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Resolution 2004- 31 RESOLUTION NO. 2004-31 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF GILROY DETERMINING THAT THE PUBLIC INTEREST AND NECESSITY REQUIRE THE ACQUISITION OF A TEMPORARY CONSTRUCTION EASEMENT IN THE REAL PROPERTY IDENTIFIED BY APN 783-48-103 LOCATED AT 9320 BENBOW DRIVE AND DIRECTING THE FILING OF EMINENT DOMAIN PROCEEDINGS WHEREAS, in 2001 the City of Gilroy ("City") approved the design of the Santa Teresa Widening Project (the "Project"). This Project is being undertaken for the purpose of constructing a new sound wall along Santa Teresa Boulevard and to further the public health, safety and welfare; and, WHEREAS, in order to accomplish the goals of the Project, temporary construction activities must necessarily take place upon certain real property located in the City, County of Santa Clara, State of California, identified as APN 783-48-103 (the "Property"); and WHEREAS, such Project will require the City to secure a temporary construction easement in the Property depicted on the map attached hereto as Exhibit "A" and incorporated herein by this reference (referred to as the "Interest"), such Interest being described in Exhibit "B" attached hereto and incorporated herein by this reference; and WHEREAS, the City had the Interest appraised and made a written offer to purchase the Interest based on the appraisal amounts to the record owners of the Property pursuant to Government Code Section 7267.2; and WHEREAS, the City has been unsuccessful in its attempts to negotiate the acquisition of the Interest; and WHEREAS, the City is vested with the power of eminent domain to acquire real property by virtue of Article 1, Section 19, of the Constitution of the State of California, Article II, Section 200 of the City Charter, Section 40404 of the Government Code of the State of California, Sections 1240.050, 1240.110 and 1240.120 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 UH\621254.1 01-041304-04706002 -1- Resolution No. 2004-31 to be acquired by eminent domain and whose names and addresses appear on the last Santa Clara County equalized assessment roll, all of whom have been given a reasonable opportunity to appear and be heard before the City Council on the following matters as required by Section 1245.230 ofthe Code of Civil Procedure of the State of California: (a) Whether the public interest and necessity require the Project; (b) Whether said 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 said Project; and (d) Whether the offer required by Government Code Section 7267.2 has been made to the owners of record. NOW, THEREFORE, BE IT RESOLVED THAT: Section 1. The Interest as described hereinabove is being taken for municipal purposes pursuant to the authority of the City under: (a) Article I, Section 19 of the California Constitution; (b) Article IT, Section 200 of the City Charter; (c) Section 40404 of the Government code of the State of California; and (d) Sections 1240.050, 1240.110 et seQ. of the Code of Civil Procedure ofthe State of California. Section 2. The public interest and necessity require the Project for the purpose of constructing a new sound wall along Santa Teresa Boulevard and to further the public health, safety and welfare. The facts which support this finding are further set forth in the record, including but not limited to, the Staff Report attached hereto as Exhibit "C" and incorporated by this reference. Section 3. The Project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury, taking only such property as is absolutely necessary to construct the improvements in order to accomplish the goals of the Project. The facts which support this finding are further set forth in the record, including but not limited to, the Staff Report attached hereto as Exhibit "C" and incorporated by this reference. Section 4. The property sought to be acquired is necessary for said Project and will require the City to secure a fee interest in the Property described in Exhibit "B." The facts which support this finding are further set forth in the record, including but not limited to, the Staff Report attached hereto as Exhibit "C" and incorporated by this reference. \JH\621254.1 01-041304-04706002 -2- Resolution No. 2004-31 Section 5. Pursuant to California Government Code Section 7267.2, the City has appraised the Interest, and has made written offers to the owners of record to acquire said Interest based on the appraised value for the Interest. The facts which support this resolution are further set forth in the record, including but not limited to, the Staff Report attached