HIGHLIGHTS: Sunset Cultural Center, Inc. Annual Community Meeting – June 26, 2010

• Current Sunset Cultural Center, Inc. Board of Trustees:
Jim Price - Chair
David S. Parker - Treasurer
Deanna R. Adolph - Secretary
Robert L. Oppenheim
Judith Profeta
Ron Wormser
Kurt Grasing
Mara Kerr
Sally Reed
Gerard Rose

NOTE: Absent Board of Trustee Members included, but not limited to, Treasurer David Parker, Secretary Deanna Adolph and former City Council Member Gerard Rose. Absent City Officials included, but not limited to, Mayor Sue McCloud and Jason Burnett; City Council Member Ken Talmage was present.

• For Fiscal Year beginning July 1, 2010 and extending to June 30, 2011, the City subsidy to Sunset Cultural Center, Inc. (SCC) is $650,000 ($30,000 less than FY 2009/2010 City subsidy and SCC request of $680,000). The next three-years Contract between the City and SCC begins July 1, 2010. By July 1, Finance Manager Agha Bilal will have recommended to the SCC Board of Trustees a reduction in City subsidy of $30,000/year (or approximately 5%). The Board of Trustees is then expected to request of the City subsidies of $620,000 for Year 2 of the contract (FY 2011/2012) and $590,000 for Year 3 (FY 2012/2013). Previously City Administrator Rich Guillen has proposed a reduction in City subsidy of 15%/year without justification, however.

• Total Net Assets for the FY ending June 30, 2010 are expected to increase by $60,153 (including Facility Restoration Funds) for total net assets of $739,430.

• For FY 2009/2010, projected Total operating income is $1,186,322 and projected Total expenses $1,866,169, with a City subsidy of $680,000. SCC Board of Trustees Chairman Jim Price made a commitment to increase total operating income over the next years.

• Regarding Sunset Center facility use, there were approximately 55,570 patrons/users of Sunset Center in FY 2009/2010. Approximately 1/3 of users patronize the theater and 2/3 of users are non-theater users, i.e., rooms.

• The FACILITY UTILIZATION REPORT presented Rental Paid Use vs. Free Use (Community and City) and Total Use figures for spaces in the Sunset Center, as follows:

Babcock, Bingham & Chapman Rooms:
Rental Paid Use: 362
Free Use: 121
Total Use: 483

Green Room & Rehearsal Studio:
Rental Paid Use: 131
Free Use: 63
Total Use: 194

Theater:
Rental Paid Use: 126
Free Use: 20
Total Use: 146

Carpenter Hall:
Rental Paid Use: 124
Free Use: 3
Total Use: 127

TOTALS:
Rental Paid Use: 786
Free Use: 231
Total Use: 1,017

Note: Rentals are ½ day or 1 day.

• Executive Director Peter Lesnik touted CLASSROOM CONNECTIONS PROGRAM, Sunset Center’s Commitment to Arts in Education. A Classroom Connections Brochure presented “Why Classroom Connections?” “Facts” and “How it works.”

“Classroom Connections is a program that gives children an intimate, hand-on experience of the connection between process and product. Seeing a finished product-a play or a painting-can be fun and rewarding. Our goal is to empower children by breaking down the process of creating an artistic product step-by-step with the artists themselves."

“Our message is that success is not mysterious or unattainable. On the contrary, everyone can achieve their goals by developing the skills and determination to succeed; in baseball, business or ballet."

“Sunset Center believes in the potential of children; our goal is to help them believe in themselves.”

Facts:
• “In the first two years of the program we worked with over 2,200 children from Carmel to Salinas. We are doubling that number in the 2010-2011 school year.”

• “Our artists are as diverse as our students. We program modern dance, jazz, magic and much more. Our students range from kindergarten to high school and special needs to at-risk, throughout Monterey County.”

• “All of these opportunities are offered at no cost to the schools.”

How it works:
Visit 1: Preparing the Students
Visit 2: Artists Visit the Classroom
Visit 3: Students and Teachers see a performance at Sunset Center
Visit 4: Follow-up Lesson

For more information:
Peter Lesnik - Executive Director
Phone: (831) 620-2040
Fax: (831) 624-0147
Email: execdir@sunsetcenter.org

• Sunset Community and Cultural and Sunset Cultural Center, Inc.
Mission and Vision Statements

Sunset Community and Cultural Center (Sunset Center):
The Sunset Community and Cultural Center is a multi-purpose venue for events and activities that serve the residents of Carmel-by-the-Sea, visitors to Carmel and the people of the Monterey Bay region. It is a gathering place for cultural enrichment through the performing and visual arts and educational programs, and the Center provides space for organization meetings, City functions and offices for community organizations.

Sunset Cultural Center, Inc. (SCC):
Sunset Cultural Center, Inc., is a non-profit corporation that manages the Sunset Center under contract to the City of Carmel-by-the-Sea so that Sunset Center will serve as an economic and cultural stimulant for the community and the people of Carmel and its environs. It is responsible for operating and maintaining the facility to assure the most efficient and economical management of the facility consistent with the needs of the community, attracting cultural event sponsors to make use of the Center, offering a variety of performing arts under its own name, providing space for community use and acting to fulfill the Sunset Cultural and Community Center Mission.

The vision for the future of the Sunset Center includes:

• Providing a home to an expanding number of performing arts and cultural events based on the changing demographics of the region
• Expanding the cultural impact of the Sunset Center regionally
• Offering a premiere location for events and optimizing the use of the facility for cultural and other events
• Focusing on education as a significant aspect of the Sunset Center’s programs. Increasing support to assure financial, administrative and artistic sustainability.
• About thirty individuals attended the Annual Community Meeting in the lobby of the Sunset Center; the duration of the meeting was approximately 90 minutes.

INTRODUCING ‘Art and Artists in the Art Collection of Carmel-by-the-Sea’

ABSTRACT: In an effort to make the Art Collection of the City of Carmel-by-the-Sea more accessible to its owners, the citizens of Carmel-by-the-Sea, a new blog entitled “Art and Artists in the Art Collection of Carmel-by-the-Sea” has been created. The Art Collection consists of 911 eclectic artworks by about 176 artists/designers, including two National Academicians. One post presents artists/designers and artworks by Artist/Designer, “Title”/Description, Date, Medium for all 911 artworks. Another post presents significant artists and artworks of the Art Collection. Other posts present individual artists/designers and their respective artworks (see labels at right of text on new blog). Photographic images of artworks pending city cooperation. Links to “Art and Artists in the Art Collection of Carmel-by-the-Sea” and two posts on the new blog are presented. The Art Collection was appraised for $2,911,595 in 2007, according to the City.

Art and Artists in the Art Collection of Carmel-by-the-Sea

Significant Artists & Artworks of the Art Collection

Artists/Designers & Artworks of the Art Collection

SUNSET CULTURAL CENTER, INC. STATEMENT OF ACTIVITIES FOR THE YEARS ENDED JUNE 30, 2009 AND JUNE 30, 2008

ABSTRACT: A Table of STATEMENT OF ACTIVITIES FOR THE YEARS ENDED JUNE 30, 2009 AND JUNE 30, 2008 for SUNSET CULTURAL CENTER, INC. (SCC) is presented. COMMENTS in the form of analysis are made. NOTE: STATEMENT OF ACTIVITIES FOR THE YEARS ENDED JUNE 30, 2009 & JUNE 30, 2008 provided courtesy of Finance Manager Agha Bilal.

SUNSET CULTURAL CENTER, INC.
STATEMENT OF ACTIVITIES FOR THE YEAR ENDED JUNE 30, 2009 and JUNE 30, 2008

REVENUE AND PUBLIC SUPPORT:
Revenue (Totals):
$353,694 (2009) $590,426 (2008) Ticket sales
$193,333 (2009) $194,660 (2008) Theater rental
$113,700 (2009) $137,792 (2008) Facility use and other fee income
$189,420 (2009) $203,022 (2008) Reimbursed expenses
$ 9,122 (2009) $ 17,706 (2008) Investment income
$124,804 (2009) $126,501 (2008) Rental and other income

$984,073 (2009) $1,270,107 (2008) Total Revenue

Public Support:
$713,000 (2009) $750,000 (2008) Enabling grant (City subsidy)
$32,215 (2009) $0 (2008) Friends of Sunset
$346,312 (2009) $0 (2008) Foundations
$0 (2009) $2,021 (2008) Performance Carmel Venture Fund
$0 (2009) $28,622 (2008) Producers Guild
$6,283 (2009) $25,987 (2008) Other grants and donations
$23,125 (2009) $0 (2008) Show sponsorships
$14,250 (2009) $11,250 (2008) In-kind donation
$0 (2009) ($ 61,110) (2008) Net assets released from restrictions

$1,135,185 (2009) $817,880 (2008) Total Pubic Support

$2,119,258 (2009) $2,087,987 (2008) Total Revenue & Public Support

EXPENSES (Totals):
$1,342,196 (2009) $1,486,021 (2008) Theater services
$232,527 (2009) $235,729 (2008) Community services
$368,831 (2009) $ 326,835 (2008) Management and general

$1,943,554 (2009) $2,048,585 (2008) Total expenses

$175,704 (2009) $ 39,402 (2008) CHANGES IN NET ASSETS
$503,573 (2009) $464,170 (2008) NET ASSETS, BEGINNING
$679,277 (2009) $503,572 (2008) NET ASSETS, ENDING

COMMENTS:
• Net Assets increased from $464,170 (FY 2006/07) to $503,572 (FY2007/2008) to $679,277 (2009/2009) from 2006 to 2009.

• For the years ending June 30, 2008 and 2009, Net Assets increased a total of $215,106 [$175,704 (2009) $ 39,402 (2008)] while the City subsidy decreased $37,000 [$713,000 (2009) $750,000 (2008)].

• Arguably, if the City managed the Sunset Center instead of Sunset Cultural Center, Inc., the City would have $679,277 to expend on renovating and rehabilitating the Scout House, Forest Theater and/or the Flanders Mansion and/or maintaining Mission Trail Nature Preserve, for example.

‘MINUTES’ for Three Noteworthy 8 June 2010 City Council Agenda Items

"MINUTES”
CITY COUNCIL MEETING
CITY OF CARMEL-BY-THE-SEA
Tuesday, June 8, 2010

Live & archived video streaming available

City Hall
East side of Monte Verde Street between Ocean and Seventh Avenues

X. Resolutions
C. Consideration of a Resolution approving a management policy for the City’s art collection.

City Administrator Guillen presented the staff report. Sheryl Nonnenberg prepared an art management policy involving accession/deaccession. With the adoption of this policy, the City would contract with Ms. Nonnenberg to: 1) research and prepare a report regarding the possible deaccessioning of works from the collection for review by the Council; and 2) upon Council approval of any works for deaccession, determine the best method to proceed and then oversee the process.

