Thursday, December 24, 2009

MERRY CHRISTMAS TO ALL, AND TO ALL A GOOD NIGHT!

ABSTRACT: Photos of Aaron’s 2009 “Merry Christmas” Canine Tree, Mission Trail Nature Preserve, are presented. Users of Mission Trail Nature Preserve wrote the names of their canine companions on ornaments and hung them on Aaron’s “Merry Christmas” Canine Tree. Names of canine companions on the ornaments include, but not limited to, the following names:
Abby & Otis, Allie, Amy, Angel, Bailey, Bear, Berkeley, Bee, Blaise, Blue, Brandy, Brindle, Buffy, Calypso, Casey, Charlie, Chico, Cibo, Cinder, Clancy, Cobblestone, Coda, Conner & Sadie, Daisy, Davy, Duke & Moses, Emily, Fletch, Gabi, George, Ginger, Gracie, Gus, Harvey, Heidi, Herman, Hilby, Hunter, Jake, Joey, Jordan, Karley, Katie, Kodi, Koda, Lili & Rose, Lily Walthour, Lexie & Sierra, Lola, Lotus, Lucy, Mariah, May, Megan, Micki, Mimi, Misty, Murphy, Nikki, Peanut, Peluche, Prissy, Pumper, Punkin, Rascal, Raven, Riley, Roxy, Sam, Sandy, Snowbear, Solo, Stoney, Tess, Tiger, Tillie, Tippy, Toby, Tucker, Waldo, Willy and Zeke.

Aaron’s “Merry Christmas” Canine Tree
In memory of Aaron
Mission Trail Nature Preserve, Serra Trail
View of Ornaments
Aaron’s “Merry Christmas” Canine Tree
View of Lid of Bucket containing Ornaments
Next to Aaron’s “Merry Christmas” Canine Tree

Monday, December 21, 2009

COMMENTARY Carmel-by-the-Sea’s Soft Tyranny: ‘Team’ Dictatorship, Illegal Actions & Gross Mishandling of Complaints

FACT: If incumbents Mayor Sue McCloud, Council Member Paula Hazdovac and Council Member Gerard Rose are re-elected and serve their terms, they will have served for twelve years, twenty years and fourteen years, respectively.

In a village with a populace of diverse experiences and knowledge bases, for three elected representatives to a city council to have collectively served for forty-six years as a “team” is an unnecessary form of dictatorship. Moreover, the incumbent council members, principally the incumbent mayor, have injected into the DNA of the populace the idea that only they, as a “team,” can govern the City of Carmel-by-the-Sea. This “team” concept has had the effect of discouraging and intimidating more worthy potential candidates from seeking office in Carmel-by-the-Sea.

Mayor Sue McCloud recently reiterated her campaign slogan of past election campaigns, “if it ain’t broke, don’t fix it.” Unfortunately, the slogan does not comport with reality. Consider the following:

FACT: As our elected representatives, Mayor Sue McCloud, Council Member Paula Hazdovac and Council Member Gerard Rose violated state and municipal laws involving the sale of the Flanders Mansion Property in 2005.

Moreover, a pending lawsuit against the City raises credible arguments and issues involving the City Council’s actions in the most recent sale process of the Flanders Mansion Property.

FACT: Council Members Paula Hazdovac and Gerard Rose have known for years about then Planning Commissioner Sue McCloud’s violation of the Brown Act, the resultant consequence of her not being reappointed to the Planning Commission; and the fact that Sue McCloud's resultant animus towards John Mandurrago are the crux of developer and designer John Mandurrago’s assertions of violations of his constitutional rights.

Furthermore, credible evidence from two pending lawsuits against the City suggests that Sue McCloud misused her mayoral office to violate laws with regard to John Mandurrago’s Plaza del Mar project.

FACT: At the 7 October 2008 City Council meeting, Mayor Sue McCloud, Council Member Paula Hazdovac and Council Member Gerard Rose, voted to approve a Resolution adopting the employment agreement between the City of Carmel-by-the-Sea and Richard I. Guillen, City Administrator, which retroactively increased City Administrator Rich Guillen’s salary and benefits. This action was done with the full and complete knowledge of Human Resources Manager Jane Miller’s complaints involving sex-based and age-based employment discrimination, sexual harassment and retaliation by the City and specifically City Administrator Rich Guillen.

Furthermore, not only was City Administrator Rich Guillen not placed on administrative leave pending resolution of Jane Miller’s legal complaint, but the mayor demeaned a 10-year city employee with her dismissive public comments. Finally, Carmel-by-the-Sea taxpayers can realistically anticipate a large settlement or monetary verdict to on-leave Human Resources Manager Jane Miller.

In short, with each passing year, the current “team” of entrenched incumbents has acted in ways which demonstrate that they have lost sight of the fact that they, our public servants, are obligated to abide by the law and behave in an ethical manner. Their long record of placing the interests and agenda of the “team” above the law and ethics is reason for Carmelites to recognize that the “team” is a soft form of tyranny where criticisms of performance are purposely and willfully mischaracterized as hostile and disrespectful personal attacks and dissent is not respected, encouraged or viewed as critical to making Carmel-by-the-Sea a dynamic and vital community.

Friday, December 18, 2009

DENIED: City’s Motion to Disqualify Attorney Michael Stamp from Representing On-Leave Human Resources Manager Jane Miller

Today, after hearing oral arguments from Suzanne Solomon, attorney for Defendant/Respondent City of Carmel-by-the-Sea and Michael Stamp, attorney for Plaintiff/Petitioner on-leave Human Resources Manager Jane Miller, Judge Larry E. Hayes denied the City’s motion to disqualify attorney Michael Stamp from representing Jane Miller in her lawsuit against the city alleging age-based and sex-based employment discrimination, sexual harassment and retaliation. Highlights include, as follows:

Judge Larry Hayes found “extreme delay causing extreme prejudice.”

Judge Larry Hayes characterized the claims of City Administrator Rich Guillen, and especially the claims of City Attorney Don Freeman, regarding attorney Michael Stamp's representation of city employees, “disingenuous.”

Between 2003 and 2008, when attorney Michael Stamp represented four senior management employees, the City never even suggested to him a “conflict.”

Attorney Michael Stamp’s legal advice to the City regarding the City’s sexual harassment policy was limited to making comments on the policy about 15 years ago. Moreover, that sexual harassment policy has since been superseded by another sexual harassment policy written by another attorney.

The destruction of certain records by the City was with the knowledge and approval of City Attorney Don Freeman.

Judge Larry Hayes underscored the disparate financial resources of the City compared to one, lone petitioner.

Lastly, Judge Larry Hayes scheduled the Case Management Conference for April 2, 2010 @ 8:45 A.M., Department 4.

NOTE: Official Court Minutes as soon as available.

COMMENT:
In filing its motion to disqualify attorney Michael Stamp from representing Jane Miller, the City succeeded in delaying the legal process by three months thereby ensuring a hearing date post-Municipal Election 2010.

ADDENDUM:
Judge rejects Carmel's motion to disqualify attorney in Jane Miller case. Dec. 18, 2009 / Kera Abraham

Judge rejects Carmel's motion to disqualify attorney
Calls effort an attempt to derail harassment suit
VIRGINIA HENNESSEY, Herald Salinas Bureau, 12/19/2009

Tuesday, December 15, 2009

‘Further Proceeding’ Minutes: Miller, Jane Kingsley, Plaintiff/Petitioner vs. City of Carmel-by-the-Sea, Defendant/Respondent

ABSTRACT: ‘Further Proceeding’ Minutes (October 30, 2009) on the City’s Motion to Disqualify Plaintiff Jane Kingsley Miller’s Counsel Michael Stamp from representing her in Miller, Jane Kingsley, Plaintiff/Petitioner vs. City of Carmel-by-the-Sea, Defendant/Respondent (M99513), Superior Court of California, County of Monterey, are reproduced. Judge Larry E. Hayes continued to December 18, 2009 at 8:45 a.m., Courtroom 4, Salinas, for Further Argument on Motion to Disqualify Plaintiff’s Counsel.

SUPERIOR COURT OF CALIFORNIA
COUNTY OF MONTEREY


Miller, Jane Kingsley, Plaintiff/Petitioner vs. City of Carmel-by-the-Sea, Defendant/Respondent

Judge: Larry E. Hayes
Clerk: Lisa Cortez
CSR: Jeannette Jessup-Hiura – CSR#8573

Minutes: Further Proceedings
Date: October 30, 2009

Case No. M99513
Courtroom 4

Appearances:
Michael Stamp, Attorney for Plaintiff, Jane Kingsley Miller
Suzanne Solomon, Attorney for Defendant, City of Carmel-by-the-Sea

Case called for Further Arguments on Motion to Disqualify Plaintiff’s Counsel.

It is ordered documents referenced to in Camera on October 28, 2009 shall be made available for review by Michael Stamp and his legal team.

Any further response by Michael Stamp to be filed by November 9, 2009.

Court finds significant delay by the City of Carmel raising Prima Facia showing prejudice.

The City of Carmel to file any further declarations or Points and Authorities by November 17, 2009.

Points and Authorities on Standards of Prejudice to be filed by December 14, 2009.

