HomeMy WebLinkAbout13 EDINGER AV WIDENING 07-05-05
A G END A REPORT
Agenda Item ~
Reviewed: ~
City Manager
Finance Director ~
MEETING DATE:
JULY 5, 2005
FROM:
WILLIAM A. HUSTON, CITY MANAGER
PUBLIC WORKS DEPARTMENT/ENGINEERING DIVISION
TO:
SUBJECT:
APPROVAL OF THE AMENDED RESOLUTION OF NECESSITY FOR
THE ACQUISITION OF A TEMPORARY CONSTRUCTION EASEMENT
ON ASSESSOR PARCEL NO. 430-252-09 FOR THE EDINGER AVENUE
(SMART STREET) WIDENING PROJECT (CIP NO. 7147)
SUMMARY
The proposed amended resolution will authorize Legal Counsel to acquire a temporary construction
easement by condemnation for the Edinger Avenue (Smart Street) Widening Project (CIP No. 7147).
In order to construct this project, a temporary construction easement from the following property is
required:
Assessor Parcel
Number (APN)
Owner
Location
Current
Land Use
430-252-09
GEMSA Enterprises, LLC 1221 Edinger Avenue
Industrial
The trial judge in the current eminent domain proceeding has determined that the legal description for
the temporary construction easement in Resolution No. 03-12 does not specify the terms and scope
of a temporary construction easement. As that is what the City Council intended when it adopted
Resolution No. 03-12, an amended Resolution is required to be adopted by the City to clarify its
original intent.
RECOMMENDATION
It is recommended that the City Council 1) Receive testimony from the property owner or the property
owner's representative; and 2) adopt Resolution No. 05-81 by a four-fifths (4/5) vote 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 described as a portion of Assessor Parcel
No. 430-252-09, and to obtain immediate possession, thereof, for the Edinger Avenue (Smart Street)
Widening Project (CIP No. 7147) and declaring the public convenience and necessity thereof
(Temporary Construction Easement Only).
FISCAL IMPACT
On April 21, 2003, the City Council adopted Resolution No. 03-12, that authorized Legal Counsel to
acquire property at 1221 Edinger Avenue by condemnation for the Edinger Avenue (Smart Street)
Widening Project (CIP No. 7147) and authorized the City to post a deposit of $219,250 for right-of-
way acquisition. Additional funds may be required to be posted upon adoption of Resolution No. 05-
81. The final compensation will be determined through the eminent domain proceedings.
Approval of the Amended Resolution of Necessity for the Acquisition of a Temporary
Construction Easement on Assessor Parcel No. 430-252-09 for the Edinger Avenue (Smart
Street) Widening Project (CIP No. 7147)
July 5, 2005
Page 2
BACKGROUND
The Edinger Avenue (Smart Street) Widening Project proposes to widen Edinger Avenue between
Ritchey Street in the City of Santa Ana and 1400 feet east of Red Hill Avenue in the City of Tustin. The
street widening will be to six-lane major arterial highway standards with dual left turn lanes and exclusive
right turn lanes at key intersections as needed to reduce congestion and improve level of service. Bike
lanes will also be installed for both directions. The existing roadway will also be resurfaced, drainage
improvements will be constructed and a raised landscaped median will be installed.
In order to construct the improvements, right-of-way was required from thirteen (13) properties in the
form of acquisitions. The City Council previously adopted Resolution No. 03-12 on April 21, 2003,
and filed an action in eminent domain to acquire a fee interest and temporary construction easement
in real property located at 1221 Edinger Avenue.
The trial judge in the eminent domain action has determined that the legal description for the subject
property, which denoted a "temporary construction easement", does not limit the duration of the
easement, or the City's use of the easement, or reserve any rights in the underlying fee to the
property owner. Therefore, it is necessary to clarify the term and scope of the originally proposed
temporary construction easement by an Amended Resolution of Necessity.
Resolution No. 03-12, except as amended herein by Resolution No. 05-81, remains in full force and
effect. A copy of this resolution is attached as part of the Agenda Report dated April 21, 2003 (also
attached), and incorporated herein by this reference.
It is recommended that the City Council received testimony from the property owner or property
owner's representative and adopt Resolution No. 05-81 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 Edinger Avenue (Smart
Street) Widening Project (CIP No. 7147) and declaring the public convenience and necessity thereof;
(Temporary Construction E sement Only).
~
fÞ.øTim D. Serlet
Director of Public Works/City Engineer
~,if~
Dana R. asdan
Engineering Services Manager
Attachments: Resolution No. 05-81 (Amended Resolution of Necessity)
Notice of Intent to Adopt
April 21, 2003 Agenda Report
S:\City Councilltems\2005 CouncilltemslApproval of Amend Reso of Necessity -1221 Edinger Avenue.doc
RESOLUTION NO. 05-81
AN AMENDED 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 EDINGER AVENUE WIDENING PROJECT (CIP NO. 7147)
AND DECLARING THE PUBLIC CONVENIENCE AND NECESSITY
THEREOF; [TEMPORARY CONSTRUCTION EASEMENT ONLY]
The City Council of the City of Tustin ("City"), by vote of two-thirds or more of its
members, FINDS, DETERMINES, DECLARES, AND RESOLVES that:
WHEREAS, City intends to construct the Edinger Avenue Improvements
("Project"), a public use, and, in connection therewith, acquire interests in certain real
property. The Project is for a public use that is a function of City; and
WHEREAS, City intends to construct the Project to make effective the principal
purpose of street widening in compliance with the City's General Plan, including but not
limited to property to be used for the protection or preservation of the attractiveness,
safety, and usefulness of the Project as set forth in Code of Civil Procedure Section
1240.120(a); and
WHEREAS, the Project requires the acquisition of fee interests and a temporary
construction easement in certain real property located at 1221 Edinger Avenue (APN
430-252-09); and
WHEREAS, the City previously adopted Resolution No. 03-12 and filed an action
in eminent domain to acquire a fee interest and temporary construction easement in real
property located at 1221 Edinger Avenue, and
WHEREAS, the trial judge in the eminent domain action has determined that the legal
description of Parcel 10004.1 which denoted a "temporary construction easement" does
not limit the duration of the easement, or the City's use of the easement, or reserve any
rights in the underlying fee to the property owner; and
WHEREAS, it is necessary to clarify the term and scope of the proposed
temporary construction easement by an Amended Resolution of Necessity; and
WHEREAS, except as Amended herein, Resolution No. 03-12 remains in full
force and effect; and
WHEREAS, City is authorized to acquire the parcel described in Exhibit "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 and the California Eminent Domain Law,
Code of Civil Procedure Section 1230,010 et seq. and pursuant to Streets and
Highways Code Section 10102 (street right of way); Government Code Section 54031
(parking); Government Code Section 38730 (water facilities); Streets and Highways
Code Section 5100 et seq. (Street Improvement Act acquisitions); and
Resolution No. 05-81
July 5, 2005
Page 2
WHEREAS, the real property interests sought to be acquired for the Project
consists of Parcel 10004.1 and is located within the territorial limits of City and is
generally located on the north side of Edinger Avenue between the SR-55 Freeway and
Red Hill Avenue; and
WHEREAS, the plans for the Project are on file with the Director of Public Works
of 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, 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, 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, City has provided the owners of the real property and interests
therein a written statement and summary of the basis for the amount established as just
compensation 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 City
as just compensation; and
WHEREAS, the Project is part of the City's Capital Improvement Program, and
on August 5, 2002, the City Council of the City, adopted Resolution No. 02-77
exempting the acquisitions required by the Project from the provisions of Government
Code, Section 65402; and
WHEREAS, on April 16, 2001 the City Council approved a Mitigated Negative
Declaration for the Project pursuant to Public Resources Code Section 21000, et seq.
the California Environmental Quality Act ("CEQA"), and on May 82001 the City filed a
Notice of Determination under CEQA with the County Clerk of the County of Orange,
California; and
WHEREAS, on June 28, 2005 there was sent by overnight delivery a Notice of
Hearing on the intent of City Council to Adopt an Amended Resolution of Necessity for
acquisition by eminent domain of the real property described in Exhibit "A", which Notice
of Hearing, Exhibit "B", is attached hereto and incorporated herein by this reference.
The Notice of Hearing was delivered to all persons whose names appear on the last
equalized County Assessment Roll as having an interest in the property described in
Exhibit "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 on the date
and at the time and place stated therein.
Resolution No. 05-81
July 5, 2005
Page 3
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 July 5, 2005 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 July 5,
2005 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, this City Council by vote of
two-thirds 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.
b.
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.
c.
The property described in Exhibit "A" is necessary for the proposed
Project.
d.
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).
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:
a.
To acquire in the name of City, by condemnation, the property described
in Exhibit "A", in accordance with the provisions of the California Eminent
Domain Law and the California Constitution;
b.
To acquire the property as a Temporary Construction Easement as
described in Exhibit "A";
Resolution No. 05-81
July 5, 2005
Page 4
c.
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;
d.
To deposit the probable amount of compensation based on an appraisal,
and to apply to the court for an order permitting City to take immediate
possession and use of the property for the public uses and purposes.
e.
To file in the eminent domain action the Notice of Partial Abandonment
attached hereto as Exhibit "C".
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Tustin on the 5th day of July, 2005.
Lou Bone, Mayor
ATTEST:
PAMELA STOKER
CITY CLERK
STATE OF CALIFORNIA
COUNTY OF ORANGE
CITY OF TUSTIN
RESOLUTION No. 05-81
Pamela Stoker, City Clerk and ex-officio Clerk of the City Council of the City of Tustin,
California, does 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 was passed
and adopted at a regular meeting of the City Council held on the 5th day of July, 2005 by
the following vote:
COUNCILMEMBER AYES:
COUNCILMEMBER NOES:
COUNCILMEMBER ABSTAINED:
COUNCILMEMBER ABSENT:
PAMELA STOKER
City Clerk
RBF Consulting
14725 Alton Parkway
Irvine, California 92618
Revised November 7, 2002
October 24, 2001
JN 10034145.23
Page 1 of 2
EXHIBIT "A"
LEGAL DESCRIPTION
EDINGER AVENUE
PARCEL 10004.1
TEMPORARY CONSTRUCTION EASEMENT
That certain parcel of land situated in the City of Tustin, County of Orange, State of
California, being that portion of Lot 65, Block 10 of Irvine's Subdivision as shown on a
map thereof filed in Book 1, Page 88 of Miscellaneous Records Maps in the Office of
the County Recorder of said Orange County, included within a strip of land 4.500
meters wide, the southwesterly line of which is described as follows:
COMMENCING at the most easterly corner of Parcel 105 as described in an Easement
Deed to the County of Orange, recorded March 19, 1962 in Book 6043, Page 396 of
Official Records in said Office of the Orange County Recorder, said corner being in the
southeasterly line of the land described in the Grant Deed to John M. Robertson
recorded March 2, 1962 in Book 6025, Page 580 of Official Records in said Office of the
Orange County Recorder;
thence along said southeasterly line North 40°38'30" East 4,572 meters to a line parallel
with 4.572 meters northeasterly of the northeasterly line of said Parcel 105 and, the
TRUE POINT OF BEGINNING;
thence along said parallel line North .49°21 '05" West 39.195 meters to a point
hereinafter referred to as Point "A";
thence continuing along said parallel line North 49°21 '05" West 44,260 meters to the
northwesterly line of said land of John M. Robertson.
