070302-2

THE CITY of Carmel-by-the-Sea cannot sell the historic Flanders Mansion unless it proves it would be too expensive to keep it and the sale is OK’d in a public vote, according to a Feb. 21 ruling by Monterey County Superior Court Judge Robert O’Farrell.

His decision in favor of the Flanders Foundation, which sued the city to stop the proposed sale in November 2005, also found the city is guilty of “demolition by neglect” and must make haste to prevent further deterioration of the house constructed more than 80 years ago. Estimates put repairs in excess of $1 million.

Three years ago, after opponents of the proposed sale failed to win council seats in municipal elections, city decision makers believed they were acting in an abundance of caution when they spent more than $100,000 on an environmental impact report exploring the possible effects of selling the mansion. After failing for more than three decades to find a suitable public use for the house, which is listed on the National Register of Historic Places, the city hoped to get rid of it and raise money for capital work by selling it as a single-family home. Officials also said putting it in private hands would help preserve it.

But the EIR proved to be the city’s undoing. It identified several “significant, unavoidable” environmental impacts of the sale — particularly, cutting off public access and affecting the “cohesive structure of Mission Trail Nature Preserve by changing control of a parcel located within the preserve.”

In its lawsuit, the Flanders Foundation asked the court to require the city to lease the mansion — identified in the EIR as the “environmentally superior alternative” — rather than sell it. O’Farrell declined but said Carmel illegally ruled out the lease option. Renting it to a private occupant would still result in repair and upkeep, but would retain the house in public ownership while providing revenue for the city.

“The fact that an alternative may be more expensive or less profitable is not sufficient to show that the alternative is financially infeasible,” O’Farrell cited in his ruling. “What is required is evidence that the additional costs or lost profitability are sufficiently severe as to render it impractical to proceed with the project.”

He said testimony by principal planner Brian Roseth and city administrator Rich Guillen, unsupported by an economic analysis, did not prove a lease would fail to achieve the same goals as selling.

It’s a park; the people should vote

Even if the city had shown selling was the only option to achieve its goals, the Carmel City Council failed to follow the proper process for putting public property on the market, O’Farrell found.

The Flanders Foundation argued the mansion constitutes parkland, and the rules for selling parks differ from those governing the sale of other municipal property.

In city hall and in court, the attorneys, council members and administrators said the mansion was not a park since it was never visited by the public as a museum or other traditional use. They said it should be considered a single-family home.

But it’s zoned “improved parkland,” and “walking trails lead hikers to this obviously historic edifice that certainly gives the appearance to be part of the park grounds,” O’Farrell said, so the city must treat the house as park property. “Structures, particularly those of historical significance, can be just as legitimately part of a park as one with a practical purpose.”

With that determination, “Carmel must comply with [state law] if it sells parkland,” he ruled.

According to the California Government Code, a municipality can sell park property by publishing “a resolution declaring that public interest or convenience requires the discontinuance of the use of such land as a public park,” holding hearings on the resolution, allowing time for people to register their protests and voting on those protests. If the majority overrules the objections, “the legislative body may adopt an ordinance calling, and fixing the date of, a special election to submit to the city electors the question of discontinuance and abandonment of the use of park land on which protests were overruled,” according to code section 38450.

The city also never declared Flanders Mansion “surplus property,” as required by law, which also mandates it be offered to other public agencies before potential private buyers, O’Farrell found.

He also demanded the city immediately fix the house before it deteriorates any further. In its current state, Flanders Mansion is reportedly safe to enter but needs work on its roof, windows and interior. In recent years, the old, empty building has sustained water damage and been occupied by wildlife, including bats.

In the lawsuit, the Flanders Foundation accused the city of violating its own municipal code, which states the owners of historic buildings must maintain them.

O’Farrell agreed. “It is clear that the Carmel Municipal Code requires Carmel to preserve the mansion ‘against decay and deterioration,’ and Carmel has failed to keep the mansion ‘in a state of good repair and free from structural defects,’” he wrote.

He ordered the city “to implement, without delay, reasonable interim measures necessary to avoid further significant deterioration of the mansion.”

In his 23-page judgment, O’Farrell sided with Carmel on a few aspects of the case. The council did not violate its own general plan in deciding to sell, it responded adequately to comments received on the EIR, and it developed detailed and sufficient “mitigation measures,” to help offset the effects of selling the house, such as requiring its new owner to repair it and preserve the views of the house from the surrounding parkland.

The judgment, which should be made final within a month, makes no mention of attorney’s fees. But Susan Brandt-Hawley, who represented the foundation, will likely file a motion with the court requesting that the judge order the city to pay her.

According to a statement issued by city attorney Don Freeman’s office Thursday, “The city council, after reviewing the intended decision with legal counsel, believes there are a number of factual as well as legal concerns related to the intended decision and has determined to submit a response to the court for consideration prior to the issuance of a final decision.”