Planning Commission - Regular Meeting

Good evening. Welcome to the Town of Fairfax Planning Commission meeting. We're calling the meeting to order. And shall we do roll call? Happen now? Kelly?

Nope.

Here. Troney? Here. Jansen? Here. Pfeffer? Here. Cardozo? Here. And Vice Chair Newton?

Here. Thank you. Can we approve our agenda for this evening? I'm running the show because Cindy's not here, commissioners. So forgive me if I'm a little rusty on running the show.

You're welcome.

Excuse us while we rearrange the Jack chairs here. I will entertain a motion to approve the agenda.

Second.

Now I will entertain.

I will move to approve the agenda.

Second.

Thank you. All in favor?

Aye.

Any opposed? None. Agenda's been approved. I'll read the meeting protocol. The chair shall maintain order at meetings in accordance with Robert's rules of order. And the planning commission has the responsibility to be a model of respectful behavior in order to encourage community participation and citizen input at planning commission meetings. The Planning Commission and the audience are expected to refrain from using profane language and or ridiculing the character or motive of Planning Commission members, staff, or members of the public and to maintain the standards of tolerance and civility. Conduct. All interested persons are invited to participate in public hearings in order to give all interested persons an opportunity to be heard and to ensure the presentation of all points of view. Members of the audience should, one, limit their presentation to three minutes, two, provide their comments by email as described above, three, state their view and concerns succinctly, and four, submit any new documents to the planning staff first directly or via email at planning at townoffairfaxca.gov to be entered into the record. Public comments on non-agenda items. Anyone who wishes to address the Planning Commission on matters not on the agenda but within the jurisdiction of the Planning Commission must do so by email, in person, or via Zoom in the manner described above. Presentations will be limited to three minutes or as otherwise established by the Planning Commission Chair. And we will open it up for any public comments on non-agenda items. There's nobody here in this room besides us. John, is there anyone on Zoom? No? Okay. Then we will close public comments on non-agenda items. We have a consent calendar, and there are no items on the consent calendar.

Can I just say something on the minutes?

Sure. Sure.

So we are, our town clerks have discovered a pretty clever way to get minutes fairly efficiently using this new AI company. And so we're experimenting with that. It just might result in just a little bit of a delay, but we will probably have them for you at the next month's meeting.

Oh, exciting. Thank you very much, Jeff. I appreciate that. All right. We have no public hearings, but we do have a discussion item on the formula business ordinance, a study session and Jeff, take it away.

So the primary purpose of this agenda item is just kind of an initial. We kind of brought suggested code amendments to the Planning Commission a couple months back, and it fell a little flat. And so we're trying again to try to get some input from the Planning Commission on kind of what direction we should go and what options we should explore in more detail. So I've kind of outlined those in about five or six different study session topics, if you will. And so I have a PowerPoint, and I can walk you through that. Here it is. Seeing that, OK. So. Anyway, the goals today are to conduct the study session, hear any public comments. We probably won't have any unless somebody pops up on Zoom or somebody walks in the door. And then the ultimate goal is just to provide some direction so we can come back at a future study session. And I will say that the town attorney is willing to come back at a future meeting, too, if we need to explain some of the more legal limitations we have on the ordinance. So, as we explained previously, the current framework that's in the ordinance now is that there's a CUP required for any formula business. And then there's findings within that ordinance that are specifically focused on community character considerations and other elements that need to be made before a formula business can be approved. There was a court case which impacts us a bit in Malibu, the park at Cross Creek, city of Malibu. It's not exactly the same as our situation, but it did change the ground rules a bit. More or less, formula retail approvals cannot be establishment-specific. Just because it's an easy example and it's in town, I'm not suggesting anything by this, but the Coffee Roastery is an approved formula business, so Starbucks could come in tomorrow and buy out the Coffee Roastery and move in, and that would be under the current conditional use permit. So we can't pick... one formula business over another formula business. They could just like slide right in. I don't think anybody wants that to happen. And then the other thing, so the CP, conditional use permits must run on the land. They can't run with the business. That's kind of the big change. And also you can't confer a personal right to a particular operator. You can't decide that you like Bob, but you don't like Sue. And then Bob gets the formula business approval and Sue doesn't. So you can't, that would be against the equal protection laws. And so the Fairfax ordinance does have attributes that are similar to Malibu and our town attorney doesn't consider it to be enforceable. And also it may violate equal protection laws. So we decided to, the town council decided to establish a 45-day moratorium on March 4th, 2026. Not that we had any formula businesses pending, but we didn't want to be in the middle of updating our formula business ordinance and then have somebody come in and have to approve them in the meantime. So we extended that to March 3rd, 2026. So we have until then to kind of come up with new regulations. Go ahead.

I think you mean 2027. Thank you.

March 3rd, 2027. So we also included an enforceable definition of a formula business within the moratorium ordinance. So formula business, according to that ordinance, is defined as eight or more locations, and it has two or more of the following as part of its business operations. So technically, if a small local business that had more than one location wanted to come into Fairfax, they would be able to come in during this timeframe when we're writing the ordinance. So the current purpose statement of the Formula Business Ordinance we think is probably still okay, maybe with a little bit of tweaking. And so it emphasizes the small town village character, pedestrian scale of Fairfax. calls on business to service the local demand for goods and services, requires a diverse mix of businesses, compatible needs of area residents, all of these things. We think these are good, a fairly good purpose statement and things that the Fairfax would still want to try to achieve with the formula business ordinance. So this part of the code, we don't think we would need to amend very much. But anyway, there is a question here if we think that this captures the goals intent of the town. The current definitions of form of the business is kind of where we start running into problems as written it. applies to just about any business, which would have potentially one or more locations. So a pretty wide net captures just about everything. And it applies to any operation not in Fairfax prior to April 1st, 2000. So we think that this is easily fixable just by using that number metrics that we put in the moratorium, just picking a number, eight or more, six or more, 15 or more locations. And then we can get a pretty clear definition for a formula business. So we think we have a good solution for that. But we would want to hear from the Planning Commission on some ideas related to the location number. Same thing for formula restaurants. So why are they problematic? Captures almost all businesses. Could require almost any business to go through an expensive and uncertain conditional use permit process. It's vague and may violate equal protection laws. And then again, this correction is just to use a numerical standard. The other part of the code which is problematic is their condition use permit findings. All businesses are required to obtain a CUP. Planning commission is required to make a long list of findings. Why problematic? They're vague and could result in an arbitrary process, subjective and could violate equal protection. And then again, the CUPs are specific and transferable. So like any grocery store could replace any other grocery store, any coffee shop could replace any other coffee shop as an example. So the current process is fatally flawed and we just need to replace the ordinance. And I will mention that new formula businesses that we've looked at, like in particular Sausalito and Malibu, which are two of the most recent ones we've seen change. And Malibu changed, obviously, because of the court case. And then Sausalito recently changed so that they could be a little bit more open to some formula businesses and a little less open to national chain restaurants and restaurants. retail establishments both kind of use almost this on-off ministerial process. It's either you're allowed as a form of the business or you're just not. And then that's kind of, that's considered to be more legally enforceable by just saying either yes or no to whether a formula business could go in a particular location. And then also, I think we should still look at drive-thrus. The Sausalito ordinance recently banned drive-thrus primarily, I think. My interpretation is that they didn't want to see a bunch of drive-thru restaurants popping up, so the easy way to do that is drive-thrus, and that's And there's actually nothing legally challenging about that. It's just you just can say we don't want drive-thrus and you just ban them for a whole host of reasons. They interfere with pedestrian accessibility. They cause pollution, greenhouse gases, climate change. There's a whole number of reasons why drive-thrus are just bad for the town. But again, you don't have to ban them everywhere. You can just pick and choose where you want them. Yeah. and they're currently allowed with a conditional use permit. And that's just my favorite photo of all times of a Starbucks, probably during COVID, but still it's a good photo. So these are kind of just the five topics to discuss, and we can just go through these like one at a time and just talk about them. And, uh, and, and there's a, we don't have to limit it to this, but this is just the, I figured it to be a good starting point. And so the first one is. How many locations should trigger. regulations for formula business we currently use eight and and i think that the when the town council put that in in the moratorium language they thought that was a good number because they you know if it's kind of a small local chain that maybe is in the marin or the bay area and it could be something that could work in fairfax they figured that was a good number but then it would kind of block out some of the more regional um or more multi-regional or all throughout California or throughout the United States or kind of global chains. Other jurisdictions have picked significantly different numbers. So San Francisco is 11 or more, Healdsburg's 10 or more, which is kind of similar to eight. And then Sebastopol and Sausalito kind of picked bigger numbers just because they really are only interested in just blocking out the big kind of national chains. And both Sausalito and Sebastopol do ban drive throughs. So that keeps the kind of the restaurant drive through chains out. So there's reasons to use a low number where you capture most national and smaller regional chains and kind of. are a little bit more restrictive on those. And if you use a high number, then you just capture the large chains, but don't capture kind of the larger regional franchises. And that's kind of, I think that's the reason why Sausalito went to 50, is that they were kind of okay with capturing kind of the bigger regional chains, but didn't want the national chains.

So anyway, I mean, we can discuss this, uh, this one or, uh, I'm just wondering if we want to just kind of review the whole thing and then ask questions and then come back and go through, because I think there's some big picture issues that I, for one, want to ask about, uh, right before we get into the nitty gritty. Okay.

I have a question for staff before we start deliberating. Do we need to check public comments?

Well, so what I was saying, Robert, was that I recommended that the planning director complete going through the presentation, and then we could ask questions, and then we can open it up for public comment. Is that okay? Unless you have an immediate question.

One technical question about the presentation we just received. Maybe at this point it's a good moment to do it. I think I know the answer, but I'm not sure, so I want to clarify that. You gave an example that you could have a small coffee shop, and if they would move an other coffee shop, any could take that place. That makes sense. However, and that's the question, if you were to have a limitation on the size of a formula business, say it's 10%, then a coffee shop that has 150 locations cannot take in that order. Yeah, I think that would be correct. That's correct. Okay, so you have that capability to control based on size.

And the town attorney could probably answer this more accurately, and I think the reason that you could do that, or the way that you would do that is you would almost have to have that codified in here with like the eight or more or 15 or more so that it's kind of a yes or no question.

I don't think that's right. The reason I don't think that's right is because I thought what we were talking about was, let's say we chose eight as the number and said, if you have eight or more worldwide affiliated stores or whatever, you are a formula business and you need a CUP. If you have less than eight, you don't need the CUP. Right. So then you get the CUP. You're now a coffee shop with a CUP because you have 12 affiliates nationwide or worldwide or whatever. You decide to sell your coffee shop to Pete's. I don't see what the problem is. I think now it's Mimi's Dozen Coffee Shop Incorporated selling her site and the CUP, which runs with the land, to Pete's. It's two coffee shops. I don't think it matters that Pete's has significantly more than Mimi's Coffee Shop Inc.,

That was not my question. My question was a small store that does not have a CUP, but has a certain service, like a coffee shop, cannot roll it over to any other coffee shop, only one that's also small, not one that's big. Because that was slightly unclear in how it came. Yeah, I think if... So I agree with everybody, but that was the technical question.

Because that would not be defined as a formula business if it had less than eight. Correct. Yeah. But it could be a huge store.

I think that's where our current code is problematic. Like if we weren't to have the moratorium, I mean, we... Like, again, you know, kind of the coffee roastery, which only has two locations, is considered a formula business. So they have a CUP. So any other formula business could just kind of come in there. So that's why we want to move that number. Under the current ordinance.

Under the current ordinance, which has a moratorium. Under the proposed ordinance, coffee roastery would not be a formula business.

Right.

It would just be a normal. We don't have a proposed ordinance, though. We have a moratorium. Well, no. We have a moratorium. That's a completely different thing. What we're talking about is changing our existing code.

But I'm saying under the ordinance that we're discussing what it would look like.

We haven't come up with a number.

What the threshold number would be.

Well, we're talking about if the threshold number is appropriate, and if so, what it would be. Exactly.

Yeah. And I think we have to have a threshold number, but we can.

Mm-hmm.

Yeah, yeah. So I think we're all talking about the same thing. And then, okay. So the other thing that's typical in the formula business codes that we've looked at, which isn't in the Fairfax ordinance, are exemptions. I mean, there's some, like a good example that's very Fairfax specific is hardware store exemptions. do we really want to regulate hardware store under formula business? Because then that would kind of capture our existing hardware store. And it might not make sense. So the other things that are exempted in other codes, not saying that we would do these, but grocery store, drug stores, banks and financial institutions, office uses, movie theaters, because again, And gas stations. And this is because, well, I think for gas stations a little different because there's rarely something that isn't a national chain for gas stations. And we ban gas stations anyway. So I don't know if that would make any sense for us. But so just the question for the Planning Commission, knowing Fairfax as you do, is there any particular land uses that would be obvious exemptions in Fairfax?

And again, I'd like us to keep going through the whole thing and then come back because I think there's a lot of preparatory questions that are not specific to this level of detail. Okay.

Okay. I don't know. It's not necessarily having to do with number two, but it made me think of an item. And maybe the lawyers in your room could explain it better to me. How does a franchise work within this? Is a franchise... defined as the chain or as the personal ownership of the franchise?

