Created: 2022-07-11 10:10:01 [EST]
(Supp. No. 8)
Dance school or studio 60.00
Dry cleaners 60.00
Equipment rental 60.00
Funeral parlor 100.00
Gardener 60.00
Hauling and delivery services 60.00
Hotel or motel 60.00
Laundries or Laundromats 60.00
Mobile home park 60.00
Moving and storage 60.00
Music teacher 60.00
Newspaper-daily 100.00
Newspaper-other than daily 60.00
Photography studio (no merchandise sold) 60.00
Photostat & blueprinting 60.00
Reducing salon 60.00
Shoe repair 60.00
Skating rink 80.00
Telephone companies 500.00
Theaters, etc.—1 to 500 seats 60.00
Theaters, etc.—501 to 1,000 seats 120.00
Title company 120.00
Tree trimming 60.00
Warehousing 60.00
Business, trades, etc., otherwise not covered 60.00
(Prior Code § 6-1.202; Ord. CS 395, 1979; Ord. CS 540, 1983; Ord. CS 570, 1985)
5.08.040 Tax based on flat rate—No fixed place of business.
Every person not having a fixed place of business within the City who engages in business within the City shall pay an annual license tax as follows:
Ambulance $ 60.00
Auction, fire sale, etc. 480.00
Billboard advertising 60.00
Books, encyclopedias 60.00
Christmas trees 60.00
Cleaning services 60.00
Dry cleaners 60.00
Laundries 60.00
Locksmith and sharpeners 60.00
Magazines 60.00
Mechanical games—per machine 10.00
Juke box (coin operated)—per machine 10.00
Office equipment 60.00
Created: 2022-07-11 10:10:02 [EST]
(Supp. No. 8)
Selling ice cream, etc.—1 vehicle 60.00
Each additional machine 20.00
Signs 60.00
Soliciting orders for sewing machines 60.00
Towing service 60.00
Traveling photographer 500.00
Vending machines—1 machine 60.00
Each additional machine 4.00
Businesses, trades, etc., otherwise not covered 60.00
(Prior Code § 6-1.203; Ord. CS 395, 1979; Ord. CS 570, 1985)
5.08.050 Tax based on weekly flat rate.
Every person not having a fixed place of business within the City who engages in business within the City shall pay a weekly license tax as follows:
Fortune-telling $500.00
(Prior Code § 6-1.204; Ord. CS 570, 1985)
5.08.060 Tax based on daily flat rate.
Every person having a fixed place of business within the City who engages in business with the City shall pay a daily license tax as follows:
Boxing or wrestling matches $ 25.00
Carnival 300.00
Circus 300.00
Feat or performance 10.00
Promotional event 10.00
Public dance 5.00
Sideshow 5.00
Trained animal show 10.00
(Prior Code § 6-1.205; Ord. CS 570, 1985)
5.08.070 Delivery by vehicle, wholesale and retail.
Every person not having a fixed place of business within the City who delivers goods, wares or merchandise of any kind by vehicle within the City shall pay an annual license tax of $60.00. (Prior Code § 6-1.206; Ord. CS 395, 1979; Ord. CS 570, 1985)
Created: 2022-07-11 10:10:02 [EST]
(Supp. No. 8)
5.08.075 License fee—Manufacturing.
A. Every person engaged in the business of manufacturing or processing of any goods, wares, merchandise article or commodity at a fixed place of business within the City of Atwater shall pay $60.00 for the first $50,000.00 in gross receipts and $0.28 for each $1,000.00 in gross receipts or portion thereafter.
B. Whenever there are no gross receipts within the City of Atwater, the method of calculation for the license fee shall be based on the total of all expenses incurred in the manufacturing process at the business location with the City of Atwater for payroll, utilities, depreciation and/or rent.
C. No license fee for a business taxed under this section shall exceed $500.00. (Ord. CS 570, 1985)
5.08.080 Professions—Annual license.
A. Every person having a fixed place of business within the City who engages in a private profession in the City shall pay an annual license tax of $100.00.
B. Services shall include but not be limited to the following: medical and other health services; educational services; legal services; engineering and architectural services; estate services and accounting, auditing, and bookkeeping services and commission broker services.
(Prior Code § 6-1.207; Ord. CS 395, 1979; Ord. CS 570, 1985)
5.08.090 Contractor.
A. Every person doing business within the City who is in the business of contracting within the City shall pay an annual license tax of $60.00 for the year prorated on a quarterly basis when making application, and the license shall be renewed annually on the first day of July.
B. A contractor performing work in the City of Atwater for a limited amount of time may purchase a business license for $25.00 for a period of 90 days.
Every person engaged in the business of contracting must produce evidence that he holds a valid State Contractor's License before a license will be issued under this section. The term contractors as used in this section also includes subcontractors and specialty contractors. (Prior Code § 6-1.208; Ord. CS 395, 1979; Ord. CS 570, 1985)
5.08.095 Rental of property.
Every person engaged in the business of managing the rental of homes or apartments within the City, and managing a total of five or more rental units, shall pay a license tax of $60.00 per year. Every person engaged in the business of managing the rental of commercial, industrial, or other business property within the City shall pay a license tax of $60.00 per year. Notwithstanding the foregoing, this Section 5.08.095 shall not apply to owners of real property who also manage said properties.
(Ord. CS 970, § 1, 12-14-2015)
Editor's note(s)—Ord. CS 970, § 1, adopted Dec. 14, 2015, amended § 5.08.095 in its entirety to read as herein set out. Former § 5.08.095 pertained to rental of residential property and derived from Ord. CS 570, adopted in 1985.
Created: 2022-07-11 10:10:02 [EST]
(Supp. No. 8)
5.08.100 Prorated quarterly license tax.
In the event that any person engaged in business within the City requiring an annual license makes application for a license after the beginning date of the year, he shall pay on a prorated quarterly basis until the end of that year but under no circumstances will the proration be less than one quarter. (Prior Code § 6-1.210; Ord. CS 570, 1985)
5.08.110 Appeal.
A. In any case where a licensee or an applicant for a license believes that his individual business is not assigned to the proper classification under this chapter because of circumstances peculiar to it, as distinguished from other businesses of the same kind, he may apply to the business license department for reclassification. Such application shall contain such information as the license department may deem necessary and require in order to determine whether the applicant's individual business to the classification shown to be proper on basis of such investigation.
