Item-1.-79-Wood-Lane-min — Fairfax City Council, February 29, 2024

SPECIAL TOWN COUNCIL MEETING

STAFF REPORT
AGENDA ITEM #1
MEETING DATE February 29, 2024
PREPARED FOR Mayor and Town Council
PREPARED BY Linda Neal, Principal Planner
SUBJECT Directed referral of Planning Commission Resolution No. 2024-01 temporarily suspending Planning Commission Resolution 2022-01 for Application # 21-17 due to non-compliance with conditions of approval, plans and discretionary permits, including a Hill Area Residential Development Permit, Design Review Permit, Excavation Permit, Tree Removal Permit and Minimum and Combined Side-yard Setback and Retaining Wall Height Variances for a Single-family Residence, Detached Garage/Accessory Dwelling Unit at 79 Wood Lane CEQA STATUS The revocation of approvals and permits is an administrative action and pursuant to California Environmental Quality Act (CEQA) Guidelines Section 21065 is not a project.

RECOMMENDATION
Adopt Resolution No. 24-___, A Resolution of The Fairfax Town Council Revoking and Rescinding Planning Commission Resolution No. 2022-01 for Application No. 21-17, Including Approvals for a Hill Area Residential Development Permit, Design Review Permit, Excavation Permit, and Tree Removal Permit and a Minimum and Combined Side-yard Setback and Retaining Wall Height Variances, and Accompanying Building Permits for a Residence Located at 79 Wood Lane

APPROVED PROJECT DESCRIPTION
The January 2022 Planning Commission approval of Application No. 21-17 granted a Hill Area Residential Development Permit, Design Review Permit, Excavation Permit, Tree Removal Permit, Minimum and Combined Side-Yard Setback and a Retaining Wall Height Variances for a three bedroom, three and ½ bathroom, single-family residence with a detached combination 400 square-foot, two car garage and 500 square-foot accessory dwelling unit (ADU). The approved project included an elevator in the main residence accessing the 469 square-foot basement and second floor of the proposed 2,210 square foot residence. The basement was to be accessible from the exterior of the structure and was to be used as a mechanical room for the residence’s heating/cooling system. The residence also was to have an interior stairway beginning on the first floor and accessing the second floor.

Prior to approving the permits listed above, the Commission reviewed the plan set dated 10/7/21 (Attachment B) and approved the permits based on the plan set and the requirement that the project be built to conform to the approved plans (Attachment A1- Resolution 2022-01, Condition #15 on page 6).

BACKGROUND
On January 20, 2022, the Planning Commission approved a Hill Area Residential Development Permit, Design Review Permit, Excavation Permit, Tree Removal Permit, Minimum and Combined Side-yard Setback and Retaining Wall Height Variances for a 23-foot tall, three bedroom, three and one-half bathroom, 2,210 square-foot, single-family residence and a detached 400 square-foot, two-car garage with a 500 square-foot, accessory dwelling unit (ADU). The Planning Commission carefully addressed concerns of adjacent neighbors on the height, massing, and orientation of the structure to limit the 2 visual and physical impacts on adjacent properties prior to making the required legal findings approving the design review permit. Due to topographical constraints on the site (a relatively flat front yard of approximately 92 feet from the street, followed by a 42% slope for another 320 feet), the Planning Commission carefully reviewed and approved a project that could be safely constructed with a limited risk of landslide. This included requiring a limit on the excavation for a basement and careful placement of the structures on the site.

The building permit for the project was issued on August 4, 2022. All building permit submittals are required to be consistent with the Commission’s approvals prior to building permit issuance and projects are required to be constructed according to the submitted and approved documents and conditions of approval. Shortly after the permit was issued, the Building Official discovered that the basement, which, in accordance with approved plans, was to have only 469 square-feet of basement area with 6-foot ceilings while the rest of the under-floor area was to be crawl space with overhead clearance of eighteen inches, was excavated so that the entire underfloor area was excavated to the same depth in violation of the building permit and Conditions of Approval (Attachment B - original plan set page A4.1). Due to this violation, the Building Department posted an Order to Stop Work (a red tag) and stopped the project construction. The property owner/applicant’s attorney filed an ex parte application in Marin County Superior Court on August 26, 2022 seeking a lifting of the Order to Stop Work. Through negotiations, the property owner/applicant agreed to work with the Building Official to reach agreement regarding the basement. At that time, the property owner/applicant was told he needed to apply for Planning Commission approval of completed or planned revisions to the approved plans. This did not include approvals that, pursuant to State law and Town Code could be issued ministerially by the Building Official for ADUs. A verbal agreement was reached between the property owner/applicant and Building Official as outlined in the Building Official’s email to the property owner/applicant (Attachment “E”). The property owner/applicant’s response is included.

The applicant subsequently modified the subfloor so that the east and west sides of the subfloor areas have slightly higher finished elevations than the center portion of the basement but not high enough to comply with the Planning Commission approved project plans for the basement (Attachment B - see the building sections on page A4 of the approved plan set). No information was provided to the Department of Planning and Building Services on whether the change in the excavated basement area changed the excavation and fill amount approved by the Planning Commission on January 20, 2022, which was for the excavation of 130 cubic yards of material and the fill of 125 cubic yards of material.

Work resumed when areas of the underfloor identified in the approved plans as crawlspaces were partially filled, though not to the extent to be in compliance with the plans approved by the Planning Commission (Attachment B - page A4).

The following year, on June 5, 2023, the Building Official went to the site to perform a framing inspection and discovered the project structure was not being constructed in accordance with the Planning Commission approved plans, conditions of approval and approved building permit plans. Due to this violation of the Conditions of Approval, approved plans and building permit plans, as well as the property owner/applicant’s failure to submit an application to the Planning Commission for approval of his completed and planned revisions to the project plans, the Building Official once again issued an Order to Stop Work (red tag) on the project.

On August 10, 2023 the Building Official went to the project site due to concerns expressed by the adjacent neighbor regarding excavation at the site. The Building Official found that once again the property owner/applicant had commenced work inconsistent with his approved plans and Conditions of Approval and still had not submitted an application to Planning Commission for approval of the 3 modifications to the approved plans and permits. As a result, the Building Official suspended the building permit for the project and again stopped work on the job site. Thereafter, the property owner/applicant presented to the Building Official, incomplete drawings depicting completed and proposed construction on the site. These incomplete drawings do not show existing or proposed site topography, building elevations, finished floor elevations or ceiling height dimensions, complete room dimensions, revised excavation and fill information, revised retaining wall heights, revised grading and drainage plans, required addendums to the geotechnical report and is missing a drainage study or calculations that reflect the proposed changes. In addition, the property owner/applicant still has not submitted an application to the Planning Commission seeking approval of the constructed and, according to the incomplete drawings, planned revisions to the Planning Commission approved plans, despite knowing since at least August of 2022 that he is required to do so.

Instead, on August 29, 2023 the property owner/applicant’s attorney filed another ex parte writ in Marin County Superior Court seeking a lifting of the suspension and order to stop work. A hearing on the writ resulted in the Court setting another hearing date of October 6, 2023 to allow the Town and the property owner/applicant time to try to resolve the issues informally.

On September 7, 2023 the property owner/applicant requested an appeal of the permit suspension, which the Town Council heard on September 13, 2023. The Town Council denied the appeal and upheld the Building Official's suspension of the building permit "until such time as Mr. Friedman submits an application and receives approval of his modifications from the Planning Commission." The Court, on October 6, 2023, agreed in part and disagreed in part with Friedman's writ claims, directing the Town to "set aside the Order to Stop Work to the extent it applies to construction that was specifically identified in Friedman's original application, construction documents, approved plans, and the permit issued based on those documents," further stating that "Friedman was entitled to a hearing prior to any suspension of the permit (and order to stop work based on that suspension)...." Friedman's petition was denied to the extent that it required the Town to adopt a different appeal process, and the Court never ruled on the issue of the Order to Stop Work on construction not yet approved by the Town, or the issuance of the electrical approval (green tag). In other words, the Court determined that the property owner/applicant was permitted to continue work on previously approved portions of the construction, but not on portions not previously approved and he was entitled to a hearing prior to a suspension of the permit or an order to stop work based on such a suspension.

On December 21, 2023 a permit suspension/revocation hearing was noticed before the Planning Commission for January 11, 2024. The Commission considered all of the evidence that the property was being developed in violation of the approved plans, Conditions of Approval, and building permits and continued the hearing to on or before May 16, 2024, directing that the property owner/applicant submit a complete application, including applicable fees, to the Planning Commission, showing both the revisions that have already been constructed, as well as proposed revisions and all of the missing information as outlined above, no later than March 5, 2024. This timeline was established to give the property owner/applicant enough time to submit an application for the revisions and provide enough time for the information to be reviewed by Town staff and the Town Engineer and brought back to the Commission on or before May 16, 2024.

CHANGES TO THE PROJECT NOT REFLECTED IN THE APPROVED PLANS The below listed changes, both already constructed and proposed in the property owner/applicant’s incomplete drawings, are those Planning and Building staff were able to identify based on a site visit and the incomplete drawings.
4 1. The house has been shifted approximately three feet to the southwest, increasing the northeast setback of the structure from approximately 5-feet to approximately 8-feet and decreasing the southwest setback from approximately 15-feet to approximately 12-feet (further away from 75 Wood Lane and closer to 85 Wood Lane). The structure location change was viewed onsite and is depicted in the incomplete drawings received by the Building Official in August 2023 (Attachment C).

2. The 210 square-foot front porch that ran the entire width of the first-floor front of the structure has been removed and been replaced with an approximately 91 square-foot, front entry addition (Attachment D – photograph of the front of the structure, September 2023).

3. The peaked, ″Slate Gray″ roof over approximately one-third of the first story and the front porch has been replaced with an approximately 440 square-foot, second story, roof deck (Attachment D – photograph of the front of the structure under construction).

4. The 400 square-foot, two car garage/ADU structure has been eliminated. The incomplete drawings show a two-car garage located 10-feet further south than the approved garage site, maintaining a 30-foot setback from the house. However, measurements of the garage foundation in the field by staff revealed the structure foundation is only 14-feet in width and can accommodate only one parking space with some extra width possibly for storage so the foundation that has been constructed on the site does not match the location or size of the garage on the submitted revised plan set.

5. The elimination of the ADU attached to the garage has decreased the retaining wall maximum height from approximately 10-feet to approximately 4-feet.

