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Marin 2016 - Part IV: Dispatches from the front – Corte Madera

As discussed in Part III, most of us would like to think there’s an unwritten agreement that we pay taxes and government does its best to “mind the store.” First and foremost, we also expect them to understand all the rules and regulations required to do that. And beneath all that there is the basic assumption that they actually know how things work. In fact, we rely on them not just to know the rules but to be experts in them, and to be our “go to” authority.

Maybe we shouldn’t.

The case of the Corte Madera Inn redevelopment

The Town of Corte Madera may remain forever infamous for approving the WinCup project on Tamal Vista Boulevard. You would think a planning disaster like that would shake things up in town, and in some ways, it did. They hired a new Planning Director and Town Manager. That said, one wonders why they’ve spent the past two years trying to push through the approval of another misguided “developer-led” plan for the rebuild of the Corte Madera Inn.

We all understand that a city has the obligation to allow anyone to submit any type of proposal and it must process that proposal thoroughly, and without prejudice. But the obstinacy of this particular developer, their refusal to change any aspect of their proposal for any reason, and a long list of questionable “facts” presented, made this project suspect early on.

The developer, Reneson Hotels, proposes to increase the size of the present hotel by about 70%, which requires the destruction of the small, wetlands pond, behind it. The developer has continued to claim it is the “only” alternative that is financially feasible if the property is to remain a hotel. The Town planners have never seriously questioned that contention[1].

This is not a situation about being for or against property rights. The developer doesn’t have the zoning rights to do what he wants to do. In fact, he’s asking for a special hotel zoning exception and a General Plan Amendment that only he will benefit from.

The issue at hand is whether or not the pond is actually wetlands, and if so, should it be preserved. Some have asked me, why all the fuss? After all, the wetland is less than an acre in size. So what does it matter if it’s lost?

Well, first off, because it’s illegal,[2] and secondly, because if we allow cities to skirt the rules and regulations, sooner or later you end up with WinCup. And then everyone wonders how the heck that happened?

Who’s minding the store?

The Town hired no less than two biologists (recommended and paid for by the developer) to evaluate the proposal. Both stated, in writing, that the pond was not wetlands and therefore, it was okay to pave it over[3]. In their Staff Reports, the Corte Madera town planners even went so far as to describe the filling of the pond as a “goal” for the project, in support of the developer’s financial feasibility claims.

The only problem is their opinions weren’t correct.

There was no truth whatsoever to the assertion that a profitable hotel operation required the filling in of the pond. The evidence and the full story have been fully documented in the four part series: Rook vs. Knight Endgame? The Corte Madera Inn developer puts the property up for sale: Part I, Part II, Part III, and Part IV), and elaborated in various the CVP comment letter to the Army Corps of Engineers.

The proposed Corte Madera Inn rebuild project is a clear case of developers directing town planning; a scenario under which staff presents the developer’s most profitable wish list as fact, and consultants, paid for by the developer, provide “evidence” that supports the developer’s requirements.

This too cozy staff-developer relationship is common, and it’s not just limited to development projects. We see it in the decision making process on all types of issues.

To make matters worse, because our cities have become increasingly dependent on development fees to cover the costs of staff time and operational expenses, they find themselves on a fiscal slippery slope that requires more and more projects to be approved just to keep their doors open. As a result, they’ve become increasingly reliant on “studies” by developer paid consultants, to the exclusion of common sense.

It’s not unusual for a developer to plead ignorance of the law, fudge facts, tell half the story, or do whatever it takes to win an approval. It’s always just been part of doing business. All’s fair in love and war… and real estate. But does that apply to public employees?

Shouldn’t we be able to depend on our public employees to be thoroughly versed in the law and governmental procedures? Isn’t that a basic requirement to properly look out for the general health, safety and welfare of the community?

Dealing with federal regulatory agencies

In the case of the Corte Madera Inn, even though the Planning Commission had recommended approval of the project (based on the Staff Report’s recommendations), evidence surfaced that proved the pond was in fact a federally protected “special aquatic site,” and not a “man-made cesspool,” as the developer and staff had claimed. It also came to light that the wetlands had been cut off from waters from the Bay that would naturally flush the pond and keep in vibrant. There was also good reason to believe that floodgate closures by the town and the property owner caused this, and were not accidental.

In response to the evidence that the pond was a special aquatic site, the San Francisco Regional Water Quality Board sent the town a letter notifying Corte Madera of the consequences of processing the project without their approval. This stopped the project in its tracks.

