UPDATE (10 March 2011): View Flanders Foundation PHOTO GALLERY,
HISTORY OF MISSION TRAIL NATURE PRESERVE, FLANDERS MANSION AND THE LESTER ROWNTREE GARDEN & REVIEW OF ENVIRONMENTAL IMPACT REPORTS AND LEGAL CHALLENGES TO SALE OF PARKLAND
PHOTO GALLERY
The house and grounds
Inside the house
Views from the property
Mission Trail Nature Preserve/Park
ABSTRACT: Yesterday, the City Council met in Closed Session to discuss Existing Litigation - Government Code Section 54956.9(a) -Conference with legal counsel regarding The Flanders Foundation, a California Nonprofit Public Benefit Corporation, Petitioner v. City of Carmel-by-the-Sea, Respondents – Monterey County Superior Court Case No. M76728. The original NOTICE included the agenda item, Establish a process for the hiring of an interim city administrator and provide staff direction, in open session, but that item “is being rescheduled,” according to City Clerk Heidi Burch. The NOTICE OF SPECIAL CITY COUNCIL MEETING and City Council Cancelation Notice March 8 2011 are reproduced.
NOTICE OF SPECIAL CITY COUNCIL MEETING
Special Meeting
Tuesday, March 8, 2011 -- 5:00 p.m.
Council Chambers
East side of Monte Verde Street between Ocean and Seventh Avenues
Live video streaming available at:
www.ci.carmel.ca.us
I. Call to Order
II. Roll Call
III. Pledge of Allegiance
IV. Adjourn to Closed Session
A. Existing Litigation - Government Code Section 54956.9(a) -Conference with legal counsel regarding The Flanders Foundation, a California Nonprofit Public Benefit Corporation, Petitioner v. City of Carmel-by-the-Sea, Respondents – Monterey County Superior Court Case No. M76728.
V. Reconvene in Open Session
VI. Orders of Council
A. Establish a process for the hiring of an interim city administrator and provide staff direction.
VII. Adjournment
The City of Carmel-by-the-Sea does not discriminate against persons with disabilities. Carmel-by-the-Sea City Hall is an accessible facility. The City of Carmel-by-the-Sea telecommunications device for the Deaf/Speech Impaired (T.D.D.) number is 1-800-735-2929.
Any writings or documents provided to a majority of the City Council regarding any item on this agenda will be made available for public inspection at Carmel-by-the-Sea City Hall, on the east side of Monte Verde Street, between Ocean and 7th Avenues, during normal business hours.
CARMEL-BY-THE SEA CITY COUNCIL
Please be advised that the following item scheduled to be discussed in open session by the City Council tonight, Tuesday, March 8, 2011, is being rescheduled:
VI. Orders of Council
A. Establish a process for the hiring of an interim city administrator and provide staff direction.
Thank you,
Heidi Burch
City Clerk
City of Carmel-by-the-Sea
Showing posts with label Flanders Foundation v. City of Carmel-by-the-Sea (M99437). Show all posts
Showing posts with label Flanders Foundation v. City of Carmel-by-the-Sea (M99437). Show all posts
Wednesday, March 09, 2011
CITY COUNCIL CLOSED SESSION: Existing Litigation - Government Code Section 54956.9(a) -Conference with legal counsel regarding The Flanders Foundation, a California Nonprofit Public Benefit Corporation, Petitioner v. City of Carmel-by-the-Sea, Respondents – Monterey County Superior Court Case No. M76728
Friday, January 14, 2011
Random Reportings
ABSTRACT: Random Reportings on the Monterey County Subdivision Committee meeting of 13 January 2011, the City's appeal of Judge Kay T. Kingsley's decision regarding The Flanders Foundation v. City of Carmel-by-the-Sea, et al. (M99437), the City's upcoming Workshops and "kitschy" Carmel are presented.
• Yesterday, the Monterey County Subdivision Committee (Chair: Tom Moss, Water Resources Agency; Vice-Chair: James McPharlin, Fire; Secretary: Jacqueline Onciano, RMA Planning; Chad Alinio, RMA Public Works; Roger Van Horn, Environmental Health Bureau; and David Lutes, Parks) met at Monterey County Government Center – Board of Supervisors Chambers and decided to continue agenda item RIGOULETTE, LLC (VILLAS DE CARMELO) – PLN070497 to 24 February 2010 mainly because the record was incomplete as it did not include the Final EIR which was not available.
• On the last day of the “grace period,” 13 January 2011, attorney Jon R. Giffen for Defendant and Appellant City of Carmel-by-the-Sea filed the appellant’s opening brief with the Court, 6th Appellate District. Appellant and respondent, The Flanders Foundation, represented by attorney Susan Brandt-Hawley, is to file respondent’s brief by 14 February 2011.
(Source: 6th Appellate District, Briefs)
• The City’s Fire Service Options Workshop was delayed from 18 January 2011 to “either the first or second Thursday of February” because City Administrator Rich Guillen needed “more time to work on the staff report.” Meanwhile, the City is on schedule to host a Downtown Paid Parking Program Workshop on Thursday, January 27 at 5:00 P.M., City Hall Council Chambers per the City’s PUBLIC NOTICE published today in The Carmel Pine Cone.
(Sources: Fire Services - UPDATE by Jason Burnett & The Carmel Pine Cone, January 14, 2011, PUBLIC NOTICES, pg. 16A)
• "Kitschy" Carmel Definition: “Christmas lights” on Ocean Avenue from Thanksgiving week to mid-March and The Carmel Pine Cone’s “Celebrity Sightings” column. To counter “kitschy” Carmel, there are some voices honoring the traditions and uniqueness of Carmel. Patty Scollan (Herbert Heron’s granddaughter): “One unique thing to savor here was the quiet and darkness one could not find elsewhere. Carmel is a place people come to escape bright lights and to enjoy the peaceful beauty of our village in the woods. Lighting it up like a circus year round is unbelievable.” And Belle: “It was sad to see that the Pine Cone is in such dire straits that they have to resort to turning the general populace into paparazzi. I thought that the charm of Carmel was the anonymity offered to everyone.”
(Source: The Carmel Pine Cone, January 14, 2011, LETTERS to the Editor, “Too many lights,” Patty Scollan, Carmel &” Maps could be next,” Belle, Monterey, pg. 22A)
• Yesterday, the Monterey County Subdivision Committee (Chair: Tom Moss, Water Resources Agency; Vice-Chair: James McPharlin, Fire; Secretary: Jacqueline Onciano, RMA Planning; Chad Alinio, RMA Public Works; Roger Van Horn, Environmental Health Bureau; and David Lutes, Parks) met at Monterey County Government Center – Board of Supervisors Chambers and decided to continue agenda item RIGOULETTE, LLC (VILLAS DE CARMELO) – PLN070497 to 24 February 2010 mainly because the record was incomplete as it did not include the Final EIR which was not available.
• On the last day of the “grace period,” 13 January 2011, attorney Jon R. Giffen for Defendant and Appellant City of Carmel-by-the-Sea filed the appellant’s opening brief with the Court, 6th Appellate District. Appellant and respondent, The Flanders Foundation, represented by attorney Susan Brandt-Hawley, is to file respondent’s brief by 14 February 2011.
(Source: 6th Appellate District, Briefs)
• The City’s Fire Service Options Workshop was delayed from 18 January 2011 to “either the first or second Thursday of February” because City Administrator Rich Guillen needed “more time to work on the staff report.” Meanwhile, the City is on schedule to host a Downtown Paid Parking Program Workshop on Thursday, January 27 at 5:00 P.M., City Hall Council Chambers per the City’s PUBLIC NOTICE published today in The Carmel Pine Cone.
(Sources: Fire Services - UPDATE by Jason Burnett & The Carmel Pine Cone, January 14, 2011, PUBLIC NOTICES, pg. 16A)
• "Kitschy" Carmel Definition: “Christmas lights” on Ocean Avenue from Thanksgiving week to mid-March and The Carmel Pine Cone’s “Celebrity Sightings” column. To counter “kitschy” Carmel, there are some voices honoring the traditions and uniqueness of Carmel. Patty Scollan (Herbert Heron’s granddaughter): “One unique thing to savor here was the quiet and darkness one could not find elsewhere. Carmel is a place people come to escape bright lights and to enjoy the peaceful beauty of our village in the woods. Lighting it up like a circus year round is unbelievable.” And Belle: “It was sad to see that the Pine Cone is in such dire straits that they have to resort to turning the general populace into paparazzi. I thought that the charm of Carmel was the anonymity offered to everyone.”
(Source: The Carmel Pine Cone, January 14, 2011, LETTERS to the Editor, “Too many lights,” Patty Scollan, Carmel &” Maps could be next,” Belle, Monterey, pg. 22A)
Monday, November 29, 2010
City’s Tactic in Flanders Appeal: DELAY
UPDATE: (as of 4 January 2011)
The City failed to file its opening brief by the due date of 27 December 2010. The Court grants appellants a 15-day grace period; the City must file its opening brief by Thursday, 13 January 2011.
Date 12/29/2010
Description Appellant notified re failure to timely file opening brief.
Notes Defendant and Appellant: City of Carmel-by-the-Sea
Attorney: Richard Harray
Description Appeal dismissed for failure to file opening brief.
Due Date 01/13/2011
ABSTRACT: In late March 2010, attorney Richard Harray stated that the City would appeal Judge Kay Kingsley’s decision in Flanders Foundation v. City of Carmel-by-the-Sea, et al. (M99437) to the Sixth District Court of Appeal. Furthermore, it was reported that Harray stated “he doesn’t plan to wait” the full 60 days to file an appeal. However, the City failed to submit proposal or a briefing sequence within the time provided by rule 8.216(a)(1), California Rules of Court and Harray later requested an “extension of time” on 20 October 2010. Accordingly, the Court assigned Defendant and Appellant City of Carmel-by-the-Sea a new date of 27 December 2010 for the filing of appellant’s appendix and opening brief. Information, including selected excerpts, from the California Court of Appeal web site is provided.
CALIFORNIA APPELLATE COURTS
SIXTH DISTRICT COURT OF APPEAL
Docket (Register of Actions)
The Flanders Foundation v. City of Carmel-by-the-Sea, et al.
Case Number H035818
Date: 07/16/2010
Description: Notice of appeal lodged/received.
Notes: City of Carmel-by-the-Sea, et al., filed 07/07/10
Date: 08/20/2010
Notes: Briefing sequence order filed. The parties having failed to submit proposals for a briefing sequence within the time provided by rule 8.216(a)(1), California Rules of Court, the court orders the following: Appellant City of Carmel-by-the-Sea shall file an opening brief within 40 days of filing of the record on appeal. Appellant The Flanders Foundation shall file a combined respondent's and opening brief pursuant to rule 8.216(b) within 30 days of filing of appellant's opening brief. Appellant City of Carmel-by-the-Sea, et al. shall file a combined reply and respondent's brief pursuant to rule 8.216(b) within 30 days after filing of the combined respondent's and opening brief. Appellant The Flanders Foundation may file a reply brief 20 days thereafter.
Date: 10/20/2010
Notes: Stipulation of extension of time filed to:
Future Scheduled Actions
Description: Appellant's appendix and opening brief filed.
Due Date: 12/27/2010
ADDENDUM:
Case Summary
Trial Court Case: M99437
Court of Appeal Case: H035818
Division:
Case Caption: The Flanders Foundation v. City of Carmel-by-the-Sea, et al.
Case Type: CV
Filing Date: 07/07/2010
E-mail Notification 6th Appellate District
The City failed to file its opening brief by the due date of 27 December 2010. The Court grants appellants a 15-day grace period; the City must file its opening brief by Thursday, 13 January 2011.
Date 12/29/2010
Description Appellant notified re failure to timely file opening brief.
Notes Defendant and Appellant: City of Carmel-by-the-Sea
Attorney: Richard Harray
Description Appeal dismissed for failure to file opening brief.
Due Date 01/13/2011
ABSTRACT: In late March 2010, attorney Richard Harray stated that the City would appeal Judge Kay Kingsley’s decision in Flanders Foundation v. City of Carmel-by-the-Sea, et al. (M99437) to the Sixth District Court of Appeal. Furthermore, it was reported that Harray stated “he doesn’t plan to wait” the full 60 days to file an appeal. However, the City failed to submit proposal or a briefing sequence within the time provided by rule 8.216(a)(1), California Rules of Court and Harray later requested an “extension of time” on 20 October 2010. Accordingly, the Court assigned Defendant and Appellant City of Carmel-by-the-Sea a new date of 27 December 2010 for the filing of appellant’s appendix and opening brief. Information, including selected excerpts, from the California Court of Appeal web site is provided.
CALIFORNIA APPELLATE COURTS
SIXTH DISTRICT COURT OF APPEAL
Docket (Register of Actions)
The Flanders Foundation v. City of Carmel-by-the-Sea, et al.
Case Number H035818
Date: 07/16/2010
Description: Notice of appeal lodged/received.
Notes: City of Carmel-by-the-Sea, et al., filed 07/07/10
Date: 08/20/2010
Notes: Briefing sequence order filed. The parties having failed to submit proposals for a briefing sequence within the time provided by rule 8.216(a)(1), California Rules of Court, the court orders the following: Appellant City of Carmel-by-the-Sea shall file an opening brief within 40 days of filing of the record on appeal. Appellant The Flanders Foundation shall file a combined respondent's and opening brief pursuant to rule 8.216(b) within 30 days of filing of appellant's opening brief. Appellant City of Carmel-by-the-Sea, et al. shall file a combined reply and respondent's brief pursuant to rule 8.216(b) within 30 days after filing of the combined respondent's and opening brief. Appellant The Flanders Foundation may file a reply brief 20 days thereafter.
Date: 10/20/2010
Notes: Stipulation of extension of time filed to:
Future Scheduled Actions
Description: Appellant's appendix and opening brief filed.
Due Date: 12/27/2010
ADDENDUM:
Case Summary
Trial Court Case: M99437
Court of Appeal Case: H035818
Division:
Case Caption: The Flanders Foundation v. City of Carmel-by-the-Sea, et al.
Case Type: CV
Filing Date: 07/07/2010
E-mail Notification 6th Appellate District
Wednesday, July 28, 2010
Court of Appeal, Sixth Appellate District: The Flanders Foundation v. City of Carmel-by-the-Sea, et al. Case Number H035818
ABSTRACT: Court of Appeal, Sixth Appellate District information on The Flanders Foundation v. City of Carmel-by-the-Sea, et al., Case Number H035818, is presented. The City of Carmel-by-the-Sea, et al. filed on 7 July 2010. The Notice of Appeal was received by the Court on 16 July 2010. And the Civil Case Information Statement was filed on 23 July 2010. A link for E-mail notification is provided.
Case Summary
Trial Court Case: M99437
Court of Appeal Case: H035818
Case Caption: The Flanders Foundation v. City of Carmel-by-the-Sea, et al.
Case Type: CV
Filing Date: 07/07/2010
Docket
The Flanders Foundation v. City of Carmel-by-the-Sea, et al.
Case Number H035818
Date Description Notes
07/16/2010 Notice of appeal lodged/received. City of Carmel-by-the-Sea, et al., filed 07/07/10
07/23/2010 Civil case information statement filed.
Trial Court
The Flanders Foundation v. City of Carmel-by-the-Sea, et al.
Case Number H035818
Trial Court Name: Monterey County Superior Court
County: Monterey
Trial Court Case Number: M99437
Trial Court Judge: Kingsley, Kay
Trial Court Judgment Date: 05/18/2010
E-mail Notification 6th Appellate District
Court of Appeal Case Number H035818
ADDENDUM:
SIXTH DISTRICT COURT OF APPEAL
California Courts
Case Summary
Trial Court Case: M99437
Court of Appeal Case: H035818
Case Caption: The Flanders Foundation v. City of Carmel-by-the-Sea, et al.
Case Type: CV
Filing Date: 07/07/2010
Docket
The Flanders Foundation v. City of Carmel-by-the-Sea, et al.
Case Number H035818
Date Description Notes
07/16/2010 Notice of appeal lodged/received. City of Carmel-by-the-Sea, et al., filed 07/07/10
07/23/2010 Civil case information statement filed.
Trial Court
The Flanders Foundation v. City of Carmel-by-the-Sea, et al.
Case Number H035818
Trial Court Name: Monterey County Superior Court
County: Monterey
Trial Court Case Number: M99437
Trial Court Judge: Kingsley, Kay
Trial Court Judgment Date: 05/18/2010
E-mail Notification 6th Appellate District
Court of Appeal Case Number H035818
ADDENDUM:
SIXTH DISTRICT COURT OF APPEAL
California Courts
Sunday, July 11, 2010
LEGAL UPDATE: Miller, Jane Kingsley vs City of Carmel-by-the-Sea (M99513), The Flanders Foundation vs. City of Carmel by the Sea et al (M99437) & Mandurrago, John et al vs. City of Carmel-by-the Sea et al (M102802)
• M99513; Miller, Jane Kingsley vs City of Carmel-by-the-Sea
Settlement talks have been occurring, according to a source directly involved with the case.
