ABSTRACT: In a Letter to the Editor, The Carmel Pine Cone (11/20/2009), attorney Skip Lloyd explains “how it can be that the pending lawsuit over the EIR regarding the Flanders sale, if lost by the city, could void the public vote on the issue as presented to the voters.” Highlights of the letter and a link to the entire letter are presented.
HIGHLIGHTS of ‘Flanders election a mistake:’
“... the pending lawsuit over the EIR regarding the Flanders sale, if lost by the city, could void the public vote on the issue as presented to the voters.”
“... it should be recalled that the citizens would not even have had their required vote in the Flanders matter if the city council had not been sued and forced to hold the election regarding Flanders which the law required.”
“The reasoning behind the CRA’s statement was that, if the city lost the lawsuit, the council would have wasted the cost of the election and have put the community through an election wherein, in the end, one’s vote was meaningless.”
“... if one’s vote turns out to be wasted, it is the city council’s fault, not that of those who brought the lawsuit in order to make the city council comply with CEQA’s purpose to adequately explore the environmental impacts of a sale of Flanders, so that the city and the public were fully informed before voting on the issue.”
(Source: Letters to the Editor, Flanders election a mistake, Francis (“Skip”) Lloyd, Carmel, The Carmel Pine Cone, 28A)
Saturday, January 30, 2010
Friday, January 29, 2010
Petitioner’s Reply Brief in Support of Petition for Writ of Mandamus: FLANDERS FOUNDATION v. CITY OF CARMEL-BY-THE-SEA, CITY OF CARMEL-BY-THE-SEA CITY COUNCIL (M99437)
ABSTRACT: With regard to FLANDERS FOUNDATION, Petitioner and Plaintiff, v. CITY OF CARMEL-BY-THE-SEA, CITY OF CARMEL-BY-THE-SEA CITY COUNCIL, Respondents and Defendants (Case No. M99437), selected excerpts from Petitioner’s Reply Brief are presented; emphasis is placed on the “Analysis of Economic Feasibility,” and it is reproduced in its entirety. The Hearing is scheduled for Wednesday, February 10, 2010, Courtroom 14, Judge Kay T. Kingsley, Monterey Courthouse.
BRANDT-HAWLEY LAW GROUP
Susan Brandt-Hawley, SBN 75907
P.O. Box 1659
Glen Ellen, CA. 95442
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 COUCIL OF THE CITY OF CARMEL-BY-THE-SEA
Case No. M99437
Petitioner’s Reply Brief in Support of Petition for Writ of Mandamus
California Environmental Quality Act [CEQA]
Date: February 10, 2010
Time: 9:00 a.m.
Dept.: 17
Filed January 27, 2010
Introduction
The feasibility of continued public ownership and use of public parkland is not tied to a profit rubric. Public parks are amenities, not commercial properties acquired to generate income. As referenced in Flanders 1, the Carmel Municipal Code explains the purpose of park-zoned land is to “preserve publicly owned park and beachlands for the benefit and enjoyment of present and future generations” and to “provide appropriately located areas for recreation.” There is, understandably, no mention of economic gain in the definition. Yet the City continues to assert that profit-oriented analysis of continued public ownership of Flanders is relevant to the feasibility of leasing the mansion, without any showing that the City needs and cannot generate funds in other ways.
As to the new CBRE economic report, the credentials of the City’s experts are sufficient but the questions addressed are not those required by CEQA and ordered by this Court in Flanders 1. This Court rejected the City’s claims that a sale of Flanders Mansion was necessary to “generate funds for [the City’s] capital improvements.” It held that the City had not shown a need to generate funds from Flanders to fund its other projects and noted that the fact that a lease alternative could be more expensive or less profitable cannot prove financial infeasibility, citing Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564-565.
The economic analysis prepared in response to the peremptory writ considered Flanders’ potential to independently operate at a profit, rather than any need to sell the mansion in order to finance other City projects. The City contends that its economic health and needs are irrelevant to the question of Flanders profitability. It has missed the point, despite the efforts of Flanders Foundation to explain the error. “This is not a matter of profit...the question is ‘is it practical to proceed with ownership...?’ 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 if the city rehabilitates Flanders, it will be left in an untenable economic position.”] This is not a project to develop private property for profit.
Flanders Mansion is an integral part of Mission Trails Nature Preserve and the City agrees that its sale is a significant unavoidable environmental impact under CEQA because it will result in the “loss of City ownership of locally-significant parkland.” It therefore cannot be approved if there is a feasible alternative to sale. The City did not acquire the mansion to generate income, but as a park. It currently retains its P-2 parkland zoning. The City acknowledges that since the City’s acquisition in 1972, the mansion has been used as an art institute, as offices for the Carmel Heritage Society, as library and offices for the Lester Rowntree Arboretum Committee, and as a residence for various City employees and caretakers.
The California Legislature makes it difficult for public entities to sell parkland for public entities to sell parkland because parks are public amenities rather than profit-generating land uses. While elected decisionmakers have broad discretion to make land use decisions, CEQA imposes constraints to ensure environmental protection and the Government Code adds restrictions to divestment of parkland.
Analysis of Economic Feasibility
a. Feasibility Analysis should be in the EIR. The Flanders Foundation continues to rely on its opening brief’s discussion on this issue. On a minor point, the city’s repeated references to San Franciscans Upholding the Downtown Plan v. City of San Francisco (2002) 102 Cal.App.4th 656 as a Third District case are inaccurate: San Francisco is home to the First District Court of Appeal.
The City’s claims that Guideline section 15131 has statutory authority are unsupported. Section 15131, a copy of which was attached to the opening brief along with the Office of Planning and Research Official Discussion, references various general sections of the Public Resources Code for the underlying “authority cited” – not including section 21081.5 now relied upon by the City. Guideline section 15131 remains without statutory authority in its statement that economic information relevant to feasibility need not be contained in an EIR. Without such authority, it cannot lawfully be followed.
Public Resources Section 21081.2 requires that an agency’s CEQA findings made under Public Resources Code section 21081 be supported by substantial evidence in the record. Such evidence must first include a lawfully certified EIR; section 21081.5 cannot be reasonably interpreted as allowing findings relative to CEQA compliance to be made without any consideration of the contents of the EIR. That would eviscerate the entire framework of CEQA. Once an EIR is certified as adequate, a lead agency may also consider additional evidence in the record in making its findings, and absent significant new information or changed circumstances no supplementation of the EIR would be triggered. (Public Resources Code 21166.)
Guideline section 15126.6 (d) requires each EIR to “include sufficient information about each alternative to allow meaningful evaluation, analysis, and comparison with the proposed project.” Yet, as the City explains, San Franciscans Upholding indeed ruled not only that an EIR’s analysis of alternatives need not address economic factors – even when economics form the basis for finding alternatives infeasible – but went much further to state that EIRs need not analyze alternatives at all but only identify them. (San Franciscans Upholding, supra, 102 Cal.App.4th 656, 690; City Brief at 25-26.) Since no other CEQA case has so held, before or since, San Franciscans Upholding stands alone in this overly-narrow and incorrect statement of the function of an EIR alternatives section.
Among myriad examples to the contrary, the California Supreme Court referred to the importance of EIR analysis of alternatives 20 years ago in the landmark Citizens of Goleta Valley v. Board of Supervisors (Goleta 2) (1990) 52 Cal.3d 553;
CEQA establishes no categorical legal imperative as to the scope of alternatives to be analyzed in an EIR. Each case must be evaluated on its facts, which in turn must be reviewed in light of the statutory purpose. Informed by that purpose, we here reaffirm the principle that an EIR for any project subject to CEQA review must consider a reasonable range of alternatives to the project, ... which: (1) offer substantial environmental advantages over the project proposal (Pub. Resources Code 21002); and (2) may be ‘feasibly accomplished in a successful manner’ considering the economic, environmental, social and technological factors involved. (Citations)
More recently, the Supreme Court decided In re Bay Delta (2008) 43 Cal.4th 1143, and in holding that an EIR’s consideration of ten project alternatives was sufficient, consistently described CEQA’s legal requirement for alternatives analysis:
The EIR is the heart of CEQA, and the mitigation and alternatives discussion forms the core of the EIR. (Citation.) The basic framework for analyzing the sufficiency of an EIR’s description of alternatives is set forth by the Legislature in CEQA, by the Governor’s Office of Planning and Research in the CEQA Guidelines ... and by this court in [Goleta 2]. CEQA requires that an EIR, in addition to analyzing the environmental effects of a proposed project, also consider and analyze project alternatives that would reduce adverse environmental impacts.
Aside from San Franciscans Upholding, there is no case of which Flanders Foundation’s counsel is aware that holds that an EIR “itself” need not “contain an analysis of the feasibility of the various project alternatives or mitigation measures that it identifies.” (San Franciscans Upholding, supra, 102 Cal.App. 4th 656, 690.) This singular and restrictive interpretation of the Public Resources Code should not be followed by this Court, as it is inconsistent with case law and with the policies and purposes of CEQA.
Further, the City misunderstands the findings referenced in Public Resources Code section 21081 when it argues the Pub. Resources Code section 21081.5 somehow applies to questions of EIR adequacy. Section 21081.5 provides in its entirety that “[i]n making the findings required by paragraph (3) of subdivision (a) of Section 21081, the public agency shall base its findings on substantial evidence in the record.” (Pub. Resources Code 21081.5.) The referenced subsection (3)(a) addresses lead agency approval findings required for any project with a significant impact, but on the sole question of whether or not project mitigation measures and alternatives that were identified in a project EIR are infeasible. (Pub. Resources Code 21081 (a)(3).) It has no application to the question of EIR adequacy, as already explained in the opening brief.
The City’s colorful suggestion that the Court is being coaxed onto a ledge by the suggestion that an EIR’s alternatives analysis should address economic information in cases in which feasibility hinges on such information is itself extreme. Despite the handful of unsupported cases in the First and Fifth appellate districts, each relying on one another without any statutory underpinnings, there is no authority in the Public Resources Code for a conclusion that economics need not be included in an EIR’s analysis of alternatives even when highly relevant. As the City concedes, many cases in fact do so. The illogical idea that economic information may invariably be excluded is likely related to earlier sections of the CEQA Guidelines that provide that the economic impacts of projects need not be studied, since EIR’s focus on the environment rather than on economics. (E.g., Guideline 15064 (e).)
Before economic considerations are to relied upon to determine that an environmentally superior project alternative is infeasible, decisionmakers and the public should be provided with objective analysis of the alternative within the prescribed EIR process, as laid out in Guideline section 15126.6 (d) and consistent with the policies of CEQA. (E.g., Public Resources Code 21002 [“...it is policy of the state that public agencies should not approve projects if there are feasible alternatives ... which would substantially lessen the significant environmental impacts... and the procedures required ... are intended to assist public agencies in systematically identifying ... feasible alternatives ...”] CEQA compels process. It is a meticulous process designed to ensure that the environment is protected ... the EIR is the heart and soul of CEQA.” (Planning and Conservation League v. Department of Water Resources (2000) 83 Cal.App. 4th 892.) In Save Our Peninsula Committee v. Monterey County Board of Supervisors (2001) 87 Cal.App. 4th 99, the Sixth District consistently underscored that “[t[he integrity of the [CEQA} process is dependent on the adequacy of the EIR.”
Economic feasible is particularly relevant to cases involving historic resource rehabilitation. Without statutory authority, Guideline section 15131 cannot be followed to exclude relevant analysis, and the unsupported line of cases rejecting economic feasibility inquiry has not been and should not be endorsed in the Sixth District. The City should have included the CBRE report’s analysis within the Revised EIR and subjected it to public and agency review, comment, and responses. The City chose to exclude it from the EIR and thereby failed to proceed in the manner required by law. A writ should correct this error.
b. The CBRE Report was Inadequate. As pointed out in the Introduction, the City’s claim that the City’s budget and financial needs are irrelevant to the economic feasibility of a lease of Flanders springs from its misunderstanding of the point of economic feasibility analysis. The proposed demolition of the Jackling House by Steve Jobs in Uphold Our Heritage v. Town of Woodside (2007) 147 Cal.App.4th 587 was a case in which the wealth of the property owner was irrelevant to the question of whether rehabilitation of an historic home was economically feasible. The feasibility of Job’s project related no to his own wealth, but to whether the money spent to rehabilitate the Jackling House residence would be reasonable when compared to the costs of demolition and building a new home.
The economic issue in this case is different, because the Mission Trails Nature Preserve and the Flanders Mansion are parkland never intended to be profitable. Only if the City had significant debts and insufficient capital and provided a well-supported economic report to the effect that selling Flanders Mansion was the only feasible way to obtain funds to run the city might there be an economic basis for a sale of its parkland. Nothing is more relevant to the question at hand than the City’s budget and needs, and the CBRE report does not provide substantial evidence that a lease of Flanders is economically infeasible. To prove infeasibility, the City would require a different report.
C. Lease of Flanders Mansion is Feasible
The only way the Uphold our Heritage scenario would be relevant is if Carmel’s goal was to manage its property in a manner to avoid a loss of net value. But even if so, the facts do not indicate that a lease is infeasible as all indications are that any moneys spent to maintain or rehabilitate Flanders will be directly reflected in increased property value. Conceding that the “practical” pursuit of a project involves a reasonable return, it is reasonable to spend a million dollars on park property that will fully retain (and increase) its value and also serve as a public amenity. Even if it could take up to seventeen years to recoup the moneys invested, no problem is shown because the City does not deny its surplus of $11 million. Further, there is no evidence supporting the City’s assumption that it must fully rehabilitate the mansion before leasing, as the Architectural Resources Group report provided requested information for a full rehabilitation but did not conclude that all possible upgrades were necessary.
The Emporium development in San Franciscans Upholding involved a substantial redevelopment project whose commercial success was dependent on balancing costs with projected revenue streams. (San Franciscans Upholding, supra, 102 Cal.App.4th 656, 6930695.) The City points out that in that case the additional costs and lost profitability of project alternatives were “sufficiently severe to render them impractical,” and claims similarity here. Yet, what is “economically feasible” for a property that is not intended to be profitable? The City of Carmel has abandoned the claims it made in Flanders 1 that it needed to sell Flanders Mansion in order to finance other city projects; it now claims that its budget, surplus funds, and needs are irrelevant to its decision to sell the mansion. No economic infeasibility has been shown.
The City’s new argument based on California Native Plant Society v. City of Santa Cruz (CNPS), supra, 177 Cal.App.4th 957, to the effect that “policy” considerations make a lease of Flanders Mansion infeasible, is also insupportable. CNPS upheld the City of Santa Cruz’s approval of a park master plan because the City adequately justified its rejection of project alternatives that failed to meet key objectives. While the Court recognized that the project objectives reflected City policies, it did not make a broad holding that a lead agency could declare any project alternative infeasible as a matter of its undefined policy preference. If the mere invocation of “policy” were to be sufficient basis to find every project alternative infeasible, it is hard to imaging any project approval, whether public or private, that could not be justified by “policy” considerations. What City doesn’t “prefer” its approved project? Cases such as City of Marina v. Board of Trustee (2006) 39 Cal.4th 34, in which an agency’s approval was set aside, would be meaningless under such a standard.
Carmel’s reliance on the CNPS case is rather ironic, as CNPS focused on the fulfillment of long-adopted objectives to further public park amenities, including handicapped access to park trails. (CNPS, supra, 177 Cal.App.4th 957, 971, 1001.) Here, to the contrary, the sale of Flanders Mansion was found by the Revised EIR to have significant environmental impacts due to its inconsistencies with the City’s codified general plan and coastal land use policies applicable to parkland and historic resources: G5-6 [Preserve and acquire open space and parks], O5-21 [Optimize use of City parks], P5-46 [Preserve, protect, and restore areas of historical value] and P5-107 [Provide for public access and passive enjoyment of City parks and open space]. The City Council tenuously disagreed with the EIR’s determination of significant impact on this point.
Agencies appropriately enjoy wide discretion in approval of land use projects. However, when significant environmental impacts are identified that can be feasibly mitigated by a project alternative, CEQA fairly limits agencies’ discretion to ignore or reject them. The only codified policies relating to feasibility in this case are those militating against the sale of Flanders Mansion. There is no City policy supporting the sale of historic parkland, and the feasibility of a lease alternative is not trumped by an assertion of preference under the broad label of “policy.” Here, no codified policy can possibly be interpreted as being furthered by the City’s divestment of a landmark mansion located in public parkland, creating an in-holding with undisputed significant impacts on the park.
