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HomeMy WebLinkAbout2010-61 - Property Acquisition by Eminent DomainRESOLUTION NO. 2010-61 A RESOLUTION OF THE CITY OF NEWPORT BEACH, CALIFORNIA FINDING AND DETERMINING THAT THE PUBLIC INTEREST AND NECESSITY REQUIRE THE ACQUISITION BY EMINENT DOMAIN OF CERTAIN REAL PROPERTY AND AN INTEREST IN CERTAIN REAL PROPERTY FOR PUBLIC USE AND AUTHORIZING AND DIRECTING CONDEMNATION OF A PORTION OF APN 427 - 241 -09. WHEREAS, the City of Newport Beach (City) is undertaking a project to acquire a portion of the property located at 3601 Jamboree Road, Newport Beach, California, by eminent domain for the Jamboree Road Bridge Widening over State Route 73 Project, a right -of -way for public purposes, including for public street, highway and all public uses appurtenant thereto (the "Project'); and WHEREAS, the Project is intended to improve traffic flow by widening the west side of Jamboree Road Bridge overcrossing of State Route 73 to accommodate one additional through lane in each travel direction; and WHEREAS, proposed Project requires the acquisition of property interests from private parties adjacent to the roadway. A Categorical Exemption was filed on February 10, 2006 in accordance with the California Environmental Quality Act, for the Project.; and WHEREAS, the Project will be a transportation improvement project serving the public interest; and WHEREAS, Article I, section 19 of the California Constitution, and California Government Code Sections 37350.5 and 39792, authorize the City to exercise the power of eminent domain to acquire these property interests for public use by condemnation; and WHEREAS, on August 11, 2009, the City Council of the City of Newport Beach authorized the City to acquire property interests for the Project; and WHEREAS, the hereinafter described real property required for the Project includes a fee interest and a temporary construction easement as legally described and portrayed in Attachment "A" and `B ". The subject property is located in the City of Newport Beach; and WHEREAS, in accordance with section 1245.235 of the California Code of Civil Procedure, on May 7, 2010, there was mailed a Notice of Hearing on the Intent of the City to adopt a Resolution of Necessity for acquisition by eminent domain of the real property described and portrayed in Attachments "A" and `B" herein, which Notice of Hearing is attached hereto as Attachment "C" and is incorporated herein by this reference. The Notice of Hearing was mailed to all persons whose names appear on the last equalized county assessment roll notice as having an interest in the property described and portrayed in Attachments "A" and `B" and to the address appearing on said roll; and WHEREAS, the Project, including all amendments thereto, together with the staff reports, environmental documents and all other evidence presented to the City Council of the City of Newport Beach at the time the Project and the amendments thereto were adopted, are incorporated herein by this reference and made a part hereof as though fully set forth herein; and WHEREAS, pursuant to section 1245.235 of the California Code of Civil Procedure, the City scheduled a hearing for June 8, 2010 at 7:00 p.m. at 3300 Newport Boulevard, Newport Beach, CA 92663 and gave to each person whose property is to be acquired notice and a reasonable opportunity to appear at said hearing and to be heard on the matters referred to in section 1240.030 of the California Code of Civil Procedure; and WHEREAS, said hearing has been held by the City Council of the City of Newport Beach and each person whose property is to be acquired by eminent domain was afforded an opportunity to be heard on those matters specified in the City's notice of intention to conduct a hearing on whether to adopt a Resolution of Necessity and referred to in section 1240.030 of the California Code of Civil Procedure; and WHEREAS, the City may adopt a Resolution of Necessity pursuant to section 1240.040 of the California Code of Civil Procedure. NOW, THEREFORE, the City of Newport Beach does hereby find, determine, resolve and order as follows: Section 1. Incorporation of Findings and Recitals. The above findings and recitals are true and correct and are incorporated herein in full by this reference. Section 2. Compliance with California Code of Civil Procedure. There has been compliance by the City with the requirements of section 1245.235 of the California Code of Civil Procedure regarding