HomeMy WebLinkAbout07-16-2013 ph2 reso of necessity
FROM: Daryl R. Grigsby, Director of Public Works
Christine Dietrick, City Attorney
Prepared By: Peggy Mandeville, Principal Transportation Planner
Andrea Visveshwara, Assistant City Attorney
SUBJECT: A RESOLUTION OF NECESSITY TO AUTHORIZE THE USE OF
EMINENT DOMAIN TO ACQUIRE A TEMPORARY CONSTRUCTION
EASEMENT IN APN: 053-151-016 FOR CONSTRUCTION OF THE LOS
OSOS VALLEY ROAD-HIGHWAY 101 INTERCHANGE PROJECT,
SPECIFICATION NO. 99821, AND CEQA FINDINGS
RECOMMENDATIONS
1. Adopt the proposed Resolution of Necessity (Attachment 1) to acquire the Temporary
Construction Easement through eminent domain and make findings that the proposed
acquisition of property was analyzed in the adopted Mitigated Negative Declaration for the
project.
2. Authorize the expenditure of $50,000 from the project account for legal counsel, continued
real estate services from Hamner, Jewell & Associates, the City’s approved on-call right-of-
way agents , continued appraisal services from Schenberger, Taylor, McCormick and Jecker,
and continued engineering services from Dokken Engineering for the purposes of
commencing eminent domain litigation and obtaining an order of possession.
3. Authorize the deposit of probable compensation in the amount of $15,500 from the project
account to the State of California as set forth in California Civil Procedure Code section
1255.010, et seq. for eminent domain.
DISCUSSION
Background
Project Description
The City of San Luis Obispo and Caltrans have been working since 2001 to design and implement
the Los Osos Valley Road/US 101 interchange project. The project will correct operational
deficiencies and improve safety at the southern entry to the City at Los Osos Valley Road. The
project includes widening Los Osos Valley Road to four lanes between the recently constructed
Calle Joaquin intersection and South Higuera Street. To accomplish this, a new two-lane bridge
structure would be constructed south of and adjacent to the existing overcrossing. The existing
bridge would carry the westbound traffic and the new bridge would carry eastbound traffic. An
adjacent bridge crossing San Luis Obispo Creek would be widened to accommodate the four travel
lanes. The project would also improve the interchange on and off-ramps and include 6-foot wide
sidewalks and 6.5-foot wide bike lanes.
Meeting Date
Item Number July 16, 2013
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RESOLUTION OF NECESSITY Page 2
As set forth in the Project Report (August 17, 2011) and Environmental Determination (August
2011), the Project is to improve operations, safety and capacity in and around the interchange to
accommodate a minimum of twenty years of traffic growth that will occur in this area of the City.
The project provides additional travel lanes on LOVR over US-101 and through ramp intersections.
It includes improvements to the existing non-standard on and off ramps to better serve the needs of
local and regional traffic (including bicycle and pedestrian traffic).
In 2008, the City applied to the San Luis Obispo Council of Governments for State Transportation
Improvement Program (STIP) for funds for the project. The City is the project sponsor, with the
California Department of Transportation serving in an oversight role to the City as the stewards of
the State Highway System.
Environmental Review
On August 15, 2011, the California Department of Transportation, as the designated Lead Agency
for the Project, adopted the findings required by the California Environmental Quality Act and
approved a Mitigated Negative Declaration (MND) for the project. For purposes of environmental
review, the City is designated a responsible agency. As the responsible agency, the City also must
undertake its own review of the environmental document.
If the responsible agency believes that the environmental document is not adequate for use, the
responsible agency must: 1) take the issue to court within thirty days of the lead agency filing the
notice of determination; or 2) waive any objection regarding the adequacy of the MND. On
October 4, 2011, to fulfill the responsible agency status, the Council considered the MND, and took
no action. Although there was a subsequent legal challenge to the MND, that legal challenge was
settled, and the MND stands. The MND specifically considered acquisition of property for the
project, and found no significant impact. The MND concluded that there were no environmental
consequences as a result of the anticipated future real property acquisition surrounding the
interchange. The scope of the real property acquisition at issue here is a temporary construction
easement and no mitigation measures were required for this acquisition.
Status of Project
On May 6, 2013, the City submitted 95% plans for Caltrans review. It is the City’s goal to have
final approvals from Caltrans by the end of the calendar year. Utility coordination is currently in
progress. In February 2013, the City made offers to acquire the right of way in fee from one owner
and temporary construction easements from one owner. The temporary construction easement
acquisition is from the current property owner, BP West Coast, LLC (see Attachment 2). As of the
date of this report, the City has a tentative purchase and sale agreement with the property owner of
the fee acquisition, which is subject to Council consideration and final approval on July 16, 2013.
As discussed in further detail below, the City staff recommends the Council authorize the use of
eminent domain to acquire the temporary construction easement from the second owner, BP West
Coast, LLC.
The Temporary Construction Easement is necessary
City staff is proposing that the City Council adopt the proposed Resolution of Necessity to acquire
the temporary construction easement (TCE) across APN 053-151-016 to facilitate construction of
the Project (see Attachment 3, Aerial Photo). Currently, the property is owned by BP West Coast
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RESOLUTION OF NECESSITY Page 3
Products, LLC (“BP”). BP, in turn, leases the property to BNB Gas & Mart, the franchise owner,
who operates a gas station on the subject property (see Attachment 3).
The TCE is necessary for two reasons. The portion of the TCE that is near the creek area is
necessary for construction staging purposes to build the retaining wall in Cal Trans right of way,
which supports the southbound off ramp. Without the TCE, construction would need to occur from
the back side of the retaining wall, which significantly increases the cost of the project, and more
importantly, unnecessarily increases the safety risk posed to construction workers. The second
portion of the TCE, which is the driveway area off of LOVR, is necessary to restore access
improvements. With the construction of the project, the new road will be higher than the current
driveway grades, and thus, improvements must be made to allow for vehicle access to be restored to
the subject property’s Los Osos Valley Road frontage. Public Works staff has explored design
alternatives and determined that it is not feasible to redesign the project in a manner to eliminate the
need for the restoration work to restore vehicle access.
