Fairfax has notified the prospective developer of 243-unit apartment building that their application is incomplete and is not entitled to ministerial review.

Mill Creek Residential of San Francisco is proposing to build the six-story School Street Plaza project on the1.92 acre site in downtown Fairfax. The project at 95 Broadway also would include 5,750 square feet of commercial space.

Jeffery Beiswenger, Fairfax’s planning director, sent a letter to the developer on June 4, notifying them that an application submitted on May 8 was incomplete. The letter included a long list of additional required items.

The next day, Beiswenger followed up with a second letter to the developer stating, “it is evident that the above-referenced application is not eligible for ministerial approval,” as submitted.

No public hearings are held on projects that are reviewed ministerially. Such projects are not required to conform with the California Environmental Quality Act. They may only be required to conform with strictly objective design standards, and very basic health and safety requirements.

The developer’s attorney, Riley Hurd, however, disputes the town’s findings in the second letter.

“This project is absolutely, unequivocally, required to be approved ministerially,” Hurd wrote in an email. “This is not up for interpretation. It’s black and white.”

“If the town stands by its totally unfounded position, it is inviting costly litigation and subjecting itself to severe penalties from the California Department of Housing and Community Development, including decertification of its housing element, significant financial penalties, and further loss of local control,” Hurd said.

The town sent the letters to the developers days before a deadline set for Monday. If the town had failed to act, the project would have automatically been deemed complete and entitled to ministerial review.

Worried that might happen, former town council member Lew Tremaine filed an appeal with the town, calling for the planning director to notify the developer that the project was ineligible for streamlined processing and to detail the reasons why its application was deficient.The appeal was deemed premature by town staff.

Tremaine then followed up by filing a lawsuit on Wednesday. The legal action called on Marin Superior Court Judge Sheila Lichtblau to order most of the same actions as requested in the appeal.

“I am very pleased with this outcome,” Tremaine said in a statement. “I have believed from the beginning that this project does not qualify for ministerial review, and the town of Fairfax has confirmed this.”

Nevertheless, an attorney representing Tremaine, Ariel Strauss, was in Marin Superior Court on Monday morning continuing to call for an injunction to require the town to add more items to the list of deficiencies that it sent to the developer on Wednesday.

“My client’s concern is that that list excludes certain items,” Strauss said. “For instance, the requirement for a variance for a violation of the flood construction standards.”

Lichtblau said she failed to see the urgency justifying the issuance of an injunction. She said based on statements by Hurd it would take the developer a number of months to comply with the items already on the list of deficiencies.

Strauss said that his concern was that Senate Bill 330 gives jurisdictions just 30 calendar days to determine whether an application is complete and to supply applicants with an “exhaustive” list of incomplete items. Under the law, the jurisdictions are prohibited from subsequently requiring information that was not included on that list in later reviews of the application.

“The 9th is the date after which the town cannot request new information beyond the scope of what was initially asked,” Strauss said.

Both Hurd and Scott Ditfurth, an attorney representing Fairfax, assured Lichtblau that the exclusion of an item from the list would not prevent it from later consideration.

Ditfurth said, “This is just one step. Nobody’s prohibited from raising any claims that they want to raise after this is deemed complete.”

Hurd said that under a relatively new section of the government code dealing with multifamily projects over 150 units, once an application is deemed complete, jurisdictions are required to notify the applicant if there continue to be problems with the application.

Lichtblau denied the request for an immediate injunction, but the lawsuit remains unresolved.

“It’s to some extent a placeholder right now,” Strauss said. “It will be amended as the project changes.”