6. The plans show a 180 square-foot deck at the ground level at the rear of the structure. In the attached June 7, 2023, e-mail to the Building Official the owner indicates that this deck will be removed from the final plans he will present to the Tax Assessor (Attachment E, page 2, item # 4, and last paragraph in red).

7. A portion of the top floor is proposed to be a JADU (junior accessory dwelling unit), resulting in a change to the approved plans to convert the approved rear upper floor deck to living space and the addition of an exterior access stairway to the rear of the house.

8. Additional living space is shown in the basement including an ADU and an office and halfbathroom for the main residence. To comply with the Building Code a window well has been constructed on the east side of the residential structure that projects out from the structure wall maintaining a 5-foot side setback from the east side property line.

9. A second driveway has been added to the northeast corner of the site. Second driveways are not permitted. The Town Code only allows a second driveway by right into a property developed with multiple housing units if the two driveways into the site and the distance between any proposed driveway and the driveways on adjacent properties are separated by a distance not less than 40-feet. The second proposed driveway is only 24-feet from the existing driveway and requires an exception to the Town Code Driveway Standards which can only be granted by the 5 Planning Commission through a variance and only if the required findings for a variance can be made (Town Code § 12.12.050 and §12.12.090).

10.The windows on the east side of the first floor have increased in number from four to five.

11.The windows on the east side of upper level have increased in number from two to five.

12.The window at the rear southeast corner of the first floor has been replaced with a sliding glass door to a rear ground level deck.

13.The ground floor of the west side of the structure was approved for four windows but the incomplete drawings provided to the Building Official propose only three windows.

14.The approved plans for the upper floor of the west side of the building show two windows but the incomplete drawings provided to the Building Official now propose four windows.

15.Two clerestory windows have been added to the basement floor on the west side of the structure.

16.The window over the kitchen sink has been replaced with a bay window in the incomplete drawings provided to the Building Official.

17.The approved Landscape plan, approved project plans set page A1, has two trees shown to be maintained in the area but the incomplete drawings provided to the Building Official show a second driveway/parking space (Attachment C - unnumbered first page of the revisions plan set).

The relocation of the house and redesign of the garage/ADU structure without a revised drainage plan or information from the project engineers that the changes will not alter drainage patterns and will not negatively impact the public road or neighboring properties is concerning due to the soil makeup and slide history of the Wood Lane neighborhood. All of the hillsides behind the houses on Wood Lane are identified as landslide hazard zones based on landslide hazard maps that were prepared after extensive investigation and site surveys done by the California Division of Mines in conjunction with Marin County, the City of San Rafael, the Town of San Anselmo and the Town of Ross in 1976 and updated in 2013. The Town’s 2010-2030 General Plan Safety Element Figure S-3, Areas Susceptible to Landslides map shows the sloped portions of all the properties on both the north and south sides of Wood Lane being subject to landslide hazards.

Prior to any development, the Wood Lane area was a valley with steeply sloping sides from which silt has washed down from the hillsides to the valley floor where the creek ran for many years, covering it with varying thicknesses of relatively weak and compressible fills and native soils which are subject to differential settlement and creating the level portions of the sites on both sides of the street and sites where the homes are now built. The hillsides above the houses have stability issues and that becomes obvious when Fairfax receives a lot of rain falling over short periods of time.

Historically, there have been two slides that damaged structures in the Wood Lane neighborhood, one at 104 Wood Lane in 1982, that damaged a single-family residence and another at 39 Wood Lane in 2006, that damaged a duplex. A third slide and hillside sloughing above the house at 15 Wood Lane 6 could have caused major damage if a proposed substantial remodel and addition wasn’t proposed. The project required review by the Planning Commission with peer review of the project geotechnical study and drainage study by the Town Engineer, that resulted in the project incorporating improvements to intercept the existing unstable soils and protect the house. Unstable soils have been found by Registered Professional Engineers at 50 Wood Lane in 1982 (report by Bala and Strandgaard Civil and Structural Engineer’s/Planner 7/30/82), 18 Wood Lane, in 1985 (Robert Setgast, Geotechnical Engineer, 3/27/85), at 7 Wood Lane in 1990 (John Brotshi, Civil Engineer, 5/1/92) Geotechnical Engineer 3/27/85), and at 60 Wood Lane in 1992 (Geotechnical report by Torikian Associates 5/1/92). The underground water table also rises during these storms.

These types of features on sites in landslide hazards zones are why the Hill Area Residential Development Overlay (HRD) Zone was adopted. The intent of the HRD overlay zone is to minimize grading in hillside areas, minimize water runoff and soil erosion problems during and after construction, prevent loss of life, reduce injuries and property damage and minimize economic dislocations from geologic hazards [Town Code § 17.072.010(B)(2), (4) and (5)]. Town Code § 17.072.090(B) of the Hill Area Residential Development Overlay Zone Ordinance reads, ″Construction shall not be permitted on identified seismic or geologic hazard areas such as on slides, on natural springs, or on identified fault zones, without approval from the Town Engineer″. The Town Engineer approved the plans, including the preliminary grading and drainage plans prior to the Commission taking action on a Hill Area Residential Development Permit which is required for all projects proposed in a landslide hazard zone.

Town Code 17.072.110(C) requires that construction in a landslide hazard zone (as shown in Figure S-3 of the 2010-2030 Fairfax General Plan) cannot be developed without geologic, hydrologic or seismic hazards being assessed based on the project soils report finding. Given the property owner’s unilateral redesign and relocation of the house and garage, the original soils, hydrologic and seismic information and impacts caused by the project must be reassessed to ensure that the changes will not impact adjacent hillsides, properties and public improvements.

DISCUSSION
The project construction as outlined above, is in violation of the conditions set forth in Resolution 2022- 01 approving the project at 79 Wood Lane as the structure and garage locations and exterior designs have been changed from what was approved by the Planning Commission on January 20, 2022. The applicant has failed to submit the required application, fees, plans and reports to the Planning Commission for consideration of a modification to his prior approvals.

Planning Commission Resolution 2022-01 approving the original project design and including the project original conditions of approval, is attached to this report as Attachment A1. The Resolution requires the Planning Commission to review and approve proposed changes to the approved project plans. Amending a previously acted on Resolution requires the Commission to hold a public hearing and allow input from neighboring property owners on the revised design before taking action on a new resolution approving the proposed modifications to the previously approved project.

On January 11, 2024 the Planning Commission held a noticed public hearing and adopted attached Resolution No. 2024-02 (Attachment A2), A Resolution of The Fairfax Planning Commission Temporarily Suspending Planning Commission Resolution No. 2022-01 Including Approvals for a Hill Area Residential Development Permit, Design Review Permit, Excavation Permit, and Tree Removal Permit and a Minimum and Combined Side-yard Setback and Retaining Wall Height Variances for a 7 Residence Located at 79 Wood Lane (Application No. 21-17) Until a Complete Application, Including Required Fees, is Submitted and Acted on by the Planning Commission at a Public Hearing to be Held on or Before May 16, 2024. The Resolution further included an interim deadline of March 5, 2024 for the property owner/applicant to submit a completed application to the Planning Commission, including all required plans, studies
and fees, for the revisions already built as well as the intended future revisions to the approved plans.

On January 16, 2024, the property owner/applicant requested to appeal the Planning Commission’s decision to temporarily suspend his permits pending the Commission’s continued hearing and final decision on or before May 16, 2024. In accordance with Town Code § 17.036.110, on January 22, 2024, the Mayor filed a directed referral with the Town Manager and Town Clerk’s Office requesting a hearing before the Town Council to review the matter and the Planning Commission’s action. A hearing was scheduled and noticed for February 7, 2024, and continued to February 29, 2024, as the property owner did not receive timely notice of the hearing due to incorrectly listing his address with the County Assessor’s Office as the vacant lot at 79 Wood Lane. This hearing has been noticed by posting the property, mailing notice to the property owner’s home address at 96 Forrest Avenue, mailing notice to all property owners and tenants within 300 feet of 79 Wood Lane, and sending email notice to both the property owner and his attorney.

This hearing is being held and conducted as provided in Chapter 17.036, section 17.036.090, which permits the Town Council to assume jurisdiction on matters where action has been taken and is normally final at a lesser level of authority. In accordance with Town Code section 17.036.130, any action brought before the Town Council by the directed referral process is before the Council and the Council may conduct a de novo hearing on the pending application. All alternatives available to the primary authority (Planning Commission) are also available to the Council.

The approved project plans are not being followed. The house has been relocated on the site, the approved subgrade basement has been enlarged and the garage has been relocated and decreased in size with the attached ADU relocated into the basement of the house. Staff observed large amounts of the water, that previously could have soaked into the ground, both during the winter of 2022 and continuing into the spring of 2023, being pumped from the site into the Wood Lane roadway. The relocation of the house and garage and increasing the size of the below grade basement can negatively impact the site drainage, but because the applicant has failed to file the required revised plans and studies for review and action by the Planning Commission, the Town has no way to assess the potential impacts the changes may cause. The failure of the applicant to file the required application, fees, plans and reports has eliminated the ability of the Town to place conditions upon the project design and construction to safeguard the neighbors and the public roadway improvements with the required Town Engineer and Planning Commission review and approval of the required plans, reports and drainage calculations.

Findings to support the revocation of Application 21-17 and Resolution 2022-01:

Due to the applicant not submitting a complete revised project application to modify the original Hill Area Residential (HRD) Permit, Application 21-17, approved by the Fairfax Planning Commission by the adoption of Resolution No. 2022-01, the following findings to revoke the permit and rescind the resolution can be made:

HRD Permit (Town Code § 17.072.030)

1. Except for uses listed in § 17.072.050, land in the HRD overlay zone may not be used or developed until plans for development have been approved by the town and a Hill Area 8 Residential Development permit is issued.

When a project approved by the Planning Commission in accordance with the Hill Area Residential Development Overlay Zone is revised, the plan revisions require the approval of a modification of the approved Hill Area Residential Development Permit (Resolution No. 2022-01, condition #15, approved by the Fairfax Planning Commission on January 20, 2022). The applicant has not filed the required HRD application to amend the project plans as required by the code.

