HomeMy WebLinkAboutCC RES 03-133RESOLUTION NO. 03-133
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
TUSTIN, STATE OF CALIFORNIA, AUTHORIZING AND
DIRECTING THE CITY ATTORNEY AND/OR SPECIAL
LEGAL COUNSEL TO ACQUIRE BY CONDEMNATION
CERTAIN REAL PROPERTY INTERESTS IN THE CITY OF
TUSTIN, STATE OF CALIFORNIA, AND TO OBTAIN
IMMEDIATE POSSESSION THEREOF FOR THE TUSTIN
LIBRARY EXPANSION PROJECT AND DECLARING THE
PUBLIC CONVENIENCE AND NECESSITY THEREOF
The City Council of the City of Tustin ("City"), by a vote of four-fifths or more of its
members, FINDS, DETERMINES, DECLARES, AND RESOLVES that:
WHEREAS, pursuant to Section 1245.235 of the California Code of Civil
Procedure the City scheduled a public hearing for Tuesday, November 25, 2003 at 8:30
a.m. at 300 Centennial Way, Tustin, California, and gave to each person whose
property is to be acquired and whose name appears in the last equalized County
Assessment Role as having an interest in the property, notice and a reasonable
opportunity to appear at said hearing and be heard on the matters referred to in Section
1240.030 of the California Code of Civil Procedure; and
WHEREAS, the City intends to construct the Tustin Library Expansion Project
("Project"), a public use, and, in connection therewith, acquire interests in certain real
property. The Project is for a public use; and
WHEREAS, the Project requires the acquisition of fee interests and temporary
construction easements in certain real property located at; 330-334 S. Preble Drive
(APN 401-593-03); 320-324 S. Preble Drive (401-593-02); 280-284 E. Third Street
(APN 401-593-01); and
WHEREAS, the City is authorized to acquire the parcel(s) described in Appendix
A together with a map thereof, attached hereto and incorporated herein by this
reference, and exercise the power of eminent domain for the public use set forth herein
in accordance with the California Constitution, California Government Code Section
37350.5 (see also Section 37352) and the California Eminent Domain Law, Code of
Civil Procedure Section 1230.010 et seq. and; and
WHEREAS, the real property interests sought to be acquired for the Project
consists of three (3) parcels and are located within the territorial limits of City and are
located at 330-334 S. Preble Drive (APN 401-593-03); 320-324 S. Preble Drive (401-
593-02); 280-284 E. Third Street (APN 401-593-01), Tustin; and
WHEREAS, the plans for the Project are on file with the City; and
WHEREAS, the Project is planned and located in a manner which will be the
most compatible with the greatest public good and least private injury; and
WHEREAS, the City has established the amounts it believes to be just
compensation for the hereinafter described real property interests sought to be
acquired; and
WHEREAS, pursuant to Government Code Section 7267.2, the City has offered
to the owners of the real property and interests therein the full amount established as
just compensation for the real property sought to be acquired; and
WHEREAS, the City has provided the owners of the real property and interests
therein a written statement, a summary of the basis for the amount established as just
compensation and an appraised summary statement for the real property and interests
sought to be acquired; and
Resolution No. 0:3-1:33
Page 1 of 10
WHEREAS, a reasonable length of time has expired since the date of the offers
to the owners of the real property and interests therein sought to be acquired, and the
owners have failed to favorably respond to the offers of the amounts established by the
City as just compensation; and
WHEREAS, the City has relied on a Mitigated Negative Declaration approved by
the City Council on May 6, 2002 for the Project pursuant to Public Resources Code
Section 21000, et seq., the California Environmental Quality Act ("CEQA"), and on May
30, 2002 the City filed a Notice of Determination under CEQA with the County Clerk of
the County of Orange, California; and
WHEREAS, on August 26, 2003, the Planning Commission of the City
determined that pursuant to Government Code Section 65402 found that the proposed
location, purpose and extent of the Project, including the acquisitions, was in conformity
with the City's adopted General Plan; and
WHEREAS, pursuant to the provisions of Code of Civil Procedure, Section
1245.235, on November 6, 2003 there was mailed a Notice of Hearing on the intent of
Agency to Adopt a Resolution of Necessity for acquisition by eminent domain of the real
property described in Appendix A, which Notice of Hearing, Appendix B, is attached
hereto and incorporated herein by this reference. The Notice of Hearing was mailed to
all persons whose names appear on the last equalized County Assessment Roll as
having an interest in the property described in Appendix A, and to the address
appearing on the Roll. The Notice of Hearing advised those persons of their right to be
heard on the matters referred to therein and as specified in Code of Civil Procedure
Section 1240.030 on the date and at the time and place stated therein.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUSTIN, STATE
OF CALIFORNIA, finds, determines and orders as follows:
SECTION 1. The above recitations are true.
