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Rook vs Knight Endgame? The Corte Madera Inn developer puts property up for sale - Part IV
The Empire Strikes Back -
When asked about the “new” information and the mischaracterization of the pond by the Marin IJ, Peter Baye said he could not imagine how any trained biologist could have missed the information, on record, to properly categorize the pond as a special aquatic site. The required characteristics are clearly cited in the Wetlands and Water Resources Report of 2005. Baye summarized his feelings by saying “I don’t know if it was an omission or amnesia. If it was available to me, it should have been available to the consultants and the city.”
He was being charitable. Frankly, it is inconceivable that two highly trained and experienced biology consultants, such as Jim Martin and John Zentner,[1] the developer’s main biologist, would not have known the same information that Peter Baye knew.
The developer’s biology consultants did not take this lying down. The Staff Report to the Corte Madera Planning Commission for the March 22, 2016 hearing, contained letters from both Jim Martin and John Zentner.
On page 21 (Staff Report) Jim Martin states
I revisted the pond on Feb 22, 2016. As was described in the wetlands delineation by the applicant’s consulting biologist (John Zentner) and consistent with my previous observations, the majority of the pond bottom is completely un-vegetated.
He includes photographs taken from various places on the shore. They show a pond filled with water. How he was able to determine what was or was not underwater standing on the shore, is remarkable. Why not put on hip waders and have a real look? That would make sense unless you really weren’t looking to find anything in the first place.
In his letter, Jim Martin goes on to say Baye is “incorrect,” and that Baye is wrong “because the site does not contain SAV beds.” He spends pages on citations and endless jargon about why Baye was just dead wrong.
Well, we now know who was right. What does that say about Jim Martin’s professional abilities?
But as if Jim Martin’s rebuttal was not enough, the developer also had his primary consultant, John Zentner, respond to the same list of arguments presented by Martin. But whereas Martin stuck more to the straight and narrow of professional opinion, Zentner launched a more personal attack on Baye, impugning his integrity as a professional.
In his letter of March 14, 2016 to Adam Wolff, Corte Madera Planning Director, Zentner dismissed Baye out of hand, alleged that Baye probably didn’t even visit the pond. Then he sarcastically characterized Baye’s “scientific approach” as being mere “camouflage for a misleading and inaccurate series of comments.”
In his comment letter, Zentner postures himself as the ultimate authority on wetlands and environmental analysis, even offering photographs of what widgeongrass looks like in a pond, on the Petaluma River (which, ironically looks exactly like the photos sent to Adam Wolff by Xavier Fernandez, one month later). Zentner was adamant in defending his report and emphatically claimed the pond is a “man-made/altered pond,” contradicting Jim Martin’s testimony eight days later that it was a “remnant of” ancient marsh.
Zentner’s general tone was that Baye’s opinions were biases and somehow corrupted by his passions to save wetlands, whereas his own review was grounded in facts, uncontroversial, and squeaky clean.
But it’s questionable that John Zentner can lay claim to such moral high ground.
According to the U.S. Department of Justice, in 2000, John Zentner pled guilty to criminal charges under the Endangered Species Act, for illegally taking threatened California red-legged frogs at a new housing project in Concord, California, for which he was a paid consultant.
The DOJ reported that
Zentner was hired as an environmental consultant to help obtain project-related permits and perform ecological monitoring services on a new six -acre residential development known as the Holly Creek Estates. The company also was hired to ensure compliance with federal and state rules for preserving wetlands and protecting animal species.
On July 27 and July 28, 1999, at John Zentner's direction, more than 50 California red-legged frogs and more than 500 tadpoles were collected by Zentner & Zentner employees and relocated from one portion of the pond that was to be filled in to another portion that was to be preserved.
Zentner denied any wrongdoing.
Zentner was convicted in 2001. According to The Berkeley Daily Planet, Jeff Miller of the Center for Biological Diversity said tht “his group believes the conviction calls into question Zentner's work on other East Bay developments, including the Greenbriar Homes development along Tassajara Creek in Dublin and the Pine Vista Estates subdivision in Alamo.”
