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CVP Comment to RWQCB - Onsite Alternatives - Corte Madera Inn Rebuild - Part A
Part A - Comment Letter on the Corte Madera Inn On-Site Alternatives Analysis Final with Figures and Attachments by Zentner and Zentner, as submitted The San Francisco Bay Regional Water Quality Control Board (404(b)(1) Alternatives Analysis for the Corte Madera Inn Rebuild Project; in response to the documents posted on the RWQCB web site under Alternatives Analysis for the Project, which are available for public review at:
http://www.waterboards.ca.gov/sanfranciscobay/water_issues/hot_topics/CorteMadera.shtml
Dear Mr. Fernandez:
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. We are submitting our comments on behalf of Peter Hensel, Marla Orth, Peter Orth, and other residents of the Town of Corte Madera.
I have been an active participant in local planning and development matters in Marin County for over 20 years, As a resident of Marin, as president of Community Venture Partners, Inc., and based on my professional experience, I am an acknowledged expert in planning, land use, architecture, real estate finance and development and submit my comments as a licensed architect and former real estate developer and broker.
Of relevance to this comment, as the founder of Tiburon Group, Inc. and a licensed architect and former real estate broker (18 years), I’ve had extensive experience in project planning and architecture, project management and construction, and have acted as managing partner in a variety of real estate development projects. Tiburon Group, Inc. also specialized in real estate investment analysis, property acquisitions and financing (see Exhibit 16).
In addition, Community Venture Partners is advised by a distinguished list of real estate professionals including, John Flavin, former senior executive for the Oliver Carr Company, the Grosvenor Group, Gates Capital and the Opus South Corporation, Rick Harris, former Vice President of the Transportation Group at First Boston, Principle in charge of transportation finance at Morgan Stanley & Co., NYC, Managing Director of Public Finance for Dean Witter Reynolds in San Francisco, and Burton Miller, a partner at Hornberger + Worstell in San Francisco, an award winning, international design firm that specializes in the hospitality sector and has developed projects around the world for every major hospitality provide.This letter is in response to the “On-Site Alternatives Analysis Final with Figures and Attachments” (Click on blue text to visit the web site).
General Comments
The Applicant’s On-Site Alternatives Analysis Final with Figures and Attachments is fundamentally flawed in a number of important ways, which precludes it from consideration by your agency. The “Overriding Considerations” noted in our General Comment letter, dated January 13, 2017, and our comment letter on the Alternatives Analysis Final with Figures are applicable and all those comments are hereby incorporated herein by reference.
1.The Applicant’s analysis is based on incorrect definitions of the project’s purpose and what is or is not practicable: As we’ve noted, the Applicant’s analysis and conclusions in the On-Site Alternatives Analysis Final with Figures and Attachments continue to be based on erroneous and self-serving definitions of the project’s” basic purpose” and “overall purpose,” and what is “practicable,” under the 404(b)(1) Guidelines. We have commented on the Applicant’s incorrect assertions about these matters in our previous correspondence and comment letters and provided evidence in our attached Exhibits. Those comments and that evidence are incorporated herein by reference.
2.The scope of alternatives analyzed is unacceptably narrow and fails to meet the requirements of the 404 Guidelines. An insufficiently narrow and self-serving range of alternatives is a serious concern and in itself grounds for denial of a permit under the 404(b)(1) Guidelines.
3.The On-Site Alternatives Analysis Final with Figures and Attachments does not adequately address the LEDPA as required under the Guidelines. The importance of correctly identifying the LEDPA is repeatedly emphasized in the Guidelines and has been thoroughly tested in the courts.
4.Outdated information: The On-Site Alternatives Analysis Final with Figures and Attachments relies heavily on the financial information provided in the PKF Consultant’s study, which dates back to statistics from 2009 through late 2012. The Applicant’s conclusions regarding practicability are not based on any current facts or realistic data about present hotel operations and development rates, revenues, or costs. As such, the opinions and conclusions reached are skewed and do not provide a reasonable assessment of on-site alternatives. The Applicant fails to acknowledge that this significantly impacts the analysis’ conclusions. We have commented on the Applicant’s incorrect assertions about these matters in our previous correspondence and comment letters and provided evidence in our attached Exhibits. Those comments and that evidence are incorporated herein by reference.
