NOTE:
CALIFORNIA APPELLATE COURTS
6th Appellate District
Mandurrago et al. v. City of Carmel-By-The-Sea et al.
Court of Appeal Case: H034439
Trial Court Case: M97273
Justices
Nathan Mihara,
Franklin Elia and
Richard McAdams heard Oral Arguments on April 6, 2010 in Santa Clara, CA.; decision anticipated within 90 days, no Disposition as of June 4, 2010.
ABSTRACT: With regard to Mandurrago et al. v. City of Carmel-By-The-Sea et al. (M102802) (or Mandurrago II), selected excerpts and LEGAL ARGUMENT summary outlines from the PETITIONERS’ COMPLAINT and OPENING BRIEF, RESPONDENTS’BRIEF and PETITIONER’S REPLY BRIEF are presented. The Writ of Mandate Hearing is scheduled for Wednesday, June 9, 2010 at 1:30 P.M., Judge Lydia M. Villarreal, Courtroom 15, Monterey Courthouse, 1200 Aguajito Rd., Monterey, CA.
Anthony Lombardo, Esq., #109650
Dennis Beougher, Esq., #103388
LOMBARDO & GILLES, LLP
318 Cayuga St., P.O. Box 2119
Salinas, CA. 93901
Filed December 4, 2009
Attorneys for Petitioners and Plaintiffs
John Mandurrago and Pacific Grove Land Company, LLC
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF MONTEREY
JOHN MANDURRAGO, AND PACIFIC GROVE LAND COMPANY, LLC,
Petitioner and Plaintiff,
CITY OF CARMEL-BY-THE-SEA, CITY OF CARMEL-BY-THE-SEA CITY COUNCIL, et al.,
Respondents and Defendants
CASE NO. M102802
FIRST CAUSE OF ACTION
(Petition for Writ of Mandamus)
CCP 1094.5
Petitioner realleges and incorporates by reference each and every allegation contained in this complaint as well as paragraphs 1 through 36 as though those allegations were set forth in full at this point.
Petitioner has exhausted its administrative remedies by pursuing to completion all administrative remedies that Carmel provided to Petitioner.
In doing the things alleged within this writ/complaint, Carmel acted in excess of its jurisdiction, denied Petitioner a fair hearing, and subjected petitioner to a prejudicial abuse of discretion. Carmel did not proceed in the manner required by law, Carmel’s denial of the Project is not supported by the findings, and the findings are not supported by the evidence.
Petitioner has timely filed the summons and complaint as Carmel’s November 3, 2009 action taken on the Petitioner’s appeal of the Planning Commission’s approval of the EIR and related denial of Project’s development permits, as this action involves a proceeding to attack, review, set aside, void, or annul a finding or determination or decision of a public agency, as stated in California Code of Regulations, title 14, Section 15112.
Petitioner personally objected orally and/or in writing and either the Petitioner or someone else raised at administrative level all factual and legal objections asserted in the writ/complaint.
Petitioner does not have a plain, speedy and adequate remedy in the ordinary course of law. Unless this writ of mandate issues, Petitioner will not be able to challenge the City’s November 3, 2009 findings denying the Petitioner’s appeal concerning the Project as the Project involves as action pursuant to CEQA, Government Code section 65009 and the Subdivision Map Act. Carmel has a clear, present, and ministerial duty to require the preparation of EIR pursuant to CEQA, notwithstanding Carmel’s misinterpretation of its previous November 7, 2006 action, HAA, Subdivision Map Act, and the State housing laws.
Petitioner mailed or personally served a Notice of Commencement of Proceedings on Carmel prior to the writ/complaint being filed, as required by Public Resources Code section 21167.5
SECOND CAUSE OF ACTION
(Petition for Writ of Mandamus, CCP 1085)
Petitioner realleges and incorporates by reference each and every allegation contained in the complaint, including, but not limited to, paragraphs 1 through 43, as though those allegations were set forth in full at this point.
