Mediation in Jane Miller Lawsuit, but No Settlement

ABSTRACT: While the parties involved in on-leave Human Resources Manager Jane Miller’s lawsuit alleging sexual harassment, age-based and sex-based discrimination and retaliation mediated with Judicial Arbitration and Mediation Services, Inc., in San Jose last Friday, 26 March 2010, a settlement was not reached. Next date is the Case Management Conference, April 2, 2010 at 8:45 A.M., Courtroom 4, Judge Larry Hayes presiding. “A Case management Conference (CMC) is part of the court procedure. It is a meeting between the judge and the parties (the Plaintiff and the Defendant). The lawyers representing the parties may also appear at the conference. A case management conference usually happens after a plaintiff begins a law suit, but before the trial. The meeting is not a trial and as such witnesses don't need to be present. The main purpose of the meeting is to try settling some or all of the issues in dispute before going to trial. If no settlement is achieved at the CMC, the matter will proceed to trial.” At the CMC, the Court may assign a trail date for within 3 to 5 months, jury or judge trail or a 90 hays hiatus, according the Jane Miller’s attorney, Michael Stamp. The City has expended a total of $84,407.33 as of October 2009 for legal fees in this case, according to the article, Mediation planned in sex-harassment suit, The Carmel Pine Cone, March 19, 2010, 11A. An ADDENDUM consisting of the Local Rules of Court, Superior Court of California, County of Monterey regarding Case Management Conferences and link is provided.

Case Information
Case Number GNM99513
Case Caption Miller, Jane Kingsley vs City of Carmel-by-the-Sea
Filing Date 6/17/2009
Case Type Civil: Monterey
Filing Type Complaint
Original Filing Date 6/17/2009

Case Management Conference 4/2/2010 08:45:00 Courtroom 04

ADDENDUM:
Superior Court of California, County of Monterey
Local Rules of Court
January 1, 2009

6.09 CASE MANAGEMENT CONFERENCES
a) Case Management Conferences may be set at a time and date different than that set forth in 6.03(f)(2) as determined by the Supervising Judge of the Civil Department.

b) At the Case Management Conference, counsel for each party and each selfrepresented party must appear personally or telephonically, must be familiar with the case, and must be prepared to discuss all matters contained in the Case Management Statements. Failure to attend or to participate effectively may result in appropriate sanctions.

c) At or before the Case Management Conference, the Court may determine the appropriate jurisdictional level and/or take any of the following actions:
1. Determine the potential complexity and/or length of the matter and assign it to a CASE CATEGORY;

2. Refer the matter to arbitration, voluntary settlement conference, private mediation, court-directed mediation, or other alternative dispute resolution procedure;

3. Order that the rules for Economic Litigation shall apply, CCP 90 and 91;

4. Assign the case to a particular judge for all purposes;

5. Make orders establishing discovery schedules including but not limited to a discovery cut-off, exchange of expert witness information, and a schedule for completion of expert depositions;

6. Set the matter for mandatory settlement conference as provided in these rules;

7. Assign a trial date;

8. Make appropriate Trial Management Orders in accordance with these rules; and/or

9. Make any other orders to achieve the interests of justice and the timely disposition of the case.

d) If it appears for good cause that the matter will not be ready for trial within 3 to 5 months of the Case Management Conference, the Court shall set additional Case Management or Status Conferences as necessary.

e) Failure to file a Case Management Statement, appear at the Case Management Conference, or participate effectively at the Case Management Conference may result in appropriate sanctions. (Adopted effective October 1, 1998; Amended effective January 1, 2003; Amended effective January 1, 2007)

(Source: Superior Court of California In and for County of Monterey, Local Rules of Court, January 1, 2009, page 93)

OPEN LETTER TO ENDORSERS OF MAYOR SUE McCLOUD

ABSTRACT: An OPEN LETTER TO ENDORSERS OF MAYOR SUE McCLOUD, consisting of comments made by former city employee Stephanie Pearce and designer and developer John Mandurrago, information from on-leave Human Resources Manager Jane Miller's lawsuit against the City, and concluding with five questions to endorsers of Mayor Sue McCloud, is presented.

OPEN LETTER TO ENDORSERS OF MAYOR SUE McCLOUD:
Edith Adams
Jane Addicott
Susan Addicott
Carmen Ajan
Pat and Mike Allen
Amber Archangel
Robert Ballard
Sigrid Banks
Mitsu and Bart Bartron
Carolina Bayne
Victoria Beach
Susan and Bob Belk
Carol Bergere
Sarah and Clay Berling
Judy and Woody Beville
Roger Bolgard
Angele and Silvio Borello
Justin Borello
Phil Bowhay
Helen and Beau Breck
Sylvia and Buck Breiholz
Paul Brocchini
Sarah Brown
Pam and Chris Carroll
Joseph Chaffers
Sarah and Gary Chang
Terry Christiansen
Gene and Bob Clifford
Pat and Lee Cogan
Gene Conley
Marilyn and Lee Cox
Mary Kay Crockett
Julie Culver
Lori and Erik Davidson
Nancy and Bill Doolittle
Jean Draper
Francis Duda
Corky Duke
Eldana and Herb Eggleston
Pat and Bill Eggleston
Gloria and Lee Eldred
Janis and Randy Elliott
Mary Ann and Joe Ford
Joyce and Jerry Frasca
Richard Frederickson
Midge Frick
Karol and Gerry Gleason
Patricia Golman
Dolores (Dee) Hagey
Jon Hagstrom
Diane and Bruce Hanger
Lindsey Hanna
Harriet Harrell
Lillian Hazdovac
Pat Hazdovac
Paula Hazdovac
Alex Heid
Jim Heilig
Dale Hekhuis
Dorothy and Howard Herning
Connie and Ken Hess
Steve Hillyard
Kay and Don Holz
Todd Hornik
David How
Angie Irvine
Carl Iverson
Ralph Jacobs
Donna Jett
Casey Jones
Mary Jones
Sally and William Kadell
Les Kadis
Carol and Jesse Kahn, MD
Pam and Clyde Klaumann
Ann Marie Kors
Marguerite and John Krisher
Elinor Laiolo
Gary LaMar
Doris Lawton
Jill Lee
Marian Leidig
Tom Leverone
Denny Levett
Keira and Matt Little
Judy and Gary Logan
Mary and Warren Luch
Vicki and Michael Lynch
Caroline MacDonald
Sally Magee
Sheila and Joe Mark
Don McBride
Linda and Walter McCarthy
Ruth McClendon
Gene McFarland
Judy and Phil Melrose
Sharon and Stanley Meresman
Pam and Steve Meyer
Wayne Moon
Gisela and Peter Murray
Maria Murray
Lillian and Warren Neidenberg
Diz Newman
Marge and Dick Nystrom
Lani and Tom O’Day
Lynn and Bob O’Neill
Karl Pallastrini
Roger Parkes
Herschel Peak
Burt Pike
Jane and Jim Price
Judy Profeta
Debra Quayle
Ruth Rachel
Jan and Niels Reimers
Mary and John Ricksen
Nita Robbins
Dio Roberts
Chris and Graeme Robertson
Paige and Carl Roetter
Gerard Rose
Robin Rote
Anne Rurka
Terry Russey
Sam Salerno
Jonathan Sapp
Gail and Bill Scearce
Debbie and Dennis Sharp
Karen and David Sharp
Kathy and Bill Sharpe
Jill Sheffield
Donna Shore
Pat and Dick Sippel
Mary Jane and Kurt Sligar
Connie Smith
Flo Snyder
Jean Sonoda
Connie and Bob Spencer
Pat Steele
Cathy Stewart
Dick Stewart
Pat and Ron Stofle
Clyde Sturges
Nancie and Merv Sutton
Ken Talmage
Ann and Chris Tescher
Judy Thodos
Paula and George Tipton
Hilary Traynor-Duda
William Tyler
Patricia VanKirk
Joan and Dick Volberg
Patricia and George Walker
Jack Wheatley
Carla and Jeff White
Susan Willey
Marian and Ron Wormser
Renate and Don Wunsch
Anna Yateman
Linda Yelllich
Edna Young

Within the last months, former 34-year city employee Stephanie Pearce has publicly commented that Carmel lacks integrity. Some of Pearce’s comments, as follows:

• “...I was outraged by the hostile punitive actions I saw carried out by the city administrator against other long time dedicated employees. I believe these actions were approved by the mayor."

• “I have a long personal knowledge of Carmel working conditions and I speak out on behalf of all the individuals quietly forced out of their jobs and on behalf of the remaining city employees who continue to work in a toxic, stressful workplace. This toxic environment exists in large part because other certain special employees were given fast-track promotions, substantial salary increases and policy-making roles beyond their job descriptions.”

• “The open scandal that has pervaded city hall and demoralized city staff is not just “negativity” that must be kept confidential pending legal resolution. It is an egregious betrayal of the public trust to allow creation and continuance of a hostile workplace environment, showing profound lack of respect for city workers.”

• “There have been personal vendettas against individual workers, and the mayor has worked hand in glove with the city administrator whose inappropriate and unprofessional relationships have created a city workplace imbued with an atmosphere of stress, hostility and fear.”

• “...city government in Carmel is badly broken.”

• “...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.”

And comments from designer and developer John Mandurrago, as follows:

• “...I have watched Mayor Sue McCloud pursue personal vendettas and expose Carmel to extraordinary legal liability...for example, a Carmel City Hall employee handed me a fax that was addressed to all planning commissioners discussing one of my projects. The fax was sent by Sue McCloud, and, after putting forth substantive arguments against my project, it concluded “if we all hang together on this, we can kill this project.” Several elected Carmel officials told me McCloud’s fax was unethical conduct and a violation of the Brown Act.”

• “Shortly after McCloud was elected mayor, Rich Guillen asked me to meet with him and McCloud at city hall. McCloud had a scowl on her face, leaned over the table, and said “things are going to be different from now on,” a comment which I took as a threat.”

• “ Carmel residents and Carmel business owners deserve an ethical mayor. And Sue McCloud is not an ethical mayor.”

Additionally, on-leave Human Resources Manager Jane Miller filed a lawsuit against the City alleging sexual harassment, age-based and sex-based employment discrimination and retaliation. Miller’s court file includes information about four former city senior management employees who settled their claims of “hostile” work environment and being forced into early retirement for over $500,000.

Questions:
• Is it your expectation that elected city officials behave with integrity and in an ethical manner?

• Given the aforementioned credible assertions from numerous former and current city employees and a Carmel resident, why have you endorsed Mayor Sue McCloud for a sixth term?

• Is retaining “EXPERIENCE, CONTINUITY AND FISCAL RESPONSIBILITY” more important to you as a voter than having an ethical and honest mayor?

• Why would anyone of integrity support an unethical mayor who has been dismissive of the serious concerns and complaints of city employees and residents?

• What does your endorsement of Mayor Sue McCloud say about your own characters, or lack of characters?

On-Leave Human Resources Manager Jane Miller & City of Carmel-by-the-Sea: Mediation with Judicial Arbitration and Mediation Services, Inc. (J•A•M•S)

ABSTRACT: With regard to on-leave Human Resources Manager Jane Miller’s legal complaint against the City of Carmel-by-the-Sea, et al. (M99513) alleging sexual harassment, age-based and sex-based employment discrimination and retaliation, the parties have agreed to mediation with Judicial Arbitration and Mediation Services, Inc. (J•A•M•S) on Friday, March 26, 2010 in San Jose, CA., according to a case management statement filed by Jane Miller’s attorney, Michael Stamp. Information about JAMS and mediation is presented.

About JAMS

Fast Facts
JAMS is the largest private alternative dispute resolution (ADR) provider in the world. With its prestigious panel of neutrals, JAMS specializes in mediating and arbitrating complex, multi-party, business/commercial cases – those in which the choice of neutral is crucial.