Sheryl Nonnenberg addressed the need to complete a deaccession process prior to determining an appropriate permanent, central storage facility. She stated that most of the artists represented in the collection are deceased and therefore questions about contacting the artists and royalties are not issues.

City Council Member Karen Sharp asked the total value of the City’s art collection. City Administrator Rich Guillen stated that the “replacement value” of the collection is $2.9 million.

Mayor McCloud opened and closed the meeting to public comment.

Council Member TALMAGE moved adoption of a Resolution approving a management policy for the City’s art collection, seconded by Council Member BURNETT and carried by the following roll call:

AYES: COUNCIL MEMBERS: BURNETT, HAZDOVAC; SHARP; TALMAGE & McCLOUD
NOES: COUNCIL MEMBERS: NONE
ABSENT: COUNCIL MEMBERS: NONE
ABSTAIN: COUNCIL MEMBERS: NONE

XI. Orders of Council
A. Receive report and provide policy direction on the City paid home mail delivery.

City Administrator Rich Guillen announced that the item was “continued to a future meeting;” Carolina Bayne was unable to attend the meeting.

B. Consideration of changes to the rules and regulations regarding fires on Carmel Beach.

Sean Conroy, Planning Services Manager, presented the staff report and powerpoint presentation. Options for changes to rules and regulations include, as follows:

Status quo
Construct fire rings
Require permits to limit the # of fires
Further restrict fire locations,
Increase funding for beach cleanup, equipment, signage & education
Ban fires completely
Other options?

The Forest and Beach Commission voted to continue to allow fires on Carmel Beach and increase funding for beach cleanup, signage & education. The Planning Commission voted to also continue to allow fires and recommended increase funding for beach cleanup, signage & education, improve enforcement, establish a committee to study the issue long-term and if changes implemented then review changes within a period of one year to 15 month period.

Mayor McCloud opened the meeting to public comment.

Skip Lloyd, on behalf of the Carmel Residents Association as a member of the Board of Directors, referred to a CRA letter to the Planning Commission (August 3, 2009) and recommended the formation of a committee to study the issue.

Steve Brooks, former member of the Forest and Beach Commission, addressed the “mess” by suggesting fires be allowed to burn out completely to white ash.

Mayor McCloud closed the meeting to public comment.

City Council Member Paula Hazdovac emphasized enforcement and education.

City Council Member Karen Sharp reiterated enforcement and education and suggested volunteers be recruited to pass out bilingual brochures about rules and regulations.

Mayor Sue McCloud suggested experimenting with leasing a beach rake.

Public Safety Director George Rawson emphasized education.

City Council Member Jason Burnett addressed signage suggesting images and minimum text.

City Council Member Ken Talmage recommended brochures distributed to the chamber and innkeepers, et cetera, and posted on city website and lease a beach rake.

City Forester Mike Branson addressed signage and brochures.

Council directed staff to prepare laminated rack cards (English and Spanish) and lease beach rake for summer 2010 all within the next 3 weeks to 30 days and report on progress at the next regular city council meeting in July 2010.

SIXTH APPELLATE DISTRICT: Reversed & Remanded to trial court w/directions (Mandurrago et al. v. City of Carmel-By-The-Sea et al.)

ABSTRACT: Disposition today, 15 June 2010 - the opinion was filed with the Court to reverse and remand to trial court with directions. Justice Nathan D. Mihara authored the opinion and Justices Franklin D. Elia and Richard J. McAdams concurred. The opinion (thirteen pages) is reproduced in its entirety. The Disposition states: "The trial court's order granting the motion to strike and awarding the City and the City Council their attorney's fees and costs is reversed. Upon remand, the trial court is directed to vacate both its order granting the motion and awarding attorney's fees and costs and its judgment of dismissal. Mandurrago shall recover his appellate costs."

Mandurrago et al. v. City of Carmel-By-The-Sea et al.
Case: H034439, 6th District

Disposition date (YYYY-MM-DD): 2010-06-15

Disposition description: Reversed & Remanded to trial court w/directions

Disposition status as of 2010-06-15: Final

Notes:
reversed with directions; ndm, fde, rjm

Unpublished opinion of the California Courts of Appeal
Filed 6/15/10 Mandurrago v. City of Caramel-by-The-Sea CA6

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT

JOHN MANDURRAGO et al.,
Plaintiffs and Appellants,

v.

CITY OF CARMEL-BY-THE-SEA et al.,
Defendants and Respondents.

H034439
(Monterey County Super. Ct. No. M97273)

In December 2008, defendant City Council of the City of Carmel-By-The-Sea (the City Council) overturned the Carmel Planning Commission's certification of the environmental impact report (EIR) for a project proposed by plaintiffs John Mandurrago and Pacific Grove Land Company, LLC (hereafter collectively Mandurrago). Mandurrago then filed a mandate petition and complaint against the City Council and the City of Carmel-By-The-Sea (the City) in which he contended that the City Council's December 2008 decision was invalid because it conflicted with a November 2006 City Council decision and with various state statutes. The City and the City Council filed a special motion to strike Mandurrago's causes of action under Code of Civil Procedure section 425.16. The trial court granted the special motion to strike and awarded attorney's fees to the City and the City Council. Mandurrago appeals and contends that the City and the City Council failed to establish that his action fell within the purview of Code of Civil Procedure section 425.16. We agree and reverse.

I. Factual Allegations

Mandurrago's petition and complaint made the following factual allegations. In September 2001, Mandurrago filed with the City an application for a development project. The proposed project entailed the demolition of the existing structures on the parcel, the construction of a building that would combine retail and underground parking, and the construction of a building containing seven market-rate residential units. By October 2005, a final EIR (FEIR) had been completed for the proposed development. The FEIR concluded that the existing bank building on the parcel is not historic. The City Council thereafter referred the proposed project to the City's Historic Resources Board (the HRB) to determine whether the demolition of the bank building would result in the loss of a historic resource, a loss of architectural diversity, or a violation of the City's local coastal plan. The HRB determined that the bank building is historic.

Mandurrago appealed the HRB's decision to the City Council. In November 2006, the City Council reversed the HRB's decision and made findings that the bank building did not “ 'make an unusually strong contribution to history, architecture, engineering or culture.' ” In December 2006, the Planning Commission ordered the FEIR revised to indicate that the demolition of the bank building would have a significant adverse impact on the physical environment and visual quality due to “ 'the loss of great architecture.' ” The FEIR was recirculated after its revision. In December 2006, Mandurrago revised the project application to state that two of the seven residential units would be affordable.

In August 2008, the Planning Commission certified the recirculated, revised FEIR, made findings that the impact of demolition of the bank building was unavoidable, and approved the proposed project. A citizen appealed the Planning Commission's decision to the City Council. In December 2008, the City Council sustained the appeal. The City Council concluded that its November 2006 decision was “exclusive to historicity” and did not address whether the demolition of the bank building would be a significant impact on the environment under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.).

II. Procedural Background

In February 2009, Mandurrago filed a verified petition for mandate and administrative mandate combined with a complaint for damages and declaratory and injunctive relief against the City and the City Council. The petition/complaint alleged six causes of action.

The first three causes of action sought a writ of mandate requiring the City Council to “set aside and void” its December 2008 decision sustaining the citizen's appeal, to certify the unrevised FEIR, rather than the revised FEIR, and to approve the proposed project.

The first cause of action, which sought administrative mandate, alleged that the City had (a) “illegal[ly]” “sustain[ed] . . . the [citizen's] appeal” in violation of various state statutes, (b) violated CEQA “by failing to certify the EIR” within one year after its completion, and (c) deprived Mandurrago of due process by limiting the time that he was allowed at the hearing to respond to the citizen's appeal. The second cause of action, which sought traditional mandate, was based on the same allegations and asserted that the City had abused its discretion “by failing to deny [the citizen's] appeal . . . .” The third cause of action, which also seemed to seek traditional mandate, alleged that the City Council's December 2008 decision was “not supported by substantial evidence” because it did not include findings required by various statutes.

The fourth cause of action sought damages and injunctive relief for alleged violations of Mandurrago's civil rights. Mandurrago alleged that the City's failure to take “final action” on his development application was intended to “delay, harass, or deny the project as the City's method to retaliate against [plaintiffs] for [their] desire to demolition [sic]” the bank building. The fifth cause of action sought a declaratory judgment that the City's “sustaining of the [citizen's] appeal was not lawfully adopted” and did not “comply with CEQA, HAA [Housing Accountability Act (Gov. Code, § 65589.5)1], and the previous Carmel findings concerning the project.” The sixth cause of action sought an injunction requiring, among other things, that the City Council rescind its December 2008 decision.

The City and the City Council filed a verified “Response” to Mandurrago's petition “and related actions” and a demurrer to Mandurrago's petition/complaint.2 The City and the City Council subsequently filed a special motion to strike all or some of the causes of action in the petition/complaint. They also sought to recover their attorney's fees and costs.

Mandurrago filed opposition to the demurrer and opposition to the motion to strike. He asserted that the acts targeted in the petition/complaint did not fall within the scope of Code of Civil Procedure section 425.16. He contended that the motion to strike was frivolous, thereby entitling him to recover his attorney's fees. Mandurrago also contended that he had a probability of prevailing on his causes of action.

The trial court granted the motion to strike, awarded costs and attorney's fees to the City and the City Council, and entered a judgment of dismissal. The court “dropped” the demurrer because the granting of the motion to strike “makes the demurrer moot.” Mandurrago timely filed a notice of appeal from the court's order granting the motion to strike.

1 The Housing Accountability Act provides that a local agency “shall not disapprove a housing development project . . . for very low, low-, or moderate-income households, or an emergency shelter, or condition approval in a manner that renders the project infeasible for development for the use of very low, low-, or moderate-income households, or an emergency shelter, including through the use of design review standards, unless it makes [one of five specific] written findings, based upon substantial evidence in the record . . . .” (Gov. Code, § 65589.5, subd. (d).) Mandurrago did not allege that the City had “disapprove[d]” or conditionally approved its proposed project.