notice and hearing. Section 3. Public Use. The public use for which the property and the interest in the property are to be acquired is for the construction and future maintenance of the Project, a public transportation improvement, as more fully described hereinabove. Article I, section 19 of the California Constitution, and California Government Code Sections 37350.5 and 39792, authorize the City to acquire by eminent domain property and interest in property necessary for such purpose and for all uses incidental or convenient thereto. Section 4. Necessity. (a) The property interests to be acquired are necessary for the proposed Project which is expected to improve current and anticipated increases in traffic. (b) The public interest and necessity require the acquisition by eminent domain proceedings a fee interest and a temporary construction easement in the real property described and portrayed in Attachments "A" and `B" to this Resolution of Necessity. Section 5. Description of Properly Interests. (a) The property interest to be acquired is more particularly described in Attachments "A" and "B" attached hereto and incorporated herein by reference together with a map thereof. (b) Also included in Attachments "A" and `B" are the legal description and plat of the real property interest to be acquired as well as other interest(s) in real property to be acquired by the City, which describes the general location and extent of the property interest with sufficient detail for reasonable identification. Section 6. Findings. The City hereby finds, determines and declares 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 least private injury; (c) The above - described property interests, as described in Attachments "A" and "B" are necessary for the proposed Project; (d) The offer required by section 7267.2 of the California Government Code has been made to the owner or owners of record; and (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. Section 7. Use Not Unreasonably Interfering With Existing Public Use(s). To the extent any of the real property to be acquired is subject to easements and rights -of -way appropriated to existing public uses that are not owned by a public body, the herein described use or uses will not unreasonably interfere with or impair the continuance of the public use as it now exists or may reasonably be expected to exist in the future. As such, Special Counsel ( "Counsel') is authorized to acquire the real property subject to such existing public use(s) pursuant to section 1240.510 of the California Code of Civil Procedure. To the extent any of the real property to be acquired is subject to easements and rights -of -way appropriated to existing public uses that are owned by a public body, the herein described use or uses will not unreasonably interfere with or impair the continuance of the public use as it now exists or may reasonably be expected to exist in the future. As such, Counsel is authorized to acquire the real property subject to such existing public use(s) pursuant to section 1240.510 of the California Code of Civil Procedure. Section 8. Authority to Exercise Eminent Domain. The City is hereby authorized and empowered to acquire fee title and a temporary construction easement in the real property described and portrayed in Attachments "A" and `B ", including the improvements thereon, if any, by eminent domain for the proposed Project in accordance with the applicable provisions of the California Code of Civil Procedure, the California Public Utilities Code and the Constitution of California relating to eminent domain. Section 9. Further Activities. The City Attorney is hereby authorized and empowered to retain Special Counsel to acquire the hereinabove described interests in real property in the name of and on behalf of the City by eminent domain, and Special Counsel is authorized to institute and prosecute such legal proceedings as may be required in connection therewith. Counsel is further authorized to take such steps as may be authorized and required by law, and to make such security deposits as may be required by order of court, to permit the City to take possession of and use real property at the earliest possible time. Counsel is further authorized to correct any errors in this Resolution of Necessity or to make or agree to non- material changes in the legal descriptions of the real property that are deemed necessary for the conduct of the eminent domain action or other proceedings or