2. The revised project submittal to the Planning Commission for a Hill Area Residential Development Permit (HRD) must include the following: 1) a completed application form and fees; 2) a site plan that is drawn to scale include existing and proposed finished grades around buildings and any areas proposed for grading or fill; 3) floor plans; 4) elevations; 5: revised preliminary grading plan and drainage plans; 6) an updated report by a registered civil engineer specializing in soils and foundations including site soil drainage, relevant watershed boundaries, relationship of the proposed construction to drainage patterns in the vicinity and the cumulative effects of runoff, site geology and the safety of the proposed construction and the foundation adequacy [Town Code § 17.072.080(C)(1) and (2) and (E)(1) through (5)]. The applicant has not submitted the required application, fees, revised complete plans, and updated geotechnical report and drainage plans including revised calculations to ensure the development can occur safely without impacting neighboring properties and adjacent public improvements.

3. The Town Engineer has been unable to review a complete revised plans set and updated geotechnical report, drainage analysis and drainage plan which are required to recommend the Planning Commission take an informed action on the modified HRD application.

4. The original drainage analysis by the applicants Civil Engineer, Aurthur J. Smith, of ILS Associates Inc. Civil Engineering and Land Surveying, cited the following drainage improvements as requirements for development at 79 Wood Lane based on drainage calculations comparing the peak storm water discharge from a ten year and one-hundred-year design storm in the lower flat area and upland area of the site before and after the approved plan improvements. They determined the following would be required to address the increased water flows from the approved house and detached garage/ADU structure:
• Upland flows will be detained with a pipe sized to limit peak one-hundred-year total flows to that of a ten-year flow to regulate the amount of water discharged to the street. • Water quality will be treated by the landscaped areas. The sizing factor for the required landscaped area to decrease off-flow from the site will be 0.2 inches per hour, the rainfall intensity, divided by five inches per hour, the infiltration rate, equaling 0.04.

The Planning Commission has not been provided with an updated drainage analysis or plan that assesses the potential impacts of the house and garage relocation and the basement expansion that would enable them to make the required findings to approve a modification of the original Hill Area Residential Development permit.

5. Without the required application submittal the Planning Commission/Town Council are unable to make the following required legal findings to support the plan revisions 9 • Town Code § 17.072.110(A), The proposed development is consistent with the general plan, other adopted codes and policies of the town and is consistent with the purpose and intent of this title.
• Town Code § 17.072.110(C), Based on the soils report finding, the site can be developed without geologic, hydrologic, or seismic hazards.

Excavation Permit (Town Code 12.20.080)

6. Without updated plans, geotechnical and hydrology information the Planning Commission/Town Council are unable to determine that the health, welfare, and safety of the public will not be adversely affected and that adjacent properties are adequately protected by project design from drainage and erosion problems as a result of the work.

ATTACHMENTS
A. Resolution No. 24-___, A Resolution of The Fairfax Town Council Revoking and Rescinding Planning Commission Resolution 2022-01 for Application No. 21-17, Including Approvals for a Hill Area Residential Development Permit, Design Review Permit, Excavation Permit, and Tree Removal Permit and a Minimum and Combined Side-yard Setback and Retaining Wall Height Variance, and Accompanying Building Permits for a Residence Located at 79 Wood Lane will be available as a supplement.

A1. Planning Commission original Resolution 2022-01
A2. Planning Commission Resolution No. 2024-02 for temporary suspension of Resolution 2022-01 and continued hearing on or before May 16, 2024
B. Approved plans by Laura Kehrlein, Frederic C. Divine Associates, dated 10/7/21 C. Incomplete revised plans received by the Building Official after the June 5, 2023, stop work order
D. Photos of the building and building site
E. E-mail from Building Official to property owner memorializing a verbal agreement regarding the revised project plans, prior to agreeing to lift the initial stop work order in 2022 and property owner/applicant’s response
F. Directed Referral Request
G. Applicant’s presentation to Planning Commission
H. Neighbor comments
I. Building Permit for 79 Wood Lane

ATTACHMENT A
RESOLUTION NO. 24-__

A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF FAIRFAX REVOKING AND RESCINDING PLANNING COMMISSION RESOLUTION NO. 2022-01 INCLUDING

APPROVALS FOR A HILL AREA RESIDENTIAL DEVELOPMENT PERMIT, DESIGN REVIEW

PERMIT, EXCAVATION PERMIT, AND TREE REMOVAL PERMIT AND A MINIMUM AND

COMBINED SIDE-YARD SETBACK AND RETAINING WALL HEIGHT VARIANCE FOR A RESIDENCE LOCATED AT 79 WOOD LANE (APPLICATION NO. 21-17) WHEREAS, on January 20, 2022, the Planning Commission approved Resolution No. 2022-01 for a Hill Area Residential Development Permit, Design Review Permit, Excavation Permit, Tree Removal Permit, Minimum and Combined Side-yard Setback and Retaining Wall Height Variance for a 23-foot tall, three bedroom, three and one-half bathroom, 2,210 square-foot, single-family residence and a detached 400 square-foot, two-car garage with a 500 square-foot, accessory dwelling unit (ADU) for the property located at 79 Wood Lane (“Project”) in the RS 6 Zone and within the Landslide Hazard Zone; and
WHEREAS, due to topographical constraints on the site, including a relatively flat front yard of approximately 92 feet from the street, followed by a 42% slope for another 320 feet, the Planning Commission carefully reviewed and approved construction that included a limit of 469 square feet for the excavation for a basement and careful placement of the structures on the site in order to ensure a project that could safely be constructed with a limited risk of landslide; and WHEREAS, before adopting Resolution 2022-01, the Planning Commission carefully considered all testimony, both oral and written, including the height, massing, and orientation of the proposed structure in order to limit the physical impacts on adjacent properties; and WHEREAS, Resolution No. 2022-01 contains condition of approval #15 that requires the project be built to conform to the approved plans; and
WHEREAS, Resolution No. 2022-01 more specifically contains a conditions of approval that project be built in compliance with the plans presented to the Commission as follows:

1. The architectural plans by Laura Kehrlein, Frederic C. Divine Associates, dated 10/7/21, the record of survey dated 9/2018, the site plan dated 11/10/21 and the erosion control plan dated 11/10/21 by ILS Associates, Inc. Civil Engineering and Land surveyors, the geotechnical report by Herzog Geotechnical Consulting Engineers dated 2/26/18 and the drainage analysis by ILS Associates Inc. Civil Engineering and Land Surveying dated 11/15/21, except as amended as follows:
a. The windows on the east and west sides of the structure shall be modified so that they are non-operable and feature obscured glass; and
WHEREAS, in accordance with the plans, the 469-square-foot basement was to be constructed with 8- foot ceilings, with the remainder of the area to be a crawl space of 30-inches; and WHEREAS, shortly after issuing the building permit, the Fairfax Building Official issued an Order to Stop Work as the Project was not being constructed in accordance with the architectural plans of Laura Kehrlein, Frederic C. Divine Associates, dated 10/7/21, the record of survey dated 9/2018, the site plan dated 11/10/21 and the erosion control plan dated 11/10/21 by ILS Associates, Inc. Civil Engineering and Land surveyors, the geotechnical report by Herzog Geotechnical Consulting Engineers dated 2/26/18 and the drainage analysis by ILS Associates Inc. Civil Engineering and Land Surveying dated 2 11/15/21 (“Plans”) as the basement area had been excavated for the full foundation to a depth of 8 feet and was not stepped as shown on the plans; and
WHEREAS, on August 26, 2022, the property owner/applicant (“applicant”) filed an ex parte writ application with Marin Superior Court seeking a lifting of the Order to Stop Work; and WHEREAS, the applicant modified the excavation and work was permitted to continue by the Building Official as long as in accordance with the Planning Commission Resolution No. 2022-01; and WHEREAS, on June 5, 2023, the Building Official was conducting a framing inspection and discovered the Project once again was not being constructed in accordance with the Planning Commission Resolution No. 2022-01, resulting in the Building Official issuing another Order to Stop Work on the Project; and
WHEREAS, the Building Official and applicant reached an agreement to allow applicant to continue working on the Accessory Dwelling Unit (“ADU”), Junior Accessory Dwelling Unit (“JADU”), approved portions of the Project, and the applicant would submit an application to the Planning Commission requesting a public hearing and amendment of the entitlements; and WHEREAS, the applicant continued working on unapproved portions of the Project, resulting in the Building Official suspending the building permit; and
WHEREAS, the applicant gave the Building Official an incomplete set of drawings depicting completed and proposed construction on the site. These incomplete drawings do not appear to have been drafted by an architect, but rather by the applicant. The drawings do not show existing or proposed site topography, building elevations, finished floor elevations or ceiling height dimensions, complete room dimensions, revised excavation and fill information, revised retaining wall heights, revised grading and drainage plans, a required addenda to the geotechnical report and is missing a drainage study or calculations that reflect the proposed changes; and
WHEREAS, on August 29, 2023, the applicant filed another ex parte writ in Marin Superior Court seeking a lifting of the suspension of the building permit, and the Court directed an administrative resolution of the suspension; and
WHEREAS, the applicant filed an appeal of the suspension of the building permit and the Town Council heard this appeal on September 13, 2023 and upheld the Building Official’s decision to suspend the building permit until the applicant submitted an application to the Planning Commission for review and approval of the modifications to the approved plans and permits; and WHEREAS, to date the applicant has not submitted an application to the Planning Commission to review and approve modifications the applicant has made and plans to make to the Project; and WHEREAS, the Department of Planning and Building Services pursuant to Town Code §17.024.080, initiated revocation of Resolution No. 2022-01 (application 21-17) and land use entitlements related to the construction of the single-family residence and detached garage/accessory dwelling unit as a result of the Building Official determining the Project was not being built as depicted in the approved building permit and plans during an on-site inspection; and
WHEREAS, on January 11, 2024, the Planning Commission conducted a duly noticed public hearing to determine if the project at 79 Wood Lane was being constructed in compliance with the approved Project Plans, approved building permit plans, and the Planning Commission Resolution No. 2022-01 3 including conditions of approval; and
WHEREAS, planning staff and the Building Official identified deviations from the approved plans, both already constructed and anticipated to be a deviation based upon a set of incomplete drawings the applicant gave to the Building Official:

1. The house has been shifted approximately three feet to the southwest, further away from 75 Wood Lane and closer to 85 Wood Lane. The structure location change was viewed onsite and is depicted in the incomplete drawings received by the Building Official in August 2023. This will necessitate a revised drainage analysis and is in violation of the granted variance by further encroaching into the required setbacks.

