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CITY COUNCIL AGENDA ITEM NO. 15

Meeting Date: June 10, 2008

Subject/Title: Consideration of a Resolution of Necessity to acquire property for John Muir Parkway Extension / Foothill Drive – Phase 1, CIP Project No. 336-31640, from Peter and Joann Landgraf and Timothy and Kristina L’Amoreaux.

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 Peter C. Landgraf and Joann Landgraf, husband and wife as Joint Tenants, as to an undivided 90% interest and Timothy C. L’Amoreaux and Kristina M. L’Amoreaux, husband and wife, as to an undivided 10% interest, all as tenants in common, at the site of the City’s proposed John Muir Parkway Extension / Foothill Drive – Phase 1, CIP Project No. 336-31640, 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 portion of John Muir Parkway to the proposed extension of Foothill Drive. 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 as described and shown in the maps and legal descriptions attached to the Resolution as Exhibits A and B (“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 June 12, 2007, by Resolution No. 2007-127, City Council adopted a Resolution adopting the Mitigated Negative Declaration and Mitigated Monitoring Reporting Plan for the John Muir Parkway Extension, CIP Project No. 336-31640.

On February 26, 2008, by Resolution No. 2008-34, City Council adopted a Resolution approving a plan for the use of Proposition 1B transportation funds, authorizing the City Engineer to submit the plan to the State Department of Finance for disbursement of funds and amending the Capital Improvement Program (“CIP”) Budget Sheet for the John Muir Parkway Extension / Foothill Drive-Phase I, CIP Project No. 336-31640, to reflect project funding from this source.

On May 27, 2008, by Resolution No. 2008-137, City Council adopted the Negative Declaration and adopted the 2008/09 – 2012/13 Capital Improvement Program (“CIP”) that included the John Muir Parkway Extension / Foothill Drive – Phase 1, CIP Project No. 336-31640.

PROJECT DESCRIPTION
The John Muir Parkway extension project consists of constructing approximately 2000 feet of roadway from Ventura Drive to the Foothill Drive extension to provide north/south traffic circulation and access to surrounding properties. This roadway is necessary to replace the existing Concord Avenue due to the construction of Segment 3 of the Highway 4 Bypass that is presently under construction and currently scheduled to be completed in July or August of 2008. The City’s design of the roadway consists of two 14-foot lanes from Ventura Drive to the extension of Foothill Drive. The future development of the adjacent properties is planned to be responsible for the widening of John Muir Parkway to its ultimate configuration including the parkways.

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

BACKGROUND AND ANALYSIS
Mr. Landgraf is the vested owner of two parcels of land that the City has offered to acquire for the John Muir Parkway project. The City successfully negotiated the right-of-way for one of the parcels. On June 13, 2006, by Resolution No. 2006-129, City Council approved and authorized the City Manager to enter into a Three Party Agreement with Landgraf and CalSun for the first parcel and on March 13, 2007, by Resolution No. 2007-48 approved and authorized the City Manager to execute Amendment No. 1 to the Three Party Agreement. The location of the first parcel is adjacent and south of the property the City has proposed acquiring under these proceedings.

The City has been in negotiations for a portion of the second parcel with Landgraf/L’Amoreaux for sometime in an attempt to acquire the necessary right-of-way to extend the existing John Muir Parkway across this property. Mr. Landgraf’s attorney has requested on the property owners’ behalf that the City start the official eminent domain process. Due to the future closure of Concord Avenue, the City is moving forward with this acquisition. John Muir Parkway is an important north south roadway for the City, as there is no off ramp at Fairview Avenue and the Bypass, thus this roadway provides an important link to the residents living in this vicinity.

No residences or other buildings are being taken. 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 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 John Muir Parkway Extension / Foothill Drive – Phase 1, CIP Project No. 336-31640, 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 600 Concord Avenue, owned by Peter C. Landgraf, Joann Landgraf, Timothy C. L’Amoreaux and Kristina M. L’Amoreaux for the construction of John Muir Parkway.

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 April 21, 2008, 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 $140,017.00. The offer was rejected by Mr. Landgraf’s attorney on behalf of the owners.

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 May 22, 2008, the City’s legal counsel sent such a notice to the property owners and their attorney, which notice is attached to this staff report. The consideration 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.

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 addressed in the required findings.

The required findings are:

1) The public interest and necessity require the John Muir Parkway Extension / Foothill Drive – Phase 1, CIP Project No. 336-31640 (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 surrounding developments.

This roadway is necessary to replace the existing Concord Avenue due to the construction of Segment 3 of the Highway 4 Bypass that is presently under construction and currently scheduled to be completed in July or August of 2008. John Muir Parkway is an important north south roadway for the City, as there is no off ramp at Fairview Avenue and the Bypass, thus this roadway provides an important link to the residents living in this vicinity.

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 John Muir Parkway to the Foothill Extension, 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 John Muir Parkway between the existing John Muir Parkway and the proposed Foothill Extension, 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 April 21, 2008, the City made a written offer to purchase the partial fee interest 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 speak regarding the adoption of the proposed Resolution of Necessity; (c) close the hearing; (d) deliberate; and, (e) adopt the attached Resolution of Necessity which makes the necessary findings and 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
The acquisition costs have been budgeted and included in the adopted 2008/09 – 2012/13 Capital Improvement Program, which includes the John Muir Parkway Extension / Foothill Drive – Phase 1, CIP Project No. 336-31640.

The Fair Market Value determined by an appraisal in the amount of $140,017, is required to be deposited into the State Condemnation Fund as part of the Eminent Domain process. Any proposed settlement above this amount will be brought back to City Council for approval.

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 PROPERTY INTERESTS AND
DIRECTING THE FILING OF EMINENT DOMAIN PROCEEDINGS FOR THE JOHN MUIR PARKWAY EXTENSION/FOOTHILL DRIVE – PHASE I PROJECT

Peter C. Landgraf, Kristina M. L’Amoreaux and Timothy C. L’Amoreaux,
Property Owners
Property Address: 600 Concord Avenue, Brentwood
Assessor’s Parcel No.: 010-010-017

WHEREAS, the City of Brentwood’s John Muir Parkway Extension/Foothill Drive – Phase I Project (the “Project”) is a public project in which the City will construct an extension of the John Muir Parkway, west of Concord Avenue, from Ventura Drive to Foothill Drive, to replace the existing Concord Avenue; 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 No. 010-010-017 in order to construct, maintain, and operate the Project; and

WHEREAS, the property interest to be acquired is a partial interest in fee, more particularly described in Exhibit “A” and depicted in Exhibit “B,” 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 600 Concord Avenue, Brentwood, County of Contra Costa, APN 010-010-017, 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 1240.010-1240.050, 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 June 10, 2008, 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 interest sought to be acquired, land in fee, in and to the real property more particularly described in Exhibit “A” and depicted in Exhibit “B” is 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 10th day of June, 2008 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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