The following comments and attachments have been sent to the Army Corps of Engineers in response to an application to fill the Edgewater pond at the Corte Madera Inn, by Reneson Hotels.
June 16, 2016
Sahrye Cohen - Permit Manager
US Army Corps of Engineers; San Francisco District Regulatory Division, 1455 Market Street, 16th Floor, San Francisco, CA 94103-1398
Re: Public Notice: Project: Corte Madera Rebuild; Public Notice Number: 2000-255330N
Dear Ms. Cohen:
Community Venture Partners, Inc. (“CVP”) is a 501(c)(3) nonprofit organization that facilitates and assists community based projects, programs and initiatives that demonstrate the highest principles of economic, social and environmental sustainability. We work to bring the community’s voice to local government decision-making in matters related to planning, development, social and environmental justice, and other matters of general public interest.
CVP has been involved in the public process and ongoing evaluation of the proposed Corte Madera Rebuild project for the past two years. We have submitted comments and retained experts in biology (Exhibit 6), wetlands, hydrology and real estate development (Exhibit 5), who have also submitted comments. Our legal counsel, Edward Yates has submitted comments related to CEQA, land use, zoning and planning (see Exhibits 1A, 1B and 1C).
In addition, as a resident of Marin, and as president of Community Venture Partners, Inc., I am an expert in real estate development and planning. I’ve been involved in local planning and development matters in Marin County for over 20 years, and submit my comments as a licensed architect and former real estate developer with significant expertise in the fields of architecture, planning, construction, and real estate finance. My professional CV is attached (Exhibit 2).
Comments on the Army Corps Public Notice
1 - Discussion of Project Purpose: Having reviewed Public Notice: Project: Corte Madera Rebuild; Public Notice Number: 2000-255330N and other information provided, both the “Basic Project Purpose” and the “Overall Project Purpose” do not appear to be entirely accurate. The notice states that “The basic project purpose is to build additional commercial hotel rooms in southern Marin County, CA.” Similarly, it states that “The overall project purpose is to build additional commercial hotel rooms in southern Marin County, CA.”
In deliberating the requirements of Section 404(b)(1), we ask that the Corps please consider the recommendations of the Region IX offices of the EPA, as noted in Wetlands Protection Through Impact Avoidance: A discussion of the 404(b)(1) Alternatives Analysis, Wetlands: Volume 9, No. 2l 1989, by Thomas G. Yocom, Robert A Leidy and Clyde A Morris. On page 290 of that publication, it states that
EPA Region IX consistently treats the basic project purpose as the generic function of the activity. From a regulatory perspective, for example, the basic purpose of a residential development is to house people or provide shelter.
Similarly, the basic purpose of a restaurant is to feed people.
It goes on to explain that basic project purposes should be generic and not refer to the specific goals of the developer or the specific kind of housing or restaurant or hotel proposed. In light of this, to state that the purpose is to build “additional” commercial hotel rooms seems to supported only by the applicant’s desires, since there is no evidence that adding rooms at this location is required, particularly when the consequence might be the loss of irreplaceable local wetlands. We therefore ask you to consider revising the project purpose to state it as being “to provide commercial hotel rooms in southern Marin County, CA.” This also aligns with the purposes of the project that have been used in the 2 year public EIR process in the Town of Corte Madera.
Comments on Project Alternatives
1 – Determining the LEDPA: We ask that the Corps carefully consider the least environmentally damaging practicable alternative (“LEDPA”) requirement in reviewing the application to fill the wetlands pond. It is our contention that the applicant’s preferred proposal is not the LEDPA.
As noted by John Schulz, The Steepest Hurdle in Obtaining A Clean Water Act Section 404 Permit: Complying with EPA’s 404(b)(1) Guidelines’ Least Environmentally Damaging Practicable Alternative Requirement,
An applicant for a 404 permit must demonstrate to the Corps that, among other things, the proposed project is the least environmentally damaging practicable alternative (“LEDPA”) to achieve the project's purpose.
