity and Inclusion

Although raised by several speakers at the meeting and in many of the pre-hearing correspondence, the PC did not ask one question and did not make one comment as to how this private membership club application could meet or enhance this town’s DEI policy. It was never raised by the applicant.

The basis of our DEI policy is that

“Mill Valley has historically not fulfilled its stated intent to create a diverse, inclusive, and welcoming community for people of all racial and socioeconomic backgrounds, including all those who live, work, attend school and visit Mill Valley.”

The Project is proposed to be a private membership club with 400 members with dues in the $225/month range and an initiation fee curiously left out of the application. This is about 2.8% of the City of Mill Valley’s current population [1] and that does not include the out-of-town members for which the application provides at drastically reduced dues (more about that later). And it is mostly an adults only venue.Exclusive yes, exclusionary yes, discriminatory maybe

The application but not the COA says:

“if so desired qualified applicants will be able to request reduced cost membership [but] at this time it is difficult to lay out the exact criteria …but it will ensure that some percentage of … membership are accessible to different income levels.”

This is meaningless doublespeak.

The applicants have gone to great lengths to promise nothing about meeting our town’s DEI policy with their business plan to accept at most 2.8% of Mill Valley’s population or 1.2% of the population of 94941, all who must “share their values.” What if they have different values? This is an utter failure to even try to comply with our council’s laudable efforts to include racial and socioeconomic diversity in the fabric of our town—diverse people who may not share the applicant’s values.

The Project is not “welcoming for people of all racial and socioeconomic backgrounds” and it does not “strengthen a sense of community.”

On these grounds alone the PC approval should be vacated.

B. MV2040: [2]

The PC relied in part on MV2024 as supporting the application.Indeed, the Staff report at lines 269-272 says:

“Moreover, per Program LU.2.1, private clubs are allowed in downtown Mill Valley, and the General Plan specifically does not disallow particular uses, instead stating that the market should dictate the success or failure of a particular types of business within the context of Mill Valley’s unique community character.”

Program LU.2.1 (and MV2040 as a whole) does not include the words “private clubs,” and while it suggests that “the market should dictate the success or failure of a particular type of business,” it was erroneous to therefore conclude that a private club is listed as appropriate at this specific location.

MV2040 outlined Goals, Policies and Programs in each of its Elements.Goals are “informed” by our community values, and “used to describe a desired result or outcome.” Polices are also very important; each is a “specific statement that guides decision-makers.”

LU.2.1 as an implementing Program must be considered underneath LU.2, the Land Use Policy on downtown Commercial Development. LU.2 says that development should also “strengthen the sense of community.”

A private club cannot serve this goal.

Private clubs are not bad in and of themselves, but like many land use issues not every business belongs everywhere, just as home plans are reviewed for being out of character with a neighborhood. Just like a Tesla dealership would not be appropriate in the downtown area.

This is no ordinary building or location: it is at the intersection of the City’s heart, located adjacent/near to inclusionary locations including City Hall, Lytton Square, Depot Plaza, Mill Valley Market, The Sequoia and Sweetwater Music Hall. This use at this location cuts against the spirit if not the letter of MV2040 and our values: it does not “strengthen a sense of community” and its “exclusionary” nature is even more obvious when one considers the City’s DEI efforts.

C. Parking

At the June planning session staff calculated that as a gathering space, office space, event venue, restaurant, and bar serving alcohol (“The Project”), needed 55 on-site parking spaces. The applicant’s own consultant said they actually needed 66 on-site spaces. Not one space was found.

In the October 24, 2023, staff report and at the PC meeting the staff recommended and the PC waived all on-site parking requirements.“ COA Section 2 (b) #8 Parking space requirements removed.”

The PC relied on MVMC 20.60.090 (H) (sic) [3], and recommended that no on-site parking was required.[4] There are 4 elements to Section 20.60.090 (I) (16) and an analysis does not support the PC’s findings.