SECTION 2. The November 25, 2003 staff report has been read and considered
along with all evidence presented at the hearing.
SECTION 3. The hearing set out in the Notice of Hearing was held on November
25, 2003 at the time and place stated therein, and all interested parties were given an
opportunity to be heard. The hearing was closed.
SECTION 4. Based upon the evidence presented, including the staff report and
all written and oral evidence presented at the hearing, the City Council by vote of four-
fifths or more of its members, further FINDS, DETERMINES, DECLARES, AND
RESOLVES each of the following:
a. The public interest and necessity require the proposed Project.
The proposed Project is planned or located in the manner that will be the
most compatible with the greatest public good and the least private injury.
The property described in Appendix A is necessary for the proposed
Project
The offer required by Government Code Section 7267.2(a), together with
the accompanying statement of and summary of the basis for the amount
established as just compensation, was made to the owner or owners of
record, which offer and accompanying statement/summary were in a form
and contained all of the factual disclosures provided by Government Code
Section 7267.2(a).
Resolution No. 03-133
Page 2 of 10
SECTION 5. All conditions and statutory requirements necessary to exercise the
power of eminent domain ("the right to take") to acquire the property described herein
have been complied with by City.
SECTION 6. The City Attorney or Special Legal Counsel, Hahn & Hahn, is
hereby AUTHORIZED and EMPOWERED:
To acquire in the name of City, by condemnation, the property described
in Appendix A, in accordance with the provisions of the California
Statutory Law and the California Constitution;
bo
To acquire the property in fee simple absolute unless a lesser estate is
described in Appendix A;
To prepare or have prepared and to prosecute or to retain counsel to
prosecute in the name of City such proceedings in the proper court as are
necessary for such acquisition;
To take such action as necessary to permit the City to take immediate
possession of the property for the public use.
PASSED AND ADOPTED at a meeting of the City Council of the City of Tustin
held on the 25th day of November 2003.
~p~MCL~, STOKibR ~'
City Clerk
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
CITY OF TUSTIN )
SS
I, Pamela Stoker, City Clerk and ex-officio Clerk of the City Council of the City of Tustin,
California, do hereby certify that the whole number of the members of the City Council of
the City of Tustin is five; that the above and foregoing Resolution No. 03-133 was duly
passed and adopted at a regular meeting of the Tustin City Council, held on the 25th day of
November, 2003, by the following vote:
COUNCILMEMBER AYES:
COUNCILMEMBER NOES:
COUNCILMEMBER ABSTAINED:
COUNCILMEMBER ABSENT:
Hagen, Kawashima, Bone, Davert
(4)
None (0)
None (0)
Thomas (1)
CITY CLERK
Resolution No. 03-133
Page 3 of 10
Appendix "A"
Legal Description
The land situated in the State of California, County of Orange, City of Tustin, and as
described as fallows:
Parcel 1:
Lot 4 of Tract 2187, as shown on a map recorded in Book 105, pages 37 and 38 of
miscellaneous maps, records of Orange County, California.
Parcel 2:
Lot 5 of Tract 2187, as shown on a map recorded in Book 105, Pages 37 and 38 of
miscellaneous maps, records of Orange County, California:
Parcel 3:
Lot 6 of Tract 2187, as shown on a map recorded in Book 105, pages 37 and 38 of
miscellaneous maps, records of Orange County, California.
Easements as affect the above parcels:
A non-exclusive easement for ingress and egress over the west 20 feet of Lots 5 and 6
of Tract 2187, as shown on a map recorded in Book 105; Pages 37 and 38 of
miscellaneous maps, records of Orange County, California.
