Flanders Mansion Property Economic Analysis (2009)

EconomicAnalysisFlandersMansion

RECIRCULATED DRAFT ENVIRONMENTAL IMPACT REPORT FOR THE SALE OF THE FLANDERS MANSION PROPERTY (2009)

RDEIRflandersindex

VICTORY FOR FLANDERS FOUNDATION (Case Number M99437)

The Flanders Foundation v. City of Carmel-by-the-Sea et al. (M99437)

For Immediate Release
Contacts: Melanie Billig, 831.236.6689
Attorney Susan Brandt‐Hawley, 707.938.3900

Judge Rules Against Carmel: Stops Sale of Flanders Mansion and Invalidates Vote

Carmel (March 16, 2010) – Last June, the Flanders Foundation filed a lawsuit to challenge Carmel’s decision to sell the historic 1924 Flanders Mansion. Located within the Mission Trail Nature Preserve, the mansion is honored as one of only two Carmel properties listed both on the National Register of Historic Places and the California Register of Historical Resources.

Monterey County Superior Court Judge Kay Kingsley ruled today that the Carmel City Council’s approval of the sale of Flanders Mansion again violated the California Environmental Quality Act (CEQA). The City lost a previous case regarding the sale of Flanders in 2007. Among other things, the Court ruled that the City was demolishing the Mansion by neglect. Since then, the City has made some repairs to the Mansion, prepared a Revised EIR, and reapproved the sale despite viable offers to lease. The City then put the sale to a public vote despite urgings of the Foundation and others that the City should wait for the result of the current Court challenge to avoid costs of the premature election. By going ahead with the election before the Court challenge was resolved, the City needlessly spent tens of thousands of dollars and wasted a lot of its citizens’ time.

The Court ruled today that “Carmel failed to proceed as required by law” because the Revised EIR “did not fulfill its information disclosure function” relating to Surplus Land Act requirements relating to sale of parkland, requiring that Carmel first offer the Mansion for sale or lease to another public agency.

Further, “the Court finds that the EIR is without substantial evidence in the record or reasoned analysis regarding the Surplus Lands Act issue,” since it contains only “generalized discussion” and “there is also a lack of analysis of what uses could be made of the Mansion by an agency, and ‘precisely’ what amount of water is available...”

The approval of sale must now be set aside. Reapproval and a new vote to abandon parkland cannot be considered until the EIR is revised to analyze foreseeable environmental impacts of compliance with the Surplus Land Act. The EIR must also include essential information regarding the alternative of a possible sale or lease of a reduced-size parcel.

Said Foundation attorney Susan Brandt-Hawley, “All of the grounds on which the judge ruled in the Foundation’s favor were violations of law that were repeatedly brought to the attention of the Carmel City Council. It did not listen.”

“The City Council has spent nearly a million dollars on its quest to sell Flanders and needlessly lose a key part of Carmel’s treasured parkland. It continues to violate the law. Surely enough is enough. In ten years, the City has failed to try to find a use and to resolve this community issue. Flanders should be leased in a way that minimizes impacts to Hatton Road, provides for maintenance and repairs, and allows some public access. This can be done as soon as the City becomes a willing partner," said Foundation President Melanie Billig

Analysis of CITY EXPENDITURES FOR THE SALE OF THE FLANDERS MANSION PROPERTY

ABSTRACT: In the context of a recent letter to the editor, The Monterey County Herald, written by Marikay Morris, the City’s expenditures for the sale of the Flanders Mansion Property are presented and analyzed through COMMENTS, including the following: The largest share of the total $787,290.25 (as of the City’s August 2009 Check Register) expended by the City for the sale of the Flanders Mansion Property has been as a result of the City’s decision to continue to pursue the sale of the Flanders Mansion Property after a Judge’s ruling finding in favor of the Flanders Foundation and against the City and City Council of Carmel-by-the-Sea.

On Tuesday, 15 September 2009, The Monterey County Herald published a letter to the editor entitled “Flanders Foundation running up tab” written by Marikay Morris. Morris wrote, in part, as follows:

“In response to the letter last week complaining that Carmel has spent almost $800,000 regarding the sale of Flanders Mansion, the focus should have been the people who instigated the lawsuit: The Flanders Foundation.”

“...The exceptional part of this case is that a very small minority continues to cost the public endless time and money.”

CITY EXPENDITURES FOR THE SALE OF THE FLANDERS MANSION PROPERTY (as of City’s August 2009 Check Register)

Legal & Associated Expenditures:
Joel Franklin: $163,059.01
Susan Brandt-Hawley: $160,000.00
William B. Conners: $84,228.00
Subtotal: $407,287.01

Gianna Rocha (Transcription Services): $10,685
Mark Askew (Flanders Mansion Appraisal): $1,500.00
Subtotal: $12,185
Total Subtotal: $419,472.01

EIR Expenditures:
Denise Duffy & Associates, Inc.: $102,689.34 (DEIR & FEIR)
Denise Duffy & Associates, Inc.: $67,000 (RDEIR; per Resolution August 2008 not to exceed $67,000.00)
Denise Duffy & Associates, Inc.: $ 77,949.56 (RFEIR; per Resolution June 2009 not to exceed $77,572)
Subtotal: $247,638.90

Planning Consultant:
Monterey Bay Planning Services (Brian Roseth): $38,916.99
Subtotal: $38,916.99

Economic Analysis Project:
CBRE Consulting, Inc.: $52,483.72 (per Resolution August 2008, not to exceed $40,000.00)
CBRE Consulting, Inc.: $ 15,416.00 (per Resolution June 2009, not to exceed $23,000.00)
Subtotal: $67,899.72

Site Evaluation & Construction Cost Estimates:
Architectural Resources Group (ARG): $8,540.00 (per Resolution September 2008, not to exceed $11,500.00)
Subtotal: $8,540.00

Monterey County Recorder EIR Report Filing Fee: $2,818.25
Subtotal: $2,818.25

Meeting Notices:
Carmel Pine Cone: $249.90 (Flanders EIR Meeting Notice, 4/14/09)
$149.94 (Special Election Noticing)

Monterey County Herald: $1,789.54 (Flanders Mansion Meetings Public Notices)
Subtotal: $2,189.38

GRAND TOTAL: $787,290.25

COMMENTS:
• City expenditures for the sale of the Flanders Mansion Property can be divided into three categories, as follows:
1. Expenditures associated with regulatory requirements, including the DEIR and FEIR, and appraisal; a total cost of approximately $105,000.
2. Expenditures associated with legal costs from the time of the Flanders Foundation filing their original lawsuit in 2005 to Judge Robert O’Farrell’s ruling in 2007; a total cost of approximately $245,000.
3. Expenditures associated with the City’s decision not to appeal Judge O’Farrell’s ruling and continue to pursue the sale of the Flanders Mansion Property; a total cost of approximately $425,500.

• Significantly, expenditures associated with the City’s decision to pursue the sale of the Flanders Mansion Property after the Judge’s ruling in favor of the Flanders Foundation and against the City and City Council of Carmel-by-the-Sea represent expenditures for the RDEIR, RFEIR, Consultant Planning Services, Economic Analysis Project and Site Evaluation and Construction Cost and attorney fees totaling approximately $425,500.

• The largest share of the total $787,290.25 expended by the City for the sale of the Flanders Mansion Property has been as a result of the City’s decision to continue to pursue the sale of the Flanders Mansion Property after a Judge’s ruling finding in favor of the Flanders Foundation and against the City and City Council of Carmel-by-the-Sea.

• Yet, despite all the aforementioned facts and despite a Monterey County Superior Court Judge’s ruling against the City, Marikay Morris writes that “the focus should have been the people who instigated the lawsuit” and ““a very small minority continues to cost the public endless time and money,” which begs the question: Do the individuals in favor of selling the Flanders Mansion Property advocate the City violate municipal and state laws as a means to their end of selling the Flanders Mansion Property and do so with impunity?

FLANDERS MANSION PROPERTY: Protest Hearing, Resolution & Ordinance (3 November 2009 Election) on Sale of NRHP Resoure in Mission Trail Nature Preserve

ABSTRACT: At a Special City Council Meeting today, Tuesday, June 16, 2009 at 4:30 P.M., the City Council will conduct a Protest Hearing regarding the discontinuance and abandonment of the Flanders Mansion Property as Public Park Land and may consider a Resolution Overriding All Protests Against Discontinuance and Abandonment of Use of the Flanders Mansion Property as Public Park Land and an Ordinance Calling and Fixing the Date of a Special Election to Submit to the City Electors the Question of Discontinuance and Abandonment of the Use of Public Park Land on Which Protests Were Overruled. The Flanders Mansion Property is an approximately 1.252 acre parcel located at 25800 Hatton Road in Carmel, Monterey County, California and situated within the Mission Trail Nature Preserve (APN 010-061-005). The Flanders Mansion is listed on the National Register of Historic Places (NRHP). Selected excerpts from the Staff Report and Agenda Item Summaries are presented under each agenda item. If a 2/3 vote of the City Council overruling protests is realized, then a Resolution Overriding All Protests Against Discontinuance and Abandonment of Use of the Flanders Mansion Property as Public Park Land and an Ordinance Calling and Fixing the Date of a Special Election on November 3, 2009, to coincide with the General Election, can be adopted.

NOTICE OF SPECIAL CITY COUNCIL MEETING
Special Meeting
Tuesday, June 16, 2009 -- 4:30 p.m.
Council Chambers
East side of Monte Verde Street between Ocean and Seventh Avenues

Live and archived video streaming available

V. Protest Hearing
A. Receive protests regarding the discontinuance and abandonment of the Flanders Mansion Property as Public Park Land.

PROTEST HEARING
California statutes provide safeguards against the loss of public parkland. The public must first have an opportunity to protest, both orally and in writing. After hearing all protests, the City Council may decide whether or not to proceed with the sale. The Statute requires a two-thirds vote of the Council. A proposed Resolution for this decision is attached.

VI. Resolutions
A. Consideration of a Resolution of the City Council Overriding All Protests Against Discontinuance and Abandonment of Use of the Flanders Mansion Property as Public Park Land.

Description: The proposed resolution will override all protests received during the protest hearing and allow for the discontinuance and abandonment of the Flanders Mansion Property as Public Parkland.

Staff Recommendation: Adopt the Resolution.

