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 CITY COUNCIL ITEM NO. 16

Meeting Date: April 12, 2005

Subject/Title: Adopt a Resolution to Determine Public Interest and Necessity, Require Acquisition of Certain Land Needed for Improvements to Walnut Boulevard and Authorize the Filing of an Eminent Domain Proceeding.

Submitted by: Engineering: B. Grewal, City Engineer
G. Richard Brown, Special Counsel

Approved by: Donna Landeros, City Manager


RECOMMENDATION
Adopt a Resolution of Necessity regarding the following actions: (1) make certain findings and determine that the pubic interest and necessity require acquisition of certain land needed for improvements to Walnut Boulevard, as set forth in the attached Resolution; and (2) authorize the filing of an eminent domain proceeding consistent with the Resolution of Necessity.

BACKGROUND
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. In this particular instance, the owner of the property is thought to be deceased and although diligent searches have been performed, his heirs/devisees have not been located. In an effort to notify the owner and heirs/devisees of the City Council meeting this evening, the City has published the notice in the Brentwood Press.

An eminent domain proceeding involves a "project" subject to California Environmental Quality Act ("CEQA"). The environmental determination on the Walnut Boulevard project was filed on June 13, 2003 and was determined to be categorically exempt by the California Department of Transportation. A copy of the exemption is on file at City offices.

As required by the eminent domain law, the City had an appraisal prepared for the subject property, also referred to as being a 194 square foot piece adjacent to Assessor's Parcel No. 012-100-007. Based on the appraisal, the City is prepared to offer any owner or heirs/devisees of Fred William Specht the amount of just compensation of five hundred dollars ($500.00). Since the owner or heirs/devisees cannot be located after reasonable diligent searches, the statutory offer has not been made, but the City is willing to make an offer if such owner or heirs/devisees are found through the publication of this meeting notice.

The following prerequisites need to be included in the Resolution of Necessity:
1) Statement of public use - in this case, the public use is for road right-of-way;
2) Property Description - A proper legal description and plat are attached;
3) Required 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 and located in a manner that will be most compatible with the greatest public good and least private injury;
c) subject property is necessary - that the subject property is necessary for the proposed project; and
d) compliance with Government Code section 7267.2(a) that the offer has been made to the record owner(s) or that the offer has not been made because the owner cannot be located with reasonable diligence.

HEARING
The 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, in this instance the subject property is not a proper legal parcel but a remnant and does not appear on the county's assessment roll. The subject property was excluded from the last grant deed recorded November 30, 1927 in Book 115, Page 175 of the Official Records, County of Contra Costa between Fred William Specht and Ruth Grace Specht conveying the original Lot to M.A. Kincaid and Eula Kincaid.

The amount of compensation for the subject property is not a proper subject of discussion during this hearing.

The City caused the notice of intent to adopt the Resolution of Necessity to be published in the Brentwood Press at least 15 days prior to the hearing on this matter. A copy of said notice is attached hereto as Exhibit A.

Attachments:
Exhibit A - Notice of Intent of Adoption of a Resolution of Necessity - published in the Brentwood Press
Resolution

NOTICE OF HEARING REGARDING THE INTENT OF THE CITY OF BRENTWOOD CITY COUNCIL TO ADOPT A RESOLUTION OF NECESSITY TO ACQUIRE PROPERTY BY EMINENT DOMAIN (APN: adjacent to APN 012-100-007)

TO: FRED WILLIAM SPECHT, or his heirs and devisees, owners of certain real property located in the City of Brentwood, County of Contra Costa, State of California, also identified as a 194 square foot piece adjacent to Assessor's Parcel No. 012-100-007;
Pursuant to the provisions of Section 1245.235 of the Code of Civil Procedure, State of California:
NOTICE IS HEREBY GIVEN THAT on April 12, 2005 at 7:00 p.m., in the chambers of the City Council, 734 Third Street, Brentwood, California, the City Council of the City of Brentwood 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 the real property described as a 194 square foot piece of land adjacent to Assessor's Parcel No. 012-100-007, as set forth in the legal description and plat below and incorporated herein by reference, for maintaining certain improvements to Walnut Boulevard, and related purposes, including maintenance of a public road and all necessary utilities (the "Project").
The City will consider a resolution which will establish that:
(a) The public interest and necessity require the proposed Project;
(b) The proposed Project is planned and will be located in the manner that will be most compatible with the greatest public good and the least private injury;
(c) The Property is necessary for the proposed Project; and
(d) The offer required by Section 7267.2 of the Government code has not been made to the owner(s) of record because those owner(s) cannot be located.
If you have an interest in the property described below, you have a right to appear and be heard before the City Council of the City of Brentwood at the above-scheduled hearing and have the City Council give appropriate consideration of your testimony prior to deciding whether or not to adopt the proposed Resolution of Necessity. You have a right to be heard on the matters set forth in (a), (b), (c), and (d) above. Failure to file a written request to be heard within fifteen days after this notice is published will result in a waiver of your right to appear and be heard. You must file your request to be heard at 150 City Park Way, Brentwood, California. Failure to appear and be heard on the date set forth above will result in a waiver of such rights.
If you have any questions about this matter, you may contact Amber Hyman of McDonough Holland & Allen, PC at (916) 444-3900.
DATED: March 14, 2005