Petitioner does not have a plain, speedy, and adequate remedy in the ordinary course of law.
Petitioner has a clear, present, and beneficial right to compel performance of the duty.
By taking the actions alleged herein, the City has failed to perform its ministerial duties.
THIRD CAUSE OF ACTION
(Housing Accountability Act, and Density Bonus Law, Government Code 6589.5 and 6591.5)
Petitioner realleges and incorporates by reference each and every allegation contained in the complaint, including, but not limited to, paragraphs 1 through 48 as though those allegations were set forth in full at this point.
Two of the Project’s seven residential units would be deed restricted to qualify the Project as a qualified housing development/affordable housing project under Government Code section 65589.5 and Government Code section 65915.
Petitioner agreed to continued affordability of the two affordable low income units that qualified Petitioner for the award of the incentives/concessions under Government Code section 65915 as well as the requirements of Government Code section 65589.5.
Petitioner submitted to the City a proposal for the specific incentives or concessions that Petitioner requested pursuant to Government Code section 65915. The City refused to grant the concessions/incentives requested by Petitioner, and the City did not make a written finding, based upon substantial evidence, reflecting the requirements in Government Code section 65915 (d)(1).
On November 3, 2009, the City denied approval of the Project.
The City’s findings are not consistent with Government Code section 65589.5, and the findings are not supported by substantial evidence in the record.
FOURTH CAUSE OF ACTION
(Violation of California Constitution and 42 U.S.C. 1983)
Petitioner realleges and incorporates by reference each and every allegation contained in this complaint, including, but not limited to, paragraphs 1 through 54, as though those allegations were set forth in full at this point.
Petitioner alleges that City’s actions described herein deprived Petitioner of their constitutional rights under the color of state laws. Petitioner alleges that Respondents and Defendants have violated Petitioner’s rights protected by article 1, section 7 of the California Constitution, Fourteenth Amendment of the United States Constitution, and 42 U.S.C. 1983 due to the actions of Carmel officials, including, but not limited to, the following:
a. Subjective Petitioner to a more than eight year processing of Petitioner’s application for the Project. Petitioner is informed and believes and thereupon alleges that this was done by the City to retaliate against Petitioner for Petitioner’s desire to demolish the existing former bank building even though the City Council stated the Project EIR did not have to address the demolition of the bank building in its November 7, 2006 findings and conclusions;
b. “Superceding” its November 7, 2006 findings that the former bank building demolition did not have to be addressed in the Project EIR and imposing new EIR requirements, particularly new alternatives and the “loss of great architecture” as a significant adverse impact which could not be mitigated even though there was no substantial evidence in the record to support such actions, and would not allow the demolition of the former bank building;
c. Imposing conditions on Petitioner’s property that are not imposed on similarly situated property in the City;
d. Denying Petitioner sufficient time to address public comments regarding the Project;
e. Filing a frivolous anti-SLAPP motion which was purely intended to harass and delay Petitioner;
f. Filing an opposition to a statutorily provided calendar preference of Petitioner’s appeal in order to delay and harass Petitioner;
g. Requiring review of a Project alternative (adaptive reuse) in December 2, 2009 even though that alternative was found in November 7, 2006 to be inappropriate and infeasible, and then taking almost a year to review that alternative; and
h. Demanding that the EIR be rewritten to add a specific adverse impact (proposed demolition of the former bank building would cause a “loss of great architecture”, resulting in a visual quality impact), which was not based upon any written City public policy, General Plan policy, regulation, zoning ordinance, resolution or any factual or city standard.
Carmel’s actions, as alleged in this Petition/Complaint, constitute a violation of Petitioner’s constitutional rights to equal protection. Carmel has adopted a practice of treating similar development applications differently, depending on who the applicant is. Petitioner is informed and believes and thereupon alleges that no other developer has been subjected to this treatment by Carmel. Even though Petitioner’s application is consistent with all of objective zoning ordinance and General Plan criteria and standards and previous Carmel actions, Carmel has failed to approve the Project during the more than eight years since its submittal were not consistent with City ordinances, its General Plan, and State law, and were not consistent with similar projects.
