HomeMy WebLinkAboutCORRESPONDENCE - 75E City Council Meeting Correspondence
f;r ` 6/6/2017
Item 75E PUBLIC HEARING TO CONSIDER APPROVING A RESOLUTION REGARDING EMINENT DOMAIN
No. AT- 2016-2020 W 5TH ST
Date of Agency Received after
Correspondence deadline.
6/5/2017 Angelo J. Palmieri and Robert F.Waldron Planning and Building Agency
Tuesday,June 6, 2017 Page 1 of 1
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ANQELO a_ PALicI Rl (l a1A l9UE)
RCURT P;WALCRQN II5th 1611 B)
MENHIR W,QI IAN' MELICA Rr Penez CITY CIF SANTA ANA F'•o•Box 19712
BM1vlo u,PARR' MICNARI.Ir KENOR
CLERK CO.U.Nt, I.. IIiL 1e,0A 92923••EY I2
CIIARLE3 H,.BANTER' OWADWIOK V,;RANCH t+4 1'ti1 OF l��
PAT,9IC K Iy NNE.NURSE,' A•NMI J.BANKER 112ne, 1 2017
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DON FIEBER RYAN M.PRAQER J ,Lr ll A l
WARREN M,WILLIAMS ERIN eALBARA MAD'HI Arlie J.Banker
JCYR R,LOOTER ERICA M,POMMGKY Direct OMI (949)991.7220
!AI(IHAR'I.H,LRIpFR JOR ILEA l,.MA IIA EDIrM%Fox (949)026.5427
MONA PO A;.BALMS ERIN M,UYAMA
NORMAN J,ROWER KATHERINE M,WINeUNrIhBrQ/P9Mw}v,COln
MiUHAPL L. O'ANQ BLEB JANE PONP,IIME CAVA:Qs
B iEVHErJ A,et HECIt BRIAN QLICN{.IN
DONNA RNOW OAROLYN H,OLARN ReferToFIM NO,780-
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MICHAEL 1,CRR CMV:OF COUNCIL
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P.S. MAIL
Maria D. Iluizar
Clerk of the Council
City of Santa Ana
20 Civic Center Plaza
M-30
Santa.Ma, CA 92702
Ret Notice of Intent to Appear and Object to Proposed Adoption of
Resolution of Necessity for Acquisition of Certain Real Property
Located at 2016-2020 W Fifth Street, Santa Ana, CA 92703 (APN
007 ,110-17)fpr the OC Streetcar I'rojget
Dear Clerk of the Council:
This firm represents Salvador Navarro, owner of the above-referenced real
property located in Santa Ana, California (the "Subject Property").
We received a letter from the City of Santa Ana (the "City") providing notice of a
proposed hearing wherein the City intends to adopt a Resolution of Necessity concerning
the Subject Property in connection with a proposed project to construct a modern
streetcar system connecting the Santa Ana Regional Transportation Center to Harbor
Boulevard and Westminster Avenue in the City of Garden Grove (the "Project"), Based
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June 1, 2017
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on the notice received, the resolution of necessity hearing is scheduled to take place on
June 6, 2017, at 5:45 p,m.
This letter serves to notify the City of the property owner's intent to appear and
object to the City's proposed adoption of a Resolution of Necessity to condemn the
Subject Property for the Project. We also request that this letter be included as part of the
formal record on that agenda item. Further, we request that we are provided with the
administrative hearing process that is required by the City with regard to the
consideration of the adoption of the Resolution of Necessity,
We believe that the adoption of the resolution of necessity is improper at this time
on each of the following grounds:
1,: The tvH mmFo I2xtefid A..� eafittit5attf'r_condemantion Offer Pursuant.to,
as Fazlcd
Government Code section 7267
Y3
California law requires that the City make a legitimate offer ()Oust compensation
based upon its approved appraisal prior to initiating a condemnation proceeding,
Compliance with Government Code section 7267.2 is a,wl trlall'i�i jrprerequisite to
adopting a resolution of necessity and initiating an eminent domain action, (Code Civ.
Proc., §§ 1240°040, 1245,230, subd. (e)(4); City of San Jose v, Great Oaks Water Co,
(1987) t92 Cal,App°3d 1005.) Failure to strictly comply with the requirements of this
section are grounds for dismissing the entire proceeding.
Here, the appraiser, acting on the City's behalf, did not engage in a proper analysis..
Moreover, the City's offer is based on a stale appraisal considering stale sales data that is
over one year old° The offer was based on a early to mid-2016 date of value, utilizing
2013 and earlier sales data. A cursory review ofirecent sales of comparable properties in
the surrounding area indicate a unit rate in excess of the per square foot rate relied upon
by the City in its precondemnation offer,
As such, the City's precondemnation offer is invalid and cannot support the
adoption of a resolution of necessity authorizing the acquisition of the sought for portions
of the Subject Property.
