THE FLANDERS FOUNDATION v. CITY OF CARMEL-BY-THE-SEA (M99437)

ABSTRACT: The Flanders Foundation, a California Nonprofit Public Benefit corporation, filed a Petition for Writ of Mandamus against the City of Carmel-by-the-Sea and the City Council of the City of Carmel-by-the-Sea on June 12, 2009, within 30 calendar days of the City’s filing of the Notice of Determination. The Attorneys for Petitions are the Brandt-Hawley Law Group, specifically Susan Brandt-Hawley (SBN 095907). Selected excerpts and paraphrased portions of the eight pages PETITION FOR WRIT OF MANDAMUS are presented from the INTRODUCTION, JURISDICTION, PARTIES and GENERAL ALLEGATIONS sections. The FIRST CAUSE OF ACTION VIOLATION OF CEQA, SECOND CAUSE OF ACTION VIOLATION OF CALIFORNIA GOVERNMENT CODES AND THE ‘WHEREFORE, Petitioner prays:’ sections are reproduced in their entirety.


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 Number: M99437
Superior Court of the State of California for the County of Monterey

PETITION FOR WRIT OF MANDAMUS
California Environmental Quality Act (CEQA)

INTRODUCTION
“The Flanders Foundation, a California non-profit association, brings this mandamus action in the public interest to enforce mandatory laws preventing the unlawful sale of the historic Flanders Mansion and its environs.”

“The sale conflicts with the City’s General Plan and the Coastal Land Use Plan policies regarding open space and preservation, impacts famous local views to and from the mansion, and has foreseeable impacts to the mansion and environs stemming from the transfer of a cultural resource out of the City’s hands and into private control. The Flanders Mansion parcel is central to the Mission Trail Nature Preserve and loss of public access to the Flanders parcel would also concededly restrict access to the Preserve and open space.”

“The Flanders Foundation and many City residents have decried the unnecessary loss of an incomparable City asset in light of significant environmental impacts and the insupportable claim that a lease alternative would be infeasible. The City is solvent and the Flanders Mansion will continue to escalate in value so that even a “no project” option is economically viable. Having exhausted its administrative remedies, the Flanders Foundation now looks to this Court to protect the historic integrity of the magnificent Flanders Mansion and the Mission Trail Nature Preserve trail system and sensitive environs. The City’s continuing costly effort to divest itself of Flanders Mansion violated CEQA and is a waste of public funds.”

“A preemptory writ must issue to set aside the unlawful sale of Flanders Mansion.”

JURISDICTION
Public Resources Code Section 21168 and 21168.5 and Code of Civil Procedure section 1085 and 1094.5

PARTIES
“The Flanders Foundation, a California Nonprofit Public Benefit corporation formed in 1998 to promote the restoration and protection of the historic qualities and integrity of the Flanders Mansion, one of Carmel-by-the-Sea’s most historic houses, for the benefit of the people of Monterey County and California.”

Respondents, City of Carmel-by-the-Sea and its Council

GENERAL ALLEGATIONS
“The City proposes the sale of a 1.25-acre parcel of City land located within the Mission Trail Nature Preserve that includes the historic Flanders Mansion.”

“The Flanders Mansion parcel is a special scenic resource located within the Mission Trail Nature Preserve, a 35-acre park in the southeastern portion of the City. The site is zoned Improved Parkland (P-2).”

“The 1924 Flanders Mansion, built as the residence of the Flanders family, has been listed on the National Register of Historic Places since 1989...”

The Flanders family built “Outlands” on the original 80 acres purchased from Dr. McDougal of the Carnegie Institute in Carmel.
1950s: Robert A. Doolittle bought 16.5 acres, across Rio Rd from the Mission.
1971: Bill Doolittle, Robert’s nephew, donated one-third of the property and sold the remaining portion of the City
1972: The City purchased the Flanders Mansion and 14.9 acres from the Flanders estate for $275,000.
The Doolittle (16.5 acres) and the Flanders (14.9 acres) parcels constitute the Mission Trail Park.

"The Foundation has no adequate remedy at law. Absent the relief prayed for in this Petition, the project will proceed with significant irreparable and irreversible environmental impacts to the Flanders Mansion and Mission Trails Nature Preserve. The City has the ability to correct its violations of law but has failed and refused to do so."