2. No information has been provided to the Department of Planning and Building Services on whether the change in the excavated basement changed the excavation and fill amount approved by the Planning Commission on January 20, 2022, which was for the excavation of 130 cubic yards of material and the fill of 125 cubic yards of material.

3. The addition of the second driveway is in violation of Town Code §12.12.050. A second driveway has been added to the northeast corner of the site. Second driveways are not permitted. The Town Code only allows a second driveway by right into a property developed with multiple housing units if the two driveways into the site and the distance between any proposed driveway and the driveways on adjacent properties are separated by a distance not less than 40-feet. The second proposed driveway is only 24-feet from the existing driveway and requires an exception to the Town Code Driveway Standards which can only be granted by the Planning Commission through a variance and only if the required findings for a variance can be made (Town Code § 12.12.050 and §12.12.090).

4. In addition, the following changes are not shown on the approved plans and necessitate review to determine if they are in compliance with Building and Town Codes:
• The 210 square-foot front porch that ran the entire width of the first-floor front of the structure has been removed and been replaced with an approximately ninety-one square-foot, front entry addition.
• The peaked, ″Slate Gray″ roof that extends over about a third of the first story has been replaced with an approximately 440 square-foot, second story, roof deck. • The four hundred square-foot, two car garage/ADU structure has been eliminated. The incomplete drawings show a two-car garage located 10-feet further south than the approved garage site, maintaining a 30-foot setback from the house. However, measurements of the garage foundation in the field by staff revealed the structure foundation is only 14-feet in width and can accommodate only one parking space with some extra width possibly for storage so the foundation that has been constructed on the site does not match the location or size of the garage on the submitted revised plan set.
• The elimination of the ADU attached to the garage has decreased the retaining wall maximum height from approximately 10-feet to approximately 4-feet. • The plans show a 180 square-foot deck at the ground level at the rear of the structure. In the attached June 7, 2023, e-mail to the Building Official the owner indicates that this deck will be removed from the final plans he will present to the Tax Assessor. • A portion of the top floor is proposed to be a JADU, resulting in a change to the approved plans to convert the approved rear upper floor deck to living space and the addition of an exterior access stairway to the rear of the house. 4 • Additional living space is shown in the basement including an ADU and an office and half-bathroom for the main residence. To comply with the Building Code a window well has been constructed on the east side of the residential structure that projects out from the structure wall maintaining a 5-foot side setback from the east side property line. • The windows on the east side of the first floor have increased in number from four to five.
• The windows on the east side of upper level have increased in number from two to five. • The window at the rear southeast corner of the first floor has been replaced with a sliding glass door to a rear ground level deck.
• The ground floor of the west side of the structure was approved for four windows but the incomplete drawings provided to the Building Official propose only three windows. • The approved plans for the upper floor of the west side of the building show two windows but the incomplete drawings provided to the Building Official now propose four windows.
• Two clerestory windows have been added to the basement floor on the west side of the structure.
• The window over the kitchen sink has been replaced with a bay window in the incomplete drawings provided to the Building Official.
• The approved Landscape plan, approved project plans set page A1, has two trees shown to be maintained in the area but the incomplete drawings provided to the Building Official show a second driveway/parking space; and
WHEREAS, after holding a noticed public hearing on January 11, 2024, the Planning Commission determined that the construction occurring at 79 Wood Lane is not in compliance with the approved Project Plans and building permit plans and Planning Commission Resolution No. 2022-01 and, pursuant to Town Code Section 17.024.090 (D), which provides that when “[t]here is or has been a violation of, or failure to observe or comply with, the terms or conditions of the permit…is a ground for revocation of any zoning permit.” took action to temporarily suspend Application # 21-17, continue the hearing to a date on or before May 16, 2024 and directed the following to occur:

1. The applicant must submit a complete application, including plans for the changes that have been made, or intended to be made to the Project including the payment of fees, revised architectural plans, addendums to the geotechnical and drainage reports and a revised drainage plan by no later than March 5, 2024; and

2. The Department of Planning and Building Services and the Fairfax Town Engineer shall provide comments to applicant regarding the completeness of the application within 30 days of receipt of the application.

3. The applicant is allowed to weatherize the property within fifteen (15 days) of the date of this resolution as follows:
• Use straw wattles along contours
• Install erosion control blankets (or equivalent)
• Cover all stockpiles and landscape material
• Cover all exposed soils with straw mulch
• Weatherization does not include alteration to the structures; and WHEREAS, the applicant desired to appeal this interim action of the Planning Commission; and 5 WHEREAS, Town Code §17.036.090 permits the Town Council to assume jurisdiction on matters where action has been taken and is normally final at a lesser level of authority and §17.036.130 permits the Town Council to conduct a de novo hearing on the pending application, meaning that all alternatives available to the primary authority (Planning Commission) are also available to the Town Council; and
WHEREAS, on January 22, 2023, the Mayor filed a directed referral request with the Town Manager and Town Clerk pursuant to Town Code §17.036; and
WHEREAS, the Town Council held a duly noticed public hearing on February 7, 2023, to consider revocation and rescission of Planning Commission Resolution N. 2022-01 including all approvals and permits issued for Application 21-17; and
WHEREAS, the Town Council of the Town of Fairfax hereby finds and determines the following.

Due to the applicant not submitting a complete revised project application to modify the original Hill Area Residential (HRD) Permit, Application 21-17, approved by the Fairfax Planning Commission by their approval of Resolution No. 2022-01, the following findings to revoke the permit and rescind the resolution can be made:

HRD Permit (Town Code Chapter 17.072.030)

1. (Town Code) § 17.072.030, Development Permit Required. Except for uses listed in §

17.072.050, land in the HRD overlay zone may not be used or developed until plans for development have been approved by the town and a hill area residential development permit is issued.

When a project approved by the Planning Commission in accordance with the Hill Area Residential Development Overlay Zone is revised, the plan revisions require the approval of a modification of the approved Hill Area Residential Development Permit (Resolution No. 2022- 01, condition #15, approved by the Fairfax Planning Commission on January 20, 2022). The applicant has not filed the HRD application to amend the project plans as required by the code.

2. The revised project submittal to the Planning Commission for a Hill Area Residential Development Permit (HRD) must include the following: 1) a completed application form and fees; 2) a site plan that is drawn to scale include existing and proposed finished grades around buildings and any areas proposed for grading or fill; 3) floor plans; 4) Elevations; 5: revised preliminary grading plan and drainage plans; 6) an updated report by a registered civil engineer specializing in soils and foundations including site soil drainage, relevant watershed boundaries, relationship of the proposed construction to drainage patterns in the vicinity and the cumulative effects of runoff, site geology and the safety of the proposed construction and the foundation adequacy [Town Code § 17.072.080(C)(1) and (2) and (E)(1) through (5)]. The applicant has not submitted the required application, fees, revised complete plans, and updated geotechnical report and drainage plans including revised calculations to ensure the development can occur safely without impacting neighboring properties and adjacent public improvements.

The original drainage analysis by the applicants Civil Engineer, Aurthur J. Smith, of ILS Associates Inc. Civil Engineering and Land Surveying, cited the following drainage 6 improvements as requirements for development at 79 Wood Lane based on drainage calculations comparing the peak storm water discharge from a ten year and one-hundred year design storm in the lower flat area and upland area of the site before and after the approved plan improvements. They determined the following would be required to address the increased water flows from the approved house and detached garage/ADU structure:
• Upland flows will be detained with a pipe sized to limit peak one-hundred-year total flows to that of a ten-year flow to regulate the amount of water discharged to the street. • Water quality will be treated by the landscaped areas. The sizing factor for the required landscaped area to decrease off-flow from the site will be 0.2 inches per hour, the rainfall intensity, divided by five inches per hour, the infiltration rate, equaling 0.04.

The Planning Commission has not been provided with an updated drainage analysis and/or plans addressing the house relocation, basement enlargements and garage/ADU relocation.

4. Without the required application submittal, the Planning Commission/Town Council are unable to make the following required legal findings to support the plan revisions. • Town Code § 17.072.110(A), The proposed development is consistent with the general plan, other adopted codes and policies of the town and is consistent with the purpose and intent of this title.
• Town Code § 17.072.110(C), Based on the soils report finding, the site can be developed without geologic, hydrologic, or seismic hazards.

Excavation Permit (Town Code 12.20.080)

5. The applicant has modified the subfloor so that the east and west sides of the subfloor areas have slightly higher finished elevations than the center portion of the basement but not high enough to comply with the Planning Commission approved project plans for the basement (Attachment B - see the building sections on page A4 of the approved plan set). No information was provided to the Department of Planning and Building Services on whether the change in the excavated basement area, the relocation of the ADU to that basement and the relocation of the garage changed the excavation and fill amount approved by the Planning Commission on January 20, 2022, which was for the excavation of 130 cubic yards of material and the fill of 125 cubic yards of material and potentially changing the flow and direction of water entering and leaving the site.

NOW, THEREFORE BE IT RESOLVED,

1. That the statements, findings, and determinations reflected above in the recitals are true and correct, and incorporated by this reference herein as the findings, cause and foundation for the action taken by this Resolution.

2. The construction at 79 Wood Lane (Application 21-17) is not being constructed and completed in accordance with approved plans, permits and conditions of approval, and is therefore in violation of Planning Commission Resolution No. 2022-01. 7 3. These unapproved modifications create a heightened risk of damage to the surrounding properties and negative impact to the neighborhood by failing to allow review of revised plans or information regarding the expansion and/or modification of excavation and fill on a site within the Landslide Hazard Zone and in violation of the Town Code and General Plan.

4. Excavation Permit. Moreover, the shifting of the structures has resulted in a further encroachment into the required setbacks. Finally, the planned second driveway is in violation of the Town Code and negatively impacts the safety of the site and neighborhood.

5. The Town Council of the Town of Fairfax has determined that the revocation of approvals and permits is an administrative action that is not a project under the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 21065.

AND THEREFORE BE IT FURTHER RESOLVED, that the Town Council of the Town of Fairfax hereby adopts Resolution No. 24-___ A Resolution of the Fairfax Town Council, Revoking and Rescinding Planning Commission Resolution No. 2022-01 for application 21-17, for a Hill Area Residential Development Permit, Design Review Permit, Excavation Permit, and Tree Removal Permit and a Minimum and Combined Side-yard Setback and Retaining Wall Height Variance for the Project located at 79 Wood Lane.