The terms and conditions of the TCE are drafted in a manner to provide for the least disruption
possible to the business on site. As it relates to the TCE across the driveways to LOVR, the TCE is
non-exclusive. Unless there is active construction work going on in the driveway area to grade the
access, vehicular traffic may use the driveways for ingress and egress. In addition, delays or
obstructions to the driveways shall not exceed fifteen days for each driveway during the term of the
TCE. Finally, at least one driveway to LOVR shall remain open at all times. The other portion of
the TCE is down by the creek, which is land not used by the business on site and, therefore, land on
which construction activities will not create the potential for any access issues or business
disruption.
Negotiations stalled
On January 22, 2013, in a properly noticed closed session for real property negotiations, the Council
provided parameters to staff under which it would consider purchasing the TCE from BP.
Accordingly, through its right of way agent, Hamner, Jewell & Associates, the City presented an
offer to acquire the TCE to BP on February 6, 2013. Initially, BP indicated the offer would be
acceptable, but needed to do its due diligence before acceptance. Unfortunately, two intervening
events occurred before its acceptance. First, BP entered into escrow to sell the subject property to
the franchise owner. BP indicated that it anticipated it could still grant the TCE before closing
escrow. However, BP staff processing the offer left BP to go to another BP subsidiary. New BP
staff that then took over the negotiations decided simply not to deal with the government code offer,
which was an effective rejection.
Hamner Jewell & Associates has attempted to ascertain the date on which the parties may close
escrow. Based on their conversations, BP originally indicated the close date would be July 1.
However, as of the date of this report, escrow on the property has not closed.
Acquisition through Eminent Domain
The City must have possession of the TCE area by February 2014, based on the current project
timeline to obtain right of way certification from Cal Trans. To meet that deadline, the City must
begin the eminent domain process now. With the exact date of the close of escrow unknown and
outside of the control of the City, the City cannot delay initiation of eminent domain proceedings
until conclusion of negotiations of a purchase of the TCE with the potential new owner because, if
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RESOLUTION OF NECESSITY Page 4
negotiations stall with the new owner, the City would not be able to meet the February 2014
deadline through the eminent domain process. On June 25, 2013, City staff met with Cal Trans right
of way staff to discuss whether there are any available alternatives that could avoid or delay in
initiation of eminent domain proceedings. Cal Trans right of way staff confirmed that the TCE is
necessary for the Project and right of certification is needed by February 2014 for the Project to
remain on track and eligible for funding.
The City is vested with the power of eminent domain to acquire real property to facilitate public
projects by virtue of Article I, section 19 of the California State Constitution, California
Government Code section 37350.5 and California Civil Procedure Code sections 1240.010 and
1240.220. The City exercises its power of eminent domain by adopting a resolution of necessity by
a vote of at least four fifths of its members and making the following findings: 1) the public interest
and necessity require the project; 2) the 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 sought to be
acquired is necessary for the project, and 4) the offer required by section 7267.2 of the Government
Code has been made to the owner of record.
Prior to adopting the Resolution of Necessity, the Council must afford anyone with an interest in the
property to be acquired an opportunity to be heard on the issues on which the Council must make a
finding, if the individual has requested to be heard within the timeframe provided in the notice of
intent to adopt a resolution of necessity. City staff sent a notice of intent to adopt the resolution of
necessity to the current property owner, BP. The City provided a courtesy copy of the notice to the
franchise owner, BNB Gas & Mart. Pursuant to California Civil Procedure Code section 1245.235,
if the property owner or anyone else with an interest in the property does not file a written statement
or a request to be heard within fifteen days of the date of the notice, the person has waived the right
to be heard. Here, the request to be heard or a written statement must have been received by the City
Clerk on or before, July 10, 2013. The point of the hearing is to focus on whether the City can
make the findings as required by law to adopt the resolution of necessity. (See Civ. Proc. Code, §
1245.230.) The issue of compensation is determined by the subsequent court proceedings.
If the Council adopts the resolution of necessity, the City Attorney’s Office will work with outside
counsel to file a complaint in eminent domain as soon as possible, and to move for an order of
possession. An order of possession will allow the City to acquire the TCE prior to conclusion of the
litigation. Because of the noticing procedures to obtain an order of possession, obtaining one can
take several months, which is why staff is requesting that the City Council adopt the resolution of
necessity now.
Adoption of the Resolution of Necessity does not preclude future negotiations with the property
owner to reach a negotiated purchase of the TCE.
Retention of Outside Counsel and other consultants
If the Council adopts the Resolution of Necessity, the City will need to commence an eminent
domain action in superior court as soon as possible and move for an order of possession. Such
litigation exceeds the current capacity and expertise of the City Attorney’s Office. The City’s
Financial Management Manual recommends formal requests for proposals for matters that exceed
$25,000. However, there is not sufficient time to do a formal RFP or to rely upon the RFQ that the
Council approved for Outside Counsel legal services at the July 2, 2013 meeting. Requesting
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RESOLUTION OF NECESSITY Page 5
informal requests for proposals from at least three firms is sufficient for matters under $25,000, and
here, all firms with whom the City Attorney’s Office inquired indicated proposed budgets to file the
complaint and obtain an order of possession under $25,000.
Because the City Attorney believed it most prudent to obtain specialized legal review of the file and
RFQ in this matter prior to Council action on the RRFQ, staff is proceeding with retention of
eminent domain counsel via City Manager approval in advance of Council consideration of the
RFQ and in accordance with City policy. However, for Council’s information and that of the
public, included below is a summary of the proposals received. The City Attorney’s Office
requested informal proposals from four firms which had attorneys on staff with eminent domain
experience. All four firms’ responses are listed below, with the lead counsel.