B. The business license department shall notify the applicant of the action taken on the application for reclassification. Such notice shall be given by serving it personally or by depositing it in the United States Post Office in Atwater, California, postage prepaid, addressed to the applicant at his last known address. Said applicant may, within 15 days after the mailing or serving of such notice, make written request to the City Clerk for a hearing on his application for reclassification. If such request is made within the time prescribed, the City Clerk shall cause the matter to be set for hearing before the City Council within 15 days. The City Clerk shall give the applicant at least ten days notice of the time and place of the hearing in the manner prescribed above for serving notice of the action taken on the application for reclassification. The Council shall consider all evidence adduced and its findings thereon shall be final. Written notice of such findings shall be served upon the applicant in the manner prescribed above for serving notice of the action taken on the application for reclassification.
(Ord. CS 570, 1985)
CITY COUNCIL
AGENDA REPORT
MEETING DATE: September 26, 2022
TO: Mayor and City Council
FROM: Greg Thompson, Community Development Director
PREPARED BY: Christina Thurman, Executive Assistant
SUBJECT: Adoption of Resolution of Necessity for the Acquisition of Fee Interests in Certain Real Property, by Eminent Domain,
Located at 1039 & 1089 Atwater Boulevard(Community
Development Director Thompson)
RECOMMENDED COUNCIL ACTION
Open the public hearing and receive any testimony given; Close the public hearing and make the following findings:
The public interest and necessity require the proposed project; The project is planned or located where it will be most compatible with the greatest public good and the least private injury;
The real property to be acquired is necessary for the project; The offer of just compensation has been made to the owner; and Motion to adopt Resolution of Necessity No. 3345-22 For The Acquisition of Fee Interest in Certain Real Property, by Eminent Domain, Located at 1039 & 1089 Atwater Boulevard, Atwater, California, 95301, more particularly described as Assessor Parcel Nos. 002-219-010 & 002-219-011, for construction of new parking facilities in the downtown area of the City of Atwater, Merced County, California as further identified In Exhibit A attached hereto; or
Motion to approve staff's recommendation as presented.
I. BACKGROUND/ANALYSIS:
BACKGROUND:
The City Council is being asked to consider the adoption of a resolution of necessity for the interest in the parcel listed below. This interest is required for construction of new parking facilities in the downtown area of the City of Atwater (“Project”).
The City of Atwater (“City”) obtained an appraisal of the affected property from Bill
CITY COUNCIL
Paul Creighton, Mayor
Danny Ambriz Tyler Button
John Cale Brian Raymond
Agenda Report - Page 2
Spriggs of Bill Spriggs Appraisal and made an offer of just compensation to the property owner pursuant to California Government Code section 7267.2. Property profiles from First American Title and DataTree were ordered to determine the identity of the record owner. Following standard public records and due diligence searches for ownership information, a notice of this public hearing was mailed to the property owner.
The power of eminent domain is used by the City only as a last resort to obtain interests necessary for projects after 1) negotiations have stalled; or 2) the owner has requested that the City proceed directly to eminent domain for tax or other advantages; or 3) the eminent domain process is necessary to clear the title to the property. In this case, an offer of just compensation has been made to the owners for the full Fair Market Value as determined by the appraisal. City staff attempted to a voluntary acquisition in good faith, and will continue to do so throughout the process. California’s definition of Fair Market Value is one of the most inclusive definitions in the United States and requires the appraiser to consider the highest and best use of the property and the appraiser to consider the highest price a willing buyer and seller would agree to. The City’s appraisals must use this definition of Fair Market Value.
California eminent domain law provides that a public entity may not commence with eminent domain proceedings until its governing body has adopted a Resolution of Necessity, which may only be adopted after the governing body has given each party with an interest in the affected property, or their representatives, a reasonable opportunity to appear and be heard on the following matters:
1) The public interest and necessity require the proposed 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 real property to be acquired is necessary for the project; and 4) The offers of just compensation have been made to the property owner.
Since an agreement has not been reached with the owner of the parcel, acquisition by eminent domain is the City’s last option. The initiation of the eminent domain process is accomplished by the City’s adoption of a resolution of necessity for the affected property.
The record owner must be afforded an opportunity to appear at the hearing and lodge objections. A notice of this hearing was sent by first class mail on September 6, 2022, to each record owner in accordance with Section 1245.235 of the California Code of Civil Procedure. The notice stated the City’s intent to consider the adoption of a resolution, the right of the property owner to appear and be heard on these issues, and that failure to file a written request to appear would result in a waiver of the right to appear and be heard. The City scheduled this hearing at which all persons who filed a written request in compliance with applicable law may appear and be heard.
Agenda Report - Page 3
DESCRIPTION OF PROPERTY TO BE ACQUIRED:
1039 & 1089 Atwater Boulevard, Atwater, California (Assessor Parcel Numbers 002-219-010 & 002-219-011) (“Property”). The Property was previously a gas station, and is now vacant and void of any building improvements. The Property is .51 acres (22,189 square feet). The Property has very good access with frontage to Atwater Boulevard, First Street and Second Street. The Property is rectangular in shape.
The City of Atwater, as of the early 2000s rezoned the Downtown Business District to provide consistency with the General Plan. As part of the process an evaluation was performed and updated regarding parking in the downtown sector. It was determined the area was underserved by approximately 1/3 of its parking needs. The proposed acquisition consists of a full acquisition of the Property for the City to construct a new parking lot to address the parking needs of the City’s downtown area that are currently underserved by 1/3 of the needs. The legal definitions, descriptions and depictions are attached hereto as Exhibit A.
ANALYSIS:
The recommended action of the City Council pertains to the acquisition of a fee interest in certain real property known located at 1039 & 1089 Atwater Boulevard, Atwater, California, and more particularly known as Assessor Parcel Nos. 002-219-010 & 002- 219-011 owned by Kiranjeet Dhami (“Property Owner”).