Continued to December 18, 2009 at 8:45 a.m. in Salinas in Courtroom 4 for Further Argument on Motion to Disqualify Plaintiff’s Counsel.//

Wednesday, December 09, 2009

Attorney Susan Brandt-Hawley vs. Attorney Richard Harray

ABSTRACT: Monterey County Superior Court has continued the hearing for The Flanders Foundation v. City of Carmel-by-the-Sea, et al. (M99437) to Wednesday, February 10, 2010 at 9:00 A.M., Department 14, Judge Kay T. Kingsley presiding. Petitioner’s attorney is Susan Brandt-Hawley and respondent’s attorney is Richard Harray; Susan Brandt-Hawley specializes in “public-interest environmental cases,” whereas Richard Harray specializes in “the fields of business disputes, medical, legal and design malpractice, municipal law and employment issues.” Cases of Susan Brandt-Hawley and Richard Harray are presented with links to the cases; sources for the cases are the Brandt-Hawley Law Group website and the searchable California Appellate Court database.

Susan Lynne Brandt-Hawley - #75907

Susan Lynne Brandt began a general law practice in the Sonoma Valley in March 1979. What became the Brandt-Hawley Law Group now litigates public-interest environmental cases throughout California, with special focus on aesthetics, cultural landscapes, and historic resources.

Cases of Susan Brandt-Hawley of the Brandt-Hawley Law Group:

Supreme Court: 39 cases

1st Appellate: 51 cases

2nd Appellate: 22 cases

3rd Appellate: 16 cases

5th Appellate: 1 case

6th Appellate: 13 cases

Brandt-Hawley Law Group Cases:
California Supreme Court
2001 - Friends of Sierra Madre v. City of Sierra Madre, 25 Cal.4th 165

1999 - Sierra Club v. San Joaquin LAFCO, 21 Cal.4th 489

1994 - Public Resources Protection Association v. CDF, 7 Cal.4th 111

California Court of Appeal
2008 - Heritage Fresno and Friends of Old Armenian Town v. City of Fresno, unpublished C055298

2006 - Preservation Action Council v. City of San Jose, 141 Cal.App.4th 1336

2006 - 108 Holdings v. City of Rohnert Park, 136 Cal.App.4th 186

2005 - Lighthouse Field Beach Rescue v. City of Santa Cruz, 131 Cal.App.4th 1170

2004 - Lincoln Place Tenants Association v. City of Los Angeles, 130 Cal.App.4th 1491

2004 - Architectural Heritage Association v. County of Monterey, 122 Cal.App.4th 1095

2000 - Friends and Neighbors of Old Hollywood v. City of Los Angeles, unpublished B131537

1999 - Preservation Action Council v. City of San Jose, unpublished H019468

1997 - League for Protection v. City of Oakland , 52 Cal.App.4th 896

1997 - Galante Vineyards v. Monterey Peninsula Water District, 60 Cal.App.4th 1109

1996 - Stanislaus Natural Heritage Project v. County of Stanislaus, 48 Cal.App.4th 182

1992 - Sierra Club v. County of Sonoma, 6 Cal.App.4th 1307

Superior Court
2009 - Save Old Stockton v. City of Stockton, San Joaquin County Superior Court

2008 - Whittier Conservancy v. City of Whittier, Los Angeles County Superior Court

2008 - San Buenaventura Conservancy v. City of Ventura, Ventura County Superior Court

2007 - Flanders Foundation v. City of Carmel-by-the-Sea, Monterey County Superior Court

2007 - Save Tightwad Hill! v. University of California, Alameda County Superior Court

2007 - Friends of Griffin House v. Foothill-DeAnza Community College District, Santa Clara County

2007 - Eureka Heritage Society v. Eureka Unified School District, Humboldt County Superior Court

2006 - Save Our Heritage Organisation v. City of San Diego, San Diego County Superior Court

2000 - Friends of Carmel Cultural Heritage v. City of Carmel, Monterey County Superior Court

1998 - Pasadena Heritage v. City of Pasadena, Los Angeles County Superior Court

1996 - Preservation Action Council v. San Jose State University, Santa Clara County Superior Court

1994 - Friends of Douglass Hall v. Town of Atherton , San Mateo County Superior Court

1988 - The Bridge Club v. Caltrans, Sonoma County Superior Court

Federal Court
1995 - Aircraft Carrier Hornet Foundation v. U.S. Navy, Fed. District Court C-95-3702

1992 - North Oakland Voters Alliance v. Oakland, 1992 U.S.Dist. LEXIS 19033, 1992 WL 367096


Richard Keats Harray - #41978

Richard K. Harray
came to the Monterey Peninsula and practiced as a trial lawyer from 1968 to 2003 when he retired. He returned to active practice in December 2008, and is currently engaged in trial work, primarily in business disputes, corporate and partnership dissolutions and other complex litigation matters. He started his own firm in 1977 as Harray & Rosecrans and ultimately merged his firm with Kennedy & Archer in 2001. Mr. Harray litigates in the fields of business disputes, medical, legal and design malpractice, municipal law and employment issues. He is a graduate of Northwestern University (B.A. 1964) and Stanford Law School (LL.B. 1967). After law school he served as law clerk to Justice Roy Gargano, California Court of Appeal, 6th District. He has served as a judge pro tem, arbitrator and mediator. The American Board of Trial Advocates named him as an advocate in 1991. Mr. Harray is a member of the State Bar of California and is admitted to the U.S. District Court, Northern California.

Cases of Richard Harray:
Supreme Court: 1 case

6th Appellate: 20 cases

Monday, December 07, 2009

Case No. M99437: VERIFIED ANSWER OF RESPONDENT CITY OF CARMEL-BY-THE-SEA TO PETITION FOR WRIT OF MANDAMUS & AMENDMENT TO THE ANSWER: THIRD AFFIRMATIVE DEFENSE

ABSTRACT: Highlights of the VERIFIED ANSWER OF RESPONDENT CITY OF CARMEL-BY-THE-SEA TO PETITION FOR WRIT OF MANDAMUS, dated August 6, 2009, submitted by City Attorney Donald G. Freeman and A THIRD, SEPARATE DISTINCT AFFIRMATIVE DEFENSE AND PLEA OF RES JUDICATA, dated September 24, 2009, submitted by attorney Richard K. Harray, are presented.


VERIFIED ANSWER OF RESPONDENT CITY OF CARMEL-BY-THE-SEA TO PETITION FOR WRIT OF MANDAMUS

PERRY & FREEMAN
By Donald G. Freeman
Attorneys for Respondent
City of Caramel-by-the-Sea

Dated August 6, 2009

To paraphrase, most of the substantive allegations were “denied, each and every, all and singular, generally and specifically...”

WHEREFORE, the City prays for judgment against the Petitioner as hereinafter set forth:

AS AND FOR A SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, and as a plea of lack of jurisdiction, the City alleges that the Court lacks jurisdiction in that Petitioner failed to exhaust administrative remedies.

AS AND FOR A SECOND AND DISTINCT AFFIRMATIVE DEFENSE, the City further alleges that Petitioner’s actions fails to state facts sufficient to constitute a cause of action for violation of CEQA, for a writ of mandate of any other relief.


AMENDMENT TO THE ANSWER: THIRD AFFIRMATIVE DEFENSE

AS AND FOR A THIRD, SEPARATE DISTINCT AFFIRMATIVE DEFENSE AND PLEA OF RES JUDICATA, the Respondent alleges:

The case matter has been previously tried in the Court and a judgment entered in The Flanders Foundation v. City of Carmel-by-the-Sea, Amended Judgment Granting Petition for Writ of Mandamus, filed August 10, 2007. Except for the findings, “1. Violation of CEQA,” Amended Judgment, p. 2, 11.8. res judicata bars the reopening of this controversy and further litigation of all issues that were or could have been raised in the original suit.

Dated: September 24, 2009


KENNEDY, ARCHER & HARRAY

Richard K. Harray
Attorneys for Respondent
CITY OF CARMEL-BY-THE-SEA

Case No. M76728: AMENDED JUDGMENT GRANTING PETITION FOR WRIT OF MANDAMUS

ABSTRACT: For background, the AMENDED JUDGMENT GRANTING PETITION FOR WRIT OF MANDAMUS, dated August 10, 2007, by Honorable Robert A. O’Farrell, Judge of the Superior Court, is reproduced in its entirety.

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF MONTEREY


Case No. M76728


AMENDED JUDGMENT GRANTING PETITION FOR WRIT OF MANDAMUS

THE FLANDERS FOUNDATION, Petitioner,

v.

CITY OF CARMEL-BY-THE-SEA and CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA, Respondent


The Petition for Writ of Mandamus raised challenges under the California Environmental Qualify Act (CEQA), the Carmel-by-the-Sea Municipal Code, and the California Government Code, all in connection with the proposed sale of the Flanders Mansion by its owner, the City of Carmel-by-the-Sea.

The hearing on the merits of the Petition was held on January 11, 2007, in Department 14 before the Honorable Robert A. O’Farrell. Susan Brandt-Hawley of the Brandt-Hawley Law Group appeared on behalf of the Flanders Foundation. William B. Conners appeared on behalf of the City of Carmel-by-the-Sea and its City Council.

Upon considering the briefs, the certified and augmented record, and the oral arguments presented by counsel, the matter was submitted for decision. The Intended Decision, incorporated by reference as Exhibit A, was issued on February 21, 2007.

WHEREFORE, GOOD CAUSE APPEARING, the Petition is GRANTED. For the reasons explained in the incorporated Intended Decision and as well-documented in the administrative record and in the briefs filed by the Flanders Foundation:

1. Violations of CEQA. The proposed sale of the historic Flanders Mansion, listed on the National Register of Historic Places, is a discretionary project subject to CEQA. The project EIR certified by the City found that the sale would result in a significant environmental impact relating to the loss of pubic access to property zoned P-2 [Improved Parkland] and would impact the cohesive structure of the Mission Trails Nature Preserve. The City abused its discretion and violated CEQA because it failed to proceed in the manner required by law and approved the sale of Flanders Mansion when the potential lease of the Mansion, Alternative 2 in the EIR, is an alternative to sale and has not been shown to be infeasible. The City could not legally adopt a statement of overriding considerations without making supportable findings regarding the infeasibility of alternatives. Even if Alternative 2 would be more costly to the City, absent substantial 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 the project cannot be approved. (Citizens of Goleta Valley v. Board of Supervisors (1988) 197 Cal.App.3d 1167. 1181; Preservation Action Council v. City of San Jose (2006) 141 Cal.App.4th 1336, 1350, 1353-1357.)

