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Meeting Date: November 26, 2002 

Subject/Title: Adopt Environmental Documents, Determine Public Interest and Necessity
Require Acquisition of Certain Land Needed for Shady Willow Right of Way,
and Authorize the Filing of an Eminent Domain Proceeding 

Submitted by: Engineering: B. Grewal, City Engineer
Dennis Beougher, City Attorney

Approved by: John Stevenson, City Manager

Approve a Resolution approving the following actions: (1) adopt the Mitigated Negative Declaration for the Shady Willow Lane project, as attached to this staff report; (2) make certain findings and determine that the Public Interest and Necessity require acquisition of certain land needed for Shady Willow Right of Way as set forth in the attached Resolution of Necessity; and authorize the filing of an eminent domain proceeding consistent with the Resolution of Necessity. The Resolution adopting the Mitigated Negative Declaration for the Shady Willow Lane project must be adopted before the Resolution of Necessity, because one of the prerequisites to adopting the resolution of necessity is completion of the environmental process.

Eminent domain is the power of government to take private property for a public purpose without the owner’s consent. The power of eminent domain is invoked only after every effort is made to acquire the property through negotiations. The power of eminent domain is inherent in governmental sovereignty. It precedes the Constitution and is not constitutionally conferred. However, this inherent power of government to take private property is restrained by the Constitution. The only restrain imposed by the California Constitution are that the taking must be for a public use and that just compensation be paid.

The measure of just compensation has been defined in the Code of Civil Procedure (commencing at 1230.010 through 1273.050) as fair market value or “the highest price on the date of valuation that would be agreed to by a seller, being willing to sell but under no particular or urgent necessity for so doing, not obliged to sell, and a buyer, being ready, willing, and able to buy but under no particular necessity for so doing, each dealing with other with full knowledge of all the uses and purposes for which the property is reasonably adaptable and available.” 

Public improvements, such as the proposed Shady Willow Lane project, are common functions of city government. Public projects typically require the acquisition of privately owned land. Normally the City and the private landowner have been able to negotiate a fair price and the land needed by the City would be conveyed to the City by a deed. In this case, due to current litigation, the City and record owner could not complete the negotiations for the purchase of the needed property. No matter by negotiations or eminent domain, the City has a constitutional duty to pay just compensation, which has been interpreted to mean a fair market value as well as any severance damages, if any, to the owner’s remaining property.

As an eminent domain proceeding involves a “project” subject to California Environmental Quality Act (“CEQA”), the City must also comply with regulations related to CEQA. Therefore, the Resolution adopting the Mitigated Negative Declaration for the Shady Willow Lane project must be adopted before the Resolution of Necessity.

Staff has reviewed the proposed project environment documents entitled “Proposed Mitigated Negative Declaration and Initial Study Prepared for the Construction of a Portion of Shady Willow Lane, November 2002,” (“MND”) attached to this report and incorporated herein by this reference. Staff has found that the documents are congruent with the proposed project and recommends that the Council approve the attached Resolution adopting the MND.

The City is proposing to acquire in fee a total area of 3.80 acres (165,604 sf) from the eastern and northeastern sides of the subject property for the construction of Shady Willow Lane. The portion required for Shady Willow Lane contains 3.57 acres (155,509 sf). This area is for a road way 140 feet wide, and 1,426 feet long (.27 miles). In addition to the right of way for Shady Willow Lane, a smaller feeder road will be built near the northeast corner of the property to provide access for the property east of the subject. This portion of the connecting road will occupy .23 acre (approximately 10,019 sf). This access road will be 118.6 feet long by 66 feet wide.

These takings will leave approximately .79 acre (approximately 34,412 sf) in area. These are parcels of land [four (4)] left over after the partial taking that will be separated from the main body of the Subject Property. Two of these parcels will be either too small or too narrow to be of any economic value to the original parcel. The other two parcels are not commercially zoned (as the remainder of the larger parcel is) nor are these parcels useful for commercial use and therefore are being acquired.

The proposed Shady Willow Lane project is in the interest of the public as the proposed alignment was chosen to cause the least disruption to private property interests by attempting to follow existing property boundaries yet provide a safe north/south major arterial route.

Northwest Quadrant
The City Council recognized that, due to its proximity to the Highway 4 Bypass, the Northwest Quadrant of the City was the key to job creation, increased retail sales taxes, improved economic benefits, and would provide the infrastructure needed to improve and protect the public health, safety and welfare of its citizens.

Shady Willow Lane is a key component in the City’s northwest quadrant development strategy as it provides a major north/south connector street generally running parallel to the Highway 4 Bypass. Shady Willow Lane in conjunction with improvements to Lone Tree Way, Empire Avenue, and Fairview Avenue comprise the major road/circulation element necessary to support the planned and desired growth in this quadrant.

Since July, 2001, eleven projects in the Northwest Quadrant exemption area, totaling 1587 units, have received discretionary approval. Another five projects also in the Northwest Quadrant exemption area, totaling 1005 units, are currently being processed. The remainder of the residentially zoned land in the Northwest Quadrant exemption area could generate another 744 units at mid-range build-out. Thus far, nearly 2600 units have been approved or proposed in order to facilitate and pay for the needed infrastructure; such as Shady Willow Lane, in the Northwest Quadrant area.

