Special Counsel William B. Conners: “what law created a duty on the part of the city”

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

Last week, in a formal objection to Judge Robert O’Farrell’s decision in Flanders Foundation vs. City of Carmel by the Sea, et al, Special Counsel William B. Conners wrote on demolition by neglect, as follows:

“There should be factual findings establishing what law created a duty on the part of the city, what that duty entailed, and what appeal or review of that duty exists to protect the city from arbitrary complaints.”

Reference:
Carmel-by-the-Sea
Municipal Code

Chapter 17.32
HISTORIC PRESERVATION

17.32.210 Maintenance and Upkeep.
A. Minimum Maintenance.
1. All resources included in the inventory shall be preserved against decay and deterioration, kept in a state of good repair and free from structural defects. The purpose of this section is to prevent an owner or other person having legal custody and control over a property from facilitating demolition of a historic resource by neglecting it and by permitting damage to it by weather and/or vandalism.

2. Consistent with all other State and City codes requiring that buildings and structures be kept in good repair, the owner or other person having legal custody and control of a property shall repair such building or structure if it is found to have any of the following defects.
a. Building elements so attached that they may fall and injure members of the public or property.

b. Deteriorated or inadequate foundation.

c. Defective or deteriorated flooring.

d. Members of walls, partitions or other vertical supports that split, lean, list or buckle due to defective material or deterioration.

e. Members of ceilings, roofs, ceilings or roof supports or other horizontal members which that sag, split or buckle due to defective materials or deterioration.

f. Fireplaces or chimneys that list, bulge or settle due to defective material or deterioration.

g. Deteriorated, crumbling or loose exterior plaster.

h. Deteriorated or ineffective waterproofing of exterior walls, roofs, foundations or floors, including broken windows or doors.

i. Defective or lack of weather protection for exterior wall coverings, including lack of paint, or weathering due to lack of paint or other protective covering.

j. Any fault, defect or deterioration in the building which that renders it structurally unsafe or not properly watertight.

3. If the Building Official determines that a historic resource or any other property is being neglected and subject to damage from weather or vandalism, the Director and/or Building Official shall meet with the owner or other person having legal custody and control of the historic resource to discuss with them ways to improve the condition of the property. If no attempt or insufficient effort is made to correct any noted conditions thereafter, the Building Official may issue a notice to comply requiring the owner or other person having legal custody and control of the historic resource to take action to require corrections of defects in the subject property in order that such historic resource may be preserved in accordance with this section.

B. Protection of Deteriorated, Vacant and Vandalized Resources.
1. The Building Official shall have the authority to issue an order to comply to any owner of any property included in the inventory if the Building Official determines that the property has become subject to vandalism or constitutes a public nuisance. In such circumstances, the Building Official shall have the authority to issue any order deemed appropriate to keep the property from being further vandalized or from becoming a public nuisance including, but not limited to, ordering that the building be secured and fenced.

2. For the purposes of this provision, the property shall include the interiors and exteriors of any accessory building located on a property in the inventory.

3. Security measures that the Building Official may order shall include, but not be limited to, the following:
a. The installation of the maximum allowed height, under this code, chain-link perimeter fencing with at least one securely locked pedestrian gate and the posting of “No Trespassing” signs at regular intervals.

b. Steel or plywood closures, with one-inch diameter air holes, installed at all doors and windows. (Sandwich panel installation shall be used so as to avoid drilling into window frames and sashes, doors, ornament or masonry units.)

c. The removal of all debris from the premises, including but not limited to wood, paper, cans, bottles and fecal matter.

d. Any temporary modifications required to be made to secure the building shall be reversible.

4. Any plans or proposals for work required to be performed pursuant to an order to comply to secure any building from being further vandalized or from becoming a public nuisance must first be reviewed by the Department and the Building Official to ensure that any work done to secure the building will not damage or alter the historic character of the building. This review by the Department and the Building Official shall be completed within 10 working days from the date any request for review is submitted. If the work to be performed includes substantial alteration, the procedures set forth in this section shall be utilized for review.

5. Nothing herein shall be interpreted to prohibit an owner from taking immediate temporary measures to secure a building from unauthorized entry.

6. It shall be unlawful for any property owner to fail to comply with any order to comply issued by the Building Official under this provision.

7. Additional Remedies – Notice of Intention. In addition to the remedies provided by this code, should an owner fail to comply with an order to comply, the City may take the necessary measures, including those authorized under this code, to immediately secure the property against vandalism or prevent it from becoming a public nuisance. The City shall have the authority to assess the cost of performing this work as a lien against real property on which the building is located and take whatever additional action the City deems necessary to recover its costs and further secure the property and provide for its preservation. Prior to taking these measures, the City shall send a notice of intention to the owner. (Ord. 2004-02 § 1, 2004; Ord. 2004-01 § 1, 2004).

NOTES:
Definitions: The word 'shall' implies a mandatory statement, the word 'should' implies an advisory statement, and the word 'may' implies the right to use discretion. Carmel-by-the-Sea’s Municipal Code contains innumerable uses of the word “shall;” if “shall” in Chapter 17.32 HISTORIC PRESERVATION 17.32.210 Maintenance and Upkeep does not mean “mandatory,” then the entire city municipal code is discretionary.

COMMENT:
Not only is it a sad realization that the mayor and city council members of Carmel-by-the-Sea view the National Register of Historic Places Flanders Mansion as nothing more or less than as a multimillion dollar property to sell into private ownership, but they have instructed Special Counsel William B. Conners to file a formal objection to Judge Robert O’Farrell’s decision, specifically Judge O’Farrell’s ruling that the city is obligated to maintain Flanders Mansion. Simply put, the city fails to comply with the city’s Municipal Code with respect to the maintenance and upkeep of a historic resource, a superior court judge rules the city must maintain the Flanders Mansion, and the city then arrogantly denies it has to obey the city’s own laws.