The foregoing resolution was adopted at a regular meeting of the Town Council held in said Town, on the 29th day of February 2024, by the following vote:

AYES:

NOES:

ABSENT:

________________________________
Mayor Barbara Coler
Attest:
________________________________
Christine Foster, Deputy Town Clerk
RESOLUTION NO. 2022-01
A Resolution of The Fairfax Planning Commission Conditionally Approving Application No. 21-17 for a Hill Area Residential Development Permit, Design Review Permit, Excavation Permit, and Tree Removal Permit and a Minimum and Combined Side-yard Setback and Retaining Wall Height Variance for a Residence at 79 Wood Lane
WHEREAS, the Town of Fairfax received an application from Coby Friedman and the Jacob Friedman Trust to build a two- story, 2,639 square-foot, two-story structure (house and accessory dwelling unit) with a partially below-ground basement and a 450 square-foot, one car detached garage on July 6, 2021; and WHEREAS, after holding a duly noticed public hearing on August 19, 2021, on the project plans and design which included a main structure that reached 28 feet in height, the Commission continued the hearing and gave the applicant direction to decrease the height of the structure and to make other design changes to the project plans; and WHEREAS, after holding a second hearing on a revised project for a 2,210 square foot residence that was reduced to approximately 23 feet in height with a detached 900 square foot two car garage/ADU on January 20, 2022, the Planning Commission determined that the modified project complies with the Hill Area Residential Development Overlay Ordinance, the Design Review Ordinance and the Excavation Ordinance and that findings can be made to grant the requested Minimum and Combined Side Yard Setback and Retaining Wall Height Variances- and the Tree Removal Permit; and
WHEREAS, the Commission has made the following findings:

The project is consistent with the 2010-2030 Fairfax General Plan as follows:

Policy LU-1.2.3: New and renewed development shall be designed and located to minimize the visual mass. The Town will require exterior materials and colors that blend the exterior appearance of structures with the surrounding natural landscape, allowing for architectural diversity.

Policy LU-4.1.4: New and renewed development shall be designed to minimize run-off in a manner that does not cause undue hardship on neighboring properties.

Policy LU-7 .1.5: New and renewed residential development shall preserve and enhance the existing character of the Town's neighborhoods in diversity, architectural character, size, and mass.

Policy LU-7.2.2: to the extent feasible natural features including the existing grade, mature trees and vegetation shall be preserved for new and renewed development.

ATTACHMENT A1
Hill Area Residential Development (Town Code§ 17.072.110)

1. The proposed development is consistent with the General Plan (see above) and consistent with the purpose and intent of the Zoning Ordinance, Title 17, of the Fairfax Town Code.

2. The site planning preserves identified natural features as much as possible while also complying with other agency and department regulations.

3. Based on the soils report findings, the site can be developed without geologic, hydrologic or seismic hazards;

4. Vehicular access and parking are adequate.

5. The proposed development harmonizes with the surrounding residential development, meets the design review criteria and does not result in the deterioration of significant view corridors.

Design Review (Town Code§ 17.020.040)
The craftsman architecture, with the second story stepped back from the street fagade and the large porch at the front, subject to the minor window changes to the east and west sides of the structure included as a condition below (modifying the windows on the east and west sides of the structure with clerestory windows/obscured glass windows) complies with the Design Review Criteria set forth in Town Code§ 17.020.040.

Excavation Permit (Town Code§ 12.20.080(8)(1 through 7) The excavation permit will result in the excavation of 130 cubic yards of material, the filling of 125 cubic yards of material, and the off-haul of five cubic yards of material These amounts are the minimum necessary to allow development of the site while also protecting the site and the neighboring properties from increased drainage and soil stability impacts. The excavation permit can be approved based on the following findings:

The health, welfare and safety of the public will not be adversely affected by the project;

1. Adjacent properties are adequately protected by project investigation and design from geologic hazards as a result of the work.

2. Adjacent properties are adequately protected by project design from drainage and erosion problems as a result of the work.

3. The amount of excavation or fill proposed is not more than is required to allow the property owner substantial use of his or her property. 2 4. The visual and scenic enjoyment of the area by others will not be adversely affected by the project more than is necessary.

5. Natural landscaping will not removed by the project more than is necessary.

6. Town Code§ 17.072.090(C)(4) prohibits initial grading during the raining season from October 1
st through April 1
st
. Therefore, the time of year during which
construction will take place is such that work will not result in excessive siltation from storm runoff nor prolonged exposure of unstable excavated slopes.

Minimum and Combined Side-Yard Setback Variance (Town Code§ 17.028.070)

1. The narrow 50-foot width of the site, the small amount of level site area at the front of the property and the steep 42% slope of the rear of the site, are the site features that, if the combined 20 foot side yard setback and the prohibition of parking in the side setbacks were strictly enforced, would deprive the applicant of privileges enjoyed by other property owners in the vicinity and under identical zone classification (RS 6).

2. There are other properties in the vicinity with residences and parking and structures located within the required minimum and combined side-yard setback area and the proposed garage and house individually meet the both the minimum and combined required side-yard setbacks. Therefore, the granting of this variance will not be a grant of special privilege.

3. The strict application of the combined side-yard setback would result in unreasonable hardship for the applicant.

4. The granting of the variance will not be detrimental to the public welfare or injurious to other property in the vicinity in which the property is situated.

Tree Removal
The trees proposed for removal (one apple tree and one olive tree) are in compliance with all the considerations listed in Town Code 8.36.060(8)(1 through 7) of the Tree Ordinance, Town Code Chapter 8.36. The heritage Live Oak tree at the northwest corner of the site is to be retained.

WHEREAS, the Commission has approved the project subject to the applicant's compliance with the following conditions:

The project is approved based on the following plans and reports:

1. The architectural plans by Laura Kehrlein, Frederic C. Divine Associates, dated 10/7 /21, the record of survey dated 9/2018, the site plan dated 11/10/21 and the 3 erosion control plan dated 11/10/21 by ILS Associates, Inc. Civil Engineering and Land surveyors, the geotechnical report by Herzog Geotechnical Consulting Engineers dated 2/26/18 and the drainage analysis by ILS Associates Inc. Civil Engineering and Land Surveying dated 11/15/21, except as amended as follows:
a. The windows on the east and west sides of the structure shall be modified so that they are non-operable and feature obscured glass.

2. Prior to issuance of any of the building permits for the project the applicant or his assigns shall:
a) Submit an amended construction plan to the Public Works Department for their approval. The amended plan shall include but is not limited to the following:

I. Construction delivery routes approved by the Department of Public Works.

II. Construction schedule (deliveries, worker hours, etc.) Ill. Notification to area residents
IV. Emergency access routes
V. Construction worker staging area

3. The applicant shall prepare, and file with the Public Works Director, a video of the roadway conditions on the public construction delivery routes (routes to be pre-approved by Public Works Director).

4. Submit a cash deposit, bond, or letter of credit to the Town in an amount that will cover the cost of grading, weatherization, and repair of possible damage to public roadways. The applicant shall submit contractor's estimates for any grading, site weatherization and improvement plan for approval by the Town Engineer. Upon approval of the contract costs, the applicant shall submit a cash deposit, bond or letter of credit equaling 100% of the estimated construction costs.

5. The foundation and retaining elements shall be designed by a structural engineer certified as such in the state of California. Plans and calculations of the foundation and retaining elements shall be stamped and signed by the structural engineer and submitted to the satisfaction of the Town Structural Engineer.

6. The grading, foundation, retaining, and drainage elements shall also be stamped and signed by the project geotechnical engineer as conforming to the recommendations made by the project Geotechnical Engineer.

7. Prior to submittal of the building permit plans, the applicant shall secure written approval from the Ross Valley Fire Authority, Marin Municipal Water District and the Ross Valley Sanitary District noting the development conformance with their recommendations.

8. Submit 3 copies of the recorded record of survey with the building permit plans. 4 9. All retaining walls that are visible from the street and are constructed of concrete shall be heavily textured or colorized in a manner approved by the planning staff prior to issuance of the building permit. This condition is intended to mitigate the visual impact of the proposed walls.

10. Prior to the removal of any trees not approved by the Planning Commission through this action, the applicant shall secure a tree cutting permit, if required, from the Fairfax Tree Committee prior to removal of any on-site trees subject to a permit under Town Code Chapter 8.36. To further minimize impacts on trees and significant vegetation, the applicant shall submit plans for any utility installation (including sewer, water and drainage) which incorporates the services of an ISA certified arborist to prune and treat trees having roots 2 inches or more in diameter that are disturbed during the construction, excavation or trenching operations. Tree root protection measures may include meandering the line, check dams, rip rap, hand trenching, soil evaluation and diversion dams.

11. During the construction process the following shall be required:
a) The geotechnical engineer and the project arborist shall be on-site during the grading process and both shall submit written certification to the Town Staff that the grading and tree protection measures have been completed as recommended prior to installation of foundation and/or retaining forms and drainage improvements, piers and supply lines.
b) Prior to the concrete form inspection by the building official, the geotechnical and structural engineers shall field check the forms of the foundations and retaining elements and provide written certification to the Town staff that the work to this point has been completed in conformance with their recommendations and the approved building plans.
c) The Building Official shall field check the concrete forms prior to the pour. d) All construction-related vehicles including equipment delivery, cement trucks and construction materials shall always be situated off the travel lane of the adjacent public right(s)-of-way. This condition may be waived by the Building Official on a case-by-case basis with prior notification from the project sponsor. e) Any proposed temporary closures of a public right-of-way shall require prior approval by the Fairfax Police Department and any necessary traffic control, signage or public notification shall be the responsibility of the applicant or his/her assigns. Any violation of this provision will result in a stop work order being placed on the property and issuance of a citation.

12. Prior to issuance of an occupancy permit the following shall be completed:
a) The geotechnical engineer shall field check the completed project and submit 5 written certification to the Town Staff that the foundation, retaining, grading and drainage elements have been installed in conformance with the approved building plans and the recommendations of the soils report. Additionally, the project engineer shall review the construction schedule and plans at each phase of the project construction to determine the best order for each phase to occur including the hillside retention/drainage phases.
b) The Planning Department and Town Engineer shall field check the completed project to verify that all and planning commission conditions and required engineering improvements have been complied including installation of landscaping and irrigation prior to issuance of the certificate of occupancy. The Planning Department and the Town Engineer shall also review the construction schedule and plans at each phase of the project construction to determine the best order for each phase to occur including the hillside retention/drainage phases.