5.Irrelevant market demand data for permit consideration: The “Market Demand Analysis” by PKF Consulting that support the conclusions of the On-Site Alternatives Analysis Final with Figures and Attachments are not a consideration under the 404(b)(1) Guidelines. The Applicant is confusing their right to note market conditions with using it as an argument for what is practicable. Whether to build or not build whatever type of hotel they wish is not at issue. What are at issue are the significant environmental impacts of filling a federally designated wetland. Their inclusion of market data only serves the pre-determined outcomes desired by the developer.
6.Subjective financial analysis: The “Financial Analysis” by PKF Consulting that support the conclusions of the On-Site Alternatives Analysis Final with Figures and Attachments are not objective or comprehensive and only serve the needs and pre-determined outcomes desired by the developer, making them inadmissible under the 404(b)(1) Guidelines. This Alternatives Analysis reads as if it were a marketing brochure for the developer to convince potential investors, rather than an objective analysis. By incredible coincidence, the “analysis” by PKF Consulting arrives at the conclusion that the developer’s preferred alternative location (which the Applicant has been promoting for a decades) is the only practicable alternative when compared to other on-site locations. We have commented on the Applicant’s incorrect assertions about these matters in our previous correspondence and comment letters and provided evidence in our attached Exhibits. Those comments and that evidence are incorporated herein by reference.
7.The applicant’s accounting of the project history and the facts surrounding the previous EIRs, alternatives studies, local agency review, and restrictions of local planning regulations are in many instances incomplete or patently false. We have commented on the Applicant’s incorrect assertions about these matters in our previous correspondence and comment letters and provided evidence in our attached Exhibits. Those comments and that evidence are incorporated herein by reference.
8. The Regional Water Quality Control Board's review of this project is not exempt from the requirement of the California Environmental Quality Act (CEQA). The Applicant's Proposal is a “project” under CEQA, Pub. Res. Code § 21065, and thus requires full CEQA review. The Regional Board's 401 Certification review does not appear to fall within the certified regulatory program for the Regional Board's Water Quality Control (Basin)/208 Planning Program, as set forth at 14 Cal. Code Regs. § 15251(g). Even if the Board's 401 Certification Program were considered a part of the agency's certified program, the Board's CEQA review would still be required to comply with CEQA policies. Pub. Res. Code § 21080.5(d). At this juncture, however, we have not seen any attempt by the RWQCB to comply with CEQA's requirements as set forth in the Public Resources Code, including but not limited to a thorough evaluation of project impacts and avoidance of significant impacts based on feasible mitigation or project alternatives and responses to public comments. In addition please also note that the various Exhibits attached with this comment (EIRs, studies and independent analysis, expert opinions, legal comment letters, public comments, etc.) contain numerous citations, descriptions and references to unmitigated significant impacts and requirements under CEQA, all of which are hereby made a part of this comment letter and incorporated herein by reference.
For the reasons noted herein we ask RWQCB to deny the Application to fill the wetlands and destroy the contiguous wildlife habitat.
Current zoning status of the property
Please note that presently, the Applicant does not have development rights under the Town’s General Plan, nor zoning rights to redevelop the hotel proposed in Alternative 1. The proposed project will require a General Plan Amendment and rezoning of the parcel in order to proceed. Therefore, as it stands, the only practicable alternatives available to the Applicant at this time are No Project or Renovation of the existing 110 room hotel. Please also note that members of the Town Council have indicated that a General Plan amendment is by no means assured at this time.
Relevant project history with RWQCB
It should be noted that the Applicant and the Town have continued to misclassify the wetlands for more than three years despite being notified of the existence of submerged aquatic vegetation and photographic evidence. In fact, this was brought to their attention, and in fact, this was done 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 (Exhibits 8 and 15), 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 support of this, in his comment letter of February 15 2016 (Exhibit 5) and again in his letter of December 31, 2016 (Exhibit 12), 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.[1] This letter was followed by other comment letters by Dr. Baye (Exhibit 12). We ask RWQCB to consider the comments of Dr. Baye in your review of this permit Application
General comment on financial feasibility and the determination of practicable alternatives
The Applicant's financial wherewithal, or the access to attractive financing, or lucrative contractual arrangements with third parties, or other such considerations are not allowable considerations in determining whether an alternative is practicable under the 404(b)(1) Guidelines. Development costs are to 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.[2]
The attached The Corte Madera Inn Redevelopment: Market Survey and Financial Feasibility Evaluation (Exhibit 14) analyzes this issue in depth and concludes that a review of existing market conditions substantiates the practicability and financial feasibility and development of on-site alternatives that also preserve the wetlands pond. This report concludes that Alternatives “B” and “C” and “D,” (these references being the labeling method used by the Applicant and the Town in their EIR documents) are all practicable and financially feasible, and readily available to both the applicant and any objective third party developer.[3]
It is important to note that the Preamble to the Guidelines 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].
