Rancho Palos Verdes City Council
   

DECEMBER 6, 2005 CONSIDERATION OF ADOPTION OF A RESOLUTION OF NECESSITY FOR THE ACQUISITION IN EMINENT DOMAIN OF REAL PROPERTY INTERESTS IN APN 7573-004-026, LOCATED AT 6359 TARRAGON ROAD, IN CONNECTION WITH THE EMERGENCY CONSTRUCTION, REPAIR AND MAINTENANCE OF DRAINAGE IMPROVEMENTS DECEMBER 6, 2005 CONSIDERATION OF ADOPTION OF A RESOLUTION OF NECESSITY FOR THE ACQUISITION IN EMINENT DOMAIN OF REAL PROPERTY INTERESTS IN APN 7573-004-026, LOCATED AT 6359 TARRAGON ROAD, IN CONNECTION WITH THE EMERGENCY CONSTRUCTION, REPAIR AND MAINTENANCE OF DRAINAGE IMPROVEMENTS DECEMBER 6, 2005 CONSIDERATION OF ADOPTION OF A RESOLUTION OF NECESSITY FOR THE ACQUISITION IN EMINENT DOMAIN OF REAL PROPERTY INTERESTS IN APN 7573-004-026, LOCATED AT 6359 TARRAGON ROAD, IN CONNECTION WITH THE EMERGENCY CONSTRUCTION, REPAIR AND MAINTENANCE OF DRAINAGE IMPROVEMENTS



TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL

FROM: CITY ATTORNEY

DATE: DECEMBER 6, 2005

SUBJECT: CONSIDERATION OF ADOPTION OF A RESOLUTION OF NECESSITY FOR THE ACQUISITION IN EMINENT DOMAIN OF REAL PROPERTY INTERESTS IN APN 7573-004-026, LOCATED AT 6359 TARRAGON ROAD, IN CONNECTION WITH THE EMERGENCY CONSTRUCTION, REPAIR AND MAINTENANCE OF DRAINAGE IMPROVEMENTS


RECOMMENDATIONS

1. Open and conduct a hearing on the adoption of the proposed Resolution of Necessity, receive from staff the evidence stated and referred to in this Report, take testimony from any person wishing to be heard on this matter.

2. If the City Council finds, based upon the evidence contained in and referred to in this Report, and the testimony and comments received in this hearing, that the evidence supports the necessary findings with respect to the Resolution of Necessity, then the staff recommends that the City Council, in the exercise of its discretion, adopt the proposed Resolution No. _____, A RESOLUTION OF NECESSITY OF THE CITY OF RANCHO PALOS VERDES, DECLARING CERTAIN REAL PROPERTY INTERESTS NECESSARY FOR PUBLIC PURPOSES AND AUTHORIZING THE ACQUISITION THEREOF, IN CONNECTION WITH AN EMERGENCY DRAINAGE PROJECT, and authorize City staff and the City Attorney’s office to take all necessary steps to file and prosecute an eminent domain proceeding to acquire the fee simple interest in the real property commonly known as 6359 Tarragon Road, identified as Assessor’s Parcel Number 7573-004-026 (referred to hereafter as “Subject Property”). The Subject Property is more fully described in the legal description attached as Exhibit “A” and depicted on the diagram attached as Exhibit “B” to the Resolution of Necessity. Exhibits “A” and “B” are incorporated herein by this reference.

3. Authorize the Mayor and City Manager to execute all necessary documents.

EXECUTIVE SUMMARY

The Subject Property is privately owned by Mr. Carmiel Cohen. The City has a small easement on a portion of the property but needs a larger area in order to install the proposed drainage improvements. Interest is sought for public purposes, namely for an emergency drainage project, and all uses necessary or convenient thereto, pursuant to

California Constitution Article 1, Section 19, California Government Code Sections 37350, 37350.5, 37351, 40401 and 40404 and California Code of Civil Procedure Section 1230.010 et seq., including but not limited to Sections 1240.010 through 1240.050, 1240.110, 1240.120, 1240.410, 1240.510, 1240.610, 1240.650, and other provisions of law.

