No Fairfax Town Council Member or Planning Commissioner has publicly expressed an opinion about the Phil Lesh-backed Terrapin Crossroads project.
At and in a number of public statements, council members and commissioners have said that if they expressed an opinion before the item came in front of them on an agenda, then they would no longer be unbiased and would be forced to recuse themselves from voting on the project.
But, that’s not completely, exactly true.
“Legislators are perfectly free to express views and state how they will vote on an issue coming before them in a meeting or hearing. Indeed, elections are often decided on the basis of such things. That's called democracy,” said Peter Scheer, Executive Director of the First Amendment Coalition based in San Rafael. Scheer noted, though, that if the council or commission is functioning like judges in a hearing then “there is some risk that an aggressive and creative lawyer could challenge the action” because of bias.
It is that risk associated with a hearing that has made the council and Planning Commission nervous.
While much of the project – – will be determined by the Design Review Board and Planning Commission, if there is an appeal of the decisions then that appeal will come to the Town Council. At that time, the council must consider all the information presented to them in that hearing fairly and without bias.
If they fail to do so, said Town Manager Michael Rock, then there could be grounds for whoever was appealing or whichever side was unhappy to sue the town.
Still, as long as they keep an open mind, there is nothing stopping any of the public officials from expressing a viewpoint on the project, making comments, or asking questions.
“They can express opinions always,” said Fairfax Town Attorney Jim Karpiak. “But, they can not take a position that is final. They can’t act in such a way to show their minds are mind up.”
“It’s a subtle distinction,” Karpiak conceded.
Because of that subtle distinction, Karpiak said he had advised the council and commission to “be cautious” – leading to the silence so far from all the council members, planning commissioners and design review board members.
Even if they have the right to express an opinion, Karpiak also said, it doesn’t mean they have to. And many may choose to keep their own counsel for now.
“It would be political suicide for them to take a position on an issue that hasn’t yet come to them,” said Rock. “They can do that legally. Ethically and politically it’s not very wise.”
Read the full , which will be updated as we move forward, to get all your questions answered.
The Leshes are expected to make a decision on whether or not to move forward with the project, currently on hold, within the next week. Check back.
Should the town elected officials share their thoughts on the project or wait until it comes before them?