NEWS ARTICLE: Appeals court hears Flanders arguments
By JIM JOHNSON Herald Staff Writer, 10/21/2011
ABSTRACT: On Thursday, 20 October 2011, Justices Mihara, Duffy and Walsh (pro tem) heard oral argument from the attorney for the City of Carmel-by-the-Sea, David W. Balch, and the attorney for The Flanders Foundation, Susan Brandt-Hawley. Both attorneys had approximately 20 minutes for opening statements and 10 minutes rebuttal, including answering direct questions from the Justices. Basically, attorney Brandt-Hawley argued that Judge Kingsley’s decision on the Surplus Land Act issue should be upheld because there was no analysis of the environmental impacts of a public agency purchasing the Flanders Mansion Property in the Environmental Impact Reports (EIR). On the Economic Feasibility Analysis issue, Brandt-Hawley argued that the document should have been a part of the Draft EIR since the basis for the City Council approving the sale or lease of the property was based on the City Council’s determination that the lease option was economically infeasible. She further argued that the Economic Feasibility Analysis was insufficient because it did not ask and answer the correct questions involving analogous properties and analyzing feasible alternatives not limited to the sale of the Flanders Mansion Property. And specifically the context for the Economic Feasibility Analysis of whether the City could make a profit was incorrect. The attorney for the City, David Balch, basically argued that the Court must respect the broad discretion of the City Council in making its decision to approve the sale or lease of the Flanders Mansion Property. Specifically, Balch argued that the City complied with the Surplus Land Act provisions sufficiently because “future action” is “speculative” and therefore any further analysis would be “misleading” and financially wasteful. On the Economic Feasibility Analysis issue, Balch stated that there is no requirement that the Economic Feasibility Analysis be included in the EIR and while the document was not available to the public until after the public comment period closed for the Draft EIR, it was available prior to the City Council’s final determination to approve the sale or lease of the Property. Balch further argued that it is within the discretion of the City to define “infeasible” as 17 years for a residential lease to recoup the cost of the estimated $1.3 million rehabilitation or 7 years for a commercial lease compared to sale of the Flanders Mansion Property for $2.7 million without rehabilitation or $4 million with rehabilitation. Both attorneys recognized that the City’s purpose was divestment of the Property for financial reasons, i.e., a desire not to use taxpayer monies to maintain or improve the Property. Attorney Brandt-Hawley argued that it is feasible to achieve that objective without selling the Flanders Mansion Property, whereas attorney Balch argued that there is substantial evidence in the record to support the City Council’s decision and it is within the City’s discretion to sell the Flanders Mansion Property subject to CEQA and a public vote. During the presentations of the attorneys, Justices asked questions of clarification and other questions regarding the conservation easements and public access issues, reasonable expectations for complying with the Surplus Land Act, et cetera. After approximately one hour, the case was submitted and an opinion is expected within 90 days. A Summary of the Case, prepared by Monterey County, not the Court, was available for the public. The Summary is embedded below.
ORAL ARGUMENT CALENDAR
ORAL ARGUMENT CALENDAR
COURT OF APPEAL, SIXTH APPELLATE DISTRICT
CASE NO. H035818
TITLE THE FLANDERS FOUNDATION, Plaintiff and Appellant v. CITY OF CARMEL-BY-THE-SEA et al., Defendants and Appellants
Clarifications/Corrections to Summary include the following:
• Statement in Summary: “The Mansion borders a 35-arce city park and a public garden.”
Clarification: The Mansion is within Mission Trail Nature Preserve and the 1.252 acre parcel comprises an inholding in the City’s largest park.
• Statement in Summary: “Because the Mansion property included nearly 15 acres of parkland, the City reduced the size of the Mansion property to 1.5 acres.”
Correction/Clarification: The Flanders Mansion Property parcel is 1.252 acres, not 1.5 acres. The “parkland” is Mission Trail Nature Preserve, 35 acres total.
Showing posts with label Flanders Foundation vs. City of Carmel-by-the-Sea et al. Appellate Briefs and Sixth District Court of Appeal Opinion. Show all posts
Showing posts with label Flanders Foundation vs. City of Carmel-by-the-Sea et al. Appellate Briefs and Sixth District Court of Appeal Opinion. Show all posts
Thursday, October 20, 2011
Saturday, September 17, 2011
Sixth Appellate District: Oral Argument, October 20, 2011, The Flanders Foundation v. City of Carmel-by-he-Sea, et al. (H035818)
UPDATE: The justices assigned to hear this case on the Monterey calendar are (in seniority order): Mihara, Acting P.J. (Presiding Justice) ; Duffy, J.; and Walsh, J. (pro tem)
ABSTRACT: ORAL ARGUMENT is scheduled for The Flanders Foundation v. City of Carmel-by-he-Sea, et al. (H035818) on Thursday, October 20, 2011 at 9:30 A.M. at the Monterey County Board of Supervisors Chambers, 168 West Alisal St., 1st Floor, Salinas, CA. “Oral argument, a tradition that dates back to the early days of the English court system, gives justices the opportunity to question counsel in person concerning the issues raised in their briefs. The court provides each side with a set amount of time for oral argument. It is customary for justices to interrupt an argument at any time to ask the attorney to address a specific point. The justices ask such questions to clarify issues of concern as they consider how to decide a case.” After the panel of three Justices has heard oral argument, “a designated panel member prepares an opinion, which is a written statement of the panel’s decision.” “Under the California Constitution, the final majority opinion and any opinions expressing agreement (concurrence) or disagreement (dissent) must be filed within 90 days after the case has been submitted.” Information and links to more information regarding the Justices of the Sixth District Court of Appeal, the 6th District and the California Courts of Appeal process is provided.
