Revised Final ENVIRONMENTAL IMPACT REPORT for the PLAZA DEL MAR MIXED USE PROJECT (2007)

plazadelmarEIRindex

INTENDED DECISION: Mandurrago, John et al. v. City of Carmel-by-the-Sea et al. (M102802)

ABSTRACT: In Monterey County Superior Court Judge Lydia Villarreal’a Intended Decision, Judge Villarreal determined that the Plaza del Mar Project “does not meet the definition of a housing development project under the Housing Act” and “the Court need not address Petitioners’ other contentions at this time.” Therefore, Petitioners’ request for relief was denied. Selected excerpts from the Intended Decision, as follows:

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 of the decision is not supported by substantial evidence. This standard governs the review of Carmel’s compliance with CEQA, the Housing Accountability Act and the Density Bonuses and Other Incentives statute.

(A). CEQA issues
(1). Res judicata and collateral estoppel

The City’s CEQA Findings and evidence describe in sufficient detail the significance of the Burde building and explain the reasons underlying the City’s conclusion that the Burde building is “architecturally and visually distinctive” and that its loss “would constitute a significant impact on visual quality,” and the Court finds that substantial evidence supports the City’s findings.

(B). Housing Act issues
(1). Compliance with the Housing Act

The Court finds that this Project to date, (1) does not limit the commercial uses on the first floor to neighborhood commercial uses that service primarily residents of the neighborhood; and (2) visitors/vacationers residing in neighboring lodging are not City residents and would be using the Project’s underground parking.

The Court finds that the Project at this juncture, does not meet the definition of a housing development project under the Housing Act.

Disposition

The foregoing discussion and findings are dispositive and the Court need not address Petitioners’ other contentions at this time.

Petitioners’ request for relief is denied as set forth above. The Court directs the attorney for the City to prepare an appropriate judgment consistent with this ruling, present it to all counsel for approval as to form, and return it to this court for signature.

Dated: 7/21/10

HON. LYDIA VILLARREAL
Judge of the Superior Court


INTENDED DECISION 07 21 10 _00202003_

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

SIXTH APPELLATE DISTRICT: Reversed & Remanded to trial court w/directions (Mandurrago et al. v. City of Carmel-By-The-Sea et al.)

ABSTRACT: Disposition today, 15 June 2010 - the opinion was filed with the Court to reverse and remand to trial court with directions. Justice Nathan D. Mihara authored the opinion and Justices Franklin D. Elia and Richard J. McAdams concurred. The opinion (thirteen pages) is reproduced in its entirety. The Disposition states: "The trial court's order granting the motion to strike and awarding the City and the City Council their attorney's fees and costs is reversed. Upon remand, the trial court is directed to vacate both its order granting the motion and awarding attorney's fees and costs and its judgment of dismissal. Mandurrago shall recover his appellate costs."

Mandurrago et al. v. City of Carmel-By-The-Sea et al.
Case: H034439, 6th District

Disposition date (YYYY-MM-DD): 2010-06-15

Disposition description: Reversed & Remanded to trial court w/directions

Disposition status as of 2010-06-15: Final

Notes:
reversed with directions; ndm, fde, rjm

Unpublished opinion of the California Courts of Appeal
Filed 6/15/10 Mandurrago v. City of Caramel-by-The-Sea CA6

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT

JOHN MANDURRAGO et al.,
Plaintiffs and Appellants,

v.

CITY OF CARMEL-BY-THE-SEA et al.,
Defendants and Respondents.

H034439
(Monterey County Super. Ct. No. M97273)

In December 2008, defendant City Council of the City of Carmel-By-The-Sea (the City Council) overturned the Carmel Planning Commission's certification of the environmental impact report (EIR) for a project proposed by plaintiffs John Mandurrago and Pacific Grove Land Company, LLC (hereafter collectively Mandurrago). Mandurrago then filed a mandate petition and complaint against the City Council and the City of Carmel-By-The-Sea (the City) in which he contended that the City Council's December 2008 decision was invalid because it conflicted with a November 2006 City Council decision and with various state statutes. The City and the City Council filed a special motion to strike Mandurrago's causes of action under Code of Civil Procedure section 425.16. The trial court granted the special motion to strike and awarded attorney's fees to the City and the City Council. Mandurrago appeals and contends that the City and the City Council failed to establish that his action fell within the purview of Code of Civil Procedure section 425.16. We agree and reverse.

I. Factual Allegations

Mandurrago's petition and complaint made the following factual allegations. In September 2001, Mandurrago filed with the City an application for a development project. The proposed project entailed the demolition of the existing structures on the parcel, the construction of a building that would combine retail and underground parking, and the construction of a building containing seven market-rate residential units. By October 2005, a final EIR (FEIR) had been completed for the proposed development. The FEIR concluded that the existing bank building on the parcel is not historic. The City Council thereafter referred the proposed project to the City's Historic Resources Board (the HRB) to determine whether the demolition of the bank building would result in the loss of a historic resource, a loss of architectural diversity, or a violation of the City's local coastal plan. The HRB determined that the bank building is historic.

Mandurrago appealed the HRB's decision to the City Council. In November 2006, the City Council reversed the HRB's decision and made findings that the bank building did not “ 'make an unusually strong contribution to history, architecture, engineering or culture.' ” In December 2006, the Planning Commission ordered the FEIR revised to indicate that the demolition of the bank building would have a significant adverse impact on the physical environment and visual quality due to “ 'the loss of great architecture.' ” The FEIR was recirculated after its revision. In December 2006, Mandurrago revised the project application to state that two of the seven residential units would be affordable.

In August 2008, the Planning Commission certified the recirculated, revised FEIR, made findings that the impact of demolition of the bank building was unavoidable, and approved the proposed project. A citizen appealed the Planning Commission's decision to the City Council. In December 2008, the City Council sustained the appeal. The City Council concluded that its November 2006 decision was “exclusive to historicity” and did not address whether the demolition of the bank building would be a significant impact on the environment under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.).

II. Procedural Background

In February 2009, Mandurrago filed a verified petition for mandate and administrative mandate combined with a complaint for damages and declaratory and injunctive relief against the City and the City Council. The petition/complaint alleged six causes of action.

The first three causes of action sought a writ of mandate requiring the City Council to “set aside and void” its December 2008 decision sustaining the citizen's appeal, to certify the unrevised FEIR, rather than the revised FEIR, and to approve the proposed project.