The City must “adopt the alternative that provide[s] the greater mitigation of adverse effects...” (Citizens of Goleta Valley v. Board of Supervisors (Goleta 1) 197 Cal.App.3d 1167, 1186. CEQA’a intention that public agencies “should not approve projects as proposed if there are feasible alternatives...” must be interpreted to afford the fullest possible protection to the environment within the reasonable scope of the statutory language. (Pub. Resources Code 21002; Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259.) No substantial evidence supports the City’s contention that a lease of Flanders Mansion is economically infeasible or against City “policy.” A writ should issue to set aside the approval of sale under CEQA’s substantive mandate, because of needless significant environmental impact when there is a feasible alternative.
Conclusion
The Flanders Foundation appreciates that the Court does not lightly interfere with the public policy decisions of an elected decisionmaking body such as the Carmel City Council. But when a decision has significant environmental impacts, CEQA overrides the Council’s discretion until its mandated procedures and substance are met.
The peremptory writ should issue because the Revised Flanders EIR failed to assess environmental impacts related to compliance with the Surplus Land Act, failed to adequately respond to comments, and failed to analyze the feasibility of a viable alternative. The City’s findings violated the substantive mandate of CEQA because no substantial evidence supports the infeasibility of a lease alternative or the statement of overriding considerations.
The Court’s enforcement of CEQA is respectfully requested to provide great and longstanding public benefit to the citizens of Carmel.
Respectfully submitted,
BRANDT-HAWLEY LAW GROUP
Susan Brandt-Hawley
Attorney for Petitioner
January 25, 2010
BRANDT-HAWLEY LAW GROUP
Susan Brandt-Hawley, SBN 75907
P.O. Box 1659
Glen Ellen, CA. 95442
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 COUCIL OF THE CITY OF CARMEL-BY-THE-SEA
Case No. M99437
Petitioner’s Reply Brief in Support of Petition for Writ of Mandamus
California Environmental Quality Act [CEQA]
Date: February 10, 2010
Time: 9:00 a.m.
Dept.: 17
Filed January 27, 2010
Introduction
The feasibility of continued public ownership and use of public parkland is not tied to a profit rubric. Public parks are amenities, not commercial properties acquired to generate income. As referenced in Flanders 1, the Carmel Municipal Code explains the purpose of park-zoned land is to “preserve publicly owned park and beachlands for the benefit and enjoyment of present and future generations” and to “provide appropriately located areas for recreation.” There is, understandably, no mention of economic gain in the definition. Yet the City continues to assert that profit-oriented analysis of continued public ownership of Flanders is relevant to the feasibility of leasing the mansion, without any showing that the City needs and cannot generate funds in other ways.
As to the new CBRE economic report, the credentials of the City’s experts are sufficient but the questions addressed are not those required by CEQA and ordered by this Court in Flanders 1. This Court rejected the City’s claims that a sale of Flanders Mansion was necessary to “generate funds for [the City’s] capital improvements.” It held that the City had not shown a need to generate funds from Flanders to fund its other projects and noted that the fact that a lease alternative could be more expensive or less profitable cannot prove financial infeasibility, citing Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564-565.
The economic analysis prepared in response to the peremptory writ considered Flanders’ potential to independently operate at a profit, rather than any need to sell the mansion in order to finance other City projects. The City contends that its economic health and needs are irrelevant to the question of Flanders profitability. It has missed the point, despite the efforts of Flanders Foundation to explain the error. “This is not a matter of profit...the question is ‘is it practical to proceed with ownership...?’ 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 if the city rehabilitates Flanders, it will be left in an untenable economic position.”] This is not a project to develop private property for profit.
Flanders Mansion is an integral part of Mission Trails Nature Preserve and the City agrees that its sale is a significant unavoidable environmental impact under CEQA because it will result in the “loss of City ownership of locally-significant parkland.” It therefore cannot be approved if there is a feasible alternative to sale. The City did not acquire the mansion to generate income, but as a park. It currently retains its P-2 parkland zoning. The City acknowledges that since the City’s acquisition in 1972, the mansion has been used as an art institute, as offices for the Carmel Heritage Society, as library and offices for the Lester Rowntree Arboretum Committee, and as a residence for various City employees and caretakers.
The California Legislature makes it difficult for public entities to sell parkland for public entities to sell parkland because parks are public amenities rather than profit-generating land uses. While elected decisionmakers have broad discretion to make land use decisions, CEQA imposes constraints to ensure environmental protection and the Government Code adds restrictions to divestment of parkland.
Analysis of Economic Feasibility
a. Feasibility Analysis should be in the EIR. The Flanders Foundation continues to rely on its opening brief’s discussion on this issue. On a minor point, the city’s repeated references to San Franciscans Upholding the Downtown Plan v. City of San Francisco (2002) 102 Cal.App.4th 656 as a Third District case are inaccurate: San Francisco is home to the First District Court of Appeal.
The City’s claims that Guideline section 15131 has statutory authority are unsupported. Section 15131, a copy of which was attached to the opening brief along with the Office of Planning and Research Official Discussion, references various general sections of the Public Resources Code for the underlying “authority cited” – not including section 21081.5 now relied upon by the City. Guideline section 15131 remains without statutory authority in its statement that economic information relevant to feasibility need not be contained in an EIR. Without such authority, it cannot lawfully be followed.
Public Resources Section 21081.2 requires that an agency’s CEQA findings made under Public Resources Code section 21081 be supported by substantial evidence in the record. Such evidence must first include a lawfully certified EIR; section 21081.5 cannot be reasonably interpreted as allowing findings relative to CEQA compliance to be made without any consideration of the contents of the EIR. That would eviscerate the entire framework of CEQA. Once an EIR is certified as adequate, a lead agency may also consider additional evidence in the record in making its findings, and absent significant new information or changed circumstances no supplementation of the EIR would be triggered. (Public Resources Code 21166.)
Guideline section 15126.6 (d) requires each EIR to “include sufficient information about each alternative to allow meaningful evaluation, analysis, and comparison with the proposed project.” Yet, as the City explains, San Franciscans Upholding indeed ruled not only that an EIR’s analysis of alternatives need not address economic factors – even when economics form the basis for finding alternatives infeasible – but went much further to state that EIRs need not analyze alternatives at all but only identify them. (San Franciscans Upholding, supra, 102 Cal.App.4th 656, 690; City Brief at 25-26.) Since no other CEQA case has so held, before or since, San Franciscans Upholding stands alone in this overly-narrow and incorrect statement of the function of an EIR alternatives section.
Among myriad examples to the contrary, the California Supreme Court referred to the importance of EIR analysis of alternatives 20 years ago in the landmark Citizens of Goleta Valley v. Board of Supervisors (Goleta 2) (1990) 52 Cal.3d 553;
CEQA establishes no categorical legal imperative as to the scope of alternatives to be analyzed in an EIR. Each case must be evaluated on its facts, which in turn must be reviewed in light of the statutory purpose. Informed by that purpose, we here reaffirm the principle that an EIR for any project subject to CEQA review must consider a reasonable range of alternatives to the project, ... which: (1) offer substantial environmental advantages over the project proposal (Pub. Resources Code 21002); and (2) may be ‘feasibly accomplished in a successful manner’ considering the economic, environmental, social and technological factors involved. (Citations)
More recently, the Supreme Court decided In re Bay Delta (2008) 43 Cal.4th 1143, and in holding that an EIR’s consideration of ten project alternatives was sufficient, consistently described CEQA’s legal requirement for alternatives analysis:
The EIR is the heart of CEQA, and the mitigation and alternatives discussion forms the core of the EIR. (Citation.) The basic framework for analyzing the sufficiency of an EIR’s description of alternatives is set forth by the Legislature in CEQA, by the Governor’s Office of Planning and Research in the CEQA Guidelines ... and by this court in [Goleta 2]. CEQA requires that an EIR, in addition to analyzing the environmental effects of a proposed project, also consider and analyze project alternatives that would reduce adverse environmental impacts.
Aside from San Franciscans Upholding, there is no case of which Flanders Foundation’s counsel is aware that holds that an EIR “itself” need not “contain an analysis of the feasibility of the various project alternatives or mitigation measures that it identifies.” (San Franciscans Upholding, supra, 102 Cal.App. 4th 656, 690.) This singular and restrictive interpretation of the Public Resources Code should not be followed by this Court, as it is inconsistent with case law and with the policies and purposes of CEQA.
Further, the City misunderstands the findings referenced in Public Resources Code section 21081 when it argues the Pub. Resources Code section 21081.5 somehow applies to questions of EIR adequacy. Section 21081.5 provides in its entirety that “[i]n making the findings required by paragraph (3) of subdivision (a) of Section 21081, the public agency shall base its findings on substantial evidence in the record.” (Pub. Resources Code 21081.5.) The referenced subsection (3)(a) addresses lead agency approval findings required for any project with a significant impact, but on the sole question of whether or not project mitigation measures and alternatives that were identified in a project EIR are infeasible. (Pub. Resources Code 21081 (a)(3).) It has no application to the question of EIR adequacy, as already explained in the opening brief.
The City’s colorful suggestion that the Court is being coaxed onto a ledge by the suggestion that an EIR’s alternatives analysis should address economic information in cases in which feasibility hinges on such information is itself extreme. Despite the handful of unsupported cases in the First and Fifth appellate districts, each relying on one another without any statutory underpinnings, there is no authority in the Public Resources Code for a conclusion that economics need not be included in an EIR’s analysis of alternatives even when highly relevant. As the City concedes, many cases in fact do so. The illogical idea that economic information may invariably be excluded is likely related to earlier sections of the CEQA Guidelines that provide that the economic impacts of projects need not be studied, since EIR’s focus on the environment rather than on economics. (E.g., Guideline 15064 (e).)
Before economic considerations are to relied upon to determine that an environmentally superior project alternative is infeasible, decisionmakers and the public should be provided with objective analysis of the alternative within the prescribed EIR process, as laid out in Guideline section 15126.6 (d) and consistent with the policies of CEQA. (E.g., Public Resources Code 21002 [“...it is policy of the state that public agencies should not approve projects if there are feasible alternatives ... which would substantially lessen the significant environmental impacts... and the procedures required ... are intended to assist public agencies in systematically identifying ... feasible alternatives ...”] CEQA compels process. It is a meticulous process designed to ensure that the environment is protected ... the EIR is the heart and soul of CEQA.” (Planning and Conservation League v. Department of Water Resources (2000) 83 Cal.App. 4th 892.) In Save Our Peninsula Committee v. Monterey County Board of Supervisors (2001) 87 Cal.App. 4th 99, the Sixth District consistently underscored that “[t[he integrity of the [CEQA} process is dependent on the adequacy of the EIR.”
Economic feasible is particularly relevant to cases involving historic resource rehabilitation. Without statutory authority, Guideline section 15131 cannot be followed to exclude relevant analysis, and the unsupported line of cases rejecting economic feasibility inquiry has not been and should not be endorsed in the Sixth District. The City should have included the CBRE report’s analysis within the Revised EIR and subjected it to public and agency review, comment, and responses. The City chose to exclude it from the EIR and thereby failed to proceed in the manner required by law. A writ should correct this error.
b. The CBRE Report was Inadequate. As pointed out in the Introduction, the City’s claim that the City’s budget and financial needs are irrelevant to the economic feasibility of a lease of Flanders springs from its misunderstanding of the point of economic feasibility analysis. The proposed demolition of the Jackling House by Steve Jobs in Uphold Our Heritage v. Town of Woodside (2007) 147 Cal.App.4th 587 was a case in which the wealth of the property owner was irrelevant to the question of whether rehabilitation of an historic home was economically feasible. The feasibility of Job’s project related no to his own wealth, but to whether the money spent to rehabilitate the Jackling House residence would be reasonable when compared to the costs of demolition and building a new home.
The economic issue in this case is different, because the Mission Trails Nature Preserve and the Flanders Mansion are parkland never intended to be profitable. Only if the City had significant debts and insufficient capital and provided a well-supported economic report to the effect that selling Flanders Mansion was the only feasible way to obtain funds to run the city might there be an economic basis for a sale of its parkland. Nothing is more relevant to the question at hand than the City’s budget and needs, and the CBRE report does not provide substantial evidence that a lease of Flanders is economically infeasible. To prove infeasibility, the City would require a different report.
C. Lease of Flanders Mansion is Feasible
The only way the Uphold our Heritage scenario would be relevant is if Carmel’s goal was to manage its property in a manner to avoid a loss of net value. But even if so, the facts do not indicate that a lease is infeasible as all indications are that any moneys spent to maintain or rehabilitate Flanders will be directly reflected in increased property value. Conceding that the “practical” pursuit of a project involves a reasonable return, it is reasonable to spend a million dollars on park property that will fully retain (and increase) its value and also serve as a public amenity. Even if it could take up to seventeen years to recoup the moneys invested, no problem is shown because the City does not deny its surplus of $11 million. Further, there is no evidence supporting the City’s assumption that it must fully rehabilitate the mansion before leasing, as the Architectural Resources Group report provided requested information for a full rehabilitation but did not conclude that all possible upgrades were necessary.
The Emporium development in San Franciscans Upholding involved a substantial redevelopment project whose commercial success was dependent on balancing costs with projected revenue streams. (San Franciscans Upholding, supra, 102 Cal.App.4th 656, 6930695.) The City points out that in that case the additional costs and lost profitability of project alternatives were “sufficiently severe to render them impractical,” and claims similarity here. Yet, what is “economically feasible” for a property that is not intended to be profitable? The City of Carmel has abandoned the claims it made in Flanders 1 that it needed to sell Flanders Mansion in order to finance other city projects; it now claims that its budget, surplus funds, and needs are irrelevant to its decision to sell the mansion. No economic infeasibility has been shown.
The City’s new argument based on California Native Plant Society v. City of Santa Cruz (CNPS), supra, 177 Cal.App.4th 957, to the effect that “policy” considerations make a lease of Flanders Mansion infeasible, is also insupportable. CNPS upheld the City of Santa Cruz’s approval of a park master plan because the City adequately justified its rejection of project alternatives that failed to meet key objectives. While the Court recognized that the project objectives reflected City policies, it did not make a broad holding that a lead agency could declare any project alternative infeasible as a matter of its undefined policy preference. If the mere invocation of “policy” were to be sufficient basis to find every project alternative infeasible, it is hard to imaging any project approval, whether public or private, that could not be justified by “policy” considerations. What City doesn’t “prefer” its approved project? Cases such as City of Marina v. Board of Trustee (2006) 39 Cal.4th 34, in which an agency’s approval was set aside, would be meaningless under such a standard.
Carmel’s reliance on the CNPS case is rather ironic, as CNPS focused on the fulfillment of long-adopted objectives to further public park amenities, including handicapped access to park trails. (CNPS, supra, 177 Cal.App.4th 957, 971, 1001.) Here, to the contrary, the sale of Flanders Mansion was found by the Revised EIR to have significant environmental impacts due to its inconsistencies with the City’s codified general plan and coastal land use policies applicable to parkland and historic resources: G5-6 [Preserve and acquire open space and parks], O5-21 [Optimize use of City parks], P5-46 [Preserve, protect, and restore areas of historical value] and P5-107 [Provide for public access and passive enjoyment of City parks and open space]. The City Council tenuously disagreed with the EIR’s determination of significant impact on this point.
Agencies appropriately enjoy wide discretion in approval of land use projects. However, when significant environmental impacts are identified that can be feasibly mitigated by a project alternative, CEQA fairly limits agencies’ discretion to ignore or reject them. The only codified policies relating to feasibility in this case are those militating against the sale of Flanders Mansion. There is no City policy supporting the sale of historic parkland, and the feasibility of a lease alternative is not trumped by an assertion of preference under the broad label of “policy.” Here, no codified policy can possibly be interpreted as being furthered by the City’s divestment of a landmark mansion located in public parkland, creating an in-holding with undisputed significant impacts on the park.
The City must “adopt the alternative that provide[s] the greater mitigation of adverse effects...” (Citizens of Goleta Valley v. Board of Supervisors (Goleta 1) 197 Cal.App.3d 1167, 1186. CEQA’a intention that public agencies “should not approve projects as proposed if there are feasible alternatives...” must be interpreted to afford the fullest possible protection to the environment within the reasonable scope of the statutory language. (Pub. Resources Code 21002; Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259.) No substantial evidence supports the City’s contention that a lease of Flanders Mansion is economically infeasible or against City “policy.” A writ should issue to set aside the approval of sale under CEQA’s substantive mandate, because of needless significant environmental impact when there is a feasible alternative.
Conclusion
The Flanders Foundation appreciates that the Court does not lightly interfere with the public policy decisions of an elected decisionmaking body such as the Carmel City Council. But when a decision has significant environmental impacts, CEQA overrides the Council’s discretion until its mandated procedures and substance are met.
The peremptory writ should issue because the Revised Flanders EIR failed to assess environmental impacts related to compliance with the Surplus Land Act, failed to adequately respond to comments, and failed to analyze the feasibility of a viable alternative. The City’s findings violated the substantive mandate of CEQA because no substantial evidence supports the infeasibility of a lease alternative or the statement of overriding considerations.
