Planning Commission - Regular Meeting

Good evening.

Welcome to the November 20, 2025 Town of Fairfax Planning Commission meeting at 46 Park Road in the Women's Club. It is 7.01 and we will begin the meeting. This meeting is being held in person at the Women's Club, 46 Park Road, Fairfax. The meeting is also being held virtually on Zoom and broadcast on channels 27 and 99 and live streamed at the town of Fairfax's website. You can participate in the meeting virtually by joining the Zoom webinar and using the raise hand feature to provide verbal public comment. The Zoom webinar ID is on the agenda on the town's website, as is the telephone number to dial in. You can press star six seven before dialing to hide your phone number and to speak during public comment time, press star nine. You will be added to the queue and unmuted when it's your turn to speak. Before 2 p.m. on the day of meetings, you may email written comments to the Planning Commission at planning at townoffairfax.org. Comments will be provided to the Planning Commission prior to the meeting and become part of the meeting record, but will not be read out loud. So I'm calling the meeting to order. Can we take roll?

Swift? Here. Kelly?

Here.

Bela? Petrone?

Here.

Newton? Here. Jansen?

Here.

Chair Pfeffer?

Here. Okay. Unless anyone has any changes, can we have a motion to approve the agenda?

Motion to approve the agenda. Second.

Second.

OK, we do a voice vote. All in favor? Aye. Any opposed? None. Motion passes unanimously. I'll now read the meeting protocol. The chair shall maintain order at the 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. 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 your presentation to three minutes, two, provide comments by email as described in the agenda, three, state your view and concerns succinctly, and four, submit any new documents to the planning staff first, directly or via email at planningattownfairfax.org to be entered into the record. We are ready now for public comments on non-agenda items. Anyone wishing to address the Planning Commission on matters not on tonight's agenda but within the jurisdiction of the Planning Commission can do so now.

We have anyone on Zoom?

I see no hands on line, Chair.

Okay. We'll close public comment on non-agenda items. There are no consent calendar items tonight, so we can move on to our first public hearing item, 76 Frustruck Avenue. And first, we have a comment from Commissioner Kelly.

Chair, I need to recuse myself on this item. I'm within the 300-foot zone. No problem. My neighbors.

We'll go out and let you know when this item is done. I think Commissioner Kelly has left and recused himself. So can we have the staff report on agenda item 176, Fresh Rock Avenue? Sure.

So the project proposes legalizing a partially constructed approximately 120 square foot detached accessory home office structure, and I will just refer to it as a home office, constructed on a post and pier foundation next to the rear deck of an existing single family residence. And it was in an area that was previously developed with planter boxes. The property owners work from home and build the home office to use for that purpose. The structure is a maximum of 14 feet tall. The siding and the paint will match the house. It will have windows on three sides and one dark sky compliant light fixture next to the front door. The project would also construct approximately four foot wide by 13 foot long section of deck in front of the home office that would extend from the existing deck and provide access to the home office. The property is approximately 11,200 square feet. It's irregularly shaped and slopes up approximately 47% from Frosteck Avenue. It's developed with a single family home two bedroom, three bathroom. There's a 400 square foot lower level garage storage area. And there's also approximately 788 square foot deck attached to the back of the house. And the property also is unique in that it shares, there's an easement on the driveway that provides access for the adjacent property. So the neighbors have a driveway easement through their property. The backyard is terraced with two approximately five-foot tall wooden retaining walls, and there are also several shorter landscape rock walls and stairs. And there are many native oak and bay trees on the property and some landscape plants as well, non-native plants. The project site is located within the RS-6 single-family residential zone. the existing property complies with all applicable zoning standards of the rs6 zone except for the 20 foot combined yard setback and that is because of the location of where the property owners decided to put their um home office the that specific location is actually what causes the property to not comply with the 20 foot combined yard side yard setback because there's a um That's about seven feet from the northern property line. And then the existing house on the property is about eight feet from the southern property line. So combined, that 15 feet doesn't meet the 20 foot that's required. OK. The project requires approval of a conditional use permit for the construction of the home office on a substandard lot, as well as approval of a variance to allow a small portion of the corner to encroach into the combined side yard setback. Findings can be made to grant the conditional use permit in the combined side yard setback variance. The home office is small in nature. The exterior materials will match the existing house, and the location was chosen to help the structure blend into the site, consistent with the intent of the applicable general plan policies. The home office complies with all applicable objectives zoning standards of the RS-6 zone, except for the 20-foot combined side yard setback. It would maintain similar setbacks, FAR, lot coverage, and height as other single-family residential properties found in the immediate neighborhood and throughout town. many of which also have structures that encroach into the combined side yard setback. And based on the siting of the structure, views between the project property and neighboring properties wouldn't increase over what is existing, and I think privacy will be maintained. And the home office provides the property owners with a dedicated home office space to use when working from home, so it increases the functionality of the property for them. Okay. So due to the steep 47% slope of the property, its irregular shape, the terraced backyard, and the siding of the house and attached rear deck, the strict application of the combined side yard setback requirement would deprive the property owner of privileges enjoyed by other property owners in the vicinity and under identical zone classification. Okay. The granting of the variance to maintain a 15-foot combined side yard setback instead of the required 20-foot combined side yard setback would not be a grant of special privilege. The small amount of floor area within the combined side yard setback would not be anticipated to be detrimental to the public welfare or injurious to other property in the vicinity where the property is located. There was only one project-specific condition from an outside agency. There were no conditions other than our standard conditions in the resolution. And that condition was for the installation of a sprinkler system in the home office, and that was by the Ross Valley Fire Department. So that concludes the staff report and the recommendation is to consider the application and approve the requested entitlements.