Important Court Dates:
Original Filing Date 6/17/2009
Settlement Conference 8/19/2010 13:45:00 Courtroom 04
Readiness Conference 9/16/2010 10:00:00 Courtroom 04
Jury Trial: Long Cause 9/20/2010 08:30:00 Courtroom 04
• M99437; The Flanders Foundation vs. City of Carmel by the Sea et al.
The City of Carmel-by-the-Sea appealed Judge Kay T. Kingsley’s Decision on Wednesday, 7 July 2010.
Important Court Dates:
Original Filing Date: 6/12/2009
Hearing: 2/10/2010
Judge Kay T. Kingsley Decision: 5/18/2010
Appeal Filed: 7/7/2010
Information from Sixth District Court of Appeal pending
• M102802; Mandurrago, John et al. vs. City of Carmel-by-the Sea et al.
Awaiting Judge Lydia Villarreal’s decision; anticipated by 7 September 2010 or 90 days from Writ of Mandate Hearing on 9 June 2010.
Important Court Dates:
Original Filing Date: 12/4/2009
Writ of Mandate Hearing: 6/9/2010
Settlement talks have been occurring, according to a source directly involved with the case.
Important Court Dates:
Original Filing Date 6/17/2009
Settlement Conference 8/19/2010 13:45:00 Courtroom 04
Readiness Conference 9/16/2010 10:00:00 Courtroom 04
Jury Trial: Long Cause 9/20/2010 08:30:00 Courtroom 04
• M99437; The Flanders Foundation vs. City of Carmel by the Sea et al.
The City of Carmel-by-the-Sea appealed Judge Kay T. Kingsley’s Decision on Wednesday, 7 July 2010.
Important Court Dates:
Original Filing Date: 6/12/2009
Hearing: 2/10/2010
Judge Kay T. Kingsley Decision: 5/18/2010
Appeal Filed: 7/7/2010
Information from Sixth District Court of Appeal pending
• M102802; Mandurrago, John et al. vs. City of Carmel-by-the Sea et al.
Awaiting Judge Lydia Villarreal’s decision; anticipated by 7 September 2010 or 90 days from Writ of Mandate Hearing on 9 June 2010.
Important Court Dates:
Original Filing Date: 12/4/2009
Writ of Mandate Hearing: 6/9/2010
Sunday, March 21, 2010
Flanders Foundation Attorney: 'I understand that Carmel Mayor Sue McCloud has stated that she has “embarked on settlement talks” with me relating to the Flanders dispute. This is misleading…There has been no ongoing discussion.'
ABSTRACT: In the MONTEREY COUNTY WEEKLY article “Political Dogfight: Sex, lies but no videotape – yet – in steamy Carmel mayoral and city council races,” Carmel Mayor Sue McCloud stated that “she has embarked on settlement talks with the opposing attorney.” Subsequently, Flanders Foundation attorney Susan Brandt-Hawley submitted two letters to the editor, one to the MONTEREY COUNTY WEEKLY and another to The Carmel Pine Cone correcting, clarifying and amplifying the controversy. Highlights of Brandt-Hawley’s letters to the editor are presented. A COMMENT is made about the veracity and sincerity of Mayor Sue McCloud.
HIGHLIGHTS OF LETTERS TO THE EDITOR, “Brandt-Hawley’s offer” & “McClouy LOGIC:”
• “I understand that Carmel Mayor Sue McCloud has stated that she has “embarked on settlement talks” with me relating to the Flanders dispute. This is misleading. I represent the Flanders Foundation. On its behalf in recent years I have presented the city council with offers to lease the mansion and to pay for its restoration and maintenance, which it has rejected."
• “Mayor McCloud and I also had a couple of cordial telephone conversations about Flanders last summer, and one in January. I suggested a lease of Flanders to minimize traffic on Hatton Road, such as for artists-in-residence. The mayor made no suggestions to avoid a sale. So our talks ended.”
• “To date, the city will only consider a sale and the Foundation strongly believes the mansion should be leased and remain in city ownership. There has been no ongoing discussion.”
• “But as there has been no variance from our two bottom-line positions—the City Council wants to sell and Flanders Foundation wants the mansion to be leased and remain in city ownership— there are no ongoing discussions.”
• “...there are a great many opportunities to resolve the Flanders issue short of sale. The Flanders Foundation would welcome the opportunity to settle this matter in the public interest.”
COMMENT:
• Mayor Sue McCloud led the MONTEREY COUNTY WEEKLY to believe that she was “searching for common ground” with the Flanders Foundation and a peace settlement was possible. Contradicted by Flanders Foundation attorney Susan Brandt-Hawley, Brandt-Hawley wrote that “there has been no variance from our two bottom-line positions—the City Council wants to sell and Flanders Foundation wants the mansion to be leased and remain in city ownership.” Additionally, over the years since Sue McCloud was elected mayor, Susan Brandt-Hawley “presented the city council with offers to lease the mansion and to pay for its restoration and maintenance, which it has rejected.” And while Susan Brandt-Hawley wrote that the “Flanders Foundation would welcome the opportunity to settle this matter in the public interest,” short of sale, and given the fact that the City has lost two lawsuits involving the sale of the Flanders Mansion, it is now a test of Mayor Sue McCloud’s veracity and sincerity regarding whether or not she makes a good faith effort to reach a “peace settlement” with the Flanders Foundation.
Sources: Brandt-Hawley’s offer, Susan Brandt-Hawley, Glen Ellen, The Carmel Pine Cone March 19, 2010, 22 A
McClouy LOGIC, Susan Brandt-Hawley | Glen Ellen, MONTEREY COUNTY WEEKLY, March 18, 2010
Political Dogfight : Sex, lies but no videotape – yet – in steamy Carmel mayoral and city council races, Robin Urevich, MONTEREY COUNTY WEEKLY, March 11, 2010
HIGHLIGHTS OF LETTERS TO THE EDITOR, “Brandt-Hawley’s offer” & “McClouy LOGIC:”
• “I understand that Carmel Mayor Sue McCloud has stated that she has “embarked on settlement talks” with me relating to the Flanders dispute. This is misleading. I represent the Flanders Foundation. On its behalf in recent years I have presented the city council with offers to lease the mansion and to pay for its restoration and maintenance, which it has rejected."
• “Mayor McCloud and I also had a couple of cordial telephone conversations about Flanders last summer, and one in January. I suggested a lease of Flanders to minimize traffic on Hatton Road, such as for artists-in-residence. The mayor made no suggestions to avoid a sale. So our talks ended.”
• “To date, the city will only consider a sale and the Foundation strongly believes the mansion should be leased and remain in city ownership. There has been no ongoing discussion.”
• “But as there has been no variance from our two bottom-line positions—the City Council wants to sell and Flanders Foundation wants the mansion to be leased and remain in city ownership— there are no ongoing discussions.”
• “...there are a great many opportunities to resolve the Flanders issue short of sale. The Flanders Foundation would welcome the opportunity to settle this matter in the public interest.”
COMMENT:
• Mayor Sue McCloud led the MONTEREY COUNTY WEEKLY to believe that she was “searching for common ground” with the Flanders Foundation and a peace settlement was possible. Contradicted by Flanders Foundation attorney Susan Brandt-Hawley, Brandt-Hawley wrote that “there has been no variance from our two bottom-line positions—the City Council wants to sell and Flanders Foundation wants the mansion to be leased and remain in city ownership.” Additionally, over the years since Sue McCloud was elected mayor, Susan Brandt-Hawley “presented the city council with offers to lease the mansion and to pay for its restoration and maintenance, which it has rejected.” And while Susan Brandt-Hawley wrote that the “Flanders Foundation would welcome the opportunity to settle this matter in the public interest,” short of sale, and given the fact that the City has lost two lawsuits involving the sale of the Flanders Mansion, it is now a test of Mayor Sue McCloud’s veracity and sincerity regarding whether or not she makes a good faith effort to reach a “peace settlement” with the Flanders Foundation.
Sources: Brandt-Hawley’s offer, Susan Brandt-Hawley, Glen Ellen, The Carmel Pine Cone March 19, 2010, 22 A
McClouy LOGIC, Susan Brandt-Hawley | Glen Ellen, MONTEREY COUNTY WEEKLY, March 18, 2010
Political Dogfight : Sex, lies but no videotape – yet – in steamy Carmel mayoral and city council races, Robin Urevich, MONTEREY COUNTY WEEKLY, March 11, 2010
Thursday, March 18, 2010
Hon. Kay T. Kingsley’s Intended Decision (Condensed Version) Case No. M99437 THE FLANDERS FOUNDATION v. CITY OF CARMEL-BY-THE-SEA and CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA
ABSTRACT: A condensed version of Hon. Kay T. Kingsley’s Intended Decision, Case Number M99437, THE FLANDERS FOUNDATION, Petitioner, CITY OF CARMEL-BY-THE-SEA and CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA, Respondents, consisting of selected excerpts is presented. In short: “The Court finds that the City did not comply with CEQA as a matter of law because the City failed to analyze the potential environmental impacts of selling or leasing the Mansion in compliance with the Surplus Lands Act, and in responding to comments. In all other respects, the Court finds that the City complied with CEQA.” Practically, the decision means that the City must pay legal fees of Flanders Foundation attorney, rescind Resolutions, et cetera, pertaining to the sale of the Flanders Mansion Property and the judge’s order invalidated the vote of 3 November 2009 because, according to Flanders Foundation attorney Susan Brandt-Hawley, “the election can’t stand because voters based their decision on an incomplete EIR.”
SUPERIOR COURT OF CALIFORNIA
COUNTY OF MONTEREY
THE FLANDERS FOUNDATION, Petitioner,
CITY OF CARMEL-BY-THE-SEA and
CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA, Respondents.
Case No. M99437
Intended Decision
This matter came on for court trial on February 10, 2010. All sides were represented through their respective attorneys. The matter was argued and taken under submission. This intended decision resolves factual and legal disputes, and shall suffice as a statement of decision as to all matters contained herein.
Background
Flanders requests that the Court find that the Revised Final Environmental Impact Report (RFEIR) is inadequate because (1) the Surplus Lands Act applies and the RFEIR did not analyze the potential significant environmental impacts if the parkland is sold or leased to another government agency (Gov. Code, §§ 38440-38462, 54220-54222); (2) the response to comments regarding the Surplus Land Act issue and mitigation by reducing the size of the parcel were conclusory; (3) the economic feasibility analysis should be included in the RFEIR; (4) the economic feasibility analysis was inadequate; (5) lease of the Mansion is feasible; and (6) the statement of overriding consideration is unsupported.
The Court finds that the City did not comply with CEQA as a matter of law because the City failed to analyze the potential environmental impacts of selling or leasing the Mansion in compliance with the Surplus Lands Act, and in responding to comments. In all other respects, the Court finds that the City complied with CEQA.
Standard of Review
The Court’s review is limited to ascertaining whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law or the decision is not supported by substantial evidence. (Pub. Resources Code, §§ 21168, 21168.5.) This standard governs the review of Carmel’s compliance with the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA).
Discussion
(A). Surplus Lands Act issue
...the Court concludes that the EIR failed to adequately analyze the impact of an agency purchasing or leasing the property unconstrained by any conditions that the City attaches to the divestment of the Mansion. The RFEIR must contain this analysis, and it may be necessary to recirculate the RFEIR for public comment.
(B). Response to comments
(1). Surplus Land Act
...the City must analyze the foreseeable impacts that may result if an agency buys or leases the Mansion, and to the extent the response is deemed inadequate, any future consideration by the City Council will include the essential information requested.
(2). Mitigation by reducing the size of the parcel
(a). Selling the Mansion
To the extent this response is deemed inadequate, the future consideration by the City Council will include the essential information requested.
(b). Leasing the Mansion
...if the Mansion is sold, the City must analyze the foreseeable impacts that may result if an agency buys or leases the Mansion, to the extent the response to leasing a smaller parcel is deemed inadequate, any future consideration by the City Council will include the essential information requested.
(C). Economic feasibility analysis and the RFEIR
This Court cannot draw the same inference as Flanders, that Save Round Valley, and the other cases and statutes cited by Flanders, in light of the Guidelines, statutes and cases cited by the City, mandate that the economic feasibility analysis as a matter of law must be in the EIR.
(D). Economic feasibility analysis
The Court notes that it was difficult for the consultant to find comparables because the Mansion is truly unique. However, the Court cannot find as a matter of law that the City did not make an adequate, complete, and a good-faith effort at full disclosure of the economic information.
(E). Feasibility of the lease of the Mansion
The Court finds that there is substantial evidence in the record that the City considered and balanced the environmental impacts and the degree to which the lease alternative did not meet the City’s economic goals in finding a lease infeasible. The City seeks to sell a property to bring increased income to the citizens of the City of Carmel-by-the-Sea by not having to pay for ongoing expenses, and to raise money for the public benefit in the short term.
(F). Statement of overriding consideration
The City found that “the benefits described above outweigh any and all potential unavoidable adverse impacts of the Project”, (2AR 1886), and the Court concurs.
Disposition
Flanders’ writ of mandate is granted as set forth above. The court directs the attorney for Flanders to prepare an appropriate judgment consistent with this ruling, present it to opposing counsel for approval as to form, and return it to this court for signature.
Dated:
____________________________________
HON. KAY T. KINGSLEY
Judge of the Superior Court
SUPERIOR COURT OF CALIFORNIA
COUNTY OF MONTEREY
THE FLANDERS FOUNDATION, Petitioner,
CITY OF CARMEL-BY-THE-SEA and
CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA, Respondents.
Case No. M99437
Intended Decision
This matter came on for court trial on February 10, 2010. All sides were represented through their respective attorneys. The matter was argued and taken under submission. This intended decision resolves factual and legal disputes, and shall suffice as a statement of decision as to all matters contained herein.
Background
Flanders requests that the Court find that the Revised Final Environmental Impact Report (RFEIR) is inadequate because (1) the Surplus Lands Act applies and the RFEIR did not analyze the potential significant environmental impacts if the parkland is sold or leased to another government agency (Gov. Code, §§ 38440-38462, 54220-54222); (2) the response to comments regarding the Surplus Land Act issue and mitigation by reducing the size of the parcel were conclusory; (3) the economic feasibility analysis should be included in the RFEIR; (4) the economic feasibility analysis was inadequate; (5) lease of the Mansion is feasible; and (6) the statement of overriding consideration is unsupported.
The Court finds that the City did not comply with CEQA as a matter of law because the City failed to analyze the potential environmental impacts of selling or leasing the Mansion in compliance with the Surplus Lands Act, and in responding to comments. In all other respects, the Court finds that the City complied with CEQA.
Standard of Review
The Court’s review is limited to ascertaining whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law or the decision is not supported by substantial evidence. (Pub. Resources Code, §§ 21168, 21168.5.) This standard governs the review of Carmel’s compliance with the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA).
Discussion
(A). Surplus Lands Act issue
...the Court concludes that the EIR failed to adequately analyze the impact of an agency purchasing or leasing the property unconstrained by any conditions that the City attaches to the divestment of the Mansion. The RFEIR must contain this analysis, and it may be necessary to recirculate the RFEIR for public comment.
(B). Response to comments
(1). Surplus Land Act
...the City must analyze the foreseeable impacts that may result if an agency buys or leases the Mansion, and to the extent the response is deemed inadequate, any future consideration by the City Council will include the essential information requested.
(2). Mitigation by reducing the size of the parcel
(a). Selling the Mansion
To the extent this response is deemed inadequate, the future consideration by the City Council will include the essential information requested.
(b). Leasing the Mansion
...if the Mansion is sold, the City must analyze the foreseeable impacts that may result if an agency buys or leases the Mansion, to the extent the response to leasing a smaller parcel is deemed inadequate, any future consideration by the City Council will include the essential information requested.
(C). Economic feasibility analysis and the RFEIR
This Court cannot draw the same inference as Flanders, that Save Round Valley, and the other cases and statutes cited by Flanders, in light of the Guidelines, statutes and cases cited by the City, mandate that the economic feasibility analysis as a matter of law must be in the EIR.
(D). Economic feasibility analysis
The Court notes that it was difficult for the consultant to find comparables because the Mansion is truly unique. However, the Court cannot find as a matter of law that the City did not make an adequate, complete, and a good-faith effort at full disclosure of the economic information.
(E). Feasibility of the lease of the Mansion
The Court finds that there is substantial evidence in the record that the City considered and balanced the environmental impacts and the degree to which the lease alternative did not meet the City’s economic goals in finding a lease infeasible. The City seeks to sell a property to bring increased income to the citizens of the City of Carmel-by-the-Sea by not having to pay for ongoing expenses, and to raise money for the public benefit in the short term.
(F). Statement of overriding consideration
The City found that “the benefits described above outweigh any and all potential unavoidable adverse impacts of the Project”, (2AR 1886), and the Court concurs.