Important Considerations: California Statutes provide safeguards against the loss of public parkland. The public must first be given an opportunity to protest, both orally and in writing. After hearing all protests, the City Council can decide if it still wants to proceed with the sale. The Statute requires a two-thirds vote of the Council.

VII. Ordinances
A. Consideration of an Ordinance (1st Reading) of the City Council Calling and Fixing the Date of a Special Election to Submit to the City Electors the Question of Discontinuance and Abandonment of the Use of Public Park Land on Which Protests Were Overruled.

Description: The proposed Ordinance will allow for a special election to be set to allow the City Electors to vote on the discontinuance and abandonment of the Flanders Mansion Property as Public Park Land.

Staff Recommendation: Adopt the Ordinance.

Important Considerations: If the protests are overridden, the Council may then adopt an Ordinance calling for a special election.

(Note: “A proposed Ordinance would call the special election for November 3, 2009, to coincide with the General Election set for that date.”)

(Source: Special City Council Flanders Meeting Agenda Packet)

‘MINUTES’ for Five Noteworthy 2 June 2009 City Council Agenda Items

“MINUTES”
CITY COUNCIL MEETING
CITY OF CARMEL-BY-THE-SEA
June 2, 2009

VII. Consent Calendar
These matters include routine financial and administrative actions, which are usually approved by a single majority vote. Individual items may be removed from Consent by a member of the Council or the public for discussion and action.

F. Consideration of a Resolution of the City Council amending the agreement with Denise Duffy & Associates to prepare an Environmental Impact Report for the Flanders Property in an amount not to exceed $77,572.

G. Consideration of a Resolution authorizing the City Administrator to enter into an agreement with CB Richard Ellis Consulting, Inc., for completion of the final economic analysis, appraisal and Phase II of the Flanders Property in an amount of $23,000 plus expenses.

H. Consideration of a Resolution accepting a proposal from Nichols Consulting Engineers for traffic and classifications counts and an update to the Construction Truck Impact Fee Study in an amount not to exceed $11,600.

Council Member TALMAGE pulled Item H.

Council Member ROSE moved adoption of Items A through G, seconded by Council Member HAZDOVAC, and carried unanimously.

Council Member TALMAGE expressed his dissatisfaction with expending $11,600 towards a Study; he preferred to adopt the Construction Truck Impact Fee without a Study. City Attorney Don Freeman stated that an analysis was required in order to support an impact fee.

Council Member ROSE moved adoption of Item H, and carried unanimously.

IX. Ordinances
B. Consideration of an Ordinance to revise the Municipal Code and Zoning Ordinance/Local Coastal Implementation Plan returning all design and land use responsibilities to the Planning Commission (First reading).

Mayor McCloud opened the meeting to public comment.

Jonathan Sapp and Keith Paterson, both of the Design Review Board, voiced their support for maintaining the Design Review Board.

Mayor McCloud closed the meeting to public comment.

Council Member TALMAGE took responsibility for putting this Item on the Agenda due to “new” information; he spoke of his concerns with recent retirements, the “loss of institutional memory,” lack of planning staff and lack of revenue to budget for the work of the Design Review Board and the Planning Commission. Mayor McCloud spoke in support of the elimination of the Design Review Board mainly due to anticipated retirements of Planning Commissioners. Council Member SHARP spoke in support of maintaining the Design Review Board. Council Member HAZDOVAC expressed concerns about whether or not there is evidence for any cost savings with the elimination of the Design Review Board; the City Administrator had no data on the matter. Council Member ROSE supported TALMAGE and McCLOUD for the elimination of the Design Review Board. City Attorney Don Freeman spoke about the history and reasons of the formation of the Design Review Board and the desire to have an unanimous decision.

Council Member ROSE moved approval of an Ordinance to revise the Municipal Code and Zoning Ordinance/Local Coastal Implementation Plan returning all design and land use responsibilities to the Planning Commission, seconded by Council Member TALMAGE and carried by the following roll call:

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

XI. Orders of Council
B. Consideration of recommendations from the Green Building Committee and the Planning Commission regarding a draft Green Building Ordinance.

Sean Conroy, Planning & Building Services Manager, presented the recommendations from the Green Building Committee and the Planning Commission.

Mayor McCloud opened the meeting to public comment.

Libby Barnes, of Carver Schickentanz Architects and U.S. Green Building Council of Monterey Bay Branch, spoke in support of the Green Building Ordinance. Carla Ramsey, Carmel resident, spoke in support of a resolution, not an ordinance; she expressed support for voluntary, not mandatory compliance. Barbara Livingston spoke to 60 points required as being "easy to achieve." Brendan Connolly, Local Builder and Green Building Committee member, spoke about "awareness" and "education" about Green Building.

Mayor McCloud closed the meeting to public comment.

Council Member ROSE spoke in support of the Green Building Ordinance. Council Member HAZDOVAC voiced her appreciation to the Green Building Committee. Consensus of Council Members in support of the draft Green Building Ordinance.

(Source: Archived Videos, Regular City Council Meeting, June 2, 2009)

Five Noteworthy 2 June 2009 City Council Agenda Items

ABSTRACT: Five Noteworthy 2 June 2009 City Council Agenda Items, namely a Resolution of the City Council amending the agreement with Denise Duffy & Associates to prepare an Environmental Impact Report for the Flanders Property in an amount not to exceed $77,572, a Resolution authorizing the City Administrator to enter into an agreement with CB Richard Ellis Consulting, Inc., for completion of the final economic analysis, appraisal and Phase II of the Flanders Property in an amount of $23,000 plus expenses, a Resolution accepting a proposal from Nichols Consulting Engineers for traffic and classifications counts and an update to the Construction Truck Impact Fee Study in an amount not to exceed $11,600, an Ordinance to revise the Municipal Code and Zoning Ordinance/Local Coastal Implementation Plan returning all design and land use responsibilities to the Planning Commission and Consideration of recommendations from the Green Building Committee and the Planning Commission regarding a draft Green Building Ordinance, are presented. Selected excerpts from Agenda Item Summaries and Staff Reports are provided; COMMENTS are made on selected Agenda Items. The next City Council meetings will be the Special Budget Meeting, Tuesday, June 9, 2009, at 4:30 P.M. and the Flanders Protest Hearing, Tuesday, June 16, 2009, at 4:30 P.M. in Council Chambers.

AGENDA
Regular Meeting
Tuesday, June 2, 2009
4:30 p.m., Open Session
City Hall
East side of Monte Verde Street between Ocean and Seventh Avenues

VII. Consent Calendar
These matters include routine financial and administrative actions, which are usually approved by a single majority vote. Individual items may be removed from Consent by a member of the Council or the public for discussion and action.

F. Consideration of a Resolution of the City Council amending the agreement with Denise Duffy & Associates to prepare an Environmental Impact Report for the Flanders Property in an amount not to exceed $77,572.

Description: The contract for Denise Duffy & Associates, dated July 25, 2008, outlined the preparation of an EIR using existing information on the property and from the Flanders Property Final EIR, dated August 2005. The scope of work included defining parameters for project description; preparing an administrative draft of the EIR for comment by staff; preparing a draft EIR for public circulation; preparing responses to comments on the draft EIR; and attending public hearings.

On March 6, 2009, Denise Duffy & Associates submitted a Contract Amendment that included meeting attendance, preparation of environmental documents and project management, in amount not to exceed $9,500, as outlined in Attachment “A”.

On March 12, 2009, Denise Duffy & Associates submitted a second Contract Amendment that included additional tasks associated with the Final Recirculated Draft Environmental Impact Report on the Flanders Property, in an amount not to exceed
$32,000, as outlined in Attachment “B”.

Finally, on May 8, 2009, Denise Duffy & Associates requested a third Contract Amendment for further additional professional services in connection with the Final Recirculated Draft Environmental Impact Report on the Flanders Property, in an amount not to exceed $36,072.

Overall Cost:
City Funds: $77,572.00 (Account 01-61051-0040).
Funds to be transferred from the General Operating Reserve.

Decision Record: Adopted Resolution 2008-49, approving an agreement with Denise Duffy & Associates, to prepare an EIR in an amount not to exceed $67,000.

COMMENT:
• Three Contract Amendments, dated March 6, March 12 and May 8, 2009 were submitted to the City by Denise Duffy & Associates, Inc. Yet the Resolution amending the agreement with Denise Duffy & Associates is only now on the 2 June 2009 City Council Agenda. Moreover, the City paid Denise Duffy & Associates $26,360.61 by April 21, 2009.

117710 4/14/09 DENISE DUFFY & ASSOCIATES $ 9,500.00 01 61051 FLANDERS PROPERTY EIR
117766 4/21/09 DENISE DUFFY & ASSOCIATES $ 16,483.15 01 61051 FLANDERS PROPERTY EIR
----Vendor Total---- $ 26,360.61

Further evidence of a familiar pattern whereby the City expends taxpayer dollars prior to a resolution being placed on a public hearing agenda. And it is reminiscent of the City’s expenditures for materials and labor for the Dolores St. speed hump which was only removed when an attorney for the Dolores St. neighbors threatened a lawsuit against the City for misappropriation of funds due to the item never being placed on a City agenda for public hearing.

G. Consideration of a Resolution authorizing the City Administrator to enter into an agreement with CB Richard Ellis Consulting, Inc., for completion of the final economic analysis, appraisal and Phase II of the Flanders Property in an amount of $23,000 plus expenses.

Description: CB Richard Ellis Consulting (CBRE) will complete the final economic analysis, appraisal and Phase II, as detailed in Attachment “A”.

Overall Cost:
City Funds: $23,000 plus expenses (Account 01-61051-0040).
These funds will be transferred from the General Operating Reserve.

Important Considerations: CBRE’s original contract, effective July 21, 2008, was for $40,000 to provide the economic analysis for the Flanders Property. On October 21, 2008, CBRE received an additional $5,000 for further professional services related to the economic analysis of the Flanders property.

Decision Record: Resolution 2008-50, approving preparation of economic analysis for the Flanders property;

COMMENTS:
• As of the City May Check Register, the City had paid CBRE Consulting Inc. $52,483.72. Moreover, on April 21, 2009, the City paid CBRE Consulting Inc. $6,882.50, presumably towards the $23,000, as follows:

117760 4/21/09 CBRE CONSULTING INC. $ 6,882.50 01 61051 FLANDERS PROPERTY ECONOMIC ANALYSIS PROJECT

Again, further evidence of the City expending taxpayer dollars prior to the resolution being placed on a City agenda for public hearing.