The extent of the physical improvements proposed or existing on the property, if any

Per the applicant, the physical improvements of this 8,000 sf space are extensive and will cost millions. They are turning an abandoned 110+ year old heritage bank building into a gathering space, office space, event venue, restaurant, and bar serving alcohol. This requires the installation of a 700 sf commercial kitchen, rooftop kitchen exhaust and HVAC, a 50 sf elevator, a 4,500 sf restaurant, a slew of improvements on two floors, and the creation of a 725 sf outside roof patio (whose space was not included in the floor area of the building). The improvements are very extensive. It will be a whole new building inside.

The types of activities proposed and the hours and days when the activities will take place

The applicants represent that The Project will bring vitality to the downtown. The capacity of the project is represented at 250 people. They have a 4,500 sf, 95 person restaurant, a 725 sf 49 person roof patio and a 1,700 sf 100+ person office/meeting space plus staff. They propose to have speakers (sometimes open to the public), extensive non-profit organization use, cultural activities open to the public, frequent programming featuring authors, artists, community leaders, non-profit leaders, and other speakers and monthly event oriented activities such as for the Dipsea, the Pancake Breakfast, the Tourist Club.

Operating hours are 9:00 AM to 11:00 PM – longer hours than any business I know of in Mill Valley. (The roof deck hours are 11:00 AM to 9:00 PM.)

This use is exponentially more intense use than has ever been in that space for over 100 years.

The number of parking spaces already existing in the area and the impact of the use on the existing parking

There do not legally exist anywhere close to the number of available spaces proposed by staff and adopted by the PC. The PC relied principally on the City Hall and Sunnyside lots. The PC did not consider that the evening use of the City Hall lot was totally committed to Sweetwater Music Hall upon the approval of its CUP because it had no on-site parking. The loss of those spaces would be critical to Sweetwater. During the day that same space is dedicated to the City and Mill Valley Market. They must have parking for their customers for every hour they are open.

The PC has also not considered that the Sunnyside parking lot was committed to the Lee/Lum properties as a condition of the approval of the building facing the plaza---which had no parking of its own and reduced the size of that paid parking lot. Much of the rest of the Sunnyside parking lot has been used by the Sequoia theater (now closed for renovation) which will soon need more parking than before.

The PC erred in “giving” spaces in the Sunnyside and City Hall lots to The Project which had already been given, as a PC conditions of approval, to Sweetwater and Lee/Lum. The PC erred in favoring a not-yet-existing business over these longtime treasures of our community.

The frequency of activities

Extensive and daily between 9:00 AM and 11:00 PM 7 days a week. Three times longer than the bank.

Clearly the reliance on MVMC 20.60.090(I) (16) as a basis to eliminate need for all on-site parking was an error committed by the PC.

The proper procedure would have been to compare the activities in the private club to the parking requirements of the closest similar use – a gathering space, office space, event venue, restaurant, and bar serving alcohol—55 spaces by ordinance, 66 spaces by analysis. The PC could have modified that requirement by a reasonable factor for a private club resulting in a non-zero on-site parking requirement.

But it didn’t.

It was error for staff to calculate a 55 space parking requirement (without the possibility of grandfathering the Bank of America operation) and for the PC to decide that not one on-site space is needed. It is one thing for the council to modify the parking requirements in the downtown area, which of course it has the authority to do but has not done. [5]

The PC does not have that authority — especially not on these facts.

I submit there is no municipal authority or justification for a public restaurant and office space to need 55 on-site spaces and the exact same restaurant and office space in a private club to need none.[6] This sets a bad precedent for proposed businesses to label themselves as a private club to avoid all parking requirements. If this massive project needs no parking what could be a more intensive use?

The PC has the authority to grant a parking variance (if it has the facts) or assess a fee in lieu of parking, it does not have the authority to waive all parking.

Parking is still an economic necessity in our town.