Carmel’s action show a differential treatment to Petitioner that raises a completely arbitrary classification with no rational basis, or wholly arbitrary, for this differential treatment.
By Carmel’s arbitrary, discriminatory, and wrongful acts herein described, Carmel has attempted to unreasonable prevent the planning for and development of the Project site. In so doing, Carmel has acted under the color of state law to treat Petitioner in a discriminatory and unfair and unequal manner as opposed to owners of comparable properties with development applications in Carmel, in violation of Petitioner’s state and federal constitutional and statutory rights.
By reasons of Carmel’s conduct, Petitioner was deprived of rights, privileges, and immunities secured by Petitioner by the state constitution, First, fifth, and Fourteen Amendments to the Constitution of the United States, and the laws enacted thereunder in that Carmel’s actions were based on animus and ill will and were wholly arbitrary and irrational in imposing requirements on the Project which were not based on any written City policy, regulation, plan, ordinance, or resolution.
As a proximate result of Carmel’s actions against Petitioner as alleged above, Petitioner has been harmed and suffered damaged in the Petitioner has been subjected to monthly damages since December 2006 of $25,000 per month. Additionally, Petitioner has suffered humiliation and indignity, mental pain and suffering, and Petitioner has been prevented from transacting Petitioner’s business of development property in the City of Carmel-by-the-Sea, in an amount according to proof.
Carmel’s actions in depriving Petitioner of Petitioner’s state and federal protected constitutional rights were done with ill will, motive or intent, or with reckless or callous indifference to Petitioner’s rights.
Petitioner is informed and believes and theron alleges that Carmel will continue in Carmel’s unlawful conduct, unless and until restrained by this court. If Carmel is not restrained, as specified below, Petitioner will suffer immediate and irreparable injury, loss and damage in that Petitioner’s Project application will continue to be denied and subjected to illegal EIR requirements and misapplication of the HAA, and animus from Carmel.
By this cause of action, Petitioner seeks all legal and equitable relief to which Petitioner may be entitled, including, but not limited to, monetary damages, attorney’s fees and costs, prejudgment interest, and injunctive relief against Carmel.
FIFTH CAUSE OF ACTION
(Declaration Relief)
Petitioner alleges and incorporates by reference each and every allegation contained in paragraphs 1 through 64 as though allegations were set forth in full at this point.
Petitioner contends Carmel’s November 3, 2009 action was not lawfully adopted and is not consistent with procedural and substantive rights of the public, as these actions have damaged Petitioners and Petitioner’s property. Carmel also failed to comply with the California Environmental Quality Act, HAA, Government Code section 65915, and the previous Carmel November 7, 2006 findings concerning the Project.
An actual controversy subject to judicial review has arisen between Carmel and Petitioner. Petitioner is entitled to a judicial declaration of rights and responsibilities of the parties.
SIXTH CAUSE OF ACTION
(Injunctive Relief)
Petitioner alleges and incorporates by reference each and every allegation contained in the complaint, including, but not limited to, paragraphs 1 through 67 hereof as though those allegations were set forth in full
Petitioner has no plain, speedy or adequate remedy in the ordinary course of law, and unless this Court grants temporary and permanent relief, Petitioner will suffer irreparable harm, in that Carmel denied the Project based upon findings that are inconsistent with previous administrative record including HAA, Subdivision Map Act, and Government Code Section 65915.
If an injunction is not granted, damages would not afford adequate relief, in that they would not completely compensate for the injury to Petitioner’s business reputation and goodwill
Petitioner has no adequate remedy at law for the injuries currently being suffered because Carmel will continue to delay, harass, and harm Petitioner’s business reputation and goodwill.