• Two dates on CB Richard Ellis Consulting letter to City regarding Flanders Property Economic Analysis – Supplemental Budget, namely, March 2, 2009 (page 1) and February 27, 2009 (pages 2 and 3).

H. Consideration of a Resolution accepting a proposal from Nichols Consulting Engineers for traffic and classifications counts and an update to the Construction Truck Impact Fee Study in an amount not to exceed $11,600.

Description: In February 2008, a Construction Truck Impact Fee Study prepared by Nichols Consulting Engineers (NCE) was presented to the City Council. The study included statistics from traffic counts conducted in the City of Monterey. To update the study with construction traffic activity in Carmel-by-the-Sea, the City requested that NCE submit a proposal for traffic and classifications counts.

NCE’s proposal is outlined in Exhibit “A”. The information gleaned from the traffic counts will be used to update the Construction Truck Impact Fee report. The City Council then may consider implementing a construction truck impact fee to raise monies for streets and roads affected by construction truck activity. The fee would be assessed to builders as they apply for construction building permits.

Overall Cost: City Funds: $11,600, funded from Administration Department Professional Services Account 01-64051.

Staff Recommendation: Approve the Resolution.

Important Considerations: City Council directed staff to study the possibility of imposing a construction truck impact fee to help fund street and road projects. The Construction Truck Impact Fee Study previously prepared by NCE included traffic counts from the City of Monterey. By conducting a traffic count within the limits of Carmel-by-the-Sea, the City will have more accurate data to evaluate the impact of construction trucks on its streets.

COMMENT:
• The most inopportune times to impose a construction truck impact fee are during a time of economic downturn and slow economic recovery. Moreover, any construction truck impact fee will be passed onto the property owner; hence, a hidden tax on property owners.

IX. Ordinances
B. Consideration of an Ordinance to revise the Municipal Code and Zoning Ordinance/Local Coastal Implementation Plan returning all design and land use responsibilities to the Planning Commission (First reading).

Description: The Design Review Board currently reviews applications for design review not requiring land use permits or those that are not otherwise reserved for the Planning Commission. This ordinance would return all responsibilities for design and land use to the Planning Commission.

Staff Recommendation: Adopt the Ordinance.

Important Considerations: CMC Chapter 17.52.050 establishes the responsibilities of the Design Review Board. The Board’s role has been limited to the review of design applications not involving other land use permits. Returning all design and land use responsibilities to the Planning Commission will create more consistency for applicants going through the planning process. This also will reduce pressures on staff, as it will be one fewer Board to manage.

Decision Record: This item was discussed at the April 7, 2009 meeting for action. The City Council deliberated on the draft ordinance and tabled it at that time.

STAFF REVIEW
At the Special February 4, 2009 City Council meeting on the mid-year budget, the City Administrator recommended returning all land use and design responsibilities to the Planning Commission. Following are some of the reasons for this recommendation:

1. Changing demographics: Carmel does not have the qualified applicant pool that it once enjoyed due to the high number of second home owners and our sizable retired community. There are three positions on both the Planning Commission and the Design Review Board that expire this October -- a total of six. One Commission member has already moved from the area and two others have indicated their desire to “retire”. Some whose terms expire may wish to be reappointed. If not, Carmel-by-the-Sea faces a virtually impossible task of finding qualified candidates who must be Carmel-by-the-Sea residents and voters. Keeping Carmel “Carmel” depends on the application and understanding of both our Design Guidelines and codes. Openings for this year’s Boards and Commissions have been posted since the first of the year.

2. Reduced staff workload: An additional benefit is a reduced workload for the four-member staff (two of whom are planners), as it will have one fewer Board to manage. The Planning staff currently is responsible for the regular and special meetings of the Planning Commission, Design Review Board, Historic Resources Board and the Forest and Beach Commission, which amounts to preparing for a minimum of one meeting per week.

3. Consistency: This ordinance will simplify the design review process by creating a single decision-making body, as existed before 2001. This also will ensure consistency for applicants in how the City interprets and applies its design guidelines and criteria. There had been talk about the need for a joint meeting of the two bodies, as there has been inconsistency on design decisions: e.g. design elements such as mass and bulk, windows and skylights, to name a few.

4. Decrease in revenue from Building Permits and Fees: Annual revenues in the past few years were in excess of $300,000. Since the decrease in construction, revenues and related fees have fallen approximately 40%. Spec projects are not being built and projects are smaller and simpler.

COMMENT:
• When the City Council tabled the Draft Ordinance at the April 7, 2009 meeting, the City Council led the public to believe that it would only be reconsidered if and when there were too few applications for vacancies for the Design Review Board and the Planning Commission by October 2009. To wit, neither the Agenda Item Summary nor the Staff Report articulates the reason why this agenda item is now on the June 2, 2009 City Council Agenda.

XI. Orders of Council
B. Consideration of recommendations from the Green Building Committee and the Planning Commission regarding a draft Green Building Ordinance.

Description: The draft Green Building Ordinance would establish criteria that new construction projects must meet in order to receive a building permit. The goal of the ordinance is to guide development in a sustainable manner, promote energy efficiency, improve air quality, preserve natural resources and encourage architectural design that is consistent with the City's design traditions.

Staff Recommendation: Provide direction on the draft ordinance.

Important Considerations: In December 2009 a Green Building Committee was appointed to develop recommendations on a green building program for the City. The Committee was composed of local architects, builders, a City Council member, and a member of staff.

Decision Record: The Planning Commission recommended adoption of a green building ordinance on 20 May 2009.

Green Building Committee
Karen Sharp: Carmel City Council Member
John Thodos: Local Architect
Safwat Malek: Local Architect
Brendan Connolly: Local Builder
Jordan Daniels: Local Green Building Consultant
Sean Conroy: Planning & Building Services Manager

PROGRAM RECOMMENDATIONS
Recommendation #1: Adopt the following as the mission statement for the green building program:
"The mission of the City of Carmel-by-the-Sea's green building program is to guide development in a sustainable manner, promote energy efficiency, improve air quality, preserve natural resources and encourage architectural design that is consistent with the City's diverse design traditions."

Recommendation #2: Use the Build it Green checklist for residential projects and the LEED Commercial checklist for non-residential projects as the basis of the program.

Recommendation #3: Require the following number of points for residential and nonresidential projects in order to obtain a building permit:

Residential:
New Construction (i.e. demo/rebuild) 60 points
New Addition/Remodel > 750 sq. ft. 25 points
New Addition/Remodel < 750 sq. ft. 15 points
Bathroom/Kitchen Remodel only 4 points

Non-Residential:
New Construction (i.e. demo/rebuild) 24 pts.
Additions/Remodels > 1000 sq. ft. 18 pts.
Additions/Remodels < 1000 sq. ft. 16 pts.

Recommendation #3: Adopt the following incentive levels and discuss potential incentives:
Residential: 120 pts.
Non-Residential: 40 pts.

Recommendation #4: Allow for the requirements of the ordinance to be phased in and not become mandatory until 1January 2010.

Recommendation #5: Require that the City exceed the standard point requirements by 15% for all City projects that exceed 1,000 square feet.

ADDENDUM:
The next meetings of the City Council, as follows:

Special Budget Meeting – 4:30 p.m.
Tuesday, June 9, 2009
Council Chambers

Special Meeting—Flanders Protest Hearing – 4:30 p.m.
Tuesday, June 16, 2009
Council Chambers

(Sources: City Council Agenda June 2, 2009 and City Council Agenda Packet June 2009)

'MINUTES' for Sale of the Flanders Mansion Property 12 May 2009 Special City Council Agenda Item

“MINUTES”
CITY COUNCIL MEETING
CITY OF CARMEL-BY-THE-SEA
May 12, 2009

IV. Orders of Council
A. Consideration of a Resolution Certifying the Recirculated Final Environmental Impact Report for the Sale of the Flanders Mansion Property.

Council Member ROSE moved approval of a Resolutiion Certififying the Recirculated Final Environmental Impact Report for the Sale of the Flanders Mansion Property, seconded by Council Member HAZDOVAC and carried by the following roll call:

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

B. Consideration of a Resolution Adopting a Mitigation Monitoring and Reporting Program, Conditions of Sale, A Declaration of Conditions, Covenants and Restrictions to Be Recorded against the Property, and Conditions of Lease.

C. Consideration of a Resolution Adopting a Statement of Overriding Considerations.

D. Consideration of a Resolution Adopting a Project for Implementation: Sale of Flanders Mansion Parcel with Conservation Easements and Mitigation.

Council Member ROSE moved approval of a Resolution Adopting a Mitigation Monitoring and Reporting Program, Conditions of Sale, A Declaration of Conditions, Covenants and Restrictions to Be Recorded against the Property, and Conditions of Lease, a Resolution Adopting a Statement of Overriding Considerations, a Resolution Adopting a Project for Implementation: Sale of Flanders Mansion Parcel with Conservation Easements and Mitigation, seconded by Council Member SHARP and carried by the following roll call:

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

E. Consideration of a Resolution of Notice of Proposed Discontinuance of Public Park Land and Setting Date for Hearing of Protests Against Sale of Public Park Land.

Council Member ROSE moved approval of a Resolution of Notice of Proposed Discontinuance of Public Park Land and Setting Date for Hearing of Protests Against Sale of Public Park Land of Tuesday, June 16, 2009 at 4:30 P.M. at City Hall Chambers, seconded by Council Member HAZDOVAC and carried by the following roll call:

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

(Source: Archived Videos, Special City Council Meeting, May 12, 2009)

COMMENTS:
• At the City Council Meeting which lasted only 38 minutes, Council Members PAULA HAZDOVAC, GERARD ROSE, KAREN SHARP, KEN TALMAGE & SUE McCLOUD unanimously approved each and every Reolution for the Sale of the Flanders Mansion Property without any substantive discussion.

• Frequent users of Mission Trail Nature Preserve note that not one of the City Council Members are regular users of Mission Trail Nature Preserve; therefore individually and collectively, they do not have an understanding or appreciation of the intrinsic and integral part Flanders Mansion has as part of Mission Trail Nature Preserve from both a physicial and historical perspective.