The Experts
More than 250 full-time neutrals, including retired judges and attorneys with proven track records. Over 190 employee associates.

Resolution Rate
Based on past results, JAMS takes pride that almost all of the cases mediated, even the most complex ones, are successfully resolved

Mediation Defined

Nature of the Process

Mediation is a process wherein the parties meet with a mutually selected impartial and neutral person who assists them in the negotiation of their differences.

MEDIATIVE PROCESSES

In Mediative Processes, a third party neutral works to facilitate a negotiated settlement between the parties. The mediator facilitates the negotiations and evaluates the relative merits of the claims and defenses. The neutral does not have power to impose a solution or decision - the parties retain ultimate control over the outcome.

JAMS Mediation Guide
A Guide to Mediation for Lawyers and their Clients

JAMS Resolution Center-San Jose, CA.
160 W. Santa Clara Street
Suite 1150
San Jose, CA 95113

SIGNIFICANT, UNACCOMPLISHED PROJECTS/ACHIEVEMENTS BETWEEN 2000-2010

ABSTRACT: In endorsements of Mayor Sue McCloud for a sixth term, various advocates cite accomplishments between 2000 and 2010. However, most of these “accomplishments” were either begun prior to McCloud’s mayoral election (Sunset Center Renovation), delayed realization due to city actions (Fourth Street Riparian Habitat Project), legally mandated requirements (Local Coastal Program (LCP), updated General Plan elements) and common standard procedures and practices of all cities (televised Council meetings, boxes at the Post Office with commission and board agendas, City website, State of the City reports). Arguably then, many other and more significance projects should have been realized between 2000 and 2010. A LIST OF SIGNIFICANT, UNACCOMPLISHED PROJECTS/ACHIEVEMENTS BETWEEN 2000-2010 is presented.

A LIST OF SIGNIFICANT, UNACCOMPLISHED PROJECTS/ACHIEVEMENTS BETWEEN 2000-2010:

• Public Safety Issue: Carmel Fire Department Fire Protection Services

In the context of the 2007 Citygate Associates Fire Department Consolidation Feasibility Analysis for the Cities of Monterey, Pacific Grove and Carmel, Final Report, the City has delayed meaningful discussion of options and implementation of a long-term solution with regard to this critical public safety issue.

• Community Planning & Building Director Position

While the City expended taxpayer monies to consultant Ralph Andersen & Associates to aid in the recruitment of a Community Planning & Building Director, that critical position remains vacant with no indication that the City is actively engaged in trying to hire a Community Planning & Building Director.

• Infrastructure of Streets, Roads & Avenues

While Nichols Consulting Engineers recommended the City expend $660,000 annually to maintain Carmel’s streets at their then current state, the City has failed to budget the minimum recommended amount from the General Fund. In fact, the City expended $516,000 on street projects in FY 2008/2009, but most of that allocation was from external and grant sources. Moreover, the Carpenter Street segment between 2nd Av. and Ocean Av., a gateway street to the city, should have been repaved or reconstructed long ago.

• Publicly Inaccessible or Unkempt Public Assets

The City has not maintained, upgraded or implemented ADA improvements to The Scout House (Mission St & 8th Av., N.E. Corner); the Public Works building (E/s Junipero Av. between 4th Av. & 5th Av.) is inaccessible to the public; Flanders Mansion parkland/property is inaccessible to the public; and Rio Park and Mission Trail Nature Preserve are not maintained as viable city parks.

• Beach Maintenance and Shoreline Protection

Implementation of policies set forth in the Land Use Plan Coastal Resource Management Element with regard to maintenance and repairs of Carmel’s seawalls (constructed in 1958, 1976, 1978, 1982, 1984 and 2001), retaining walls and engineered rock revetments to protect the City’s shorelines bluffs, public amenities along the bluff top, including the Beach Bluff Pathway, private property, et cetera. As stated in the LUP, If left unmanaged, the bluffs surrounding Carmel Bay would progressively erode from the impact of winter storm waves, surface drainage and other steady and episodic erosion processes. This natural process would eventually erode the bluffs up to the City’s beach access stairways and the Beach Bluff Pathway. Eventually, Scenic Road and the adjacent homes would be threatened as well.
(Source: General Plan/Coastal Land Use Plan Coastal Resource Management Element)

• Permanent Restrooms at Carmel Beach along Scenic Road

The construction phase for a permanent restroom needs to be completed expeditiously. In fact, arguably another permanent restroom between Del Mar Av. and Santa Lucia Av. should be considered. The City should not expend taxpayer monies for tourist promotion and marketing and then not adequately provide for tourists and visitors.

• Urbanized Forest, Parks and Open Spaces

Implementation of the policies set forth in the Land Use Plan Coastal Resource Management Element with regard to Carmel’s forest, parks and open spaces, including the Environmentally Sensitive Habitat Areas, including Pescadero Canyon, Mission Trail Nature Preserve and Carmel Beach, are necessary. Moreover, the City of Carmel-by-the-Sea Forest Management Plan (2001) (FMP), providing specific direction and guidelines for the maintenance and enhancement of Carmel’s urbanized forest, should be more vigorously implemented. For example, the Total Number of Public Trees in Carmel’s Urbanized Forest declined 3.4% from 1981-1984 to 2005-2008, including a 32.0% decline in the Monterey Pine and the Number of Public and Private Trees in Carmel’s Urbanized Forest declined 5.6%, including a 20.4% decline in the Monterey Pine, one of Carmel’s signature trees. As stated in the LUP,: To many, the “urbanized” forest is the character-defining feature that makes Carmel-by the-Sea so unique. The forest, along with the beach and ocean, is the City’s largest and most visible natural resource. And Upper canopy trees impart a distinctive ambiance and identity to the City. More must be done to ensure a healthy, regenerating and diverse “urbanized” forest, as stated in the LUP: “Steps must be taken to minimize the threat to existing healthy Monterey pines and new seedlings to ensure continued diversity in species, age, and location.”
(Sources: General Plan/Coastal Land Use Plan Coastal Resource Management Element, General Plan/Coastal Land Use Plan Open Space and Conservation Element

• Forest Theatre Renovation

In the context of the City’s Forest Theater Facility Master Plan, 2001, the City Council failed to budget for and implement in phases the Forest Theatre Facility Master Plan. More recently, the City has failed to place on a public agenda William Camille’s final report on construction phasing and cost estimates of the Forest Theatre Schematic Design completed by R. F. McCann & Company Theatre Architects even though the City originally informed the public renovation construction would be completed by the Forest Theatre Centennial in 2010.

• Harrison Memorial Library Main Branch

Arguably, one of the most important community assets to Carmelites, library operating hours should be restored on Sundays. With the Library open 42 hours a week, Saturday hours of 1:00 P.M. -5:00 P.M. should, at a minimum, be instituted for Sundays.

• Sunset Center

In the context of the disproportionate amount of approximately $9.0 million of taxpayers monies expended for the Sunset Center, including payments for management of the Sunset Center to Sunset Cultural Center, Inc. (SCC), maintenance requirements and debt service, between 2004 and 2010, relative to other entertainment venues in the City, there should be a discussion about the future of the Sunset Center, Forest Theatre, Scout House and Youth Center, specifically given the fact that many more out-of-towners compared to Carmel-by-the-Sea residents purchase tickets, attend events and perform at the Sunset Center compared to the Forest Theatre, Scout House and Youth Center.

REFERENCE:
VOTE McCLOUD Ad, Re-Elect Mayor McCloud, PO Box M-1, Carmel-by-the-Sea, CA 93921 Dick Stewart, Treasurer, The Carmel Pine cone, March 19, 2010, 13A

OTHER SOURCE:
CITYWATCH, CARMEL RESIDENTS ASSOCIATION NEWS March 2010

Contractual Conflict of Interest: Government Code Section 1090 & City Contract with DD Evans Consulting/Dadiw Associates

UPDATE: MONTEREY COUNTY WEEKLY, March 25, 2010, Squid Speaks
Squid Fry By Squid CARMEL CONFLICTS

ABSTRACT: At the 5 January 2010 City Council meeting, the City Council unanimously approved a Resolution entering into an agreement with DD Evans Consulting/Dadiw Associates to provide financial management services at an annual cost of $84,000. DD Evans Consulting/Dadiw Associates are Dewey D. Evans, Principal DD Evans Consulting and Laura Dadiw, Principle Dadiw Associates; Dewey Evans is also City Treasurer, a City officer. The contract runs from January 5, 2010 through June 30, 2013. In his Agenda Item Summary, prepared by City Administrator Rich Guillen, there is no mention of a conflict of interest or California Government Code Section 1090. California Government Code section 1090, which is incorporated into Carmel-by-the-Sea’s Municipal Code, prohibits public officials, employees and consultants from being financially interested in contracts made by them. Moreover, contracts that violate section 1090 are void and a violation may subject the public official to severe sanctions. A SUMMARY of Contractual Conflict of Interest Government Code Section 1090 and the relevant sections of the Carmel-by-the-Sea Municipal Code are presented. A COMMENT is made regarding the City Administrator and City Attorney. Apparently, the City will consider the aforementioned matter at the Special City Council Meeting on the budget on Tuesday, March 23, 2010, according to City Attorney Don Freeman, as reported by MONTEREY COUNTY WEEKLY.

SUMMARY:
Contractual Conflict of Interest
􀂄 Government Code Section 1090.
Members of the Legislature, state, county, district, judicial district, and city officers or employees shall not be financially interested in any contract made by them in their official capacity, or by any body or board of which they are members. Nor shall state, county, district, judicial district, and city officers or employees be purchasers at any sale or vendors at any purchase made by them in their official capacity.

Government Code Section 1090
􀂄 In Addition to PRA Restrictions
􀂄 Officials cannot have a financial interest in any contract made by them in their official capacity, or by any board of which they are a member
􀂄 Making a contract includes preliminary discussions, negotiations, planning and solicitation of bids
􀂄 Application of Prohibition to Officers. Any member of the governing board is conclusively presumed to have made any contract even if disqualification occurred
􀂄 Financial Interest. Can be direct or indirect

Government Code Section 1090
􀂄 Consequences of Violation
– Contract is void
– Public agency keeps benefits it has received
– Violator must give back any benefits received, plus interest on any money
– If willful violation, $1,000 fine or state imprisonment can result
– Permanent disqualification from holding public office in state

(Source: The Perils of Public Purchasing, Mary J. Bradley, Director of Finance, City of Sunnyvale, 2008)

CARMEL-BY-THE-SEA MUNICIPAL CODE:
3.12.210 Illegal Contracts – Interest by City Officer, Employee.
A. No officer or employee of the City shall be, or become directly interested in, any contract work or business, or in the sale of any article, the expense, price or consideration of which is payable from the City treasury, nor shall such officer or employee receive any gratuity or advantage from any contract or person furnishing labor or material for same.
B. Any contract with the City that any officer or employee has or develops an interest in may be declared void by the City Council.
C. Members of City volunteer and support organizations who are not also full- or part-time employees of the City shall be exempt from the provisions of this section.
D. The provisions of this section shall not be construed to excuse noncompliance with State laws regulating conflicts of interest. (Ord. 2003-02 § 1, 2003).

3.12.230 Officer Defined.
The term “officer” as used herein shall include the Mayor, Council Members, City Administrator, Assistant City Administrator, City Treasurer, City Attorney, Department Directors, members of Boards, Commissions and Committees, and assistants (if any) to said positions. (Ord. 2003-02 § 1, 2003).