In all other respects, the Petition’s claims for violations of CEQA are denied.

2. Demolition by Neglect. The Court finds that the Petition’s allegations regarding demolition by neglect are adequate and that members of the Flanders Foundation exhausted administrative remedies. The City is in ongoing violation of its mandatory duty to prohibit the demolition of an historic structure by neglect. (Municipal Code 17.32.210.) The Municipal Code requires that historic resources within City limits “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...from facilitating demolition of a historic resource by neglecting it and by permitting damage to it by weather and/or vandalism.” (Id. at 17.32.210(A)(1).) City-owned property is specifically subject to this provision of the Carmel Municipal Code. (Id. at 17.02.050.)

The Municipal Code delineates the “defects” to historic properties that “shall” be repaired, including “deteriorated or ineffective waterproofing" of building elements (such as broken windows and doors) and “[a]ny fault, defect or deterioration” that renders the building “structurally unsafe or not properly watertight.” (Id. at 17.32.210(A)(2).) The Code also contains provisions relating to “protection of deteriorated, vacant and vandalized resources.” (Id. at 17.32.210(B).)

The administrative record contains unequivocal admissions by City officials, in response to public concerns regarding demolition by neglect, that the City has failed to maintain the Mansion against decay and deterioration or in a state of good repair. Mayor Sue McCloud publicly conceded that “the City is in nonconformance with the Municipal Code because the home is not being maintained...” (AR6:1814.) Following a tour of the Mansion, attorney William B. Conners confirmed at public hearing that to his personal knowledge “...there are bats living in the mansion. There are holes in the roof large enough to see light through. Big light. There are major improvements that need to be made...” (Administrative Record (AR)5:1535.) Conners also noted that the Mansion “...is run down, boards are falling off... Inside, there’s water damage, holes in the walls, and…there’s evidence that kids have broken in and were camping in there...” (AR:5:1536.) City Planning Commissioners decried the fact that the Mansion was “so deteriorated,” that it had fallen “so bad into disrepair,” and that the “amount of damage” was “horrendous.” (AR6:1649.) City Principal Planner Brian Roseth explained in writing to the Mayor and City Council that “[t]he City is not in compliance” with the demolition by neglect provisions of the Municipal Code. (AR6:1701.) The City’s statement of overriding considerations accompanying its approval of sale recited that the Mansion has “fallen into a state of disrepair.” (Request for Judicial Notice, Exhibit C.)

The City’s Municipal Code requires the City’s Director of Community Planning and Building and/or the Building Official to determine what actions the City must take to repair an historic building to comply with the Code. (Municipal Code 17.32.210(A)(3).) The Department of Community Building and Planning and the Building Official must review plans or proposals for work needed to secure a building from vandalism or from becoming a public nuisance, “to ensure that any work done to secure the building will not damage or alter the historic character of the building” (Id. at 17.32.210(B)(1) and (B)(4).) The City is in ongoing violation of the Municipal Code in failing to take mandatory steps to protect and maintain the Mansion in consultation with its Building and Planning staff. The City must act within its discretion to prevent any further deterioration during a reasonable time period in which the ultimate question of ownership of the mansion is pending resolution.

3. Parkland Status. The Flanders Foundation contends that the Mansion is parkland and that any proposed sale is therefore subject to the mandatory provisions of Government Code sections 38440-38462 and 54220-54222. The Court has considered the plain meaning of the relevant statutory language, the history presented in the administrative record, and the reasonable construction of the term parkland. As explained in the Tentative Decision, the Court thereupon finds that the Mansion is parkland as a matter of law. In order to sell the Mansion, the City must comply with Government Code sections 38440-38462 and 54220-54222, including but not limited to subjecting any proposed sale to public vote.

4. Peremptory Writ. A Peremptory Writ of Mandamus shall issue in the form attached as Exhibit B. The Writ shall require the City immediately to set aside its certification of the Flanders Mansion Environmental Impact Report and its approvals of the sale of the Mansion and to refrain from further certification and approvals unless and until it complies with CEQA. The Writ shall require the City immediately to implement repairs necessary to avoid further significant deterioration and to refrain from the sale of the Mansion unless and until it complies with Government Coed sections applicable to the sale of parkland. Nothing in the writ shall limit the discretion legally vested in the City.

A Return of the Writ shall be filed with the Court upon the City’s final action taken to comply, on or before October 1, 2007, or such other date as may be agreed upon by the parties and approved by the Court.

5 Attorney’s Fees and Costs. The Court reserves jurisdiction over the issue of the Flanders Foundation’s claim for an award of reasonable private attorney general fees and costs pursuant to Code of Civil Procedure section 1021.5. Any motion for fees and costs shall be filed and served within 60 days of the filing of the Notice of Entry of this Judgment. Statutory costs are also awarded to the Flanders Foundation.

ORDER
Good cause appearing; IT IS ORDERED that the Judgment be entered.

Date: August 10, 2007

Honorable Robert A. O’Farrell
Judge of the Superior Court

Sunday, December 06, 2009

UPDATE: Legal Complaints against the City of Carmel-by-the-Sea

UPDATE COMMENT:
With regard to Flanders Foundation vs. City of Carmel by the Sea et al. (M99437), the schedule of the filing and serving of briefs was established, as follows:

Attorney Susan Brandt-Hawley, Attorney for Petitioner, was to file and serve Opening Brief on or before October 20, 2009. Accomplished.

Attorney for Respondents was to file and serve Opposition Brief on or before November 19, 2009; not accomplished. The new deadline for filing and serving the Opposition Brief was today, Monday, 7 December 2009.

Reply Brief was to be filed and served on or before November 25, 2009.

ABSTRACT: Information on three legal complaints against the City of Carmel-by-the-Sea, namely, Flanders Foundation vs. City of Carmel by the Sea et al. (M99437), Miller, Jane Kingsley vs City of Carmel-by-the-Sea (M99513) and Mandurrago et al. v. City of Carmel-By-The-Sea et al. (H034439), is presented. Specifically, dates and times of hearings for Flanders Foundation vs. City of Carmel by the Sea et al. (M99437) and Miller, Jane Kingsley vs City of Carmel-by-the-Sea (M99513) and the latest court information for Mandurrago et al. v. City of Carmel-By-The-Sea et al. (H034439 and M102802

Case Details of GNM99437; The Flanders Foundation vs. City of Carmel by the Sea et al.
Hearing: Thursday, 12/17/2009 @ 9:00 A.M., Courtroom 14, Judge Kay T. Kingsley, Monterey (Continued)
Rescheduled Hearing: Wednesday, 02/10/2010 @ 9:00 A.M., Department 14, Judge Kay T. Kingsley

Case Details of GNM99513 ; Miller, Jane Kingsley vs City of Carmel-by-the-Sea
Motion Hearing: Friday, 12/18/2009 @ 8:45 A.M., Courtroom 4, Judge Larry E. Hayes, Salinas

Case Details of GNM102802 ; Mandurrago, John et al vs. City of Carmel-by-the Sea et al.
Filing Date: 12/4/2009
Case Type: Civil: Monterey
Filing Type: Petition

(Source: Superior Court of California, County of Monterey Public Access)
Search Note: Civil Unlimited, M99437, M99513, M102802

Mandurrago et al. v. City of Carmel-By-The-Sea et al.
Case Number H034439

(Trail Court Case: M99273)

Docket (Register of Actions)
Latest Entry:
Date: 10/30/2009
Description: Case on conference list
Notes: November 5, 2009 Conference List

Future Scheduled Actions
No information found.

Friday, December 04, 2009

In Defense of Victoria McMillan’s Criticisms of the State of Journalism at The Carmel Pine Cone

ABSTRACT: In the November 27, 2009 edition of The Carmel Pine Cone, owner/publisher/editor Paul Miller published a letter to the editor by Victoria McMillan, Carmel Valley. Highlights of McMillan’s letter are presented. A COMMENT is made and an ADDENDUM with links to Pew Research Center’s Project for Excellence in Journalism Principles of Journalism, American Society of Newspaper Editor’s Statement of Principles and Society of Professional Journalists Code of Ethics is provided. Importantly, as the ASNE’s Statement of Principles states: “These principles are intended to preserve, protect and strengthen the bond of trust and respect between American journalists and the American people, a bond that is essential to sustain the grant of freedom entrusted to both by the nation's founders.”

Highlights of Victoria McMillan’s Letter to the Editor:
I understand newspapers, and I would argue that the Carmel Pine Cone is not a real newspaper but more of a public platform which your editor uses to espouse his own opinions, personal gripes and personal vendettas.”

But it [small town newspaper] doesn’t or can’t tackle real news or real issues. I am guessing you don’t really even want to. You like drama, controversy and intrigue. You don’t sell your paper to the reader, so real reporting probably doesn’t really matter. However, it would be nice to think you had either a decent moral compass or at least a true respect for real journalism. You are mean-spirited and vindictive in your writings, and it doesn’t do a struggling paper any favors.”

The Carmel Pine Cone did little to no true investigative or thorough research, and it showed.”

No one knows what your beef really is...Do your sales reps a favor and build a newspaper that can earn some respect or at least have a reputation for balanced reporting.”