In addition, per 40 CFR 230.12(a)(3)(iv):
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. [Emphasis added].[4]
And as explained in The Federal Wetland Permitting Program: Avoidance And Minimization Requirements by the Environmental Law Institute, March 2008, authored by Sandra S. Nichols, Jared Thompson, and Jessica Wilkinson, with valuable guidance and review by Annie Brock, James McElfish, and Bruce Myers;
Under b. Feasibility they state
Another key phrase in the definition of practicability (“available and capable of being done after taking into consideration cost, existing technology, and logistics in light of the overall project purposes”[5]) is “capable of being done,” which the EPA refers to as “feasibility.” Federal policy has established that an applicant’s unwillingness—or in some cases inability—to pursue an alternative does not render it infeasible. [Emphasis added]
And under c. Cost they state
The mere fact that an alternative may cost more does not necessarily mean it is not practicable[6]
The alternatives considered are unacceptably narrow under the Guidelines.
In the RWQCB comment letter to the Town, regarding the 2015-2016 DEIR, it stated
Because the EIR only evaluates one alternative that avoids filling the pond and does not indicate that it will be implemented moving forward, the only permittable alternative (i.e., the LEDPA) may not have been included in the EIR. To rectify this situation, we recommend evaluating additional alternatives that avoid filling the pond, including, but not limited to: (1) renovating the existing hotel; (2) using a multi-story garage and shifting the position of the hotel to avoid the pond; (3) reducing the number of units to reduce the footprint of the hotel thereby avoiding the pond; (4) altering the types of rooms offered by the hotel to reduce the footprint thereby avoiding the pond; and (5) eliminating or reducing the size of some of the amenities offered by the hotel.
We fully support the RWQCB’s comment. It clearly notes the requirements of the 404(b)(1) Guidelines, which the Applicant has continued to ignore for more than three years. In particular, the applicant has refused to evaluate the “no project” alternative or a renovation of the existing hotel alternative, which is not only required under federal regulations but under the California Environmental Quality Act (CEQA), as well.
As published in The Federal Wetland Permitting Program: Avoidance And Minimization Requirements by the Environmental Law Institute, March 2008, authored by Sandra S. Nichols, Jared Thompson, and Jessica Wilkinson, with valuable guidance and review by Annie Brock, James McElfish, and Bruce Myers;
Under 1. Project Purpose, a. Burden of Proof, it states
In a 1988 report on the § 404 program, the Government Accounting Office explained the concern that the Corps Districts were simply accepting project purposes asserted by applicants without making the required independent finding.[7] In an effort to establish clarity, EPA requested elevation of several applications, calling the problem of the Corps’ failure to independently verify the information and analysis presented by § 404 permit applicants one of national concern. “We are concerned by matters of interpretation of the Guidelines… and the potential for site specific and cumulative environmental impacts as well as impacts on the integrity of the Section 404 program,” EPA stated in the Old Cutler Bay elevation request.[8]
This concern was similarly expressed in the North Fork of the Hughes River elevation request.[9] The EPA asserted that by relying on the applicant’s alternatives analysis, the Corps had unnecessarily limited the scope of practicable alternatives that could meet the project purpose.[10]
The Applicant’s failure to honestly assess the full range of practicable alternatives required is grounds for RWQCB to reject the Application.
Requirements to determine the LEDPA in evaluation Project Alternatives
The fundamental task before RWQCB is to determine the least environmentally damaging practicable alternative (“LEDPA”) requirement in reviewing the application to fill the wetlands pond. The importance of this requirement cannot be overstated. It is our contention that the applicant’s preferred proposal is not the LEDPA and that their conclusions regarding Alternative 2, which preserves the wetland pond, are incorrect because they are based on outdated and erroneous data, assumptions and analysis methodologies.
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, (Exhibit 20) it states
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.[11]
Further,
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.[12]Noncompliance with this requirement is a sufficient basis for the Corps to deny the project permit.[13]The LEDPA determination is thus most important of the four prerequisites for determining compliance with the Guidelines.