The Court’s enforcement of CEQA is respectfully requested to provide great and longstanding public benefit to the citizens of Carmel.
Respectfully submitted,
BRANDT-HAWLEY LAW GROUP
Susan Brandt-Hawley
Attorney for Petitioner
January 25, 2010
Thursday, January 28, 2010
Respondents' Brief: FLANDERS FOUNDATION, Petitioner and Plaintiff, v. CITY OF CARMEL-BY-THE-SEA, CITY OF CARMEL-BY-THE-SEA CITY COUNCIL (M99437)
ABSTRACT: With regard to FLANDERS FOUNDATION, Petitioner and Plaintiff, v. CITY OF CARMEL-BY-THE-SEA, CITY OF CARMEL-BY-THE-SEA CITY COUNCIL, Respondents and Defendants (CASE NO. M99437), selected excerpts from Respondents Brief are presented; emphasis is placed on the "Lease of the Flanders Mansion Is Infeasible on Economic and Public Policy Grounds" section, and it is reproduced in its entirety. The Hearing is scheduled for Wednesday, February 10, 2010, Courtroom 14, Judge Kay T. Kingsley, Monterey Courthouse.
Donald G. Freeman (SBN 47833)
Perry & Freeman
PO Box 805
Carmel, CA 93921-0805
Richard K. Harray (SBN 41978)
Kennedy, Archer & Harray
24591 Silver Cloud Ct Ste 200
Monterey, CA 93940
Attorneys for
CITY OF CARMEL-BY-THE-SEA AND CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA
Filed December 14, 2009
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF MONTEREY
FLANDERS FOUNDATION,
Petitioner and Plaintiff,
v.
CITY OF CARMEL-BY-THE-SEA, CITY OF CARMEL-BY-THE-SEA CITY COUNCIL,
Respondents and Defendants
CASE NO. M99437
ISSUES
The issues before the Court are:
1. Does res judicata preclude the litigation of all Surplus Land Act, deferred mitigation, and General Plan consistency claims?
2. Did the City follow proper procedures relating to the proposed sale of the Mansion parcel?
3. Does substantial evidence support the City’s findings that the lease alternatives are infeasible?
4. Does substantial evidence support the City’s statement of overriding considerations?
ARGUMENT
A. Res Judicata Precludes the Litigation of All Surplus Land Act, Deferred Mitigation, and General Plan Consistency Claims.
B. The EIR is Adequate and Complete
1. Statutory and Regulatory Framework of CEQA
2 Surplus Land Act Claims
a. Analysis of Environmental Effects Relating to the Surplus Land Act is Adequate
3. Responses to Comments
C. Analysis of Economic Feasibility
1. An Analysis of Economic Feasibility Is Not Required To Be in the 2009 EIR.
2. The CBRE Report Is Adequate.
3. Lease of the Flanders Mansion Is Infeasibility on Economic and Public Policy Grounds.
The City concurs with Petitioner that the 2009 EIR has identified significant unavoidable impacts of the Project. And where an EIR has identified significant unavoidable impacts, an agency may not approve the project unless it first finds that “[s]pecific economic, legal, social, technological, or other considerations…make infeasible the mitigation measures or alternatives identified...” (Pub. Resources Code 21081(a)(3); Guidelines 15091(a)(3).)
a. Lease of the Flanders Mansion Is Infeasible on Economic Grounds
A lease of the Flanders Mansion, whether a lease for single-family residential use (“Single-Family Lease”) or a lease for public/quasi-public use (“Public/Quasi-Public Lease”), is not a feasible alternative (collectively, the “Lease Alternatives”). More specifically, after a careful and thorough review of an exhaustive economic analysis, the City has found both lease alternatives infeasible on economic grounds.
As noted by Petitioner, in assessing the sufficiency of the City’s findings regarding the feasibility of the Lease Alternatives, the Court is to apply the highly deferential substantial evidence standard of review. (California Native Plant, supra, 177 Cal.App.4th at 982.) In other words, with all reasonable doubts resolved in favor of the City’s conclusions, in light of the record as a whole, if there is enough relevant information and reasonable inferences from this information that a fair argument can be made to support such findings, even though other conclusions might also be reached, there was no abuse of discretion. (See Laurel I, supra, 47 Cal.3d 376, 392-3.)
“Feasibility” is defined in CEQA to mean “capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.” (Pub. Resources Code 21061.1 (emphasis added).) As the italicized language above shows, economic viability is one of the factors that may be taken into account in addressing the feasibility of an alternative. (Guidelines 15126.6(f)(1).)
Case law interpreting CEQA over the last few decades has distilled two key concepts related to findings of economic infeasibility: comparison and impracticality. Both are addressed below.
Regarding comparison, courts have stressed the importance, when determining economic infeasibility, that there exists somewhere in the record “evidence which analyzes the alternatives in terms of comparative costs, comparative profits or losses, or to the extent appropriate, comparative economic benefit to the [local agency], nearby communities, or the public at large.” (Goleta I, supra, 197 Cal.App.3d at 1180.) In short, there needs to be a basis for a comparative analysis between the project and the alternatives found economically infeasible, as in the absence of such comparative data and analysis “no meaningful conclusions regarding the feasibility of the alternative [can be] reached.”
The exhaustive two-hundred-plus-page CBRE Report compared the Single-Family Lease alternative, the Public/Quasi-Public Lease alternative, the sale as a single-family residence (“Single-Family Sale”) alternative, and the sale as non-residential property (“Non-Residential Sale”) alternative all to one another, both assuming that the $1,157,000 estimated cost of rehabilitating the Mansion had been paid by the City and assuming that it had not. The CBRE Report’s conclusions are as follows.
The Single-Family Lease alternative was determined to be virtually impossible in a scenario where a potential lessee was responsible for covering the $1,157,000 cost of rehabilitating the Mansion because an already “exceedingly thin” market for comparable rentals would become non-existent. Assuming the City paid for the rehabilitation and a Single-Family Lease were effected and remained constant despite the “exceedingly thin” market, it would take 17 years for the City to recoup the $1,157,000; in other words, it would take 17 years for the City to break even. Only after the break-even point would the City generate readily-available funds, likely receiving roughly $68,000 a year in annual net operating income.
The conclusions regarding an ”exceedingly thin” rental market are similar for the Public/Quasi-Public Lease alternative. (“a very limited market for comparable non-residential rentals”). Again, assuming the City paid for the rehabilitation, and a Public/Quasi-Public Lease were effected and remained constant despite the sparse market, it would take 8.7 years for the City to recoup the cost of rehabilitation; in other words, it would take 8.7 years for the City to break even. Only after the break-even point would the city generate readily-available funds, likely receiving roughly $132,000 a year in annual net operating income.
In dramatic contrast are the CBRE Report’s conclusions regarding the Single-Family Sale and the Non-Residential Sale alternatives. Regardless of whether the City paid the rehabilitation cost or not, the Single-Family Sale would net the City $2,843,000, and the Non-Residential Sale would net the City $890,000, either amount immediately available to be utilized by the City for the benefit of its citizens.
The above comparison, clearly satisfies the requirement of the California Supreme Court for evidence in the record showing an analysis of the alternatives in terms of comparative costs, comparative profits or losses, or to the extent appropriate, comparative economic benefit to the local agency. (See Goleta I, supra, 197 Cal.App.3d at 1180.)
In regard to impracticality, “the fact that an alternative may be more expensive or less profitable is not sufficient to show that the alternative is financially infeasible...[w]hat is required is evidence that the additional costs or lost profitability are sufficiently severe as to render it impractical to proceed with the [alternative].”
In San Franciscans Upholding, the court found such impracticality applying facts similar to ours. (102 Cal.App.4th 656.) The proposed project called for the replacement of most of the Emporium Building, considered one of the preeminent historical buildings in San Francisco, with new construction so that it could house a Bloomingdale’s, a restaurant, other retail and office space, and a hotel, among other things. A detailed economic analysis of each of the five proposed alternatives calculated development costs (similar in concept to the Mansion’s rehabilitation cost) and projected revenue streams. The similarity to our case is that the court found economic infeasibility based on a disparity between the alternatives and the proposed project with regard to additional costs and lost profitability that were “sufficiently severe as to render them impractical.”
Here, the City has analyzed the Lease Alternatives, and determined that they will cost the City an initial investment of $1,157,000, for which the city will not see a positive return from anywhere between 8.7 and 17 years. This assumes, of course, that despite expert opinion that the rental market for such a unique property is “exceedingly thin,” the City will be able to find and keep a lessee for that entire period. Only if all of the foregoing occurs, only if everything goes right, will the City see funds ranging from $68,000 to $132,000 annually. The City has compared these alternatives to both a Single-Family Sale and Non-Residential Sale, which are not subject to the vagaries of a sparse rental market, and which will likely net the City between $890,000 and $2,843,000 as soon as the Mansion Parcel is sold. The comparative difference in returns, both with regard to amount and time, is sufficiently severe as to render the lease alternatives impractical. And every bit as important, the extreme remoteness of finding a lessor also makes the lease option impractical, if not virtually impossible.
Petitioner, with what it believes is the full might of Uphold Our Heritage behind it, argues that such findings of economic infeasibility are not supported by substantial evidence in the record. However, Uphold Our Heritage supports the City’s findings of economic infeasibility instead of Petitioner’s argument. In Uphold Our Heritage, the town of Woodside issued a permit to Steve Jobs authorizing demolition of a mansion of historic significance (the “Jackling House”) on his property so that he could build a private residence. (147 Cal.App.4th at 594.) Five alternatives were proffered and four rejected by Woodside due to economic infeasibility. It is crucial to the understanding of the court’s holding to note that because Steve Jobs declined to submit any information regarding how much it would cost to build his private residence there was no such information in the record. Woodside contended that the findings of infeasibility were supported by the evidence that the cost of rehabilitation was estimated to range from $4.9 million, based on the analysis in the EIR, to between $5 and $10 million, as estimated by Steve Jobs. In other words, if Steve Jobs paid to rehabilitate the house and live in it, rather than building a private residence, it would cost between $4.9 and $10 million. But this was not enough for a finding of economic infeasibility. The court explained that “[i]f the cost of renovation exceeds the cost of new construction, it is the magnitude of the difference that will determine the feasibility.” But because there was no information on the cost of building a new residence in the record, “[t]here is no evidence of any economic analysis whatsoever to compare the cost of the proposed project alternatives versus the cost of the proposed project, i.e., the estimated cost of the new residence...[t]hat the alternatives may cost millions of dollars is not enough information as it has no context.” Nevertheless, the court did determine that because two alternatives would clearly cost $5 million in addition to the cost of building a new home, there is a reasonable inference that these alternatives are not economically feasible.
Here, the CBRE Report shows that a Single-Family Sale will net the City $2,843,000 and a Non-Residential Sale will net the City $890,000, while the Lease Alternatives will cost the City $1,157,000 up front, a difference of between $4,000,000 and $2,047,000, respectively. Admittedly, if the City were able to lease the Mansion Parcel in light of the extremely sparse rental market for such a unique property and keep it occupied, it would recoup that initial $1,157,000 investment somewhere between 8.7 years (with $132,000 in rent) and 17 years (with $68,000 in rent). After that, the City would net between $68,000 and $132,000 annually. Thus, assuming that the Mansion Parcel is leased continually, and as has been shown that is not a probable event, and not taking into account the time value of money, it will take the City between 15.5 years (with $132,000 in rent) and 30 years (with $68,000 in rent) to obtain the $890,000 it could net now upon a Non-Residential Sale and it will take the City between 30.2 years (with $132,000 in rent) and 58.8 years (with $68,000 in rent) to obtain the $2,843,000 that it could net now upon a Single-Family Sale. This renders the Lease Alternatives economically infeasible.
Petitioner attempts to discount the disparity in the comparative analysis by arguing that with a lease the Mansion will “continue to escalate in value”; thus, “[i]f someday an unlikely event occurs and Carmel needs funding...the property will still be available for sale at that time at an ever-increasing value.” Perhaps Petitioner has forgotten that for the past four years it has attempted to thwart the City’s attempts to sell the Mansion. Now, when it suits Petitioner’s argument, it states that the City may do so, someday, and thus the rehabilitation cost does not contribute to a finding of economic infeasibility because it is actually an investment that would “immediately translate into increased property value.” The City finds such an argument untenable and somewhat disingenuous.
Petitioner also argues that the conclusions of the two-hundred-plus page CBRE Report regarding the “exceedingly thin” rental market is nothing but a “vague statement” (i.e., unsubstantial evidence). The City commissioned experts in the field to conduct a thorough analysis and one of the conclusions of such experts is that the rental market for the Mansion is “exceedingly thin.” The City sees no reason why it should discount such conclusion. In contrast to the alleged “vague statement” of the CBRE Report, supported by extensive research and expertise, and conducted in 2009, Petitioner appears to assert that the following, ostensibly non-vague, well-supported claims prove that full restoration at no cost to the City, and even a lease of the Mansion, are all but assured: (i) comments the Flanders Foundation made to the City Council on May 4, 2009; and (ii) the Flanders Foundation’s 1999 thirteen-page business plan, with attached accountant’s report, also dated 1999. The fact that other, outdated “evidence” may be found in the record does not render the CBRE Report’s conclusions and findings unsubstantial evidence.
Finally, Petitioner points out the City’s “$11 million reserves and budget surplus” as if it is a factor relevant to this analysis. The City would like to clarify for the Court that in determining economic infeasibility, the wealth of the project proponent is irrelevant. As stated elsewhere in this brief, in rejecting a claim that “the financial wherewithal of the project applicant bears upon the feasibility of...project alternatives,” the Uphold Our Heritage court clarified that, “the question is not whether [the project proponent] can afford the proposed alternative, but whether the marginal costs of the alternative as compared to the cost of the proposed project are so great that a reasonably prudent property owner would not proceed with the rehabilitation.” (147 Cal.App.4th at 599-600.)
b. Lease of the Flanders Mansion in Infeasible on Public Policy Grounds
In addition to finding the Lease Alternatives economically infeasible, the City has also found them infeasible on public policy grounds. The primary purpose of the Proposed Project is to divest the City of the Mansion Parcel, which is in need of short-term and long-term repair and rehabilitation. The City has determined that neither lease alternative achieves this primary purpose of divestment. In additional, the City’s findings set forth in 2AR8:1871-1886 make it clear that the City found the Lease Alternatives infeasible, not simply on economic grounds, but also because they cannot achieve the primary project purpose of divestment. (2AR8:1878 “the Lease Alternatives would retain City ownership of the [Mansion Parcel]”; 2AR8:1880 “specific economic and other factors make infeasible...leasing the Flanders Mansion”) Furthermore, the City found the “No Project” alternative infeasible because retention of the Flanders Mansion fails to achieve the primary project purpose of divestment; thus, because the Lease Alternatives also fail to achieve divestment, it can be readily deduced that they were found infeasible for the same reason. This deduction is supported by the following statement by the City” “The City [], having reviewed the Economic Feasibility Analysis...along with the discussion of the alternatives in Sections 6.0 through 6.7 of the RFEIR [Section 6.4 notes that neither of the lease alternatives achieves the primary project purpose] finds that both lease alternatives...are infeasible under the legal standards for infeasibility under CEQA.”
As very recently noted by the Sixth District, “an alternative may be found infeasible on the ground that it is inconsistent with the project objectives as long as the finding is supported by substantial evidence in the record.” (California Native Plant 177 Cal.App.4th at 1001.) In California Native Plant, the Sixth District agreed with the local agency that it was “legally justified in rejecting environmentally superior alternatives as ‘infeasible’ on the basis of its determination that the alternatives were undesirable from a policy standpoint because they failed to achieve...the primary objectives…of the [project].”(see also Sequoyah Hills, supra, 23 Cal.App.4th at 715 [holding that decisionmakers are permitted to reject as ‘infeasible’ an alternative not fully satisfying the objectives of a proposed project].) The Sixth District found such a determination by the local agency was both justified under relevant case law and consistent with statutory factors.
Furthermore, any argument that the City merely rejected the Lease Alternatives because it did not like them, not because they were truly influenced on public policy grounds, should fail. Just such an argument was rejected in California Native Plant, with the Sixth District characterizing it as “nothing more than a policy disagreement with the [local agency.]” More specifically, the Sixth District determined that while its case did not involve “straightforward questions of legal or economic feasibility...and that such cases may present brighter lines for judicial review,” the local agency in making its finding on infeasibility “determined how the numerous competing and necessarily conflicting interests should be resolved” and that it was “wholly improper for [the court] to arrogate to [itself] a policy decision which is properly the mandate of the [local agency].”
In summary, the City has found the Lease Alternatives infeasibility, both on economic and public policy grounds. Such findings are supported by substantive evidence.