Disposition
Flanders’ writ of mandate is granted as set forth above. The court directs the attorney for Flanders to prepare an appropriate judgment consistent with this ruling, present it to opposing counsel for approval as to form, and return it to this court for signature.
Dated:
____________________________________
HON. KAY T. KINGSLEY
Judge of the Superior Court
Tuesday, March 16, 2010
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
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
Thursday, February 11, 2010
'MINUTES' for One Noteworthy 2 February 2010 City Council Agenda Item: State of the City 2010
ABSTRACT: The Mayor's Annual Report, (State of the City 2010), is reproduced. COMMENTS, CLARIFICATIONS & AMPLIFICATIONS are presented.
“MINUTES”
CITY COUNCIL MEETING
CITY OF CARMEL-BY-THE-SEA
February 2, 2010
V. Announcements from Closed Session, from City Council Members and the City Administrator
B. Announcements from City Council members (Council members may ask a question for clarification, make a brief announcement or report on his or her activities)
1. Receive Mayor’s Annual Report.
CITY OF CARMEL-BY-THE-SEA
ACHIEVING COUNCIL OBJECTIVES
January 2010
The Mayor Pro-Tem and I have prepared this seventh Annual Report looking back on progress achieved on the primary goals established by Council for the 2008-09 budget year and the first half of 2009-10. We also look forward to challenges ahead.
Revenue context for this report: For the fiscal year ending June 30, 2009, the City of Carmel-by-the-Sea had an operating deficit of $130,000, which was covered by monies in our reserves, which totaled about $10 million. Of the top three revenue sources, only Property Tax exceeded the previous fiscal year and, for the first time, was the top revenue producer. In addition, the City was awarded state grants of more than $303,000 and donations of about $30,000. These latter monies directly supplement revenues in that projects relating to the City are being funded with non-City funds. Through December of the current fiscal year as compared to the previous year, Property Tax is up 2% and TOT down 10%. Sales Tax figures are not yet available through December ’09.
2009-2010 BUDGET YEAR: Following are the priority goals established by Council:
1. Explore Fire Department options and implement what is ultimately decided.
Progress: Initially Pacific Grove managed the Carmel-by-the-Sea Fire Department. When it merged with Monterey Fire, we shifted focus to see whether that or another fire service might be an option for Carmel. Before that comparative study could be completed, and echoing moves toward more consolidation of functions, another option appeared on the table in the form of a Peninsula-wide fire service (brought about by efforts to merge Seaside and Marina Fire Departments). This option is much more complex and will take some time to study as it could also include the military and airport fire services, among others. In the meantime, Fire Department management by the City of Monterey will remain in place. A new fire engine was purchased and the auto-pulse cardiac support (the first in the County) was put into service.
2. Actively manage the City’s finances in a challenging environment:
Progress: While as noted in the above Revenue Context, the results were not solidly in the black, we did minimize our losses through conservative budgeting, reducing expenses, seeking grants and putting off some projects to the future.
Perhaps the auditor said it best in his report to Council: “Our audit is an unqualified opinion, which is the highest type of opinion you can get…In the past year, the United States, California and all its cities experienced one of the most challenging economies since 1979-80. Only a few California cities have had the wisdom in past years to set aside money for uncertain economic times. Carmel-by-the-Sea is, fortunately, one of them. The City reduced expenditures everywhere possible and ended up spending $335,000 less than what was budgeted. Because the City has set aside reserves for such situations, the City did not have to further reduce services to its citizens.” (We might note that the city also provides services to some two million visitors annually in addition to our roughly 4,000 population of citizens.)
It is interesting that in 2009, the county Assessor increased the assessed value of Carmel-by-the-Sea to a total of just under $3 billion. Similarly, Standard and Poor’s upgraded the City’s credit rating to AA+ from AA- (one of only 12 cities in the state whose credit strength was raised) while Fitch affirmed its rating for Carmel’s Sunset Center bonds at AA-.
3. Concentrate efforts on the short-term to fill hotel rooms in 2009, and for marketing and economic development:
Over the past two to three years we have added the following events to Carmel-by-the-Sea: Concours on the Avenue; Authors and Ideas Festival; Art and Film Festival, and just this past December, came announcement of the move of the “Blue Ocean Film Festival” from the East to the West Coast, and specifically to the Monterey Peninsula, where it will be held the end of August 2010 and every other year after that in between they do an outreach program.
We also are working with Sunset Community Center, Inc. to bring small “boutique” conferences to Sunset. We now have two booked and will aggressively look for more. Such multi-night events also help to fill our inns.
4. Complete General Plan and Housing Element and submit them to the Coastal Commission:
Progress General Plan Update: The City Council adopted updates of five elements of the General Plan not addressed during preparation of the Local Coastal Program (Circulation, Public Facilities, Open Space/Conservation, Environmental Safety and Noise) plus the Del Mar Master Plan. The latter plus the Circulation Element achieved the required certification by the Coastal Commission in January. Now all elements of our General Plan are current and will provide policy guidance for the next 20 years. The Carmel-by-the-Sea Garden Club has once more come forth and is offering to fund a portion of the Del Mar Master Plan.
Housing Element:
The Housing Element, which must be updated every five years, is again in process and on schedule. The City Council approved a draft update which the Department of Housing and Community Development is currently reviewing. The City will likely consider the final version in April.
5. Finalize and implement plans for the Forest Theater renovation and develop financial options to pay for it once a final decision is made:
Progress: While plans have been tweaked, they necessarily had to take a back seat to the public vote on the sale of Flanders and other projects that will be discussed shortly. We are now researching the availability of funding/grants for the renovation or phasing the project over several fiscal years. We also hope that the celebration of the Theater’s centennial in the summer of 2010 will spur interest in the renovation and its funding.
6. While it was not on our work program per se, the City did take the question of the sale of Flanders to a public vote. The sale was approved by a 62% to 37% vote.
CAPITAL PROJECTS AND OUTLAYS:
1. New Scenic Restroom: drawings for the new permanent restroom at Santa Lucia and Scenic Road have been received and are being reviewed by staff. Proceeding ahead will be difficult if there is a water moratorium as we will need a small amount of potable water.
2. Storm drains: five storm drain projects were completed; these met all “Clean Water Act” requirements.
3. Street projects totaled $516,000 in ’08-09; some 60 were in the downtown district. Several areas of concrete and sidewalk were replaced with permeable pavers that we will be using exclusively.
4. The underground water tank at Del Mar will be larger and relocated. The whole Del Mar parking area will be resurfaced and the curbs lowered this spring of 2010.
5. The Fourth Avenue riparian habitat project between Monte Verde and San Antonio has been completed except for a substitute source for the City’s manual watering by our water truck. (See also number 6.) A ceremonial ribbon cutting was held with the 4th Avenue neighbors to celebrate what they are calling the nicest street in the City. The project was awarded “Outstanding Urban Forest Project 2009” by the Urban Forest Council.
6. San Antonio Walkway: We are working with the Pebble Beach Company to construct a San Antonio walkway from Fourth Avenue to the Carmel Gate and from Fourth through the dunes westward to the beach. The Del Mar Project provides for a walkway from Ocean to Fourth along the west side of San Antonio, thus completing a walkway from the city’s northern border with Pebble Beach to its southern border with Monterey County.
7. The paving project and realignment of the median strip from Junipero between Ocean and 8th Avenues have now been funded by the Transportation Agency for Monterey County and Proposition 172. We adopted a construction truck impact fee to generate new revenue for maintenance of our streets.
OTHER PROJECTS:
Tourism: The City is updating its travel website, has printed a compact map of sites and courtyards and has provided funding for a free trolley that runs on a circular route from Ocean Avenue to the Carmel Mission and the beach, with many in between stops. We are grateful to the Monterey Salinas Transit (MST) for its printing of the brochure/map. New pay and display parking meters have been installed at the north end of Sunset and Plaza bus parking that we hope will be more user friendly.
Litigation: Most local governments face challenges to their decisions and actions that, unfortunately, at times result in litigation, and Carmel is no exception:
A. Flanders: In July 2009, the Flanders Foundation sued the City, again challenging the adequacy of the Environmental Impact Report (EIR). In November 2009, the public voted to authorize the City Council to proceed with the sale of the Flanders Mansion. A trial date of February 10, 2010, has been set for the Court’s review of the City’s amended EIR. In an ongoing effort to avoid the time and expense of this litigation, the Mayor has taken the initiative in attempting to work with the Flanders Foundation through their attorney to determine if there is a possible common resolution to the Foundation’s concerns.
B. Homescapes (SE corner of Dolores and 7th): the applicant filed a second lawsuit challenging the City’s denial of his project. The first lawsuit was heard last year with the City prevailing. That lawsuit was appealed by the applicant. We are currently awaiting a trail date.
C. Miller: Lawsuits involving personnel issues are handled differently in that the employee and potential witnesses have certain rights of privacy. Such is the case in this instance. The normal course of action in such cases is that the City immediately investigates the charges. There is no reason to assume that the City has done otherwise but because we are in litigation, regrettably we are constrained from commenting.
The “Greening of Carmel:”
In addition to the reduction of car usage by substituting the trolley, we established a Green Committee which is working on sustainable programs and incentives under the direction of the Planning Department and Planning Commission. A green building ordinance has been adopted and incentives are being drafted. This follows banning of smoking on the beach and continuing our pioneering effort of 1989 as the second city in the state to ban polystyrene. Now we have a county-wide ordinance banning such use. We have also recycled 1,400 pounds of household batteries and 69% of our trash collection.
Library: We have almost completed the fire suppression system for the vault at Park Branch. In addition we have acquired on permanent loan from the Frank Devendorf family (one of the two founders of Carmel) their chronicles of the development of Carmel-by-the-Sea and the surrounding area. This will be the Library’s largest single collection and dates from 1902.
Emergency Preparedness: The new plan was received by Council and is now being implemented. First order of business was the installation of a generator at the Fire Department. With that accomplished, plans for a generator for the Police Department and its Emergency Operations Center are under way. Funding is in place over the next two years for the NGEN or Next Generation of radios for the Police Department and Public Works, which will cost close to $500,000.
Forest and Beach:
For the fifth year, the City has received a Tree City USA Award. A second part-time Forest Care Worker was added to water and plant new trees (160 planted). The City had a demonstration of the Barber Surf Rake which might provide a solution for how we can both continue beach fires and keep the beach clean. Staff and contractors have removed almost 11,000 pounds of charcoal from the beach this year. With partial funding from the Monterey Peninsula Regional Park District, we have completed one footbridge in Mission Trail Park; a second one is planned.
Water: The imposition of a water moratorium on the Water District will have a chilling impact on our economy and way of life until a new source of water is up and running - which will mean several years. The City Attorney has spent much time on this issue and Carmel joined with three other Peninsula mayors to meet with the State Water Resources Control Board for lengthy sessions both on the Peninsula and in Sacramento.
In sum, and in spite of the downturn in the state and national economies, there has been much accomplished by skillfully managing resources. In the process, we appreciate the understanding and support from citizens and staff.
Sue McCloud
Mayor
Karen Sharp
Vice Mayor
COMMENTS, CLARIFICATIONS & AMPLIFICATIONS:
•The City has over $10 million in reserve funds; this magnitude of reserve funds relative to the annual budget only makes sense if the City did not have deferred maintenance requirements. Yet, the City has, for example, deferred maintenance requirements related to streets. In 2008-2009, street projects totaled $516,000; $516,000 is less than the minimum amount of $660,000/year recommended by Nichols Consulting Engineeers, Chtd. to maintain Carmel-by-the-Sea’s streets as is, i.e., the current PCI of 70. Other deferred maintenance projects include the Scout House and the Public Works building - both buildings are currently inaccessible to the public.
•The BLUE Ocean Film Festival and Conservation Summit announced its relocation from Savannah, Georgia to Monterey, California.
•In September 2009, the City Council approved a Resolution for construction phasing and cost planning of Richard McCann’s Schematic Design for the Forest Theater accomplished by William Camille, former Project Manager of Sunset Center; included was a preliminary oral report, final report and presentation to the public at a City Council meeting, all expected to be accomplished in about one month. Yet, as of February 2010, William Camille has only given a preliminary oral report to Mayor Sue McCloud, Vice Mayor Karen Sharp and City Administrator Rich Guillen and there is no established timeline for a final report or presentation to the public at a future City Council meeting.
Alternatively, a City Council with foresight and a commitment to the Forest Theatre could have funded and implemented the Forest Theater Facility Master Plan (2001) by now yielding modest improvements to the Forest Theatre at less expense to Carmel-by-the-Sea taxpayers.
• Measure I, Sale of the Flanders Mansion Property, Actual Vote Totals, as follows:
Vote Count Percent
YES 913 62.32%
NO 552 37.68%
Total 1,465 100.00%
• On Wednesday morning, 10 February 2010, Judge Kay T. Kingsley heard oral arguments from Flanders Foundation attorney Susan Brandt-Hawley and the attorney for the City Richard Harray in Courtroom 14 at the Monterey Courthouse. Judge Kinsley articulated her inclination to rule in favor of the Petitioner regarding the Surplus Land Act issue and the City regarding the inclusion of the economic feasibility analysis report in the EIR issue. A written decision is expected within 90 days.
• While Mayor Sue McCloud declares that the Flanders Foundation is "again challenging the adequacy of the Environmental Impact Report (EIR)," the Flanders Foundation is also challenging other issues, including, the Surplus Land Act issues and the economic feasibility analysis.
• While there is no evidence to support Mayor Sue McCloud’s declaration that she “has taken the initiative in attempting to work with the Flanders Foundation through their attorney to determine if there is a possible common resolution to the Foundation’s concerns,” there is substantial evidence in the public record indicating Mayor Sue McCloud refused to meet and confer with representatives of the Flanders Foundation for the purpose of determining and implementing a public use for the Flanders Mansion since becoming mayor in 2000.
• With regard to Mandurrago, John, et al vs. City of Carmel-by-the-Sea, et al. (M97273), Judge Robert O’Farrell dismissed the case based on his decision that the petitioner had not exhausted administrative remedies, i.e., a decision by the City Council. In other words, the merit of John Mandurrago’s lawsuit was not considered, namely issues of violations of the California Constitution, California Government Code, Housing Accountability Act, California Environmental Quality Act, et cetera.
• With regard to Miller, Jane Kingsley vs. City of Carmel-by-the-Sea et al, (M99513), contrary to Mayor Sue McCloud declaration that "there is no reason to assume that the City" did not immediately investigate Jane Miller's charges, the public record shows that the City failed to immediately investigate Jane Miller's charges of sexual harassment, employment discrimination and retaliation. In fact, the City delayed three months in hiring attorney/private investigator Karen Kramer to investigate Jane Miller’s complaint. Moreover, Karen Kramer apparently did not interview four former city employees with allegedly similar complaints to on-leave Human Resources Manager Jane Miller, namely former Assistant City Administrator Greg D’Ambrosio, former Sunset Center Director Brian Donoghue, former Library Director Margaret Pelikan and former Executive Assistant Sandy Farrell.
ADDENDUM:
The Four Standards of a Tree City USA
To qualify for Tree City USA, a town or city must meet four standards established by The Arbor Day Foundation and the National Association of State Foresters.
These standards were established to ensure that every qualifying community would have a viable tree management plan and program.
It is important to note that they were also designed so that no community would be excluded because of size.
1. A Tree Board or Department
2. A Tree Care Ordinance
3. A Community Forestry Program With an Annual Budget of at Least $2 Per Capita
4. An Arbor Day Observance and Proclamation
“MINUTES”
CITY COUNCIL MEETING
CITY OF CARMEL-BY-THE-SEA
February 2, 2010
V. Announcements from Closed Session, from City Council Members and the City Administrator
B. Announcements from City Council members (Council members may ask a question for clarification, make a brief announcement or report on his or her activities)
1. Receive Mayor’s Annual Report.
CITY OF CARMEL-BY-THE-SEA
ACHIEVING COUNCIL OBJECTIVES
January 2010
The Mayor Pro-Tem and I have prepared this seventh Annual Report looking back on progress achieved on the primary goals established by Council for the 2008-09 budget year and the first half of 2009-10. We also look forward to challenges ahead.
Revenue context for this report: For the fiscal year ending June 30, 2009, the City of Carmel-by-the-Sea had an operating deficit of $130,000, which was covered by monies in our reserves, which totaled about $10 million. Of the top three revenue sources, only Property Tax exceeded the previous fiscal year and, for the first time, was the top revenue producer. In addition, the City was awarded state grants of more than $303,000 and donations of about $30,000. These latter monies directly supplement revenues in that projects relating to the City are being funded with non-City funds. Through December of the current fiscal year as compared to the previous year, Property Tax is up 2% and TOT down 10%. Sales Tax figures are not yet available through December ’09.