Justices
6th District Court of Appeal
Presiding Justice Conrad L. Rushing
Associate Justice Eugene M. Premo
Associate Justice Franklin D. Elia
Associate Justice Patricia Bamattre-Manoukian
Associate Justice Nathan D. Mihara
Associate Justice Wendy Clark Duffy
About the 6th District
A Visitors’ Guide to the California Courts of Appeal
The California Courts of Appeal were established by constitutional amendment in 1904 and are California’s intermediate courts of review. The primary function of the Courts of Appeal is to ensure that the law is interpreted and applied correctly.
California has 6 appellate districts composed of 9 court sites, 19 divisions, and 101 justices. More than 22,000 appeals and original proceedings were filed in the Courts of Appeal during the 2001–2002 fiscal year, representing a nearly 30 percent increase in Court of Appeal filings over the last decade.
WHAT IS AN APPEAL?
An appeal is a request to a higher court to review a decision made in a completed trial or proceeding. Most legal disputes are initially decided by superior courts or certain administrative agencies. After the trial or proceeding is completed, if the losing party is dissatisfied with the outcome and believes that the superior court or administrative agency made an error that adversely affected the result, it may ask the trial court judge to overturn the decision or to order a new trial. If the judge denies the request, the losing party may file an appeal in the Court of Appeal.
ROLE OF THE COURTS OF APPEAL
The California Courts of Appeal review the vast majority of appealable orders or judgments from a superior court. The primary exception arises following a judgment of death, which is automatically appealed directly to the California Supreme Court. Courts of Appeal also do not ordinarily review decisions that are within the jurisdiction of the appellate division of the superior court, such as misdemeanor convictions and limited civil cases.
The Courts of Appeal decide questions of law, such as whether the superior court judge applied the law correctly in a case. The Courts of Appeal do not hear testimony or retry cases. An appeal from a superior court judgment is decided based on the record from the original trial or proceeding.
Issues brought to a Court of Appeal for review commonly include claims such as an incorrect ruling on admissibility of evidence, incorrect application of a law or regulation, unconstitutionality of a law or regulation, improper jury instructions, and insufficient evidence to support the verdict.
HOW THE APPEAL PROCESS WORKS
FILING A NOTICE OF APPEAL
An appeal generally is heard in the appellate district in which the superior court is located. To begin the process, the appealing party files a written notice of appeal with the clerk of the superior court in which the proceeding took place. In civil cases, both the appellant and the respondent (the opposing party) must file notices with the clerk of the
appellate court within prescribed periods of time, designating which transcripts or papers filed in the superior court are to become part of the appellate record. In criminal and juvenile cases, transcripts are prepared automatically. All parties are notified once the record on appeal has been filed with the Court of Appeal.
BRIEFS
From the date the record was filed, the appellant has a specified period of time within which to file an appellant’s opening brief, depending on the type of case. A brief is a written argument that a party or an attorney prepares for the court. It details issues raised by the appellant, including challenges to superior court rulings or findings, and refers to applicable statutes and previous cases to support the appellant’s position. The respondent is then given an opportunity to file a brief in response, and the appellant may then file a reply brief.
APPEALS PANELS
Once all briefs have been submitted, the case is considered “fully briefed” and is ready for assignment to a panel consisting of three justices within a district or a division.
Cases are assigned to justices randomly, based on a rotation system that equalizes the numbers of cases in which the justices participate. On average, 10 to 15 appeals are assigned to each justice every month, in addition to a monthly caseload of roughly 7 to 10 original proceedings.
After the case is fully briefed, it is placed on the court calendar, and a justice on the panel typically is designated to write a memorandum discussing the issues and facts of the case. Each district or division schedules oral arguments on a limited number of days each month. The deputy clerk prepares the monthly calendars and notifies the parties of the date, time, and place of the hearing. Before hearing oral argument, the justices review the briefs and memorandum that have been prepared concerning the appeal
ORAL ARGUMENT
Oral argument, a tradition that dates back to the early days of the English court system, gives justices the opportunity to question counsel in person concerning the issues raised in their briefs. The court provides each side with a set amount of time for oral argument.