2 The City subsequently lodged the four-volume administrative record with the trial court.

III. Discussion

“A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16, subd. (b)(1), italics added.)

“ '[A]ct in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue' includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (Code Civ. Proc., § 425.16, subd. (e).)

“In short, the statutory phrase 'cause of action . . . arising from' means simply that the defendant's act underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citations.] In the anti-SLAPP context, the critical point is whether the plaintiff's cause of action itself was based on an act in furtherance of the defendant's right of petition or free speech.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.)

“The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken 'in furtherance of the [defendant]'s right of petition or free speech under the United States or California Constitution in connection with a public issue,' as defined in the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) We independently review the trial court‟s finding that the City and the City Council satisfied their burden of showing that Mandurrago's causes of action arose from acts in furtherance of the City's or the City Council's right of petition or free speech. (Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1016.)

“In deciding whether the 'arising from' requirement is met, a court considers 'the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.' (§ 425.16, subd. (b).)” (City of Cotati v. Cashman, supra, 29 Cal.4th at p. 79.) “[I]t is the principal thrust or gravamen of the plaintiff's cause of action that determines whether the anti-SLAPP statute applies [citation], and when the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute.” (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188; Episcopal Church Cases (2009) 45 Cal.4th 467, 477.) “The anti-SLAPP statute‟s definitional focus is not the form of the plaintiff‟s cause of action but, rather, the defendant's activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 92.)

The issue before us is whether any or all of Mandurrago's causes of action arose from an act or acts by the City or the City Council that were in furtherance of the City's or the City Council's right of petition or free speech. “[T]he statutory remedy afforded by section 425.16 extends to statements and writings of governmental entities and public officials on matters of public interest and concern that would fall within the scope of the statute if such statements were made by a private individual or entity.” (Vargas v. City of Salinas (2009) 46 Cal.4th 1, 17, italics added.)

The City and the City Council rely primarily on the Second District Court of Appeal's decision in Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal.App.4th 713 (Mission Oaks), disapproved on other grounds in Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123, fn. 10.) Mission Oaks was a developer that submitted an application to the County for approval of a large subdivision project. (Mission Oaks, at p. 718.) The County contracted with consultants to prepare an EIR for the project. (Mission Oaks, at pp. 718-719.) The consultants prepared a draft EIR which found “a multitude of significant adverse and unmitigable impacts presented by the project proposal on numerous basic resources.” (Mission Oaks, at p. 719.) Mission Oaks challenged the consultants‟ findings, but the County decided to accept the consultants' findings and included those findings in the final EIR. (Mission Oaks, at p. 719.) The County then denied the project application. (Mission Oaks, at p. 719.)

Mission Oaks filed a complaint for damages against both the County and the consultants. The complaint alleged that the draft EIR was a “sham” that was unsupported by the facts and had been prepared as a part of a conspiracy between the consultants and the County to deny Mission Oaks the right to develop its property. (Mission Oaks, supra, 65 Cal.App.4th at p. 720.) Mission Oaks claimed that the County had “ 'falsely encouraged' ” it to proceed with the EIR process even though the County never intended to approve the project. (Mission Oaks, at p. 720.) Mission Oaks alleged three causes of action against the consultants' misrepresentation, breach of contract, and negligence. It alleged one cause of action against the County for breach of contract, in which it alleged that the EIR had not been prepared in compliance with CEQA and that the fees charged were unreasonable. (Mission Oaks, at pp. 720, 721.) The trial court sustained the County's demurrer and granted a special motion to strike brought by both the County and the consultants, but the court denied the County its attorney‟s fees. (Mission Oaks, at pp. 720, 729.)

Mission Oaks challenged the trial court's granting of the special motion to strike. It argued that the consultants' actions were not subject to a special motion to strike because those actions were done for pay. (Mission Oaks, supra, 65 Cal.App.4th at pp. 728-729.) The Second District held that commercial speech and conduct are subject to a special motion to strike when they concern a matter of public interest. (Mission Oaks, at pp. 728-729.) It found that Mission Oaks's causes of action were aimed at the consultants' speech—the statements in the draft EIR. (Mission Oaks, at p. 729.) Mission Oaks did not separately contend that the trial court had erred in granting the special motion to strike as to the County. The County challenged the trial court's refusal to award it attorney's fees as a prevailing party on the special motion to strike. (Mission Oaks, at p. 729.) The trial court's refusal had been based on its erroneous conclusion that a governmental entity was not a “ 'person' ” within the meaning of Code of Civil Procedure section 425.16. (Mission Oaks, at p. 729.) The Second District held otherwise: “Our Constitution protects everyone, even politicians.” (Mission Oaks, at p. 730.)

Mission Oaks stands for just two propositions: (1) statements in an EIR are protected speech; and (2) a governmental entity is a “ 'person' ” within the meaning of Code of Civil Procedure section 425.16. Thus, if any of Mandurrago's causes of action were based on statements in an EIR, Mission Oaks would support a conclusion that those causes of action fell within the scope of Code of Civil Procedure section 425.16. On the other hand, if any of his causes of action did not arise from statements in an EIR but instead from the City Council's decision upholding the citizen‟s appeal, Mission Oaks neither considered nor resolved whether those causes of action would fall within the scope of Code of Civil Procedure section 425.16. “Obviously, cases are not authority for propositions not considered therein.” (Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 372.)

The First District Court of Appeal's opinion in San Ramon Valley Fire Protection Dist. v. Contra Costa County Employees’ Retirement Assn. (2004) 125 Cal.App.4th 343 (San Ramon) addressed the question of whether Code of Civil Procedure section 425.16 applies to a cause of action arising from a governmental entity's decision. In San Ramon, the Contra Costa County Employees' Retirement Association's Board (the Board) decided that the San Ramon Valley Fire Protection District (the District) was obligated to pay $2.3 million for increased benefits for the District's employees. (San Ramon, at pp. 346-348.) The District filed a mandamus petition and a complaint for declaratory relief challenging the Board's decision. (San Ramon, at pp. 348-349.) It sought orders reducing its obligation to $999,000. (San Ramon, at p. 349.) The Board filed a special motion to strike the District's complaint and petition. The trial court found that the District's causes of action did not arise out of acts in furtherance of the Board's right to petition or free speech and denied the motion. (San Ramon, at p. 352.)

The Board appealed and claimed that its decision to impose the $2.3 million obligation on the District was conduct in furtherance of its right to free speech. (San Ramon, supra, 125 Cal.App.4th at p. 353.) The First District rejected this contention. “Acts of governance mandated by law, without more, are not exercises of free speech or petition.” (San Ramon, at p. 354.) “As to the Board's substantive action in the present case, there is nothing about that decision, qua governmental action, that implicates the exercise of free speech or petition. The Board's resolution was simply to impose a requirement that the District pay a contribution to the CCCERA of nearly $2.3 million for proposed enhanced retirement benefits to District employees. Thus, while the District's petition arises out of the Board's adoption of the $2.3 million contribution rate, the substance of the Board‟s action does not constitute the exercise of the Board's right of speech or petition.” (San Ramon, at p. 355.)

“As noted, the Board was not sued based on the content of speech it has promulgated or supported, nor on its exercise of a right to petition. The action challenged consists of charging the District more for certain pension contributions than the District believes is appropriate. This is not governmental action which is speech-related. By contrast, if the action taken by the Board had been to authorize participation in a campaign to amend state pension laws, or to become actively involved in a voter initiative seeking such changes, then the Board's own exercise of free speech might be implicated. But this is not the case, and this distinguishing feature is dispositive of the Board's argument.” (San Ramon, supra, 125 Cal.App.4th at p. 357.) The First District found Mission Oaks to be “easily distinguishable” because the developer's causes of action there arose out of “speech” in the EIR. (San Ramon, at p. 357.)

The First District concluded that Code of Civil Procedure section 425.16 does not apply to acts of governance that are not themselves in furtherance of governmental speech. “To decide otherwise would significantly burden the petition rights of those seeking mandamus review for most types of governmental action. Many of the public entity decisions reviewable by mandamus or administrative mandamus are arrived at after discussion and a vote at a public meeting. [Citations.] If mandamus petitions challenging decisions reached in this manner were routinely subject to a special motion to strike—which would be the result if we adopted the Board's position in this case—the petitioners in every such case could be forced to make a prima facie showing of merit at the pleading stage. While that result might not go so far as to impliedly repeal the mandamus statutes, as the District contends, it would chill the resort to legitimate judicial oversight over potential abuses of legislative and administrative power, which is at the heart of those remedial statutes. It would also ironically impose an undue burden upon the very right of petition for those seeking mandamus review in a manner squarely contrary to the underlying legislative intent behind section 425.16.” (San Ramon, supra, 125 Cal.App.4th at pp. 357-358, fn. omitted.)

The First District's analysis in San Ramon was recently adopted by the Second District Court of Appeal in Graffiti Protection Coatings, Inc. v. City of Pico Rivera (2010) 181 Cal.App.4th 1207 (GPC). GPC had filed an action for mandate and declaratory relief challenging the City's decision to award a contract without competitive bidding. The trial court granted the City's special motion to strike, and GPC appealed. (GPC, at pp. 1213-1214.) The Second District concluded that the City‟s decision to award the contract without competitive bidding was not an act in furtherance of the City's right to petition or free speech and therefore a cause of action arising therefrom did not fall within the scope of Code of Civil Procedure section 425.16. (GPC, at pp. 1219-1220, 1224-1225.)

An examination of the petition/complaint reveals that Mandurrago's causes of action fall into two groups. Four of his causes of action plainly arose from the City Council's decision sustaining the citizen's appeal. All three of the mandamus causes of action alleged that this decision was unlawful. The first cause of action claimed that “Carmel's action sustaining [sic] of the appeal is illegal under CEQA, HAA, and related Government Code housing statutes . . . .” The second cause of action claimed that “Carmel's December 2, 2008 action sustaining [sic] of the appeal is contrary to State law, regulations, and decisions . . . .” The third cause of action alleged that “Carmel's December 2, 2008 findings and conclusion sustaining the appeal did not meet the requirements of Government Code §65589.5(d)(2) . . . .” All three mandamus causes of action sought a writ of mandate requiring the City to “vacate” its decision sustaining the appeal. The fifth cause of action, which sought declaratory relief, was also based on the sustaining of the appeal. It alleged that “Carmel's sustaining of the appeal was not lawfully adopted . . . .” However, the relief sought for this cause of action ventured far beyond the validity of the City's decision to sustain the appeal.