COMMENT:
• In “Ethics Training for City Employees” from another California city, it states, “Section 1090 is fairly complicated, so it’s a good idea to contact us or your deputy City Attorney when you’re faced with conflicts issues related to contracts.” In City Administrator Rich Guillen’s Agenda Item Summary, there is no mention of whether or not the item was reviewed and approved by City Attorney Don Freeman. Questions: If the item and contract were not reviewed and approved by City Attorney Don Freeman, why not? Conversely, if the item and contract were reviewed and approved by City Attorney Don Freeman, was he unconcerned about California Government Code section 1090?

NOTE:
Special Budget City Council Meeting March 23, 2010 @ 4:30pm

The meeting will be the City Council Budget Workshop. City Council will set their 3-Year Work Program (goals) and priorities at this workshop.

The meeting will be held in the Council Chambers at City Hall, located on the east side of Monte Verde Street between Ocean and Seventh Avenues at 4:30 P.M.

OTHER SOURCES:
Double Dipping: Carmel financial contracting is an inside job, despite state regulations to the contrary, Robin Urevich, MONTEREY COUNTY WEEKLY, March 18, 2010

Office of the Attorney General
State of California, Department of Justice
Ethics Orientation for State Officials
Contractual Conflicts of Interest: All Contracts

CITY COUNCIL
AGENDA PACKET
Regular Meeting
Tuesday, January 5, 2010

Flanders Foundation Attorney: 'I understand that Carmel Mayor Sue McCloud has stated that she has “embarked on settlement talks” with me relating to the Flanders dispute. This is misleading…There has been no ongoing discussion.'

ABSTRACT: In the MONTEREY COUNTY WEEKLY article “Political Dogfight: Sex, lies but no videotape – yet – in steamy Carmel mayoral and city council races,” Carmel Mayor Sue McCloud stated that “she has embarked on settlement talks with the opposing attorney.” Subsequently, Flanders Foundation attorney Susan Brandt-Hawley submitted two letters to the editor, one to the MONTEREY COUNTY WEEKLY and another to The Carmel Pine Cone correcting, clarifying and amplifying the controversy. Highlights of Brandt-Hawley’s letters to the editor are presented. A COMMENT is made about the veracity and sincerity of Mayor Sue McCloud.

HIGHLIGHTS OF LETTERS TO THE EDITOR, “Brandt-Hawley’s offer” & “McClouy LOGIC:”
• “I understand that Carmel Mayor Sue McCloud has stated that she has “embarked on settlement talks” with me relating to the Flanders dispute. This is misleading. I represent the Flanders Foundation. On its behalf in recent years I have presented the city council with offers to lease the mansion and to pay for its restoration and maintenance, which it has rejected."

• “Mayor McCloud and I also had a couple of cordial telephone conversations about Flanders last summer, and one in January. I suggested a lease of Flanders to minimize traffic on Hatton Road, such as for artists-in-residence. The mayor made no suggestions to avoid a sale. So our talks ended.”

• “To date, the city will only consider a sale and the Foundation strongly believes the mansion should be leased and remain in city ownership. There has been no ongoing discussion.”

• “But as there has been no variance from our two bottom-line positions—the City Council wants to sell and Flanders Foundation wants the mansion to be leased and remain in city ownership— there are no ongoing discussions.”

• “...there are a great many opportunities to resolve the Flanders issue short of sale. The Flanders Foundation would welcome the opportunity to settle this matter in the public interest.”

COMMENT:
• Mayor Sue McCloud led the MONTEREY COUNTY WEEKLY to believe that she was “searching for common ground” with the Flanders Foundation and a peace settlement was possible. Contradicted by Flanders Foundation attorney Susan Brandt-Hawley, Brandt-Hawley wrote that “there has been no variance from our two bottom-line positions—the City Council wants to sell and Flanders Foundation wants the mansion to be leased and remain in city ownership.” Additionally, over the years since Sue McCloud was elected mayor, Susan Brandt-Hawley “presented the city council with offers to lease the mansion and to pay for its restoration and maintenance, which it has rejected.” And while Susan Brandt-Hawley wrote that the “Flanders Foundation would welcome the opportunity to settle this matter in the public interest,” short of sale, and given the fact that the City has lost two lawsuits involving the sale of the Flanders Mansion, it is now a test of Mayor Sue McCloud’s veracity and sincerity regarding whether or not she makes a good faith effort to reach a “peace settlement” with the Flanders Foundation.

Sources: Brandt-Hawley’s offer, Susan Brandt-Hawley, Glen Ellen, The Carmel Pine Cone March 19, 2010, 22 A

McClouy LOGIC, Susan Brandt-Hawley | Glen Ellen, MONTEREY COUNTY WEEKLY, March 18, 2010

Political Dogfight : Sex, lies but no videotape – yet – in steamy Carmel mayoral and city council races, Robin Urevich, MONTEREY COUNTY WEEKLY, March 11, 2010

Important New Link in the California Coastal Trail (APPROVED WITH CONDITIONS) & North Del Mar Dunes Boardwalk Controversy

ABSTRACT: At the California Coastal Commission’s Thursday, March 11, 2010 meeting, the Coastal Commission approved with conditions an application “to construct new pedestrian trail segment and improve existing trails to connect Del Monte Forest Trail system to Carmel Beach as part of the California Coastal Trail (includes trail and new stairway improvements in the forest, and decomposed granite walkway along North San Antonio Ave., new boardwalk, and new stairway access in City of Carmel (near the Carmel Gate into the Del Monte Forest.” Selected sections of the Staff Report and an ADDDENDUM with links to visual exhibits of the project are presented. A COMMENT is made regarding the Commission’s requirement of a boardwalk, the City’s opposition and Mayor Sue McCloud’s actions.

CALIFORNIA COASTAL COMMISSION
MARCH 2010 AGENDA
SANTA CRUZ COUNTY
BOARD OF SUPERVISORS CHAMBERS
701 OCEAN STREET
SANTA CRUZ, CA 95060
(831) 588-4112
THURSDAY, MARCH 11, 2010

7. COASTAL PERMIT APPLICATIONS.

b. Application No. 3-10-003 (Pebble Beach Co., Monterey Co.) Application of Pebble Beach Co. to construct new pedestrian trail segment and improve existing trails to connect Del Monte Forest trail system to Carmel Beach as part of the California Coastal Trail (includes trail and new stairway improvements in the Forest, and decomposed granite walkway along North San Antonio Ave., new boardwalk, and new stairway access in City of Carmel) near the Carmel gate into the Del Monte Forest, Carmel, Monterey County. (KM-SC) [APPROVED WITH CONDITIONS]

COASTAL DEVELOPMENT PERMIT APPLICATION

Application number.......3-10-003, Del Monte Forest to Carmel Beach Trail

Applicant.........................Pebble Beach Company

Project location..............Along the existing historic Redondo Trail alignment and the west side of Carmel Way (between the Pebble Beach Golf Links maintenance driveway and the City of Carmel gate) in the Del Monte Forest, and along North San Antonio Avenue (from the Carmel Gate to 4th Avenue) and the existing 4th Avenue beach accessway to Carmel Beach in the City of Carmel, Monterey County.

Project description.........Construct new public access pedestrian trail segments and improve existing trails to connect the Del Monte Forest trail system to Carmel Beach as part of the California Coastal Trail (includes trail and new stairway improvements in the Forest; decomposed granite walkway along Carmel Way and North San Antonio Avenue; a new trail through the North Del Mar Dunes area; and a new stairway to Carmel Beach).

Local approvals ..............City of Carmel Planning Commission design study MP 09-9; Monterey County design approval PLN090414.

File documents................Monterey County certified Del Monte Forest Area Local Coastal Program (LCP); City of Carmel certified LCP, including Del Mar Dunes Master Plan; Coastal Commission file for CDP 3-06-033; Coastal Commission file for LCP amendment CML-3-09 Part 1.

Staff recommendation...Approval with Conditions

A. Staff Recommendation
1. Summary of Staff Recommendation
The proposed trail improvements and new trail would be located where the Del Monte Forest area of unincorporated Monterey County connects to the northern edge of the City of Carmel. The project is divided into three segments: (1) trail improvements along 960 feet of the existing historic Redondo Trail alignment in the Del Monte Forest, (2) a new approximately 0.24-mile long trail/footpath along Carmel Way/North San Antonio Avenue, and (3) trail improvements along the existing 4th Avenue accessway, including new stairs to Carmel Beach. The total length of existing trail improvements and new trail would be approximately 0.6 mile.

Because the proposed project is located in the Coastal Commission’s original jurisdiction, Monterey County’s certified LCP jurisdiction, and the City of Carmel’s certified LCP jurisdiction, and based on consent of all required parties, this application is being considered as a consolidated CDP application pursuant to Coastal Act Section 30601.3. As such, the applicable standard of review is Chapter 3 of the Coastal Act, with the Monterey County and City of Carmel LCPs as non-binding guidance.

The proposed trail and associated improvements would expand and enhance public recreational access in the southern Del Monte Forest and in the Carmel Beach North Dune areas, and comprise an important new link in the California Coastal Trail (CCT) that would connect the existing Del Monte Forest trail system to the City of Carmel’s trail system and Carmel Beach. The project area has long been identified as a significant gap in the CCT that limits access into the Forest, and ultimately limits access through the Forest and connecting to upcoast Pacific Grove at Asilomar Dunes.

There is one component of the proposed project that does not adequately protect habitats and provide adequate access connectivity, however. This segment is that portion of the existing 4th Avenue beach accessway that currently extends across the dunes themselves. As proposed, new post and rope demarcation would be provided, but users would still be directed to walk through the dune sands directly. Although such demarcation helps direct users, the bare sand trail would preclude members of the public in wheelchairs and other assisted wheeled devices, including walkers and strollers, from using the trail. It would also make it difficult for users not interested, inclined, or otherwise physically able to try to walk across shifting dune sands. In short, a sand trail component like this would lessen the utility of the trail connection proposed, and this is inappropriate at such a critical public access link in not only the area’s trail system but also the California Coastal Trail.

In addition, a sand trail keeps users in the dunes themselves (as opposed to separated from them), which can lead to habitat impacts. Conversely, a boardwalk segment through the dunes would both facilitate access (including ADA access, and access for users not otherwise able or interested in traversing dune sand), and best protect the dune habitat from disturbance. In fact, the recent City of Carmel LCP amendment certified by the Commission in January of this year for this North Dune area explicitly calls out the use of boardwalks for this purpose at this precise location. The Commission has had long experience with boardwalk projects as a means of protecting dune habitats, and there is nothing specific to this location that would conclusively argue for a different approach here. As such, the permit has been conditioned to require an ADA boardwalk instead of a bare sand trail for this segment of the alignment.

As proposed and conditioned, the project represents an exceptional public recreational access project, with components that will be sited and designed in such a way as to provide maximum public benefit at this important public site while ensuring no significant disruption of habitat values. Staff recommends that the Commission approve, with conditions, a CDP for the proposed project.

B. Findings and Declarations
2. Coastal Development Permit Determination
D. Conclusion
As proposed and conditioned by this permit, the project will provide new public recreational access, including as an important new link in the California Coastal Trail in the southern Del Monte Forest/northern City of Carmel. The project, as conditioned, represents an exceptional public recreational and interpretive access project, with components that will be sited and designed in such a way as to provide maximum public benefit at this important public site while protecting sensitive habitat. As such, the project can be found consistent with the Coastal Act policies discussed above.

