January 2012

When a CEQA project proposes the modification or demolition of a historically-significant property, or the sale of such a property by a government agency owner, the potentially significant impacts to the historic resource must be analyzed and – where feasible – mitigated.  A recent decision involving the City of Carmel’s proposed sale of the historic Flanders Mansion illustrates what CEQA does – and doesn’t – require when a public agency proposes to sell historic property and rejects mitigation measures discussed in an EIR as economically infeasible.  (The Flanders Foundation v. City of Carmel-by-the-Sea, et al. (6th Dist., January 4, 2012) 202 Cal.App.4th 603.)

Since the early 1970’s, Carmel has owned a 35-acre nature preserve, and the Flanders Mansion property that is located within and surrounded on all sides by the preserve.  The preserve is an environmentally sensitive habitat area; the mansion that is located on a 1.252-acre parcel within the preserve is a 6,000 square foot Tudor Revival English Cottage, built in 1924, designed by noted architect Henry Higby Gutterson, and listed on the National Register of Historic Places.  The mansion has been vacant since 2003, but in previous years was used as a private residence, an art institute and office space.Continue Reading Rejecting CEQA Alternatives For Economic Infeasibility: Sixth District Lays Down the Law In Flanders Foundation v. City of Carmel

The proper content of CEQA administrative records is frequently a subject of intense dispute in CEQA litigation, resulting in partial certifications by agencies, and motions to strike and augment by various parties.  In a recent case addressing a number of other interesting CEQA topics, the Fifth District Court of Appeals devoted a significant portion of its published opinion to administrative record issues, in order to “provide guidance to practitioners in subsequent cases so that they will proceed more efficiently in the expenditure of their own time and that of the courts.”  (Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48, 61.)

The Court prefaced its “discussion of the rules of law concerning administrative records” by positing a two-step inquiry for determining the admissibility of evidence in general in CEQA cases:  (1) is the item in question part of the administrative record pursuant to Public Resources Code, § 21167.6(e)? and (2) if not, is the item admissible under the rules applicable to extra-record evidence?  (Id. at 62.)
Continue Reading CEQA Administrative Records: Fifth District Opinion Elucidates Rules Governing Contents and Disputes