Resolution 2004- 62
RESOLUTION NO. 2004-62
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
GILROY DETERMINING THAT THE PUBLIC INTEREST
AND NECESSITY REQUIRE THE ACQUISITION OF A FEE
INTEREST IN THE REAL PROPERTY IDENTIFIED BY APN
799-08-041, LOCATED AT 7347 MONTEREY STREET
DIRECTING THE FILING OF EMINENT DOMAIN
PROCEEDINGS
WHEREAS, the City of Gilroy ("City") Cultural and Performing Arts Center project to
be located at 6th and 7th Street between Monterey Street and Eigleberry Street (the "Project") is
being undertaken for the purpose of constructing a Cultural Arts Center and to further the public
health, safety and welfare; and,
WHEREAS, in order to accomplish the goals of the Project, construction activities must
necessarily take place upon certain real property located in the City, County of Santa Clara, State
of California, identified as APN 799-08-041 (the "Property"); and
WHEREAS, such Project will require the City to secure a fee interest 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\613191.1
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Resolution No. 2004-62
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 II, 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 ~ of the Code of Civil Procedure of the State of
California.
Section 2. The public interest and necessity require the Project for the purpose of
constructing a Cultural Arts Center 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 dated February 10, 2004, 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 dated February 10, 2004, 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 "E." The facts which
support this finding are further set forth in the record, including but not limited to, the Staff
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01-011904-04706080
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Resolution No. 2004-62
Report dated February 10, 2004, attached hereto as Exhibit "C" and incorporated by this
reference.
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 dated February 1 0, 2004,
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 21 st day of June, 2004, by the following
AYES: COUNCILMEMBERS:
CORREA, DILLON, GARTMAN,
MORALES, VALIQUETTE, VELASCO and
PINHEIRO
NOES: COUNCILMEMBERS:
NONE
ABSENT: COUNCILMEMBERS:
NONE
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b rt inheiro, Mayor
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RhOI~a Pellin, City Clerk
IJH1613191,1
01-011904-04706080
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Resolution No. 2004-62
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DESCRIPTION
All <hat certain Real Prcpert1' in the City of Gilroy, Co""ty of Santa Chra,
State of California, described as ~ollow6:
A pottion of Lot 7 in Block 1, Soutb., .Ran~e 1 West, as show.t1 On Map No. 5
accompanYing t:he Report o:t the Referees in tile action of Hei"u:y 1'?il1.er, et al, V5.
....SSey Thomas, et aI, in the SUperior Court of the State of Calif=nia in Ond for
~e County of Santa Clara, CaSe No. SSJ6, and beiri~ aescribeQ as :tollow$:
~ginn~g On tbe Southvesterl1' line of Mehterey Stre.t distant thereon 1'3.1 feet
Northwesterly from the Northwes~erly line.of S~Ven~h Street, said Point of
Beginn<..,g heing the Fasterly COrner of a.:fd LOt 7 f thence Northwesterly along the
SoUthweSterly line of Monterey Street 4. feet to the Northerly comer of said Lot
7; thence leaving- Monterey Street and ru.nniJ;Lg along the Northwesterly line of
said Lot 7, Southwe.terly '" feet, more..". l.,s. to the Northeaaterly line of
the alley as established hy the Deed. to City of Gilroy, dated Fehruazy s, 1008.
and recordea.in Book 388 of Deeds, Page 3si, Santa Clara County ~ecords; thence
along the Northeasterly line of said a~ley, Southeasterly '40.7 fee~, more or
less, to the Southeasterly line of said Lot 7; thence leavin~ said alley and
r'Unlling along the Southeasterly line of said Lot 7, Northeasterly ~4~ feQt, more
or less, to the Point of Beginning.
.
EXHIBIT B TO RESOLUTION
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EXHIBIT C
CITY OF GILROY MEMORANDUM
TO:
TIlE MAYOR AND CITY COUNCn.. MEMBERS
FROM:
Bra HEADLEY, FACIUTIES AND PARKS DEVELOPMENT MANAGER
STAFF REPORT - RESOLUTION OF NECESSITY DIRECTING
ACQUISITION OF DONG PROPERTY BY EMINENT DOMAIN FOR THE
GILROY CULTURAL AND PERFORMlNG ARTS CENTER
(0.13 ACRES /5,640 Sq. Ft.) A.P.N.: 799-08-041
FeblUSl)' 10. 2004
.
