The Town of Corte Madera Planning Department seems to have turned a corner. Whereas, I once gave their Planning Department an award for the “Worst performance by a Planning Department,” my recent experience is that they have dramatically changed how they deal with community criticism.
The Town has been conjuring the creation of a special ordinance for proposals to develop hotels, for several years. Current mayor Jim Andrews gets credit for taking the lead on this and Council member Bob Ravasio was a supporter early on, ever since the unmitigated fiasco surrounding the scandalous proposal to rebuild the Corte Madera Inn and destroy federally protected wetlands in the process.
Public protests against the owner of the Corte Madera Inn’s misguided plans began when Friends of Corte Madera in 2015 filed a complaint in April of 2015. This was followed by a long, drawn-out legal argument that was brought by Community Venture Partners, Inc. starting in August of 2015, and again on January 2016, February 2016, March 2016, May 2016, June 2016, November 2016, January 2017 (see series of five – 1, 2, 3, 4, 5), February 2017, May 2017, June 2017, and including damning comments by the Region 9 Office of the EPA, the Army Corps of Engineers, regional wildlife experts and biologists, and the Regional Water Quality Control Board, until the project was finally sent back to the drawing board in July of 2017.
The effort to get the Town’s former Planning Director and City Manager to deal with the issues, back then, was nothing short of monumental! So, my recent experience regarding the newly proposed hotel ordinance could not stand in starker contrast.
My comments and on the Town's public process
Because of everything that was wrong about the public process that attempted to approve the rebuild of the Corte Madera Inn, I’ve supported the idea of creating an ordinance for hotel development, and have been talking with a couple of Corte Madera Council members about it for more than two years. However, in May, the Corte Madera Planning Commission approved the draft ordinance based on the Staff Report’s contention that no environmental analysis was required because the Town could claim an exemption under what is known as a 15061(b)(3) CEQA exemption.
This was simply not true.
In response, I wrote Planning Director Adam Wolff an email explaining the following:
Under CEQA, a zoning ordinance is a "project." As such, all aspects of Article 5 would apply. It is also almost categorical that a city-wide zoning ordinance that changes / impacts the density of development cannot be exempt under 15061(b)(3) as the Staff claims. 15061(b)(3) - the so-called "common sense" exemption - is very limiting in when it can be applied and must be based on specific findings.
Please keep in mind that CEQA is an evidenced-based law. That is its fundamental operational requirement. All "findings" must be based on evidence, not on consensus or the opinions of staff or decision-makers, or in any other way.
For example, when Mill Valley attempted to restripe Miller Avenue to change lane capacity, we successfully argued that the law denied them the 15061(b)(3) exemption they had first claimed. Similarly, when Mill Valley tried to add multifamily mixed-use as a "conditional use" in existing commercial zones, it also failed the test for this exemption.
When we consider the statutes operative phrase, "Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA." (Emphasis added), which is simply stated as a conclusion in the Staff Report without evidentiary support, the Town's assertion fails the test of exemption (see court ruling below). There is obviously no "certainty" that there is "no possibility" of adverse environmental impacts established by evidence or assessment by the Town of Corte Madera or any expert consultants, whereas, reasonable arguments can easily be made as about impacts on traffic, for example.
In addition, another CEQA requirement that comes to bear in this particular situation is that unless "cumulative" impacts are assessed at the ordinance level, they can never really be assessed at the project level, once the ordinance creates a "by right" or even a conditional-use legal framework.
Please note: per CEQA Title 14, Chapter 3, Article 5, Section 15065(a)(3):
"The project has possible environmental effects that are individually limited but cumulatively considerable. “Cumulatively considerable” means that the incremental effects of an individual project are significant when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects." [Emphasis added]
Accordingly, a proper assessment of potential adverse impacts of all types required has to consider not just the redevelopment of the hotels that exist, but the potential for future hotel development on other sites that qualify for hotel development. The impacts requiring assessment include the full range of those listed under CEQA (e.g., traffic, air quality, biological, flooding, runoff, etc.).
Please consider that there is significant case law against claiming the 15061(b)(3) exemption in this situation. In Davidon Homes v City of San Jose, 1997, which is particularly on point, the state court held that
"a mere recitation that a project will not impact the environment is not enough to avoid an environmental review pursuant to the California Environmental Quality Act when reasonable arguments that an adverse impact will occur have been made. " [Emphasis added].
The court further held that
"although respondent made such a statement in the preamble to the new ordinance, there was no factual basis for that statement, and that the issue should have been addressed when the appellant [in this case the public] made a reasonable argument that environmental concerns existed." [Notation and emphasis added].
"The exemption can be relied on only if a factual evaluation of the agency's proposed activity reveals that it applies. (Davidon Homes v. City of San Jose, supra, 54 Cal.App.4th at p. 114.)'" [Emphasis added]
I cite this seminal case (among others) because this is precisely what the Staff Report to the Planning Commission did: it recites the regulatory language as a "finding" without any basis of fact, evidence, or assessment or independent analysis, whatsoever.
As such, if anyone raises a reasonable argument (as broadly defined under existing case law) that "environmental concerns" of any kind (flooding, traffic, air quality, biological, etc.) exist or may exist as a result of the ordinance, a CEQA process must be undertaken, and such a challenge would put this ordinance back to square one.