Said strip of land shall be lengthened or shortened southeasterly and northwesterly so
as to terminate in said southeasterly and northwesterly lines of the land of John M.
Robertson.
TOGETHER WITH a strip of land 15.657 meters wide, the southwesterly line of which is
described as follows:
EXHIBIT "A"
BEGINNING at said Point "A";
thence North 49°21'05'" West 12.000 meters.
Unless otherwise noted, all bearings and distances in this description are metric ground
based on the California Coordinate System, (CCC83) Zone V1 NAD 1983 (1991.35
O.C.S. GPS Adjustment)
CONTAINING: 509.438 Square Meters (5484 Square Feet) more or less.
SUBJECT TO all Covenants, Rights, Rights-of-Way and Easements of Record.*
EXHIBIT "B" attached and by this reference made a- part hereof.
. S. 5329
*TERM AND USE: The easement will commence at the start of City's construction
affecting Parcel 10004.1 and continue for a period of twelve (12) months. The
easement shall be used, subject to the property owner's consent, to construct the
Edinger Avenue Improvements that will include removal of existing curb and gutter,
sidewalk, and landscaping; construction of new curb and gutter and sidewalk;
transitioning existing on-site pavement to match the new sidewalk grade; and for the
temporary deposit of tools, materials, and equipment. During the period of the
temporary construction easement, the property owner shall be permitted reasonable
ingress and egress to the Property. The City shall give the property owner and Counsel
of record in the eminent domain action thirty (30) days written notice of the start of City's
construction.
EXHIBIT "B"
JRVJNE'S
J\;jJRji)JJ
BLoCK 10
1/BB
LOT 55
SCALE= 1 :500
BOOK fJ020, FGJ 080, OJFL
"
"
SKETCH TO ACCOMPANY A
LEGAL DESCRIPTION FOR
fDINGfR A VfNUf
PARCa 10004.1
TfMPORARY CONSTRUCTiON fASfMfNT
CONTAINING 509.438 SQUARf M[lfRS +/-
~ PCANN'". . 0"'." . CC";TRU~T'O"
W"5A1.TONPAAKWAY
. . . 'M" CAUPOANA ""'-2027
CONSULTING ""'2.3505' PAX,,",,"7""". _PBP.c~
REVISED NOVEMBER 14, 2002
REVISED OCTOBER 24, 2002 J.N. 10-034145
H: PDATA J4145.G5\DWGEXHIBITS\TCE\145£XO21.DWG
2
DON MIKE ANTHONY, State Bar No. 34878
TODD R. MOORE, State BarNo. 193303
HAHN & HAHN LLP
NINTH FLOOR
301 E. COLORADO BOULEVARD
PASADENA, CALIFORNIA 91101-1977
Telephone: (626) 796-9123
Facsimile: (626) 449-7357
EXHIBIT C
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Attorneys for Plaintiff CITY OF TUSTIN, a municipal corporation
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF ORANGE
CASE NO. 03CC06743
Judge:
Department:
Mary Fingal Erickson
Wll
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CITY OF TUSTIN, a municipal corporation,
Plaintiff,
NOTICE OF PARTIAL ABANDONMENT
[Code Civ. Proc. §1268.519(a)]
Trial Date: August 27,2005
Complaint Filed: May 14,2003
TO DEFENDANTS AND TO THEIR ATTORNEYS OF RECORD:
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NonCE IS HEREBY GIVEN that Plaintiff contends that the Resolution of Necessity
adopted on April 21, 2003 authorized the taking of a temporary construction easement in Parcel
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1004.1 more particularly described in Exhibit B to the Complaint filed May 14,2003, and not a
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taking in fee simple absolute. To the extent the Court ultimately determines that the adoption of
said Resolution of Necessity constituted authorization for Plaintiff to acquire a fee simple interest
24
in Parcell 004.1, Plaintiff abandons the condemnation of a fee simple interest in said parcel,
vs.
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15
DELMAS JACKSON, etc., et aI.,
Defendants.
16
17
18
25
effective July 5, 2005.
26
II
27
II
28
DMA\99999\50j,O3'.DOC [233992J)
NOTICE OF PARTIAL ABANDONMENT
1
2 DATED: July 6, 2005
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DMA\99999\50J,OJ'DOC [2339923]
HAHN & HAHN LLP
By:
Don Mike Anthony
Attorneys for Plaintiff CITY OF TUSTIN, a
municipal corporation
2
NOTICE OF PARTIAL ABANDONMENT
Notice of Intent to Adopt
Puj¡iC WDrf;s ¡ Engineering
City of Tustin
June 28, 2005
300 Centenniai Way
Tustin, C/'. 92780-3715
(714) 573-3150
IcAX (714) 734-8991
GEMSA Enterprises, LLC
c/o Joseph J. Strazzeri
3655 Nobel Drive, Suite 330
San Diego, CA 92122-1050
Re:
Notice of Hearing Regarding Adoption of an Amended Resolution
of Necessity to Acquire Property by Eminent Domain [California
Code of Civil Procedure 1245.235]; Temporary Construction
Easement - Edinger Avenue Widening Project (CIP No. 7147)
Property:
1221 Edinger Avenue
Dear Property Owner:
1. Notice of the Intent of Tustin City Council to Adopt an
Amended Resolution of Necessity. The City Council intends to consider the
adoption of an Amended Resolution of Necessity on July 5, 2005 that, if adopted,
will authorize the City of Tustin ("City") to acquire a temporary construction
easement described herein by eminent domain.
A description of the property being considered for acquisition marked
Exhibit "A" accompanies the proposed Resolution of Necessity, attached to the
Resolution 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 Council of City, at a regular meeting to be held on Tuesday,
July 5, 2005 at 7:00 p.m., or as soon thereafter as the matter may be heard at
300 Centennial Way, Council Chamber, 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 Council give judicious consideration to your testimony prior to deciding
whether or not to adopt the proposed Amended Resolution of Necessity,
Notice of Hearing Regarding Adoption of an Amended Resolution of Necessity to
Acquire Property by Eminent Domain - Temporary Construction Easement
June 28, 2005
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 Amended 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 statutes that authorize the City to acquire the property by eminent
domain for this proposed project are Streets and Highways Code Section 10102
(street right of way); Government Code Section 54031 (parking); Government
Code Section 38730 (water facilities); Streets and Highways Code Section 5100
et seq. (Street Improvement Act acquisitions).
3. Failure to Appear and Testify or to File a Written Request to Be
Heard Will Result in Waiver of the Right to Appear and Be Heard. If you
desire to be heard, please be advised that you may appear at the time and date
Notice of Hearing Regarding Adoption of an Amended Resolution of Necessity to
Acquire Property by Eminent Domain - Temporary Construction Easement
June 28, 2005
Page 3
of the hearing or file a written statement with the City Clerk prior to the time of
and date of the meeting. You must file your statement at Tustin City Hall, 300
Centennial Way, Tustin, California, 92780-3767.
If you elect not to appear or 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 Council at this hearing.
If you elect not to appear or 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 Council
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 or 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.
If the City Council elects to adopt the Amended Resolution of Necessity,
the City will move to set aside the Court's ruling in the eminent domain action. In
that proceeding, the Court will determine the amount of compensation to which
you are entitled.
Dated and sent by overnight delivery on June 28, 2005.
jv4ft~
William A. Huston
City Manager
Attachments
(Copy of Government Code section 7267.2, subdivisions (a), (b). and (c))
(Proposed Resolution of Necessity)
S:\CIP Projects - Active\7147 - Edinger Ave WideninglAcquisition\Reso Necessity -TCE -1221 Edinger.doc
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 therefore, 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. 05-81
AN AMENDED 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 EDINGER AVENUE WIDENING PROJECT (CIP NO. 7147)
AND DECLARING THE PUBLIC CONVENIENCE AND NECESSITY
THEREOF; [TEMPORARY CONSTRUCTION EASEMENT ONLY]
The City Council of the City of Tustin ("City"), by vote of two-thirds or more of its
members, FINDS, DETERMINES, DECLARES, AND RESOLVES that:
WHEREAS, City intends to construct the Edinger Avenue Improvements
("Project"), a public use, and, in connection therewith, acquire interests in certain real
property. The Project is for a public use that is a function of City; and
WHEREAS, City intends to construct the Project to make effective the principal
purpose of street widening in compliance with the City's General Plan, including but not
limited to property to be used for the protection or preservation of the attractiveness,
safety, and usefulness of the Project as set forth in Code of Civil Procedure Section
1240.120(a); and
WHEREAS, the Project requires the acquisition of fee interests and a temporary
construction easement in certain real property located at 1221 Edinger Avenue (APN
430-252-09); and
WHEREAS, the City previously adopted Resolution No. 03-12 and filed an action
in eminent domain to acquire a fee interest and temporary construction easement in real
property located at 1221 Edinger Avenue, and
WHEREAS, the trial judge in the eminent domain action has determined that the legal
description of Parcel 1 0004.1 which denoted a "temporary construction easement" does
not limit the duration of the easement, or the City's use of the easement, or reserve any
rights in the underlying fee to the property owner; and
WHEREAS, it is necessary to clarify the term and scope of the proposed
temporary construction easement by an Amended Resolution of Necessity; and
WHEREAS, except as Amended herein, Resolution No. 03-12 remains in full
force and effect; and
WHEREAS, City is authorized to acquire the parcel described in Exhibit "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 and the California Eminent Domain Law,
Code of Civil Procedure Section 1230.010 et seq. and pursuant to Streets and
Highways Code Section 10102 (street right of way); Government Code Section 54031
(parking); Government Code Section 38730 (water facilities); Streets and Highways
Code Section 5100 et seq. (Street Improvement Act acquisitions); and
Resolution No. 05-81
July 5, 2005
Page 2
WHEREAS, the real property interests sought to be acquired for the Project
consists of Parcel 10004.1 and is located within the territorial limits of City and is
generally located on the north side of Edinger Avenue between the SR-55 Freeway and
Red Hill Avenue; and
WHEREAS, the plans for the Project are on file with the Director of Public Works
of 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, 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, 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, City has provided the owners of the real property and interests
therein a written statement and summary of the basis for the amount established as just
compensation 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 City
as just compensation; and
WHEREAS, the Project is part of the City's Capital Improvement Program, and
on August 5, 2002, the City Council of the City, adopted Resolution No. 02-77
exempting the acquisitions required by the Project from the provisions of Government
Code, Section 65402; and
WHEREAS, on April 16, 2001 the City Council approved a Mitigated Negative
Declaration for the Project pursuant to Public Resources Code Section 21000, et seq.
the California Environmental Quality Act ("CEQA"), and on May 8 2001 the City filed a
Notice of Determination under CEQA with the County Clerk of the County of Orange,
California; and
WHEREAS, on June 28, 2005 there was delivered a Notice of Hearing on the
intent of City Council to Adopt an Amended Resolution of Necessity for acquisition by
eminent domain of the real property described in Exhibit "A", which Notice of Hearing,
Exhibit "B", is attached hereto and incorporated herein by this reference. The Notice of
Hearing was delivered to all persons whose names appear on the last equalized County
Assessment Roll as having an interest in the property described in Exhibit "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 on the date and at the time and place
stated therein.