The way that we are defining formula businesses in here, it would, it would pick up franchises.

Yeah. The way it's currently defined in the current formula business ordinance has to do with the, um,

the branding of the store and whether, or, well, I mean, there's also, it does relate to branding, all kinds of standardized, you know, color schemes and uniforms and stuff. And every jurisdiction, every formula business ordinance I looked at, they all have this, you know, broad franchisees. They even have a catch-all or other arrangement that requires those standardized features. So it captures anything.

Yeah, it's that or other arrangement. And that's sort of how our local hardware store gets roped in because, you know, they're an independent business, right? But they are franchised with Ace to be able to use. So they get captured, caught up in the formula business web through that way. But the. Okay, so the third one, just going through these. So should Fairfax have a defined no-chain zone? This is what a lot of other jurisdictions do, like Sausalito recently changed their ordinance to only allow chain restaurants in one area. to find a zoning district in one part of town. Sebastopol restricts formula business in the downtown area, but they have shopping centers that are kind of, you know, on both sides of town where they allow formula businesses. Healdsburg restricts formula businesses near, they have like this kind of cute little historic plaza and they don't allow formula businesses around there, but they allow them elsewhere in town. So then the question is, should Fairfax select to define geographic area either to allow or disallow formula businesses to kind of mimic what these other jurisdictions are doing? And so just to look at some maps, the zoning districts, if we wanted to restrict formula businesses based on commercial zoning districts, we could just select them. and list them in the code. And so our commercial service zone, there's only one use in it, Ace Hardware, which is about three acres. Central commercial zone, which is probably where we would logically want to be the most restrictive on formula businesses is kind of in this area. The commercial highway zone is interestingly, the 711 that's kind of over here across the street is, as kind of spot-zoned commercial highway. And then the Fairfax Market is in here. And then this is that stretch that extends all the way out to the Good Earth, mostly on Sir Francis Drake Boulevard. It's kind of a busy roadway. And then the limited commercial zone, which is in only three locations, which is Tennolema, which we're all familiar with. School Street, which we're also all familiar with, and Deer Park Villa are the three. And that would be kind of a pretty logical zone to just not allow formula businesses to locate in because the intent of that zone is it's close to residential. It's supposed to be low intensity, so it may not be the best location for a formula business. And then the fourth is should Fairfax ban drive-thrus? So the current Fairfax regulations allow through drive-thru windows with a conditional use permit and probably also design review would be required. They could be easily prohibited. The two approaches, you could ban them throughout Fairfax or, again, you could just allow them in certain zones, like if we didn't want to make The Java Hut non-conforming, for example, we could allow them in CH, but then you could also potentially get a drive-thru in the Fairfax market area. So you have to be careful with that. And then there's local examples of where drive-thrus are currently banned throughout town. That's Sausalito, Corta Madera, Mill Valley, and Petaluma. And then the last one is what development standards should apply. So currently we have no development standards and particularly if we're going to move away from the conditional use permit process, we'd probably want to have some other limitations applied. So you could potentially like place a limit on the total number of formula businesses allowed in Fairfax. So, you know, you could allow them in certain zones, but then say, and in addition, you can only have X number. So, and what that number is, I don't know, we'd have to pick something that would give people the ability to locate a formula business in town, but not be kind of wide, wide open. You could only allow formula businesses in a shopping center with other businesses that The Malibu ordinance only allows formula businesses in shopping centers and also kind of caps the number as a certain percentage of the total square footage. And you could also require kind of a separation between formula businesses so you don't get a concentration of a whole bunch of chain restaurants all right next to one another. And so anyway, so those are the topics I came up with, so.

Great. Thank you.

Questions, discussion. I can go back. We can go back and look at the maps or if you want to go back.

I'll start on my left. Do any of the commissioners on this side of the table have questions for a planning director?

It's a pretty high-level question, but what are you hoping to get out of this discussion?

I'm hoping to get enough information out of the Planning Commission so we can actually start writing some zoning code. Okay.

Jeff, could you put up your slide that showed the sort of general criteria to judge whether a business is a formula business or not? I didn't see a trademark on there, and I was wondering whether that was considered with regard to branding. Oh, it was there.

That one.

Yeah. Standardized menus, ingredients, food preparation, decor. This is the restaurant one architecture. And then the business is this one.

So I didn't see anything about truly like branding, like, um, you know, similar either trademarks or, or logos, things that are very specific, which in my very brief research of the topic, I saw that some jurisdictions used that language, there was another legalese word that was used that had some mark also that seemed more broad rather than just something that was graphic, sort of brand identity type thing. Okay. It seemed like it would be useful to include those.

Okay.

And then while I have the mic here, can we talk about a scenario? What would happen, say, if a

local business had eight and suddenly went to nine what what happens well if they were already established i mean they might inadvertently become legal non-conforming i suppose but they wouldn't have to close or anything

I saw in one of the municipalities that they had addressed that scenario as an effort to help ensure that the small mom and pops that were sort of the focus of this whole thing in the first place weren't, you know, were encouraged to keep growing.

Oh, okay. Yeah. If you can remember which one that was, we could steal it.

I think it's an interesting dilemma that if it was Mimi's coffee shop that suddenly merged with her sister across the country, does she get penalized and have to move out or something? I don't know what the scenario would be, but I think it's something for us to address. And My last thing I think is just that I think the number choice, I would love for us to talk about that last, just because somehow I feel like that's this stamp of a decision that is kind of penultimate, and I'd like to talk about all the other things first, if that's possible. That's just a suggestion.

No questions, no.

Two quick kind of specific questions as it relates to drive-throughs. Is the car wash considered a drive-through?

I mean, I think obviously... No, that wouldn't fall under the definition of a drive-through. Drive-throughs are generally referred to the... Specifically referred to a window in a car.

Got it.

Getting goods through the window. Yeah.

Okay. So the car wash would be more of an auto-centric use, not a technical use. Yeah. Okay.

Yeah, exactly. And it would be defined as car washes are allowed in this zone. So they'd be listed as... They'd be called out as a civic-approved land use.

Okay. And then... Under the hypothetical situation, if we were to ban drive-thrus either throughout town or in the specific zone that the Java Hut is in, it would become, as I think the staff report said, a legal nonconforming use that theoretically could be passed down to a future use that were to take it over, provided it was in the same land use category, or how would that work?

Yeah, it could actually be... Passed down. Not as a chain – not as a formula business, but as a drive-through. As long as it doesn't – I can't remember what our – I don't know if we're six months or a year, but it's whatever the non-conforming use period is in our zoning code. So they would have to transfer ownership. We actually had this in Sebastopol happen where an old McDonald's closed. Mm-hmm. And Starbucks secretly bought it and had a fish and chips operator operate out of there so they could keep the drive-thru active until they were ready to move in. So as long as the drive-thru window stays active, it doesn't lose its non-conforming status.

Okay, so let me just make sure I understood that. So if theoretically, you know, we hope this doesn't happen, but if JavaHot closes tomorrow and no one either buys or takes it over within six months or whatever the definition is.

And they would lose it, yeah.

Then it would basically have to be torn down?

It couldn't be used as a drive-thru.

Unless a new, oh, you couldn't get the CUP because what you're talking about is just a ban. Just a ban. Mm-hmm.

Okay. That's it for questions on my end. Thank you.

Yeah, so I had some comments and questions. So I'm in a little bit of an awkward position because I was not at the February study session on this, although I did watch it. So I'm coming in in the middle of this. I don't want to throw a wrench into things, but I'm really looking at this I had a bunch of questions I would have asked had I been here in February. You know, this whole process, well, first of all, let me say that I think the current ordinance, the definition and the lack of development standards is a major problem and does make us vulnerable because of the vagueness and everything else. So I think beefing that up is really, really important. And I looked at a bunch of these, and there's all kinds of models out there that really have these robust definitions and a lot of specificity. And they go on for pages, some of the definitions. So I think there's lots of stuff out there we could look at. And then adopting the development standards for formula business approval in town would also protect us. But the thing I was sort of confused by is it seemed to me that that Malibu decision was being interpreted and is driving this whole process based on an assumption that the decision somehow limited or restricted local jurisdiction's ability to regulate and restrict formula businesses. And I don't think it does that at all. And even on the conditional use permit issue, the staff report says that based on that decision, we can't require CUPs for formula businesses. I also don't think that's what the decision says. And I could go into more detail on that, but I don't want to take up too much time. In terms of going to the big picture, I mean, the whole point here, I think, in these formula business ordinances is to strike this balance between protecting and preserving the character of the town and implementing general plan policies on town character, but not being so restrictive that you're prohibiting goods and services that people might want. Some of this is academic in Fairfax because some of the big national chains are not going to come here just because of our size and limited market opportunities and stuff. So the question is, where do we strike that balance And then there's a whole, the way I look at it, there's a whole hierarchy or tiered set of possibilities in terms of restrictiveness, starting with banning all formula businesses in Fairfax to the other end of the spectrum with, you know, the ministerial process in all zones. And I tend toward a more maximalist view of this. And looking at what other jurisdictions have done, I don't think there's a legal issue, but we can get into that. Excuse me. So, for example, just to throw some things out for discussion, because I'd really be interested in hearing what you guys have to say about it.

Can I ask the staff a question?

Yeah, I'm going to ask staff and you guys. Okay. So one question is, you know, have we considered Just instead of banning drive-thrus, banning formula restaurants in Fairfax, which some other jurisdictions have done. Have we considered banning formula restaurants and formula retail throughout town or next year banning one or the other or both in the downtown central commercial zone? And, you know, there's a whole range of possibilities and permutations to this. So I just am concerned that there was this, you know, you said in the presentation that that these minimum number of formula businesses in the different zones was sort of what was thought necessary to avoid legal jeopardy. I don't know what that means. I mean, we could ban all formula businesses in town in every zone. So I think there's this impression being left that we have to approve a certain number in certain zones. And I don't think that's correct from a legal point of view. So anyway, I have lots of other things to say, but you seem to think that I should wait.

No, you can take as much time as you want on questions for staff.

Yeah. Okay. Well, there's a little bit of a blur between questions for staff and discussion among us. So anyway, and I guess another question was in terms of other jurisdictions, you mentioned Healdsburg and, you know, in the hearing that I listened to, And you just said it again, I think, that Healdsburg prohibits formula restaurants. I don't think retail, but formula restaurants for sure. I get it mixed up with like Sonoma. Some of the jurisdictions have banned both restaurants and retail. Healdsburg, maybe it's just restaurants.

They banned big box stores, I thought.

Well, in big box stores outside of the plaza. But I mean, just in the plaza, they ban formula restaurants. And then outside of the plaza, on the northern side of the plaza, formula businesses are just permitted. But on the southern side of the plaza, they're permitted with a conditional use permit. They're not just permitted. So in other jurisdictions, post-Malibu decision, are requiring CUPs. Some have, you know, recently adopted new CUP requirements. San Francisco just amended a lot of theirs, and they've got elaborate CUP provisions neighborhood by neighborhood. So I don't even think that, you know, that, you know, there seemed to be a suggestion that we can't require CUPs for formula businesses. Again, I don't think that's correct. So anyway, I'll just leave it there for now.

Well, it's a good segue into my questions because I have a few. And when I read the Malibu case, I felt that it was focused on, um, you know, like the transfer ability of the CUP from one formula business from a Starbucks to a Pete's and the fact that Malibu's could not be transferred once it had been, the CUP had been given to Starbucks. it could not then be transferred to Peet's, even though they were both in the same business, and both formula businesses. So I was trying to figure out, I'd always heard that our CUPs run with the land. I know that was a thing when we were dealing with Marin Alliance, right? So the CUP would have run with the land. If we... Let's say, you know, we have a coffee roastery, a coffee shop with a CUP. Are you telling me that that coffee roastery CUP under our pre-existing ordinance would not have been transferred to another coffee shop, even if it was a formula business?

I think under the Malibu decision, it would.

No, I'm asking about our ordinance, the way our ordinance was working before the moratorium, which is not a question about what the implications of the Malibu decision are. It's a question about how we looked at how our CUPs worked.

Well, that would have been, they specifically have a CUP for a formula business. So I would suspect that legally, yeah, Starbucks would have had to have been allowed to move in. Now, would we have approved a Starbucks five years ago if someone would have come in? I doubt it.

Okay, so you don't really have a clear sense of what our own interpretation of our own ordinance would have been, this decision influencing the way we look at it. You don't know how we would have treated that. Did it never come up with any transfers? Anyway, okay, let me keep going through my question.

Mm-hmm.

Do you know if there's any references in the general plan to formula businesses or chain stores?

You know, that's a good question. I don't know. I should look that up.

Hmm.

We have your presentation went through four of our zones. We also have a recreational commercial zone. You didn't talk about that one. Now, that one is not subject to the formula business ordinance.

Correct. I don't think that's listed as one of the zones for formula businesses currently.

Right. So in the recreational commercial zone, which is just the Marin Town and Country property, you could conceivably have a recreational commercial use by a formula business, correct?

Correct, yeah.

The recreational commercial zone also says you can have an incidental restaurant with a CUP.

Yeah, I think the thinking is that like a hotel chain could potentially go into the CR zone with even a chain restaurant potentially. So, yeah, you could get a formula business in there.

