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HomeMy WebLinkAboutCC RES 03-134RESOLUTION NO. 03-134 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 cedain real property located at; 285 E. Main Street, Tustin; 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 285 E. Main Street, Tustin; and WHEREAS, the plans for the Project are on file with the City; 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 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 Resolution No. 03-134 Page 1 of 10 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 after 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). 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: Resolution No. 03-134 Page 2 of 10 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; 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. TRAC'YL,~RLEY H/~)E~ ~ ' Mayor .//~-PAM~LA STOKER 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. 03-134 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) ~PAMELA STOKER "~ ' CITY CLERK Resolution No. 03-134 Page 3 of 10 Appendix A Legal Description The land referred to herein is situated in the State of California, County of Orange, City of Tustin, and is described as follows: Lots 2 and 3 of Tract No. 2187, as shown on a map recorded in Book 105, pages 37 and 38 of miscellaneous maps, records of Orange County, California. Resolution No. 03-134 Page 4 of 10 2V~~18"7 Resolution No. 03-134 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 Carolyn Louise De Nicola 24001 Muirlands Blvd, Spc 243 Lake Forest, CA 92630-1737 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: 285 East Main Street, Tustin, California (Developed Property) Dear Property Owner: 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 on 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 revised 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. 03-134 Page 6 of 10 Carolyn Louise De Nicola Re: Notice of Hearing Regarding Adoption of Resolution of Necessity to Acquire Property by Eminent Domain - 285 East Main Street (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 Council 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. 03-134 Page 7 of 10 Carolyn Louise De Nicola Re: Notice of Hearing Regarding Adoption of Resolution of Necessity Property by Eminent Domain - 285 East Main Street (Developed Property) November 6, 2003 Page 3 to Acquire 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 Tustin 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. 03-134 Page 8 of 10 Carolyn Louise De Nicola Re: Notice of Hearing Regarding Adoption of Resolution of Necessity to Acquire Property by Eminent Domain - 285 East Main Street (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 Rda~,JB~library'v:lenicola notice of hearing,doc 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. 03-134 Page 9 of 10 Government Code Section 72:67.2, subdivisions la), lb), and (c) la) 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. lb) 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 sha[I include the calculations and narrative explanation supporting the compensation, including any offsetting benefits. lc) 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. 03-134 Page 10 of 10