DATE:
December 20, 2022
TO:
Mayor and City Council Members
Chair and Board Members, Hesperia Water District
FROM:
Nils Bentsen, City Manager
BY:
Pam Lee, City Attorney
SUBJECT:
Consider Adoption of Resolution of Necessity to Acquire Property located North of Yucca Terrace Drive abutting the California Aqueduct in Hesperia, California 92344, APN 3064-461-03-0-000
RECOMMENDED ACTION
(1) That the City Council hold a hearing on the proposed Resolution of Necessity and (2) adopt the Resolution of Necessity authorizing the commencement of eminent domain action to acquire the property located North of Yucca Terrace Drive abutting the California Aqueduct in Hesperia, California 92344, APN 3064-461-03-0-000 (“Property”).
BACKGROUND
The City of Hesperia seeks to create a water retention basin to attenuate surface runoff during rainfall events and/or a sewer lifts station needs to be constructed on the Property (the “Project”).
On September 19, 2022, the City of Hesperia made a written offer in compliance with Government Code Section 7267.2 to purchase the Property, to which the property owners, Seung D. Hong and Byng S. Hong (“Property Owners”), did not respond.
On December 1, 2022 , in accordance with California Government Code Section 1245.235, the City gave notice to the Property Owners that the City Council would consider a Resolution of Necessity authorizing the acquisition of the Property by eminent domain. The notice informed the Property Owners of their right to appear at this hearing and be heard on the following issues:
Whether the public interest and necessity require the Project; Whether the Project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury; Whether the acquisition of the Property is necessary for the Project; Whether the offer required by Section 7267.2 of the Government Code has been made to the owner or owners of record, or has not been made because the owner cannot be located with reasonable diligence; and Whether the offer required by Section 7267.2 of the Government Code was made in the form and substance required by law.
While a hearing on a Resolution of Necessity is often referred to as a public hearing, the only notice required is 15 days’ notice by regular mail to the property owners. No published notice is required.
The affirmative vote of two-thirds of all the members of the City Council, which in this case is four (4) affirmative votes, is required to adopt the Resolution of Necessity.
FINDINGS REQUIRED IN THE RESOLUTION OF NECESSITY
Public acquisition of private property by eminent domain for water facility, wastewater facilities and drainage purposes is authorized by Section 19 of Article I of the California Constitution, California Code of Civil Procedure Sections 1240.010 through 1240.050 and Sections 1240.410 through 1240.430, and Government Code Sections 37350, 37350.5, and 40404.
Pursuant to California Government Code Section 1240.030, the power of eminent domain may be exercised to acquire property for a proposed project only if all of the following are established:
(a) The public interest and necessity require the project. (b) The project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury. (c) The property sought to be acquired is necessary for the project.
In addition, a Resolution of Necessity must include a finding that the offer required by Government Code Section 7267.2 has been made to the owner or owners of record, or the offer was not made because the owner could not be located with reasonable diligence.
In this case, public interest, convenience, and necessity require the Project, for construction and development of a water retention basin and a sewer lift station to address water and climate issues. Through the Project, the City will be able to provide more residents and businesses with wastewater treatment through a sewer lift station. A minority percentage of land within the City’s boundaries is currently served by a sewer system, while the remaining portion is either undeveloped or served by on-site systems (i.e. septic tanks). With the increase in population over the past few decades, which is expected to continue in the future, sewer system capacity is required to serve the population. Accordingly, a sewer lift station is necessary to meet the growing demands of wastewater treatment. Furthermore, proper drainage systems through a water retention basin are necessary to prevent erosion and improve groundwater supply.
The Project is planned in the greatest public good and the least private injury. The Property is currently vacant and undeveloped. The current topography of the Property, with its significant downward slope on part of the land, and surrounding area make it an ideal location for a water retention basin and/or a sewer lift station. Additionally, the Project further minimizes adverse impacts by being built on undeveloped land rather on existing residential uses. Other potential locations for the Project are technically infeasible or have greater adverse impacts.
Acquisition of the Property is necessary to the Project, as the location of the Property make it an ideal location to construct a water retention basin and/or sewer lift station. As already stated, other potential locations for the Project are technically infeasible or have greater adverse impacts. In other words, without the Property, the Project cannot be constructed.
Lastly, the City made an offer pursuant to Government Code Section 7267.2 to the Property Owners on or about September 19, 2022. The Property Owners have not responded. Acordingly, City staff recommends proceeding with the Resolution of Necessity to minimize delay in being able to proceed with the Project.
After the City receives testimony and evidence from all interested parties, the City Council must make a determination as to whether to acquire the Property by eminent domain and adopt the proposed Resolution of Necessity (see Attachment 2). The City must make the above findings based upon all the evidence and the existence of the above stated conditions.
If this action is approved by the City Council, the City Attorney will be instructed to take all steps necessary to commence legal proceedings in a court of competent jurisdiction to acquire the Property by eminent domain. Counsel will also be directed to seek and obtain an order of prejudgment possession in accordance with the provisions of the eminent domain law so that the City may proceed with the Project while eminent domain proceedings are pending in the court.
FISCAL IMPACT
The cost of acquisition of the Property will be funded by use of Sewer Capital Reserves. A budget amendment will be presented to the City Council during the quarterly budget review.
ATTACHMENTS
Plat Map
Resolution 2022-86 Resolution of Necessity for APN 3064-461-03-0-000 01071.0017/815921.1
City of Hesperia STAFF REPORT City of Hesperia STAFF REPORT City of Hesperia
STAFF REPORT
City of Hesperia
STAFF REPORT
Staff Report to the Mayor and City Council Members
Water Retention Basin – Resolution No. 2022-86
December 20, 2022