WHEREFORE, Petitioner requests relief and pray for judgment as follows:
1. For an order directing the city of Carmel-by-the-Sea to set aside and void its November 3, 2009 actions;
2. That the court determine that the City of Carmel-by-the-Sea violated CEQA when it overruled the Petitioner’s appeal of the Plaza del Mar EIR;
3. For an order requiring the City of Carmel-by-the-Sea to comply with CEQA, the HAA, and various Government Code housing statutes by certifying the Project EIR without the specific adverse impact due to the “loss of great architecture”, and by approving Petitioner’s application for the Project, including all of their requested permits, and by granting Petitioner’s requested two incentives/concessions, within 60 days as required by Government Code section 65589.5(k), while the Court retains jurisdiction to ensure that the purposes and policies of Government Code section 65589.5 are fulfilled, including, but not limited to, an order to vacate Carmel’s November 3, 2009 decision as stated in this prayer;
4. For a temporary restraining order and preliminary injunction restraining Respondents and Defendants from taking any action upholding the City’s November 3, 2009 action;
5. For a preemptory writ of mandate directing certification and approval of the Project EIR without the amendment to the Visual Quality section that found a specific adverse impact due to the “loss of great architecture” if the former bank building was demolished and also require approval of all of the Project’s permits;
6. For attorney’s fees under private attorney general stature, Code of Civil Procedure section 1021.5, and Government Code sections 65589.5 and 65915;
7. For general damages in an amount according to proof;
8. For damages, including fines as provided in Government Code section 65589.5, in an amount appropriate for Respondents’ and Defendants’ actions;
9. For reasonable attorney’s fees pursuant to 42 U.S.C. 1988(b);
10. For costs of suit herein incurred;
11. A determination regarding the rights of the parties as follows:
a. That the existing Burde building on the site can be demolished;
b. That the Plaza del Mar EIR must be rewritten to revise the Visual Quality component to delete any reference to a significant adverse impact due to “loss of great architecture” that cannot be mitigated due to the demolition of the existing former bank building;
c. That the Plaza del Mar is a qualified housing development pursuant to Government Code sections 65589.5(h) and 65915(j);
d. That Carmel cannot make the findings required by Government Code section 65589(j) to deny the qualified housing development Project;
e. That even if “loss of great architecture” was a significant adverse impact that cannot be mitigated under CEQA, Carmel cannot deny the Project based on CEQA as the “specific adverse impact” due to the “loss of great architecture” resulting from the demolition of the former bank building does not meet the standard for “specific adverse impact” under Government Code section 65589.5(b),(d) and/or (j);
f. That Petitioner is entitled to two incentives/concessions, as permitted by Government Code section 66915;
g. That Petitioner is entitled to construct the Project in the most cost effective manner, as required by Government Code section 65583 and previous City Council findings and conclusions issued in November 7, 2006;
h. That Carmel must complete certification of the Project EIR, without the Visual Quality amendment due to “loss of great architecture,” and approve the Project and all of its development permits, including its demolition permit, within 60 days as required by Government Code section 65589.5(k), while the court retains jurisdiction to ensure that the purposes and policies of Government Code 65589.5 are fulfilled, including, but not limited to, an order to vacate Carmel’s November 3, 2009 decision to deny petitioner’s appeal and denial of all of the Project’s permits.
12. For declaratory relief that Carmel engaged in a pattern and practice of failing to comply with the requirements of the HAA, CEQA, and various Government Code sections intended to encourage housing in California, particularly affordable housing units; and
13. For such other and further relief as the Court deems appropriate.
Date: November 30, 2009
LOMBARDO & GILLES, LLP
By:
Dennis Beougher
Attorneys for Petitioners and Plaintiffs
John Mandurrago and Pacific Grove Land Company, LLC
Case No. M102802
IN THE SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF MONTEREY
JOHN MANDURRAGO and PACIFIC GROVE LAND COMPANY, LLC, Petitioners and Plaintiffs, v. CITY OF CARMEL-BY-THE-SEA, CITY OF CARMEL-BY-THE-SEA CITY COUNCIL and DOES 1-50, inclusive, Respondents and Defendants.