The above four required findings are addressed as follows:
Finding 1: Public Interest and Necessity Require the Project The City of Atwater, as of the early 2000s rezoned the Downtown Business District to provide consistency with the General Plan. As part of the process an evaluation was performed and updated regarding parking in the downtown sector. It was determined the area was underserved by approximately 1/3 of its parking needs. The City then undertook the process to supplement the parking need in a two phase approach.
First phase involved the retasking of Broadway Avenue to provide diagonal parking assignments and encourage pedestrian traffic. This phase is now at 60% completion.
The Second phase involves the acquisition of strategically located property(s) and the construction of new parking facilities. These properties were selected due to their locations within the Downtown area and there proximity to public facilities and transportation depots. Properties identified at the S.E. corner of First Street and Cedar Ave. and the N.W. corner of First Street and Atwater Blvd. This Project requires acquisitions from three (3) properties, including the fee interest in the Property owned by the Property Owners.
Finding 2: The Project is Planned or Located in a Manner Most Compatible with Greatest Public Good and Least Private Injury
The two adjoining parcels of land is approximately 22,189 square foot. The Property is residentially zoned and it is currently unimproved and vacant. The proposed acquisition is located along the eastern boundaries, adjacent to Vernon Avenue. There are no site
Agenda Report - Page 4
improvements within the acquisition area. Given that the Property is vacant, the impacts due to construction in the manner proposed are minimal and not anticipated to negatively impact the remainder parcel. To move this project elsewhere would require significant reconstruction of street infrastructure, cause a greater impact in the new location as well as to nearby residents, and be much more costly at the expense of local taxpayers.
Finding 3: The Real Property to be Acquired is Necessary for the Project The current project area is along Atwater Blvd. which is considered a key west to east arterial within the City, with interchange access Hwy 99 to the south and to the north.
The objectives of the proposed Project are to; 1) improve traffic operations by providing additional parking capacity to meet current and future demands, as the current traffic volumes are at, or exceed, the parking capacity of the downtown area 2) improve connectivity in the Downtown area and promote Pedestrian traffic, and 3) improve overall safety and accessibility within the Project limits.
Finding 4: The Offer of Just Compensation Has Been Made Appropriate sources, including property profiles from First American Title and property research from DataTree, were used to confirm and identify the parties with an interest in the property affected by the Project. Bill Spriggs conducted an appraisal for the property and determined the fair market value of the property to be acquired. On August 18, 2022, the City made an offer of just compensation for the amount of $190,000.00 to the property owners to purchase the fee interest in certain real property as established by the approved appraisal and as required by Section 7267.2 of the California Government Code. The Property Owner has responded, and has discussed the project with the City, but has not indicated they are willing to sell the Property to the City.
Although a negotiated settlement may still be possible for the real property cited above, it would be appropriate to commence the procedures to acquire the property through eminent domain, to ensure that the City has possession of the real property, which is necessary in order for the City to begin construction of the Project.
II. FISCAL IMPACTS:
The associated cost for said acquisition to the City is the appraised value, $190,000.00.
Upon approval of the recommended City Council action, there is sufficient funding from the General Fund Capital, Ace Train Platform account number 0003-1080-V003.
This item has been reviewed by the Finance Department.
III. LEGAL REVIEW:
The City Attorney has reviewed and approved the adoption of the Resolution of Necessity No. 3345-22 For The Acquisition of Fee Interest in Certain Real Property, by Eminent Domain, Located at 1039 & 1089 Atwater Boulevard, Atwater, California, 95301, more particularly described as Assessor Parcel Nos. 002-219-010 & 002-219-
Agenda Report - Page 5
011, for construction of new parking facilities in the downtown area of the City of Atwater, Merced County, California.
IV. EXISTING POLICY:
This item is consistent with goal numbers one (1) and two (2) of the City's Strategic Plan: to ensure the City's continued financial stability and to improve public safety, respectively.
V. ALTERNATIVES:
VI. INTERDEPARTMENTAL COORDINATION:
This has been routed and reviewed by all departments.
VII. PUBLIC PARTICIPATION:
The public will have an opportunity to provide comments on this item prior to the City Council Action.
VIII. ENVIRONMENTAL REVIEW:
The proposed Project is not a project subject to environmental review under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) because the acquisition of a fee interest will not involve any ground-disturbing construction activity and cause either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment. (Pub. Resources Code, § 21065.) Moreover, to the extent the City successfully acquires a fee interest in the Project site, the City will not consider approving any ground-disturbing construction activity on the Project site until the City has completed all appropriate CEQA review pursuant to State CEQA Guidelines section 15004(b)(2)(A).
IX. STEPS FOLLOWING APPROVAL:
Upon approval of City Council staff will route for signatures.