transactions required to acquire the subject real property. Counsel is further authorized to reduce the extent of the interests or property to be acquired so as to reduce the compensation payable in the action where such change would not substantially impair the construction and operation of the Project for which the real property is being acquired. Section 10. Effective Date. This Resolution shall take effect upon adoption. PASSED, APPROVED and adopted on this 8th day of June, 2010. Attest: WVIw � City Clerk Mayor Attachment A EXHIBIT "A" LEGAL DESCRIPTION RIGHT -OF -WAY That certain parcel of land situated in the City of Newport Beach, County of Orange, State of California, being that portion of Lot 2 of Tract No. 7694 as shown on a map thereof filed in Book 294, Pages 27 through 29 of Miscellaneous Maps in the Office of the County Recorder of said Orange County, described as follows: BEGINNING at the most easterly comer of said Lot 2 of Tract No. 7694; thence along the northeasterly line of said lot North 49°22'06" West 10.10 feet to a point on a non - tangent curve concave northwesterly and having a radius of 240.08 feet, a radial line of said curve from said point bears North 40 °3141" West; thence along said curve southwesterly 6.02 feet through a central angle of 01 °26'11'; thence tangent from said curve South 50 05430" West 53.28 feet to the beginning of a tangent curve concave southeasterly and having a radius of 224.23 fed, the southwesterly terminus of said curve being tangent with a line parallel with and 22.00 feet northwesterly of the northwesterly right -of -way of Jamboree Road as shown on said tract; thence along said curve southwesterly 35.09 feet through a central angle of 08 °58'03" to said parallel line; thence tangent from said curve and along said parallel line South 4l °56'27" West 159.16 feet; thence South 84 015108" West 40.22 feet to the southwesterly line of said lot; thence along said southwesterly line South 49 121'51 "East 22.64 feet to an angle point therein, said angle point also being a point in said northwesterly right -of -way of Jamboree Road; thence along said northwesterly right -of -way North 86 °16'55" East 37.84 feet; thence continuing along said northwesterly right -of -way North 41 °56'27" East 255.09 feet to the POINT OF BEGINNING. CONTAINING: 0.133 Acres, more or less. EXHIBIT "B" attached and by this reference made a part hereof. TRCXELL ILI IZV1169 * 7804 Kurt R. Troxell, PLS 7 54 Date d v„V, rVPdmeuoco4114Wod<,v0M&1 W- LOLAMwAW PARCEL 1 L.L.A. NO. LA 2005 -008 INST, NO. 200600006041 N_40431'41 "W O.R. NE'LY LINE LOT 2 LOT 2 TRACT NO. 7694 MX 294 / 27 -29 DATA TABLE AttacWnt .A MOST EASTERLY CO[i LOT 2 P.O.B. I 0 NO BRNG /DELTA RADIUS LENGTH ------ — ---- ----------------------- 22' rno 1 N49022'O6"W -- 10.10' vi 2 01'26'11" 240.08' 6.02' Q N 3 S50 "54'30 "W -- 53.28' 4 08'58'03" 224.23' "W 35.09' 5 584'15'08 — 40.22' 6 549021'51 "E — 22.64' n lz w I UNLESS OTHERWISE NOTED, ALL BEARINGS AND DISTANCES IN THIS DESCRIPTION ARE GRID BASED ON THE CALIFORNIA COORDINATE SYSTEM, (CCS83) ZONE VI 1983 NAD (1991.35 EPOCH GPs ADJUSTMENT). TO OBTAIN GROIN DISTANCES DIVIDE DISTANCES SHOWN BY 0.99997352. Zri a di"ll LY LINE LOT 2 4 ♦' ! :f 1 'C � ��IZ q_j 0 � 66' 3 z z I rr BRISTOL STREET (NORTH) SHEET 1 OF 1 SHEET JANUARY70.2XS JULY It 228 Attachment B EXHIBIT "A" LEGAL DESCRIPTION TEMPORARY CONSTRUCTION EASEMENT That certain parcel of land situated in the City of Newport Beach, County of Orange, State of California, being that portion of Lot 2 of Tract No. 7694 as shown on a map thereof filed in Book 294, Pages 27 through 29 of Miscellaneous Maps in the Office of the County Recorder of said Orange County, described as follows: BEGINNING at a point in the northeasterly line of said Lot 2 of Tract No. 7694, distant thereon North 49°22'06" West 10.10 feet from the most easterly comer thereof, said point being on a non - tangent curve concave northwesterly and having a radius of 240.08 feet, a radial line of said curve from said point bears North 40 °31'41" West; thence along said curve southwesterly 6.02 feet through a central angle of 01 "26'11'; thence tangent from said curve South 50 °54'30" West 53.28 feet to the beginning of a tangent curve concave southeasterly and having a radius of 224.23 feet, the southwesterly terminus of said curve being tangent with a line parallel with and 22.00 feet northwesterly of the northwesterly right -of -way of Jamboree Road as shown on said tract; thence along said