2009-2010 BUDGET YEAR: Following are the priority goals established by Council:
1. Explore Fire Department options and implement what is ultimately decided.
Progress: Initially Pacific Grove managed the Carmel-by-the-Sea Fire Department. When it merged with Monterey Fire, we shifted focus to see whether that or another fire service might be an option for Carmel. Before that comparative study could be completed, and echoing moves toward more consolidation of functions, another option appeared on the table in the form of a Peninsula-wide fire service (brought about by efforts to merge Seaside and Marina Fire Departments). This option is much more complex and will take some time to study as it could also include the military and airport fire services, among others. In the meantime, Fire Department management by the City of Monterey will remain in place. A new fire engine was purchased and the auto-pulse cardiac support (the first in the County) was put into service.
2. Actively manage the City’s finances in a challenging environment:
Progress: While as noted in the above Revenue Context, the results were not solidly in the black, we did minimize our losses through conservative budgeting, reducing expenses, seeking grants and putting off some projects to the future.
Perhaps the auditor said it best in his report to Council: “Our audit is an unqualified opinion, which is the highest type of opinion you can get…In the past year, the United States, California and all its cities experienced one of the most challenging economies since 1979-80. Only a few California cities have had the wisdom in past years to set aside money for uncertain economic times. Carmel-by-the-Sea is, fortunately, one of them. The City reduced expenditures everywhere possible and ended up spending $335,000 less than what was budgeted. Because the City has set aside reserves for such situations, the City did not have to further reduce services to its citizens.” (We might note that the city also provides services to some two million visitors annually in addition to our roughly 4,000 population of citizens.)
It is interesting that in 2009, the county Assessor increased the assessed value of Carmel-by-the-Sea to a total of just under $3 billion. Similarly, Standard and Poor’s upgraded the City’s credit rating to AA+ from AA- (one of only 12 cities in the state whose credit strength was raised) while Fitch affirmed its rating for Carmel’s Sunset Center bonds at AA-.
3. Concentrate efforts on the short-term to fill hotel rooms in 2009, and for marketing and economic development:
Over the past two to three years we have added the following events to Carmel-by-the-Sea: Concours on the Avenue; Authors and Ideas Festival; Art and Film Festival, and just this past December, came announcement of the move of the “Blue Ocean Film Festival” from the East to the West Coast, and specifically to the Monterey Peninsula, where it will be held the end of August 2010 and every other year after that in between they do an outreach program.
We also are working with Sunset Community Center, Inc. to bring small “boutique” conferences to Sunset. We now have two booked and will aggressively look for more. Such multi-night events also help to fill our inns.
4. Complete General Plan and Housing Element and submit them to the Coastal Commission:
Progress General Plan Update: The City Council adopted updates of five elements of the General Plan not addressed during preparation of the Local Coastal Program (Circulation, Public Facilities, Open Space/Conservation, Environmental Safety and Noise) plus the Del Mar Master Plan. The latter plus the Circulation Element achieved the required certification by the Coastal Commission in January. Now all elements of our General Plan are current and will provide policy guidance for the next 20 years. The Carmel-by-the-Sea Garden Club has once more come forth and is offering to fund a portion of the Del Mar Master Plan.
Housing Element:
The Housing Element, which must be updated every five years, is again in process and on schedule. The City Council approved a draft update which the Department of Housing and Community Development is currently reviewing. The City will likely consider the final version in April.
5. Finalize and implement plans for the Forest Theater renovation and develop financial options to pay for it once a final decision is made:
Progress: While plans have been tweaked, they necessarily had to take a back seat to the public vote on the sale of Flanders and other projects that will be discussed shortly. We are now researching the availability of funding/grants for the renovation or phasing the project over several fiscal years. We also hope that the celebration of the Theater’s centennial in the summer of 2010 will spur interest in the renovation and its funding.
6. While it was not on our work program per se, the City did take the question of the sale of Flanders to a public vote. The sale was approved by a 62% to 37% vote.
CAPITAL PROJECTS AND OUTLAYS:
1. New Scenic Restroom: drawings for the new permanent restroom at Santa Lucia and Scenic Road have been received and are being reviewed by staff. Proceeding ahead will be difficult if there is a water moratorium as we will need a small amount of potable water.
2. Storm drains: five storm drain projects were completed; these met all “Clean Water Act” requirements.
3. Street projects totaled $516,000 in ’08-09; some 60 were in the downtown district. Several areas of concrete and sidewalk were replaced with permeable pavers that we will be using exclusively.
4. The underground water tank at Del Mar will be larger and relocated. The whole Del Mar parking area will be resurfaced and the curbs lowered this spring of 2010.
5. The Fourth Avenue riparian habitat project between Monte Verde and San Antonio has been completed except for a substitute source for the City’s manual watering by our water truck. (See also number 6.) A ceremonial ribbon cutting was held with the 4th Avenue neighbors to celebrate what they are calling the nicest street in the City. The project was awarded “Outstanding Urban Forest Project 2009” by the Urban Forest Council.
6. San Antonio Walkway: We are working with the Pebble Beach Company to construct a San Antonio walkway from Fourth Avenue to the Carmel Gate and from Fourth through the dunes westward to the beach. The Del Mar Project provides for a walkway from Ocean to Fourth along the west side of San Antonio, thus completing a walkway from the city’s northern border with Pebble Beach to its southern border with Monterey County.
7. The paving project and realignment of the median strip from Junipero between Ocean and 8th Avenues have now been funded by the Transportation Agency for Monterey County and Proposition 172. We adopted a construction truck impact fee to generate new revenue for maintenance of our streets.
OTHER PROJECTS:
Tourism: The City is updating its travel website, has printed a compact map of sites and courtyards and has provided funding for a free trolley that runs on a circular route from Ocean Avenue to the Carmel Mission and the beach, with many in between stops. We are grateful to the Monterey Salinas Transit (MST) for its printing of the brochure/map. New pay and display parking meters have been installed at the north end of Sunset and Plaza bus parking that we hope will be more user friendly.
Litigation: Most local governments face challenges to their decisions and actions that, unfortunately, at times result in litigation, and Carmel is no exception:
A. Flanders: In July 2009, the Flanders Foundation sued the City, again challenging the adequacy of the Environmental Impact Report (EIR). In November 2009, the public voted to authorize the City Council to proceed with the sale of the Flanders Mansion. A trial date of February 10, 2010, has been set for the Court’s review of the City’s amended EIR. In an ongoing effort to avoid the time and expense of this litigation, the Mayor has taken the initiative in attempting to work with the Flanders Foundation through their attorney to determine if there is a possible common resolution to the Foundation’s concerns.
B. Homescapes (SE corner of Dolores and 7th): the applicant filed a second lawsuit challenging the City’s denial of his project. The first lawsuit was heard last year with the City prevailing. That lawsuit was appealed by the applicant. We are currently awaiting a trail date.
C. Miller: Lawsuits involving personnel issues are handled differently in that the employee and potential witnesses have certain rights of privacy. Such is the case in this instance. The normal course of action in such cases is that the City immediately investigates the charges. There is no reason to assume that the City has done otherwise but because we are in litigation, regrettably we are constrained from commenting.
The “Greening of Carmel:”
In addition to the reduction of car usage by substituting the trolley, we established a Green Committee which is working on sustainable programs and incentives under the direction of the Planning Department and Planning Commission. A green building ordinance has been adopted and incentives are being drafted. This follows banning of smoking on the beach and continuing our pioneering effort of 1989 as the second city in the state to ban polystyrene. Now we have a county-wide ordinance banning such use. We have also recycled 1,400 pounds of household batteries and 69% of our trash collection.
Library: We have almost completed the fire suppression system for the vault at Park Branch. In addition we have acquired on permanent loan from the Frank Devendorf family (one of the two founders of Carmel) their chronicles of the development of Carmel-by-the-Sea and the surrounding area. This will be the Library’s largest single collection and dates from 1902.
Emergency Preparedness: The new plan was received by Council and is now being implemented. First order of business was the installation of a generator at the Fire Department. With that accomplished, plans for a generator for the Police Department and its Emergency Operations Center are under way. Funding is in place over the next two years for the NGEN or Next Generation of radios for the Police Department and Public Works, which will cost close to $500,000.
Forest and Beach:
For the fifth year, the City has received a Tree City USA Award. A second part-time Forest Care Worker was added to water and plant new trees (160 planted). The City had a demonstration of the Barber Surf Rake which might provide a solution for how we can both continue beach fires and keep the beach clean. Staff and contractors have removed almost 11,000 pounds of charcoal from the beach this year. With partial funding from the Monterey Peninsula Regional Park District, we have completed one footbridge in Mission Trail Park; a second one is planned.
Water: The imposition of a water moratorium on the Water District will have a chilling impact on our economy and way of life until a new source of water is up and running - which will mean several years. The City Attorney has spent much time on this issue and Carmel joined with three other Peninsula mayors to meet with the State Water Resources Control Board for lengthy sessions both on the Peninsula and in Sacramento.
In sum, and in spite of the downturn in the state and national economies, there has been much accomplished by skillfully managing resources. In the process, we appreciate the understanding and support from citizens and staff.
Sue McCloud
Mayor
Karen Sharp
Vice Mayor
COMMENTS, CLARIFICATIONS & AMPLIFICATIONS:
•The City has over $10 million in reserve funds; this magnitude of reserve funds relative to the annual budget only makes sense if the City did not have deferred maintenance requirements. Yet, the City has, for example, deferred maintenance requirements related to streets. In 2008-2009, street projects totaled $516,000; $516,000 is less than the minimum amount of $660,000/year recommended by Nichols Consulting Engineeers, Chtd. to maintain Carmel-by-the-Sea’s streets as is, i.e., the current PCI of 70. Other deferred maintenance projects include the Scout House and the Public Works building - both buildings are currently inaccessible to the public.
•The BLUE Ocean Film Festival and Conservation Summit announced its relocation from Savannah, Georgia to Monterey, California.
•In September 2009, the City Council approved a Resolution for construction phasing and cost planning of Richard McCann’s Schematic Design for the Forest Theater accomplished by William Camille, former Project Manager of Sunset Center; included was a preliminary oral report, final report and presentation to the public at a City Council meeting, all expected to be accomplished in about one month. Yet, as of February 2010, William Camille has only given a preliminary oral report to Mayor Sue McCloud, Vice Mayor Karen Sharp and City Administrator Rich Guillen and there is no established timeline for a final report or presentation to the public at a future City Council meeting.
Alternatively, a City Council with foresight and a commitment to the Forest Theatre could have funded and implemented the Forest Theater Facility Master Plan (2001) by now yielding modest improvements to the Forest Theatre at less expense to Carmel-by-the-Sea taxpayers.
• Measure I, Sale of the Flanders Mansion Property, Actual Vote Totals, as follows:
Vote Count Percent
YES 913 62.32%
NO 552 37.68%
Total 1,465 100.00%
• On Wednesday morning, 10 February 2010, Judge Kay T. Kingsley heard oral arguments from Flanders Foundation attorney Susan Brandt-Hawley and the attorney for the City Richard Harray in Courtroom 14 at the Monterey Courthouse. Judge Kinsley articulated her inclination to rule in favor of the Petitioner regarding the Surplus Land Act issue and the City regarding the inclusion of the economic feasibility analysis report in the EIR issue. A written decision is expected within 90 days.
• While Mayor Sue McCloud declares that the Flanders Foundation is "again challenging the adequacy of the Environmental Impact Report (EIR)," the Flanders Foundation is also challenging other issues, including, the Surplus Land Act issues and the economic feasibility analysis.
• While there is no evidence to support Mayor Sue McCloud’s declaration that she “has taken the initiative in attempting to work with the Flanders Foundation through their attorney to determine if there is a possible common resolution to the Foundation’s concerns,” there is substantial evidence in the public record indicating Mayor Sue McCloud refused to meet and confer with representatives of the Flanders Foundation for the purpose of determining and implementing a public use for the Flanders Mansion since becoming mayor in 2000.
• With regard to Mandurrago, John, et al vs. City of Carmel-by-the-Sea, et al. (M97273), Judge Robert O’Farrell dismissed the case based on his decision that the petitioner had not exhausted administrative remedies, i.e., a decision by the City Council. In other words, the merit of John Mandurrago’s lawsuit was not considered, namely issues of violations of the California Constitution, California Government Code, Housing Accountability Act, California Environmental Quality Act, et cetera.
• With regard to Miller, Jane Kingsley vs. City of Carmel-by-the-Sea et al, (M99513), contrary to Mayor Sue McCloud declaration that "there is no reason to assume that the City" did not immediately investigate Jane Miller's charges, the public record shows that the City failed to immediately investigate Jane Miller's charges of sexual harassment, employment discrimination and retaliation. In fact, the City delayed three months in hiring attorney/private investigator Karen Kramer to investigate Jane Miller’s complaint. Moreover, Karen Kramer apparently did not interview four former city employees with allegedly similar complaints to on-leave Human Resources Manager Jane Miller, namely former Assistant City Administrator Greg D’Ambrosio, former Sunset Center Director Brian Donoghue, former Library Director Margaret Pelikan and former Executive Assistant Sandy Farrell.
ADDENDUM:
The Four Standards of a Tree City USA
To qualify for Tree City USA, a town or city must meet four standards established by The Arbor Day Foundation and the National Association of State Foresters.
These standards were established to ensure that every qualifying community would have a viable tree management plan and program.
It is important to note that they were also designed so that no community would be excluded because of size.
1. A Tree Board or Department
2. A Tree Care Ordinance
3. A Community Forestry Program With an Annual Budget of at Least $2 Per Capita
4. An Arbor Day Observance and Proclamation
Tuesday, February 09, 2010
Hearing: The Flanders Foundation vs. City of Carmel by the Sea et al. (M99437), SUPERIOR COURT OF CALIFORNIA, COUNTY OF MONTEREY
UPDATE: WHEN: Wednesday, February 10, 2010, 10:30 A.M. - 12:00 P.M.
WHAT: Hearing for The Flanders Foundation vs. City of Carmel by the Sea et al. (M99437)
WHEN: Wednesday, February 10, 2010 @ 9:00 A.M.
WHERE: Monterey Courthouse, 1200 Aguajito Rd. Monterey, CA 93940, Courtroom 14 (Second Floor), Judge Kay T. Kingsley
NOTE: View Updated Case Details - Select a Division, "Civil Unlimited," Case Number, Type "M99437," click "Search."
ADDENDUM:
Local Rules of Court
WHAT: Hearing for The Flanders Foundation vs. City of Carmel by the Sea et al. (M99437)
WHEN: Wednesday, February 10, 2010 @ 9:00 A.M.
WHERE: Monterey Courthouse, 1200 Aguajito Rd. Monterey, CA 93940, Courtroom 14 (Second Floor), Judge Kay T. Kingsley
NOTE: View Updated Case Details - Select a Division, "Civil Unlimited," Case Number, Type "M99437," click "Search."
ADDENDUM:
Local Rules of Court
Saturday, January 30, 2010
Skip Lloyd, Carmel Resident: '... if one’s vote turns out to be wasted, it is the city council’s fault, not that of those who brought the lawsuit...'
ABSTRACT: In a Letter to the Editor, The Carmel Pine Cone (11/20/2009), attorney Skip Lloyd explains “how it can be that the pending lawsuit over the EIR regarding the Flanders sale, if lost by the city, could void the public vote on the issue as presented to the voters.” Highlights of the letter and a link to the entire letter are presented.
HIGHLIGHTS of ‘Flanders election a mistake:’
“... the pending lawsuit over the EIR regarding the Flanders sale, if lost by the city, could void the public vote on the issue as presented to the voters.”
“... it should be recalled that the citizens would not even have had their required vote in the Flanders matter if the city council had not been sued and forced to hold the election regarding Flanders which the law required.”
“The reasoning behind the CRA’s statement was that, if the city lost the lawsuit, the council would have wasted the cost of the election and have put the community through an election wherein, in the end, one’s vote was meaningless.”
“... if one’s vote turns out to be wasted, it is the city council’s fault, not that of those who brought the lawsuit in order to make the city council comply with CEQA’s purpose to adequately explore the environmental impacts of a sale of Flanders, so that the city and the public were fully informed before voting on the issue.”
(Source: Letters to the Editor, Flanders election a mistake, Francis (“Skip”) Lloyd, Carmel, The Carmel Pine Cone, 28A)
HIGHLIGHTS of ‘Flanders election a mistake:’
“... the pending lawsuit over the EIR regarding the Flanders sale, if lost by the city, could void the public vote on the issue as presented to the voters.”
“... it should be recalled that the citizens would not even have had their required vote in the Flanders matter if the city council had not been sued and forced to hold the election regarding Flanders which the law required.”
“The reasoning behind the CRA’s statement was that, if the city lost the lawsuit, the council would have wasted the cost of the election and have put the community through an election wherein, in the end, one’s vote was meaningless.”
“... if one’s vote turns out to be wasted, it is the city council’s fault, not that of those who brought the lawsuit in order to make the city council comply with CEQA’s purpose to adequately explore the environmental impacts of a sale of Flanders, so that the city and the public were fully informed before voting on the issue.”