The 404(b)(1) Guidelines establish four prerequisites to approval, one of which, the basis for the LEDPA requirement, requires that there are no practicable alternatives to the proposed discharge that would have a less adverse effect on the aquatic environment.
It is our understanding that under 40 C.F.R. Section 230.10(a), "if destruction of an area of water of the United States may be avoided, it should be avoided,” and that The Corps may only approve a project that is the LEDPA, and that the LEDPA must be both practicable and the least environmentally damaging. The LEDPA’s purpose is "avoiding significant impacts to the aquatic resources and not necessarily providing either the optimal project location or the highest and best property use."
Similarly, “Making money” or “increasing a tax base”… are further examples of inappropriate basic project purposes under the Guidelines. I only bring this to your attention because these have been the predominant arguments that the applicant has made to the Town of Corte Madera, to gain approval.
Finally, according to Yocom, et al,
There are instances where a “no-project” or “no-action” alternative may be considered a practicable means of achieving the basic project purpose.
2 – On-Site Alternatives:
It has been brought to our attention that the applicant has not presented the Army Corps with any on-site alternatives that fulfill the basic project purpose and also preserve the pond. This comment is to notify the Army Corps that in addition to the proposal submitted by the applicant, two such on-site alternatives exist, known as “Alternative 2” in the project Draft EIR (Exhibit 3A), and “Alternative 4” in the project Revised EIR (Exhibit 3B).
In addition, we submit that Section 404(b)(1) guidelines suggest and that the scope of the alternatives presently being considered are too narrow. Similarly, the applicant’s assertions that off-site mitigations are the only alternatives to be considered must be rejected. The Corps and EPA Region IX should not consider proposed mitigation for a project in determining the LEDPA. It is our understanding that the courts have upheld this EPA policy to conduct its alternatives analysis without considering mitigation measures.
In this regard, please note that as stated in 40 CFR. § 230.10(a)(3),
If the activity associated with a discharge is proposed for a “special aquatic site’ and does not require access or proximity to or siting within the special aquatic site in question to fulfill its basic purpose (i.e., is not "water dependent"), “practicable alternatives that do not involve special aquatic sites are presumed to be available, unless clearly demonstrated otherwise. (Emphasis added.)
It is our understanding that the alternatives analysis must be fair, balanced, and objective, "and not used to provide a rationalization for the applicant's preferred result (i.e., that no practicable alternatives exist).” And, that “The applicant bears the burden of demonstrating to the Corps that no less environmentally damaging practicable alternative is available and that the project complies with the 404(b)(1) Guidelines.”
Region IX EPA guidance on the issue of project alternatives is extensive. EPA guidance suggests that under the “practicability presumption,” the Corps will presume that practicable alternatives exist where the project is non-water dependent and will cause a discharge in a special aquatic site.” The presumption is intended to "increase the burden on an applicant for a non-water dependent activity to demonstrate that no practicable alternative exists to his proposed discharge in a [SAS]."
Further, the Corps has stated that the
Army Corps of Engineers is serious about protecting water of the United States, including wetlands, from unnecessary and avoidable loss... Further, the Corps should inform developers that special aquatic sites are not preferred sites for development and that non-water dependent activities will generally be discouraged in accordance with the Guidelines.
To rebut this [practicability] presumption and obtain approval for the proposed alternative, the applicant must show by clear and convincing evidence that there are no practicable alternatives which will not cause a discharge into a SAS.
Finally, it is our understanding that “any project that achieves the basic project purpose practicably should be considered.” Under this guidance, Alternative 2 and Alternative 4 must be considered as the LEDPA. And, where the project proposed by the applicant is not the LEDPA, “the availability of a LEDPA, where it is truly available, is an adequate basis for EPA's determination that unacceptable adverse environmental effects will result.”
3 – Discussion of Reasonable Alternatives: In light of the comments above, we would suggest that in addition to the applicant’s proposed redevelopment plans, a more appropriate range of alternatives would be as follows:
Alternative A: No Project: This is supported by the fact that the existing hotel is profitable and due to its extraordinary location and relative lack of competition, enjoys high occupancy and high room rental rates (Exhibit 5). This alternative preserves the pond and does not require any mitigation. There are no indications in the record that the existing hotel cannot continue to operate, making “no project” both a financially feasible and practicable alternative.
