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CITY COUNCIL AGENDA ITEM NO. 35

Meeting Date: December 11, 2007

Subject/Title: Consideration of a Resolution of Necessity to acquire property for the Sand Creek Road Improvements – Phase I Project, formerly known as Sand Creek Road Extension, from Franklin Four LLC, Thomas Franklin LLC and SSB LLC.

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 Franklin Four LLC, a California Limited Liability Company, Thomas Franklin LLC, a California Limited Liability Company, and SSB LLC, a California Limited Liability Company, at the site of the City’s proposed Sand Creek Road Improvements – Phase I Project, formerly known as Sand Creek Road Extension, located at the intersection of Brentwood Boulevard and Sand Creek Road, and directing the filing of eminent domain proceedings.

It is necessary that the City acquire the property interests in order to obtain the missing link of road right of way, connecting the existing Sand Creek Road to Sand Creek Road in the Barrington Project, which includes a school and a fire station on the west side of the City. Staff recommends that the City Council adopt the attached Resolution of Necessity which authorizes the commencement of eminent domain proceedings to acquire the property interests and temporary construction easements as described and shown in the maps and legal descriptions attached to the Resolution as Exhibits A, B, C and D (“Subject Property”). The proposed Resolution makes the required findings that the City is authorized to acquire these property interests through its eminent domain powers by filing an eminent domain action in court.

PREVIOUS ACTION
On September 13, 2005, by Resolution No. 2005-225, City Council approved Vesting Tentative Subdivision Map No. 8548 with Conditions of Approval and approved the Final Environmental Impact Report. Condition Nos. 17, 19 & 20 required the Developer to acquire right of way, install a traffic signal system and design and construct Sand Creek Road extension.

On April 24, 2007, by Resolution No. 2007-85, City Council approved and authorized the City Manager to execute an Agreement between Standard Pacific Corp. (“Developer”) and the City of Brentwood for the acquisition of certain real property for street and other public purposes required for the Sand Creek Road Improvements – Phase I Project, formerly known as Sand Creek Road Extension.

On June 12, 2007, by Resolution No. 2007-126, City Council adopted the 2007/08 – 2011/12 Capital Improvement Program (“CIP”) Budget, that included the proposed Sand Creek Road Improvements – Phase I Project, formerly known as Sand Creek Road Extension (Developer) project.


PROJECT DESCRIPTION
The ultimate Sand Creek Road extension is proposed as an arterial street, consisting of 3,450 linear feet, with two lanes in each direction, bike lane, curb, gutter, median, sidewalk, landscaping, sanitary sewer line, water and non-potable water lines. The extension will connect Sand Creek Road at Brentwood Boulevard to the portion of Sand Creek Road already constructed as part of the Barrington Project. This project was incorporated into the Developer’s Conditions of Approval for the Barrington Project (Subdivision No. 8548) and is proposed to include installing a traffic signal system. The construction of Sand Creek Road is required for traffic flow and safety and will facilitate development on the adjacent properties. Sand Creek Road is one of the major east/west corridors of the Roadway Master Plan and will serve as a major arterial into the Barrington Project and beyond. .The Developer was unable, by negotiation, to acquire the necessary right-of-way and 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.

Sand Creek Road is a part of the Circulation Element of the City’s General Plan – 2001 Update (Roadways Map attached). This proposed portion of Sand Creek Road, across subject property, is in the current City limits.

BACKGROUND AND ANALYSIS
The precise location and legal descriptions of the proposed acquisitions are shown in the Exhibits attached to the Resolution. No residences or other buildings are being acquired. No person or business is being displaced or having to relocate and there are no associated relocation expenses.

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, 39792, 40401 and 40404; Streets and Highways Code Section 10102; and Code of Civil Procedure Sections 1240.010, 1240.020, 1240.030, 1240.040, 1240.050, 1240.110, 1240.120, 1240.150 and 1240.350.