The first cause of action, which sought administrative mandate, alleged that the City had (a) “illegal[ly]” “sustain[ed] . . . the [citizen's] appeal” in violation of various state statutes, (b) violated CEQA “by failing to certify the EIR” within one year after its completion, and (c) deprived Mandurrago of due process by limiting the time that he was allowed at the hearing to respond to the citizen's appeal. The second cause of action, which sought traditional mandate, was based on the same allegations and asserted that the City had abused its discretion “by failing to deny [the citizen's] appeal . . . .” The third cause of action, which also seemed to seek traditional mandate, alleged that the City Council's December 2008 decision was “not supported by substantial evidence” because it did not include findings required by various statutes.

The fourth cause of action sought damages and injunctive relief for alleged violations of Mandurrago's civil rights. Mandurrago alleged that the City's failure to take “final action” on his development application was intended to “delay, harass, or deny the project as the City's method to retaliate against [plaintiffs] for [their] desire to demolition [sic]” the bank building. The fifth cause of action sought a declaratory judgment that the City's “sustaining of the [citizen's] appeal was not lawfully adopted” and did not “comply with CEQA, HAA [Housing Accountability Act (Gov. Code, § 65589.5)1], and the previous Carmel findings concerning the project.” The sixth cause of action sought an injunction requiring, among other things, that the City Council rescind its December 2008 decision.

The City and the City Council filed a verified “Response” to Mandurrago's petition “and related actions” and a demurrer to Mandurrago's petition/complaint.2 The City and the City Council subsequently filed a special motion to strike all or some of the causes of action in the petition/complaint. They also sought to recover their attorney's fees and costs.

Mandurrago filed opposition to the demurrer and opposition to the motion to strike. He asserted that the acts targeted in the petition/complaint did not fall within the scope of Code of Civil Procedure section 425.16. He contended that the motion to strike was frivolous, thereby entitling him to recover his attorney's fees. Mandurrago also contended that he had a probability of prevailing on his causes of action.

The trial court granted the motion to strike, awarded costs and attorney's fees to the City and the City Council, and entered a judgment of dismissal. The court “dropped” the demurrer because the granting of the motion to strike “makes the demurrer moot.” Mandurrago timely filed a notice of appeal from the court's order granting the motion to strike.

1 The Housing Accountability Act provides that a local agency “shall not disapprove a housing development project . . . for very low, low-, or moderate-income households, or an emergency shelter, or condition approval in a manner that renders the project infeasible for development for the use of very low, low-, or moderate-income households, or an emergency shelter, including through the use of design review standards, unless it makes [one of five specific] written findings, based upon substantial evidence in the record . . . .” (Gov. Code, § 65589.5, subd. (d).) Mandurrago did not allege that the City had “disapprove[d]” or conditionally approved its proposed project.

2 The City subsequently lodged the four-volume administrative record with the trial court.

III. Discussion

“A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16, subd. (b)(1), italics added.)

“ '[A]ct in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue' includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (Code Civ. Proc., § 425.16, subd. (e).)

“In short, the statutory phrase 'cause of action . . . arising from' means simply that the defendant's act underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citations.] In the anti-SLAPP context, the critical point is whether the plaintiff's cause of action itself was based on an act in furtherance of the defendant's right of petition or free speech.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.)

“The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken 'in furtherance of the [defendant]'s right of petition or free speech under the United States or California Constitution in connection with a public issue,' as defined in the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) We independently review the trial court‟s finding that the City and the City Council satisfied their burden of showing that Mandurrago's causes of action arose from acts in furtherance of the City's or the City Council's right of petition or free speech. (Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1016.)

“In deciding whether the 'arising from' requirement is met, a court considers 'the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.' (§ 425.16, subd. (b).)” (City of Cotati v. Cashman, supra, 29 Cal.4th at p. 79.) “[I]t is the principal thrust or gravamen of the plaintiff's cause of action that determines whether the anti-SLAPP statute applies [citation], and when the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute.” (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188; Episcopal Church Cases (2009) 45 Cal.4th 467, 477.) “The anti-SLAPP statute‟s definitional focus is not the form of the plaintiff‟s cause of action but, rather, the defendant's activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 92.)

The issue before us is whether any or all of Mandurrago's causes of action arose from an act or acts by the City or the City Council that were in furtherance of the City's or the City Council's right of petition or free speech. “[T]he statutory remedy afforded by section 425.16 extends to statements and writings of governmental entities and public officials on matters of public interest and concern that would fall within the scope of the statute if such statements were made by a private individual or entity.” (Vargas v. City of Salinas (2009) 46 Cal.4th 1, 17, italics added.)

The City and the City Council rely primarily on the Second District Court of Appeal's decision in Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal.App.4th 713 (Mission Oaks), disapproved on other grounds in Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123, fn. 10.) Mission Oaks was a developer that submitted an application to the County for approval of a large subdivision project. (Mission Oaks, at p. 718.) The County contracted with consultants to prepare an EIR for the project. (Mission Oaks, at pp. 718-719.) The consultants prepared a draft EIR which found “a multitude of significant adverse and unmitigable impacts presented by the project proposal on numerous basic resources.” (Mission Oaks, at p. 719.) Mission Oaks challenged the consultants‟ findings, but the County decided to accept the consultants' findings and included those findings in the final EIR. (Mission Oaks, at p. 719.) The County then denied the project application. (Mission Oaks, at p. 719.)

Mission Oaks filed a complaint for damages against both the County and the consultants. The complaint alleged that the draft EIR was a “sham” that was unsupported by the facts and had been prepared as a part of a conspiracy between the consultants and the County to deny Mission Oaks the right to develop its property. (Mission Oaks, supra, 65 Cal.App.4th at p. 720.) Mission Oaks claimed that the County had “ 'falsely encouraged' ” it to proceed with the EIR process even though the County never intended to approve the project. (Mission Oaks, at p. 720.) Mission Oaks alleged three causes of action against the consultants' misrepresentation, breach of contract, and negligence. It alleged one cause of action against the County for breach of contract, in which it alleged that the EIR had not been prepared in compliance with CEQA and that the fees charged were unreasonable. (Mission Oaks, at pp. 720, 721.) The trial court sustained the County's demurrer and granted a special motion to strike brought by both the County and the consultants, but the court denied the County its attorney‟s fees. (Mission Oaks, at pp. 720, 729.)

Mission Oaks challenged the trial court's granting of the special motion to strike. It argued that the consultants' actions were not subject to a special motion to strike because those actions were done for pay. (Mission Oaks, supra, 65 Cal.App.4th at pp. 728-729.) The Second District held that commercial speech and conduct are subject to a special motion to strike when they concern a matter of public interest. (Mission Oaks, at pp. 728-729.) It found that Mission Oaks's causes of action were aimed at the consultants' speech—the statements in the draft EIR. (Mission Oaks, at p. 729.) Mission Oaks did not separately contend that the trial court had erred in granting the special motion to strike as to the County. The County challenged the trial court's refusal to award it attorney's fees as a prevailing party on the special motion to strike. (Mission Oaks, at p. 729.) The trial court's refusal had been based on its erroneous conclusion that a governmental entity was not a “ 'person' ” within the meaning of Code of Civil Procedure section 425.16. (Mission Oaks, at p. 729.) The Second District held otherwise: “Our Constitution protects everyone, even politicians.” (Mission Oaks, at p. 730.)