FIRST CAUSE OF ACTION
VIOLATION OF CALIFORNIA ENVIRONMENTAL QUALITY ACT

17. Petitioner incorporates all previous paragraphs as if fully set forth.
18. The City abused its discretion and failed to act in the manner required by law in approving the project because, among other things, its findings are unsupported and:
a. The City unlawfully approved a project with significant environmental impacts when the record discloses feasible alternatives and mitigation measures that would avoid significant environmental impacts, and those alternatives and mitigation measures were not adopted;
b. The City unlawfully adopted a statement of overriding considerations unsupported by substantial evidence;
c. The EIR is inadequate and incomplete because, among other things identified in the administrative record: it defers analysis of environmental impacts and the development and implementation of mitigation measures regarding the foreseeable uses of Flanders Mansion following the sale of the property, including uses of public agencies as delineated in the Government Code; the EIR inadequately analyzes general plan and local coastal plan consistency; the EIR analyzes an inadequate range of alternatives and fails to include necessary analysis of the alternatives that it does study; and the EIR’s conclusions are not supported by substantial evidence;
d. The EIR failed to respond to comments, and failed to allow comments on the CBRE economic report or to include it within the Draft EIR;
e. The EIR’s revision of the project objectives required recirculation;
f. The EIR failed to consider the sale or lease of a parcel smaller than the 1.252 now proposed for sale;
g. The EIR failed to adequately analyze the ‘no project’ alternative;
h. The EIR’s cost analysis of the proposed project and the alternatives is incomplete, inaccurate, and inadequate;
i. The EIR’s analysis of traffic impacts is inadequate;
j. The EIR fails to adequately analyze impacts of sale on the Lester Rowntree Arboretum due to proposed intensification of use of Flanders Mansion;
k. The City failed to make findings supported by substantial evidence as to feasibility of project alternatives and mitigation measures. The City’s analysis of feasibility of alternatives was not relevant to parkland property that is not expected to operate at a profit. The City findings fail to concede that it is economically practical to maintain ownership of Flanders Mansion because its economic value remains intact.

SECOND CAUSE OF ACTION
VIOLATION OF CALIFORNIA GOVERNMENT CODES
19. Petitioner incorporates all previous paragraphs as if fully set forth;
20. The city abused its discretion and failed to act in the manner required by law in approving the sale of the Flanders Mansion because Government Code 65000 et seq. mandate that a jurisdiction’s land use decision be consistent with its general plan. As conceded by the EIR and repeatedly decried by the public during the administrative proceedings, the sale of Flanders Mansion is inconsistent with mandatory general plan provisions.

WHEREFORE, Petitioner prays:
1. That the Court issue a peremptory writ of mandate City of Carmel-by-the-Sea to set aside and void all approvals relating to the sale of Flanders Mansion pending full compliance with CEQA and the Government Code;
2. For Petitioner’s costs and attorney fees pursuant to Code of Civil Procedure section 1021.5; and
3. For other and further relief as the Court finds proper.

June 12, 2009 BRANDT-HAWLEY LAW GROUP

__________________
Susan Brandt-Hawley

ADDENDUM:
Public Resources Code Section 21168 and 21168.5
21168. Any action or proceeding to attack, review, set aside, void or annul a determination, finding, or decision of a public agency, made as a result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in a public agency, on the grounds of noncompliance with the provisions of this division shall be in accordance with the provisions of Section 1094.5 of the Code of Civil Procedure.
In any such action, the court shall not exercise its independent judgment on the evidence but shall only determine whether the act or decision is supported by substantial evidence in the light of the whole record.

21168.5. In any action or proceeding, other than an action or proceeding under Section 21168, to attack, review, set aside, void or annul a determination, finding, or decision of a public agency on the grounds of noncompliance with this division, the inquiry shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.

CODE OF CIVIL PROCEDURE SECTION 1084-1097
1085. (a) A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by such inferior tribunal, corporation, board, or person.
(b) The appellate division of the superior court may grant a writ of mandate directed to the superior court in a limited civil case or in a misdemeanor or infraction case. Where the appellate division grants a writ of review directed to the superior court, the superior court is an inferior tribunal for purposes of this chapter.