As explained more fully below, the project proposes to install emergency drainage improvements in order to collect debris so that water from McCarrell Canyon will be able to enter the storm drain that goes underneath Palos Verdes Drive South and to prevent it from spilling onto Palos Verdes Drive South and running downstream into private properties.

The legal description of the Subject Property is attached as Exhibit “A” to the Resolution of Necessity and depicted on Exhibit “B” to the Resolution of Necessity. The proposed Resolution of Necessity, together with its Exhibits “A” and “B”, are attached to this Staff Report, and are incorporated herein by this reference. The public hearing on the proposed Resolution of Necessity has been duly noticed.

The City has extended an offer pursuant to the requirements of Government Code section 7262, et seq. to the owner of record, but the owner rejected the City’s initial offer. Negotiations are ongoing, but no negotiated sale has been reached. Based on the urgency of the proposed Project, it is necessary that the City Council consider at this time the adoption of the Resolution of Necessity for the acquisition of the Subject Property Interest by eminent domain. In order to adopt the Resolution of Necessity the City Council must find and determine that:

A. The public interest and necessity require the Project.

B. The Project is planned or located in the manner that will be compatible with the greatest public good and least private injury.

C. The Subject Property Interests described in the Resolution of Necessity are necessary for the Project.

D. The City has made the offer required by Government Code Section 7267.2 to the owner of record of the Subject Property.

This hearing relates to issues A, B, C, and D above. The amount of just compensation is not an issue before the City Council at this hearing.

BACKGROUND

As a direct result of the severe 2005 Winter storms and historic flooding, on March 15, 2005, City Council approved a 16-month expenditure plan for storm drain improvements
and established a Water Quality and Flood Protection Enterprise fund with $2M of General Fund Reserves (for expenditure in FY04-05 and FY05-06) and a $445K

General Fund transfer into the Infrastructure Improvement Fund (for expenditure in FY04-05).

One of the storm drain improvement projects that was not identified by the Master Plan of Drainage, but was identified as part of the March 15, 2005 Storm Drain Expenditure Plan based upon its inadequate performance during last year’s winter rains, was the following project:

Project: Construction
Cost Estimate:

McCarrell Canyon Interim Improvements:

 Improvements to the McCarrell Canyon between
Palos Verdes Drive South and Southern California
Edison property involving construction of two debris racks
and two gabion walls within the lower reaches of
McCarrell Canyon $ 65,000

Based upon the predicted upcoming wet rainy season and the history of the catastrophic flooding downstream from water that came from McCarrell Canyon, it was concluded that it would be more prudent to move forward with these needed improvements immediately before the onset of this year’s rainy season. Design started on the aforementioned improvements immediately after the March 15 City Council meeting at which Council provided direction to staff to proceed with this project.

DISCUSSION

Description of Proposed Project

The Project proposes to install emergency drainage improvements in order to collect debris that comes from properties upstream in McCarrell Canyon so that water from the Canyon will be able to enter the storm drain that goes under Palos Verdes Drive South so that it will not go onto Palos Verdes Drive South and onto other private properties located downstream. There currently are drainage improvements located on the property, but they are incapable of handling the large amount of debris that is created by heavy or constant rainfall.

The improvements proposed to the Subject Property focus on providing temporary flood protection. Accordingly, it is necessary that the City Council consider the attached Resolution of Necessity at this time given that the rainy season already has commenced this year. The City proposes to acquire a fee simple interest in the real property located at 6359 Tarragon Road, and identified as Assessor’s Parcel Number 7573-004-026, in connection with the construction of the City’s proposed emergency drainage improvements.

Environmental Analysis

Section 15269(c) of the California Code of Regulations, the State CEQA Guidelines, provides that specific actions necessary to prevent or mitigate an emergency are exempt from the requirements of the California Environmental Quality Act (“CEQA”). Staff has determined that this project is exempt from the requirements of CEQA because the project is being undertaken as an emergency repair. A Notice of Exemption has been filed for this drainage improvement project.

It should be noted, however, that the emergency exemption is not applicable to long-term projects undertaken for the purpose of preventing or mitigating a situation that has a low probability of occurring in the short term. Accordingly, the City has not conducted an environmental analysis of the ultimate drainage project because the subject Project is only for short term emergency construction, repair and maintenance. When the City proceeds to design the ultimate drainage improvements, the City will be required to conduct a full environmental review of that project in accordance with the requirements of CEQA.