Well, you get a formula business with a recreational like a tennis club or something like that, right? A recreational business. commercial recreational business gym i don't know or a hotel um is a hotel considered a recreational because hotel is like i think i think that i think they would be allowed in that zone the way it's written uh okay so uh Anyway, we have specific language in each of the zones that specifically applies limited commercial, highway commercial, central commercial, and service commercial, makes the formula business ordinance apply in all of those, but not in the recreational commercial. We also have specific ordinances that say whether or not a restaurant is allowed in those zones, and I don't see a restaurant allowed in the service commercial zone. Do you see that?

No, probably not. So I think that there's only one use in there now, so...

The service commercial zone is that School Street, right? No, it's Ace. It's the hardware store. Oh, it's the hardware store. Okay. Yeah. Okay. So no restaurants in that one. And that one is very specific to the hardware store, but it also makes it sound like you could have a Home Depot or something there. Yeah. Also, we've got very specific language about these outdoor activities often requiring a CUP, but you aren't considering that like a drive-through. The outdoor activity would be maybe picnic tables or something. Is that considered outdoor activity? There's very specific language in some of our zoning about restaurants. In the highway commercial, you need a CUP for restaurants that provide outdoor or fast food service for carryout.

Mm-hmm.

I'd love to know whether that's just, I don't understand. Are we saying that all the restaurants that have carryout need a CUP in the highway commercial?

Technically speaking, yes.

Okay. There's also language in the central commercial that a CUP is required for, quote, drive-up windows or patron service areas and spaces exterior to a building for any use. I mean, it kind of makes it seem like these drive-throughs require the CUP, at least in the central commercial and potentially also in the highway commercial.

Yeah, I would agree with that. Right.

Right. And then I guess we can go through some of these other more specific things. There's a whole section of the code on filling stations, and yet I don't see a single zone that allows them.

Oh, filling stations were removed from the code a few years ago.

Right.

They're no longer allowed. Yeah.

Well, we just have the language in 17104 that talks about filling stations. There's a whole section about the existing filling stations and what they can do and how long it's going to take them to do it. If they need to, you know, replace a broken tank or something like that, they can do that.

Right. Yeah. Existing filling stations are allowed to remain, but there's no new filling stations permitted. So, again, that'd be fall into the nonconforming category.

thing if they went out of business for and closed down for a certain amount of time they wouldn't be allowed to reopen and i also don't see any zone that would allow a movie theater except for central commercial with a cup that's probably correct yeah does fairfax lumber have a cup

I would assume that they do. I could look into that.

Because I would have assumed they would have been grandfathered in.

It depends on when they came through the process.

I think most of these were in about 2000 that this ordinance was created. Is that right?

Yeah, but if they came in for a significant remodel, then they might have had required a CUP. So I don't know. yeah they've i think they've been there since the beginning of time so they would have probably come in as a permitted use originally okay i guess that's the the end of my questions thanks

And so there's no one here. I'm going to open up the Zoom for public comment to see if anybody's in the Zoom room who wants to raise their hand. No. No public comment. Public comment is hereby closed. I will bring it back to the commissioners for a full and fun deliberation. Who wants to start? Do you want to start, Dan?

Yeah, I'll start. So since the bottom line is we need to come up with, well, I'm setting aside the particular threshold on the number of locations. But whatever the trigger is, ultimately, we need to decide what level of restriction regulation we think is appropriate. You know, as I said before, I think, you know, the risk of large national chains coming in is low, but they're probably the real risk is probably with, you know, fast food places, restaurants and pizza joints and stuff like that. So and we're trying to address that through the no drive through and we're making the assumption that that will keep them out permanently. But one question, and this is what I'm curious to hear from people about, remembering that whatever the number is, it's going to have to be eight or 10 or more locations. So it's going to be an actual chain restaurant. Why not just ban formula restaurants from Fairfax is one question. And then if people think that's a bridge too far, banning from the downtown commercial district, the central commercial district, formula restaurants, and maybe formula retail. And then in other zones, formula businesses are authorized through a CUP process. I mean, we can talk about exemptions and exceptions in terms of services. I think formula service business is a little more complicated an issue. Sebastopol banned formula services from its downtown district. So anyway, those are just some initial questions. So let me just stop there.

I'd like to add on to that. I think those are very good questions. I'd like to move it up a little higher. In my opinion, the formula business regulation is the wrong tool for something that's being tried to regulate. The reason that I'm saying that is that there are many services that... will always be a formula business, a bank. There's no single property bank. There are other examples of that. Maybe groceries are in there, maybe not, but certainly some other services like gas stations. So there's many things that... are services that would be useful for Fairfax that you can never achieve if it's not a formula. I think the formula concept was focused on a number of services and businesses in town that we want to protect. And I think there's two things that are, there's really two things that are clear in there, right? The first thing in the formula business code that's currently set there is to allow owner operators. So that is to protect the small businesses that we do have. The other one is the village character. Those are really the only two arguments. And the tool to put that on a formula as a big thing goes wrong when you talk about banks or a pharmacy or some of those things. It would be very useful for other elements like mentioned, right? Restaurants, entertainment. So there is a list of things, sports facilities. So there's a list of businesses where where the town wants to have these smaller scale owner businesses, they need to be able to remain in operation and not be competed out by some big national chain. So I think if you look through it at that lens, it's not about the formula. It doesn't matter if the Redwood Credit Union starts a bank, which is a local small one of a very big or chase. That doesn't really matter to the town. It's not competing with something. And something that wasn't mentioned in this whole story is that the town needs tax revenue. We have not enough money to pay for roads. So I think it wants to be business friendly, not only for small businesses, but you do want to protect the small business. You want to be an incubator. So thinking about it that way, and I think it comes back in this idea that a drive-through is not desirable. And I think that's correct because the village character is a walkable community. You want people to get out of their car. So that's the kind of low-hanging fruit. Yeah, you shouldn't have those because that defeats that purpose. But... I think I would like to point the discussion to what are the businesses that we try to protect in this pre-automobile community that we have. And we can use tools like the area, which is mentioned. Something I haven't heard before, actually, is the size of a store. If you talk about a Home Depot, you could limit, say, 20,000 feet, no bigger, or something like that. But I think we want to, I would like to point it to what is the type of business that does need that protection so they can remain vibrant in this community and focus on that. And for all the others, it doesn't matter if they have a thousand stores throughout town or they just have three, it doesn't matter. So anyway, that's a whole different direction. I'll leave it for here for now.

Yeah, I mean, I just want to jump in sort of at the same high level. So I had similar questions about the interpretation of the Malibu case and agree. I don't even think it says no use permit. It says that conditional use permits are administrative, so you can't do that by initiative because you're taking away the administrative power of the actual municipality. So a conditional use permit issue that the town administers in the ordinary course seems to me like that would still be perfectly fine. I agree that the, you know, there's an issue with our ordinance and that's how vague it is and how vague it's applied because, you know, it, the case also specifically says we don't have to talk about due process. So we're not going to, because the initiative is the problem that they did this all by initiative and they wanted to go to a, uh, just so in case anybody's listening and does not want to hear probably later and doesn't want to go read this themselves. The issue is that in that case, the ordinance said that for any business you have to, you're forced to make a specific plan for the development of the property in addition for that business. And then that specific plan had to go to a vote for every single property in use for, you know, like a general election vote of the voters to be approved. And the court is largely focused on you can't do this all by initiative because initiatives only legislative power. And this is enacting laws and how they operate. And I don't think we have that issue here. But the concern that. They allude to that I think we are seeing in our current ordinance and one that is brought up time and again in many different contexts is the picking winners and losers at the discretion of some small town body. And our ordinance right now does that. But I think a blanket banner saying, with exceptions for categories that make sense, is something that could be administered if people want to say, or if we say, you know, in this zone, you can operate this with a conditional use permit, and here's the findings, then anytime somebody wants to open for example, Formula Service, and we don't know, oh, is this... What are they selling here? Is this going to unfairly compete with Revolution 9 and Fairfax Variety because they're going to sell the same kind of stuff? You know, maybe... That is a formula service business you don't want as opposed to some other kind of branded exercise space. Anyway, all of this is to say I think I reached out to Jeff, and I know he mentioned that we can have a later study session that the town attorney would be at so that we can boil down to what we do and don't have to do because I think – an issue we will see in the town is people definitely don't want us to be more blanket permissive than we have to. And so, you know, for the purposes of tonight, I think, you know, focusing on what we want to get out of any fair formula business ordinance makes sense. But going into details about how we want it to function, I think we should have the town attorney there to say, you know, I looked while you were asking your questions about whether or not our conditional use permits are transferable with run with the land or run with a person they actually you know the process results in you getting a zoning permit issued the same way you get a zoning permit issued for any land use so i i suspect that it's run run so we don't have they run with the land yeah it's fundamental land use yeah

And that was the basis of the Malibu decision because it wasn't transferable. Right. That was the part of the whole – because they interpreted the fact that it wasn't transferable to mean that the town – the city was granting the permit to the – particular individual business operator and not authorizing a use of the land, which we don't do. That's not even relevant to how our process works.

Well, we don't know what we do because I asked that specific question.

I can't imagine that our permits, including CUPs, don't run with the property. Because they list a property on them.

They don't list a, I mean, they also list an owner applicant, but they're for the address to get recorded.

For that property.

Yeah. But, but so just to wrap up the, the one thing I think we do want to stay away from that people have not really raised as an issue is focusing on the small town village character, because I think Well, that may be appropriate for like a general plan kind of a thing. And then we can have our ordinance say, you know, the development has to be done in accordance with the general plan. I think having that kind of language in here for the purpose of a. formula retail ordinance starts to bring in the vagueness thing of who gets to decide what is the small town village character. That's the type of thing I think we need to keep out of our ordinance. That can be dealt with separately.

On that last note, I agree. It doesn't want to be vague, but you can specify that. You would not... you would not use that language. You would define it. So walkable communities, meaning no drivers, period. Size, 20,000 square feet, no bear. Things like that, which are measurable, are facts. So you would not use the fake language, but you can still address that particular purpose that I see in the original code.

Right. And I just think the reason why we want it in here, the scenario where this becomes an issue is if some... Property B is sold to an owner that wants to redevelop it for a use that can be like property A. So if some business that is not Fairfax Market, like the whole site where Waystation is, gets bought by somebody who's like Albertson's something and wants to have a competing store there because they say, oh, the Fairfax Market pays decent wages. We don't have to do that. And we can now compete them on groceries. Right. I think that's the situation we want to avoid because like you guys have said, what is the property here that Home Depot or Walmart is going to buy and try and open a store with?

We're deliberating, right? Yes. Just want to make sure. I believe this is a Um, an item that Fairfax could stand on to make a point and define who we are. I'm all for banning all formula businesses. I'm a little bit, I'm intrigued by your notion, Robert, of defining what is, who we're trying to protect. Because to me, it's the whole community. And I think it's going to be a lot easier to say, let's ban everything except for these essential services or services that we don't believe could adequately serve us. unless we allow them, than to try to say we're going to protect these people but let everybody else go. And I want to give you an example because I don't want to predict the future. I don't want to predict what businesses are going to come into our town and say, hey, we want to do this. And we're like, oh, well, we didn't define you. And so we can't protect you. I was walking down the street last night, last night, and I was able to pop my head into a door, one of the only businesses on a particular stretch of this street that was open. And it was an art gallery that also had about 12 clay throwing stations that they rented out and had classes in, but also was a barbershop. And how are we going to define that or anything else that would come 10 years from now? And that's what I want in our town is some crazy idea that is a beautiful business that might grow into a formula someday and influence the world in a great way. I would love that. So first of all, just my stance is I want to protect our town as much as I can from formula businesses. whatever that means. And I think that it would be better to say, let's not have any except for these essential services for that reason.

If I could, I think those are both really helpful comments. And I agreed also that, you know, who are we trying to protect on the service end of things? I mean, one way to accomplish what you both have talked about would be to ban formula restaurant retail townwide and then have a CUP process for formula service businesses and look at them individually one by one as they come in.

Commissioner Petroni, do you have any thoughts you want to add?