Alternative B: Renovate and update the existing 110 room hotel: In addition to being supported by the facts noted in “Alternative A,” above, it is reasonable to assume that an updating and modernizing of the present facilities, which would increase its desirability and room rental rates, must be considered as a financially feasible and practicable alternative. This alternative also preserves the pond and does not require any mitigation.
Alternative C (known as “Alternative 2” in the project Draft EIR, dated November 17, 2014): Rebuild the hotel and increase the number of rooms, without the loss of the pond. There is ample evidence that such an alternative would be financially feasible and highly profitable for the applicant to consider. This alternative, known as Alternative 2, in the project DEIR, which preserves the pond, is less impactful overall and also requires no mitigation. Note also that in the DEIR evaluation of this alternative (see Exhibit 3A), it states that the “Alternative with retention of the pond and FAR or .52 (147 room hotel) would be considered environmentally superior alternative,” and it lists avoidance of filling the pond, lessened impacts from tree removal, and a reduction in associated greenhouse gas emission, among the reasons.
Alternative D (known as “Alternative 4” in the project Revised EIR, dated July, 11, 2015): Rebuild the hotel and increase the number of rooms (187), without the loss of the pond - similar to Alternative C, but with an increased number of rooms and increase bulk, mass and height (See Exhibit 3B). Again, there ample evidence that such an alternative would be financially feasible and highly profitable for the applicant to consider. This alternative, known as Alternative 4, in the project REIR, which preserves the pond also requires no mitigation. However, in the REIR, Section 3.3 Environmentally Superior Alternative (Exhibit 3B), it identifies Alternative 2 as the “environmentally superior alternative” because its retention of the pond and FAR or .52 (147 room hotel), and lessened impacts from tree removal, and a reduction in associated greenhouse gas emission, among the reasons. That notwithstanding, for the purposes of the Corps’ decision regarding a permit to fill the pond, this alternative remains both feasible and practicable.
Alternative C (Alternative 2 in the project DEIR) and Alternative D (Alternative 4 in the project REIR), as well as other potential alternatives that preserve the wetlands pond (e.g., “no project” and “renovation of the existing hotel”), were presented in the original Draft EIR, dated November 17, 2014 and the Revised EIR, dated July 11, 2015, and incorporated into the Final EIR, dated November 23, 2105. However, since the inception of this project, the developer and the Town Planning Department have, without proper findings, dismissed these alternatives and abandoned any investigation into their feasibility. Thus, the destruction of the wetlands, which both the Town and the applicant have consistently misclassified as not being wetlands, became a goal of the project. All public objections to filling the pond were summarily ignored until conclusive evidence of the pond’s misclassification was presented in April of 2016, based on photographs taken at the site (Exhibit 4).
The applicant has also argued that one of the “project objectives” should include serving an under-served market segment described as a “limited service hotel design to target the mid to upper scale hotel market.” The applicant claims that the existing hotel is failing to serve this market because it is out dated. The applicant has also argued a Marriott Springhill Suites brand hotel serves this objective and therefore should be approved. However, none of this is part of the “basic project purpose” or the “overall project purpose,” and therefore should not be a consideration. In addition, as noted before, market demand is not an allowable criterion upon which the Corps should make its decision regarding a permit to fill wetlands. Finally, even if this were an allowable criterion, this particular market demand can be easily met by Alternative B, above; the renovation of the existing hotel, and there is no evidence found in the Market Survey & Financial Feasibility Evaluation (Exhibit 5), that would indicate that these types of accommodations could not be met by a new hotel or either 187 or 147 rooms, depending on their particular design. The peculiarities of Marriott’s corporate requirements are not relevant to the determination of what is financially feasible or practicable, or the LEDPA, because there are dozens of competing hotel types and brands that successfully address this market demand in many different ways, which could also retain the wetlands pond.