Cynthia Garcia
Interim City Clerk, City of Brentwood

LEGAL DESCRIPTION OF ACQUISITION PIECE

[INSERT LEGAL]

PLAT TO ACCOMPANY LEGAL DESCRIPTION

[INSERT PLAT]

RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD
DECLARING THE PUBLIC NECESSITY FOR THE TAKING OF CERTAIN PROPERTY
FOR CONSTRUCTION, INSTALLATION AND MAINTENANCE OF CERTAIN IMPROVEMENTS TO WALNUT BOULEVARD AND DIRECTING THE FILING OF AN EMINENT DOMAIN PROCEEDING TO ACQUIRE NECESSARY PROPERTY
(CODE CIV. PROC. § 1245.230)

WHEREAS, the City of Brentwood has constructed, installed, and maintained certain improvements to Walnut Boulevard, including the installation and maintenance of a pubic road and all necessary utilities (the "Project"), which affects a 194 square foot piece of property also known as being adjacent to Assessor's Parcel No. 012-100-007, in the City of Brentwood, Contra Costa County, California (the "Property"); and

WHEREAS, the City and its agents after a diligent search for the owner(s) of the property were unsuccessful in locating Fred William Specht or his heirs and devisees; and
WHEREAS, the City published a notice of intent of adoption of a resolution of necessity in the Brentwood Press at least 15 days prior to April 12, 2005; and
WHEREAS, by publishing the notice of intent to adopt the resolution of necessity, the owners were given the reasonable opportunity for a hearing before the City Council on April 12, 2005 pursuant to section 1245.235 of the Code of Civil Procedure, State of California; and
WHEREAS, the City Council adopts this resolution in compliance with Section 1245.230 of the Code of Civil Procedure.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF BRENTWOOD HEREBY RESOLVES AS FOLLOWS:

SECTION 1. The Property to be acquired is for the construction, installation and maintenance of certain improvements to Walnut Boulevard and related purposes, including the installation and maintenance of a public road and all necessary utilities.

The City is authorized to acquire property for the Project pursuant to, among others, the following statutes: Government Code section 37350.5.

SECTION 2. The general location and extent of the Property to be acquired is as set forth in the legal descriptions attached hereto as Exhibit A and accompanying map attached hereto as Exhibit B, and incorporated herein by reference.

SECTION 3. The City Council declares that it has found and determined as follows:

a. The public interest and necessity require the proposed Project;
b. The proposed Project is planned and located in the manner that will be most
compatible with the greatest public good and the least private injury;
c. The Property described in Exhibits A and B is necessary for the proposed
Project;
d. The offer of just compensation required by Government Code Section 7267.2 has not been made to the owners of record of the Property because despite reasonably diligent efforts, the City was unable to locate the owner(s) of the property;
e. All conditions and statutory requirements necessary to exercise the power of eminent domain 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.

SECTION 4. The Interim City Attorney is hereby AUTHORIZED and EMPOWERED:

a. To acquire in the name of the City of Brentwood, by condemnation, fee title interest in the Property described in Exhibits A and B, attached hereto and incorporated herein by this reference, in accordance with the provisions of the California Eminent Domain Law;
b. To prepare or have prepared and to prosecute in the name of the City of Brentwood such proceedings in the proper court as are necessary for such acquisition;
c. To deposit the probable amount of compensation, based on an appraisal, and to apply to said court for a final order of condemnation giving all right, title and interest in said Property to the City of Brentwood for the uses described in this Resolution.

PASSED APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting on the 12th day of April 2005 by the following vote:

 

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