PETITIONERS’ OPENING BRIEF
Date Action Filed: December 3, 2009
The City has violated the California Environmental Quality Act (“CEQA”), the Housing Accountability Act (“HAA”), and the Density Bonus and Other Incentives Law (“SDBL”).
II. STATEMENT OF THE ISSUES
1. Should the Court issue a writ where the City prejudicially abused its discretion by not proceeding in the manner required by law where the city:
• Violated the requirements of Government code section 65589.5 by its November 3, 2009 action;
• Violated the requirements of Government Code section 65915 by its November 3, 2009 action;
• Violated the requirements of CEQA;
• Issued a decision that was not supported by the findings; and
• Issued a decision with findings that are not supported by the evidence?
2. Did the City fail to comply with the requirements of the SDBL when it refused to grant the concessions/incentives requested by Petitioner, based upon substantial evidence, reflecting the requirements in Government Code section 65895.5(d)?
3. Did the City violate Petitioners’ protected state statutory non-discrimination rights provided in Government Code section 65008, by abusing its discretion and depriving Petitioners of their federal constitutional rights, as “class of one equal protection,” to due process and equal protection for which monetary damages are available as a remedy to enforce compliance with the statutory provisions, thereby preventing Petitioners from fully exercising their 5th and 14th Amendment rights?
4. Are Petitioners entitled to declaratory relief?
5. Are Petitioners entitled to injunctive relief?
LEGAL ARGUMENT:
A. THE COURT MUST ISSUE A PREEMPTORY WRIT AS THE CITY HAS PREJUDICIALLY ABUSED ITS DISCRETION
1. The City Violated The Requirements of the HAA
2. The City Violated the SDBL
3. The City Violated CEQA
4. The City’s Decision Is Not Supported By Its Findings, And the City’s Findings Are Not Supported by Substantial Evidence
B. THE CITY FAILED TO COMPLY WITH THE REQUIREMENTS OF THE HAA
C. THE CITY VIOLATED PETITIONERS’ UNITED STATES AND CALIFORNIA CONSTITUTION PROTECTED RIGHTS
D. PETITIONERS ARE ENTITLED TO DECLARATORY AND INJUNCTIVE RELIEF
CONCLUSION
The City’s lengthy period of unlawful actions, since at least December 2006, has denied at least two families the opportunity to reside in safe, decent and affordable housing in one of the most desirable places in the United States. For all of the above reasons, Petitioners respectfully request that the Court issue a peremptory writ of mandate compelling the city to set aside its denial of the Project and its certification of the Revised EIR, and that the Court award damages, and attorney’s fees to Petitioners as set forth in the Petition/Complaint prayer.
Dated: February 19, 2010
LOMBARDO & GILES
By: Dennis Beougher
Attorney for Petitioners/Plaintiffs
CASE No. M102802
RESPONDENTS’ BRIEF
LEGAL ARGUMENT
A. THE COURT MAY NEED TO DEFER ITS DECISION PENDING OUTCOME OF PETITIONER’S APPEAL
B. THE EIR ADEQUATELY SUPPORTS THE FINDINGS OF VQ-CONCERNING ARCHITECTURAL SIGNIFICANCE
1. Res Judicata and Collateral Estoppel Do Not Apply
a. The Issues Between the Two Findings Were Not the Same
b. Administrative Res Judicata Does Not Apply to the Council’s Ongoing Findings Relating to the EIR Approval Process
2. The Administrative Record Fully Supports the City’s Findings of “Architectural Significance”
a. There Are Adequate Factual Foundations for the conclusion of Significance as to “Loss of Great Architecture.”
b. CEQA Does Not Require the Adoption of Specific Standards for Determining “Loss of Great Architecture”
C. THE CITY’S DENIAL BASED ON AESTHETIC ISSUES WAS A MATTER OF DISCRETION AND AN EXERCISE OF ITS POLICE POWERS
1. Design Review Determinations are a Discretionary Act.
2. Conditional Use Permit Decisions Are a Discretionary Act.
D.THE HOUSING ACCOUNTABILITY ACT DOES NOT PREEMPT OR PRECLUDE CEQA’S APPLICATION TO THE PROPOSED PROJECT.