(Source: Pine Cone is really, really bad, Victoria McMillan, Carmel Valley, Letters to the Editor, The Carmel Pine Cone, November 27, 2009, 36A)

COMMENT:
Under owner/publisher/editor Paul Miller, news articles in The Carmel Pine Cone read more like editorials and less like objective, fact-based news reporting and editorials are too often inflammatory, not informative. Moreover, The Carmel Pine Cone has a record of not being an “independent monitor of power” of our local government; in fact, The Carmel Pine Cone has a record of being a propaganda purveyor for Mayor Sue McCloud, City Council, et al. Unless and until readers demand Paul Miller and writers at The Carmel Pine Cone adhere to the principles of journalism, readers will continue to read biased and misleading news articles and inflammatory and unsubstantiated editorial commentaries.

ADDENDUM:
Pew Research Center’s Project for Excellence in Journalism
Principles of Journalism

1. JOURNALISM'S FIRST OBLIGATION IS TO THE TRUTH

2. ITS FIRST LOYALTY IS TO CITIZENS

3. ITS ESSENCE IS A DISCIPLINE OF VERIFICATION

4. ITS PRACTITIONERS MUST MAINTAIN AN INDEPENDENCE FROM THOSE THEY COVER

5. IT MUST SERVE AS AN INDEPENDENT MONITOR OF POWER

6. IT MUST PROVIDE A FORUM FOR PUBLIC CRITICISM AND COMPROMISE

7. IT MUST STRIVE TO MAKE THE SIGNIFICANT INTERESTING AND RELEVANT

8. IT MUST KEEP THE NEWS COMPREHENSIVE AND PROPORTIONAL

9. ITS PRACTITIONERS MUST BE ALLOWED TO EXERCISE THEIR PERSONAL CONSCIENCE

ASNE's Statement of Principles
ARTICLE I - Responsibility.
ARTICLE II - Freedom of the Press.
ARTICLE III - Independence.
ARTICLE IV - Truth and Accuracy.
ARTICLE V - Impartiality.
ARTICLE VI - Fair Play.

Society of Professional Journalists Code of Ethics
Seek Truth and Report It
Journalists should be honest, fair and courageous in gathering, reporting and interpreting information.

Minimize Harm
Ethical journalists treat sources, subjects and colleagues as human beings deserving of respect.

Act Independently
Journalists should be free of obligation to any interest other than the public's right to know.

Be Accountable
Journalists are accountable to their readers, listeners, viewers and each other.

Thursday, December 03, 2009

Carmel Art Association Presents ALL-MEMBER SHOW: THE ANNUAL MINIATURE & SMALL PAINTING SHOW

Carmel Art Association
“Celebrating 81 years of local art”
Voted “Art Gallery of the Year” by the Carmel Business Association three consecutive years.
W/s Dolores St. between 5th Av. & 6th Av.
10:00 A.M. – 5:00 P.M., Daily, except major Holidays.
Open to the Public at No Charge

Founded in 1927, Carmel's oldest gallery features the work of more than 120 professional local artists, and is dedicated to presenting only the finest work for sale by artists living on the Monterey Peninsula.”

For more information, Online or (831) 624-6176.

Carmel Art Association Presents ALL-MEMBER SHOW: THE ANNUAL MINIATRUE & SMALL PAINTING SHOW
Thursday, December 3 – Tuesday, January 5, 2009

ALL-MEMBER SHOW: THE ANNUAL MINIATURE & SMALL PAINTING SHOW (Center Room and Segal Room):
Carmel Art Association Artist Members exhibit dozens of miniature and small paintings in an array of mediums, styles and subject matter. View Artist Members representative artworks and brief biographies, et cetera.

Holiday Open House - Saturday, December 5, from 6:00 to 8:00 P.M.
Join in the festivities and please bring an unwrapped toy for a child for the Salvation Army’s Toy Drive; toy donations will be accepted for the drive from Thursday, December 3 through Thursday, December 17, 2009. And non-perishable food items will also be accepted for the Salvation Army Food Baskets.

Wednesday, December 02, 2009

‘MINUTES’ for Two Noteworthy 1 December 2009 City Council Agenda Items

“MINUTES”
CITY COUNCIL MEETING
CITY OF CARMEL-BY-THE-SEA
November 3, 2009


V. Announcements from Closed Session, from City Council Members and the City Administrator.

C. Announcements from City Administrator
1. Present FY 2008-09 Draft Audited Financial Statements by Ralph Marcello, Marcello & Company CPAs.


Ralph Marcello, MARCELLO & COMPANY, Certified Public Accountants, presented the highlights of the FY 2008-09 Draft Audited Financial Statements. With regard to the big three revenue sources (transient occupancy tax, property tax and sales tax), revenues increased by 4% in 2005, 9%, in 2006, 7% in 2007, 5% in 2008 and decreased 6% in 2009. General Revenues, which the city has total discretion over, and are contingent on general economic conditions, was +12% in 2008 and -9% in 2009.

During these economic times, other cities have engaged in hiring contract employees for one year without benefits, cross-train employees for vacant position responsibilities, reduce public safety workers, review pension system and furloughs.

Ralph Marcello’s presented his company’s Audit Opinion, an “unqualified opinion,” the highest type of opinion. And compared to other cities Carmel-by-the-Sea is in “very good economic health” mainly because of its policy to set aside reserves in good economic times.

X. Resolutions
A. Consideration of a Resolution authorizing participation in an Initial Exploration and Analysis of Joint Fire Service Options.


City Administrator Rich Guillen presented the Staff Report.

Mayor McCloud opened the meeting to public comment.

Carolyn Hardy requested the City include the three special fire districts and Cal Fire for consideration as to fire protection services for Carmel-by-the-Sea.

Mayor McCloud interjected and stated that the Mayor of Monterey would recommend the City of Monterey extend the interim fire services contract with Carmel-by-the-Sea through June 2010.

Barbara Livingston (remarks read by Kathy Frederickson) requested the City consider all options, including stand alone and Cal Fire. George Haines, Fire Chief of Cypress, Carmel Highlands and Pebble Beach Fire Department spoke in support of the resolution.

Mayor McCloud closed the meeting to public comment.

Council Member TALMAGE moved adoption of the Resolution with the addition that the Staff bring back to Council current information on all viable options, including JPA, shared services and stand alone fire department, seconded by Council Member ROSE, and carried unanimously.


NOTE: During Appearances, Carolyn Hardy applauded the City for approaching Cal Fire for the purpose of requesting a proposal for Fire Services from Cal Fire (Information gleaned from the September 2009 Minutes of the Pebble Beach Community Service District Board Meeting) and requested the City share the proposal with the public.

REFERENCE:
PEBBLE BEACH COMMUNITY SERVICES DISTRICT
BOARD OF DIRECTORS
Regular Meeting of September 25, 2009
MINUTES


Chief Haines stated that the City of Carmel would be sending CAL FIRE a formal request for proposal for fire protection services. Charlotte Townsend indicated she was a Director of the Carmel Residents Association which supports the City of Carmel in its consideration of CAL FIRE.

COMMENT:
While Mayor Sue McCloud recently stated that the City is interested in looking at the concept of a regional fire department, and “would probably be derelict if we didn’t,” in the context of the Final Report of The Fire Department Consolidation Feasibility Analysis for the Cities of Monterey, Pacific Grove and Carmel completed by Citygate Associates, LLC in June 2007 and Carmel-by-the-Sea’s formal withdrawl from negotiations with Monterey and Pacific Grove in January 2008, it is derelict of the City of Carmel-by-the-Sea to not have studied and reviewed all viable fire protection service options and implemented a permanent fire protection service solution for the City of Carmel-by-the-Sea long before now.

Monday, November 30, 2009

Two Noteworthy 1 December 2009 City Council Agenda Items

ABSTRACT: Two noteworthy 1 December 2009 City Council Agenda Items, namely, Present FY 2008-09 Draft Audited Financial Statements by Ralph Marcello, Marcello & Company CPAs and a Resolution authorizing participation in an Initial Exploration and Analysis of Joint Fire Service Options, are presented. Selected excerpts from Agenda Item Summary and Staff Report are presented for the Resolution Agenda Item. Informational COMMENTS are made regarding the Initial Exploration and Analysis of Joint Fire Service Options.

CITY OF CARMEL-BY-THE-SEA
City Council Agenda
Regular Meeting
Tuesday, December 1, 2009
4:30 p.m., Open Session


Live and archived video streaming available

City Hall
East side of Monte Verde Street between Ocean and Seventh Avenues

V. Announcements from Closed Session, from City Council Members and the City Administrator.

C. Announcements from City Administrator
1. Present FY 2008-09 Draft Audited Financial Statements by Ralph Marcello, Marcello & Company CPAs.


X. Resolutions
A. Consideration of a Resolution authorizing participation in an Initial Exploration and Analysis of Joint Fire Service Options.


Description: At a November meeting, Mayors, City Managers and Fire Department Managers discussed the concept of joint fire services. The main discussion of the meeting was to review the current opportunities given the shrinking financial resources available to public agencies. The discussion centered on the potential of achieving organizational and operational efficiencies through some joint fire service options. The general consensus of the group was to participate in further discussions and analysis of achieving joint fire services.

Overall Cost:
City Funds: $0 with this action/unknown as to any future expense.

Staff Recommendation: Adopt the Resolution.

Important Considerations: Joint fire services should only be considered if improvements occur through a joint management oversight and improvements to operational efficiencies.

Decision Record: Several discussions have occurred over the past three to four years regarding fire shared services. To date, no action has been taken by the Council to expand beyond the current fire administration contract with the City of Monterey.

