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Community Venture Partners comments on the RFEIR for the proposed Corte Madera Inn Rebuild
The following letter has been sent to the Corte Madera Planning Commission and Planning Department, regarding the public hearing to discuss the Recirculated Final Environmental Impact Report ("RFEIR") for the proposed Corte Madera Inn rebuild project.
Dear Corte Madera Planning Commissioners:
You have before you a great deal of complex documentation, research, commentary and other information, regarding the proposed Corte Madera Rebuilt. However, the question you need to resolve is relatively simple:
Has the applicant provided sufficient evidence that their proposal’s mitigation measures are legally adequate and that no other practicable, less environmentally destructive alternatives exist?
The simple answer to those questions is “no.” That considered, why is the Town of Corte Madera continuing to process this proposal?
In our opinion, the Staff Reports for this project have failed to highlight the following critical information:
- That the Town of Corte Madera is not obligated to process any proposal that requires a General Plan Amendment. If the Town feels a proposal does not adequately conform to the spirit or letter of its existing General Plan, it can deny hearing such a proposal without any findings of fact;
- Than an applicant is not entitled to any expectation of such processing. A General Plan Amendment is a gift of value: no one has a right to it;
- That the Planning Commission has been reviewing a proposal that cannot be built without the issuance of grading permits from two superior government agencies and only without objection of a third: The Army Corps of Engineers and the SF Regional Water Quality Control Board (“RWQCB”), and the Region 9 office of the federal Environmental Protection Agency;
- That to date, all of those agencies have rejected the Applicant’s proposal for those permits; and
- That the reason the Applicant’s proposal has been rejected and those permits are not being processed is because the Applicant has failed to provide evidence that (a) the mitigation proposal (Burdell Ranch) is legally adequate (apples to apples mitigation), or (b) that there are no other less environmentally destructive practicable alternatives.
Details on status of the application with regional and federal agencies
The Army Corps has placed the application on “inactive” status, since October of 2016, because the Applicant failed to provide a required analysis of alternatives, and because the Applicant failed to gain comments and approval from the National Marine Fisheries Service (NOAA) or federal departments involved with “sacred lands.”[1]
The SF RWQCB has rejected the application as “incomplete,” because they found that the Applicant’s mitigation proposal (Burdell Ranch) is legally inadequate (not “apples to apples” mitigation as required under the 401 regulations), because the site is in fact, a “special aquatic site” and must be treated as such, and because the Applicant failed to provide an acceptable “alternatives analysis” (both on-site or off site), or evidence that no other less environmentally destructive practicable alternatives exist.
The Region 9 Office of the federal Environmental Protection Agency, which has the authority to over-ride any decision by either the Army Corps or RWQCB, has also rejected the Applicant’s mitigation proposal (Burdell Ranch) as inadequate (not “apples to apples” mitigation).
This raises important questions
The aforementioned considered, why is the Planning Staff continuing to bring this flawed proposal before you at this time?
Why is the Town of Corte Madera continuing to waste the public’s time and money on a proposal that at present has no chance of ever being permitted to build?
And, why is the Planning Staff showing demonstrable favoritism toward this particular project and this particular developer applicant? It is highly unlikely Planning Staff would afford this level of accommodation and leniency to an average citizen coming before you for a room addition on their house.
This project, as proposed, has gone essentially unchanged since it was first submitted, years ago. The Applicant has steadfastly refused to consider any less impactful alternatives, made up fictitious reasons why alternatives will not be approvable by the Town, and provided fallacious “financial feasibility” studies, which have gone uncontested by the Town in spite of ample argument and evidence that the Applicant’s studies are self-serving to the point of being nonsensical.
These are the facts of the application process for this project:
- The Applicant came before the Town of Corte Madera with its proposal and chose and paid for “experts” to evaluate that project.
- Those experts (Zentner) denied that the Corte Madera Inn pond was a wetlands, denied it was habitat for submerged aquatic vegetation, and denied it was classified as a “special aquatic site” (SAV).
- The Town Staff disregarded all public comments to the contrary and accepted those findings without questions, even though the testimony of a second environmental consultant, Jim Martin, questioned those assumptions.
- All of those initial findings by Zentner have been proven to be false.
- In June of 2016, the Applicant submitted an application to the Army Corps of Engineers for a grading permit to fill the pond.
- After holding public comment period, the Army Corps deemed the application incomplete as noted above.
- The Applicant has never responded to the Army Corps, causing the Corps to declare their application as “inactive” in October 2016.
- The Applicant then put the property up “for sale,” with much fanfare in what appeared to be an attempt to intimidate the Town into capitulating to its demands for approval. The developer threatened that unless his proposal was approved, it would end up a “car dealership” (even though putting any kind of retail use on the site would contradict agreements the Town has with the Town Center developers, otherwise, and would never be approved).
- Over the ensuing months no offers for car dealerships were received.
- Since the property has been listed for sale, the developer refused to look at offers to purchase the site from other hotel developers (ostensibly to protect the profits of their other hotel holdings, even though those hotels are in completely different markets and would not compete with any hotel on the Corte Madera Inn site).
- We are aware to two bona fide hotel developers who attempted to submit offers to purchase the site, but the listing broker refused to provide any listing information and refused to present any offer submitted, in violation of state real estate brokerage regulations.
- Not allowing hotel developers to submit offers would enable the Applicant to be able to tell RWQCB, the Corps, and the Town that no hotel developers were interested in the property, and that no alternatives to their proposal to fill the pond, existed.
- In late 2016, instead of submitting an alternatives analysis to the Corps, as requested, the developer submitted a “draft” alternatives analysis to RWQCB, without submitting an application for a grading permit from RWQCB.
- RWQCB was under no legal obligation to consider the alternatives analysis without an application for a permit. It appears that the developer was hoping that he could have a “private” discussion with RWQCB out of the public’s eye.
- In the interest of full transparency, RWQCB issued a public notice of their receipt of the alternatives analysis and asked for public comment.
- The developer was subsequently forced to file an application for a grading permit from RWQCB.
- In their letter of February 3, 2107, RWQCB decisively ruled that the application was “incomplete" and rejected the application for the reasons enumerated above.
- The developer then went back to the Town of CM and paid for yet another consultant, LSA, to conduct yet another analysis in an attempt to counter the obstacles encountered with regional and federal agencies.
- The LSA opinion essentially amounts to them saying “we disagree.” Yet it cites no new evidence for that opinion. The Town’s reliance on this is tantamount to daring the public to sue them.
- The developer is apparently doing this in the hope that obtaining a local EIR certification will give him bargaining power with RWQCB, the Army Corps, and the EPA.
The developer’s attempts to obtain approval have been less than transparent. However, it is the developer’s right to do everything they can to obtain approval, even if some feel their actions have been ethically questionable.
However, the more important question is why is the Town of Corte Madera being complicit throughout all of this? Why is the Town continuing to process this application when, as of this time, it has no chance of ever being built?
If you vote to recommend certification of the RFEIR, you are directly contesting the opinions of three superior state and federal agencies positions.
On what grounds are you prepared to do that?
Thank you for your consideration and this opportunity to submit our comments.
Sincerely,
Bob Silvestri
President
Cc: Adam Wolff
Corte Madera Town Council
[1] Roberta Morgenstern, Army Corps, November 9, 2016