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.