(Source: Letters to the Editor, Flanders election a mistake, Francis (“Skip”) Lloyd, Carmel, The Carmel Pine Cone, 28A)
Friday, January 29, 2010
Petitioner’s Reply Brief in Support of Petition for Writ of Mandamus: FLANDERS FOUNDATION v. CITY OF CARMEL-BY-THE-SEA, CITY OF CARMEL-BY-THE-SEA CITY COUNCIL (M99437)
ABSTRACT: With regard to FLANDERS FOUNDATION, Petitioner and Plaintiff, v. CITY OF CARMEL-BY-THE-SEA, CITY OF CARMEL-BY-THE-SEA CITY COUNCIL, Respondents and Defendants (Case No. M99437), selected excerpts from Petitioner’s Reply Brief are presented; emphasis is placed on the “Analysis of Economic Feasibility,” and it is reproduced in its entirety. The Hearing is scheduled for Wednesday, February 10, 2010, Courtroom 14, Judge Kay T. Kingsley, Monterey Courthouse.
BRANDT-HAWLEY LAW GROUP
Susan Brandt-Hawley, SBN 75907
P.O. Box 1659
Glen Ellen, CA. 95442
Attorney for Petitioner
THE FLANDERS FOUNDATION
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF MONTEREY
THE FLANDERS FOUNDATION,
A California Nonprofit Public Benefit corporation, Petitioner
v.
CITY OF CARMEL-BY-THE-SEA and CITY COUCIL OF THE CITY OF CARMEL-BY-THE-SEA
Case No. M99437
Petitioner’s Reply Brief in Support of Petition for Writ of Mandamus
California Environmental Quality Act [CEQA]
Date: February 10, 2010
Time: 9:00 a.m.
Dept.: 17
Filed January 27, 2010
Introduction
The feasibility of continued public ownership and use of public parkland is not tied to a profit rubric. Public parks are amenities, not commercial properties acquired to generate income. As referenced in Flanders 1, the Carmel Municipal Code explains the purpose of park-zoned land is to “preserve publicly owned park and beachlands for the benefit and enjoyment of present and future generations” and to “provide appropriately located areas for recreation.” There is, understandably, no mention of economic gain in the definition. Yet the City continues to assert that profit-oriented analysis of continued public ownership of Flanders is relevant to the feasibility of leasing the mansion, without any showing that the City needs and cannot generate funds in other ways.
As to the new CBRE economic report, the credentials of the City’s experts are sufficient but the questions addressed are not those required by CEQA and ordered by this Court in Flanders 1. This Court rejected the City’s claims that a sale of Flanders Mansion was necessary to “generate funds for [the City’s] capital improvements.” It held that the City had not shown a need to generate funds from Flanders to fund its other projects and noted that the fact that a lease alternative could be more expensive or less profitable cannot prove financial infeasibility, citing Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564-565.
The economic analysis prepared in response to the peremptory writ considered Flanders’ potential to independently operate at a profit, rather than any need to sell the mansion in order to finance other City projects. The City contends that its economic health and needs are irrelevant to the question of Flanders profitability. It has missed the point, despite the efforts of Flanders Foundation to explain the error. “This is not a matter of profit...the question is ‘is it practical to proceed with ownership...?’ 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 if the city rehabilitates Flanders, it will be left in an untenable economic position.”] This is not a project to develop private property for profit.
Flanders Mansion is an integral part of Mission Trails Nature Preserve and the City agrees that its sale is a significant unavoidable environmental impact under CEQA because it will result in the “loss of City ownership of locally-significant parkland.” It therefore cannot be approved if there is a feasible alternative to sale. The City did not acquire the mansion to generate income, but as a park. It currently retains its P-2 parkland zoning. The City acknowledges that since the City’s acquisition in 1972, the mansion has been used as an art institute, as offices for the Carmel Heritage Society, as library and offices for the Lester Rowntree Arboretum Committee, and as a residence for various City employees and caretakers.
The California Legislature makes it difficult for public entities to sell parkland for public entities to sell parkland because parks are public amenities rather than profit-generating land uses. While elected decisionmakers have broad discretion to make land use decisions, CEQA imposes constraints to ensure environmental protection and the Government Code adds restrictions to divestment of parkland.
Analysis of Economic Feasibility
a. Feasibility Analysis should be in the EIR. The Flanders Foundation continues to rely on its opening brief’s discussion on this issue. On a minor point, the city’s repeated references to San Franciscans Upholding the Downtown Plan v. City of San Francisco (2002) 102 Cal.App.4th 656 as a Third District case are inaccurate: San Francisco is home to the First District Court of Appeal.
The City’s claims that Guideline section 15131 has statutory authority are unsupported. Section 15131, a copy of which was attached to the opening brief along with the Office of Planning and Research Official Discussion, references various general sections of the Public Resources Code for the underlying “authority cited” – not including section 21081.5 now relied upon by the City. Guideline section 15131 remains without statutory authority in its statement that economic information relevant to feasibility need not be contained in an EIR. Without such authority, it cannot lawfully be followed.
Public Resources Section 21081.2 requires that an agency’s CEQA findings made under Public Resources Code section 21081 be supported by substantial evidence in the record. Such evidence must first include a lawfully certified EIR; section 21081.5 cannot be reasonably interpreted as allowing findings relative to CEQA compliance to be made without any consideration of the contents of the EIR. That would eviscerate the entire framework of CEQA. Once an EIR is certified as adequate, a lead agency may also consider additional evidence in the record in making its findings, and absent significant new information or changed circumstances no supplementation of the EIR would be triggered. (Public Resources Code 21166.)
Guideline section 15126.6 (d) requires each EIR to “include sufficient information about each alternative to allow meaningful evaluation, analysis, and comparison with the proposed project.” Yet, as the City explains, San Franciscans Upholding indeed ruled not only that an EIR’s analysis of alternatives need not address economic factors – even when economics form the basis for finding alternatives infeasible – but went much further to state that EIRs need not analyze alternatives at all but only identify them. (San Franciscans Upholding, supra, 102 Cal.App.4th 656, 690; City Brief at 25-26.) Since no other CEQA case has so held, before or since, San Franciscans Upholding stands alone in this overly-narrow and incorrect statement of the function of an EIR alternatives section.
Among myriad examples to the contrary, the California Supreme Court referred to the importance of EIR analysis of alternatives 20 years ago in the landmark Citizens of Goleta Valley v. Board of Supervisors (Goleta 2) (1990) 52 Cal.3d 553;
CEQA establishes no categorical legal imperative as to the scope of alternatives to be analyzed in an EIR. Each case must be evaluated on its facts, which in turn must be reviewed in light of the statutory purpose. Informed by that purpose, we here reaffirm the principle that an EIR for any project subject to CEQA review must consider a reasonable range of alternatives to the project, ... which: (1) offer substantial environmental advantages over the project proposal (Pub. Resources Code 21002); and (2) may be ‘feasibly accomplished in a successful manner’ considering the economic, environmental, social and technological factors involved. (Citations)
More recently, the Supreme Court decided In re Bay Delta (2008) 43 Cal.4th 1143, and in holding that an EIR’s consideration of ten project alternatives was sufficient, consistently described CEQA’s legal requirement for alternatives analysis:
The EIR is the heart of CEQA, and the mitigation and alternatives discussion forms the core of the EIR. (Citation.) The basic framework for analyzing the sufficiency of an EIR’s description of alternatives is set forth by the Legislature in CEQA, by the Governor’s Office of Planning and Research in the CEQA Guidelines ... and by this court in [Goleta 2]. CEQA requires that an EIR, in addition to analyzing the environmental effects of a proposed project, also consider and analyze project alternatives that would reduce adverse environmental impacts.
Aside from San Franciscans Upholding, there is no case of which Flanders Foundation’s counsel is aware that holds that an EIR “itself” need not “contain an analysis of the feasibility of the various project alternatives or mitigation measures that it identifies.” (San Franciscans Upholding, supra, 102 Cal.App. 4th 656, 690.) This singular and restrictive interpretation of the Public Resources Code should not be followed by this Court, as it is inconsistent with case law and with the policies and purposes of CEQA.
Further, the City misunderstands the findings referenced in Public Resources Code section 21081 when it argues the Pub. Resources Code section 21081.5 somehow applies to questions of EIR adequacy. Section 21081.5 provides in its entirety that “[i]n making the findings required by paragraph (3) of subdivision (a) of Section 21081, the public agency shall base its findings on substantial evidence in the record.” (Pub. Resources Code 21081.5.) The referenced subsection (3)(a) addresses lead agency approval findings required for any project with a significant impact, but on the sole question of whether or not project mitigation measures and alternatives that were identified in a project EIR are infeasible. (Pub. Resources Code 21081 (a)(3).) It has no application to the question of EIR adequacy, as already explained in the opening brief.
The City’s colorful suggestion that the Court is being coaxed onto a ledge by the suggestion that an EIR’s alternatives analysis should address economic information in cases in which feasibility hinges on such information is itself extreme. Despite the handful of unsupported cases in the First and Fifth appellate districts, each relying on one another without any statutory underpinnings, there is no authority in the Public Resources Code for a conclusion that economics need not be included in an EIR’s analysis of alternatives even when highly relevant. As the City concedes, many cases in fact do so. The illogical idea that economic information may invariably be excluded is likely related to earlier sections of the CEQA Guidelines that provide that the economic impacts of projects need not be studied, since EIR’s focus on the environment rather than on economics. (E.g., Guideline 15064 (e).)
Before economic considerations are to relied upon to determine that an environmentally superior project alternative is infeasible, decisionmakers and the public should be provided with objective analysis of the alternative within the prescribed EIR process, as laid out in Guideline section 15126.6 (d) and consistent with the policies of CEQA. (E.g., Public Resources Code 21002 [“...it is policy of the state that public agencies should not approve projects if there are feasible alternatives ... which would substantially lessen the significant environmental impacts... and the procedures required ... are intended to assist public agencies in systematically identifying ... feasible alternatives ...”] CEQA compels process. It is a meticulous process designed to ensure that the environment is protected ... the EIR is the heart and soul of CEQA.” (Planning and Conservation League v. Department of Water Resources (2000) 83 Cal.App. 4th 892.) In Save Our Peninsula Committee v. Monterey County Board of Supervisors (2001) 87 Cal.App. 4th 99, the Sixth District consistently underscored that “[t[he integrity of the [CEQA} process is dependent on the adequacy of the EIR.”
Economic feasible is particularly relevant to cases involving historic resource rehabilitation. Without statutory authority, Guideline section 15131 cannot be followed to exclude relevant analysis, and the unsupported line of cases rejecting economic feasibility inquiry has not been and should not be endorsed in the Sixth District. The City should have included the CBRE report’s analysis within the Revised EIR and subjected it to public and agency review, comment, and responses. The City chose to exclude it from the EIR and thereby failed to proceed in the manner required by law. A writ should correct this error.
b. The CBRE Report was Inadequate. As pointed out in the Introduction, the City’s claim that the City’s budget and financial needs are irrelevant to the economic feasibility of a lease of Flanders springs from its misunderstanding of the point of economic feasibility analysis. The proposed demolition of the Jackling House by Steve Jobs in Uphold Our Heritage v. Town of Woodside (2007) 147 Cal.App.4th 587 was a case in which the wealth of the property owner was irrelevant to the question of whether rehabilitation of an historic home was economically feasible. The feasibility of Job’s project related no to his own wealth, but to whether the money spent to rehabilitate the Jackling House residence would be reasonable when compared to the costs of demolition and building a new home.
The economic issue in this case is different, because the Mission Trails Nature Preserve and the Flanders Mansion are parkland never intended to be profitable. Only if the City had significant debts and insufficient capital and provided a well-supported economic report to the effect that selling Flanders Mansion was the only feasible way to obtain funds to run the city might there be an economic basis for a sale of its parkland. Nothing is more relevant to the question at hand than the City’s budget and needs, and the CBRE report does not provide substantial evidence that a lease of Flanders is economically infeasible. To prove infeasibility, the City would require a different report.
C. Lease of Flanders Mansion is Feasible
The only way the Uphold our Heritage scenario would be relevant is if Carmel’s goal was to manage its property in a manner to avoid a loss of net value. But even if so, the facts do not indicate that a lease is infeasible as all indications are that any moneys spent to maintain or rehabilitate Flanders will be directly reflected in increased property value. Conceding that the “practical” pursuit of a project involves a reasonable return, it is reasonable to spend a million dollars on park property that will fully retain (and increase) its value and also serve as a public amenity. Even if it could take up to seventeen years to recoup the moneys invested, no problem is shown because the City does not deny its surplus of $11 million. Further, there is no evidence supporting the City’s assumption that it must fully rehabilitate the mansion before leasing, as the Architectural Resources Group report provided requested information for a full rehabilitation but did not conclude that all possible upgrades were necessary.
The Emporium development in San Franciscans Upholding involved a substantial redevelopment project whose commercial success was dependent on balancing costs with projected revenue streams. (San Franciscans Upholding, supra, 102 Cal.App.4th 656, 6930695.) The City points out that in that case the additional costs and lost profitability of project alternatives were “sufficiently severe to render them impractical,” and claims similarity here. Yet, what is “economically feasible” for a property that is not intended to be profitable? The City of Carmel has abandoned the claims it made in Flanders 1 that it needed to sell Flanders Mansion in order to finance other city projects; it now claims that its budget, surplus funds, and needs are irrelevant to its decision to sell the mansion. No economic infeasibility has been shown.
The City’s new argument based on California Native Plant Society v. City of Santa Cruz (CNPS), supra, 177 Cal.App.4th 957, to the effect that “policy” considerations make a lease of Flanders Mansion infeasible, is also insupportable. CNPS upheld the City of Santa Cruz’s approval of a park master plan because the City adequately justified its rejection of project alternatives that failed to meet key objectives. While the Court recognized that the project objectives reflected City policies, it did not make a broad holding that a lead agency could declare any project alternative infeasible as a matter of its undefined policy preference. If the mere invocation of “policy” were to be sufficient basis to find every project alternative infeasible, it is hard to imaging any project approval, whether public or private, that could not be justified by “policy” considerations. What City doesn’t “prefer” its approved project? Cases such as City of Marina v. Board of Trustee (2006) 39 Cal.4th 34, in which an agency’s approval was set aside, would be meaningless under such a standard.
Carmel’s reliance on the CNPS case is rather ironic, as CNPS focused on the fulfillment of long-adopted objectives to further public park amenities, including handicapped access to park trails. (CNPS, supra, 177 Cal.App.4th 957, 971, 1001.) Here, to the contrary, the sale of Flanders Mansion was found by the Revised EIR to have significant environmental impacts due to its inconsistencies with the City’s codified general plan and coastal land use policies applicable to parkland and historic resources: G5-6 [Preserve and acquire open space and parks], O5-21 [Optimize use of City parks], P5-46 [Preserve, protect, and restore areas of historical value] and P5-107 [Provide for public access and passive enjoyment of City parks and open space]. The City Council tenuously disagreed with the EIR’s determination of significant impact on this point.
Agencies appropriately enjoy wide discretion in approval of land use projects. However, when significant environmental impacts are identified that can be feasibly mitigated by a project alternative, CEQA fairly limits agencies’ discretion to ignore or reject them. The only codified policies relating to feasibility in this case are those militating against the sale of Flanders Mansion. There is no City policy supporting the sale of historic parkland, and the feasibility of a lease alternative is not trumped by an assertion of preference under the broad label of “policy.” Here, no codified policy can possibly be interpreted as being furthered by the City’s divestment of a landmark mansion located in public parkland, creating an in-holding with undisputed significant impacts on the park.
The City must “adopt the alternative that provide[s] the greater mitigation of adverse effects...” (Citizens of Goleta Valley v. Board of Supervisors (Goleta 1) 197 Cal.App.3d 1167, 1186. CEQA’a intention that public agencies “should not approve projects as proposed if there are feasible alternatives...” must be interpreted to afford the fullest possible protection to the environment within the reasonable scope of the statutory language. (Pub. Resources Code 21002; Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259.) No substantial evidence supports the City’s contention that a lease of Flanders Mansion is economically infeasible or against City “policy.” A writ should issue to set aside the approval of sale under CEQA’s substantive mandate, because of needless significant environmental impact when there is a feasible alternative.
Conclusion
The Flanders Foundation appreciates that the Court does not lightly interfere with the public policy decisions of an elected decisionmaking body such as the Carmel City Council. But when a decision has significant environmental impacts, CEQA overrides the Council’s discretion until its mandated procedures and substance are met.
The peremptory writ should issue because the Revised Flanders EIR failed to assess environmental impacts related to compliance with the Surplus Land Act, failed to adequately respond to comments, and failed to analyze the feasibility of a viable alternative. The City’s findings violated the substantive mandate of CEQA because no substantial evidence supports the infeasibility of a lease alternative or the statement of overriding considerations.
The Court’s enforcement of CEQA is respectfully requested to provide great and longstanding public benefit to the citizens of Carmel.