curve southwesterly 35.09 feet through a central angle of 08 "58'03" to said parallel line; thence tangent from said curve and along said parallel line South 41 °5627" West 159.16 feet; thence South 84 "15'08" West 40.22 feet to the southwesterly line of said Lot 2; thence along said southwesterly line North 49 °21'51" West 13.81 feet; thence North 84 °15'08" East 26.57 feet; thence North 41 "5627" Bast 166.38 feet; thence North 77 005'07" East 26.15 feet; thence North 40 °40'13" East 69.54 feet; thence North 63 009'17" East 5.76 feet to said northeasterly line of said Lot 2; thence along said northeasterly line South 49 "22'06" East 19.32 feet to the POINT OF BEGINNING. CONTAINING: 0.126 Acres, more or less. The duration of the Temporary Construction Easement shall be 3 months. �DVAND' e KuNT fl F Kurt R. Troxell, PLS 7854 6ate *_ 7854 H:Ipd" 10104114 WdminVcgab\4114- LGL- IrAdoc PARCEL 1 N40'31'41_W_ —__, L.L.A. NO. LA 2005 -008 (RAD) 8 / 9 I INST. N0, 2005000060410, O.R. NE'LY LIPS LOT 2 2 LOT 2 TRACT NO. 7694 M.M. 294 / 27 -29 UNLESS OTHERWISE NOTED, ALL BEARINGS AND DISTANCES IN THIS DESCRIPTION ARE GRID BASED ON THE CALIFORNIA COORDINATE SYSTEM, (CCS83) ZONE VI 1983 NAD (1991.35 EPOCH G'S ADJUSTMENT). TO OBTAIN GROUND DISTANCES DIVIDE DISTANCES SHOWN BY 0.99997352. N84 °15'0 .26. 'LY LINE LOT EXHIBIT wAw dTTAY�;. K • :7 ! n: CWAfNlM1t 0.128AO M* Attachment B MOST EASTF�Y i R LOT 2 I M 23' 22' N77 °05'0 26. 1 DATA TABLE z ------------------------------------- BRNO /DELTA RADIUS LENGTH ------------------------------ 1 N49022'06 "W — 10.10' 2 0126'11" 240.08' 6.02' 3 S50 "54'30 "W -- 53.28' 4 08'58'03" 224.23' 35.09' 5 S84015'08 "W -- 40.22' 6 S49'21'51 "E -- 22.64' 7 N49 °21'51 "W -- 13.81' 8 N63'09'17 "E -- 5.76' 9 S49"22'06 "E -- 19.32' UNLESS OTHERWISE NOTED, ALL BEARINGS AND DISTANCES IN THIS DESCRIPTION ARE GRID BASED ON THE CALIFORNIA COORDINATE SYSTEM, (CCS83) ZONE VI 1983 NAD (1991.35 EPOCH G'S ADJUSTMENT). TO OBTAIN GROUND DISTANCES DIVIDE DISTANCES SHOWN BY 0.99997352. N84 °15'0 .26. 'LY LINE LOT EXHIBIT wAw dTTAY�;. K • :7 ! n: CWAfNlM1t 0.128AO M* Attachment B MOST EASTF�Y i R LOT 2 I M 23' 22' W 1 z I U) N ITCE 23' 1 22 4p,1 w it N � 66' J 11 I - STREET- - C� BRISTOL (�RTM) t3j SHEEr20F28HEETS REVISED JANOARY 20, 2009 ALY /9, 20W P, W z I � 66' J 11 I - STREET- - C� BRISTOL (�RTM) t3j SHEEr20F28HEETS REVISED JANOARY 20, 2009 ALY /9, 20W P, Attachment C NEWPORT BEACH OFFICE OF THE CITY Leilani 1. Brown, MMC Re: NOTICE OF HEARING REGARDING ADOPTION OF A RESOLUTION OF NECESSITY TO ACQUIRE PROPERTY BY EMINENT DOMAIN [CALIFORNIA CODE OF CIVIL PROCEDURE 1245.235] Dear Property Owner. I am the City Clerk for the City of Newport Beach, and am authorized to provide you with this notice. 1. Notice of the Intent of the Newport Beach City Council to Adopt a Resolution of Necessity. The City Council intends to consider the adoption of a Resolution of Necessity on June 8, 2010 that, if adopted, will authorize the City of Newport Beach ( "City") to acquire a portion of the property located at 3601 Jamboree Road, Newport Beach, California, by eminent domain for the Jamboree Road Bridge Widening over State Route 73 Project ( "Project ") a right -of -way for public purposes, including for public street, highway and all public uses appurtenant thereto for the Project. A description of the property being considered for acquisition is attached to the proposed Resolution of Necessity, which accompanies this Notice, as Exhibit A (which property shall be referred to hereinafter as the Property). 2. Notice of Your Right to Appear and be Heard. Please take notice that the City Council of the City of Newport Beach, at a regular meeting to be held on June 8, 2010 or as soon thereafter as the matter may be heard at Council Chambers, 3300 Newport Boulevard, Newport Beach, California, 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 real property. You have a right to appear and be heard and/or submit written testimony before the City Council at the above scheduled hearing on the following matters and issues, and to have the City Council give judicious consideration to your testimony prior to deciding whether or not to adopt the proposed Resolution of Necessity. a. Whether the public interest and necessity require the proposed project; 3300 Newport Boulevard • Post O$Ice Box 1768 • Newport Beach, California 92658 -8915 Telephone: (949) 644 -3005 • Fax: (949) 644 -3039 • www.city.newport- beach.ca.us Attachment C Whether 