Eminent domain is the power of government to acquire 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 acquire 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 Sand Creek Road Improvements – Phase I Project, formerly known as Sand Creek Road Extension, 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 an acquisition with the private landowner and City Council is being requested to authorize the acquisition by eminent domain of a portion of the property located on Brentwood Boulevard, owned by Franklin Four LLC, a California Limited Liability Company, Thomas Franklin LLC, a California Limited Liability Company, and SSB LLC, a California Limited Liability Company, for the construction of Sand Creek Road extension.

Prior to City Council’s consideration of this 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 September 11, 2007, the City 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 $575,000.00.

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…” On November 16, 2007, the City sent such a notice to the property owners, which notice is attached to this staff report. 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.

ENVIRONMENTAL REVIEW
The extension of Sand Creek Road was addressed through the Final Environmental Impact Report of the Barrington project and approved by the City Council on September 13, 2005, by Resolution No. 2005-225. In addition, the Negative Declaration for the City of Brentwood’s 2007/08 – 2011/12 CIP Budget included the proposed Sand Creek Road Improvements – Phase I Project, formerly known as Sand Creek Road Extension and the CEQA approval addresses the extension of Sand Creek Road.

FINDINGS FOR ADOPTION OF RESOLUTION
Government Code Section 1245.230 sets forth the findings required to be made by the governing board in adopting a resolution of necessity. The compensation to be paid is not a required finding.

By adopting the proposed Resolution of Necessity, the City Council will authorize the filing of an eminent domain action to acquire the Subject Property. The following findings must also be approved:

1) The public interest and necessity require the Sand Creek Road Extension (the “Project”).
This Project is in the public interest and is necessary to facilitate efficient flow of traffic through this portion of the City, and provide safe and adequate access to the Barrington Subdivision, the proposed middle school and fire station on Sand Creek Road within the Barrington subdivision and the east side of Brentwood Boulevard.
2) The Project is planned and located in the manner which will be most compatible with the greatest public good and least private injury.
The Project is planned, per the Circulation Element of the City’s General Plan – 2001 Update, and is 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 geometries necessary to align with the existing intersection of Sand Creek Road and Brentwood Boulevard and the completed portion of Sand Creek Road east of the Project, and is consistent with the alignments not only shown in the 2001 General Plan Update but in previous General Plans as well.
3) The property interests sought to be acquired are necessary for the Project.
In order to construct the missing link of Sand Creek Road between Brentwood Boulevard and Sand Creek Road in the Barrington Project which intersects with the future extension of Garin Parkway, being constructed as part of the Barrington project, the City has to acquire the subject property for the proposed project.
4) The offer required by Government Code section 7267.2 has been made to the owners of the Subject Property.
On September 11, 2007, the City made a written offer to purchase the partial fee interest and temporary construction easement based upon an independent appraisal. The City has made numerous efforts to negotiate a purchase and sale agreement with the property owners. However, such discussions have not been successful. The City will continue to make good faith efforts to negotiate with the owners for such an agreement even if eminent domain proceedings are filed.

Thus, Staff recommends that the City Council: (a) hear presentations from staff; (b) open the hearing and allow the public to express their objection to the right of the City to acquire the interests in real property located at the intersection of Brentwood Boulevard and Sand Creek Road, more fully described in the proposed Resolution of Necessity attached hereto; (c) close the hearing; (d) deliberate; and, (e) adopt the attached Resolution of Necessity which makes the necessary findings, authorizes the commencement of eminent domain proceedings for the acquisition.

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 Standard Pacific Corp. 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 $50,000. 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 REAL PROPERTY INTERESTS AND DIRECTING THE FILING OF EMINENT DOMAIN PROCEEDINGS FOR THE SAND CREEK ROAD IMPROVEMENTS – PHASE I PROJECT, FORMERLY KNOWN AS SAND CREEK ROAD EXTENSION

PROPERTY OWNERS: FRANKLIN FOUR LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, THOMAS FRANKLIN LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, AND SSB LLC, A CALIFORNIA LIMITED LIABILITY COMPANY