Thank you. Do any commissioners have questions for staff? Yes. Commissioner Jensen.

Thank you. On the table, table 1, so under the existing conditions, it lists 7 and 8. I believe that is 7 and 17, because the house is 17. No, 7 is from the new construction to the property line. So existing cannot be the new number.

that would help um okay let me look at the table so the the southern the south setback is um eight feet right right okay and then and then the other side is oh the oh well no that's the front you're right so it's 34 actually from the house Yeah, because that's sort of where the road is along where the driveway is. It kind of curves along the side of the property. So that's sort of like the front.

I see it. Yeah, that's the front. So the side would be 34. From the house to the property line is 34 and 8. Or, because the 7 is from the new structure...

or is the deck elevated yeah yeah so there's one i think the closest thing i i figured um was the the retaining the um what did i do here um what yeah the deck and the retaining wall so i think well the retaining wall was maybe the one i took for the the rear And then the existing deck. So the accessory building is there, though. So and it's a structure. So I don't know.

No, but that's a new structure. It's a new structure. Yeah, your table talks about the existing condition.

Yeah, and it's partially constructed. So I don't know if that, then I guess that you don't make it existing, I think.

It may be important, maybe not. I don't know, but it. I don't think you can, as condition as existing, the very topic that we are discussing here, then as it's already existing, we don't have to bring it into the meaning. So the existing condition is the one that was before. It's a formality, but as I said, it may be or may not be important. Um, and so that means either to the deck, if that was existing or to the house or whatever it was, that was existing 34. Yeah.

There were some planters. There are some planter boxes.

Yeah. Those would not qualify as a structure. I would think. No, no. So it would be seven and it would be eight and 34. Is that what you think?

Is that the 34? That says the front yard setback is the 34.

No, that is actually the side.

Yeah, I think it's more like 17. I don't have my scale with me. But I think it's more, it's a little bit. Because you could see the 10-foot setback.

Yeah, so maybe it's 17. It's more than 10. So maybe it's 8 and 17. or somewhere around there, but it is not the seven because that's the subject we're talking about. My second question to you is that is interesting. Table two is only about the home office. And so if you were to measure the existing as existing and the addition as a new, can you? calculate the setback individually for each structure, meaning you have two structures on the property, technically. You measure your combined setbacks for either or for the combined because the table shows it's split. I've never seen that before.

Yeah, the town council a long time ago said, Planning directors had tried to, they were hoping that the combined setback, the intent of it was to allow people to like share the pain, you know, and have, but it went to the council on appeal and the council determined, no, you pick one side to be this one setback. And then the other side has to make up the difference. It's not, you don't take it separately. It's not as if you draw a line and check the setback at each point for each building separately for all property.

Yeah. So table two is erroneous.

I think you guys are talking past each other about two different things. I think what Commissioner Jansen has raised is the concept that We've got two tables instead of our normal one and a different set of setback requirements for the home office than for the home. And so if we're thinking of, you know, it seems like they've been sort of smushed together when you talk about the proposed for the home. Well, you've got no change for anything in the home, and all the changes relate to the proposed home office.

Okay, so I'm sorry if that was confusing. That wasn't my intention. My intention was just to illustrate that the home office itself, taken by itself, complies with all the applicable standards. It wasn't meant to throw them on the bench and make it more confusing. I was just trying to show that the building itself complies, but when you take it in combination with the other structures on the property, that's when you...

well i think with all respect i think we just hoard the opposite you cannot take each component separately so the table there should be should have been one table the existing should show the existing the proposed the combined nil you get different numbers all over the place so that so that makes it so that we are splitting them and if that is allowed that's very interesting but

Oh, because I didn't put existing. I'm sorry.

The existing is not. So what it would read, existing would read whatever, seven by eight. Then new would include, would not be table two, that you cross that out. The new would be the proposed. And then you have a different setback. Then it becomes seven and eight. And then your total says no change, no change, no change. But table four, side setbacks, is a change. That would, right? Unfortunately, that would be the correct way to do it. So that's where the confusion is. The tables don't reflect what's happening. But I think we all understand it now, what's happening. You're more confused.

I'm sorry. I don't understand why you're saying that, you know, the the new structure complies by itself, and then the existing structure, really there's no change. But now when we combine the two into what you're suggesting, Commissioner Jansen, one table, now we are saying that there is a proposed change with respect to the big house. Is that right?

Correct. Table two, you can ignore it because it doesn't mean anything.

Yes, so I would suggest that we just remove Table 2. And what Kara was trying to explain is that you can have a deck. you know, that meets a certain combined setback. But once you, setbacks run to heaven, right? Once you put a new structure there, it's supposed to meet the combined too. And in this case, the office has been set on a deck that has a legal non-conforming combined setback. But as a new structure, it does need a variance for the combined setback. Even though it's on a deck that already is there.

