The Flanders Foundation v. City of Carmel-by-the-Sea, et al. Case Number H035818: City’s Petition for Rehearing Denied

ABSTRACT: Today, Tuesday, January 31, 2012, the Court of Appeals announced the appellate panel denied the City’s Petition for Rehearing (The Flanders Foundation v. City of Carmel-by-the-Sea, et al. Case Number H035818). With the opinion filed on January 4, 2012, the opinion will now become final on February 3, 2012. The Court’s Docket of relevant recent actions is reproduced. And the City of Carmel-by-the-Sea’s Petition for Rehearing (H035818) is embedded; essentially, the City argued, as follows: In the City’s STATEMENT OF FACTS AND ANALYSIS, the City argued that the “City Responded to Skip Lloyd’s Comment” and “Whether Explicitly or Implicitly, the City Addressed the Core Issue Raised by Skip Lloyd.” The City concluded that "Because the Court’s decision was based on an error of fact that was central to this Court’s opinion, the City of Carmel-by-the-Sea respectfully requests that this Court order a rehearing of this appeal.” Thus, the appellate panel did not agree with the City's arguments and denied the Petition for Rehearing.

6th Appellate District
Docket (Register of Actions)
The Flanders Foundation v. City of Carmel-by-the-Sea, et al.
Case Number H035818

01/04/2012 Opinion filed. (Signed Published) The trial court's judgment is hereby modified to delete the court's finding that the FEIR failed to adequately address the Surplus Land Act issue. As so modified, the judgment is affirmed. The parties shall bear their costs on appeal. (ndm, wcd (retired), bw (pro tem))

01/19/2012 Rehearing petition filed. Defendant and Appellant: City Council of the City of Carmel-by-the-Sea
Attorney: Jon R. Giffen

01/31/2012 Petition for rehearing denied. Appellants' petition for rehearing is denied. (ndm, wcd, retired, bw, pro tem)

CITY Petition for Rehearing 1-18-12 _H035818_

City of Carmel-by-the-Sea’s Petition for Rehearing (H035818)

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

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

SIXTH APPELLATE DISTRICT H035818

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