I would have to argue that the "reasonable argument" test if not a difficult one to make in this case.
In addition, there is no practical way to enforce the Staff's "5th" proposal requiring project-specific CEQA processes on individual projects, after the fact. Since state law trumps local law, I could foresee applicants challenging that provision by claiming that if the ordinance was exempt under CEQA for the entire city at the "program" level (because it claimed there was "certainty" about no environmental impacts), the developer's proposal must certainly be exempt at the project level.
Therefore, even if we disregard the impropriety of Town claiming the 15061(b)(3) exemption on its face, as a practical matter, it's important to comply with CEQA at the ordinance level first, and then by reference that required compliance again at the project level, again, based on its own unique facts and circumstances.
On that topic, might I suggest that the new hotel ordinance regulations be applied as a "conditional use" in the appropriate zones. This will provide the Town with the most latitude in dealing with future unintended consequences, including but not limited to changes in state law.
I suggest this because when one looks at all the potential sites for hotels this ordinance could create, the Town might want to retain the discretion of being able to simply say, at some future date, that you just don't want any more new hotels, as a matter of planning policy.
Equally, we should always bear in mind that
"[t]he foremost principle under CEQA is that the Legislature intended the act 'to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.' " (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 390 [253 Cal. Rptr. 426, 764 P.2d 278].)
Finally, all of this leads to another argument that could surely come to bear. In Topanga Assn. for a Scenic Community v. County of Los Angeles (“Topanga”) (1974) 11 Cal. 3d 506, 517-518, the California Supreme Court found that citizens may expect uniform and clearly delineated standards within each individual zoning district. The lack of a CEQA process at the zoning ordinance level opens the door for developer arguments that make future outcomes much less certain.
The Town’s response
The response I’m used to getting from most Marin cities and certainly from Marin County is either no response at all or some form of “Thank you for your comments,” which translated means, “Go away. We don’t care what you think.” This is usually followed by a protracted period of government agencies digging in their heels until legal action is threatened or taken against them.
Imagine my surprise then when the response from Corte Madera could not have been more instantaneous and cordial. I was invited to meet with the Adam Wolff and Town Manager Todd Cusimano to discuss the issues I’d raised. And not only did that meeting take place soon after, but the discussion was candid, open, and productive.
The result was agreement that a proper CEQA process would be undertaken, which will include an Initial Study followed by environmental assessments under either a Mitigated Negative Declaration or a full EIR.
The Planning Department’s Staff Report that was presented to the Council on August 19th, reflect the results of our meeting and last night the Town Council directed staff to proceed with an Initial Study to begin the environmental review process.
I honestly can’t say that I’ve ever had any city in Marin react this reasonably on any issue, in my 20+ years of community advocacy. And for that, I’m both relieved and grateful. 99 percent of the time, government agencies could avoid legal consequences by just taking a little time in the beginning to get things right.
I can think of a long list of other agencies and legislative bodies that could learn a lot from Corte Madera's example here.
A good result
I’m not claiming that somehow everything has changed and I know many residents who’ve dealt with the town, on a variety of issues, who remain deservedly dissatisfied. And it remains a concern that a private citizen's group has to be the one's to correct a city on the legality of their actions -- something their town counsel should be doing.
But, perhaps it’s a start we can build upon or at least it sets a new standard we can point to in the future. And, in this case, the environmental review process to advance the proposed hotel ordinance will now be required to include adequate assessment of potentially significant, unmitigated impacts, which would include cumulative impacts on traffic, air quality, etc.
This CEQA compliance process will take time and offers the public multiple opportunities to comment on its findings. It also offers public remedies should the impact assessments turn out to be inadequate.
That said, the ball is also now in the public’s court to stay involved. However, Corte Madera has raised the bar a notch for how Marin cities and our County can and should work with community input.
For that, they deserve to be commended.
I’m not a Corte Madera resident, I feel the particulars of the ordinance are
best left to Corte Madera residents, Town Planning, and the Town Council. My input
has primarily been about State Law, and CEA requirements, in particular.
However, I would like to add a few comments.
Hotels are a good use for Marin County cities. They add vibrant commerce and support the tax base. There is ample demand and so, having a clear ordinance in place is a good thing.
In my discussions with Adam Wolff, we talked about having some type of provisions in the ordinance that would preclude “clustering” of too many hotels in one location, which will now be incorporated in some form. We also discussed the Town's commitment that regardless of which CEQA approach is undertaken at the “program” / ordinance level (either Mitigated Negative Declaration or EIR), proper CEQA environmental assessments will still be required at the “project” level for each proposed hotel.
This is an important issue to watch and make sure ends up on the final draft of the ordinance.
Finally, I support the proposal to offer incentives for “public benefits.” Historically this has been defined as a fountain or park. But in today's world, great architectural design, environmental sensitivity, and zero carbon engineering should also be considered major public benefits.
If you support the work of Community Venture Partners in communicating the concerns of the community to public agencies, please donate to CVP to help fund legal costs.
Bob Silvestri is a Mill Valley resident and the founder and president of Community Venture Partners, a 501(c)(3) nonprofit community organization funded only by individuals in Marin and the San Francisco Bay Area.