That's a third interpretation.

So yeah, you are actually it's there was no deck there. There were planters. Okay. This is a new structure next to the deck. And because it's next to the deck, the location that it's in, it slightly goes into the combined. So all I was just trying to say is that if they, the structure, it isn't.

Yeah. So yeah. If you look, I think it might be clear if you look at the first A1 and then there's a center site plan existing. And so that little thing that's sticking off the back of the deck was the planters. Is that correct, Kara?

Little thing right here. These were the planters?

Yeah.

Yeah.

So they had a legal combined setback, correct? It was over 20 feet. Yes.

Well, that's not consistent with what I just heard before.

Yeah, no, no. This isn't my project. I misunderstood. So if you look at that center one, it's a planter, and they need a combined side setback variance, which is covered in table one. Yeah. I mean, we normally look at the whole picture, not correct.

Yes, no, understood. So the existing situation had a 8 and 17, right? Now we're putting a structure there and it becomes 8. And so table 1 would need to read not no change. It would need to say 7 and 17. And then the change is 7 and 8 or whatever the exact numbers are. I think I understand it. I'm not sure. Everybody does, but I think I get it. Thank you.

Through the chair, may I ask a few questions? Yes. One of the attachments in the staff report was a letter from the covals dated November 13, with a number of questions that they post. Were you able to communicate with them responses from the planning department?

I was. I actually spoke with Mr. Covell in person and talked to him and explained to him the process that the project was going through. And when we did check the building permit file, and there are building permits for the work that they bring up in their email, there were permits that were finaled.

Were they satisfied with all of the responses that you provided?

Yeah, I think so. They were very nice to me and very complimentary. So, yeah.

Okay. I just wanted to make sure we didn't have somebody with outstanding concerns. There's... some language in the resolution about it's just form language about the dark side compliant and the rubbish and things like that. And the, um, the, uh, other Reza we have for pine drive references, uh, best management practices for stormwater. protection. And I wondered if there was a reason we didn't include that in this resolution or proposed resolution.

Um, I think, no, not particularly, but I mean, the foundation is already there. I mean, there's not really, but I can add it if you'd like.

I mean, it wasn't for consistency, I think. I mean, sure. Yeah.

Um, and then

This one is directed to the planning director. Is this the type of permitting approval that could be and you may think should be subject to more ministerial approval rather than coming to the planning commission in the future? I'm just wondering.

Yeah, I think there could be a code update project in our future that would kind of rethink the combined side yard setback or maybe have exceptions or some sort of way to approve it without having to come to the Planning Commission?

I mean, I'm thinking about the 120 square foot size of the structure. And I know we have exemptions for accessory units like sheds that are within that 120 foot And I know the side yard setback issue is there, but is it also because of the electrical component?

Yeah, there's a distinction between whether the space can be occupied and used or whether it's just a storage shed. There's kind of a threshold there. So yeah, if you start adding electrical or in a home office or something like that, then it has a higher standard.

Okay, and are you or could we keep a list of specific types of applications that we think could be handled ministerially?

Yeah, I think we have a start of that list. I'm pretty sure Linda has a start of that list. So, yeah, we could bring that to you.

I mean, I think we should consider adding you know approvals of structures of 120 square feet or less that don't necessarily otherwise meet the. exemption. Over. yeah.

Just.

um real quickly can you remind us what the process is with unpermitted work as it relates to building part department inspection is this something that building department has already inspected or will that happen after planning commission action after okay um and final question for a project of this scope and size uh along the lines of what commissioner newton was saying we don't require any kind of geotechnical or soil investigation right

No, it's kind of like up to the building official. When the plans come in for the building permit, he'll look at it and look at the foundation. We have our outside engineering geotech that sometimes it depends. He might send it to them unless they do provide maybe some sort of structural calcs.

But that will happen through the building official? And after our action here, that hasn't happened.

Correct. Once this goes through approval or denial, and if it gets approved, then they have the 10-day appeal period, and then they have to apply for a building permit after that. Got it.

Okay. Thank you. Yes, Commissioner Swift.

So going back to the letter from the neighbor that was included in the staff report, mentioned that the deck from the previous owner had been red-tagged. So was that deck then unred-tagged or the framing of it? What was the process there? It was red-tagged, the person sold it as such?

so the property file had so this property had prior to these owner the previous owner and then even before that owners had under taken construction like there was information in there i i want to say it was like maybe the i can't remember it was it was definitely it was more than 20 years ago you know it was probably it might have been Even in the 90s or 80s, there was a red tag. There was a call. There was even a document in the file. The building official went out, documented that he went out, and then probably two years went by. and there's nothing in the file, and I can't prove that the deck was removed, but we also can't prove that it is the same deck that was there. There were no plans in the file to show what the deck looked like. So the information is... we don't have anything to substantiate where the deck was, what it looked like, where it was on the property, if it was ever, the red tag was ever, if they ever remediated or fixed, corrected the work. And then later on, subsequent property owners got permits for the deck. um and there are permits in the property file um indicating that there were deck repairs there were final for that so okay so um the structure that this unit is on It's actually not on the deck. It's next to the deck. Right. Yeah. It's on its own form. It's on its own foundation, new foundation.