CITY COUNCIL MEETING ON PROPOSED SALE OF THE NATIONAL REGISTER OF HISTORIC PLACES RESOURCE FLANDERS MANSION

ABSTRACT: Today, commencing at 4:30 P.M., the City Council will hold a City Council Meeting on the proposed Sale of the Flanders Mansion Property. After public comment, it is anticipated the City Council will consider a Resolution Certifying the Recirculated Final Environmental Impact Report for the Flanders Mansion Project; a Resolution Adopting a Mitigation Monitoring and Reporting Program, Conditions of Sale, A Declaration of Conditions, Covenants and Restrictions to Be Recorded against the Property, and Conditions of Lease; a Resolution adopting a Statement of Overriding Considerations; a Resolution Adopting a Project for Implementation: Sale of Flanders Mansion Parcel with Conservation Easements and Mitigation and a Resolution of Notice of Proposed Discontinuance of Public Park Land and Setting Date for Hearing of Protests Against Sale of Public Park Land. The AMENDED NOTICE OF SPECIAL CITY COUNCIL MEETING is reproduced and a COMMENT is made regarding the City Council and the future of the Flanders Mansion Property.

AMENDED NOTICE OF SPECIAL CITY COUNCIL MEETING
Special Meeting
Tuesday, May 12, 2009 - 4:30 pm
Council Chambers
East side of Monte Verde Street between Ocean and Seventh Avenues

I. Call to Order

II. Roll Call

III. Pledge of Allegiance

IV. Orders of Council
A. Consideration of a Resolution Certifying the Recirculated Final Environmental Impact Report for the Sale of the Flanders Mansion Property.

B. Consideration of a Resolution Adopting a Mitigation Monitoring and Reporting Program, Conditions of Sale, A Declaration of Conditions, Covenants and Restrictions to Be Recorded against the Property, and Conditions of Lease.

C.Consideration of a Resolution Adopting a Statement of Overriding Considerations.

D. Consideration of a Resolution Adopting a Project for Implementation: Sale of Flanders Mansion Parcel with Conservation Easements and Mitigation.

E. Consideration of a Resolution of Notice of Proposed Discontinuance of Public Park Land and Setting Date for Hearing of Protests Against Sale of Public Park Land.

V. Adjournment

COMMENT:
• Instead of considering the aforementioned Resolutions, the City Council would be wise to provide policy direction to the City Administrator to begin formal discussions with representatives of the Flanders Foundation for the purpose of determining a public use for the Flanders Mansion and entering into a long-term lease agreement with the Flanders Foundation for the benefit of the public and future generations of Carmelites.

ADDENDUM:
Special City Council Meeting Agenda Packet, Tuesday, May 12, 2009

Flanders Mansion Property: Information Carmelites Should Know to Make an Informed Decision

ABSTRACT: Information about the Flanders Mansion all Carmel residents and voters should know to make an informed decision about the proposed sale of the Flanders Mansion Property is presented because only a well-informed populace can make sound public-policy decisions, particularly regarding the future of a City-owned National Register of Historic Places resource.


With regard to the City of Carmel-by-the-Sea’s proposed Sale of the Flanders Mansion Property, it is important for Carmel-by-the-Sea residents and voters to be fully informed about all of the issues surrounding the Flanders Mansion Property and the consequences of a sale of the Flanders Mansion Property. Important information to consider is presented in six categories, including, as follows:

• HISTORY OF FLANDERS MANSION

• FLANDERS MANSION IN THE CONTEXT OF MISSION TRAIL NATURE PRESERVE

• MISSION TRAIL NATURE PRESERVE MASTER PLAN & ENVIRONMENTAL IMPACT REPORTS ON THE SALE OF THE FLANDERS MANSION PROPERTY

• THE FLANDERS FOUNDATION

• WRIT OF MANDAMUS FOR THE FLANDERS FOUNDATION VS. CITY OF CARMEL-BY-THE-SEA, ET AL.

• CITY EXPENDITURES TOWARDS THE SALE OF THE FLANDERS MANSION PROPERTY & CITY BUDGET

HISTORY OF FLANDERS MANSION:

• In the early 1920s, real estate developer Paul Flanders and his Carmel Realty Company partners purchased the “Flanders parcel,” which he intended to develop for residential use. In 1968, the City denied Flanders his proposed subdivision of Flanders parcel into 65 townhouses. Later, in 1969, the City denied Flanders resubmitted application for 45 units. Finally, in 1972, the City again denied Flanders application to subdivide Flanders parcel into 1-arce parcels. Then, in 1972, the City purchased the 14.9-acre Flanders Property for $275,000 and in 1973 the City merged the 17.5-acre Doolittle property to the 14.9-acre Flanders Property to form parkland, now Mission Trail Nature Preserve. Ergo, from the public’s perspective, the Flanders Mansion has not been viewed as a house in the Hatton Fields neighborhood; rather Flanders Mansion has been seen as a Mansion in a Preserve/Park.

• Flanders Mansion was designed by noted San Francisco architect, Henry H. Gutterson. In 1924, Gutterson was hired by Paul and Grace Flanders to design their 5,559 square foot home and gardens within a park-like setting. The resulting building called “Outlands”, an English cottage design, (a sub-style of the Tudor Revival), was one of the first structures in Carmel of this pictorial style of architecture. It was listed on the National Register of Historic Places under local significance in 1989.

• Since the City’s acquisition of the Flanders Mansion in 1972, the Flanders Mansion has been used as an art institute, offices for the Carmel Heritage Society, offices and library for the Lester Rowntree Arboretum Committee, and housing for a city administrator and caretaker and 1995 Alliance on Aging Decorator Showcase.

• Although a Task Force was established to make recommendations for the long-term use of the Flanders Mansion, City Councils have rejected proposals, including a youth hostel, culinary institute and use by CSUMB. Furthermore, City Councils have historically not made a commitment to work cooperatively with a group to determine a suitable use and then implement that identified low intensity public use.

FLANDERS MANSION IN THE CONTEXT OF MISSION TRAIL NATURE PRESERVE:

• The Flanders Mansion Property is located within, and surrounded on all sides by, the City’s largest park, 35-acre Mission Trail Nature Preserve. Immediately east of the Flanders Mansion property is a part of the Preserve known as the Lester Rowntree Arboretum, a native plant garden/arboretum. The Flanders Mansion Property is considered an integral part of the Missions Trail Nature Preserve because it provides park benefits and also facilitates the use of other areas of the 35-acre preserve; no physical boundaries separate the Flanders Mansion Property from the remaining portion of the Mission Trail Nature Preserve. The grounds of the Flanders Mansion property have historically been used by the public for passive recreational activities and the property provides a number of park benefits.

• The Flanders Mansion is considered an integral part of the visual character of the area by providing a unique architectural element that is visually distinct and reflective of Carmel-by-the-Sea’s rich and diverse history. The Mansion represents an important visual landmark within the Mission Trail Nature Preserve and its integration into the Mission Trail Nature Preserve significantly enhances the visual experience of park visitors.

CITY’S MISSION TRAIL NATURE PRESERVE MASTER PLAN & ENVIRONMENTAL IMPACT REPORTS ON THE SALE OF THE FLANDERS MANSION PROPERTY & GENERAL PLAN:

• The City’s Mission Trail Nature Preserve Master Plan indicates that the Flanders Mansion is an intrinsic part of the preserve and the surrounding area. The sale of the Flanders Mansion would have the effect of removing the property from public use.

• The Environmental Impact Reports on the Sale of the Flanders Mansion Property identified two “significant and unavoidable” environmental impacts, as follows:

1. Sale of the Flanders Mansion Property would result in environmental impacts due to the permanent loss of parkland that have the potential to conflict with certain goals, objectives and policies identified in the City of Carmel-by-the-Sea General Plan/Coastal Land Use Plan intended on minimizing impacts to parkland and promoting public use of publicly owned parkland.

2. Sale of the Flanders Mansion Property would result in the loss locally significant parkland that is considered an integral component of the Mission Trail Nature Preserve.

• The Environmental Impact Reports identified “Potentially inconsistent” goal, objective and policy of the City’s General Plan/Coastal Land Use Plan Coastal Resource Management Element, as follows:

G5-6 Preserve and acquire open space and parks. (LUP)

O5-21 Optimize public use of City parks.

P5-107 Provide for public access and passive enjoyment of City parks and open space.

• As stated in the Environmental Impact Report, the “sale of the property would effectively result in the permanent loss of parkland located within the Mission Trail Nature Preserve. Although the sale of the Flanders Mansion Property would represent a relatively small reduction in the total amount of parkland (2% of all parkland) in the City of Carmel-by-the-Sea, the proposed project would significantly impact the Mission Trail Nature Preserve by directly impacting the cohesive nature of the Preserve.”

“For the purposes of this RDEIR, however, a change in ownership would directly impact the integrity of the Mission Trail Nature Preserve by eliminating access to and certain views of a portion of the park currently used by park visitors. Moreover, the Flanders Mansion and property are recognized in the Mission Trail Nature Preserve Master Plan as being an integral component of the Preserve. The sale of the Flanders Mansion to a private person or organization would remove 1.252 acres of parkland currently accessible by the public from the surrounding park setting. The sale of the Flanders Mansion is considered significant due to 1) the property’s location entirely within the Mission Trail Nature Preserve; 2) the property’s role in providing park benefits; 3) the presence of the Flanders Mansion, which adds significantly to the public experience of the park; and 4) the proximity of the property to the Lester Rowntree Arboretum."

• If the 1.252-acre Flanders Mansion Property Project site was sold as a single-family residence, it is assumed fences, walls and other means of partitioning the parcel from the remainder of the Mission Trail Nature Preserve and the permanent loss of public access to the Flanders property would result. Specifically, these types of exterior elements could create a visual barrier that would impact views from the Lester Rowntree Arboretum and adjacent trails as well as physically separate the Flanders Property from the Mission Trail Nature Preserve. These features would detract from the intact nature of the Preserve and thereby impact the Preserve’s existing visual integrity. Any intrusive visual or physical separation of the house from the park would be a substantive adverse change.