1. The HAA is Subordinate to CEQA.
2. The Project Does Not Meet the Statutory Requirements of the HAA.
a. The Project Does Not Meet the Definition of a “Housing Development Project.”
b. Petitioners’ Do Not Meet the Statutory Requirements To Avail Themselves of the Protection of Govt. Code section 65589.5.
c. The Project Falls Within Two Statutory Exclusions to the HAA.
E. THE CITY HAS NOT VIOLATED THE SDBL
1. The Issue of Compliance with the SDBL is Premature Pending a Determination on the CEQA Issues.
2. The Petitioners’ Do Not Qualify for SDBL benefits.
F. PETITIONERS’ CIVIL RIGHTS CLAIMS SHOULD BE PROPERLY BIFURCATED FOR A TRIAL BY JURY
G. THE COURT SHOULD PROPERLY DEFER ANY DETERMINATION OF DELARATORY OR INJUNCTIVE RELIEF.
Dated: April 6, 2010
KENNEDY, ARCHER & HARRAY
By: Richard K. Harray
W. Stuart Home, III
Attorneys for Defendant
CITY OF CARMEL-BY-THE-SEA
Case No. M102802
PETITIONERS’ REPLY BRIEF
Date: June 9, 2010
Time: 1:30 p.m.
Dept: 15
ARGUMENT
A. The City Failed to Make Findings Consistent with Government Code Section 65889.5(j) When It Denied Petitioners’ Project
B. The Project Complies with the HAA
1. The Project Complies with the City’s General Plan/Zoning ordinance/LCP
a. The City’s Findings #4 and #14 Are Subjective General Plan Standards/Criteria, Not Objective Standards/Criteria
b. The Only Two Objective General Plan/Zoning Requirements Listed by City, Finding #5 (retaining two trees) and Finding #13 (Minimum Ratio of 1:1 Between Number of Rental and condominiums Units), Cannot Be the Basis for denial
2. The Project Meets the Definition of a Housing Development Under Government Code Section 65589.5(h)(B)
C. Even If Government Code Section 65589.5(i) Were the Standard,
the City Has Failed to Comply with This Standard by Its Alleged Compliance with the Two Statutory Exclusions to the HAA---Gov’t Code 65589.5(d)(3) or 65589.5(d)(5)(A).
1. Exemption Pursuant to Government Code Section 65589.5(d)(5)(A) Does Not Apply
2. Exemption Pursuant to Government Code Section 65589.5(d)(3) Is Not Applicable
D. The Record Does Not Support the City’s Assertion That the Project Must Be denied So As Not To Lose Great Architecture
1. Res Judicata/Collateral Estoppel Applies to the City’s November 2006 Findings And Decision
2. The Record Demonstrates that the City Did Not Consider the Bank Building to be “Great Architecture” Since the City Chose Not to Place It on the Carmel Inventory of Historic Resources
E. The City Violated the SCBL
F. The City Cannot Ignore the HAA
G. Petitioners’ Civil Rights Claims Have Been Properly Pled and Briefed
1. The Matter Should Not Be Bifurcated HAA
2. The Evidence Demonstrates Petitioners Were Treated Differently
3. Petitioners Were Not Responsible for the More than Eight Years Of Delays That the City When Created it Reviewed the Project
4. Petitioners’ California Constitutional Rights Were Also Violated
Dated: May 4, 2010
LOMBARDO & GILLES, LLP
BY: Dennis Beougher
Attorney for Petitioners John Mandurrago and Pacific Grove Land Company, LLC
