CITY COUNCIL: RESPONSES TO LEGAL & PLANNING COMMENTS ON SALE OF THE FLANDERS MANSION PROPERTY

ATTACHMENT D
RESPONSES TO LEGAL AND PLANNING COMMENTS

Parkland and Surplus Land Sale
If the City Council determines that the public interest or convenience requires
discontinuance of the parkland, and that the Flanders Mansion property is not needed for municipal uses, it can sell the property. The proposed resolutions adopting a Statement of Overriding Considerations, selecting a project for implementation, and noticing the intent to discontinue parkland contain the justification for those determinations. The City Council will consider the evidence, including public testimony and the analyses by the environmental and economic experts, and their duty to responsibly manage the expenditure of public funds, in making its determinations whether to adopt those resolutions.

The 2005 and 2009 EIRs analyzed a reasonable range of alternatives that are sufficient to
“bracket” the potential impacts of uses that might be established by the Surplus Land agencies.
None of the agencies to be offered the Flanders Mansion property under the Surplus Land
statutes, including affordable housing agencies, are exempt from CEQA. If the mitigations and
conditions of sale were set aside, that would permit such agencies to use the property in a manner
which creates adverse environmental impacts, contrary to the requirements of CEQA.
Nothing set forth in the Surplus Land statutes speaks, one way or the other, to whether
mitigation measures may be imposed upon the listed agencies or whether those agencies may
avoid the mitigation measures. The Surplus Land statutes do not prohibit application of the
mitigation measures and Mitigation Monitoring and Reporting Program to such agencies. If the
resolution is adopted, the City Council will require the mitigation measures, through the
Mitigation Monitoring and Reporting Program, to be contained in any contract of sale and to be
recorded against the property to apply to all future owners in perpetuity.
Finally, as stated in the RFEIR, if a future proposed use might have impacts that lie
outside the environmental impact report's analysis and would be insufficiently mitigated by the
proposed Mitigation Monitoring and Reporting Program and conditions of sale, CEQA would
require further review to identify and avoid or substantially lessen these impacts.
Economic Feasibility, Appropriate Use of Public Funds, and Overriding Considerations
The public has had adequate time and opportunity to consider and assess the economic
feasibility analysis and to provide written and oral comment on the economic feasibility analysis.
The costs to rehabilitate the Flanders Mansion property have been identified (in ARG's
report). As shown by the economic expert consultants' reports and further explained in their
supplement to their report dated May 6, 2009, lost profit was not the basis for their feasibility
determination. CBRE considered the standards for infeasibility set forth by the superior court in
the decision in the case, The Flanders Foundation v. City of Carmel-by-the-Sea, et al. (Mont. Co.
Super. Ct. Case No. M76728), and based their economic infeasibility determination upon those
requirements.
The City has a duty to responsibly manage public funds. The City Council will determine
whether the expenditure of funds for the historic rehabilitation of a property, not needed for
municipal uses, is a proper use of such funds.
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The City Council will consider the evidence, including public testimony and the analyses
by the environmental and economic experts, and its duty to responsibly manage the expenditure
of public funds, in making its determinations on the proposed actions. If the proposed
resolutions are adopted, the City Council will be determining that alternatives to the project or
Sale with Conservation Easements and Mitigation are economically infeasible. The proposed
resolutions specifically identify benefits of the proposed sale and Sale with Conservation
Easements and Mitigation alternative. After considering the evidence, the City Council will
decide whether the specifically-identified benefits outweigh the significant, unavoidable impact
of the Sale with Conservation Easements and Mitigation alternative, if the City Council decides
to adopt the Statement of Overriding Considerations by resolution.
Notice of Final EIR and City Council Consideration of Certification of the Final EIR
Notice of release of the Recirculated Final EIR was issued on April 16. Notice of the
City Council's public hearing to consider the EIR and take action on April 28, 2009 was provided
on April 1, and amended April 7, and notice was again provided on April 24, after the Planning
Commission's hearing on April 23. At the April 28, 2009 meeting, the City Council continued
the meeting and, on May 5, the City re-noticed the meeting for May 12, 2009. Ten days have
now passed since the Planning Commission's advisory vote.