D. the Statement of Overriding considerations Is Supported by Substantial Evidence.
CONCLUSION
It is not the City’s intention to impugn the integrity of Petitioner’s multiple challenges to the City’s attempts to divest itself of the Mansion Parcel. Indeed, the City understands and accepts that such challenges are an inexorable aspect of CEQA and environmental protection in California. Nevertheless, the City would like to gently remind the Court that: “the wisdom of approving [the divestment of the Mansion Parcel], a delicate task which requires a balancing of interests, is necessarily left to the sound discretion of the local officials and their constituents who are responsible for such decisions.” (Goleta II, supra, 52 Cal.3d 576.) CEQA “simply requires that those decisions be informed, and therefore balanced.” Thus, as the California Supreme Court has cautioned, “rules regulating the protection of the environment must not be subverted into an instrument for the oppression and delay of social, economic, or recreational development and advancement.”
Res judicata precludes litigation of all Surplus Land Act, deferred mitigation, and General Plan consistency claims. Nonetheless, the City’s actions were correct and in full compliance with the law. The Writ of Mandamus should be denied.
Dated: December 14, 2009
KENNEDY, ARCHER & HARRAY
By: Richard K. Harray
Attorneys of Respondent
CITY OF CARMEL-BY-THE-SEA
Donald G. Freeman (SBN 47833)
Perry & Freeman
PO Box 805
Carmel, CA 93921-0805
Richard K. Harray (SBN 41978)
Kennedy, Archer & Harray
24591 Silver Cloud Ct Ste 200
Monterey, CA 93940
Attorneys for
CITY OF CARMEL-BY-THE-SEA AND CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA
Filed December 14, 2009
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF MONTEREY
FLANDERS FOUNDATION,
Petitioner and Plaintiff,
v.
CITY OF CARMEL-BY-THE-SEA, CITY OF CARMEL-BY-THE-SEA CITY COUNCIL,
Respondents and Defendants
CASE NO. M99437
ISSUES
The issues before the Court are:
1. Does res judicata preclude the litigation of all Surplus Land Act, deferred mitigation, and General Plan consistency claims?
2. Did the City follow proper procedures relating to the proposed sale of the Mansion parcel?
3. Does substantial evidence support the City’s findings that the lease alternatives are infeasible?
4. Does substantial evidence support the City’s statement of overriding considerations?
ARGUMENT
A. Res Judicata Precludes the Litigation of All Surplus Land Act, Deferred Mitigation, and General Plan Consistency Claims.
B. The EIR is Adequate and Complete
1. Statutory and Regulatory Framework of CEQA
2 Surplus Land Act Claims
a. Analysis of Environmental Effects Relating to the Surplus Land Act is Adequate
3. Responses to Comments
C. Analysis of Economic Feasibility
1. An Analysis of Economic Feasibility Is Not Required To Be in the 2009 EIR.
2. The CBRE Report Is Adequate.
3. Lease of the Flanders Mansion Is Infeasibility on Economic and Public Policy Grounds.
The City concurs with Petitioner that the 2009 EIR has identified significant unavoidable impacts of the Project. And where an EIR has identified significant unavoidable impacts, an agency may not approve the project unless it first finds that “[s]pecific economic, legal, social, technological, or other considerations…make infeasible the mitigation measures or alternatives identified...” (Pub. Resources Code 21081(a)(3); Guidelines 15091(a)(3).)
a. Lease of the Flanders Mansion Is Infeasible on Economic Grounds
A lease of the Flanders Mansion, whether a lease for single-family residential use (“Single-Family Lease”) or a lease for public/quasi-public use (“Public/Quasi-Public Lease”), is not a feasible alternative (collectively, the “Lease Alternatives”). More specifically, after a careful and thorough review of an exhaustive economic analysis, the City has found both lease alternatives infeasible on economic grounds.
As noted by Petitioner, in assessing the sufficiency of the City’s findings regarding the feasibility of the Lease Alternatives, the Court is to apply the highly deferential substantial evidence standard of review. (California Native Plant, supra, 177 Cal.App.4th at 982.) In other words, with all reasonable doubts resolved in favor of the City’s conclusions, in light of the record as a whole, if there is enough relevant information and reasonable inferences from this information that a fair argument can be made to support such findings, even though other conclusions might also be reached, there was no abuse of discretion. (See Laurel I, supra, 47 Cal.3d 376, 392-3.)
“Feasibility” is defined in CEQA to mean “capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.” (Pub. Resources Code 21061.1 (emphasis added).) As the italicized language above shows, economic viability is one of the factors that may be taken into account in addressing the feasibility of an alternative. (Guidelines 15126.6(f)(1).)
Case law interpreting CEQA over the last few decades has distilled two key concepts related to findings of economic infeasibility: comparison and impracticality. Both are addressed below.
Regarding comparison, courts have stressed the importance, when determining economic infeasibility, that there exists somewhere in the record “evidence which analyzes the alternatives in terms of comparative costs, comparative profits or losses, or to the extent appropriate, comparative economic benefit to the [local agency], nearby communities, or the public at large.” (Goleta I, supra, 197 Cal.App.3d at 1180.) In short, there needs to be a basis for a comparative analysis between the project and the alternatives found economically infeasible, as in the absence of such comparative data and analysis “no meaningful conclusions regarding the feasibility of the alternative [can be] reached.”
The exhaustive two-hundred-plus-page CBRE Report compared the Single-Family Lease alternative, the Public/Quasi-Public Lease alternative, the sale as a single-family residence (“Single-Family Sale”) alternative, and the sale as non-residential property (“Non-Residential Sale”) alternative all to one another, both assuming that the $1,157,000 estimated cost of rehabilitating the Mansion had been paid by the City and assuming that it had not. The CBRE Report’s conclusions are as follows.
The Single-Family Lease alternative was determined to be virtually impossible in a scenario where a potential lessee was responsible for covering the $1,157,000 cost of rehabilitating the Mansion because an already “exceedingly thin” market for comparable rentals would become non-existent. Assuming the City paid for the rehabilitation and a Single-Family Lease were effected and remained constant despite the “exceedingly thin” market, it would take 17 years for the City to recoup the $1,157,000; in other words, it would take 17 years for the City to break even. Only after the break-even point would the City generate readily-available funds, likely receiving roughly $68,000 a year in annual net operating income.
The conclusions regarding an ”exceedingly thin” rental market are similar for the Public/Quasi-Public Lease alternative. (“a very limited market for comparable non-residential rentals”). Again, assuming the City paid for the rehabilitation, and a Public/Quasi-Public Lease were effected and remained constant despite the sparse market, it would take 8.7 years for the City to recoup the cost of rehabilitation; in other words, it would take 8.7 years for the City to break even. Only after the break-even point would the city generate readily-available funds, likely receiving roughly $132,000 a year in annual net operating income.
In dramatic contrast are the CBRE Report’s conclusions regarding the Single-Family Sale and the Non-Residential Sale alternatives. Regardless of whether the City paid the rehabilitation cost or not, the Single-Family Sale would net the City $2,843,000, and the Non-Residential Sale would net the City $890,000, either amount immediately available to be utilized by the City for the benefit of its citizens.
The above comparison, clearly satisfies the requirement of the California Supreme Court for evidence in the record showing an analysis of the alternatives in terms of comparative costs, comparative profits or losses, or to the extent appropriate, comparative economic benefit to the local agency. (See Goleta I, supra, 197 Cal.App.3d at 1180.)
In regard to impracticality, “the fact that an alternative may be more expensive or less profitable is not sufficient to show that the alternative is financially infeasible...[w]hat is required is evidence that the additional costs or lost profitability are sufficiently severe as to render it impractical to proceed with the [alternative].”
In San Franciscans Upholding, the court found such impracticality applying facts similar to ours. (102 Cal.App.4th 656.) The proposed project called for the replacement of most of the Emporium Building, considered one of the preeminent historical buildings in San Francisco, with new construction so that it could house a Bloomingdale’s, a restaurant, other retail and office space, and a hotel, among other things. A detailed economic analysis of each of the five proposed alternatives calculated development costs (similar in concept to the Mansion’s rehabilitation cost) and projected revenue streams. The similarity to our case is that the court found economic infeasibility based on a disparity between the alternatives and the proposed project with regard to additional costs and lost profitability that were “sufficiently severe as to render them impractical.”
Here, the City has analyzed the Lease Alternatives, and determined that they will cost the City an initial investment of $1,157,000, for which the city will not see a positive return from anywhere between 8.7 and 17 years. This assumes, of course, that despite expert opinion that the rental market for such a unique property is “exceedingly thin,” the City will be able to find and keep a lessee for that entire period. Only if all of the foregoing occurs, only if everything goes right, will the City see funds ranging from $68,000 to $132,000 annually. The City has compared these alternatives to both a Single-Family Sale and Non-Residential Sale, which are not subject to the vagaries of a sparse rental market, and which will likely net the City between $890,000 and $2,843,000 as soon as the Mansion Parcel is sold. The comparative difference in returns, both with regard to amount and time, is sufficiently severe as to render the lease alternatives impractical. And every bit as important, the extreme remoteness of finding a lessor also makes the lease option impractical, if not virtually impossible.
Petitioner, with what it believes is the full might of Uphold Our Heritage behind it, argues that such findings of economic infeasibility are not supported by substantial evidence in the record. However, Uphold Our Heritage supports the City’s findings of economic infeasibility instead of Petitioner’s argument. In Uphold Our Heritage, the town of Woodside issued a permit to Steve Jobs authorizing demolition of a mansion of historic significance (the “Jackling House”) on his property so that he could build a private residence. (147 Cal.App.4th at 594.) Five alternatives were proffered and four rejected by Woodside due to economic infeasibility. It is crucial to the understanding of the court’s holding to note that because Steve Jobs declined to submit any information regarding how much it would cost to build his private residence there was no such information in the record. Woodside contended that the findings of infeasibility were supported by the evidence that the cost of rehabilitation was estimated to range from $4.9 million, based on the analysis in the EIR, to between $5 and $10 million, as estimated by Steve Jobs. In other words, if Steve Jobs paid to rehabilitate the house and live in it, rather than building a private residence, it would cost between $4.9 and $10 million. But this was not enough for a finding of economic infeasibility. The court explained that “[i]f the cost of renovation exceeds the cost of new construction, it is the magnitude of the difference that will determine the feasibility.” But because there was no information on the cost of building a new residence in the record, “[t]here is no evidence of any economic analysis whatsoever to compare the cost of the proposed project alternatives versus the cost of the proposed project, i.e., the estimated cost of the new residence...[t]hat the alternatives may cost millions of dollars is not enough information as it has no context.” Nevertheless, the court did determine that because two alternatives would clearly cost $5 million in addition to the cost of building a new home, there is a reasonable inference that these alternatives are not economically feasible.
Here, the CBRE Report shows that a Single-Family Sale will net the City $2,843,000 and a Non-Residential Sale will net the City $890,000, while the Lease Alternatives will cost the City $1,157,000 up front, a difference of between $4,000,000 and $2,047,000, respectively. Admittedly, if the City were able to lease the Mansion Parcel in light of the extremely sparse rental market for such a unique property and keep it occupied, it would recoup that initial $1,157,000 investment somewhere between 8.7 years (with $132,000 in rent) and 17 years (with $68,000 in rent). After that, the City would net between $68,000 and $132,000 annually. Thus, assuming that the Mansion Parcel is leased continually, and as has been shown that is not a probable event, and not taking into account the time value of money, it will take the City between 15.5 years (with $132,000 in rent) and 30 years (with $68,000 in rent) to obtain the $890,000 it could net now upon a Non-Residential Sale and it will take the City between 30.2 years (with $132,000 in rent) and 58.8 years (with $68,000 in rent) to obtain the $2,843,000 that it could net now upon a Single-Family Sale. This renders the Lease Alternatives economically infeasible.
Petitioner attempts to discount the disparity in the comparative analysis by arguing that with a lease the Mansion will “continue to escalate in value”; thus, “[i]f someday an unlikely event occurs and Carmel needs funding...the property will still be available for sale at that time at an ever-increasing value.” Perhaps Petitioner has forgotten that for the past four years it has attempted to thwart the City’s attempts to sell the Mansion. Now, when it suits Petitioner’s argument, it states that the City may do so, someday, and thus the rehabilitation cost does not contribute to a finding of economic infeasibility because it is actually an investment that would “immediately translate into increased property value.” The City finds such an argument untenable and somewhat disingenuous.
Petitioner also argues that the conclusions of the two-hundred-plus page CBRE Report regarding the “exceedingly thin” rental market is nothing but a “vague statement” (i.e., unsubstantial evidence). The City commissioned experts in the field to conduct a thorough analysis and one of the conclusions of such experts is that the rental market for the Mansion is “exceedingly thin.” The City sees no reason why it should discount such conclusion. In contrast to the alleged “vague statement” of the CBRE Report, supported by extensive research and expertise, and conducted in 2009, Petitioner appears to assert that the following, ostensibly non-vague, well-supported claims prove that full restoration at no cost to the City, and even a lease of the Mansion, are all but assured: (i) comments the Flanders Foundation made to the City Council on May 4, 2009; and (ii) the Flanders Foundation’s 1999 thirteen-page business plan, with attached accountant’s report, also dated 1999. The fact that other, outdated “evidence” may be found in the record does not render the CBRE Report’s conclusions and findings unsubstantial evidence.
Finally, Petitioner points out the City’s “$11 million reserves and budget surplus” as if it is a factor relevant to this analysis. The City would like to clarify for the Court that in determining economic infeasibility, the wealth of the project proponent is irrelevant. As stated elsewhere in this brief, in rejecting a claim that “the financial wherewithal of the project applicant bears upon the feasibility of...project alternatives,” the Uphold Our Heritage court clarified that, “the question is not whether [the project proponent] can afford the proposed alternative, but whether the marginal costs of the alternative as compared to the cost of the proposed project are so great that a reasonably prudent property owner would not proceed with the rehabilitation.” (147 Cal.App.4th at 599-600.)
b. Lease of the Flanders Mansion in Infeasible on Public Policy Grounds
In addition to finding the Lease Alternatives economically infeasible, the City has also found them infeasible on public policy grounds. The primary purpose of the Proposed Project is to divest the City of the Mansion Parcel, which is in need of short-term and long-term repair and rehabilitation. The City has determined that neither lease alternative achieves this primary purpose of divestment. In additional, the City’s findings set forth in 2AR8:1871-1886 make it clear that the City found the Lease Alternatives infeasible, not simply on economic grounds, but also because they cannot achieve the primary project purpose of divestment. (2AR8:1878 “the Lease Alternatives would retain City ownership of the [Mansion Parcel]”; 2AR8:1880 “specific economic and other factors make infeasible...leasing the Flanders Mansion”) Furthermore, the City found the “No Project” alternative infeasible because retention of the Flanders Mansion fails to achieve the primary project purpose of divestment; thus, because the Lease Alternatives also fail to achieve divestment, it can be readily deduced that they were found infeasible for the same reason. This deduction is supported by the following statement by the City” “The City [], having reviewed the Economic Feasibility Analysis...along with the discussion of the alternatives in Sections 6.0 through 6.7 of the RFEIR [Section 6.4 notes that neither of the lease alternatives achieves the primary project purpose] finds that both lease alternatives...are infeasible under the legal standards for infeasibility under CEQA.”
As very recently noted by the Sixth District, “an alternative may be found infeasible on the ground that it is inconsistent with the project objectives as long as the finding is supported by substantial evidence in the record.” (California Native Plant 177 Cal.App.4th at 1001.) In California Native Plant, the Sixth District agreed with the local agency that it was “legally justified in rejecting environmentally superior alternatives as ‘infeasible’ on the basis of its determination that the alternatives were undesirable from a policy standpoint because they failed to achieve...the primary objectives…of the [project].”(see also Sequoyah Hills, supra, 23 Cal.App.4th at 715 [holding that decisionmakers are permitted to reject as ‘infeasible’ an alternative not fully satisfying the objectives of a proposed project].) The Sixth District found such a determination by the local agency was both justified under relevant case law and consistent with statutory factors.
Furthermore, any argument that the City merely rejected the Lease Alternatives because it did not like them, not because they were truly influenced on public policy grounds, should fail. Just such an argument was rejected in California Native Plant, with the Sixth District characterizing it as “nothing more than a policy disagreement with the [local agency.]” More specifically, the Sixth District determined that while its case did not involve “straightforward questions of legal or economic feasibility...and that such cases may present brighter lines for judicial review,” the local agency in making its finding on infeasibility “determined how the numerous competing and necessarily conflicting interests should be resolved” and that it was “wholly improper for [the court] to arrogate to [itself] a policy decision which is properly the mandate of the [local agency].”