I do, yeah. A few from various, responding to various comments, and so I might jump around just a little bit. I think on drive-thrus, I am sort of unequivocally in favor of banning them throughout town. I don't think they contribute at all to the sort of general plan policies that we have, not just for our town center, but also for other zoning areas. designations. I think I'm fine with our one existing drive-thru becoming a legal non-conforming use. In response to Commissioner Cardoza's point about why ban drive-thrus when you could just ban chain restaurants, because those are the only uses that are theoretically using drive-thrus. That's not entirely true. Banks sometimes have drive-thru ATMs, and the impacts there are just the same as a drive-thru restaurant. It's folks not getting out of their cars. It's conflicts with pedestrians and bicyclists. It's not what we want for our town center and our commercial districts. I also think I agree that this is a valuable exercise and a valiant effort. I think an outright ban on chain stores and certain land use designations is a great way to preserve our legacy, really great, funky Fairfax businesses and to further incubate new businesses from growing. I guess I just don't have as big of a problem with it when it's more For example, in our commercial highway zoning designation where we have existing formula businesses like 7-Eleven, the UPS store, Ace Hardware is a different zone, but it's sort of the same flavor of, I mean, I don't think anyone has qualms about the 7-Eleven down the street. I think on my walk home, I might get a Diet Coke there because they'll be open. And, you know, that's kind of that. So that's just jumping around my initial thoughts. And I think just to summarize, I am all for banning formula retail in our commercial center. And I think no one would be happy if, you know, if school street Plaza is built, you know, the retail there is, is a formula restaurant or something. So I'm in favor of banning it in that zoning destination as well. Particularly as a staff report mentioned that that's that zones purpose is to sort of serve as a buffer between the residential neighborhoods. You don't want to really impact them with a, high-intensity use so sorry for bouncing around but those are my initial thoughts go ahead oh yeah just listening thinking is through so D

protecting those little businesses, yes, that's the point. That's the purpose. But devil's advocate, I also want to look at the other side. If, let's say, a trader Joe wants to open a store and they can do it in San Anselmo with any problem, so you have to go through a COP here, they're going to put it there. Then San Anselmo gets the tax revenue and we're all driving down there. So that doesn't seem useful to me. So there isn't As much as you want to prevent that some larger formula businesses are eroding our small businesses, you also do not want to scare them away so that where there are useful banks, for instance, right? That's the simple example, that they are not establishing themselves here because that would be a benefit to the town as well. It's a difficult balance. And so... That's why I started with, well, maybe there's another tool because it has to do with size. It has to do with the kind of service they provide. And to me, not so much if their logo is on 10,000 locations in the United States or only three. I'm not sure that that is the problem. To give an example, We talked about the Fairfax lumbar. It doesn't say ACE on the outside. That's probably because of our regulations. To me, that's window dressing. I don't care for that stuff.

And if I could just directly respond, I think, yes, I agree with that. But I think that is sort of the point of the slide that you have in here, Jeff, about, you know, what uses should be exempt. Right. And so if we're not if we're saying that banks and other financial institutions are exempt from the formula business ordinance, then they can locate wherever they want. Right. Regardless of how many locations they have.

Yes, well, within limited zones, I think, right? That was the other part of your discussion before. Only a certain zone, can you do that? I guess that's an interesting... Central Highway, the name already says it, right? That's the obvious location. For the others, you can nuance and look where it is, but there are certain zones where you do not want to put them.

Currently, we do not allow banks in limited commercial, even there's no CEP provision, and we don't allow them in service commercial,

recreational commercial they're allowed in highway commercial and central commercial they don't need a cup yeah so they're already limited because yeah because there's the you can't forget that there's also the land juices that are permitted and conditionally permitted in the zone which is separate from formula businesses so they kind of layer on top of one another right and that needs to stay that way yeah yeah

Just one note about the San Anselmo example. I know this wasn't your point, but San Anselmo doesn't have a formula business ordinance, but it requires a CUP for any commercial use over 1,200 square feet. So the Trader Joe's would have to go through a very rigorous process there. So it would be kind of ironic if we didn't require CUPs here for certain formula businesses, but there any use requires a CUP.

That's interesting. Any use over 1,200 square feet? Okay.

Oh, 1,200? 1,200 square feet. That's tiny. It is tiny. Okay. You have to get a CUP in San Anselmo for anything.

Can I just jump in quickly on the CUP point? I think that's when one of the examples given was the UPS store. And I am thinking about some professional experiences with these corporate chains and things like that. I think that is why you want to have a CUP process, because You can have things requiring things like we don't want – we want a UPS store because we want people to be able to have a stationary service. But we don't want the – you have to allow for existing business to keep its branding so you can have the people who owned Avatar sell the ownership and just – to UPS and operate it as avatar with all their mailing services provided by UPS. And then we'll say that somewhere in the store, but people will still be able to use their, you know, retire and manage their business for like another five or 10 years or things like that. And you won't look like um you just sold out to a corporate chain it gives some people flexibility because for me that's the counter side for why you don't ban formula businesses is because you're limiting people's options on who to sell to and what to do with their property and um uh you know i'm also sort of uh broadly in favor with a outright ban on it all and i think you should there should be some kind of compelling case that it's in line with the general plan and things like, uh, banks, medical, like if we had, um, you know, like a lab services place in town, I think that's something people would be interested in or a pharmacy. So you don't have to drive to San Rafael to get a blood test. Um, you know, and having these sort of be conditional uses. So you can make sure it's not like Amazon blood test, at least there's, you know, other options. Um, I like, I, and I assume this is sort of San and Selma's thought process, and maybe they're more well-staffed so they can deal with, uh, dozens and dozens of CUP, um, applications constantly. Um, I don't think we'll have that crazy volume and it still lets you make sure that the proposed use isn't too garish.

I want to bring it back to the things that you wanted to walk through so you can kind of take a poll, but I don't want to do it until I've gotten a few things off of my chest too. So I want to look big picture as well in terms of distinguishing between the purpose and the standards, you know, and one of the things that we see in some of the other jurisdictions are, you know, and, and Robert brought this up a little bit, you know, these references to the unique village character, the diversity of the communities, business district, you know, And I think those concepts of, you know, you have to look at what we're doing through two different lenses. One of them is we want to protect and then nurture mom and pop, small businesses, coffee, groceries, good earths, you know, encourage them to get bigger, you know, starting with air facts, you know, like, uh, We're home to some some really successful endeavors. And we want to encourage that. Right. So we don't want to have like a no number. Like a zero. I mean, you know, there's a lot of people in Fairfax who are going to complain about a number. You know, if it's two, that's too much. You know what I mean? Eight is going to be too much. Way too much. You know what I'm saying? I wonder if we can also think in terms of scope worldwide versus national versus state versus regional versus local. You know, like that way, maybe a coffee roastery's local franchises wouldn't be counted until it got to maybe a lot, like maybe 10. Or regional franchises wouldn't be counted until that went up to eight or whatever. And then statewide, you're looking at five or more than three nationally. You know what I'm saying? I'm just wondering if you can tier it based on sort of being more friendly to the local mom and pop, being more generous, as you said, sort of preparing for them to grow. and spread out a little bit more. So that's sort of one idea without getting into the nitty gritty, but the findings that the decision maker would have to go through to grant a CUP, I think are... an issue that would be very difficult to struggle to kind of, what are the findings we're going to have to focus on? I think they would be geared towards not only looking at protecting these small businesses, but protecting the community, making sure that we have We don't have to leave town to go to a pharmacy. Making sure we can send our packages at a UPS store instead of just the post office. You know, going to a bank, getting, you know, the services I think is a really interesting thing because I was thinking about insurance payments. you know, a state farm, because a little mom and pop insurance broker may not, you know, be a big thing. So exclusions for some of these institutions, as you said, that are probably not going to be at that, they're all probably going to, 90% of them are going to be formula businesses or whatever. So I think looking at that various thing, the other thing is, Our code is so outdated. We tried to look at it years ago and, you know, what are we going to do about things like boarding houses? You know, the language is just really old. It's old timey. I mean, and so, you know, it's hard to even imagine that any of the businesses listed in the CC and the CH, they're all going to be susceptible to being formula businesses. If you know, there's not a, like everything, you know, a dairy products, you know, a candy store, every single one of those things could be a formula business. And I think the real challenge for us and you and the town council is going to be coming up with something that preserves the What we love about Fairfax, the bespoke nature of our downtown, the fact that it's unique. I think some of the other things we can point to in terms of purpose and why we're doing this are economic. The fact that we aren't just, you know, box store after brand name that everybody sees after, you know... fast food chain that's what makes this a place that tourists want to come to that's what attracts people to our town so in some ways it's also economic vitality and you see that reference in a lot of those ordinances from the other jurisdictions and i think we have to focus on that economic vitality uh the nurturing of the mom and pops and the small businesses in our local community uh make allowances for the businesses that, you know, are we going to get a local bank? I remember the Fairbuck. You guys all remember the Fairbuck? Maybe we get a Fairbuck bank. But, you know, that's going to be very difficult. So we definitely, I think, have to come up with a category of businesses that would be excluded. maybe come up with a tiered system for numbering thresholds. I don't know. I definitely think zero is not good. Like, I mean, one. I mean, two. Two is not good. If you have two businesses nationwide or worldwide, you're a formula business.

For example, Stillwater has two. Coffee Roastery has two. there's a bunch of places in Fairfax that have two. So they are all, they would be considered, which means your ordinance is meaningless and serves no purpose because then any, like two, if two is considered a formula business, then a thousand store coffee shop could move into that location because they're a formula business. So if one formula business is replacing another formula business and your ordinance is worthless. So-

Exactly. The lowest number I saw anywhere was Calistoga defines formula businesses, three locations or more.

Yeah. And that's probably an old one.

It's their current ordinance. It's been there forever.

Yeah. Right. Yeah. When was it written though? It's probably not time. It's probably not legal either. Yeah.

Yeah. Well, counterpoint having a number of zero just sort of makes it San Anselmo, right? If you have a CUP process. Stillwater can still come here and then they, in their CEP processes, there's just one other Stillwater. Do you really think that we're, who's going to disrupt the town's general plan?

And then it also depends on what is the CEP process for? Because there's different interpretations. And I think the way that The Fairfax code probably has used it traditionally is to kind of pick the winners and losers and do that. But if you're using it to establish conditions like, oh, you can't have trucks past 10 o'clock and you need to restrict your hours and you have all these development standards, it's kind of framed. the conditional use permit process, that's probably legally enforceable. But once you start kind of using it to say no to you and yes to you and, you know, start making winners and losers, that's where you get into problems.

That's going to be a tricky drafting thing. But, I mean, I know you don't have to – you know this already, but, you know, in looking at – I looked at a lot of formula business ordinances from sort of comparable jurisdictions. And, you know, they're really helpful and instructive in terms of the definitions, the the exemptions that you, you referenced CUP findings. So I printed out a bunch of CUP findings for, you know, formula business CUPs, and they're really helpful. You know, some jurisdictions have given this a huge amount of thought and we can, a lot of it is applicable here. We could also tailor it to our situation.

Yeah. And then also I think blending it with like development standards, like commissioner Jensen's talking about where there's size limits and,

That's really key in terms of protecting the ordinance from challenge.

And referring to the general plan.

Yeah. I have a question. So I hear there's a lot of support to keep a CUP process. And why? Why do we want that? Why don't we nail it down in practice? Numbers and uses and not make it. It's a question. I don't know the answer, but I'm just wondering why you're trying to do that. What's the purpose of it?

You mean as opposed to just permitting a formula business?

Well, making a break. When you say you allow it in these and these and these kind of categories and you allow it to this size and you allow it in these zones and those are the rules and that's it. And there's no COP process.

Yeah. You know, my reaction to that is, you know, we want to ban heavily restrict formula, certain types of formula businesses in certain areas of town. And then, Assuming we're limiting it to service business type businesses, there's such a variety and there's so many issues associated with citing a formula business and its impact on the town that I would think we'd want to take a careful look at each one of those. as opposed to just allowing a form of a business to come in as a matter of right?

Sure. I understand that. But I think the danger there is that it's ambiguous.

So by not doing it... We have to prepare development standards that can be defensible in court. that they're objective and specific and clear and we apply them consistently.

Understood. But so if you make those definitions that accurate, then why not completely abandon the COP process? You put them in the zoning code. And they're right there. You cannot be bigger than this. You can only do it in that zone, and it can only be these kinds of services.

That's the proposal. Yeah, but then you don't have... That proposal is a ministerial process.

So that's the question, right? If you are able, and I'm not sure we can, and I don't have the answer. I'm not advocating one side or the other. But I think if we go through the trouble to define it that accurately, and with all the information we have from other towns, then maybe we don't need the COP process and you avoid the ambiguity. And then, I don't know, it's a thought.

I think we're better protected if we have the capacity provided by a COP process to look at a particular business, impose conditions that are addressing the specific impacts of that business. you know, just gives us more discretion and authority to affect deciding of a business.

Yeah. I guess one of the main reasons, like we said, is what types of conditions you want. And if you have a limit of two or something, I'm just going back to a grocery store example and saying that you can't like, you know, you can't, hours requirements. You can't just do goofy tricks that a more well-resourced national chain can do to temporarily out-compete a local business. And then once they are the only business, because the other one can't compete, go back to this sort of operations that people dislike. And the other point is just with a CUP, for any real expansion, they have to come back in any change. And if it's just sort of by right, a zoning permit, any sort of state law change that affects their ability to redevelop, we're not going to see again. And their character may be very different.

So here's the thing that worries me in that scenario, right? The COP runs with the lands. So if you make – and we'll go to two things. If you make the number low, you open it up to the entire world because once they have a permit, anybody with any amount can come in. So that's – You mean to other formula businesses? Correct. You can take it over. And the same happens with the COP. Once you say, okay, you have a – A business that you can't really qualify, yeah, you're going to run it through a COP process. Now you approve it. Well, that runs with the lens. It means from there on, everybody with something similar can do the same thing. So I'm questioning how smart it is to do it that way instead of just nail it down in a numeric way. Because then... And then regarding the number, once you are a formula, you probably need to pick that number fairly high because otherwise you open the gates.