Mission Oaks stands for just two propositions: (1) statements in an EIR are protected speech; and (2) a governmental entity is a “ 'person' ” within the meaning of Code of Civil Procedure section 425.16. Thus, if any of Mandurrago's causes of action were based on statements in an EIR, Mission Oaks would support a conclusion that those causes of action fell within the scope of Code of Civil Procedure section 425.16. On the other hand, if any of his causes of action did not arise from statements in an EIR but instead from the City Council's decision upholding the citizen‟s appeal, Mission Oaks neither considered nor resolved whether those causes of action would fall within the scope of Code of Civil Procedure section 425.16. “Obviously, cases are not authority for propositions not considered therein.” (Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 372.)

The First District Court of Appeal's opinion in San Ramon Valley Fire Protection Dist. v. Contra Costa County Employees’ Retirement Assn. (2004) 125 Cal.App.4th 343 (San Ramon) addressed the question of whether Code of Civil Procedure section 425.16 applies to a cause of action arising from a governmental entity's decision. In San Ramon, the Contra Costa County Employees' Retirement Association's Board (the Board) decided that the San Ramon Valley Fire Protection District (the District) was obligated to pay $2.3 million for increased benefits for the District's employees. (San Ramon, at pp. 346-348.) The District filed a mandamus petition and a complaint for declaratory relief challenging the Board's decision. (San Ramon, at pp. 348-349.) It sought orders reducing its obligation to $999,000. (San Ramon, at p. 349.) The Board filed a special motion to strike the District's complaint and petition. The trial court found that the District's causes of action did not arise out of acts in furtherance of the Board's right to petition or free speech and denied the motion. (San Ramon, at p. 352.)

The Board appealed and claimed that its decision to impose the $2.3 million obligation on the District was conduct in furtherance of its right to free speech. (San Ramon, supra, 125 Cal.App.4th at p. 353.) The First District rejected this contention. “Acts of governance mandated by law, without more, are not exercises of free speech or petition.” (San Ramon, at p. 354.) “As to the Board's substantive action in the present case, there is nothing about that decision, qua governmental action, that implicates the exercise of free speech or petition. The Board's resolution was simply to impose a requirement that the District pay a contribution to the CCCERA of nearly $2.3 million for proposed enhanced retirement benefits to District employees. Thus, while the District's petition arises out of the Board's adoption of the $2.3 million contribution rate, the substance of the Board‟s action does not constitute the exercise of the Board's right of speech or petition.” (San Ramon, at p. 355.)

“As noted, the Board was not sued based on the content of speech it has promulgated or supported, nor on its exercise of a right to petition. The action challenged consists of charging the District more for certain pension contributions than the District believes is appropriate. This is not governmental action which is speech-related. By contrast, if the action taken by the Board had been to authorize participation in a campaign to amend state pension laws, or to become actively involved in a voter initiative seeking such changes, then the Board's own exercise of free speech might be implicated. But this is not the case, and this distinguishing feature is dispositive of the Board's argument.” (San Ramon, supra, 125 Cal.App.4th at p. 357.) The First District found Mission Oaks to be “easily distinguishable” because the developer's causes of action there arose out of “speech” in the EIR. (San Ramon, at p. 357.)

The First District concluded that Code of Civil Procedure section 425.16 does not apply to acts of governance that are not themselves in furtherance of governmental speech. “To decide otherwise would significantly burden the petition rights of those seeking mandamus review for most types of governmental action. Many of the public entity decisions reviewable by mandamus or administrative mandamus are arrived at after discussion and a vote at a public meeting. [Citations.] If mandamus petitions challenging decisions reached in this manner were routinely subject to a special motion to strike—which would be the result if we adopted the Board's position in this case—the petitioners in every such case could be forced to make a prima facie showing of merit at the pleading stage. While that result might not go so far as to impliedly repeal the mandamus statutes, as the District contends, it would chill the resort to legitimate judicial oversight over potential abuses of legislative and administrative power, which is at the heart of those remedial statutes. It would also ironically impose an undue burden upon the very right of petition for those seeking mandamus review in a manner squarely contrary to the underlying legislative intent behind section 425.16.” (San Ramon, supra, 125 Cal.App.4th at pp. 357-358, fn. omitted.)

The First District's analysis in San Ramon was recently adopted by the Second District Court of Appeal in Graffiti Protection Coatings, Inc. v. City of Pico Rivera (2010) 181 Cal.App.4th 1207 (GPC). GPC had filed an action for mandate and declaratory relief challenging the City's decision to award a contract without competitive bidding. The trial court granted the City's special motion to strike, and GPC appealed. (GPC, at pp. 1213-1214.) The Second District concluded that the City‟s decision to award the contract without competitive bidding was not an act in furtherance of the City's right to petition or free speech and therefore a cause of action arising therefrom did not fall within the scope of Code of Civil Procedure section 425.16. (GPC, at pp. 1219-1220, 1224-1225.)

An examination of the petition/complaint reveals that Mandurrago's causes of action fall into two groups. Four of his causes of action plainly arose from the City Council's decision sustaining the citizen's appeal. All three of the mandamus causes of action alleged that this decision was unlawful. The first cause of action claimed that “Carmel's action sustaining [sic] of the appeal is illegal under CEQA, HAA, and related Government Code housing statutes . . . .” The second cause of action claimed that “Carmel's December 2, 2008 action sustaining [sic] of the appeal is contrary to State law, regulations, and decisions . . . .” The third cause of action alleged that “Carmel's December 2, 2008 findings and conclusion sustaining the appeal did not meet the requirements of Government Code §65589.5(d)(2) . . . .” All three mandamus causes of action sought a writ of mandate requiring the City to “vacate” its decision sustaining the appeal. The fifth cause of action, which sought declaratory relief, was also based on the sustaining of the appeal. It alleged that “Carmel's sustaining of the appeal was not lawfully adopted . . . .” However, the relief sought for this cause of action ventured far beyond the validity of the City's decision to sustain the appeal.