The City must appraise the Subject Property and the improvements thereon, in
both the before (no project) condition and the after(project impacted) condition, and
make an appropriate revised precondemantion offer based upon a current date of value
before commencing this acquisition process.
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It is inappropriate to attempt to condemn first, and then suggest that an error can
be corrected by a subsequent offer or subsequent appraisal after the adoption of a
resolution of necessity. (See, City of Stockton v. Marina Towers (2009) 171 Cal,App,4th
93.) The City cannot correct,its error by simply reappraising after adopting a resolution
of necessity to retroactively confer upon itself with the authority to do that for which it
has already done.
California's Eminent Domain Law mandates strict compliance with its statutory
requirements before a public entity may confer upon itself with the awesome power of
eminent domain to condemn private property for a public purpose. 'The proceeding to
condemn land for a public use is special and statutory and the prescribed method in such
• cases must be strictly pursued especially if those methods benefit the [property]
owner." (City of Needles v. Griswold(1.992) 6 Ca.l,App,4th 1881, 1895, quoting
Harrington v. Superior Court (1924) 194 Cal, 185, 191 and City of Los Angeles v.
Glasse!?(1928) 203 Cal, 44, 46 [emphasis added].)
2. The City 11I.as Failed To Ne':otiate„1n.0 t . i h Pursuant To.(xovernm.ent.
Government Code section 7267.1 imposes an affirmative obligation on a public
entity seeking to condemn property to seek to acquire that property first by
negotiation. (Johnston v. Sonoma County Agricultural Preservation cF Open Space Dist,
(2002) 100 CaLApp.4th 973,) "The public entity shall make every reasonable effort to
acquire expeditiously real property by negotiation." (Gov. Code, § 7267.1, subd, (a).)
The duty to negotiate is designed to a-void litigation, not avoid the recognition of 19
buildings. "In order to encourage and expedite the acquisition of real property by
agreements with owners, to avoid litigation and relieve congestion in the courts, to assure
consistent treatment for owners in the public programs, and to promote public confidence
in public land acquisition practices, public entities shall, to the greatest extent practicable,
make every reasonable effort to acquire property by negotiation." (8 R/itkin, Summary of
Cal. Law (9th ed. 2004) Const. Law, § 972,)
The fundamental precept of any good faith negotiation is that it be predicated on a
legitimate precondemnation offer that complies with the Government Code. Here, the
City's appraiser has ignored rental properties located on the Subject Property and, instead,
valued the larger parcel as unimproved land. The offer as proposed cannot he accepted,
Instead of conducting an appropriate appraisal, the City is prematurely moving
forward with this condemnation action and demanding that the property owner either
"blindly" accept its precondenrnation offer "as is" (without first providing the owner with
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an opportunity to assess the adequacy of the offer) or be named as a defendant in a
condemnation action.
The power of eminent domain is the most coercive power granted to the
government under the Constitution relating directly to the ownership of private property.
However, with such coercive power comes the responsibility to exercise it appropriately
and to seek impartial justice for both the government and private property owner. (See,
City ofI os Angeles v. Decker (1977) 18 Ca1.3d 860, 871 ("Decker"}.) Here, the City is
ignoring its affirmative obligation wider the Government Code. Rather, the City seeks to
force the property owner to accept a knowingly inadequate offer or be involved in a
lawsuit,
In this instance, the City's conduct Mils below its affirmative duty imposed under
the Government Code and higher ethical duty to seek impartial justice. (See, Decker,
supra, 18 CaL3d at p, 87I; See also, Gov, Code, §§ 7267.1., et seq.)
3. 1Rased0n00 C.nf rririattlaraa C urre;rztiv.t noavta,the C"tty,cs: ooposetl 1'rtetis
1Yot Planne t Or.L.oca.ted.,in The Manner That Will Be Most,Corrapatible.With
the Leadt„Private In'att.
The City's consideration and adoption of a resolution of necessity requires a
finding that the Project as proposed is planned and located in the manner that will be
most compatible with the greatest public good and the least private injury. (Code Civ,
Proc., § 1245,340, subd. (e)(2)) In this case, however, the City has not provided
adequate information to the property owner of any viable Project alternatives that may
exist and enable the City to obtain all of the amenities of the Project as proposed. As far
as we can tell, based upon the scant information provided, there maybe other viable
project alternatives that will less disruptive and damaging to the Subject Property, the
specifics ot'which, however, have not been disclosed to property owner.