It's almost like a catchphrase too. You end up in the same place with a successor owner being able to operate and utilize the land in the same way as the original approval. It's just the original approval with the CUP allows you to really take a careful look and impose conditions tailored to that business. And any successor to that CUP approval has to meet the formula business development standards and would have to adhere to all the conditions on the original CEP. It's the same process. It's just one would be done administratively, the other one through a CEP process, which gives us some input, for example, and the public.

And I like the flexibility that the CUP provides, even though I agree it opens the door for some trouble in some ways. But I do think that we want, again, want to nurture homegrown businesses that are expanding beyond numbers that we might try to envision now. And I think if we made arrangements or plans you know, address that somehow in our definitions, maybe there's a way to get around it, but I think it gets very complicated pretty quickly. But I agree that if you give a CUP to the coffee roastery and they decide they're going to retire and sell the business, Pete's can come right into that CUP, operate under the same conditions, regardless of, like, how many more exponentially the franchises are associated with Pete's than with the coffee roastery. It doesn't matter. They would still be subject to the same conditions under the CUP, but they'd be able to put the Pete's sign out there and then our... almost unique coffee roastery sign becomes a ubiquitous Pete's or a Starbucks.

They'd have to meet the additional development conditions that are relevant to a formula business. Correct. What do you mean? It might not be attached to coffee roastery. So coffee roastery has a CUP, you're saying. It's not a formula business CUP. It's under our current ordinance. I'm okay well I guess mmm if we adopt the new order yeah if the number went to increase so they wouldn't be considered a form of the business under our new ordinance so if they then sell to Pete's what does that mean I don't know this gets now we're talking about a new ordinance that nobody's written yet so we're right we're talking about a frame or informing the content of that or right yeah I think we're assuming that

That if we change the ordinance to have like a higher number, such as eight, then the pizza would no longer be able to come into that space. Yeah. Okay.

But again, I think it will raise concerns whichever way it goes. For the steadfast people that want no Pete's, no Starbucks, no nothing, and they think our current ordinance protects them from that, that ain't the case. right? Our current ordinance leaves us vulnerable to a CUP transfer from a nice, friendly Fairfaxian formula business to you know the nationwide worldwide formula there's no restriction on a transfer other than what the conditions of the permit are is is that true also with the moratorium that we have in place right now the speaking about today right we have a current more if you have

No, but we have temporary moratorium, right? Yeah.

If you have more than eight formula businesses, you cannot come in anywhere in town.

Right. And so my question is with the potential CUP transfer for a coffee shop, the moratorium applies, right? And so Pete's couldn't come in today if they wanted.

As long as the moratorium's in effect.

Right.

You want to go through your slides and just walk us through each one of those slides?

Yeah, sure.

Can I ask one question before we get there? It's a topic that you've brought up a couple times about this idea of protecting local businesses and actually even allowing them to flourish. Is it, I don't know enough about business law, is it even possible to define sort of a locally owned business to sort of protect it? How do you, how would we do that?

Yeah, I guess you could define. You could make it very tedious for a not locally owned business to come up like any anybody can ultimately get a. get around it, but you could make it much more of a pain in the ass, like having you be required to be registered here, have your principal place of business listed here for mailing. You can't have different service of process agents or things like that elsewhere. It just makes it expensive to...

If we could go to the numbers last, that would be good.

There we go.

Last. Exemptions. I heard banks and financial institutions at least

Well, let's talk about the first one on your list, which is gas stations. And remind me, you say we already have a ban on gas stations, right?

Yeah, so I don't think that's necessary for us since we already banned gas stations. This is just from another code, other codes.

No, but there are two, and they could sell it to another watch company.

Yeah, so if you wanted them to just be able to sell without – I mean, I guess technically if I think both of our gas, one of our gas stations looks like it's local. I doubt either one of them are really local.

Right.

So if we continue to delude ourselves that they're locally operated gas stations and they transfer it to another corporation that makes it look like it's still a locally operating gas station, then they'll be allowed to continue.

Yeah.

I mean, we could make it easy by just exempting them because we know that all gas stations are pretty much international companies and there's probably no exceptions to that.

But anyway. We don't have a well here in Fairfax. No. To me, but it's not that important. But, you know, in order to be just honest to ourselves, I would like to avoid those pretend kind of setups because they don't make any sense to me. So we have two gas stations. If for whatever reason they will change in the future, they would be exempt because we know that all the gas suppliers are national companies.

Okay, that is going to be very, very contentious. There was a gas station where that... barbecue places, uh, the way station. And I think it was an Exxon or shell tried to come in and, you know, the people were really upset when they heard that the formula business ordinance didn't apply on that particular property at the time. And, uh, uh, And there were a lot of other reasons why it eventually was declined, I think, here in town. But if the Marin Alliance gas station, suddenly a shell sign showed up there, there would be pitchforks, Robert.

I'm adventurous, I know.

So I think that if we're going to include a formula business provision, we really should recommend that it be applicable to the gas stations.

It does help us with regulating signage and design because the Marin Alliance gas station is pretty much Alliance. It's a big international gas station chain, but we were able to... But they're a franchise, so they're locally owned and operated, and they are just using Alliance Gasoline, but they were able to kind of brand that location so that it's a local branding. So it does help and get to kind of that local branding.

The only other note I was going to say about this is that what we would theoretically be doing and including gas station or in not exempting gas stations from the formula business ordinance would be to make it much less likely that if one of the gas stations close, that it would reopen as a gas station. Right. If we're not allowing it to be a national chain and. I don't know where I land on, but if our zoning code bans gas stations, it seems like a use that we're not really going for, and maybe that's okay.

Yeah, no, that's a good point. It's not that relevant, actually.

I think we could safely leave it off at least our exemption list and just have it.

Commissioner Pfeffer, did you have another thought on that?

No, I'm sure my point will come up on a later number.

Okay, so, you know, as I mentioned, the grocery store is addressed very specifically in our code. Why do I keep losing? Because I have too many pieces of paper. That's why I keep losing the one that has all the key pieces here. So grocery stores are not allowed in limited commercial, the CL. They are allowed in highway commercial. They are allowed in central commercial. They are not allowed in service commercial. It occurs to me we definitely need grocery stores, and our little 1968 version of a grocery store now has – you know, shops outside Fairfax. So, you know, there's the perfect example of a growing grocery store franchise that we want to encourage to keep getting bigger and bigger and bigger. You guys have thoughts about grocery stores?

What's the expansion? I'm saying the good earth. Oh, good earth. Good earth. Yeah. Yeah. And there was a testimony at your February meeting that, um, Fairfax market was going possibly being sold to grocery outlet or something. Do you remember that testimony?

Yeah. Grocery outlet was, uh, investigating that as a potential location.

Do we know the status of that?

Well, there's currently a moratorium on formula businesses. They would be a formula business. Yeah. Yeah. Yeah.

Well, the IGA itself is a small family owned entity, but it has more than one location. So the current Fairfax market is, I would assume, operating under a CUP for a formula business.

I would have to investigate that. I don't know.

And I wonder, because I do remember when the gas station thing came up, it was, I thought that there were, I mean, when I look at this code, everything, all the commercial zones except recreational commercial refer specifically to the formula business provisions. So I think those formula business provisions apply in all four of those zones. But I have these vague recollections that that may not have always been true in the CC and CH.

There's some language in the code that implies that if Maybe there's something adopted in 2000, because anything before 2000 would kind of be grandfathered in and the formula business ordinance wouldn't apply. So.

So, grocery stores is very relevant here. So I'm thinking. this is a great example to not exempt it, but have a more straightforward and easier CPU process. Because for example, if a formula bought out the fair, you know, Fairfax market closed, but hooray, one month later, somebody wants to open a grocery store. It's a formula business. One condition that people have asked why, why the town can't do this to me. And I think it's actually good use for conditional use permit is You can't just block off your parking lot on big town festival day. So you can't say if somebody, if a chain buys out the Fairfax Market Space, we say, oh, it's the Fairfax Festival. You can't have a completely empty lot and say no signs if the town is closing down streets for some kind of event or event. I don't know, something like that. But that's not something that you would put bake into a code automatically. I think that's like sort of site specific because the good earth started out at one, two, three Valenas. You would never, you know, if they have two parking spots, you can't say you got to keep those open.

Yeah. Grocery stores are tough because every grocery store is a chain. So. You either have to, if you ban formula businesses, then you probably wouldn't be able to get a new grocery store in that location.

Yeah, I think to me, grocery stores go in the big bucket. That is rarely something that you see in a small version and unlikely in the future. And for those few that we know, historically, they were able to compete against in that world because they provided something that was unique and different than what the general grocery stores do. It's a difficult one, but I think having grocery stores is so important and such a universal surface and is typically so big that I think it should be exempt. But I'm leaning toward that way.

I think it's also worth noting that our existing grocery stores are both in the CH zone, which theoretically is a zone that at least the staff report seemed open to allowing formula businesses in. I mean, there's no current parcel in the CC zone that is appropriate for a large grocery store to locate in. And so depending on where we land on whether or not we want a chain grocery store um you know the other added element is where we land on what zoning designations are are have the band and what don't right it doesn't have to be a large grocery store yeah no no as a part of the definition sure I'm just saying that you know I don't know of any chain grocery store that would want a space that is the size of a parcel in the cc zone at the moment do you gus like this sort of like boutique upscale import grocery spots those sometimes have very small footprints they have a location that's that's you know whatever 5 000 square feet or something like that i'm pretty sure there's one in san francisco that's very very small i stand corrected

The Fairfax Market parcel is probably one of the few that would be really ripe for redevelopment because of its size and if somebody was going to come into town. But again, because of the size of the market, the Trader Joe's and the Safeways and Whole Foods are probably not interested in coming here. I'm okay exempting it, I think.

do you guys just want to talk about all these then like at once drugstores, banks, office users, movie theaters, you know, we get some big AMC movie theater in Fairfax. You okay with that? Another bank of America, a CVS.

How do you guys, well, drugstore is another example, you know, given the consolidation in the pharmacy world, we've got two pharmacies that companies that control like 60, 70% of the market, uh, It's hard to imagine CVS or Walgreens coming here. In fact, probably our only opportunity would be some small independent pharmacy store, you know, providing personalized service. And if we allowed a CVS or something to come in, we certainly wouldn't get that. So I don't know.

We had one next to, you know, I think when it was Albertsons, right? In the, that space in the bike shop, the... Oh, Split Rock. Yeah, I think that was a pharmacy when I first moved in here. So you could have a pharmacy attached to a supermarket too, you know, and it could be a big brand name. I don't think we want to discourage CVS or Walgreens in any way, shape or form from coming here.

Yeah, I don't disagree with that. I'm just saying realistically, it seems unlikely, but.

Yeah, I think the former, I think you can look at all of those together because these are all, well, exempt the gas stations is a separate story. These are all services that we are okay in having. And all of them in the current world are large companies. And so I think we're making an academic discussion to not, if you don't exempt them, then you're basically saying you don't want them. Now, it doesn't mean they're gonna run over town, no, because there's a limitation. We have limited markets. So there's no Walmart coming here. I wouldn't see why that would make any sense in any form. But I think as a town, you'll want to open it if one of those want to do it, because it's also good for the town in a certain way to have those services. So I think you want to be realistic. And so to me, all of those can be exempted.

I'm okay accepting most of them, but for movie theater specifically, it's kind of a business where the property is developed a very specific way. It's difficult for somebody more expensive to change the use, and that's also an industry where some people may say, oh, I want to... I've always dreamed of owning my own movie theater in like a town like Fairfax. And if I'm the local person and this is my one opportunity to do it, but if they can sell to an AMC, there's no way that I'll be able to compete with that buyer. There's, you know, also a, I think, bare chance of, in not the next five years, but 10 to 20 years out of more robust antitrust interpretation. And that could affect the distributor film business and make it easier for smaller or individual independent operators to compete because If you're separating the distribution from the exhibition in an actually meaningful way, you solve at least some of the issue. it's, you know, if I had randomly $30 million and I found that property open, I'd be like, I want my own movie theater. I'll operate it. Um, and I'll be the only person working there. And so I don't have to have a substantial profit and I won't be able to compete with AMC as the buyer.

I have visions of cinema Paradiso, but, um, yeah. Uh, I don't know about the movie theater. I hear what you're saying, but I don't know. I think it's an interesting takings question in some ways if you wanted to limit who that theater could be transferred to moving down the road. Do you think? I mean, if I was the owner, current owner, I certainly wouldn't want you to limit my ability to sell some nice big chain someday. But I guess that's going to be true for anybody.

I was just going to say that's inherent in this formula business issue, yeah.

Mm-hmm. So if we didn't exempt the movie theater, the existing movie theater would, like the Java Hut, become a non-conforming use. Mm-hmm.

Yep. Why is it non-conforming? Because you can have a movie theater now.

Oh, you're right, because I don't know how many they own.

Yeah, it's just one theater. There's nothing non-conforming about that.

Oh, it's not a chain now. Okay.

Right. Not that I know.

It's Cinemark.

Cinema West. Cinema West. Yeah. There's at least 10.

Do they have more than one location?

Yeah. I mean, they're all branded differently. So like Larkspur Landing is called Larkspur Landing Cinema, but it's the same owner. And there's a couple locations in San Francisco.

