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REVIEW OF ENVIRONMENTAL IMPACT REPORTS
AND LEGAL CHALLENGES TO SALE OF PARKLAND

KEY EVENTS AND DOCUMENTS

  • 2005    Draft and final EIR and lawsuit

  • 2007    Judge rules in favor of Flanders Foundation

  • 2009    Why the 2009 Revised EIR is inadequate

  • 2009    Reasons for additional legal action - second lawsuit

(Click on the first column above to move to the document specified.)

2005 Draft and final EIR and lawsuit

FACT SHEET FOR 2004/05 DRAFT ENVIRONMENTAL IMPACT REPORT ON THE SALE OF FLANDERS

The following are the major impacts that will affect us all if Mission Trails Nature Preserve is compromised/degraded as a result of the city's decision to sell Flanders:

RECREATIONAL IMPACTS:

1.  Loss of public access to parkland/severely impacts use of trails and traditional paths.

• 1.25 acres with Flanders is to be sold in the middle of the Nature Preserve/Park. This will:

a. adversely impact walkers/hikers use and enjoyment of the Flanders Property, the Lester Rowntree Native Plant Garden and

b. disrupt the existing well known and understood trail system necessitating rerouting of trails, thereby causing major changes affecting geology, habitat etc. The current trail system and Park are coherent. This will be lost with any sale. This is totally inappropriate and unacceptable for recreational purposes.

2.  We question how will handicapped visitors access if Hatton Road access is closed.

a. They cannot access views or gentle topographies for passive enjoyment.

b. Only potential for their recreational enjoyment is to drive up to the Mansion and enjoy grounds or perhaps parts of the Lester Rowntree garden.

c. The loss of 5 public spaces will adversely impact the handicapped.

3.  Adversely affect bird watchers and dog walkers.

4.  Adversely impact use of front lawn and loss of for: picnics, nature talks, casual meetings, reading and resting on lawn, enjoying views and painting.

5.  Will prohibit or restrict public views of certain areas of the property, potentially eliminating views of the Flanders Mansion, Carmel Valley, Santa Lucia Range, Fish Ranch, Carmel Mission, Carmel Bay, Point Lobos, Pacific Ocean, the Nature Preserve & Meadows from on site and the Nature Preserve public trails to and through the property. It will be impossible for the city to mitigate these loses without damage to the environment by creating other view sites and affecting the environment. These new views will not be comparable.

HISTORICAL AND ENVIRONMENTAL ISSUES:

1.  Exterior physical changes must be forbidden to the structure of the Mansion to preserve its historical integrity.

• City has a poor track record in preservation.

a.  number of demolitions

b.  scale of remodels

c.  remodel of Sunset - lost its historical fabric and not done according to the Secretary of Interior Guidelines.
• Must preserve the tree line / no tree removal or changes to landscaping.
• This is why maintaining the status quo is appropriate to allow Flanders Foundation to raise money for rehabilitation and a long term lease.

2. Problems with sale and a single family use.

• fences & walls would destroy the historical setting of Flanders.
• cutoff pedestrian and animal circulation
• harm aesthetics and ambiance of park and separate the historic resource (Flanders) from its
surroundings/ context.
• create an in-holding (private property) within a public
park/recreational resource. Many conflicts of use. State and Federal government avoid this and try to buyout in-holdings, not create them.
• light and glare at night and day harms birds, animals and park users.
• new exotic and non native plant species may be introduced into the environmentally sensitive habitat (ESHA). The city is engaged in a continuing, relentless effort to eradicate Genista.
• may change the diversity and the number of birds, and land animals by introducing noise, light, glare and physical barriers.
• loss of open space access and the quality of the free walking experience through the park to and through the arboretum will be lost by the proximity to a private residence

AESTHETIC ISSUES:

Loss of views to the house and from the lawn & property.

1.  Walkers/hikers no longer will be able to feel that sense of discovery coming upon Flanders Mansion at head of trail.
2.  No longer enjoy from the lawn the beautiful filtered views to Point Lobos and Carmel Mission.
3. Only way many handicapped persons can enjoy the park and its views is from the circular drive to the front lawn.
4.  These views are unique to the park because they are seen through the forest filter from the Mansion's lawn.

