To all,
TOWN OF FAIRFAX
I APR =-6 :ozs j
RECEi\/ED
As I stated, along with others, at the Planning Commission meeting, we obviously need a different attorney for a rewrite of the chain store ordinance since the Town attorney's proposal is totally without logic. I have copied the letter I received below and can forward as an attachment the letter I received from an attorney who loves Fairfax. Please note that an actual estimate for services is included.
March 9, 2026
Via E-Mail
Mark Bell
Re: Proposed Amendment to Ch. 17.040 (Formula Businesses) Dear Mr. Bell:
I am writing in response to your inquiry as to whether my firm could provide analysis and opinion on the Town of Fairfax's interpretation of the case, Park at Cross Creek, LLC v. City of Malibu (2017) 12 Cal.App.5th 1196, and the proposed amendments to Chapter 17.040 of the Town Code relating to formula businesses as described in the February 19, 2026 staff report.
I can offer you my initial assessment and propose a deeper dive, and if desired by the Town, an alternative and less extreme revision to the Town Code.
By way of background, I am a licensed land use attorney, former City Attorney, and I currently represent housing developers, property owners, and public agencies. I am also a Fairfax-area native. I attended Manor elementary, Drake High, and College of Marin. I have attended Fairfax Festival for the past 40 years. I worked at Fairfax Theater and Broadway Video while in high school. I worked construction for the late Alan Honda, husband of legendary Manor teacher Laura Honda.
My friends and family still live in the area. My niece attends the Deer Park AfterSchool (FSACC). After living in Portland, Oregon, the East Bay, North Carolina, and now Napa with my wife and daughter, I still consider Fairfax my community, my hometown. I consider Fairfax a model community, except of course the lack of sufficient affordable housing for the creative and workingclass population, a problem with every Bay Area community.
With my knowledge of the law and this Town, I offer my initial critique of the Town's February 19, 2026 staff report and its analysis and inferences from the California Court of Appeals case in Park at Cross Creek, LLC v. City of Malibu (2017) 12 Cal.App.5th 1196.
The staff report over-relies on Malibu to eviscerate a long-standing Town Ordinance that has served as a cornerstone to Fairfax community and culture.
There are two apparent errors in the Town's interpretation of Malibu.
First, the staff report implies the existing Fairfax Conditional Use Permit (CUP) requirement is similar to that in the Malibu case and therefore entirely unlawful, yet without explanation as to how. In Malibu, the stated problem with the CUP provision was only the non-transferability of the CUP. This component does not exist in the Fairfax ordinance.
Second, the proposed amendments to the Formula Business Ordinance are unnecessarily broad in creating a ministerial approval process (i.e. "rubber stamp) for formula businesses. This is not required by Malibu and does not comport with the Town Code or general public agency practice in California. It would be unconventional for any town to ministerially approve novel and new uses with a high degree of impact on the community, landscape, and adjacent land uses.
Moreover, precedent in land use carries significant legal weight in the land use and local legislative policy context; for every one formula business or publiclytraded macro-chain store permitted, a defensible justification for more is created . Likewise, the Town will not be able to reduce the number of permitted formula businesses in town, considering corporations do not die, and leases are often 30 years or more. You cannot put the toothpaste back in the tube, as it were.
Permitting some formula businesses or regional chains is achievable without these proposed amendments. My firm and I are prepared to further assess to what extent Malibu obligates the Town to amend its Code, if at all, and, if desired, draft alternative amendments that comply with Malibu and the will of the Planning Commission and Town Council. You can contact me by telephone or e-mail with the information below. My rate is approximately $400/hour, and likely negotiable considering the personal relationship I have with the Town of Fairfax. I estimate five (5} hours to prepare these materials. Working in the Sacramento region enables my firm to offer rates lower than that of Marin and San Francisco.
Sincerely Yours,
Jeffrey J. Crosswhite
[email protected] 415-488-7654
2 1415 L Street, Suite 410 Sacramento, California
(916} 659-7500 [email protected] I
www.avdiscucchi.com
I 95814