We encounter no difficulty in concluding that the three mandamus causes of action did not arise from an act in furtherance of the City Council's right of petition or free speech. As in San Ramon and GPC, the City Council's decision on the citizen's appeal was simply a mandated act of governance, and it did not in and of itself further the City Council’s right of petition or free speech. This decision was not speech-related and did not involve the City Council's right of petition. Nor did the declaratory relief cause of action arise from an act in furtherance of the City Council's right of petition or free speech. Though the prayer regarding this cause of action sought a very extensive declaration, the sole basis upon which the cause of action was based was the City Council's decision on the citizen's appeal. That act of the City Council was not in furtherance of the City Council's speech or petition rights. Hence, we conclude that the trial court erred in granting the motion to strike as to the three mandamus causes of action and the declaratory relief cause of action.

Mandurrago's civil rights cause of action is not as easy to categorize. This cause of action alleged as civil rights violations the City's (a) “seven year processing of the application,” (b) “imposi[ition of] new EIR requirements,” (c) “imposi[tion of] conditions,” and (d) “four year delay in certification of the EIR.” While some of these allegations may involve to some extent the City Council's acts in furtherance of its free speech rights, our task is to determine whether the gravamen of Mandurrago's civil rights cause of action arises from an act in furtherance of the City's right of petition or free speech.

We do not doubt that the certification of an EIR is a speech-related decision by a governmental entity because the EIR is the means by which the governmental entity expresses itself. But the failure to timely certify an EIR does not itself further the governmental entity's right of free speech. If anything, the failure to timely certify an EIR may impede the governmental entity's right of free speech as it delays the governmental entity's expression of its views on the environmental impact of a proposed project. We cannot see how the City's imposition of EIR requirements and conditions on Mandurrago's project is an act in furtherance of the City's right of free speech. The City and the City Council fail to explain how their imposition of such requirements furthers their right of free speech. We conclude that the trial court erred in finding that Mandurrago's civil rights cause of action fell within the scope of Code of Civil Procedure section 425.16.

The only remaining cause of action is Mandurrago's “Injunctive Relief” cause of action. This cause of action merely realleged all of the previous allegations as a basis for injunctive relief. Since none of the other causes of action fell within the scope of Code of Civil Procedure section 425.16, the trial court erred in finding that this cause of action, which had no independent basis, fell within the scope of Code of Civil Procedure section 425.16.

IV. Disposition

The trial court's order granting the motion to strike and awarding the City and the City Council their attorney's fees and costs is reversed. Upon remand, the trial court is directed to vacate both its order granting the motion and awarding attorney's fees and costs and its judgment of dismissal. Mandurrago shall recover his appellate costs.

_______________________________
Mihara, J.


WE CONCUR:

_____________________________
Elia, Acting P. J.

_____________________________
McAdams, J.

Mandurrago, John, et al. v. City of Carmel-by-the-Sea, et al. (M102802): Petitioner’s/Plaintiff’s Presentation

ABSTRACT: Yesterday, Judge Lydia Villarreal heard oral arguments from Petitioners’/Plaintiffs’ attorney Dennis Beougher and Respondents’/Defendants’ attorney Richard Harray for approximately 90 minutes in Courtroom 15, Monterey Courthouse. The Petitioners’/Plaintiff’s “Presentation” is presented. Importantly, during the proceeding, the Judge articulated that the intent of the State Legislature is for agencies not to use CEQA as a means to deny affordable housing projects. There were no City Council Members, Planning Commissioners or Historic Resources Board Members present in the courtroom. Judge Villarreal took the case under submission and will issue a written decision within 90 days.

Mandurrago, et al. v City of Carmel, et al.
Petitioners’/Plaintiffs’ Presentation

Overview of Plaza del Mar Project
• Application filing date: September 2001

• Project location
Corner of Dolores and Seventh Street, Carmel
Former location of a bank building

• Proposed Project Features
New retail spaces
Underground parking
Demolition of former bank building
7 new residential units, including 2 affordable housing units (subdivision map application)

City Decided Former Bank Building Should Not Be Protected
• C.M.C. 17.32.060

• 5 public meetings

• November 7, 2006: City issued 41 findings and decided NO, building should not be protected by being listed

• Findings included 18 findings under the heading, City Council Findings on Architectural Significance

Carmel Municipal Code section 17.32.060: Should bank building be protected by being listed on inventory of historic resources?

The conclusion in the draft EIR regarding the historic status of the old bank building could not be finalized until the city’s Department of Community Planning and Building took action on the matter, consistent with the procedures established in the City’s Local Coastal Program (LCP). City’s Brief, 3:10-13; AR (Administrative Record) 0894

City’s Demolition Permit Chapter, 17.30/010 protects only buildings listed on the City’s Inventory of Historic Resources.

City Council Findings on Architectural Significance
• Finding #22: “the EIR concluded that the bank is not historic and therefore no requirement existed for the EIR to address non-demolition or adaptive reuse alternatives. However, in response to public requests for such an alternative, the Final EIR included a new project alternative that included the existing bank building into the project design.”
AR0740

Finding 22 from the November 2006 findings

• Finding #27: “...Furthermore, upon demolition, a replacement building of the modern period could be designed that contributes equally to the City’s architectural diversity.”
AR0742

Finding 27 from the November 2006 findings

• Finding #33: “The building is not unique. ... There are other commercial buildings within the Monterey Peninsula area, and within the City limits of Carmel-by-the-Sea, that are designed in the Second Bay Area Tradition of architecture. There are also are other buildings that can be described as ‘heroic’ or ‘monumental’ within the Carmel-by-the-Sea and within the Monterey Peninsula area.”
AR0744

Finding 33 from the November 2006 findings

• Finding #34: “Based on Findings #30 through #33, above, and pursuant to the eligibility criteria for California Register of Historic Resources and the Carmel Municipal Code, the bank building does not embody distinctive characteristics of a type, period, region or method of construction, or present the work of an important creative individual or possess high artistic value, nor does it make an unusually strong contribution to history, architecture, engineering, or culture.”
AR0745

Finding 34 from the November 2006 findings

• Finding #16: “...In addition to above criteria, the Carmel Municipal Code also recognizes that a property can be considered of exceptional importance if it makes an unusually strong contribution to history, architecture, engineering or culture, or because it is an integral part of a historic district. Meeting any one of these criteria is sufficient to qualify a building less than fifty years old as historically significant.”
AR0737

Finding 16 from the November 2006 findings. The City cited as evidence for this the Carmel Municipal Code 17.32.040(H).

This means that even though the building was less than 50 years old, the City understood that it could still have placed it on the inventory of historic resources and protected it from demolition it the City concluded that is was “great architecture.”

Project Opponents Attempt to “Supersede” Earlier Findings
• After two council members who voted not to list the bank building on the City’s Inventory of Historic Resources announced their resignations, the City Planning Commission members trumped up “the loss of great architecture” if the building was demolished, requiring recirculation of EIR.

• A standard of “I know it when I see it.”

The term “trumped up” is appropriate as the City failed and continues to fail, to cite any written standard, ordinance, regulation, policy, or resolution as to how the city determined “great architecture.”