THE FLANDERS FOUNDATION:

• The Flanders Foundation, incorporated in 1999, is the sole non-profit organization dedicated to the preservation, enhancement and maintenance of the Flanders Mansion property as an “historic, cultural and educational resource for the benefit of residents and visitors to Carmel-by-the-Sea.” Additionally, with the assistance of a grant from the National Trust for Historic Preservation, the Flanders Foundation developed a Business Plan for Flanders Mansion addressing how Flanders could be restored and maintained long-term with a lease. Moreover, in over nine years as mayor of Carmel-by-the-Sea, Sue McCloud has refused to meet with Flanders Foundation representatives to establish a relationship with the Flanders Foundation similar to the City’s relationship with the Carmel Heritage Society when the City leased Flanders Mansion to the Society for $1.00 per year and determine and implement a suitable use of the Flanders Mansion compatible with the Hatton Fields neighborhood.

WRIT OF MANDAMUS FOR THE FLANDERS FOUNDATION VS. CITY OF CARMEL-BY-THE-SEA, ET AL.:

• In August 2007, Amended Judgment Granting Petition for Writ of Mandamus for The Flanders Foundation vs. City of Carmel-by-the-Sea and City Council of the City of Carmel-by-the- Sea (Mont. Co. Super. Ct. Case No. M76728), filed August 10, 2007 found the EIR to be inadequate because the City of Carmel-by-the-Sea failed to provide substantial evidence, in the form of an economic analysis, documenting that the environmentally superior alternative, lease of the Flanders Mansion, was considered infeasible. In addition, the city’s certification and other resolutions failed to recognize the Flanders Mansion parcel had historically been considered part of the park. The petition for the Writ of Mandamus raised challenges under CEQA, the Carmel-by-the-Sea Municipal Code, and the California Government Code, all in connection with the proposed sale of the Flanders Mansion by its owner, the City of Carmel-by-the-Sea.

CITY EXPENDITURES TOWARDS THE SALE OF THE FLANDERS MANSION PROPERTY & CITY BUDGET:

• As of April 2009, the City of Carmel-by-the-Sea had expended a minimum of, excluding city staff costs, $618,086.69 towards the sale of the Flanders Mansion Property, including EIR and other consultant costs, legal and associated costs and other miscellaneous costs.

• The City of Carmel-by-the-Sea has identified “the primary purpose of the proposed sale is to divest the City of the Flanders Mansion Property which is in need of significant short-term and long-term repair and rehabilitation.” However, for Fiscal Year 2008/09, the City Budget is $14,004,091 and as of June 30, 2008, the City had over $10 million in reserve funds.

SOURCES:
City Council Flanders Agenda Packet May 12 2009

RECIRCULATED DRAFT ENVIRONMENTAL IMPACT REPORT FOR THE SALE OF FLANDERS MANSION PROPERTY (RDEIR)

Recirculated Final ENVIRONMENTAL IMPACT REPORT For The SALE OF FLANDERS MANSION PROPERTY (RFEIR)

Flanders Foundation

Flanders Foundation Attorney Susan Brandt-Hawley’s Testimony on Reasons Why the City’s Proposed Sale of the Flanders Mansion Property is ‘Unlawful’

ABSTRACT: In oral testimony at the Special City Council Meeting on April 28, 2009, Flanders Foundation Attorney Susan Brandt-Hawley presented reasons why what the City is proposing is “unlawful.” Attorney Brandt-Hawley covered proper procedures for the setting of Commission meetings, California Government Code 54220 dealing with “surplus land,” the Economic Analysis, the Environmental Impact Report for the Sale of the Flanders Mansion Property, the City’s General Plan and the Statement of Overriding Considerations. A COMMENT is made with regard to the successful resolution of this matter.

Susan Brandt-Hawley, Attorney for Flanders Foundation:

"...Thank you very much. I appreciate it. First of all, under the Environmental Defense Project Case recently, the Planning Commission should have been able to act before this hearing was set, this hearing before you is premature because you haven’t had the time to consider recommendations before setting this hearing, so that is premature."

"I’d also like to follow up on the comments by Jim Wright regarding the Government Code 54220. As you know the Superior Court found that this City must comply with that section of the Government Code in any future consideration of the sale of the Flanders because the Mansion must be offered for sale or lease to both park agencies, public agencies and most concerned with affordable housing. You haven’t done that, you haven’t declared a surplus and you haven’t discussed the environmental implications in your EIR of what that could mean. There’s nothing in the Government Code that says your Conditions of Sale must be honored in such a transaction, so there could be affordable housing, moderate income housing, all kinds of things could happen because you have this double whammy here where you have not only a National Register building but parkland and there’s all these special conditions. The EIR does not look at this and I would suggest that you can’t approve this today without looking at those impacts which are very real and very special things that apply."

"The Economic Report that’s prepared should have been in the EIR and should have been subjected to city review and public comment as part of that. Beyond that the economic report doesn’t do what it needs to do...but the Court told the City that you hadn’t found infeasibility of a project that would avoid the sale of Flanders And this is not a matter of profit, and I know Mr. Lloyd said a similar thing, but the economic analysis is not about whether or not the City is going to make, have a profitable way of leasing Flanders, the question is ‘Is it practical to proceed with the ownership in a financial way’ and there’s nothing in the record that indicates that the City needs revenues, that the city can’t afford to fix Flanders or most importantly that at the end of the day if the city rehabilitates Flanders that it will be left in an untenable economic position. The economic report says that the Mansion is worth a certain amount of money, I think its $2.8 million, that it may cost a little over $1 million to fully rehabilitate it. It also says that at the end of that time Flanders will be worth $4 million that in fact the value of the property, even on the market, is going to be the current value plus whatever money you put into it. It’s not a matter of you are going to put a bunch of money into a building and then it’s going to be worth less. That might be something one could argue is some kind of economic issue. Beyond that, when you have parkland, it’s a public amenity and the economic return is really not the question and your General Plan says so."

"Moving to the General Plan issues; there’s a lot more information in this record than there was the last time that this Council approved the sale of Flanders and the General Plan provisions that are substantive are being violated here. There’s no balancing...your findings say that you’re balancing the policies in the General Plan. But what you have on one side is a whole list of policies that others have spoken to today, that indicate that you want to preserve parkland, that you want to preserve open space that you want to preserve this kind of amenity. The other policies that you are claiming to balance just say that if in fact you divest yourself of Flanders certain things have to happen. Those aren’t substantive policies. That’s responding to something like maybe there’s some imperatives that would force you to sell and in that event certain things would need to happen. But those aren’t substantive policies that can be balanced and the EIR analysis was correct that in fact this sale would be inconsistent with those General Plan policies. Therefore you can’t really go ahead and do it and there’s no way to balance that away."

"The Statement of Overriding Considerations you can’t really get to because you can’t show that it’s infeasible to keep Flanders. But if you do get to the Statement of Overriding Considerations it’s not supported by substantial evidence. The factors that you’re claiming are public benefits are in fact inconsistent with the General Plan. And it’s very similar to what happened in a case, a little bit similar; Uphold our Heritage vs. Town of Woodside in which Steve Jobs of Apple Computer wants to demolish a historic resource and the City approved it, approved the demolition a few years back and said they had to find some kind of overriding public benefit and what they said was well it will increase open space because we are going to demolish a 18,000 sq. ft. building, he wants to build a 6,000 sq. ft. building, and therefore you’ll have a net increase in open space. And the court said no, that’s totally against your General Plan you don’t demolish historic buildings to create open space. That’s really not a public benefit. And you are doing pretty much the same thing here. You’re calling a public benefit something that’s divesting parkland and historic resources in a manner that your General Plan, none of your plans have contemplated. That is not a significant public benefit and you can’t justify this project by that."

"The EIR is inadequate both for failing to look at the surplus land impacts; also it failed to adequately respond to comments. There were comments made about the importance of the City looking at its revenues, looking at its needs justifying somehow this sale by showing that there are city needs that can’t be met unless this sale occurs. None of that’s in the record and the EIR is inadequate for failing to look at that."

"A little bit more then on the economic analysis; the experts here explain that there weren’t really comparables and that’s true...They talk about medical buildings and office buildings and comparing things. This is such a unique property, there aren’t comparables. There isn’t a way to say that there wouldn’t be a market for it or to talk about what the market would be for it. Ms. Sedway tonight said there was “little market” quote unquote for it and that they didn’t really have comparables. And you cannot rely on a report that admittedly doesn’t have the kind of backup that you would need to justify."

"...I really appreciate the time...Thank you very much."

(Source: Archived Videos, Special City Council Meeting, April 28, 2009, 01:41:50 – 01:49:15)

COMMENT:
• The City Council would be wise to soberly reflect on the statements made by Flanders Foundation attorney Susan Brandt-Hawley, abandon an entrenched, backward looking, antagonistic mindset as displayed by City Council Members Gerard Rose and Paula Hazdovac and direct the City Administrator to resolve this matter in a good faith, constructive and amicable manner in partnership with the Flanders Foundation.

ADDENDUM:
CALIFORNIA GOVERNMENT CODE SECTION 54220
54220. (a) The Legislature reaffirms its declaration that housing is of vital statewide importance to the health, safety, and welfare of the residents of this state and that provision of a decent home and a suitable living environment for every Californian is a priority of the highest order. The Legislature further declares that there is a shortage of sites available for housing for persons and families of low and moderate income and that surplus government land, prior to disposition, should be made available for that purpose.

(b) The Legislature reaffirms its belief that there is an identifiable deficiency in the amount of land available for recreational purposes and that surplus land, prior to disposition, should be made available for park and recreation purposes or for open-space purposes. This article shall not apply to surplus residential property as defined in Section 54236.

(c) The Legislature reaffirms its declaration of the importance of appropriate planning and development near transit stations, to encourage the clustering of housing and commercial development around such stations. Studies of transit ridership in California indicate that a higher percentage of persons who live or work within walking distance of major transit stations utilize the transit system more than those living elsewhere. The Legislature also notes that the Federal Transit Administration gives priority for funding of rail transit proposals to areas that are implementing higher-density, mixed-use development near major transit stations.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
UPHOLD OUR HERITAGE,
Plaintiff and Respondent,
v.
TOWN OF WOODSIDE,
Defendant and Appellant;
STEVEN JOBS,
Real Party in Interest and Appellant.

A113376
(San Mateo County
Super. Ct. No. 444270)

IN PRAISE OF...

ABSTRACT: With regard to the Special City Council Meeting on Tuesday, April 28, 2009, recognition is given to members of the public who spoke in support of retaining the Flanders Mansion Property as a city-owned property in an intact Mission Trail Nature Preserve, a NOTE communicating the date of the continued Special City Council Meeting and COMMENTS are made about remarks made by City Attorney Don Freeman and Mayor Sue McCloud.