Authorize participation in an initial exploration and analysis of joint fire service options with the following goals:
a. Reduce or maintain response time for each community
b. Lower ISO rating for each community
c. Lower operating cost for each community
d. Increase the number of people and equipment available for response

City Staff anticipates completion of the Initial Analysis in early 2010.

COMMENTS:
On Monday, 16 November 2009, representatives, including Fire Chiefs, elected officials and administrators for the cities of Monterey, Seaside, Pacific Grove, Marina, Sand City, Del Rey Oaks and Carmel-by-the-Sea, as well as the Monterey Peninsula Airport District, Presidio of Monterey, and Salinas Rural and Carmel Valley Fire Districts, met in Monterey to discuss the concept of a Monterey Peninsula-wide Fire Department and agreed to further research the regional fire department concept.
(Source: Fire chiefs, political leaders want Peninsula-wide Department, MARY BROWNFIELD, The Carmel Pine Cone, 8a &30A)

Carmel-by-the-Sea’s Interim Fire Protection Services Contract with the City of Monterey expires January 31, 2010.

Thursday, November 19, 2009

THE FLANDERS FOUNDATION v. CITY OF CARMEL-BY-THE-SEA et al.: Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus

ABSTRACT: With regard to THE FLANDERS FOUNDATION, a California Nonprofit Public Benefit corporation, Petitioner v. CITY OF CARMEL-BY-THE-SEA and CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA, Respondents (M99437), Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus, dated October 21, 2009, was filed with Monterey County Superior Court on October 27, 2009. Selected excerpts from the Brief are presented. An ADDENDUM, consisting of links to particularly relevant court cases referred to in the Brief and Government Code Sections 38440-38462 and 54220-54222, is provided. Respondents Brief is due Thursday, November 19, 2009 and Petitioner’s Reply Brief is due Wednesday, November 25, 2009. A Hearing is scheduled for Thursday, December 17, 2009 at 9:00 A.M., Courtroom 14, Monterey Courthouse, 1200 Aguajito Rd. Monterey, CA., Hon. Kay T. Kingsley presiding and attorneys Susan Brandt-Hawley for Petitioner and Richard Harray for Respondents.


BRANDT-HAWLEY LAW GROUP
Susan Brandt-Hawley, SBN 75907
P.O. Box 1659
Glen Ellen CA. 95442
707.938.3900

Attorney for Petitioner
The Flanders Foundation


SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF MONTEREY


THE FLANDERS FOUNDATION, a California Nonprofit Public Benefit corporation, Petitioner

v.

CITY OF CARMEL-BY-THE-SEA and CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA,
Respondents


Case No. M99437

Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus

Honorable Kay T. Kingsley

Date: December 17, 2009
Time: 9:00 a.m.
Dept.: 17


Stamped Filed October 27, 2009


Introduction

The Flanders Foundation brings this mandamus action in the public interest regarding the proposed sale of the City-owned c. 1924 Flanders Mansion...

A sale would have concededly significant environmental impacts, creating a problematic park in-holding and restricting public access; a lease would not. Thus, “absent substantial evidence in the form of an economic analysis that most project objectives could not feasibly be accomplished via lease,…the project cannot be approved” under mandates of the California Environmental Quality Act.

New violations of CEQA are the impetus for this action...

The Foundation looks to this Court to continue to protect the historic integrity and legacy of the magnificent Mansion and the Mission Trails Nature Preserve in accord with law…the primary issue before the Court is whether substantial evidence supports the City’s findings that lease of the Mansion property is infeasible. The Foundation will show that there is no such evidence. Since a lease would meet most project objectives and avoid the admittedly significant impacts of sale, a sale remains unlawful under CEQA’s substantive mandate-regardless of the outcome of the vote.

A preemptory writ should issue in the public interest.

Issues

The issues before the Court are:
1. Did the City proceed in the manner required by law in analyzing impacts, alternatives, and responding to comments relating to proposed sale of the Flanders Mansion property?
2. Does substantial evidence support the City’s findings that alternatives to the sale of the Flanders Mansion property are infeasible?
3. Does substantial evidence support the City’s statement of overriding considerations?

Scope and Standard of Review

In deciding whether to issue a writ for violations of CEQA, the Court shall decide whether the City committed a prejudicial abuse of discretion: if it did not proceed in the manner required by law, if its decision is not supported by findings, or if its findings are not supported by substantial evidence in the record.

Discussion: Material Violations of CEQA

A. The EIR is Inadequate and Incomplete

2. Analysis of Environmental Impacts relating to the Surplus Land Act

Because the Flanders Mansion property has been judicially determined to be parkland, the judgment in the Flanders 1 case required that “in order to sell the Mansion, the City must comply with Government Code sections 38440-38462 and 54220-54222...” In particular, Surplus Land Act sections 54220 et seq. require that the City, prior to declaring the Flanders Mansion property surplus land and selling it to a private party, make it available “to sell or lease” to public agencies and qualified housing sponsors “for the purpose of developing low- and moderate-income housing.”

Priority is to be given to affordable housing “for lower income elderly or disabled persons or households, and other lower income households.” Another priority is for the City to make a written offer to sell or lease to other agencies for park and recreational purposes or open-space.

The Recirculated Draft EIR provides no analysis of potentially significant environmental impacts that could attend the potential adaptive reuse of the Flanders Mansion property by other agencies for low or moderate-income housing or other purposes.

The upshot of...about the unstudied import of the Surplus Land Act is that the EIR is inadequate. The EIR must provide the City and the public with detailed information about the effect the proposed sale is likely to have on the environment, to list ways significant effects might be minimized, and to indicate alternatives…Here, the disclosure of impacts is misleadingly incomplete.

The EIR should be revised to analyze the reasonable impacts of the Surplus Lands Act mandates and recirculated so that the public and other agencies can comment. The City Council should face the full scope of impacts of a decision to sell the Flanders Mansion property.

3. Responses to Comments

The City is required to provide a “good faith, reasoned analysis” in response to comments on the EIR: “conclusory statements unsupported by factual information will not suffice.” Responses must explain why commentators’ proposed mitigations and alternatives were rejected.

The EIR’s responses to comments should be revised and the EIR must be recirculated in these key points [Surplus Land Act, parcel size issues] which could impact the City Council’s decisions about the scope of the project.

4. Analysis of Economic Feasibility
a. Feasibility Analysis Should be in the EIR


When the feasibility of an alternative depends largely on economic factors, analysis should be in the EIR in order for the City Council to have adequate information on which to make its decision.

...the City had the economic analysis during the EIR comment period, but did not share it with the public.

This was error, as the City failed to proceed in the manner required by law.

b. The CBRE Report was Inadequate

As to the substance of the economic report and its analysis of economic feasibility, the entire premise of CBRE’s approach was faulty and the report is inadequate. The Flanders 1 judgment is binding on the City, and requires that “absent substantial evidence in the form of an economic analysis that most project objectives could not feasibly be accomplished via lease,...the project cannot be approved” under mandates of the California Environmental Quality Act.

Analysis of the feasibility of alternatives flows from the project objectives. The question is whether any alternative can feasibly accomplish most project objectives. “Feasible” means “capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.”

The CBRE report does not look at factors relevant to the economic challenges of leasing an historic mansion located in parkland, or the City’s financial capabilities in restoring and maintaining the property itself, and thus failed to meet the requirements of this Court’s ruling.

The CBRE report should have been included in the EIR and circulated for comment. It is also inadequate as a basis for analyzing the feasibility of a no project or lease alternative, as it does not look at comparable park/mansion properties, City maintenance expenses, City budget and funding capabilities, nor the financial feasibility of any of the myriad potential quasi-public uses suggested by the Flanders Foundation and others. The EIR analysis of the feasibility of project alternatives failed to proceed in the manner required by law and a writ should issue.

B. Lease of Flanders Mansion is Feasible

When a discretionary project may have significant environmental impacts, it cannot be approved if there are feasible alternatives that accomplish most project objectives.

...that projects with significant environmental impacts should not be approved if there are feasible alternatives available that would substantially lessen the significant environmental effects. If a project will have such effect, it cannot be approved as proposed unless specific “economic, social, or other conditions” make alternatives and mitigations infeasible...

...the City’s reliance on the CBRE economic report is misplaced, as the wrong questions were asked and answered. The Flanders Mansion property is parkland, and not a commercial property comparable to a medical office...

...If the city is not financially able to maintain its property due to financial hardship or because the property does not warrant investment, infeasibility could be shown. But there is no such showing in the record.

As held in Citizens of Goleta Valley v. Board of Supervisors (1988) 197 Cal. App. 3d 1167:

The fact that an alternative may be more expensive or less profitable is not sufficient 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.

Thus the fact that leasing rather than selling the Mansion parcel would net somewhat lower short-tern revenues to the City does not equate to infeasibility...

The peremptory writ must issue because the City approved a project with significant environmental impacts when the record disclosed a feasible alternative.

C. The Statement of Overriding Considerations is Unsupported

In light of the availability of alternatives, the City could not lawfully move to the next step of considering a statement of overriding considerations. The Public Resources Code requires adoption of feasible alternatives, and only if such alternatives are adopted and significant unavoidable impacts remain may an agency consider adoption of the project based on the overriding considerations of public benefit.

The statement of overriding considerations in unsupported.

...There should be no pretense that selling the Flanders Mansion property will benefit the citizens of Carmel or improve its parkland, admittedly inconsistent with at least four of its adopted General Plan goals, policies, and objectives.

Conclusion

The City has failed to meet its statutory obligations as the fortunate owner of the historic Flanders Mansion parkland, and the peremptory writ should issue on all grounds here argued.