Subsequent Project History
• September 2008: Planning Commission certified the Amended EIR and approved the Project.

• Barbara Livingston appealed approval to the City Council.

• December 2, 2008: City Council upheld the Livingston appeal and made certain findings and determinations that would apply to future City actions concerning Project.

• Petitioners appealed to Court; Court of Appeal heard oral arguments on April 6, 2010. A decision must be rendered by July 6, 2010.

• On December 3, 2010, City Council certified the Amended EIR and also denied the Project, making 20 findings for denial.

Petitioners’ appealed decision to recirculation of the Amended EIR based on “loss of great architecture.” City’s motion after hearing the Petitioners’ appeal was merely a decision to recirculate the Amended EIR.

City Denied Project in violation of Housing Statutes and CEQA
• Housing Accountability Act (HAA)

• State Density Bonus Law (SDBL)

• California Environmental Quality Act (CEQA)

Violations
• December 3, 2009 decision is not supported by the findings.

• Key findings are not supported by the evidence.

• Findings #4, #5, #7, #13, #14, #16, #17, #18, #19 and # 20.

Project is a “Housing Development Project” –subd.(h)(2)(B)
• Finding #17 not supported by the evidence

• Project is a “housing development project”

• HAA definition of an eligible “housing development project:”
“Mixed use developments consisting of residential and nonresidential uses in which nonresidential uses are limited to neighborhood commercial uses and to the first floor of buildings that are two or more stories. As used in this paragraph, ‘neighborhood commercial’ means small-scale general or specialty stores that furnish goods and services primarily to residents of the neighborhood.”
Gov’t Code 65589.5(h)(2)(B)

Three reasons are given in Finding #17 that Project does not qualify.
1) Both the street level shops and the lower level parking garage would be commercially operated as independent businesses.

2) “The project also is not limited to neighborhood commercial uses.”

3) "Further, the applicant is unwilling to limit occupancy of the retail businesses to local, resident-serving uses. Without this limitation, the retail spaces could be occupied by visitor-serving uses otherwise allowed within the District by the zoning ordinance (e.g. art galleries, jewelry stores)."

Project is an eligible “housing development project”
1. City’s existing zoning district designation for the Project site, SC (Service Commercial), is intended to provide “a location for services, offices, residential, and limits retail that primarily serves local needs.” C.M.C. 17.14.010(B)

• Consistent with HAA definition of “furnishing goods and services primarily to residents of the neighborhood.”

2. City’s assertion that tenants will not comply with HAA requirements is false. Record demonstrates that Petitioners will voluntarily agree to limit the retail stores and shops to comply with HAA definition of uses allowed in a qualified “housing development project.” AR2353

• City admits in its Finding #2 that the Project is to be “occupied by unspecified tenants.”

3. Contrary to City’s assertion, underground parking does not prevent HAA from applying to Project:
• Parking is a permitted, even a required, residential use
• Does not matter if parking is commercially operated
• Underground parking is not considered a story
• Parking meets HAA’s “neighborhood commercial” standard
• Parking is not a retail store or a shop

City alleges that the underground parking is commercially operated it is not a standard of “commercial use” but “non-residential use” standard. Underground parking is not considered a story as defined by City’s zoning ordinance, City’s zoning only regulates above-ground uses.

City admits that the parking will be used by adjacent motel residents. This meets the definition of “neighborhood commercial” means “furnish goods and services primarily to residents of the neighborhood.”

There is no evidence in the record or in the Finding #17 that providing parking to the nearby motels/hotels that does not meet the need to provide “furnish goods and services primarily to residents of the neighborhood.” Only a declaratory statement.

4. City’s zoning ordinance permits as a right the land uses (e.g. art galleries, jewelry) that are alleged to be the problem.

5. City could impose conditions of approval on the uses as permitted by Subdivision Map Act, and Petitioners have already voluntarily agreed to limit the land uses to qualify for the HAA definition.

6. Subdivision map Act does not permit the City on its own to amend the City’s zoning regulations that were in effect when the application was deemed complete.

Project Meets Both Standards in HAA
• Project complies with the “applicable objective general plan and zoning standards and criteria, including design review standards, in effect at the time project application is determined to be complete”
Gov’t Code 65589.5(j)

Project would be subject to HAA if it only fit the definition set forth above regarding housing developments. Project is also subject to HAA because it meets the other standard set forth in Gov’t Code 65589.5(j).

City Denied Project in Violation of HAA As it Required “objective general plan and zoning standards”
• Government Code section 65589.5(j) provides:
• (j) When a proposed housing development project complies with applicable, objective general plan and zoning standards and criteria,
including design review standards, in effect at the time that the
housing development project's application is determined to be
complete, but the local agency proposes to disapprove the project or
to approve it upon the condition that the project be developed at a
lower density, the local agency shall base its decision regarding the
proposed housing development project upon written findings supported
by substantial evidence on the record that both of the following
conditions exist:

• (1) The housing development project would have a specific, adverse impact upon the public health or safety unless the project is
disapproved or approved upon the condition that the project be
developed at a lower density. As used in this paragraph, a "specific,
adverse impact" means a significant, quantifiable, direct, and
unavoidable impact, based on objective, identified written public
health or safety standards, policies, or conditions as they existed
on the date the application was deemed complete.

• (2) There is no feasible method to satisfactorily mitigate or
avoid the adverse impact identified pursuant to paragraph (1), other
than the disapproval of the housing development project or the
approval of the project upon the condition that it be developed at a
lower density.

City Denied Project in Violation of HAA
• Denial of project subject to HAA must have been based on “applicable, objective general plan and zoning standards and criteria, including design review standards, in effect when the housing development project application is determined to be complete…”
Gov’t Code 65589.5(j)

• Denial based in part on finding #4 and finding #14. However, these findings cannot be used to deny the Project as these findings are based upon subjective, general plan and zoning standards and criteria.
See Finding #4 and Finding #14

Finding #4 Is Based on Subjective, Not Objective, Criteria
• City admitted: “the three applicable policies are an expression of intent.” AR2341.

• City admitted: the three alleged inconsistent General Plan policies are not violated. AR2248, 2340.

• City admitted it seeks to allow “the City discretion to use the intent of the policies in the General Plan/coastal Plan as a basis for its discretion.” AR2248, 2341.

• The Project is a mixed-use project, as encouraged by P1.62 and O 3-6. AR0628.

• The City General Plan encourages but does not require mixed land uses that create second floor apartments. “Second floor housing over first floor commercial uses” is merely a parenthetical phrase.