B. Special Conditions
1. Final Plans. PRIOR TO ISSUANCE OF THE COASTAL DEVELOPMENT PERMIT, the Permittee shall submit two full size sets of revised Final Plans to the Executive Director for review and approval. The revised Final Plans shall be in substantial conformance with the plans submitted to the Coastal Commission (dated received in the Commission’s Central Coast District Office on January 15, 2010, and titled “Carmel Way Pedestrian Trail,” “North San Antonio Avenue Pedestrian Trail,” and “Carmel Beach Stairs” prepared by WWD Corporation) except that they shall be revised and supplemented to: 1) provide a boardwalk across the North Dunes area constructed of natural wood materials designed in such as way as to blend as much as possible with the dune aesthetic; 2) omit decomposed granite at the top stairway landing and instead make a seamless connection between the boardwalk and the top stairway landing; 3) provide an overlook area at the top of the stairway, including a bench if feasible; 4) modify the path alignment on Carmel Way to avoid crossing the parking area near the Carmel gate and instead extend along the seaward side of the parking area off pavement (and on a decomposed granite path segment); 5) extend the decomposed granite path segment near the restroom along Carmel Way so that it provides seamless connection to decomposed granite path segments on either side; and 6) modify fence design so that supporting poles do not extend above pickets, and use 4”x4” poles and 2”x4” supports if feasible.; 7) repair and/or improve, as necessary, the existing trail between the 4th Street/North San Antonio intersection and the dune area so that it is safe and functional for public access use; 8) demarcate a 4-foot wide area of the existing trail (through striping, stenciling, or other method to clearly delineate the path) where it extends across pavement at the 4th Street/North San Antonio intersection (extending from North San Antonio Avenue to the existing decomposed granite trail segment); and 9) require all trail landscaping to be native plant species of local stock and appropriate to the surrounding habitat type, and prohibit non-native and/or invasive plant species along the trail.

COMMENT:
• Interestingly, according to an article in The Carmel Pine Cone March 19, 2010, the City “opposed a boardwalk, instead seeking a marked sand path across the dunes above the beach.” Mayor Sue McCloud requested the Commission reconsider the boardwalk requirement. McCloud argued that the dunes “should remain in their natural state without the use of boardwalks.” However, the recent City of Carmel LCP amendment certified by the Commission in January 2010 for this North Dune area explicitly calls for the use of boardwalks for this purpose at this precise location. Moreover, the Commission has had “long experience with boardwalk projects as a means of protecting dune habitats.” The California Coastal Commission approved with conditions Application No. 3-10-003, including the construction of boardwalks in the North Del Mar Dunes area.

ADDENDUM:
D. Exhibits
Exhibit A: Location Map (page 21)
Exhibit B: Overall Proposed Trail Plan (page 22)
Exhibit C: Aerial Photo (page 23)
Exhibit D: Carmel Way Trail Plans (includes Redondo Trail segment) (pages 24-33)
Exhibit E: North San Antonio Trail Plans (includes Del Mar Dunes segment) (pages 34-42)
Exhibit F: Carmel Beach Stairway Plans (pages 43-52)

STAFF REPORT for Th7b
CDP Application Number 3-10-003 (Del Monte Forest to Carmel Beach Trail)

CALIFORNIA COASTAL COMMISSION
MARCH 2010 AGENDA

Coastal panel OKs trail work, demands beach boardwalk, MARY BROWNFIELD, The Carmel Pine Cone March 19, 2010, 8A

Hon. Kay T. Kingsley’s Intended Decision (Condensed Version) Case No. M99437 THE FLANDERS FOUNDATION v. CITY OF CARMEL-BY-THE-SEA and CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA

ABSTRACT: A condensed version of Hon. Kay T. Kingsley’s Intended Decision, Case Number M99437, THE FLANDERS FOUNDATION, Petitioner, CITY OF CARMEL-BY-THE-SEA and CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA, Respondents, consisting of selected excerpts is presented. In short: “The Court finds that the City did not comply with CEQA as a matter of law because the City failed to analyze the potential environmental impacts of selling or leasing the Mansion in compliance with the Surplus Lands Act, and in responding to comments. In all other respects, the Court finds that the City complied with CEQA.” Practically, the decision means that the City must pay legal fees of Flanders Foundation attorney, rescind Resolutions, et cetera, pertaining to the sale of the Flanders Mansion Property and the judge’s order invalidated the vote of 3 November 2009 because, according to Flanders Foundation attorney Susan Brandt-Hawley, “the election can’t stand because voters based their decision on an incomplete EIR.”

SUPERIOR COURT OF CALIFORNIA
COUNTY OF MONTEREY

THE FLANDERS FOUNDATION, Petitioner,

CITY OF CARMEL-BY-THE-SEA and
CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA, Respondents.

Case No. M99437
Intended Decision

This matter came on for court trial on February 10, 2010. All sides were represented through their respective attorneys. The matter was argued and taken under submission. This intended decision resolves factual and legal disputes, and shall suffice as a statement of decision as to all matters contained herein.

Background

Flanders requests that the Court find that the Revised Final Environmental Impact Report (RFEIR) is inadequate because (1) the Surplus Lands Act applies and the RFEIR did not analyze the potential significant environmental impacts if the parkland is sold or leased to another government agency (Gov. Code, §§ 38440-38462, 54220-54222); (2) the response to comments regarding the Surplus Land Act issue and mitigation by reducing the size of the parcel were conclusory; (3) the economic feasibility analysis should be included in the RFEIR; (4) the economic feasibility analysis was inadequate; (5) lease of the Mansion is feasible; and (6) the statement of overriding consideration is unsupported.

The Court finds that the City did not comply with CEQA as a matter of law because the City failed to analyze the potential environmental impacts of selling or leasing the Mansion in compliance with the Surplus Lands Act, and in responding to comments. In all other respects, the Court finds that the City complied with CEQA.

Standard of Review

The Court’s review is limited to ascertaining whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law or the decision is not supported by substantial evidence. (Pub. Resources Code, §§ 21168, 21168.5.) This standard governs the review of Carmel’s compliance with the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA).

Discussion

(A). Surplus Lands Act issue

...the Court concludes that the EIR failed to adequately analyze the impact of an agency purchasing or leasing the property unconstrained by any conditions that the City attaches to the divestment of the Mansion. The RFEIR must contain this analysis, and it may be necessary to recirculate the RFEIR for public comment.

(B). Response to comments
(1). Surplus Land Act

...the City must analyze the foreseeable impacts that may result if an agency buys or leases the Mansion, and to the extent the response is deemed inadequate, any future consideration by the City Council will include the essential information requested.

(2). Mitigation by reducing the size of the parcel
(a). Selling the Mansion

To the extent this response is deemed inadequate, the future consideration by the City Council will include the essential information requested.

(b). Leasing the Mansion

...if the Mansion is sold, the City must analyze the foreseeable impacts that may result if an agency buys or leases the Mansion, to the extent the response to leasing a smaller parcel is deemed inadequate, any future consideration by the City Council will include the essential information requested.

(C). Economic feasibility analysis and the RFEIR

This Court cannot draw the same inference as Flanders, that Save Round Valley, and the other cases and statutes cited by Flanders, in light of the Guidelines, statutes and cases cited by the City, mandate that the economic feasibility analysis as a matter of law must be in the EIR.

(D). Economic feasibility analysis

The Court notes that it was difficult for the consultant to find comparables because the Mansion is truly unique. However, the Court cannot find as a matter of law that the City did not make an adequate, complete, and a good-faith effort at full disclosure of the economic information.

(E). Feasibility of the lease of the Mansion

The Court finds that there is substantial evidence in the record that the City considered and balanced the environmental impacts and the degree to which the lease alternative did not meet the City’s economic goals in finding a lease infeasible. The City seeks to sell a property to bring increased income to the citizens of the City of Carmel-by-the-Sea by not having to pay for ongoing expenses, and to raise money for the public benefit in the short term.

(F). Statement of overriding consideration

The City found that “the benefits described above outweigh any and all potential unavoidable adverse impacts of the Project”, (2AR 1886), and the Court concurs.

Disposition

Flanders’ writ of mandate is granted as set forth above. The court directs the attorney for Flanders to prepare an appropriate judgment consistent with this ruling, present it to opposing counsel for approval as to form, and return it to this court for signature.

Dated:

____________________________________
HON. KAY T. KINGSLEY
Judge of the Superior Court

HON. KAY T. KINGSLEY’S Intended Decision, Case No. M99437 THE FLANDERS FOUNDATION v. CITY OF CARMEL-BY-THE-SEA and CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA

ABSTRACT: The Intended Decision, Case No. M99437 THE FLANDERS FOUNDATION, Petitioner, CITY OF CARMEL-BY-THE-SEA and CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA, Respondents, by HON. KAY T. KINGSLEY, Judge of the Superior Court, a total of thirty seven pages, is reproduced in its entirety.


Judge Kingsley Intended Decision Flanders 2010

SUPERIOR COURT OF CALIFORNIA
COUNTY OF MONTEREY

THE FLANDERS FOUNDATION, Petitioner,

CITY OF CARMEL-BY-THE-SEA and
CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA, Respondents.

This matter came on for court trial on February 10, 2010. All sides were represented through their respective attorneys. The matter was argued and taken under submission. This intended decision resolves factual and legal disputes, and shall suffice as a statement of decision as to all matters contained herein.

Background
Respondents, City of Carmel-by-the Sea and City Council of the City of Carmel-by-the-Sea (collectively referred to as Carmel or City), purchased the Flanders Mansion (Mansion) in 1973. The Mansion property is listed in the National Register of Historic Places, California Register of Historical Resources, Carmel Inventory, and the Carmel Register of Historic Resources. San Francisco architect Henry Gutterson designed the Mansion and its gardens. The Mansion parcel is located within the 35-acre Mission Trails Nature Reserve which includes the adjacent Lester Rowntree Native Plant Garden.

In Flanders v. City of Carmel (M76728), the City proposed to sell the Mansion to (1) generate funds for capital improvements; (2) divest itself of property needing significant rehabilitation and at the same time preserve the Mansion as a historic resource; (3) put the Mansion to productive use and protect the surrounding neighborhoods from various impacts; and (4) protect the surrounding park and Environmentally Sensitive Habitat Areas (ESHA). This Court granted Petitioner’s, The Flanders Foundation (Flanders), writ, in part.

Now, the City’s primary objective is to divest itself of the Mansion because the Mansion needs significant rehabilitation and requires ongoing maintenance. The City proposes to sell the Mansion and secondarily require that: (1) it be preserved as a historic resource; (2) put to productive use; (3) the use not disrupt (a) the surrounding neighborhood and (b) the public’s enjoyment of Mission Trails Nature Preserve and the Lester Rowntree Native Plant Garden; (4) the environmental resources of the park are protected; and (5) the proposed use will ensure that the Mansion property will provide the public with as many park benefits as are practical.

Flanders requests that the Court find that the Revised Final Environmental Impact Report (RFEIR) is inadequate because (1) the Surplus Lands Act applies and the RFEIR did not analyze the potential significant environmental impacts if the parkland is sold or leased to another government agency (Gov. Code, §§ 38440-38462, 54220-54222); (2) the response to comments regarding the Surplus Land Act issue and mitigation by reducing the size of the parcel were conclusory; (3) the economic feasibility analysis should be included in the RFEIR; (4) the economic feasibility analysis was inadequate; (5) lease of the Mansion is feasible; and (6) the statement of overriding consideration is unsupported.

The Court finds that the City did not comply with CEQA as a matter of law because the City failed to analyze the potential environmental impacts of selling or leasing the Mansion in compliance with the Surplus Lands Act, and in responding to comments. In all other respects, the Court finds that the City complied with CEQA.

Administrative Record
The administrative record (AR) was admitted into evidence. The record from Flanders v. City of Carmel (M76728) is cited as AR [page], and the recent record is cited as 2AR [page].

Judicial Notice
Petitioner’s first and second requests for judicial notice were granted.