Let us not forget that the PC cannot just wish cars away. Our town is not yet done with cars. Perhaps in the future gas guzzling cars will be replaced by electric cars but they will still need a place to park, Hill people don’t ride bikes as much as flatlanders. I doubt the hill folk members will be riding their bikes to and from dinner at their private club. Perhaps some flatlanders may ride their bikes but the bike room holds only 7 bikes. Where do the rest go?

One commissioner said he was “offended” by the speakers who complained about parking after admitting that numerous speakers had said they were concerned because they could not find parking at their residences during the MVFF or Fall Arts Festival. Is that really a proper response?

The PC failed to limit the size of the events.

100+ events trigger valet service but those valets will park the cars in the very same spaces that the members and local business customers would use. The PC’s valet condition is thus meaningless. As it now stands they can have 250 person events every night. There should also be a limit on the size and frequency of large events.

And let us not forget Sweetwater, Mill Valley Market and the newly expanding Sequoia Theater as discussed above. With their parking lots filled by The Project cars, we may lose all three. Three family-oriented gems we need to protect.

D. The Shuttle

COA #19 states,

“The shuttle must pick-up/drop-off at an off-street location, with an agreement in place for this parking arrangement before building permit final inspection.”

The COA does not specify,

As approved in the COA the shuttle condition is meaningless, unenforceable and is no replacement for parking.

Moreover, in the June staff report staff wrote:

“Staff … is not comfortable making the assumption that the shuttle service will significantly reduce parking demand associated with the proposed project.”

I agree with that evaluation. I was the Chair of the committee establishing the yellow school bus program a few years ago .It lasted about 3 years until the parents decided they would rather drive their kids in their cars. Busses they said were for the other parents. Things will not be different here.

There are two compliance issues not addressed by the PC. Once there are meaningful parameters set, as discussed above,

At the hearing, I urged that if the PC were to waive all parking requirements they should place a condition in the 6-month and annual CUP reviews that the shuttle is used by at least 75% of the attendees of the club. (The council is free to modify that percentage but it must be meaningful if it is a true parking replacement.) The PC totally failed to address this issue.

And what happens if the shuttle fails? If the shuttle does not carry the council mandated percentage of attendees.

E. Membership

Applicants are playing this very close to the vest and DEI is at risk. Word has it that these applicants have long been looking for a place where they and ”their friends” could hang out. And the proposed dues structure proves that out. Mill Valley residents pay dues of about $225/month. Out-of-city members pay only $83.33/month. [7]

That incentivizes and makes it cheaper for a Sausalito or Corte Madera member (with cars and traffic) to join. The COA should be modified to require a certain percentage of membership to be 94941 residents and no reduced rates based on residence.

And what is the criteria for membership? Is it first come first served or do the applicants get to cherry pick from their friends or from those who “share their values?” To prevent even inadvertent discrimination on some unspoken basis, membership should be strictly first come first served. And consistent with this, membership should not be cancelled without cause.

The applicants say they are not sure about the financial costs but they “expect” dues for Mill Valley residents to be in the range of $150-300/month (rather a large range) and they do not commit on the initiation fee, suggested at the meeting by one speaker to be $20,000 and informally opined by the applicant to be maybe $2,000.

Neither may be correct.

In the interest of DEI, you can ask. The applicants are sophisticated business people as owners of Marine Layer who propose to purchase the building as part of The Project.[8] It is inconceivable that they have gotten this far without a detailed business plan. Membership information should be disclosed. And if they do not have a detailed business plan, as Logan Roy would say, they are not serious people.

The COA should be modified to provide:

Noise and the Roof Patio

As we all know, noise finds a way. The COA allow a 725 sf unenclosed roof patio with an occupant load of 49 persons. More than a professional baseball team 40 man roster. Four fewer than the 49ers football team. Will they make noise that the neighbors will hear? Of course. Alcohol will exacerbate the problem.

The applicants say they will not “sell” alcoholic beverages on the roof deck. They do not say they will not allow members to bring their beverages up from lower floors. Alcohol means noise and danger in such a high place.