IN PRAISE OF...all members of the public who spoke at the Special City Council Meeting on Tuesday, April 28, 2009 in support of the preservation, protection, enhancement of parkland and open space, honoring the General Plan, Local Coastal Program and Mission Trail Nature Preserve Master Plan and retaining the Flanders Mansion Property in City ownership as a public park for present and future generations, as follows:

Francis (Skip) Lloyd
Darby Worth
Karen Ferlito
Roberta Miller
Melanie Billig (President Flanders Foundation)
Virdette Brumm
Yoko Whitaker (Flanders Foundation)
Barbara Brooks
Richard Stiles
Joyce Stevens
James Wright
James Emery (Carmel Residents Association)
Shirley Humann
John Hicks
Susan Brandt-Hawley (Attorney, Flanders Foundation)
Harvey Billig
Mike Brown
Barbara Stiles
Barbara Mearns (“Carmel is Special! Do not sell our Family Jewels!!!" Sign)
Barbara Livingston

NOTE:
After all of the public comments and upon the recommendation of City Attorney Don Freeman, the City Council continued the Special Meeting to Thursday, May 14, 2009 at 4:30 P.M. Written comments on new information not previously presented for the record will be accepted by the City until 5:00 P.M. Monday, May 4, 2009.

COMMENTS:
• When the Special City Council Meeting reconvened after a 45 minute break following nearly 90 minutes of public testimony, City Attorney Don Freeman communicated his recommendation to the City Council that the meeting be continued to Thursday, May 14, 2009, because of his concerns regarding information released by the City that day, apparently comprising over one hundred pages, and giving the public adequate time to review the information and the opportunity to submit new information in the form of written comments to the City for the purpose of compiling a record for the Sale of the Flanders Mansion Property. Question: If City Attorney Don Freeman is sincerely concerned about the City giving the public ample opportunity and time to review all of the materials relevant to the Sale of the Flanders Mansion Property Project, then why didn’t he intervene earlier for the purpose of seeing that the Forest and Beach Commission, Historic Resources Board, Planning Commission and City Council meetings were rescheduled to allow more time between public hearings than the nine days between April 20 and April 28, 2009?

• At the end of the meeting, Mayor Sue McCloud stated, as follows:
“Your council got this stuff at the same time it was available to the public and we stayed up burning the midnight oil to get it read and prepared for today, so there’s a little bit of sour grapes there, we just had some very good grapes actually...that, you know, we got the stuff and we were able to do it and there are several people here, like the majority of Council who work full time...”

The relevant issue is not the public having access to public information at the same time as City Council Members, rather the issue is respect for her constituents to the extent that ample time is given by the City to members of the public to read and review all materials produced by the City on the Sale of the Flanders Mansion Property. Furthermore, her remarks betray a disregard, even contempt, for the public and are unbecoming any public servant!

(Source: Archived Videos, Special City Council Meeting, April 28, 2009)

HIGHLIGHTS of the Special City Council Meeting Agenda Packet regarding the Sale of the Flanders Mansion Property Project

ABSTRACT: Regarding the Sale of the Flanders Mansion Property Project, the Special City Council Meeting Agenda of 28 April 2009 is reproduced, as are selected excerpts from the Staff Reports comprising the Agenda Packet. On the Agenda are the following: Consideration of an Economic Analysis Report of the Flanders Mansion Property; Resolution certifying the Recirculated Final Environmental Impact Report for the Flanders Mansion Project; a Resolution adopting a Mitigation Monitoring and Reporting Program for environmental impacts and Conditions of Sale and Covenants to be recorded to run with the land, or Conditions of Lease; a Resolution adopting a Statement of Overriding Considerations; a Resolution adopting a project for implementation: Sale of Flanders Mansion Parcel with conservation easements and mitigations; and a Resolution of Notice of Proposed Discontinuance of Public Park Land and setting a date for hearing of protests against the sale of public park land. (Note: Said resolution sets the hearing on any protests against sale for regular City Council meeting on June 2, 2009 at 4:30 P.M.) Previously, on April 20, 2009, the Forest and Beach Commission forwarded a recommendation to the Planning Commission that the RFEIR is adequate per CEQA Guidelines section 15151 with respect to issues affecting the Mission Trails Nature Preserve and the Historic Resources Board forwarded a recommendation to the Planning Commission that the RFEIR is adequate per CEQA Guidelines section 15151 with respect to issues affecting historic resources and aesthetics. On April 23, 2009, the Planning Commission made the following findings: (1) That the RFEIR is adequate per section 15151 of the CEQA Guidelines; (2) That sale of the Flanders Mansion property with Conservation Easements and Mitigation for residential use or lease of the Flanders Mansion property for residential use is consistent with the General Plan; (3) That the mitigations identified in the RFEIR should be adopted; and (4) That in Mitigation Measure 4.3-1, the required Preservation Plan should be reviewed and approved by the Historic Resources Board. As part of RESOLUTION NO. 2009-__ A RESOLUTION ADOPTING A STATEMENT OF OVERRIDING CONSIDERATIONS “WHEREAS, the City Council has balanced the specifically-identified benefits of the Sale of the Flanders Mansion with Conservation Easements and Mitigation, against the significant and unavoidable impacts identified in the Recirculated Final Environmental Impact Report, and determined the identified benefits outweigh the environmental impacts and, as a result, those environmental impacts are acceptable.” Lastly, pursuant to Government Code section 38440 et seq., final implementation of any sale of this parkland property will require a vote of the people. The citizens of Carmel-by-the-Sea will decide directly whether the benefits of selling the property with conservation easements and mitigations, outweigh the environmental harm of losing public access to 1.252 acres of parkland. COMMENTS are made regarding the politicizing of the issue and over control of the process by Mayor Sue McCloud.
Note: The City is relying on the conclusions of CBRE Consulting, Inc. to support the City’s claim that specific economic, social, or other conditions make infeasible certain project alternatives or mitigation measures which substantially lessen the significant environmental effects of the project and therefore allow the City to approve the project in spite of one or more significant environmental effects. However, the fact that an alternative may be more expensive or less profitable is not sufficient to show that the alternative is financially infeasible. What is required is evidence that the additional costs or lost profitability are sufficiently severe as to render it impractical to proceed with the project. What constitutes “sufficiently severe” is open to interpretation by others and potentially a judge.

Special City Council Meeting Agenda
Tuesday, April 28, 2009 4:30 pm
Council Chambers
East side of Monte Verde Street between Ocean and Seventh Avenues

IV. Orders of Council
A. Consideration of an Economic Analysis Report of the Flanders Mansion Property prepared by CBRE Consulting, Inc.

B. Consideration of a Resolution Certifying the Recirculated Final Environmental Impact Report for the Flanders Mansion Project.

C. Consideration of a Resolution adopting a Mitigation Monitoring and Reporting Program for environmental impacts and Conditions of Sale and Covenants to be recorded to run with the land, or Conditions of Lease.

D. Consideration of a Resolution adopting a Statement of Overriding Considerations.

E. Consideration of a Resolution adopting a project for implementation: Sale of Flanders Mansion Parcel with conservation easements and mitigations.

F. Consideration of a Resolution of Notice of Proposed Discontinuance of Public Park Land and setting a date for hearing of protests against the sale of public park land.

V. Adjournment

CITY OF CARMEL-BY-THE-SEA
STAFF REPORT
TO: MAYOR McCLOUD AND COUNCIL MEMBERS
FROM: RICH GUILLEN, CITY ADMINISTRATOR
DATE: 28 APRIL 2009
SUBJECT: CONSIDERATION OF STAFF RECOMMENDATION ON THE RECIRCULATED FINAL ENVIRONMENTAL IMPACT REPORT AND THE SALE OF THE FLANDERS MANSION PROPERTY

CEQA requires the City Council to balance economic, legal, social, and technological benefits of a proposed project against its unavoidable environmental risks (CEQA Guidelines § 15093(a)). If specific economic, social, or other conditions make infeasible certain project alternatives or mitigation measures which substantially lessen the significant environmental effects of the project, the City may approve the project in spite of one or more significant environmental effects. However, CEQA does not authorize an agency to proceed with a project that will have significant unmitigated effects on the environment, based simply on a weighing of those effects against the project's benefits, unless the measures necessary to mitigate those effects are truly infeasible. Economic viability is one of the factors that may be taken into account in addressing the feasibility of an alternative. The fact that an alternative may be more expensive or less profitable is not sufficient to show that the alternative is financially infeasible. What is required is evidence that the additional costs or lost profitability are sufficiently severe as to render it impractical to proceed with the project. “Feasible” means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social, and technological factors. In order to approve a project or alternative that would have a significant, unmitigatible environmental impact, the City will be required to make findings identifying the specific considerations that make infeasible the environmentally superior alternatives and the specific benefits of the project which outweigh the environmental harm.

The Flanders Mansion RFEIR identifies 14 impacts. Of these, 12 can be reduced to less-than-significant levels by adopting mitigations. Of the two remaining impacts, one is significant and unavoidable (selling parkland) and the other is potentially significant and unavoidable (conflicts with General Plan policies). As discussed above, staff recommends that the Council determine that there is no conflict with the General Plan and, therefore, there is no significant-and unavoidable impact related to this issue.

The RFEIR identifies three project alternatives that would avoid this significant-and-unavoidable impact:
• Lease as a single-family residence
• Lease as a public or quasi-public use
• No Project (do not sell or lease)

If the City Council chooses to sell the Flanders Mansion property it must adopt the last of the three findings identified above in Section 15091: Specific economic, legal, social, technological or other considerations make infeasible the mitigation measures or project alternatives identified in the final EIR. There must be substantial evidence in the record to support such a finding and there must be a rationale to connect the evidence to the conclusion.

The Council also would need to determine that the remaining significant impact is
acceptable due to overriding considerations. This is achieved by adopting a Statement of Overriding Considerations that explains to the public the basis for the Council’s decision.