RE:
DATE:
RECOMMENDED ACTION:
It is recormnended that the City of Gilroy ("City") city Council adopt a Resolution of
Necessity making the findings and determinations herein desc;noed, 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 proposed property acquisition includes 0.13 acres of real property that exists as part
of the 2.3 acre proposed Gilroy CLlltural and Perfonning Arts Center (the f1>>rojec:t"") site, which .
will occupy approximately 2/3 of the City block immediately north of Seventh Street between
Monterey Road and Eiglebeny Street in central Gilroy, California.
The property owned by Gin Lay Dong and Leung Kam See Dong (""Dong Property") is
one of the 14 privately owned. parcels required for this Project. The Dong Property is a 0.13 acre
parcel indicated on the site plan attach~hereto as Exhibit "I" and is more particularly described
in the legal description attached hereto as Exhibit "2:' The Conceptual Site Plan Scheme 3A is
provided as Exhibit u3.h Exhibits "1," "2/' and "3" 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
Dong Property. The Resolution of Necessity must contain declarations that the City Council has
found and determined each ofthe following;
1) The public interest and necessity require the 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;
3) The property described in the resolution is necessary for the proposed project; and
\JH\6154D4.1
01-021004.04706029
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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 loc;ated with reasonable diligence.
As is set forth below, each of these findings and determinations should be made.
1) THE PUBLIC INTEREST AND NECESSITY REOUIRE THE PRO.JECT
.
The public interest and necessity require the Project. The construction of a centrally
located and accessible 28,000 square foot multi-use Gilroy Cultural and Perfonning Arts Center
involving 130 on-site parking spaces meets the Gilroy General Plan and Park and Recreation
System Master Plan goals adopted by the City Council June 13. 2002.
2) THE PROPOSED P:ROJECT IS PLANNED OR LOCATED IN THE MANNER
THAT WILL BE MOST COMPATIBLE WITH THE GREATEST PUBLIC
GOOD AND TIlE LEAST PRIVATE INJURY
The Project is planned or located in the manner that i~ most compatible with the greatest
public good and the least private injury.
.
On December 12, 2002, the City Council approved the Project's site location (Conceptual
Site Plan Scheme 3A) recommended by the Gilroy Performing and Cultural Arts Center Task
Force ("Task Force"). This Task Force was established by City Council in 2001, and represented
the gcneral Gilroy community, members of the local cultural 'and performing arts organizations,
various City commissions, and City staff. The Task Force was guided and facilitated by the
consulting firm of Fisher and Associates of San Francisco. The Task Force reviewed, verified
and updated prior cultur.ll and performing arts needs analysis followed by findings with final
facility recommendations. The Task Force then began a site selection process wherein the Task
Force identified 22 key site selection criteria, which were then applied to 21 sites throughout the
City. Off-site as well as on-site requirements were analyzed by City sta..ff, civil engineering, real
estate consultant and the Task Force.
Consideration for alternative sites for the location of the Project was part of the site
selection process. As part of the site prioritization process, the Task Force applied an additional
alternative site review for the three top ranked sites.
Two of the three alternative sites were in the downtown area, but both .of these sites had
greater development impacts because of access and railroad line conflicts than the site alternative
selected. The site alternative selected had more than 50% of the proposed site as vacant land or
vacant buildings, which resulted in the least amount of overall demolition impacts. One of the
three alternative sites possessed. a greater amount of vacant land, however, it was a much larger
site than necessary, and also had large abandoned carmcry facility that presented major site
demolition impacts. As a result of the above analysis, the alternative process and site findings
analysis determined that the Monterey Ejgleberry site provided the least development impacts
and the greatest public benefit. Further, the Monterey Eigleberrysite results in overall less land
Page 2 of3
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to be acquired and therefore satisfies the public necessity for the Project with the least private
injUIy. The Monterey Eigleberry site recommendation. which would not only meet the greatest
City need and but also met the approved site selection criteri~ was made by the Task Force to
City COWlcil at their December 12, 2002. meeting.
3) THE PR.OPERTY DESCRIBED IN THE RESOLUTION IS
NECESSARY FOR THE PROPOSED PROJECT
The property described in the resolution is necessary for the proposed Project. The Gilroy
Cultural and Performing Arts Center requires important public 'access and a central community
location. Further, the proximity to downtown and public and private visitor services is best met
and provided by the Monterey Eigleberry site for the Project.
