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