ORAL ARGUMENT: THE FLANDERS FOUNDATION, Plaintiff and Appellant v. CITY OF CARMEL-BY-THE-SEA et al, Defendants and Appellants (Sixth District Court of Appeal Case No. H035818)

NEWS ARTICLE: Appeals court hears Flanders arguments
By JIM JOHNSON Herald Staff Writer, 10/21/2011

ABSTRACT: On Thursday, 20 October 2011, Justices Mihara, Duffy and Walsh (pro tem) heard oral argument from the attorney for the City of Carmel-by-the-Sea, David W. Balch, and the attorney for The Flanders Foundation, Susan Brandt-Hawley. Both attorneys had approximately 20 minutes for opening statements and 10 minutes rebuttal, including answering direct questions from the Justices. Basically, attorney Brandt-Hawley argued that Judge Kingsley’s decision on the Surplus Land Act issue should be upheld because there was no analysis of the environmental impacts of a public agency purchasing the Flanders Mansion Property in the Environmental Impact Reports (EIR). On the Economic Feasibility Analysis issue, Brandt-Hawley argued that the document should have been a part of the Draft EIR since the basis for the City Council approving the sale or lease of the property was based on the City Council’s determination that the lease option was economically infeasible. She further argued that the Economic Feasibility Analysis was insufficient because it did not ask and answer the correct questions involving analogous properties and analyzing feasible alternatives not limited to the sale of the Flanders Mansion Property. And specifically the context for the Economic Feasibility Analysis of whether the City could make a profit was incorrect. The attorney for the City, David Balch, basically argued that the Court must respect the broad discretion of the City Council in making its decision to approve the sale or lease of the Flanders Mansion Property. Specifically, Balch argued that the City complied with the Surplus Land Act provisions sufficiently because “future action” is “speculative” and therefore any further analysis would be “misleading” and financially wasteful. On the Economic Feasibility Analysis issue, Balch stated that there is no requirement that the Economic Feasibility Analysis be included in the EIR and while the document was not available to the public until after the public comment period closed for the Draft EIR, it was available prior to the City Council’s final determination to approve the sale or lease of the Property. Balch further argued that it is within the discretion of the City to define “infeasible” as 17 years for a residential lease to recoup the cost of the estimated $1.3 million rehabilitation or 7 years for a commercial lease compared to sale of the Flanders Mansion Property for $2.7 million without rehabilitation or $4 million with rehabilitation. Both attorneys recognized that the City’s purpose was divestment of the Property for financial reasons, i.e., a desire not to use taxpayer monies to maintain or improve the Property. Attorney Brandt-Hawley argued that it is feasible to achieve that objective without selling the Flanders Mansion Property, whereas attorney Balch argued that there is substantial evidence in the record to support the City Council’s decision and it is within the City’s discretion to sell the Flanders Mansion Property subject to CEQA and a public vote. During the presentations of the attorneys, Justices asked questions of clarification and other questions regarding the conservation easements and public access issues, reasonable expectations for complying with the Surplus Land Act, et cetera. After approximately one hour, the case was submitted and an opinion is expected within 90 days. A Summary of the Case, prepared by Monterey County, not the Court, was available for the public. The Summary is embedded below.

ORAL ARGUMENT CALENDAR

ORAL ARGUMENT CALENDAR
COURT OF APPEAL, SIXTH APPELLATE DISTRICT
CASE NO. H035818
TITLE THE FLANDERS FOUNDATION, Plaintiff and Appellant v. CITY OF CARMEL-BY-THE-SEA et al., Defendants and Appellants

Clarifications/Corrections to Summary include the following:
• Statement in Summary: “The Mansion borders a 35-arce city park and a public garden.”
Clarification: The Mansion is within Mission Trail Nature Preserve and the 1.252 acre parcel comprises an inholding in the City’s largest park.

• Statement in Summary: “Because the Mansion property included nearly 15 acres of parkland, the City reduced the size of the Mansion property to 1.5 acres.”
Correction/Clarification: The Flanders Mansion Property parcel is 1.252 acres, not 1.5 acres. The “parkland” is Mission Trail Nature Preserve, 35 acres total.