It is our understanding that the applicant's financial wherewithal is not to be considered as a factor in determining whether an alternative is practicable, and that development costs will be examined from the perspective of what are reasonable costs for the proposed project, not whether the applicant can afford the cost of the alternative.
The attached The Corte Madera Inn Redevelopment: Market Survey and Financial Feasibility Evaluation (Exhibit 5) analyzes this issue in depth and concludes that a review of existing market conditions substantiates the practicability and financial feasibility of the development of on-site alternatives that also preserve the wetlands pond. This report concludes that Alternatives “B” and “C” and “D,” noted above are all practicable and financially feasible, and readily available to both the applicant and any objective third party developer.
It is important to note that
“The preamble to the Guidelines also states that "[i]f an alleged alternative is unreasonably expensive to the applicant, the alternative is not, 'practicable.'" Guidelines Preamble, "Economic Factors", 45 Federal Register 85343 (December 24, 1980). Therefore, to the extent that the individual homeowners and small businesses may typically be relevant consideration in determining what constitutes a practicable alternative. It is important to emphasize, however, that it is not a particular applicant's financial standing that is the primary consideration for determining practicability, but rather characteristics of the project and what constitutes a reasonable expense for these projects that are most relevant to practicability determinations.” (Emphasis added).
“The burden of proof to demonstrate compliance with the Guidelines rests with the applicant; where insufficient information is provided to determine compliance, the Guidelines require that no permit be issued.” 40 CFR 230.12(a)(3)(iv). (Emphasis added).
The Status of the Property
Please note that presently, the applicant does not have zoning rights to redevelop the hotel in a way that increases its size. The proposed project will require a rezoning of the parcel and a General Plan Amendment in order to proceed. Therefore, without local zoning changes, the only financially feasible and practicable options available to the applicant at this time are “No project” (Alternative A, above) or “Renovation of the existing 110 room hotel” (Alternative B, above).
Relevant Project History
1 – The misclassification of the wetlands pond: It should be noted that the applicant and the Town were notified of the existence of submerged aquatic vegetation and their misclassification of the pond, long before photographic evidence (Exhibit 4) was brought to their attention by Xavier Fernandez of the San Francisco Regional Water Quality Control Board, in his email to the Corte Madera Planning Director, in April of 2016 (Exhibit 14), in which he states:
Dear Mr. Wolff:
We were sent the
following photographs of the pond at the Corte Madera Inn Rebuild Project Site.
The photographs were taken on April 13 when the water in the pond had been
drawn down. The photographs clearly show submerged aquatic vegetation growing
within the pond at the Corte Madera Inn Site. Based on this, the pond is a
special aquatic site that needs to be preserved to the maximum extent
practicable. As such, we plan to attend the Town Council meeting to inform the
Council that they may be approving a project that we will not be able to permit
under our regulations.
In his comment letter of February 15 2016 (Exhibit 6), biologist Peter Baye, Ph.D. provided a complete discussion and analysis of the proper classification of the pond, as a special aquatic site, based on evidence of the existence of submerged aquatic vegetation. In the face of this evidence, the Town’s two biologists, both having been chosen and paid for by the applicant, launched a scathing rebuttal, denying the existence of SAV. The Town also chose to ignore the evidence and pushed through approval at the Planning Commission level.
However, at the March 22, 2016 Corte Madera Planning Commission hearing to approve the applicant’s preferred alternative, Jim Martin, of Environmental Collaborative, one of the two biologists hired by the Town to evaluate the project, and the one who prepared the biological resource section of the EIR, commented on various issues regarding the pond, including the feasibility of an alternative that preserved and rejuvenated the pond, and ensured its viability.
At that hearing, under questioning, Mr. Martin admitted that he hadn’t really “looked” at what it would take to save the pond because “doing so would require further detailed analysis, to look at water quality, hydrology and habitat enhancement to make sure that the problems …of the pond [proper flushing] could be addressed.” He freely admitted that “it is something that is possible [Emphasis his] within the parameters discussed in Alternative 2” (the Alternative that saves the pond).