Respectfully submitted,
BRANDT-HAWLEY LAW GROUP
Susan Brandt-Hawley
Attorney for Petitioner
January 25, 2010
BRANDT-HAWLEY LAW GROUP
Susan Brandt-Hawley, SBN 75907
P.O. Box 1659
Glen Ellen, CA. 95442
Attorney for Petitioner
THE FLANDERS FOUNDATION
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF MONTEREY
THE FLANDERS FOUNDATION,
A California Nonprofit Public Benefit corporation, Petitioner
v.
CITY OF CARMEL-BY-THE-SEA and CITY COUCIL OF THE CITY OF CARMEL-BY-THE-SEA
Case No. M99437
Petitioner’s Reply Brief in Support of Petition for Writ of Mandamus
California Environmental Quality Act [CEQA]
Date: February 10, 2010
Time: 9:00 a.m.
Dept.: 17
Filed January 27, 2010
Introduction
The feasibility of continued public ownership and use of public parkland is not tied to a profit rubric. Public parks are amenities, not commercial properties acquired to generate income. As referenced in Flanders 1, the Carmel Municipal Code explains the purpose of park-zoned land is to “preserve publicly owned park and beachlands for the benefit and enjoyment of present and future generations” and to “provide appropriately located areas for recreation.” There is, understandably, no mention of economic gain in the definition. Yet the City continues to assert that profit-oriented analysis of continued public ownership of Flanders is relevant to the feasibility of leasing the mansion, without any showing that the City needs and cannot generate funds in other ways.
As to the new CBRE economic report, the credentials of the City’s experts are sufficient but the questions addressed are not those required by CEQA and ordered by this Court in Flanders 1. This Court rejected the City’s claims that a sale of Flanders Mansion was necessary to “generate funds for [the City’s] capital improvements.” It held that the City had not shown a need to generate funds from Flanders to fund its other projects and noted that the fact that a lease alternative could be more expensive or less profitable cannot prove financial infeasibility, citing Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564-565.
The economic analysis prepared in response to the peremptory writ considered Flanders’ potential to independently operate at a profit, rather than any need to sell the mansion in order to finance other City projects. The City contends that its economic health and needs are irrelevant to the question of Flanders profitability. It has missed the point, despite the efforts of Flanders Foundation to explain the error. “This is not a matter of profit...the question is ‘is it practical to proceed with ownership...?’ 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 if the city rehabilitates Flanders, it will be left in an untenable economic position.”] This is not a project to develop private property for profit.
Flanders Mansion is an integral part of Mission Trails Nature Preserve and the City agrees that its sale is a significant unavoidable environmental impact under CEQA because it will result in the “loss of City ownership of locally-significant parkland.” It therefore cannot be approved if there is a feasible alternative to sale. The City did not acquire the mansion to generate income, but as a park. It currently retains its P-2 parkland zoning. The City acknowledges that since the City’s acquisition in 1972, the mansion has been used as an art institute, as offices for the Carmel Heritage Society, as library and offices for the Lester Rowntree Arboretum Committee, and as a residence for various City employees and caretakers.
The California Legislature makes it difficult for public entities to sell parkland for public entities to sell parkland because parks are public amenities rather than profit-generating land uses. While elected decisionmakers have broad discretion to make land use decisions, CEQA imposes constraints to ensure environmental protection and the Government Code adds restrictions to divestment of parkland.
Analysis of Economic Feasibility
a. Feasibility Analysis should be in the EIR. The Flanders Foundation continues to rely on its opening brief’s discussion on this issue. On a minor point, the city’s repeated references to San Franciscans Upholding the Downtown Plan v. City of San Francisco (2002) 102 Cal.App.4th 656 as a Third District case are inaccurate: San Francisco is home to the First District Court of Appeal.
The City’s claims that Guideline section 15131 has statutory authority are unsupported. Section 15131, a copy of which was attached to the opening brief along with the Office of Planning and Research Official Discussion, references various general sections of the Public Resources Code for the underlying “authority cited” – not including section 21081.5 now relied upon by the City. Guideline section 15131 remains without statutory authority in its statement that economic information relevant to feasibility need not be contained in an EIR. Without such authority, it cannot lawfully be followed.
Public Resources Section 21081.2 requires that an agency’s CEQA findings made under Public Resources Code section 21081 be supported by substantial evidence in the record. Such evidence must first include a lawfully certified EIR; section 21081.5 cannot be reasonably interpreted as allowing findings relative to CEQA compliance to be made without any consideration of the contents of the EIR. That would eviscerate the entire framework of CEQA. Once an EIR is certified as adequate, a lead agency may also consider additional evidence in the record in making its findings, and absent significant new information or changed circumstances no supplementation of the EIR would be triggered. (Public Resources Code 21166.)
Guideline section 15126.6 (d) requires each EIR to “include sufficient information about each alternative to allow meaningful evaluation, analysis, and comparison with the proposed project.” Yet, as the City explains, San Franciscans Upholding indeed ruled not only that an EIR’s analysis of alternatives need not address economic factors – even when economics form the basis for finding alternatives infeasible – but went much further to state that EIRs need not analyze alternatives at all but only identify them. (San Franciscans Upholding, supra, 102 Cal.App.4th 656, 690; City Brief at 25-26.) Since no other CEQA case has so held, before or since, San Franciscans Upholding stands alone in this overly-narrow and incorrect statement of the function of an EIR alternatives section.
Among myriad examples to the contrary, the California Supreme Court referred to the importance of EIR analysis of alternatives 20 years ago in the landmark Citizens of Goleta Valley v. Board of Supervisors (Goleta 2) (1990) 52 Cal.3d 553;
CEQA establishes no categorical legal imperative as to the scope of alternatives to be analyzed in an EIR. Each case must be evaluated on its facts, which in turn must be reviewed in light of the statutory purpose. Informed by that purpose, we here reaffirm the principle that an EIR for any project subject to CEQA review must consider a reasonable range of alternatives to the project, ... which: (1) offer substantial environmental advantages over the project proposal (Pub. Resources Code 21002); and (2) may be ‘feasibly accomplished in a successful manner’ considering the economic, environmental, social and technological factors involved. (Citations)
More recently, the Supreme Court decided In re Bay Delta (2008) 43 Cal.4th 1143, and in holding that an EIR’s consideration of ten project alternatives was sufficient, consistently described CEQA’s legal requirement for alternatives analysis:
The EIR is the heart of CEQA, and the mitigation and alternatives discussion forms the core of the EIR. (Citation.) The basic framework for analyzing the sufficiency of an EIR’s description of alternatives is set forth by the Legislature in CEQA, by the Governor’s Office of Planning and Research in the CEQA Guidelines ... and by this court in [Goleta 2]. CEQA requires that an EIR, in addition to analyzing the environmental effects of a proposed project, also consider and analyze project alternatives that would reduce adverse environmental impacts.
Aside from San Franciscans Upholding, there is no case of which Flanders Foundation’s counsel is aware that holds that an EIR “itself” need not “contain an analysis of the feasibility of the various project alternatives or mitigation measures that it identifies.” (San Franciscans Upholding, supra, 102 Cal.App. 4th 656, 690.) This singular and restrictive interpretation of the Public Resources Code should not be followed by this Court, as it is inconsistent with case law and with the policies and purposes of CEQA.
Further, the City misunderstands the findings referenced in Public Resources Code section 21081 when it argues the Pub. Resources Code section 21081.5 somehow applies to questions of EIR adequacy. Section 21081.5 provides in its entirety that “[i]n making the findings required by paragraph (3) of subdivision (a) of Section 21081, the public agency shall base its findings on substantial evidence in the record.” (Pub. Resources Code 21081.5.) The referenced subsection (3)(a) addresses lead agency approval findings required for any project with a significant impact, but on the sole question of whether or not project mitigation measures and alternatives that were identified in a project EIR are infeasible. (Pub. Resources Code 21081 (a)(3).) It has no application to the question of EIR adequacy, as already explained in the opening brief.
The City’s colorful suggestion that the Court is being coaxed onto a ledge by the suggestion that an EIR’s alternatives analysis should address economic information in cases in which feasibility hinges on such information is itself extreme. Despite the handful of unsupported cases in the First and Fifth appellate districts, each relying on one another without any statutory underpinnings, there is no authority in the Public Resources Code for a conclusion that economics need not be included in an EIR’s analysis of alternatives even when highly relevant. As the City concedes, many cases in fact do so. The illogical idea that economic information may invariably be excluded is likely related to earlier sections of the CEQA Guidelines that provide that the economic impacts of projects need not be studied, since EIR’s focus on the environment rather than on economics. (E.g., Guideline 15064 (e).)
Before economic considerations are to relied upon to determine that an environmentally superior project alternative is infeasible, decisionmakers and the public should be provided with objective analysis of the alternative within the prescribed EIR process, as laid out in Guideline section 15126.6 (d) and consistent with the policies of CEQA. (E.g., Public Resources Code 21002 [“...it is policy of the state that public agencies should not approve projects if there are feasible alternatives ... which would substantially lessen the significant environmental impacts... and the procedures required ... are intended to assist public agencies in systematically identifying ... feasible alternatives ...”] CEQA compels process. It is a meticulous process designed to ensure that the environment is protected ... the EIR is the heart and soul of CEQA.” (Planning and Conservation League v. Department of Water Resources (2000) 83 Cal.App. 4th 892.) In Save Our Peninsula Committee v. Monterey County Board of Supervisors (2001) 87 Cal.App. 4th 99, the Sixth District consistently underscored that “[t[he integrity of the [CEQA} process is dependent on the adequacy of the EIR.”
Economic feasible is particularly relevant to cases involving historic resource rehabilitation. Without statutory authority, Guideline section 15131 cannot be followed to exclude relevant analysis, and the unsupported line of cases rejecting economic feasibility inquiry has not been and should not be endorsed in the Sixth District. The City should have included the CBRE report’s analysis within the Revised EIR and subjected it to public and agency review, comment, and responses. The City chose to exclude it from the EIR and thereby failed to proceed in the manner required by law. A writ should correct this error.
b. The CBRE Report was Inadequate. As pointed out in the Introduction, the City’s claim that the City’s budget and financial needs are irrelevant to the economic feasibility of a lease of Flanders springs from its misunderstanding of the point of economic feasibility analysis. The proposed demolition of the Jackling House by Steve Jobs in Uphold Our Heritage v. Town of Woodside (2007) 147 Cal.App.4th 587 was a case in which the wealth of the property owner was irrelevant to the question of whether rehabilitation of an historic home was economically feasible. The feasibility of Job’s project related no to his own wealth, but to whether the money spent to rehabilitate the Jackling House residence would be reasonable when compared to the costs of demolition and building a new home.
The economic issue in this case is different, because the Mission Trails Nature Preserve and the Flanders Mansion are parkland never intended to be profitable. Only if the City had significant debts and insufficient capital and provided a well-supported economic report to the effect that selling Flanders Mansion was the only feasible way to obtain funds to run the city might there be an economic basis for a sale of its parkland. Nothing is more relevant to the question at hand than the City’s budget and needs, and the CBRE report does not provide substantial evidence that a lease of Flanders is economically infeasible. To prove infeasibility, the City would require a different report.
C. Lease of Flanders Mansion is Feasible
The only way the Uphold our Heritage scenario would be relevant is if Carmel’s goal was to manage its property in a manner to avoid a loss of net value. But even if so, the facts do not indicate that a lease is infeasible as all indications are that any moneys spent to maintain or rehabilitate Flanders will be directly reflected in increased property value. Conceding that the “practical” pursuit of a project involves a reasonable return, it is reasonable to spend a million dollars on park property that will fully retain (and increase) its value and also serve as a public amenity. Even if it could take up to seventeen years to recoup the moneys invested, no problem is shown because the City does not deny its surplus of $11 million. Further, there is no evidence supporting the City’s assumption that it must fully rehabilitate the mansion before leasing, as the Architectural Resources Group report provided requested information for a full rehabilitation but did not conclude that all possible upgrades were necessary.
The Emporium development in San Franciscans Upholding involved a substantial redevelopment project whose commercial success was dependent on balancing costs with projected revenue streams. (San Franciscans Upholding, supra, 102 Cal.App.4th 656, 6930695.) The City points out that in that case the additional costs and lost profitability of project alternatives were “sufficiently severe to render them impractical,” and claims similarity here. Yet, what is “economically feasible” for a property that is not intended to be profitable? The City of Carmel has abandoned the claims it made in Flanders 1 that it needed to sell Flanders Mansion in order to finance other city projects; it now claims that its budget, surplus funds, and needs are irrelevant to its decision to sell the mansion. No economic infeasibility has been shown.
The City’s new argument based on California Native Plant Society v. City of Santa Cruz (CNPS), supra, 177 Cal.App.4th 957, to the effect that “policy” considerations make a lease of Flanders Mansion infeasible, is also insupportable. CNPS upheld the City of Santa Cruz’s approval of a park master plan because the City adequately justified its rejection of project alternatives that failed to meet key objectives. While the Court recognized that the project objectives reflected City policies, it did not make a broad holding that a lead agency could declare any project alternative infeasible as a matter of its undefined policy preference. If the mere invocation of “policy” were to be sufficient basis to find every project alternative infeasible, it is hard to imaging any project approval, whether public or private, that could not be justified by “policy” considerations. What City doesn’t “prefer” its approved project? Cases such as City of Marina v. Board of Trustee (2006) 39 Cal.4th 34, in which an agency’s approval was set aside, would be meaningless under such a standard.
Carmel’s reliance on the CNPS case is rather ironic, as CNPS focused on the fulfillment of long-adopted objectives to further public park amenities, including handicapped access to park trails. (CNPS, supra, 177 Cal.App.4th 957, 971, 1001.) Here, to the contrary, the sale of Flanders Mansion was found by the Revised EIR to have significant environmental impacts due to its inconsistencies with the City’s codified general plan and coastal land use policies applicable to parkland and historic resources: G5-6 [Preserve and acquire open space and parks], O5-21 [Optimize use of City parks], P5-46 [Preserve, protect, and restore areas of historical value] and P5-107 [Provide for public access and passive enjoyment of City parks and open space]. The City Council tenuously disagreed with the EIR’s determination of significant impact on this point.
Agencies appropriately enjoy wide discretion in approval of land use projects. However, when significant environmental impacts are identified that can be feasibly mitigated by a project alternative, CEQA fairly limits agencies’ discretion to ignore or reject them. The only codified policies relating to feasibility in this case are those militating against the sale of Flanders Mansion. There is no City policy supporting the sale of historic parkland, and the feasibility of a lease alternative is not trumped by an assertion of preference under the broad label of “policy.” Here, no codified policy can possibly be interpreted as being furthered by the City’s divestment of a landmark mansion located in public parkland, creating an in-holding with undisputed significant impacts on the park.
The City must “adopt the alternative that provide[s] the greater mitigation of adverse effects...” (Citizens of Goleta Valley v. Board of Supervisors (Goleta 1) 197 Cal.App.3d 1167, 1186. CEQA’a intention that public agencies “should not approve projects as proposed if there are feasible alternatives...” must be interpreted to afford the fullest possible protection to the environment within the reasonable scope of the statutory language. (Pub. Resources Code 21002; Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259.) No substantial evidence supports the City’s contention that a lease of Flanders Mansion is economically infeasible or against City “policy.” A writ should issue to set aside the approval of sale under CEQA’s substantive mandate, because of needless significant environmental impact when there is a feasible alternative.
Conclusion
The Flanders Foundation appreciates that the Court does not lightly interfere with the public policy decisions of an elected decisionmaking body such as the Carmel City Council. But when a decision has significant environmental impacts, CEQA overrides the Council’s discretion until its mandated procedures and substance are met.
The peremptory writ should issue because the Revised Flanders EIR failed to assess environmental impacts related to compliance with the Surplus Land Act, failed to adequately respond to comments, and failed to analyze the feasibility of a viable alternative. The City’s findings violated the substantive mandate of CEQA because no substantial evidence supports the infeasibility of a lease alternative or the statement of overriding considerations.
The Court’s enforcement of CEQA is respectfully requested to provide great and longstanding public benefit to the citizens of Carmel.
Respectfully submitted,
BRANDT-HAWLEY LAW GROUP
Susan Brandt-Hawley
Attorney for Petitioner
January 25, 2010
Thursday, January 28, 2010
Respondents' Brief: FLANDERS FOUNDATION, Petitioner and Plaintiff, v. CITY OF CARMEL-BY-THE-SEA, CITY OF CARMEL-BY-THE-SEA CITY COUNCIL (M99437)
ABSTRACT: With regard to FLANDERS FOUNDATION, Petitioner and Plaintiff, v. CITY OF CARMEL-BY-THE-SEA, CITY OF CARMEL-BY-THE-SEA CITY COUNCIL, Respondents and Defendants (CASE NO. M99437), selected excerpts from Respondents Brief are presented; emphasis is placed on the "Lease of the Flanders Mansion Is Infeasible on Economic and Public Policy Grounds" section, and it is reproduced in its entirety. The Hearing is scheduled for Wednesday, February 10, 2010, Courtroom 14, Judge Kay T. Kingsley, Monterey Courthouse.