Resolution No. 05-81
July 5, 2005
Page 3
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 July 5, 2005 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 July 5,
2005 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, this City Council by vote of
two-thirds 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.
b.
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.
c.
The property described in Exhibit "A" is necessary for the proposed
Project.
d.
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),
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:
a.
To acquire in the name of City, by condemnation, the property described
in Exhibit "A", in accordance with the provisions of the California Eminent
Domain Law and the California Constitution; .
b.
To acquire the property as a Temporary Construction Easement as
described in Exhibit "A";
Resolution No. 05-81
July 5, 2005
Page 4
c.
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;
d.
To deposit the probable amount of compensation based on an appraisal,
and to apply to the court for an order permitting City to take immediate
possession and use of the property for the public uses and purposes.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Tustin on the 5th day of July, 2005.
Lou Bone, Mayor
ATTEST:
PAMELA STOKER
CITY CLERK
STATE OF CALIFORNIA
COUNTY OF ORANGE
CITY OF TUSTIN
RESOLUTION No, 05-81
Pamela Stoker, City Clerk and ex-officio Clerk of the City Council of the City of Tustin,
California, does 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 was passed
and adopted at a regular meeting of the City Council held on the 5th day of July, 2005 by
the following vote:
COUNCILMEMBER AYES:
COUNCILMEMBER NOES:
COUNCILMEMBER ABSTAINED:
COUNCILMEMBER ABSENT:
PAMELA STOKER
City Clerk
RBF Consulting
14725 Alton Parkway
Irvine, California 92618
Revised November 7,2002
October 24, 2001
JN 10034145.23
Page 1 of 2
EXHIBIT "A"
LEGAL DESCRIPTION
EDINGER AVENUE
PARCEL 10004.1
TEMPORARY CONSTRUCTION EASEMENT
That certain parcel of land situated in the City of Tustin, County of Orange, State
of California, being that portion of Lot 65, Block 10 of Irvine's Subdivision as
shown on a map thereof filed in Book 1, Page 88 of Miscellaneous Records
Maps in the Office of the County Recorder of said Orange County, included
within a strip of land 4.500 meters wide, the southwesterly line of which is
described as follows:
COMMENCING at the most easterly corner of Parcel 105 as described in an
Easement Deed to the County of Orange, recorded March 19, 1962 in Book
6043, Page 396 of Official Records in said Office of the Orange County
Recorder, said corner being in the southeasterly line of the land described in the
Grant Deed to John M. Robertson recorded March 2, 1962 in Book 6025, Page
580 of Official Records in said Office of the Orange County Recorder;
thence along said southeasterly line North 40°38'30" East 4.572 meters to a line
parallel with 4.572 meters northeasterly of the northeasterly line of said Parcel
105 and, the TRUE POINT OF BEGINNING;
thence along said parallel line North .49°21 '05" West 39,195 meters to a point
hereinafter referred to as Point "A";
thence continuing along said parallel line North 49°21 '05" West 44.260 meters to
the northwesterly line of said land of John M. Robertson.
Said strip of land shall be lengthened or shortened southeasterly and
northwesterly so as to terminate in said southeasterly and northwesterly lines of
the land of John M, Robertson.
TOGETHER WITH a strip of land 15.657 meters wide, the southwesterly line of
which is described as follows:
EXHIBIT "A"
BEGINNING at said Point "A";
thence North 49021 '05'" West 1.2.000 meters.
Unless otherwise noted, all bearings and distances in this description are metric
ground based on the California Coordinate System, (CCC83) Zone V1 NAD 1983
(1991.35 O.C.S. GPS Adjustment)
CONTAINING: 509.438 Square Meters (5484 Square Feet) more or less.
SUBJECT TO all Covenants, Rights, Rights-of-Way and Easements of Record.*
EXHIBIT "B" attached and by this reference made a- part hereof.
. s. 5329
*TERM AND USE: The easement will commence at the start of City's
construction affecting Parcel 10004.1 and continue for a period of twelve (12)
months. The easement shall be used for the temporary deposit of tools,
materials, and equipment for the construction of the Edinger Avenue
Improvements and for adjustment of on-site facilities to join with the new Edinger
Avenue Improvements. During the period of the temporary construction
easement, the property owner shall be permitted reasonable ingress and egress
to the Property.
EXHIBIT "B"
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PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF ORANGE
I am over the age of 18 and not a party to the within action; I am employed
by CITY OF TUSTIN in the County of Orange at 300 Centennial Way, Tustin, CA
92780-3767.
On June 28, 2005, I served the foregoing document(s) described as
Notice of Hearing Regarding Adof)tion of a Resolution of Necessity to
Acquire Property by Eminent Domain by placing true copies thereof enclosed
in sealed envelope(s), as follows:
0 (BY MAIL) I placed said envelope(s) for collection and mailing,
following ordinary business practices, at the business offices of the CITY OF
TUSTN, and addressed as shown on the attached service list, for de¡Josit in the
United States Postal Service. I am readily familiar with the practice of CITY OF
TUSTIN for collection and processing correspondence for mailing with the United
States Postal Service, and said envelope(s) will be deposited with the United
States Postal Service on said date in the ordinary course of business,
0 (BY FACSIMILE) I caused the above-referenced document to be
transmitted to the interested parties via facsimile transmission to the fax
number(s) as stated on the attached service list.
0 (BY OVERNIGHT DELIVERY) I placed said documents in
envelope(s) for collection following ordinary business practices, at the business
offices of CITY OF TUSTIN, and addressed as shown on the attached service
list, for collection and delivery to a courier authorized by City of Tustin to receive
said documents, with delivery fees provided for, I am readily familiar with the
practices of CITY OF TUSTfN for collection and processing of documents for
overnight delivery, and said envelope(s) will be deposited for receipt by Federal
Express on said date in the ordinary course of business.
0 (PERSONAL SERVICE) I delivered such envelope(s) by hand to
the offices of ¡he addressee(s).
0 (STATE) I declare that I am employed in the office of a member of
the Bar of this Court at whose direction the service was made. I declare under
penalty of perjury under the laws of the State of California that the above is true
and correct.
0 (FEDERAL) I declare that I am employed in the office of a member
of the Bar of this Court at whose direction the service was made. I declare under
penalty of perjury under the laws of the United States of America that the above
IS true and correct.
Executed on June 28, 2005, at Tustin, California.
April 21 , 2003
Agenda Report
AGENDA REPORT
Agenda Item
Reviewed:
24
. I
City Manager _;<"J-"r'.
Finance Director
MEETING DATE: APRIL 21,2003
TO:
FROM:
WILLIAM A. HUSTON, CITY MANAGER
PUBLIC WORKS DEPARTMENT/ENGINEERING DIVISION
SUBJECT:
APPROVAL OF THE RESOLUTION OF NECESSITY FOR THE
ACQUISITION OF ASSESSOR PARCEL NO. 430-252-09 FOR THE
EDINGER AVENUE (SMART STREET) WIDENING PROJECT
(CIP NO. 7147)
SUMMARY
The proposed resolution will authorize Legal Counsel to acquire property by condemnation for the
Edinger Avenue (Smart Street) Widening Project. In order to construct this project, partial acquisition
of land from the following property is required:
Assessor Parcel
Number (APN)
Owner
Location
Current
Land Use
430-252-09
Samuel I. Russell
Michael P. Russell
1221 Edinger Ave.
Industrial
Negotiations with the owners of this parcel have reached an impasse and in order to acquire the
needed property in a timely manner the Resolution of Necessity needs to be adopted.
RECOMMENDATION
It is recommended that the City Council adopt Resolution No. 03-12 by a four-fifths (4/5) vote
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 described as a portion of
Assessor Parcel No. 430-252-09, and to obtain immediate possession, thereof, for the Edinger
. Avenue (Smart Street) Widening Project and declaring the public convenience and necessity thereof.
FISCAL IMPACT
Adoption of the Resolution of Necessity will authorize the City to post a deposit of $219,250 for right-
of-way acquisition of a portion of Assessor Parcel No. 430-252-09 plus the cost of legal counsel for
the eminent domain process. On April 1, 2002, the Tustin City Council approved a Cooperative
Agreement with the City of Santa Ana that specifies that the City of Santa Ana shall be the lead
agency for administering Measure "M" Smart Street funds for the design and acquisition phases of
the project. The Santa Ana City Council approved the Cooperative Agreement on April 15, 2002. As
outlined in the Cooperative Agreement, the City of Santa Ana, on behalf of the City of Tustin, will
request reimbursement from the Orange County Transportation Authority (OCTA) for all right-of-way
funds expended by the City of Tustin.
.------
Approval of the Resolution of Necessity for the Acquisition of Assessor Parcel No. 430-252-09
for the Edinger Avenue (Smart Street) Widening Project
Apri121,2003
Page 2
BACKGROUND
The Edinger Avenue (Smart Street) Widening Project proposes to widen Edinger Avenue between
Ritchey Street in the City of Santa Ana and 1400 feet east of Red Hill Avenue in the City of Tustin. The
street widening will be to six-lane major arterial highway standards with dual left turn lanes and exclusive
right tum lanes at key intersections as needed to reduce congestion and improve level of service. Bike
lanes will also be installed for both directions. The existing roadway will also be resurfaced, drainage
improvements will be constructed and a raised landscaped median will be installed.
In order to construct the improvements, right-of-way is required from thirteen (13) properties in the form
of acquisitions. Offer letters have been presented to owners of the property interests for all 13
properties. To date, two escrows have closed, two properties are in the process of being acquired by
Easement Deed, and eight properties are in the eminent domain process. For Assessor Parcel No. 430-
252-09, acquisition of 1,368 square feet is required and the City's real property negotiator has reached
an impasse with the property owner or is not confident that appropriate settlement on this property can
be obtained in a timely manner.