And under III. LEDPA DETERMINATION it states
The LEDPA requirement is an attempt to avoid environmental impacts instead of mitigating them; "if destruction of an area of water of the United States may be avoided, it should be avoided.[14]The Corps may only approve a project that is the LEDPA.[15]
And
The alternatives analysis must be fair, balanced, and objective, "and not used to provide a rationalization for the applicant's preferred result.[16] 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.[17]
In this case, the Applicant has taken the opposite approach, adamantly refusing to make any changes to his preferred proposal, or to consider any less environmentally destructive alternatives, and generally flouting the authority of local, state and federal regulations.
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,”[18] and that The Corps may only approve a project that is the LEDPA,[19] 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."[20]
Similarly, “Making money” or “increasing a tax base”… are further examples of inappropriate basic project purposes under the Guidelines.[21] 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, the Army Corps and RWQCB to gain approval.
Finally, according to Yocom, et al (Exhibit 21),
There are instances where a “no-project” or “no-action” alternative may be considered a practicable means of achieving the basic project purpose.[22]
We believe the courts would find this to be true in this instance. As we have noted before, using these erroneous definitions of project purpose, based upon “capitalizing on demand” is not allowed as a condition to be granted a permit to fill the wetlands. “Capitalizing on demand,” or “maximizing returns” or meeting “requisite returns” (all these phrases in quotations are found in the Application) are not allowable considerations under the 404(b)(1) Guidelines. In fact, they are expressly prohibited from being considered in defining a project’s purpose and for permit approval.
The Applicant has referenced local agency documents such as the EIRs of record in its Application, but has not presented them to RWQCB, which you should be aware of. In addition to the information submitted by the Applicant, two other on-site alternatives were reviewed, known as “Alternative 2” in the project Draft EIR (Exhibits 24a through 24g), and “Alternative 4” in the project Revised EIR (Exhibits 24a through 24g).
Mitigation is not a consideration in determining the LEDPA
RWQCB should not consider the proposed mitigation for a project in determining the LEDPA.[23] It is our understanding that the courts have upheld this EPA policy to conduct its alternatives analysis without considering mitigation measures.[24]
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).”[25] And, that “The applicant bears the burden of demonstrating to RWQCB that no less environmentally damaging practicable alternative is available and that the project complies with the 404(b)(1) Guidelines.”[26]
Region IX EPA guidance on the issue of project alternatives is extensive.[27] EPA guidance suggests that under the “practicability presumption,” RWQCB will presume that practicable alternatives exist where the project is non-water dependent and will cause a discharge in a special aquatic site.”[28] 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]."[29]
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.[30] 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.[31] This presumption is intended to implement the Corps' policy that "from a national perspective, the degradation or destruction of special aquatic sites, such as filling operations in wetlands, is considered to be among the most severe environmental impacts covered" by the Guidelines.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]." [32] [Emphasis added]
Finally, it is our understanding that “any project that achieves the basic project purpose practicably should be considered.”[33] Under this guidance, Alternative 2 must be considered as the LEDPA. This is particularly the case in this instance where the Applicant’s financial feasibility analysis is so flawed (see sections of this comment letter, below). 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.”[34]
Avoidance mitigation
As published in The Federal Wetland Permitting Program: Avoidance And Minimization Requirements by the Environmental Law Institute, March 2008, authored by Sandra S. Nichols, Jared Thompson, and Jessica Wilkinson, with valuable guidance and review by Annie Brock, James McElfish, and Bruce Myers (Exhibit 22);
Under C. Information Specific to Alternatives Analysis or Mitigation Sequencing; Avoidance Mitigation they note that
Avoidance mitigation best occurs in the planning and design stages of a project by configuring the site layout to avoid impacting an aquatic area or areas or by not implementing certain parts of an action. Project proponents should configure the proposed development or facility around natural flood plains and aquatic resources
Further, under 2. EPA’s Guidelines for Permit Applications they explain that
For special aquatic sites such as wetlands, however, the Guidelines propose a more difficult test for avoidance with two presumptions. For proposed discharges to special aquatic sites there is a presumption that an alternative site that is not a special aquatic site exists and a presumption that such a site will result in less adverse environmental impacts on the aquatic ecosystem.[35][Emphasis added].
