Fairfax apartment building plan clears two more hurdles

Two remaining hitches have been cleared in a plan to develop a six-story, 243-apartment building in Fairfax.

At the beginning of the month, the town was contending with conflicting appeals: one from residents challenging the project approval, the other from the developer challenging conditions attached to the approval.

Now town officials have rejected the appeal by the opponents, and the developer has withdrawn its appeal.

Mayor Stephanie Hellman announced the withdrawal as an aside at the Town Council meeting on Jan. 12. Following a public comment on the town’s legal expenses, Hellman said she wanted to clarify the status of the housing project at 95 Broadway and School Street.

“There were a couple of letters exchanged, and my understanding is the clarifications requested on the conditions have been met and that the applicant has pulled their appeal,” Hellman said.

Town Attorney Janet Coleson confirmed it, and there was no further discussion.

“I was shocked,” said Councilman Frank Egger, a project opponent who has been critical of Hellman’s performance on development. “I’m at a council meeting with not many items, and just a casual announcement like that is made.”

Egger said that when Hellman and Councilmember Lisel Blash faced a recall attempt last year, they issued a statement supporting a decision by the planning director about the project. The planning director, Jeff Beiswenger, said the project had 25 deficiencies that placed it out of compliance with objective design standards in the town code.

“Fairfax has values — and we intend to uphold them,” Hellman wrote at the time.

Egger said, “And as soon as the recalls were defeated, they announced the project was approved.”

In a post-election letter to the developer, Beiswenger said the project was approved subject to certain conditions. Beiswenger ended the letter by telling the developer, Mill Creek Residential, how to go about appealing the conditions to the Town Council.

On Dec. 1, the company did just that, saying the conditions were illegally imposed. It said the project was actually approved on Oct. 17 by operation of law because the town had failed to approve or disapprove it in the time allotted by the state.

“The town cannot impose subsequent conditions on the project after it was already deemed approved as a matter of law,” an attorney for the company wrote.

The attorney added, however, that “in an act of good faith and ongoing cooperation with the town,” Mill Creek Residential was willing to accept most of the proposed conditions as long as they were “applied in an objective manner consistent with the law and in a way that will facilitate the project and does not reduce its density.”

Nevertheless, the developer refused three of the conditions. It would not agree to indemnify town officials and representatives from certain legal actions related to the project. It would not “ensure full cost recovery” for all review expenses incurred by the town during entitlement processing. It also objected to a requirement that no heritage tree would be damaged or removed from the project site unless it was dead or diseased.

In a Jan. 7 letter to the town, the developer indicated that the three sticking points had been resolved. It agreed to “defend the decision of the Town of Fairfax, its officials, officers, employees, agents, and representatives to approve the project against any actions or proceedings brought against the town by opponents of the project,” and to provide up to $70,000 to pay for outside counsel for the town.

Mill Creek also agreed to pay $30,000 to cover staff expenses, and said it would not damage or remove any heritage trees unless a town-approved arborist determined they are dead, diseased or dying.

“The next step in the construction process is to submit for the required development permits,” Beiswenger wrote in a letter to the development team. “A demolition and/or grading permit may be submitted separately to demolish the existing structures, subject to compliance with project conditions of approval.”

As for the appeal filed by the project opponents, Deputy Town Clerk Christine Foster rejected the filing after consulting with the town attorney. In a letter on Jan. 9, Foster informed Lew Tremaine, who had filed the appeal, that officials interpret the town code and housing element to provide for a ministerial process for applications such as this.

“As such,” Foster wrote, “there is no administrative appeal of the approval with conditions issued on Nov. 22, 2025 as that would be inconsistent with the ministerial review process.”

Tremaine said, “The approval from the town, which was wrong in the first place, sort of derailed things, but we still have court hearings so we’re not done yet.”

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

Tremaine, a former councilman, said the project should have been disqualified from ministerial approval because it will be built in an area with high fire danger and flood risk. A status conference for the suit has been scheduled for March.