The proposed Resolution 03-12 was previously presented to City Council on April 7, 2003. However, at
the April 7, 2003 meeting, Mr. Michael H. Leifer, of the law firm Palmieri, Tyler, Wiener, Wilheim &
Waldron, LLP, representing the Russell property ownership, delivered a letter to the City Clerk to be
included as part of the formal record. As a result, consideration of Resolution 03-12 was continued until
the April 21, 2003 City Council meeting to give staff adequate time to review and respond to each item of
contention in Mr. Leifer's letter. Responses to Mr. Leifer's concerns are contained in the following
sections.
Mr. Leifer's letter states that the City has not shown that the public interest and necessity require the
project. In support of this argument, Mr. Leifer makes the following assertions:
. There is no showing that this "last" segment of Edinger Avenue in Tustin is required to be
widened.
. Improved traffic circulation. There is no showing that the level of service at this last remaining
segment of Edinger Avenue fails to provide adequate traffic circulation or roadway capacity.
City responses are as follows:
1. The project is being constructed in conjunction with an overall County-wide program. Edinger
Avenue Widening is a regional Smart Street project and failure to widen this section of roadway
will create a major point of congestion by narrowing the roadway from six lanes to four lanes.
The failure to widen this section of Edinger Avenue will result in an incomplete set of
improvements and will not fulfill the County Smart Street objective to provide smooth traffic flow
through the City of Tustin and over long distances.
Approval of the Resolution of Necessity for the Acquisition of Assessor Parcel No. 430-252-09
for the Edinger Avenue (Smart Street) Widening Project
Apri121,2003
Page 3
2. The Edinger Avenue widening is identified in the following approved documents: Pacific
Center East Environmental Impact Report (1990), Moulton Parkway Super (Smart) Street
Environmental Impact Report (1994), and the City of Tustin's Circulation Element of the
General Plan (2001). In the Pacific Center East document the widening of Edinger Avenue is
assumed (based upon the City's General Plan) to be widened in the future baseline scenario
for the Pacific Center East Project. The future (Year 2010) scenario identifies traffic volumes
of approximately 45,000 vehicles per day on Edinger Avenue, directly adjacent to Parcel 430-
252-09. This represents a future traffic level-of-service (LOS) of D. The current traffic capacity
of Edinger Avenue is 37,500 vehicles per day. If the future traffic volume is applied to the
existing roadway capacity the result is LOS F, which is unacceptable. The capacity of a
widened, six-lane Edinger Avenue is 53,600 vehicles per day. Therefore, the additional
capacity is required to accommodate future traffic volumes and provide an acceptable level of
service.
The Moulton Parkway Super (Smart) Street Project presents various scenarios that identify the
need to widen Edinger Avenue. The no-project scenario identifies that future traffic volumes
on Edinger Avenue directly adjacent to Parcel 430-252-09 will be approximately 42,000
vehicles per day. If Edinger Avenue were not widened the roadway capacity would remain at
the existing capacity of 37,500 vehicles per day. The associated LOS would be F, resulting in
extreme traffic congestion and virtual lock-down of the roadway to vehicular movement. When
Edinger Avenue is widened to six-lanes the roadway capacity is increased to 53,600 vehicles
per day resulting in LOS C, which allows vehicular movement at an acceptable level and which
would be consistent with Tustin's Growth Management Element of the General Plan.
Mr. Leifer's letter states that there is no showing that the proposed project is planned and located in a
manner that will be most compatible with the greatest public good and the least private injury. In support
of this argument, Mr. Leifer makes the following assertions:
. This project is part of a larger project that has not received environmental clearance.
. The statements made conceming APN 430-252-09 on page 4 of the Staff Report are inaccurate
in that the building improvement will be substantially impacted by the proposed taking for the
widening of Edinger Avenue. In fact, the City's own report in the third paragraph relating to the
property describes some of the substantial impacts to the property, which according to the City
include "(1) Remove the remaining portion of the front truck loading well; (2) Install asphalt paving
over the former truck well; (3) widen the existing truck well along the northwesterly elevation of
the building; (4) relT1ove the rear loading ramp/dock in order to provide additional automobile
parking; (5) install asphalt paving along the rear portion of the property; (6) restripe automobile
parking areas; and (7) reconfigure the chain link fencing.
Approval of the Resolution of Necessity for the Acquisition of Assessor Parcel No. 430-252-09
for the Edinger Avenue (Smart Street) Widening Project
April 21, 2003
Page 4
. The City has not shown that these impacts to the property are representative of the least private
injury. Moreover, it is understood by the property owner that the City's own analysis demonstrates
that the building is reduced in value, further demonstrating the City's statement that the "building
is not impacted," is inaccurate. The inaccuracy of the statement impacts the City's consideration
and purported adoption of the Resolution of Necessity.
City responses are as follows:
1. The Edinger Avenue Widening Project is a Regional Project funded by the Orange County
Transportation Authority (OCTA) with Measure "M" Funds, and is designed to improve a major
regional arterial, which serves several cities. It is designed to move traffic smoothly through the
region and is a joint project with the City of Santa Ana. It is a separate project from the
Newport/SR-55 Ramp Reconfiguration Project that is a local City of Tustin Project. The Mitigated
Negative Declaration for the Edinger Avenue Widening Project was approved by the City Council
on April 16,2001.
2. The Building improvements at 1221 Edinger Avenue will not be impacted by the proposed
project. Improvements adjacent to the building are impacted. The seven items listed above are
impacts to the property and the appraised value compensates the property owner in the amount
of $38,150 to reconfigure the property improvements as noted above and compensates the
property owner $150,000 in severance damages due to a reduced overall functional utility
resulting from the loss of the front truck loading well. Additionally, the preliminary project design
included a bus turn-out in front of the subject property. At the request of the property owner and
to minimize impacts to the property, the City negotiated with OCTA to relocate the existing bus
turn-out west of the intersection of Edinger Avenue and Del Amo Avenue,
Mr. Leifer's letter states that the subject property interests have not been shown to be necessary for the
proposed project. In support of this argument, Mr. Leifer makes the following assertions:
. The City has not shown that the property taken is to be used for the protection or preservation
of the "attractiveness, safety, and usefulness of the project" as set forth in Code of Civil
Procedures §1240.120(a).
. The City has not shown the date of the project plans which are "on file" with the Director of
Public Works of the City, and incorporated the date of those plans into the Resolution of
Necessity. The City has also not incorporated the plans themselves along with the Resolution
of Necessity. As such, the property owner is left in a position to guess which "plans" the City
refers to in its Resolution of Necessity.
. The City has not demonstrated whether some or "portions of the property and interests therein
hereafter described or being acquired as a "remnant" pursuant to the Code of Civil Procedures
§1240.410."
-'- ._--~-_._---
Approval of the Resolution of Necessity for the Acquisition of Assessor Parcel No. 430-252-09
for the Edinger Avenue (Smart Street) Widening Project
Apri121,2003
Page 5
. The City has not described and has not shown in its Staff Report which portion or portions "of
the property in interest therein hereinafter described or being acquired for a "compatible joint
use" pursuant to Code of Civil Procedure §1240.510."
. The environmental review of the City is inaccurate and inadequate as the City has engaged in
project splitting which is prohibited under CEOA.
. Conditions and statutory requirements necessary to exercise the power of eminent domain to
acquire the property described herein have not been complied with by the City.
. Edinger Avenue is currently at sufficient width to accommodate the number of vehicles that use
this route during peak periods. Accordingly, it does not appear that the public interest and
necessity require the improvements to Edinger Avenue as is being proposed by the City. It is
believed that the City may accomplish its purported objective through other means, including
restriping, Other means would reduce, if not eliminate, the takings from the Russell property.
. In addition, the portion of the take identified as "temporary construction easement" fails for
vagueness with regard to temporal scope and rights conferred.
City responses are as follows:
1. The property needed for the project will be used to construct full street improvements according
to the Orange County Master Plan of Arterial Highways and the City's General Plan. This
includes six (6) through lanes, bus tum-outs, bike lanes, sidewalks, and the undergrounding of
existing overhead utility lines.
2. The plans are current as of April 4, 2003. The current set of plans has also been revised to
relocate the proposed bus rum-out in front of the subject property to the west side of the Del
Amo intersection, thereby not affecting the subject property.
3. Resolution 03-12 has been revised to eliminate the reference to "portions of the property
and interests therein being described or being acquired as a reminant:'
4. Resolution 03-12 has been revised to eliminate the reference to "portion of the property in
interest therein hereinafter described as being acquired for a compatible joint use."
5. The Edinger Avenue Widening Project is a Regional Project funded by OCT A with Measure "M"
Funds and is designed to improve a major regional arterial, which serves several cities. It is
designed to move traffic smoothly through the region and is a joint project with the city of Santa
Ana. It is a separate project from the Newport/SR-55 Ramp Reconfiguration Project that is a
local City of Tustin Project. The Mitigated Negative Declaration for the Edinger Avenue Widening
Project was approved by City Council on April 16, 2001.
6. All conditions and statutory requirements have been complied with by the City,
---- -- -.- - ---
Approval of the Resolution of Necessity for the Acquisition of Assessor Parcel No. 430-252-09
for the Edinger Avenue (Smart Street) Widening Project
April 21, 2003
Page 5
7. Although Edinger Avenue in its current configuration can accommodate existing traffic volumes,
there is not sufficient street width to accommodate the future traffic demand. The future right-of-
way to right-of-way width on this section of Edinger Avenue will need to be 130-feet to
accommodate future traffic demand, bicycle lanes, sidewalks and utility facilities. The existing
one-half street width on Edinger Avenue, north of the street centerline, is 50-feet and cannot be
restriped to accommodate the future 55-feet half street width needed to accommodate traffic.
8. The Temporary Construction Easement (TCE) clearly defines the limits of access needed to
construct the project improvements and the appraised value compensates the property owner
$2,700 for the TCE. The TCE will be required from the time of contract award to the end of
construction.
Based on the foregoing City responses and evidence, it is recommended that the City Council
find and determine as follows:
A. The public interest and necessity require the project.
The public interest and necessity require the project for the following reasons:
1. The widening project will improve traffic circulation by providing additional roadway capacity.
2. The Moulton Parkway Super (Smart) Street EIR (1994) and the Edinger Avenue Widening
Project Mitigated Negative Declaration (2001) documents justify the need for the widening of
Edinger Avenue. The project is being constructed in conjunction with an overall County-wide
program to improve traffic circulation along the Moulton Parkway "Smart Street" Corridor. This
corridor includes Edinger Avenue, Irvine Center Drive, Moulton Parkway and Street of the
Golden Lantem that traverses the Cities of Santa Ana, Tustin, Irvine, Laguna Woods, Aliso Viejo,
Laguna Hills, Laguna Niguel and Dana Point.
