By William W. Abbott
Flanders v. City of Carmel-By-The-Sea (January 4, 2012, H035818) ___Cal.App.4th ___
The most recent CEQA appellate decision brings to mind the well quoted line from Shakespeare: “my kingdom for a horse” to describe a trial court and appellate court ruling concluding that the lead agency’s failure to respond to one comment on a DEIR was a basis for invalidating the EIR certification. The Bard remains alive writing CEQA tragedies as apparently there is no shortage of material to choose from.
Unfortunately, the facts are neither dramatic nor terribly unique. Having already prepared one EIR previously set aside by a court, the City of Carmel-by-the-Sea undertook a new EIR for the purposes of evaluating the impacts of the City disposing, by sale or lease, of a historic mansion. In 1971 and 1972, the City acquired the Flanders Mansion and surrounding preserve property. Constructed in 1924, the mansion was a “two-story Tudor Revival English Cottage,” designed by a prominent architect, Henry Higby Gutterson. The property had been used for various purposes: residential, gallery and office space, but had been vacant since 2003. Facing ongoing ownership of a property with significant deferred maintenance, the City proceeded with an EIR to deal with disposition options. Pursuant to the EIR, the City’s primary objective was to divest itself of the mansion, with secondary objectives of (1) preserve the mansion as a historical resource; (2) put the mansion to productive use; (3) provide that ongoing use of the mansion would not impact the surrounding neighborhood; (4) protect the public’s enjoyment of surrounding preserve; (5) protect the environmental resources and (6) provide the public as many park benefits as are practical. The DEIR included four alternatives: no project; residential lease; public use lease; sale with conservation easements and mitigations. The DEIR concluded that all the project alternatives had fewer environmental impacts than the project as proposed, but only the sale alternative would meet the basic objective of divestment. The administrative record, although not the EIR, included an economic feasibility analyis of the various options. One of the letters on the DEIR commented on the feasibility analysis, the Surplus Lands Act, and the alternative of selling the home on a smaller parcel. The FEIR responded to the first two, but not to the third comment in this particular letter. In May 2009, the City adopted various resolutions certifying the EIR, adopting the MMRP, adopting a statement of overriding considerations, and approving the project (sale with conservation easements and mitigation measures.) Following the CEQA challenge, the trial court held that the EIR failed to consider the impacts of selling the property in compliance with the Surplus Lands Act as well as failure to respond to one comment. The City appealed and the Flanders Foundation, the petitioner, filed a cross appeal.
The appellate court ruled for the City on all issues save one. First, the court concluded that while the Surplus Lands Act applied to the sale, the evidence was that the development of an affordable project was unlikely, therefore there was no requirement to study this potential scenario in the EIR. The appellate court also concluded that there was no obligation for the lead agency to include the economic feasibility in the analysis, and in a detailed critique, that the evidence contained within the analysis constituted substantial evidence. Notably, the court held that analytical framework in the study of what a reasonable prudent property owner would do, as compared to what the City could afford to undertake, was appropriate. The appellate court also rejected the Foundation’s challenge to the statement of overriding considerations, after determining that there were multiple independent grounds stated in support of the override (and that the opponents failed to demonstrate a lack of substantial basis for each one.) The appellate court did concur with the trial court that the City’s non response to the question regarding the viability of mitigation to park impacts through the sale of a smaller parcel (along with the home) warranted a response, and that the “City’s certification of the FEIR was therefore invalid.”
William W. Abbott is an attorney at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.