Submitted by:
Greg Thompson, Community Development Director
Approved by:
Lori Waterman, City Manager
Agenda Report - Page 6
Attachments:
1. Resolution 3345-22- Resolution of Necessity (1)
2. Exhibit A to Staff Report and RON Dhami - Resolution of Necessity for Sept 26 2022 Hearing APNs 002-219-010 011-c1
3. Atwater - Dhami_ NOTICE OF HEARING TO PROPERTY OWNERS - September 26_ 2022 RON(40675242-c1
CITY COUNCIL
OF THE
CITY OF ATWATER
RESOLUTION NO. 3345-22
RESOLUTION OF NECESSITY FOR THE ACQUISITION OF A FEE
INTEREST IN CERTAIN REAL PROPERTY, BY EMINENT DOMAIN,
LOCATED AT 1039 & 1089 ATWATER BOULEVARD, ATWATER,
CALIFORNIA, 95301, MORE PARTICULARLY DESCRIBED AS
ASSESSOR PARCEL NOS. 002-219-010 & 002-219-011, IN MERCED
COUNTY, CALIFORNIA, FOR CONSTRUCTION OF NEW PARKING
FACILITIES IN THE DOWNTOWN AREA OF THE CITY OF ATWATER,
IN MERCED COUNTY, CALIFORNIA
WHEREAS, the City of Atwater (“City”) proposes to acquire a fee interest in certain real property, located at 1039 & 1089 Atwater Boulevard, Atwater, California, 95301, more particularly described as Assessor Parcel Nos. 002-219-010 & 002-219-011, for construction of new parking facilities in the downtown area of the City of Atwater, Merced County, California, pursuant to the authority granted to it by section 37350.5 of the California Government Code; and
WHEREAS, pursuant to section 1245.235 of the California Code of Civil Procedure, the City scheduled a public hearing for September 26, 2022, at 6:00 p.m., at the City of Atwater City Council Chambers, located at City Hall, 750 Bellevue Road, Atwater, CA 95301, and gave to each person whose property is to be acquired and whose name and address appeared on the last equalized county assessment roll, notice and a reasonable opportunity to appear at said hearing and be heard on the matters referred to in section 1240.030 of the California Code of Civil Procedure; and
WHEREAS, said hearing has been held by the City, and the affected property owners were afforded an opportunity to be heard on said matters; and WHEREAS, the City may now adopt a Resolution of Necessity pursuant to section 1240.040 of the California Code of Civil Procedure;
NOW, THEREFORE, THE CITY DOES HEREBY RESOLVE AND DECLARE AS FOLLOWS:
Section 1. Compliance with the California Environmental Quality Act. The City finds the acquisition of a fee interest for construction of new parking facilities in the downtown area of the City of Atwater, is not a project subject to environmental review under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) because the acquisition of a fee interest will not involve any ground-disturbing construction activity and cause either a
Resolution No. 3345-22 Page 2
direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment. (Pub. Resources Code, § 21065.) Moreover, to the extent the City successfully acquires a fee interest in the Project site, the City will not consider approving any ground-disturbing construction activity on the Project site until the City has completed all appropriate CEQA review pursuant to State CEQA Guidelines section 15004(b)(2)(A).
Section 2. Compliance with California Code of Civil Procedure. There has been compliance by the City with the requirements of section 1245.235 of the California Code of Civil Procedure regarding notice and hearing.
Section 3. Public Use. The public use for the fee interest in certain real property to be acquired is for construction of new parking facilities in the downtown area of the City of Atwater, Merced County, California. Section 37350.5 of the California Government Code authorizes the City to acquire, by eminent domain, property necessary for such purposes.
Section 4. Description of Property. Attached and marked as Exhibit “A” are the legal definitions, and legal description, respectively, of the interest to be acquired by the City, which describe the general location and extent of the property with sufficient detail for reasonable identification.
Section 5. Findings. The City hereby finds and determines each of the following:
(a) The public interest and necessity require the
proposed project;
(b) The proposed project is planned or located in the
manner that will be most compatible with the greatest public good and least private injury;
(c) The properties defined, described and depicted in Exhibit “A” are necessary for the proposed project; and
(d) The offers required by section 7267.2 of the California Government Code was made.
Section 6. Use Not Unreasonably Interfering with Existing Public Use. Some or all of the real property affected by the interest to be acquired is subject to easements and rightsof-way appropriated to existing public uses. The legal descriptions of these easements and rights-of-way are on file with the City and describe the general location and extent of the easements and rights-of-way with sufficient detail for reasonable identification. In the event the herein described use or uses will not unreasonably interfere with or impair the continuance of the public use as it now exists or may reasonably be expected to exist in the future, counsel for the City is authorized to acquire the herein described property subject to such existing public use(s) pursuant to section 1240.510 of the California Code of Civil Procedure.
Section 7. More Necessary Public Use. Some or all of the real property affected by the interest to be acquired is subject to easements and rights-of-way appropriated to existing
Resolution No. 3345-22 Page 3
public uses. To the extent that the herein described use or uses will unreasonably interfere with or impair the continuance of the public use as it now exists or may reasonably be expected to exist in the future, the City finds and determines that the herein described use or uses are more necessary than said existing public use. Counsel for the City is authorized to acquire the herein described real property appropriated to such existing public uses pursuant to section 1240.610 of the California Code of Civil Procedure. Staff is further authorized to make such improvements to the affected real property that it determines are reasonably necessary to mitigate any adverse impact upon the existing public use.
Section 8. Further Activities. Counsel for the City is hereby authorized to acquire the hereinabove described real property in the name of and on behalf of the City by eminent domain, and counsel is authorized to institute and prosecute such legal proceedings as may be required in connection therewith. Legal counsel is further authorized to take such steps as may be authorized and required by law, and to make such security deposits as may be required by order of court, to permit the City to take possession of and use said real property at the earliest possible time. Counsel is further authorized to correct any errors or to make or agree to non-material changes in the legal description of the real property that are deemed necessary for the conduct of the condemnation action, or other proceedings or transactions required to acquire the subject real property. Counsel is further authorized to reduce or modify the extent of the interests or property to be acquired so as to reduce the compensation payable in the action where such change would not substantially impair the construction and operation for the project for which the real property is being acquired.
Section 9. Effective Date. This Resolution shall take effect upon adoption.
APPROVED AND ADOPTED this __ day of ____, 2022
___________________________________
Paul Creighton, Mayor
City of Atwater
ATTEST:
___________________________________
Lucy Armstrong
City Clerk
APPROVED AS TO FORM:
___________________________________
Frank Splendorio
Resolution No. 3345-22 Page 4
City Attorney, City of Atwater
Resolution No. 3345-22 Page 5
CERTIFICATION
I, ______________________of the City of Atwater, do hereby certify that the foregoing Resolution No. 3345-22 was introduced at a regular meeting of the City Council of the City of Atwater on the 26th day of September 2022. Resolution No. 3345-22 was passed, approved, and adopted by the City Council of the City of Atwater, California, at a regular meeting of the City Council held on the 26th day of September 2022:
AYES:
NAYS:
ABSENT:
ABSTAIN:
___________________________________
Lucy Armstrong
City Clerk
Resolution No. 3345-22 Page 6
Legal Definition
The following is the definition of legal rights to be acquired by the City of Atwater:
“Fee,” also known as fee simple or fee simple absolute, grants to the City of Atwater absolute ownership of the property.
Legal Definition
The following is the definition of legal rights to be acquired by the City of Atwater:
“Fee,” also known as fee simple or fee simple absolute, grants to the City of Atwater absolute ownership of the property.