ALTERNATIVE TO SALE:

Support the "Environmentally Superior Alternative #2"

1. Support a long-term lease, not sale.
2. Use could be by a non profit group or single family
3. Rehabilitation could be achieved by grants and donations obtained by non profits or by single family lessee.
4. Single family lessee must be requested and agree to specified times for public access.
5. Mitigation measures in Draft relating to rehabilitation protections are totally inadequate due to the city's extremely poor track record of implementation of the Secretary of Interior Guidelines at Sunset Center, the other National Register property in Carmel. The city's lack of effective enforcement of its own conditions of approval on projects gives the public no confidence that it can or will protect Flanders Mansion.
 

FACT SHEET FOR 2005 FINAL ENVIRONMENTAL IMPACT REPORT ON THE SALE OF FLANDERS

The following are the major points/issues in the Final EIR (FEIR) that will affect us all if Mission Trail Nature Preserve is compromised or degraded as a result of the city's decision to sell Flanders.

The city has changed its objectives since the Draft EIR:

Original Objectives: Reasons for the sale of Flanders Mansion were

1. to generate funds for city needed capital improvements (buildings, parks, roads etc.) to municipal facilities
2. to divest the city of a property in need of significant funding for maintenance.

New Objectives:  To divest the city of Flanders while preserving the Mansion as an historic resource. Sounds good but:

a. it doesn't solve the issue of a single family living in the middle of a park or solve the use conflicts.
b. it doesn't guarantee that the city will develop protection measures for the historic building/park

The Least Environmentally Damaging Alternative (i.e. recommended action by the consultants).

Alternative # 1. No project - meaning no sale/ but no rehabilitation.

Alternative #2 (we support). Retain and lease Flanders. This meets the goal of keeping it public, reducing impacts on the views, access, historic asset and potential impacts on the cohesive structure of Mission Trail Nature Preserve.

• city retains ownership

• leased to a single family or non-profit

Significant Unavoidable Impacts if sold:

1.  Impact #3.  Conflict in the General Plan and LCR policies related to view shed/aesthetics (G5-3, P5-46, G5-13, P6-8). City must make findings that the project is consistent with these goals and policies.

2.  Impact #13.  Many conflicts with city's existing goals, objectives and policies (05-21, p5-139,p5-107, 05-32,G5-6, G5-8)

3.  Impact 15.  Loss of public access to the property when it is zoned P-2. This is significant because it is located in the middle of the park and the presence of the Flanders Mansion, a National Register Historic resource proximity to the Lester Rowntree Native Plant Garden Arboretum.

4.  Impact 16.  Create impacts to the cohesive structure of the Mission Trail Nature Preserve by changing the control of the new parcel under private ownership in the center of the park (Flanders).

a. The new owner may eliminate public access by constructing fences, edges or walls.

b. The city will have to weigh sale with the Mission Trail Master Plan (MTNP) which states that the Flanders Mansion is an intrinsic part of MTNP and the surrounding area including the Lester Rowntree Native Plant Garden.

c. The EIR suggests that the city require that the house and grounds be open to the public two times per year for a total of 16 hours to help mitigate the loss of this asset.

d. There is no strong or meaningful preservation plan provided for other than a photographic documentary.

e. There must be:

- A conservation easement held by a 3rd party such as the National Trust, California Preservation Foundation, Flanders Foundation, etc. to ensure the protection of the historic resource including the entire parcel in question.

- An endowment to cover the review and enforcement expenses, etc. of the conservation easement. We suggest a modest amount from sale to cover the responsibilities incurred by the holder of the easement. The city would no longer have any burden relative to these grounds/the parcel for sa1e.

5. The third city change. "Ensure that the building (Flanders and property) is put to productive use while protecting neighbors from undue increases in traffic, parking and noise impacts."  The city is more· concerned about county neighbors than our community assets.

The county neighbors did a huge letter writing campaign promoting the sale of Flanders to a private family.  This is a long held position.  Productive use means out of city, your ownership and into private hands.  The city has allowed county neighbors since the late 1900's to dictate what happens at Flanders.

