Fairfax faces dueling appeals of apartment building approval

A plan to build a six-story, 243-apartment building in Fairfax continues to generate controversy even after its conditional approval.

The Town Council is now contending with conflicting appeals: one by project opponents challenging the approval, the other by the developer challenging the conditions.

The developer, Mill Creek Residential, has notified Fairfax that it doesn’t intend to comply with several of the 39 conditions the town mandated. It also rejects the town’s contention that any of the conditions are legally binding.

When the town announced its conditional approval of the School Street project, Mayor Lisel Blash wrote in an email, “Because this is a ministerial process, the project is being reviewed by staff according to a checklist of objective standards. The Council is not a part of that process.”

However, the town’s Nov. 21 letter to the developer notifying it of the conditional approval said it could appeal to the council.

The appeal by project opponents is led by former councilman Lew Tremaine. His appeal asserts the project is not entitled to streamlined ministerial approval and is not exempt from the California Environmental Quality Act. The appeal says the town “has the statutory responsibility to deny the project on the basis of public health and safety, CEQA and for non-compliance with the Town Code and General Plan.”

“They’re building in a high fire danger zone; they’re building in a flood zone,” Tremaine said. “Both of those disqualify the project from ministerial approval.”

Tremaine said he has received no response from the town. He filed the appeal on Dec. 2.

The appeal is the fourth Tremaine has filed on the issue. His previous appeals were rejected by the town clerk on the basis that no appealable action had yet been taken.

In June, Tremaine sued in Marin County Superior Court seeking a preliminary injunction to declare the project non-ministerial and the application incomplete. Attorneys for the town and the developer successfully argued that Tremaine’s suit was premature, stating he would be able to raise issues with the application at a later stage in the process.

The town planning office has vacillated in its reaction to the Mill Creek proposal. In June, the planning director, Jeffrey Beiswenger, told Mill Creek the project was ineligible for ministerial approval because it would be located in a high-fire-severity zone and would displace tenants. Then, in September, Beiswenger reversed course, informing Mill Creek that the project would be reviewed ministerially after all.

On Oct. 16, however, Beiswenger notified Mill Creek that its application had 25 deficiencies that placed it out of compliance. He wrote that a failure to address the deficiencies by Nov. 17 would result in the project being denied.

In an Oct. 20 letter, an attorney for the developer, Riley Hurd, informed the town that the project had already been approved by operation of law because the town failed to approve or disapprove the project in the time allotted to it by the state. Riley wrote that the deadline was Oct. 17.

Regarding Tremaine’s latest appeal, Hurd wrote in an email, “Ministerial housing approvals in Fairfax cannot be appealed, this should be rejected at the door. Tremaine’s appeal just regurgitates the baseless claims that the court has already rejected every step of the way.”

A Nov. 25 letter to Beiswenger written by Daniel Golub, another attorney representing the developer, makes it clear that Mill Creek disputes the idea that the town can impose any conditions on the project at this point.

Golub added, however, that “in an act of good faith and ongoing cooperation with the town,” Mill Creek is willing to accept the overwhelming majority of the proposed conditions as long as the conditions “are applied in an objective manner consistent with the law and in a way that will facilitate the project and does not reduce its density.”

But the developer did reject three of the conditions.

It refuses to agree to the town’s requirement that it “defend, indemnify, and hold harmless” the town and its officers and representatives from all claims and lawsuits brought to challenge any town decision made in connection with the approval with conditions.

It also rejects a condition requiring it to “ensure full cost recovery” for all review expenses incurred by the town during entitlement processing.

Golub also wrote that Mill Creek will not abide by a requirement that no heritage tree will be damaged or removed from the project site unless it is dead or diseased.

The suit that Tremaine filed in Marin County Superior Court in June is still pending, with a hearing scheduled for Jan. 14.

“It’s sort of in the Hail Mary phase at this point,” he said regarding his efforts to block the project. But he said at the very least he hopes his efforts will get the project reviewed by the Planning Commission.

“They just need to go through a public hearing process,” he said.