Standard of Review
The Court’s review is limited to ascertaining whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law or the decision is not supported by substantial evidence. (Pub. Resources Code, §§ 21168, 21168.5.) This standard governs the review of Carmel’s compliance with the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA).1 (Lucas Valley Homeowners Assn. v. County of Marin (1991) 233 Cal.App.3d 130, 142.)

1 All subsequent statutory references are to the Public Resources Code except as otherwise indicated.

“The CEQA Guidelines, California Code of Regulations, title 14, section 15000 et seq. [Guidelines], contain a definition of substantial evidence as used in these guidelines in connection with whether a project will have a significant effect on the environment. (Cal. Code Regs., tit. 14, § 15384, italics added.) (a) Substantial evidence as used in these guidelines means enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached. Whether a fair argument can be made that the project may have a significant effect on the environment is to be determined by examining the whole record before the lead agency. Argument, speculation, unsubstantiated opinion or narrative, evidence which is clearly erroneous or inaccurate, or evidence of social or economic impacts which do not contribute to or are not caused by physical impacts on the environment does not constitute substantial evidence. [¶] (b) Substantial evidence shall include facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts. (Guidelines, § 15384.).” (Preservation Action Council v. City of San Jose (2006) 141 Cal.App.4th 1336, 1352, fn 9 (Preservation Action Council), emphasis in original, internal quotations omitted.)

“[Q]uestions of interpretation or application of the requirements of CEQA are matters of law. While [the court] may not substitute [the court’s] judgment for that of the decision makers, [the court] must ensure strict compliance with the procedures and mandates of the statute.” (Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 118, citations omitted.)

Discussion
(A). Surplus Lands Act issue

This Court in Flanders v. City of Carmel (M76728) found that the Mansion was parkland, and the City was directed to comply with Government Code sections 38440-38462 and 54220-54222, if the City chose to sell the Mansion.

Flanders argues that the RFEIR does not provide an analysis of the environmental impacts that might result from another agency utilizing the Mansion property for low or moderate income housing or other purposes, and as a matter of law, the City did not comply with CEQA.

Flanders notes that when the issues were brought to the City’s attention (2AR 871), the EIR consultant’s response was that (1) any future use of the property would be restricted by the adopted conditions and mitigation measures that the City would impose on a private party; and (2) an analysis of an agency purchasing or leasing the Mansion would involve a high degree of conjecture and speculation. (2AR 878.) Revisions to the RFEIR regarding this issue included the addition of two paragraphs:

“[1] Whether any such agency will request to negotiate for purchase of the property or be able to purchase the property at fair market value, is unknown and speculative at this time. Likewise, whether any such agency will be able to comply with the mitigation measures, conditions of sale and covenants to be recorded to run with the land, and the use to which any such agency might put the property are also unknown and speculative at this time.

“[2] As stated in the EIR, should any future use be proposed which presents potentially-significant environmental impacts which have not been analyzed in this EIR, additional environmental review in accordance with CEQA would be required. This requirement would apply to the above-listed agencies [per Gov. Code, § 54222] if any of them were to purchase the property and propose such a use.” (2AR 929.)

Government Code section 54222 provides: “Any local agency disposing of surplus land shall send, prior to disposing of that property, a written offer to sell or lease the property as follows: [¶] (a) A written offer to sell or lease for the purpose of developing low- and moderate-income housing shall be sent to any local public entity, as defined in Section 50079 of the Health and Safety Code, within whose jurisdiction the surplus land is located. Housing sponsors, as defined by Section 50074 of the Health and Safety Code, shall be sent, upon written request, a written offer to sell or lease surplus land for the purpose of developing low- and moderate-income housing. All notices shall be sent by first-class mail and shall include the location and a description of the property.

With respect to any offer to purchase or lease pursuant to this subdivision, priority shall be given to development of the land to provide affordable housing for lower income elderly or disabled persons or households, and other lower income households. [¶] (b) A written offer to sell or lease for park and recreational purposes or open-space purposes shall be sent: (1) To any park or recreation department of any city within which the land may be situated. (2) To any park or recreation department of the county within which the land is situated. (3) To any regional park authority having jurisdiction within the area in which the land is situated. (4) To the State Resources Agency or any agency that may succeed to its powers. [¶] (c) A written offer to sell or lease land suitable for school facilities construction or use by a school district for open-space purposes shall be sent to any school district in whose jurisdiction the land is located. [¶] (d) A written offer to sell or lease for enterprise zone purposes any surplus property in an area designated as an enterprise zone pursuant to Section 7073 shall be sent to the nonprofit neighborhood enterprise association corporation in that zone. [¶] (e) A written offer to sell or lease for the purpose of developing property located within an infill opportunity zone designated pursuant to Section 65088.4 or within an area covered by a transit village plan adopted pursuant to the Transit Village Development Planning Act of 1994, (Article 8.5 (commencing with Section 65460) of Chapter 3 of Division 1 of Title 7) shall be sent to any county, city, city and county, community redevelopment agency, public transportation agency, or housing authority within whose jurisdiction the surplus land is located. [¶] (f) The entity or association desiring to purchase or lease the surplus land for any of the purposes authorized by this section shall notify in writing the disposing agency of its intent to purchase or lease the land within 60 days after receipt of the agency's notification of intent to sell the land.”

Flanders contends that the Surplus Lands Act cannot set any conditions other than market price and timing of payment on an agency purchasing or leasing the Mansion (Gov. Code, §§ 54225, 54226), and consequently, the City had to analyze potential environmental impacts as if the conditions and mitigation measures were not binding on another agency. (Pub. Resources Code, §§ 21061, 21100; Guidelines, § 15151.)

Flanders requests that the Court order that the EIR include such an analysis and that the EIR be recirculated so that the public and other agencies can comment.

Carmel argues that res judicata precludes any review of the Surplus Lands Act issue because this Court disposed of the General Plan consistency issue by finding that there was “no abuse of discretion in Carmel’s determination of consistency” between the General Plan and a sale of the Mansion Parcel. (Flanders v. City of Carmel, Intended Decision, pp. 20-22.)

The Court is puzzled by this argument because the Court agreed with Flanders and found that the Mansion was parkland and that the Surplus Land Act applied in Flanders v. City of Carmel. (Intended Decision, pp 18-19.)

Also perplexing is that the City argues that Flanders had to raise and fully litigate the issue of an agency buying or leasing the Mansion in Flanders v. City of Carmel, and because Flanders failed to do so, claim preclusion applies to any attempt by Flanders to relitigate the issue of selling the Mansion. (Federation for Hillside Canyon Ass’ns v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1202.)

The previous EIR in Flanders v. City of Carmel did not address this issue, in part, because the City adamantly argued that the Mansion was not parkland, and consequently the City did not have to comply with the Surplus Lands Act, and res judicata or collateral estoppel do not apply to this case.

If in the abstract, res judicata or collateral estoppel could be applied, the nexus of this case with Flanders v. City of Carmel supports a finding that barring the Surplus Lands Act issue would not be in the public interest. The fact that the City held hearings and took evidence, produced and circulated a RDEIR that incorporated the Court’s ruling regarding compliance with the Surplus Lands Act and the sale of parkland, requires that this Court protect Flanders due process rights to argue this issue in support of CEQA’s goal of protecting the environment. (Zeunik v. Superior Court (2008) 159 Cal.App.4th 76, 84; Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259.)

The City argues that the Court must apply the substantial evidence standard of review in assessing whether the RFEIR’s analysis of potential environmental effects was adequate. (Laurel Heights Improvement Ass’n of San Francisco, Inc. v. Regents of the Univ. of California (1988) 47 Cal.3d 376, 392-393.)

The City contends that a sale of the Mansion to an agency without any conditions is not reasonably foreseeable, and the 2009 RFEIR did not have to analyze this issue.

Alternatively, the City contends that the allowable uses in the P-2 zoning district sufficiently mirror the uses permitted by the Surplus Lands Act and that there is substantial evidence in the record to support an argument that an analysis of future uses of the Mansion did take place. The City also argues that the use of the Mansion parcel will be constrained because of historic water usage. (2AR 948-950.)

“The fundamental purpose of an EIR is to provide public agencies and the public in general with detailed information about the effect which a proposed project is likely to have on the environment’ (§ 21061.) (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, supra, 40 Cal.4th 412, 428.) Thus, an EIR must adequately identify and analyze the significant environmental effects of the proposed project. (§ 21100, subd. (b); Guidelines, § 15126.2, subd. (a).) In assessing the impact of a proposed project on the environment, the lead agency normally examines the changes in existing environmental conditions in the affected area that would occur if the proposed activity is implemented. (Guidelines, § 15126.2, subd. (a); see Wal-Mart Stores, Inc. v. City of Turlock (2006) 138 Cal.App.4th 273, 289 [41 Cal. Rptr. 3d 420].) Direct and indirect significant effects of the project on the environment shall be clearly identified and described, giving due consideration to both the short-term and long-term effects. (Guidelines, § 15126.2, subd. (a).) The degree of detailed analysis necessary in an EIR is summarized in the Guidelines as follows: An EIR should be prepared with a sufficient degree of analysis to provide decisionmakers with information which enables them to make a decision which intelligently takes account of environmental consequences. An evaluation of the environmental effects of a proposed project need not be exhaustive, but the sufficiency of an EIR is to be reviewed in the light of what is reasonably feasible... The courts have looked not for perfection but for adequacy, completeness, and a good faith effort at full disclosure.” (Guidelines, § 15151.) (San Joaquin Raptor Rescue Center v. County of Merced (2007) 146 Cal.App.4th 645, 660, internal quotations omitted.)

Revisions to the RDEIR in response to comments of the sale under the Surplus Lands Act provide in part:

“The 2009 RDEIR and the 2005 DEIR evaluated the potential environmental impacts associated with the use of the Flanders Mansion property as a commercial operation and more intensified uses. Specifically, uses under the existing P-2 Zoning District (Improved Parklands) were evaluated and considered per the allowable uses in the Zoning Ordinance. The Ordinance discusses allowed P-2 uses in Schedule II-C and the corresponding footnotes. There are four uses allowed without any footnotes or limitations (Park/Recreation Facilities, Live Performance Theater, Motion Picture Theater and Communication Antennae/Towers). In addition, several uses are listed that have limits established:

(Single-Family Residential, Senior Citizen housing, Day Care, Clubs/Lodges, Small Conference Facilities and Government Officers).

“Based on Table 4.5.1 in the RDEIR, traffic generation rates and corresponding impacts were assigned for park/recreational, residential (single-family detached) and public/quasi-public (general office).

Estimates were based on the Institute of Transportation Engineers, Trip Generation, 7th Edition, 2003 which provides assumptions for traffic volumes associated with various uses depending on the number of employees, type of use, and other factors. Additionally, Table 3 of the 2005 Draft EIR on Page 4.4 identified various uses of the property assumed under allowable zoning and provided an impact summary of traffic under these uses.

These included: Park and Recreation Use, residential uses, Municipal Facilities, Non-profit Uses, Lodge and Motel and Day Care.

“This RDEIR evaluated a range of potential future uses in accordance with the existing zoning designation (P-2 Improved Parkland). Potential uses identified of those agencies under the Surplus Land Act include parks and recreation, resources agencies or officers of school districts, housing sponsors such as those for senior citizen housing, or other uses which are similar in character or nature to the uses already specified and analyzed in the 2005 EIR and 2009 RDEIR.

“Additionally, mitigation was incorporated in the RDEIR that restricts future use of the property to those uses that have historically occupied the Flanders Mansion property since it was acquired by the City. Therefore, high traffic generating uses, such as commercial uses (e.g., a housing project, visitor serving facilities similar to a bed and breakfast or motel, or a school facility) would be prohibited from occupying the site through the conditions of sale or other legally binding method in order to avoid potential significant impacts due to land use conflicts with the Mission Trails nature Preserve, including the Lester Rowntree Arboretum, and the surrounding single-family residential neighborhoods.

