Fairfax receives appeal against 243-apartment project
A former Fairfax council member has filed an appeal against a proposed six-story, 243-apartment building at School Street Plaza.
“While the town webpage for the project states that the application ‘is currently under review,’ I am concerned that formal action may have been taken by the (planning) Director to confirm that the application is complete,” Lew Tremaine wrote in the appeal, which he filed Tuesday.
Tremaine indicated he was concerned because once the project is deemed complete, there is just a 10-day window for lodging an appeal.
His filing might have been premature.
“We are reviewing the application for completeness,” Fairfax Town Manager Heather Abrams said Friday. “No action or no appealable action has been taken by the town. Mr. Tremaine was notified of such on the same day of his submission.”
Tremaine said, “The problem there is that if the town doesn’t do anything by June 9, the exemptions automatically go into place. So we’re talking now about filing an injunction to make sure that those exemptions don’t go into place. We’re going to make sure that they understand that this isn’t a done deal.”
In his appeal, he wrote, “This project is not eligible for streamlined ministerial review and must comply with the design review requirements and be approved only after appropriate public hearings before the planning commission and applicable California Environmental Quality Act analysis and findings.”
Riley Hurd, the attorney representing the developer, Mill Creek Residential of San Francisco, disagrees. In a March 13 letter to the town, Hurd asserted that the project is required to be reviewed ministerially.
“This means that there are no public hearings, there is no environmental review pursuant to the California Environmental Quality Act, and so long as the project conforms to the town’s objective standards, the project must be approved,” Hurd wrote.
In his appeal, Tremaine makes several arguments for why the project fails to qualify for ministerial review.
For example, Tremaine says the application does not establish eligibility under the Middle Class Housing Act of 2022, which established housing as an allowable use on any parcel zoned for office or retail uses. He also said the project does not comply with Senate Bill 35, which created a ministerial approval process for infill developments in localities that have failed to meet their state housing mandates.
In an email, Hurd said the project “in no way seeks to utilize SB 35 or the Middle Class Housing Act of 2022, so it’s unclear why the appellant references these laws other than significant confusion.”
“It would appear that the appellant is unaware that the Town’s Workforce Housing Overlay (WHO) zoning creates an independent basis for ministerial review and that the town has a policy explaining that process,” he said.
In his letter in March, Hurd wrote that the town applied the WHO to School Street, and the state housing department required that the town adopt an explicit policy stating that housing projects in the WHO be approved ministerially.
Tremaine’s appeal also contends that the application lacks necessary density calculation information and incorrectly calculates the number of additional apartments allowed under density bonus law.
The proposal calls for a building with 202 market-rate apartments and 41 for low-income households on a 1.96-acre site at 95 Broadway. The housing would include studio apartments and apartments with one, two or three bedrooms.
The proposal includes two levels of parking with 322 spaces and four stories of apartments. The housing would comprise 257,039 square feet. The project also would include 5,750 square feet of commercial space on the ground floor. It would have offices, a fitness center and a lobby.
“We are confident in our density calculations and are most certain that this project is required to be approved ministerially,” Hurd said.