Thursday, April 30, 2009

Flanders Foundation Attorney Susan Brandt-Hawley’s Testimony on Reasons Why the City’s Proposed Sale of the Flanders Mansion Property is ‘Unlawful’

ABSTRACT: In oral testimony at the Special City Council Meeting on April 28, 2009, Flanders Foundation Attorney Susan Brandt-Hawley presented reasons why what the City is proposing is “unlawful.” Attorney Brandt-Hawley covered proper procedures for the setting of Commission meetings, California Government Code 54220 dealing with “surplus land,” the Economic Analysis, the Environmental Impact Report for the Sale of the Flanders Mansion Property, the City’s General Plan and the Statement of Overriding Considerations. A COMMENT is made with regard to the successful resolution of this matter.

Susan Brandt-Hawley, Attorney for Flanders Foundation:

"...Thank you very much. I appreciate it. First of all, under the Environmental Defense Project Case recently, the Planning Commission should have been able to act before this hearing was set, this hearing before you is premature because you haven’t had the time to consider recommendations before setting this hearing, so that is premature."

"I’d also like to follow up on the comments by Jim Wright regarding the
Government Code 54220. As you know the Superior Court found that this City must comply with that section of the Government Code in any future consideration of the sale of the Flanders because the Mansion must be offered for sale or lease to both park agencies, public agencies and most concerned with affordable housing. You haven’t done that, you haven’t declared a surplus and you haven’t discussed the environmental implications in your EIR of what that could mean. There’s nothing in the Government Code that says your Conditions of Sale must be honored in such a transaction, so there could be affordable housing, moderate income housing, all kinds of things could happen because you have this double whammy here where you have not only a National Register building but parkland and there’s all these special conditions. The EIR does not look at this and I would suggest that you can’t approve this today without looking at those impacts which are very real and very special things that apply."

"The Economic Report that’s prepared should have been in the EIR and should have been subjected to city review and public comment as part of that. Beyond that the economic report doesn’t do what it needs to do...but the Court told the City that you hadn’t found infeasibility of a project that would avoid the sale of Flanders And this is not a matter of profit, and I know Mr. Lloyd said a similar thing, but the economic analysis is not about whether or not the City is going to make, have a profitable way of leasing Flanders, the question is ‘Is it practical to proceed with the ownership in a financial way’ and there’s nothing in the record that indicates that the City needs revenues, that the city can’t afford to fix Flanders or most importantly that at the end of the day if the city rehabilitates Flanders that it will be left in an untenable economic position. The economic report says that the Mansion is worth a certain amount of money, I think its $2.8 million, that it may cost a little over $1 million to fully rehabilitate it. It also says that at the end of that time Flanders will be worth $4 million that in fact the value of the property, even on the market, is going to be the current value plus whatever money you put into it. It’s not a matter of you are going to put a bunch of money into a building and then it’s going to be worth less. That might be something one could argue is some kind of economic issue. Beyond that, when you have parkland, it’s a public amenity and the economic return is really not the question and your General Plan says so."

"Moving to the General Plan issues; there’s a lot more information in this record than there was the last time that this Council approved the sale of Flanders and the General Plan provisions that are substantive are being violated here. There’s no balancing...your findings say that you’re balancing the policies in the General Plan. But what you have on one side is a whole list of policies that others have spoken to today, that indicate that you want to preserve parkland, that you want to preserve open space that you want to preserve this kind of amenity. The other policies that you are claiming to balance just say that if in fact you divest yourself of Flanders certain things have to happen. Those aren’t substantive policies. That’s responding to something like maybe there’s some imperatives that would force you to sell and in that event certain things would need to happen. But those aren’t substantive policies that can be balanced and the EIR analysis was correct that in fact this sale would be inconsistent with those General Plan policies. Therefore you can’t really go ahead and do it and there’s no way to balance that away."

"The Statement of Overriding Considerations you can’t really get to because you can’t show that it’s infeasible to keep Flanders. But if you do get to the Statement of Overriding Considerations it’s not supported by substantial evidence. The factors that you’re claiming are public benefits are in fact inconsistent with the General Plan. And it’s very similar to what happened in a case, a little bit similar;
Uphold our Heritage vs. Town of Woodside in which Steve Jobs of Apple Computer wants to demolish a historic resource and the City approved it, approved the demolition a few years back and said they had to find some kind of overriding public benefit and what they said was well it will increase open space because we are going to demolish a 18,000 sq. ft. building, he wants to build a 6,000 sq. ft. building, and therefore you’ll have a net increase in open space. And the court said no, that’s totally against your General Plan you don’t demolish historic buildings to create open space. That’s really not a public benefit. And you are doing pretty much the same thing here. You’re calling a public benefit something that’s divesting parkland and historic resources in a manner that your General Plan, none of your plans have contemplated. That is not a significant public benefit and you can’t justify this project by that."

"The EIR is inadequate both for failing to look at the surplus land impacts; also it failed to adequately respond to comments. There were comments made about the importance of the City looking at its revenues, looking at its needs justifying somehow this sale by showing that there are city needs that can’t be met unless this sale occurs. None of that’s in the record and the EIR is inadequate for failing to look at that."

"A little bit more then on the economic analysis; the experts here explain that there weren’t really comparables and that’s true...They talk about medical buildings and office buildings and comparing things. This is such a unique property, there aren’t comparables. There isn’t a way to say that there wouldn’t be a market for it or to talk about what the market would be for it. Ms. Sedway tonight said there was “little market” quote unquote for it and that they didn’t really have comparables. And you cannot rely on a report that admittedly doesn’t have the kind of backup that you would need to justify."

"...I really appreciate the time...Thank you very much."

(Source: Archived Videos, Special City Council Meeting, April 28, 2009, 01:41:50 – 01:49:15)

The City Council would be wise to soberly reflect on the statements made by Flanders Foundation attorney Susan Brandt-Hawley, abandon an entrenched, backward looking, antagonistic mindset as displayed by City Council Members Gerard Rose and Paula Hazdovac and direct the City Administrator to resolve this matter in a good faith, constructive and amicable manner in partnership with the Flanders Foundation.

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.

Plaintiff and Respondent,
Defendant and Appellant;
Real Party in Interest and Appellant.

(San Mateo County
Super. Ct. No. 444270)

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