LEGAL DESCRIPTION
EXHIBIT "A"
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF ATWATER, COUNTY OF MERCED, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
PARCEL 1: [APN: 002-219-010]
LOTS 1, 2, 3, 4, 5 AND 6 IN BLOCK 1, ACCORDING TO MAP ENTITLED, "MAP OF THE FIN DE SIECLE INVESTMENT CO'S ADDITION TO THE TOWN OF ATWATER, MERCED CO. CAL., RECORDED SEPTEMBER 16, 1907 IN BOOK 3 OF OFFICIAL PLATS, PAGE 43, MERCED COUNTY RECORDS.
PARCEL 2: [APN: 002-219-001-000]
LOTS 7 AND 8, IN BLOCK 1, ACCORDING TO MAP ENTITLED, "MAP OF THE BLOSS ADDITION TO THE TOWN OF ATWATER, MERCED COUNTY, CALIFORNIA", RECORDED SEPTEMBER 22, 1908 IN VOL. 4 OF OFFICIAL PLATS, PAGE 1, MERCED COUNTY RECORDS.
83744.00104\40675242.1
NOTICE OF HEARING TO PROPERTY OWNERS
Pursuant to Section 1245.235 of the California Code of Civil Procedure, you are hereby notified that at a regular meeting to be held on Monday, September 26, 2022, at 6:00 p.m., at the City of Atwater City Council Chambers, at City Hall, located at 750 Bellevue Road, Atwater, CA 95301, the City Council of the City of Atwater (“City”) intends to consider adopting a Resolution of Necessity, authorizing the commencement of eminent domain proceedings for the acquisition of real property interests in property that, according to the last equalized county assessment roll, is owned by you. The public use for which this resolution of necessity will be considered is for the City of Atwater’s construction of new parking facilities in the downtown area of the City of Atwater, Merced County, California. The description of the property to be acquired is attached as Exhibit “A” to this notice.
A hearing will be held at the time and place mentioned above. You have the right to appear and be heard on the following matters:
1. Whether the public interest and necessity require the project for which the property is sought to be acquired.
2. Whether the project is planned or located in the manner that will be most compatible with the greatest public good and least private injury.
3. Whether the property is necessary for the proposed project.
4. Whether the offer required by Section 7267.2 of the California Government Code has been made.
83744.00104\40675242.1
Please note that your failure to file a written request to appear and be heard after the mailing of this notice may result in the waiver of your right to appear and be heard.
ALL COMMUNICATIONS SHOULD BE ADDRESSED TO:
Lori Waterman
City Manager of the City of Atwater
Atwater City Hall,
750 Bellevue Road,
Atwater, CA 95301
[email protected]
DATE OF HEARING: Tuesday, September 26, 2022
6:00 p.m.
PLACE OF HEARING: City of Atwater City Hall - Council Chambers 750 Bellevue Road,
Atwater, CA 95301
DATED: September 6, 2022 BEST BEST & KRIEGER LLP
By: ______________________________________
Mark A. Easter
Attorney for the City of Atwater
83744.00104\40675242.1
PROOF OF MAILING NOTICE
I, Brittany Reese, acting on behalf of the City of Atwater, hereby certify that on September 2, 2022, I mailed a copy of the attached notice by first-class mail to the following owners of real property located in the County of Merced, State of California, more particularly described as Assessor Parcel Nos. 002-219-010 & 002-219-011.
Kiranjeet Dhami
3786 Old Oaks Drive,
Ceres, CA 95307
DATED: September 6, 2022 ___________________________________ Brittany Reese
LEGAL DESCRIPTION
EXHIBIT "A"
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF ATWATER, COUNTY OF MERCED, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
PARCEL 1: [APN: 002-219-010]
LOTS 1, 2, 3, 4, 5 AND 6 IN BLOCK 1, ACCORDING TO MAP ENTITLED, "MAP OF THE FIN DE SIECLE INVESTMENT CO'S ADDITION TO THE TOWN OF ATWATER, MERCED CO. CAL., RECORDED SEPTEMBER 16, 1907 IN BOOK 3 OF OFFICIAL PLATS, PAGE 43, MERCED COUNTY RECORDS.
PARCEL 2: [APN: 002-219-001-000]
LOTS 7 AND 8, IN BLOCK 1, ACCORDING TO MAP ENTITLED, "MAP OF THE BLOSS ADDITION TO THE TOWN OF ATWATER, MERCED COUNTY, CALIFORNIA", RECORDED SEPTEMBER 22, 1908 IN VOL. 4 OF OFFICIAL PLATS, PAGE 1, MERCED COUNTY RECORDS.
CITY COUNCIL
AGENDA REPORT
MEETING DATE: September 26, 2022
TO: Mayor and City Council
FROM: Greg Thompson, Community Development Director
PREPARED BY: Christina Thurman, Executive Assistant
SUBJECT: Adoption of Resolution of Necessity for the Acquisition of Fee Interest in Certain Real Property, by Eminent Domain, Located at 337 E. Bellevue Road (Community Development Director Thompson)
RECOMMENDED COUNCIL ACTION
Open the public hearing and receive any testimony given; Close the public hearing and make the following findings:
The public interest and necessity require the proposed project; The project is planned or located where it will be most compatible with the greatest public good and the least private injury;
The real property to be acquired is necessary for the project; The offer of just compensation has been made to the owner; and Motion to adopt Resolution No. 3346-22 For The Acquisition of Fee Interest in Certain Real Property, by Eminent Domain, Located at 337 E. Bellevue Road, Atwater, California, 95301, More Particularly Described as Assessor Parcel No. 156-060-009, in Merced County, California, for the Osborn Park Improvements Project, in Merced County, California as further identified In Exhibit A attached hereto; or Motion to approve staff's recommendation as presented.
I. BACKGROUND/ANALYSIS:
BACKGROUND:
The City Council is being asked to consider the adoption of a resolution of necessity for the interest in the parcel listed below. This interest is required for the City of Atwater’s (“City”) Osborn Park Improvements Project (“Project”).