It is customary for justices to interrupt an argument at any time to ask the attorney to address a specific point. The justices ask such questions to clarify issues of concern as they consider how to decide a case.
OPINIONS
After the panel has heard oral argument or oral argument has been waived by the parties, a designated panel member prepares an opinion, which is a written statement of the
panel’s decision.
Writing an opinion is an integral part of the decision-making process. Draft opinions are circulated among all three justices until an agreement is reached on a majority opinion. A concurrence of two out of the three justices is necessary to form a majority.
The panel also decides whether to certify the opinion for publication. In general, an opinion is published if it establishes a new rule of law, involves a legal issue of continuing public interest, criticizes existing law, or makes a significant contribution to legal literature. During fiscal year 2001–2002, 7 percent of California Court of Appeal opinions were ordered published.
Under the California Constitution, the final majority opinion and any opinions expressing agreement (concurrence) or disagreement (dissent) must be filed within 90 days after the case has been submitted.
Published opinions establish precedent and must be followed by all California superior courts. Unpublished opinions do not establish precedent and may not be cited as authority to support an argument.
REVIEW OF APPELLATE DECISIONS
Decisions of the Courts of Appeal are subject to discretionary review by the California Supreme Court as well as to review in the U.S. Supreme Court based on the U.S. Constitution and federal statutes.
STEPS IN THE APPEAL PROCESS
Superior court decision made.
▼
Losing party files notice of appeal with superior court.
▼
Superior court clerk notifies other parties and Court of Appeal.
▼
Superior court record is submitted to Court of Appeal.
▼
Both appellant and respondent submit written briefs presenting their legal arguments.
▼
Case is placed on calendar and assigned to a panel of three Court of Appeal justices.
▼
Panel of justices reviews superior court record, written briefs, and applicable law and precedent.
▼
Oral argument is heard, unless waived by litigants.
▼
Concurrence of two of the three justices is necessary to form a majority.
▼
Opinion is written and filed.
▼
Petition for Rehearing
Losing party may ask Court of Appeal to rehear case.
▼
Petition for Review
The losing party may file a petition for review with the California Supreme Court, which grants review in 4 to 5 percent of cases each year.
SOURCE: A Visitors’ Guide to the California Courts of Appeal
Published by the Judicial Council of California
Administrative Office of the Courts
455 Golden Gate Avenue
San Francisco, California 94102-3688
415-865-4200
ADDENUDM:
Sixth District Court of Appeal
333 West Santa Clara Street
Suite 1060
San Jose, CA 95113
Phone: (408) 277-1004
E-mail: Sixth.District@jud.ca.gov
ABSTRACT: ORAL ARGUMENT is scheduled for The Flanders Foundation v. City of Carmel-by-he-Sea, et al. (H035818) on Thursday, October 20, 2011 at 9:30 A.M. at the Monterey County Board of Supervisors Chambers, 168 West Alisal St., 1st Floor, Salinas, CA. “Oral argument, a tradition that dates back to the early days of the English court system, gives justices the opportunity to question counsel in person concerning the issues raised in their briefs. The court provides each side with a set amount of time for oral argument. It is customary for justices to interrupt an argument at any time to ask the attorney to address a specific point. The justices ask such questions to clarify issues of concern as they consider how to decide a case.” After the panel of three Justices has heard oral argument, “a designated panel member prepares an opinion, which is a written statement of the panel’s decision.” “Under the California Constitution, the final majority opinion and any opinions expressing agreement (concurrence) or disagreement (dissent) must be filed within 90 days after the case has been submitted.” Information and links to more information regarding the Justices of the Sixth District Court of Appeal, the 6th District and the California Courts of Appeal process is provided.
Justices
6th District Court of Appeal
Presiding Justice Conrad L. Rushing
Associate Justice Eugene M. Premo
Associate Justice Franklin D. Elia
Associate Justice Patricia Bamattre-Manoukian
Associate Justice Nathan D. Mihara
Associate Justice Wendy Clark Duffy
About the 6th District
A Visitors’ Guide to the California Courts of Appeal
The California Courts of Appeal were established by constitutional amendment in 1904 and are California’s intermediate courts of review. The primary function of the Courts of Appeal is to ensure that the law is interpreted and applied correctly.
California has 6 appellate districts composed of 9 court sites, 19 divisions, and 101 justices. More than 22,000 appeals and original proceedings were filed in the Courts of Appeal during the 2001–2002 fiscal year, representing a nearly 30 percent increase in Court of Appeal filings over the last decade.
WHAT IS AN APPEAL?
An appeal is a request to a higher court to review a decision made in a completed trial or proceeding. Most legal disputes are initially decided by superior courts or certain administrative agencies. After the trial or proceeding is completed, if the losing party is dissatisfied with the outcome and believes that the superior court or administrative agency made an error that adversely affected the result, it may ask the trial court judge to overturn the decision or to order a new trial. If the judge denies the request, the losing party may file an appeal in the Court of Appeal.