However, he said that he wasn’t asked to study how to do that, in spite of the fact that the EIR showed that both Alternative 2 and Alternative 4 met the project’s basic purpose.
In response to further questioning by the Commission’s chairman, Mr. Martin also offered, “I would agree this looks like this is a remnant of an historic slough that went through that area …that now has been largely isolated.” And that “The culvert that goes into the drainage ditch and then the boxed culvert, under the freeway, is no longer used by the city…. It’s been closed off [by the Town and the developer]... so what’s left is this largely silted 18 inch pipe that’s not functioning and no longer provides the flushing that’s needed there to maintain the water quality conditions.”
What he described confirms exactly what project critics have been claiming: That the pond is not “artificial,” and that the hotel owner and the Town have been consciously and purposefully neglecting the pond, and doing all they can to destroy its viability, so they could turn around and declare it a “cesspool” and a “smelly swamp” that is beyond redemption, in order to get rid of it.
Martin then advised the Commission that there are many other projects, some on larger scales, in the SF Bay Area, that have the same circulation problems, but that have been solved. He said, “It’s about improving circulation in that, you want to improve the water quality, you want to improve the ability to support emergent vegetation, and increase the habitat value. “
The Applicant Has Put the Property Up For Sale
The applicant has recently listed the subject property for sale with a local commercial real estate brokerage firm, Newmark, Cornish & Carey. They have not indicated an asking price. They describe the property as an “Extremely Rare Central Marin Redevelopment Opportunity” (sales brochure, attached as (Exhibit 7). A more complete evaluation of the value of the property and the financial feasibility of the project is found in The Corte Madera Inn Redevelopment: Market Survey and Financial Feasibility Evaluation, by RHSW, LLC (Exhibit 5).
Although it is not unusual for a land owner to list property for sale, just to find out what kind of offers might be submitted, it is certainly unusual for a land owner to intentionally discourage offers from the most likely buyers. CVP has recently learned that the applicant has instructed his brokers to not accept offers of any kind from hotel developers or hotel operators. In fact, such queries are not even acknowledged or sent information packages about the property.
Since the inception of this project, the applicant has taken an “all or nothing” approach to gain approvals from the Town of Corte Madera. Throughout that process the developer has stated that unless they receive approval for their preferred project (currently 174 rooms), they will not build anything at all and sell it to the highest bidder. They have threatened that this highest bidder will likely be a car dealership, retail stores, or an office complex. None of these uses are considered desirable by the Town. The town would prefer that a hotel remain the primary use of the site (see page 10 of this comment letter for more details).
It makes little sense then for the applicant to refuse offers from hotel operators and hotel developers, when those buyers would very likely be the most interested bidders, unless the applicant is trying to manufacture “evidence” to present to the Town and the Corps, to substantiate their claim that their own preferred project is the only alternative that is financially feasible in order to maintain a hotel use at that location. It is possible that they intend to use the claim that “no offers were received from other hotel operators or developers” as proof, to substantiate their desire to fill the pond.
Applicant’s Economic Feasibility Analysis
Starting on page 54 to page 57, of the applicant’s “Economic Feasibility,” in the January 8, 2016, Corte Madera Planning Department’s Staff Report to the Planning Commission (Exhibit 9), the applicant presents arguments for his proposal, which he justifies based on profitability, and on market demand for hotel rooms. However, these criteria (profits and market demands) are not relevant to the questions of financial feasibility or practicability. As a part of this discussion, he presents an “Opinion of Value of the subject property, prepared by his broker Cornish & Carey Commercial. This “opinion” is purported to show the “highest and best use” of the property and translate that into a market value.