A non-exclusive easement for ingress and egress over the west 20 feet of Lot 4 of tract
2187, as shown on a map recorded in Book 105, Pages 37 and 38 of miscellaneous
maps, records of Orange County, California;
Resolution No. 03-133
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Resolution No. 03-133
Page 5 of 10
Office of the City Manager
VIA FIRST CLASS MAIL AND PERSONAL SERVICE
November 6, 2003
City of Tustin
300 Centennial Way
Tustin, CA 92780
714.573.3010
FAX 714,838.1602
Walter & Marilyn Emery
9631 Sierra Vista Avenue
La Mesa, CA 91941-4130
Re:
Notice of Hearing Regarding Adoption of a Resolution of Necessity to Acquire
Property by Eminent Domain [California Code of Civil Procedure 1245.235]
Tustin Library Expansion Project (the "Project")
Property: 280-284 East Third Street, Tustin, California (Developed Property)
320-324 S. Preble Drive, Tustin, California (Developed Property)
330-334 S. Preble Drive, Tustin, California (Developed Property)
Dear Property Ortner:
1. Notice of the Intent of City of Tustin (the "City") to Adopt a Resolution of
Necessity. The City intends to consider the adoption of a Resolution of Necessity
November 25, 2003 that, if adopted, will authorize the "City" to acquire the property
described herein by eminent domain for the Project.
A description of the property being considered for acquisition marked Appendix A
accompanies the proposed Resolution of Necessity, attached to this Notice as Exhibit A
(which property shall be referred to herein as the Property).
2. Notice of Your Right to Appear and be Heard. Please take notice that the
City, at a special meeting to be held on November 25, 2003 at 8:30 a.m. or as soon
thereafter as the matter may be heard, at 300 Centennial Way, Council Chambers,
Tustin, California, will hold a hearing on whether such a Resolution of Necessity should
be adopted, as required by California Code of Civil Procedure section 1245.220 for the
commencement of an eminent domain proceeding to acquire real property.
You have a right to appear and be heard before the City Council at the above
scheduled hearing on the following matters and issues, and to have the City give
judicious consideration to your testimonY prior to deciding whether or not to adopt the
proposed Resolution of Necessity.
Resolution No. 03-133
Page 6 of 10
Walter & Marilyn Emery
Re: Notice of Hearing Regarding Adoption of Resolution of Necessity to Acquire Property
by Eminent Domain - 280-284 East Third Street, Tustin, California (Developed Property)
320-324 S. Preble Drive, Tustin, California (Developed Property)
330-334 S. Preble Drive, Tustin, Califomia (Developed Property)
November 6, 2003
Page 2
a. Whether the public interest and necessity require the proposed project;
b. Whether the proposed project is planned or located in the manner that
will be most compatible with the greatest public good and the least private
injury;
c. Whether the property sought to be acquired by eminent domain and
described in the Resolution of Necessity is necessary for the proposed
project.
d. Whether the offer required by Government Code section 7267.2,
subdivisions (a), (b), and (c), together with the accompanying statement
and summary of the basis for the amount established as just
compensation, was actually made to you and whether said offer and
statement/summary were in a form and contained all of the factual
information required by Government Code section 7267.2, subdivisions
(a), (b), and (c), a copy of which is attached hereto.
e. Whether the City has complied with all conditions and statutory
requirements necessary to exercise the power of eminent domain (the
"right to take") to acquire the property described herein, as well as any
other matter regarding the right to take said property by eminent domain;
and
f. Whether the City has statutory authority to acquire the property by
eminent domain.
A copy of the proposed Resolution of Necessity that will be recommended to the
City for adoption accompanies this Notice.
Your name appears on the last equalized County of Orange assessment roll and
as Owner (in our preliminary title report) of the property required for the proposed
project.
The statute that authorizes the City to acquire the property by eminent domain
for this proposed project is California Government Code Section 37350.5 (see also
Government Code Section 37352).
Resolution No. 03-133
Page 7 of 10
Waiter & Mariiyn Emery
Notice of Hearing Regarding Adoption of Resolution of Necessity to Acquire Property
by Eminent Domain - 280-284 East Third Street, Tustin, California (Developed Property)
320-324 S. Preble Drive, Tustin, California (Developed Property)
330-334 S. Preble Drive, Tustin, California (Developed Property)
November 6, 2003
Page 3
3. Failure to File a Written Request to Be Heard within Fifteen (15) Days
After the Notice Was Mailed Will Result in Waiver of the Right to Appear and Be
Heard. If you desire to be heard, please be advised that you must file a written request
with the City Clerk within fifteen (15) days after this Notice was mailed. You must file
your request to be heard at Tust[n City Hall, 300 Centennial Way, Tustin, California,
92780-3767.