New foundation.

New posted peer foundation.

Okay. So then the other question is, how did this then come to us after... Another red tag. The building was started.

Yes.

So can you explain that?

I don't know. I think we got a call. I didn't get the call. The building official red tagged it and then I was alerted and then I had been working with a property owner to rectify that.

Yeah, that wasn't clear in the staff report. And then just for clarification, because there was some discussion in there that this unit would have electricity to it for the lights um and but it will also have water to it as well correct no so how do we then because i'm looking at the ross valley fire department's requirement for a sprinkler system

The property owner can speak on that. He's been dealing with the fire department on that.

All right. So you'll have an opportunity to come up and speak on that. And then I'll have comment on the reso when we get there related to dark sky. That's all I have. Thanks.

Thank you. I think then we can open public comment and if the applicant wants to speak. Feel free to come up and just press the button, turn the mic on. Thank you.

Cool. That good? Cool. Awesome. Good to meet you guys. Good evening, Planning Commission. I am Justin Montante. This is my wife, Dana. We're at 76 Frestuck in town. I appreciate you guys taking the time to review this small home office project and for giving us the opportunity to speak. We've been in town here for the last four and a half years, and it's been a joy building our family and creating new community relationships in this neighborhood. It's really a community we want to continue to grow our family in. And since moving here in 2021, we've gotten married. We've had our first child who is now two and are now expecting our second in just over a month. And that's where the project comes in. So we're proposing, as Kara mentioned, this 120 square foot structure off of our existing deck. the purpose of which would be to provide a small and functional workspace so we can continue to work remotely more effectively without significantly expanding the footprint of the home. We've intentionally kept the structure modest in size and height so that it remains in scale with the house and the surrounding neighborhood. The project would help us remain in this home for many new years to come and help support our growing family. Uh, and in designing the structure, we focused on combat compatibility and low impact. So materials, colors, roofline have all been selected to match the existing house. so it feels cohesive and unobtrusive. The overall height stays within the limits for our zoning and is positioned to sit quietly into the existing architecture rather than stand out. We're trying to preserve the natural character of the site, including keeping all existing trees in place, and also trying to be mindful of privacy and neighborhood views. Its structure meets all applicable objective zoning standards, except for the 20-foot combined side yard setback, as Kara mentioned, for which we have applied for a variance. The proposed windows pose no issues for privacy concerns, and the design incorporates existing natural screening, so there's no new sightline or shading impacts. And from the street, the office is minimally visible, with trees partially screening it, and the appearance remains consistent with the character of the neighborhood. I think Kara mentioned this, there's some back and forth on it, but taken by itself, the structure complies with all applicable objective zoning standards. And looking at our lot, which is definitely irregular in shape, it's kind of the only logical location for the structure based on the proximity to the home and presence in an area that was previously had some development with the planter box and partial structure, as mentioned. Um, we've shared the plans with nearby neighbors and have appreciated the support and the feedback. And the goal from the start has been to design something small, functional, and respectful of the community that we live in and really love being a part of. So thank you guys. Uh, and thanks Kara for helping us through the review and process. So we're respectively requesting your approval so we can move forward with the building permit process and complete the small space, uh, in a way that's aligned with the standards and the spirit of town.

Thank you. I think we may have questions for you, but I think let's see if anybody else wants to make public comment first. And if not, anybody else in the room want to speak on this project? Any raised hands on Zoom?

I see no raised hands on Zoom.

OK, I know we have at least one question.

Can you address the sprinkler?

Yeah. So I've been in conversation with both Ross Valley Fire and a couple of contractors who do that type of like sprinkler work. And the working kind of proposal that I have right now is a 350 gallon tank that would be stationed very close to the unit itself. which is an approved method by the fire department. And that would be in lieu of going down to the main, the water main, which is street level and we're on a really steep driveway. So that would be a way to kind of not do a lot of that, um, water work that would require like kind of cutting up the driveway and like just a whole bunch of stuff. So this would be like 350 gallon tank that would be positioned underneath the existing deck about 20 feet away from the new structure. So then you would just pipe from that tank directly. So yeah.

Directly to the sprinkler system.

Correct. Yeah. Which is just for the size for 120 square foot, it's just one sprinkler head in direct center of the unit.

All right. Thanks.

Yep.

Yes. Commissioner Newton.

Is there a way you can incorporate catching rainwater or using gray water in that tank?

Um, I don't know. I think that might be a question for the fire department. Maybe. I think, I think as it exists, it's just kind of a standalone unit that you fill with water and it just kind of stays there. And as far as I know, that's, that's kind of the extent of it. It's just kind of there in an emergency scenario to tap into. But maybe if you had to use it, hopefully if you had to use it, it's probably, you're probably in pretty rough shape.

Thanks.

Yeah.

Any other questions for the applicant? Last call for a raise hands on Zoom.

And we'll just take one minute to remind our Zoom listeners that if you do have a comment on this, you can use the raise hand function in the bottom center of your window. And the time is now. And I still see no raised hands online.