Based on the proposals and follow up inquires of the proposing firms, the City Attorney selected
Michael Yoshiba of the firm Richards Watson Gershon to represent the City. Although the City
may consider price, for special services the determining factor is whether the person or entity has
the special skill, not necessarily price. (Gov. Code, § 53060) Mr. Yoshiba’s articulated analysis of
the case was extremely thorough and anticipated a detailed review of the pre-condemnation record,
as well as contingencies that could complicate the case. The primary reason for the selection was
Mr. Yoshiba’s extensive experience with Cal Trans and as a right of way agent (see attached bio)
and his significant experience in gas station acquisitions specifically related to interchange projects
and involving franchisees. Additionally, that experience includes the following projects:
1. Shell gas station and car wash for SR 101 interchange project at Kanan Road, Los
Angeles County – Stipulation for Judgment. This case involved a temporary construction easement,
a partial take of a fee interest, and claims for access impairment, site circulation impairment, and
bonus value of leasehold interest, a franchise agreement damage claim, and a claim for loss of
business goodwill;
2. Chevron gas station for SR 101 interchange project at Kanan Road, Los Angeles County
– Stipulation for Judgment. This case also involved a temporary construction easement, a partial
take of a fee interest, claims for access impairment, site circulation impairment, and bonus value of
leasehold interest, a franchise agreement damage claim, and a claim for loss of business goodwill;
3. Mobil gas station for I-5 interchange project at Brookhurst Avenue, Orange County –
Five day Bench trial-judgment at statutory offer. This case involved a temporary construction
easement, a partial take of a fee interest, claims for access impairment and site circulation
impairment, and a loss of business goodwill claim;
4. ARCO gas station for I-10 interchange project, Los Angeles County – Stipulation for
Judgment. This case involved a temporary construction easement, a partial take of a fee interest,
claims for access impairment and site circulation impairment, and a claim for loss of business
goodwill;
5. Chevron gas station for airport safety project at Bob Hope Airport on Hollywood Way,
Los Angeles County – Stipulation for Judgment. This case involved a full take of a fee interest, site
remediation and liability issues, and a claim for loss of business goodwill;
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RESOLUTION OF NECESSITY Page 6
6. ARCO gas station for redevelopment project on Alondra Boulevard in Los Angeles
County – Stipulation for Judgment. This case involved a full take of a fee interest, and site
contamination and remediation liability issues.
The summary of proposing firms is as follows:
Attorney/Firm Location Hourly
Rate
Other Staff Proposed Budget for
Complaint
Todd Amspoker
Price, Postel & Parma, LLP
Santa
Barbara
$315/hr. None identified $4,500-$5,000*
Benjamin Stock
Burke Williams & Sorenson
Oakland $275/hr
Associate $240/hr
Paralegal $140/hr
$4000 (but advised
would be less if staff
took certain steps)
Michael Yoshiba
Richards Watson Gershon
James P. Gilpin
Best, Best & Krieger LLP
Los
Angeles
San
Diego
$250/hr
$300/hr
Other Attorneys
$250/hr
Paralegal $150/hr
$250/hr
Paralegal $200/hr
$5,000-$7,000
$15,000
*All estimates include file and appraisal review, complaint
preparation, lis pendens, application for pre-judgment possession,
and deposit of probable compensation.
Additionally, staff recommends authorizing the continued services of Hamner, Jewell & Associates,
continued appraisal services from Schenberger, Taylor, McCormick and Jecker, and Dokken
Engineering for the purposes of assisting in the property acquisition and eminent domain matter.
Staff proposes that Council authorize the expenditure in an amount not to exceed $50,000 total for
the services the foregoing consultants and legal counsel combined for the purposes of commencing
eminent domain litigation and obtaining an order of possession.
CONCURRENCES
Community Development concurs in the proposed findings related to the California Environmental
Quality Act.
FISCAL IMPACT
LOVR Interchange Improvements has been an on-going capital improvement project for the past
decade. Funding for the LOVR Interchange project has been a combination of general fund,
transportation impact fees, grants and developer contributions. Project funding has been identified
in the subsequent Financial Plans as indicated below:
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RESOLUTION OF NECESSITY Page 7
2003-05 Financial Plan, Appendix B, pages 164-167
2005-07 Financial Plan, Appendix B, pages 147-150
2007-09 Financial Plan, Appendix B, pages 3-197 to 3-200
2009-11 Financial Plan, Appendix B, Pages 3-169 to 3-172
2011-13 Financial Plan, Appendix B, pages 3-133 to 3-136
2013-15 Financial Plan, pages 3-253 to 3-255
Currently, there is $1,098,825.50 available in the project account to support the requests for
retention of counsel for eminent domain litigation, appraisal services, continued services of right-of-
way agents to assist with property negotiations and to provide the probable compensation payment
as required by the State of California for eminent domain. Expenditures related to eminent domain
litigation and property negotiations will be billed directly to the capital project account for land
acquisition processes.
ALTERNATIVE
Deny Resolution of Necessity. The Council could not adopt the Resolution of Necessity and direct
staff to conduct further negotiations with BP. If Council opts for this alternative, a closed session
will be convened for the Council to discuss the terms and conditions for acquiring the TCE. This
approach is not recommended because if negotiations stall, the City would be at risk for not
obtaining possession of the TCE by February 2014, which would jeopardize project funding with
CalTrans.
