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HomeMy WebLinkAboutRES NO 160-01RESOLUTION NO. 160' 01~ A RESOLUTION OF NECESSITY DECLARING THE PUBLIC INTEREST AND NECESSITY FOR THE ACQUISITION OF A STREET RIGHT-OF-WAY EASEMENT OVER REAL PROPERTY LOCATED EAST OF TRUXTUN AVENUE AND WEST OF COMMERCE DRIVE FOR A PROPOSED TRUXTUN AVENUE ACCESS ROAD (P.M. 10788) ENABLING THE CITY TO CONDEMN THE SUBJECT EASEMENT PURSUANT TO CODE OF CIVIL PROCEDURE SECTIONS 1245.220 AND 1245.230. 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. Vesting Tentative Parcel Map No. 10788 has been approved by the Planning Commission of the City of Bakersfield, subject to certain approved exceptions and conditions contained in the administrative record for such decision which record is incorporated herein by this reference as though fully set forth; and 2. A condition for development of Parcel Map No. 10788 requires the subdivider to provide access to Truxtun Avenue over adjoining property to the west which is not owned by the subdivider; and 3. Despite extensive and lengthy negotiations between the subdivider and the owners of the adjoining land to acquire the necessary right-of-way, the subdivider has been unable to acquire this interest and has requested the assistance of the City of Bakersfield; and -- Page I of 4 Pages -- 4. On July 18, 2001, an agreement was executed between the subdivider and the City of Bakersfield for the subdivider to secure construction of all improvements required by Parcel Map No. 10788 and to guarantee payment for acquiring offsite real property interests as required under the Vesting Tentative Parcel Map; and 5. On July 27, 2001, subdivider filed and recorded the final Parcel Map for this development; and 6. California Government Code section 66462.5 requires a local govermng body to acquire an interest in land upon which the subdivider is required to build improvements within 120 days of the filing of the subdivision map if the subdivider is unable to acquire these interests privately; and 7. By virtue of Article Ill, Section 12 of the City Charter, Municipal Code Chapter 14.12 and California Government Code section 66462.5, the City of Bakersfield is authorized to acquire the easement interest by eminent domain for this project; and 8. The Public Works Department of the City of Bakersfield has prepared a plan of works for the construction of the proposed Truxtun Avenue access mad (the "Project"); and 9. A legal description of the subject property is attached as Exhibit "A" and a general plat map and description of the subject property is attached as Exhibit "B" and incorporated herein by reference; and 10. An easement across the real property described in attached Exhibit "A" and generally depicted in Exhibit "B" (the "subject property") is required for the completion of the Project; and 11. 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 12. On October 2,2001 there was mailed Notices of Hearing on the intent of City of Bakersfield to adopt a Resolution of Necessity for acquisition by eminent domain of the easement interest in real property described in Exhibits "A" and "B" herein, which Notices of Hearing are attached hereto as Exhibit"C" and are incorporated herein by this reference. Said Notices of Hearing were mailed to all persons whose names appear on the last equalized County Assessment Roll as having an interest in the property described herein. Said Notices 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 13. The proposed project for which this acquisition is made is categorically exempt from CEQA under Section 15301 (Existing Facilities Class 1(c)). A "Notice of Exemption" was filed; and 14. By Resolution dated April 5, 2001, the Bakersfield Planning Commission made a General Plan consistency finding pursuant to Government Code section 65402 for acquisition of the subject property interest. The contents of said Resolution are incorporated as though fully set forth herein; and 15. The easement interest is to be acquired for the layout, establishment, construction, and maintenance of the Project. Article III, Section 12 of the Charter of the City of Bakersfield, section 66462.5 of the Government Code and sections 1240.010 et seq., of the Code of Civil Procedure authorize the City of Bakersfield to acquire the easement interests by eminent domain; and -- Page 2 of 4 Pages -- 16. 