In summary, the City has found the Lease Alternatives infeasibility, both on economic and public policy grounds. Such findings are supported by substantive evidence.
D. the Statement of Overriding considerations Is Supported by Substantial Evidence.
CONCLUSION
It is not the City’s intention to impugn the integrity of Petitioner’s multiple challenges to the City’s attempts to divest itself of the Mansion Parcel. Indeed, the City understands and accepts that such challenges are an inexorable aspect of CEQA and environmental protection in California. Nevertheless, the City would like to gently remind the Court that: “the wisdom of approving [the divestment of the Mansion Parcel], a delicate task which requires a balancing of interests, is necessarily left to the sound discretion of the local officials and their constituents who are responsible for such decisions.” (Goleta II, supra, 52 Cal.3d 576.) CEQA “simply requires that those decisions be informed, and therefore balanced.” Thus, as the California Supreme Court has cautioned, “rules regulating the protection of the environment must not be subverted into an instrument for the oppression and delay of social, economic, or recreational development and advancement.”
Res judicata precludes litigation of all Surplus Land Act, deferred mitigation, and General Plan consistency claims. Nonetheless, the City’s actions were correct and in full compliance with the law. The Writ of Mandamus should be denied.
Dated: December 14, 2009
KENNEDY, ARCHER & HARRAY
By: Richard K. Harray
Attorneys of Respondent
CITY OF CARMEL-BY-THE-SEA
Monday, January 25, 2010
'Elect Adam Moniz Mayor of Carmel-by-the-Sea' Campaign Literature
ABSTRACT: 'Elect Adam Moniz Mayor of Carmel-by-the-Sea' campaign literature, including selected links to his website, www.CarmelTogether.com, is presented. Themes for his campaign include, 'Transparency, Openness, Accessibility' and 'A New Approach. Together.'
Transparency
Openness
Accessibility
Elect Adam Moniz, Mayor of Carmel-by-the-Sea
A New Approach. Together.
Visit www.CarmelTogether.com
The Issues:
TRANSFORMATION OF CITY HALL. Together we will transform City Hall into a fully transparent, open, and accessible village government. Adam will throw open the doors and windows of City Hall so everyone can see in.
SENSIBLE FIRE DEPARTMENT DECISIONS. Adam personally wants Carmel's firefighters to stay in Carmel. As Mayor, however, Adam's decision making on fire department matters will be guided by public safety and best response time. While Adam will be a fiscally conservative Mayor, he will never jeopardize a life just to save a dollar.
SUPERIOR INCENTIVES FOR RESIDENT-ORIENTED BUSINESSES. Adam will launch a special initiative to identify and create superior incentives for the opening of more resident-oriented businesses downtown to encourage the occupancy of currently vacant storefronts. We will all benefit from a greater mix of goods and services available locally.
IMPROVED RELATIONS BETWEEN THE CITY AND THE BUSINESS DISTRICT. Now more than ever, we need the City and the business district to work cohesively and drop any animosity.
TERM LIMITS. We residents deserve a village government that is for the people by the people, not for the people by the same people. Adam will voluntarily self-impose term limits on himself as Mayor. He will not accept any nomination to serve for longer than 6 years (which is 3 mayoral terms).
Schedule of Events:
January 19, 2010 - Carmel Chamber of Commerce Breakfast at La Playa;
January 22, 2010 - Coffee Hosted by Steve and Barbara Brooks;
January 28, 2010 - Carmel-by-the-Sea Kiwanis Club Luncheon (Guest Speaker);
January 28, 2010 - Carmel Residents Association Dinner at Flaherty's;
January 29, 2010 - Coffee Hosted by Belinda Vidor Holliday;
February 6, 2010 - Coffee Hosted by Carolyn and Bob Jenkins;
February 9, 2010 - Coffee Hosted by Barbara Livingston;
February 10, 2010 - AT&T Pebble Beach National Pro-AM Volunteer Party at Monterey Conference Center;
February 11, 2010 - Yes for Carmel! Dinner at Rancho Canada;
February 12, 2010 - Event Hosted by A.G. Davi to Encourage the Occupancy of Vacant Storefronts in Carmel;
February 12, 2010 - AT&T Pebble Beach National Pro-AM Dinner at Poppy Hills;
February 17, 2010 - CRA Candidate Forum at Sunset Center;
February 19, 2010 - Coffees Hosted by the Laneys, the Condrys, the Andersons, and Eleen Auvil;
February 22, 2010 - Emergency Planning and Disaster Response Event;
February 23, 2010 - Coffee Hosted by Former Carmel Mayor Charlotte Townsend;
February 24, 2010 - Carmel Chamber of Commerce Mixer at Il Fornaio;
March 9, 2010 - Pine Cone Candidate Forum at Sunset Center;
March 11, 2010 - Coffee Hosted by Joanne and Michael LePage;
March 13, 2010 - A Village Gathering to Support Adam Moniz for Mayor of Carmel-by-the-Sea;
March 14, 2010 - Citizen of the Year Award Celebration at the Carmel Woman's Club
April 13, 2010 - ELECTION DAY!
Campaign Material
Contact Information
Adam A. Moniz for Mayor of Carmel 2010
Box 2136
Carmel-by-the-Sea, CA 93921-2136
Tel: (831) 250-7787
Email: adam@CarmelTogether.com
Donations
Transparency
Openness
Accessibility
Elect Adam Moniz, Mayor of Carmel-by-the-Sea
A New Approach. Together.
Visit www.CarmelTogether.com
The Issues:
TRANSFORMATION OF CITY HALL. Together we will transform City Hall into a fully transparent, open, and accessible village government. Adam will throw open the doors and windows of City Hall so everyone can see in.
SENSIBLE FIRE DEPARTMENT DECISIONS. Adam personally wants Carmel's firefighters to stay in Carmel. As Mayor, however, Adam's decision making on fire department matters will be guided by public safety and best response time. While Adam will be a fiscally conservative Mayor, he will never jeopardize a life just to save a dollar.
SUPERIOR INCENTIVES FOR RESIDENT-ORIENTED BUSINESSES. Adam will launch a special initiative to identify and create superior incentives for the opening of more resident-oriented businesses downtown to encourage the occupancy of currently vacant storefronts. We will all benefit from a greater mix of goods and services available locally.
IMPROVED RELATIONS BETWEEN THE CITY AND THE BUSINESS DISTRICT. Now more than ever, we need the City and the business district to work cohesively and drop any animosity.
TERM LIMITS. We residents deserve a village government that is for the people by the people, not for the people by the same people. Adam will voluntarily self-impose term limits on himself as Mayor. He will not accept any nomination to serve for longer than 6 years (which is 3 mayoral terms).
Schedule of Events:
January 19, 2010 - Carmel Chamber of Commerce Breakfast at La Playa;
January 22, 2010 - Coffee Hosted by Steve and Barbara Brooks;
January 28, 2010 - Carmel-by-the-Sea Kiwanis Club Luncheon (Guest Speaker);
January 28, 2010 - Carmel Residents Association Dinner at Flaherty's;
January 29, 2010 - Coffee Hosted by Belinda Vidor Holliday;
February 6, 2010 - Coffee Hosted by Carolyn and Bob Jenkins;
February 9, 2010 - Coffee Hosted by Barbara Livingston;
February 10, 2010 - AT&T Pebble Beach National Pro-AM Volunteer Party at Monterey Conference Center;
February 11, 2010 - Yes for Carmel! Dinner at Rancho Canada;
February 12, 2010 - Event Hosted by A.G. Davi to Encourage the Occupancy of Vacant Storefronts in Carmel;
February 12, 2010 - AT&T Pebble Beach National Pro-AM Dinner at Poppy Hills;
February 17, 2010 - CRA Candidate Forum at Sunset Center;
February 19, 2010 - Coffees Hosted by the Laneys, the Condrys, the Andersons, and Eleen Auvil;
February 22, 2010 - Emergency Planning and Disaster Response Event;
February 23, 2010 - Coffee Hosted by Former Carmel Mayor Charlotte Townsend;
February 24, 2010 - Carmel Chamber of Commerce Mixer at Il Fornaio;
March 9, 2010 - Pine Cone Candidate Forum at Sunset Center;
March 11, 2010 - Coffee Hosted by Joanne and Michael LePage;
March 13, 2010 - A Village Gathering to Support Adam Moniz for Mayor of Carmel-by-the-Sea;
March 14, 2010 - Citizen of the Year Award Celebration at the Carmel Woman's Club
April 13, 2010 - ELECTION DAY!
Campaign Material
Contact Information
Adam A. Moniz for Mayor of Carmel 2010
Box 2136
Carmel-by-the-Sea, CA 93921-2136
Tel: (831) 250-7787
Email: adam@CarmelTogether.com
Donations
Forest Theater Foundation Newsletter: Centennial Celebration Forest Theater (July 9, 1910, July 9, 2010)
ABSTRACT: Today, at the Local History Lecture ‘Happy 100th Birthday, Forest Theater!’ at the Carmel Youth Center, the Forest Theater Foundation Newsletter ‘Centennial Celebration’ with the ‘History of the Forest Theater,’ by Rose McLendon (Local History Librarian) was available to attendees. The text of the Centennial Celebration Newsletter is reproduced, including ‘History of the Forest Theater,’ ‘Important Dates’ and sidebar information.
Centennial Celebration
July 9, 1910 – July 9, 2010
Forest Theater
Celebrating 100 years of plays and musicals, children’s theatre, Shakespeare, and the classics of yesterday and today.
Forest Theater Foundation Newsletter
History of the Forest Theater
By Rose McLendon
with additional material by the Forest Theater Foundation
Attending a play or musical at the beloved Forest Theater is a long-standing Carmel tradition, followed annually by residents and visitors alike. Longtime Carmelites treasure memories of their first magical visit to the city’s “open-air playhouse,” or of long-forgotten words to a role in one of the early plays or pageants. Visitors have heard tales of renowned luminaries gracing the stage. Young and old share in the wonder of live dramas, comedies, musicals, children’s theater, and feature films, all presented under a summer’s night sky.
As the Forest Theater begins to celebrate its first centennial, you are invited to discover the rich history of the “oldest outdoor theater west of the Rockies.”
Depending on who tells the story, the Forest Theater was started by several different people. Mary Austin is often credited as the one who first suggested the idea. Others say that George Sterling, Michael Williams, Austin, Herbert Heron and others developed a shared vision of a theater beneath the stars. No matter who claims this distinction, there is no mistake as to who can be considered “the father of the Forest Theater” – Herbert Heron.
Herbert Heron came to Carmel in 1908. He had worked extensively on the stage in Los Angeles and came from a background of writers and dramatists. On a visit from Los Angeles, Heron fell in love with the village by the sea. He soon settled in Carmel, bringing with him his young bride Opal Heron, the daughter of a Polish Count. In 1910, the Herons found a concave hillside looking out, surrounded by oaks and pines, and thought it would be an ideal space for an outdoor theater. Heron’s idea was to stage plays by Carmel authors starring local residents – a true community theater. He approached Frank Devendorf, co-founder of the Carmel Development Company, and asked about purchasing the plot for such a purpose. Devendorf, wanting to attract artistic spirits and “brain workers” to the nascent village, i.e. teachers, librarians, etc., agreed and let Heron have the space rent-free.
By February of 1910, construction began on the theater. It was a simple plan: a wooden proscenium stage with a scrim of pines and plain wooden benches. Meanwhile, Heron was busying organizing the first production with the help of the newly minted ‘Forest Theater Society.’ The first theatrical production, David, a biblical drama by Constance Lindsay Skinner, inaugurated the Forest Theater on July 9, 1910. Reviewed in both Los Angeles and San Francisco, it was reported that over 1,000 theatergoers attended the production. There was no electricity at the theater – calcium floodlights were brought by covered wagon from Monterey to light the stage. Two bonfires were also lit on opposite ends of the proscenium, a tradition which continues today. By all accounts, the performance was considered a success and the packed house helped to solidify the role of theater in Carmel-by-the-Sea.
The Forest Theater Society produced numerous plays over the next decade. Of note was the 1912 production of The Toad, a play written by Berta Newberry, the wife of Perry Newberry, an early Carmel leader. Also produced that year was the first children’s play staged at the Forest Theater, Alice in Wonderland, adapted by Newberry and Arthur Vachell, and the first Shakespeare production, Twelfth Night, directed by Herbert Heron. There was so much enthusiasm for live theater, and varying ideas on how the Forest Theater should be run, that two additional theater groups began participating – The Western Drams Society (including Heron and other members of the Forest Theater Society), whose goal was to focus on California authors, and the already established Carmel Arts and Crafts Club, which had been active in the theater arts in Carmel since 1906. In 1913, theatergoers witnessed the world premiere of Mary Austin’s Fire, which she also directed, and in 1915 – a season that boasted 11 separate productions – audiences saw the premiere of Perry Newberry’s Junipero Serra, a historical pageant focusing on the life of Father Junipero Serra.
The ensuing decade saw the Forest Theater reach the height of production, with 50 plays and musicals staged between 1915 and 1924, including a 1922 production of Shaw’s Caesar and Cleopatra, when director Edward Kuster was almost run out of town for erecting a giant backdrop that hid Carmel’s beloved canopy of trees. Kuster defended himself admirably, noting that the play was, after all, set in a desert!
Unfortunately, this overabundance of plays became a serious strain on resources, such as players, donations and attendees, which were, understandably, spread thin. Inevitably, factional strife erupted between the groups and the quality of theater in Carmel began to decline. In 1924, in order to solve this dilemma and rebuild a healthy theater scene, the producing organizations merged under the auspices of the old Carmel Arts and Crafts Club, forming the Forest Theater Corporation, a unifying entity to produce and manage the plays staged at the Forest Theater.
Once again, the picturesque outdoor theater became extremely popular in the small village and it seemed the whole town added to the creative process. The many carpenters and woodworkers built highly intricate sets; those handy with a thread and needle created costumes. And just about every9one found their way on stage. Productions at the Forest Theater were truly a village affair. The resulting success enabled the Forest Theater Corporation to buy the land from the Carmel Development company in 1925. The corporation continued to produce plays throughout the 1920s and early 1930s. While the state of theater in Carmel was in a precarious position due to a glut of indoor theaters and theatrical companies, the Forest Theater continued to flourish. In 1934, the Forest Theater saw its 100th major production, The Man Who Married a Dumb Wife, by Anatole France. Heron directed the comedy, which features set and costume designs by Helena Heron.
The Great Depression struck and it affected all aspects of local life. When repairs were needed and no money could be found from local donors, the idea of applying for Works Progress Administration (WPA) money was proffered. Funds were only available to government entities and the private non-profit Forest Theater was not eligible.
In 1937, it was decided to deed the Forest Theater to the City of Carmel-by-the-Sea in order to obtain WPA funds for major renovations. Improvements to the facility included building new benches, laying a concrete foundation for the stage, and replacing the surrounding barb-wired fences with a simple grape-stake fence. While renovations were taking place there were no productions, no rehearsals – for almost 3 years, the Forest Theater was dark.
With a rejuvenated space in 1940, the amphitheater was ready to get back into the theater business. The works of Shakespeare had proven highly popular beginning with Heron’s early production of Twelfth Night, and upon completion of the WPA project, Heron formally resumed productions under a new banner – the Carmel Shakespeare Festival. In its first three years festival audiences saw Macbeth, Hamlet, Merry Wives of Windsor, and two productions of Twelfth Night as well as the work of several Carmel authors, including the world premiere production of Robinson Jeffers’ The Tower Beyond Tragedy.
With the advent of WWII, however, mandatory blackouts were ordered for coastal towns and cities. The residents of Carmel participated and halted all Forest Theater activity, essentially closing the facility in 1943-44, and again in 1946. In 1947, the facility resumed annual productions for two more years.
Throughout this time, Herbert Heron maintained his intense involvement with the Forest Theater, continuing to write, produce, direct and star in productions. Growing tired of the constant activity, Heron retired from active involvement. Theater was in Heron’s blood, though, and he could not completely leave the theater behind. As part of deeding the Forest Theater to the City of Carmel-by-the-Sea, the city took over responsibility for the physical plant.
In 1949, realizing that a supporting organization was needed for the City-owned facility, Heron organized and co-founded the Forest Theatre Guild. Guided by Cole Weston and Philip Oberg, the Forest Theater Guild continued to produce plays by local authors, Shakespeare, and classic drama. In 1950, under the energetic guidance of Cole Weston, the Guild built dressing rooms, and a small theater underneath the main outdoor stage. Eventually, the space became known as the Theater-in-the-Ground, and today is called simply, the Indoor Forest Theater. In 1960, Herbert Heron finished his 50th year at the Forest Theater with his own play, Pharaoh.