Should you elect to mail your request to the City Clerk , it must be actually
received by the City Clerk for filing within fifteen (15) days after this Notice was mailed.
The date of mailing appears at the end of this Notice.
California Code of Civil Procedure section 1245.235(b)(3) provides that "failure to
file a written request to appear and be heard within fifteen (15) days after the Notice
was mailed will result in waiver of the right to_appear and be heard" on the above
matters and issues that are the subject of the hearing.
If you elect not to appear and be heard in regard to compensation, your
nonappearance will not be a waiver of your right to claim greater compensation in
a court of law. The amount to be paid for the property will not be considered by
the City at this hearing.
If you elect not to appear and not to be heard, your failure to appear will be
a waiver of your right to later challenge the right of the City to take property by
eminent domain.
The amount of the compensation to be paid for the acquisition of the property is
not a matter or issue being heard by the City at this time. Your nonappearance
at this noticed hearing will not prevent you from claiming greater compensation,
in and as determined by a court of law in accordance with the laws of the State of
California, This Notice is not intended to foreclose future negotiations between
you and the representatives of the City on the amount of compensation to be
paid for your property.
If you elect not to appear and not to be heard, you will only be foreclosed from
raising in a court of law the issues that are the subject of this noticed hearing and
that are concerned with the right to take the property by eminent domain.
Resolution No. 03-133
Page 8 of 10
Walter & Marilyn Emery
Notice of Hearing Regarding Adoption of Resolution of Necessity to Acquire Property
by Eminent Domain - 280-284 East Third Street, Tustin, California (Developed Property)
320-324 S. Preble Drive, Tustin, California (Developed Property)
330-334 S. Preble Drive, Tustin, California (Developed Property)
November 6, 2003
Page 4
If the City elects to adopt the Resolution of Necessity, then within six months of
the adoption of the Resolution, the City will commence eminent domain proceedings in
Superior Court. In that proceeding, the Court will determine the amount of
compensation to which you are entitled.
Dated and Mailed on November 6, 2003.
William A. Huston
City Manager
C;
Michael H. Leifer, Esq.
Lois E. Jeffrey, City Attorney
Don Mike Anthony, Hahn & Hahn
Todd Moore, Hahn & Hahn
Attachments
(Copy of Government Code section 7267.2, subdivisions (a), (b), and (c))
(Proposed Resolution of Necessity)
Resolution No. 03-133
Page 9 of 10
Government Code Section 7267.2, subdivisions (a), (b), and (c)
(a) Prior to adopting a resolution of necessity pursuant to Section 1245.230 of the Code
of Civil Procedure and initiating negotiations for the acquisition of real property, the
public entity shall establish an amount which it believes to be just compensation
therefor, and shall make an offer to the owner or owners of record to acquire the
property for the full amount so established, unless the owner cannot be located with
reasonable diligence. The offer may be conditioned upon the legislative body's
ratification of the offer by execution of a contract of acquisition or adoption of a
resolution of necessity or both. In no event shall the amount be less than the public
entity's approved appraisal of the fair market value of the property. Any decrease or
increase in the fair market value of real property to be acquired prior to the date of
valuation caused by the public improvement for which the property is acquired, or by the
likelihood that the property would be acquired for the improvement, other than that due
to physical deterioration within the reasonable control of the owner or occupant, shall be
disregarded in determining the compensation for the property.
(b) The public entity shall provide the owner of real property to be acquired with a
written statement of, and summary of the basis for, the amount it established as just
compensation. The written statement and summary shall contain detail sufficient to
indicate clearly the basis for the offer, including, but not limited to, all of the following
information:
(1) The date of valuation, highest and best use, and applicable zoning property.
(2) The principal transactions, reproduction or replacement cost analysis, or
capitalization analysis, supporting the determination of value.
(3) Where appropriate, the just compensation for the real property acquired and
for damages to remaining real property shall be separately stated and shall
include the calculations and narrative explanation supporting the compensation,
including any offsetting benefits.
(c) Where the property involved is owner occupied residential property and contains no
more than four residential units, the homeowner shall, upon request, be allowed to
review a copy of the appraisal upon which the offer is based. The public entity may, but
is not required to, satisfy the written statement, summary, and review requirements of
this section by providing the owner a copy of the appraisal on which the offer is based.
Resolution No. 03-133
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