Date: October 21, 2009

Respectfully submitted,

BRANDT-HAWLEY LAW GROUP


Susan Brandt-Hawley
Attorney for Petitioner

ADDENDUM:
Superior Court of California, County of Monterey Public Access
Search: Civil Unlimited, Case No. M99437

CITIZENS OF GOLETA VALLEY, et al., Appellants, v. BOARD OF SUPERVISORS of the County of Santa Barbara, Respondent.
WALLOVER, INC., and Hyatt Corporation, Real Parties in Interest.
197 Cal.App.3d 1167
Civ. No. B026619.
Court of Appeal, Second District, Division 6, California.
Jan. 22, 1988.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
UPHOLD OUR HERITAGE,
Plaintiff and Respondent,
v.
TOWN OF WOODSIDE,
Defendant and Appellant;
STEVEN JOBS,
Real Party in Interest and Appellant
A113376
(San Mateo County Super. Ct. No. 444270)


SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO
UPHOLD OUR HERITAGE, Petitioner vs. TOWN OF WOODSIDE, Respondent
Civil No. 444270
Assigned CEQA Judge
Hon. Marie S. Weiner, Dept. 2
Pursuant to Public Resources Code Section 21167.1(b)
FINAL STATEMENT OF DECISION ON PETITION FOR WRIT OF MANDATE UNDER CEQA


CALIFORNIA CODES
GOVERNMENT CODE
SECTION 38440-38462


38440. A city may discontinue and abandon the use as a public park
of any land owned in fee by it and dedicated or placed in such use by
such city, and thereafter dispose of the land, pursuant to this
article.

38441. Without a special election, the legislative body may convey
a minor portion of such a park in exchange for an equal or greater
area or value of privately owned land contiguous to the park after:
(a) Notice and a public hearing pursuant to this article.
(b) Determination that the exchange is in the public interest.
(c) Adoption of a resolution of discontinuance.

38442. Except as provided in Section 38441, this article shall not
be construed to authorize:
(a) A discontinuance and abandonment, or change in the use, of
such lands which will cause the reversion of the lands to private
ownership or a forfeiture of the city's ownership in fee.
(b) The discontinuance of the use of park lands acquired by funds
obtained from a local assessment based on benefits.

38443. Proceedings are initiated when the legislative body adopts a
resolution declaring that public interest or convenience requires
the discontinuance of the use of such land as a public park, and that
the legislative body intends to call a special election to submit
the question of discontinuance to the city electors.

38444. The resolution shall:
(a) Contain an accurate description of the lands.
(b) State the common name of the park.
(c) State the disposition which the legislative body proposes to
make of the park.
(d) Fix a time, not less than thirty nor more than sixty days
after adoption of the resolution, and a place, at which the public or
persons particularly interested may protest.

38445. The city clerk shall cause the resolution to be published
twice in a daily newspaper published and circulated in the city, or
if there is none, twice in a weekly or semiweekly newspaper so
published and circulated. If there are no such newspapers, the
resolution shall be published twice in a newspaper published in the
county. Publication shall be completed at least twenty days before
the time set for the hearing.

38446. The park superintendent or another person designated by the legislative body shall cause at least three notices of the adoption of the resolution to be posted conspicuously not more than three hundred feet apart along the exterior boundaries of the area proposed to be discontinued and abandoned as a public park. Posting shall be completed at least twenty days before the time set for the hearing. Failure to post the notices does not invalidate the proceedings or prevent the legislative body from acquiring jurisdiction to proceed with the discontinuance and abandonment.

38447. The posted notices shall be headed: "Notice of proposed
discontinuance of public park land" in legible characters, state the
date of adoption of the resolution, and recite the facts contained in
the resolution.

38448. At any time before the hour set for the hearing, any person or persons interested may protest in writing against the proposed abandonment and discontinuance, or to the extent thereof. The protest shall be delivered to the clerk of the legislative body.

38449. At the time set for the hearing or to which it is postponed, the legislative body shall hear and pass upon all such protests.

38450. Protests are sustained unless overruled by two-thirds vote of the legislative body. The legislative body may sustain protests as to one portion, and overrule them as to another portion of park land. If protests are overruled, the legislative body may adopt an ordinance calling, and fixing the date of, a special election to submit to the city electors the question of discontinuance and abandonment of the use of park land on which protests were overruled.

38451. If a majority of the electors voting on the proposition are in favor of it, the legislative body shall adopt an ordinance declaring that use of the land described in the ordinance calling the election for park purposes is discontinued and abandoned.

38452. If less than a majority of such electors vote for it, the legislative body shall not initiate proceedings for discontinuance of the use of such land for park purposes for one year after the election.

38460. When the ordinance becomes effective, the land described in it is deemed held by the city in fee. The city may sell or otherwise dispose of the property in the same manner as it may dispose of other city property no longer required for municipal purposes.

38461. If the land was acquired by money derived from bonds authorized for park purposes, and the land sold, the reasonable market value of the land at the time of adoption of the ordinance shall be transferred to the bond fund from such other municipal fund as the legislative body determines. If the land was not acquired from bond funds and the land is sold, the proceeds from such sale shall be deposited in the general fund of the city.

38462. Except as permitted by general laws allowing diversions of bond funds, money so transferred shall be devoted only to the purposes for which the bonds were authorized.

CALIFORNIA CODES
GOVERNMENT CODE
SECTION 54220-54222


54220. (a) The Legislature reaffirms its declaration that housing is of vital statewide importance to the health, safety, and welfare of the residents of this state and that provision of a decent home and a suitable living environment for every Californian is a priority of the highest order. The Legislature further declares that there is a shortage of sites available for housing for persons and families of low and moderate income and that surplus government land, prior to disposition, should be made available for that purpose.
(b) The Legislature reaffirms its belief that there is an identifiable deficiency in the amount of land available for recreational purposes and that surplus land, prior to disposition, should be made available for park and recreation purposes or for open-space purposes. This article shall not apply to surplus residential property as defined in Section 54236.
(c) The Legislature reaffirms its declaration of the importance of appropriate planning and development near transit stations, to encourage the clustering of housing and commercial development around such stations. Studies of transit ridership in California indicate that a higher percentage of persons who live or work within walking distance of major transit stations utilize the transit system more than those living elsewhere. The Legislature also notes that the Federal Transit Administration gives priority for funding of rail transit proposals to areas that are implementing higher-density, mixed-use development near major transit stations.

54221. (a) As used in this article, the term "local agency" means every city, whether organized under general law or by charter, county, city and county, and district, including school districts of any kind or class, empowered to acquire and hold real property.
(b) As used in this article, the term "surplus land" means land owned by any local agency, that is determined to be no longer necessary for the agency's use, except property being held by the agency for the purpose of exchange.
(c) As used in this article, the term "open-space purposes" means the use of land for public recreation, enjoyment of scenic beauty, or
conservation or use of natural resources.
(d) As used in this article, the term "persons and families of low or moderate income" means the same as provided under Section 50093 of the Health and Safety Code.
(e) As used in this article, the term "exempt surplus land" means either of the following:
(1) Surplus land that is transferred pursuant to Section 25539.4.
(2) Surplus land that is (A) less than 5,000 square feet in area,
(B) less than the minimum legal residential building lot size for the jurisdiction in which the parcel is located, or 5,000 square feet in area, whichever is less, or (C) has no record access and is less than 10,000 square feet in area; and is not contiguous to land owned by a state or local agency that is used for park, recreational, open-space, or low- and moderate-income housing purposes and is located neither within an enterprise zone pursuant to Section 7073 nor a designated program area as defined in Section 7082. If the surplus land is not sold to an owner of contiguous land, it is not considered exempt surplus land and is subject to this article.
(f) Notwithstanding subdivision (e), the following properties are not considered exempt surplus land and are subject to this article:
(1) Lands within the coastal zone.
(2) Lands within 1,000 yards of a historical unit of the State Parks System.
(3) Lands within 1,000 yards of any property that has been listed on, or determined by the State Office of Historic Preservation to be eligible for, the National Register of Historic Places.
(4) Lands within the Lake Tahoe region as defined in Section 66905.5.

54222. Any local agency disposing of surplus land shall send, prior to disposing of that property, a written offer to sell or lease the property as follows:
(a) A written offer to sell or lease for the purpose of developing low- and moderate-income housing shall be sent to any local public entity, as defined in Section 50079 of the Health and Safety Code, within whose jurisdiction the surplus land is located. Housing sponsors, as defined by Section 50074 of the Health and Safety Code, shall be sent, upon written request, a written offer to sell or lease surplus land for the purpose of developing low- and moderate-income housing. All notices shall be sent by first-class mail and shall include the location and a description of the property. With respect to any offer to purchase or lease pursuant to this subdivision, priority shall be given to development of the land to provide affordable housing for lower income elderly or disabled persons or households, and other lower income households.
(b) A written offer to sell or lease for park and recreational purposes or open-space purposes shall be sent:
(1) To any park or recreation department of any city within which the land may be situated.
(2) To any park or recreation department of the county within which the land is situated.
(3) To any regional park authority having jurisdiction within the area in which the land is situated.
(4) To the State Resources Agency or any agency that may succeed to its powers.
(c) A written offer to sell or lease land suitable for school facilities construction or use by a school district for open-space purposes shall be sent to any school district in whose jurisdiction the land is located.
(d) A written offer to sell or lease for enterprise zone purposes any surplus property in an area designated as an enterprise zone pursuant to Section 7073 shall be sent to the nonprofit neighborhood enterprise association corporation in that zone.
(e) A written offer to sell or lease for the purpose of developing property located within an infill opportunity zone designated pursuant to Section 65088.4 or within an area covered by a transit village plan adopted pursuant to the Transit Village Development Planning Act of 1994 (Article 8.5 (commencing with Section 65460) of Chapter 3 of Division 1 of Title 7) shall be sent to any county, city, city and county, community redevelopment agency, public transportation agency, or housing authority within whose jurisdiction the surplus land is located.
(f) The entity or association desiring to purchase or lease the surplus land for any of the purposes authorized by this section shall notify in writing the disposing agency of its intent to purchase or lease the land within 60 days after receipt of the agency's notification of intent to sell the land.