Does mitigation really work?
Compensatory mitigation measures such as the ability to purchase mitigation credits is a concept that was developed nationally and regionally to help save precious habitat. The idea is that if a development is going to cause the loss of special habitat (wetlands, forests, etc.), the developer is required to purchase similar habitat somewhere else so that there is no “net loss.” This idea makes great sense from a global, 30,000 foot high point of view.
But what does all this really matter to the people and the wildlife in Corte Madera?
At the local level, the truth is that "off-site mitigation” really only benefits developers. If wetlands are lost, do the people and wildlife of Corte Madera really benefit from that fact that a developer paid money to purchase some land rights 50 miles away? When more land is paved over, will Corte Madera’s quality of life be improved by mitigation at a distance? Will the local birds and other species of Corte Madera really “benefit?” Or will Corte Madera just lose more wildlife and become more urban?
For the developer, this all just means having to pay some more money to satisfy the requirements. For them, it’s just about money, not about the community.
So what now?
Does the fact that the property is now for sale mean that the project is dead? I doubt it. Otherwise, why would the developer still be pursuing an approval from the Army Corps of Engineers to fill the pond.
Their application is now posted on the Corps website, which is seeking public comment. This is their public Notice:
A U.S. Army Corps of Engineers Regulatory Program Public Notice for File No. 2000-255330N, Corte Madera Inn Rebuild is now available on our website:
The comment deadline is June 16. According to the Corps web site: "Reneson Hotels, Inc., through its agent, Zentner and Zentner, has applied to the U.S. Army Corps of Engineers, San Francisco District, for a Department of the Army Permit to discharge fill material into jurisdictional waters of the United States associated with the construction of a 131,000 sq. ft. hotel located at 56 Madera Boulevard, in the Town of Corte Madera, Marin County, California."
We would strongly encourage anyone who has an opinion about the fate of Edgewater Lagoon to go to the Corps website and submit comments to them before the June 16, 2016 deadline.
What is clear is that the Corte Madera Planning Department does not want this project to go back to the Planning Commission. They will look for any possible way to avoid that and move forward. The last thing they need now is more public scrutiny. But the Town also cannot risk getting on the bad side of the Army Corps or the Regional Water Board. They have to deal with these agencies often. So they are caught in somewhat of a quandary because they’ve been such ardent supporters of the developer’s plan.
This would suggest that the Town will either sit and wait, or try to seek a compromise to appease the developer, and perhaps claim that the Town has to move forward toward approval because they could be sued by the developer. This would be nonsense because the developer currently has no zoning rights to build the 174 hotel, so they can’t sue for rights they don’t have.
On the developer’s side, it probably means the developer may now do everything in their power to lobby politically, and play the Army Corps and the Regional Water Board against each other, and try to exploit every legal loophole possible in their attempt to get a permit to fill the pond.
What about the federal and state agencies?
The Corps and the Regional Water Board have the power to deny the developer a permit to fill the pond even if the developer offers to purchase more mitigation land rights. And those who want the pond to be saved very much hope and pray they will do that.
Unfortunately, the Corps and the Board also have the power to allow the pond to be destroyed, thought it would probably have to require more land set aside as mitigation, at a ratio greater than the present ratio of two to one. But as noted above, for the developer that’s just money. It won’t save the pond.
We can only hope that these agencies will stand firm and not grant a permit to fill the pond.
A “remarkable redevelopment opportunity”
Listing the property for sale is an interesting move by the developer. In some ways, it makes sense. It addresses two challenges the developer is facing: Town approvals and government agency approvals. But it could backfire.
On one hand, listing the property may be a veiled threat issued to the Town of Corte Madera.
The developer has been threatening all along that if they don’t get their way, they will sell the land to the highest bidder. And since its zoned commercial, the Town would be hard pressed to stop a more undesirable use, such as a car dealership, from buying it and submitting an application to develop it, with or without saving the pond.
So there is a chance this type of threat might sway the Town to speed up its approval of the preferred project, or even to join the developer in appealing to state and regional agencies to find a way to approve a permit to fill the pond. If so, then it’s a shrewd move on the part of the developer. With that permit in hand, it will be much harder for the Town to stop the proposed development.
