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Meeting Date: February 8, 2005

Subject/Title: Determine Public Interest and Necessity, Require Acquisition of Certain Land
Needed for O’Hara Road 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: Donna Landeros, City Manager

Approve a Resolution approving the following actions: (1) make certain findings and determine that the Public Interest and Necessity require acquisition of certain land needed for O’Hara Road Right of Way, as set forth in the attached Resolution of Necessity; and (2) authorize the filing of an eminent domain proceeding consistent with the Resolution of Necessity.

Eminent domain is the power of government to take private property for a public purpose without the owner’s consent. Normally, 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 restrains 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 section 1230.010 through section 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 the other with full knowledge of all the uses and purposes for which the property is reasonably adaptable and available.” C.C.P. §1263.320.

Public improvements, such as the proposed O’Hara Road project, are common functions of city government. Public projects typically require the acquisition of privately owned land. If the City and the private landowner can negotiate a fair price for the land needed by the City, the property would be conveyed to the City by a deed. In this case, due to the restrictions of Government Code section 1090, the City and the owners, Doug and Annette Beckstrand, could not complete the negotiations for the purchase of the needed property. Either 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, to the owner’s remaining property.

Cities are required to “make every reasonable effort to acquire expeditiously real property by negotiations.” When this cannot be completed to both parties’ satisfaction, as in this case due to statutory limitations of Government Code section 1090, the purchase must be resolved by eminent domain proceedings.

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. In this case, the environmental determination was filed and made by the City General Plan EIR and the EIR for S&S Farms’ project.

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 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 owners of record could not be accepted as it is the City Attorney’s opinion that they could not accept the City offer and that the City must file an eminent domain action in order to comply with the adopted General Plan and its roadway network, including O’Hara Road alignment, and to provide safe access to the homeowners of recently approved residential subdivisions on O’Hara Road.

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 re-file, but the property owner would be entitled to litigation costs.

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;
2) Property Description—Appendix 1 must describe the area to be condemned; and
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 provide a 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 the notice of intent to adopt the resolution of necessity to the persons listed in the Notice. A copy of the Notice is attached 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.)

Exhibit A -- Notice of Intent to Adopt Resolution of Necessity



WHEREAS, the recently updated City of Brentwood General Plan designates O’Hara Avenue as a major north south route that would be improved and extended from Second Street to the City’s northern boundary with the City of Oakley; and

WHEREAS, the City of Brentwood has approved various residential subdivisions that require O’Hara Avenue access in order to provide appropriate public safety and access to the residents of these subdivisions; and

WHEREAS, the current owners of one of the parcels needed for the O’Hara Avenue right of way project is subject to conflict-of-interest as provided by Government Code §1090, and the owners cannot grant the needed O’Hara Avenue right of way without violating Government Code §1090.

NOW, THEREFORE BE IT RESOLVED that the City Council finds, determines, declares and resolves by vote of two-thirds or more of its current members the following:

1. The City of Brentwood intends to construct the O’Hara Avenue project, as described in the General Plan EIR, incorporated herein by this reference (the “Project”), a public use, and, in connection therewith, acquire interests in certain real property. Said Project is for a public use, road right of way, which is a function of a general law city.

2. The City of Brentwood intends to construct the Project that includes the acquisition of needed right of way from the subject property owners and the construction of O’Hara Avenue from Second Street north to the City’s northern limits with the City of Oakley in order to facilitate access to the residential subdivision and other proposed developments in the area, as identified in the City of Brentwood General Plan update 2001, and any related improvements to carry out and make effective the principal purpose pursuant to Code of Civil Procedure §1240.120(a), and, in connection therewith, acquire interests in certain real property owned by the Property Owners, as described in Appendix 1. Said public use, acquisition of public street right of way, is a function of the City of Brentwood.

3. The City of Brentwood is authorized to acquire the parcel described in Appendix 1 herein 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 §1230.010 et seq. and pursuant to Government Code §37350.5 in particular.

4. The Property to be acquired consists of a parcel and is generally located along the western portion of the parcel owned by the Property owners, who are described in Appendix 2 (“Property Owners”). The property to be acquired is more particularly described in Appendix 1, attached hereto and incorporated herein by reference together with a map thereof.

5. On January 12, 2005, there was mailed by regular U.S. Mail and via Certified Mail a Notice of Hearing to the Property Owners on the Intent of City of Brentwood City Council to Adopt a Resolution of Necessity for acquisition by eminent domain of the real property described in Appendix 1 herein, which Notice of Hearing is attached hereto as Appendix 3 and is incorporated herein by this reference. Said 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 1, at the address appearing on said Roll. Said Notice of Hearing advised said persons of their right to be heard on the matters referred to therein on the date and at the time and place stated therein.

6. The hearing set out in said Notice of Hearing was held on February 8, 2005 at the time and place stated therein, and all interested parties were given an opportunity to be heard. The hearing was closed.

7. Based upon the evidence presented and its record, this City of Brentwood City Council by vote of two-thirds or more if its current 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 most compatible with the greatest public good and the least private injury;
c. The Property, described herein in Appendix 1, is necessary for the proposed Project;
d. The offer required by §7267.2(a) of the Government Code, together with the accompanying statement of and summary of the basis for the amount established as just compensation, was made to the Owners of record, which offer and accompanying statement/summary were in a form and contained all of the factual disclosures provided by Government Code §7267.2(a);
e. 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 the City of Brentwood; and
f. The City of Brentwood has fully complied with all provisions of the California Environmental Quality Act for the Project.

8. The City Attorney is hereby AUTHORIZED and EMPOWERED:

a. To acquire in the name of the City of Brentwood, by condemnation, the Property described in Appendix 1, attached hereto and incorporated herein by this reference in accordance with the provisions of the California Eminent Domain Law and the Constitution of California;
b. To acquire the Property in fee simple absolute unless a lesser estate is described in Appendix 1, herein;
c. To prepare or have prepared and to prosecute or to retain counsel to prosecute in the name of the City of Brentwood such proceedings in the proper court as are necessary for such acquisitions; and
d. To deposit the probable amount of compensation, based on an appraisal, and to apply to said court for an order permitting the City of Brentwood to take immediate possession and use of said Property for said public uses and purposes.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the 8th day of February, 2005 by the following vote:


Brian Swisher

Karen Diaz, CMC
City Clerk/Administrative Services Director

City Administration
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