In response and in an attempt to circumvent local government, and tooverride the regulatory authority of the San Francisco Regional Water Quality Board (which shares oversight of the issuance of permits to fill wetlands), the Corte Madera Inn’s developer submitted an application to fill the pond, directly to the Army Corps of Engineers. Since the Corps is a federal agency, if they could win their approval to fill the pond, it could open a clear path to build developer’s preferred proposal.

During this process, the Corps provided for a 45-day public comment period, in the course of which CVP had conversations with the Sahrye Cohen, the Permit Manager for the San Francisco Bay Area Army Corps.

Since there had already been a two-year planning review process, the Town’s project file was pretty thick and included three separate environmental impact reports (draft, revised and final “EIR’s”). It also included layers of Staff Reports and consultant’s reports, and volumes of public comments. All of these documents discussed four distinct alternatives to the developer’s preferred redevelopment proposal. These included everything from “no project” to versions with fewer guest rooms or the same number of rooms but with differently configured buildings. All of these preserved the wetlands pond.

However, when I spoke to Sahrye Cohen and asked her about these less impactful alternatives, and about how the Corps would go about evaluating them, to my surprise, her response was, “What alternatives?” She went on to say that the developer had told them that their proposal was the only proposal and that there were no other “on site” alternative solutions.

Then I asked Ms. Cohen if she had ever read the various EIR’s. She responded that she was unaware of their existence. However, as a federal agency, the Corps was not under the authority of the California Environmental Quality Act (“CEQA”). She said that if a developer doesn’t provide that information, the Corps had no obligation to seek it out and they can make their decision solely on the basis of the information provided by that developer.

She is, of course, legally correct. Yet, I doubt most people would assume that this was the case. Still, I found Sahrye to be thoughtful and reasonable, and she seemed concerned to discover that EIR’s existed and that alternative solutions had been thoroughly considered.

CVP immediately sent the Army Corp the entire two-year history of public documents. We also sent the same information to the SF Regional Water Quality Board and to the Region IX offices of the Environmental Protection Agency (“EPA,” which has the power to override any decision by the Army Corps. Needless to say, when the Region IX office of the EPA learned about this, they were not happy.

The EPA wrote to the Army Corps expressing their dissatisfaction with the applicant’s subterfuge.

Who’s looking out for the public’s interests?

In the course of our conversations, I also asked Sahrye if she had ever met with Adam Wolff, the Corte Madera Planning Director, and if so, had she ever asked him about alternative proposals. She told me she had met with Adam and the developer and had discussed the need for “on-site” alternative project proposals, but neither the developer nor Mr. Wolff offered any information in response.

Again, I understand the developer remaining mute in this situation, but why would a public official, whose fiduciary responsibility is to the people of Corte Madera, fail to volunteer information about the EIR alternatives when the opportunity arose?

I contacted Adam Wolf for comment prior to publication of this series. In his response, he suggested that I “appear to be confused” about how the Town and Corps permit approvals processes worked and added:

I’ve personally met with Sahrye on only one occasion earlier this year in May to discuss the Corps’ wetland delineation, and at that meeting I was informed of the Corp’s intention to start their Section 404 permitting process. There were not discussions regarding alternative proposals other than discussion of the fact that the applicant (Reneson Hotels, Inc.) would need to conduct both off-site and on-site alternatives analyses (the latter of which had not yet been provided), pursuant to Army Corps regulations. I was certainly not asked whether any alternative proposals existed and I certainly never replied that none did. Finally, I have not until this email been aware of the letter from the EPA.

I find his response remarkable in a number of ways. Aside from the fact that it directly contradicts what I was told by the Army Corps Permit Manager, it’s a perfect example of the methods of responding to public critics, which I described in Part I of this series.

First off, the critic is always told they are either confused or misinformed. These assertions allow the respondent to side-step the whole point of the critique, and inject a revisionist version of facts and circumstances. But which of us was, in fact, confused?

Although Mr. Wolff admits to being in a meeting where the Army Corps Permit Manager apprised him of the need “to conduct both off-site and on-site alternatives analysis,” it would be remarkable for him to attempt to excuse his lack of notifying Ms. Cohen of the existence of the EIR file, simply because it was technically the developer’s responsibility to do so "pursuant to Army Corps regulations."[4]

Is he inferring that if someone doesn’t ask him a very specific question in precisely the right way, he has no obligation to disclose relevant information? Even though, in this case, he was certainly well aware of the significant implications of that information?

This excuse would miss the entire point of my inquiry, which is that he doesn’t work for or under the Army Corps’ regulations but rather, is supposed to represent the interests of the residents of Corte Madera.

But, maybe there is yet another reason for why he didn’t volunteer the EIR information.

Could it be that Adam Wolff just doesn’t know how these types of proceedings work?