The figures shown are as follows:
Retail - $26.5 million
Auto Dealership - $12 million
Commercial Office - $17.5 million
Housing - $11.1 million
Hotel - $9.7 million
In the applicant’s “Market Analysis - Exhibit A,” pages 67 to 82, of the January 8, 2016, Corte Madera Planning Department’s Staff Report to the Planning Commission (Exhibit 9), they provide a variety of scenarios for development that include retail, auto dealership, commercial office and housing. The applicant himself created the value for hotel use. It is assumed that the applicant submitted these documents to the Town of Corte Madera in an attempt to convince them that approving the project proposal that filled in the wetlands pond, was somehow in their best interests.
Disregarding for a moment that fact that none of this information has any direct bearing on the Corps’ determination of what is feasible or practicable; the applicant’s evaluation fails to disclose pertinent facts and circumstances that make the valuations noted in the applicant’s “Economic Feasibility” and “Market Analysis” (Exhibits 8 and 9), questionable.
A more realistic evaluation of these possibilities would be more conservative on the high end and significantly more aggressive on the low end, for the following reasons.
Development Moratorium in place: The applicant has failed to disclose to potential buyers that The Town of Corte Madera presently has a moratorium (which may be extended) on all development along Tamal Vista Boulevard, which is the property’s western boundary. If the applicant does not proceed with the project, and sells the property, that new owner will be subject to that moratorium and unable to apply for any type of development. It is highly unlikely then that any buyer would step forward and purchase this property until assurances of entitlements to redevelop it can be obtained. This has an immediate damper on any valuation estimate.
Auto Dealership: The Town of Corte Madera has made it clear that they wish to have a hotel on the subject property, whether by the applicant or another hotel operator / developer. They have also been clear that an auto dealership will not be reviewed favorably. In addition, an auto dealership, which requires auto servicing on site (use and disposal of oil, grease, solvents, etc.), and which is typically located in the rear of the dealership, will have a difficult challenge utilizing this site in such close proximity to the wetlands pond that is also located in the rear of the property. Therefore, the valuation prescribed to an auto dealership use appears spurious.
Retail: The Town of Corte Madera has made it clear that they wish to have a hotel on the subject property, whether by the applicant or another hotel operator / developer. They have also been clear that retail will not be reviewed favorably because it would compete with their commitment to support the vitality of both the Town Center and Village malls. In addition, the applicant’s valuation is based on the retail use being a “big box” retail operation. Approval of such a use is highly unlikely since it contradicts stated intentions and goals of the Corte Madera General Plan, regarding the town’s character. This big box retail valuation appears to be included only to create a false “high end” range of value, perhaps in an attempt to further intimidate the Town into agreeing to approve a larger hotel that requires the filling of the wetlands pond. Therefore, the valuation prescribed to the retail use also appears to be spurious.
Commercial Office: Commercial space has not been proposed or discussed as a use, though it remains a potential use of the property so long as the pond is preserved. However, considering that Marin currently has an oversupply of vacant commercial space, the valuation shown would seem too generous. Although it is true that newly developed commercial office space could offer large floor plates, which are not common in southern Marin, Census data indicates that larger employers have been leaving southern Marin, not relocating to southern Marin, due to the traffic congestion and extremely high housing costs. It remains unknowable whether a large commercial lessee in fact exists for such new space.
Housing: The sole reason the Town instituted the development moratorium was to stop the future development of more housing along Tamal Vista Boulevard. Therefore, the property has no presumable value as a housing site.
Valuation of the existing hotel / land: The valuation that the applicant has indicated for hotel use ($9.7 million) makes little sense because it essentially values the existing buildings and amenities and the business itself at zero value. The applicant is essentially showing the value to be only the value of the land and its infrastructure (utilities, etc.). This is not realistic. As a comparative example, a one acre parcel on Miller Avenue, in Mill Valley, one mile from Highway 101, and one mile from its downtown shopping (a far inferior location), zoned for hotel use, today, would be valued at approximately $2 million. Considering that the applicant’s property is 5.47 acres in size and located in arguably one of the best locations in all of southern Marin, it is unlikely that it would sell for less per acre that the Mill Valley property, even to a buyer who intended to tear down the existing hotel. This would indicate a potential value of the land alone at $10.94 million. However, this figure is still less than the figure shown on the applicant’s own “residual land value analysis,” (Exhibit 5, page 3), which shows a land purchase price of $16.87 million.