13. Excavation shall not occur between October 1st and April 1 st of any year. The
Town Engineer has the authority to waive this condition depending upon the weather.

14. The roadways shall be kept free of dust, gravel, and other construction materials by sweeping them, daily, if necessary.

15. Any changes, modifications, additions, or alterations made to the approved set of plans will require a modification of Application# 21-17. Modifications that do not significantly change the project, the project design or the approved discretionary permits may be approved by the Planning Director. Any construction based on job plans that have been altered without the benefit of an approved modification of Application 21-17 will result in the job being immediately stopped and red tagged.

16.Any damages to the public portions of Pacheco Avenue, Solinas Road, Porteous Avenue or Wood Lane or other public roadway used to access the site resulting from construction activities shall be the responsibility of the property owner.

17. The applicant and its heirs, successors, and assigns shall, at its sole cost and expense, defend with counsel selected by the Town, indemnify, protect, release, and hold harmless the Town of Fairfax and any agency or instrumentality thereof, including its agents, officers, commissions, and employees (the "lndemnitees") from any and all claims, actions, or proceedings arising out of or in any way relating to the processing and/or approval of the project as described herein, the purpose of which is to attack, set aside, void, or annul the approval of the project, and/or any environmental determination that accompanies it, by the Planning Commission, Town Council or Planning Director or any other department or agency of the Town. This indemnification shall include, but not be limited to, suits, damages, judgments, costs, expenses, liens, levies, attorney 6 fees or expert witness fees that may be asserted or incurred by any person or entity, including the applicant, third parties and the lndemnitees, arising out of or in connection with the approval of this project, whether or not there is concurrent, passive, or active negligence on the part of the lndemnitees. Nothing herein shall prohibit the Town from participating in the defense of any claim, action, or proceeding. The parties shall use best efforts, acting in good faith, to select mutually agreeable defense counsel. If the parties cannot reach agreement, the Town may select its own legal counsel and the applicant agrees to pay directly, or timely reimburse on a monthly basis, the Town for all such court costs, attorney fees, and time referenced herein, provided, however, that the applicant's duty in this regard shall be subject to the Town's promptly notifying the applicant of any said claim, action, or proceeding.

18. The applicant shall comply with all applicable local, county, state and federal laws and regulations. Local ordinances which must be complied with include, but are not limited to: the Noise Ordinance, Chapter 8.20, Polystyrene Foam, Degradable and Recyclable Food Packaging, Chapter 8.16, Garbage and Rubbish Disposal, Chapter 8.08, Urban Runoff Pollution Prevention, Chapter 8.32 and the Americans with Disabilities Act and Best Management Practices for Stormwater Pollution Prevention.

19. Conditions placed upon the project by outside agencies, Town department or by the Town Engineer may be eliminated or amended with that agency's, department's or the Town Engineer's written notification to the Planning Department prior to issuance of the building permit.

20. The building permit plans shall be reviewed and approved by the Town Engineer, at the expense of the applicant, prior to issuance of the building permit. The project shall be inspected by the Town Engineer prior to issuance of the occupancy permit for the residential structure for compliance with the engineering plans.

Ross Valley Fire Department

21.AII vegetation and construction materials are to be maintained away from the residence during construction,

22. The project requires installation of a fire sprinkler system that complies with the National Fire Protection Association regulation 13-D and local standards. The system will require a permit from the Fire Department and the submittal of plans and specifications for a system submitted by an individual or firm licensed to design and/or design-build sprinkler systems.

23. The property is located within the Wildland Urban Interface Area for Fairfax and the new construction must comply with Chapter 7 A of the California Building Code or equivalent.
7 24.AII smoke detectors in the residence shall be provided with AC power and be interconnected for simultaneous alarm. Detectors shall be located in each sleeping room, outside of each sleeping room in a central location in the corridor and over the center of all stairways with a minimum of 1 detector on each story of the occupied portion of the residence.

25. Carbon monoxide alarms shall be provided in existing dwellings when a permit is required for alterations, repairs, or addition and the cost of the permit exceeds $1,000.00. Carbon monoxide alarms shall be located outside of each sleeping area in the immediate vicinity of the bedrooms and on every level of the dwelling, including basements.

26. Address numbers at least 4 inches tall must be in place adjacent to the front door. If not clearly visible from the street, additional numbers must be placed in location that is visible from the street. The numbers must be internally illuminated or illuminated by and adjacent light controlled by a photocell that can be switched off only be a breaker so it will remain illuminated all night.

27. Alternative materials or methods may be proposed for any of the above conditions in accordance with Section 104.9 of the Fire Code.

28.AII approved alternatives requests, and their supporting documentation, shall be included in the plan sets submitted for final approval by the Fire Department.

Marin Municipal Water District (MMWD)

29.A copy of the building permit must be provided to the district along with the required applications and fees.

30. The foundation must be completed within 120 days of the date of application.

31. All indoor and outdoor requirements or District Code Title 13, Water Conservation must be complied with.

32.Any landscaping plans must be reviewed and approved by the District.

33. Backflow prevention requirements must be met.

34. Ordinance 420., requiring installation of grey water recycling system when practicable, must be incorporated into the project building permit plans or an exemption letter from the District must be provided to the Town.

35.AII the District's rules and regulations if effect at the time service is requested must be complied with.

Ross Valley Sanitary District (RVSD)
8 36.A sewer connection permit and a side sewer connection permit are required for all work outside the new building footprint.

37.Fees will include sewer capacity charges as well as permit fees.

38. Test the sewer lateral(s) from the outer face of the building to the connection at the existing sewer main, in accordance with RVSD Ordinance 100 and Standards.

39. Include a sewer cleanout and backwater protection device within 2-feet of the building foundation, the Ross Valley Sanitary Standard Notes shall be shown and are found in Subsection L of Section 3 of the Design and Construction Standards and demonstrate that all materials used in the construction of the sewer improvements are from the approved materials list.

40.A hold will be placed on the property when the building permit is issued and will not be released for occupancy until the District permit and sewer requirements have been fulfilled.

41.A Certificate of Compliance for the lateral must be obtained from the RVSD prior to the project final inspection by the Fairfax Building Department.

Fairfax Public Works Department

42.All large trucks with more than 2 axles accessing the site for construction will be limited daily to the hours between 9 AM to 3 PM.

43.AII driveway improvements shall be completed and be signed off by the Building Official and Public Works Manager before construction begins on the house.

44. Complete road closures will be limited to concrete pours and steel placement and will be coordinated with the Fairfax Police Department and Ross Valley Fire Department.

45.A detailed construction management plan must be submitted with the building permit application that includes construction delivery routes, construction schedule (deliveries, worker hours, etc.), notification to area residents, emergency access and egress routes and proposed employee parking locations during construction and be approved by the Department of Public Works.

46. The applicant shall prepare, and file with the Public Works Director, a video of the roadway conditions on the construction delivery routes.

47.A bond will be submitted prior to issuance of the building permit in an amount that will cover the cost of grading, weatherization and repair of possible roadway 9 damage in an amount equaling 100% of the estimated construction costs and pay for the Town Engineer's/Plan Checker's time to review and confirm the contractor's estimate.

48.A four foot wide sidewalk shall be installed along the entire property frontage as part of the project and shall be inspected and approved by the Building Official/Public Works Director prior to the project final inspection.

49.Town Engineer

50. The Town Engineer shall review the final, stamped and signed project Civil and Structural plans and the project Civil Engineer shall provide a letter certifying that the site grading and drainage improvements have been installed per the site "drainage" plan designed by ILS Associates, Inc. dated 11/10/21 prior to the project final inspection.

51.AII the exterior fixtures must be dark sky compliant (fully shielded and emit no light above the horizontal plane with no sag or drop lenses, side light panels or upplight panels) as well as compliance with color temperature to minimize blue rich lighting. The lighting plan shall be submitted with the building permit application and be approved by the Planning Department prior to issuance of the project building permit. The lighting shall not emit direct offsite illumination and shall be the minimum necessary for safety.

Miscellaneous

52. The surveyor shall mark the location of all the property lines in the field prior to the start of construction.

53.A drainage system maintenance agreement including a system location plan and required maintenance schedule hall be approved by the Town Engineer and then be recorded at the Marin County Recorder's Office setting forth the required maintenance schedule to ensure the drainage system continues to function as designed. A copy shall be provided to the Town prior to issuance of the building permit.

54.An arborist report that includes tree protection during construction measures shall be submitted with the building permit application for approval by the Planning Director and the measures are conditions of approval for this project and must be in place, inspected and approved by the arborist with verification in writing to the Town, prior to the start of construction.

55. If the existing eastern and western side property line fences are damaged or need to be removed during construction, the owner shall replace the fences at his own cost prior to the project final inspection. The side fences or combination fence/wall structures shall be no more than six feet above the lowest finished IO
grade on either side of each fence unless a fence height variance is obtained from the Planning Commission for a taller fence or fence/wall combination first.

The design of the fences shall be agreed upon by both the neighbors at 75 and 85 Wood Lane and the owner of 79 Wood Lane to maximum the privacy for the neighbors yards while limiting the shade cast by the fences if so desired by the neighbor. If agreement cannot be reached between the applicant and the neighbors on the design of the fences, the applicant shall submit the proposed plan(s) with a minimum $427 design review (color change) fee and the final fence design will be reviewed and acted upon by the Planning Commission.

56. The building permit plans shall include details to incorporate the required infrastructure for the solar power and battery back-up systems the applicant indicated will be part of the project at the January 20, 2022 Planning Commission meeting in addition to the water heater and furnace locations.

NOW, THEREFORE BE IT RESOLVED, the Planning Commission of the Town of Fairfax hereby finds and determines as follows:

The approval of the Hill Area Residential Development, Design Review Permit, Excavation and Tree Removal permits and the finding have been made to grant the requested minimum and combined side setback variances to maintain a combined side yard setback of ten feet and to allow the guest parking space to be located within the required western side yard setback. Therefore, the project is in conformance with the 2010 - 2030 Fairfax General Plan, the Fairfax Town Code and the Fairfax Zoning Ordinance, Town Code Title 17; and
Construction of the project can occur without causing significant impacts on neighboring residences and the environment.