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 easement interest in the subject property is necessary for the Project; and d. The offers required by Government Code section 7267.2 have been made to the owners of record of the subject property; and 17. Specific findings of fact supporting the City Council's determination herein are set forth in Exhibit "D" attached hereto and made a part hereof, as well as other evidence as may be presented at the time of the hearing. 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. That the permanent street right-of-way easement described herein is required to complete the Project. 3. That the City exercise its power under Code of Civil Procedure sections 1240.010 et seq., Government Code section 66462.5, and Article III, Section 12 of the Charter of the City of Bakersfield in acquiring the property interest (easement) 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 subject property interest (easement), to obtain an order(s) for immediate possession of the easement, 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 easement for said public uses and purposes. .......... O00 .......... -- Page 3 of 4 Pages -- OR~GINA{ I HEREBY CERTIFY that the foregoing Resolution was passed and adopted by the Council of the City of Bakersfield at a regular meeting thereof held on ~3T ~, 4 ?~1 . by the following vote: AYES: COUNCILMEMBER CARSON, BENHAM, MAGGARD, COUCH, HANSON, SULLIVAN, SALVAGGIO NOES: COUNCILMEMBER ABSTAIN: COUNCILMEMBER ABSENT: COUNCILMEMBER CITY CLERK and E~"(~ci~o Clerk of the Council of the City of Bakersfield APPROVED OCT 2,~ 2001 HARVEY L. HALL Mayor APPROVEDASTOFORM: BART J. THILTGEN City Attorney By G. ALLFORI:)/ Deputy City Attorney MGA:Isc S:\COU NC~L\Resos\RON.CommerceDrPtnrs.wpd October 1, 2001 -- Page 4 of 4 Pages -- ©R1G)NAL EXHIBIT A ORIGINAL TRUXTUN AVENUE STREET RIGHT. F-WAY DEDICATION EXHIBIT "A" BEING A PORTION OF THAT PORTION OF LOT 25, IN SECTION 27, TOWNSHIP 29 SOUTH, RANGE 27 EAST, MOUNT DIABLO BASE AND MERIDIAN, AS PER MAP RECORDED DECEMBER 7, 1909 IN BOOK 1, PAGE 130 OF MAPS, LYING SOUTHEASTERLY OF THE SOUTHEASTERLY BOUNDARY OFTHE TRUXTUN AVENUE EXTENSION AS DESCRIBED IN FINAL ORDER OF CONDEMNATION RECORDED SEPT EMBER 24, 1979 IN BOOK 5231, PAGE 232, OF OFFICIAL RECORDS IN THE OFFICE OF THE KERN COUNTY RECORDER, IN THE CITY OF BAKERSFIELD, COUNTY .OF KERN, STATE OF CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHWEST CORNER OF PARCEL 'D' OF PARCEL MAP WAIVER NO. P99-0600, PER CERTIFICATE OF COMPLIANCE RECORDED OCTOBER 29, 1999 AS DOCUMENT NO. 0199157166, OF OFFICIAL RECORDS IN THE OFFICE OF THE KERN COUNTY RECORDER; THENCE NORTH 00°09'40" WEST, ALONG THE WESTERLY BOUNDARY OF SAID PARCEL 'D', A DISTANCE OF 98.58 FEET TO THE INTERSECTION OF SAID WESTERLY BOUNDARY OF PARCEL 'D' WITH SAID SOUTHEASTERLY BOUNDARY OF THE TRUXTUN AVENUE EXTENSION, SAID INTERSECTION BEING THE TRUE POINT OF BEGINNING; THENCE 1) SOUTH 84°50'19" WEST,ALONG sAID SOUTHEASTERLY BOUNDARY OF THE T~.UXTUN AVENUE EXTENSION, A DISTANCE OF 138.64 FEET; THENCE2) DI=PARTiNGSAiDSOUTHEASTERLYBOUNDARYOFTHETRUXTUN AVENUE EXTENSION, EASTERLY, ALONG A NON-RADIAL CURVE, CONCAVE NORTHERLY, HAVING A RADIUS OF 130.00 FEET, A RADIAL TO WHICH BEGINNING OF CURVE BEARS SOUTH 29°42-55" WEST, THROUGH A CENTRAL ANGLE OF 29°52'35", AN ARC LENGTH OF 67.79 FEET; THENCE 3) NORTH 89°50'20" EAST, A DIST/~NCE OF 73.35 FEET TO SAID WESTERLY BGUNDARY OF PARCEL THENCE 4) NORTH 00°09'40" WEST, ALONG SAID WESTERLY BOUNDARY OF PARCEL 'D', A DISTANCE OF 29.36 FEET TO THE TRUE POINT OF BEGINNING. CONTAINING 2,-$58 SQUARE FEET~ MORE OR