• City Councils since 2000 have cared more about the county residents than they have about city property/assets and residents needs

• They have listened to these neighbors because of potential donations for Sunset Center Theater.

• These neighbors have opposed and killed all uses proposed for Flanders except single family residential.

Impacts:

1. Recreational.

a. loss of public access to parkland and Flanders/severely impacts trails and traditional paths. There are some mitigation's suggested by the consultant but they are not guaranteed to be approved by the council.

• 1.25 acres with Flanders is to be sold in the middle of the park.

• A major legal claim of the consulting attorney is that it is not in the midst of the park.

• The city and their new attorney claim that this isn't even parkland. It was purchased for and as parkland and has been zoned so ever since.

b. Will disrupt the existing well known and understood trail system.  The current trail system and park are coherent.

c. The lawns and old garden area will be lost for picnics, casual meetings, nature talks, painters and viewers unless the council is forced to open the house and gardens to residents and visitors twice a year for the house and four times for the gardens for special events.

d. Views of and to will be eliminated or restricted unless walls, fences and hedges are seriously restricted or prohibited.

e. Adversely impacts bird watchers and dog walkers.

HISTORICAL AND ENVIRONMENTAL ISSUES:

1.  Exterior physical changes must be forbidden to the structure of the Mansion to preserve its historical integrity.

 

Agree with FEIR:

No alterations or additions

 

Rehab or restoration according to Secretary of Interior Standards and using professional consultants from Secretary's list.

· 2. Problems with sale and a single family use.

  • fences & walls would destroy the historical open park

  • setting of Flanders. FLANDERS IS ZONED PARKLAND.

  • cutoff pedestrian and animal circulation

  • harm aesthetics and ambiance of park and separate the historic resource (Flanders) from its original and longtime surroundings and historic context

  • create an in-holding (private property) within a public park/recreational resource. Many conflicts of use. State and Federal government avoid this and try to buyout in-holdings, not create them.

  • light and glare at night harms birds, animals and park users.

  •  new exotic and non native plant species may be introduced into the environmentally sensitive habitat (ESHA) via the landscaping for a new residence.

  •  may change the diversity and the number of birds, and land animals by introducing noise, light, glare and physical barriers.

  • loss of open space access and the quality of the free walking experience through the park to and through the arboretum will be lost by the proximity to a private residence and the driveway configuration, i.e. driveway would be shortened as suggested by consultants.

AESTHETIC ISSUES:

  • Loss of views to the house and from the lawn & property.

  • Walkers/hikers no longer will be able to feel that sense of discovery coming upon Flanders Mansion at head of trail.

  • longer enjoy from the lawn the beautiful filtered views to Point Lobos and Carmel Mission.

  • only way many handicapped persons can enjoy the park and its views is from the circular drive to the front lawn facing south, i.e. support parking along the driveway

  • these views are unique to the park because they are seen through the forest filter from the Mansion's lawn

ALTERNATIVE TO SALE

Support the "Environmentally Superior Alternative #2"

1.  Support a long-term lease. Not sale.

2.  Use could be by a non profit group or single family with a life tenancy.

3.  Rehabilitation could be achieved by grants and donations obtained by non profits or by single family lessee with life estate.

4.  Single family lessee must be requested and agree to specified times for public access.

5. Mitigation measures in the FEIR relating to rehabilitation protections are totally inadequate unless there is a 3rd party conservation easement to protect the resource through the recorded conditions of sale and enforceable via an endowment provided by the funds from a sale. This is how the National Trust and other large preservation organizations operate when they consummate a conservation easement.

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Major legal victory for Flanders Foundation / Carmel won't appeal!

The Monterey County Herald, October 17, 2007

The Carmel Pine Cone, October 12, 2007

 

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Why the 2009 Revised EIR is inadequate

THE ISSUE IS:  Since the court ruled that the Flanders Property IS in fact parkland, the New 2009 Environmental Impact Report has stated the City Council's new reasons for selling it.