Great. We can close public comment. And thank you. And we'll bring it back for discussion. Yes, Commissioner Newton.

I know Commissioner Swift said she had some comments about the resolution, and I have a couple nitpicky little things. But I also just wanted to follow up with Planner Neal about your raised eyebrow and whether or not you have anything else to say about my suggestion that we keep a list and add the less than 120 square feet.

It didn't have to do with the list. It just had to do with everybody likes to use the storage sheds of 120 square feet is not a big deal, but I've literally can tell you addresses where storage sheds are put like on top of a retaining wall right next to the street overhang. I mean, you know, not every 120 square foot structure, is going to be tastefully located on a property. You know what I mean?

Right. And I would think we would include provision to allow the planning department to refer specific applications to the planning commission when they felt that they were certain things.

Yeah.

Just, you know, guys come up with discretion on your part in some ways. I don't know. It didn't mean to avail us, but we keep talking about this and we never actually, um, get it down in writing so i just want to keep pressuring us that's all it was just i just had all those weird storage sheds flashing in front of my page yeah no i i hear you um planner spencer i have a couple knits so the first one is on page two of the resolution um paragraph d It starts out with refer to the response to paragraph A above. And if we could just delete that in the very first line. So it starts out with the home office would comply. Yes. And then on the last page of the resolution, and this is such a tiny little nitpick, the day of November is the 25th. That's all I had.

Commissioner Newton?

Swift? It's okay. We mentioned in the staff report that they're looking to have a dark sky exterior light, but we don't mention it in the reso at all. That I could see, I may have missed it. I didn't mention it. Okay. So I would like to have that identified in the reso as well. So it's clear in there that it's a dark sky compliant.

Okay.

Or approved lighting. And that could, I think, come perhaps before the Ross Valley Section on page five.

Or maybe you could just add it to paragraph eight. I've already asked Planner Spencer to add the best management practices stormwater protection language that we see in the Pine Drive resolution to that paragraph.

But we don't really have like a code section on dark sky at the moment.

Gotcha.

So, um, I just as soon have it as number 11. Thanks.

I just want to say, I thought about the gray water thing too, but I think for the sprinkler system, they need the tank to be full right when you install it and they need it not to cycle the water out. Uh, but, uh, I wish. I think unless anyone has other comments, we're ready for a motion.

I will move to approve resolution number 2025-24, A resolution of the Fairfax Planning Commission approving application number 2524 for a conditional use permit and a combined side yard setback variance. Why I have to cough in the middle of my motion? For the legalization of a partially constructed approximately 120 square foot detached accessory home office structure and the extension of an approximately four foot wide by 13 foot long section of deck in front of the home office at 76 Fresh Deck Avenue with the changes that the commission has discussed.

Second.

Okay. Motion and second. Do I have a voice vote on this? All in favor of approving the motion?

Aye. Aye.

Aye. Any opposed? None. The motion passes. And you have one recusal. And we have one recusal for the resolution from Commissioner Kelly. Motion passes unanimously of those voting. There is a 10-day appeals period for anybody who'd like to appeal the approval. And information for the appeals process can be obtained from the town staff. Thank you. You're all set.

Thank you.

Run out and see if Commissioner Kelly is hanging out. Although maybe he'll probably see people walking out. We are welcoming back Commissioner Kelly. And now we're ready to move on to agenda item two.

Okay, so this is 69 Pine Drive. The previous owners constructed, did some improvements adjacent to their front entry deck. They built three landscaping retaining walls and did a small front deck expansion. The previous owners did it, and they filed this application for tonight's project. It's now owned by some new owners who are here. So anyway, it turns out that we did a search of the property records. We couldn't find the original house plans, and then we found plans that were for the front deck to be enlarged back in 1987, and it showed the deck maintaining a eight foot setback from the front property line. Well, when the neighbors at 75 Pine came to you guys and had a survey, right, it turns out that no, this front deck is actually mostly in the Pine Drive right of way. The driveway deck is in the Pine Drive right of way. The corner of the garage is in the Pine Drive right of way. And I checked the minutes and there was no variance for this house. So obviously the plans that the house was built under misrepresented the location of the property. house on the property, right? So this is three retaining walls. They're trying to legalize the three retaining walls, the small front deck expansion, right? The corner of the garage that turns out it should have had a variance and encroachment permit in the first place before the house was built, but there's no record of anything and no plans. The corner of the garage, the driveway deck, the three retaining walls, and most of the front entry deck are in the Pine Drive right-of-way. It's all below the road. You know, nothing creates any visibility problems for cars or people walking. The building official has been up and looked at it and they weren't built by cutting and they built the walls and then they backfilled them. So they didn't destabilize the existing hill that's holding up Pine Drive. So it's not gonna, the building official doesn't believe it's gonna create any kind of slides like have occurred in other places on Pine Drive. So the Town Code allows the Planning Commission to approve revocable encroachment permits to allow private improvements within unused portions of the public road if they determine that there's no appropriate or accessible location on the private property to build them. Same is true for the driveway deck, right? So of course, your driveway deck has to go from the road, has to be in the front property. These retaining walls in the deck you know, really look like they're part of the property, as do half the parking garages in Fairfax. You know, our roads aren't paved to the full width of the right of way. Only the, I think it was the MMWD had comments on it, but it's nothing that's going to create an issue for this legalization. Nothing needs a building permit. The portion of the deck is almost at grade, so it doesn't require a permit. The retaining walls are under the height limit for requiring a permit. So we're recommending that you approve application 2525 by adopting resolution 2025-25, which sets forth the findings and the conditions for the project approval. And that would conclude our report.