I'ESS. EXHIBIT B O~IGINAL NORTH SCALD 1' : 50' EXHIBIT "B" ADDITIONAL RIGHT-OF-WAY EXISTING EASEMENTS R~4? ~F Y~AY PARCEL D PARCEL MAP WAllER NO. P99-0600 PER CERTIFICATE OF COMPL/ANCE RECORDED OCTOBER 29, 1999 AS DOCUMENT NO. 0199157188 I II II ~ =1 II POINT OF COIWdENCEI, IENT SW CORNER OF PARCEL O NO~'Og'40'W 114.7~' EXISTING I ~sr u~ o~ 1ur s~ I/* I I BK. 3086, POS ,,335-$40 O.R. 20' V4DE P.T. & T. EASEMENT AGREEMENT NO. 79-140 Q 80' WIDE P.O. * £. EASEMENT 25' WIDE EMERGENCY ACCESS EASEMENT BI(.6719, PGS 50-52 O,R. (~ 15' WIDE POLE AND PIPEUNE EASEMENT BK. 5687, PGS 498--507 O.R. PARCEL 4 - P.G. & E. £ASEIvlENT BK. 3086, PGS 335-340 O.R. PUBLIC STREET' EASEMENT PER CONDEMNAT)OI~ BK. 5232, PGS 539.-54,30.R. AND BK. 524.8. PGS 1497-1503 O.R. TRUE P~NT BEGINNING' REI, IAINflER OF LOT 25 IN SECTION 27, T.29S., R. 27E.., M.B. I, PG. 130 RIGHT OF WAY DEDICATION 0.0~? AONE$ Cf A. \ \ \ \ \ \ \ \ \' #'AY e~'~'°~'*'~ SANTA FE · DRIVE~AY ["~'~' -- ' ~ EAS~ME,~T ~ · ! r~z~x'rus ~cczss SITE PLAN 10 30 90 150 0 20 60 120 DEIVE~AY PARCEL-~ ........J ~ i .-"'-PARCEL-3 I : ~ I ' i A PARCEL-4 EXHIBIT C NOTICE OF HEARING REGARDING THE INTENT OF THE BAKERSFIELD CITY COUNCIL TO ADOPT A RESOLUTION OF NECESSITY TO ACQUIRE A STREET RIGHT-OF-WAY EASEMENT BY EMINENT DOMAIN To: Jeff Wanamaker, an individual and as Executor of the Estate of Robert Wanamaker P.O. Box 4106 Incline Village, NV 89450-4106 and All Others Listed on the Attached Service List Re: Notice of Hearing regarding adoption of a Resolution of Necessity to acquire a permanent street right-of-way easement over property located east of Truxtun Avenue and west of Commeme Drive (portion of Lot 25, Section 27, T. 29S, R. 27E; APN 332-280-32) 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 October 24, 2001 which, if adopted, will authorize the City to acquire a street right-of-way easement on the property described herein, and depicted on Exhibits "A" and "B" to the proposed Resolution of Necessity (attached) by eminent domain for a proposed Truxtun Avenue access mad. 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, October 24, 2001, 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 a permanent street right-of-way easement on your real property. 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; 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 interests sought to be acquired by eminent doma:l~h described in the Resolution of Necessity are necessary for the proposed project;~_ ~.~R~GI~AL Page No. 2 d. Whether the offer required by Government Code section 7267.2(a), 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 (attached) were in a form and contained all of the factual information required by Government Code section 7267.2(a) (attached as Exhibit "C"); e. Whether the City has statutory authority to acquire the interest in real property 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 (street right-of-way easement) described herein. The project for which this acquisition is made is categorically exempt from CEQA under section 15315. 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, California Government Code sections 66462.5, Code of Civil Procedure section 1240.125; and Article III, Section 12 of the Bakersfield City Charter. Additional authority is set forth in the proposed Resolution of Necessity attached hereto. 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 (t5) 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. 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 the 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 interest. Page No. 3 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 October 2, 2001. Very truly yours, MICHAEL G. ALLFORE) Deputy City Attorney MGA:Isc Attachments: Exhibit "A": Proposed Resolution of Necessity Exhibit "B": Offer and Statement/Summary Exhibit "C": Government Code section 7267.2(a) CC: Donald M. Anderson, Real Property Manager Pamela McCarthy, City Clerk S:~Lit\CommerceDrivePtnrs\Cor~Not Hearing. RON.wpd