COURT OF APPEAL, H035818: DISPOSITION: ‘The trial court's judgment is hereby modified to delete the court's finding that the FEIR failed to adequately address the Surplus Land Act issue. As so modified, the judgment is affirmed.'

ABSTRACT: IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT, THE FLANDERS FOUNDATION, Plaintiff and Appellant, v. CITY OF CARMEL-BY-THE-SEA et al., Defendants and Appellants, (H035818), filed 4 January 2012, Acting P. J. Nathan D. Mihara’s Disposition, as follows: “The trial court’s judgment is hereby modified to delete the court’s finding that the FEIR failed to adequately address the Surplus Land Act issue. As so modified, the judgment is affirmed. The parties shall bear their own costs on appeal;” J. Wendy Clark Duffy and J. Brian Walsh concurred. The Court also wrote, as follows: “The City’s attack on the trial court’s finding ignores the obvious. The City provided no response whatsoever in the FEIR to the comment’s suggestion that the residence could be sold with a smaller parcel even though the comment raised a significant environmental issue. Since the proposed project would have an unmitigated significant environmental impact by eliminating parkland, the comment’s suggestion reasonably questioned whether that impact could be reduced by reducing the size of the parcel. The City’s obligation under CEQA was to explain in the FEIR “in detail giving reasons why” the City was not considering the sale of the residence with a reduced parcel. The City made no effort to satisfy its obligation. Its effort to conjure up reasons now is too late.10 The purpose of CEQA is to inform both the public and the decisionmakers, before the decision is made, of any reasonable means of mitigating the environmental impact of a proposed project. The City’s failure to respond to this significant comment violated its duty under CEQA, and the trial court correctly found that the City’s certification of the FEIR was therefore invalid.” Thus, the Court ruled that the Final Environmental Impact Report (FEIR) was inadequate and therefore the approval and certification are set aside; the public vote is therefore also set aside. The twenty-seven page opinion is embedded. Critical to the Justices’ analysis is the following: “Judicial review of an agency’s decision to certify an EIR and approve a project ‘shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.’ [Citations.] Thus, we consider only whether the City failed to comply with CEQA or made determinations that were not supported by substantial evidence.” Thus, “We conclude that the trial court erred in concluding that the FEIR had failed to adequately address the Surplus Land Act issue. However, in all other respects, we reject the contentions of both the City and the Foundation. Accordingly, we modify and affirm the judgment.”

SIXTH APPELLATE DISTRICT H035818

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT, THE FLANDERS FOUNDATION,
Plaintiff and Appellant, v. CITY OF CARMEL-BY-THE-SEA et al., Defendants and Appellants. H035818 (Monterey County Super. Ct. No. M99437)