1094.5. (a) Where the writ is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer, the case shall be heard by the court sitting without a jury. All or part of the record of the proceedings before the inferior tribunal, corporation, board, or officer may be filed with the petition, may be filed with respondent's points and authorities, or may be ordered to be filed by the court. Except when otherwise prescribed by statute, the cost of preparing the record shall be borne by the petitioner. Where the petitioner has proceeded pursuant to Section 68511.3 of the Government Code and the Rules of Court implementing that section and where the transcript is necessary to a proper review of the administrative proceedings, the cost of preparing the transcript shall be borne by the respondent. Where the party seeking the writ has proceeded pursuant to Section 1088.5, the administrative record shall be filed as expeditiously as possible, and may be filed with the petition, or by the respondent after payment of the costs by the petitioner, where required, or as otherwise directed by the court. If the expense of preparing all or any part of the record has been borne by the prevailing party, the expense shall be taxable as costs.
(b) The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.
(c) Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence. In all other cases, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.
(d) Notwithstanding subdivision (c), in cases arising from private hospital boards or boards of directors of districts organized pursuant to The Local Hospital District Law, Division 23 (commencing with Section 32000) of the Health and Safety Code or governing bodies of municipal hospitals formed pursuant to Article 7 (commencing with Section 37600) or Article 8 (commencing with Section 37650) of Chapter 5 of Division 3 of Title 4 of the Government Code, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record. However, in all cases in which the petition alleges discriminatory actions prohibited by Section 1316 of the Health and Safety Code, and the plaintiff makes a preliminary showing of substantial evidence in support of that allegation, the court shall exercise its independent judgment on the evidence and abuse of discretion shall be established if the court determines that the findings are not supported by the weight of the evidence.
(e) Where the court finds that there is relevant evidence that, in the exercise of reasonable diligence, could not have been produced or that was improperly excluded at the hearing before respondent, it may enter judgment as provided in subdivision (f) remanding the case to be reconsidered in the light of that evidence; or, in cases in which the court is authorized by law to exercise its independent
judgment on the evidence, the court may admit the evidence at the hearing on the writ without remanding the case.
(f) The court shall enter judgment either commanding respondent to set aside the order or decision, or denying the writ. Where the judgment commands that the order or decision be set aside, it may order the reconsideration of the case in the light of the court's opinion and judgment and may order respondent to take such further action as is specially enjoined upon it by law, but the judgment shall not limit or control in any way the discretion legally vested in the respondent.
(g) Except as provided in subdivision (h), the court in which proceedings under this section are instituted may stay the operation of the administrative order or decision pending the judgment of the court, or until the filing of a notice of appeal from the judgment or until the expiration of the time for filing the notice, whichever occurs first. However, no such stay shall be imposed or continued if the court is satisfied that it is against the public interest. The application for the stay shall be accompanied by proof of service of a copy of the application on the respondent. Service shall be made in the manner provided by Title 5 (commencing with Section 405) of Part 2 or Chapter 5 (commencing with Section 1010) of Title 14 of Part 2. If an appeal is taken from a denial of the writ, the order or decision of the agency shall not be stayed except upon the order of the court to which the appeal is taken. However, in cases where a stay is in effect at the time of filing the notice of appeal, the stay shall be continued by operation of law for a period of 20 days from the filing of the notice. If an appeal is taken from the granting of the writ, the order or decision of the agency is stayed pending the determination of the appeal unless the court to which the appeal is taken shall otherwise order. Where any final administrative order or decision is the subject of proceedings under this section, if the petition shall have been filed while the penalty imposed is in full force and effect, the determination shall not be considered to have become moot in cases where the penalty imposed by the administrative agency has been completed or complied with during the pendency of the proceedings.
(h) (1) The court in which proceedings under this section are instituted may stay the operation of the administrative order or decision of any licensed hospital or any state agency made after a hearing required by statute to be conducted under the Administrative Procedure Act, as set forth in Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code, conducted by the agency itself or an administrative law judge on the staff of the Office of Administrative Hearings pending the judgment of the court, or until the filing of a notice of appeal from the judgment or until the expiration of the time for filing the notice, whichever occurs first. However, the stay shall not be imposed or continued unless the court is satisfied that the public interest will not suffer and that the licensed hospital or agency is unlikely to prevail ultimately on the merits. The application for the stay shall be accompanied by proof of service of a copy of the application on the respondent. Service shall be made in the manner provided by Title 5 (commencing with Section 405) of Part 2 or Chapter 5 (commencing
with Section 1010) of Title 14 of Part 2.
(2) The standard set forth in this subdivision for obtaining a stay shall apply to any administrative order or decision of an agency that issues licenses pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code or pursuant to the Osteopathic Initiative Act or the Chiropractic Initiative Act. With respect to orders or decisions of other state agencies, the standard in this subdivision shall apply only when the agency has adopted the proposed decision of the administrative law judge in its entirety or has adopted the proposed decision but reduced the proposed penalty pursuant to subdivision (b) of Section 11517 of the Government Code; otherwise the standard in subdivision (g) shall apply.
(3) If an appeal is taken from a denial of the writ, the order or decision of the hospital or agency shall not be stayed except upon the order of the court to which the appeal is taken. However, in cases where a stay is in effect at the time of filing the notice of appeal, the stay shall be continued by operation of law for a period of 20 days from the filing of the notice. If an appeal is taken from the granting of the writ, the order or decision of the hospital or agency is stayed pending the determination of the appeal unless the court to which the appeal is taken shall otherwise order. Where any final administrative order or decision is the subject of proceedings under this section, if the petition shall have been filed while the penalty imposed is in full force and effect, the determination shall not be considered to have become moot in cases where the penalty imposed by the administrative agency has been completed or complied with during the pendency of the proceedings.
(i) Any administrative record received for filing by the clerk of the court may be disposed of as provided in Sections 1952, 1952.2, and 1952.3.
(j) Effective January 1, 1996, this subdivision shall apply to state employees in State Bargaining Unit 5. For purposes of this section, the court is not authorized to review any disciplinary decisions reached pursuant to Section 19576.1 of the Government Code.

CODE OF CIVIL PROCEDURE SECTION 1021.5. Upon motion, a court may award attorneys' fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any. With respect to actions involving public entities, this section applies to allowances against, but not in favor of, public entities, and no claim shall be required to be filed therefor, unless one or more successful parties and one or more opposing parties are public entities, in which case no claim shall be required to be filed therefor under Part 3 (commencing with Section 900) of Division 3.6 of Title 1 of the Government Code.
Attorneys' fees awarded to a public entity pursuant to this section shall not be increased or decreased by a multiplier based upon extrinsic circumstances, as discussed in Serrano v. Priest, 20 Cal. 3d 25, 49.

Litigation Record for Susan Brandt-Hawley