hereto as Exhibit "C" and incorporated by this reference. Section 6. The City has made every reasonable effort to acquire the Interest by negotiation as required by California Government Code Section 7267.2. Section 7. The City is hereby authorized and empowered to acquire by condemnation good and sufficient title to the Interest, all of which is located within the City. Section 8. The City Attorney is hereby directed to take all steps necessary to initiate an action in eminent domain and to obtain immediate possession of the Interest. PASSED AND ADOPTED this 19th day of April, 2004, by the following AYES: COUNCILMEMBERS: CORREA, DILLON, GARTMAN, MORALES, VALIQUETTE, VELASCO and PINHEIRO NOES: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: NONE ~s- .. Albert inheiro, Mayor ,~~ Rhonda Pellin, City Clerk \JH\621254.1 01-041304-04706002 -3- Resolution No. 2004-31 - ~ -- YO' t TP.A CT No. 8563 t 86 5$' - - I - -- - / - . I 85 ~ I ~ ~ :s J- ~ i5 - - '=:) ~ g;f -- ~ J' -- ~ ;/ ~ 1 I 84 ~ 9:; ~ ~ ~ ~ / ~ .~ - ~ --- ~ - - ~ I I ~ ~ 83 r;j ~ I ~ ~ JO' I l- f \~ J . I- / I--=-=- - -'-- -- ...., , , . I ~"""" . f :;;:..8P ..'... /,. - ........... , ........ I ~,~__ _'1 -- / 655 M 81 39 - 43 I -- - - 80 ./ ............... ............. ............. ............. I .55' SCAJ..E: , - ... 40' EXHIBIT A SICtTCH 10 ACCO/;{fANT A lE(;AL ~T1OIi FOR SANTA TeRESA BOULEVARO TEMPORARY CONSTRUCTION FASfMFNT WlTHIN'LOT 82 OF TRA CT NO. 8563 79 SHEET 1 or , SHfU ~. P"l..AN....ff.. DC.,... . CO".-r1III"~" . 1C72$...1tJI~~r · · · ftwtlI!.~~lIlll7 CONSUL.T''''13 ~. I'M~.___ acTaDf 11, 2(XJf) J. If. JS-I(XX)S.S H. VtWrA Ia:::QS'J\,Or.;\ \lIAP!(XHIS/TS1OSZX02.DtfG 91/S0'd aS2:8~68017 N:3HOJ eBN I leBa EXHIBIT ~ 62::2:1 17002:-171-~d~ EXHIBIT "A" ~ ~-'t~-CO~ RBF Consulting 1981 N. Broadway. Suite 235 Walnut Cr~ek. California 94596 LEGAL DESCRIPTION SANTA TERESA BOULEVARD TEMP~RARY CONSTRUCTION EASEMENT WITHIN LOT 82 OF TRACT NO. 8563 IN 35"luuuo.,J"'",,,, Page 1 of 1 The easterly 8.00 feet of lot 82 of Tract No. 8563. in the City of Gilroy, ~ounty of Santa Clara. State of California, as shown on a map thereof filed in Book 655 of Maps at Pages 39 through 43 in the Offi ce of the County Recorder of sa; d Santa Cl ara County. SUBJECT TO all Covenants, Rights. Rights-of-Way and Easements of Record. EXHIBIT attaChed and by this reference made a part hereof. !l!n;Jt/~ PatricK J./Tami. l.S. 5816 . , EXHIBIT 13 91/90'd aSc8~680t7 N3HOJ C:i3NIlC:i3B 6c:cl t700c-t71-C:id~ CITY OF GILROY MEMORANDUM TO: THE MAYOR AND CITY COUNCIL MEMBERS FROM: MICHAEL GOODHUE, CITY ENGINEER RE: STAFF REPORT - RESOLUTION OF NECESSITY DIRECTING ACQillSITION OF PROPERTY BY EMINENT DOMAlN FOR THE A.P.N.: 783-43-103. ABRAHAM 9320 BENBOW DRIVE DATE: APRn.. 13, 2004 RECOMMENDED ACTION: It is recommended that the City Council adopt a Resolution of Necessity making the findings and determinations herein described, each of which is supported by substantial evidence as is set forth more fully below, and direct the City Attorney to commence an action in eminent domain to acquire the subject property. RECOMMENDED ACTION: It is recommended that the City Council adopt a Resolution of Necessity making the findings and determinations herein described, each of which is supported by substantial evidence as is set forth more fully below, and direct the City Attorney to commence an action in eminent domain to acquire the subject property. BACKGROUND: The City of Gilroy's ("City'1 Santa Teresa Boulevard Widening Project (the "Project") requires the acquisition of a temporary construction easement located on the property, 9320 Benbow Drive, adjacent to the existing Santa Teresa Boulevard soundwalllocated in Gilroy, California ("Property"). The temporary construction easement is indicated on the site plan attached hereto as Exhibit "1" and is more particularly described in the legal description attached hereto as Exhibit "2." Exhibits ul" and "2" are attached hereto and are incorporated herein by this reference. Before eminent domain proceedings may commence, the City Council must determine by a Resolution of Necessity that the public interest and necessity require the acquisition of the property. The Resolution of Necessity must contain declarations that the City Council has found and determined each of the following: 1) The public interest and necessity require the Project; \.lHI621229.1 ()414~706002 9~/20'd LLSG8~680v -1- EXHIBIT C N3Hm Cl3NIlCl38 8G:G~ v00G-v~-Cld~ 2) 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; 3) The property described in the resolution is necessary for the proposed Project; and 4) That either the offer required