We encounter no difficulty in concluding that the three mandamus causes of action did not arise from an act in furtherance of the City Council's right of petition or free speech. As in San Ramon and GPC, the City Council's decision on the citizen's appeal was simply a mandated act of governance, and it did not in and of itself further the City Council’s right of petition or free speech. This decision was not speech-related and did not involve the City Council's right of petition. Nor did the declaratory relief cause of action arise from an act in furtherance of the City Council's right of petition or free speech. Though the prayer regarding this cause of action sought a very extensive declaration, the sole basis upon which the cause of action was based was the City Council's decision on the citizen's appeal. That act of the City Council was not in furtherance of the City Council's speech or petition rights. Hence, we conclude that the trial court erred in granting the motion to strike as to the three mandamus causes of action and the declaratory relief cause of action.

Mandurrago's civil rights cause of action is not as easy to categorize. This cause of action alleged as civil rights violations the City's (a) “seven year processing of the application,” (b) “imposi[ition of] new EIR requirements,” (c) “imposi[tion of] conditions,” and (d) “four year delay in certification of the EIR.” While some of these allegations may involve to some extent the City Council's acts in furtherance of its free speech rights, our task is to determine whether the gravamen of Mandurrago's civil rights cause of action arises from an act in furtherance of the City's right of petition or free speech.

We do not doubt that the certification of an EIR is a speech-related decision by a governmental entity because the EIR is the means by which the governmental entity expresses itself. But the failure to timely certify an EIR does not itself further the governmental entity's right of free speech. If anything, the failure to timely certify an EIR may impede the governmental entity's right of free speech as it delays the governmental entity's expression of its views on the environmental impact of a proposed project. We cannot see how the City's imposition of EIR requirements and conditions on Mandurrago's project is an act in furtherance of the City's right of free speech. The City and the City Council fail to explain how their imposition of such requirements furthers their right of free speech. We conclude that the trial court erred in finding that Mandurrago's civil rights cause of action fell within the scope of Code of Civil Procedure section 425.16.

The only remaining cause of action is Mandurrago's “Injunctive Relief” cause of action. This cause of action merely realleged all of the previous allegations as a basis for injunctive relief. Since none of the other causes of action fell within the scope of Code of Civil Procedure section 425.16, the trial court erred in finding that this cause of action, which had no independent basis, fell within the scope of Code of Civil Procedure section 425.16.

IV. Disposition

The trial court's order granting the motion to strike and awarding the City and the City Council their attorney's fees and costs is reversed. Upon remand, the trial court is directed to vacate both its order granting the motion and awarding attorney's fees and costs and its judgment of dismissal. Mandurrago shall recover his appellate costs.

_______________________________
Mihara, J.


WE CONCUR:

_____________________________
Elia, Acting P. J.

_____________________________
McAdams, J.

Random Reportings, Random Thoughts

• As reported, “Gerard Rose has joined the board of the nonprofit that runs the city-owned Sunset Center. Rose, an attorney specializing in insurance coverage, employment disputes, antitrust claims and real estate agreements,...”
(Source: Ex-councilman Rose joins Sunset board, MARY BROWNFIELD, The Carmel Pine Cone, June 11, 2010, 2A)

Thought: Given attorney Gerard Rose’s legal specialty of “employment disputes,” it is especially egregious that he did not see that, at a minimum, the City Council professionally and promptly acknowledged and responded to attorney Michael Stamp’s letter (May 2008) to the Mayor and City Council and Human Resources Manager Jane Miller’s letter (October 2008) to the Mayor and City Council dealing with claims of sexual harassment, employment discrimination and retaliation by the City.

• As reported regarding fires on Carmel Beach, City Council Member Karen Sharp stated that the brochures covering the rules should be “bilingual.”
(Source: Beach fire answers: brochures, machines and patrols, MARY BROWNFIELD, The Carmel Pine Cone, June 11, 2010, 5A)

Thought: Given that the City of Carmel-by-the-Sea is a tourist and visitor destination of international travelers, should not the brochures be multi-lingual, i.e., printed in French, German, Italian, Spanish, Chinese, Japanese, Russian, et cetera?

• As reported: “Implying that MacDonald’s sculptures had been displayed in the city without permits, city attorney Don Freeman admonished CarrieAnn not to go beyond the display she was proposing. (She later denied ever having put MacDonald’s pieces in public without permission.) Freeman also said the sculpture would require 24-hour security in order to protect the city from liability.”
(Source: Feeling slighted, gallery rep kills plan to install MacDonald sculpture, MARY BROWNFIELD, The Carmel Pine Cone, June 11, 2010, 6A)

Thought: City Attorney Don Freeman expressed his desire “to protect the city from liability” regarding the proposed installation of “The Art of the U.S. Open,” a 14-foot-tall “white, hollow resin mold sculpture.” Unfortunately, the city attorney has not shown a similar desire to protect the city from liability with regard to on-leave Human Resources Manager Jane Miller and owner/developer John Mandurrago.

• As reported: "But after feeling disrespected by two council members, CarrieAnn decided Wednesday to ditch the entire idea because of the “unprofessional way I was treated,” she told The Pine Cone. She said she intended the sculpture not to promote MacDonald, but to serve as a welcome for U.S. Open golf fans visiting Carmel. “But when those at the head of the town treat you like that ....”
(Source: Feeling slighted, gallery rep kills plan to install MacDonald sculpture, MARY BROWNFIELD, The Carmel Pine Cone, June 11, 2010, 6A)

Thought: When Mayor Sue McCloud and City Council Member Ken Talmage make comments which lead CarrieAnn to feel “disrespected” and treated “unprofessionally” for having the audacity to propose “a way to welcome golf fans to town,” Carmel taxpayers should question the revised budget 2010/11 expenditure of $347,675 for Marketing and Economic Revitalization. In other words, why expend $347,675 when comments from the mayor and a city council member foster a reputation of disrespect towards business owners and inhospitable attitude towards tourists and visitors?

(Source: City of Carmel-by-the-Sea General Fund Budget Summary - Revenues and Expenditures FY 2008/09 Thru FY 2012/13)

New Pedestrian Trail Segment Connecting Del Monte Forest Trail System to Carmel Beach as part of the California Coastal Trail

New Pedestrian Trail Segment: Decomposed Granite, Asphalt Curb, Grapestake Fence & Landscaping
Date: 12 June 2010

ABSTRACT: The pedestrian walkway along the west side of North San Antonio Avenue between 4th Avenue and the Carmel gate to Pebble Beach is “almost finished,” according to Planning and Building Services Manager Sean Conroy, as reported in The Carmel Pine Cone. Additionally, after the conclusion of the U.S. Open Golf tournament, Pebble Beach officials and Conroy “will come up with a timeline for the rest of the beach trail work, which includes laying a boardwalk and installing a new set of stairs down from the dunes at the north end of the beach.” “That will probably be at the end of summer or early fall,” Conroy stated. Photographs depicting the pedestrian walkway showing the progression of progress are presented. Construction services by Graniterock’s Pavex Construction Division.

(Source: Open visitors, residents have new places to put their feet, MARY BROWNFIELD, The Carmel Pine Cone, June 11, 2010, 7A)

Date: 1 May 2010
New Pedestrian Trail Segment

Date: 22 May 2010
New Pedestrian Trail Segment

Date: 12 June 2010
New Pedestrian Trail Segment

Mandurrago, John, et al. v. City of Carmel-by-the-Sea, et al. (M102802): Petitioner’s/Plaintiff’s Presentation

ABSTRACT: Yesterday, Judge Lydia Villarreal heard oral arguments from Petitioners’/Plaintiffs’ attorney Dennis Beougher and Respondents’/Defendants’ attorney Richard Harray for approximately 90 minutes in Courtroom 15, Monterey Courthouse. The Petitioners’/Plaintiff’s “Presentation” is presented. Importantly, during the proceeding, the Judge articulated that the intent of the State Legislature is for agencies not to use CEQA as a means to deny affordable housing projects. There were no City Council Members, Planning Commissioners or Historic Resources Board Members present in the courtroom. Judge Villarreal took the case under submission and will issue a written decision within 90 days.

Mandurrago, et al. v City of Carmel, et al.
Petitioners’/Plaintiffs’ Presentation

Overview of Plaza del Mar Project
• Application filing date: September 2001

• Project location
Corner of Dolores and Seventh Street, Carmel
Former location of a bank building

• Proposed Project Features
New retail spaces
Underground parking
Demolition of former bank building
7 new residential units, including 2 affordable housing units (subdivision map application)

City Decided Former Bank Building Should Not Be Protected
• C.M.C. 17.32.060

• 5 public meetings

• November 7, 2006: City issued 41 findings and decided NO, building should not be protected by being listed

• Findings included 18 findings under the heading, City Council Findings on Architectural Significance

Carmel Municipal Code section 17.32.060: Should bank building be protected by being listed on inventory of historic resources?

The conclusion in the draft EIR regarding the historic status of the old bank building could not be finalized until the city’s Department of Community Planning and Building took action on the matter, consistent with the procedures established in the City’s Local Coastal Program (LCP). City’s Brief, 3:10-13; AR (Administrative Record) 0894

City’s Demolition Permit Chapter, 17.30/010 protects only buildings listed on the City’s Inventory of Historic Resources.

City Council Findings on Architectural Significance
• Finding #22: “the EIR concluded that the bank is not historic and therefore no requirement existed for the EIR to address non-demolition or adaptive reuse alternatives. However, in response to public requests for such an alternative, the Final EIR included a new project alternative that included the existing bank building into the project design.”
AR0740

Finding 22 from the November 2006 findings

• Finding #27: “...Furthermore, upon demolition, a replacement building of the modern period could be designed that contributes equally to the City’s architectural diversity.”
AR0742

Finding 27 from the November 2006 findings

• Finding #33: “The building is not unique. ... There are other commercial buildings within the Monterey Peninsula area, and within the City limits of Carmel-by-the-Sea, that are designed in the Second Bay Area Tradition of architecture. There are also are other buildings that can be described as ‘heroic’ or ‘monumental’ within the Carmel-by-the-Sea and within the Monterey Peninsula area.”
AR0744

Finding 33 from the November 2006 findings

• Finding #34: “Based on Findings #30 through #33, above, and pursuant to the eligibility criteria for California Register of Historic Resources and the Carmel Municipal Code, the bank building does not embody distinctive characteristics of a type, period, region or method of construction, or present the work of an important creative individual or possess high artistic value, nor does it make an unusually strong contribution to history, architecture, engineering, or culture.”
AR0745

Finding 34 from the November 2006 findings

• Finding #16: “...In addition to above criteria, the Carmel Municipal Code also recognizes that a property can be considered of exceptional importance if it makes an unusually strong contribution to history, architecture, engineering or culture, or because it is an integral part of a historic district. Meeting any one of these criteria is sufficient to qualify a building less than fifty years old as historically significant.”
AR0737

Finding 16 from the November 2006 findings. The City cited as evidence for this the Carmel Municipal Code 17.32.040(H).