• City cannot cite to the current Housing Element; only the Housing Element in effect when Project application was deemed complete

• Project meets current Housing Element

Finding #14 alleges that the “low number of dwelling units in the project fails to meet the intent of the City’s policies and ordinances regarding density and would impede attainment of the housing targets in the adopted certified General Plan Housing Element.” The evidence that the City cites for support of this finding #14 is the current Housing Element of the General Plan and zoning ordinance density provisions.

Current Housing Element does not even include the Project site as a site to provide affordable housing. How could the Project “impede attainment of affordable housing targets” if voluntarily providing these two units? Petitioners have voluntarily propoosed providing City up to 11% of the City targets affordable units on a site not even included in the City’s inventory of lands for affordable housing.

• City’s Zoning Ordinance and Housing Element have no minimum residential density. Density is a range between 0-22 dwelling units per acre. There is no threshold of 22 dwelling units per acre in any city general plan, ordinance, regulation, or policy.

• City’s current Housing Element states commercial districts allows for residential units “on the ground floor" and “underground parking.”

• City’s certified Amended EIR states that having residential uses on the ground floor does not violate the General Plan: “through the Design Review and Use Permit Process, the Planning Commission can determine the appropriate allocation of retail and residential space that will make these shops viable and comply with the intent of the General Plan policies on mixed use project quoted above.”
AR2502, Amended EIR, Section 3.5, pp. 2-13.

• City cannot require the Project to be “developed at a lower density” by removing the Project’s proposed ground floor residential units, nor deny the Project based upon “subjective design review criteria” unless City makes the written findings stated in HAA, subd.(j), (1) and (2).

Requested Incentives Cannot Be Basis for Denial, so finding #5 and Finding #13 Are Not Supported
• Petitioners agreed to amend the Project design
AR2359-2360, 2502.

• Petitioners can easily redesign the Project to retain the two trees by deleting one of the underground parking spaces
AR2327-2328.

• The number of condominium/rental unit issue can be addressed by a subdivision map condition of approval/legal documents as to ownership.
AR2327-2328.

• City’s action violates public policy.

• SDBL states cannot use granting of incentives as requiring a general plan or zoning amendment or LCP amendment Subd.(j).

The City has based its denial of the Project in part upon the Petitioners’ requested State Density Bonus Law (“SDBL”) concessions/Incentives. Findings #5 and #13.

City Failed to Make Required Findings to Deny HAA Project - Second Standard
• If any city, county, or city and county denies approval or imposes restrictions, including design changes, a reduction of allowable densities or the percentage of a lot that may be occupied by a building or structure under the applicable planning and zoning in force at the time the application is deemed complete pursuant to Section 65943, that have a substantial adverse effect on the viability or affordability of a housing development for very low, or moderate income households, and the denial of the development or the imposition of restrictions on the development is the subject of a court action which challenges the denial, then the burden of proof shall be on the local legislative body to show that its decision is consistent with the findings as described in subdivision (d) and that the findings are supported by substantial evidence in the record.
Gov’t Code 65589.5(j).

City Failed to Make Required Findings Under Gov’t Code 65589.5(d)
• City argues that it meets 2 statutory exemptions, 65589.5(d)(3) and (5).

• (d)(3) does not apply:
Requires citation to “specific State law” but City only cited its own LCP

Only “specific State law” cited is the entire Public Resources Code

No evidence in Finding #20 that “there is no feasible method to comply without rendering the development unaffordable to low- and moderate-income households.”

• (d)(5) does not apply:
It is not cited in the City’s Findings

City misinterprets its meaning

The City alleges that it complied with subd (i) because the City’s action is within two statutory exemptions of the HAA, (d)(3) and (d)(5). City’s Brief, 31:13-14. If subd. (i) standard did apply, City failed to meet the standard. See Finding #20.

LCP is a city adopted plan (admitted by City in its brief, pg. 23-25 “...Local Coastal Program has been adopted as part of the City’s General Plan."), not a “specific state law.”
There is no specific state law requiring that Project preserve two trees or have at least a 1:1 ratio of rentals/condominium.

Petitioners and court are not required to guess what is the “specific state law.” As stated in finding #20, City cannot cite to entire Public Resources Code, including CEQA, as it is not a “specific state law’ as it makes no sense to have HAA include DEQA mandate as to what is “specific adverse impact” and then allege CEQA is the "Specific state law” which has a completely different definition of what is a “specific adverse impact.”

(D)(5) - (1) Not cited in the Findings anywhere.

(2) If anything, this provision supports Petitioners because it states that a city cannot disapprove or conditionally approve a project if the project is proposeed on a site that is available to very low-, low-, or moderate-income households, so long as project density is consistent with the City's Housing Element. Gov't Code 65589.5(d)(5)(A). Project density is between 0-22 units per acre.

(3) "A) This paragraph cannot be utilized to disapprove or conditionally approve a housing development project if the development project is proposed on a site that is identified as suitable or available for very low, low-, or moderate-income households in the jurisdiction's housing element, and consistent wiht the density specified in theo housing element, even though it is inconsistent with both the jurisdiction's zoning ordinance and general plan land use designation."

City Denied Project in Violation of SDBL
• Petitioners qualified for SDBL incentives:
• “(b) A city, county, or city and county shall grant a density bonus and incentives or concessions described in subdivision (d) when the applicant for the housing development seeks and agrees to construct at least any one of the following:

• (1) Ten percent of the total units of a housing development for lower income households, as defined in section 50079.5 or the Health and Safety Code.”
Gov’t code 65915.

Petitioners Are Entitled to the 2 Incentives
• SDBL states that the granting of the concession/incentive “shall not be interpreted, in and of itself, to require a general plan amendment, local coastal plan amendment, zoning change, or other discretionary approval. This provision is declaratory of existing law.”
Gov’t Code 65915(j).

• The City’s interpretation violates public policy.

The City based its refusal to grant the incentives on its assertions as they would violate the City’s zoning ordinance and/or that Petitioners had to request a density bonus to qualify for the affordable housing incentives. See Finding #16

The City could deny any affordable housing project based upon the applicant’s reasonable request for incentives/concessions merely because the applicant’s requested incentives/concessions would “violate” the City’s zoning ordinance or local coastal plan. Government Code section 65915(j) does not allow the City to issue a finding of zoning violation/LCP based merely upon Petitioners’ request for two incentives that must be “granted” by the City,

City Denied Petitioners’ Requested Incentives – Violating SDBL
• City failed to make written findings as required by subd. (d)(1):
• (d) (1) An applicant may submit to a city, county, or city and county a proposal for the specific incentives or concessions that the applicant requests pursuant to this section, and may request a meeting with the city, county, or city and county. The city, county, or city and county shall grant the concession or incentive requested by the applicant unless the city, county, or city and county makes a written finding, based upon substantial evidence, of either of the following:

• (A) The concession or incentive is not required in order to provide for affordable housing costs, as defined in Section 50052.5 of the Health and Safety Code, or for rents for the targeted units to be set as specified in subdivision (c).

