Metropolitan News-Enterprise


Thursday, January 5, 2012


Page 1


Panel Rejects City’s Plan to Sell Historic Carmel Mansion




The City of Carmel-by-the-Sea failed to adequately consider an alternative to its planned sale of property on which a historic mansion is located, the Sixth District Court of Appeal ruled yesterday.

The justices affirmed, with a slight modification,  a Monterey Superior Court judgment in favor of the Flanders Foundation. The foundation supports the Flanders Mansion, located on a city-owned parcel of land surrounded on all sides by a nature preserve that is also owned by the city.

The 1924 mansion, designed by noted architect Henry Higby Gutterson, is 6,000 square feet in size. It consists of two stories, with six bedrooms and four and a half baths, and is listed on the National Register of Historic Places.

The city has owned the property since the early 1970s. The mansion has been vacant since 2003, having been at times a private residence, an art institute, and office space before that.

State of Disrepair

The city wants to offer the property for sale, according to the final environmental impact report rejected by the court, because the mansion is in need of repair. A sale will, the city contends, preserve the mansion as a historic resource, while putting it to productive use without impairing public use of the preserve or negatively impacting the surrounding neighborhood.

The city has estimated that it can restore the property for sale or lease at a cost of $1.157 million, then sell it for a little over $2 million as a nonresidential property or for $4 million as a single-family residence.

The foundation opposes the sale, saying “the greatest productive use is to open it [the mansion building] to the public for an educational, cultural and natural history museum and retain the park as a whole, intact open space for the immense enjoyment of the public.”

Superior Court Judge Kay T. Kingsley granted the foundation’s petition for a writ of mandate rejecting the EIR. She found that it failed to analyze the potential environmental impact associated with the Surplus Land Act and failed to adequately respond to a proposal to sell the residence along with less of the adjacent land.

Surplus Land Act

The Surplus Land Act provides that if a local government wants to dispose of land that it no longer needs, it must first offer to sell or lease the land to certain entities for specified purposes, including affordable housing or use as a park.

If one of the noticed entities wants the property, the parties must negotiate in good faith for a minimum of 60 days. If an agreement is not reached, the agency that owns the land is deemed to have fulfilled its obligations under the act and is free to dispose of it under whatever other legal provisions apply.

Justice Nathan Mihara, writing yesterday for the Court of Appeal, said Kingsley’s ruling regarding the Surplus Land Act was based on the erroneous premise that a purchaser under the act would not have to comply with the “mitigation monitoring and reporting program” adopted by the city under the California Environmental Quality Act, or with the conservation easements in the recorded CC&Rs for the property.

The jurist wrote:

 “We see nothing in the Surplus Land Act to support this premise. The Surplus Land Act contains no provision that explicitly prohibits a disposing agency from selling surplus property that is subject to mitigation conditions and conservation easements.  While the provision regarding negotiations refers only to price (as to sale), mitigation conditions and conservation easements that have been created to comply with CEQA are non-negotiable, as they are required by state statutory law.  Since the Surplus Land Act explicitly states that none of its provisions ‘shall be applied when it conflicts with any other provision of statutory law’ cannot reasonably be interpreted to preclude CEQA-required mitigation conditions and conservation easements from being attached to surplus land.”

Nor, Mihara said, was the city required to address the foundation’s concern that a sale to a public entity under the act, as opposed to a sale to a private party, would deprive the city of its ability to enforce local zoning, since the new owner would still be subject to the mitigation measures and conservation easements.

The justice agreed with the trial judge, however, that it was an abuse of discretion for the city to approve the final EIR without addressing the possibility of selling less than the proposed 1.25 acres of land. The city’s argument on appeal, that the conservation easement would serve the same purpose as the suggested reduction in parcel size, came too late, Mihara wrote, explaining:

“The purpose of CEQA is to inform both the public and the decisionmakers, before the decision is made, of any reasonable means of mitigating the environmental impact of a proposed project,” Mihara explained.

The panel did, however, turn back the foundation’s cross-appeal, in which it challenged the city’s economic analysis, in which it concluded that continuing to own and maintain the property, or leasing, rather than selling, were infeasible.

The city, Mihara wrote, “could have reasonably concluded that continuing to pour any amount of maintenance expenses into a vacant and decaying building in a park was an inappropriate use of City resources,” and that spending more than $1 million “to prepare the property for lease in an exceedingly thin to nonexistent rental market where, even if the property could be leased, it would take nearly a decade or more to recover that investment,” wasn’t feasible either.

The case is The Flanders Foundation v. City of Carmel-by-the-Sea, H035818.


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