“The project site is within the MPWMD [Monterey Peninsula Water Management District], which is responsible for issuing water connection permits for development within its boundaries. The MPWMD restricts the water allocation assigned for each jurisdiction and requires that all properties that modify or add water fixtures on a property within the MPWMD obtain District approval. The City has negligible amount of water to allocate to new uses in the area within the MPWMD. Water will be restricted to using the amount of water historically allocated for the buildings and use on the site, in accordance with the regulations of the MPWMD. Since the historical amount of water the project site has used is consistent with use as a low intensity use for single-family home or limited office use, water is considered a severe constraint for development of a number of the
uses identified under the Surplus Land Act.

“Based on the assumed uses outlines above, this alternative would result in greater level of impacts than the proposed project in regard to aesthetics, biological resources, cultural resources, land use and planning, parks and recreation, and transportation/traffic due to the potential intensity of use and would not avoid the significant unavoidable impacts associated with the proposed project. Depending on the type of agency or owner, this alternative could still result in the permanent loss of publicly owned parkland due to a change in ownership consistent with the proposed project. This alternative, would meet the primary project objective, divestment of the Flanders Mansion property. This alternative, if inconsistent with the historic uses associated with the Flanders Mansion, would not achieve objectives related to the minimization of traffic impacts on the surrounding residential neighborhoods. Additionally, depending on the type of use proposed, this Alternative may not be feasible due to the lack of available infrastructure (water) to serve the use.

“Further, the process for offering the land for public sale to any of these agencies and future use of the property under [the Surplus Land] Act does not preclude the requirements of state law or the provisions of CEQA. Future use of the site would require City permits and processing under applicable City regulations and state statues. If any uses were proposed that [were] not within the parameters of the uses considered under this environmental document that would trigger further environmental review, CEQA guidelines would require that the City conduct the appropriate additional environmental assessment and documentation...” (2AR 949-950, underscoring deleted.)

"Noncompliance with substantive requirements of CEQA or noncompliance with
information disclosure provisions ‘which precludes relevant information from being presented to the public agency . . . may constitute prejudicial abuse of discretion within the meaning of Sections 21168 and 21168.5, regardless of whether a different outcome would have resulted if the public agency had complied with those provisions.’ (§ 21005, subd. (a).) In other words, when an agency fails to proceed as required by CEQA, harmless error analysis is inapplicable." (County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 946.)

In this instance, Carmel failed to proceed as required by law.

The RFEIR did not fulfill its information disclosure function. The City did not consider nor analyze the potential environmental impacts that might occur if an agency purchased or leased the Mansion parcel and the potential environmental consequences if the agency would not be constrained by any conditions that the City seeks to attach to the Mansion parcel.

Also, to the extent the City argues that there is substantial evidence to support such an analysis, the Court finds that the EIR is without substantial evidence in the record or reasoned analysis regarding the Surplus Lands Act issue. Rather, the matters raised in the revisions to the RDEIR consist of a generalized discussion of P-2 zoning and the Surplus Lands Act without a sufficient nexus. There is also a lack of any analysis of what uses could be made of the Mansion by an agency, and “precisely” what amount of water is available for the Mansion.

As to the City’s argument that another EIR can be prepared at a later date if an agency purchases or leases the property and the conditions do not apply:

“Courts have considered separate activities as one CEQA project and required them to be reviewed together where, for example, the second activity is a reasonably foreseeable consequence of the first activity; the second activity is a future expansion of the first activity that will change the scope of the first activity's impacts; or both activities are integral parts of the same project. [¶] However, where the second activity is independent of, and not a contemplated future part of, the first activity, the two activities may be reviewed separately, even though they may be similar in nature.” (Sierra Club v. West Side Irrigation District (2005) 128 Cal.App.4th 690, 698-699.)

The City assumes that it will control the property if the Mansion is sold to an agency such as the state or Monterey County. The contingency that the City may not have a say in the future use of the Mansion if the property is no longer part of the City (e.g., a water allocation from the County), belies the City’s argument that it may choose to prepare another EIR in the future.

For all the reasons stated above, the Court concludes that the EIR failed to adequately analyze the impact of an agency purchasing or leasing the property unconstrained by any conditions that the City attaches to the divestment of the Mansion.

The RFEIR must contain this analysis, and it may be necessary to recirculate the RFEIR for public comment.

(B). Response to comments
As noted in Flanders v. City of Carmel: “Responses to comments need not be exhaustive; they need only demonstrate a good faith, reasoned analysis. [T]he determination of the sufficiency of the agency's responses to comments on the draft EIR turns upon the detail required in the responses. Where a general comment is made, a general response is sufficient. [A]n EIR is presumed adequate, and the [petitioner] in a CEQA action has the burden of proving otherwise. Satisfactory responses to comments may be provided by reference to the EIR itself.” (Gilroy Citizens for Responsible Planning v. City of Gilroy (2006) 140 Cal.App.4th 911, 937, internal citations and
quotation marks omitted.)

(1). Surplus Land Act
Letter R from Mr. Francis Lloyd, dated February 5, 2009, noted that “the
Government Code provides that any proposed sale must go though a process which includes offering the property to other agencies before it is offered to the general public” and “[n]o analysis is made in the DEIR of any impacts of these potential uses, which are foreseeable.” (2AR 871.)

The City responds to Letter R, in part, by stating that “[a] number of public agencies will be offered the opportunity to purchase the Flanders Mansion property in accordance with the Surplus Land Act. Irrespective of who the ultimate purchaser may be, the future use of the property will be subject to the mitigation measures identified in this FDEIR, in addition to specific conditions of sale, which limit the future use of the property to those low-intensity uses that have historically occupied the Flanders Mansion site. Additionally, analysis of alternatives of the 2005 DEIR and the RDEIR consider uses consistent with the categories of agencies that are listed in the Act. Beyond that, any analysis of the full array of potential uses that might otherwise be sought by agencies listed in the Surplus Land Act would involve a high degree of conjecture and speculation which is inappropriate in an EIR. However, in response to this comment, additional text has been added to amplify the discussion and process for the potential sale of the property though the Surplus Land Act.” (2AR 878.)

As noted above, the City must analyze the foreseeable impacts that may result if an agency buys or leases the Mansion, and to the extent the response is deemed inadequate, any future consideration by the City Council will include the essential information requested.

(2). Mitigation by reducing the size of the parcel
(a). Selling the Mansion
Letter R notes that “[n]o analysis is made of an alternative of ‘divesting’ the structure without divesting the acreage of parkland which surrounds it.” (2AR 871.)

Letter R also suggested, in part, that “[a] reduction in the size of the parcel to be sold or a conservation easement on a portion of the property” are potential mitigation measures that are not sufficiently analyzed. (2AR 872.)

The City’s response to the argument that an alternative needed to be analyzed that divested the Mansion, but not the parkland that surrounds the Mansion, referenced Master Response 3a. (2AR 878.) This Master Response, Range of Alternatives, discusses in general, CEQA alternative analysis requirements, the alternatives analyzed, and alternatives that were eliminated from a detailed analysis, (see pages 6-1 through 6-3 of the RDEIR). (2AR 786-787.) There is no mention that the City considered and rejected an alternative of selling the Mansion without the parkland that surrounds the Mansion on pages 6-1 though 6-3. (2AR 336-338.)

The City also responded to this suggested alternative by stating that: “The City of Carmel-by-the Sea has determined that sale of the building with no land is not considered viable. Specifically, in light of the size of the building, the City considers it impractical, untenable, and unreasonable that any potential purchaser would buy a home of this size without owning the land on which it is situated. The City has further concluded that a purchaser would reasonably expect that [a] home or building of this scope would be accompanied by some land, including a driveway and parking area, and at least a small yard area of some kind. In view of these considerations, this alternative was not included for analysis in the RDEIR.” (2AR 878.)

The City, in responding to the suggestion that the sale of a reduced parcel be analyzed, only responded to the second issue regarding conservation easements in response. (2AR 879.)

In the City’s points and authorities, the City references the 2005 FEIR to argue that selling a slightly smaller parcel, 1.185 acres, was an alternative that had already been analyzed, and that Letter R was proposing that the Mansion be sold without any parkland that surrounded the Mansion, not a reduced parcel and the City responded accordingly.

To the extent this response is deemed inadequate, the future consideration by the City Council will include the essential information requested.

(b). Leasing the Mansion
Letter R also points out, in part, that “[n]o analysis is made of an alternative of leasing only the building on the property, not the 1.252 acres, plus access rights to and from it for a passive use which is no more burdensome, environmentally, to the Mission Trails Nature Preserve (‘MTNP’), than is a no project alternative.” (2AR 872.)

The City responds by stating that such an “alternative use is included in the ‘No Project’ alternative, because when the property has been rented in the recent past, it has been rented without any right to exclude the public from the grounds.” The City also says see Master Response 3a. (2AR 878-879.)

As noted in the response to the comment about a reduction in the size of the parcel if the Mansion is sold, the City must analyze the foreseeable impacts that may result if an agency buys or leases the Mansion, to the extent the response to leasing a smaller parcel is deemed inadequate, any future consideration by the City Council will include the essential information requested.

(C). Economic feasibility analysis and the RFEIR
Flanders contends that the RFEIR is defective as a matter of law because it must contain the economic feasibility analysis that was produced by CBRE Consulting. (2AR 547-738.) Flanders’ argument is premised, in part, on this unique case, involving a historic resource that constitutes parkland that is to be sold, creating a private in-holding in Mission Trail Nature Preserve, and that the public and interested agencies should have had the opportunity to comment on the CBRE economic feasibility analysis as part of the EIR process. Flanders also asks this Court not follow Guidelines section 15131, that economic information relevant to feasibility need not be contained in an EIR, because Guidelines section 15131 is without statutory authority and has been improperly applied in a number of appellate decisions.

The City contends that the Court must recognize that the City need only follow Guidelines section 15131(c), which provides: “Economic … factors shall be considered by public agencies together with technological and environmental factors in deciding whether changes in a project are feasible to reduce or avoid the significant effects on the environment identified in the EIR. If information on these factors is not contained in the EIR, the information must be added to the record in some other manner to allow the agency to consider the factors in reaching a decision on the project.”

The City also cites to appellate decisions that provide that the economic analysis need not be in the EIR. (Sequoyah Hills Homeowners Assoc. v. City of Oakland (1993) 23 Cal.App.4th 704, 715; San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656, 691 (San Franciscans Upholding).)

Flanders supports its argument that the economic analysis must be in the EIR by citing to Save Round Valley Alliance v. County of Inyo (2007) 157 Cal.App.4th 1437, 1461, fn 13 (Save Round Valley). Flanders argues that, as noted in Save Round Valley, if the key to feasibility is economic, that analysis must be in the EIR.

Flanders’ citation to Save Round Valley provides in full:

“We do not suggest that an economic analysis is necessarily required in order to address the feasibility of the land exchange alternative. (See Sierra club v. County of Napa, supra, 121 Cal.App.4th at pp. 1505-1506 [CEQA does not require analysis of economic feasibility].) If, for example, the County concludes that the basis objectives of the project cannot be achieved regardless of economic feasibility, an analysis of economic viability may not be necessary. If however, the County relies upon economic viability as a basis for finding the alternative infeasible, it must support its conclusion by applying the correct standard to the applicable facts.”

The Save Round Valley court, in the footnoted paragraph, stated in part “that there was nothing in the EIR that informs the public or decision maker of the ‘price’ or comparative value of the BLM parcel.” (Save Round Valley, supra, 157 Cal.App.4th. at p. 1461.)