Actions of City Pursuant to Government Code Section 7262, et seq.

Pursuant to Government Code Section 7262 et seq., the City of Rancho Palos Verdes obtained a fair market appraisal of the Subject Property, set just compensation in accordance with the appraised fair market value and extended a written offer letter on October 11, 2005, to Carmiel Cohen, the owner of record of the Subject Property. A true and correct copy of the offer letter is on file in the Department of Public Works and is incorporated in this Staff Report by this reference. That offer was rejected by Mr. Cohen, and to date, no negotiated purchase has been consummated. The urgency of the proposed Project and the schedule for the proposed Project require that the City Council consider the proposed Resolution of Necessity at this time.

Necessary Findings for Adoption of Resolution of Necessity

To adopt the proposed Resolution of Necessity, the City Council must find and determine that:

A. The public interest and necessity require the Project.
B. The Project is planned or located in the manner that will be compatible with the greatest public good and least private injury.
C. The Subject Property described in the Resolution of Necessity is necessary for the Project.
D. The City has made the offer required by Government Code Section 7267.2 to the owner of record of the property it seeks to acquire.
As noted above, this hearing relates only to Issues A, B, C and D above. The amount of just compensation is not an issue before the City Council at this hearing. Each of the issues is discussed in turn below.

A. The Public Interest and Necessity Require the Project.
As explained above, the City seeks to acquire the Subject Property for a public purpose. Specifically, the Subject Property is needed for the City to construct emergency drainage improvements. The proposed improvements are the construction of two debris racks and two gabion walls within the lower reaches of McCarrell Canyon in order to improve the efficiency and capacity of the storm drain that runs under Palos Verdes Drive South and thereby prevent the flooding of the streets and private property located downstream. The proposed Project requires the acquisition of the Subject Property because the Subject Property is located at the mouth of McCarrell Canyon and adjacent to the storm drain that conveys water from the Canyon underneath Palos Verdes Drive South to the ocean. The public interest and necessity require the proposed emergency improvements in order to prevent the flooding of Palos Verdes Drive South and private properties downstream. The City seeks to implement the previously described emergency improvements prior to the height of the rainy season.

B. The Project is Planned or Located in the Manner that will be Compatible with the Greatest Public Good and Least Private Injury.
The Subject Property is necessary for the proposed emergency drainage project, as planned and located, which consists of installing additional drainage improvements on the Subject Property. The Subject Property, consisting of 50,700 square feet, borders Palos Verdes Drive South at the mouth of McCarrell Canyon. The emergency project is necessary in order to prevent debris from clogging the entrance to the storm drain so that water will not flood onto Palos Verdes Drive South and private properties downstream. Last year’s and this years heavy rainfall caused debris to inundate the existing drainage improvements on the Subject Property and clog the storm drain, which caused damage to private property located between Palos Verdes Drive South and the ocean. The Subject Property is necessary in order to install additional drainage improvements, which will protect Palos Verdes Drive South and the other properties downstream from flooding. The acquisition of the Subject Property is necessary to allow the City to install these improvements prior to the height of the rainy season.

C. The Subject Property Interest Described in the Resolution of Necessity is Necessary for the Project.
The proposed action consists of the acquisition of the fee simple interest in the property located at 6359 Tarragon Road in the City of Rancho Palos Verdes, California, identified as Los Angeles County Assessor’s Parcel Number 7573-004-026. As set forth above, the Subject Property is necessary for the proposed Project, and the emergency drainage improvements cannot be completed without the acquisition of the Subject Property Interest.

D. The City Made the Offer Required by Government Code Section 7267.2 to the Owner of Record of the Property It Seeks to Acquire.
Pursuant to Government Code Section 7262, et seq., the City obtained and approved a fair market value appraisal of the Subject Property, set just compensation in accordance with the approved appraisal, and extended a written offer, on October 11, 2005, to the owner of record of the Subject Property, Mr. Carmiel Cohen. A true and correct copy of the offer letter is on file in the office of the Director of Public Works and is incorporated in this Staff Report by this reference. The owner of the Subject Property rejected the offer, and the parties have not reached a negotiated purchase at this time.