The City of Carmel now asserts that its primary purpose for the sale of the 1.25 acres of Parkland involving the Flanders Property is to "divest itself of property which is in need of significant short term and long term repair and rehabilitation." The City never proves that it can't afford to keep it. Our responses follow.

The City of Carmel also identifies the following 6 Secondary reasons for sale:

1. To ensure that the Flanders Mansion is preserved as an historic resource.

Our answer: Who could guarantee this better than the city through its laws, enforcement powers and clout to obtain grants and donations?

2. To ensure that the Mansion building is put to "productive use."

Our answer: The city never explains what this means. However, to us, we believe that the greatest productive use is to open it 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.

3. To ensure that the future use of the property will not cause significant impacts to the adjacent neighborhood.

Our answer: We say that the City is the best party to accomplish this through its conditions and permitting process and a long term lease.

4. To ensure that the future use of the park will not significantly disrupt the public's enjoyment of the park and arboretum.

Our answer: This can best be achieved if the property is not sold and remains an intact Dark. The city should implement its Mission Trails Nature Preserve Master Plan which states that the Flanders property should be preserved consistent with its status as a National Register Property.

5. To ensure the protection of the parks environmental resources.

Our answer: The best way to achieve this is not to sell to a single family. but to keep the park whole and to maintain the entire park properly through carrying out the Mission Trails Park Master Plan.

6. To ensure as many park benefits as "practical."

Our Answer: What does this really mean? Why should the public be asked to accept in its own park "only as many park benefits" as are "practical?" Rather than accept this we must tell the City to retain this property and thus ensure the integrity of the entire park.

Views, trails, tranquility, accessibility, all will be preserved as they are today.

THE FACTS ARE:

1. This sale is about the loss of a very valuable community asset, parkland, and "environmentally sensitive habitat."

The Flanders property is irreplaceable. Open land in Carmel is very scarce and extremely expensive. Thus, there will be little City desire or money in the future to replace it. Once this parkland is sold, it's gone forever.

This property is "in the center" of our largest open space/park.

When the Flanders property was purchased in 1972-73 by the City and combined with the Doolittle property, the City Council envisioned the Mission Trails Nature Preserve/Park to be for Cannel what the Golden Gate Park is to San Francisco. Would the City of San Francisco carve up Golden Gate Park? We don't think so!

2. This sale would set a very dangerous precedent. To sell the Flanders Property, part of Cannel's largest park/open space, an environmentally sensitive habitat, puts the Native Plant Garden/Arboretum at risk of sale.

The arboretum consists of 9-11 already subdivided lots. The City has again recently made Overtures about moving the arboretum/garden to enhance the sale of Flanders.

Once the City starts to sell off parts of the park, where will it end?

3. The City has spent over $767,000 of taxpayers' money, plus countless hours of staff time fighting this issue.

The City would rather pay outside attorneys and consultants than to make repairs and seek outside grants and allow the public to enjoy this outstanding public asset as an educational, natural history, and cultural venue.

4. The city does not lack the money to repair and maintain its parks.

It has over $10 million in Reserve Funds.

The past City budget was approximately 1.2 million in the black!

The Transient Occupational Tax monies provided for in the ordinance were to go for "parks, public facilities and municipal structures. Thus, there should be funds available for this parkland property.

In 10 years in spite of good times, the City has claimed that it needed revenues; however, it did NOTHING significant to raise new revenues to protect the city in an economic downturn and provide essential services. Instead, it chooses to raid Reserve funds to pay for its many hired consultants and part time/contract employees.

Also, in 10 years, the City has not sought out available grants to rehabilitate the park and restore the Flanders property. Further, it has rejected offers by outside entities to assist in performing the needed restoration at no city expense.

The City Council has a long history of failing to maintain public property, our community assets: Flanders and Mission Trail Nature Preserve, Forest Theatre, roof of the Public Works Office, Scout House, the Park Branch Library basement where the city's art collection has been stored for years and until recently the Fire Station.

5. Environmental Concerns: The sale will create;

A private in holding in the park which will result in conflicts in use between park visitors and single family residents who desire privacy.

A disruption in the trail system and public use of the central part of the park.