3. Construction of the project will complete the last remaining segment of Edinger Avenue in Tustin
to be widened as part of the "Smart Street" Corridor Program.
4. Edinger Avenue is currently not in conformance with the Orange County Master Plan of Arterial
Highway since the existing roadway width cannot accommodate the future traffic demand
identified in the Orange County Transportation Analysis Model. The widening brings Edinger
Avenue into conformity with the Orange County Master Plan of Arterial Highways.
5. Edinger Avenue is currently not in conformance with the City of Tustin's Circulation Element of
the General Plan in that the roadway width is not sufficient to accommodate future traffic
demand identified in the City's General Plan. The widening brings Edinger Avenue into
conformity with the City of Tustin's Circulation Element of the General Plan.
--------
- -----------~
Approval of the Resolution of Necessity for the Acquisition of Assessor Parcel No. 430-252-09
for the Edinger Avenue (Smart Street) Widening Project
Apri121,2003
Page 7
6. Edinger Avenue is currently not in conformance with the City of Tustin's Master Bikeway Plan
since there are no bicycle lanes on this segment of Edinger Avenue due to insufficient roadway
width to accommodate both vehicle traffic and bicycle lanes. The project will complete the last
remaining segment of Edinger Avenue Bike Lanes and bring Edinger Avenue into conformity
with the City of Tustin's Master Bikeway Plan.
B. The proposed project is planned and located in the manner that will be the most compatible with the
greatest public good and least private injury.
This project was cleared environmentally through preparation of a Mitigated Negative Declaration.
The Mitigated Negative Declaration for the Edinger Avenue (Smart Street) Widening Project was
approved by the Tustin City Council on April 16, 2001 and the Notice of Determination was recorded
in the office of the Orange County Recorder on May 8, 2001.
The City's Engineering Consultant worked closely with the City's Right-of-way Consultant and
several affected property owners to minimize acquisitions and to create local traffic circulation
enhancements.
Assessor Parcel No. 430-252-09 is currently improved with an industrial facility of concrete tilt-up
construction. The building contains a gross building area of approximately 41,000 square feet and
was constructed in 1963. The building improvement will not be impacted by the proposed taking for
the widening of Edinger Avenue.
Other on-site improvements include two truck wells, asphalt paving, concrete paving, concrete
planter walls, chain link fencing, a raised loading deck/ramp, marked automobile parking spaces,
concrete auto stops, an in-ground irrigation system and omamentallandscape.
As a means of mitigating severance damages, it will be necessary to (1) remove the remaining
portion of the front truck loading well, (2) install asphalt paving over the former truck well, (3) widen
the existing truck well located along the northwesterly elevation of the building, (4) remove the rear
loading ramp/dock in order to provide additional automobile parking, (5) install asphalt paving along
the rear portion of the property, (6) restripe automobile parking areas, and (7) reconfigure the chain
link fencing. Compensation allowances for same will be made to the property owner as a means of
mitigating severance damages.
C. The subject property interest is necessary for the proposed project.
For parcel 430-252-09 (Russell), the construction of the Edinger Avenue Widening Project
necessitates acquisition of a portion of this property.
The property is depicted on Exhibit B attached to the Resolution of Necessity. Right-of-way
documentation in the form of a legal description is attached as Exhibit A to the individual Resolution
of Necessity.
~.---~-- ~-_~_.__m
Approval of the Resolution of Necessity for the Acquisition of Assessor Parcel No. 430-252-09
for the Edinger Avenue (Smart Street) Widening Project
April21,2003
Page 8
D.
An offer was made in compliance with Government Code Section 7267.2.
California Code of Civil Procedure Section 1245.230 requires that a Resolution of Necessity
contain a declaration that the governing body has found and determined that either the offer
required by Section 7267.2 of the California Government Code has been made to the owners of
record or that the offer has not been made because the owner cannot be located with reasonable
diligence.
California Government Code Section 7267.2 requires that an offer be made to the owner or owners of
record and in an amount which the agency believes to be just compensation. The amount must not be
less than the agency's approved appraisal of the fair market value of the property. In addition, the
agency is required to provide the owner (s) with a written statement of, and summary ofthe basis for, the
amount it established as just compensation.
City staff and the City Council have taken the following actions as required by California law for the
acquisition of the subject property.
1.
Obtained an appraisal to determine the fair market value of each property.
2.
Reviewed and approved each appraisal, and established just compensation in an amount not
less than the approved appraisal.
3.
Determined the owner of each property by examining the County Assessor's records.
4.
Made a written statutory offer to each property owner for the full amount of just compensation,
which was not less than the approved appraised amount.
E. The property owner was notified of the proposed adoption of the Resolution of Necessity and of the
Right to be Heard.
California Code of Civil Procedure Section 1245.235 requires that a property owner be provided
notice of the proposed adoption of a Resolution of Necessity and of the Right to be Heard. By letter
dated March 17, 2003 City staff notified the property owner of these rights. A copy of the letter is
attached as Exhibit C. The individual property owner was given 15 days to file a request with the
City Clerk to speak on April 7, 2003. Staff informed the City Council on April 7, 2003 of Mr. Leifer's
letter of April 2, 2003 notifying the City of Tustin that the owners of the subject property intend to
appear and be heard concerning the City's consideration of the adoption of the Resolution of
Necessity.
Mr. Leifer's letter states that he believes the City is incapable of conducting a fair, legal, and impartial
hearing on the proposed adoption of the Resolution of Necessity. The case of Redevelopment Agency
vs Norm's Slauson is cited.
In response, the City has conducted all negotiations in a fair, legal and impartial manner. The City
has corresponded several times with the property owner and has met once. The initial offer letter
was presented to the property owner in August 2002, On November 19, 2002 a settlement offer
was given to the property owner. On February 3, 2003 a meeting was held with Mr. Mike Russell
.-.-----.-
Approval of the Resolution of Necessity for the Acquisition of Assessor Parcel No. 430-252-09
for the Edinger Avenue (Smart Street) Widening Project
April 21, 2003
Page g
to discuss the property acquisition. An updated offer letter dated February 21, 2003 was prepared
and delivered to Mr. Russell. The City has met its statuary obligations to negotiate in good faith
before proceeding with eminent domain. Additionally, the City has relocated the bus tum-out to
minimize the impact to Mr. Russell's property. Finally, the City's Special Legal Counsel has
indicated that there is substantial evidence presented to the City Council in support of the project
and the acquisition of the Russell property by eminent domain and therefore, Mr. Leifer's reliance
on the case cited in his letter is misplaced and not pertinent to the facts and evidence relevant to
the City's proposed acquisition of the property.
Based on the evidence provided above, and testimony received at the hearing, it is recommended that
the City Council adopt Resolution No. 03-12 authorizing and directing the City Attomey and/or Special
Legal Counsel to acquire by condemnation certain real property interests described as a portion of
Assessor Parcel No. 430-252-09 and to obtain immediate possession, thereof, for the Edinger Avenue
(Smart Street) Widening Project and declaring the public convenience and necessity thereof.
C /~v. ~
Tim D. Serlet
Director of Public Works/City Engineer
~2.,~~
~.L Dana. Kasdan
Engineering Services Manager
TDS:DRK:ccg:Approval of Reso of Necessfty Edinger Russell memO.doc.
Attachments: Resolution of Necessity
Appendix A to the Resolution of Necessity
Notice of Intent to Adopt
Letter from Paimieri, Tyler. Wiener, Wilheim & Waldron LLP. dated April 7, 2001
.._~ -.
--..
RESOLUTION NO. 03-12
2
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 EDINGER AVENUE WIDENING PROJECT (CIP 7147) AND
DECLARING THE PUBLIC CONVENIENCE AND NECESSITY THEREOF
3
4
5
6
7
The City Council of the City of Tustin ("City"), by vote of two-thirds or more of its
8 members, FINDS, DETERMINES, DECLARES, AND RESOLVES that:
9 WHEREAS, City intends to construct the Edinger Avenue Improvements ("Project"), a
10 public use, and, in connection therewith, acquire interests in certain real property. The
Project is for a public use that is a function of City; and
11
WHEREAS, City intends to construct the Project to make effective the principal
12 purpose of street widening in compliance with the City's General Plan, including but not
13 limited to property to be used for the protection or preservation of the attractiveness, safety,
and usefulness of the Project as set forth in Code of Civil Procedure Section 1240.120(a);
14 and
15 WHEREAS, the Project requires the acquisition of fee interests and temporary
16 construction easements in certain real property located at 1221 Edinger Avenue (APN 430-
252-09); and
17
WHEREAS, City is authorized to acquire the parcells) described in Appendix A
18 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
19 the California Constitution and the California Eminent Domain Law, Code of Civil Procedure
20 Section 1230.010 et seq. and pursuant to Streets and Highways Code Section 10102 (street
right of way); Government Code Section 54031 (parking); Government Code Section 38730
21 (water facilities); Streets and Highways Code Section 5100 at saq. (Street Improvement Act
acquisitions); and
22
23 WHEREAS, the real property interests sought to be acquired for the Project consists
of one parcel and is located within the territorial limits of City and is generally located on the
24 north side of Edinger Avenue between the SR-55 Freeway and Red Hill Avenue; and
25 WHEREAS, the plans for the Project are on file with the Director of Public Works of
26 City; and
27
28
----~
. n__.__- - --_._---~---
2
Resolution No. 03-12
Page 2
3
WHEREAS, the Project is planned and located in a manner which will be the most
4 compatible with the greatest public good and least private injury; and
5 WHEREAS, City has established the amounts it believes to be just compensation for
6 the hereinafter described real property interests sought to be acquired; and
7 WHEREAS, pursuant to Government Code Section 7267.2, City has offered to the
owners of the real property and interests therein the full amount established as just
8 compensation for the real property sought to be acquired; and
9 WHEREAS, City has provided the owners of the real property and interests therein a
10 written statement, and summary of the basis for the amount established as just
compensation for the real property and interests sought to be acquired; and
11
WHEREAS, a reasonable length of time has expired since the date of the offers to the
12 owners of the real property and interests therein sought to be acquired, and the owners have
13 failed to favorably respond to the offers of the amounts established by City as just
compensation; and
14
WHEREAS, the Project is part of the City's Capital Improvement Program, and on
15 August 5, 2002, the City Council of the City, adopted Resolution No. 02-77 exempting the
16 acquisitions required by the Project from the provisions of Government Code, Section 65402;
and
17
WHEREAS, on April 16, 2001 the City Council approved a Mitigated Negative
18 Declaration for the Project pursuant to Public Resources Code Section 21000, et seq., the
California Environmental Quality Act ("CEQA"), and on May 8, 2001 the City filed a Notice of
19 Determination under CEQA with the County Clerk of the County of Orange, California; and
20
WHEREAS, pursuant to the provisions of Code of Civil Procedure, Section 1245.235,
21 on March 17, 2003 there was mailed a Notice of Hearing on the intent of City Council to
Adopt a Resolution of Necessity for acquisition by eminent domain of the real property
22 described in Appendix A, which Notice of Hearing, Appendix B, is attached hereto and
23 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
24 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
25 and as specified in Code of Civil Procedure Section 1240.030 on the date and at the time
26 and place stated therein.
