HomeMy WebLinkAboutCC RES 05-87
RESOLUTION NO. 05-87
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 PHASE I OF THE
NEWPORT AVENUE EXTENSION, STATE ROUTE 55
NORTHBOUND RAMP RECONFIGURATION, VALENCIA
AVENUE AND DEL AMO AVENUE WIDENING PROJECT
(CIP NO. 7130) AND DECLARING THE PUBLIC
CONVENIENCE AND NECESSITY THEREOF.
[TEMPORARY CONSTRUCTION EASEMENTS 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 Phase I of the Newport Avenue Extension,
State Route 55 Northbound Ramp Reconfiguration, Valencia Avenue and Del Amo
Avenue Widening Project ("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 reconfiguring, extending and widening the street system in compliance with
the City's General Plan, including but not limited to property to be used for the protection
of 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 temporary
construction easements in certain real property located at 15471:t Del Amo Avenue
(APN 430-251-001, 430-251-002, 430-251-003, 430-251-007, and 430-251-008) and
located at 15171 Del Amo Avenue (APN 430-251-006 and 430-251-011); and
WHEREAS, the City previously adopted Resolution No. 03-62, and filed an
action in eminent domain ("Eminent Domain Action") to acquire fee interests and
temporary construction easements in the real property referenced above; and
WHEREAS, counsel for the owner of the real property referenced above filed a
motion in the Eminent Domain Action to have the temporary construction easements
declared takings "in fee" (the "Motion"); and
Resolution No. 05-87
Page 1 of 5
WHEREAS, pursuant to a similar motion by identical counsel in another pending
City of Tustin eminent domain action (the "Other Action"), the trial judge determined that
the legal description of a "temporary construction easement" did 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 was, therefore, a fee interest; and
WHEREAS, prior to this ruling in the Other Action, counsel for the property owner
took the Motion off calendar in the Eminent Domain Action, but is likely to renew the
motion unless the City's intentions are clarified; and
WHEREAS, it is necessary to clarify the term and scope of the proposed
temporary construction easements by an Amended Resolution of Necessity; and
WHEREAS, except as Amended herein, Resolution No. 03-62 remains in full
force and effect; and
WHEREAS, City is authorized to acquire the parcel(s) described in Appendix A
together with maps and descriptions of the term and use of the temporary construction
easements, 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 by
this Amended Resolution consist of portions of seven (7) assessor parcels and all are
located within the territorial limits of City and generally located on the west side of Del
Amo Avenue between Edinger Avenue and Valencia Avenue and east of the SR-55
Freeway; 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
Resolution No. 05-87
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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 December 9, 2002, the Planning Commission of City, pursuant to the provisions of
the Government Code section 65402 found that the proposed location, purpose, and
extent of the project is consistent with the City's General Plan; and
WHEREAS, on May 5, 2003 the City Council approved Final Environmental
Impact Report 90-1 as revised by Final Supplement #1 as adequate for the Project (CIP
No. 7130) pursuant to Public Resources Code section 21000, et seq., the California
Environmental Quality Act ("CEQA"), and approved the Project (adopting findings, a
Statement of Overriding Considerations, and a Mitigation Monitoring and Reporting
Program), and on May 6, 2003 the City filed a Notice of Determination under CEQA with
the County Clerk of the County of Orange, California; and
WHEREAS, on July 14, 2005, there was mailed a Notice of Hearing of the intent
of City Council to Adopt an Amended Resolution of Necessity for acquisition by eminent
domain of the real property described in Appendix A to this Amended Resolution of
Necessity, which Notice of Hearing is attached hereto as Appendix B and is
incorporated herein by this reference. The Notice of Hearing was mailed to all persons
whose names appear on the last equalized County Assessment Roll as having an
interest in the property described in Appendix A to this Amended Resolution of
Necessity, and to the address appearing on the Roll. The Notice of Hearing advised
those persons of their right to be heard on the matters referred to therein and as of 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 August 1, 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 August 1,
2005 at the time and place stated therein, and all interested parties were given an
opportunity to be heard. The hearing was closed.
Resolution No. 05-87
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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 Appendix 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 hereto
AUTHORIZED and EMPOWERED:
a.
To acquire in the name of City, by condemnation, the property described
Appendix A, in accordance with the provisions of the California Eminent
Domain Law and the California Constitution;
b.
To acquire Temporary Construction Easements as described in Appendix
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 Appendix C.
Resolution No. 05-87
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PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Tustin on the 1st day of August 2005.
LO':i!: I ~
Mayor
ATTEST:
P~
City Clerk
STATE OF CALIFORNIA)
COUNTY OF ORANGE)
CITY OF TUSTIN )
SS
I, Pamela Stoker, City Clerk and ex-officio Clerk of the City Council of the City of Tustin,
California, do hereby certify that the whole number of the members of the City Council of
the City of Tustin is five; that the above and foregoing Resolution No. 05-87 was duly
passed and adopted at a regular meeting of the Tustin City Council, held on the 1st day of
August, 2005, by the following vote:
COUNCILMEMBER AYES:
COUNCILMEMBER NOES:
COUNCILMEMBER ABSTAINED:
COUNCILMEMBER ABSENT:
BONE, DA VERT, AMANTE. HAGEN, KAWASHIMA
NONE
NONE
NONE
(5)
(0)
(0)
(0)
PA~~~
C!TY CLERK
Resolution No. 05-87
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