On Thursday, 11 January 2007, the Writ of Mandate Hearing for Flanders Foundation vs. City of Carmel-by-the-Sea et al. was held in the Monterey courtroom of Judge Robert A. O’Farrell. Attorney Susan Brandt-Hawley represented Flanders Foundation and Special Counsel William B. Conners represented the City of Carmel-by-the-Sea. The oral presentations were based on the voluminous 2000 page administrative record. The case entails three issues.
I. The City’s Violation of Carmel-by-the-Sea Municipal Code Section 17.32.210 Maintenance and Upkeep, Minimum Maintenance; “Demolition by Neglect”
Attorney Brandt-Hawley alleged that the City of Carmel-by-the-Sea is in violation of the municipal code with respect to the minimum maintenance required for historic resources. She asked Judge Robert A. O’Farrell for an immediate order demanding the City comply with the municipal code to prevent “demolition by neglect.”
Special Counsel Conners argued that the City is not in violation of the municipal code because 17.32.210 is not mandatory, rather it is directory; that is, the word “shall” does not mean mandatory, but discretionary. Furthermore, he argued that since the city’s building official had not inspected, nor amassed a list of deficiencies, as required by the code, the city had not violated the municipal code.
II. The City’s Violation of the California Environmental Quality Act; specifically deficiencies in the Environmental Impact Report, ex. no findings for lease option, mitigation measures, response to comments.
Special Counsel Conners argued that the Final Environmental Impact Report erroneously concluded that the lease option would be the environmentally superior option; the environmental consulting firm of Denise Duffy & Associates was unaware of the condition of sale and therefore did not consider the conditions of sale relative to the lease versus sale option.
III. The City’s Violation of California Government Code 38440-38462 and the City’s General Plan
Attorney Brandt-Hawley alleged that the City of Carmel-by-the-Sea did not follow California Government Code 38440-38462 regarding the procedures for the selling of “parkland;” specifically, the City Council failed to adopt a resolution declaring that the public interest or convenience required the discontinuance of the land as a public park, the City Council failed to hold a protest hearing, the City Council failed to overrule the protests by 2/3 vote and adopt an ordinance setting a date for a special election to submit to voters the proposed sale of the National Register of Historic Places Flanders Mansion on 1.25 acres within Mission Trail Nature Preserve. And Attorney Brandt-Hawley stated that the City allegedly violated the General Plan with regard to maximizing public access to a public park.
Special Counsel Conners argued that the City is under no obligation to follow California Government Code 38440-38462 because the Flanders Mansion has always been used as a Single Family Residence. And a single family residence is not a park, even if the land is zoned P-2 “improved parkland.”
Note: The case was originally filed on 3 November 2005. After nearly 2 ½ hours, at the end of the hearing, Judge Robert A. O’Farrell announced that he would take it under submission; he is expected to issue his decision within 90 days.
3 comments:
Historically, since 1972, the city's Forestry,Public Works and Building Dept. maintained the mansion building and grounds expending budgeted funds from their budgets to maintain and repair the building. In later years these city departments continued this effort and expended significant funds from their budgets and additional funds from the annual capital maintenance budget account called Facility Improvements. All funds expended were authorized during each monthly city council meeting when they officially approved the city's monthly check register of bills paid.
The Flanders Mansion official tenants rental agreement contract,drafted by the city's attorney, contains a clause that allows use of the Flanders Mansion a minimum of four times annually for public purposes or special community events.
In other words the Mansion is part of the park operations.
Historically, since 1972, the city's Forestry,Public Works and Building Dept. maintained the mansion building and grounds expending budgeted funds from their budgets to maintain and repair the building. In later years these city departments continued this effort and expended significant funds from their budgets and additional funds from the annual capital maintenance budget account called Facility Improvements. All funds expended were authorized during each monthly city council meeting when they officially approved the city's monthly check register of bills paid.
The Flanders Mansion official tenants rental agreement contract,drafted by the city's attorney, contains a clause that allows use of the Flanders Mansion a minimum of four times annually for public purposes or special community events.
In other words the Mansion is part of the park operations.
My impression is the City's attorney is not the sharpest knife in the drawer. Here's to a win for Susan Brandt-Hawley, Flanders Foundation, et al....
Post a Comment