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CITY COUNCIL AGENDA ITEM NO. 15

Meeting Date: May 22, 2007

Subject/Title: Consideration of a Resolution of Necessity to acquire property for the Adams Lane Extension Project from Carol L. Shaver.

Prepared by: Marie Sullivan, Right of Way Specialist
Submitted by: Bailey Grewal, Director of Public Works/City Engineer



RECOMMENDATION
Adopt a Resolution determining that the public interest and necessity require the acquisition of certain land owned by Carol L. Shaver, at the site of the City’s proposed Adams Lane Extension Project, and directing the filing of eminent domain proceedings.

PREVIOUS ACTION
On September 13, 2005, by Resolution No. 2005-227, City Council approved Vesting Tentative Subdivision Map No. 8954 with Conditions of Approval and approved the Mitigated Negative Declaration for the project. Condition Nos. 33, 35 & 47 required the Developer to acquire right of way, install a traffic signal system and design and construct Anderson Lane, renamed Adams Lane.

On May 23, 2006, by Resolution No. 2006-126, City Council adopted the 2006/07 – 2010/11 Capital Improvement Program (CIP), that included the proposed Adams Lane Extension (Developer) project.

On October 10, 2006, by Resolution No. 2006-242, City Council approved and authorized the City Manager to execute an Agreement between Suncrest Homes (“Developer”) and the City of Brentwood for the acquisition of certain real property for street and other public purposes required for the Adams Lane Extension project.

BACKGROUND
Adams Lane (Anderson Lane) is a part of the Circulation Element of the City’s General Plan – 2001 Update (Roadways Map attached). This proposed portion of Adams Lane, across subject property, is outside the City limits. Under the Streets and Highways Code § 1810, Contra Costa County has consented to the City of Brentwood to proceed with right-of-way acquisition in the unincorporated area for the purposes of connecting the City streets for an extension of Adams Lane. When the property was subdivided by Parcel Map MS No. 188-69, through the County, it was approved with Condition No. 5: “Parcel D to be revised to a pan-handle lot extending to Lone Tree Way, with a north-south future road delineated on Parcel D with a note that dedication and improvements to be required with any development of Parcel D.”

The City of Brentwood is vested with the power of eminent domain to acquire real property by virtue of Article I, Section 19 of the Constitution of the State of California and by Government Code Sections 37350.5, 37353(a), and 40404, and Code of Civil Procedure Sections 1240.010, 1240.020, 1240.030, 1240.040, 1240.050, 1240.110, 1240.120, 1240.510 and 1240.610.

Eminent domain is the power of government to take private property for a public purpose. 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 taking must be for a public use and 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 obligated to sell, and a buyer, being ready, willing, and able to buy but under no particular necessity for so doing, each dealing with each 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 Adams Lane Extension project, are common functions of city government. Public projects typically require the acquisition of privately owned land. The City and the private landowner have often been able to negotiate a fair price for property needed for public improvements and the land needed by the City would be conveyed to the City by a Deed. In this case, the City has not been able to negotiate just compensation with the private landowner and City Council is being requested to authorize the acquisition by eminent domain of a portion of 8001 Lone Tree Way, owned by Carol Shaver for the construction of Adams Lane.

DISCUSSION
Adams Lane is proposed to consist of a two lane residential collector roadway with sewer and water lines, approximately 2,600 feet in length, from the intersection of Anderson Lane and Lone Tree Way south to Grant Street. This project was incorporated into the Developer’s Conditions of Approval for Prewitt Ranch and is proposed to include installing a traffic signal system and the construction of the bridge over the Flood Control right-of-way and the slab over the East Bay Municipal Utility District (“EBMUD”) right-of-way. The construction of Adams Lane would improve traffic flow in the central annexed area of the City, especially around the Marsh Creek Elementary School. The Developer was unable, by negotiation, to acquire the necessary right-of-way. The Developer has requested the City to acquire the right-of-way. The Developer has entered into a Right of Acquisition Agreement with the City for this purpose.

The extension of Adams Lane (formerly known as the extension of Anderson Lane) was addressed through the Mitigated Negative Declaration of the Prewitt Ranch project, dated July 2005 and approved by the City Council on September 13, 2005, by Resolution No. 2005-227. In addition, the Negative Declaration for the City of Brentwood’s 2006/07 – 2010/11 Capital Improvement Program (CIP) included the proposed Adams Lane Extension and the CEQA specifically calls out the extension of Adams Lane (formerly the extension of Anderson Lane).

Before the City Council can 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 make an offer to the owner of record for the full amount of the initial appraisal. All these actions have been completed. An appraisal of this property has been performed by an independent appraiser and reviewed by legal counsel for the City. On April 12, 2007, the City’s outside legal counsel made an offer to purchase the required property for the full amount of the appraisal, as required by Government Code Section 7267.2, which amount is $62,153.00. The property owner has elected not to respond to the City’s offer to purchase.