27 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUSTIN, STATE OF
CALIFORNIA, finds, determines and orders as follows:
28
-2-
~U_--------- u-
Resolution No. 03-12
2 Page3
3
SECTION 1. The above recitations are true.
4 SECTION 2, The April 21, 2003 staff report has been read and considered along with
all evidence presented at the hearing.
5
SECTION 3. The hearing set out in the Notice of Hearing was held on April 7, 2003 at
6 the time and place stated therein, and all interested parties were given an opportunity to be
7 heard, The hearing was continued to April 21, 2003 at which time all interested parties were
again given an opportunity to be heard. The hearing was closed.
8
SECTION 4. Based upon the evidence presented, including the staff report and all
9 written and oral evidence presented at the hearing, this City Council by vote of two-thirds or
10 more of its members, further FINDS, DETERMINES, DECLARES, AND RESOLVES each of
the following:
11
12
a. The public interest and necessity require the proposed Project.
13
14
b. 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.
c. The property described in Appendix A is necessary for the proposed Project.
15
16
d. 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 statemenUsummary were in a form and contained all of the
factual disclosures provided by Government Code Section 7267.2(a).
17
18
19 SECTION 5. All conditions and statutory requirements necessary to exercise the
20 power of eminent domain ("the right to take") to acquire the property described herein have
been complied with by City.
21
SECTION 6. The City Attorney or Special Legal Counsel, Hahn & Hahn, is hereby
22 AUTHORIZED and EMPOWERED:
23
24
a. To acquire in the name of City, by condemnation, the property described in
Appendix A, in accordance with the provisions of the California Eminent Domain
Law and the California Constitution;
25
26
b. To acquire the property in fee simple absolute unless a lesser estate is described
in Appendix A;
27
28
c. 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;
-3-
Resolution No. 03-12
2 Page 4
3
4
d. To deposit the probable amount of compensation based on an appraisal, and to
apply to the court for an order permitting City to take immediate possession and
use of the property for the public uses and purposes.
5 PASSED AND ADOPTED at a regular meeting of the City Council of the City of Tustin
6 on the 21st day of April 2003.
7
8
9
10 ATTEST:
Tracy Wills Worley
Mayor
11
12 PAMELA STOKER
13 CITY CLERK
14
15 STATE OF CALIFORNIA)
16 COUNTY OF ORANGE)
CITY OF TUSTIN )
17
18
RESOLUTION NO.
Pamela Stoker, City Clerk and ex-officio Clerk of the City Council of the City of Tustin,
19 California, does hereby certify that the whole number of the members of the City Council of
20 the City of Tustin is five; that the above and foregoing Resolution was passed and adopted at
a regular meeting of the City Council held on the - day of , 200_, by the
21 following vote:
22
23 COUNCILMEMBER AYES:
COUNCILMEMBER NOES:
24 COUNCILMEMBER ABSTAINED:
COUNCILMEMBER ABSENT:
25
26
27 PAMELA STOKER
City Clerk
28
-4-
2
3 A.
4
B.
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Exhibit "A"
Exhibit "A"
.
Appendix A
CONTENTS
Legal Description Parcel 10004 (Samuel!. Russell Trust)
Legal Description Parcel 10004.1
Temporary Construction Easement
(Samuel I. Russell Trust)
-5-
~~--~-~-_._- -
RBF Consulting
14725 Alton Parkway
Irvine, California 92618
EXHIBIT "An
Revised July 10, 2002
JN 10-034145.06
Page 1 of 1
LEGAL DESCRIPTION
EDINGER AVENUE
PARCEL 10004
(SAMUEL I. RUSSELL TRUST.)
That certain parcel of land situated in the City of Tustin, County of Orange, State of
California, being that portion of Lot 65, Block 10 of Irvine's Subdivision as shown on
a map thereof fi 1 ed in Book 1, Page 88 of Mi see 11 aneous Records Maps in the Offi ce of
the County Recorder of said Orange County, included within a strip of land 1.524 meters
wide, the southwesterly line of which is described as follows:
BEGINNING at the most northerly corner of Parcel 123 as described in an Irrevocable
Offer to Convey Easement to the County of Orange. recorded January 14. 1972 in Book
9966, Page 722 of Official Records in said Office of the Orange County Recorder;
thence along the northeasterly line of said parcel South 49021'05" East 83.454 meters
to the southeasterly line of the land described in the Grant Deed to John M. Robertson
recorded March 2, 1962 in Book 6025, Page 580 of Offi ci a1 Records in sai d Offi ce of the
County Recorder of Orange County;
Sai d stri p of 1 and shall be 1 engthened or shortened so as to termi nate northwesterly
in the northwesterly line and southeasterly in the southeasterly line of said land of
John M. Robertson.
CONTAINING:
127.184 Square Meters, more or less.
Unless otherwise noted, all bearings and distances in this description are metric
ground based on the Ca1 i forni a Coordi nate System. (CCC83) Zone VI NAD 1983 (1991.35
O.C.S. GPS Adjustment)
SUBJECT TO all Covenants, Ri ghts, Ri ghts-of-Way and Easements of Record.
EXHIBIT "B" attached and by thi s reference made a part hereof.
.5l~ -
Gregory A. Helmer, P.LS. 5134
JR ViNE'S
iVi- R MJ
BLOcK 10
SUBDiViSioN
1/ BB
LOr 85
SCALE= 1 :500
BOOK 8025, PΠ580, OJRJ
EDINGER A VENUE
PARCEL 10004
(SAMUEL I. RUSSELL TRUST.)
CONTAINING 127.102 SQUARE MITERS + -
"
"" I!- '
SHEET 1 OF 1 SHEET
EXHIBIT "B'
SKErCH fa ACCOIIPANY A
LEGAL orSCRIPTION FOR
~ .~..,.. . m".. '0._'_'°.
. . . -===:
CON8UCTINII -.......,..".--
RBF CONSULTING
14725 Alton Parkway
Irvine, California 92618
EXHIBIT "A"
Revised November 7,2002
October 24, 2001
IN 10-034145.23
page 1 of 2
LEGAL DESCRIPTION
EDINGER AVENUE
PARCEL 10004.1
TEMPORARY CONSTRUCTION EASEMENT
(SAMUEL I. RUSSELL TRUST)
That certain parcel of land situated in the City of Tustin, County of Orange,
State of California, being that portioll of Lot 65, Block 10 of Irvine's
Subdivision as shown on a map thereof filed in Book 1, Page B8 of Miscellaneous
Records Maps in the Offi ce of the County Recorde, of sai d Orange County, i ncl uded
within a strip of land 4.500 meters wide, the southwesterly line of which is
descri bed as follows: .
COMMENCING at the most easterly corner of Parcel 105 as described in an Easement
Deed to the County of Orange, recorded March 19, 1962 in Book 6043, Page 396 of
Official Records in said Office of the Orange County Recorder, said corner being
in the southeasterly 1 i ne of the 1 and descri bed in the Grant Deed to John M.
Robertson recorded March 2, 1962 in Book 6025, Page 580 of Official Records in
said Office of the Orange County. Recorder; .
thence along said southeasterly line North 40038'30" East 4.572 meters to a line
parallel with 4.572 meters northeasteriy of"the nartheasterly line of said Parcel
105 and the TRUE' POINT OF BEGINNING; .
thence along sai d parallel 1 i ne North 49°21' 05" West 39.195 meters to a poi nt
herei nafter referred to as Poi nt "A";
. th,ence continuing along said parallel line North 49°21'05" West 44.260 meters to
the northwesterly line of said land of John M. Robertson.
Said strip of land shall be lengthened or shortened southeasterly and
northwesterly so as to termi nate in sai d southeasterly and northwesterly i i nes
of the 1 and of John M. Robertson.
TOGETHER WITH a strip of land 15.657 meters wide, the southwesterly line of which
is described as follows:
---.-.--
RBF Consult; ng
Edinger Avenue Parcel 10004.1
Temporary Construction Easement Page 2 of 2
(Samuel I. Russell Trust)
BEGINNING at said Point "A"¡
Revised November 7, 2002
October 24, 2001
IN 10-034145.23
Pagel of 2
EXHIBIT "A"
thence North 49°21'05'" West 12.000 meters.
Unless othÚwise noted, all bearings and distances in this description are metric
ground based on the Cali forni a Coordi nate System, (CCC83) Zone VI NAD 1983
(1991.35 O.C.S. GPS Adjustment)
CONTAINING: 509.438 Square Meters (5484 Square Feet) more orl ess.
SUBJECT TO all Covenants, Rights, Rights-of-Way and Easements of Record.
EXHIBIT "B" attached and by thi s reference made a part hereof.
-------------
EXHIBIT "B"
SKETCH ro ACCOMPANY A
L£:GAL DeSCRIPTION FOR
iR ViNE'S
j\¡jJRj\¡L
BLOCK 10
dUBDi ViSiON
1/BB
LOr 85
SCALE= 1 :500
BooK {j[)25, Pe. 580, aRJ
EDINGER AVENUE
PARCEL 10004,1
TEMPORARY CONSTRUCTION EASEMENT
(SAMUEL I. RUSSELL TRUST.)
CONTAINING 509.438 SQUARE METERS +/-
-.. _..~
~
w
Office of the City Manager
March 17, 2003
City of Tustin
300 Centennial Way
Tustin, CA 92780
714.573.3010
FAX 714.838.1602
Mr. Samuel!. Russell
Mr. Michael P. Russell
P.O. Box 13450
Palm Desert, CA 92255
Re:
Notice of Hearing Regarding Adoption of a Resolution of Necessity to Acquire -
Property by Eminent Domain [California Code of Civil Procedure 1245,235]
Edinger Avenue Widening Project (CIP 7147)
Property: 1221 Edinger Avenue
Dear Property Owner:
1. Notice of the Intent of Tustin City Council to Adopt a Resolution of
Necessity. The City Council intends to consider the adoption of a Resolution of
Necessity on April 7, 2003 that, if adopted, will authorize the City of Tustin ("City") to
acquire the property described herein by eminent domain for the Edinger Avenue
Widening Project between the SR-55 Freeway and 1,400 feet east of Red Hill Avenue
(CIP 7147).
