HomeMy WebLinkAboutRES NO 117-05
RESOLUTION NO.
'1117-05
A RESOLUTION OF NECESSITY DECLARING THE
PUBLIC INTEREST AND NECESSITY FOR THE
ACQUISITION OF A REAL PROPERTY INTEREST
WITHIN PARCEL 5 OF PARCEL MAP 8362, IN BOOK
38, PAGE 54 OF MAPS, IN THE OFFICIAL RECORDS
OF THE KERN COUNTY RECORDER CONSISTING
OF .77+/- ACRES IN BAKERSFIELD (ATN 387-020-
31) AND ENABLING THE CITY TO CONDEMN THE
PROPERTY INTEREST PURSUANT TO CODE OF
CIVIL PROCEDURE SECTIONS 1245.220 AND
1245.230. (WARD 3)
WHEREAS, after notice and opportunity have been given to the property owner(s)
at issue the City Council of the City of Bakersfield, by vote of two-thirds or more of its
members, hereby finds and determines as follows'
1. The City of Bakersfield proposes to realign Masterson Street by acquisition
of a real property interest located within Parcel 5 of Parcel Map 8362, recorded in Book
38. PaJ6 54 of Maps, in the Official Records of the Kern County Recorder; and
2. The City of Bakersfield Intends to acquire the property interest and construct
¡r~prover'r6nts thereon for public use, to carry out and make effective the principal purpose
f)L~I'sLlEmt to Code of Civil Procedure section 1240.120(a). Said public use is a function of
the City of Bakersfield; and
3. The property interest proposed for acquisition is undeveloped and
designated as low-density residential; and
4. The parcel in question is zoned R-2; and
5 The City of Bakersfield has proposed the acquisition of the property interest
in order to realign Masterson Street so that it intersects State Route 178 at a ninety-degree
(902) angle (the "Project"); and
6. The acquisition of the property interest by the City is intended to protect the
public health, safety and welfare by providing for safer access onto and off of State Route
178; and
7. The proposed acquisition of the property interest will further the
implementation of the Metropolitan Bakersfield 2010 General Plan; and
8. A legal description of the property interest is attached as Exhibit "A" and a
general plat map and description of the property interest is attached as Exhibit "B",
attached hereto and incorporated herein by reference; and
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9. The property interest described in the attached Exhibit "A" and generally
depicted in Exhibit "B" is required for the Project; and
1 O. The City of Bakersfield has fully complied with Code of Civil Procedure
section 1245.235 and now desires to adopt its Resolution of Necessity in compliance with
Code of Civil Procedure section 1245.230; and
11. On May.ilL, 2005, there was mailed a Notice of Hearing on the intent of City
of Bakersfield to adopt a Resolution of Necessity for acquisition by eminent domain of the
real property interest described in Exhibits "A" and "B" herein, which Notice of Hearing is
attached hereto as Exhibit "C" and is incorporated herein by this reference. Said Notice
of Hearing was mailed to all persons whose names appear on the last equalized County
Assessment Roll as having an interest in the property within which the real property
interest is sought. Said Notice of Hearing advised said persons of their right to be heard
on the matters referred to therein on the date and at the time and place stated therein; and
12. The proposed project for which this acquisition is made is covered by section
15301; Existing Facilities; Class 1 (c) of the CEQA Guidelines. A "Notice of Exemption" will
be filed on July 14, 2005 , and the contents thereof are incorporated as though fully
set forth herein;
13. By Resolution dated May 12, 2004, the Bakersfie!d City Council made a
general pian consistency finding pursuant to Government Code section 65402 for
acquisition of the Subject Property. The contents of said resolution are incorporated as
though fully set forth herein; and
14. The property interest is to be acquired for the layout. establishment,
cor:struction. and maintenance of the Project Article III, section 12 of the Charter of the
City of Bakersfield, Government Code section 66462.5, and Sections 1240.010, et seq.,
of the Code of Civil Procedure authorize the City of Bakersfieid to acquire the Subject
Proper"ty by eminent domain; and
15. The City Council of the City of Bakersfield hereby finds and determines each
of the following:
a. The public interest and necessity require the Project;
b. The Project is planned, approved, and accepted in a manner compatible
with the greatest public good and the least private injury;
c. The property interest is necessary for the Project; and
d. The offer(s) required by Government Code section 7267.2 have been
made to the owners of record of the Subject Property.
16. Specific findings of fact supporting the City Council's determination herein
are set forth in Exhibit "0" attached hereto and made a part hereof, as well as other
evidence as may be presented at the time of the hearing.
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NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF BAKERSFIELD AS FOllOWS:
1. That each of the matters set forth above is true and correct and the City
Council of the City of Bakersfield so finds and determines
2.
Project.
That the property interest described herein is required to complete the
3. That the City exercise its power under Code of Civil Procedure sections
1240.010, et seq., Government Code section 37350.5, and Article III, Section 12 of the
Charter of the City of Bakersfield in acquiring the property interest discussed herein.