CITY OF CARMEL-BY-THE-SEA
DEPARTMENT OF COMMUNITY PLANNING AND BUILDING
STAFF REPORT
TO: MAYOR MCCLOUD AND CITY COUNCIL MEMBERS
THROUGH: RICH GUILLEN, CITY ADMINISTRATOR
FROM: SEAN CONROY, PLANNING SERVICES MANAGER AND
BRIAN ROSETH, PLANNING CONSULTANT
DATE: 28 APRIL 2009
SUBJECT: CONSIDERATION OF PLANNING ISSUES RELATED TO THE RECIRCULATED FINAL ENVIRONMENTAL IMPACT REPORT AND THE SALE OF THE FLANDERS MANSION PROPERTY.

IV. GENERAL PLAN CONSISTENCY

Carmel’s General Plan does not contain decisive policies on the issue of whether to sell Flanders Mansion, lease it, or just keep it for Municipal uses. However, the General Plan does include policies that anticipate the possible sale of the Flanders Mansion property (General Plan Policies P5-141, P5-142 and P5-143, shown below). These policies support a conclusion that selling the property would be consistent with the General Plan. (In the policies below, the Flanders Mansion is referred to by its historical name: Outlands)

P5-141 If retained by the City, preserve the Outlands property and grounds at Mission Trail Nature Preserve consistent with its status as a nationally registered historical resource.

P5-142 If retained by the City, utilize the Outlands property at Mission Trail Nature Preserve in a manner beneficial to the residents of Carmel-by-the-Sea while minimizing its expense to the City.

P5-143 If retained by the City, support uses at the Outlands property that are compatible with its location in Mission Trail Nature Preserve and adjacent to the Rowntree Native Plant Garden and Hatton Road neighborhood.

In writing the RFEIR, the consultant identified four policies that are potentially inconsistent with a sale of Flanders Mansion.

“G5-6: Preserve and acquire open space and parks.”
“Potentially inconsistent..."

"O5-21: Optimize public use of City parks.”
“Potentially inconsistent..."

“P5-46: Preserve and protect areas within the City’s jurisdiction, which due to their outstanding aesthetic quality, historical value, wildlife habitats or scenic viewsheds, should be maintained in permanent open space to enhance the quality of life. Such acquired areas would be left in a natural state or restored for aesthetic and/or wildlife purposes.”
“Potentially inconsistent..."

“P5-107: Provide for public access and passive enjoyment of City parks andopen space.”
“Potentially inconsistent..."

So, three policy statements anticipate a sale, yet four policy statements conflict with a sale. Since California statutes require General Plans to be internally consistent, an analysis of General Plan consistency for a proposed project must always proceed from an assumption that if policies appear to conflict they can be harmonized. The EIR consultant identified all of these policies as “potentially inconsistent” because only the City can resolve the tension between these two policy groups.

To harmonize the policies that anticipate a sale with the policies that conflict with the loss of public parkland, staff recommends that the City Council consider the broader context of parkland within the City. Within a City-wide context the various policies in the City’s General Plan are not necessarily in conflict. The Plan can support parks, conservation and recreation in general terms while permitting a sale of parkland at a specific site. Viewed in this larger context, selling the Flanders Mansion property would not be inconsistent with the General Plan.

Ultimately, the City Council must balance the competing policy objectives to reach a determination regarding General Plan consistency. In 2005, both the Planning Commission and the City Council determined that selling the Flanders Mansion property was not inconsistent with the General Plan. The Superior Court upheld this determination and stated “The City is entitled to deference in its determination of conformity with the General Plan.”

CITY OF CARMEL-BY-THE-SEA
RESOLUTION NO. 2009-__
A RESOLUTION CERTIFYING THE RECIRCULATED FINAL ENVIRONMENTAL IMPACT REPORT FOR THE SALE OF THE FLANDERS MANSION PROPERTY

Attachment A
General Overview of Documents Supporting Findings.

Project Decision-Making.
1. Review by Advisory Bodies.
a. Finding: On April 20, 2009, the Forest and Beach Commission held a noticed public hearing and forwarded a recommendation to the Planning Commission that the RFEIR is adequate per CEQA Guidelines section 15151 with respect to issues affecting the Mission Trails Nature Preserve.

b. Finding: On April 20, 2009, the Historic Resources Board held a noticed public hearing and forwarded a recommendation to the Planning Commission that the RFEIR is adequate per CEQA Guidelines section 15151 with respect to issues affecting historic resources and aesthetics. The Board also forwarded a recommendation that in mitigation #4.3-1, the required Preservation Plan should be reviewed and approved by the Historic Resources Board.

c. Finding: On April 23, 2009, the Planning Commission held a noticed public hearing and made the following findings:

(1) That the RFEIR is adequate per section 15151 of the CEQA Guidelines;

(2) That sale of the Flanders Mansion property with Conservation Easements and Mitigation for residential use or lease of the Flanders Mansion property for residential use is consistent with the General Plan;

(3) That the mitigations identified in the RFEIR should be adopted; and

(4) That in Mitigation Measure 4.3-1, the required Preservation Plan should be reviewed and approved by the Historic Resources Board.

Finding: The Forest and Beach Commission at a duly-noticed special hearing on April 20, 2009, and the Historic Resources Board at a duly-noticed regular meeting on April 20, 2009, considered the RFEIR (SCH#2005011108) for sale of Flanders Mansion property. The role of the Forest and Beach Commission is to advise the Planning Commission on the whether the RFEIR provides adequate discussion of the project, impacts, alternatives and mitigation measures related to the Mission Trails Nature Preserve and the Flanders Mansion property. The role of the Historic Resources Board is to advise the Planning Commission on the adequacy of the RFEIR regarding historical, cultural and aesthetic issues related to the Flanders Mansion property. The Forest and Beach Commission determined and forwarded advice to the Planning Commission that the RFEIR is adequate to disclose the project’s impacts related to the Mission Trails Nature Preserve and its adjacent neighborhood. The Historic Resources Board determined and forwarded advice to the Planning Commission that the RFEIR is adequate for reviewing impacts, alternatives and mitigations regarding the project's impacts related to historic preservation, cultural resources and aesthetic resources related to public enjoyment of the Flanders Mansion as a historical resource.

Finding: The Planning Commission at a duly-noticed special hearing on April 23, 2009, determined that the RFEIR (SCH#2005011108) for sale of Flanders Mansion property has been completed in compliance with CEQA and that the Sale of the Flanders Mansion property for residential use with Conservation Easements and Mitigation project alternative and lease of the property for residential use are consistent with the General Plan. The Planning Commission further recommended certification of the EIR.

Finding: At a duly-noticed public hearing on this day, following receipt of oral public testimony and documentary evidence, and pursuant to the City Council members' deliberations, the City Council finds that the RDEIR (SCH#2005011108) for sale of Flanders Mansion property has been completed in compliance with CEQA, reflects the independent judgment of the City and by this Resolution certifies the RFEIR. The City Council further finds that the sale of the Property with Conservation Easements and Mitigation (Alternative 6.5) and lease of the Property are not inconsistent with the General Plan. The RFEIR was presented to the Forest and Beach Commission and Historic Resources Board, Planning Commission and the City Council, was independently reviewed and analyzed by the City Council, and was used to review and consider the Flanders Mansion proposed project and its environmental aspects as required by CEQA sections 21082.1 and CEQA Guidelines sections 15090 and 15091.

Evidence:
RDEIR;
RFEIR;
Minutes of Historic Resources Board meeting of April 20, 2009;
Minutes of Forest and Beach Commission meeting of April 20, 2009;
Minutes of the Planning Commission meeting of April 23, 2009;
Minutes of City Council meeting of April 28, 2009 (once prepared).

Statement of Overriding Considerations.
a. Finding: By companion action, A Resolution Adopting a Statement of Overriding Considerations, the City Council is adopting a Statement of Overriding Considerations, including supporting findings and evidence set forth therein, specifically identifies the benefits of the Sale with Conservation Easements and Mitigation Alternative to be approved as the project to be implemented (by companion action, A Resolution Adopting a Project for Implementation: Sale of Flanders Mansion Parcel with Conservation Easements and Mitigation) and finds those specifically-identified benefits outweigh the significant, unavoidable environmental impacts assessed in the RFEIR and found above (in Section G). The Statement of Overriding Consideration being adopted finds, as a result, that the environmental risks of the Sale of the Flanders Mansion parcel with Conservation Easements and Mitigations acceptable.

Notice of Intent to Discontinue Parkland and Setting of Hearing on Protests.
a. Finding:
Pursuant to selection of a project for implementaion which provides for sale of the Flanders Mansion property which is considered parkland, currently owned by the City, the City Council is adopting by companion action this day a Resolution of Notice of Proposed Discontinuance of Public Park Land and Setting Date for Hearing of Protests Against Sale of Public Park Land.

Said resolution contains an accurate description of the public parklands proposed to be sold; state the common name of the park; states the disposition which the legislative body proposes to make of the park; and fixes a time, not less than thirty nor more than sixty days after adoption of the resolution, and a place, at which the public or persons particularly interested may protest.

Said resolution sets the hearing on any protests against sale for regular City Council meeting on June 2, 2009 at 4:30 p.m.

CITY OF CARMEL-BY-THE-SEA
RESOLUTION NO. 2009-__
A RESOLUTION ADOPTING A MITIGATION MONITORING AND REPORTING PROGRAM, CONDITIONS OF SALE, A DECLARATION OF CONDITIONS, COVENANTS AND RESTRICTIONS TO BE RECORDED AGAINST THE PROPERTY, AND CONDITIONS OF LEASE

Attachment A
MITIGATION MONITORING AND REPORTING PROGRAM

Attachment B
CONDITIONS OF SALE FOR THE FLANDERS MANSION PROPERTY

Attachment C
PROVISIONS TO BE CONTAINED IN EASEMENTS AND COVENANTS FOR THE FLANDERS MANSION PROPERTY TO BE RECORDED AND RUN WITH THE LAND

Attachment D
CONDITIONS OF LEASE FOR THE FLANDERS MANSION PROPERTY

CITY OF CARMEL-BY-THE-SEA
RESOLUTION NO. 2009-__
A RESOLUTION ADOPTING A STATEMENT OF OVERRIDING CONSIDERATIONS
WHEREAS, the City Council has balanced the specifically-identified benefits of the Sale of the Flanders Mansion with Conservation Easements and Mitigation, against the significant and unavoidable impacts identified in the Recirculated Final Environmental Impact Report, and determined the identified benefits outweigh the environmental impacts and, as a result, those environmental impacts are acceptable.