Donald G. Freeman (SBN 47833)
Perry & Freeman
PO Box 805
Carmel, CA 93921-0805
Richard K. Harray (SBN 41978)
Kennedy, Archer & Harray
24591 Silver Cloud Ct Ste 200
Monterey, CA 93940
Attorneys for
CITY OF CARMEL-BY-THE-SEA AND CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA
Filed December 14, 2009
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF MONTEREY
FLANDERS FOUNDATION,
Petitioner and Plaintiff,
v.
CITY OF CARMEL-BY-THE-SEA, CITY OF CARMEL-BY-THE-SEA CITY COUNCIL,
Respondents and Defendants
CASE NO. M99437
ISSUES
The issues before the Court are:
1. Does res judicata preclude the litigation of all Surplus Land Act, deferred mitigation, and General Plan consistency claims?
2. Did the City follow proper procedures relating to the proposed sale of the Mansion parcel?
3. Does substantial evidence support the City’s findings that the lease alternatives are infeasible?
4. Does substantial evidence support the City’s statement of overriding considerations?
ARGUMENT
A. Res Judicata Precludes the Litigation of All Surplus Land Act, Deferred Mitigation, and General Plan Consistency Claims.
B. The EIR is Adequate and Complete
1. Statutory and Regulatory Framework of CEQA
2 Surplus Land Act Claims
a. Analysis of Environmental Effects Relating to the Surplus Land Act is Adequate
3. Responses to Comments
C. Analysis of Economic Feasibility
1. An Analysis of Economic Feasibility Is Not Required To Be in the 2009 EIR.
2. The CBRE Report Is Adequate.
3. Lease of the Flanders Mansion Is Infeasibility on Economic and Public Policy Grounds.
The City concurs with Petitioner that the 2009 EIR has identified significant unavoidable impacts of the Project. And where an EIR has identified significant unavoidable impacts, an agency may not approve the project unless it first finds that “[s]pecific economic, legal, social, technological, or other considerations…make infeasible the mitigation measures or alternatives identified...” (Pub. Resources Code 21081(a)(3); Guidelines 15091(a)(3).)
a. Lease of the Flanders Mansion Is Infeasible on Economic Grounds
A lease of the Flanders Mansion, whether a lease for single-family residential use (“Single-Family Lease”) or a lease for public/quasi-public use (“Public/Quasi-Public Lease”), is not a feasible alternative (collectively, the “Lease Alternatives”). More specifically, after a careful and thorough review of an exhaustive economic analysis, the City has found both lease alternatives infeasible on economic grounds.
As noted by Petitioner, in assessing the sufficiency of the City’s findings regarding the feasibility of the Lease Alternatives, the Court is to apply the highly deferential substantial evidence standard of review. (California Native Plant, supra, 177 Cal.App.4th at 982.) In other words, with all reasonable doubts resolved in favor of the City’s conclusions, in light of the record as a whole, if there is enough relevant information and reasonable inferences from this information that a fair argument can be made to support such findings, even though other conclusions might also be reached, there was no abuse of discretion. (See Laurel I, supra, 47 Cal.3d 376, 392-3.)
“Feasibility” is defined in CEQA to mean “capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.” (Pub. Resources Code 21061.1 (emphasis added).) As the italicized language above shows, economic viability is one of the factors that may be taken into account in addressing the feasibility of an alternative. (Guidelines 15126.6(f)(1).)
Case law interpreting CEQA over the last few decades has distilled two key concepts related to findings of economic infeasibility: comparison and impracticality. Both are addressed below.
Regarding comparison, courts have stressed the importance, when determining economic infeasibility, that there exists somewhere in the record “evidence which analyzes the alternatives in terms of comparative costs, comparative profits or losses, or to the extent appropriate, comparative economic benefit to the [local agency], nearby communities, or the public at large.” (Goleta I, supra, 197 Cal.App.3d at 1180.) In short, there needs to be a basis for a comparative analysis between the project and the alternatives found economically infeasible, as in the absence of such comparative data and analysis “no meaningful conclusions regarding the feasibility of the alternative [can be] reached.”
The exhaustive two-hundred-plus-page CBRE Report compared the Single-Family Lease alternative, the Public/Quasi-Public Lease alternative, the sale as a single-family residence (“Single-Family Sale”) alternative, and the sale as non-residential property (“Non-Residential Sale”) alternative all to one another, both assuming that the $1,157,000 estimated cost of rehabilitating the Mansion had been paid by the City and assuming that it had not. The CBRE Report’s conclusions are as follows.
The Single-Family Lease alternative was determined to be virtually impossible in a scenario where a potential lessee was responsible for covering the $1,157,000 cost of rehabilitating the Mansion because an already “exceedingly thin” market for comparable rentals would become non-existent. Assuming the City paid for the rehabilitation and a Single-Family Lease were effected and remained constant despite the “exceedingly thin” market, it would take 17 years for the City to recoup the $1,157,000; in other words, it would take 17 years for the City to break even. Only after the break-even point would the City generate readily-available funds, likely receiving roughly $68,000 a year in annual net operating income.
The conclusions regarding an ”exceedingly thin” rental market are similar for the Public/Quasi-Public Lease alternative. (“a very limited market for comparable non-residential rentals”). Again, assuming the City paid for the rehabilitation, and a Public/Quasi-Public Lease were effected and remained constant despite the sparse market, it would take 8.7 years for the City to recoup the cost of rehabilitation; in other words, it would take 8.7 years for the City to break even. Only after the break-even point would the city generate readily-available funds, likely receiving roughly $132,000 a year in annual net operating income.
In dramatic contrast are the CBRE Report’s conclusions regarding the Single-Family Sale and the Non-Residential Sale alternatives. Regardless of whether the City paid the rehabilitation cost or not, the Single-Family Sale would net the City $2,843,000, and the Non-Residential Sale would net the City $890,000, either amount immediately available to be utilized by the City for the benefit of its citizens.
The above comparison, clearly satisfies the requirement of the California Supreme Court for evidence in the record showing an analysis of the alternatives in terms of comparative costs, comparative profits or losses, or to the extent appropriate, comparative economic benefit to the local agency. (See Goleta I, supra, 197 Cal.App.3d at 1180.)
In regard to impracticality, “the fact that an alternative may be more expensive or less profitable is not sufficient to show that the alternative is financially infeasible...[w]hat is required is evidence that the additional costs or lost profitability are sufficiently severe as to render it impractical to proceed with the [alternative].”
In San Franciscans Upholding, the court found such impracticality applying facts similar to ours. (102 Cal.App.4th 656.) The proposed project called for the replacement of most of the Emporium Building, considered one of the preeminent historical buildings in San Francisco, with new construction so that it could house a Bloomingdale’s, a restaurant, other retail and office space, and a hotel, among other things. A detailed economic analysis of each of the five proposed alternatives calculated development costs (similar in concept to the Mansion’s rehabilitation cost) and projected revenue streams. The similarity to our case is that the court found economic infeasibility based on a disparity between the alternatives and the proposed project with regard to additional costs and lost profitability that were “sufficiently severe as to render them impractical.”
Here, the City has analyzed the Lease Alternatives, and determined that they will cost the City an initial investment of $1,157,000, for which the city will not see a positive return from anywhere between 8.7 and 17 years. This assumes, of course, that despite expert opinion that the rental market for such a unique property is “exceedingly thin,” the City will be able to find and keep a lessee for that entire period. Only if all of the foregoing occurs, only if everything goes right, will the City see funds ranging from $68,000 to $132,000 annually. The City has compared these alternatives to both a Single-Family Sale and Non-Residential Sale, which are not subject to the vagaries of a sparse rental market, and which will likely net the City between $890,000 and $2,843,000 as soon as the Mansion Parcel is sold. The comparative difference in returns, both with regard to amount and time, is sufficiently severe as to render the lease alternatives impractical. And every bit as important, the extreme remoteness of finding a lessor also makes the lease option impractical, if not virtually impossible.
Petitioner, with what it believes is the full might of Uphold Our Heritage behind it, argues that such findings of economic infeasibility are not supported by substantial evidence in the record. However, Uphold Our Heritage supports the City’s findings of economic infeasibility instead of Petitioner’s argument. In Uphold Our Heritage, the town of Woodside issued a permit to Steve Jobs authorizing demolition of a mansion of historic significance (the “Jackling House”) on his property so that he could build a private residence. (147 Cal.App.4th at 594.) Five alternatives were proffered and four rejected by Woodside due to economic infeasibility. It is crucial to the understanding of the court’s holding to note that because Steve Jobs declined to submit any information regarding how much it would cost to build his private residence there was no such information in the record. Woodside contended that the findings of infeasibility were supported by the evidence that the cost of rehabilitation was estimated to range from $4.9 million, based on the analysis in the EIR, to between $5 and $10 million, as estimated by Steve Jobs. In other words, if Steve Jobs paid to rehabilitate the house and live in it, rather than building a private residence, it would cost between $4.9 and $10 million. But this was not enough for a finding of economic infeasibility. The court explained that “[i]f the cost of renovation exceeds the cost of new construction, it is the magnitude of the difference that will determine the feasibility.” But because there was no information on the cost of building a new residence in the record, “[t]here is no evidence of any economic analysis whatsoever to compare the cost of the proposed project alternatives versus the cost of the proposed project, i.e., the estimated cost of the new residence...[t]hat the alternatives may cost millions of dollars is not enough information as it has no context.” Nevertheless, the court did determine that because two alternatives would clearly cost $5 million in addition to the cost of building a new home, there is a reasonable inference that these alternatives are not economically feasible.
Here, the CBRE Report shows that a Single-Family Sale will net the City $2,843,000 and a Non-Residential Sale will net the City $890,000, while the Lease Alternatives will cost the City $1,157,000 up front, a difference of between $4,000,000 and $2,047,000, respectively. Admittedly, if the City were able to lease the Mansion Parcel in light of the extremely sparse rental market for such a unique property and keep it occupied, it would recoup that initial $1,157,000 investment somewhere between 8.7 years (with $132,000 in rent) and 17 years (with $68,000 in rent). After that, the City would net between $68,000 and $132,000 annually. Thus, assuming that the Mansion Parcel is leased continually, and as has been shown that is not a probable event, and not taking into account the time value of money, it will take the City between 15.5 years (with $132,000 in rent) and 30 years (with $68,000 in rent) to obtain the $890,000 it could net now upon a Non-Residential Sale and it will take the City between 30.2 years (with $132,000 in rent) and 58.8 years (with $68,000 in rent) to obtain the $2,843,000 that it could net now upon a Single-Family Sale. This renders the Lease Alternatives economically infeasible.
Petitioner attempts to discount the disparity in the comparative analysis by arguing that with a lease the Mansion will “continue to escalate in value”; thus, “[i]f someday an unlikely event occurs and Carmel needs funding...the property will still be available for sale at that time at an ever-increasing value.” Perhaps Petitioner has forgotten that for the past four years it has attempted to thwart the City’s attempts to sell the Mansion. Now, when it suits Petitioner’s argument, it states that the City may do so, someday, and thus the rehabilitation cost does not contribute to a finding of economic infeasibility because it is actually an investment that would “immediately translate into increased property value.” The City finds such an argument untenable and somewhat disingenuous.
Petitioner also argues that the conclusions of the two-hundred-plus page CBRE Report regarding the “exceedingly thin” rental market is nothing but a “vague statement” (i.e., unsubstantial evidence). The City commissioned experts in the field to conduct a thorough analysis and one of the conclusions of such experts is that the rental market for the Mansion is “exceedingly thin.” The City sees no reason why it should discount such conclusion. In contrast to the alleged “vague statement” of the CBRE Report, supported by extensive research and expertise, and conducted in 2009, Petitioner appears to assert that the following, ostensibly non-vague, well-supported claims prove that full restoration at no cost to the City, and even a lease of the Mansion, are all but assured: (i) comments the Flanders Foundation made to the City Council on May 4, 2009; and (ii) the Flanders Foundation’s 1999 thirteen-page business plan, with attached accountant’s report, also dated 1999. The fact that other, outdated “evidence” may be found in the record does not render the CBRE Report’s conclusions and findings unsubstantial evidence.
Finally, Petitioner points out the City’s “$11 million reserves and budget surplus” as if it is a factor relevant to this analysis. The City would like to clarify for the Court that in determining economic infeasibility, the wealth of the project proponent is irrelevant. As stated elsewhere in this brief, in rejecting a claim that “the financial wherewithal of the project applicant bears upon the feasibility of...project alternatives,” the Uphold Our Heritage court clarified that, “the question is not whether [the project proponent] can afford the proposed alternative, but whether the marginal costs of the alternative as compared to the cost of the proposed project are so great that a reasonably prudent property owner would not proceed with the rehabilitation.” (147 Cal.App.4th at 599-600.)
b. Lease of the Flanders Mansion in Infeasible on Public Policy Grounds
In addition to finding the Lease Alternatives economically infeasible, the City has also found them infeasible on public policy grounds. The primary purpose of the Proposed Project is to divest the City of the Mansion Parcel, which is in need of short-term and long-term repair and rehabilitation. The City has determined that neither lease alternative achieves this primary purpose of divestment. In additional, the City’s findings set forth in 2AR8:1871-1886 make it clear that the City found the Lease Alternatives infeasible, not simply on economic grounds, but also because they cannot achieve the primary project purpose of divestment. (2AR8:1878 “the Lease Alternatives would retain City ownership of the [Mansion Parcel]”; 2AR8:1880 “specific economic and other factors make infeasible...leasing the Flanders Mansion”) Furthermore, the City found the “No Project” alternative infeasible because retention of the Flanders Mansion fails to achieve the primary project purpose of divestment; thus, because the Lease Alternatives also fail to achieve divestment, it can be readily deduced that they were found infeasible for the same reason. This deduction is supported by the following statement by the City” “The City [], having reviewed the Economic Feasibility Analysis...along with the discussion of the alternatives in Sections 6.0 through 6.7 of the RFEIR [Section 6.4 notes that neither of the lease alternatives achieves the primary project purpose] finds that both lease alternatives...are infeasible under the legal standards for infeasibility under CEQA.”
As very recently noted by the Sixth District, “an alternative may be found infeasible on the ground that it is inconsistent with the project objectives as long as the finding is supported by substantial evidence in the record.” (California Native Plant 177 Cal.App.4th at 1001.) In California Native Plant, the Sixth District agreed with the local agency that it was “legally justified in rejecting environmentally superior alternatives as ‘infeasible’ on the basis of its determination that the alternatives were undesirable from a policy standpoint because they failed to achieve...the primary objectives…of the [project].”(see also Sequoyah Hills, supra, 23 Cal.App.4th at 715 [holding that decisionmakers are permitted to reject as ‘infeasible’ an alternative not fully satisfying the objectives of a proposed project].) The Sixth District found such a determination by the local agency was both justified under relevant case law and consistent with statutory factors.
Furthermore, any argument that the City merely rejected the Lease Alternatives because it did not like them, not because they were truly influenced on public policy grounds, should fail. Just such an argument was rejected in California Native Plant, with the Sixth District characterizing it as “nothing more than a policy disagreement with the [local agency.]” More specifically, the Sixth District determined that while its case did not involve “straightforward questions of legal or economic feasibility...and that such cases may present brighter lines for judicial review,” the local agency in making its finding on infeasibility “determined how the numerous competing and necessarily conflicting interests should be resolved” and that it was “wholly improper for [the court] to arrogate to [itself] a policy decision which is properly the mandate of the [local agency].”
In summary, the City has found the Lease Alternatives infeasibility, both on economic and public policy grounds. Such findings are supported by substantive evidence.
D. the Statement of Overriding considerations Is Supported by Substantial Evidence.
CONCLUSION
It is not the City’s intention to impugn the integrity of Petitioner’s multiple challenges to the City’s attempts to divest itself of the Mansion Parcel. Indeed, the City understands and accepts that such challenges are an inexorable aspect of CEQA and environmental protection in California. Nevertheless, the City would like to gently remind the Court that: “the wisdom of approving [the divestment of the Mansion Parcel], a delicate task which requires a balancing of interests, is necessarily left to the sound discretion of the local officials and their constituents who are responsible for such decisions.” (Goleta II, supra, 52 Cal.3d 576.) CEQA “simply requires that those decisions be informed, and therefore balanced.” Thus, as the California Supreme Court has cautioned, “rules regulating the protection of the environment must not be subverted into an instrument for the oppression and delay of social, economic, or recreational development and advancement.”
Res judicata precludes litigation of all Surplus Land Act, deferred mitigation, and General Plan consistency claims. Nonetheless, the City’s actions were correct and in full compliance with the law. The Writ of Mandamus should be denied.