4. That City staff is authorized and directed to take any and all appropriate
actions consistent with the purposes of this resolution including, but not limited to, initiating
proceedings in eminent domain to acquire the property interest, to obtain an order(s) for
immediate possession of the property interest, withdrawal of necessary compensation that
will be awarded in the eminent domain proceedings and to take such other and further
action as may be required to timely obtain the property interest for said public uses and
purposes.
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I HEREBY CERTIFY that the foregoing Resolution was passed and adopted by the
Cour¡çU of the City of Bakersfield at a regular meeting thereof held on
MAY 2 5 2005 ,by the following vote
~
ABSTAIN
ABSENT:
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COUNCILMEMBER COUCH, CARSON, BENHAM. MAGGARD, HANSON. SULLIVAN. SCRIVNER
COUNCILMEMBER
COUNCILMEMBER
COUNCILMEMBER
d. McL2á
CITY CLERK and Ex Officio k of the
Council of the City of Bakersfie d
APPROVED MAY 2 5 2005
BY~ Ifl#
HARVEY L. HALL
Mayor
APPROVED AS TO FORM:
VIRGINIA GENNARO
City Attorney
By
~ at, Jk,
ALLEN M. SHAW
Deputy City Attorney
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EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY INTEREST
PARCEL "A"
ALL THAT PORTION OF THE SOUTHWEST QUARTER OF SECTION 16,
TOWNSHIP 29 SOUTH, RANGE 29 EAST, MDM, CITY OF BAKERSFIELD,
COUNTY OF KERN, STATE OF CALIFORNIA, BEING DESCRIBED AS FOLLOWS:
COMMENCING AT THE WEST QUARTER CORNER OF SAID SECTION 16; THENCE
S.00021'29"W ALONG THE WEST LINE OF SAID SOUTHWEST QUARTER, A
DISTANCE OF 588.96 FEET; THENCE
DEPARTING SAID WEST LINE, S89°38'31"E., 55.00 FEET TO THE POINT OF
BEGINNING, ALSO BEING THE BEGINNING OF A NON-TANGENT CURVE
CONCAVE TO THE EAST, HAVING A RADIUS OF 1945.00 FEET AND TOW WHICH
BEGINNING A RADIAL LINE BEARS N89°38'31"W; THENCE
SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 22°03'30"
AN ARC DISTANCE OF 748381 FEET TO THE SOUTH LINE OF PARCEL 5 OF
PARCEL MAP NO. 8362 AS FILED IN PARCEL MAP BOOK 38 AT PAGE 54 IN THE
OFFICE OF THE KERN COUNTY RECORDER; THENCE
N.89°46'33"W ALONG SAID SOUTH LINE, A DISTANCE OF 118.07 FEET TO THE
BEGINNING OF A NON-TANGENT CURVE CONCAVE TO THE NORTHEAST,
HAVING A RADIUS OF 2055.00 FEET AND TO WHICH BEGINNING A RADIAL LINE
BEARS S69°31'44"W; THENCE
DEPARTING SAID SOUTH LINE, NORTHWESTERLY ALONG SAID CURVE
THROUGH A CENTRAL ANGLE OF 01°59'51" AN ARC DISTANCE OF 71.64 FEET
TO THE EAST LINE OF THE WEST 55.00 FEET OF SAID SOUTHWEST QUARTER;
THENCE
CONTAINING 0.77 ACRES, MORE OR LESS.
Q''JSI100\l£()M.S\ OIASn'.soNOflSITE-~. SEI'T. 24. 20M
McINTOSH & ASSOCIATES
2001 Wheelan Court
8akersr.eld. CA 93309
(661) 834--4814
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PLAT MAP DEPICTING THE PROPERTY INTEREST
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MASTrnSON
STREET
AUGNMENT
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CITY IN THE HILLS
VlESTING TJENTA1I1ME JPARCJEJL MAP NO. n013
MASTERSON STREET ALIGNMENT
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EXHIBIT
B
PARCH:; or
pARCEL MAP
NO. 8362
PARCEL 1 OF
PARCC:L MLlP NO. 5771
PARCEL' fI'"
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SCALE, 1" ... ~OO'
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600
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DATE: 09/27 /~4
JOB I 3517.010). *
DRAWN BY: ~~AM r-
FILE: 351700~GIN (J
EXHIBIT "C"
NOTICE OF HEARING
NOTICE OF HEARING REGARDING THE INTENT OF THE
BAKERSFIELD CITY COUNCIL TO ADOPT A RESOLUTION
OF NECESSITY TO ACQUIRE REAL PROPERTY INTEREST
BY EMINENT DOMAIN.
To NALBANDIAN FAMILY TRUST
c/o Nancy Nalbandian
P.O. Box 21421
Bakersfield, CA 93390
Re: Notice of Hearing regarding adoption of a Resolution of Necessity
to acquire a real property interest located within Parcel 5 of Parcel
Map 8362, Book 38, Page 54 of Maps, in the Official Records of
the Kern County Recorder (A TN 387-020-31) by Eminent Domain
[California Code of Civil Procedure section 1245.235]
Dear Property Owner:
1. Notice of the Intent of the Bakersfield City Council to Adopt a Resolution
of Necessity. The Bakersfield City Council ("City") intends to consider the adoption of a
Resolution of Necessity on May 25, 2005 which, if adopted, will authorize the City to
acquire an interest in the real property described herein, and depicted in Exhibit "A" to the
proposed Resolution of Necessity (attached herein as Exhibit "1 ") by eminent domain.