Probably qualifies a formula business under the definition. Yeah. In that case.

It's done that way because of the silly, easy way to get around owning distribution and accession.

But so then that means it doesn't matter whether you're included or excluded because it already has a COP, which already transfers with the land, which already allows a formula business. So it doesn't matter. You can just as well exempt it.

Unless you want to have another one somewhere else. Yeah.

Or unless it stops operating for six months or a year.

I was going to say, or doesn't operate consistent with the development standards or changes the use somehow.

Okay.

You know the next one? Okay. We've beaten that horse a little bit.

Okay. Okay.

so should we have a defined no chain zone i think the answer here is yes it just what is that zone cc obviously cl i would throw those two out there as yes yes no chains in those two zones but any any other zones well it depends depends on the use if we're going to divide it up you know one proposal would be no formula restaurants in fairfax in any zone

And then there's the question of formula retail. More complicated. Yeah. What I said before was that it seems like fast food chains, pizzas, places are the greatest risk. And, you know, I would support banning all formula restaurants, as many other jurisdictions have done, either citywide or in their downtown zones.

I'd be fully supportive of that. I think that's the key element. Regarding the rest, I think CH is obvious. If you talk about Where you are allowing chains, I think the Central Highway, well, it's in the name already, the CH zone is the one where you would allow them. And then I believe the Lombard sits in CS. That's the weird exception. So that one, I don't know why there are two different zones, but I think those two should be allowed, meaning all other zoning zones. could never have a formula business. Sorry, we have to go back a slide.

Could you repeat that again? Go ahead. I have something to add after you're done.

Oh, I was thinking, I was reversing it. What zones do we allow it? I think you do not allow formula business anywhere in any zone except CH, and I believe CS, which is where the... Jeff, could you show the map?

Could you possibly put up the map? Highway, commercial, and then...

So CS is the ACE hardware. So I would suggest just adding hardware stores to your exemption list. Maybe a hardware store smaller than a certain size if you wanted to prevent load.

So you could have a hardware store in another zone?

Well, you just exempt them so they could go in another zone if they were smaller than a certain size.

I really don't understand that thought process. I'm sorry. You want to allow formula business hardware stores in any zone?

I'm just looking for, or well, at least in the CS, I just looking for ways to leave our existing restaurant as possible.

Right now, our zones kind of go through everything one at a time. We have the, you know, CL zone and that does all this stuff about what can, can't, what needs a CUP. Same with highway commercial. So when you just get to CS, you don't change it. You don't, Yeah, okay. You leave it the way it is, right? Which is, yes, they're still subject to a formula business ordinance, right? They would need a CUP, but if we aren't, you know, I'm unclear about hardware stores in the other zones. I don't think there were specific prohibitions in the other zones, but we, you know, we list all these zones. allowable uses in painful detail. Right? Hardware stores are allowed in the CH. Hardware stores are allowed in the CC. So that's the way you address that. But they would be subject, because they're in the CC and the CH, they would be subject

Presumably to the formula business. Right, okay. I was just asking the question, so they are a formula business.

Can I just ask Robert to clarify, just so I understand what he threw out there. So you're talking about, except for the exemptions, formula businesses would be prohibited in the central commercial zone, but allowed in the highway commercial and commercial service? Is that what you're saying?

I was going in that direction, saying that as a blanket, they're not allowed anywhere except in these and these and these zones. With the CUP? With the CUP, yes. However we regulate the formula business, that applies, whatever that regulation is, but then they're only allowed in assigned zones. and therefore not in all the others. And the ones that are obvious is CH, CS, because you'll have them. Then CL is we have to think about it, and particularly CC. And that actually brought me to another idea. Because we're talking about zones, I think probably the most critical component is the downtown area, which is not a zone. And that's this whole story of whether or not downtown is a historic district or not, which is currently it's not. So there's this whole fuzzy thing that sits underneath this that we have never really resolved.

Well, I think of it as the central commercial zone, the downtown central commercial zone is the historic downtown.

Yeah, I think that's right. Not entirely, but yeah.

Yeah.

So that I think is, that's why I didn't list it initially, because you could, you could determine, I mean, to a degree, it is historic, because that is why people have it the way, that's why it looks the way it is. So maybe you should not allow them in there. In that zone. You're not allowing... Yeah. And then the only caveat there is we're saying it's the same thing. CC is the historic downtown. I'm not sure that's entirely true. But that's a nuance.

That's the current zone. It'd be really complicated if we're going to try to adjust those lines.

Well, didn't we just discuss that we're going to throw out the whole zoning code and we redo it? Didn't we? Yeah, exactly.

Yeah. Yeah, I think the, I mean, it'd be super easy just to say, it's probably the only easy thing about this is just say no in CC and no in CL, just no formula businesses in those two zones, period.

I'd like to say you had me going. I was totally on board with your sort of understanding of only the exempted categories would be allowed in these particular areas, which I would have stopped with CH, actually, and not gone, depending on what we think about the hardware store, not gone anywhere beyond the CH. I think historic or not, the scale and pedestrian-friendly zone is the CC, and that would be the most off-limits to me.

But that's an important distinction. You're talking about the exempted formula businesses, and you were talking about all formula businesses, right?

Correct. All formula businesses. Restaurants, retail. Correct.

And the other zones.

Maybe I misspoke. What I'm saying is there shouldn't be any formula businesses anywhere except for CH.

I think I would have some quibbles. with some of those little spots on bolinas avenue that have historically had like oh there was an insurance broker a tax accountant or a real estate firm that you know maybe a franchise real estate or maybe a broker with a different affiliation with a larger insurer or something. So I'm a little reluctant to have absolute bans.

This could be added to our list of exemptions. I mean, a lot of the other jurisdictions on the service formula, formula service businesses include all those uses that you just described. Ours is more circumscribed. But, you know, all those kind of service oriented businesses are often exempted under these ordinances. So that would be a way of addressing that.

Yeah, I think my tendency is to probably try and make this as complicated as humanly possible with tiered definitions, whether it's worldwide or countywide, you know, franchises versus.

Well, like that exempted or not exempted. So insurance would be exempted, everything you...

Right, but even in the downtown, if you didn't have a CUP and you had a number over one, you would have to worry about coffee roasters, which is there now.

You're focused on the current ordinance, and I'm talking about how we're going forward. So these formula businesses... the formula service businesses would be exempt from the prohibitions in the zones and CUP requirements or anything.

Right. So while I was talking about scope and tiering scope from planetary down to county, you were talking about services and retail and restaurants and having different potential approaches depending on what category of businesses we were talking about, right? Right.

Yeah, and so that's how it would work. I mean, once we come up with a definition of formula business, whatever specific number of locations, if a proposed restaurant has more than that number of locations, it's a formula restaurant. If a retail business has more than that number, it's a formula retail. And then the question now we're talking about are these service formula businesses. So insurance company with more than 10 locations, blah, blah, blah. And, you know, that's sort of the basic structure in all of these ordinances. And it's a kind of a. simple way to divide it, you know, and the most restrictive ordinances or the most common restriction is on formula restaurants. Next most common is on formula retail. And then the exemptions are treated different ways in different jurisdictions, but in a lot of places they're just exempt or with a CUP.

I think we're convoluting a few things in my mind. So I think what sectors and exempt or not, let's forget about it for a second. I think all formula businesses can only occur in commercial zones. Let's forget about the details. Let's forget about Fairfax for a second.

There's no formula businesses outside of commercial zones.

Never. Within the commercial zone, you have certain services that are exempt. That's our exempt list. That's easy. All other services then have to follow the COP process, however we define it. So there's no different allocation for exempt services or non-exempt. That doesn't matter. If it's a formula, you may only allow to do it in a commercial zone. And then because Fairfax has five commercial zones, even though it's a tiny little town, it becomes complicated. But, you know, for starters, say it's allowed in every commercial zone and then maybe some not for a particular reason, which is fine. But it applies to all of them. If it's a bank and we exempt banks, then you can put them anywhere. And if it's a restaurant, it's not and it has to be regulated. And then whatever we come up with the next slides, you have to do this and this and this and this.

Right now, we have five zones and one of them doesn't have the formula business attached to it, the recreational commercial. So under what you just said, would you propose that all five zones be subject to the formula business?

We're not specifically focusing on Fairfax. A commercial recreational zoning could have a very large company operating. It's no difference than a CC or a CH. It's a commercial zone. Only the C matters. This fine grading historically probably has a purpose, but we're getting a very detailed discussion. The concept is that in a commercial zone, all five of them, formula business may have interest, they may occur. And then the question become, well, is it an exempt function that it's allowed or is it not? And then it goes through the COP process.

is whether it's banned in that commercial district.

Or whether it's overall or banned without. Yeah, so like the drive-through is banned everywhere. So that's above it.

Yeah, an example, you know, central commercial formula restaurants, it's prohibited. Or formula retail, prohibited. Yes. And then we can go to what happens.

Right now, however, in the commercial recreational zone, There is no ban on any formula business, and that use can have an incidental restaurant. So under the current ordinance, we would have to address that last zoning area and include it in the formula business.

It's a procedural question. I guess the way I've been thinking about the process is, is that we'd have these sessions. It goes to council. You'll get direction. We'll keep extending the moratorium up to two years. You'll draft a final ordinance. It will come to us. It will go to the council for adoption. And then the moratorium will be lifted. So we're not at risk during this two-year moratorium period of projects coming in.

Right. No, I'm thinking about after we adopt a new ordinance, what would it look like? And what I'm suggesting is we currently have the formula business ordinance applicable to four out of five zoning commercial zones. And so in my mind, that doesn't necessarily make sense. As you say, you could have a big corporate business.

franchise recreational business there right so or the first case scenario is um a fancy hampton inn that passes themselves off as a resort with a drive-thru starbucks in the parking lot so that could potentially happen there by right so or with a whatever it's required in the cr so

So it's interesting because what you're saying, I mean, yeah, so like I feel like we need to look. It's like a Rubik's Cube. It's like the three-dimensional chess on Star Trek. We need to look at the numbers. Maybe we'll get to that. Are we getting up to the numbers yet?

We'll get there, yes.

And then the potentially different categories of businesses. And then the different zoning areas, maybe we treat CC differently with respect to formula business retail than we do formula business services. You know what I mean? So we just kind of have to break it down one by one. And I don't know what the best way to figure it all out is going to be, but I think it's going to be whatever way works best for Jeff.

Yeah, I'll solve it all. But no, I do like the idea of just, I mean, as reviewing some of these other codes, it's like the easiest way to go is just basically just, you know, no formula businesses in this zone, no formula businesses in this zone. Yes, formula businesses in this zone. And then whether it requires a CUP or not would be the question. So that's as simple as it gets. And then we, then everything else is kind of, Adds to it a little bit of complexity, but also more in the helps us with the, um. Review standards, you know, you want to put size limits and dimensional requirements and all those things in there to make it a little bit more legally enforceable. So, I'm kind of getting a general idea of what it could look like, but, you know, there's probably a couple more study sessions to torture you guys with before we get to a code.

I would recommend keep it as simple as possible. I see so much. If I look at that map that's on there, the granularity of that, that is like something frozen in time.

Anyway, it's just a person. I actually think the most complicated part of it is going to be drafting the definitions and the development standards and beefing all that up to make it as bulletproof as possible or at least suggest an objective-like set of development standards and definitions and stuff. I think that's the most complicated part of the whole thing. I mean, figuring out where formula business is prohibited or allowed or CUP or not is pretty straightforward.

Do we come to a conclusion on this?

Yes. I believe yes, but unless, yeah.

Our current code allows for drive-up windows or patron service areas with a CUP in central commercial.

Yeah, our current code is really bad on this particular area. It's very hard to know what it's trying to do. So whether we change it for this or not, we should fix it one way or the other.

Okay, if you want to fix it, there's a lot of thoughts I have on fixing it. So one of the things that was confusing is this outdoor uses issue and whether... Drive-thrus would be included as outdoor uses. Because all those provisions of the zoning ordinance, the commercial zoning, you know, basically say if you want to do this business outside other than like a nursery or something that's outside naturally, you have to have a CUP. Mm-hmm.

And you have to have a CUP for a drive-through now also. Right. Well, that's what I'm saying. CUP regardless. Yeah.

In the central commercial.

Mm-hmm.

Yeah.

Which would, I think, be a terrible location for any drive-through, so.

And then maybe we could address the takeout question, too, if we were going to fix it. Because, I mean, you would know.

We do have takeout windows.

Yeah, I mean, it's terrible. Takeout is ubiquitous, right? Like everybody's got takeout, but that seems like also potentially problematic to allow takeout anywhere.

If you're asking from a transportation perspective, right? Takeout doesn't factor into parking generation or trip generation. It's just kind of baked into the use of the analysis.

I think the background goes back to our walkable community. You want people to get out of their car so they meet somebody else or do something else. And every commercial function attracts traffic in some form, including cars. And that's normal. And whether you run into the store and take out food or you run into the store and buy a postcard, that granularity is not there. So I think it's the drive-through. You stay in your car. You don't get out. You idle your machine.

What kind of direction are you looking for on this one? I mean, I think there seems to be a consensus that we don't like drive-through restaurants. There's some support for no formula business restaurants at all, which takes care of the drive-through issue.