Dated: December 14, 2009
KENNEDY, ARCHER & HARRAY
By: Richard K. Harray
Attorneys of Respondent
CITY OF CARMEL-BY-THE-SEA
Donald G. Freeman (SBN 47833)
Perry & Freeman
PO Box 805
Carmel, CA 93921-0805
Richard K. Harray (SBN 41978)
Kennedy, Archer & Harray
24591 Silver Cloud Ct Ste 200
Monterey, CA 93940
Attorneys for
CITY OF CARMEL-BY-THE-SEA AND CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA
Filed December 14, 2009
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF MONTEREY
FLANDERS FOUNDATION,
Petitioner and Plaintiff,
v.
CITY OF CARMEL-BY-THE-SEA, CITY OF CARMEL-BY-THE-SEA CITY COUNCIL,
Respondents and Defendants
CASE NO. M99437
ISSUES
The issues before the Court are:
1. Does res judicata preclude the litigation of all Surplus Land Act, deferred mitigation, and General Plan consistency claims?
2. Did the City follow proper procedures relating to the proposed sale of the Mansion parcel?
3. Does substantial evidence support the City’s findings that the lease alternatives are infeasible?
4. Does substantial evidence support the City’s statement of overriding considerations?
ARGUMENT
A. Res Judicata Precludes the Litigation of All Surplus Land Act, Deferred Mitigation, and General Plan Consistency Claims.
B. The EIR is Adequate and Complete
1. Statutory and Regulatory Framework of CEQA
2 Surplus Land Act Claims
a. Analysis of Environmental Effects Relating to the Surplus Land Act is Adequate
3. Responses to Comments
C. Analysis of Economic Feasibility
1. An Analysis of Economic Feasibility Is Not Required To Be in the 2009 EIR.
2. The CBRE Report Is Adequate.
3. Lease of the Flanders Mansion Is Infeasibility on Economic and Public Policy Grounds.
The City concurs with Petitioner that the 2009 EIR has identified significant unavoidable impacts of the Project. And where an EIR has identified significant unavoidable impacts, an agency may not approve the project unless it first finds that “[s]pecific economic, legal, social, technological, or other considerations…make infeasible the mitigation measures or alternatives identified...” (Pub. Resources Code 21081(a)(3); Guidelines 15091(a)(3).)
a. Lease of the Flanders Mansion Is Infeasible on Economic Grounds
A lease of the Flanders Mansion, whether a lease for single-family residential use (“Single-Family Lease”) or a lease for public/quasi-public use (“Public/Quasi-Public Lease”), is not a feasible alternative (collectively, the “Lease Alternatives”). More specifically, after a careful and thorough review of an exhaustive economic analysis, the City has found both lease alternatives infeasible on economic grounds.
As noted by Petitioner, in assessing the sufficiency of the City’s findings regarding the feasibility of the Lease Alternatives, the Court is to apply the highly deferential substantial evidence standard of review. (California Native Plant, supra, 177 Cal.App.4th at 982.) In other words, with all reasonable doubts resolved in favor of the City’s conclusions, in light of the record as a whole, if there is enough relevant information and reasonable inferences from this information that a fair argument can be made to support such findings, even though other conclusions might also be reached, there was no abuse of discretion. (See Laurel I, supra, 47 Cal.3d 376, 392-3.)
“Feasibility” is defined in CEQA to mean “capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.” (Pub. Resources Code 21061.1 (emphasis added).) As the italicized language above shows, economic viability is one of the factors that may be taken into account in addressing the feasibility of an alternative. (Guidelines 15126.6(f)(1).)
Case law interpreting CEQA over the last few decades has distilled two key concepts related to findings of economic infeasibility: comparison and impracticality. Both are addressed below.
Regarding comparison, courts have stressed the importance, when determining economic infeasibility, that there exists somewhere in the record “evidence which analyzes the alternatives in terms of comparative costs, comparative profits or losses, or to the extent appropriate, comparative economic benefit to the [local agency], nearby communities, or the public at large.” (Goleta I, supra, 197 Cal.App.3d at 1180.) In short, there needs to be a basis for a comparative analysis between the project and the alternatives found economically infeasible, as in the absence of such comparative data and analysis “no meaningful conclusions regarding the feasibility of the alternative [can be] reached.”
The exhaustive two-hundred-plus-page CBRE Report compared the Single-Family Lease alternative, the Public/Quasi-Public Lease alternative, the sale as a single-family residence (“Single-Family Sale”) alternative, and the sale as non-residential property (“Non-Residential Sale”) alternative all to one another, both assuming that the $1,157,000 estimated cost of rehabilitating the Mansion had been paid by the City and assuming that it had not. The CBRE Report’s conclusions are as follows.
The Single-Family Lease alternative was determined to be virtually impossible in a scenario where a potential lessee was responsible for covering the $1,157,000 cost of rehabilitating the Mansion because an already “exceedingly thin” market for comparable rentals would become non-existent. Assuming the City paid for the rehabilitation and a Single-Family Lease were effected and remained constant despite the “exceedingly thin” market, it would take 17 years for the City to recoup the $1,157,000; in other words, it would take 17 years for the City to break even. Only after the break-even point would the City generate readily-available funds, likely receiving roughly $68,000 a year in annual net operating income.
The conclusions regarding an ”exceedingly thin” rental market are similar for the Public/Quasi-Public Lease alternative. (“a very limited market for comparable non-residential rentals”). Again, assuming the City paid for the rehabilitation, and a Public/Quasi-Public Lease were effected and remained constant despite the sparse market, it would take 8.7 years for the City to recoup the cost of rehabilitation; in other words, it would take 8.7 years for the City to break even. Only after the break-even point would the city generate readily-available funds, likely receiving roughly $132,000 a year in annual net operating income.
In dramatic contrast are the CBRE Report’s conclusions regarding the Single-Family Sale and the Non-Residential Sale alternatives. Regardless of whether the City paid the rehabilitation cost or not, the Single-Family Sale would net the City $2,843,000, and the Non-Residential Sale would net the City $890,000, either amount immediately available to be utilized by the City for the benefit of its citizens.
The above comparison, clearly satisfies the requirement of the California Supreme Court for evidence in the record showing an analysis of the alternatives in terms of comparative costs, comparative profits or losses, or to the extent appropriate, comparative economic benefit to the local agency. (See Goleta I, supra, 197 Cal.App.3d at 1180.)
In regard to impracticality, “the fact that an alternative may be more expensive or less profitable is not sufficient to show that the alternative is financially infeasible...[w]hat is required is evidence that the additional costs or lost profitability are sufficiently severe as to render it impractical to proceed with the [alternative].”
In San Franciscans Upholding, the court found such impracticality applying facts similar to ours. (102 Cal.App.4th 656.) The proposed project called for the replacement of most of the Emporium Building, considered one of the preeminent historical buildings in San Francisco, with new construction so that it could house a Bloomingdale’s, a restaurant, other retail and office space, and a hotel, among other things. A detailed economic analysis of each of the five proposed alternatives calculated development costs (similar in concept to the Mansion’s rehabilitation cost) and projected revenue streams. The similarity to our case is that the court found economic infeasibility based on a disparity between the alternatives and the proposed project with regard to additional costs and lost profitability that were “sufficiently severe as to render them impractical.”
Here, the City has analyzed the Lease Alternatives, and determined that they will cost the City an initial investment of $1,157,000, for which the city will not see a positive return from anywhere between 8.7 and 17 years. This assumes, of course, that despite expert opinion that the rental market for such a unique property is “exceedingly thin,” the City will be able to find and keep a lessee for that entire period. Only if all of the foregoing occurs, only if everything goes right, will the City see funds ranging from $68,000 to $132,000 annually. The City has compared these alternatives to both a Single-Family Sale and Non-Residential Sale, which are not subject to the vagaries of a sparse rental market, and which will likely net the City between $890,000 and $2,843,000 as soon as the Mansion Parcel is sold. The comparative difference in returns, both with regard to amount and time, is sufficiently severe as to render the lease alternatives impractical. And every bit as important, the extreme remoteness of finding a lessor also makes the lease option impractical, if not virtually impossible.
Petitioner, with what it believes is the full might of Uphold Our Heritage behind it, argues that such findings of economic infeasibility are not supported by substantial evidence in the record. However, Uphold Our Heritage supports the City’s findings of economic infeasibility instead of Petitioner’s argument. In Uphold Our Heritage, the town of Woodside issued a permit to Steve Jobs authorizing demolition of a mansion of historic significance (the “Jackling House”) on his property so that he could build a private residence. (147 Cal.App.4th at 594.) Five alternatives were proffered and four rejected by Woodside due to economic infeasibility. It is crucial to the understanding of the court’s holding to note that because Steve Jobs declined to submit any information regarding how much it would cost to build his private residence there was no such information in the record. Woodside contended that the findings of infeasibility were supported by the evidence that the cost of rehabilitation was estimated to range from $4.9 million, based on the analysis in the EIR, to between $5 and $10 million, as estimated by Steve Jobs. In other words, if Steve Jobs paid to rehabilitate the house and live in it, rather than building a private residence, it would cost between $4.9 and $10 million. But this was not enough for a finding of economic infeasibility. The court explained that “[i]f the cost of renovation exceeds the cost of new construction, it is the magnitude of the difference that will determine the feasibility.” But because there was no information on the cost of building a new residence in the record, “[t]here is no evidence of any economic analysis whatsoever to compare the cost of the proposed project alternatives versus the cost of the proposed project, i.e., the estimated cost of the new residence...[t]hat the alternatives may cost millions of dollars is not enough information as it has no context.” Nevertheless, the court did determine that because two alternatives would clearly cost $5 million in addition to the cost of building a new home, there is a reasonable inference that these alternatives are not economically feasible.
Here, the CBRE Report shows that a Single-Family Sale will net the City $2,843,000 and a Non-Residential Sale will net the City $890,000, while the Lease Alternatives will cost the City $1,157,000 up front, a difference of between $4,000,000 and $2,047,000, respectively. Admittedly, if the City were able to lease the Mansion Parcel in light of the extremely sparse rental market for such a unique property and keep it occupied, it would recoup that initial $1,157,000 investment somewhere between 8.7 years (with $132,000 in rent) and 17 years (with $68,000 in rent). After that, the City would net between $68,000 and $132,000 annually. Thus, assuming that the Mansion Parcel is leased continually, and as has been shown that is not a probable event, and not taking into account the time value of money, it will take the City between 15.5 years (with $132,000 in rent) and 30 years (with $68,000 in rent) to obtain the $890,000 it could net now upon a Non-Residential Sale and it will take the City between 30.2 years (with $132,000 in rent) and 58.8 years (with $68,000 in rent) to obtain the $2,843,000 that it could net now upon a Single-Family Sale. This renders the Lease Alternatives economically infeasible.
Petitioner attempts to discount the disparity in the comparative analysis by arguing that with a lease the Mansion will “continue to escalate in value”; thus, “[i]f someday an unlikely event occurs and Carmel needs funding...the property will still be available for sale at that time at an ever-increasing value.” Perhaps Petitioner has forgotten that for the past four years it has attempted to thwart the City’s attempts to sell the Mansion. Now, when it suits Petitioner’s argument, it states that the City may do so, someday, and thus the rehabilitation cost does not contribute to a finding of economic infeasibility because it is actually an investment that would “immediately translate into increased property value.” The City finds such an argument untenable and somewhat disingenuous.
Petitioner also argues that the conclusions of the two-hundred-plus page CBRE Report regarding the “exceedingly thin” rental market is nothing but a “vague statement” (i.e., unsubstantial evidence). The City commissioned experts in the field to conduct a thorough analysis and one of the conclusions of such experts is that the rental market for the Mansion is “exceedingly thin.” The City sees no reason why it should discount such conclusion. In contrast to the alleged “vague statement” of the CBRE Report, supported by extensive research and expertise, and conducted in 2009, Petitioner appears to assert that the following, ostensibly non-vague, well-supported claims prove that full restoration at no cost to the City, and even a lease of the Mansion, are all but assured: (i) comments the Flanders Foundation made to the City Council on May 4, 2009; and (ii) the Flanders Foundation’s 1999 thirteen-page business plan, with attached accountant’s report, also dated 1999. The fact that other, outdated “evidence” may be found in the record does not render the CBRE Report’s conclusions and findings unsubstantial evidence.
Finally, Petitioner points out the City’s “$11 million reserves and budget surplus” as if it is a factor relevant to this analysis. The City would like to clarify for the Court that in determining economic infeasibility, the wealth of the project proponent is irrelevant. As stated elsewhere in this brief, in rejecting a claim that “the financial wherewithal of the project applicant bears upon the feasibility of...project alternatives,” the Uphold Our Heritage court clarified that, “the question is not whether [the project proponent] can afford the proposed alternative, but whether the marginal costs of the alternative as compared to the cost of the proposed project are so great that a reasonably prudent property owner would not proceed with the rehabilitation.” (147 Cal.App.4th at 599-600.)
b. Lease of the Flanders Mansion in Infeasible on Public Policy Grounds
In addition to finding the Lease Alternatives economically infeasible, the City has also found them infeasible on public policy grounds. The primary purpose of the Proposed Project is to divest the City of the Mansion Parcel, which is in need of short-term and long-term repair and rehabilitation. The City has determined that neither lease alternative achieves this primary purpose of divestment. In additional, the City’s findings set forth in 2AR8:1871-1886 make it clear that the City found the Lease Alternatives infeasible, not simply on economic grounds, but also because they cannot achieve the primary project purpose of divestment. (2AR8:1878 “the Lease Alternatives would retain City ownership of the [Mansion Parcel]”; 2AR8:1880 “specific economic and other factors make infeasible...leasing the Flanders Mansion”) Furthermore, the City found the “No Project” alternative infeasible because retention of the Flanders Mansion fails to achieve the primary project purpose of divestment; thus, because the Lease Alternatives also fail to achieve divestment, it can be readily deduced that they were found infeasible for the same reason. This deduction is supported by the following statement by the City” “The City [], having reviewed the Economic Feasibility Analysis...along with the discussion of the alternatives in Sections 6.0 through 6.7 of the RFEIR [Section 6.4 notes that neither of the lease alternatives achieves the primary project purpose] finds that both lease alternatives...are infeasible under the legal standards for infeasibility under CEQA.”
As very recently noted by the Sixth District, “an alternative may be found infeasible on the ground that it is inconsistent with the project objectives as long as the finding is supported by substantial evidence in the record.” (California Native Plant 177 Cal.App.4th at 1001.) In California Native Plant, the Sixth District agreed with the local agency that it was “legally justified in rejecting environmentally superior alternatives as ‘infeasible’ on the basis of its determination that the alternatives were undesirable from a policy standpoint because they failed to achieve...the primary objectives…of the [project].”(see also Sequoyah Hills, supra, 23 Cal.App.4th at 715 [holding that decisionmakers are permitted to reject as ‘infeasible’ an alternative not fully satisfying the objectives of a proposed project].) The Sixth District found such a determination by the local agency was both justified under relevant case law and consistent with statutory factors.
Furthermore, any argument that the City merely rejected the Lease Alternatives because it did not like them, not because they were truly influenced on public policy grounds, should fail. Just such an argument was rejected in California Native Plant, with the Sixth District characterizing it as “nothing more than a policy disagreement with the [local agency.]” More specifically, the Sixth District determined that while its case did not involve “straightforward questions of legal or economic feasibility...and that such cases may present brighter lines for judicial review,” the local agency in making its finding on infeasibility “determined how the numerous competing and necessarily conflicting interests should be resolved” and that it was “wholly improper for [the court] to arrogate to [itself] a policy decision which is properly the mandate of the [local agency].”
In summary, the City has found the Lease Alternatives infeasibility, both on economic and public policy grounds. Such findings are supported by substantive evidence.
D. the Statement of Overriding considerations Is Supported by Substantial Evidence.
CONCLUSION
It is not the City’s intention to impugn the integrity of Petitioner’s multiple challenges to the City’s attempts to divest itself of the Mansion Parcel. Indeed, the City understands and accepts that such challenges are an inexorable aspect of CEQA and environmental protection in California. Nevertheless, the City would like to gently remind the Court that: “the wisdom of approving [the divestment of the Mansion Parcel], a delicate task which requires a balancing of interests, is necessarily left to the sound discretion of the local officials and their constituents who are responsible for such decisions.” (Goleta II, supra, 52 Cal.3d 576.) CEQA “simply requires that those decisions be informed, and therefore balanced.” Thus, as the California Supreme Court has cautioned, “rules regulating the protection of the environment must not be subverted into an instrument for the oppression and delay of social, economic, or recreational development and advancement.”
Res judicata precludes litigation of all Surplus Land Act, deferred mitigation, and General Plan consistency claims. Nonetheless, the City’s actions were correct and in full compliance with the law. The Writ of Mandamus should be denied.
Dated: December 14, 2009
KENNEDY, ARCHER & HARRAY
By: Richard K. Harray
Attorneys of Respondent
CITY OF CARMEL-BY-THE-SEA
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