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 Council of City, at a regular meeting to be held on Monday, April 7, 2003 at 7:00
p.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 Council
give judicious consideration to your testimony prior to deciding whether or not to adopt
the proposed Resolution of Necessity.
a, Whether the public interest and necessity require the proposed project;
------ ---
Russell & Russell
Notice of Hearing Regarding Adoption of Resolution of Necessity to Acquire Property by
Eminent Domain .
March 17,2003
Page 2
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
statemenUsummary were in a form and contained all of the factual
information required by Govemment 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 statutes that authorize the City to acquire the property by eminent domain for
this proposed project are Streets and Highways Code Section 10102 (street right of
way); Government Code Section 54031 (parking); Government Code Section 38730
(water facilities); Streets and Highways Code Section 5100 at saq. (Street Improvement
Act acquisitions).
-------------
Russell & Russell
Notice of Hearing Regarding Adoption of Resolution of Necessity to Acquire Property by
Eminent Domain
March 17,2003
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 Tustin City Hall, 300 Centennial Way, Tustin, Califomia,
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 Council 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 Council 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.
---,-------
--------,.,
Russell & Russell
Notice of Hearing Regarding Adoption of Resolution of Necessity to Acquire Property by
Eminent Domain
March 17,2003
Page 4
If the City Council 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 March 17,2003.
þ;ø~~
William A. Huston, City Manager
Attachments
(Copy of Government Code section 7267.2, subdivisions (a), (b), and (c»
(Proposed Resolution of Necessity)
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.
S:\CIP Project -Active\7147 - Edinger Ave. WideninglAcquisition\Jackson-Russell Eminent Domain
----,--
EXHIBIT A
2
3
RESOLUTION NO. 03-12
4
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 EDINGER AVENUE WIDENING PROJECT
(CIP 7147) AND DECLARING THE PUBLIC CONVENIENCE
AND NECESSITY THEREOF
5
6
7
8
9
10 The City Council of the City of Tustin ("City"), by vote of two-thirds or more of its
members, FINDS, DETERMINES, DECLARES, AND RESOLVES that:
11
12
WHEREAS, City intends to construct the Edinger Avenue Improvements ("Project"), a
public use, and, in connection therewith, acquire interests in certain real property. The
Project is for a public use that is a function of City; and
13
WHEREAS, City intends to construct the Project to make effective the principal
purpose of street widening in compliance with the City's General Plan, including but not
15 limited to property to be used for the protection or preservation of the attractiveness, safety,
16 and usefulness of the Project as set forth in Code of Civil Procedure section 1240.120(a);
and
14
17
WHEREAS, the Project requires the acquisition of fee interests and temporary
18 construction easements in certain real property located at 1221 Edinger Avenue (APN 430-
19 252-09); and
20 WHEREAS, 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
21 exercise the power of eminent domain for the public use set forth herein in accordance with
the California Constitution and the California Eminent Domain Law, Code of Civil Procedure
22 Section 1230.010 at saq. and pursuant to Streets and Highways Code Section 10102 (street
23 right of way); Government Code Section 54031 (parking); Govemment Code Section 38730
(water facilities); Streets and Highways Code Section 5100 at seq. (Street Improvement Act
24 acquisitions); and
25 WHEREAS, the real property interests sought to be acquired for the Project consists
26 of one parcel and is located within the territorial limits of City and is generally located on the
north side of Edinger Avenue between the SR-55 Freeway and Red Hill Avenue; and
27
WHEREAS, the plans for the Project are on file with the Director of Public Works of
28 City; and
-~-,-----------
--- ~----
2
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
3 WHEREAS, City has established the amounts it believes to be just compensation for
the hereinafter described real property interests sought to be acQuired: and
4
WHEREAS, pursuant to Government Code section 7267.2, City has offered to the
5 owners of the real property and interests therein the full amount established as just
6 compensation for the real property sought to be acquired; and
7 WHEREAS, City has provided the owners of the real property and interests therein a
written statement, and summary of the basis for the amount established as just
8 compensation for the real property and interests sought to be acquired; and
9 WHEREAS, a reasonable length of time has expired since the date of the offers to the
10 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 City as just
11 compensation; and
12 WHEREAS, some or portions of the property and interests therein hereinafter
13 described are being acquired as a "remnant" pursuant to Code of Civil Procedure section
1240.410; and
14
WHEREAS, some or portions of the property and interests therein hereinafter
15 described are being acquired for a compatible joint use pursuant to Code of Civil Procedure
16 section 1240.510; and
WHEREAS, the Project is part of the City's Capital Improvement Program, and on
August 5, 2002, the City Council of the City, adopted Resolution No. 02-77 exempting the
18 acquisitions required by the Project from the provisions of Govemment Code, section 65402;
and
19
17
20
21
WHEREAS, on May 8, 2001 pursuant to Public Resources Code section 21000, et
seq., the California Environmental Quality Act ("CEQA") , the City filed a Notice of
Determination under CEQA with the County Clerk of the County of Orange, California; and
22 WHEREAS, pursuant to the provisions of Code of Civil Procedure, section 1245.235,
23 on March 17, 2003 there was mailed a Notice of Hearing on the intent of City Council to
Adopt a Resolution of Necessity for acquisition by eminent domain of the real property
24 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
25 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
26 of Hearing advised those persons of their right to be heard on the matters referred to therein
27 and as specified in Code of Civil Procedure section 1240.030 on the date and at the time and
place stated therein.
28
-2-
- ---------.-
n__-
NOW. THEREFORE, THE CITY COUNCIL OF THE CITY OF TUSTIN. STATE OF
CALIFORNIA, finds, determines and orders as follows:
2
3
SECTION 1. The above recitations are true.
4 SECTION 2. The April 7, 2003 staff report has been read and considered along with
all evidence presented at the hearing.
5
SECTION 3. The hearing set out in the Notice of Hearing was held on April 7, 2003 at
6 the time and place stated therein, and all interested parties were given an opportunity to be
7 heard. The hearing was closed.
8 SECTION 4. Based upon the evidence presented, including the staff report and all
written and oral evidence presented at the hearing, this City Council by vote of two-thirds or
9 more of its members, further FINDS, DETERMINES, DECLARES, AND RESOLVES each of
10 the following:
11 a.
12 b.
13
14 c.
15 d.
16
17
18
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 statemenUsummary were in a form and
contained all of the factual disclosures provided by Government Code section
7267.2(a).
19 SECTION 5. All conditions and statutory requirements necessary to exercise the
20 power of eminent domain ("the right to take") to acquire the property described herein have
been complied with by City.
21
SECTION 6. The City Attorney or Special Legal Counsel, Hahn & Hahn, is hereby
22 AUTHORIZED and EMPOWERED:
23
24
25
26
27
28
a.
To acquire in the name of City, by condemnation, the property described in
Appendix A, in accordance with the provisions of the California Eminent
Domain Law and the California Constitution;
b.
To acquire the property in fee simple absolute unless a lesser estate is
described in Appendix A;
-3-
,- ---~u ~----"~ -
c.
2
3 d.
4
5
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 deposit the probable amount of compensation based on an appraisal, and to
apply to the court for an order permitting City to take immediate possession and
use of the property for the public uses and purposes.
6 PASSED AND ADOPTED at a regular meeting of the City Council of the City of Tustin
on the 7th day of April 2003
7
8
Tracy Wills Worley
Mayor
9
10 ATTEST:
11
12
PAMELA STOKER
CITY CLERK
13
14
15
16 STATE OF CALIFORNIA)
COUNTY OF ORANGE)
17 CITYOFTUSTIN )
18
RESOLUTION NO.
19 Pamela Stoker, City Clerk and ex-officio Clerk of the City Council of the City of Tustin,
20 California, does 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 was passed and adopted at
21 a regular meeting of the City Council held on the - day of , 20O_, by the
following vote:
22
23 COUNCILMEMBER AYES:
24 COUNCILMEMBER NOES:
COUNCILMEMBER ABSTAINED:
25 COUNCILMEMBER ABSENT:
26
27
PAMELA STOKER
28 City Clerk
-4-
~~._.~
--..---. --.
2
3 A.
4
B.
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
----~- ------
Exhibit "A"
Exhibit "A"
Appendix A
CONTENTS
Legal Description Parcel 1 0004 (Samuel!. Russell Trust)
Legal Description Parcel 1 0004.1
Temporary Construction Easement
(Samuel!. Russell Trust)
-5-
-------
RBF Consulting
14725 Alton Parkway
Irvine, Cali fornia 92618
EXHIBIT "An
Revi sed July 10, 2002
IN 10-034145.06
Page 1 of 1
LEGAL DESCRIPTION
EDINGER AVENUE
PARCEL 10004
(SAMUEL I. RUSSELL TRUST.)
That certain parcel of land situated in the City of Tustin, County of Orange, State of
California, being that portion of Lot 65, Block 10 of Irvine's Subdivision as shown on
a map thereof filed in Book 1, Page 88 of Miscellaneous Records Maps in the Office of
the County Recorder of said Orange County, included within a strip of land 1.524 meters
wide, the southwesterly line of which is described as follows:
BEGINNING at the most northerly corner of Parcel 123 as described in an Irrevocable
Offer to Convey Easement to the County of Orange, recorded January 14, 1972 in Book
9966, Page 722 of Official Records in said Office of the Orange County Recorder;
thence al ong the northeasterly 1 i ne of sai d parcel South 49021' 05" East 83.454 meters
to the southeasterly 1 i ne of the 1 and descri bed in the Grant Deed to John M. Robertson
recorded March 2, 1962 in Book 6025, Page 580 of Offi ci a 1 Records in sai d Offi ce of the
County Recorder of Orange County;
Said strip of land shall be lengthened or shortened so as to terminate northwesterly
in the northwesterly line and southeasterly in the southeasterly line of said land of
John M. Robertson.
CONTAINING:
127.184 Square Meters, more or less.
Unless otherwise noted, all bearings and distances in this description are metric
ground based on the Cali forni a Coordi nate System, (CCC83) Zone VI NAD 1983 (1991.35
O.C.S. GPS Adjustment)
SUBJECT TO all Covenants, Rights, Rights-of-Way and Easements of Record.
EXHIBIT "B" attached and by thi s reference made a part hereof.
.9L~ .
Gregory A. Helmer, P.L.S. 5134
---- _...---
EXHIBIT 'B'
SKCfCH TO ),CC() ,fPANY ),
1£GJ.J. DESCRIPTION FOR
EDINGER A VENUE
PARCEL 10004
(SAMUEL I. RUSSELL TRUST.)