Not necessarily. Not necessarily.

Well, my proposal would be to ban all formula restaurants.

Right, but you could get a non-formula restaurant with a drive-thru.

Well, okay, so that's where I was going with that. So ban formula restaurants, ban any drive-thru business, or at least drive-thru restaurant.

But the drive-thru banks are just as bad.

Yeah. Yeah.

So, I mean, it's in any drive-through business. From a vehicle perspective, it's super easy. You just say no drive-throughs and you're done.

Well, drive-through, except the car wash is understood to be drive-through. And a drive-in theater would be potentially okay.

I think what, when I asked the question about the car wash shift so that it's not considered a drive-through.

Because it's a different land use type. Right, right, right.

But so it does sound like there's consensus on banning drive-thrus. I guess the question, I guess, in my mind is, are we talking about in all commercial zones or are we talking about specific commercial zones? I think if I'm throwing my vote in the ring, I would say in all commercial zones. I don't know that we would benefit from a drive-thru even in the highway commercial designation. We want to maintain walkability there because those are important neighborhood serving retail spaces. That would be my vote.

Are we really in danger of drive-through land?

You're in danger of getting a couple, yes. I could easily see one going in Fairfax Market, for example. That'd be an easy place to put a drive-through. But if we had... Yeah, okay. I've seen it in other communities. It's like that's very attractive. Drive-throughs are very attractive right now because they're moneymakers. So you can put in a drive-through like... Starbucks, 80% of their business comes through the drive-thru now. So it's a no brainer.

They might think they could tap into the Sir Francis Drake traffic going back and forth. So let's ban them.

I would just ban it, but that's me.

I'm all for banning drive-thru restaurants. I'm worried about just doing a drive-thru ban. What's the next photo, Matt? I don't know. Maybe I do want to drive through the UPS store so that I don't have to load my packages down through the parking lot or Maybe I want to drop off a piece of mail and drive through to do that when the post office closes, which could happen.

Well, they have that. It's called a mailbox.

I understand. It seems like we're banning a mode of operating in the world, and we don't know really what it even serves is all I'm saying because I think I would go to a photomat maybe. I don't know.

It seems like we're –

regulating it in a weird way.

I will be the first one to admit that I go to the Java hut all the time and I drive there 99% of the time. I mean, absolutely. It's wonderful. I love it. But the impacts of drive-thrus are the same regardless of whether or not it's a restaurant. I mean, I think maybe to your point, what that might accomplish is that it would diminish the amount of drive-thrus we get, right? If we say no drive-thru restaurants, because that's the most typical drive-thru. But in my mind, the impacts are the same regardless of what the actual use tied to it is, right?

I'm also a big fan of Java Hut. In fact, they put my order together before I even opened my window. I see your car.

What if it was the only way we could get a pharmacy in town was the drive-thru pharmacy? You know, I don't know. I'm just wondering whether we're regulating businesses that could be helpful for us by saying you can't drive there. I don't know.

Mm-hmm.

So again, as possible solution to that would be, um, I guess no drive through restaurants. Any other drive through in the highway commercial zone subject to a.

And look at it case by case.

Okay. All right. But just be clear, CUPs aren't a ban. They apply. What happens is they apply for a CUP. You're required to review it, take it to the planning commission. You have to make objective decision on whether to approve or deny it. So pretty much by allowing a CUP, you're kind of allowing a drive-through.

Yeah, I guess it just allows for tailored conditions to their particular use.

You can get your stacking.

Yeah.

And to make sure that you're not blocking traffic and they're not landscaping over a sidewalk. They have to have, you can regulate the speaker boxes and you can do all that stuff.

So I want to push back a little bit. I think we should ban them. Because once you start allowing them, they will run with the land. They will be there forever. The whole point is, Fairfax has sidewalks. We walk around. It's a walkable community. You need to get the people out the car. And I know they're convenient. That's why we all use them.

Yes, they are.

And when it's hot outside, yeah, you keep your air conditioner running. I understand all those things. but it is not what you want in Fairfax, so you shouldn't allow it, period. It's just like you don't want, you know, well, I don't have a right example now, but so there is no specific use that really, really, really, really makes it necessary, unless it might be by law enforcement or something.

This is not my issue. Look to your left.

Oh, sorry. All right. So I would... I understand there could be some hardship maybe here or there, but I think you do not want six drive-through services that are all different because it is the car circulation and the idling and the waiting, and it just doesn't fit with the scale of this town village. And so I'd say just say no, ban them, no matter what. The ones that are there, yes, of course, they are non-compliant. You can keep them. And one is maybe not the problem, but imagine you would have four Yavahats here in town. You'd have a pretty good traffic jam. So I think I understand the concern. It's valid. But I would take a bolder position on it.

Yeah. And just, you know, for some of the examples that you had, I think. Drive-thru right is different than if you had like a designated parking spot and curbside service for like a UPS door. I'm sorry, I'm now in my 90s. I can't get out and give you the package. do you offer somebody to come through? Do you have like a five minute parking spot? I know in, I think it's still San Anselmo, but I don't know, like on Miracle Mile, like there's a laundromat that has their, or a dry cleaner that has like a five minute only spot in front of it. And I'm sure that's for people to functionally have like a drive-through kind of service. You're just getting your stuff and leaving, but it, is at least some mitigation and it allows you to say we're banning all drive-thrus and to get that kind of use, you really have to make sure that it does not meet the drive-thru definition.

I think that maybe that's it for me. I'm just trying not to say that we're going to ban services that we don't even know exist yet just because we don't want people to stop on their way home to use them. And I think there's an example of the Andronicos that you can pull up and somebody will bring you out your groceries. That's likely not what we're talking about, but what's the next service industry that's going to do that? And it is a commuter thing. and that we still do live in a commuter town, largely, you know, and I'm just trying to think of those, the possibilities that we're limiting in the future.

Just one more thought on this, and I hesitate to bring up this example because it was very politically charged in Mill Valley, but there's the In-N-Out that went in, I think, like 10 or 15, 20 years ago that they did not allow the drive-through, right? But the business still went in because it was a desirable place. The numbers worked. And, you know, it's, I guess I'm just trying to say, you know, these new types of businesses, I think, will find a way to operate if it makes sense to operate in Fairfax. We don't necessarily have to sacrifice, you know, the pedestrian experience to attract them. Just operating on, you know, not knowing what's going to happen in the future.

And the fun of municipal function is that somebody could change, oh, now all of a sudden everybody else gets this kind of thing and we can't have it because we're banning drive-throughs. Then they can change the ordinance.

I think your robot car will still be able to bring you your hamburger. So, yeah. Anyway. Okay. Okay. I mean, I think we can look at other codes for this one, what development standards should apply. I think that's a good idea because we could start to dig into what other codes are. With all my spare time, I can look into that.

It'd be pretty hard to do this from the dais. Yeah. Yeah.

Yeah. So, okay.

I have one comment on the last item. I saw that early on. I had almost the opposite thought. If you are going to have formula businesses... do you want to spread them out through town or would it be better if they are together in a shopping center?

Yeah.

Right. So the, I was looking at, I don't have an answer one way or the other, but the, anyway, just to stop.

Well, I can say that two of the codes that, that I looked at more closely, cause they're, they're the more recent ones that I found the Malibu and the Sausalito. They, Wanted to concentrate them in just one location, so they just kind of picked a zone and said, you can have as many as you want in this shopping center. So anyway, so they kind of chose that way. And then they said, no, and then you can't have them anywhere else.

Yeah, we're a bit small to do that, I think. It's a good idea, but on our scale, I don't know.

We don't really have a shopping center that would work, really, so.

Yeah, a number of them limited the formula businesses and restaurants in particular to existing shopping centers and then only a certain percentage of that shopping center. But we don't really have that option here.

And the... Place where the Red Boy and the 7-Eleven are are not in the town limit. So you can have as many formula businesses there as you want, right? That's true. And drive-thrus.

We still need to talk about the location number, right? Because we punted that to the end.

Oh, yeah, we were putting that at the end, yes. I like eight. just because I know that's what the council came up with. But anyway, I'm open to other numbers.

Well, I just pulled a few. I think it's helpful to work in real-world scenarios. I just pulled a few different local and regional chains just to get a sense of how many locations that they have. And so, for example, Equator has 11 locations. Rustic Bakery has five. Fieldwork Brewing has seven. Phil's has 24. Red Boy Pizza has four. So yeah, if we stuck with eight, for example, everyone but Equator and Phil's wouldn't be considered a formula business.

Yeah, I had looked up all those too. And then there's Blue Bottle that you mentioned that is like 13 or 14 sites. They're growing. And I did check Pizza Hacker that's supposed to go into the weigh station location, and they have three locations.

Okay.

They wouldn't qualify.

Not yet anyway. Yeah.

So, yeah, I think on the number and the math, so it's counterintuitive, right? You tend to think like, oh, we shouldn't make that number too big. But it's actually the other way around because once you are defined as a formula business and you get a COP, it runs with the land and now it's locked into anybody else. So I think you want to... have the first 20 not be qualified as a formula business. So you don't need the COP to get it approved. So that means it stays within that lumber. If you make it eight already on the list just mentioned, there's already three, four that fall out. So they will need a COP, which means if they do that and they leave, Another one can come in that has 22,000 locations. So I think once you become a formula business, I think that number needs to be high. And eight seems low. Feels good. But mathematically, it's a trick. It's the other way around. Make it 20.

And it's the hardest thing to explain to people that that's the case. But yeah.

Yeah, 20 or something like that. You want to be above that, what you see on that list of companies that grow locally in Marin County, maybe into Sonoma, that have 10, 20 locations before you think like, well, now they're getting so big, they're going to compete with McDonald's or whatever we think.

So this is one where I think, unfortunately, it's in our interest to have it be more complicated because I don't think... there is any good number if you just have a number trigger the requirement. And so it's one where it's, you know, you have to sort of like a point scoring thing, but if here's a list of A through G considerations for if you're a formula business, if you are and you have, you know, more than six, then you look to see if you hit B, C, and D. And if you have more than 10, you look to see if you hit some of these other conditions. So like if you're, uh, maybe a, I don't know what pizza hackers businesses, but like if you have three and you're growing now and you want to sort of make sure that or an equator or something, so you don't want it to be three, it's bigger. Um, You have conditions like where your first two, three locations all in Marin County and things like that. So you see sort of like a local or business growing something where it's not. You know, I think one of the concerns is feeling like. some outside sort of national corporate chain can just come in here and because you know they called it checkers versus hardies or something um and they're just starting their new branding and we're one of the first if we have a number of 2015 locations that are all throughout in California, and they're San Diego, LA, San Francisco, and we're just number 11 on the list. I think that's something where we'd want to say, well, hey, hey, hey, we're only number, it's only 11, but the rest of them are scattered all throughout the state or the county, and it's not really something that's growing organically locally.

Yeah, I tend to agree. And I think one of the problems is messaging and how you sell, how the council would sell changing our existing ordinance, given the backlash that we heard previously. From a lot of people who looked at that decision and felt the same way we did, that it wasn't exactly like, oh, no CUP is going to be implementable ever. And it was really focused on that transferability question, which we frankly didn't even understand ourselves when we thought about it, right? How is ours supposed to act? We didn't know. And so I think that there will be a great deal of people concerned with any effort to relax any element of a formula business ordinance to go from if you have more than one franchise, you're a formula business ordinance. which is going to suck in the coffee roastery, which is currently sucked in, versus the very rational, reasonable argument that you're making about going for a higher number, it's never going to fly that we would let somebody with 19 other people you know, stores and of sacred fair fat. I just don't see people. going along with that no matter how reasonable and rational that argument is. And I hate to say that, but it's just the reality of what I think, the way the rumors get spread, the way the knee-jerk reaction to what the town council and the planning department propose will be received. And so I agree that we have to do it more complicated. because I think that that will help people understand no no no you don't want to throw coffee roastery out with the bath water right you want to you want to encourage the good earth to grow you know all those kind of things and you've got to frame that in a way that makes sense, that still follows the purposes that we're saying we're doing this for, which is to protect small businesses, nurture mom and pop businesses, and make sure that we have the services and businesses that we need in our community. And continue to make Fairfax an attractive place that's going to draw tourism and increase our tax base because we have sort of a cutesy little, it's not just cookie cutter. It's different. It's quirky. It's bespoke. Yeah.

I don't agree with the idea of increasing the number dramatically. I mean, it would just expand the scope of chain restaurants and businesses that would be eligible to come in to town. And it would be excluding the larger chains that are less likely to want to come here anyway and opening it up to the smaller regional chains that maybe statewide chains that would be more likely to come here. So I don't, and also there's the political considerations, but I don't think it's, you know, raising the number like that makes sense. If we're trying to restrict formula businesses in town, I think it would have the opposite effect.

Well, I think the point Robert was getting at and that I, agree with and want to um that's why i want to make it not just a number um test is we don't want the definition to apply too easily because you know the reason you raise the number is because okay fine we'll be a we'll survive the the 18 chain place and then when they sell they don't, they don't have a formula business, so they can't sell to a formula business. And if you have a number that's 10 and we are okay with the 12 business, 12 location business, they come in, um, but they're a formula business or, um, you, you want to, you want to make sure as many possible businesses, I think is to Robert's point, um, that may be considered formula businesses not fit into that definition so that you don't get into a situation where the business you approved allows any other business with a similar use to come in after the fact.