ATTACHMENTS
1. Resolution of Necessity
2. Government Code Offer
3. Aerial Photo
4. Notice of Intent to Adopt Resolution of Necessity
5. Biography of Attorney Michael Yoshiba
AVAILABLE FOR REVIEW IN THE COUNCIL OFFICE
Project Report
Mitigated Negative Declaration and supporting documents
\\chstore4\team\council agenda reports\2013\2013-07-16\resolution of necessity (mandeville-visveshwara)\council agenda report.docx
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ATTACHMENT 1
R ______
RESOLUTION NO. _____ (2013 Series)
A RESOLUTION OF NECESSITY BY THE CITY OF SAN LUIS OBISPO TO
AUTHORIZE THE USE OF EMINENT DOMAIN TO ACQUIRE A TEMPORARY
CONSTRUCTION EASEMENT IN APN: 053-151-016 FOR THE PURPOSES OF
FACILITATING CONSTRUCTION FOR THE LOS OSOS VALLEY ROAD-HIGHWAY
101 INTERCHANGE PROJECT, SPECIFICATION NO. 99821 AND CEQA FINDINGS
WHEREAS, Los Osos Valley Road is a major regional arterial street that traverses half
of San Luis Obispo County from the Pacific Coastline to the center of the County near the San
Luis Obispo Regional Airport. Current regional and local traffic demands on the state and local
roadway system have deteriorated over time; and
WHEREAS, The Los Osos Valley Road-Highway 101 Interchange Project (“Project”)
proposes to widen Los Osos Valley Road (LOVR) between the recently reconstructed Calle
Joaquin intersection with LOVR west of US-101 and the Los Verdes Park community east of US
101 to four lanes; and
WHEREAS, the Project is to improve operations, safety and capacity in and around the
interchange to accommodate a minimum of twenty years of traffic growth that will occur in this
area of the City; and
WHEREAS, On August 15, 2011, the California Department of Transportation adopted
the findings required by the California Environmental Quality Act and approved a Mitigated
Negative Declaration for the Project. The Mitigated Negative Declaration, including the Notice
of Determination and the Initial Study, summarizes the purpose and need for the Project; and
WHEREAS, the Mitigated Negative Declaration approved for the project analyzed the
potential environmental impacts associated with real property acquisitions needed to construct
the project and concluded that there were no environmental consequences as a result of current or
future real property acquisition surrounding the interchange and that no avoidance, minimization
and/or mitigation measures were required; and
WHEREAS, City of San Luis Obispo desires to acquire temporary construction
easements in, over, upon, across and through APN: 053-151-016, as legally described in Exhibit
A-2 and depicted in Exhibit A-2 attached hereto for the purposes of facilitating construction of
the Project as fully described in Exhibit A-1; and
WHEREAS, the City is vested with the power of eminent domain to acquire real
property by virtue of Article I, section 19 of the California State Constitution, California
Government Code section 37350.5 and California Civil Procedure Code sections 1240.010 and
1240.220; and
WHEREAS, pursuant to California Civil Procedure Code section 1245.235, notice of
intent to adopt this Resolution of Necessity was duly given to BP West Coast Products, LLC,
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Resolution No. _____ (2013 Series)
Page 2
whose property interest is to be acquired by eminent domain and whose names and addresses
appear on the San Luis Obispo County Equalized Assessment Roll, and the property owner has
been given a reasonable opportunity to appear and be heard before the City Council; and
WHEREAS, pursuant to California Government Code section 7267.2, the City has made
an offer to the owner(s) of record to acquire the subject property for the amount which it has
established is just compensation based on an appraisal;
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of San Luis
Obispo, the City Council hereby finds and follows:
SECTION 1: The above-referenced findings are incorporated herein as if fully set forth;
and
SECTION 2: The public interest and necessity require the Project; and
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; and
SECTION 4: The taking of the temporary construction easement more particularly
described in Exhibit A is necessary for the Project; and
SECTION 5: The Mitigated Negative Declaration approved by California Department of
Transportation on August 15, 2011 adequately analyzed the potential environmental
consequences associated with the project, including potential impacts related to real property
acquisitions and concluded that no adverse impacts to the environment would occur from the
proposed real property acquisitions and that no avoidance, minimization, and/or mitigation
measures were required.
SECTION 6: The offer required by California Government Code section 7267.2 has
been made to the owner of record of the real property; and
SECTION 7: The City Attorney or her duly authorized designee is hereby authorized
and directed to institute and conduct to conclusion an action in eminent domain for the
acquisition of the temporary construction easement as described in Exhibit A and to take such
actions as she may deem advisable or necessary in connection therewith.
SECTION 8: The City may deposit with the State Treasury the probable amount of
compensation and obtain an order for prejudgment possession of the subject property.
Upon motion of _______________________, seconded by _______________________,
and on the following roll call vote:
AYES:
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Resolution No. _____ (2013 Series)
Page 3
NOES:
ABSENT:
The foregoing resolution was adopted this _____ day of _____________________ 2013.
____________________________________
Mayor Jan Marx
ATTEST:
____________________________________
Maeve Kennedy Grimes
City Clerk
APPROVED AS TO FORM:
_____________________________________
J. Christine Dietrick
City Attorney
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Resolution No. _____ (2013 Series)
Page 4
TEMPORARY CONSTRUCTION EASEMENT
A Temporary Construction Easement is granted to the City of San Luis Obispo, a
municipal corporation and charter city in the County of San Luis Obispo, State of California, and
its contractors, successors and assigns, referred to herein collectively as “City”, for the purposes
of facilitating construction of the Los Osos Valley Road–Highway 101 Interchange Project for
road and bridge improvements (“Project”) and to utilize said Temporary Construction Easement
for all other related activities and purposes in, on, over, under, through, and across that certain
parcel of land described and depicted in Exhibit “A,” attached hereto and incorporated herein
(“Easement Area”). Such use shall include the right to temporarily place equipment, materials
and vehicles, and pile earth thereon during periods of active construction, and the right to
conduct grading and pavement restoration work and other related activities in conjunction with
the construction of the Project. The Easement Area may be used for vehicular ingress and egress
purposes to access the business on site whenever clear and safe access routes are available.
There will be some access delays and obstructions within the Easement Area from time to time
as Project construction work is underway, but in no event, shall the access delays or obstructions
to the driveways within the Easement Area to Los Osos Valley Road exceed fifteen (15) days per
driveway, and at least one driveway to Los Osos Valley Road shall be kept open at all times.
Upon completion of construction of the Project, the surface of the Temporary Construction
Easement Area shall be generally restored to the condition that existed prior to construction, to
the extent reasonably practical except that it will be at a higher elevation sloping from the
southeast.
Said Temporary Construction Easement shall commence thirty (30) days after issuance by
City of a Notice of Commencement of Construction, which shall be issued to the property owner
of record by U.S. Mail, no earlier than April 1, 2016, and shall automatically terminate upon
completion of construction of the Project and restoration of the Easement Area, or six months
after this easement commences, whichever occurs first, but in no event, shall termination extend
beyond December 30, 2016.
The Temporary Construction Easement includes the City’s right to extend the six month
term in additional one (1) week increments, at a rate of $405/week, consecutive with and
immediately following the original six month period. City shall provide written notice of its
intent to exercise such extension 15 days before the exercise of such extension.