By 1963 the theater had presented over 140 plays, including scores of world premieres by California authors, and works of Shakespeare, George Bernard Shaw, Greek tragedies, local history, children’s plays, light operas and musical comedies. One production even features real horses on stage.
Unfortunately, despite some continued play production, parts of the theater were left in disrepair. Upkeep was not maintained by the City and, during the mid-1960s, the weed in the stage and seating rotted and the grounds became rundown. By this time, the Forest Theater Guild had become dormant, and, with a few minor exceptions, no plays were being shown on the main stage. The City began to use the site for other purposes, such as a Boy Scout camp, and a city-storage yard, The Cultural Commission recommended to the City that either repairs should be made to the aging Forest Theater, or it should be unloaded from the City’s holding. At the time, no action was taken. In 1966, rumblings about the usefulness of the Forest Theater were made by the City Council during the 1966-1967 budget meetings. Discussions included whether it was cost effective to keep the theater, resulting in an uproar by Carmelites determined to save the historic site. In 1968, to keep the Forest Theater in use, Cole Weston, who had then become the city’s first Cultural Director, leased the Theater-in-the-Ground to the Children’s Experimental Theater, founded and operated by Marcia Hovick. The Children’s Experimental Theater (CET) was formed in 1960 to encourage children of all ages to develop confidence and creativity by teaching theatrical skills such as diction, characterization, memorization, classical movement, stage combat, technical theater, and more. CET had been temporarily using space at the Golden Bough Theatre and Sunset Center, and needed a permanent place for their activities.
At the Forest Theater, CET flourished and expanded. In 1969, staff of CET formed a new production entity, appropriately called the Staff Players Repertory Company, staging classical dramas and comedies in the Indoor Forest Theater, including plays by Shakespeare, Shaw, Moliere, and Giraudoux. In addition, CET formed a “Traveling Troupe” in order to being performances to school children who would not otherwise have the opportunity to see live theater. Not only has CET benefited generations of Monterey County children, but has also kick-started the theatrical carets of many of the areas’ current actors, directors and producers.
In spite of this new use of the Forest Theater, the main stage remained dark. And once again, reservations about the usefulness of the theater were voiced. This time, the Cultural Commission was seriously considering closing the theater for good. Again, the residents of Carmel rose up and voiced their opposition. The Forest Theater Guild (FTG) was reactivated and, in 1971, in order to raise needed funds as well as draw attention to the possible closure, produced a staged reading of Robinson Jeffers’ Medea and The Tower Beyond Tragedy, featuring an electrifying performance by world renowned actress Dame Judith Anderson. In 1972, FTG staged a second successful production with Shakespeare’s Twelfth Night. The success of these two productions showed the City that there was still public interest and support for the Forest Theater. The city council commissioned a study to evaluate the efficacy of the theater.
The public was invited to comment and, after several months of often-heated discussion, the council decided, on a two-year trial basis, to continue city operation of the site and lease the facility to the Forest Theater Guild. The trial was a success, and, after negotiations over calendar and use of space with CET, the lease with FTG was renewed. Over the coming decade, FTG would produce over 20 major plays, focusing on the great classics from the world stage, including memorable production of such important American works as Eugene O’Neill’s Moon for the Misbegotten and A Long Day’s Journey into Night, both staged by Cole Weston, son of the well-known photography icon, Edward Weston, and a renowned photographer in his own right.
In 1984, a new organization joined the Forest Theater community – GroveMont Theater, founded in 1982 by Stephen Moorer. As a youth, Moorer acted and assisted in the CET program, and had performed major roles in several Forest Theater Guild productions. Inspired by his theater experiences in Carmel and on the Monterey Peninsula, as well as the rich performing arts tradition in the region, Moorer founded GroveMont Theatre. In 1984, at the request of the Carmel Cultural Commission, GroveMont began producing at the Forest Theater. Their first production there was Jeffers’ Medea, starring local acting legend Rosamond Goodrich Zanides, which proved a successful fundraiser for the company. Following Medea, GroveMont continued to stage productions at the Forest Theater every September and October, expanding into August in 2000. In 1994, in addition to the seasonal use of the amphitheatre, Moorer found a year-round home at the golden Bough Playhouse, the historic Carmel theatre founded by Edward Kuster. In 1993, to better reflect the company’s growth and development, GroveMont changed its name to Pacific Repertory Theatre (PacRep), began performing at the golden Bough, Circle, and Forest Theaters, and became the only professional theatre in Carmel.
Throughout the 1980s and 1990s, facility maintenance and play production remained constant. In 1988, the City spent $200,000 for much-needed renovations, which included replacing the seating, rebuilding the stage, and addressing necessary safety issues. CET/Staff Players continued its twofold mission, and in the process, educated thousands of area youth while staging hundreds of productions featuring children and adults from the local regions. With the FTG’s production of Canterbury Tales, one of the first musicals staged at the Forest Theater since the 1950s, annual large-scale musicals began to be produced on the outdoor stage, with great success. Of particular note was the 1989 FTG production of Showboat, directed by long-time FTG leader Hamish Tyler, and featuring hundreds of members of the community working backstage, onstage, and in the house. The production recalled the unifying spirit upon which the theater was originally founded, bringing together people from all walks of life to participate in true community theater. In 1994, FTG initiated the “Films in the Forest,” a program showing classic and newer films during the summer months, which proved highly popular with the community.
In 1990, PacRep reinstated the Carmel Shake-speare Festival, hearkening to the early days of the theater, and when Herbert Heron inaugurated his own Carmel Shakespeare Festival in 1940. PacRep used the hyphenated version of “Shake-speare” to acknowledge interest in the Shakespeare authorship question. In 1997, Pacific Repertory Theatre began staging annual family musicals, some of which have included “high-flying” technology, including The Wizard of Oz and Peter Pan. Among the many successful productions at the Forest Theater over the years, PacRep’s version of Disney’s Beauty and the Beast proved to be a benchmark for attendance records. Directed in 2005 by Walt deFaria, with Musical Direction by Stephen Tosh, the play sold over 10,000 tickets, and was repeated in 2006 with similar success.
Today, as the community prepares for the centennial celebration of the historic site, the City of Carmel-by-the-Sea is planning a significant renovation of the aging facility, which is again showing considerable wear and tear. The Children’s Experimental Theatre, Forest Theater Guild, and Pacific Repertory Theatre continue to bring the joy of live performances to the venerable old theatre. In 1999, the three organizations joined together to form the Forest Theater Foundation, dedicated “to the preservation and enhancement of the Forest Theater and its historic programs.” Since it inception, the foundation has raised donations to purchase portable dressing rooms, as well as shared lighting and sound equipment, and recently funded the pre-design process for the upcoming theater renovation. The Forest Theater Foundation’s aim is to continue the rich history of the theater, inspiring those who create the magic at the unique “open-air playhouse,” while maintaining the Forest Theater as a treasure for residents and visitors alike. Longtime Carmel advocate and former mayor Perry Newberry perhaps said it best: “There is not other thing here – save only Carmel’s beauty – more important to preserve and protect than the Forest Theater.”
Important Dates:
1910: The first theatrical production, David, by Constance Skinner, inaugurates the Forest Theater on July 9, 1910.
1949: Heron creates the Forest Theater Guild
1968: The Indoor Forest Theater is leased to Children’s Experimental Theatre
1984: Pacific Repertory Theatre begins producing on the outdoor stage.
Sidebars include, as follows:
Herbert Heron, the Forest Theater’s guiding light!
Heron arrived in Carmel in 1908, and for over 50 years guided the community in the development and operation of the oldest public amphitheatre on the West Coast.
The inaugural production of David opened July 9, 1910.
The historical pageant Junipero Serra, written by former Mayor Perry Newberry, received its world premiere in 1915.
A capacity crowd enjoys Shakespeare’s Twelfth Night, in 1911.
WPA workers rebuild the Forest Theater stage in 1939. Note the large trees (now gone_ which formed a natural proscenium.
The works of Shakespeare have been presented on the outdoor stage since 1911.
The Forest Theater Guild was created in 1949, by theater founder Herbert Heron.
Marcia Gambrell Hovick, CET’s visionary force for over 4 decades.
Dame Judith Anderson in the Robinson Jeffers’ version of Medea.
Pacific Repertory Theatre offers family musicals such as Peter Pan and The Wizard of Oz, and an annual Shakespearean production.
Reg and Vel Huston as 'Tevye and Golda’ in the Forest Theater Guild production of Fiddler on the Roof.
Harrison Shields, Ken Cusson and Nancy Williams in PacRep’s 2006 production of Disney’s Beauty and the Beast.
In 1910, the original bohemian community of Carmel-by-the-Sea created the first public amphitheater ‘west of the Rockies’
Today, in a true Carmel experience, plays and musicals at the Forest Theater entertain thousands of residents and visitors each year.
Come explore the history...
Forest Theater Foundation
P.O. Box 1087
Carmel-by-the-Sea, CA. 93921
The ol’ gal is turning 100!
Centennial Celebration
July 9, 1910 – July 9, 2010
Forest Theater
Celebrating 100 years of plays and musicals, children’s theatre, Shakespeare, and the classics of yesterday and today.
Forest Theater Foundation Newsletter
History of the Forest Theater
By Rose McLendon
with additional material by the Forest Theater Foundation
Attending a play or musical at the beloved Forest Theater is a long-standing Carmel tradition, followed annually by residents and visitors alike. Longtime Carmelites treasure memories of their first magical visit to the city’s “open-air playhouse,” or of long-forgotten words to a role in one of the early plays or pageants. Visitors have heard tales of renowned luminaries gracing the stage. Young and old share in the wonder of live dramas, comedies, musicals, children’s theater, and feature films, all presented under a summer’s night sky.
As the Forest Theater begins to celebrate its first centennial, you are invited to discover the rich history of the “oldest outdoor theater west of the Rockies.”
Depending on who tells the story, the Forest Theater was started by several different people. Mary Austin is often credited as the one who first suggested the idea. Others say that George Sterling, Michael Williams, Austin, Herbert Heron and others developed a shared vision of a theater beneath the stars. No matter who claims this distinction, there is no mistake as to who can be considered “the father of the Forest Theater” – Herbert Heron.
Herbert Heron came to Carmel in 1908. He had worked extensively on the stage in Los Angeles and came from a background of writers and dramatists. On a visit from Los Angeles, Heron fell in love with the village by the sea. He soon settled in Carmel, bringing with him his young bride Opal Heron, the daughter of a Polish Count. In 1910, the Herons found a concave hillside looking out, surrounded by oaks and pines, and thought it would be an ideal space for an outdoor theater. Heron’s idea was to stage plays by Carmel authors starring local residents – a true community theater. He approached Frank Devendorf, co-founder of the Carmel Development Company, and asked about purchasing the plot for such a purpose. Devendorf, wanting to attract artistic spirits and “brain workers” to the nascent village, i.e. teachers, librarians, etc., agreed and let Heron have the space rent-free.
By February of 1910, construction began on the theater. It was a simple plan: a wooden proscenium stage with a scrim of pines and plain wooden benches. Meanwhile, Heron was busying organizing the first production with the help of the newly minted ‘Forest Theater Society.’ The first theatrical production, David, a biblical drama by Constance Lindsay Skinner, inaugurated the Forest Theater on July 9, 1910. Reviewed in both Los Angeles and San Francisco, it was reported that over 1,000 theatergoers attended the production. There was no electricity at the theater – calcium floodlights were brought by covered wagon from Monterey to light the stage. Two bonfires were also lit on opposite ends of the proscenium, a tradition which continues today. By all accounts, the performance was considered a success and the packed house helped to solidify the role of theater in Carmel-by-the-Sea.
The Forest Theater Society produced numerous plays over the next decade. Of note was the 1912 production of The Toad, a play written by Berta Newberry, the wife of Perry Newberry, an early Carmel leader. Also produced that year was the first children’s play staged at the Forest Theater, Alice in Wonderland, adapted by Newberry and Arthur Vachell, and the first Shakespeare production, Twelfth Night, directed by Herbert Heron. There was so much enthusiasm for live theater, and varying ideas on how the Forest Theater should be run, that two additional theater groups began participating – The Western Drams Society (including Heron and other members of the Forest Theater Society), whose goal was to focus on California authors, and the already established Carmel Arts and Crafts Club, which had been active in the theater arts in Carmel since 1906. In 1913, theatergoers witnessed the world premiere of Mary Austin’s Fire, which she also directed, and in 1915 – a season that boasted 11 separate productions – audiences saw the premiere of Perry Newberry’s Junipero Serra, a historical pageant focusing on the life of Father Junipero Serra.
The ensuing decade saw the Forest Theater reach the height of production, with 50 plays and musicals staged between 1915 and 1924, including a 1922 production of Shaw’s Caesar and Cleopatra, when director Edward Kuster was almost run out of town for erecting a giant backdrop that hid Carmel’s beloved canopy of trees. Kuster defended himself admirably, noting that the play was, after all, set in a desert!
Unfortunately, this overabundance of plays became a serious strain on resources, such as players, donations and attendees, which were, understandably, spread thin. Inevitably, factional strife erupted between the groups and the quality of theater in Carmel began to decline. In 1924, in order to solve this dilemma and rebuild a healthy theater scene, the producing organizations merged under the auspices of the old Carmel Arts and Crafts Club, forming the Forest Theater Corporation, a unifying entity to produce and manage the plays staged at the Forest Theater.
Once again, the picturesque outdoor theater became extremely popular in the small village and it seemed the whole town added to the creative process. The many carpenters and woodworkers built highly intricate sets; those handy with a thread and needle created costumes. And just about every9one found their way on stage. Productions at the Forest Theater were truly a village affair. The resulting success enabled the Forest Theater Corporation to buy the land from the Carmel Development company in 1925. The corporation continued to produce plays throughout the 1920s and early 1930s. While the state of theater in Carmel was in a precarious position due to a glut of indoor theaters and theatrical companies, the Forest Theater continued to flourish. In 1934, the Forest Theater saw its 100th major production, The Man Who Married a Dumb Wife, by Anatole France. Heron directed the comedy, which features set and costume designs by Helena Heron.
The Great Depression struck and it affected all aspects of local life. When repairs were needed and no money could be found from local donors, the idea of applying for Works Progress Administration (WPA) money was proffered. Funds were only available to government entities and the private non-profit Forest Theater was not eligible.
In 1937, it was decided to deed the Forest Theater to the City of Carmel-by-the-Sea in order to obtain WPA funds for major renovations. Improvements to the facility included building new benches, laying a concrete foundation for the stage, and replacing the surrounding barb-wired fences with a simple grape-stake fence. While renovations were taking place there were no productions, no rehearsals – for almost 3 years, the Forest Theater was dark.
With a rejuvenated space in 1940, the amphitheater was ready to get back into the theater business. The works of Shakespeare had proven highly popular beginning with Heron’s early production of Twelfth Night, and upon completion of the WPA project, Heron formally resumed productions under a new banner – the Carmel Shakespeare Festival. In its first three years festival audiences saw Macbeth, Hamlet, Merry Wives of Windsor, and two productions of Twelfth Night as well as the work of several Carmel authors, including the world premiere production of Robinson Jeffers’ The Tower Beyond Tragedy.
With the advent of WWII, however, mandatory blackouts were ordered for coastal towns and cities. The residents of Carmel participated and halted all Forest Theater activity, essentially closing the facility in 1943-44, and again in 1946. In 1947, the facility resumed annual productions for two more years.
Throughout this time, Herbert Heron maintained his intense involvement with the Forest Theater, continuing to write, produce, direct and star in productions. Growing tired of the constant activity, Heron retired from active involvement. Theater was in Heron’s blood, though, and he could not completely leave the theater behind. As part of deeding the Forest Theater to the City of Carmel-by-the-Sea, the city took over responsibility for the physical plant.
In 1949, realizing that a supporting organization was needed for the City-owned facility, Heron organized and co-founded the Forest Theatre Guild. Guided by Cole Weston and Philip Oberg, the Forest Theater Guild continued to produce plays by local authors, Shakespeare, and classic drama. In 1950, under the energetic guidance of Cole Weston, the Guild built dressing rooms, and a small theater underneath the main outdoor stage. Eventually, the space became known as the Theater-in-the-Ground, and today is called simply, the Indoor Forest Theater. In 1960, Herbert Heron finished his 50th year at the Forest Theater with his own play, Pharaoh.
By 1963 the theater had presented over 140 plays, including scores of world premieres by California authors, and works of Shakespeare, George Bernard Shaw, Greek tragedies, local history, children’s plays, light operas and musical comedies. One production even features real horses on stage.