This means that even though the building was less than 50 years old, the City understood that it could still have placed it on the inventory of historic resources and protected it from demolition it the City concluded that is was “great architecture.”

Project Opponents Attempt to “Supersede” Earlier Findings
• After two council members who voted not to list the bank building on the City’s Inventory of Historic Resources announced their resignations, the City Planning Commission members trumped up “the loss of great architecture” if the building was demolished, requiring recirculation of EIR.

• A standard of “I know it when I see it.”

The term “trumped up” is appropriate as the City failed and continues to fail, to cite any written standard, ordinance, regulation, policy, or resolution as to how the city determined “great architecture.”

Subsequent Project History
• September 2008: Planning Commission certified the Amended EIR and approved the Project.

• Barbara Livingston appealed approval to the City Council.

• December 2, 2008: City Council upheld the Livingston appeal and made certain findings and determinations that would apply to future City actions concerning Project.

• Petitioners appealed to Court; Court of Appeal heard oral arguments on April 6, 2010. A decision must be rendered by July 6, 2010.

• On December 3, 2010, City Council certified the Amended EIR and also denied the Project, making 20 findings for denial.

Petitioners’ appealed decision to recirculation of the Amended EIR based on “loss of great architecture.” City’s motion after hearing the Petitioners’ appeal was merely a decision to recirculate the Amended EIR.

City Denied Project in violation of Housing Statutes and CEQA
• Housing Accountability Act (HAA)

• State Density Bonus Law (SDBL)

• California Environmental Quality Act (CEQA)

Violations
• December 3, 2009 decision is not supported by the findings.

• Key findings are not supported by the evidence.

• Findings #4, #5, #7, #13, #14, #16, #17, #18, #19 and # 20.

Project is a “Housing Development Project” –subd.(h)(2)(B)
• Finding #17 not supported by the evidence

• Project is a “housing development project”

• HAA definition of an eligible “housing development project:”
“Mixed use developments consisting of residential and nonresidential uses in which nonresidential uses are limited to neighborhood commercial uses and to the first floor of buildings that are two or more stories. As used in this paragraph, ‘neighborhood commercial’ means small-scale general or specialty stores that furnish goods and services primarily to residents of the neighborhood.”
Gov’t Code 65589.5(h)(2)(B)

Three reasons are given in Finding #17 that Project does not qualify.
1) Both the street level shops and the lower level parking garage would be commercially operated as independent businesses.

2) “The project also is not limited to neighborhood commercial uses.”

3) "Further, the applicant is unwilling to limit occupancy of the retail businesses to local, resident-serving uses. Without this limitation, the retail spaces could be occupied by visitor-serving uses otherwise allowed within the District by the zoning ordinance (e.g. art galleries, jewelry stores)."

Project is an eligible “housing development project”
1. City’s existing zoning district designation for the Project site, SC (Service Commercial), is intended to provide “a location for services, offices, residential, and limits retail that primarily serves local needs.” C.M.C. 17.14.010(B)

• Consistent with HAA definition of “furnishing goods and services primarily to residents of the neighborhood.”

2. City’s assertion that tenants will not comply with HAA requirements is false. Record demonstrates that Petitioners will voluntarily agree to limit the retail stores and shops to comply with HAA definition of uses allowed in a qualified “housing development project.” AR2353

• City admits in its Finding #2 that the Project is to be “occupied by unspecified tenants.”

3. Contrary to City’s assertion, underground parking does not prevent HAA from applying to Project:
• Parking is a permitted, even a required, residential use
• Does not matter if parking is commercially operated
• Underground parking is not considered a story
• Parking meets HAA’s “neighborhood commercial” standard
• Parking is not a retail store or a shop

City alleges that the underground parking is commercially operated it is not a standard of “commercial use” but “non-residential use” standard. Underground parking is not considered a story as defined by City’s zoning ordinance, City’s zoning only regulates above-ground uses.

City admits that the parking will be used by adjacent motel residents. This meets the definition of “neighborhood commercial” means “furnish goods and services primarily to residents of the neighborhood.”

There is no evidence in the record or in the Finding #17 that providing parking to the nearby motels/hotels that does not meet the need to provide “furnish goods and services primarily to residents of the neighborhood.” Only a declaratory statement.

4. City’s zoning ordinance permits as a right the land uses (e.g. art galleries, jewelry) that are alleged to be the problem.

5. City could impose conditions of approval on the uses as permitted by Subdivision Map Act, and Petitioners have already voluntarily agreed to limit the land uses to qualify for the HAA definition.

6. Subdivision map Act does not permit the City on its own to amend the City’s zoning regulations that were in effect when the application was deemed complete.

Project Meets Both Standards in HAA
• Project complies with the “applicable objective general plan and zoning standards and criteria, including design review standards, in effect at the time project application is determined to be complete”
Gov’t Code 65589.5(j)

Project would be subject to HAA if it only fit the definition set forth above regarding housing developments. Project is also subject to HAA because it meets the other standard set forth in Gov’t Code 65589.5(j).

City Denied Project in Violation of HAA As it Required “objective general plan and zoning standards”
• Government Code section 65589.5(j) provides:
• (j) When a proposed housing development project complies with applicable, objective general plan and zoning standards and criteria,
including design review standards, in effect at the time that the
housing development project's application is determined to be
complete, but the local agency proposes to disapprove the project or
to approve it upon the condition that the project be developed at a
lower density, the local agency shall base its decision regarding the
proposed housing development project upon written findings supported
by substantial evidence on the record that both of the following
conditions exist:

• (1) The housing development project would have a specific, adverse impact upon the public health or safety unless the project is
disapproved or approved upon the condition that the project be
developed at a lower density. As used in this paragraph, a "specific,
adverse impact" means a significant, quantifiable, direct, and
unavoidable impact, based on objective, identified written public
health or safety standards, policies, or conditions as they existed
on the date the application was deemed complete.

• (2) There is no feasible method to satisfactorily mitigate or
avoid the adverse impact identified pursuant to paragraph (1), other
than the disapproval of the housing development project or the
approval of the project upon the condition that it be developed at a
lower density.

City Denied Project in Violation of HAA
• Denial of project subject to HAA must have been based on “applicable, objective general plan and zoning standards and criteria, including design review standards, in effect when the housing development project application is determined to be complete…”
Gov’t Code 65589.5(j)

• Denial based in part on finding #4 and finding #14. However, these findings cannot be used to deny the Project as these findings are based upon subjective, general plan and zoning standards and criteria.
See Finding #4 and Finding #14

Finding #4 Is Based on Subjective, Not Objective, Criteria
• City admitted: “the three applicable policies are an expression of intent.” AR2341.

• City admitted: the three alleged inconsistent General Plan policies are not violated. AR2248, 2340.

• City admitted it seeks to allow “the City discretion to use the intent of the policies in the General Plan/coastal Plan as a basis for its discretion.” AR2248, 2341.

• The Project is a mixed-use project, as encouraged by P1.62 and O 3-6. AR0628.

• The City General Plan encourages but does not require mixed land uses that create second floor apartments. “Second floor housing over first floor commercial uses” is merely a parenthetical phrase.

• City cannot cite to the current Housing Element; only the Housing Element in effect when Project application was deemed complete

• Project meets current Housing Element

Finding #14 alleges that the “low number of dwelling units in the project fails to meet the intent of the City’s policies and ordinances regarding density and would impede attainment of the housing targets in the adopted certified General Plan Housing Element.” The evidence that the City cites for support of this finding #14 is the current Housing Element of the General Plan and zoning ordinance density provisions.

Current Housing Element does not even include the Project site as a site to provide affordable housing. How could the Project “impede attainment of affordable housing targets” if voluntarily providing these two units? Petitioners have voluntarily propoosed providing City up to 11% of the City targets affordable units on a site not even included in the City’s inventory of lands for affordable housing.

• City’s Zoning Ordinance and Housing Element have no minimum residential density. Density is a range between 0-22 dwelling units per acre. There is no threshold of 22 dwelling units per acre in any city general plan, ordinance, regulation, or policy.

• City’s current Housing Element states commercial districts allows for residential units “on the ground floor" and “underground parking.”

• City’s certified Amended EIR states that having residential uses on the ground floor does not violate the General Plan: “through the Design Review and Use Permit Process, the Planning Commission can determine the appropriate allocation of retail and residential space that will make these shops viable and comply with the intent of the General Plan policies on mixed use project quoted above.”
AR2502, Amended EIR, Section 3.5, pp. 2-13.

• City cannot require the Project to be “developed at a lower density” by removing the Project’s proposed ground floor residential units, nor deny the Project based upon “subjective design review criteria” unless City makes the written findings stated in HAA, subd.(j), (1) and (2).

Requested Incentives Cannot Be Basis for Denial, so finding #5 and Finding #13 Are Not Supported
• Petitioners agreed to amend the Project design
AR2359-2360, 2502.

• Petitioners can easily redesign the Project to retain the two trees by deleting one of the underground parking spaces
AR2327-2328.

• The number of condominium/rental unit issue can be addressed by a subdivision map condition of approval/legal documents as to ownership.
AR2327-2328.

• City’s action violates public policy.

• SDBL states cannot use granting of incentives as requiring a general plan or zoning amendment or LCP amendment Subd.(j).

The City has based its denial of the Project in part upon the Petitioners’ requested State Density Bonus Law (“SDBL”) concessions/Incentives. Findings #5 and #13.

City Failed to Make Required Findings to Deny HAA Project - Second Standard
• If any city, county, or city and county denies approval or imposes restrictions, including design changes, a reduction of allowable densities or the percentage of a lot that may be occupied by a building or structure under the applicable planning and zoning in force at the time the application is deemed complete pursuant to Section 65943, that have a substantial adverse effect on the viability or affordability of a housing development for very low, or moderate income households, and the denial of the development or the imposition of restrictions on the development is the subject of a court action which challenges the denial, then the burden of proof shall be on the local legislative body to show that its decision is consistent with the findings as described in subdivision (d) and that the findings are supported by substantial evidence in the record.
Gov’t Code 65589.5(j).