This Court cannot draw the same inference as Flanders, that Save Round Valley, and the other cases and statutes cited by Flanders, in light of the Guidelines, statutes and cases cited by the City, mandate that the economic feasibility analysis as a matter of law must be in the EIR.

(D). Economic feasibility analysis
Flanders contends that the CBRE report was faulty and inadequate as a matter of law. Flanders points out that the Mansion is parkland, a uniquely-valued property that is protected by City policies. Flanders argues that because the Mansion was never intended to be a commercially profitable property, economic feasibility must be based on whether the City can continue ownership, taking into consideration the Mansion’s historic place in the community, and not burden the neighborhood.

Thus, because the CRBE report did not look at the relevant economic factors of leasing a historic mansion located on parkland, or the City’s financial capacity to restore and maintain the Mansion, the report failed to meet the ruling in Flanders v. City of Carmel wherein this Court stated that “absent substantial evidence in the form of an economic analysis that most project objectives could not reasonably be accomplished via lease, … the project cannot be approved” under CEQA mandates. (Flanders’ 1st request for Judicial Notice, Amended Judgment at 2.)

Flanders points out that the CBRE report looked at office building values such as medical and office buildings which are not comparables for the Mansion property. (2AR 619-625, 1534.)

The City responds by contending that the CBRE economic analysis is not required to address the City’s finances or the City’s capacity to bear maintenance costs related to the Mansion because the financial situation of the project proponent, the City, is not relevant. (Uphold our Heritage v. Town of Woodside (2007) 147 Cal.App.4th 587, 559- 600 (Uphold Our Heritage.)

The City also argues that after an exhaustive search, the CBRE report identified three properties which were clearly relevant comparables (2AR 554-559), which were adequate and done in good faith. (Citizens of Goleta Valley v. Board of Supervisors (1988) 197 Cal.App.3d 1167, 1176 (Goleta I).)

“The EIR is an informational document with the stated purpose of providing public agencies and the public with 'detailed information about the effect which a proposed project is likely to have on the environment; to list ways in which the significant effects of such a project might be minimized; and to indicate alternatives to such a project. An EIR should be prepared with a sufficient degree of analysis to provide decisionmakers with information which enables them to make a decision which intelligently takes account of environmental consequences. An evaluation of the environmental effects of a proposed project need not be exhaustive, but the sufficiency of an EIR is to be reviewed in the light of what is reasonably feasible. … Technical perfection is not required; the courts have looked not for an exhaustive analysis but for adequacy, completeness and a good-faith effort at full disclosure.” (Rio Vista Farm Bureau Center v. County of Solano (1992) 5 Ca.App.4th 351, 368 (Rio Vista), citations
and quotations omitted.)

Although the Rio Vista court was discussing an EIR, as noted earlier, information regarding an economic feasibility analysis may be utilized even if not included in an EIR to discuss the adequacy of alternatives, and inferentially, the court would look for “adequacy, completeness and a good-faith effort at full disclosure” of such economic information.

Flanders and the City differ on the impact of Uphold Our Heritage on the issue of whether the City’s budget and financial needs should have been included in the CBRE report.

In Uphold Our Heritage, the Appellate Court rejected the EIR’s analysis because no information was forthcoming about the costs of a new home, and no comparison of the relative costs of the project and the alternates could be conducted. (Uphold Our Heritage, supra, 147 Cal.App.4th at pp. 598-601.)

This Court recognizes that this case is extraordinary because an apparent solvent city seeks to divest itself of a historic structure that constitutes parkland, and the Mansion is central to the Mission Trail Nature Preserve.

Nevertheless, the Uphold Our Heritage court, citing to Maintain our Desert Environment v. Town of Apple Valley (2004) 124 Cal.App.4th 430, stated that the “wealth or ability to shoulder the costs of the proposed alternative is irrelevant.” (Uphold Our Heritage, supra, 147 Cal.App.4th at p 599.)

The City’s budget and financial status did not have to be included in the CBRE report.

The CBRE report examined three comparable properties. These were significant historic homes meeting at least three criteria: “[1] Located in a residential neighborhood, with an affluent population and close to a park or other public open space; [2] Recently restored or repaired; [3] Currently or formerly publicly owned.” (2AR 554.)

The CBRE report acknowledged that the three properties ranged considerably in their comparability to the Mansion but concluded that the comparables helped in creating observations about historic reuse of single-family homes with similar characteristic and neighborhood settings. The CBRE report summarized the observations as follows:

“Some non-residential uses involve little or no significant public access or activity. However, if there is some level of access activity, extensive public outreach has been successful in mitigating neighborhood concerns. The public process may also aid in fundraising effort.

“For a non-residential use traffic and parking impacts may be addressed through detailed conditional use permit requirements, mitigation measures and/or conditions of sale drafted to take into account the comments of the community. These conditions may limit the volume and timing of visits. Transporting visitors to the property from a remote location may be a possible solution.

“Most importantly, generation of revenue for repairs, rehabilitation, and
subsequent maintenance is a sizable challenge. Visitor fees cannot be expected to cover costs associated with repairs and rehabilitation, or even ongoing maintenance. In one case study, we found that residential rental income might almost offset the City’s ongoing maintenance responsibilities; however, it is essential to note that rehabilitation has already occurred, and at a small fraction of the cost currently estimated for the Flanders Mansion Property.” (2AR 555.)

The CBRE report analyzes eight comparables in an effort to estimate the market value of the Mansion after restoration, provided the Mansion is of good quality and condition when sold as a residence. (2AR 609-612.)

The CBRE report also contains a section that values the Mansion when leased by the City for residential use. The CBRE report looked at five comparable rentals on the Monterey Peninsula, assuming that the Mansion had been restored and is in very good condition in the attempt to estimate rental income. (2AR 614-617.)

As pointed out by Flanders, the CBRE report also estimated the market value of the Mansion by a comparison with six non-residential properties, also assuming that restoration had been completed, and the Mansion was in good condition. This analysis is based on the Mansion being used for a non-residential purpose. (2AR 619-625.)

The CBRE report also provides information about five comparable nonresidential rentals, assuming restoration and a very good condition of the Mansion. (2AR 627-637.)

Finally, the CBRE report summarizes the four scenarios and compares the market values. (2AR 638.)

The Court notes that it was difficult for the consultant to find comparables because the Mansion is truly unique. However, the Court cannot find as a matter of law that the City did not make an adequate, complete, and a good-faith effort at full disclosure of the economic information.

(E). Feasibility of the lease of the Mansion
Public Resources Code section 21002 provides: “The Legislature finds and declares that it is the policy of the state that public agencies should not approve projects as proposed if there are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects of such projects, and that the procedures required by this division are intended to assist public agencies in systematically identifying both the significant effects of proposed projects and the feasible alternatives or feasible mitigation measures which will avoid or substantially lessen such significant effects. The Legislature further finds and declares that in the event specific economic, social, or other conditions make infeasible such project alternatives or such mitigation measures, individual projects may be approved in spite of one or more significant effects thereof.”

In order for Carmel to meet the objective of the project, divestment of the Mansion, the RFEIR must comply with Public Resources Code section 21002.1, which states: “In order to achieve the objectives set forth in Section 21002, the Legislature hereby finds and declares that the following policy shall apply to the use of environmental impact reports prepared pursuant to this division: [¶] (a) The purpose of an environmental impact report is to identify the significant effects on the environment of a project, to identify alternatives to the project, and to indicate the manner in which those significant effects can be mitigated or avoided. [¶] (b) Each public agency shall mitigate or avoid the significant effects on the environment of projects that it carries out or approves whenever it is feasible to do so. [¶] (c) If economic, social, or other conditions make it infeasible to mitigate one or more significant effects on the environment of a project, the project may nonetheless be carried out or approved at the discretion of a public agency if the project is otherwise permissible under applicable laws and regulations.”

“[I]n order to approve a project that would have a significant environmental impact, the City [of Carmel-by-the-Sea] was required to make findings identifying (1) the [s]pecific … considerations that make infeasible the environmentally superior alternatives and (2) the specific … benefits of the project [which] outweigh the environmental harm. (See Pub. Resources Code, §§ 21002.1, subd. (b), 21081; Guidelines, § 15092, subd. (b).).” (Preservation Action Counsel, supra, 141 Cal.App.4th at p. 1353, emphasis in original, quotations ommited.)

“[T]he feasibility of the alternatives must be evaluated within the context of the proposed project. The fact that an alternative may be more expensive or less profitable is not sufficient to show that the alternative is financially infeasible. What is required is evidence that the additional costs or lost profitability are sufficiently severe as to render it impractical to proceed with the project. While an EIR need not analyze every imaginable alternative or mitigation measure, it should evince good faith and a reasoned analysis.” (Uphold Our Heritage, supra, 147 Cal.App.4th at p. 599, citations and internal quotations omitted.)

Some issues for this Court to consider are “[w]hether 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” sale (Uphold Our Heritage, supra, 147 Cal.App.4th at p. 600); “[t]he mere fact that an alternative might be less profitable does not itself render the alternative infeasible” (Preservation Acton Council, supra, 141 Cal.App.4th at p. 1357); and whether the City “cannot achieve the same economic objective from [leasing] the [Mansion] property is not determinative,” impracticability must be shown (Save Round Valley, supra, 157 Cal.App.4th at p. 1461, emphasis in original.)

Flanders contends that the lease of the Mansion is feasible and that there is no substantial evidence to support the City’s contention that (1) a lease is economically infeasible; or (2) against City policy.

The City contends that the lease of the Mansion as a single-family residence, or as a public/quasi-public use, is infeasible on economic grounds. (2AR 1880, 1884.) The City argues that substantial evidence shows that the single-family lease alternative is virtually impossible in a situation where a lessee is responsible for the $1,157,000 cost to
rehabilitate the Mansion because “the market for comparable single-family rental is exceedingly thin in the vicinity of the Flanders Mansion Property and, in fact, nonexistent where lessees are responsible for rehabilitating a property.” (2AR 551.)

The City points out that the CBRE report also found a “non-existent market for non-residential rental when the lessee is required to rehabilitate the property.” The breakeven point for leasing the Mansion is calculated by CBRE to be 17 years as a singlefamily home and 8.7 years as a non-residential property. (2AR 551.)

The City points out that regardless if the City paid for the rehabilitation costs, a sale would net $2,843,000 if the Mansion is sold as a single-family home, and a non-residential sale would net $890,000, which is money that can be used to benefit the citizens of the City of Carmel-by-the-Sea. (2AR 550.)

The City argues that comparing the break-even time with the monies that would be received upon sale, meets the criteria as set forth in Citizens of Goleta Valley, supra, (1988) 197 Cal.App.3d at p. 1180, and supports the City’s finding that a lease is infeasible. The Goleta I court did not find "in the record … any evidence which analyzes that alternative in terms of comparative costs, comparative profit or losses, or to the extent appropriate, comparative economic benefit to the Respondent, nearby communities, or the public at large,” whereas here, the CBRE report and the RFIER contain this information.

The City also argues that this situation is analogous to the case of San Franciscans Upholding, supra, 102 Cal.App.4th at pp. 693, 695, wherein that court found economic infeasibility based on the disparity between alternatives and the project because of additional costs and lost profitability that were “sufficiently severe as to render them impractical.”

The City argues that given the initial investment to rehabilitate the Mansion, combined with the fact that the City will not see a return for either 8.7 or 17 years, and assuming that the Mansion can be rented given the “exceedingly thin” market for the entire period, the comparative differences in the amount of money that the City can receive by selling the Mansion versus leasing, is sufficiently severe as to render the lease alternative impractical.