PROPERTY LOCATION: SAND CREEK ROAD AT BRENTWOOD BOULEVARD, BRENTWOOD, COUNTY OF CONTRA COSTA, CALIFORNIA

ASSESSOR’S PARCEL NOS.: 016-170-011, 016-170-012 and 016-170-013


WHEREAS, the City of Brentwood’s Sand Creek Road Improvements – Phase I Project (the “Project”) is a public project in which the City will construct an extension of Sand Creek Road to connect Brentwood Boulevard with the future extension of Garin Parkway, being constructed as part of the Barrington project. This project will include installation of a traffic signal system. The construction of this extension of Sand Creek Road is necessary to improve safety and facilitate efficient flow of traffic and development on the adjacent properties; and

WHEREAS, it is desirable and necessary for the City of Brentwood to acquire certain real property interests over, under, on, across and through Assessor’s Parcel Nos. 016-170-011, 016-170-012 and 016-170-013 in order to construct, maintain, and operate the Project; and

WHEREAS, the property interests to be acquired are a partial interest in fee and a temporary construction easement, more particularly described in Exhibits “A,” “B,” “C” and “D,” attached hereto and made a part hereof by reference and hereinafter referenced as the “Subject Property”; and

WHEREAS, in order to construct the Project, the City of Brentwood is vested with the power of eminent domain to acquire real property interests located at the intersection of Brentwood Boulevard and Sand Creek Road, County of Contra Costa, APNs 016-170-011, 016-170-012 and 016-170-013, by virtue of Article 1, Section 19, of the Constitution of the State of California, Government Code Sections 37350.5, 37353, 39792, 40401 and 40404; Streets and Highways Code Section 10102; and Code of Civil Procedure Sections 1240.010, 1240.020, 1240.030, 1240.040, 1240.050, 1240.110, 1240.120, 1240.150 and 1240.350; 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 interest sought to be acquired is necessary for said Project; and
(d) Whether the offer required by Government Code Section 7267.2 has been made to the owner(s) of record; and

WHEREAS, pursuant to the provisions of Section 7267.2 of the Government Code of the State of California, the City of Brentwood has made a written 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 and complied with all requirements of the California Environmental Quality Act (“CEQA”) for the Project; and

WHEREAS, on December 11, 2007, the Council conducted a duly noticed hearing on this resolution of necessity and considered the staff report on the resolution of necessity, all public comments, all documents and testimony received.

NOW, THEREFORE, THE CITY COUNCIL, DOES HEREBY FIND, DETERMINE, ORDER AND RESOLVE as follows:

1. The above recitals are facts on which these findings are based.
2. The public interest and necessity require the Project.
3. The Project is planned and located in the manner which will be most compatible with the greatest public good and the least private injury.
4. The property interests sought to be acquired, land in fee and a temporary construction easement, in and to the real property more particularly described in Exhibit “A” and Exhibit “C” and depicted in Exhibit “B” and “D” are necessary for the Project.
5. 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 Subject Property.
6. The Office of the City Attorney of the City of Brentwood and Special Counsel, Meyers, Nave, Riback, Silver & Wilson, are hereby authorized, empowered and directed to acquire in the name of the City of Brentwood, by condemnation, the Subject Property in accordance with the provisions of the Eminent Domain Law, the Code of Civil Procedure and the Constitution of California; to prepare, prosecute and conduct to conclusion in the name of the City of Brentwood such proceedings in the proper court as are necessary for such acquisition and to take such action as may be deemed advisable or necessary in connection therewith; and, to deposit the probable amount of just compensation based on an appraisal.
7. An order for prejudgment possession may be obtained in said action and a warrant issued by the City payable to the State Treasury Condemnation Fund, in the amount determined by the Court to be so deposited, as a condition of the right of prejudgment possession and use the Subject Property for said public uses and purposes.


The foregoing Resolution was introduced at a regular meeting of the Council of the City of Brentwood held on the 11th day of December 2007 and the Resolution was adopted by the following vote:

AYES:
NOES:
ABSENT:
ABSTAIN:


___________________________________
Bob Taylor, Mayor

ATTEST:


___________________________________
Margaret Wimberly, City Clerk



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