The City must consider all alternatives before an informed determination can be
made as to whether the Project as proposed is "most compatible with the greatest public
good and the least private injury.”
4, The.Pro ter .&oaawlut To I3..AeA euiii d.Is Not Neces a .For the Pro lett,
One of the mandatory components to the necessity determination is that the
property sought to he acquired must be necessary for the project, (Code Civ. Proc.
§ 1240,030, subd, (c).) The Eminent Domain Law defines "property" to include real and
personal property and any interest thereon, (Code Civ. Proc., § 1235.170.) Thus, the
City must not only consider whether the property is necessary for the project but also
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whether the particular interest in the property that the City seeks to take is necessary. In
the absence of substantial evidence supporting such a determination, the Resolution of
Necessity will be invalid,
The property owner is informed and believes that viable PProject alternatives exist
that would provide all of the amenities of the proposed Project but at a substantially
reduced cost and with less private property. Those alternatives would materially reduce
the need to acquire any private property for construction of the proposed Project.
However, the City has failed to consider those project alternatives,
Barring such consideration, the City cannot make an informed determination as to
whether the Subject Property is actually necessary for the project.
5. Tile city Is ]area ,able of Conduct, r„ F2ir ;_,: al, And Im partial I>i . rin;
Qn Ibie Proposed Ado i ion•.o.f The Resul flan of Necessi!
It is believed that the. City has already committed itself to the proposed taking, so
any hearing resulting in the adoption of the resolution by the City would he a
predetermined result, The proposed resolution hearing is a pretense andartifice, and any
resolution adopted under these circumstances would be voidable by a court of competent
jurisdiction. (See, Redevelopment Agency v, Norm's Slauson (1985) 173 CaLApp.3d
1121, 1127.)
As a condition precedent to the exercise of the power of eminent domain, a public
agency "must hold a public hearing to determine whether a particular taking meets the
[requirements of Civil Code section 1245.235, i,e., is for a public use, necessary, and
designed in such a manner to cause the least private injury]...." (Norm's Slauson, supra,
173 Cal..App.3d at p. 1125 [Emphasis added].) "Implicit in this requirement,„is the
concept that,,.the [ajgency engage in a good faith and judicious consideration of the pros
and cons of the issue and that the decision to take be buttressed by substantial
evidence.,.," (id,, at pp. 1125.1126) "[A]n agency that would take private
property...must,,.conduct a fair hearing and make its determination on the basis of
evidence presented in a judicious and.nonarbitrary fashion." (.Id., at p, 1129.) in the
absence of a fair and impartial hearing, the resolution of necessity is void.
if the condemning agency fails to conduct itself in this manner, then the resolution
is not entitled to its ordinary conclusive effect and the burden of proving the elements for
a particular taking rests on the government agency with the court being the final
• adjudicator. (Norm's Slauson, supra, 173 Cal.App,3d at pp. 1128-1129.) "The
governmental agency in such a situation cannot act arbitrarily and then seek the benefit of
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having its decision afforded the deference to which it might otherwise be entitled." (Id, at
p. 1129.)
In Norm's Slauson, the Court held that the condemning agency's approval of the
resolution of necessity was invalid when the agency "simply 'rubber stamped' a
predetermined result" because,prior to any hearing on the resolution, it (a) entered into
an agreement with a developer by which the agency agreed to transfer a portion of
defendant/property owner's restaurant, and the developer agreed to construct a
condominium thereon; and (b) issued and sold tax exempt bonds to pay for the
acquisition. (1d, at p. 1127,) "In short, the agency, without any notice to Norm's [the
•
property owner], in effect sold the property and issued bonds to obtain the money to
acquire the property all before taking any steps to condemn the property." (Id,, at
• p. 1125.)
Here, the Owners are informed and believe that the City has impermissibly
committed itself to take portions of the Subject Property.
By having already committed to the project, the City has left itself no discretion
but to approve the resolution. (See, e.g., Norm's Slauson, supra, 173 Cal.App.Jd at pp.
• 1127-1130; Code Civ. Proc., § 1245,255, subd. (b).) Accordingly, if the resolution is
• adopted, the hearing which led to its adoption will have been a pretense and the City's
• policy-making board will simply be "rubber stamping" a pre-determined result, If the
resolution is adopted under such circumstances, it will be voidable on that basis.
•
Based upon the foregoing objections, we respectfully request that the City not
adopt the resolution or, at a minimum, continue the hearing on this agenda item until such
time as the objections are addressed.
lithe City has any questions or comments concerning the content of this letter, it
should contact the undersigned at the number listed above.
Very toly;yours,
/ r
. .. .
.. / A a
J. Banker
AJB;ab
cc: Client (via email)
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