• (B) The concession or incentive would have a specific adverse impact, as defined in paragraph (2) of subdivision (d) of Section 65589.5, upon public health and safety or the physical environment or on any real property that is listed in the California Register of Historical Resources and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the development unaffordable to low- and moderate-income households.

Gov’t Code 65915

City Denied Project in Violation of SDBL
• Project is clearly within the residential density permitted by the city’s zoning ordinance and more than 20% of the residential units are being dedicated to affordable housing.
See C.M.C. 17.14.030, AR2104, Gov’t Code 65915(d).

• City improperly required Petitioners to first seek a particular incentive, a density bonus before the City would grant Petitioners’ two requested incentives/concessions.
AR2373, Finding #16

• The applicant, not the City, determines what incentive (including the density bonus) applicant needs to make the project feasible.
Gov’t Code 65915(d)(3).

• If the findings critical to the city’s decision are based upon erroneous legal assumptions, then the decision must be vacated.
City of Marina v. Board of Trustees of the California State University (2006) 19 Cal.4th 341, 355, 365-366.

HCD Letter to City Regarding SDBL
• “...an applicant is not required to request both a density bonus and a concession in order to be eligible for the other. Interpreting the stature to require a developer to request both a density bonus and a concession or incentive is clearly inconsistent with subsections (b) and (g), and is further contradictory to the intent of the law. This is particularly true when the requirement to incorporate the additional bonus units would jeopardize project feasibility.”
HCD Letter to City, dated July 10, 2008, AR1584

Res Judicata/Collateral Estoppel Prevent the City from Denying the Project Based on CEQA, Finding #7
• City could not revise previous findings
Finding No. 7 contradicts Original Finding Nos. 22, 27, 33, 34

City admits that its Zoning Ordinance 17.32.060, “the conclusions of the Final EIR regarding the historic status of the bank building could not be finalized until the City’s Department of Community Planning and Building took action on the matter, consistent with the procedures established in the City’s adopted Local Coastal Program.” City’s Brief p. 3, 10-13.

The City was required to make a “decision” the EIR conclusion regarding the historic status of the old bank building. That decision occurred with findings on November 7, 2008.

The City’s CEQA decision is subject to the principles of res judicata/collateral estoppel. The City’s Findings cannot be “superseded” or amended as stated in case law such as Marie Y v. General Star Indemnity Co. Dental Board made findings in a professional discipline administrative proceeding before an administrative law judge (just like the appeal hearing before the Carmel City Council concerning whether the old bank building should be placed on the Inventory of Historic Resources) that went unchallenged. Because the November 7, 2006 decision could have challenged, but was not, it must be deemed res judicata.

Res Judicata/Collateral Estoppel
• The City was required to take an “action” regarding the EIR’s conclusion as to the historic status of the old bank building. That decision occurred with findings on November 7, 2006.

• The City’s CEQA decision was whether to list the Project’s building on the Inventory of Historic Resources.

• Whether to list the Project on the Inventory of Historic Resources is subject to the principles of res judicata/collateral estoppel.

• The City’s 2008 findings cannot be “superseded” or amended.

Topanga Ass’n for a Scenic Community v. County of Los Angeles (1974) 11 Cal. 3d 506.
• Public agencies acting as nonlegislative (quasi-judicial, adjudicatory, or administrative role) bodies as opposed to in a legislative capacity, must make findings.

• The findings are the roadsigns.

• There is no presumption that a city’s decision rests upon necessary findings and that such findings are supported by substantial evidence. Rather, a public agency must expressly state its findings and must set forth relevant facts supporting them, particularly when the city bears the burden of proof.

Findings are to show the court, as well as the applicant, whether and on what basis the applicant should seek review, and how the City arrived at its destination or ultimate decision. The findings, including those made in its November 7, 2006 decision, must allow a court to logically follow the path from the evidence to the findings based upon that evidence to its final conclusion, as required by Topango Ass’n for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506.

Cannot have inconsistent findings.

The level of significance for the “loss of great architecture” cannot be merely based upon subjective beliefs and sentiment as these are not facts or any level of significance based upon quantitative or qualitative standard.

City Violated CEQA
• City could not meet CEQA definition of “great architecture” based upon City’s previous findings

Not great architecture: Original finding Nos. 16, 22, 27, 33, 34

Building could be demolished: Original Finding Nos. 22, 27.

Petitioners do not dispute the City’s right to regulate based upon aesthetics. Aesthetics require some standard or criteria so that the “applicant can readily discern the intent of the implementing agency.” In other words, as CEQA expects, the City needs to adopt standards and criteria for determination of “great architecture.”

The City adopted Chapter 17.32 which establishes “the purpose of the historic preservation ordinance is establish standards, procedures, and regulations to promote identification and preservation and enhancement of historic resources including buildings…that represent the unique architectural, cultural, historic and prehistoric identity of Carmel-by-the-Sea." C.M.C. 17.31.010.

If the bank building was “great architecture” the City’s regulations required the building to be listed on the Carmel Inventory of Historic Resources to be “great architecture.

The question before the City in November, 2006 was whether to include the Burde Building on the City’s Inventory of Historic Resources what would not allow demolition unless the City found otherwise.
The administrative record as stated in the November 7, 2006 findings states that the Council specifically found that the building’s architecture was not great architecture not did it warrant protection from demolition, as only buildings listed on the inventory are protected from demolition. 17.30.010.

New Finding #7 Contradicts Original Finding #34
• Original: “Based on Findings #30 through #33, above, and pursuant to the eligibility criteria for California Register of Historic Resources and the Carmel Municipal Code, the bank building does not embody distinctive characteristics of a type, period, regions or method of construction, or present the work of an important creative individual or possess high artistic value, not does it make an unusually strong contribution to history, architecture, engineering, or culture.”
AR0745.

• New: “..all support the conclusion that the building qualifies as having special character defining features that make it architecturally and visually distinctive.”
AR2203

New Finding #7 contradicts Original finding No. 33
• Original: The building is not unique. ...There are other commercial buildings within the Monterey Peninsula area, and within the City limits of Carmel-by-the-Sea, that are designed in the Second Bay Area Tradition of architecture. There are also other buildings that can be described as ‘heroic’ or ‘monumental’ within the Carmel-by-the-Sea and within the Monterey Peninsula area.”
AR0744

• New: “The Burde Building has been described as being of exceptional importance. It is a pure, original and unique example of modern architecture.”
AR2203.