Thank you. Yes, Commissioner Newton, you have a question for staff?

Same question is this, uh, encroachment into the right of way that's been in existence for many, many years, something that, uh, could be handled ministerially.

Well, you can ask the planning director his opinion, but I kind of think you private use of the public right of way is a little bit different. Um, So I think that should stay. And I don't know if you remember, but I think these were originally went to the council, kind of like, remember the second driveways used to go to the council? There were things that went to the council that got moved to the planning commission. So that was a step that they felt they could make, but I don't know whether we want to eliminate.

Yeah, I think I would agree. If you're authorizing kind of the use of public property for private use, there should be a public process. Yeah, I think.

So when you handle something ministerially, you would still give notice and seek input? No, you wouldn't. Okay, that's interesting. Thanks.

Yeah, Commissioner. Yeah, I have a question. So if, and again, this may be not so applicable here, but it's an important distinction. If you have a structure that is non-compliant and there is no record that it got a variance in the past and it is in the right-of-way, That's not necessarily an acceptable situation, right? You might have to remove it.

Since it's the house, the corner of the garage.

The deck in this case, right?

I mean, there's so many situations like this around Fairfax. We have houses that are literally, the house is in two different public right-of-ways that aren't developed. And the town has never taken the position of requiring people to remove houses from

You know, they usually... No, I understand that you don't want to do that, but I think as a matter of principle, right, it might be necessary because it, let's say, it's a safety hazard or something, right? If a structure is put in the public right away somewhere in the past by somebody and it does not have a variance and there is no record, and let's say you want to widen the street, then it would have to, right? So it's not that it's grandfathered in because it is existing. No, it needs to have the proper records. but you can, let's say, tolerate it, right? You're not going to want people to...

I think it would end up in court, you know, because, you know, is it...

If it's a house, yes, certainly. But yeah, no, no, I'm not suggesting to do that, but as a matter of how the procedure needs to go, right? So in this case, somebody built a deck in the 80s. It's not causing a problem. There's no reason to remove it, but technically it is subject to removal and it remains subject to removal.

And that's the point of making them apply for and get granted the revocable encroachment permit because then the revocable document is recorded at the county. They can't sue the town and say, we didn't know that it wasn't on our property.

Exactly. Okay. Thank you for that.

Yeah. But I mean, technically this thing should have had a front air and setback variance because it literally crosses the front property line.

Right.

But nobody knew it, I guess.

That's why we require surveys now when people get close to the property lines, but they didn't do that back then.

I know. I live here too. I know these things.

It wasn't a thing back then.

Commissioner Swift?

I'll have a question for the owners when we open public comment.

Thanks. The fire department looked at it and didn't have any issue. No comments. It says I think the road's more than 40 feet wide there, right?

The right of way?

Yeah.

It's either 30 or 40. I'd have to check the original subdivision map.

Okay.

But it's larger than 25. Yeah. I think it's 30 or 40.

Okay. Unless anyone has anything else? We'll open public comment for anyone who'd like to speak. Feel free to come up if the applicant would like to speak. We'll have at least one question for the applicant.

Hello. Thanks for having us. We are the new owners at 69 Pine. Happy to be in Fairfax. Just moved here a couple months ago and still getting the lay of the land, of course, but it's been great so far. Happy to take questions. If we can answer them, we will do our best to.

So looking at the site, there are the planters that are down below, and then right at the road pavement edge, there's two bushes there. One seems to be... dead dying yeah um and one that's there i was wondering what your plans are for that because i'm thinking of vegetation management in the public right away um from you know a fire perspective so do you have plans to maintain those or were you thinking of moving them and it's right next to that utility pole

Yeah. So there were, there were three when we moved in and we're still getting settled and we, the automatic water meter was off. And so I think two of them died. We removed one. I was kind of hoping that other one would come back. It seems like probably hasn't. So that will probably get removed. And then the middle one can't tell if deer are eating it, but, um, in terms of management long-term, we just haven't quite gotten there, but we are interested in having, uh, plants there, maybe herbs or something for the kitchen type of thing. Um, but we want to have something alive that's a plant there. Um, but also if that's not acceptable, then we're happy to do what the committee feels is necessary. So, yeah, but we, we want to be fire safe as well. So definitely understand that concern.

Okay. Because there are vegetation management requirements for space from the public right away, and then also a height thing. So something to be thinking about with that space versus the other planters that you have down below that are planted out. Thanks. Makes sense.

Thank you.

Yes, Commissioner Jensen.

You have one question. I mean, it's basically a landscaping element. But looking at it, why exactly did you want to install it?

We did not install them. We inherited them when we bought the house. So they were installed by previous owners, yeah.

