ABSTRACT, ANALYSIS & SUMMARY: FLANDERS FOUNDATION vs. CITY OF CARMEL-BY-THE-SEA ET AL.

National Register of Historic Places Flanders Mansion
View of Roof Condition
Mission Trail Nature Preserve
Carmel-by-the-Sea, CA.

SUPERIOR COURT OF CALIFORNIA, COUNTY OF MONTEREY

THE FLANDERS FOUNDATION, Petitioner

CITY OF CARMEL-BY-THE-SEA and
CITY COUNCIL OF CARMEL-BY-THE-SEA et al.

Case No.: M76728
Intended Decision

ABSTRACT: Honorable Robert A. O’Farrell, Judge of the Superior Court, issued his “Intended Decision,” dated Wednesday, February 21, 2007. Judge O’Farrell’s Intended Decision granted Flander’s writ of mandate as set forth in a 22 page decision. The Disposition ordered the City of Carmel-by-the-Sea to “implement, without delay, reasonable interim measures necessary to avoid further significant deterioration of the Mansion.” The Court further ruled that “the Mansion parcel, zoned P-2, is parkland and Carmel must comply with the government Code if it sells parkland.” Most importantly, the Court ruled that it “disagrees with Flanders position that Carmel must adopt Alternative 2 (lease of the property). However, the Court agrees that Alternative 2 cannot be rejected unless evidence in the form of an economic analysis is presented to show that leasing the property would be infeasible.”

ANALYSIS: For the City Council to proceed with the sale of the Flanders Mansion property, the City Council must commission an “economic analysis.” Furthermore, the “economic analysis” must present evidence that “the additional costs or lost profitability are sufficiently severe as to render it impractical to proceed with the project” for a legal determination to be made that the City can then proceed with the sale process of the Flanders Mansion property. If that legal determination is made, then the City would be obligated to comply with the Surplus Land Act and comply with Government Code Sections 38440-38462, which potentially involves a City Council Resolution discontinuing the use of the land as a public park, Notices, Hearings, Protests, Vote of the City Council to Overrule Protests, Ordinance setting a date for a Special Election and ultimately a vote of the people of Carmel-by-the-Sea.

SUMMARY: Sections of “Intended Decision” include Background, Administrative Record, Judicial Notice, Standard Review and Discussion.

Discussion
(A). Prefatory issues
(1) CEQA project and exemption issue
“Carmel has not pointed to any portion of the record where Carmel determined that the sale of the Mansion was not a project or made any findings in this regard...”
(2) Park issue
“Carmel’s decision to sell the Mansion is an 'approval' of a 'project.' Environmental review was not meaningless. Carmel’s action of selling the Mansion could have a significant effect on the Mansion (improved parkland) and the surrounding park.”

(B). Demolition of the Mansion by Neglect
Cited Section Carmel-by-the-Sea Municipal Code Section 17.32.210
“It is clear that the Carmel Municipal Code requires Carmel to preserve the Mansion 'against decay and deterioration' and Carmel has failed to keep the Mansion 'in a state of good repair and free from structural defects.'”

(C) CEQA issues
(1) Alternative analysis
“The Court disagrees with Flander’s position that Carmel must adopt Alternative 2. (Alternative 2, lease of the property) However, the Court agrees that Alternative 2 cannot be rejected unless evidence in the form of an economic analysis is presented to show that leasing the property would be infeasible.”

“The law requires financial evidence in the form of an economic analysis, followed by findings regarding feasibility based upon that evidence.”

“...to show that the alternative is financially infeasible. What is required is evidence that the additional costs or lost profitability are sufficiently severe as to render it impractical to proceed with the project.”

“In order to approve a project that would have a significant environment impact, the City was required to make findings identifying (1) the ‘specific...considerations’ that ‘make infeasible’ the environmental superior alternatives and (2) the ‘specific...benefits of the project which outweigh the environmental harm.”

Carmel did not make findings ‘identifying’ (1) and (2)...

“City Planner Brain Roseth reiterated that Carmel has ranked the retrofit of the firehouse as the most important potential use of the funds from the sale of the Mansion. Second was upgrading the Forest Theater, third, Scout House, fourth, a new roof on the Public Works buildings and fifth, storm drain improvements and finally debt reduction." (Note: Debt, in 2004, estimated $9 million)

“Rich Guillen told the Mayor and council that the approved budget had close to 1.1 million dollars of deferred maintenance and an additional $909,000 that is not funded going out fiscal year 2006-2007 and 2007-2008." (Note: Estimated cost of rehabilitating Flanders Mansion $1.5 – 2.0 million, not included.)

“The testimony of Roseth and Guillen, without studies and reports in support of an economic analysis does not constitute evidence that Alternative 2 is economic infeasible.”

(2) Statement of Overriding Considerations
“Carmel has not demonstrated that Alternative 2 is infeasible...”

(3) Inadequate and incomplete responses to comments
(a) Messinger comments
(b) Flanders comment regarding the use of the funds from the sale
(c) Flander’s comment regarding mitigation if a subsequent owner sells or leases the property
The Court determined that the city responded adequately to comments.

(4) Deferred mitigation measures issue
“The Court finds that Petitioner has failed to establish that Carmel has improperly deferred mitigation issues.”

(5) Government Code issues
(a) Government Code 38440-38462
“...the Court has determined that the Mansion parcel, zone P-2, is parkland and Carmel must comply with the Government Code if it sells parkland.”

(b) Government Code 54220-54222
“The City Council apparently made no determination whether the Mansion was or was not surplus property and Carmel has not compiled with the Surplus Land Act.”

(c) Government Code 65000 et seq.
“The Court finds no abuse of discretion in Carmel’s determination of consistency.” (i.e. consistency with the General Plan)

Disposition
"Flander’s writ of mandate is granted as set forth above. Additionally, the Court orders the City to implement, without delay, reasonable interim measures necessary to avoid further significant deterioration of the Mansion."

"The Court directs the attorney for Flanders to prepare an appropriate judgment consistent with this ruling, present it to opposing counsel for approval as to form, and return it to this court for signature."

Dated: February 21, 2007

HONORABLE ROBERT A. O’FARRELL
Judge of the Superior Court