by Section 7267.2 of the Government Code has been made to the owner or owners of record, or the offer has not been made because the owner cannot be located with reasonable diligence. As is set forth below, each of these findings and determinations should be made. 1) THE PUBLIC INTEREST AND NECESSITY REQUIRE THE PROJECT The public interest and necessity require the Project. The Project will widen the existing Santa Teresa Boulevard from two through-travel lanes to four through-travel lanes, which has been determined by the City to be necessary to accommodate the current and future transportation needs of the City. Further, the Project is necessary for public health, safety and welfare, and it serves the public interest by furthering the goals of the general plan by providing noise mitigation for the residents who live next to Santa Teresa Boulevard. Removal and replacement of the existing Santa Teresa Boulevard soundwall is a critical component of the overall Project. 2) 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 The Project is planned or located in the manner that is most compatible with the greatest public good and the least private injury. The Project will utilize the existing Santa Teresa Boulevard right-of-way. The soundwall scheduled to be removed is on the existing Santa Teresa Boulevard right-of-way line. The new soundwall will be constructed on the same existing Santa Teresa Boulevard right-of-way line, or one or two feet into the right-of-way. The completed soundwall will not result in the loss of property for the Property owner. The temporary constnlction easement is required. for limited access and grading purposes for the installation the new soundwa11. The Project will necessitate substantial changes in grade along the length of the existing soundwall, This change in grade will require removal of the existing soundwall. City engineers have detennined that it is not feasible to leave the existing wall in place and construct the new improvements. The Property's back yard grades and existing improvements will be restored following construction of the soundwall. 3) THE PROPERTY DESCRIBED IN THE RESOLUTION IS NECESSARY FOR THE PROPOSED PROJECT The Property described in the Resolution of Necessary is necessary for the proposed Project because of the Property's immediate proximity to existing Santa Teresa Boulevard soundwall that must 'be removed and replaced in order to accommodate the grading necessary for the Project. \JH\621229.1 041404.04706002 2 91/m'd aSGB~6B0t7 N:3HOJ ~BN I l~:38 BG:Gl t700G-t71-~d~ 4) THE OFFER REQUIRED BY SECTION 7267.2 OF THE GOVERNMENT CODE HAS BEEN MADE TO THE OWNER OR OWNERS OF RECORD The offer required by Section 7267.2 of the Government Code has been made to the owner or owners of record. ill 2001, the City Council approved the Project design. On or about October 15, 2001, December 20, 2002, and April 11, 2003, the City's real estate consultants, Universal Field Services sent letters to the Property owners regarding the Project and the City's need for a temporaty construction easement on the Property. The file records further establish that agents from Universal Field Services contacted the Property owners nwnerous times to provide them with information regarding the temporary construction easement and to resolve the concerns they had regarding the temporary construction easement. In addition, the City sent the Property owners a letter dated January 21 2004, regarding the temporary construction easement on their Property. The City revised the temporary construction easement to meet the Property owners' concerns and it was provided to them on several occasions. The Notice of Intent to Adopt a Resolution of Necessity was sent to the Property owners on March 12, 2004. To date, the Property owners have been unwilling to cooperate with the City or the City's real estate agents regarding the temporary construction easement. The City Attorney recommends that the eminent domain proceedings go forward and this Resolution of Necessity be adopted. UH\6212.29.1 041404-04706002 9l/p0'd ~~SGB~6B0p 3 N3HOJ cBN I lCl38 BG:Gl p00G-pl-Cld~ I, RHONDA PELLIN, City Clerk of the City of Gilroy, do hereby certifY that the attached Resolution No. 2004-31 is an original resolution, or true and correct copy of a city resolution, duly adopted by the Council of the City of Gilroy at a regular meeting of said Council held on the 19th day of April, 2004, at which meeting a quorum was present. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of the City of Gilroy this 30th day of April, 2004. ~. .e~~, ~- City Clerk ofthe City of Gilroy (Seal)