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. Whether the property sought to be acquired by eminent domain and described in the Resolution of Necessity is necessary for the proposed project. d. Whether the offer required by Government Code section 7267.2, subdivisions (a), (b), and (c), together with the accompanying statement and summary of the basis for the amount established as just compensation, was actually made to you and whether said offer and statement/summary were in a form and contained all of the factual information required by Government Code section 7267.2, subdivisions (a), (b), and (c), a copy of which is attached hereto. e. Whether the City has complied with all conditions and statutory requirements necessary to exercise the power of eminent domain (the "right to take ") to acquire the property described herein, as well as any other matter regarding the right to take said property by eminent domain; and Whether the City has statutory authority to acquire the property by eminent domain. The statutes that authorize the City to acquire the property by eminent domain for this proposed project are Streets and Highways Code Section 10102 (street right of way); and Streets and Highways Code Section 5100 et seq. (Street Improvement Act acquisitions). 3. Failure to File a Written Request to Be Heard within Fifteen (13) Days After this Notice Is Mailed Will Result in Waiver of the Right to Appear and Be Heard. If you desire to be heard, please be advised that you must file a written request with the City Clerk within fifteen (15) days after this Notice was mailed. You must file your request to be heard at 3300 Newport Boulevard, Newport Beach, California. Should you elect to mail your request to the City Clerk, it must be actually received by the City Clerk for filing within fifteen (15) days after this Notice was mailed. The date of mailing appears at the end of this Notice. California Code of Civil Procedure section 1245.235(b)(3) provides that "failure to file a written request to appear and be heard within fifteen (15) days after the Notice was mailed will result in waiver of the right to appear and be heard" on the above matters and issues that are the subject of the hearing. Attachment C If you elect not to appear and be heard in regard to compensation, your nonappearance will not be a waiver of your right to claim greater compensation in a court of law. The amount to be paid for the property will not be considered by the City Council at this hearing. The amount of the compensation to be paid for the acquisition of the property is not a matter or issue being heard by the City Council at this time. Your nonappearance at this noticed hearing will not prevent you from claiming greater compensation, in and as determined by a court of law in accordance with the laws of the State of California. This Notice is not intended to foreclose future negotiations between you and the representatives of the City on the amount of compensation to be paid for your property. If you elect not to appear and not to be heard, your failure to appear will be a waiver of your right to later challenge the right of the City to take property by eminent domain. If you elect not to appear and not to be heard, you will only be foreclosed from raising in a court of law the issues that are the subject of this noticed hearing and that are concerned with the right to take the property by eminent domain. If the City Council elects to adopt the Resolution of Necessity, then within six months of the adoption of the Resolution, the City will commence eminent domain proceedings in Superior .Court. In that proceeding, the Court will determine the amount of compensation to which you are entitled. Dated and Mailed on May 10, 2010. Sincerely, 04 , Leilani Brown, City Clerk Attachments: Copy of Government Code section 7267.2, subdivisions (a), (b), and (c) Proof of Service by Mail Form Proposed Resolution of Necessity STATE OF CALIFORNIA J COUNTY OF ORANGE CITY OF NEWPORT BEACH } I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing resolution, being Resolution No. 2010 -61 was duly and regularly introduced before and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 8th day of June, 2010, and that the same was so passed and adopted by the following vote, to wit: Ayes: Rosansky, Henn, Webb, Gardner, Daigle, Mayor Curry Noes: Selich Absent: None Abstain: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 9th day of June, 2010. VUrUV City Clerk Newport Beach, California (Seal)