On further prodding, Adam admitted that he did not send the Alternatives chapters of the DEIR and REIR to the Army Corps during the grading permit application comment period, because notice of the EIRs had been sent to the Corps when they were first published over the past years. He apparently assumed that was sufficient.

Unfortunately, sending pertinent “evidence” to the Corps during the prescribed comment period is crucial to the project outcome. Unless evidence and documents are sent to a deliberating agency at the time of that deliberation, they will not be part of the legal record and therefore will not be considered in that decision.

These rules apply to all legislative decisions at all levels of government and in all court proceedings. For example, if one doesn't make an argument and cite case law in a petition to the court, it's not the court's job to make legal arguments or find supporting case law, for the petitioner, even though those laws and cases have been published and are on the books.

Similarly, if a city is holding open a CEQA public comment period, the public or other government agencies, must submit their comments and supporting information during that period, or they can never bring those arguments up in a court proceeding at a later date. That evidence would become inadmissible. However, if that evidence is properly introduced, it cannot be ignored.

Every time a municipality publishes an EIR, they are required to send a notice of its publication to all local, regional, state and federal agencies. However, those notices do not automatically constitute a part of an Army Corps permit manager's file when they review an application.[5]

Everyone in government should know this and the Corte Madera city attorney would probably be the first to use this argument to dismiss a legal claim against the town, if brought by a member of the public.

Adam’s reason for not notifying the Army Corps about the EIR file may absolve him of intentional wrong-doing, but it clearly indicates his lack of diligence. His lack of unawareness of the EPA's comment letter is also curious since it is his job to update the Town Council on the progress of this project, and because that letter was published on the Marin Post in June of 2016 and widely distributed at that time.

I also wonder if he understands that the EPA can override a permit decision by the Army Corps, and how important that might be in this case.

To question authority

Adam complained that it was unfair of me to judge his actions, harshly, because of how deeply he cares about the Town of Corte Madera. He ended his last email to me by sniffing.

Please do not contact me in the future with an “opportunity to comment” for your blog. It’s clear you have no intention to represent facts or present an honest assessment of my actions.

Well, okay, so just what are the “facts?” I think it’s great that he cares, but the truth is that everybody “cares.” Is that really the criterial we want to use to just a public employee’s performance?

The facts are that when you take a position of considerable public responsibility, such as a planning director, the whole city is depending on you. So, if you really care, wouldn’t you want to be sure you’re thoroughly educated about all the rules and regulations? Because unfortunately, by failing to know that it was important to submit proper evidence (the EIR documents) to a federal agency during the public comment period, you have likely cost your community the ability to legally challenge the Army Corps decision on the future of the Corte Madera Inn development.

In fact, the only reason the Town of Corte Madera could still legally challenge the developer’s proposal, based on the existence of other “practicable”[6] alternatives is because CVP submitted that information in a timely manner.

So, Mr. Wolff, how about saying, thank you to community members for being on top of things and discovering that the pond is a federally protected ‘special aquatic site,’ saving the Town from a legal quagmire? Or, thanking CVP for submitting the EIR information in a timely manner, preserving the right of the Town and its resident to challenge any future decision by the Corps?

The more important question, though, is why does it take this level of constant effort by the public just to get staff to do what we assume they know how to do in the first place?

Perhaps, because “planning” in Marin is actually being driven by something else, entirely.

Read Part I – Is representative government slipping away?

Read Part II – Will the suburbs be hunted to extinction?

Read Part III – Dispatches from the front – Mill Valley

Read Part V - Dispatches from the front - Hamilton Field

Read Part VI - Dispatches from the Front - Marin County Government

Read Part VII - What will you do when Marin is no longer Marin?

Read Part VIII - Hide the ball

Read Part IX - Regionalism

Read Part X - Endgame

[1] The developers presented “financial analysis” that every professional real estate developer we showed it to called it “highly creative”, “nonsensical,” and worse.

[2] Wetlands have been called the nursery of the oceans. California has already lost 90% of its wetlands in the past 60 years.

[3] In his testimony before the Planning Commission, Jim Martin of Environmental Collaborative did state that no one at the city had ever asked him to study how to save the pond. Its destruction was to be assumed.

[4] To date the EIR Alternatives have not been provided by either the Town or the developer.

[5] Therefore, even though the Army Corps was not responsible for considering the information found in the Corte Madera Inn EIR’s, simply because they existed, once CVP submitted this information to the Army Corps, during the public comment period, they could no longer, legally, ignore that information in their deliberations.

[6] The federal standard used to evaluate the feasibility of project alternatives is whether or not those alternatives are practicable for any developer to pursue, not just the applicant.