Unfortunately, despite some continued play production, parts of the theater were left in disrepair. Upkeep was not maintained by the City and, during the mid-1960s, the weed in the stage and seating rotted and the grounds became rundown. By this time, the Forest Theater Guild had become dormant, and, with a few minor exceptions, no plays were being shown on the main stage. The City began to use the site for other purposes, such as a Boy Scout camp, and a city-storage yard, The Cultural Commission recommended to the City that either repairs should be made to the aging Forest Theater, or it should be unloaded from the City’s holding. At the time, no action was taken. In 1966, rumblings about the usefulness of the Forest Theater were made by the City Council during the 1966-1967 budget meetings. Discussions included whether it was cost effective to keep the theater, resulting in an uproar by Carmelites determined to save the historic site. In 1968, to keep the Forest Theater in use, Cole Weston, who had then become the city’s first Cultural Director, leased the Theater-in-the-Ground to the Children’s Experimental Theater, founded and operated by Marcia Hovick. The Children’s Experimental Theater (CET) was formed in 1960 to encourage children of all ages to develop confidence and creativity by teaching theatrical skills such as diction, characterization, memorization, classical movement, stage combat, technical theater, and more. CET had been temporarily using space at the Golden Bough Theatre and Sunset Center, and needed a permanent place for their activities.
At the Forest Theater, CET flourished and expanded. In 1969, staff of CET formed a new production entity, appropriately called the Staff Players Repertory Company, staging classical dramas and comedies in the Indoor Forest Theater, including plays by Shakespeare, Shaw, Moliere, and Giraudoux. In addition, CET formed a “Traveling Troupe” in order to being performances to school children who would not otherwise have the opportunity to see live theater. Not only has CET benefited generations of Monterey County children, but has also kick-started the theatrical carets of many of the areas’ current actors, directors and producers.
In spite of this new use of the Forest Theater, the main stage remained dark. And once again, reservations about the usefulness of the theater were voiced. This time, the Cultural Commission was seriously considering closing the theater for good. Again, the residents of Carmel rose up and voiced their opposition. The Forest Theater Guild (FTG) was reactivated and, in 1971, in order to raise needed funds as well as draw attention to the possible closure, produced a staged reading of Robinson Jeffers’ Medea and The Tower Beyond Tragedy, featuring an electrifying performance by world renowned actress Dame Judith Anderson. In 1972, FTG staged a second successful production with Shakespeare’s Twelfth Night. The success of these two productions showed the City that there was still public interest and support for the Forest Theater. The city council commissioned a study to evaluate the efficacy of the theater.
The public was invited to comment and, after several months of often-heated discussion, the council decided, on a two-year trial basis, to continue city operation of the site and lease the facility to the Forest Theater Guild. The trial was a success, and, after negotiations over calendar and use of space with CET, the lease with FTG was renewed. Over the coming decade, FTG would produce over 20 major plays, focusing on the great classics from the world stage, including memorable production of such important American works as Eugene O’Neill’s Moon for the Misbegotten and A Long Day’s Journey into Night, both staged by Cole Weston, son of the well-known photography icon, Edward Weston, and a renowned photographer in his own right.
In 1984, a new organization joined the Forest Theater community – GroveMont Theater, founded in 1982 by Stephen Moorer. As a youth, Moorer acted and assisted in the CET program, and had performed major roles in several Forest Theater Guild productions. Inspired by his theater experiences in Carmel and on the Monterey Peninsula, as well as the rich performing arts tradition in the region, Moorer founded GroveMont Theatre. In 1984, at the request of the Carmel Cultural Commission, GroveMont began producing at the Forest Theater. Their first production there was Jeffers’ Medea, starring local acting legend Rosamond Goodrich Zanides, which proved a successful fundraiser for the company. Following Medea, GroveMont continued to stage productions at the Forest Theater every September and October, expanding into August in 2000. In 1994, in addition to the seasonal use of the amphitheatre, Moorer found a year-round home at the golden Bough Playhouse, the historic Carmel theatre founded by Edward Kuster. In 1993, to better reflect the company’s growth and development, GroveMont changed its name to Pacific Repertory Theatre (PacRep), began performing at the golden Bough, Circle, and Forest Theaters, and became the only professional theatre in Carmel.
Throughout the 1980s and 1990s, facility maintenance and play production remained constant. In 1988, the City spent $200,000 for much-needed renovations, which included replacing the seating, rebuilding the stage, and addressing necessary safety issues. CET/Staff Players continued its twofold mission, and in the process, educated thousands of area youth while staging hundreds of productions featuring children and adults from the local regions. With the FTG’s production of Canterbury Tales, one of the first musicals staged at the Forest Theater since the 1950s, annual large-scale musicals began to be produced on the outdoor stage, with great success. Of particular note was the 1989 FTG production of Showboat, directed by long-time FTG leader Hamish Tyler, and featuring hundreds of members of the community working backstage, onstage, and in the house. The production recalled the unifying spirit upon which the theater was originally founded, bringing together people from all walks of life to participate in true community theater. In 1994, FTG initiated the “Films in the Forest,” a program showing classic and newer films during the summer months, which proved highly popular with the community.
In 1990, PacRep reinstated the Carmel Shake-speare Festival, hearkening to the early days of the theater, and when Herbert Heron inaugurated his own Carmel Shakespeare Festival in 1940. PacRep used the hyphenated version of “Shake-speare” to acknowledge interest in the Shakespeare authorship question. In 1997, Pacific Repertory Theatre began staging annual family musicals, some of which have included “high-flying” technology, including The Wizard of Oz and Peter Pan. Among the many successful productions at the Forest Theater over the years, PacRep’s version of Disney’s Beauty and the Beast proved to be a benchmark for attendance records. Directed in 2005 by Walt deFaria, with Musical Direction by Stephen Tosh, the play sold over 10,000 tickets, and was repeated in 2006 with similar success.
Today, as the community prepares for the centennial celebration of the historic site, the City of Carmel-by-the-Sea is planning a significant renovation of the aging facility, which is again showing considerable wear and tear. The Children’s Experimental Theatre, Forest Theater Guild, and Pacific Repertory Theatre continue to bring the joy of live performances to the venerable old theatre. In 1999, the three organizations joined together to form the Forest Theater Foundation, dedicated “to the preservation and enhancement of the Forest Theater and its historic programs.” Since it inception, the foundation has raised donations to purchase portable dressing rooms, as well as shared lighting and sound equipment, and recently funded the pre-design process for the upcoming theater renovation. The Forest Theater Foundation’s aim is to continue the rich history of the theater, inspiring those who create the magic at the unique “open-air playhouse,” while maintaining the Forest Theater as a treasure for residents and visitors alike. Longtime Carmel advocate and former mayor Perry Newberry perhaps said it best: “There is not other thing here – save only Carmel’s beauty – more important to preserve and protect than the Forest Theater.”
Important Dates:
1910: The first theatrical production, David, by Constance Skinner, inaugurates the Forest Theater on July 9, 1910.
1949: Heron creates the Forest Theater Guild
1968: The Indoor Forest Theater is leased to Children’s Experimental Theatre
1984: Pacific Repertory Theatre begins producing on the outdoor stage.
Sidebars include, as follows:
Herbert Heron, the Forest Theater’s guiding light!
Heron arrived in Carmel in 1908, and for over 50 years guided the community in the development and operation of the oldest public amphitheatre on the West Coast.
The inaugural production of David opened July 9, 1910.
The historical pageant Junipero Serra, written by former Mayor Perry Newberry, received its world premiere in 1915.
A capacity crowd enjoys Shakespeare’s Twelfth Night, in 1911.
WPA workers rebuild the Forest Theater stage in 1939. Note the large trees (now gone_ which formed a natural proscenium.
The works of Shakespeare have been presented on the outdoor stage since 1911.
The Forest Theater Guild was created in 1949, by theater founder Herbert Heron.
Marcia Gambrell Hovick, CET’s visionary force for over 4 decades.
Dame Judith Anderson in the Robinson Jeffers’ version of Medea.
Pacific Repertory Theatre offers family musicals such as Peter Pan and The Wizard of Oz, and an annual Shakespearean production.
Reg and Vel Huston as 'Tevye and Golda’ in the Forest Theater Guild production of Fiddler on the Roof.
Harrison Shields, Ken Cusson and Nancy Williams in PacRep’s 2006 production of Disney’s Beauty and the Beast.
In 1910, the original bohemian community of Carmel-by-the-Sea created the first public amphitheater ‘west of the Rockies’
Today, in a true Carmel experience, plays and musicals at the Forest Theater entertain thousands of residents and visitors each year.
Come explore the history...
Forest Theater Foundation
P.O. Box 1087
Carmel-by-the-Sea, CA. 93921
The ol’ gal is turning 100!
Sunday, January 10, 2010
‘MINUTES’ for Three Noteworthy 5 January 2010 City Council Agenda Items
“MINUTES”
CITY COUNCIL MEETING
CITY OF CARMEL-BY-THE-SEA
January 5, 2010
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.
F. Consideration of a Resolution extending the agreement with the City of Monterey to provide interim Fire Administration and Emergency Incident Management Services.
Item F was pulled for a comment by Council Member HAZDOVAC. Hazdovac stated that the Carmel Fire Fighters are happy with the arrangement with Monterey and the training has improved. She applauded Rich and staff for “putting all of this together over the years,” at a savings of $140,000/year.
I. Consideration of a Resolution entering into an agreement with DD Evans Consulting/Dadiw Associates to provide financial management services at an annual cost of $84,000.
Item I was pulled for a comment by Council Member TALMAGE. Talmage stated that former Administrative Services Director Joyce Giuffre departed from the City and accepted a position with the Air Pollution Control Board; the contract with DD Evans Consulting /Dadiw Associates is an interim arrangement.
NOTE: Dewey Evans is currently the City Treasurer.
Council Member ROSE moved adoption of the Consent Items A.- I. of the Consent Agenda, seconded by Council Member HAZDOVAC and carried unanimously.
IX. Ordinances
A. Consideration of an Ordinance abandoning and discontinuing use of the Flanders Mansion Parcel for park purposes. (First Reading)
Sean Conroy, Planning Services Manager, presented the staff report.
City Attorney Don Freeman read a 5 January 2010 letter from Flanders Foundation attorney Susan Brandt-Hawley regarding the pending lawsuit against the City. Freeman stated the hearing is scheduled for February 10, 2010; expects the Court’s decision from date of hearing to 90 days thereafter. He described the process for sale if the Court rules in the City’s favor and the Flanders Foundation does not appeal the Court’s decision.
Mayor McCloud opened the meeting to public comment.
Monte Miller expressed his concern about the City disallowing the public access to the Flanders Mansion Property “too soon” and requested the Ordinance be modified to become effective only after construction of improved trails and parking area and the boundary of the Property be re-staked.
Mayor McCloud closed the meeting to public comment.
City Attorney Don Freeman stated the Ordinance is only about abandoning and discontinuing the Flanders Mansion Property.
Council Member Rose stated that Monte Miller should raise his concerns and suggestions during Budget discussions.
Council Member ROSE moved adoption of an Ordinance on first reading abandoning and discontinuing use of the Flanders Mansion Parcel for park purposes, seconded by Council Member TALMAGE and carried by the following roll call:
AYES: COUNCIL MEMBERS: HAZDOVAC, ROSE, SHARP, TALMAGE & McCLOUD
NOES: COUNCIL MEMBERS: NONE
ABSENT: COUNCIL MEMBERS: NONE
ABSTAIN: COUNCIL MEMBERS: NONE
CITY COUNCIL MEETING
CITY OF CARMEL-BY-THE-SEA
January 5, 2010
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.
F. Consideration of a Resolution extending the agreement with the City of Monterey to provide interim Fire Administration and Emergency Incident Management Services.
Item F was pulled for a comment by Council Member HAZDOVAC. Hazdovac stated that the Carmel Fire Fighters are happy with the arrangement with Monterey and the training has improved. She applauded Rich and staff for “putting all of this together over the years,” at a savings of $140,000/year.
I. Consideration of a Resolution entering into an agreement with DD Evans Consulting/Dadiw Associates to provide financial management services at an annual cost of $84,000.
Item I was pulled for a comment by Council Member TALMAGE. Talmage stated that former Administrative Services Director Joyce Giuffre departed from the City and accepted a position with the Air Pollution Control Board; the contract with DD Evans Consulting /Dadiw Associates is an interim arrangement.
NOTE: Dewey Evans is currently the City Treasurer.
Council Member ROSE moved adoption of the Consent Items A.- I. of the Consent Agenda, seconded by Council Member HAZDOVAC and carried unanimously.
IX. Ordinances
A. Consideration of an Ordinance abandoning and discontinuing use of the Flanders Mansion Parcel for park purposes. (First Reading)
Sean Conroy, Planning Services Manager, presented the staff report.
City Attorney Don Freeman read a 5 January 2010 letter from Flanders Foundation attorney Susan Brandt-Hawley regarding the pending lawsuit against the City. Freeman stated the hearing is scheduled for February 10, 2010; expects the Court’s decision from date of hearing to 90 days thereafter. He described the process for sale if the Court rules in the City’s favor and the Flanders Foundation does not appeal the Court’s decision.
Mayor McCloud opened the meeting to public comment.
Monte Miller expressed his concern about the City disallowing the public access to the Flanders Mansion Property “too soon” and requested the Ordinance be modified to become effective only after construction of improved trails and parking area and the boundary of the Property be re-staked.
Mayor McCloud closed the meeting to public comment.
City Attorney Don Freeman stated the Ordinance is only about abandoning and discontinuing the Flanders Mansion Property.
Council Member Rose stated that Monte Miller should raise his concerns and suggestions during Budget discussions.
Council Member ROSE moved adoption of an Ordinance on first reading abandoning and discontinuing use of the Flanders Mansion Parcel for park purposes, seconded by Council Member TALMAGE and carried by the following roll call:
AYES: COUNCIL MEMBERS: HAZDOVAC, ROSE, SHARP, TALMAGE & McCLOUD
NOES: COUNCIL MEMBERS: NONE
ABSENT: COUNCIL MEMBERS: NONE
ABSTAIN: COUNCIL MEMBERS: NONE
Thursday, January 07, 2010
Carmel Art Association Presents ‘WALL OF OPPORTUNITY’ ANNUAL 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 ‘WALL OF OPPORTUNITY’ ANNUAL SHOW
ALL-MEMBER SHOW (Segal Room, North Wall):
Carmel Art Association artists offer their artwork, including oils, watercolors, acrylics, mixed media, monotype prints, drawings, et cetera, at discounted prices.
Thursday, January 7 – Tuesday, February 2, 2010
Carmel Art Association Artists (links to information about artists):
Apodaca, Johnny
Auvil, Eleen
Beach, Mary FitzGerald
Bellmer, Jeanne
Bibler, Richard
Bhaskar, Norma Zeigle
Black, Blaine
Bradford, Cyndra
Bradshaw, Robert
Burr, Mary
Carroll, Pam
Carvell, Fred
Catbagan, Eileen
Coleman, Constance
Crispo, Dick
Crocetti, Kathleen
Crozier, Christine
Curtis, Micah
Dahlstrand, Olof
Davidson, Laurent
Dominguez, Miguel
Dominguez, Miguel A.
Donovan, Gael
Downs, Douglas
Elmore, Gene
Farina, Mark
Farmer, Beva
Farrington, Reed
Fry, Virginia
Geller-Robertson, Alice
Giacometti, Susan
Golding, Frieda
Goldstein, Helene
Gonzales, Alex
Grauer, Ron
Handy, Dennis
Han, Robert (Nong)
Harris, Sam
Hart, Roianne
Healey, Sarah
Hewitt, Robert Reynolds
Hiers, Peter
Hitchcock, Eric
Holt, Shirley
Hybl, Heidi
Jelmini, Peggy
Johnson, Andrea
Johnson, Barbara
Jordan, Susan
Laney, Francyne
Lestrade, Jack
Lim, Y. S.
Lindberg, Keith
Lofton, Melissa
Long, Michie
Marsh, John Francis
Martin, Gerard
Matteson, Rip
McWilliams, John
Meheen, Alicia
Minou, Carole
Morrison, Brenda
Nordman, Joseph
Norman, Emile
Northrop, Wilda
Olsen, Peggy
Parker, Carol
Pickford, Rollin
Plamondon, Peter
Puckett, Randy
Rappa, Anthony
Reeves, Gail
Reith, Susan
Robbins, Stan
Roberts, Margaret
Robinson, Irene
Sawicki, Ryszard
Schnute, William
Schwien, Guenevere
Sloan, Timothy
Smith, Jeff Daniel
Smith, Julie Brown
St. Mary, Michael
Stone, Jr., William F.
Takigawa, Pamela
Tanous, Joe
Tette, Richard
Torres, Gustavo
Tsouris, Michel
Vidor, Belinda
Wagstaff, Jan
Ward, Edward Norton
Wasserman, Gerald
Whitlock, David
Williams, Andy
Winfield, Rodney
Wolcott, Diane
Woodruff, Jean
Woodson, Richmond
Yadon, Vern
“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 ‘WALL OF OPPORTUNITY’ ANNUAL SHOW
ALL-MEMBER SHOW (Segal Room, North Wall):
Carmel Art Association artists offer their artwork, including oils, watercolors, acrylics, mixed media, monotype prints, drawings, et cetera, at discounted prices.