Finally, the City contends that the lease is infeasible on public policy grounds. The City’s argument is that because the project objective is to sell the Mansion and a lease will not meet the project objective, a lease is infeasible under CEQA. (2AR 1871-1886.) In support of this argument, the City cites to California Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, 1000.

The City cites to portions of Resolution No. 2009-31, “A Resolution Adopting a Statement of Overriding Considerations,” in support of its infeasibility finding of the lease alternative, (2AR 1871-1886), and looks to the CBRE report for the substantial evidence in the record in support of a infeasibility finding. (2AR 550-553.)

Finding 5, of Resolutions No. 2009-31, provides in full: “The City Council finds that even though adopting the Sale with Conservation Easements and Mitigation has lessened significant effects on the environment[,] certain other environmental impacts and cumulative environmental impacts, may remain significant and unavoidable. The City Council finds, pursuant to CEQA section 21081(b) and CEQA Guidelines section 15093, that the specific economic, legal, social, technological and other benefits of the Project outweigh the Project’s unavoidable adverse environmental impacts, and therefore, the impacts are acceptable. The following describes the significant and unavoidable impacts, alternative analysis, infeasibility analysis and the Sale with Conservation Easements and Mitigation alternative for the purpose of providing supporting evidence for the City’s adoption of statements of overriding considerations.” (2AR 1873.)

The City incorporated “A Resolution Certifying the Recirculated Final Environmental Impact Report” and the findings and conclusions of the RFEIR. (2AR 1873.)

The two remaining significant unavoidable impacts were:

(1) “The RFEIR identifies loss of parkland as a significant an unavoidable impact:

‘Sale of the Flanders Mansion Property would result in the loss of locally significant parkland that is considered an integral component of the Mission Trail Nature Preserve.’ (See RDEIR, Section 4.5, p.4.5-6.),” and (2) “The RFEIR also identifies as a potentially significant and unavoidable impact, conflicts between the project and the General Plan: ‘Sale of the Flanders Mansion Property would result in the permanent loss of parkland and therefore has the potential to conflict with several goals, objectives and policies identified in the City of Carmel-by-the-Sea General Plan/Coastal Land Use Plan intended on minimizing impacts to
parkland and promoting public use of publicly owned parkland.

Specifically, the proposed project would conflict with the following goals, objectives and polices:

G5-6 [‘Preserve and acquire open space and parks.’], O5-21 [‘Optimize public use of City parks.’], P5-46 [Preserve and protect areas within the City’s jurisdiction, which due to their outstanding aesthetic quality, historical value, wildlife habitats or scenic viewsheds, should be maintained in permanent open space to enhance the quality of life. Such acquired areas would be left in a natural state or restored for aesthetic and/or wildlife purposes.’], P5-107 [‘Provide for public access and passive enjoyment of City parks and open space.’]. This is considered a potentially significant impact that cannot be reduced to a less-than-significant level.’ (See RDEIR, Section 4.4, p. 4.4-8.)” (2AR 1874-1875,
emphasis in original.)

The City’s public policy rational is in part, that “selling the property would be consistent with the General Plan.” The City points to General Plan Policies P5-141, P5-142, and P5-143 “that anticipate the possible sale” of the Mansion, and the reasoning that “[w]ithin a City-wide context the various policies in the City’s General Plan are not necessarily in conflict” because “[t]he Plan can support park, conservation and recreation in general terms while permitting a sale of parkland at a specific site. Viewed in this larger context, selling the Flanders Mansion property would not be inconsistent with the General Plan.” (2AR 1875-1876.)

As to the lease alternative: “As identified in the RDEIR: ‘Both Lease Alternatives and the Sale with Conservation Easements and Mitigation Alternative would significantly reduce the extent of impacts as compared to the proposed project, and both can be considered environmentally superior to the proposed project. However, the Lease Alternative would retain City ownership of the Property and preserve flexibility on how the property is used in the future (i.e., after the term of the lease). If the City of Carmel-by-the-Sea determines that the Lease Alternatives are infeasible for specific economic, legal, social, technical, or other considerations, the Sale with Conservation Easements and Mitigations Alternative also would be considered the environmentally superior alternative.’” (2AR 1878-1879.)

Further, “[t]he [CBRE] economic experts recognize and set forth the standard of infeasibility under CEQA in their report” and their “analysis used two tests for infeasibility: (1) it is impractical by virtue of a severely limited or nonexistent market for the alternative, and (2) it is impractical due to severe additional cost or lost profitability.” (2AR 1880.)

The CBRE Report “found that the Lease For Single-Family Residential alternative is not feasible for the following reasons: (1) in the vicinity of the Property, the market for comparable single-family rentals is exceedingly thin and, in fact, nonexistent where lessees are responsible for rehabilitating a property; and (2) with the estimated income stream from this alternative, the City would not recover its restoration costs ($1,157,000) for approximately 17 years. The City Council finds these expert opinions contained in the CBRE Report to be reasonable and credible, and on that basis finds that the Lease for Single-Family Residential alternative is not capable of being accomplished in a successful manner (i.e., the likelihood of leasing the Flanders [M]ansion on acceptable terms is remote or non-existent), would not recover the costs of significant short-term and long-term repair and the substantial cost of rehabilitation within a reasonable period of time (i.e., it would take 17 years), and is therefore, infeasible for economic reasons.” (2AR 1880.)

The CBRE Report also “found that the Lease for Public/Quasi-Public Use is not feasible for the following reasons: (1) in the Property’s immediate area, a very limited market for comparable non-residential rentals, and here again, a non-existent market for nonresidential rentals when the lessee is required to rehabilitate the property; and (2) with the estimated income stream from this alternative, the City would not recover its restoration costs ($1,157,000) for approximately nine years. The economic experts found a lease for nonprofit use infeasible if the lessee were required to undertake the effort and expense of rehabilitating the property and also infeasible if the City were to undertake the rehabilitation. The City Council finds these expert opinions contained in the CBRE Report to be reasonable and credible, and on that basis finds that the Lease for Public/Quasi-Public Use alternative is not capable of being accomplished in a successful manner (i.e., the likelihood of leasing the Flanders Mansion for non-residential public/quasi-public use on acceptable terms is remote or non-existent), would not underwrite the costs of significant short-term and long-term repair and rehabilitation within a reasonable period of time (i.e., would take 9 years), and is therefore, infeasible for economic reasons.” (2AR 1880.)

As noted in Flanders v. City of Carmel, the City is entitled to deference in its determination of conformity with the General Plan. The Court will only find that Carmel’s interpretation of its ordinances is arbitrary, capricious or lacking in evidentiary support if it “is [only] based on evidence from which no reasonable person could have reached the same conclusion.” (A Local & Regional Monitor v. City of Los Angeles (1993) 16 Cal.App4th 630, 648.)

As noted by the court in California Native Plant Society, supra, 177 Cal.App.4th at p. 982, “[i]f the agency finds certain alternatives to be [truly] infeasible, its analysis must explain in meaningful detail the reasons and facts supporting that conclusion. The analysis must be sufficiently specific to permit informed decision-making and public participation, but the requirement should not be construed unreasonably to defeat projects easily.” (Marin Water, supra, 235 Cal.App.3d at p. 1664.) The infeasibility findings must be supported by substantial evidence. (§ 21081.5; Guidelines, § 15091, subd. (b).).”

The Court finds that there is substantial evidence in the record that the City considered and balanced the environmental impacts and the degree to which the lease alternative did not meet the City’s economic goals in finding a lease infeasible. The City seeks to sell a property to bring increased income to the citizens of the City of Carmel-by-the-Sea by not having to pay for ongoing expenses, and to raise money for the public benefit in the short term.

(F). Statement of overriding consideration
“A statement of overriding considerations is required, and offers a proper basis for approving a project despite the existence of unmitigated environmental effects, only when the measures necessary to mitigate or avoid those effects have properly been found to be infeasible. (Pub. Resources Code, § 21081, subd. (b).).” (City of Marina v. Board of Trustees of the California State University (2006) 39 Cal4th 341, 368.) Pub. Resources Code section 21081(b) “allows the lead agency to approve the project if ‘it finds that specific overriding economic, social, technological, or other benefits of the project outweigh the significant effects on the environment.’” (Upholding Our Heritage, supra, 147 Cal.App.4th at p. 597.)

Flanders contends that Carmel could not adopt a statement of overriding consideration because the City did not show that the lease alternative was infeasible, and the statement is not supported by substantial evidence in support of a public benefit because selling the Mansion is inconsistent with the City’s General Plan to preserve and enhance parkland.

The City argues that the lease alternative was deemed infeasible, and the City found that selling the Mansion is consistent with the General Plan.

The City notes that a reviewing court’s role “is simply to decide whether the city official considered the applicable policies and the extent to which the proposed project conforms with those policies.” (San Franciscans Upholding, supra, 102 Cal.App.4th at p. 678.)

First, as noted in the previous section, the Court has found substantial evidence in the record to support the City’s finding that the lease alternatives are infeasible.

Second, the Court does not find that the City’s interpretation of its General Plan was arbitrary, capricious or lacking in evidentiary support.

Third, the statement of overriding consideration is supported by substantial evidence in support of a public benefit.

The City identified nine benefits from the sale of the Mansion with conservation easements and mitigation that “outweigh the significant effects on the environment.”

The benefits (2AR 1885-1886):

(1) Ensure that the Mansion is appropriately used consistent with its historic importance and use, while protecting the neighborhoods from increases in traffic, parking and noise.

(2) Ensure “restoration, rehabilitation and long-term maintenance” of the historic resource.

(3) Ensure that the Mansion is “preserved as a historic resource,” that the property is “put to productive use,” that the future use will not disrupt the neighborhood or use of the park, and protect the parks environmental resources.

(4) The sale may return the property to the tax role and the funds will be used for other public purposes.

(5) The sale will reduce the “liability exposure” of the City because the Mansion is in “disrepair and located in an isolated area.”

(6) The “sale avoids ongoing maintenance and repair expenses” and “may generate funds for other public purposes” and will relieve the financial burden of restoration.

(7) The sale will “preserve and protect biological resources” and provide “an improved viewing area” adjacent to the Lester Rowntree Arboretum.

(8) The sale as a single-family home is compatible with the neighborhood and is consistent with the Mansion’s original purpose.

(9) The citizens of the town can vote for a sale but not a lease.

“[T]he statement of overriding consideration focuses on the larger, more general reason for approving the project such as the need to create new jobs, provide housing, generate taxes, and the like.” (Concerned Citizens of South Central L.A. v. Los Angeles Unified School Dist. (1994) 24 Cal.App.4th 826, 847.)

The City found that “the benefits described above outweigh any and all potential unavoidable adverse impacts of the Project”, (2AR 1886), and the Court concurs.

Disposition
Flanders’ writ of mandate is granted as set forth above. The court directs the attorney for Flanders to prepare an appropriate judgment consistent with this ruling, present it to opposing counsel for approval as to form, and return it to this court for signature.

Dated:

____________________________________
HON. KAY T. KINGSLEY
Judge of the Superior Court

CERTIFICATE OF MAILING
C.C.P. SEC. 1013A

I do hereby certify that I am not a party to the within stated cause and that on I deposited true and correct copies of the following documents:

ORDER AFTER SUBMISSION in sealed envelopes with postage thereon fully prepaid, in the mail at Salinas, California, directed to each of the following named persons at their respective addresses, as hereinafter set forth:

Susan Brandt-Hawley
Brandt-Hawley Law Group
P.O. Box 1659
Glen Ellen, CA 95442

Donald Freeman
P.O. Box 805
Carmel-by-the-Sea, CA 93921

Richard Harray
24591 Silver Cloud Court, Suite 220
Monterey, CA 93940

Dated:

CONNIE MAZZEI, Clerk of the
Monterey County Superior Court

By

, Deputy