City Failed to Make Required Findings Under Gov’t Code 65589.5(d)
• City argues that it meets 2 statutory exemptions, 65589.5(d)(3) and (5).

• (d)(3) does not apply:
Requires citation to “specific State law” but City only cited its own LCP

Only “specific State law” cited is the entire Public Resources Code

No evidence in Finding #20 that “there is no feasible method to comply without rendering the development unaffordable to low- and moderate-income households.”

• (d)(5) does not apply:
It is not cited in the City’s Findings

City misinterprets its meaning

The City alleges that it complied with subd (i) because the City’s action is within two statutory exemptions of the HAA, (d)(3) and (d)(5). City’s Brief, 31:13-14. If subd. (i) standard did apply, City failed to meet the standard. See Finding #20.

LCP is a city adopted plan (admitted by City in its brief, pg. 23-25 “...Local Coastal Program has been adopted as part of the City’s General Plan."), not a “specific state law.”
There is no specific state law requiring that Project preserve two trees or have at least a 1:1 ratio of rentals/condominium.

Petitioners and court are not required to guess what is the “specific state law.” As stated in finding #20, City cannot cite to entire Public Resources Code, including CEQA, as it is not a “specific state law’ as it makes no sense to have HAA include DEQA mandate as to what is “specific adverse impact” and then allege CEQA is the "Specific state law” which has a completely different definition of what is a “specific adverse impact.”

(D)(5) - (1) Not cited in the Findings anywhere.

(2) If anything, this provision supports Petitioners because it states that a city cannot disapprove or conditionally approve a project if the project is proposeed on a site that is available to very low-, low-, or moderate-income households, so long as project density is consistent with the City's Housing Element. Gov't Code 65589.5(d)(5)(A). Project density is between 0-22 units per acre.

(3) "A) This paragraph cannot be utilized to disapprove or conditionally approve a housing development project if the development project is proposed on a site that is identified as suitable or available for very low, low-, or moderate-income households in the jurisdiction's housing element, and consistent wiht the density specified in theo housing element, even though it is inconsistent with both the jurisdiction's zoning ordinance and general plan land use designation."

City Denied Project in Violation of SDBL
• Petitioners qualified for SDBL incentives:
• “(b) A city, county, or city and county shall grant a density bonus and incentives or concessions described in subdivision (d) when the applicant for the housing development seeks and agrees to construct at least any one of the following:

• (1) Ten percent of the total units of a housing development for lower income households, as defined in section 50079.5 or the Health and Safety Code.”
Gov’t code 65915.

Petitioners Are Entitled to the 2 Incentives
• SDBL states that the granting of the concession/incentive “shall not be interpreted, in and of itself, to require a general plan amendment, local coastal plan amendment, zoning change, or other discretionary approval. This provision is declaratory of existing law.”
Gov’t Code 65915(j).

• The City’s interpretation violates public policy.

The City based its refusal to grant the incentives on its assertions as they would violate the City’s zoning ordinance and/or that Petitioners had to request a density bonus to qualify for the affordable housing incentives. See Finding #16

The City could deny any affordable housing project based upon the applicant’s reasonable request for incentives/concessions merely because the applicant’s requested incentives/concessions would “violate” the City’s zoning ordinance or local coastal plan. Government Code section 65915(j) does not allow the City to issue a finding of zoning violation/LCP based merely upon Petitioners’ request for two incentives that must be “granted” by the City,

City Denied Petitioners’ Requested Incentives – Violating SDBL
• City failed to make written findings as required by subd. (d)(1):
• (d) (1) An applicant may submit to a city, county, or city and county a proposal for the specific incentives or concessions that the applicant requests pursuant to this section, and may request a meeting with the city, county, or city and county. The city, county, or city and county shall grant the concession or incentive requested by the applicant unless the city, county, or city and county makes a written finding, based upon substantial evidence, of either of the following:

• (A) The concession or incentive is not required in order to provide for affordable housing costs, as defined in Section 50052.5 of the Health and Safety Code, or for rents for the targeted units to be set as specified in subdivision (c).

• (B) The concession or incentive would have a specific adverse impact, as defined in paragraph (2) of subdivision (d) of Section 65589.5, upon public health and safety or the physical environment or on any real property that is listed in the California Register of Historical Resources and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the development unaffordable to low- and moderate-income households.

Gov’t Code 65915

City Denied Project in Violation of SDBL
• Project is clearly within the residential density permitted by the city’s zoning ordinance and more than 20% of the residential units are being dedicated to affordable housing.
See C.M.C. 17.14.030, AR2104, Gov’t Code 65915(d).

• City improperly required Petitioners to first seek a particular incentive, a density bonus before the City would grant Petitioners’ two requested incentives/concessions.
AR2373, Finding #16

• The applicant, not the City, determines what incentive (including the density bonus) applicant needs to make the project feasible.
Gov’t Code 65915(d)(3).

• If the findings critical to the city’s decision are based upon erroneous legal assumptions, then the decision must be vacated.
City of Marina v. Board of Trustees of the California State University (2006) 19 Cal.4th 341, 355, 365-366.

HCD Letter to City Regarding SDBL
• “...an applicant is not required to request both a density bonus and a concession in order to be eligible for the other. Interpreting the stature to require a developer to request both a density bonus and a concession or incentive is clearly inconsistent with subsections (b) and (g), and is further contradictory to the intent of the law. This is particularly true when the requirement to incorporate the additional bonus units would jeopardize project feasibility.”
HCD Letter to City, dated July 10, 2008, AR1584

Res Judicata/Collateral Estoppel Prevent the City from Denying the Project Based on CEQA, Finding #7
• City could not revise previous findings
Finding No. 7 contradicts Original Finding Nos. 22, 27, 33, 34

City admits that its Zoning Ordinance 17.32.060, “the conclusions of the Final EIR regarding the historic status of the bank building could not be finalized until the City’s Department of Community Planning and Building took action on the matter, consistent with the procedures established in the City’s adopted Local Coastal Program.” City’s Brief p. 3, 10-13.

The City was required to make a “decision” the EIR conclusion regarding the historic status of the old bank building. That decision occurred with findings on November 7, 2008.

The City’s CEQA decision is subject to the principles of res judicata/collateral estoppel. The City’s Findings cannot be “superseded” or amended as stated in case law such as Marie Y v. General Star Indemnity Co. Dental Board made findings in a professional discipline administrative proceeding before an administrative law judge (just like the appeal hearing before the Carmel City Council concerning whether the old bank building should be placed on the Inventory of Historic Resources) that went unchallenged. Because the November 7, 2006 decision could have challenged, but was not, it must be deemed res judicata.

Res Judicata/Collateral Estoppel
• The City was required to take an “action” regarding the EIR’s conclusion as to the historic status of the old bank building. That decision occurred with findings on November 7, 2006.

• The City’s CEQA decision was whether to list the Project’s building on the Inventory of Historic Resources.

• Whether to list the Project on the Inventory of Historic Resources is subject to the principles of res judicata/collateral estoppel.

• The City’s 2008 findings cannot be “superseded” or amended.

Topanga Ass’n for a Scenic Community v. County of Los Angeles (1974) 11 Cal. 3d 506.
• Public agencies acting as nonlegislative (quasi-judicial, adjudicatory, or administrative role) bodies as opposed to in a legislative capacity, must make findings.

• The findings are the roadsigns.

• There is no presumption that a city’s decision rests upon necessary findings and that such findings are supported by substantial evidence. Rather, a public agency must expressly state its findings and must set forth relevant facts supporting them, particularly when the city bears the burden of proof.

Findings are to show the court, as well as the applicant, whether and on what basis the applicant should seek review, and how the City arrived at its destination or ultimate decision. The findings, including those made in its November 7, 2006 decision, must allow a court to logically follow the path from the evidence to the findings based upon that evidence to its final conclusion, as required by Topango Ass’n for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506.

Cannot have inconsistent findings.

The level of significance for the “loss of great architecture” cannot be merely based upon subjective beliefs and sentiment as these are not facts or any level of significance based upon quantitative or qualitative standard.

City Violated CEQA
• City could not meet CEQA definition of “great architecture” based upon City’s previous findings

Not great architecture: Original finding Nos. 16, 22, 27, 33, 34

Building could be demolished: Original Finding Nos. 22, 27.

Petitioners do not dispute the City’s right to regulate based upon aesthetics. Aesthetics require some standard or criteria so that the “applicant can readily discern the intent of the implementing agency.” In other words, as CEQA expects, the City needs to adopt standards and criteria for determination of “great architecture.”

The City adopted Chapter 17.32 which establishes “the purpose of the historic preservation ordinance is establish standards, procedures, and regulations to promote identification and preservation and enhancement of historic resources including buildings…that represent the unique architectural, cultural, historic and prehistoric identity of Carmel-by-the-Sea." C.M.C. 17.31.010.

If the bank building was “great architecture” the City’s regulations required the building to be listed on the Carmel Inventory of Historic Resources to be “great architecture.

The question before the City in November, 2006 was whether to include the Burde Building on the City’s Inventory of Historic Resources what would not allow demolition unless the City found otherwise.
The administrative record as stated in the November 7, 2006 findings states that the Council specifically found that the building’s architecture was not great architecture not did it warrant protection from demolition, as only buildings listed on the inventory are protected from demolition. 17.30.010.

New Finding #7 Contradicts Original Finding #34
• Original: “Based on Findings #30 through #33, above, and pursuant to the eligibility criteria for California Register of Historic Resources and the Carmel Municipal Code, the bank building does not embody distinctive characteristics of a type, period, regions or method of construction, or present the work of an important creative individual or possess high artistic value, not does it make an unusually strong contribution to history, architecture, engineering, or culture.”
AR0745.

• New: “..all support the conclusion that the building qualifies as having special character defining features that make it architecturally and visually distinctive.”
AR2203

New Finding #7 contradicts Original finding No. 33
• Original: The building is not unique. ...There are other commercial buildings within the Monterey Peninsula area, and within the City limits of Carmel-by-the-Sea, that are designed in the Second Bay Area Tradition of architecture. There are also other buildings that can be described as ‘heroic’ or ‘monumental’ within the Carmel-by-the-Sea and within the Monterey Peninsula area.”
AR0744

• New: “The Burde Building has been described as being of exceptional importance. It is a pure, original and unique example of modern architecture.”
AR2203.