CONTAINING 127.102 SOU ARE METERS + -
JR ViNE'S
¡\JL R J ¡VL
BLOCK 10
SUBDiViSiON
1/ BB
LOT 85
SCALE= 1 :500
BOOK 8025, pe, 580, OJR,
,
',,- ~- '
SHEET 1 OF 1 SHEET
~ ~..'.' . ...,... ...~u~-
. . . -="=
CDN8UCTINm -.........".--
------- ---
RBF CONSULTING
14725 Alton Parkway
Irvine, California 92618
EXHIBIT "Ab
Revised November 7,2002
October 24, 2001
IN 10-034145.23
Page 1 of 2
LEGAL DESCRIPTION
EDINGER AVENUE
PARCEL 10004.1
TEMPORARY CONSTRUCTION EASEMENT
(SAMUEL I. RUSSELL TRUST)
That certain parcel of land situated in the City of Tustin, County of Orange,
State of California, being that portion of Lot 65, Block 10 of Irvine's
Subdi vi si on as shown on a map thereof filed in Book I, Page B8 of Mi sce 11 aneous
Records Maps in the Office of the County Recorder of said Orange County, included
within a strip of land 4.500 meters wide, the southwesterly line of which is
descri bed as fo 11 ows: .
COMMENCING at the most easterly corner of Parcel 105 as described in an Easement
Deed to the County of Orange, recorded March 19, 1962 in Book 6043, Page 396 of
Official Records in said Office of the Orange County Recorder, said corner being
in the southeasterly line of the I and descri bed in the Grant Deed to John M.
Robertson recorded March 2, 1962 in Book 6025, Page 580 of Official Records in
said Office of the Orange County Recorder;
thence along said southeasterly line North 40°38'30" East 4.572 meters to a line
parallel with 4.572 meters northeasteriy of the northeasterly line of said Parcel
105 and the TRUE POINT OF BEGINNING; ,
thence along said parallel line North 49°21'05" West 39.195 meters to ,a point
hereinafter referred to as Point "A";
, th.ence conti nui ng a long sai d parall ell i ne North 49°21' 05" West 44.260 meters to
the northwesterly line of said land of John M.Robertson.
Sa; d stri p of I and shall be I engthened or shortened southeasterly and
northwesterly so as to termi nate in said southeasterly and northwesterly lines
of the I and of John M. Robertson.
TOGETHER WITH a strip of land 15.657 meters wide, the southwesterly line of which
is described as follows:
.,-
._----- --,
RBF Consul ti ng
Edinger Avenue Parcel 10004.1
Temporary Construct; on Easement Page 2 of 2
(Samuel I. Russell Trust)
EXHIBIT "AU
Revised November 7. 2002
October 24. 2001
IN 10-034145.23
Page 2 of 2
BEGINNING at said Point "A";
thence North 49°21' 05~ West 12.000 meters.
Unless otherwise noted, all bearings and distances in this description are metric
ground based on the Ca 1 i forni a Coordi nate System, (CCC83) Zone VI NAD 1983
(1991.35 O.C.S. GPS Adjustment)
CONTAINING: 509.438 Square Meters (5484 Square Feet) more or less.
SUBJECT TO all Covenants, Rights, Rights-of-Way and Easements of Record.
EXHIBIT "B" attached and by thi s reference made a, part hereof.
.5.5329
- -- ------,,--
- ----~-------
------
EXHIBIT rBr
SKETCH TO ACCOMPANY A
LEGAL DESCRIPTION FOR
EDINGER AVENUE
PARCEL /0004./
TEMPORARY CONSTRUCTION EASEMENT
(SAMUEL I. RUSSELL TRUST.)
CONTAINING 509.438 SQUARE METERS +/-
iR ViNE'S
JYLRjYl
BL DGl( 10
dUBDiViSiDN
1/88
LD1 86
SCALE= 1 :500
BOOK 8025, peJ 580, OJRJ
--....------ -
- -----
-~---_. ---
PROOF OF SERVICE BY MAIL
2
STATE OF CALIFORNIA, COUNTY OF ORANGE
3 I am over the a~e of 18; I am employed by the CITY OF TUSTIN in the County of
Orange at 300 Centennial Way, Tustin, California, 92780-3767.
On March 17, 2003, I served the foregoing document(s) described as Notice of
5 Hearing Regarding Adoption of a Resolution of Necessity to Acquire Property by Eminent
Domain by placing true copies thereof enclosed in sealed envelope(s), as follows:
6
~ (BY MAIL) I placed said envelope(s) for collection and mailin.g, following
ordinary business practices, at the business offices of the CITY OF TUSTIN,
and addressed as shown on the attached service list, for deposit in the United
States Postal Service. I am readily familiar with the practice of the CITY OF
TUSTIN for collection and processin~ correspondence for mailin~ with the
United States Postal Service, and said envelope(s) will be deposited with the
United States Postal Service on said date in the ordinary course of business.
(BY FACSIMILE) I caused the above-referenced document to be transmitted
to the interested parties via facsimile transmission to the fax number(s) as
stated on the attached service list.
4
7
8
9
10
0
11
12
0
(BY OVERNIGHT DELIVERY) I placed said documents in envelope(s) for
collection following ordinary business practices, at the business offices of the
CITY OF TUSTIN, and addressed as shown on the attached service list, for
collection and delivery to a courier authorized by to receive
said documents, with delivery fees provided for. I am readily familiar with the
practices of the CITY OF TUSTIN for collection and processing of documents
for ovemight delivery, and said envelope(s) will be deposited for receipt by
on said date in the ordinary course of business.
13
14
15
16
17
18
0
(PERSONAL SERVICE) I delivered such envelope(s) by hand to the offices of
the addressee(s).
(ST A TEl I declare that I am employed in the office of the CITY OF TUSTIN at
whose áirection the service was made. I declare under penalty of pe~ury under
the laws of the State of California that the above is true and correct.
~
19
20
0
21
22
(FEDERAL) I declare that I am employed in the office of the CITY OF TUSTIN
at whose direction the service was made. I declare under penalty of pe~ury
under the laws of the United States of America that the above is true and
correct.
Executed on March 17, 2003 at Tustin, California.
23
24
25
26
27
28
----- -
CAW OF",CES
PALMIERI, TYLER. WIENER. WILHELM & WALDRON LLP
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City of Tustin
Mayor, and Member of City Council
300 Centennial Way
Tustin, CA 92780
Re:
Consideration of Resolution of Necessity for Acquisi~on of APN
430-252-09 Concerning the Edinger Avenue (Smart Street)
Widenin2 Project
Dear Mayor and Members of City Council:
This [mn represents the Russell property ownership. This letter is to be included
as part of the fonnal record.
The City has not shown that the DubHc interest and'necessity require
the Droiect.
1. There is no showing that this "last" segment of Edinger Avenue in Tustin is
required to be widened.
.
2. Improved traffic circulation. There is no showing that the level of service
at this last remaining segment of Edinger Avenue fails to provide adequate traffic
circulation or roadway capacity.
-----
-".u_--
PALMIERI. TYLER. WIENER. WILHELM & WALDRON LLP
City of Tustin
April 7,2003
Page 2
.
There is no showine: that the orooosed oroject is olanned and located in
a manner that will be most comoatible with the e:reatest oubHc e:ood
and the least orivate iniury.
1.
clearance.
This project is part of a larger project that has not received environmental
2. The statements made concerning APN 430-252-09 on page 4 of the Staff
Report are inaccurate in that the building improvement will be substantially impacted by
the proposed taking for the widening of Edinger Avenue. In fact, the City's own report in
the third paragraph relating to the property describes some of the substantial impacts to
the property, which according to the City include "(I) Remove the remaining portion of
the front truck loading well; (2) Install asphalt paving over the fonner truck well;
(3) widen the existing truck well along the northwesterly elevation of the building;
(4) remove the rear loading ramp/dock in order to provide additional automobile parking;
(5) install asphalt paving along the rear portion of the property; (6) restripe automobile
parking areas; and (7) reconfigure the chain link fencing.
3. The City has not shown that these impacts to the property are representative
of the least private injury. Moreover, it is understood by the property owner that the
City's own analysis demonstrates that the building is reduced in value, further
demonstrating the City's statement that the "building is not impacted," is inaccurate. The
inaccuracy of the statement impacts the City's consideration and purported adoption of
the Resolution ofNecessity.
.
The subject orooertv interests have not been shown to be necessary for
the orooosed oroiect.
I. The City has not shown that the property taken is to be used for the
protection or preservation of the "attractiveness, safety, and usefulness of the project" as
set forth in Code of Civil Procedure § 1240.120(a).
2. The City has not shown the date of the project plans which are "on file"
with the Director of Public Works of the City, and incorporated the date of those plans
into the Resolution of Necessity. The City has also not incorporated the plans themselves
along with the Resolution of Necessity. As such, the property owner is left in a position
to guess which "plans" the City refers to in its Resolution of Necessity .
--------
PALMIERI. TYLER. WIENER. WILHELM & WALDRON LLP
City of Tustin
April 7, 2003
Page 3
3. The City has not demonstrated whether some or "portions of the property
and interests therein hereafter described or being acquired as a 'remnant' pursuant to the
Code of Civil Procedure § 1240.410."
4. The City has not described and has not shown in its Staff Report which
portion or portions "of the property in interest therein hereinafter described or being
acquired for a 'compatible joint use' pursuant to Code of Civil Procedure § 1240.510."
5. The environmental review of the City is inaccurate and inadequate as the
City has engaged in project splitting which is prohibited under CEQA.
6. Conditions and statutory requirements necessary to exercise the power of
eminent domain to acquire the property described herein have not been complied with by
the City.
7, Edinger is currently at sufficient width to accommodate the number of
vehicles that use this route during peak periods. Accordingly, it does not appear that the
public interest and necessity require the improvements to Edinger as is being proposed by
the City. It is believed that the City may accomplish its purported objective through other
means, including restriping. Other means would reduce, if not eliminate, the takings
from the Russell property.
8. In addition, the portion of the take identified as "temporary construction
easement" fails for vagueness with regard to temporal scope and rights conferred.
.
The City is incapable of conductine a fair. leeal. and impartial hearine
on the proposed adoption of the Resolution of Necessity.
The City has already committed itself to the proposed improvements. to
Edinger as evidenced by numerous historic acts and at least one prior adoption of a
Resolution of Necessity to acquire property along Edinger in the immediate vicinity. The
City has also delayed this project for many years. Moreover, the City has admitted to
acquiring other properties along Edinger. Any hearing resulting in the adoption of the
Resolution of Necessity by the City would be a predetennined result.
,~-'--"-'
PALMIERI. TYLER. WIENER. WILHELM & WALDRON LLP
City of Tustin
April 7, 2003
Page 4
The proposed Resolution is therefore voidable. (Redevelopment Agencv v. Nonn's
Slauson (1985) 173 Ca1.App.3d 1121,1127.)
.
The Russells retain all rie:hts to seek compensation.
MHL:pr
cc:
Michael P. Russell
.,
---~--
~-----