Will destroy the park's integrity and the public's enjoyment of unfettered open space.

Will disrupt the extensive and unique flora and fauna.

The loss of Park views and view shed which are irreplaceable.

A separation of the arboretum/Native Plant Garden from the Flanders property and the remainder of the park.

Eliminate a major accessible area for the handicapped.

6. The project (i.e., the sale of Flanders Parkland) conflicts/violates many of the City's General Plan and Coastal Land Use Plan goals, policies and objectives.

There are significant unavoidable impacts under the California Environmental Quality Act as stated in the 2005 Draft Final Environmental Impact Report, as well as the 2009 Recirculated Draft Environmental Impact Report.

These goals and policies and objectives are:

To avoid impacts to parkland and ensure that park benefits are preserved and enhanced.

City to protect, preserve and acquire parks and open spaces (not sell them).

City to protect and preserve park views and view sheds.

City to preserve park access, the passive enjoyment of the park and optimize the use of the parks.

Preserve and enhance our forest, protect, conserve and enhance the unique natural beauty and irreplaceable natural resources of Carmel.

Preserve and protect areas within Cannel which due to their outstanding aesthetic quality, historic value, wildlife habitats or scenic view sheds should be maintained in permanent open space to enhance the quality of life.

Conflicts referenced: PS-46; PS-139, PS-107, P6-8. P7-3; 05-21, 05-32, 05-41; 05-6. 05-4,05-8. OS-3, 05-13 (See General Plan/Coastal Land Use Plan).

7. In the last 10 years, the City has not once tried to find an adaptive use for Flanders. It continues to talk about City efforts 11-30 years ago. but they themselves have done nothing in spite of repeated offers by the Flanders Foundation and the National Trust for Historic Preservation to work with them.

8. In the past, the City has also failed to work with individuals who were capable of refurbishing the property at no cost to the city and who were desirous of a long term lease. The city would retain the parkland and receive the property back at a later date. The City was not interested even when a family was offering to donate an extensive art collection to the community at the end of their lease.

9. For 10 years the City's goal has been nothing other than the sale of this parkland. Their eagerness to sell in an economic down turn makes this sale even more irresponsible and incomprehensible.

Finally, after nine years, losing one lawsuit wherein it tried to prevent a public vote on the question of a sale and having spent over $767,000 of taxpayers' money on outside attorneys and consultants, the city finds itself in court again for failing to comply with the previous court ruling and the California Environmental Quality Act.

Instead of complying with the law, the city has decided to hold an expensive election November 3, 2009 in spite of this new suit and instead of waiting for a court decision, which could invalidate the election results and be another waste of money.

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Reasons for additional legal action - second lawsuit

State Law & The California Environmental Quality Act (CEQA)

The State places an extremely high value on the preservation and protection of parkland and open space, as well as cultural resources. It deliberately sets a very high bar for cities and counties to surmount in order to sell parkland properties because of their tremendous importance to the public. The city may want to sell parkland, however, if it cannot satisfy the requirements of the law under the California Environmental Quality Act (CEQA) and the State Surplus Lands Act then there is NO SALE.

Again the City of Cannel has failed to comply with CEQA in the following areas:

The State Surplus Lands Act requires the city to offer the Flanders Parkland Property to other public agencies, including affordable housing agencies, before selling it to a private party. 

This type of lease or sale could have major impacts on the park.

This was raised in the 2004-2005 FEIR and the court agreed with our position.

These impacts were not discussed again in the City's recent May 2009 FEIR. Therefore, it is inadequate.

These other governmental agencies do not have to comply with any City Mitigation Measures in the FEIR to protect this parkland. Thus, the City loses ALL CONTROL over the 1.25 acres in "the heart" of its largest public park.

The FEIR has not adequately explained or justified why this parkland is "no longer necessary" for public use as part of Mission Trails Nature Preserve.

This is significant since it is located in "the heart" of the City's largest park, Mission trails Nature Preserve.

The City's Economic Analysis

This report fails to demonstrate or support the City's claim that a sale is the only feasible and practical alternative.  In fact, the consultants actually support our Foundation's view that a rehabilitation will significantly increase its value and this will only continue to grow over time.  It is fiscally irresponsible to sell this asset for a one time short term economic gain:

The City fails to make the case that it cannot afford to do the rehabilitation and maintain this park property.