Exhibit A-1
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Resolution No. _____ (2013 Series)
Page 5
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ATTACHMENT 3
PH2 - 51
III ~III!IIIIIIII~ ~II I City O~san luiS OBIspo
990 Palm Street , San Luis Obispo, CA 93401-3249
June 25, 2013
VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
BP West Coast Products LLC CBP)
c/o Gary Heitlauf
Property/Divestment Manager-SW
2350 E. 223rd Street, 270A
Carson, CA 90810
BP West Coast Products LLC CBP)
4 Centerpointe Drive
La Palma CA 90623
Subject: City of San Luis Obispo -Los Osos Valley Road Interchange
Acq. AP# 053-151-016
NOTICE OF INTENT TO ADOPT RESOLUTION OF NECESSITY
Hearing Date: July 16 , 2013
Location: Council Hearing Room, 990 Palm Street, San Luis Obispo, CA
Time: 6:00 p.m. (or as soon thereafter as the matter may be called before the
Council)
Dear Mr. Heitlauf:
As you may know, on February 6, 2013, pursuant to Government Code section 7267.2, the City
made a written offer to acquire a temporary construction easement crCE) over a portion of your
property eAPN 053-151-016.) BP acknowledged receipt of that offer, but has declined to take
any action on the offer.
The eminent domain laws provide procedures for public agencies to acquire private property for
public use. It requires that every agency which intends to acquire property by eminent domain
notify the owners of such intention. California law provides that the power of eminent domain
may be exercised to acquire property for a proposed proj ect if the following four conditions are
established:
1) That the public interest and necessity require the project.
2) The project is planned or located in a manner that will be most compatible with the
greatest public good and the least private injury .
3) The property sought to be acquired is necessary for the project.
4) The offer required by section 7267.2 of the Government Code has been made to the
owner of record.
The City of San Luis Obispo is committed to include the disabled in all of its services , programs and activities .
Telecommunications Device for the Deaf (805) 781-7410 .
ATTACHMENT 4
PH2 - 52
You are hereby notified that the City Council of the City of San Luis Obispo, at the meeting to
be held on the date, time and location noted above, will be asked to decide if the above
conditions have been met to acquire the TCE as described in Exhibit A attached hereto, and, if
so, to adopt a Resolution of Necessity ("Resolution") for the acquisition of the subject propert y
by eminent domain for the proj ect noted at the top of this notice. Questions regarding the
amount of compensation to be paid or the value of the property to be acquired are not part of this
proceeding and the City Council will not consider such in determining whether a Resolution
should be adopted.
The Council's adoption of the Resolution of Necessity would authorize the City of San Luis
Obispo to commence eminent domain proceedings in Superior Court to acquire the TCE. All
issues related to compensation to be awarded for the acquisition of your property will be
addressed in this subsequent court proceeding.
Pursuant to the California Civil Procedure Code, each person whose property is to be acquired by
eminent domain is to be provided a reasonable opportunity to appear and be heard by the
governing body regarding the four conditions referenced above. If you would like to be heard
at the above-referenced hearing or would like to file a written statement, please send your
request to be heard or written statement within 15 days of date of this notice. All requests
to appear must be sent for filing to the City Clerk, City of San Luis Obispo, 990 Palm
Street, San Luis Obispo, CA 93401. Failure to file a written statement or request to be
heard within the IS-day period shall result in the waiver of the right to appear and be
heard.
For your convenience, if you are unable to personally appear or choose to submit a written
statement in place of a personal appearance , the City Council will consider any written
statements filed with the City Clerk within the IS-day period set forth above. All written
statements filed with the City Clerk within the IS-day period will become part of the official
record of the meeting at which the City Council hears the Resolution. If you have any questions,
please contact me at 805-781-7590 or pmandeville@slocity.org .
Very Truly Yours,
'R H~pe~ndeville
Principal Transportation Planner
cc: via certified mail, return receipt requested
BNB Gas & Mart
Attn: Behrouz Sayahan
12424 Los Osos Valley Road
San Luis Obispo, CA 93405
via email only
City Clerk
City Attorney
ATTACHMENT 4
PH2 - 53
TEMPORARY CONSTRUCTION EASEMENT
A Temporary Construction Easement is granted to the City of San Luis Obispo, a
municipal corporation and charter city in the County of San Luis Obispo, State of California, and
its contractors, successors and assigns, referred to herein collectively as "City", for the purposes
of facilitating construction of the Los Osos Valley Road-Highway 10 1 Interchange Project for
road and bridge improvements ("Project") and to utilize said Temporary Construction Easement
for all other related activities and purposes in, on, over, under, through, and across that certain
parcel of land described and depicted in Exhibit "A," attached hereto and incorporated herein
("Easement Area"). Such use shall include the right to temporarily place equipment, materials
and vehicles, and pile earth thereon during periods of active construction, and the right to
conduct grading and pavement restoration work and other related activities in conjunction with
the construction of the Project. The Easement Area may be used for vehicular ingress and egress
purposes to access the business on site whenever clear and safe access routes are available.
There will be some access delays and obstructions within the Easement Area from time to time
as Project construction work is underway, but in no event, shall the access delays or obstructions
to the driveways within the Easement Area to Los Osos Valley Road exceed fifteen (15) days per
driveway, and at least one driveway to Los Osos Valley Road shall be kept open at all times.
Upon completion of construction of the Project, the surface of the Temporary Construction
Easement Area shall be generally restored to the condition that existed prior to construction, to
the extent reasonably practical except that it will be at a higher elevation sloping from the
southeast.
Said Temporary Construction Easement shall commence thirty (30) days after issuance by
City of a Notice of Commencement of Construction, which shall be issued to the property owner
of record by u.S . Mail, no earlier than April 1, 2016, and shall automatically terminate upon
completion of construction of the Project and restoration of the Easement Area, or six months
after this easement commences, whichever occurs first, but in no event, shall termination extend
beyond November 30, 2016.