The foregoing resolution was adopted at a regular meeting of the Planning Commission held in said Town, on the 20th day of January, 2022 by the following vote:

AYES: Green, Jansen, Kelly, Newton, Swift, Chair Frc;tgoso NOES: None ,/
'( ,r, -:···· l / JI} :.1 .• ,..___
/ "-/ L r 2tt u-l / rt 1-rr(. c o
Chair Norma Fragoso
11 RESOLUTION NO. 2024-02
A Resolution of The Fairfax Planning Commission Temporarily Suspending Planning Commission Resolution No. 2022-01, Including Approvals for a Hill Area Residential Development Permit, Design Review Permit, Excavation Permit, and Tree Removal Permit and a Minimum and Combined Side-yard Setback and Retaining Wall Height Variance for a Residence Located at 79 Wood Lane (Application No. 21-17) Until a Complete Application for Revisions to Permits and Variance Applications, Including Required Fees, is Submitted and Acted on by the Planning Commission at a Public Hearing to be Held on or Before May 16, 2024
WHEREAS, on January 20, 2022, the Planning Commission approved Resolution No. 2022-01 for a Hill Area Residential Development Permit, Design Review Permit, Excavation Permit, Tree Removal Permit, Minimum and Combined Side-yard Setback and Retaining Wall Height Variance for a 23-foot tall, three bedroom, three and one-half bathroom, 2,210 square-foot, single-family residence and a detached 400 square-foot, two-car garage with a 500 square-foot, accessory dwelling unit (ADU) for the property located at 79 Wood Lane ("Project"); and
WHEREAS, Resolution No. 2022-01 contained conditions of approval which included the following:

WHEREAS, in accordance with the plans. 469 square feet of basement was to be constructed beneath the structure with 8-foot ceilings, with the remainder of the area to be a crawl space of 30-inches; and
WHEREAS, on August 29, 2022 the Building Official issued a stop work order as the Project was not being constructed in accordance with the architectural plans of Laura Kehrlein, Frederic C. Divine Associates, dated 10/7/21, the record of survey dated 9/2018, the site plan dated 11/10/21 and the erosion control plan dated 11/10/21 by ILS Associates, Inc. Civil Engineering and Land surveyors, the geotechnical report by Herzog Geotechnical Consulting Engineers dated 2/26/18 and the drainage analysis by ILS Associates Inc. Civil Engineering and Land Surveying dated 11/15/21 ("Plans"); and WHEREAS, applicant modified the subfloor and work was permitted to continue by the 38072. 0000 l \41930023 .2
ATTACHMENT A2
Building Official in accordance with the Planning Commission Resolution 2022-01; and WHEREAS, on June 5, 2023, the Building Official was conducting a framing inspection and discovered the Project was not being constructed in accordance with the Planning Commission Resolution 2022-01; and
WHEREAS, the Building Official reached an agreement to allow applicant to continue working on the Accessory Dwelling Unit ("ADU") and Junior Accessory Dwelling Unit ("JADU") and the applicant agreed to submit an application to amend the approved Plans after which time the Planning Commission would hold a public hearing on the amendment of the entitlements; and
WHEREAS, to date the applicant has not submitted an application to amend the Project; and
WHEREAS, the Department of Planning and Building Services pursuant to Town Code Section 17.024.080, initiated revocation of Resolution 2022-01 (application 21-17) and land use entitlements related to the construction of the single-family residence and detached garage/accessory dwelling unit as a result of the Building Official determining the project was not being built as depicted in the approved building permit plans during an on-site inspection; and
WHEREAS, on January 11, 2024, the Planning Commission conducted a duly noticed public hearing to determine if the project at 79 Wood Lane is being constructed in compliance with the approved Project Plans, approved building permit plans, and the Planning Commission Resolution No. 2022-01; and
WHEREAS, after holding a public hearing on January 11, 2024, the Planning Commission determined that the construction occurring at 79 Wood Lane is not in compliance with the approved Project Plans and building permit plans and Planning Commission Resolution No. 2022-01; and
WHEREAS, the Planning Commission cannot determine whether or not the changes, which include, but may not be limited to, the size and locations of the residential structure and the garage, new exterior decks, stairs, and windows, a subgrade window well, inclusion of a second driveway and the removal of additional trees, that have been made to the Project comply with the applicable Town Code regulations without the submittal of a complete planning application including architectural plan revisions, addendums to the geotechnical and drainage engineering reports and plans, and a revised Tree Removal Permit; and
WHEREAS, in lieu of the revocation of the Resolution No. 2022-01 for failure to comply with the conditions of approval for the Project, the property owner or his legal representative, has expressed willingness to provide the Town with the required information and fees to allow the required review and processing of the plan modifications to occur including the required duly noticed public hearing on the 2 38072.00001 \41930023.2
modifications to the Hill Area Residential Development Permit, the Design Review Permit, the Excavation Permit, Required Variances and the Tree Removal Permit; NOW, THEREFORE BE IT RESOLVED, the Planning Commission of the Town of Fairfax hereby temporarily suspends Resolution No. 2022-01 (application 21-17) for the Project located at 79 Wood Lane and orders that no work may proceed on the Project until such time as the Planning Commission reconvenes the current revocation hearing and, at the same time, holds a duly noticed public hearing on application containing the revised plans. Said hearing shall be held on the date of the continued revocation hearing, May 16, 2024. The Planning Commission hereby requires the following:

1. Applicant must submit a complete application, including plans for the changes that have been made, or intended to be made to the Project including the payment of fees, revised architectural plans, addendums to the geotechnical and drainage reports and a revised drainage plan by no later than March 5, 2024; and

2. The Department of Planning and Building Services and the Fairfax Town Engineers shall provide comments to applicant regarding the completeness of the application within 30 days of receipt of the application.

The applicant is allowed to weatherize the property within fifteen (15 days) of the date of this resolution as follows:

1. Use straw wattles along contours.

2. Install erosion control blankets (or equivalent).

3. Cover all stockpiles and landscape material.

4. Cover all exposed soils with straw mulch.

Weatherization does not include alteration to the structures.

The foregoing resolution was adopted at a special meeting of the Planning Commission held in said Town, on the 11th day of January 2024, by the following vote:

AYES:

NOES:

ABSTAIN:

ABSENT:

Bela, Feffer, Newton, Chair Jansen
Kelly, Swift
None
None
Jeffr1 Yi Beiswenger, Director of Planning and Building Services 3 38072.00001 \41930023.2

ATTACHMENT D

Linda Neal
From:

Sent:

To:

Subject:

Thanks,
Mark Lockaby
Building Official
Town of Fairfax
142 Bolinas Road
Fairfax, CA 94930
415-458-2370
Mark Lockaby
Friday, December 15, 2023 9:41 AM
Linda Neal
FW: 79 Wood Lane
From: Coby Friedman <[email protected]>
Sent: Wednesday, June 7, 2023 9:40 PM
To: Mark Lockaby <[email protected]>
Subject: RE: 79 Wood Lane
Hi Mark,
My answers and comments are in red below.

Thanks,
Coby Friedman
CF Contracting, Inc.

Tel. 415-310-5442
Fax. 415-296-6437
From: Mark Lockaby <[email protected]>
Sent: Wednesday, June 7, 2023 9:21 AM
To: Coby Friedman <[email protected]>
Subject: FW: 79 Wood Lane
Coby,
During a requested framing inspection I noticed that there were several changes to your approved plans. You submitted new plans for the current design. The changes are either shown on the plans, or have been started as follows:

1. A portion of the basement is shown to be an accessory dwelling unit, with an addition to meet egress requirements for the bedroom. We believe this can proceed.

Thank you
1 ATTACHMENT E

2. A portion of the top floor has been prepared to be a junior accessory dwelling unit, including enclosing an upper deck, and the addition of an exterior stairway. We believe the JADU can proceed however the enclosure of the deck, and exterior stairway must go to the planning commission for approval. No work can proceed on the rear stairs or enclosed area until planning commission approvals are obtained. Additionally there will be a deed restriction required stating that the home is to be owner occupied (State Law).

The ~so SF rear deck has already been enclosed, the rough plumbing, electrical and HVAC work has been done. The only remaining work to do there is drywall and paint. Since you said that you believe the JADU can proceed and the remaining work (i.e. drywall, paint and the access stairs in the back) is all being done for the JADU, I'll proceed with that work.

3. A portion of the of the basement is shown as additional living space (office) for the main residence. You have agreed to remove this from the plans, or seek approval from the planning commission.

I agree to remove the "Office" and designate it as storage space.

4. A rear deck is shown at the rear of the structure at ground level. You have agreed to remove the deck from the plans, or seek approval from the planning commission.

I agree

5. The front low roof is shown as being eliminated, and a deck above a portion of the lower floor even with the top floor is shown. This must go to the planning commission for approval. No work can continue further with the deck until planning commission approval is obtained.

The roof deck has already been constructed and water proofed with epoxy coating. The only work remaining to do there is the railings which you've okayed me to install safety railing.

6. The new plans show a garage without out the ADU that was shown on the previously approved plans. The limit for the parcel is the main house, 1 ADU, and 1 JADU. In the future the garage cannot be converted to an ADU, or have an ADU added to it (unless state laws change).

I agree

7. You agreed to be cordial during any interactions with town staff, and the planning commission.

I'll try my best
At this point only foundation inspections, and under slab plumbing inspections have been completed. At some point very soon framing, plumbing, mechanical, and electrical inspections will need to be scheduled and passed before any work can continue.

Please update your new plans to reflect the agreed upon deletions, and work with the planning department for the changes that need planning commission approvals.

I let you know that if any work is continued in the areas that need planning commission approvals a "Stop Work" order will be issued.

I intend to submit plans showing the changes when the project is done and for the County Assessor's purposes only, so the property can be assessed for tax purposes. If you'd like to show the plans to the Planning Commission then be my guest. However, I don't agree that the Planning Commission should have anything to do with any work or changes relating to the ADU or JADU or with any other changes so long as the house complies with all the zoning standards.

Please let me know if you have any questions regarding this matter.