And per A. Avoidance: The Alternatives Analysis
The presumptions hold unless the applicant proves otherwise.26 The standards for overcoming these presumptions and the other components of the alternatives analysis have been clarified by numerous administrative and legal decisions.
And under 2. Practicability the ELI study states
“where a discharge is proposed for a special aquatic site, all practicable alternatives to the proposed discharge which do not involve a discharge into a special aquatic site are presumed to have less adverse impact on the aquatic ecosystem.”[36]
And
In the Petro Star elevation request, EPA was concerned that a practicable alternative had been neglected.[37]The Army affirmed that the Corps was required to consider all practicable alternatives and not limit its analysis based on the applicant’s assertion that the proposed project was more attractive.[38]
The Applicant has failed to adequately counter these presumptions and case law or adequately address these requirements of the Guidelines.
Re: Summary: Project Purpose
, states
These alternatives were examined against the project basic purpose, which is to develop a viable hotel facility capable of capitalizing on the demand for central Marin hotel space.
As we continue to point out, the Applicant’s definition of the project’s purpose is contrary to both the spirit and the letter of the 404(b)(1) Guidelines. The Applicant’s stated purposes are categorically disallowed under the Guidelines. Please see our General Comment letter of January 13, 2017, pages 4 through 6, for a complete discussion of our objections. The accuracy of the project purpose remains paramount. The Applicant is again inferring that his definition of project purpose, which includes maximizing profits and capitalizing on market demand justifies the goals and conclusions of their analysis. It is the duty of state and federal agencies to determine and correct the project purpose, and to inform the Applicant of that determination.
In this instance, that determination is paramount and must be made at the outset because the entirety of the Applicant’s on-site alternatives analysis and their conclusions on what is or is not practicable rests on their erroneous and self-serving definition.
To reiterate, the proper project purpose for the Corte Madera Inn Rebuild is “to provide commercial hotel rooms in southern Marin County, CA.
Re: D. Current Conditions
Our comment here is that the physical condition of the existing hotel and the lack of competitive improvements over the years is the result of personal investment and management decisions made by the owner, which have no bearing whatsoever on the determination of the LEDPA or the permit decision before RWQCB. The Guidelines specifically ignore an applicant’s ability to “cry poor” in order to obtain a permit to fill a wetland.
Re: Alternative 1, 2. Analysis
The Applicant introduces other benefits to their preferred alternative in an attempt to sway the RWQCB decision. These include noting that their goals are to improve safety conditions at the vehicle entrance and others. What they fail to note is that all of the alternatives offer all of these same improvements and considerations.
Re: Alternative 1, Table I
As we will discuss in detail below, figures used in these calculations throughout the Application and Analysis, are incorrect, based on outdated data and faulty prognostications about average room rates, occupancy rates, and overall revenues, and show “costs” that may not even exist.
For example, the table shows a land cost of $11 million. However, there is no evidence provided for that number other than the consultant’s and owner’s subjective opinions (e.g., no certified appraisal), and there is no disclosure of whether or not this is an actual cost to the owner, who may own the property free and clear at this point in time. In addition, the “inflation total” shown is based on arbitrary opinion. As we’ve noted in our letter to the Army Corps, in June of 2016, (Exhibit 9) the concept of presenting “value” in the form of “Value Less Land Development Costs” is extremely novel and so outside of any methodology in the real estate finance profession that it renders this outcome meaningless.
However, even if one accepted this methodology, which we do not, if we substitute the actual, current average daily room rental rates and overall operating revenues we show below, every alternative produces a net positive and profitable result.
This is important with reference to the practicability of Alternative 2, which we believe to clearly be the LEDPA.
The Applicant’s improper “project purpose” distorts conclusions regarding practicable alternatives
The Applicant’s claim that their preferred alternative, Alternative 1, is the only practicable alternative is solely based on the self-serving definition put forth in their analysis. The Applicant supports this argument by stating
Alternative 1 is practicable. It can achieve the overall project basic purpose. It is also economically feasible as the revenue/value from the number of units exceeds (barely) development costs.
And that
Alternative 2 is not practicable. It does not meet the project basic purpose as the number of rooms proposed will not generate sufficient revenue to offset construction costs. As well, the single -branding (also a result of the limited number of rooms) reduces marketability, sustainability, and potential values/ revenues significantly. As a result, it is not practicable as development costs exceed value/ revenues.