Before the City Council could adopt a Resolution of Necessity, the City must complete an initial appraisal of the property that would be subject to the eminent domain proceeding and also negotiate in good faith with the property owner based upon the appraisal. The City also is required to make an offer to the owner of record for the full amount of the initial appraisal prior to the initiating negotiations for the acquisition of the property and prior to the adopting the resolution of necessity. All these actions have been completed. Although the City Council must find and determine that the required offer has been made, the amount of compensation to be paid to the property owner is not an appropriate subject for consideration at this hearing.

The City’s offer to the owner of record was rejected due to the owner of record being a defendant in a lawsuit (Woodside Homes of California v. Louis Andrade, et al., Contra Costa County Superior Court, Case No. C01-04453). It was the position of the property owner and their attorney that they could not accept the City offer, given the current status of the litigation. The City must file an eminent domain action in order to comply with the adopted General Plan for Shady Willow Lane and its roadway network and to provide safe access to the homeowners of a recently approved residential subdivision, east of the Shady Willow Lane right of way and due to property owners’ rejection of City’s purchase offer.

The City cannot exercise eminent domain until it has adopted a valid resolution of necessity. Where the right to take is successfully challenged because of a defective resolution of necessity, the applicable statute provides for the dismissal or conditional dismissal of the proceeding. The City can correct any defect and refile, but the property owner would be entitled to litigation costs and the project would be delayed.

The resolution of necessity must contain the following:

1) Statement of Public Use—In this case, the public use is for road right of way. For certain special authorization, the resolution must also state the authorizing section, as in this case, for uneconomic remnant (C.C.P. §1240.420); and 
2) Property Description—Appendix 1 described the area to be condemned.
3) Required Findings—The City Council is required to make the following findings:

a) public interest and necessity—that the public interest and necessity require the proposed project;
b) most compatible with the greatest public good and least private injury--that the proposed project is planned or located in a manner that will be most compatible with the greatest public good and the least private injury;
c) subject property is necessary—that the subject property is necessary for the proposed project; and 
d) compliance with Government Code §7267.2(a) offer—that the Government Code §7267.2(a) offer has been made to the record owner.
City is required to notice of intent to adopt the resolution of necessity and reasonable opportunity to be heard to “each person whose property is to be acquired by eminent domain and whose name and address appears on the last equalized county assessment roll…” However, as discussed above, the amount of compensation is not a proper subject of discussion at this time. The City sent notice of intent to adopt the resolution of necessity to the persons listed in Notice, attached here to this staff report as Exhibit A.

The statutes concerning eminent domain further require that “engage in good faith and judicious consideration of the pros and cons of the issue and … the decision to take must be buttressed by substantial evidence of the existence of the three basic requirements…” (The three basic requirements are (1) public interests and necessity require the project; (2) project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury; and (3) property sought to be acquired is necessary for the project.)

The resolution of necessity must be adopted by a “vote of two-thirds of all the members of the governing board….” Therefore as the City Council is a five-member body the resolution must be adopted by four affirmative votes (two-thirds of all members). Therefore if there were only four members present or able to vote, the resolution must be adopted by a unanimous vote. 

Mitigated Negative Declaration—Shady Willow Lane project
Resolution Adopting Mitigated Negative Declaration
Exhibit A—Notice of Intent to Adopt Resolution of Necessity
Resolution of Necessity



WHEREAS, the recently updated 2001 City of Brentwood General Plan designates Shady Willow Lane as a major north south arterial route that would be improved and extended from Lone Tree Way to Sand Creek Road; and

WHEREAS, the City of Brentwood has approved various residential subdivisions that require Shady Willow Lane access in order to provide appropriate public safety and access to the residents of these subdivisions; and

WHEREAS, the environmental effects of this proposed action have been addressed in an Mitigated Negative Declaration and all potentially adverse impacts have been conditioned to render the impact to a level of less than significant; and 

WHEREAS, a duly noticed public hearing was advertised in the Ledger-Dispatch on November 15, 2002 and mailed to property owners within 300 feet of the project site as required by City ordinance and Government Code Section 65090; and

WHEREAS, the City Council held a public hearing on the proposed action concerning the construction of the Shady Willow Lane project on November 26, 2002, and for the purpose of reviewing said request and considering all comments made by the public testimony with respect to this road construction project; and

WHEREAS, after the close of the public hearing, the City Council considered all public comments received both before and during the public hearing, staff’s presentation, the staff report, which includes an analysis of the consistency of the proposed project with the goals and policies of the General Plan and all other pertinent documents regarding the proposed project; and

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Brentwood hereby directs staff to file the Notice of Determination and hereby adopts the mitigated Negative Declaration prepared for the construction of the Shady Willow Lane project.

PASSED AND ADOPTED by the City Council of the City of Brentwood at its regularly scheduled meeting on the 26th day of November 2002 by the following vote:

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