Sunday, November 15, 2009

Carmel Art Association Presents ‘PERPETUAL COMMOTION’ & ‘MON MELANGE’ SOLO SHOWS BY ROBBINS & AUVIL AND GALLERY SHOWCASE FEATURING BRADFORD & SMITH

Carmel Art Association
Celebrating 81 years of local art
Voted “Art Gallery of the Year” by the Carmel Business Association three consecutive years.
W/s Dolores St. between 5th Av. & 6th Av.
10:00 A.M. – 5:00 P.M., Daily, except major Holidays.
Open to the Public at No Charge

Founded in 1927, Carmel's oldest gallery features the work of more than 120 professional local artists, and is dedicated to presenting only the finest work for sale by artists living on the Monterey Peninsula.”

For more information, Online or (831) 624-6176.

Carmel Art Association Presents ‘PERPETUAL COMMOTION’ & ‘MON MELANGE’ SOLO SHOWS BY ROBBINS & AUVIL AND GALLERY SHOWCASE FEATURING BRADFORD & SMITH
Thursday, November 5 – Tuesday, December 1, 2009

SOLO SHOW “PERPETUAL COMMOTION” (Beardsley Room, South Wall):
Painter Stan Robbins presents an exhibition of oil on canvas paintings from a one-year, 52-painting project depicting the meeting of land and sea. View one of Robbins paintings.

SOLO SHOW “MON MELANGE” (Center Room):
Sculptor and painter Eleen Auvil presents new work in two mediums, bronze sculpture and monotype prints. View Eleen Auvil’s Education, Awards, Solo Shows, et cetera, and three pieces of sculpture.

GALLERY SHOWCASE (Segal Room):
Painter Cyndra Bradford exhibits animal portraits. View one of Bradford's paintings.

Painter Jeff Daniel Smith exhibits small plein air views of the Central Coast, in town and nature. View Jeff Daniel Smith’s brief biography and three oil paintings, including "Point Lobos Cliffs," “Tranquil Cove" and "Laguna Seca #4."

Opening Reception - Saturday, November 7, from 6:00 to 8:00 P.M.

Closed for Thanksgiving, Thursday, November 26, 2009.

Thursday, November 12, 2009

UPDATE VII: Flanders Mansion Property: MORE SALIENT POINTS AGAINST THE SALE OF THE FLANDERS MANSION PROPERTY

ABSTRACT: On 3 November 2009, by a majority vote of 63% “yes” (34% “no,”) Carmel-by-the-Sea voters voted to approve discontinuance and abandonment of, and authorization to sell the Flanders Mansion Property “with Conservations Easements and Mitigation,” Flanders mansion property public parkland. Subsequently, five days after the election, The Monterey County Herald published a letter to the editor, ‘Exploring other uses for Flanders Mansion;’ the letter's salient points are presented.

SALIENT POINTS AGAINST THE SALE OF THE FLANDERS MANSION PROPERTY:
“...it doesn't seem to me that all possibilities have been explored or imagined.”

“...how about Flanders as an archive of the current work in music regarding its healing and educational capabilities? Or as an archival way station gathering the work being done on interspecies communication? Given Carmel's love for animals and dogs, what a perfect match that might be.”

I hope everyone will think about the possibilities not yet explored for Flanders Mansion's future. She is a star in starry place for all of Carmel's residents and creatures.”

(Source: The Monterey County Herald, Letters, (Exploring other uses for Flanders Mansion, Deanna McKinstry-Edwards, Carmel) 11/08/2009)

Tuesday, November 10, 2009

Michael LePage: “you, Mayor McCloud and the City Council, should immediately put Mr. Guillen on administrative leave.”

ABSTRACT: At the 3 November 2009 City Council Meeting, during Appearances, Carmel-by-the-Sea resident Michael LePage addressed the public and council members; he called for Mayor McCloud and the City Council to “immediately put Mr. Guillen on administrative leave,” pending the resolution of on-leave Human Resources Manager Jane Miller’s lawsuit against the City alleging age-based and sex-based discrimination, sexual harassment and retaliation in the workplace.

CITY OF CARMEL-BY-THE-SEA
City Council Agenda -- AMENDED
Regular Meeting
Tuesday, November 3, 2009


VI. Appearances
Anyone wishing to address the City Council on matters within the jurisdiction of the City and are not on the agenda may do so now. Matters not appearing on the City Council’s agenda will not receive action at this meeting but may be referred to staff for a future meeting. Presentations will be limited to three (3) minutes, or as otherwise established by the City Council. Persons are not required to give their names, but it is helpful for speakers to state their names in order that the City Clerk may identify them in the minutes of the meeting. Always speak into the microphone, as the meeting is recorded. The City Council Chambers is equipped with a portable microphone for anyone unable to come to the podium. Assisted listening devices are available upon request of the City Clerk. If you need assistance, please advise Heidi Burch as to which item you would like to comment on and the microphone will be brought to you.


Carmel-by-the-Sea Resident Michael LePage:

"Mayor McCloud and City Council Members, I am very concerned about the message that the City of Carmel is sending out regarding the sexual harassment and discrimination lawsuit filed against the alleged actions of Rich Guillen, our city administrator."

"You, Mayor McCloud and City Council, need to send a strong message to Carmel’s employees and its residents that there will be zero tolerance for this kind of behavior in the workplace."

"The fact that two previous employees have received settlements for alleged claims of favoritism and sexual discrimination during Mr. Guillen’s tenure, along with the recent accusations of possible acts of retaliation for deposition testimony only underscores the seriousness of this situation. Because of this, the ability of Mr. Guillen has been effectively limited and compromised, along with the City’s reputation. Until this matter is fully explored in the courts, you, Mayor McCloud and the City Council, should immediately put Mr. Guillen on administrative leave."


(Source: Archived Videos, City Council November 05, 2009, 54: 35 - 55:35)

Sunday, November 08, 2009

'Misunderstanding' or Retaliation

ABSTRACT: At the 3 November 2009 City Council meeting, the City Council unanimously approved a Resolution authorizing the payment of salary and benefit difference to city employees who have been activated into military service from the National Guard or from the inactive military reserves, precisely for Building Official John Hanson. Despite questions from Carmelites, City Council Members did not explain how, why or who was responsible for the sending of a September 2009 letter to Building Official John Hanson advising Hanson his pay differential would cease in November 2009 and his medical benefits would cease December 31, 2009. A TIMELINE of relevant events and confusing and contradictory statements by Mayor Sue McCloud is presented. COMMENTS are made, including the proposition that the letter was sent intentionally as retaliation for John Hanson’s deposition in Jane Miller’s lawsuit against the City alleging retaliation, discrimination and harassment.

While the City Council unanimously approved a Resolution authorizing the payment of salary and benefit difference to city employees who have been activated into military service from the National Guard or from the inactive military reserves, precisely for Building Official John Hanson, at the 3 November 2009 City Council meeting, City Council Members did not respond to questions from Carmelites regarding how, why, and who was responsible for the September 2009 letter from Assistant City Administrator Heidi Burch to John Hanson advising Hanson his pay differential would cease in November 2009 and his medical benefits would cease December 31, 2009.

TIMELINE:
April 8, 2009: Hanson informed staff that he is deploying in July 2009 to Afghanistan.

July 2009: John Hanson gave a deposition regarding on-leave Human Resources Manager Jane Miller’s lawsuit alleging age-based and sex-based discrimination, sexual harassment and retaliation in the workplace; City Administrator Rich Guillen was present.

• July 31, 2009: Hanson’s travel orders received by City for activation on August 3rd for training and deployment for approx. 400 days.

• Prior to August 3, 2009: “Before John left, [city administrator Rich Guillen] and Heidi said they were going to continue to take care of the medical and make up the difference in pay like last time, and not to worry about a thing,” Annette Hanson said. (Mary Brownfield, The Carmel Pine Cone)

• September 14, 2009: Hanson requested use of vacation time for the period of October 13-November 13, 2009, which caused a recalculation of his benefits package.

• September 2009: Certified Letter from Carmel Assistant City Administrator Heidi Burch advised the paychecks would stop after Hanson’s month of vacation time ended in November, 2009, and his medical benefits, through which Hanson, his wife and their two college going kids are insured, would cease Dec. 31, 2009. (Mary Brownfield, The Carmel Pine Cone)

• September 24, 2009: Hanson arrived in Afghanistan.

• October 8, 2009: After hearing about Hanson’s impending loss of pay differential in November 2009 and medical benefits for his family on December 31, 2009, Colonel Eric B. Grimm, U.S. Army 40th Infantry Division Agribusiness Development Team, sent a letter to City Administrator Rich Guillen requesting “all agreements made between the City and John Hanson be continued.” He assured Guillen Hanson’s mobilization was involuntary and said he had been chosen for the assignment because of his engineering background. (Letter from Eric B. Grimm, Colonel, Field Artillery, Commanding, to City Administrator Rich Guillen, dated 8 October 2009 & Mary Brownfield, The Carmel Pine Cone)

• October 23, 2009: Mayor Sue McCloud said she was not familiar with the situation and did not even know where Hanson had been sent. Col. Grimm’s letter listed her as a recipient, but she said she had not seen a copy. “The city council doesn’t have anything to do with it. I don’t know any of the particulars, but I gather something is going on,” she said. “Those things we don’t get involved in, unless there’s a policy issue.” (Mary Brownfield, The Carmel Pine Cone)

• November 2009: At first she (Mayor Sue McCloud) told me she didn’t know anything about the controversy, even though she was sent a copy of this letter in early October from First Sergeant Hanson’s Commanding Officer Colonel Eric Grimm. It asked that all agreements between the City and John Hanson be continued. Today she told me she couldn’t speak then because lawyers were involved. She said the matter is resolved.

