Fairfax has reversed course on whether a controversial housing project can be approved ministerially.
The project, known as School Street, calls for a six-story, 243-apartment building at 95 Broadway. The project also would include 5,750 square feet of commercial space at the 2-acre site.
Under ministerial review, projects must be approved unless they fail to meet very basic, objective, predetermined standards. The personal judgment of public officials plays no role, and no public hearings are involved. The process is often handled by staff and does not require environmental review under the California Environmental Quality Act.
In a letter in June, Jeffrey Beiswenger, the Fairfax planning director, told the developer the project is not eligible for ministerial approval. He said that is because it would be located in a high-fire-severity zone as determined by the state, and on a site where tenants would be displaced and housing would need to be demolished to accommodate the project.
That meant the project would be reviewed for approval during public hearings before the Fairfax Planning Commission.
In a letter to the developer on Monday, however, Beiswenger said the project will be reviewed ministerially after all. He said the state’s Department of Housing and Community Development played a role in the town’s reappraisal.
Beiswenger said the state housing agency informed the town that its interpretation of municipal code and its housing element failed to match with that of the town’s staff. He said the state is requiring the developer’s completed application to be reviewed under a ministerial approval process.
“The consequence of not following this process could result in state housing law enforcement against the town of Fairfax,” he wrote. “These enforcement actions could include fines, housing element de-certification and other penalties.”
Riley Hurd, the attorney for the developer, Mill Creek Residential, said: “While I’m glad the town is finally acknowledging its legal duty, it’s disappointing that it took cajoling from HCD and attorney letters to get them to simply follow the law.”
The town had additional incentives to grant ministerial review. On Aug. 19, Sonja Trauss, director of Yimby Law, sent a seven-page letter to Beiswenger outlining her organization’s opinion that the project qualifies for ministerial approval.
“Should the town fail to follow the law,” Trauss wrote, “Yimby Law will not hesitate to file suit to ensure that the law is enforced.”
Meanwhile, the town is facing a contrary legal action by Lew Tremaine, a former member of the Town Council. In June, Tremaine petitioned a judge to declare that ministerial approval regulations do not apply to the School Street project. He also asked the court for an order directing the town and Mill Creek Residential to comply with that finding.
Judge Sheila Shah Lichtblau declined the immediate request, but the case has not yet been resolved.
“This ain’t done,” Tremaine said on Wednesday. “We’re going to continue to press this.”
Mill Creek Residential contends that Tremaine lacks legal standing to file the suit.
Tremaine expressed disappointment about the town’s new position on ministerial review for the project.
“It’s kind of a flip-flop,” he said. “If you’re going to draw your gun, stand by it.”
Riley said he plans to ask the court to require Tremaine to post a large bond. He said new state laws allow such requests if the intent of litigation is judged to be solely aimed at blocking housing construction.
In May, Mill Creek Residential secured ministerial approval to build an eight-story, 210-apartment complex in downtown San Rafael.
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