2. Notice of Your Right to Appear and Be Heard. Please take notice that the
Bakersfield City Council, at a regular meeting to be held on Wednesday, May 25, 2005,
at 7:00 p.m. or as soon thereafter as the matter may be heard, at 1501 Truxtun Avenue,
Bakersfield, California 93301, will hold a hearing on whether such a Resolution of
Necessity should be adopted, as required by Code of Civil Procedure section 1245.220
for the commencement of an eminent domain proceeding to acquire real property
consisting of .77+/- acres within Parcel 5 of Parcel Map 8362, recorded in Book 38, Page
54 of Maps, in the Official Records of the Kern County Recorder for use as a right of way
in connection with the realignment of Masterson Street.
You have the right to appear and be heard before the City Council at the
above-scheduled hearing on the following 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 acquisition;
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b. Whether the proposed acquisition 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 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(a),
(attached as Exhibit "2") together with an accompanying statement and summary of the
basis for the amount established as just compensation, was actually made to you and
whether said offer was in a form and contained all of the factual information required by
Government Code section 7267.2(a) (attached as Exhibit "3");
e. Whether the City has statutory authority to acquire the property interest
sought to be acquired by eminent domain;
f. 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 interest described herein.
The project for which this acquisition is made is categorically exempt from CEQA
pursuant to CEQA Guideline 15301. CEQA Guideline 15301 provides an exemption from
CEQA for existing facilities, including streets and highways. A "Notice of Exemption" will
be filed after the scheduled hearing.
The statute(s) which authorize the City of Bakersfield to acquire the property
interest by eminent domain for this project include, but are not limited to, Code of Civil
Procedure section 1240.010; Article III, Section 12 of the Bakersfield City Charter,
California Streets and Highways Code sections 1810 and 5100 et seq., and California
Government Code sections 37350 and 37350.5.
3. Failure to File a Written Request to Be Heard Within Fifteen (15) Days After
this Notice Was Mailed Will Result in Waiver of the Right to Appear and Be Heard.
If you desire to be heard, you must file a written request with the Clerk of the Bakersfield
City Council within fifteen (15) days after this Notice was mailed. You must file your
request to be heard at: Bakersfield City Clerk, 1501 Truxtun Avenue, Bakersfield,
California 93301. Should you elect to mail your request to the Clerk of the governing
board, it must be actually received by the 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 issues which
are the subject of the hearing.
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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 interest will not be
considered by the Council at this hearing.
The amount of the compensation to be paid for acquisition of the
property interest is not an issue being heard by the Bakersfield 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 of
Bakersfield 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 of Bakersfield to take the
property interest 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 which are the
subject of this noticed hearing and which are concerned with the right
to take the property interest by eminent domain.
If the City of Bakersfield 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 served on May _' 2005.
Very truly yours,
PAMELA A McCARTHY
City Clerk
Attachments:
Exhibit 1: Proposed Resolution of Necessity
Exhibit 2: Offer Letter (with attachments)
Exhibit 3: Government Code section 7267.2(a)
cc:
Michael S. Abril, Esq.
BORTON, PETRINI & CONRON, LLP
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EXHIBIT "D"
FINDINGS OF FACT
I. The public good, interest, and necessity require the proposed project and the
acquisition of the necessary property interest based on the following facts:
1. The proposed project is the realignment of Masterson Street, adjacent to
State Highway 178.
2. Acquisition of a right of way interest as part of the realignment of Masterson
Street is necessary to provide expanded traffic service to residents of the
City of Bakersfield and provide for the public safety and convenience by
improving ingress and egress from State Route 178.
II. The proposed project is planned and located in a manner that will provide the
greatest public good and the least private injury. This finding is based on the
following facts:
1. Facts stated in Section I above support the public good.
2. The right of way interest to be acquired is located on property that is vacant.
The realignment of Masterson Street will not unduly interfere with the future
development of the surrounding property.
III. The property interest being acquired is necessary for the proposed project. This
finding is based on the following facts:
1. The right of way interest to be condemned will allow for the realignment of
Masterson Street to a ninety-degree (90º) angle at its intersection with State
Route 178.
2. No other property is suitable for the project.
IV. All information presented at the time of the hearing in support of the findings set
forth in Sections I through III herein is incorporated by this reference.
V The offer to the property owner as required by section 7267.2 of the Government
Code has been made. This finding is based on the following facts:
1. Michael S. Abril, Esq. of Borton Petrini & Conron, the City's outside legal
counsel, conveyed a written offer required under section 7267.2 of the
Government Code to the Nalbandian Family Trust to acquire the proposed
right of way interest. The offer was dated December 6, 2004, and was based
upon an appraisal of the right of way interest by Randy Merriman.
2. The property owner has rejected the offer given by the City.
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