CEQA Does Not Trump HAA
• Petitioners have consistently argued that they must comply with both HAA and CEQA as stated in HAA, subd.(b), contrary to Finding #18

• HAA sets a higher standard for what is “specific adverse impact” if the City denies the Project or requires a lower density. HAA, Subd.(i) and (j)

• An apparent conflict exists between two statures, the principle of harmonious construction to give effect to both.

• Give effect to all terms of the statute

Project Does Not Override LCP
• Finding #19 is incorrect, as the LCP is the city’s General Plan and its implementing mechanism is the City’s Zoning Ordinance

• Project does not violate either City’s General Plan or Zoning Ordinance as stated previously. Therefore, no LCP violations.

Conclusion
• City cannot deny the project without making findings as required by HAA

• City cannot deny the incentives provided by SDBL

• City cannot “revise” its findings to contradict November 2006 findings due to res judicata/collateral estoppel

• City’s Amended EIR violates CEQA

JOHN MANDURRAGO ET AL. V. CITY OF CARMEL-BY-THE-SEA, ET AL. SUMMARY: PETITIONERS’ COMPLAINT & OPENING BRIEF, RESPONDENTS’ BRIEF and PETITIONER’S REPLY BRIEF

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

COMMENTARY: The Personal Vendettas of Mayor Sue McCloud

Personal Vendetta: Revenge (synonym vengeance) is a harmful action against a person or group as a response to a (real or perceived) grievance.

Despite Mayor Sue McCloud’s consistent rhetoric for the past ten years about “common sense and mutual respect for one another’s views” and moving “forward together,” Sue McCloud has hyper-polarized our community by vilifying individuals with accusations of “character assassination,” “personal attack,” assailing individuals' arguments as “misinformation” and pursuing personal vendettas.

Case Study I: John Mandurrago, Property Owner and Developer

Years ago as a Planning Commissioner, Sue McCloud wrote and distributed a fax to her fellow planning commissioners regarding a proposed project which concluded “if we all hang together on this we can kill this project.” Not only was this act a violation of the Brown Act, but she later as mayor pursued a personal vendetta against John Mandurrago. In a recent letter to the editor, John Mandurrago explained, as follows:

Having lived and done business in Carmel for over 22 years, I have watched Mayor Sue McCloud pursue personal vendettas and expose Carmel to extraordinary legal liability.

In 1999, for example, a Carmel City Hall employee handed me a fax that was addressed to all planning commissioners discussing one of my projects. The fax was sent by Sue McCloud and, after putting forth substantive arguments against my project, it concluded “if we all hang together on this we can kill this project.”

Several elected Carmel officials told me McCloud’s fax was unethical conduct and a violation of the Brown Act. I was quickly offered a settlement in exchange for not suing the city. This is why McCloud was not reappointed to the planning commission.

Shortly after McCloud was elected mayor, Rich Guillen asked me to meet with him and McCloud at Carmel City Hall. McCloud had a scowl on her face, leaned over the table, and threatened me. She said “things are going to be different from now on.”

Carmel residents and Carmel business owners deserve an ethical mayor. Sue McCloud is not an ethical mayor.

Moreover, John Mandurrago’s Petition filed in Monterey County Superior Court against the City of Carmel-by-the-Sea on February 27, 2009 (M97273), states, as follows:

Carmel’s almost four year delay in certification of the EIR is wholly arbitrary and irrational subjective EIR requirements based on vindictive ill will aimed at Petitioner and his project and is intended to delay and ultimately deny the Project based on animus, ill will and wholly arbitrary and irrational subjective requirements “such as loss of great architecture” when the City has no written regulation, policy, resolution, General Plan, zoning ordinance, or any factual documentation to support this funding of unmitigated substantive adverse impact in the environment pursuant to CEQA.

The above recited actions of Respondents’ and Defendants’ in depriving Petitioner of his state and federal protected constitutional rights were done with evil motive or intent, or with reckless or callous indifference to Petitioner’s rights requiring putative damages to be imposed.

Case Study II: Melanie Billig, President of Flanders Foundation

If the criteria used to determine the fate of the Flanders Mansion Parkland Property had involved the integrity of Mission Trail Nature Preserve and planning policy, namely the elimination of in-holdings, not the creation of in-holdings, then Mayor Sue McCloud would have solicited proposals for the lease use of the Flanders Mansion, placed the proposals on a public meeting agenda for public consideration and negotiated in good faith with representatives of the Flanders Foundation. Instead, for ten years, Mayor Sue McCloud campaigned exclusively for the sale of the Flanders Mansion Parkland Property resulting in two “rubberstamp” city councils voting in 2005 and 2009 to authorize the sale of the Property; and even after a Monterey County Superior Court Judge ruled in 2007 against the City in Flanders Foundation v. City of Carmel-by-the-Sea, et al. (M76728), the mayor continued authorizing expenditures of taxpayer dollars toward the sale of the Property, rather than consider lease options. Therefore, a reasonable inference is that Sue McCloud was guided by personal animosity towards the individual behind the lease use of the Flanders Mansion Parkland Property, Flanders Foundation President Melanie Billig.

Case Study III: Jane Miller, On-Leave Human Resources Manager

In on-leave Human Resources Manager Jane Miller’s court file pertaining to her lawsuit against the City, information shows that four former senior management city employees had claims similar to Jane Miller, namely “hostile” work environment and being force into early retirement, and in at least two of those cases, the city employees waived claims to secure a monetary settlement. Furthermore, in all four cases, the City negotiated with the attorney for the four city employees until a settlement was reached. However, in the case of Jane Miller, the mayor and city council not only failed to response to Jane Miller's attorney’s May 2008 letter and Jane Miller’s October 2008 letter, but they failed to negotiate in good faith prior to Jane Miller filing her lawsuit against the City in June 2009. Additionally, Mayor Sue McCloud demeaned Jane Miller with her dismissive "it's nothing" characterization of Jane Miller's legal complaint. Therefore, a reasonable inference is that Sue McCloud’s decisions were guided by personal animosity towards the individual personifying city employees with complaints regarding “hostile” work environment and being forced into early retirement.

In conclusion, the mayor of Carmel-by-the-Sea is expected to speak to all Carmelites, not merely to her supporters, and build consensus through argument and persuasion - not by vilifying individuals and pursing personal vendettas. Moreover, Mayor Sue McCloud’s personal animus against individuals has guided her governmental decision-making, rather than an objective analysis of the merits of the issues, including the fates of the Walter Burde bank building and Flanders Mansion Parkland Property and the complaints by city employees of sexual harassment, employment discrimination and retaliation. To wit, 736 Carmel voters who voted for mayoral candidate Adam Moniz recognize the aforementioned, while the 847 Carmel voters who voted for incumbent Mayor Sue McCloud will someday in the future have to account for their support of the current mayor of Carmel-by-the-Sea.