The City obtained an appraisal of the affected property from Bill Spriggs of Bill Spriggs Appraisal and made an offer of just compensation to the property owner pursuant to
CITY COUNCIL
Paul Creighton, Mayor
Danny Ambriz Tyler Button
John Cale Brian Raymond
Agenda Report - Page 2
California Government Code section 7267.2. Property profiles from First American Title and DataTree were ordered to determine the identity of the record owner. Following standard public records and due diligence searches for ownership information, a notice of this public hearing was mailed to the property owner.
The power of eminent domain is used by the City only as a last resort to obtain interests necessary for projects after 1) negotiations have stalled; or 2) the owner has requested that the City proceed directly to eminent domain for tax or other advantages; or 3) the eminent domain process is necessary to clear the title to the property. In this case, an offer of just compensation has been made to the owners for the full Fair Market Value as determined by the appraisal. City staff attempted to negotiate a voluntary acquisition in good faith, and will continue to do so throughout the process.
California’s definition of Fair Market Value is one of the most inclusive definitions in the United States and requires the appraiser to consider the highest and best use of the property and the appraiser to consider the highest price a willing buyer and seller would agree upon. The City’s appraisals must use this definition of Fair Market Value.
California eminent domain law provides that a public entity may not commence with eminent domain proceedings until its governing body has adopted a Resolution of Necessity, which may only be adopted after the governing body has given each party with an interest in the affected property, or their representatives, a reasonable opportunity to appear and be heard on the following matters:
1) Whether the public interest and necessity require the proposed project; 2) Whether 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) Whether the real property to be acquired is necessary for the project; and 4) Whether the offers of just compensation have been made to the property owner.
Since an agreement has not been reached with the owner of the parcel, acquisition by eminent domain is the City’s last option. The initiation of the eminent domain process is accomplished by the City’s adoption of a resolution of necessity for the affected property.
The record owner must be afforded an opportunity to appear at the hearing and lodge objections. A notice of this hearing was sent by first class mail on September 6, 2022, to each record owner in accordance with Section 1245.235 of the California Code of Civil Procedure. The notice stated the City’s intent to consider the adoption of a resolution, the right of the property owner to appear and be heard on these issues, and that failure to file a written request to appear would result in a waiver of the right to appear and be heard. The City scheduled this hearing at which all persons who filed a written request in compliance with applicable law may appear and be heard.
DESCRIPTION OF PROPERTY TO BE ACQUIRED:
Agenda Report - Page 3
337 E. Bellevue Road, Atwater, California (Assessor Parcel Number 156-060-009) (“Property”). The Property is improved with a 1,980 square foot commercial building.
The Property has fair access with frontage to East Bellevue Road. The Property site is very irregular in shape, and visibility is limited. Currently the front 325 feet of the site is developed, and the rear 3.25 acres are void of any development. The Appraiser believes the commercial building once had two business occupying the space, but is now vacant. Counsel for the City has hired a relocation consultant to confirm whether the business is now vacant.
The proposed acquisition consists of a full acquisition of the Property to add necessary parking, circulation, and other park amenities at Osborn park. The legal definitions, descriptions and depictions are attached hereto as Exhibit A.
ANALYSIS:
The recommended action of the City Council pertains to the acquisition of a fee interest in certain real property known as Assessor Parcel No. 156-060-009 owned by Roberto and Maria Elena Carbajal (collectively referred to as the “Property Owners”).
The above four required findings are addressed as follows:
Finding 1: Public Interest and Necessity Require the Project Osborn park located at 750 E. Bellevue Rd is a park that serves majority of Atwater residents and is highly utilized for a bulk of the City of Atwater’s youth sport activities.
The City of Atwater has determined that this facility is currently underserved by parking and traffic circulation. Residents and visitors are forced to park off-site and often times across a major thoroughfare creating both traffic and pedestrian safety concerns.
The City has identified adjacent lands improved and unimproved for acquisition to add parking, circulation, and other park amenities to enhance park lands and public safety. This Project requires acquisitions from three adjacent properties, including the fee interest in the Property owned by the Property Owners.
Finding 2: The Project is Planned or Located in a Manner Most Compatible with Greatest Public Good and Least Private Injury
The 3.7 Property is residentially zoned and it is currently unimproved and vacant. There are no site improvements within the acquisition area. Given that the Property is vacant, the impacts due to construction in the manner proposed are minimal and not anticipated to negatively impact the remainder parcel. To move this project elsewhere would require significant reconstruction of street infrastructure, cause a greater impact in the new location as well as to nearby residents, and be much more costly at the expense of local taxpayers. Notification of street closures and alternate route alternatives will be provided in advance to all residents in close proximity of the project.
All efforts will be made to pursue project completion as quickly as possible once work is started.
Finding 3: The Real Property to be Acquired is Necessary for the Project
Agenda Report - Page 4
The objectives of the proposed Project are to: 1) improve traffic operations by providing additional parking capacity to meet current and future demands, as the current traffic volumes are at, or exceed, the traffic capacity of the existing parking lot; and 2) improve overall safety and accessibility within the Project limits.
Finding 4: The Offer of Just Compensation Has Been Made Appropriate sources, including property profiles from First American Title and property research from DataTree, were used to confirm and identify the parties with an interest in the property affected by the Project. Bill Spriggs conducted an appraisal for the property and determined the fair market value of the property to be acquired. On August 4, 2022, the City made an offer of just compensation for the amount of $415,000.00 to the property owners to purchase the fee interest in certain real property as established by the approved appraisal and as required by Section 7267.2 of the California Government Code. The Property Owner has responded, and has discussed the project with council for the City, but has not indicated they are willing to sell the Property to the City.
Although a negotiated settlement may still be possible for the real property cited above, it would be appropriate to commence the procedures to acquire the property through eminent domain, to ensure that the City has possession of the real property, which is necessary in order for the City to begin construction of the Project.
II. FISCAL IMPACTS:
Upon approval of the recommended City Council action, staff will return to City Council at a later time with a budget amendment.
III. LEGAL REVIEW:
The City Attorney has reviewed and approved the adoption of the Resolution of Necessity No. 3346-22 For The Acquisition of Fee Interest in Certain Real Property, by Eminent Domain, Located at 337 E. Bellevue Road, Atwater, California, 95301, More Particularly Described as Assessor Parcel No. 156-060-009, In Merced County, California, for the Osborn Park Improvements Project, in Merced County, California.