Attachment A
FINDINGS AND STATEMENT OF OVERRIDING CONSIDERATIONS: SALE OF FLANDERS MANSION PROPERTY WITH CONSERVATION EASEMENTS AND MITIGATION
Overview of Legal Standards for Approval of a Project or Alternative Despite Significant, Unavoidable Environmental Risks

When approving a project for implementation, the City Council shall mitigate or avoid the project's significant effects on the environment which are identified in an environmental impact report whenever it is feasible to do so. If economic, social, or other conditions make it infeasible to mitigate one or more significant effects on the environment of a project, the project may nonetheless be carried out or approved at the discretion of the City Council. (See Pub. Res. Code, §§ 21002, 21002.1.) The City Council should not approve a project as proposed if there are feasible alternatives or mitigation measures available that would substantially lessen any significant effects that the project would have on the environment. (See Pub. Res. Code, §21002; CEQA Guidelines [Title 14, Cal. Code Regs., § 15000 et seq.], § 15021.) CEQA requires the City Council to balance, as applicable, specifically-identified economic, legal, social or other benefits of a proposed project against its unavoidable environmental risks when determining whether to approve the project. If the specific economic, legal, social or other benefits of a proposed project outweigh the significant, unavoidable adverse environmental impacts, those environmental impacts may be considered acceptable. (See CEQA Guidelines, §§ 15092, 15093.)

If specific economic, social, or other conditions make infeasible certain project alternatives or mitigation measures which substantially lessen the significant environmental effects of the project, the City may approve the project in spite of one or more significant environmental effects. (See Pub. Res. Code, § 21002.) However, CEQA does not authorize an agency to proceed with a project that will have significant unmitigated effects on the environment, based simply on a weighing of those effects against the project's benefits, unless the measures necessary to mitigate those effects are truly infeasible. Economic viability is one of the factors that may be taken into account in addressing the feasibility of an alternative. (See CEQA Guidelines, § 15126.6.) The fact that an alternative may be more expensive or less profitable is not sufficient to show that the alternative is financially infeasible. What is required is evidence that the additional costs or lost profitability are sufficiently severe as to render it impractical to proceed with the project. “Feasible” means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social, and technological factors. (See CEQA Guidelines, § 15364.) In order to approve a project or alternative that would have a significant, unmitigatible environmental impact, the City will be required to make findings identifying the specific considerations that make infeasible the environmentally superior alternatives and the specific benefits of the project which outweigh the environmental harm. (See Pub. Res. Code, §§ 21002, 21002.1, 21081; CEQA Guidelines, §§15092, 15093.)

Alternatives Which Would Substantially Lessen the Significant, Unavoidable Impact of the Sale of the Property Are Infeasible

13. Specific economic and other factors make infeasible the project alternatives which would substantially lessen this impact, specifically leasing the Flanders Mansion property for either single-family residential use or public or quasi-public use.

a. Lease as a single-family residence (one of the lease alternatives described in Section 6.4 of the RFEIR) was determined by the economic expert consultants, CBRE Consulting, Inc. [“CBRE”] to be infeasible in accordance with the legal standard for infeasibility under CEQA following a market study and appraisal by market and valuation experts (CBRE Valuation & Advisory Services), for the reasons described in CBRE's reports. The economic experts recognize and set forth the legal standard for infeasibility under CEQA in their report, at page 6. The CBRE analysis used two tests for infeasibility (1) it is impractical by virtue of a severely limited or nonexistent market for the alternative, and (2) it is impractical due to severe additional cost or lost profitability. The economic experts also relied for their analysis on the assessment by architectural and historic building experts, Architectural Resources Group [“ARG”], of the work needed in order to restore and rehabilitate the Flanders Mansion property, and their estimate of the cost to accomplish that rehabilitation. The economic experts found a single-family residential lease failed both tests and is, therefore, infeasible. In the vicinity of the Property, the market for comparable single-family rentals is exceedingly thin and, in fact, nonexistent where lessees are responsible for rehabilitating a property. Additionally, with the estimated income stream from this alternative, the City would not recover its restoration costs for approximately 17 years.

b. Lease for non-profit use, i.e., public or quasi-public use, (the second of the lease alternatives described in Section 6.4 of the RFEIR) was also determined by the economic expert consultants to be infeasible in accordance with the legal standard for infeasibility under CEQA following a market study and appraisal by market and valuation experts within their firm, for the reasons described in CBRE's reports. The economic experts recognize and set forth the legal standard for infeasibility under CEQA in their report, at page 6. The CBRE analysis used two tests for infeasibility (1) it is impractical by virtue of a severely limited or nonexistent market for the alternative, and (2) it is impractical due to severe additional cost or lost profitability. The Lease for Nonprofit Use alternative did not meet the tests of economic feasibility. In the Property’s immediate area, CBRE Consulting found a very limited market for comparable nonresidential rentals, and here again, a non-existent market for nonresidential rentals when the lessee is required to rehabilitate the property. Furthermore, with the estimated income stream from this alternative, the City would not recover its restoration costs for approximately nine years. The economic experts found a lease for nonprofit use infeasible if the lessee were required to undertake the effort and expense of rehabilitating the property and also infeasible if the City were to undertake the rehabilitation.

c. The economic expert consultants also found infeasible a sale of the Flanders Mansion property with the City required to undertake the rehabilitation prior to sale, for the reasons described in CBRE's reports. The economic experts recognize and set forth the legal standard for infeasibility under CEQA in their report, at page 6.

d. Continued retention of the Property as used in the past (i.e., the “No Project” alternative) fails to achieve several of the City's identified project objectives, including the primary objective and the important secondary objectives of putting the Mansion to productive use and achieving preservation and restoration of this historic building. Economic, social and other factors make a No Project alternative infeasible.

(1) Within the City finances, the City Council has determined within its legislative, budgetary discretion, that the funding required for the City's annual operations and services, the reserves for needed for periodic shortfalls in annual revenue and for other capital and debt-service priorities in the City, such as maintaining and repairing infrastructure and the assets the City intends to retain, take priority over expending the funds needed to historically rehabilitate and maintain the Flanders Mansion building and grounds.

The City Council has proposed the Project because it has determined that the expenditures necessary to maintain, repair and historically rehabilitate the property is not an appropriate priority for the use of annual and reserve funds.

When allocating funds, either from current revenue (e.g., sales tax, property tax, TOT, fees) or from reserves, the City must make choices regarding priorities. Not all capital improvements and needs can receive funding. Assessing future facility needs of the City, and the costs of providing for these needs, are not environmental issues and are not appropriately discussed in an EIR. Attempting to forecast all future needs of the City would be speculative, as would efforts to identify the location, size, costs and potential environmental impacts of such facilities. The City allocates its capital expenditures by using a five-year capital improvements program, updated annually.

The City anticipates ongoing expenses for street repairs, as documented in the 2008 Nichols Report, plus numerous storm drainage projects already appearing in the Capital Improvement Program. Each year, City Departments identify additional capital improvements that will be needed in short-term or long-term time frames. Those related to health or safety, take the highest priority. Those related to capital assets that must provide continuing service are typically next in line for funding. Funding for new facilities such as the Forest Theater upgrade or implementation of the Del Mar and North Dunes Master Plan also must compete for funds.

The Project Alternative of Sale with Conservation Easements and Mitigation Is Economically Feasible, Achieves Project Objectives and Lessens the Environmental Impacts of the Project

The Benefits of a Sale of the Flanders Mansion Property with Conversations Easements and Mitigation

i. Pursuant to Government Code section 38440 et seq., final implementation of any sale of this parkland property will require a vote of the people. The citizens of Carmel-by-the-Sea will decide directly whether the benefits of selling the property with conservation easements and mitigations, outweigh the environmental harm of losing public access to 1.252 acres of parkland in a City that has 65 acres of parkland. Using the ultimate democratic process to determine the fate of the property is a benefit that is inherent in selecting a sale alternative. A lease alternative could be implemented by the Council without the approval of the citizens.

The Specifically-Identified Benefits of the Sale with Conservation Easements and Mitigation Outweigh the Remaining Significant, Unavoidable Impact

17. These specifically-identified benefits of the project outweigh the significant, unavoidable environmental impact which may result of the Sale of the Flanders Mansion with Conservation Easements and Mitigation. As a result, those environmental impact is acceptable.

18. The City Council further finds that, in the event it is determined that the mitigation measures identified by the Recirculated Final Environmental Impact Report above do not reduce the significant environmental impacts identified and analyzed in the RFEIR to lessthan-significant levels, the benefits described above outweigh any and all potential unavoidable adverse impacts of the Project. The City Council further finds that each of the benefits described below is a separate and independent ground for its findings that the benefits of the Project outweigh any and all potential significant and unavoidable adverse environmental impacts of the Project.

RESOLUTION NO. 2009-__
A RESOLUTION ADOPTING A PROJECT FOR IMPLEMENTATION: SALE OF FLANDERS MANSION PARCEL WITH CONSERVATION EASEMENTS AND MITIGATION

CITY OF CARMEL-BY-THE-SEA
RESOLUTION NO. 2009-__
A RESOLUTION OF NOTICE OF PROPOSED DISCONTINUANCE OF PUBLIC PARK LAND AND SETTING DATE FOR HEARING OF PROTESTS AGAINST SALE OF PUBLIC PARK LAND

COMMENTS:
• It is evident from the tone and substance of the Staff Reports prepared by City Administrator Rich Guillen, Planning Services Manager Sean Conroy and Planning Consultant Brian Roseth that the Sale of the Flanders Mansion Property Project has been politicized to the extent politics has overwhelmed planning, park or historic considerations. Moreover, in politicizing this issue, Mayor Sue McCloud has compromised the integrity of city employees and members of the Forest and Beach Commission, Historic Resources Board and Planning Commission.

• To the extent Sue McCloud has had a monopoly of power for nearly nine years as mayor of Carmel-by-the-Sea (she has appointed Commission and Board members beholden to her and her agenda and succeeded in having two former appointees on the City Council presently), she has unfairly biased and prejudiced the process towards a predetermined outcome. Without any checks and balances, without those in city government, elected and appointed, exposing her “over control” of governmental processes, she has denied the public, advisory body members and other council members the requisite time to openly and transparently review and deliberate on the important issues in order to ensure an outcome which is in the best interests of Carmelites and the City of Carmel-by-the-Sea, short-term and long-term.