$10+ minion in city reserves.

Recent budget $1.2 million in the black.

This past budget quarter the City had a surplus.

For 10 years the Flanders Foundation and private parties have offered to lease and refurbish the property. The City rejected all offers. They favored sale. These facts are part of the legal record. Since there are viable lease options, the City cannot comply with CEQA.

The report also fails to prove the infeasibility of a lease. This was part of the court's judgment.

The report also fails to prove that a sale can better protect Flanders and its parkland.

Since 2004~05 the City has spent almost $700,000 of tax-payers money trying to avoid complying with State and City laws. Now again in 2009 the City has failed to make its legal case. (Note: This $700,000 could have been spent on the rehabilitation of the Flanders Property, the park, and be open today for people to use and enjoy).

City's General Plan and Overriding Considerations

The City's list of Overriding Considerations (reasons why it has the right to move forward on a sale regardless of major City laws and policies in the General Plan/Local Coastal Plan) simply fails to support the facts:

The City can only get to this point of Overriding Considerations if it has NO OTHER viable alternatives and the City DOES NOT meet this legal requirement.

All of the City's goals and objectives can be met without the need for a sale of parkland.

The City's General Plan/Local Coastal Plan do not support the sale of any parkland. In fact, it speaks to preservation. protection, enhancement, and purchase of parkland. not sale.

There is NO policy in the General Plan that authorizes or encourages a sale of any parkland.

The City has a long and distinguished history of purchasing land to create parks.

Business Plan: Proposed Use for Flanders

The Flanders Foundation has a vision and a Business plan for the Flanders Mansion and its parkland. It is to create a Cultural and Natural History Museum in this Historic National Trust Property, to inform and educate visitors of Carmel's rich cultural heritage as a community and provide a venue for the public to enjoy Carmel's extensive art collection of paintings and the Weston Collection of Photographs.

The Natural History Museum would be an educational venue to provide a greater understanding and appreciation of Carmel's unique natural setting, flora, fauna and geological history.

The Flanders Foundation would like a long term lease on the property similar to what Carmel Heritage enjoys at the First Murphy House.

The Foundation would apply for grants and donations with the City's support, in order to do the rehabilitation necessary to open it for the public's use and enjoyment.

The Foundation has produced a professional Business Plan that demonstrates how a museum can be operated without cost to the City. This has been ignored by the City for 9 years. The City has chosen only to pursue a sale.

County Neighbors

The county neighbors have legitimate concerns about additional traffic. This can be solved by controlling the use through conditions of a lease. The City's ownership best ensures this, selling does not. Use conditions could be:

Limits on days and hours of operation.

Limits on traffic and access.

The Foundation has received offers from the National Trust to assist in crafting such conditions, because of their extensive experience in similar cases around the country.

Desire for Cooperation

Repeatedly, over the last 9 years at public meetings and by correspondence, the Flanders Foundation has sought the City's cooperation in an effort to rehabilitate the Flanders park property, establish its use as a Cultural and Natural History Museum or lease Flanders Mansion to a family.

We have offered to raise money toward these goals, however they have been ignored.

We continue trying to enlist the City's cooperation, rather than legal action, as we also did in 2004-2005. However, last year the City once again hired consultants and another outside attorney to move forward to the stage we are at now.

This has been extremely costly to the community, almost $700,000 and the adding machine is still counting. The City seems to be willing to continue to waste public funds (tax-payers money) in these difficult economic times. Willing to do whatever it takes to sel1 this particular property, rather than sit down at the table, and work with a group or individuals on a lease so that the property is:

Retained by the public for the future.

Rehabilitated

 

The City's chosen path seems to be heading to court again since it has failed to comply with the law.

The Flanders Foundation strongly believes that the City must follow the law. We simply cannot ignore the City's failure to do so.

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Flanders Foundation
P.O. Box 1414
Carmel-by-the-Sea, CA 93921
 info@flandersfoundation.org

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