ABSTRACT: On December 6, 2006, the City of Carmel-by-the-Sea & City Council of Carmel-by-the-Sea (Respondents) filed a RETURN TO PEREMPTORY WRIT OF MANDAMUS pursuant to Monterey County Superior Court’s Amended Judgment Granting Petition for Writ of Mandamus, August 10, 2007. Council for Respondents (City Attorney Don Freeman) wrote of the City’s compliance with the judgment. Additionally, included was the Declaration of Bernard Martino, Building Maintenance Manager. Martino’s Declaration covered maintenance and upkeep to Roof, Electrical, Plumbing & Drainage, Vegetation, Chimney, Pest, Cleaning, Miscellaneous Repairs and Security. Comments are presented regarding Building Maintenance Manager Bernard Martino’s Declaration.
AMENDED JUDGMENT GRANTING PETITION FOR WRIT OF MANDAMUS
August 10, 2007
Summary:
1. Violation of CEQA
Alternative 2, lease option, not been shown to be infeasible.
“Even if Alternative 2 would be more costly to the City, absent substantive evidence in the form of an economic analysis that most project objectives could not feasibly be accomplished via lease of the property, Alternative 2 is not legally infeasible and project cannot be approved.”
(Citizens of Goleta Valley v. Board of Supervisors (1988) 197 Cal.App.3d 1167; Preservation Action Council v. City of San Jose (2006) 141 Cal.App.4th 1336.)
2. Demolition by Neglect
Violation of Municipal Code, 17.32.210 Maintenance and Upkeep.
3. Parkland Status
Flanders Mansion is parkland as a matter of law; cited Government Code sections 38440-38462 (parkland) and 54220-54222 (surplus land).
RETURN TO PEREMPTORY WRIT OF MANDAMUS
(Filed December 6, 2007)
Selected excerpts and paraphrased material, as follows:
Donald G. Freeman, Esquire
California State Bar Member No. 47833
Counsel for Respondents, City of Carmel-by-the-Sea & City Council of Carmel-by-the-Sea
Pursuant to Court’s Amended Judgment Granting Petition for Writ of Mandamus, August 10, 2007
City Council, on November 6, 2007, passed Resolution rescinding Resolutions 2005-55, 2005-56, 2005-57 & 2005-58.
Respondents will undertake further review of the proposed use and potential disposition of the Flanders mansion parcel under California Environmental Quality Act (CEQA). During the additional CEQA review, both sale and lease options will be furthered considered.
Respondents are maintaining the property and avoiding further significant deterioration of the property as described by Bernard Martino, Building Maintenance Manager, Declaration.
Should Respondents after further CEQA review determine to sell the property; Respondents will comply with Government Code sections 38440-38462 (parkland). If voters approve sale, Respondents will abide by Government Code sections 54220-54222 (surplus land).
Susan Brandt-Hawley, attorney for Flanders Foundation, accepted Freeman’s offer to view Flanders Mansion property, inside and out, and provide comment on areas and specific items of concern. Brandt-Hawley accepted offer; tour will be scheduled in January 2008. Court also invited at that time.
DECLARATION OF BERNARD MARTINO IN SUPPORT OF RETURN TO PEREMPTORY WRIT OF MANDAMUS (6 pages)
Bernard Martino, City of Carmel-by-the-Sea Building Maintenance Manager; responsible for regular inspections and maintenance of Flanders Mansion parcel and oversees outside contractors work.
“Due to budget constraints,” the staff in my section has been reduced from three people to one, me. The Public Works staff has been reduced from ten people to four and forestry department from eight to three people.
Visits Flanders Mansion property 1-2 times per month; checks building conditions, interior and exterior, grounds, makes temporary and permanent repairs.
“It is more extensive renovation work that is not feasible and awaits the final decision on ultimate disposition of the Flanders Mansion property.”
• Roof
Inspect exterior and interior for roof leaks; in past, water leaks fixed by having roof tiles removed, new membrane and battens installed, counter-flashing resealed and tile re-installed. The roof company has replaced broken and missing tiles on roof of main building and storage shed. No hole in roof where light or sky (or rain) comes through to the interior structure.
• Electrical
Problems with shorts are capped off; the electrical wiring in problem areas and breakers turned off. All electrical and lighting outlet plates in place. Power is kept “on” for light and alarm system, include fire alarm.
• Plumbing & Drainage
The water is kept “on,” which prevents gas build-up in the lines and building. Check water flow; look for leaks or drainage problems. Check basement for water; if leak discovered, patch and remove water.
• Vegetation
Garden, Forest & Landscape Service comes regularly to maintain grounds in a “well-kept appearance,” including plant material, ivy, planter beds, turf areas, walkways and driveway. Contract includes work for pruning, porches, walkways, sweeping/blowing driveway, maintaining fire safety zone, mowing, etc.
• Chimney
Inspected and swept every few years. One chimney crack in roof re-flashed and re-tiled.
• Pest
Inspections regularly. Property treated for vermin or insects inside, as needed. Not being heated, as a result mildew appears which is cleaned. No indication of hazardous black mold. Evidence of dry rot in wood of back side porch, patio bench and a wall panel near kitchen sink, solution is reconstruction of removed sections, not performed.
• Cleaning
Cleaning company, as directed when needed for general cleaning of interior, including windows.
• Miscellaneous Repairs
Check perimeter of building and interior for damages.
Broken windows replaced.
Old wood block (dry rot) underneath side porch replaced with new wood block underneath side porch.
Rain gutter re-attached to downspout
Storage shed; wall cracked and bowed-in. No solution but tear down and reconstruct shed.
Door re-hung.
Debris cleaned out of shed.
• Security
Police Department regularly patrols and responds to calls; visited Flanders Mansion at least 43 times for area checks or response to calls between March 30, 2006 and October 9, 2007.
Understand maintenance and repair per Municipal Code 17.32.210; “as necessary to prevent further significant deterioration.”
Dated December 5, 2007
COMMENTS:
• Building Maintenance Manager Bernard Martino declared, “Due to budget constraints,” the staff in my section has been reduced from three people to one, me. The Public Works staff has been reduced from ten people to four and forestry department from eight to three people. To avoid misleading the Court and readers, to the phrase, “due to budget constraints,” should be added “budget constraints self-imposed by the City Council and unrelated to a lack of revenue as the City of Carmel-by-the-Sea has an annual budget of $13 million (the highest per capita spending of any city in Monterey County) and nearly $9 million dollars in reserves funds.”
• Contrary to Bernard Martino’s declaration about the water to Flanders Mansion kept “on,” the water to the building was turned “off” several months ago at the site of the water meter next to the driveway.
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