In any event, and as clearly demonstrated in The Corte Madera Inn Redevelopment: Market Survey and Financial Feasibility Evaluation (Exhibit 5). the discussion of these “land valuation amounts” are irrelevant to a reasonable analysis of the financial feasibility or practicability of alternatives to the applicant’s preferred project, which can allow for redevelopment of the property as a new hotel and also preserves the Edgewater pond.
The applicant’s valuation also fails to consider a likely scenario in which a new owner purchases the existing hotel with the intention of renovating it and continuing to operate it. Therefore, what the applicant has failed to demonstrate is the value of the land plus the ongoing business opportunity. This is particularly interesting in light of the applicant’s refusal to entertain purchase offers from hotel developers and operators, as noted above.
The value of any property is only equal to what a purchaser is willing to pay. To assess the value of the existing Best Western Corte Madera Inn hotel on a comparative basis one has to look for comparable sales. The 100 room Mill Valley Holiday Inn Express sold for $28 million in July 0f 2015. On that basis (price paid per door), the asking price / value of the existing Best Western Corte Madera Inn hotel, as is, would be approximately $30 million.
Marriott Corporation’s Comment letter
The applicant has argued that constructing anything less than their preferred option (and filling in the pond), is not financially feasible. They cite a letter from Marriott Corporation as evidence of that (Exhibit 10). However, the letter from Marriott Corporation does not offer an opinion of financial feasibility. The letter from Marriott Corporation simply states that if the smaller hotel is built, it would probably be a Residence Inn, instead of a dual-branded hotel with a Marriott Springhill Suites. Furthermore, for the purposes of the Corps’ decision on the LEDPA and issuing a permit, please note that Alternative 4 in the REIR, would allow the development of a dual branded hotel project.
However, the Marin Lodging Market Survey & Financial Feasibility Evaluation (Exhibit 5) demonstrates that there is nothing that would lead one to conclude that a stand-alone Marriott Residence Inn hotel operation would not be feasible and highly profitable to operate at this location in southern Marin. In addition, the applicant has not presented any credible evidence otherwise, as is required.
Financially feasible and practicable alternatives exist, which provide for the redevelopment of the existing Best Western Corte Madera Inn hotel and the preservation of the Edgewater pond. Therefore, with all of the information presented in this comment considered, we respectfully request that the Army Corps deny the applicant a permit to fill in the special aquatic site, known as Edgewater Pond, located in Corte Madera, CA, because it is not the LEDPA and practicable alternatives exist that qualify as the LEDPA.
Thank you for the opportunity to submit our comments.
President, Community Venture Partners, Inc.
To read Exhibit 5 - The Market Study & Financial Feasibility Analysis by RHSW LLC CLICK HERE
LIST OF EXHIBITS:
18 - Marin Post - Investigative piece on the Edgewater Pond at the Corte Madera Inn
Interactive Links to articles:
 The Steepest Hurdle in Obtaining A Clean Water Act Section 404 Permit: Complying with EPA’s 404(b)(1) Guidelines’ Least Environmentally Damaging Practicable Alternative Requirement, 2005, John Schulz, B.A. Brigham Young University; J.D. University of California, Davis.
 40 C.F.R. § 230.10(a) (2005).
 45 Fed. Reg. 85336, 85340 (Dec. 24, 1980); see also 45 Fed. Reg. 85336, 85340 (Dec. 24, 1980); U.S. Army Corps of Engineers, HQUSACE Review and Findings, Old Cutler Bay Permit 404(q) Elevation (1990) 4 [hereinafter Old Cutler], at 5; U.S. Army Corps of Engineers, U.S. Army Corps of Engineers, Plantation Landing Permit Elevation Decision (1989) 2 [hereinafter Plantation Landing]; Yocom et al, Protection Through Impact Avoidance: A discussion of the 404(b)(1) Alternatives Analysis, Wetlands: Volume 9, No. 2l 1989, by Thomas G. Yocom, Robert A Leidy and Clyde A Morris [hereinafter Wetlands].at 286.