EXHIBIT A-1
ATTACHMENT 4
PH2 - 54
EXHlBIT "A"
APN 053-151-016
TCE
A parcel ofland lying in Lot 7 of Tract 347, Freeway Center in the City of San Luis
Obispo, County of San Luis Obispo, State of California, as per Map recorded March 3, 1967 in
Book 7, Page 23 of Maps in the office of the County Recorder of said County, and being more
particularly described as follows;
Beginning at the most southerly comer of said Lot 7, said point being the True Point of
Beginning;
Thence N18°51' 17"W 112.29 feet along the southwesterly Hne of said Lot 7 to the
beginning of a 5049.80' radius tangent curve concave westerly;
Thence continuing along the westerly line of said Lot 7 along the arc of said tangent
curve a distance of 91.51' through a central angle 0[01 0 02' 18" and being subtended by a chord
bearing and distance of N19 D22 '26"W 91.51' to the beginning of a 20.00' radius reverse curve
concave easterly;
Thence northeasterly along the arc of said reverse curve a distance of 31.52' through a
central angle of 90° 1T 16" and being subtended by a chord bearing and distance of N25° 15' 03"E
28.35' to a point on the northwesterly line of said Lot 7;
Thence N70023'41"E 18.85' along said northwesterly line;
Thence departing from said northwesterly line S22°07' IT'E 88.30';
Thence 571 DOO'54"W 34.02';
Thence SI8 D59'06"E 27.99';
Thence N71000'54"E 35.55';
Thence S22°07' 17"E 105.56' to a point on the southeasterly line of said Lot 7;
Thence S67°52'43"W 50.48' along said southeasterly line to the point of beginning,
containing 8,813 square feet or 0.2023 acres more or less.
TIle Basis of bearings for this description is the California State Plane Coordinate
System, NAD83(92), Zone V. All distances are Grid distances. To convert to ground
distances multiply by 1.00004032
EXHIBIT A ·1
Iti l !r;:2~!12
ATTACHMENT 4
PH2 - 55
EXHIBIT "8"
TEMPORARY CONSTRUCTION
EASEMENT
[\=90'77'76"
L=37.52' R=20.00"
~
cfl
T. C. E.
5q.Ft . 8,873'
Acres 0.2023
LINE
LJ
L2
L3
LINE TABLE
DIRECTION
571'00 '54 "w
S78'59'06"E
N77"00'54"E
LENGTH
34.02'
27.99'
35. 55'
/
,
/
/
!
o 80' 160'
i
LEGEND :
O.R. OFFICIAL RECORD SCALE; 1" = 80'
P.O.B. POINT OF BEG INING
R.M. RECORD MAP
T.C.E. TEMPORARY CONSTRUCTION EASEMENT
BASI S OF BEARINGS;
CALIFORNIA STATE PLANE COORDINATE SYSTEM, NAD8.3(92),
ZONE V ALL DISTANCES ARE GRID DISTANCES. TO CONVERT
TO GROUND DISTANCES MUL TIPL Y BY 1.00004032.
LOS 0808 VALLEY ROAD DATE: 10/29/12
~DOKKEN CITY OF SAN LUIS OBISPO APN: 053-151-016
2365 IRON pt,'Nr ~OA~.S~,nr"20~ r~s~. leA ~56~O r--__c_O_U-'~'-~_1_T_=~_F_"_o_~_Ac_NA_L",-LIU_FI,;;;"g_R_~_I~_1S_P_O__--t:;;..O=E-,N-,-O~.,-1-,-7-=-6",-1___--j
(915)B58-0542
L-____ _________~C=H~E=CKED BY:TF PREPARED BY: RJ SHEET 1 OF 1
EXHIBIT f\' ~
ATTACHMENT 4
PH2 - 56
Michael F. Yoshiba | Shareholder
Practice Areas:
Eminent Domain
Inverse Condemnation
Litigation
Public Agency and Municipal Law Litigation
Education:
B.S., California State University,
Long Beach, 1984
J.D., University of West Los Angeles, 1994
T 213.626.8484
F 213.626.0078
E myoshiba@rwglaw.com
W www.rwglaw.com
Michael F. Yoshiba is a shareholder in the
Eminent Domain and Litigation Departments at
Richards, Watson & Gershon. Mr. Yoshiba
specializes in the area of eminent domain,
representing pub lic entities and property owners in
both litigation and a dvisory capacities through all
phases of the pre-condemnation and
condemnation process.
Before joining the F irm, Mr. Yoshiba represented
the State of California, Department of
Transportation, Legal Division, for over six years
as a Deputy State Attorney and before that, as a
right-of-way agent for over ten years. Mr.
Yoshiba's experiences include membership on the
State Relocation Appeals Board and numerous
court and jury eminent domain trials including:
i Defense of Ventura County in a wrongful
death and inverse condemnation case
involving a landslide (six-week trial in VCSC
- no liability to County);
i Inverse condemnation case involving claim
for loss of business goodwill (five-day jury
trial in LASC);
i Inverse condemnation case involving an
owner's claim of pr econdemnation delay
damages (ten-day jury trial in LASC - defense
verdict);
i Eminent domain action involving a sports
bar's claim of loss of goodwill (seven-day jury
trial in OCSC - verdict no loss of goodwill);
i Two eminent domain actions involving claims
of reasonable probability of zone change and
valuation (eight-day jury trial in SBSC -
verdicts below statutory offer); and
ATTACHMENT 5
PH2 - 57
i Eminent domain case involving a gas station's
claim of loss of business goodwill (five-day
bench trial in OCSC - judgment at statutory
offer).
Mr. Yoshiba has made presentations on a variety of
condemnation, appraisal, acquisition and relocation
assistance topics to professional associations. He is
a member of the Japanese American Bar
Association, the International Right of Way
Association and t he Los Angeles County Bar
Association. He is also an active Board member of
the non-profit Asian American Drug Abuse
Program, Inc.
ATTACHMENT 5
PH2 - 58
JUL 18 2013
Ccounctl m€moRÀn
TO
July 16,2013
FROM:
VIA:
City Council
AGENDA
c
Date
Daryl Grigsby, Public Work ctor
Katie Lichtig, City Manager
0,nr
SUBJECT: PH2 Resolution of Necessity Revisions
Upon advice from outside legal counsel, staff has made minor revisions to the proposed
Resolution of Necessity and temporary construction easement language (see attached redlined
changes) to provide the City with flexibility should construction extend beyond the anticipated
timeframe. These changes are consistent with the Government Code offer presented to the
property owner. Staff recommends that Council approve this revised Resolution of Necessity.