.
Before City staff determined to pursue the acquisition of the Dong Property, several
properties were studied. The Dong Property described in the resolution is the one parcel of the
overall Project site selected, which was detennined to provide the greatest benefit and with the
least impact. The amount of property proposed to be acquired has been reduced because of the
selection of the Monterey Eigleberry site. instead of the two other altemate sites previously
reviewed. The Monterey Eigleberry site results in overall less land to be acquired and therefore
satisfies the public necessity for the Project and with the least private injury.
4) THE OFFER REQUIRED BY SECTION 7'1.67.'1. OF THE GOVERNMENT CODE
HAS BEEN MADE TO THE OWNER OR OWNERS OF RECORD
The offer required by Section 7267.2 of the Govenunent Code has been made to the .
owner or owners of record. On July 3. 2003, a written offer by the City"s real estate consultant
to acquire the Dong Property was made directly to the ownel'S of record for the full amount
determined to be just compensation therefore. The property owners were further provided with a
written statement of. and summary of the basis for, the amount it established as just
compensation.
More than 20 contacts or attempted contacts with the property owners were made after
the first offer. These contacts have included the offer of a City-paid appraiser where the property
owners could select one of three area appraisers. The City also made repeated offers of a foreign
language interpreter for the property owners. However, the continuing dispute over market value
for the Dong Property has gone wu-eso1ved. The City's real estate consultanthas reported that it
is bis opinion that the ongoing dispute over the market value will never be resolved.
The City Attorney's office on January 19, 2004. sent certified letter to the owncn of
record advising them of the City's Notice of Intention to Adopt Resolution of Necessity for
acquisition of the property by eminent domain.
The City Attorney recommends that the eminent domain proceedings go forward and this
Resolution of Necessity be adopted.
Page 3 of3
Exhibit #
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SCHEME 3A
CONCEPTUAL SITE PLAN
06 DECEMBER 2002
GILROY CULTURAL AND
PERFORMING ARTS CENTER
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~. SITE PLAN
DESCRIPTION
Exhibit
EXHIBIT A
~l that Certain Real Property in the City of Gilxoy, County of Santa C2ara,
~tate of California, described as follows:
A Portion of'Lot 7 in Block J., South, Range 1 West, as shown on: Map No. 5
accompanyU,g the Report of the Referees in the action of Hei1ry MiUer, et al, vs.
Massey _s, et aI, in the Superior Court of the State of Califo=ia in and for
the County of Santa Clara, Case No. 553', and being described as foUows,
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Beginning on the soUthwesterly line of MQnterey Street distant thereon ~'3.1 feet
Northwesterly from the Northwesterly line,Of S~venth Street, said Point ,of
Beginning being the Easterly comer of sa{d LOt 7 i 'thence Northwesterly along the.
SOUthwesterly line of Monterey Street 40 feet to .the NOrtherly corner of said LOt
7, thence leaving Monterey Street and rumdngalong the Northwesterly l:ine of
said LOt 7, Soutbwesterly 141 feet, more. or. less; to the Northeasterly line of
the alley as established by the Deed to City of Gilroy, dated February 8, 1'08.
and recordedin Book 388 of Deeds, Page 381, Santa Clara County Records; thence
along the Northeasterly line of said alley,. SOUtheasterly .'0.7 feet, more or
less, to the Southeasterly line of said LOt 7; thence leaving said alley and .
running along the Southeasterly line of said LOt 7, NOrtheasterly 141 feet, more
or less, to the Point of Begi..nni.ng.
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Exhibit #3
ADJACENT PROPERTY
W. SEVENTH STREET
~N SITE PLAN
SCHEME 3A
CONCEPTUAL SITE PLAN
20 NOVEMBER 2002
GILROY CULTURAL AND
PERFORMING ARTS CENTER
John Sergio FISher & AsSOCiates Inc. j sf a
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I, RHONDA PELLIN, City Clerk of the City of Gilroy, do hereby certify that the attached
Resolution No. 2004-62 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
21st day of June, 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 29th day of June, 2004.
~A(Q~~.
CIty lerk of the CIty of Gilroy
(Seal)