 U.S. EPA and U.S. Army Corps of Engineers, Memorandum to the Field, Appropriate Level of Analysis Required for Evaluating Compliance with the Section 404(b)(1) Guidelines Alternatives Requirements (Aug. 23, 1993) 2, 3 [hereinafter Appropriate Level of Analysis], at 1; see also 40 C.F.R. §230.12(a)(3)(i) (2005).
 Yocom et al., supra note 3, at 283,295, and Appropriate Level of Analysis, supra note 4. The Corps has stated that the LEDPA determination "clearly is intended to discourage unnecessary filling or degradation of wetlands...." Plantation Landing supra note 3, at 2.
 Wetlands, supra note 3
 Wetlands, supra note3
 33 U.S.C. § 1344(a). The goal of the Section 404 regulatory program is to contribute to the national goal of no net loss of wetlands. U.S. EPA and U.S. Army Corps of Engineers, Memorandum of Agreement (MOA); Clean Water Act Section 404(b)(1) Guidelines; Correction (1990), 55 Fed. Reg. 9210, 9211 [hereinafter EPA/ Corps MOA (1990)]
 Alameda Water and Sanitation Dist., 930 F.Supp. at 492.
 U.S. Army Corps of Engineers, Permit Elevation, Hartz Mountain Development Corporation (1989) 2 [hereinafter Hartz Mountain].
 Old Cutler, supra note 3, at 5; Plantation Landing, supra note 3, at 7; Yocom, supra note 4, at 283.
 Wetlands, supra note 3
 40 C.F.R. § 230.10(a)(3) (2005); 45 Fed. Reg. 85339. This presumption is intended to avoid impacts to the extent practicable. EPA/Corps MOA (1990),
 40 C.F.R. § 230.1(d) (2005).
 Hartz Mountain, supra not 8, at 11.
 Plantation Landing, supra note 3, at 9, 12, 13-14; 45 Fed. Reg. 85336, 85339 (Dec. 24, 1980); see Department of the Army, South Pacific Division, Corps of Engineers Review of Sundance Plaza Project Permit Denial (Feb. 5, 2001), 1, 8.
 Wetlands, supra note 3, at 294
 See 56 Fed. Reg. 76-02 (Jan. 2, 1991) (stating that one of the reasons EPA denied the proposed Two Forks dam was because it would cause unacceptable loss and damage; the damage the dam would cause was unacceptable because the damage was avoidable. The damage was avoidable because the proposed project was not the LEDPA).
 See attached; The Corte Madera Inn Market Study & Financial Feasibility Evaluation, prepared by Maurice H. Bennett, manager of RHSW, LLC.
 See attached; The Corte Madera Inn Market Study & Financial Feasibility Evaluation, prepared by Maurice H. Bennett, manager of RHSW, LLC.
 Wetlands, supra note 6. 294-295, Yocom, supra note 4, at 5.
 See attached; The Corte Madera Inn Market Study & Financial Feasibility Evaluation, prepared by Maurice H. Bennett, manager of RHSW, LLC.
 Quote from Memorandum to the Field: Guidance on Flexibility of the 404(b)(1) Guidelines and Mitigation Banking (Aug. 23, 1993 – Dec. 31, 1998, Department of the Army and Environmental Protection Agency).
 For a complete recounting of the events surrounding the redevelopment of the Corte Madera Inn and the application for a permit from the Army Corps of Engineers, please see Exhibit 18.
 Audio recording of the March 22, 2016 Corte Madera Planning Commission hearing, which can be accessed on the Town’s web site at: http://www.ci.corte-madera.ca.us/531/Corte-Madera-...
 Yocom et al., supra note 3, at 283,295, and Appropriate Level of Analysis, supra note 4. Wetlands, supra note 3
 Yocom et al., supra note 3
 Valuation estimate by House Properties, owner of the subject site at 505 Miller Avenue, Mill Valley, CA
 40 CFR 230.12(a)(3)(iv).