M76728
FLANDERS FOUNDATION v. CITY OF CARMEL-BY-THE-SEA
Superior Court, County of Monterey
Filing Date: 11-03-05
Category: Judicial Review-Writ Mandate
Petitioner's Attorneys:
Brandt-Hawley Law Group
Susan Brandt-Hawley SBN 075907
Paige Swartley SBN 215340
PETITION FOR WRIT OF MANDAMUS-CEQA
(14 pages total)
Petitioner alleges:
INTRODUCTION
• To enforce laws preventing the unlawful sale of the historic Flanders Mansion
• Sale conflicts with General Plan, Coastal Local Use Plan
• Represents a transfer of a cultural resource out of City's ownership and into private control
• Request EIR be revised to fully comply with CEQA
• Requests peremptory writ to set aside unlawful sale of Flanders Mansion
• "under mandatory provisions of CEQA, the City was therefore required to deny the project unless feasible alternatives were adopted."
• City took "belated, fatuous stance" that Flanders Mansion is not parkland.
JURISDICTION
• Public Resources Code Sections 21168, 21168.5
• Code of Civil Procedure Sections 1085, 1094.5
PARTIES
• Flanders Foundation, a California Nonprofit Public Benefit Corporation, established 1998
• City of Carmel-by-the-Sea and City Council (certified EIR, approved sale, lead agency under CEQA)
GENERAL ALLEGATIONS
• 1.25 acres within Mission Trails Nature Preserve, a 35-acre park; P-2, zoned Improved Parkland
• Built for the Flanders family in 1924
• National Register of Historic Places, 1989
• City purchased "as a portion of a large single parcel of land," 1972.
• Mission Trail, Carmel Mission (1771)
• 1859: Gertrude Atherton, novelist, purchased land; described in "The Splendid Idle Forties."
• Flanders: purchased 80 acres from McDougal of Carnegie Institute in Carmel
• 1950's: Robert Doolitte purchased 16.5 acres
• 1971: Bill Doolittle donated 1/3 and sold remaining to City
• 1972: City purchased Flanders Mansion and 14.9 acres from the Flanders Estate, $275,000.
• September 2004: City Council reviewed list of capital projects, "surplus, underutilized properties."
• November 2004: City Council authorized an EIR
• May 2005: Draft EIR
• August 2005: Final EIR
• EIR cites significant and unavoidable impacts of sale of Flanders Mansion, including conflicts with the General Plan, LCP. Examined 6 alternatives. Alternative 2: Retain and Lease, identified as the environmentally superior alternative. Final EIR added Alternative 6: Reduced Parcel Size, identified as the second environmentally superior alternative.
• Comment letters: cited inadequacy of mitigation measures, deferral of analysis and mitigation of environmental impacts, inadequate discussion of inconsistency with General Plan, LCP. California Office of Historic Preservation, Ms. Messenger cited that a Preservation Plan needed to be included in the EIR.
• Flanders Foundation---since 1999, offered to raise money, pay for maintenance, operating costs and hired a consultant to develop a business plan. National Trust for Historic Preservation is on record stating its desire to assist Flanders Foundation. EIR deficient in not including financial data to determine the need for the project, list of capital improvement facilities, cost of repairs, proceeds of sale.
• National Trust joined Flanders Foundation in supporting EIR Alternative 2; has supported lease option since 1998.
• Shute, Mihaly & Weinberger letter: General Plan inconsistency, Planning Commission Resolution 87-23 (1987), City Council Resolution 88-97 (1988). "The relevant General Plan policies that made the sale of Flanders Mansion inconsistent and incompatible with the General Plan are still relevant today."
• August, September 2005: Planning Commission held public hearing on EIR. City staff; City not in compliance with Section 17.32.210 of Carmel Municipal Code requiring minimum maintenance and upkeep of City resources. Brandt-Hawley cited preservation parlance, "demolition by neglect.
• City staff: Conditions of Sale, residential use, constitutes a rezone to R-1 without going through rezone process which would require Coastal Commission approval.
• Planning Commission: September meeting, found Alternatives 1, 2, 6 consistent with General Plan, EIR adequate, recommended Alternative 2 (second choice Alternative 6), reduce parcel size and parcel Parkland.
• City Council: September 22, 2005 meeting, consulting attorney Bill Connors, "never been used as parkland." Brandt-Hawley cited City staff references in General Plan/LCP to site as parkland and open space.
• Flanders Foundation-: City has not complied with mandatory Government Code procedures for sale of parkland, including election (Gov. Code. Sections 38440-38462)
• Proposed sale of 1.25 acres represents a subset of National Register Property, requiring approval of the National Park Service.
• City Council adopted Findings on October 4, 2005; found project consistent with the General Plan and site not designated or used as a park.
FIRST CAUSE OF ACTION
VIOLATION OF CEQA
a.) City unlawfully approved a project with significant environmental impacts; alternatives and mitigation measures, not adopted.
b.) City unlawfully adopted statement of overriding considerations unsupported by substantial evidence.
c.) EIR, inadequate, incomplete; defers analysis of environmental impacts and development, implementation of mitigation measures and General Plan, Zoning Code, inadequate analysis.
d.) EIR failed to respond to comments adequately.
e.) City failed to make Findings supported by substantial evidence as to feasibility of project alternatives and mitigation measures.
f.) EIR failed in including adequate mitigation measures and monitoring plan, including preservation plan and improperly deferred mitigation assessment.
SECOND CAUSE OF ACTION
VIOLATION OF CALIFORNIA GOVERNMENT CODES
a.) City failed to comply with Gov. Code Sections 38440-38462, procedures for sale of parkland, including a City Council resolution justifying the proposed discontinuance of park use, a public hearing to consider protests, a vote to sustain or overrule protests and the scheduling of a special election if the City Council votes to overrule the protests.
b.) Government Code Section 54222
As parkland, "surplus" land to private party, requires City to offer for sale to other parties ex. Park District, etc.
c.) Government Code Section 65000
Inconsistent with the General Plan; reasons cited include decrease open space in public domain, eliminate areas of aesthetic quality from public domain, could degrade passive recreational environment of Mission Trails Nature Preserve and Rowntree Arboretum.
THIRD CAUSE OF ACTION
VIOLATION OF CARMEL MUNICIPAL CODE
City failed to enforce Title 17.32.210 of the Carmel Municipal Code regarding maintenance and upkeep of historic resource.
Petitioner prays:
1.) Court issues a peremptory writ of mandate to Carmel-by-the-Sea to set aside and void all approvals of sale "pending full compliance" with CEQA, Government Code, LCP, City ordinance.
2.) Petitioners costs and fees.
3.) Other and future relief, court finds proper.
N.B. "The Flanders Foundation explained...the City had allowed the mansion to deteriorate in an indefensible effort to bolster its argument that Flanders Mansion is too costly to repair. City failed to take advantage of state, federal and local grant opportunities and rejected offers by the Flanders foundation, etc. to rehabilitate, maintain and operate Flanders Mansion."