CONCLUSION

Adopting the staff recommendation will authorize the City Attorney’s office to take the actions that are necessary for the City to acquire the Subject Property so that the Interim Drainage Improvements can be constructed as soon as possible to protect Palos Verdes Drive South and private properties that are located downstream.

FISCAL IMPACT

The cost of constructing the Interim Drainage Improvements has been estimated to be $65,000. The cost of acquiring the Subject Property will be determined either by a negotiated purchase or by a jury in connection with an eminent domain trial.

Respectfully Submitted by,

Carol Lynch, City Attorney

Reviewed by,

Les Evans, City Manager

Attachments:

Resolution of Necessity

RESOLUTION NO. ________
A RESOLUTION OF NECESSITY OF THE CITY OF RANCHO PALOS VERDES DECLARING CERTAIN REAL PROPERTY INTERESTS IDENTIFIED AS LOS ANGELES COUNTY ASSESSOR’S PARCEL NUMBER 7573-004-026, LOCATED AT 6359 TARRAGON ROAD, NECESSARY FOR PUBLIC PURPOSES AND AUTHORIZING THE ACQUISITION THEREOF, IN CONNECTION WITH THE EMERGENCY CONSTRUCTION, REPAIR AND MAINTENANCE OF DRAINAGE IMPROVEMENTS
THE CITY OF RANCHO PALOS VERDES HEREBY RESOLVES AS FOLLOWS:

Section 1. The City of Rancho Palos Verdes is a municipal corporation in the County of Los Angeles, State of California.

Section 2. The real property interests described in Section 3 of this Resolution are to be taken for a public use, namely for an emergency drainage project (“Proposed Project”), and all uses necessary or convenient thereto pursuant to the authority conferred upon the City of Rancho Palos Verdes to acquire property by eminent domain by California Constitution Article 1, Section 19, California Government Code sections 37350, 37350.5, 37351, 37353, 40401, 40404, and 54031 and California Code of Civil Procedure section 1230.010, et seq., including, but not limited to sections 1240.010 through 1240.050, 1240.110, 1240.120, 1240.410, 1240.510, 1240.610, 1240.650, and other provisions of law.

Section 3. The real property interest sought to be taken is a fee simple interest for the installation of emergency drainage improvements on the property identified as land located at 6359 Tarragon Road, Rancho Palos Verdes, California, also identified as Assessor’s Parcel Number 7573-004-026. The legal description of the Subject Property Interest is attached as Exhibit “A” to this Resolution and the Subject Property Interest is depicted on the diagram attached as Exhibit “B” to this Resolution. Said Exhibits are incorporated herein by this reference. The Subject Property Interest is required for the construction, repair and maintenance of the emergency drainage improvements to the McCarrell Canyon, which is a public use.

Section 4. The acquisition of the Subject Property Interest is required to carry out and make effective the principal purpose of the Proposed Project. A general description of the Proposed Project is set forth in the Staff Report dated December 6, 2005, and the evidence, reports, and documents cited in that Staff Report are all incorporated herein by this reference.

Section 5. In terms of the potential environmental impacts, Section 15269(c) of the California Code of Regulations, the State CEQA Guidelines, provides that specific actions necessary to prevent or mitigate an emergency are exempt from the requirements of the California Environmental Quality Act (“CEQA”). Staff has determined that the Proposed Project is exempt from the requirements of CEQA because the project is being undertaken as an emergency repair. A Notice of Exemption has been filed for this drainage improvement project. The City Council concurs with Staff’s finding that the interim drainage improvement project and the acquisition of the subject property as the location for that project are exempt from the requirements of the California Environmental Quality Act pursuant to the provisions of Section 15269(c) of the California Code of Regulations. This finding shall not apply to any other drainage project which the City may construct on the subject property in the future, which shall be evaluated in accordance with the requirements of CEQA.

Section 6. The real property interest sought to be acquired is currently being used as a vacant land with an existing drainage improvement. The Proposed Project will not unreasonably interfere with or impair the continuance of any existing public use or as the public use may reasonably be expected to exist in the future as allowed pursuant to Code of Civil Procedure Section 1240.510.