ROLE OF THE COURTS OF APPEAL
The California Courts of Appeal review the vast majority of appealable orders or judgments from a superior court. The primary exception arises following a judgment of death, which is automatically appealed directly to the California Supreme Court. Courts of Appeal also do not ordinarily review decisions that are within the jurisdiction of the appellate division of the superior court, such as misdemeanor convictions and limited civil cases.
The Courts of Appeal decide questions of law, such as whether the superior court judge applied the law correctly in a case. The Courts of Appeal do not hear testimony or retry cases. An appeal from a superior court judgment is decided based on the record from the original trial or proceeding.
Issues brought to a Court of Appeal for review commonly include claims such as an incorrect ruling on admissibility of evidence, incorrect application of a law or regulation, unconstitutionality of a law or regulation, improper jury instructions, and insufficient evidence to support the verdict.
HOW THE APPEAL PROCESS WORKS
FILING A NOTICE OF APPEAL
An appeal generally is heard in the appellate district in which the superior court is located. To begin the process, the appealing party files a written notice of appeal with the clerk of the superior court in which the proceeding took place. In civil cases, both the appellant and the respondent (the opposing party) must file notices with the clerk of the
appellate court within prescribed periods of time, designating which transcripts or papers filed in the superior court are to become part of the appellate record. In criminal and juvenile cases, transcripts are prepared automatically. All parties are notified once the record on appeal has been filed with the Court of Appeal.
BRIEFS
From the date the record was filed, the appellant has a specified period of time within which to file an appellant’s opening brief, depending on the type of case. A brief is a written argument that a party or an attorney prepares for the court. It details issues raised by the appellant, including challenges to superior court rulings or findings, and refers to applicable statutes and previous cases to support the appellant’s position. The respondent is then given an opportunity to file a brief in response, and the appellant may then file a reply brief.
APPEALS PANELS
Once all briefs have been submitted, the case is considered “fully briefed” and is ready for assignment to a panel consisting of three justices within a district or a division.
Cases are assigned to justices randomly, based on a rotation system that equalizes the numbers of cases in which the justices participate. On average, 10 to 15 appeals are assigned to each justice every month, in addition to a monthly caseload of roughly 7 to 10 original proceedings.
After the case is fully briefed, it is placed on the court calendar, and a justice on the panel typically is designated to write a memorandum discussing the issues and facts of the case. Each district or division schedules oral arguments on a limited number of days each month. The deputy clerk prepares the monthly calendars and notifies the parties of the date, time, and place of the hearing. Before hearing oral argument, the justices review the briefs and memorandum that have been prepared concerning the appeal
ORAL ARGUMENT
Oral argument, a tradition that dates back to the early days of the English court system, gives justices the opportunity to question counsel in person concerning the issues raised in their briefs. The court provides each side with a set amount of time for oral argument.
It is customary for justices to interrupt an argument at any time to ask the attorney to address a specific point. The justices ask such questions to clarify issues of concern as they consider how to decide a case.
OPINIONS
After the panel has heard oral argument or oral argument has been waived by the parties, a designated panel member prepares an opinion, which is a written statement of the
panel’s decision.
Writing an opinion is an integral part of the decision-making process. Draft opinions are circulated among all three justices until an agreement is reached on a majority opinion. A concurrence of two out of the three justices is necessary to form a majority.
The panel also decides whether to certify the opinion for publication. In general, an opinion is published if it establishes a new rule of law, involves a legal issue of continuing public interest, criticizes existing law, or makes a significant contribution to legal literature. During fiscal year 2001–2002, 7 percent of California Court of Appeal opinions were ordered published.
Under the California Constitution, the final majority opinion and any opinions expressing agreement (concurrence) or disagreement (dissent) must be filed within 90 days after the case has been submitted.
Published opinions establish precedent and must be followed by all California superior courts. Unpublished opinions do not establish precedent and may not be cited as authority to support an argument.
REVIEW OF APPELLATE DECISIONS
Decisions of the Courts of Appeal are subject to discretionary review by the California Supreme Court as well as to review in the U.S. Supreme Court based on the U.S. Constitution and federal statutes.
STEPS IN THE APPEAL PROCESS
Superior court decision made.
▼
Losing party files notice of appeal with superior court.
▼
Superior court clerk notifies other parties and Court of Appeal.
▼
Superior court record is submitted to Court of Appeal.
▼
Both appellant and respondent submit written briefs presenting their legal arguments.
▼
Case is placed on calendar and assigned to a panel of three Court of Appeal justices.
▼
Panel of justices reviews superior court record, written briefs, and applicable law and precedent.
▼
Oral argument is heard, unless waived by litigants.
▼
Concurrence of two of the three justices is necessary to form a majority.