We amended the agenda on Saturday, and moved it forward from December to tomorrow night’s agenda.”

She said the benefits letter could have added one important bit of information. “What it maybe should have said, would have been, the next line, and it will have to go to council to provide as we’ve done
previously. We want to clear up any misunderstanding that there is and to move forward, you know, in a positive way
.”

Our track record is, I feel, excellent as far as patriotism, support to John, support to the military, and support to our veterans.”

And yet the Hanson’s family is still waiting to hear from City Hall about the letter and the resolution. (Cheryl Jennings, ABC7 News)

• November 3, 2009: The Mayor blamed city staff for sending the letter not knowing the council planned to extend Hanson’s benefits in early December before they ran out. (Lisa Amin Gulezian, ABC7 News)

COMMENTS:
Without John Hanson’s wife, Annette Hanson, sharing the City’s September 2009 letter with the media and print and television media informing the public about John Hanson’s plight, a Resolution would not have been written, Mayor Sue McCloud would not have seen to the placement of the Resolution on the 3 November 2009 City Council Agenda and the City Council would not have voted on the Resolution.

There is no evidence in the record to support Mayor Sue McCloud's contention that a Resolution was planned on being placed on the December 2009 City Council Agenda. In fact, his pay differential was to expire in November 2009, prior to the December City Council meeting. Therefore, a Resolution, if intended, should have been placed on a much earlier City Council Agenda.

The record shows that Building Official John Hanson, a 20-year employee with the City, gave a deposition for on-leave Human Resources Manager Jane Miller’s lawsuit alleging age-based and sex-based discrimination, sexual harassment and retaliation in the workplace, where City Administrator Rich Guillen was present, in July 2009. Given Jane Miller’s credible claims of age-based discrimination and retaliation and corroboration of her claims by several former city employees, it is reasonable to assume that the letter was sent intentionally as retaliation for his deposition; Mayor Sue McCloud’s claims that this was just a “misunderstanding” and the letter should have read “and it will have to go to council to provide as we’ve done previously,” appear to be after the fact damage control.

Finally, leadership is taking responsibility for actions, not blaming other individuals. Yet, Mayor Sue McCloud blamed city staff for sending the letter even though the contents of the letter represented a change in policy and the Mayor sets policy for the City. Moreover, the City Administrator does not act without the knowledge and approval of the Mayor, ever.

ADDENDUM (including Sources):
Afghanistan duty costs city worker his paycheck, MARY BROWNFIELD, The Carmel Pine Cone, October 23, 2009)

Benefits lost after husband deployed overseas, ABC7 News
Cheryl Jennings (3:45)


Carmel restores Nat'l Guard's benefits, ABC7 News
Lisa Amin Gulezian (1:56)


Sex Plot
Carmel’s alleged harassment case thickens, goes international.
Oct. 29, 2009 / Kera Abraham, MONTEREY COUNTY WEEKLY


Called Out
Carmel changes tune on benefits for employees deployed to military service November 03, 2009 / Kera Abraham, MONTEREY COUNTY WEEKLY


Agenda Item Summary, L. Consideration of a Resolution authorizing the payment of salary and benefit difference to city employees who have been activated into military service from the National Guard or from the inactive military reserves, Assistant City Administrator Heidi Burch, November 3, 2009

Saturday, November 07, 2009

The Carmel-by-the-Sea WATCHDOG! Recommends MONTEREY BAY PACIFIC COAST LIFESTYLES NETWORK

ABSTRACT: Created in October 2009 by LaVern Williams, Internet Business - and Professional Guitarist and Singer, the MONTEREY BAY PACIFIC COAST LIFESTYLES NETWORK blog has interesting narrative, awesome photos and informative links for residents, our guests and visitors. Highly Recommended!

MONTEREY BAY PACIFIC COAST NETWORK &
MONTEREY CA TOURISM INFO - MONTEREY
COUNTY, CARMEL CA


FIND MONTEREY CA RESOURCES FOR MONTEREY BAY, MONTEREY COUNTY, MONTEREY PENINSULA, MONTEREY AQUARIUM, MONTEREY FISHERMAN'S WHARF, MONTEREY INFO FOR CARMEL BY THE SEA, PACIFIC GROVE, PEBBLE BEACH, 17 MILE DRIVE, BIG SUR, MONTEREY NATIONAL MARINE SANCTUARY, MONTEREY HOTELS, MOTELS, MONTEREY RESTAURANTS, GALLERIES, BOATING, MONTEREY WHALE TOURS. MONTEREY EVENTS, MONTEREY REAL ESTATE, COLLEGE, MONTEREY SHOPS, SEA LIONS, OTTERS, WHALES, SEABIRDS, VINEYARDS, MONTEREY HISTORY, TOURISM, TRAVEL, LODGING, ACCOMMODATIONS, WEDDINGS

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Created, Written & Photos by LaVern Williams, Copyrights 2009 by Williams Publishing.
Contact Information: LaVern Williams @ Williams Publishing @ MontereyBayNet@aol.com

Friday, November 06, 2009

'MINUTES’ for Five Noteworthy 3 November 2009 City Council Agenda Items

“MINUTES”
CITY COUNCIL MEETING
CITY OF CARMEL-BY-THE-SEA
November 3, 2009


VII. Consent Calendar
These matters include routine financial and administrative actions, which are usually approved by a single majority vote. Individual items may be removed from Consent by a member of the Council or the public for discussion and action.

E. Consideration of a Resolution authorizing a contract with Haro, Kasunich and Associates for geotechnical investigation on a road stabilization project on 2nd Avenue between Lopez Avenue and North Casanova Street in an amount not to exceed $11,980.

L. Consideration of a Resolution authorizing the payment of salary and benefit difference to city employees who have been activated into military service from the National Guard or from the inactive military reserves.


Council Member ROSE requested a separate vote on Item L; ROSE personally drafted Item L Resolution and requested a unanimous vote on L, seconded by Council Member TALMAGE. City Attorney FREEMAN stated the Resolution effective October 1, 2009.

Mayor McCloud opened the meeting to public comment.

Nine Public speakers, including but not limited to, Monte Miller I (also submitted petition in support of John Hanson), Carolyn Hardy, Colin MacDonald, Clayton Anderson, Mike Brown, Michael LePage and Linda Anderson, addressed the public, council members and staff. Comments included calling on the City Council to send a letter of apology to John Hanson and issue an apology to the public for this “embarrassment;” explain how and why this “serious failure of judgment” occurred and who was responsible for this “inhumane act;” and what were the motives for sending the letter to John Hanson.

Council Members did not explain how and why the City sent a letter to John Hanson advising him of the cessation of his pay differential and medical benefits for his family or who was responsible for the action.

Council Member ROSE moved adoption of the Consent Item L of the Consent Agenda, seconded by Council Member TALMAGE and carried unanimously.

Later, Council Member TALMAGE moved adoption of the Consent Item E. along with other items on the Consent Agenda, seconded by Council Member ROSE and carried unanimously.

VIII. Public Hearings
If you challenge the nature of the proposed action in Court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the City Council at, or prior to, the public hearing.

A. Consideration of an appeal of the Planning Commission’s decision to certify an Environmental Impact Report and deny a project for the demolition of an existing building and the construction of a mixed-use development including a two-level underground parking garage, five market-rate condominiums, two low-income housing units, and commercial floor area. The project location is the SE corner of Dolores and 7th (Homescapes Building). The appellant is John Mandurrago.


Planning Consultant Brian Roseth presented the staff report.

Council Member ROSE summarized an October 27, 2009 letter from attorney Dennis Beougher, Lombardo & Gilles, LLP.

Dennis Beougher, Counsel for appellant John Mandurrago, addressed Council regarding corrections and clarifications of the record.

Appellant John Mandurrago addressed Council expressing a desire to have a decision by the City Council.

Mayor McCloud opened the meeting to public comment.

Barbara Livingston addressed Council in support of the Planning Commission's decision and staff recommendation.

Mayor McCloud closed the hearing to public comment.

Council Member ROSE moved to uphold the decision of the Planning Commission and deny the appeal, seconded by Council Member TALMAGE and carried by the following roll call:

AYES: COUNCIL MEMBERS: HAZDOVAC, ROSE, SHARP, TALMAGE and McCLOUD
NOES: COUNCIL MEMBERS: NONE
ABSENT: COUNCIL MEMBERS: NONE
ABSTAIN: COUNCIL MEMBERS: NONE

XI. Orders of Council

D. Consideration of modifications to the City’s Volumetric Standards, as established in CMC Section 17.10.030.


Agenda Item D was continued.

E. Receive report and provide policy direction on proposed extension of the holiday season for placement of lights.

City Administrator Rich Guillen presented the report.

Mayor McCloud opened the meeting to public comment.

Erling Lagerholm, Carrie Theis (Carmel Innkeepers Association) and Monte Potter (Carmel Chamber of Commerce) addressed the Council in support of the holiday light extension.

Mayor McCloud closed the meeting to public comment.

Unanimous consensus regarding policy direction for the extension of the holiday season for placement of lights from the third Wednesday in November to Tuesday after President’s Day in February.