COMBINED RESPONDENT'S BRIEF AND CROSS-APPELLANT'S OPENING BRIEF: Court of Appeal No. H035818

ABSTRACT: COMBINED RESPONDENT'S BRIEF AND CROSS APPELLANT'S OPENING BRIEF, THE FLANDERS FOUNDATION, Plaintiff and Respondent vs. CITY OF CARMEL-BY-THE-SEA and CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA, Defendants and Appellants, Court of Appeal No. H035818, is embedded and SYNOPSIS HIGHLIGHTS, including the reproduced Conclusion, are presented. Respondent’s Brief (Defendant and Appellant: City of Carmel-by-the-Sea) is due 4 May 2011, and will be posted when available.


COMBINED RESPONDENT'S BRIEF AND CROSS-APPELLANT'S OPENING BRIEF H035818 -
COMBINED RESPONDENT'S BRIEF AND CROSS-APPELLANT'S OPENING BRIEF

No. H035818

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

THE FLANDERS FOUNDATION,
Plaintiff and Respondent,

v.

CITY OF CARMEL-BY-THE-SEA and CITY COUNCIL OF THE CITY
OF CARMEL-BY-THE-SEA,
Defendants and Appellants.

Civil No. H035818

Monterey County Superior Court
Case No. M99437

On appeal from the Superior Court of Monterey County
Honorable Kay T. Kingsley

COMBINED RESPONDENT'S BRIEF AND
CROSS-APPELLANT'S OPENING BRIEF

BRANDT-HAWLEY LAW GROUP
Susan Brandt-Hawley / 75907
P.O. Box 1659
13760 Arnold Drive
Glen Ellen, CA 95442
(707) 938-3900, fax (707) 938-3200
susanbh@preservationlawyers.com

Attorneys for Plaintiff and Respondent
The Flanders Foundation

SYNOPSIS HIGHLIGHTS:
Discussion includes, as follows:
A. The CEQA Appeal
1. Surplus Land Act Issues
EIR Analysis is Inadequate

B. The Cross Appeal
1. Analysis of Economic Feasibility
Feasibility Analysis should be in the EIR
The CBRE Report was Inadequate
2. Lease of Flanders Mansion is Feasible
3. There are no Overriding Considerations.

Conclusion

The Flanders Foundation appreciates that the Court will not lightly interfere with the public policy decisions of an elected decisionmaking body such as the Carmel City Council, but when a decision has significant environmental impacts, CEQA overrides the Council’s discretion until its mandated procedures and substance are met.

The City’s appeal should be denied and the Flanders Foundations’ cross-appeal should be granted. On remand, the peremptory writ should issue because the Flanders EIR failed to assess environmental impacts related to compliance with the Surplus Land Act, failed to adequately respond to comments, and failed to adequately analyze the economic feasibility of a lease. The City’s findings violated the substantive mandate of CEQA because no substantial evidence supported the infeasibility of a lease alternative or the statement of overriding considerations.

The Court’s enforcement of CEQA is respectfully requested to provide great and longstanding public benefit to the citizens of Carmel.

April 1, 2011