HomeMy WebLinkAboutCC RES 05-81
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
Resolution No. 05-81
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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
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.
Resolution No. 05-81
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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 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.
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).
Resolution No. 05-81
Page 3 of 10
SECTION 5. All conditions and statutory requirements necessary to exercise the
power of eminent domain ("the right to take") to acquire the property described herein
have been complied with by City.
SECTION 6. The City Attorney or Special Legal Counsel, Hahn & Hahn, is
hereby AUTHORIZED and EMPOWERED:
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";
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.
ATTEST:
¡{2 ¡!, .
LOU BONE 't3!:(..
Mayor
. {/f!æ!/uz ?!lvlf/f 1:-'
¡jv>PAMELA STOKER
City Clerk
Resolution No. 05-81
Page 4 of 10
STATE OF CALIFORNIA)
COUNTY OF ORANGE) SS
CITY OF TUSTIN )
I, Pamela Stoker, City Clerk and ex-officio Clerk of the City Council of the City of Tustin,
California, do hereby certify that the whole number of the members of the City Council of
the City of Tustin is five; that the above and foregoing Resolution No. 05-81 was duly
passed and adopted at a regular meeting of the Tustin City Council, held on the 5th day of
July, 2005, by the following vote:
COUNCILMEMBERAYES: BONE, DAVERT, AMANTE, HAGEN, KAWASHIMA
COUNCILMEMBER NOES: NONE
COUNCILMEMBER ABSTAINED: NONE
COUNCILMEMBER ABSENT: NONE
(5)
(0)
,0)
(0)
ßærlØt' /CI/vl ~y:;{>/
'JY PAMELA STOKER ~
City Clerk
Resoiution No. 05-81
Page50f10
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 1 05 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:
Resoiution No. 05-81
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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
C.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.
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.
Resolution No. 05-81
Page 7 of 10
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Lor 85
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BooK 8025, Fa 580, ŒR,
EXHIBIT "B"
SKITCH TO ACCOMPANY A
L£GAL O£SCRIPTION FOR
[DINGER AVENUE
PARCa 10004.1
TEMPORARY CONSTRUCTION EASEMENT
CONTAINING 509.438 SQUARE METERS +/-
Resolution No. 05-81
Page8of10
EXHlliIT C
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DON MIKE ANTHONY, State Bar No. 34878
TODD R. MOORE, State Bar No. 193303
HAHN & HAHN LLP
NINTH FLOOR
301 E. COLORADO BOULEVARD
PASADENA, CALIFORNIA 91101-1977
Telephone: (626) 796-9123
Facsimile: (626) 449-7357
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Attorneys for Plaintiff CITY OF ruSTIN, a municipal corporation
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF ORANGE
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CITY OF TUSTIN, a municipal corporation,
Plaintiff,
Mary Fingal Erickson
WII
CASE NO. 03CC06743
Judge:
Department:
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vs.
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DELMAS JACKSON, etc., et aI.,
Defendants.
NOTICE OF PARTIAL ABANDONMENT
[Code Civ. Proc. §1268.519(a)]
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Trial Date: August 27,2005
Complaint FiJed: May 14, 2003
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TO DEFENDANTS AND TO THEIR ATTORNEYS OF RECORD:
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NOTICE 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 detennines that the adoption of
said Resolution of Necessity constituted authorization for Plaintiff to acqwre a fee simple interest
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in Parcel 1004.1, Plaintiff abandons the condemnation of a fee simple interest in said parcel,
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effective July 5, 2005.
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II
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II
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DMA\,.,.9\"j,OJ'.DOC Im,.'J!
NOTICE OF lIWSill9«oilltllNO&lllltlENT
Page90f10
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2 DATED: July 6,2005
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DMA\99999~OJ,OJ!.DOC [233992.3J
Resolut n No. 05-81
P¡¡ge Lof1Q
HAHN & HAHN LLP
By:
Don Mike Anthony
Attorneys for Plaintiff CITY OF TUSTIN, a
mWlicipal corporation
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NOTICE OF PARTIAL ABANDONMENT