If The Project is allowed to go forward, all alcoholic beverages, whether purchased at the club or brought on site by the member should be strictly prohibited on the roof patio at all times.

The 60-Month and Annual Review Under MVMC 20.654.047 was Eviscerated by the PC

It was clear from the PC’s questions that they were totally unfamiliar with and were opposed to the 6-month and annual review of the CUP. Director Kelly explained it was mandated by law because of alcohol sales. The PC still didn’t like a broad review.

The original text of the under this ordinance provided, as is relevant here:

“Per MVMC 20.64.047, the conditional use permit shall be reviewed by the Director of Planning and Building six months after issuance of a Final Permit (certificate of occupancy), and annually thereafter. The review shall include a report on public events held and proposed…..” [Emphasis Added]

The PC amended this provision at the end of the hearing to read:

“Per MVMC 20.64.047, the conditional use permit shall be reviewed by the Director of Planning and Building six months after issuance of a Final Permit (certificate of occupancy), and annually thereafter, including an assessment of the membership model on pages 2 and 3 of Attachment 2 of the staff report, updated October 16, 2023, and a report on public events held and proposed….”

By eliminating the language “The review shall include” the PC has significantly and, in violation of section 20.64.047, limited the Director’s review to only the membership model and public events held and proposed. With the PC’s amendment the applicants could object if the Director were to review alcohol abuse –which is the basis of the ordinance which reads, in part.

“Because establishments which provide live entertainment and/or which serve alcoholic beverages for consumption on the premises could have detrimental effects which are difficult to foresee upon original examination, conditional use permits for such establishments shall be reviewed six months after issuance and not less than annually thereafter….”

This modification cannot legally stand.

Please accept this letter as my notice of appeal of the Planning Commission’s October 24, 2023, approval of the above noted Treehouse MV application on the grounds set forth herein. I do not file this appeal lightly; I have great respect for the hardworking, creative and helpful Planning staff and Planning Commission (on which I served for 6 years, chair for 2). It is with a heavy heart that I suggest the PC has materially erred and that the October 24, 2023, COA need to be rescinded or materially augmented.

Very truly yours

Kenneth R Wachtel

[1] Or an amazing 1.2% if you include all the 32,707 residents of 94941.

[2] Former Mayor Andy Berman, the chair of the MV2040 General Plan Task force, endorses this section.

[3] The proper reference is MVMC 20.60.090 (I)(16)

[4] Is it possible the PC used the circular argument that since there was no on-site parking they should rule that none was needed? That would be an abrogation of our municipal code..

[5] And it cannot change the rule here as that would require an amendment of an ordinance which has its own procedural timeline and process.

[6] Even the ice cream store across the street (heard on the same evening) needed 9 spaces.

[7] I don’t know if the lower dues includes the rest of 94941.It is not clear from the application. Our golf course and community center charges more for out of town users.

[8] The building was purchased by Spruce MVML LLC(itself owned by a series of LLCs) on September 27, 2022, for $3,500,000 so we assume the applicant’s cost to purchase will be at least that amount.

Mr. Wachtel’s extensive community involvement includes: Elected to the Mill Valley City Council in 2007 (Mayor of Mill Valley in 2015 and 2011), Chair of the Richardson’s Bay Regional Authority (2011-2012), Member of Community Development Block Grant task force, Member of the Mill Valley Planning Commission (six years, Chair for one year), Twice selected to be a member of the Mill Valley Bicycle and Pedestrian Committee, Member of the Mill Valley Affordable Housing Committee, Fundraiser for the Mill Valley Community Center, Tam High Foundation and Kiddo!, Task force member on School District Class Size Reduction Task Force, Old Mill Elementary School Site Council (two years. president for one year), Old Mill Elementary School PTA (Committee Chair), Tamalpais Preschool Board of Trustees (President), Mill Valley Soccer Club (President four years, Board Member 12 years),Mill Valley Little League board member (4 years), and CERT (Community Emergency Response Team) Certified.

Notice of appeal 10-31-2023 (pdf 559.30 KB)