Thursday, January 7 – Tuesday, February 2, 2010
Carmel Art Association Artists (links to information about artists):
Apodaca, Johnny
Auvil, Eleen
Beach, Mary FitzGerald
Bellmer, Jeanne
Bibler, Richard
Bhaskar, Norma Zeigle
Black, Blaine
Bradford, Cyndra
Bradshaw, Robert
Burr, Mary
Carroll, Pam
Carvell, Fred
Catbagan, Eileen
Coleman, Constance
Crispo, Dick
Crocetti, Kathleen
Crozier, Christine
Curtis, Micah
Dahlstrand, Olof
Davidson, Laurent
Dominguez, Miguel
Dominguez, Miguel A.
Donovan, Gael
Downs, Douglas
Elmore, Gene
Farina, Mark
Farmer, Beva
Farrington, Reed
Fry, Virginia
Geller-Robertson, Alice
Giacometti, Susan
Golding, Frieda
Goldstein, Helene
Gonzales, Alex
Grauer, Ron
Handy, Dennis
Han, Robert (Nong)
Harris, Sam
Hart, Roianne
Healey, Sarah
Hewitt, Robert Reynolds
Hiers, Peter
Hitchcock, Eric
Holt, Shirley
Hybl, Heidi
Jelmini, Peggy
Johnson, Andrea
Johnson, Barbara
Jordan, Susan
Laney, Francyne
Lestrade, Jack
Lim, Y. S.
Lindberg, Keith
Lofton, Melissa
Long, Michie
Marsh, John Francis
Martin, Gerard
Matteson, Rip
McWilliams, John
Meheen, Alicia
Minou, Carole
Morrison, Brenda
Nordman, Joseph
Norman, Emile
Northrop, Wilda
Olsen, Peggy
Parker, Carol
Pickford, Rollin
Plamondon, Peter
Puckett, Randy
Rappa, Anthony
Reeves, Gail
Reith, Susan
Robbins, Stan
Roberts, Margaret
Robinson, Irene
Sawicki, Ryszard
Schnute, William
Schwien, Guenevere
Sloan, Timothy
Smith, Jeff Daniel
Smith, Julie Brown
St. Mary, Michael
Stone, Jr., William F.
Takigawa, Pamela
Tanous, Joe
Tette, Richard
Torres, Gustavo
Tsouris, Michel
Vidor, Belinda
Wagstaff, Jan
Ward, Edward Norton
Wasserman, Gerald
Whitlock, David
Williams, Andy
Winfield, Rodney
Wolcott, Diane
Woodruff, Jean
Woodson, Richmond
Yadon, Vern
Points of Clarification about This Blog
• This Blog is the peoples’ Blog; it is not any one individual’s Blog.
• The purpose of this Blog, since its inception, is to post meaningful, substantive and truthful information (preferable primary source material) that all Carmelites should be aware of in order to act as informed citizens.
• Simply put, Blog posts serve as catalysts for interesting, novel, provocative, creative and original comments - the intended heart and soul of this Blog!
• The purpose of this Blog, since its inception, is to post meaningful, substantive and truthful information (preferable primary source material) that all Carmelites should be aware of in order to act as informed citizens.
• Simply put, Blog posts serve as catalysts for interesting, novel, provocative, creative and original comments - the intended heart and soul of this Blog!
Former City Employee Stephanie Pierce [sic]: “...city government in Carmel is badly broken.”
ABSTRACT: Highlights of a Letter to the Editor (‘Carmel lacks integrity’) by former city employee Stephanie Pierce [sic], in today’s The Monterey County Herald are presented. A former 34 year employee with the City, Stephanie Pearce based her letter on her observations working at City Hall between 2004 and 2008, when she retired from city service.
Highlights of Letter: 'Carmel lacks integrity:'
• “...city government in Carmel is badly broken.”
• “During the time I worked in the administration department, I observed a pattern of avoiding and ignoring resident and staff concerns on the part of upper management.”
• “I observed the mayor pursue pet projects and ignore the compromising circumstances being reported about the city administrator.”
• “A majority of department managers were forced out, leaving a leaderless skeleton staff to provide non-safety services to residents. Remaining management staff often had difficulty scheduling time with the city administrator while long meetings and long lunch hours with employee A or employee B occurred frequently."
Note: Employee A, Christie Miller; employee B, Heidi Burch
• “...the quality of the city government was demonstrated by its callous treatment of Building Official John Hanson and the recent departure of the exceptionally capable administrative service director.”
(Source: Letters: Carmel lacks integrity, Stephanie Pierce [sic], Carmel Valley, The Monterey County Herald, 01/07/2010) Note: Stephanie Pearce, correct spelling of surname.
Highlights of Letter: 'Carmel lacks integrity:'
• “...city government in Carmel is badly broken.”
• “During the time I worked in the administration department, I observed a pattern of avoiding and ignoring resident and staff concerns on the part of upper management.”
• “I observed the mayor pursue pet projects and ignore the compromising circumstances being reported about the city administrator.”
• “A majority of department managers were forced out, leaving a leaderless skeleton staff to provide non-safety services to residents. Remaining management staff often had difficulty scheduling time with the city administrator while long meetings and long lunch hours with employee A or employee B occurred frequently."
Note: Employee A, Christie Miller; employee B, Heidi Burch
• “...the quality of the city government was demonstrated by its callous treatment of Building Official John Hanson and the recent departure of the exceptionally capable administrative service director.”
(Source: Letters: Carmel lacks integrity, Stephanie Pierce [sic], Carmel Valley, The Monterey County Herald, 01/07/2010) Note: Stephanie Pearce, correct spelling of surname.
Tuesday, January 05, 2010
COURT’S OFFICIAL MINUTES: City’s Motion to Disqualify Attorney Michael Stamp from Representing On-Leave Human Resources Manager Jane Miller
ABSTRACT: Minutes (December 18, 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 denied the City’s motion and continued April 2, 2010 at 8:45 a.m. in Salinas, courtroom 4, for Case Management Conference and Discovery.
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: Motion to Disqualify Plaintiff’s Counsel
Date: December 18, 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 regularly called for Motion to Disqualify Plaintiff’s Counsel.
Court has reviewed all documents submitted by respective counsel.
Arguments are made by respective counsel.
Motion to Disqualify Plaintiff’s Counsel is denied. Reasons stated for the record.
Case continued April 2, 2010 at 8:45 a.m. in Salinas, courtroom 4 for Case Management Conference and Discovery.
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: Motion to Disqualify Plaintiff’s Counsel
Date: December 18, 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 regularly called for Motion to Disqualify Plaintiff’s Counsel.
Court has reviewed all documents submitted by respective counsel.
Arguments are made by respective counsel.
Motion to Disqualify Plaintiff’s Counsel is denied. Reasons stated for the record.
Case continued April 2, 2010 at 8:45 a.m. in Salinas, courtroom 4 for Case Management Conference and Discovery.
ATTORNEY MICHAEL W. STAMP: Letter to the Mayor & City Council Regarding Confidential Personnel Matter – Jane Miller
ABSTRACT: On May 20, 2008, attorney Michael W. Stamp wrote a letter to the Mayor and City Council of Carmel-by-the-Sea regarding “Confidential Personnel Matter – Jane Miller.” The letter is reproduced in its entirety, a total of 3 typed pages. In response to Michael Stamp’s letter of May 20, 2008, Leanne Graham, Assistant to City Attorney Donald G. Freeman, wrote in a May 22, 2008 letter that Donald Freeman “will prepare a response to your May 20, 2008 letter.” Attorney Michael Stamp never received a response from City Attorney Don Freeman.
LAW OFFICES OF
MICHAEL W. STAMP
479 Pacific Street, Suite 1
Monterey, California 93940
Facsimile (8310 373-0242
Telephone (831) 373-1214
May 20, 2008
Confidential
Mayor and City Council
City of Carmel-by-the-Sea
City Hall
Carmel-by-the-Sea, CA 93921
RE: Confidential Personnel Matter – Jane Miller
Dear Mayor and City Council:
I represent Jane Miller in regard to her employment with the City of Carmel-by-the-Sea. Ms. Miller is the City’s Human Resources Manager. She has nearly 24 years of service to the public. She has worked for the City since 1999, when she was appointed by City Administrator Jere Kersnar as the City’s Personnel Specialist. Her performance evaluations have been extremely positive over the years, and her devotion to public service has been exemplary. There can be no doubt about Ms. Miller’s qualifications, skill, and expertise.
After years of compliments and praise, City Administrator Richard Guillen has turned on Ms. Miller, and seeks to drive her from her career. Mr. Guillen’s behavior and comments towards Ms. Miller have isolated, embarrassed, and stigmatized Ms. Miller in the workplace. After a sustained period of increasingly offensive conduct and statements, Mr. Guillen now proposes to eliminate Ms. Miller’s position with the City.
The actions by Mr. Guillen constitute retaliation, gender-based discrimination and harassment, as well as age-based discrimination. In light of Mr. Guillen’s history with other employees and with Ms. Miller, along with his willingness to go outside the law and City policies to get what he wants, Ms. Miller has no option except to advise you directly of the illegal nature of this action and to institute enforcement procedures with the California Department of Fair Employment and Housing. Although Ms. Miller and other employees have been directed by Mr. Guillen that employees are not allowed to contact the Mayor and City Council about City business, we are disregarding that instruction as an illegal employment practice.
For the past several years, the Mayor and City Council have supported Mr. Guillen without meaningful inquiry into his practices and without effective oversight. His inappropriate relationships with female subordinates, his actions in classifying and regarding favored employees, his extravagance with public funds, his favoritism within the work place, his inappropriate actions and statements, and his unchecked power over the lives, salaries, and personal lives of City employees have been overlooked or unexamined by the Mayor and Council. Those actions have resulted in a hostile work place and adverse and illegal employment actions that have directly and permanently injured Ms. Miller.
We ask that the City take the following steps. First, Ms. Miller immediately should be placed on non-disciplinary, paid administrative leave with full benefits. Second, Mr. Guillen immediately should be removed from his role as supervisor of City employees. Third, the city immediately should take action to preserve any emails and instant messenger records of Mr. Guillen for the period since January 1, 2004 to the present, including his emails to, from or about Ms. Miller and the other women under his supervision or control during that time period, including those who have left City service and those who are planning on leaving City service. He should be directed to preserve emails from his personal accounts as well, including those relating to Ms. Miller. Fourth, the Mayor and City Council immediately should unequivocally reject the proposed elimination of the Human Resources Manager position.
In addition, the City should take immediate steps to preserve all records, electronic and paper, regarding salary increases, salary adjustments, retroactive salary adjustments, qualifications of employees (including Directors), hiring, classifications, and other personnel actions relating to favorable treatment for any employees. This includes the job descriptions, salary calculations, and retroactive pay authorized by the City Administrator, and the documents relating to the employees who have left City service over the past few years.
In addition, we ask that the City take immediate steps to preserve the calendars and appointment records for Mr. Guillen, and for all female employees supervised by Mr. Guillen at any time. We also ask that the City retrieve from Mr. Guillen all phone records for his City-paid cellular phone, including the records that he arranged to have sent directly to his home instead of to the City. If Mr. Guillen has destroyed those records, (which are public records), the City should immediately retrieve them from Nextel, Verizon, or any other telephone carrier that holds records showing those expenditures and calls. Separately, the hard drive for any computer used by Mr. Guillen for City business should be secured by the City.
We also ask that the Mayor and City Council carefully and critically analyze the financial impact to the City of eliminating the Human Resources Manager position held by Ms. Miller. This includes collecting and assessing specific bake-up details about the costs, the exact specification of all assumptions about how the vital human resources and risk management services would be provided, and the analysis by the City Attorney and/or by the City’s outside personnel attorneys about the wisdom and feasibility of eliminating this vital position, particularly in light of the actual circumstances with the City’s personnel actions. Other remedial steps will be necessary; the list of actions described in this letter is only a partial list of the actions which need to be taken.
If you have any questions about this letter or about this matter, please call me.
Very truly yours,
Michael W. Stamp
LAW OFFICES OF
MICHAEL W. STAMP
479 Pacific Street, Suite 1
Monterey, California 93940
Facsimile (8310 373-0242
Telephone (831) 373-1214
May 20, 2008
Confidential
Mayor and City Council
City of Carmel-by-the-Sea
City Hall
Carmel-by-the-Sea, CA 93921
RE: Confidential Personnel Matter – Jane Miller
Dear Mayor and City Council:
I represent Jane Miller in regard to her employment with the City of Carmel-by-the-Sea. Ms. Miller is the City’s Human Resources Manager. She has nearly 24 years of service to the public. She has worked for the City since 1999, when she was appointed by City Administrator Jere Kersnar as the City’s Personnel Specialist. Her performance evaluations have been extremely positive over the years, and her devotion to public service has been exemplary. There can be no doubt about Ms. Miller’s qualifications, skill, and expertise.
After years of compliments and praise, City Administrator Richard Guillen has turned on Ms. Miller, and seeks to drive her from her career. Mr. Guillen’s behavior and comments towards Ms. Miller have isolated, embarrassed, and stigmatized Ms. Miller in the workplace. After a sustained period of increasingly offensive conduct and statements, Mr. Guillen now proposes to eliminate Ms. Miller’s position with the City.
The actions by Mr. Guillen constitute retaliation, gender-based discrimination and harassment, as well as age-based discrimination. In light of Mr. Guillen’s history with other employees and with Ms. Miller, along with his willingness to go outside the law and City policies to get what he wants, Ms. Miller has no option except to advise you directly of the illegal nature of this action and to institute enforcement procedures with the California Department of Fair Employment and Housing. Although Ms. Miller and other employees have been directed by Mr. Guillen that employees are not allowed to contact the Mayor and City Council about City business, we are disregarding that instruction as an illegal employment practice.
For the past several years, the Mayor and City Council have supported Mr. Guillen without meaningful inquiry into his practices and without effective oversight. His inappropriate relationships with female subordinates, his actions in classifying and regarding favored employees, his extravagance with public funds, his favoritism within the work place, his inappropriate actions and statements, and his unchecked power over the lives, salaries, and personal lives of City employees have been overlooked or unexamined by the Mayor and Council. Those actions have resulted in a hostile work place and adverse and illegal employment actions that have directly and permanently injured Ms. Miller.
We ask that the City take the following steps. First, Ms. Miller immediately should be placed on non-disciplinary, paid administrative leave with full benefits. Second, Mr. Guillen immediately should be removed from his role as supervisor of City employees. Third, the city immediately should take action to preserve any emails and instant messenger records of Mr. Guillen for the period since January 1, 2004 to the present, including his emails to, from or about Ms. Miller and the other women under his supervision or control during that time period, including those who have left City service and those who are planning on leaving City service. He should be directed to preserve emails from his personal accounts as well, including those relating to Ms. Miller. Fourth, the Mayor and City Council immediately should unequivocally reject the proposed elimination of the Human Resources Manager position.
In addition, the City should take immediate steps to preserve all records, electronic and paper, regarding salary increases, salary adjustments, retroactive salary adjustments, qualifications of employees (including Directors), hiring, classifications, and other personnel actions relating to favorable treatment for any employees. This includes the job descriptions, salary calculations, and retroactive pay authorized by the City Administrator, and the documents relating to the employees who have left City service over the past few years.
In addition, we ask that the City take immediate steps to preserve the calendars and appointment records for Mr. Guillen, and for all female employees supervised by Mr. Guillen at any time. We also ask that the City retrieve from Mr. Guillen all phone records for his City-paid cellular phone, including the records that he arranged to have sent directly to his home instead of to the City. If Mr. Guillen has destroyed those records, (which are public records), the City should immediately retrieve them from Nextel, Verizon, or any other telephone carrier that holds records showing those expenditures and calls. Separately, the hard drive for any computer used by Mr. Guillen for City business should be secured by the City.
We also ask that the Mayor and City Council carefully and critically analyze the financial impact to the City of eliminating the Human Resources Manager position held by Ms. Miller. This includes collecting and assessing specific bake-up details about the costs, the exact specification of all assumptions about how the vital human resources and risk management services would be provided, and the analysis by the City Attorney and/or by the City’s outside personnel attorneys about the wisdom and feasibility of eliminating this vital position, particularly in light of the actual circumstances with the City’s personnel actions. Other remedial steps will be necessary; the list of actions described in this letter is only a partial list of the actions which need to be taken.
If you have any questions about this letter or about this matter, please call me.
Very truly yours,
Michael W. Stamp
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