IV. EXISTING POLICY:
This item is consistent with goal numbers one (1) and two (2) of the City's Strategic Plan: to ensure the City's continued financial stability and to improve public safety, respectively.
V. ALTERNATIVES:
VI. INTERDEPARTMENTAL COORDINATION:
This project has been routed and reviewed by all departments.
Agenda Report - Page 5
VII. PUBLIC PARTICIPATION:
The public will have an opportunity to provide comments on this item before City Council action.
VIII. ENVIRONMENTAL REVIEW:
The proposed Project, which involves the acquisition of a fee interest for enhancements to a public park, specifically, Osborn Park, is exempt from environmental review under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.).
Specifically, State CEQA Guidelines (Cal. Code Regs., tit. 14, § 15000 et seq.) section 15301 (existing facilities) exempts the proposed Project from further environmental review, as it involves enhancements to an existing public park and would not expand the use beyond that designated in the City’s General Plan. The proposed Project is also exempt pursuant to State CEQA Guidelines section 15311 (accessory structures), which includes construction, or placement of minor structures accessory to (appurtenant to) existing commercial, industrial, or institutional facilities, including small parking lots. The proposed Project involves the development of a small surface parking lot on 3.7 acres that is adjacent to the Osborn Park. State CEQA Guidelines section 15303 (new construction of small structure) also exempts the proposed Project from further environmental review because it involves the construction of a new, small accessory (appurtenant) parking lot to the Osborn Park. None of the exceptions to the categorical exemptions listed above apply to the Project. The site is not located in a particularly sensitive environment. No further environmental review or findings are required prior to the City’s action on the proposed Resolution of Necessity IX. STEPS FOLLOWING APPROVAL:
Upon approval of City Council staff will route for signatures.
Submitted by:
Greg Thompson, Community Development Director
Approved by:
Lori Waterman, City Manager
Attachments:
1. Resolution 3346-22 Resolution of Necessity (1)
2. Atwater - Carbajal - Exhibit A to Staff Report and RON for Sept 16 2022 Hearing APN 156-060-009-c1
Agenda Report - Page 6
3. Atwater - Carbajal_ NOTICE OF HEARING TO PROPERTY OWNERS - September 26_ 2022 RON(40674715-c1
CITY COUNCIL
OF THE
CITY OF ATWATER
RESOLUTION NO. 3346-22
RESOLUTION OF NECESSITY FOR THE ACQUISITION OF A FEE
INTEREST IN CERTAIN REAL PROPERTY, BY EMINENT DOMAIN,
LOCATED AT 337 E BELLEVUE ROAD, ATWATER, CALIFORNIA,
95301, MORE PARTICULARLY DESCRIBED AS ASSESSOR PARCEL
NO. 156-060-009, IN MERCED COUNTY, CALIFORNIA, FOR THE CITY OF ATWATER’S OSBORN PARK IMPROVEMENTS PROJECT, IN
MERCED COUNTY, CALIFORNIA
WHEREAS, the City of Atwater (“City”) proposes to acquire a fee interest in certain real property, located at 337 E. Bellevue Road, Atwater, California, 95301, more particularly described as Assessor Parcel No. 156-060-009, for the City of Atwater’s Osborn Park Improvements Project in the City of Atwater, Merced County, California, pursuant to the authority granted to it by section 37350.5 of the California Government Code; and WHEREAS, pursuant to section 1245.235 of the California Code of Civil Procedure, the City scheduled a public hearing for September 26, 2022, at 6:00 p.m., at the City of Atwater City Council Chambers, located at City Hall, 750 Bellevue Road, Atwater, CA 95301, and gave to each person whose property is to be acquired and whose name and address appeared on the last equalized county assessment roll, notice and a reasonable opportunity to appear at said hearing and be heard on the matters referred to in section 1240.030 of the California Code of Civil Procedure; and
WHEREAS, said hearing has been held by the City, and the affected property owners were afforded an opportunity to be heard on said matters; and WHEREAS, the City may now adopt a Resolution of Necessity pursuant to section 1240.040 of the California Code of Civil Procedure;
NOW, THEREFORE, THE CITY DOES HEREBY RESOLVE AND DECLARE AS FOLLOWS:
Section 1. Compliance with the California Environmental Quality Act. The City finds the acquisition of a fee interest for enhancements to a public park, specifically, Osborn Park, is exempt from environmental review under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.). Specifically, State CEQA Guidelines (Cal. Code Regs., tit. 14, § 15000 et seq.) section 15301 (existing facilities) exempts the proposed project from further environmental review, as it involves enhancements to an existing public park and would not expand the use beyond that designated in the City’s General Plan. The proposed project is also exempt pursuant to State CEQA Guidelines section 15311 (accessory structures), which includes construction, or placement of minor structures accessory to
Resolution No. 3346-22 Page 2
(appurtenant to) existing commercial, industrial, or institutional facilities, including small parking lots. The proposed Project involves the development of a small surface parking lot on 3.7 acres that is adjacent to the Osborn Park. State CEQA Guidelines section 15303 (new construction of small structure) also exempts the proposed Project from further environmental review because it involves the construction of a new, small accessory (appurtenant) parking lot to the Osborn Park. None of the exceptions to the categorical exemptions listed above apply to the project.
Section 2. Compliance with California Code of Civil Procedure. There has been compliance by the City with the requirements of section 1245.235 of the California Code of Civil Procedure regarding notice and hearing.
Section 3. Public Use. The public use for the fee interest in certain real property to be acquired is for enhancements to Osborn Park as part of the Osborn Park Improvements Project in the City of Atwater, Merced County, California. Section 37350.5 of the California Government Code authorizes the City to acquire, by eminent domain, property necessary for such purposes.
Section 4. Description of Property. Attached and marked as Exhibit “A” are the legal definitions, and legal description, respectively, of the interest to be acquired by the City, which describe the general location and extent of the property with sufficient detail for reasonable identification.
Section 5. Findings. The City hereby finds and determines each of the following:
(a) The public interest and necessity require the
proposed project;
(b) The proposed project is planned or located in the
manner that will be most compatible with the greatest public good and least private injury;
(c) The properties defined, described and depicted in Exhibit “A” are necessary for the proposed project; and
(d) The offers required by section 7267.2 of the California Government Code was made.