CEQA Does Not Trump HAA
• Petitioners have consistently argued that they must comply with both HAA and CEQA as stated in HAA, subd.(b), contrary to Finding #18

• HAA sets a higher standard for what is “specific adverse impact” if the City denies the Project or requires a lower density. HAA, Subd.(i) and (j)

• An apparent conflict exists between two statures, the principle of harmonious construction to give effect to both.

• Give effect to all terms of the statute

Project Does Not Override LCP
• Finding #19 is incorrect, as the LCP is the city’s General Plan and its implementing mechanism is the City’s Zoning Ordinance

• Project does not violate either City’s General Plan or Zoning Ordinance as stated previously. Therefore, no LCP violations.

Conclusion
• City cannot deny the project without making findings as required by HAA

• City cannot deny the incentives provided by SDBL

• City cannot “revise” its findings to contradict November 2006 findings due to res judicata/collateral estoppel

• City’s Amended EIR violates CEQA

Three Noteworthy 8 June 2010 City Council Agenda Items

ABSTRACT: Three noteworthy 8 June 2010 City Council Agenda Items, namely a Resolution approving a management policy for the City’s art collection, Receive report and provide policy direction on the City paid home mail delivery and Changes to the rules and regulations regarding fires on Carmel Beach, are presented. Excerpts from Agenda Item Summaries, Resolutions and Staff Reports are presented. In additional, the article entitled, “The Accidental Collection of Carmel, California,” by Sheryl Nonnenberg is reproduced.

AGENDA PACKET
Regular Meeting
Tuesday, June 8, 2010
4:30 p.m., Open Session

Live and archived video streaming

City Hall
East side of Monte Verde Street between Ocean and Seventh Avenues

X. Resolutions

C. Consideration of a Resolution approving a management policy for the City’s art collection.

Description: The City has collected art since approximately 1928. Some of the art has been on display at various City buildings including the Library, City Hall and Sunset Center. A few years ago, a consultant completed an inventory and appraisal of the City’s art. The art must be managed by a qualified professional whose responsibilities will include managing the collection to include accession/deaccession, conservation, storage, insurance coverage, loaning and periodic inventory and appraisal updates.

The attached art management policy was developed by Sheryl Nonnenberg (see attached resume). Please note that Ms. Nonnenberg has a home in Carmel and has been informally advising the City for several years. With the adoption of this policy, the City would contract with Ms. Nonnenberg to: 1) research and prepare a report regarding the possible deaccessioning of works from the collection for review by the Council; and 2) upon Council approval of any works for deaccession, determine the best method to proceed and then oversee the process.

Overall Cost:
City Funds: $10,000
Grant Funds: N/A

Staff Recommendation: Adopt the Resolution.

Important Considerations: The need for an art management policy will assist in the possible deaccession of existing art and accession of new art. In addition, portions of the current collection are stored in a vault in the Sunset Center basement. This room does not have the proper storage equipment or climate control. A permanent central storage facility is needed so the art collection will be properly catalogued and maintained.

Decision Record: Recently, the City has: 1) completed an appraisal of all of the City’s art; 2) loaned two pieces of art; 3) conserved several other pieces; and 4) drafted this overall management policy.

CITY OF CARMEL-BY-THE-SEA
CITY COUNCIL
RESOLUTION 2010-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA APPROVING A MANAGEMENT POLICY FOR THE CITY’S ART COLLECTION

WHEREAS, the City began collecting art in 1928; and

WHEREAS, the City’s art collection has been inventoried and appraised; and

WHEREAS, a Management Policy is needed to protect the art collection including recommending deaccession of art; and

WHEREAS, a qualified consultant is needed to perform the management tasks; and

WHEREAS, Sheryl Nonnenberg is a qualified consultant and is willing to perform the duties of managing the City’s art collection.

NOW, THEREFORE, BE IT RESOLVED THAT THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA DOES:
1. Approve the Management Policy for the City’s art collection.

2. Authorize hiring Sheryl Nonnenberg to begin the deaccession process in an amount not to exceed $10,000.

3. Authorize the transfer of $10,000 from the Capital Reserve Fund.

PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA this 8th day of June 2010, by the following roll call vote:

AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:

SIGNED:

_______________________
SUE McCLOUD, MAYOR

ATTEST:

_______________________
Heidi Burch, City Clerk

Sheryl Nonnenberg Submission:

“It is recommended that the City adopt a formal policy for acquisitions, so that the primary focus of the Collection is regional art that reflects the long history of Carmel-by-the-Sea as an art center.”

COLLECTION PARAMETERS
1. Work by artists who have lived, worked, taught in Carmel. Also those who studied or belonged to regional art associations, such as the Carmel Art Association.
Famous artists such as Edward Weston, Armin Hansen, Mary DeNeale Morgan and Jules Tavernier and contemporary Carmel artists such as Dick Crispo and Bill Bates, members of the Carmel Art Association.

2. Art of or about Carmel localities. This category includes artists who may not have lived in the area, but used it as subject matter in their work.
George Demont Otis and Stanley Wood.

3. Art pertaining to Carmel history (people and places). Again artists who may or may not have lived in the area.
George Sterling, Robinson Jeffers, J.F. Devendorf and Forest Theater Posters.

4, Art that can be safely, effectively and appropriately cared for by the city staff. Concerns here include: stability, size, storage ramifications and possibility for public display.
Deaccession example include recent gift of abstract paintings by Rudolf Haegele.

5. Contemporary art by established artists, with subject matter, such as seascapes, that can be related to the history/geography of Carmel.
“Night Seascape Banner” by Roy Lichtenstein.

6. General gift category
Artworks intended to be sold, with proceeds going towards the care and maintenance of the art collection.

Resume – Sheryl Nese Nonnenberg
5 Sunrise Court
Menlo Park, CA 94025
650-854-3864, Nonnenberg@aol.co

ADDENDUM:
The Accidental Collection of Carmel, California
By SHERYL NONNENBERG

September/October 2009 | FINE ART CONNOISSEUR.COM

When the stagecoach topped the hill from
Monterey and we looked down through
the pines and sea fog on Carmel Bay, it
was evident that we had come without
knowing it to our inevitable place.
— Robinson Jeffers, 1914


— The California village of Carmel-by the Sea is known around the world for its white sand beaches, windbeaten pines, mild climate, and charming cottages inspired by those in the Cotswold hills of England. Tourists flock to this small city on the Monterey Peninsula year-round to shop, play golf, explore art galleries, dine at fine restaurants, and enjoy scenic coastal walks. Carmel has never been shy about promoting its unique beauty and cultural activities to potential tourists. Moreover, most promotional materials cite Carmel’s origins as an “artist colony.”

What few people know, however, is that the city of Carmel possesses a large and impressive art collection, one that has accumulated over 90 years totally without plan. In an era when other municipal governments have created “percent-for-art” programs and other mechanisms for beautifying their communities, Carmel has never spent a penny on the purchase of art. To understand how this could occur, it is helpful to review the history of the Carmel-Monterey area, an “inevitable place” for artists to live and find inspiration.

WAVES OF SETTLEMENT
It is generally assumed that artists flocked to the peninsula following the devastating San Francisco earthquake of 1906. But in his well-researched book, Artists at Continent’s End, curator Scott A. Shields provides ample proof that artists began visiting as early as the mid-1870s. Jules Tavernier is usually cited as one of the first to seek respite from the bustle of rapidly growing San Francisco. The rugged beauty of the coast, fleeting changes of sunlight, and moody transience of the fog soon attracted other artists such as Elizabeth Strong, Julian Rix, Meyer Strauss, and Raymond Yellan. By 1878, painters working under colorful umbrellas dotted the area’s beaches. Soon the Southern Pacific Railroad opened a line that could bring travelers from San Francisco to Monterey in just a few hours. Some artists, such as William Keith and George Innes, bought land and built cottages. For most, however, a day trip south provided enough inspiration and a folio of sketches that could be worked up later in a San Francisco studio.

In 1903, J. Franklin Devendorf and Frank Powers formed the Carmel Development Company and began promoting their town as a place where
“School teachers of California and other Brain Workers” could find peace, contentment, and a healthful climate. Soon, professors from Stanford University and the University of California (Berkeley) began to buy lots, usually for less than $100. Artists and writers followed before long and became known as the “Bohemians.” The artists included Charles Rollo Peters, Harry Stuart Fonda, Xavier Martinez, Frances McComas, Mary
DeNeale Morgan, and Arthur and Lucia Mathews. Among the writers were George Sterling, Mary Austin, Jack London, and Robinson Jeffers.

Unlike such predecessors as Thomas Hill and Albert Bierstadt, who had come to California for the mountainous grandeur of Californian sites like Yosemite, the artists who came to Carmel were interested primarily in the coastal landscape. Working in various styles, but especially impressionism and tonalism, they captured the ever-changing panorama of sea, sand, and pines. The Bohemians enjoyed an active social life, captured by the photographs of Arnold Genthe, which record clam bakes on the beach and amateur theatricals in the woods.

The 1906 earthquake destroyed the San Francisco studios and homes of many artists, including William Keith and Carleton Watkins. Those who owned second homes in Carmel moved there permanently, while others relocated to Santa Barbara and Los Angeles. With the destruction of many San Francisco galleries, Monterey’s luxurious Hotel Del Monte became an important place to exhibit art in northern California. Artists continued to visit the peninsula to work and sell, but by 1915 the original Bohemians had moved on. Some felt Carmel was now too crowded, while others found the carefree, undisciplined lifestyle unconducive to producing enough artworks to make a living. Although Carmel would always be attractive to artists, there would never again be an established colony like the Bohemians.

A NEW FOCAL POINT FOR COLLECTING
Carmel continued to grow, though always with an eye toward preserving its charm. In 1928, a public library was completed downtown through a generous bequest from Ella Reid Harrison, the wife of California Supreme Court Justice Ralph Chandler Harrison. Designed by architect Bernard Maybeck with open-beamed ceilings, large arched windows, and an outdoor balcony, the Harrison Library epitomizes the harmonious Spanish Colonial style for which he is admired. But Mrs. Harrison did not bequeath only construction funds; she also left to the library her extensive and eclectic collection of artworks and rare books. The gift included paintings by local artists, etchings by Rembrandt and Millet, and even a letter signed by Charles Dickens. It was promptly housed in the library’s storerooms and became the basis for the Carmel by the Sea Art Collection.