Regards,
Mark Lockaby
Building Official
Town of Fairfax
142 Bolinas Road
Fairfax, CA 94930
415-458-2370
2 January 22, 2024
Town Manager Abrams:

TOWN OF FAIRFAX
142 BOLINAS ROAD, FAIRFAX, CALIFORNIA 94930
(415) 4 5 3 - 1 5 8 4 / F A X ( 4 1 5 ) 453-1618
Pursuant to Fairfax Town Code Sections 17.036.090 - 17.036.140, Directed Referral, I am requesting the following matter from the Planning Commission's January 11, 2024 Special meeting be placed on the agenda and considered by the Town Council at the next available Council meeting.
79 Wood Lane; Application #21-17, Compliance with Approved Plans Thank you,
Barbara Coler
Printed on Recycled Paper

ATTACHMENT F
79 Wood Lane
Coby Friedman's Presentation.

Planning Commission Meeting.

January 11, 2004.

1. I have been constructing this Home since the Summer of 2022.

2. I've lived in Fairfax for the past 30+ years, since 1993.

3. I built my current home in Fairfax in 2004 -

4. I'm building this house as our new home to live in, to accommodate our present needs and circumstances which include accessibility (ADA) issues among other things. This is not a spec construction.

5. All the modifications I've made to the approved design are all within the Code and have been reviewed and drafted by my Engineer for structural and Code compliance. Any future modifications I may make before completion will also be reviewed by my Engineer.

6. It took me more than a year to get the permit, primarily because Linda Neal did everything in her power to stall and delay the approval. The record on that is clear and speaks for itself. E.g. i. Contrary to the requirement of the Planning Code that excavation and retaining walls should be kept to a minimum, Linda insisted that I lower my house down to the ground even though the house was below the height limit, which resulted in more excavation and higher retaining walls.
ii. During the approval process, Linda abused her discretion when she decided that my structural plans and soils report should be sent for a 3 rd party review, even though the
plans and reports were prepared by California licensed engineers. This slowed down the approval and cost me more money.
iii. Later after the 3
rd parties review which came back with no (zero) comments, Linda attempted to stop the permit from being issued because of minor interior changes to the orientation of the plumbing fixture in one of the upstairs bathrooms. Linda insisted that this minor change should go before the Planning Commission, only so she can delay me even more. She finally agreed to let it go when she received an email from Laura Kehrlein, my Architect questioning her logic and motives. iv. Linda also attempted to delay the issuance of the permit after Rick Ford, my neighbor to the left, went to see her to complain about my request that he removes a 12" encroachment onto my property. Linda finally relented when my previous attorney Linda Klein wrote to let her know that she has no legal basis to hold up the permit.

7. This meeting tonight, that was called by Linda to have you vote on either to suspend or revoke my permit is especially egregious, given that the building code allows me to submit modifications to the structure after they are complete. That's Building Code 107.4 states "any changes made during construction that are not in 570135.1

ATTACHMENT G
compliance with the approved construction documents shall be resubmitted for approval as an amended set of construction documents." No timeline for submission is prescribed in the Code.

8. For these reasons I have not submitted any changes to the planning commission until I'm done with all the changes. If I submit them piecemeal, I expect that Ms. Neal would take these modifications as more opportunities to delay me.

9. All of the changes I made are within the Code, and should be approved ministerially. I am entitled to this under new State laws related to ADUs and other modifications which are in compliance with all objective standards of the Planning Code which should require only ministerial review of home construction like mine.

10. I had an agreement with Mark Lockaby, which other than the timing of when to submit the revisions and for what purpose, I agreed to everything else Mark had proposed and In exchange, Mark agreed to allow me to continue construction. I've kept to the Agreement but the city is now trying to renege on that Agreement.

11. The Town has illegally withheld my green tag, even though all of the electrical work has been approved by Mark. Now the Town is moving forward with this proposed suspension or revocation because I am insisting on receiving my green tag. In fact, Mark told me that the Town wants to "hold the green tag hostage" to make sure I submit the modifications. Since this is not a valid legal basis to withhold the green tag, the Town, in an underhanded way decided to suspend or revoke the permit to stop my project instead of doing the right thing and issue the green tag.

12. All my neighbors would like to see the construction finished ASAP. Stopping me now, when the construction is within 1 month of completion makes no sense.

13. As I've mentioned before, I've been a Fairfax resident and tax payer since 1994, I don't think that a decision to suspend or revoke my permit and expose the Town to further losing litigations is a wise use of Town's resources. The Town should know how expensive legal fights can be.

14. In fact, I would like to know as a tax payer, how much did the Town spend on the legal defense against my lawsuit challenging the last stop work order, which the Town lost. Can anybody please tell us, the Fairfax Tax Payers, how much did this senseless legal battle cost us?

15. Do you think it is wise for the Town to throw more good money after bad to defend the indefensible? Next time will probably be even much more costly for the Town and no upside, nothing to gain. How is that prudent or responsible?

16. A few more words about me and where I come from: I'm a staunch proponent of our Civil Rights property rights and our right to free speech and self-expression as granted to us in the constitution. I'm not a fan of Government intrusion and chipping away at these rights. I love Fairfax and know a few people in this Town, I don't know anybody here, who does not agree with me on this. Unless I or any of us residents of this Town do something illegal or in violation of the Building or Planning Codes why should we allow a bureaucrat like Linda Neal who doesn't even live in this Town, deprive us of our rights?

17. Also, as a community, we all know and struggle with the housing crisis in Fairfax, I don't see how delaying a project that will provide 3 additional housing units {Main house, an ADU and a JADU) will help mitigate this crisis, on the contrary.
570135.1

18. Anyway, having said all that, I am willing to move forward and submit the modification and fees when I'm ready and am willing to cut the Town a check right here and now for the future review.

19. Unless you, the Planning Commission order me to tear down the entire structure now, I don't see the point or purpose in you stopping me now. The only thing that makes sense to me is that you want to make sure that I pay for the review of the modifications, which I'm willing to do now so to stop this madness and avoid a costly legal battle.

20. I promise to submit the changes when the house is done at the latest, so Linda does not stop me again if and when I make more changes down the road.

21. Finally: Linda gave you only 2 options to vote on in her Staff Report: 1. to suspend or 2. To revoke my permit.

She could have given you other more sensible choices e.g. 3. decline to take action or 4. Grant me an extension of time to submit the modifications.

22. However, and despite all my arguments, if you-decide to vote only on the two options that Linda gave you, instead of other options to extend the submittal, I request that you give me enough time to button down the house and weather proof it and the site before we stop the work, so to minimize any damage that may occur to the house and adjacent properties due to potentially adverse weather conditions.

Thank you very much.
570135.1
Linda Neal
From:

Sent:

To:

Renu Malhotra < [email protected] >
Thursday, January 11, 2024 12:05 PM
Linda Neal; Mark Lockaby
Subject: 79 Wood Lane App# 21-17
To Linda Neal and Fairfax Planning Commission
I live right next door at #85. I have written and spoken at all the Public meetings about this project. I have lived here since 2001 and plan to be here many years yet.

I always had 2 main concerns with this project which I would like to reiterate for the record and also add 2 more points regarding privacy stemming from the revised design:

1. That a basement located right next to my home could adversely affect sub soil water flow and cause more frequent and higher levels of standing water in the crawl space under my home in the winter months than I already experienced. No geotech reports addressed this concern and combined with the revised basement being multiple times bigger, this sub soil water drainage remains a potential future problem for me.

2. Stability of the fragile hillside. My concerns have been somewhat mitigated by the revised single car garage in the rear vs the 2 car garage with ADU. The structure does not extend as far into the hillside so I see that as an overall improvement.

3. The revised front upper deck is a huge space looking down into my front yard and the other neighbor's front yard. I would definitely support requiring that to be a roof over a single story per the original approved design.

4. I was not happy with the revised windows locations lining up with my preexisting windows. I have had to cover the glass into my bedroom and bathroom and will plant vines as an additional screen In addition I want to share my experience of the basement construction from a year ago. There was considerable vibration of my whole house as the excavation went on much closer to my house than anticipated, as visible in the attached photos. 3' from the property line vs 15'. Last winter we had heavy rains and my neighbor's open basement completely flooded both inside and around it, threatening to overflow into both neighbors.
1 ATTACHMENT H
I realize this hearing is about the issues that came after the basement but I wanted to share these images and experience for future design, town council and planning commission considerations. Many truckloads of soil were transported away.

Though I am not happy about the humungous basement I am pleased there will not be an ADU built right next to my preexisting ADU. Coby has built half the retaining wall for the back hillside and completed our adjoining retaining wall and our new fence will follow. We have cooperated as good neighbors on the design and construction of that.

I look forward to the construction being completed in the near future. I do work from home (as well as travel) and it is disruptive being next to such a project for so long. I also appreciate the efforts of Linda Neal and Mark Lockaby and their teams to uphold the approved designs of the Planning Commission and also allowing a process to modify permits for improved designs as appropriate.

Thank you
Renu Malhotra
85 Wood Ln
Fairfax CA 94930
7 3

6 5
Linda Neal
From:

Sent:

To:

Subject:

Hi Mark and Linda
Renu Malhotra < [email protected] >
Tuesday, January 10, 2023 2:05 PM
Mark Lockaby; Linda Neal
#79 Wood Lane
Has the town engineer been by to #79 Wood Lane this week? The entire excavation site at 79 Wood Lane is close to total submersion. The backfill was incomplete. I am concerned about the path of water from #79 once it fills up.

I have sent the following message to Coby today:
"Hello Coby
... From the video I shared yesterday, your water level has gone up about 8" already. LOTS MORE COMING AND

INCREASING HILLSIDE RUNOFF ADDING TO IT
Please review the current situation and what path the water will take if the entire excavated hole becomes submerged.

There is a big pile of base rock blocking water from going to the road." Photos attached are from today and Dec 27 for reference. One day there will be a sump pump but until then ...

Best
Renu
85 Wood Lane
510 5419808
1 3

Linda Neal
From:

Sent:

To:

Subject:

Hello,
JEAN STEWART <[email protected]>
Tuesday, January 9, 2024 6:49 PM
Linda Neal
Planning commission special meeting Jan 11
I live at 72 Wood Lane, across the street from 79 Wood Lane. Since last winter, it has been very concerning to see the amount of water that is pumped out of the basement construction at #79. We are worried that the ground water level of the area is being impacted. Is the town aware of the continual pumping of water from the property into the street at 79 Wood Lane during the rainy season? Is it required that the landowner make adjustments or mitigate the situation so that this will not keep happening when construction is complete? Thank you, Sylvia Stewart Stampe
1 ATTACHMENT I

Fairfax City CouncilFebruary 29, 2024

Fairfax City Council
February 29, 2024