Section 7. The City Council of the City of Rancho Palos Verdes hereby finds and determines that:
A. The public interest and necessity require the project because the City seeks to acquire the Subject Property for a public purpose.
Specifically, the Subject Property is needed for the City to construct emergency drainage improvements. The proposed improvements are the construction of two debris racks and two gabion walls within the lower reaches of McCarrell Canyon in order to improve the efficiency and capacity of the storm drain that runs under Palos Verdes Drive South and thereby prevent the flooding of the streets and private property located downstream. The proposed Project requires the acquisition of the Subject Property because the Subject Property is located at the mouth of McCarrell Canyon and adjacent to the storm drain that conveys water from the Canyon underneath Palos Verdes Drive South to the ocean. The public interest and necessity require the proposed emergency improvements in order to prevent the flooding of Palos Verdes Drive South and private properties downstream. The City seeks to implement the previously described emergency improvements prior to the height of the rainy season.
B. The Project is Planned or Located in the Manner that will be Compatible with the Greatest Public Good and Least Private Injury.
The Subject Property is necessary for the proposed emergency drainage project, as planned and located, which consists of installing additional drainage improvements on the Subject Property. The Subject Property, consisting of 50,700 square feet, borders Palos Verdes Drive South at the mouth of McCarrell Canyon. The emergency project is necessary in order to prevent debris from clogging the entrance to the storm drain so that water will not flood onto Palos Verdes Drive South and private properties downstream. Last year’s and this years heavy rainfall caused debris to inundate the existing drainage improvements on the Subject Property and clog the storm drain, which caused damage to private property located between Palos Verdes Drive South and the ocean. The Subject Property is necessary in order to install additional drainage improvements, which will protect Palos Verdes Drive South and the other properties downstream from flooding. The acquisition of the Subject Property is necessary to allow the City to install these improvements prior to the height of the rainy season.
C. The Subject Property Interest Described in the Resolution of Necessity is Necessary for the Project.
The proposed action consists of the acquisition of the fee simple interest in the property located at 6359 Tarragon Road in the City of Rancho Palos Verdes, California, identified as Los Angeles County Assessor’s Parcel Number 7573-004-026. As set forth above, the Subject Property is necessary for the proposed Project, and the emergency drainage improvements cannot be completed without the acquisition of the Subject Property Interest.
D. The City Made the Offer Required by Government Code Section 7267.2 to the Owner of Record of the Property It Seeks to Acquire.
Pursuant to Government Code Section 7262, et seq., the City obtained and approved a fair market value appraisal of the Subject Property, set just compensation in accordance with the approved appraisal, and extended a written offer, on October 11, 2005, to the owner of record of the Subject Property, Mr. Carmiel Cohen. A true and correct copy of the offer letter is on file in the office of the Director of Public Works and is incorporated in this Staff Report by this reference. The owner of the Subject Property rejected the offer, and the parties have not reached a negotiated purchase at this time.

Section 8. The City has complied with the notice requirements of Code of Civil Procedure Section 1245.235.

Section 9. The findings and declarations contained in this Resolution are based on the record before the City Council on December 6, 2005 when it adopted this Resolution, including the Staff Report dated December 6, 2005, all documents referenced and incorporated in the Staff Report, the testimony at the hearing, and the records and documents prepared in connection with the Proposed Project, all of which are incorporated in this Resolution by this reference.

Section 10. The City Council of the City of Rancho Palos Verdes authorizes and directs the City Attorney’s office and Staff to take all steps necessary to commence and prosecute legal proceedings in a court of competent jurisdiction to acquire by eminent domain the real property interests described in Exhibit “A” attached hereto.

Section 11. This Resolution shall take effect upon adoption.

Section 12. The City Clerk shall certify to the adoption of this Resolution and shall cause this Resolution and her certification to be entered in the Book of Resolutions of the City Council of this City.
PASSED, APPROVED, AND ADOPTED by the City Council of the City of Rancho Palos Verdes this ___ day of December 2005.
_______________________________
Mayor

ATTEST:

___________________________(SEAL)
Carolynn Petru
City Clerk

APPROVED AS TO FORM:

___________________________ __________________________
Carol Lynch Les Evans
City Attorney City Manager