Section 6. Use Not Unreasonably Interfering with Existing Public Use. Some or all of the real property affected by the interest to be acquired is subject to easements and rightsof-way appropriated to existing public uses. The legal descriptions of these easements and rights-of-way are on file with the City and describe the general location and extent of the easements and rights-of-way with sufficient detail for reasonable identification. In the event the herein described use or uses will not unreasonably interfere with or impair the continuance of the public use as it now exists or may reasonably be expected to exist in the future, counsel for the City is authorized to acquire the herein described property subject to such existing public use(s) pursuant to section 1240.510 of the California Code of Civil Procedure.
Resolution No. 3346-22 Page 3
Section 7. More Necessary Public Use. Some or all of the real property affected by the interest to be acquired is subject to easements and rights-of-way appropriated to existing public uses. To the extent that the herein described use or uses will unreasonably interfere with or impair the continuance of the public use as it now exists or may reasonably be expected to exist in the future, the City finds and determines that the herein described use or uses are more necessary than said existing public use. Counsel for the City is authorized to acquire the herein described real property appropriated to such existing public uses pursuant to section 1240.610 of the California Code of Civil Procedure. Staff is further authorized to make such improvements to the affected real property that it determines are reasonably necessary to mitigate any adverse impact upon the existing public use.
Section 8. Further Activities. Counsel for the City is hereby authorized to acquire the hereinabove described real property in the name of and on behalf of the City by eminent domain, and counsel is authorized to institute and prosecute such legal proceedings as may be required in connection therewith. Legal counsel is further authorized to take such steps as may be authorized and required by law, and to make such security deposits as may be required by order of court, to permit the City to take possession of and use said real property at the earliest possible time. Counsel is further authorized to correct any errors or to make or agree to non-material changes in the legal description of the real property that are deemed necessary for the conduct of the condemnation action, or other proceedings or transactions required to acquire the subject real property. Counsel is further authorized to reduce or modify the extent of the interests or property to be acquired so as to reduce the compensation payable in the action where such change would not substantially impair the construction and operation for the project for which the real property is being acquired.
Section 9. Effective Date. This Resolution shall take effect upon adoption.
APPROVED AND ADOPTED this __ day of ____, 2022
___________________________________
Paul Creighton, Mayor
City of Atwater
ATTEST:
___________________________________
Lucy Armstrong
City Clerk
Resolution No. 3346-22 Page 4
APPROVED AS TO FORM:
___________________________________
Frank Splendorio
City Attorney, City of Atwater
Resolution No. 3346-22 Page 5
CERTIFICATION
I, ______________________of the City of Atwater, do hereby certify that the foregoing Resolution No. 3345-22 was introduced at a regular meeting of the City Council of the City of Atwater on the 26th day of September 2022. Resolution No. 3345-22 was passed, approved, and adopted by the City Council of the City of Atwater, California, at a regular meeting of the City Council held on the 26th day of September 2022:
AYES:
NAYS:
ABSENT:
ABSTAIN:
___________________________________
Lucy Armstrong
City Clerk
Resolution No. 3346-22 Page 6
Legal Definition
The following is the definition of legal rights to be acquired by the City of Atwater:
“Fee,” also known as fee simple or fee simple absolute, grants to the City of Atwater absolute ownership of the property.
Legal Definition
The following is the definition of legal rights to be acquired by the City of Atwater:
“Fee,” also known as fee simple or fee simple absolute, grants to the City of Atwater absolute ownership of the property.
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County of Merced, Calif,
1992
83744.00104\40674715.1
NOTICE OF HEARING TO PROPERTY OWNERS
Pursuant to Section 1245.235 of the California Code of Civil Procedure, you are hereby notified that at a regular meeting to be held on Monday, September 26, 2022, at 6:00 p.m., at the City of Atwater City Council Chambers, at City Hall, located at 750 Bellevue Road, Atwater, CA 95301, the City Council of the City of Atwater (“City”) intends to consider adopting a Resolution of Necessity, authorizing the commencement of eminent domain proceedings for the acquisition of real property interests in property that, according to the last equalized county assessment roll, is owned by you. The public use for which this resolution of necessity will be considered is for enhancements to Obsorn Park for the City of Atwater’s Osborn Park Improvements Project in the City of Atwater, Merced County, California. The description of the property to be acquired is attached as Exhibit “A” to this notice.
A hearing will be held at the time and place mentioned above. You have the right to appear and be heard on the following matters:
1. Whether the public interest and necessity require the project for which the property is sought to be acquired.
2. Whether the project is planned or located in the manner that will be most compatible with the greatest public good and least private injury.
3. Whether the property is necessary for the proposed project.
4. Whether the offer required by Section 7267.2 of the California Government Code has been made.
83744.00104\40674715.1
Please note that your failure to file a written request to appear and be heard after the mailing of this notice may result in the waiver of your right to appear and be heard.
ALL COMMUNICATIONS SHOULD BE ADDRESSED TO:
Lori Waterman
City Manager of the City of Atwater
Atwater City Hall,
750 Bellevue Road,
Atwater, CA 95301
[email protected]
DATE OF HEARING: Tuesday, September 26, 2022
6:00 p.m.
PLACE OF HEARING: City of Atwater City Hall - Council Chambers 750 Bellevue Road,
Atwater, CA 95301
DATED: September 6, 2022 BEST BEST & KRIEGER LLP
By: ______________________________________
Mark A. Easter
Attorney for the City of Atwater
83744.00104\40674715.1
PROOF OF MAILING NOTICE
I, Brittany Reese, acting on behalf of the City of Atwater, hereby certify that on September 6, 2022, I mailed a copy of the attached notice by first-class mail to the following owners of real property located in the County of Merced, State of California, more particularly described as Assessor Parcel No. 156-060-009.
Roberto Hugo Carbajal
Maria Elena Carbajal
PO Box 1962
Winton, CA 95388
Roberto Hugo Carbajal
Maria Elena Carbajal
337 E Bellevue Road
Atwater, CA 95301
DATED: September 6, 2022 ___________________________________ Brittany Reese