▼
Opinion is written and filed.
▼
Petition for Rehearing
Losing party may ask Court of Appeal to rehear case.
▼
Petition for Review
The losing party may file a petition for review with the California Supreme Court, which grants review in 4 to 5 percent of cases each year.
SOURCE: A Visitors’ Guide to the California Courts of Appeal
Published by the Judicial Council of California
Administrative Office of the Courts
455 Golden Gate Avenue
San Francisco, California 94102-3688
415-865-4200
ADDENUDM:
Sixth District Court of Appeal
333 West Santa Clara Street
Suite 1060
San Jose, CA 95113
Phone: (408) 277-1004
E-mail: Sixth.District@jud.ca.gov
Tuesday, July 05, 2011
The Flanders Foundation CROSS-APPELLANT’S REPLY BRIEF: H035818
ABSTRACT: The Flanders Foundation CROSS-APPELLANT’S REPLY BRIEF, THE FLANDERS FOUNDATION, Plaintiff and Respondent vs. CITY OF CARMEL-BY-THE-SEA and CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA, Defendants and Appellants, Court of Appeal No. H035818, filed with the Sixth Appellate District 8 June 2011, is embedded. SYNOPSIS HIGHLIGHTS, including the Conclusion, are presented. Note: Date: June 30, 2011: Case on conference list, July 7, 2011 Conference List
Automatic E-mail Notification for this case, 6th Appellate District
CROSS-APPELLANT’S REPLY BRIEF H035818
CROSS-APPELLANT’S REPLY BRIEF H035818
SYNOPSIS HIGHLIGHTS:
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE FLANDERS FOUNDATION, Plaintiff and Respondent,
v.
CITY OF CARMEL-BY-THE-SEA and CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA, Defendants and Appellants
Monterey County Superior Court
Case No. M99437
On appeal from the Superior Court of Monterey County
Honorable Kay T. Kingsley
CROSS-APPELLANT’S REPLY BRIEF
BRANDT-HAWLEY LAW GROUP
Susan Brandt-Hawley / 75907
P.O. Box 1659
13760 Arnold Drive
Glen Ellen, Ca 95442
(707) 938-3900, fax (707) 938-3200
susanbh@preservationlawyers.com
Attorneys for Plaintiff and Respondent
The Flanders Foundation
A. Analysis of Economic Feasibility
1. Feasibility Analysis must be in the EIR
2. The CBRE Report was Inadequate
B. Lease of Flanders Mansion is Feasible
C. There are no Overriding Considerations
Conclusion
“It is terribly difficult to manage public-access property when inholdings occur. In fact, it usually a goal to buy out inholdings and retire development rights in order to enhance our parks and recreation areas…Lease if you must, but do not shortchange the citizens of the future and create an even greater problem of an inholding within a public park…”
(Comments of Brie Tripp)
“Selling off such a valuable current and future community asset for a short term financial gain compromises the original intentions for the property’s purchase…the park [was to] be for Carmel what Golden Gate Park has become to San Francisco. It was a commitment to the future quality of life for Carmel’s citizens and everyone who has the pleasure of sharing our unique heritage.”
(Comments of Barbara Reeves)
The City of Carmel’s approval of the sale of Flanders Mansion was both shortsighted and insupportable. Agency discretion is not unlimited, and requires strict compliance with state law protecting the natural and built environment. The City failed to proceed in the manner required by law because the Flanders EIR failed to assess potentially significant environmental impacts related to compliance with the Surplus Land Act, Failed to adequately respond to comments, and failed to adequately analyze the economic feasibility of a lease alternative. It did not provide adequate information on which the city Council could exercise its discretion. The City Council’s findings then violated the substantive mandate of CEQA because no substantial evidence supports the infeasibility of a leas 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.
June 8, 2011
Respectfully submitted,
Susan Brandt-Hawley
Attorney for the Flanders Foundation
Automatic E-mail Notification for this case, 6th Appellate District
CROSS-APPELLANT’S REPLY BRIEF H035818
CROSS-APPELLANT’S REPLY BRIEF H035818
SYNOPSIS HIGHLIGHTS:
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE FLANDERS FOUNDATION, Plaintiff and Respondent,
v.