Yeah, it's the hardest thing to explain.

Okay, 13. I have a different thought. How about gross revenue instead of the number of businesses approved?

Then just empowering staff to be able to do that.

You're empowering the accountants. I don't think anybody's done it that way, but you could blaze the trail.

You'd have to ask the applicant and they could give you whatever number they wanted, I suppose.

It's also highly variable depending on the type of business, right? Like a restaurant has a different sort of like bucket of potential revenue than like a retail shop or something.

More complicated to verify and all of that.

Yeah. We want a super unprofitable store to come into town.

I'm definitely not in favor of raising the number. I'm going to

Just say... Raising it over eight as opposed to raising it over one.

Well, I don't know. Let me continue for a second. I'd be interested in trying to make it more complicated in the sense of creating some sort of tiers with regard to rewarding local or... And then also having a tier that would be what what how many could you have if you are a local business? And then also having a tier that would be what what how many could you have if you are a local business? And then also having a tier that would be what what how many could you have if you are a local business? Um, as well as, you know, obviously nationally or internationally as a tier, you know, as a worst case. And, you know, what if we did say three is the number for anybody, but if you're, uh, all of your businesses are in Marin, maybe you get five. And then if you're a locally owned business, maybe you get seven or something like that. Um, just, I'd like to just as a conversation piece, what if we did something like that?

That's what I was kind of imagining.

Yeah, and that has a very fair vaccine appeal.

You don't want to stay away from those low numbers because, you know, three goes to 500. You can't stop it. Once you approve it, once you allow a formula business to come in, it has a conditional use permit for a formula business. And any other formula business that's that number or larger can come into that location. Right.

Now you're making Robert's argument. Yes. And we've been pushing back against that for a number of reasons that we...

Right.

So we've been talking about some of the pros and cons associated with raising the number versus keeping the number lower. And it's definitely you're going to have to find that Goldilocks little sweet spot.

Well, it's just whether you want to open the door to formula businesses. I think if you have the number super low, you're just throwing it wide open.

You're throwing it wide open by keeping it shut tighter. Yeah, I get that. I don't think that's going to be an easy message to convey.

I think the town council already gets it. That's why they set the number at eight.

I think the town council gets it. I'm saying I think it's a difficult number to sell in this town to the townsfolk.

Mm-hmm.

Hypothetically, if we set a number 20, our moratorium expires and there's a referendum on the town's ordinance. And then now we don't have anything. And now we can't have a retail ordinance unless it's passed by the voters because people freaked out at the number being too high.

Yeah, that's true. That could happen.

Mm hmm. I mean, have we gotten, we being the council and staff, any pushback about the eight number since the moratorium was passed?

Oh, yeah.

Oh, you have?

A ton.

Okay.

So basically, you've got a lot of people reading the Malibu decision and saying, what are you talking about? Why do we have to change anything? Everything seems cool. We should just keep it the way it is. What are you talking about getting rid of our formula business? Everything's fine.

Yeah, I guess I just... Thank you for that. I hadn't heard that, but if we're also banning formula businesses in all zoning designations except for one or two, does that soften the blow? Is that something that folks who are making these comments sort of understand, right?

Well, the devil is in the details, because if you change the definition from what it currently is, Not the moratorium, but the existing ordinance, which doesn't have a number. OK, so coffee roastery is now a formula business because it has two. OK, if you change that at all, people are jumping up and down.

Well, as our town attorney currently, we don't have a formula. Even if we'd had no moratorium, our formula business ordinances I'd written is completely unenforceable and worthless.

Right, and I think that's going too far, frankly, and I think that you've heard from three attorneys on this planning commission who all wanted to ratchet that position down slightly, right? We heard that there are two big issues in that decision. One of them was about the voter initiative to make the special plan subject to voter approval after development by the town, and the other one was the non-transferability issue of the CUP. So really it was just the non-transferability of the CUP that is an issue with our current ordinance, not the moratorium, but the current ordinance. But what you have said to me tonight is that you did not know if ours was transferable or not prior to looking at it in the light of this Malibu decision. Now you think that, yes, they must run with the land. It would be transferable. right so that's obviously the difficult point but i think to say that our current ordinance is unenforceable is a little bit beyond what we're talking about okay which is why i think we need to bring the town attorney here because that's what i'm hearing from her so okay so back to the number um

fear of public opinion is a bad guidance for making policy, I think. But the arguments would be the following, and I think that's explainable. The ordinance is there to protect local business from unfair competition of large companies. So a local chain is not an unfair competition to our local business community. Local chains have a size between one and 10, based on the numbers I just heard. So that is the number you need to aim for. It is okay for a local chain that has nine others to compete with the businesses in Fairfax. It is not fair for a large corporation that has 1,500 locations to compete with them. Now, maybe 10 is not the number. Maybe the number is 8 or 13. But it is somewhere there. It's not 2 or 3. That's not true because we already have them. So... The explainable number, the logic that you can, I believe, convey the business community and the town with is, look, the businesses that we currently have or have grown here and in similar towns are between 2, 3, up to 8, 9, 10. And so that's where we're seeing, that's where we draw the line. If you're over that, you're a big one. If you're below that, you are local.

Mm-hmm.

That's been the thinking, I think, is that that number would capture, you know, regional, local chains and exclude the really big guys. So and it seems to be a pretty common number when you look at other jurisdictions.

Yeah, I think eight's on the low side.

Maybe. Although, you know, I found other ones with, you know, three. So, I mean, I don't see any reason to change what the council came up with in terms of eight.

I much prefer the tiered local versus national and worldwide tiered.

I think a chain of that size that would be interested in coming here is probably going to be local. There's not going to be an LA chain of seven coffee shops that's going to decide to come up to Fairfax. Maybe. I don't know if they want to enter a new market or something. But almost by definition, it'll be a local outfit.

at least i don't know if that's true i could definitely see a boutique chain that is growing small community stores around the country wanting to be in fairfax and then why wouldn't we want that because i don't want to be have somebody walking down the street and saying oh i just saw this store in aspen That's why.

Okay. So back on the number thing, the tiered system doesn't solve the math problem. The math problem is if you take a low number, you open the gates and you can tier the hell out of it. It doesn't change the math. So I think you need to pick one number and don't go too low. And if eight's right, then eight's right. Maybe it's 10 somewhere. I mean, I think that's where I keep gravitating to that same spot.

Okay.

So I'm going to go back to something Commissioner Cardozo asked you. So the process here would be for you to noodle on this for a bit and take it back to the town council and then bring it back to us or take it, noodle on it, bring it back to us for some more discussion. Okay.

Yeah, I think the next step would be to bring it back to you and then have the town attorney in tow to kind of defend her. Because I don't need to defend her conditional use provision. I know that she does not think that it's a good idea to have that at all. So she needs to be able to defend that position.

She doesn't think the conditional use permit for a formula business is a good idea?

Correct.

If that's based on the Malibu decision, I really don't understand.

I think it's just based on the Malibu decision.

Okay.

Anyway, like I said, I don't want to speak for her, so.

you know, this is not something we have spoken about so much because we're focusing on the number, but how do you know what the number is? You know, the uses two or more of the following as part of its business operations thing. Like it is more common now for big brands to just have a bunch of little micro brands underneath, like, um, you know, with consolidation, like with, um, beauty of sephora decides to have like sephora funky town sephora and they open up with four locations in california and we're one of them how do you know that that's really that's just sephora or if it's just this new business like seph yeah i this is why i think you need something other than the number because it's going to be hard to tell for some types of businesses what the number is in the first place.

It's the number plus the definition of all the standardized operational factors and considerations.

If each one has their own different branding, then they're not going to meet. You can say for the new kind of McDonald's, we're just going to be your central hub for ordering something. You don't have to have a uniform anything. Here are the brand guidelines. If you're not going to follow these brand guidelines, you need to come to us for approval and we can decide like that's going to be a big feature when businesses are rolled up by private equity because they're going to have managers who are going to say you won't get to do anything without just coming to us for approval and then They don't have to have uniform operations. They're only going to own it for five to eight years, ten years, so they can do that hassle.

It starts to get really nuanced here. I was reading one thing where the objective of the ordinance was to force chains like Starbucks, if they were going to operate in the town, They had to make a unique operation, you know, get rid of all their regular colors and branding and everything. And they did open a couple of stores like that. But then they decided at corporate that that was too complicated and they stopped doing it.

I can see Mick Fairfax.

Yeah.

Okay, I have another crazy idea. How about you allow sole proprietories and LLCs, but not corporations and S-Corps? So you can make divisions based on the business entity. It's a variation on gross revenue. Okay. And mom and pop shops tend to be sole proprietories or maybe LLCs if they're a little sophisticated. It needs a little bit more study. I don't know. I'm not the lawyer here, but it's a way to probably get an idea about how a business operates.

You just have the town adopt, unfortunately, bank KYC standards. So you can have LLCs and you just have to say, keep going up the chain. Do you have more than two beneficial owners that have 5% or something small? Like to limit the number. It requires people are going to be upset because they're going to say, I don't want them to give you all this information. um and i honestly the more i'm thinking about this now i'm concerned with the idea that we're going to end up with a referendum we're going to try so hard to craft it in a way that meets honestly if it meets malibu the whole point of that is that it's something that you can do with it within initiative so that means it's something that's subject to referendum and then we're going to be stuck with nothing which is my opinion, how you ended up with evictions in a large development.

So the political considerations do come into play regardless of how we would like to just make decisions based on rational A plus B equals C. So you all ready to go with what we've provided for you? Yeah.

Yeah.

Well, you think you have a clear sense of where we're heading?

I have some starting points. So I think it's pretty clear. We can pick some zoning districts and just ban them outright and work on the definition a little bit more. And then that, yeah, I think that most difficult thing is going to be the number. Hopefully the town council will stick to their guns and think that eight remains a good number. So we'll see.

If I can just add one quick note to hopefully give Jeff an easier time on this. If it's a way to sort of, like you're saying, conceptualize what we're doing going forward, at least in the short term as supplemental formula. So like you said, like here's something that we know we're not going to want formula businesses outright in all of these zones. And you could just add that separately, right. Without changing anything. Uh, or doing on any of the number stuff. And so, you know, people will see, okay, here's what they're doing. They're whittling down the places where you possibly could have a formula business. And then when it comes to discussion, you could be in a position to say, well, listen, we're talking about these two blocks. The end.

Yeah. Yep, okay, so I think I can come back.

To you all, maybe in 2, 3 months and. We'll have some more refined ideas and then I'll have the town attorney here to. Argue with you all on conditional use permits. So.

All right, let's go on to the planning director's report.

First off, we are in the process of recruiting for principal planner to replace the irreplaceable Linda. so we think that's going well but we'll keep you posted on how that how if we're successful or not and um the other thing i think um uh vice chair newton wanted me to explain that there's the are you familiar with um you all are probably familiar with sherwood oaks So Sherwood Oaks was acquired by Midpen Housing in April 2023. And so it was converted from a market rate apartment complex to an affordable apartment complex, which in some cases when that happens, there can be RENA credit. So we have a very active member of the community who's been looking into that to see if we could potentially use any of any of those units as part of our current Rena cycle credit. And we don't know if that's possible yet. There's some obstacles. There's apparently some limitations on when you can take that credit based on. Um, if you have a program in place and your housing elements and you have to, it has to meet all this criteria and we didn't sponsor it. It was the county. So anyway, so we're, we're not sure yet if we can take arena credit for it. Um, and it probably wouldn't, um, impact our, uh, sites analysis. Anyway, it might take a little bit of pressure off the total number of units we would technically have to provide, but it wouldn't change our, um, RENA allocation or the sites that we have identified for housing sites at this point. But we are looking into it. And at the very least, we will report the units during the next annual report in April when we do our annual arena report. We'll definitely mention this project and in some way take credit for it, at least let HCD know that this is in our jurisdiction. And it did go from market rate to affordable. And we should at least be acknowledged for that in some way so we can start the wheels turning. Anyway, you probably haven't heard the last of that because, uh, uh, the, the council is really interested in in that particular topic.

So. Related question housing element. Um. I saw HCD and I forget if ABAC was involved in this, but they're going to let everybody start the housing element process a year earlier. Like they're going to release the RENA numbers three years in advance instead of two years in advance for the last one. Anyway, I saw something about that. And then if they're releasing them in the beginning of 2027, does the town have to start thinking about what it's going to do. The speculation in the reports I was reading, which was on one of the state websites, is that the numbers are going to increase even more.

It's always an adventure.

No, like, yeah, yeah, no, if our number in the prior cycle was like one something, and now then it went to 469, like our number being something like a thousand in this next cycle. I can look for where I read that. I was just wondering because it seems like we're less than six months out from 2027 if that's when they're releasing the numbers.

I'm still too worried about the current cycles. Yeah.

Anyway.

All right. Anything else? Nope. That's it. Any commissioner comments or requests? Seeing none, do we have a motion to adjourn?

Motion to adjourn.

I'll second.

All in favor? Aye. None opposed. Thank you, guys. We're out of here.