OK. So nobody knows. All right.

Thank you. Do we have any raised hands on Zoom?

We do not have any raised hands on Zoom, Chair.

Okay. I think we can close public comment on this one. Thank you. Thank you. Anyone have comments? Can I make a motion?

Yes.

Motion to approve resolution 2025-25, a resolution of the Fairfax Planning Commission approving a revocable encroachment permit for an approximately 18 square foot section of an existing garage, the driveway deck, three two foot tall landscape retaining walls, and approximately 171 square feet of the front entry deck in the Pine Drive right away along the frontage of 69 Pine Drive.

I'll second.

Okay. Voice vote. All in favor? Aye. Any opposed? None.

And with Bela absent.

The motion passes unanimously. There is a 10-day appeals period for anyone interested. You can obtain information on the appeals process from the town staff. Thank you. You're going to leave us by ourselves for the last time. Next, we have the minutes. Does anyone have? No. Any comments on the minutes? If none, we have a motion to approve them.

Motion to approve the meeting minutes from, what are they, September 18, 2025.

Second. OK. Voice vote. All in favor? Aye. Aye. Any opposed? None. Bella absent. The motion passes unanimously. maybe about planning director's report.

Okay, just a few things to provide to the planning commission is information here. We, as you all know, we have a large project proposed in town called School Street Plaza. And we issued a letter to them and they have resubmitted last Friday. And we have posted all of that information to the website. And so we're currently reviewing what they submitted to us to see if it complies with our municipal code and other standards. So that's underway. The other thing we have going on is we have an urgency ordinance scheduled for the council on December 3rd to update the ADU ordinance because the state had some actually pretty minor updates. But if we don't update it by January 1st, then they toss out our entire ADU ordinance. So we're updating it by urgency, and then we're going to bring it back to the planning commission probably in December and have you review it and then forward it on to the council. So we're kind of adopting it twice, unfortunately, but we kind of ran out of time on that one. The one project that we may be undertaking in 2026 is updates to the open space element. The state adopted some new rules related to environmental justice just to make sure that disadvantaged communities had access to open space and parks and so it applies kind of uniformly across all california jurisdictions and so there is a just a few little tweaks that we need to do to our open space element and the fairfax open space committee is super interested in being involved in that so we'll probably be working with With them and the planning commission in 2026 to kind of update the update the code, and we can go beyond what the state is asking us to do if we want. But we, there's a minimum number of things that the state's requiring that that we do. Um. We haven't forgotten about Dark Sky. Now that we have a public works director who's been here for a little while, I think the next step is to work with her and look at Dark Sky from a holistic perspective that includes public streets and private property. So that's on tap for the coming months. The other thing we have going on is the BPAC, the Bicycle and Pedestrian Advisory Committee. We've had two meetings with them. We had the consultant that's helping us create the plan come to the last meeting. And we had a kind of a walk audit of the town center kind of this past Sunday where the whole BPAC just kind of walked up and down the Fairfax's main drag, if you will, and discuss concepts for improvements and identified problems and issues that we noticed. And so we're working on a summary of that.

So anyway, that's what I have. Anybody have any questions on those things?

Couple questions on that. So when we had that joint meeting, we didn't address a lot of the new housing-related legislation. ADUs every year are changed. Are you saying that the council is going to approve or the council is going to hear the changes at their meeting and then it's going to come to us?

Yeah, because we're under the gun to adopt it by January 1st. We have to do an urgency ordinance to the council. Okay. That would just basically adopt what's in the state regulations, and then it would come back to the planning commission.

So if the planning commission had recommended changes, then we would go back to... Yeah, and your change would still have to be consistent with state law. Obviously. Yeah. Yeah. Okay. Open space element. Is there a requirement to make a change before the general plan is due?

Yeah, there's a requirement. Actually, it's January 1st, 2026 is when they put the requirement, but we didn't have any capacity to do that this past year. So there's no, I don't see where there's any penalty to jurisdictions that don't have those updates made on time. But yeah, we would be working on it kind of after the deadline that the state provided. And again, it's mostly intended for environmental justice updates. So I think it's geared primarily towards kind of inner city areas where you have kids that don't have access to parks and open space, but it applies to all jurisdictions in California. So there are a few little tweaks that we have to make to our open space element.

So we would be looking at tweaking it, and then when we look at the general plan, we would be reviewing all the elements again.

Yeah, this would be just a standalone update to the open space element, and maybe conservation element too, because they're related.

You can change the general plan up to four times a year. Yep.

I've heard that. I keep... I was just thinking about a holistic element review versus doing the things that we are doing to make individual changes in the process there.

I have a feeling the Open Space Committee would prefer a holistic evaluation as well.

Yeah, Commissioner Johnson. Time frame for review on the school street plotter project is that 30 days from submittal date?

You know, we are in uncharted territory right now because we've kind of followed the procedure so far, and then after this point, there's no set rules for when we have to respond, but But we're going to try to respond as quickly as possible.

Interesting.

Okay. Have we heard either on this project or generally on the housing element or anything from HCD or anybody else recently?

As far as...

I just don't know if they're reaching out to states in advance, given I feel like there's a fair amount of publicity, statewide at least.