CITY OF CARMEL-BY-THE-SEA and CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA, Defendants and Appellants
Monterey County Superior Court
Case No. M99437
On appeal from the Superior Court of Monterey County
Honorable Kay T. Kingsley
CROSS-APPELLANT’S REPLY BRIEF
BRANDT-HAWLEY LAW GROUP
Susan Brandt-Hawley / 75907
P.O. Box 1659
13760 Arnold Drive
Glen Ellen, Ca 95442
(707) 938-3900, fax (707) 938-3200
susanbh@preservationlawyers.com
Attorneys for Plaintiff and Respondent
The Flanders Foundation
A. Analysis of Economic Feasibility
1. Feasibility Analysis must be in the EIR
2. The CBRE Report was Inadequate
B. Lease of Flanders Mansion is Feasible
C. There are no Overriding Considerations
Conclusion
“It is terribly difficult to manage public-access property when inholdings occur. In fact, it usually a goal to buy out inholdings and retire development rights in order to enhance our parks and recreation areas…Lease if you must, but do not shortchange the citizens of the future and create an even greater problem of an inholding within a public park…”
(Comments of Brie Tripp)
“Selling off such a valuable current and future community asset for a short term financial gain compromises the original intentions for the property’s purchase…the park [was to] be for Carmel what Golden Gate Park has become to San Francisco. It was a commitment to the future quality of life for Carmel’s citizens and everyone who has the pleasure of sharing our unique heritage.”
(Comments of Barbara Reeves)
The City of Carmel’s approval of the sale of Flanders Mansion was both shortsighted and insupportable. Agency discretion is not unlimited, and requires strict compliance with state law protecting the natural and built environment. The City failed to proceed in the manner required by law because the Flanders EIR failed to assess potentially significant environmental impacts related to compliance with the Surplus Land Act, Failed to adequately respond to comments, and failed to adequately analyze the economic feasibility of a lease alternative. It did not provide adequate information on which the city Council could exercise its discretion. The City Council’s findings then violated the substantive mandate of CEQA because no substantial evidence supports the infeasibility of a leas 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.
June 8, 2011
Respectfully submitted,
Susan Brandt-Hawley
Attorney for the Flanders Foundation
Tuesday, June 07, 2011
City’s COMBINED REPLY BRIEF AND OPPOSITION TO THE FLANDERS FOUNDATION’S CROSS-APPEAL: Court of Appeal No. H035818
ABSTRACT: The City’s COMBINED REPLY BRIEF AND OPPOSITION TO THE FLANDERS FOUNDATION’S CROSS-APPEAL, THE FLANDERS FOUNDATION, Plaintiff and Respondent vs. CITY OF CARMEL-BY-THE-SEA and CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA, Defendants and Appellants, Court of Appeal No. H035818, filed with the Sixth Appellate District 19 May 2011, is embedded and SYNOPSIS HIGHLIGHTS are presented. Plaintiff’s and Appellant’s (The Flanders Foundation) reply brief is due 8 June 2011 and will be posted when available.
COMBINED REPLY BRIEF AND OPPOSTION TO THE FLANDERS FOUNDATION’S CROSS-APPEAL
COMBINED REPLY BRIEF AND OPPOSITION TO THE FLANDERS FOUNDATION’S CROSS-APPEAL
SYNOPSIS HIGHLIGHTS
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE FLANDERS FOUNDATION, Plaintiff and Respondent,
vs.
CITY OF CARMEL-BY-THE-SEA and CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA, Defendants and Appellants
Court of Appeal No. H035818
Monterey County Superior Court No. M99437
COMBINED REPLY BRIEF AND OPPOSITION TO THE FLANDERS FOUNDATION’S CROSS-APPEAL
Jon R. Giffen (SBN 142158)
David W. Balch (SNB 226519)
Kennedy, Archer & Harray
24591 Silver Cloud Court, Suite 200
Monterey, CA 93940
(831) 373-7500 Telephone
(831) 373-7555 Fax
jgiffen@kahlaw.net
dbalch@kahlaw.net
Attorneys for Defendants and Appellants
City of Carmel-by-the-Sea and City Council of the City of Carmel-by-the-Sea
REPLY TO THE FOUNDATION’S OPPOSITION
The City’s Discussion of the Surplus Land Act in the EIR was Adequate
The Surplus Land Act Question is Speculative at this Juncture
Sufficient Environmental Safeguards Are In Place
Substantial Caselaw Supports the City’s Position
The Response to Comments Is Adequate as the Sale of Less Land Was Adequately Considered and Discarded
Conclusion Regarding Reply on Appeal
The Foundation has provided no factual or legal analysis in support of its argument. The City respectfully requests that the appeal be granted, the judgment of the trial court and the writ of mandate overturned, and the City’s certification of the 2009 EIR and all of its approvals and actions relating to the proposed sale of the Flanders Mansion reinstated.
OPPOSITION TO CROSS-APPEAL
An Analysis of Economic Feasibility Is Not Required to Be in the 2009 EIR
The CBRE Report is Facially Adequate
Lease of the Flanders Mansion Is Infeasible
The Statement of Overriding Considerations Is Supported by Substantial Evidence
Conclusion Regarding Opposition to Cross-appeal
The City respectfully requests that the Foundation’s cross-appeal be denied.
Dated: May 18, 2011
COMBINED REPLY BRIEF AND OPPOSTION TO THE FLANDERS FOUNDATION’S CROSS-APPEAL
COMBINED REPLY BRIEF AND OPPOSITION TO THE FLANDERS FOUNDATION’S CROSS-APPEAL
SYNOPSIS HIGHLIGHTS
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE FLANDERS FOUNDATION, Plaintiff and Respondent,
vs.
