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:

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HON. KAY T. KINGSLEY
Judge of the Superior Court