If the City is authorized to proceed with eminent domain or acquires the property through negotiations, the construction of Adams Lane Extension will commence this summer.

The City is required to send a Notice of Intent to Adopt the Resolution of Necessity and to provide 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…” The property owner has been sent such a notice, which notice is attached to this staff report as an attachment. The passage of this resolution is not intended to foreclose future negotiations between the owner and representatives of the City of Brentwood concerning the acquisition of their property.

The Resolution of Necessity includes the following findings, which the City Council is required to make and which are supported as set forth below:

1) public interest and necessity –- that the public interest and necessity require the proposed project. The project is necessary to facilitate efficient flow of traffic through this portion of the City;
2) most compatible with the greatest public good and least private injury — that the proposed project is planned , per the Circulation Element of the City’s General Plan – 2001 Update, or located in a manner that will be most compatible with the greatest public good and the least private injury. The alignment of this proposed facility was chosen due to the existence of an existing utility easement upon the property in question as well as the required geometries necessary to align with the existing intersection of Anderson Lane and Lone Tree Way;
3) subject property is necessary — that the subject property is necessary for the proposed project. The project is necessary to connect the missing link between Lone Tree Way and Grant Street; and
4) compliance with Government Code §7267.2(a) offer — that the Government Code §7267.2(a) offer has been made to the record owner. As set forth above, the offer was made on April 12, 2007.

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). If there are only four members present or able to vote, the resolution must be adopted by a unanimous vote.

FISCAL IMPACT
Pursuant to the agreement between Suncrest Homes and the City of Brentwood, all costs and expenses of the acquisition will be paid by the Developer who has made an initial deposit of $100,000. Additional funds will be deposited if and when necessary upon request by the City.

Attachments:
Notice of Intent to Adopt Resolution of Necessity
Resolution of Necessity, with legal description
Site Map/Project Map
Roadways Map – General Plan, 2001-2021


RESOLUTION NO.


A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD DETERMINING THAT THE PUBLIC INTEREST AND NECESSITY REQUIRE THE ACQUISITION OF CERTAIN LAND AND DIRECTING THE FILING OF EMINENT DOMAIN PROCEEDINGS FOR THE ADAMS LANE EXTENSION PROJECT – CAROL L. SHAVER, ASSESSOR’S PARCEL NO. 018-140-026.


WHEREAS, it is desirable and necessary for the City of Brentwood to acquire fee title in and to certain real property, particularly described in Exhibits “A” and “B”, attached hereto and made a part hereof by reference, in order to construct, widen and/or improve the Adams Lane Extension Project (the “Project”); and,

WHEREAS, the City of Brentwood is vested with the power of eminent domain to acquire real property for the Project by virtue of Article 1, Section 19, of the Constitution of the State of California, Government Code Sections 37350.5, 37353(a), and 40404, and Sections 1240.010, 1240.020, 1240.030, 1240.040, 1240.050, 1240.110, 1240.120, 1240.510 and 1240.610 of the Code of Civil Procedure of the State of California; and,

WHEREAS, pursuant to the provisions of Section 1245.235 of the Code of Civil Procedure of the State of California, notice has been duly given to all persons whose property is to be acquired by eminent domain and whose names and addresses appear on the last Contra Costa County equalized assessment roll, all of whom have been given a reasonable opportunity to appear and be heard before the City of Brentwood on the following matters:
(a) Whether the public interest and necessity require the Project;
(b) Whether the Project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury;
(c) Whether the property sought to be acquired is necessary for the Project;
(d) Whether the offer required by Government Code Section 7267.2 has been made to the owner(s) of record.

WHEREAS, pursuant to the provisions of Section 7267.2 of the Government Code of the State of California, the City of Brentwood has made an offer to the owner or owners of record to acquire the subject property for just compensation; and,

WHEREAS, the City of Brentwood has satisfied the provisions of the California Environmental Quality Act for the Project;

NOW, THEREFORE, IT IS FOUND, DETERMINED, AND ORDERED as follows:

1. The public interest and necessity require the Project for the acquisition of the fee simple and the temporary construction easement in and through the above-identified parcel of land.
2. The Project is planned and located in the manner which will be most compatible with the greatest public good and the least private injury.
3. The taking of the fee simple title in and to the real property more particularly described in said Exhibit “A” and Exhibit “B” is necessary for the Project.
4. The offer required by Section 7267.2 of the Government Code of the State of California has been made to the owner or owners of record of the real property.
5. The City Attorney of the City of Brentwood or his duly authorized designee be, and he is hereby authorized and directed to institute and conduct to conclusion an action in eminent domain for the acquisition of the estates and interests aforesaid and to take such action as he may deem advisable or necessary in connection therewith.
6. An order for prejudgment possession may be obtained in said action and a warrant issued to the State Treasury Condemnation Fund, in the amount determined by the Court to be so deposited, as a condition to the right of immediate possession.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the 22nd day of May 2007 by the following vote:
 

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