A group of Fairfax residents upset about a zoning change to permit 124 new housing units in town said Tuesday they will ask a judge to rule on whether the signatures they gathered for a referendum were collected legally.
Last week, Fairfax Town Clerk Michele Gardner notified the group that she couldn't certify the petitions because they lacked a written declaration that the people who gathered the 1,015 signatures were 18 or older.

"I have a ministerial duty to reject a petition that doesn't meet the statutory requirements, and I have no discretion," Gardner said. "I can't decide which of the state laws to disregard. I've tried to explain that to people."

On Tuesday, former Fairfax councilman Niccolo Caldararo said that he and former councilman Frank Egger would file a peremptory writ of mandate no later than Wednesday morning.

"We made sure that all of our signature gatherers were registered voters," Caldararo said, "and you can't be a registered voter unless you're over 18, so it seems absurd."

Caldararo said all of the petition gatherers are now signing declarations that they were 18 or older when they collected the signatures.

"So we can present them to the judge," Caldararo said. "Then it will be up to the judge to decide whether the letter of the law has been accomplished."

If the referendum is certified, it will be up to the Fairfax Town Council whether to put the matter to a vote or rescind the ordinance. If it were put to a vote, the council could either place the referendum on the November ballot or hold a special election next year.

The controversial zoning ordinance was adopted March 5 on a 3-1-1 vote. Councilman Larry Bragman cast the dissenting vote, while Councilwoman Barbara Coler was prevented from voting due to a conflict of interest.

The ordinance implements zoning changes necessary to bring the town into compliance with state housing law. Every county and municipality in California is required to design its zoning laws so as to encourage the creation of a certain number of housing units every seven years.
The areas affected by the rezoning are:

• 53 units in the second stories of buildings throughout the downtown;
• a minimum of 20 units per acre on two acres at the Christ Lutheran Church property on the west end of town;
• 22 units at the site of the former Mandarin Garden restaurant at 10 Olema Road;
• 9 units at School Street Plaza.

Contact Richard Halstead via e-mail at rhalstead@marinij.com. Follow him at twitter.com/halsteadrichard