Yeah, we haven't heard anything from – we haven't had any correspondence with HCD.

All right. We want to move on to commissioner comments requests. Yes.

So formula business code and update on that. If you have that, I think the last time we utilized our code was with hen house. And then prior to that element seven, and we haven't, Maybe. Maybe. Yeah, I don't recall. But we haven't since then. Interestingly enough, there was an article in the news a while back in San Francisco, the Valencia Street merchants there in the community are concerned about formula businesses coming in and wanting to maintain their their local small businesses and they had an application come in that apparently there is a requirement in San Francisco for a CUP review process for that type of business and they actually the business is didn't proceed with that when they got some feedback. So this is something that I think our mayor mentioned that members of the community had asked about previously. We've had members of the public comment on that as well. So do you have a status on where we are with that?

Yeah, that's the town attorney who's taking the lead. on that and I think we're I think we're expecting that pretty soon did she send yeah so we we may have a draft that's yeah yeah we know it's been a while that we've been that the town attorney has been working on that and so I think we're finally getting to a point where we're actually seeing some work output on it so

So possibly we may see a draft in December?

December now, but maybe early next year.

Okay. And then my other comment is on the safety element. Thank you all for finalizing it. So we have something other than notes and no red line version, but we actually have the safety element with mitigation plan and it's up on the website. And thank you for taking it to the library. So we've updated the general plan at the library for the public to look at that as well. And it would be great if the town could update the code at the library as well as dating the budgets that we used to maintain there. Um, but I had a question about the safety element. There's, I think it was mentioned when we had the, um, public safety presentations by a, by a council member, but there's, um, AB 1409 amended the government code regarding the safety element. And part of what that says, it says that safety elements shall be reviewed and updated as necessary to identify evacuation routes and their capacity. safety and viability, and evacuation locations under a range of emergency scenarios. So not only fire, but I guess any type of emergency we would have in town. And I wanted to ask, I didn't, if we addressed that in the safety element? I didn't see it. I may have missed it. Certainly there's nothing in there about evacuation locations. The Fairfax portion of the mitigation plan, I don't think addresses that. So my question goes back to How do we meet that requirement? I know when we had the public safety presentations, there was one of the slides showed a what if with the AI product that MWPA now has. But there's nothing that I could see that would lay that out. in the safety element or the mitigation plan like a what if if if You know, what's the capacity of an evacuation route in a fire? Where's a possible evacuation? location to meet the requirements here, so I'd like Some clarity on that whether we need to address the safety element for that and And I know there's other aspects probably of the safety element that now that we've gone through that, you know, we could look at it and see what else may need to be updated.

Yeah, I mean, I think in general, there's a lot of community interest in evacuation and evacuation routes. I've even I've heard the council talk about a little bit. So I think we would be proposing something on our work plan in relation to kind of evacuation routes. And then, you know, we would obviously include updates to the general plan. safety element for that. So I guess what I'm saying is I think that will be proposed on the work plan for the planning department for next year, and we'll see if we can get that kind of... Well, I think there would, I mean, it would be good to get some clarity on what that requirement is from...

the state versus our public safety entities to find out what they are looking for. I know there was some temporary or draft documents on the website.

We do have a blessed local hazard mitigation plan from OES, so the state has at least approved our

Right, right. And that, yeah, and that's a totally different issue. From my perspective, it's just meeting this with the requirements, you know, the capacity, that type evacuation locations, that type of thing, it would seem, you know, if we get clarity from the state as to what they were looking for in this that we could potentially easily have that tool develop some what ifs that could be added in here.

Yeah, I mean, definitely it's a town effort that we should consider.

I'd be really interested in the fire department's analysis of how that law implicates some of the concerns we heard at that meeting about not designating evacuation routes because we don't know what we're evacuating from. And you want people to be aware in the moment of where the best place is to go or stay at home and all that. So I'd be very interested in learning more about AB 1409. Thanks, Commissioner Swift. Appreciate the heads up.

That's all I have.

Yes. We talked earlier today about the combined side setbacks. So regarding ultra-small structures, that's clear. I think by the time we get to making a modification, I would like to remind the other issue we repeatedly run into, and that is in the combined site set work is equal all over Fairfax, whereas those neighborhoods that are built in the 20s, 30s, 40s, they're house, driveway, house, driveway, driveway. So it probably, the setback requirement probably needs to be different where a view corridor is important versus these older neighborhoods where it doesn't make any sense. When we get there. That's a recommendation. Thank you.

Right. Well, we know that the Planning Commission likes having lots of meetings, so. Anyway, yeah.

I'm sorry. One last one that I forgot.

Yeah.

If at the December meeting you can give us any updates on changes regarding the Brown Act and teleconferencing rules that would be applicable starting next year. I know that with the current legislation, some of that was due to expire. those COVID rules at the end of this year, but those were extended by a new legislation. So any changes that would be applicable to us, you know, new table, whatever, would be great.

All right.

Are we ready to adjourn? Motion to adjourn.

One second.

All in favor? Aye. Aye. Aye. Aye. Commissioner Bentley absent. Any nos? None. Motion.

Adjourned.