These statements are incorrect because (1) they rely on the Applicant’s incorrect definition of project purpose, and (2) on the data and analysis and economic forecasting provided by PKF, which is without question outdated and inaccurate.
In the opinion of several successful hotel developer/operators CVP interviewed in doing research to compose our comment letters, to state that only a dual-branded, 174 room, Marriott hotel would be “barely” profitable at the subject location was considered so absurd as to be laughable.
As evidenced in our comments to the Army Corps of Engineers, in June of 2016, other comment letters, and the Best Western Corte Madera Inn Redevelopment: Market Study & Financial Feasibility Evaluation by RHSW, LLC (Exhibit 14), the hotel market is so strong in southern Marin today that a new hotel of almost any reasonable type or size would only be unprofitable if the owner / developer (in the words of a hotel owner/operator we interviewed) “had no idea how to run a hotel.”
This is particularly true of a hotel on the subject site, because its location is far superior to any competition now or in the future.
The subject site is unique
No other hotel location in southern Marin has a highway on ramp / off ramp at its doorstep, is adjacent to the two biggest and most vibrant shopping centers in the County (which the Town plans to connect with a pedestrian walkway over highway 101), is perfectly flat and buildable, is within walking distance of every conceivable amenity, has un-matched highway visibility, and is so fully supported by the Town and local agencies.
In addition, it is important to note that the Applicant’s claim that the Town is determined to rigidly enforce height limits, setback limits and other such discretionary planning restrictions is false. These types of minor adjustments and accommodations can be granted under a variance without a zoning change or General Plan Amendment. And, in this case, where the Town is committed to seeing that the subject property remains a hotel use and only as hotel use, for the Applicant to claim that the Town will not accept adjustments to support anything but Alternative 1, is unfounded.
In the many years this project has been going through the public review process, it remains tremendous burden on the public to have to go to such extraordinary ends to counter these kinds of falsehoods this Applicant continues to promote. We pray that the RWQCB will act in the public’s best interest and not be swayed by the Applicant’s unsupported and self-serving claims.
Read General Comment on Alternatives Analysis
Read Comment on Off-Site Alternatives
Read Comment on On-Site Alternatives - Part B
[1] 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 9.
[2] Wetlands, supra note 6. 294-295, Yocom, supra note 4, at 5.
[3] See attached; The Corte Madera Inn Market Study & Financial Feasibility Evaluation, prepared by Maurice H. Bennett, manager of RHSW, LLC.
[4] 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).
[5] 40 CFR 230.10(a)(2)
[6] RGL 93-02 Guidance on Flexibility at 3(a)(iii-v)
[7] Government Accounting Office, RCED-88-10, Wetlands: Corps of Engineers Administration of Section 404 Permit Program, 26 (July 1988).
[8] Old Cutler Elevation Request.
[9] North Fork of Hughes River Army Response; Petro Star/Port Valdez Guidance, Hartz Mountain HQUSACE Findings (July 25, 1989).
[10] Id.
[11] 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.
[12] 40 C.F.R. § 230.10(a) (2005).
[13] William Want, Law of Wetlands Regulation (6-24 (1989) 6-24. See Yocom
[14] Fed. Reg. 85336, 85340 (Dec. 24, 1980);
[15] Appropriate Level of Analysis, supra note 8, at 1; see also 40 C.F.R. §230.12(a)(3)(i) (2005).
[16] Hartz Mountain
[17] 40 CFR 230.12 (a)(3)(iv).
[18] 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.
[19] 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).
[20] 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
[21] Wetlands, supra
[22] Wetlands, supra
[23] 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)]
[24] Alameda Water and Sanitation Dist., 930 F.Supp. at 492.
[25] U.S. Army Corps of Engineers, Permit Elevation, Hartz Mountain Development Corporation (1989) 2 [hereinafter Hartz Mountain].
[26] Old Cutler, supra; Plantation Landing, supra at 7; Yocom, supra at 283.
[27] Wetlands, supra
[28] 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),
[29] 40 C.F.R. § 230.1(d) (2005).
[30] Hartz Mountain, supra
[31] 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.
[32] 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, 5. Practicability Presumption.
[33] Wetlands, supra, at 294
[34] 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).
[35] 40 CFR 230.10(a)(3)
[36] 40 CFR 230.10
[37] Petro Star/Port Valdez Elevation
[38] Petro Star/Port Valdez Guidance
[39] 40 CFR 230.12(a)(3)(iv).