If those agencies don’t approve a permit to fill in the pond, the developer is no worse off than they are now. They can always sell it as is. And even if they really do want to sell it at this point, if the Army Corps does approve a permit to fill in the pond, it will only enhance the property value even more, giving them the option of either developing it as planned or selling for an even higher price[2].
Lastly, what has the developer got to lose by listing it? They’re not obligated to sell it unless they get an offer that suits them. And if someone comes along and makes them an offer they can’t refuse, they can just cash out and wash their hands of it.
It appears this is and has always been about maximizing profits.
Questions remain
We will probably never know what really happened during this project’s application history. What we do know suggests that information that was readily at hand was either dismissed out of ignorance or intentionally buried to bring about a predetermined outcome.
The Regional Water Board is the agency that sent Adam Wolff the heads up email about the mis-classification of the pond. Approval by the Regional Water Board is essential to getting a permit to fill the pond. However, the Army Corps must also approve the permit. So each agency will have to review the project, based on federal and state standards, before a permit can be issued.
But the developer has filed an application for a permit with the Corps, first, even though it was the Regional Water Board that blew the whistle on the Town. So if the Corps decides they want to approve a permit to pave over the pond, will the Regional Board agree, if mitigation offsets are increased? Will either the Corps or the Regional Board bow to political influence if it’s applied by the Town or the developer’s political contacts?
I guess we’ll have to wait and see.
Either way, at the end of the day, the Corte Madera Town Council is the one who will make the final decisions. And please keep in mind that, technically, they have not even seen this project yet. Their hearings on the approval or disapproval of the project, as proposed, or its alternatives, will be a “de novo” hearing, literally meaning that it “starts from the beginning.”
The Town Council has the power to do the right thing. And they have options.
For example, the Council could decide that the proposed sale of the property is justification for placing this property within the scope of the development moratorium that is already in effect along the rest of Tamal Vista Boulevard. This would preclude any redevelopment for the time being.
The Council might also move forward immediately to craft a new hotel zoning ordinance that would affect all hotel properties in the Town, and zone the Corte Madera Inn property as only for hotel use. This would protect the public’s interest and remove the threat of more undesirable future development by a different owner.
The Town Council has the power to decide what is best for the long term interests of the Town, and its residents, and its wildlife.
The question is will they seize the opportunity to do that.
It is what it is?
Why do we always have to accept that “progress” ends up equating to loss; loss of our natural environment, loss of our quality of life, loss of places of solitude?
In all of this, the developer has never looked at the value of the pond and its potential as an asset, as something that adds value to the property, instead of something that just takes up space and could be used to park more cars.
There’s something very wrong with how too many of us just accept the demise of natural places without even giving it a second thought.
I think we all understand the developer’s motivations. It’s just how our system works. It’s human nature to always try to maximize our situation to our own advantage – to get the best possible deal we can for ourselves. And the developer’s argument that maximizing tax revenues is also a public benefit employs the same logic. But if we continue to narrowly define public benefits only as economic benefits, we will eventually grind our world into dust.
Okay, so now some of you are rolling your eyes and maybe even laughing, saying I’m being overly dramatic and hopelessly naïve. How in the world, you say, could the loss of a .64 acre pond, a few birds and some trees possibly “grind our world into dust?” But, unfortunately, that’s exactly how it happens.
One acre at a time. One species at a time. One community at a time.
Until one day while you’re stuck in yet another traffic jam, gazing out at the concrete, paved over world around you, you start to wonder, “What happened to Marin?”
By Bob Silvestri
Editor of The Marin Post
[1] According to his web site John Zentner has over 30 years of experience in wetland science, storm water treatment, permit processing and restoration. He specializes in federal and state policies and regulations, wetland boundary determinations, and mitigation programs. John has been a principal project manager for numerous environmental assessments, C3 stormwater plans, habitat boundary and mitigation plans, Section 404 (Clean Water Act) permit approvals and has worked as an expert witness.
[2] Any rights granted will transfer to the buyer of the property.