CITY OF CARMEL-BY-THE-SEA and CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA, Defendants and Appellants
Court of Appeal No. H035818
Monterey County Superior Court No. M99437
COMBINED REPLY BRIEF AND OPPOSITION TO THE FLANDERS FOUNDATION’S CROSS-APPEAL
Jon R. Giffen (SBN 142158)
David W. Balch (SNB 226519)
Kennedy, Archer & Harray
24591 Silver Cloud Court, Suite 200
Monterey, CA 93940
(831) 373-7500 Telephone
(831) 373-7555 Fax
jgiffen@kahlaw.net
dbalch@kahlaw.net
Attorneys for Defendants and Appellants
City of Carmel-by-the-Sea and City Council of the City of Carmel-by-the-Sea
REPLY TO THE FOUNDATION’S OPPOSITION
The City’s Discussion of the Surplus Land Act in the EIR was Adequate
The Surplus Land Act Question is Speculative at this Juncture
Sufficient Environmental Safeguards Are In Place
Substantial Caselaw Supports the City’s Position
The Response to Comments Is Adequate as the Sale of Less Land Was Adequately Considered and Discarded
Conclusion Regarding Reply on Appeal
The Foundation has provided no factual or legal analysis in support of its argument. The City respectfully requests that the appeal be granted, the judgment of the trial court and the writ of mandate overturned, and the City’s certification of the 2009 EIR and all of its approvals and actions relating to the proposed sale of the Flanders Mansion reinstated.
OPPOSITION TO CROSS-APPEAL
An Analysis of Economic Feasibility Is Not Required to Be in the 2009 EIR
The CBRE Report is Facially Adequate
Lease of the Flanders Mansion Is Infeasible
The Statement of Overriding Considerations Is Supported by Substantial Evidence
Conclusion Regarding Opposition to Cross-appeal
The City respectfully requests that the Foundation’s cross-appeal be denied.
Dated: May 18, 2011
Wednesday, April 27, 2011
COMBINED RESPONDENT'S BRIEF AND CROSS-APPELLANT'S OPENING BRIEF: Court of Appeal No. H035818
ABSTRACT: COMBINED RESPONDENT'S BRIEF AND CROSS APPELLANT'S OPENING BRIEF, THE FLANDERS FOUNDATION, Plaintiff and Respondent vs. CITY OF CARMEL-BY-THE-SEA and CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA, Defendants and Appellants, Court of Appeal No. H035818, is embedded and SYNOPSIS HIGHLIGHTS, including the reproduced Conclusion, are presented. Respondent’s Brief (Defendant and Appellant: City of Carmel-by-the-Sea) is due 4 May 2011, and will be posted when available.
COMBINED RESPONDENT'S BRIEF AND CROSS-APPELLANT'S OPENING BRIEF H035818 -
COMBINED RESPONDENT'S BRIEF AND CROSS-APPELLANT'S OPENING BRIEF
No. H035818
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE FLANDERS FOUNDATION,
Plaintiff and Respondent,
v.
CITY OF CARMEL-BY-THE-SEA and CITY COUNCIL OF THE CITY
OF CARMEL-BY-THE-SEA,
Defendants and Appellants.
Civil No. H035818
Monterey County Superior Court
Case No. M99437
On appeal from the Superior Court of Monterey County
Honorable Kay T. Kingsley
COMBINED RESPONDENT'S BRIEF AND
CROSS-APPELLANT'S OPENING BRIEF
BRANDT-HAWLEY LAW GROUP
Susan Brandt-Hawley / 75907
P.O. Box 1659
13760 Arnold Drive
Glen Ellen, CA 95442
(707) 938-3900, fax (707) 938-3200
susanbh@preservationlawyers.com
Attorneys for Plaintiff and Respondent
The Flanders Foundation
SYNOPSIS HIGHLIGHTS:
Discussion includes, as follows:
A. The CEQA Appeal
1. Surplus Land Act Issues
EIR Analysis is Inadequate
B. The Cross Appeal
1. Analysis of Economic Feasibility
Feasibility Analysis should be in the EIR
The CBRE Report was Inadequate
2. Lease of Flanders Mansion is Feasible
3. There are no Overriding Considerations.
Conclusion
The Flanders Foundation appreciates that the Court will 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 City’s appeal should be denied and the Flanders Foundations’ cross-appeal should be granted. On remand, the peremptory writ should issue because the Flanders EIR failed to assess environmental impacts related to compliance with the Surplus Land Act, failed to adequately respond to comments, and failed to adequately analyze the economic feasibility of a lease. The City’s findings violated the substantive mandate of CEQA because no substantial evidence supported 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.