T:\Council Agenda Reports9Ol3\2013-07-16\Resôlution of NEcessity (Mandeville-Visveslrwara)\ Council Mernora¡durn.docx
ATTACHMENT 1
RESOLUTION NO. (2013 Series)
A RESOLUTION OF NECESSITY BY THE CITY OF SAN LUIS OBISPO TO
AUTHORIZß,T}JE USE OF EMINENT DOMAIN TO ACQUIRE A TEMPORARY
CONSTRUCTION EASEMENT IN APN: 053-151-016 FOR THE PURPOSES OF
FACILITATING CONSTRUCTION FOR THE LOS OSOS VALLEY ROAD-HIGHWAY
101 INTERCHANGE PROJECT, SPECIFICATTON NO. 99821 AND CEQA FINDTNGS
WHEREAS, Los Osos Valley Road is a major regional arterial street that traverses half
of San Luis Obispo County from the Pacific Coastline to the center of the County near the San
Luis Obispo Regional Airport. Current regional and local traff,rc demands on the state and local
roadway system have deteriorated over time; an
\ryHEREAS, The Los Osos Valley Road-Highway 101 Interchange Project ("Project")
proposes to widen Los Osos Valley Road (LOVR) between the recently reconstructed Calle
Joaquin intersection with LOVR west of US-101 and the Los Verdes Park community east of US
101 to four lanes; and
WHEREAS, the Project is to improve operations, safety and capacity in and around the
interchange to accommodate a minimum of twenty years of traffic growth that will occur in this
area of the City; and
WHEREAS, On August 15,2011, the California Depaftment of Transportation adopted
the findings required by the California Environmental Quality Act and approved a Mitigated
Negative Declaration for the Project. The Mitigated Negative Declaration, including the Notice
of Determination and the Initial Study, summarizes the purpose and need for the Project; and
WHEREAS, the Mitigated Negative Declaration approved for the project analyzed the
potential environmental impacts associated with real property acquisitions needed to construct
the project and concluded that there were no environmental consequences as a result of current
or future real property acquisition sunounding the interchange and that no avoidance,
minimization and/or mitigation lneasures were required; and
\ryHEREAS, City of San Luis Obispo desires to acquire temporary construction
easements -dçs-p""fib"çd in Exh-i-bi"t -A in, over, upon, across and through APN: 053-151-016, as
legally described in Exhibit B-,4-?and depicted in Exhibit Ç A-}attached hereto for the purposes
of facilitating construction of the Project as fully described in-jþç_!.foJect RepoftE*ibi44; and
WHEREAS, the City is vested with the power of eminent domain to acquire real
property by virtue of Article I, section 19 of the Califomia State Constitution, California
Govemment Code section 37350.5 and Califomia Civil Procedure Code sections 1240.010 and
1240.220; and
WHEREAS, pursuant to California Civil Procedure Code section 7245.235, notice of
intent to adopt this Resolution of Necessity was duly given to BP West Coast Products, LLC,
whose property interest is to be acquired by eminent domain and whose names and addresses
R
Resolution No. _ (2013 Series)
Page2
appear on the San Luis Obispo County Equalized Assessment Roll, and the property owner has
been given a reasonable opportunity to appear and be heard before the City Council; and
WHEREAS, pursuant to Califomia Government Code section 7267.2, the City has made
an offer to the owner(s) of record to acquire the subject property for the amount which it has
established is just compensation based on an appraisal;
NOW' THEREFORE, BE IT RESOLVED by the Council of the City of San Luis
Obispo, the City Council hereby finds and follows:
SECTION 1: The above-referenced findings are incorporated herein as if fully set forth;
and
SECTION 2: The public interest and necessity require the Project; and
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; and
SECTION 4: The taking of the temporary construction easement more parlicularly
described in Exhibit A is necessary for the Project; and
SECTION 5: The Mitigated Negative Declaration approved by California Department
of Transportation on August 15, 201I adequately analyzed the potential environmental
consequences associated with the project, including potential impacts related to real property
acquisitions and concluded that no adverse impacts to the environment would occur from the
proposed real property acquisitions and that no avoidance, minimization, andlor mitigation
measures were required.
SECTION 6: The offer required by California Government Code section 7267.2 has
been made to the o\ryner of record of the real property; and
SECTION 7: The City Attorney or her duly authorized designee is hereby authorized
and directed to institute and conduct to conclusion an action in eminent domain for the
acquisition of the temporary construction easement as described in Exhibit A and to take such
actions as she may deem advisable or necessary in connection therewith.
SECTION 8: The City may deposit with the State Treasury the probable amount of
compensation and obtain an order for prejudgment possession of the subject property.
Upon motion of , seconded by
and on the following roll call vote:
AYES:
NOES:
ABSENT:
Resolution No. _ (2013 Series)
Fage 3
The foregoing resolution was adopted this _ day of 20T3.
Mayor Jan Marx
ATTEST:
Maeve Kennedy Grimes
City Clerk
APPROVED AS TO FORM:
J. Christine Dietrick
City Attorney
EXHIBIT A
TEMPORARY CONS CTION EASEMENT
A Temporary Construction Easement is grantedordered to the City of San Luis Obispo, a
municipal corporation and charter city in the County of San Luis Obispo, State of California, and
its contractors, successors and assigns, referred to herein collectively as "City", for the purposes
of facilitating construction of the Los Osos Valley Road-Highway 101 Interchange Project for
road and bridge improvements ("Project") and to utilize said Temporary Construction Easement
for all other related activities and purposes in, on, over, under, through, and across that certain
parcel of land described and depicted in Ex&nbi+Exh.:ti"tq "þA¡,' a-n-d llC__Bll, attached hereto, and
incorporated herein ("Easement Area")._ Such use shall include the right to temporarily place
equipment, materials and vehicles, and pile earth thereon during periods of active construction,
and the right to conduct grading and pavement restoration work and other related activities in
conjunction with the construction of the Project. The Easement Area may be used for vehicular
ingress and egress purposes to access the business on site whenever clear and safe access routes
are available. There It is aqliçtpated will be some access delays and obstructions
within the Easement Area from time to time as Project construction work is underway, but in no
event, shall the access delays or obstructions to the driveways within the Easement Area to Los
Osos Valley Road exceed fifteen (15) days per driveway, and at least one driveway to Los Osos
Valley Road shall be kept open at all times._ Upon completion of construction of the Project, the
surface of the Temporary Construction Easement Area shall be generally restored to the
condition that existed prior to construction, to the extent reasonably practical except that it will
be at a higher elevation sloping from the southeast.