As the second and third waves of artists arrived in Carmel, they sought not to re-create the Bohemian experience but to establish an organization that could address the needs of working artists. Founded in 1927, the Carmel Art Association is the second oldest nonprofit artist cooperative in the U.S. From its humble beginnings in a variety of venues, this group offered lectures and demonstrations, and provided its members with a place to exhibit and sell their work. Today artists must already have exhibition experience and live within 35 miles of Carmel in order to be considered for membership. Some of the most illustrious early members included Francis McComas, Armin Hansen, Percy Gray, and E. Charlton Fortune. Not surprisingly, many members have donated their art to the city’s collection over the years.

The other primary source of gifts to this collection has been nonartist residents. From a distance, it may seem odd for such citizens to give artworks to a library, and also that the community never developed its own municipal art museum. Having said this, one must keep in mind the unique demographics of the area. Although it certainly has full-time residents, Carmel has always had proportionally more “second homes.” (Today as many as 50 percent of its houses are estimated to fall in this category.) As people have moved away, or died without heirs, their art collections have gradually been donated to the Harrison Library.

And so, without any conscious effort, this sleepy town has become the steward of a large art collection. Like most U.S. art museums, the Harrison Library has room to display only a small portion of its treasures, the vast majority of which are in storage. Usually on view are some of the collection’s oldest works: paintings by Mary DeNeale Morgan, William Silva, and Sidney Yard, and also an unusual work painted on cigar box lids by Jules Tavernier, Cypress Point and Monterey. The collection includes important works by Charles Rollo Peters, Arnold Genthe, Josephine Culbertson, Ferdinand Burgdorff, and Edward Weston. The contemporary artists represented include Dick Crispo, Loran Speck, Pam Carroll, and Morley Baer. One of the most notable works, Armin Hansen’s Animals and Figures (The Story of Life), has been moved out of the library for conservation reasons and can now be found in the City Council Chambers. Artworks have also been installed in various offices at City Hall, in the Park Branch of the library, and in the recently remodeled Sunset Center, a performing arts venue.

THE ROAD AHEAD
Today, Carmel by the Sea finds itself with an intriguing conundrum. Given its very small staff, limited storage, and uncertain tax revenues, the city is trying to determine how best to care for its collection. In 2007, a professional appraisal (the first in many years) revealed that a number of works had increased in value substantially. Because there has never been a designated registrar to administer the collection, its documentation is haphazard. Various advisory groups (composed mostly of local artists) have called public attention to the situation, but no meaningful progress has been made. Moreover, the random nature of gifts and bequests over the years means that many objects in the collection (e.g., Japanese woodblock prints, clocks, tapestries) lie well outside its regional scope and thus may eventually be deaccessioned. Recently, a consultant was hired to make recommendations regarding future management of the collection.

Perhaps none of this is surprising for a town where Clint Eastwood was once mayor, high heels are banned, and a major city-sponsored event is the annual Sand Castle Contest. Social trends come and go, but art will always be a mainstay of this remarkable community. As Arnold Genthe once observed, “The unique beauty and charm of Carmel will never cease to be an inspiration to painters and writers.” 

SHERYL NONNENBERG is an art researcher/writer who lives in the San Francisco Bay Area.

XI. Orders of Council

A. Receive report and provide policy direction on the City paid home mail delivery.

Description: Carmel resident Carolina Bayne recently requested that the Council reconsider City-paid home mail delivery. Ms. Bayne has submitted background materials (see attached) that include: 1) a letter from the USPS regarding its need for a numbering system prior to implementing mail delivery; 2) Article 9 of the 1998 California Code mandating that address numbers be clearly posted; and 3) a memo that went to the Council adopting the 1997 Uniform Fire Code as an Ordinance.

Overall Cost:
City Funds: $50,000 annually
Grant Funds: $0

Staff Recommendation: Provide policy direction.

Important Considerations: Mail delivery by the USPS, if instituted, would require that homes within the City limits have clearly posted addresses. The City has a longstanding tradition of not having home addresses; instead, mail delivery has occurred at the Carmel Post Office. The Uniform Fire Code requires “address” identification, but has not been implemented as part of the Municipal Code.

Decision Record: Commencing in 2001, the Council approved the funding of home mail delivery in the amount of $60,000. A reduced amount of $50,000 was authorized shortly thereafter and approved annually as part of the City’s operating budget. The home mail delivery contractor is Peninsula Messenger Service.

B. Consideration of changes to the rules and regulations regarding fires on Carmel Beach.

Description: The City currently allows recreational fires on Carmel Beach south of 10th Avenue and west of the high-tide line. This item discusses whether the existing rules regarding beach fires should be modified.

Overall Cost:
City Funds: N/A
Grant Funds: N/A

Staff Recommendation: Provide direction regarding beach fires.

Important Considerations: Carmel Beach is one of the City’s most important and enjoyed assets. The General Plan encourages allowing beach fires south of 10th Avenue, while also recognizing the City’s responsibility to protect the white sand beach. Rules and regulations have been developed over the years in an attempt to limit the negative
impacts of beach fires.

Decision Record: The Forest and Beach Commission made recommendations to the City Council on 2 July 2009. The Planning Commission made recommendations to the City Council on 12 August 2009.

CITY OF CARMEL-BY-THE-SEA
DEPARTMENT OF COMMUNITY PLANNING AND BUILDING
STAFF REPORT
TO: MAYOR MCCLOUD AND COUNCIL MEMBERS
FROM: SEAN CONROY, PLNG & BLDG SERVICES MANAGER
THROUGH: RICH GUILLEN, CITY ADMINISTRATOR
DATE: 8 JUNE 2010
SUBJECT: CONSIDERATION OF CHANGES TO THE RULES AND REGULATIONS GOVERNING FIRES ON CARMEL BEACH

BACKGROUND & DESCRIPTION
Carmel Beach is one of the few white sand beaches in California and is a renowned tourist destination. Consistent with the California Coastal Act, Carmel Beach provides extensive public coastal access and recreational opportunities. One of these recreational opportunities is the allowance of fires on the beach south of 10th Avenue.

Fires have always been allowed on Carmel Beach. Over the years, various regulations and restrictions on the size and location of fires have been implemented to minimize some of the negative impacts unregulated fires have on the quality of the beach experience for all beach users.

Among the negative impacts unregulated beach fires are:
• Staining of the white beach sand with charcoal.
• Left over trash and garbage.
• Nails and other debris from burned pallets left in the sand.
• Effects of smoke to neighboring residents.
• Accidents from hot coals that were covered with sand rather than extinguished with water.
• Charcoal graffiti on sea walls.

The General Plan allows beach fires south of 10th Avenue, while also recognizing the City’s responsibility to protect one of its most important assets, the white sand beach.

In the past, the City has used large fire rings to try to mitigate some of the negative impacts. These rings, however, became loaded with large amounts of burned and partially burned trash and seemed to be perpetually smoldering. The area around the rings also became heavily stained from charcoal blowing out of the ring or spilling over the rim.

The Forest and Beach Commission and the Planning Commission both have made recommendations to the City Council on this issue. Their recommendations are addressed below. The City received 16 comments letters as part of the Forest and Beach and Planning Commission reviews and a petition with approximately 1,000 signatures. The petition asked that the City not ban beach fires.

EVALUATION
Local Coastal Plan: The Coastal Access and Recreation Element of the General Plan/Local Coastal Plan contains the following goal, objective and policy regarding beach fires, followed by a brief response from staff.

G4-4: Provide for a wide variety of passive and active recreational experiences for all beach users while protecting the resource values of beach environs.

Response: Continuing to allow beach fires is consistent with this goal as it adds variety to the recreational experience of beach users. However, if beach fires are not regulated they can have negative impacts on the beach and its users as discussed previously.

O4-10: Allow beach users the opportunity to enjoy a fire for warmth or cooking, while protecting the sand from degradation. (LUP)

Response: How to continue to allow fires while protecting the sand is the key question for the City. See options listed below.

P4-57 Allow beach fires until 10:00 p.m. south of 10th Avenue but at least 25 feet from the base of bluffs. Install appropriate signage to indicate this distance and time limit and to indicate methods for correct extinguishing of fires with water.

Response: While the City has adopted beach fire requirements, they are not well publicized or displayed. The signage near the beach is limited and not readily visible in some locations. Improving the signage and public education would significantly improve many of the issues related to beach fires.

For example, the City has a requirement that fires be located at least 25 feet from any seawall. This is meant to avoid staining the seawalls and also locate fires where the tide can assist in cleaning the coals. However, this rule is rarely followed, and most fires are located near the seawalls and in the secluded coves south of 10th.

Municipal Code: Carmel Municipal Code sections 12.32.165 and 17.20.200 outline the rules for fires on the beach (see attached). However, these sections contain some outdated references to fire pits and fires north of 10th Avenue that need to be revised. Some of the rules are also difficult to interpret and/or enforce. For example, the code states that fires should be located south of 10th Avenue and west of the high-tide line. The high tide line changes on a daily basis and is difficult to determine. The rule also would assume that no fires would be allowed at high tide.

Some options the Council could consider include:
􀂾 Continue with the current regulations and part-time cleanup efforts (this assumes that the Municipal Code be revised to be consistent with the General Plan).
􀂾 Allow fires only in designated fire rings.
􀂾 Restrict the number of fires allowed through a permit process.
􀂾 Further reduce the areas where fires are allowed.
􀂾 Increase funding for beach cleanup and enforcement (could include purchase/lease
of additional machinery such as a beach rake).
􀂾 Increase signage and public education.
􀂾 Ban fires from the entire beach.
􀂾 Other possibilities?

FOREST & BEACH COMMISSION REVIEW
The Forest and Beach Commission reviewed this issue on 2 July 2009 and made the following recommendations:
1. Continue to allow beach fires south of 10th Avenue.

2. Increase funding for public education, rules awareness and improved signage.

3. Increase funding for beach cleanup.

PLANNING COMMISSION REVIEW
The Planning Commission reviewed this issue on 12 August 2009 and made the following recommendations:
1. Continue to allow beach fires south of 10th Avenue.

2. Increase funding for public education, rules awareness and improved signage.

3. Significantly increase funding for beach cleanup and management.

4. Improve enforcement and consider fines.

5. Establish and ad hoc committee comprised of various City departments and
members of the public under the direction of the City Forester to review this issue.

6. After implementation of any new measures, review the effectiveness of these measures within 15 months to determine if more steps are needed.

RECOMMENDATION
Provide guidance on the rules and regulations for fires on Carmel Beach.