April 1, 2011
COMBINED RESPONDENT'S BRIEF AND CROSS-APPELLANT'S OPENING BRIEF H035818 -
COMBINED RESPONDENT'S BRIEF AND CROSS-APPELLANT'S OPENING BRIEF
No. H035818
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE FLANDERS FOUNDATION,
Plaintiff and Respondent,
v.
CITY OF CARMEL-BY-THE-SEA and CITY COUNCIL OF THE CITY
OF CARMEL-BY-THE-SEA,
Defendants and Appellants.
Civil No. H035818
Monterey County Superior Court
Case No. M99437
On appeal from the Superior Court of Monterey County
Honorable Kay T. Kingsley
COMBINED RESPONDENT'S BRIEF AND
CROSS-APPELLANT'S OPENING BRIEF
BRANDT-HAWLEY LAW GROUP
Susan Brandt-Hawley / 75907
P.O. Box 1659
13760 Arnold Drive
Glen Ellen, CA 95442
(707) 938-3900, fax (707) 938-3200
susanbh@preservationlawyers.com
Attorneys for Plaintiff and Respondent
The Flanders Foundation
SYNOPSIS HIGHLIGHTS:
Discussion includes, as follows:
A. The CEQA Appeal
1. Surplus Land Act Issues
EIR Analysis is Inadequate
B. The Cross Appeal
1. Analysis of Economic Feasibility
Feasibility Analysis should be in the EIR
The CBRE Report was Inadequate
2. Lease of Flanders Mansion is Feasible
3. There are no Overriding Considerations.
Conclusion
The Flanders Foundation appreciates that the Court will 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 City’s appeal should be denied and the Flanders Foundations’ cross-appeal should be granted. On remand, the peremptory writ should issue because the Flanders EIR failed to assess environmental impacts related to compliance with the Surplus Land Act, failed to adequately respond to comments, and failed to adequately analyze the economic feasibility of a lease. The City’s findings violated the substantive mandate of CEQA because no substantial evidence supported 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.
April 1, 2011
Thursday, March 31, 2011
APPELLANTS' OPENING BRIEF: Court of Appeal No. H035818
ABSTRACT: APPELLANTS' OPENING BRIEF, THE FLANDERS FOUNDATION, Plaintiff and Respondent vs. CITY OF CARMEL-BY-THE-SEA and CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA, Defendants and Appellants, Court of Appeal No. H035818, is uploaded and a synopsis is presented. The respondent’s brief and appellant’s reply brief will follow and be presented when available.
Appellants Opening Brief H035818
APPELLANTS’ OPENING BRIEF
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
Court of Appeal No. H035818
SYNOPSIS:
APPELLANTS’ OPENING BRIEF
THE FLANDERS FOUNDATION, Plaintiff and Respondent
vs.
CITY OF CARMEL-BY-THE-SEA and CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA, Defendants and Appellants
Court of Appeal No. H035818
Monterey County Superior Court No. M99437
Appellants’ Legal Argument includes Points I, II and III, as follows:
Point I: The 2009 EIR’s Analysis of Surplus Land Act is Sufficient
Point II: The City’s Response to Comments Is Adequate
Point III: The Judgment Must Be Amended To Be In Conformity with the Statement of Intended Decision.
The CONCLUSION states as follows: “The City Appellant’s actions were correct and in full compliance with the law. The Appellants therefore respectfully request that the appeal be granted, the judgment of the trial court and the writ of mandate overturned, and the City’s certification of the 2009 EIR and all of its approvals and actions relating to the proposed sale of the Flanders Mansion reinstated."
Dated January 12, 2011
KENNEDY, ARCHER & HARRAY
By: Jon R. Giffen
Attorneys for Appellants
CITY OF CARMEL-BY-THE-SEA
Appellants Opening Brief H035818
APPELLANTS’ OPENING BRIEF
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
Court of Appeal No. H035818
SYNOPSIS:
APPELLANTS’ OPENING BRIEF
THE FLANDERS FOUNDATION, Plaintiff and Respondent
vs.
CITY OF CARMEL-BY-THE-SEA and CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA, Defendants and Appellants
Court of Appeal No. H035818
Monterey County Superior Court No. M99437
Appellants’ Legal Argument includes Points I, II and III, as follows:
Point I: The 2009 EIR’s Analysis of Surplus Land Act is Sufficient
Point II: The City’s Response to Comments Is Adequate
Point III: The Judgment Must Be Amended To Be In Conformity with the Statement of Intended Decision.
The CONCLUSION states as follows: “The City Appellant’s actions were correct and in full compliance with the law. The Appellants therefore respectfully request that the appeal be granted, the judgment of the trial court and the writ of mandate overturned, and the City’s certification of the 2009 EIR and all of its approvals and actions relating to the proposed sale of the Flanders Mansion reinstated."
Dated January 12, 2011
KENNEDY, ARCHER & HARRAY
By: Jon R. Giffen
Attorneys for Appellants
CITY OF CARMEL-BY-THE-SEA
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