Said Temporary Construction Easement shall commence thirty (30) days after issuance by City
of a Notice of Commencement of Construction, which shall be issued to the property owner of
I record by uU.S. Mail, no earlier than April 1,2016, and shall automatically tèrminai" upon
completion of construction of the Project and restoration of the Easement Area, or six months
after this easement commences, whichever occurs hrst, but in no event, shall termination extend
beyond November 30D-çç-e""mber 3_-1, 2016.
In addition. said Tem Construction Easernent includes the Citv's rieht to extend the six
month term in arlrliti one l1) week increments- at a rate of consecutive with and
the shall
notice of its intent to exercise su_ch extç1.r-qio--n I5 dayg- befo-rç the exercise of such extension.
10000-0232\1 599570v l.doc
EXHIBIT rrB"
APN 053-151-016
TCE
A parcel of land lying in Lot 7'of Tract 347, Freeway Centsr in the City of Sær Luis
Obispo, County of San Luis Obispo, State of Califomia, as per Map recorded lr4arch 3, lg67 in
Book 7, Page 23 of Maps in the office of the County Recorder of said Counfy, and being more
particul arl y described as follows;
Beginning at the most southerly corner of said Lot 7, said point being the True point of
Beginning;
Thence Nl8"51 'l7"W 112.29 feet along the southwesterly line of said Lot 7 to the
beginning of a 5049.80' radius tangent surve concave westerly;
Thcnce continuing along the westerly line of said Lot 7 along the arc of said tangent
curve a distance of 9t .51 ' through a central angle of 0l'02'18" and bcing zubtended by a chord
bearing and distance of N79"22'26"W 91.51' to the beginning of a 20.00' radius ,ru"Ã. .o*,
concave easterly;
Thence northeastórly along the arc of saíd reverse curve a distance of 3L52'through a
central angle of90"77'16- and being subtended by a chord bearìng and distance ofNzSôl 5'03'E
28.35' to a point on the northwesterly line of said Lot 7;
Thence N70o23'41 "E I 8.85' along said northwesterly line;
Thence departing from saíd northwestcrly line 522"07'17"E gg.30';
Thence 57 1 "00'54"W 34.02' ;
Thence Sl 8"59'06"8 27.99' ;
Thence N71"00'54"E 35.55' ;
Thence 322o07'77"E I05.56' to a point on the southeasterly liire of sai dLotT;
Thence 567"52'43-W 50.48' along saitl southeasterly line lo the point of beginuing,
containing 8,813 square feet or 0.2023 acres more or less.
The Basis of bearings for this description is the California State Plane Coordinate
Systern, NAD83(92), Zona V. All dista¡ccs are Grid distances. To convert to ground
distances multiply by 1.00004032
L A9{0
$3{l/
8834
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EXHIBIT ,,C,,
TEMPORARY CONSTRUCTION
EASEMENT
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35,55'
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LEGEND: .'^^r r, r,, _ or-\,
O R, OFFICIAL RECORDP.O.B. POINT OF BEGININGR.M. RECORD MAPÏ.C.E. TEMPORARY CONSTRUCTION EASIMËNT
BASIS OF BEARINGS:.
cALtFORNtA STATE PLANE COORDTNATÉ SYSTÊM, NAD8J(92),
ZONE V. ALL DISTANCIS ARE GRID DISTANCES. TO CONVERT
rO GROUND DISTANCES MULTIPLY BY 1.OOOO+O32.
r 60'
rAND s
Exp.
9-30-14
OF cAL
2ATE:10
APN: 053-l5l-016COUNTY OF SAN LUIS OBISPO
STATE OF CALIFORNIA
oAN LUIS
NO^176rffi
23€5 rRoN PorNf RoAD,SU|ÍE 200 F0r,90M, cA 956!0
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REPARED oFr
FXHIBIT B PAGE 1 OF 1
JUL l6 2013
RE
SLO CÏTY CLËRK
Goodwi Heather
From:
Sent:
To:
Subject:
reasons
Marx, Jan
Tuesday, July 16, 201-3 1:L7 PM
Grimes, Maeve; Goodwin, Heather
FW: Eminent Domain for AMPM gas station
AGENDA
c
Date
NDENCEo
7 Item
Please consider this email agenda correspondence
Tha nks,
Jan
From: Ron Malak Imailto:slorim@chafter.net]
Sent: Tuesday, July 16, 2013 11:12 AM
To: Christianson, Carlyn; Carpenter, Dan; Max, Jan; Ashbaugh, John; Smith, Kathy
Subject: Eminent Domain for AMPM gas station
Dear City Council Members,
I am in favor of the city using eminent domain at the AMPM site for the LOVR interchange project for the following
1,. I believe the new owner did not use due diligence in researching his purchase of this business. This information
regarding the LOVR interchange project was available and should have been vetted by Mr. Shayahan prior to his
purchase. Mr. Shayahan should have negotiated with the city prior to his purchase, not after.
2. The city is willing to work with Mr. Shayahan to minimize disruption to his business. I believe that Mr. Shayahan
will benefit from the LOVR interchange project, thereby increasing his return on his investment.
3. This intersection/interchange is a traffic nightmare. The benefits to the citizens of SLO greatly outweigh the
minor inconvenience that the AMPM gas station will experience.
I understand this issue willlikely result in litigation, but again, the benefitsto the citizens of SLO and the businesses
along the LOVR corridor override the concerns of Mr. Shayahan.
Thank You
Ron Malak
1