DATE:
December 20, 2022
TO:
Mayor and City Council
FROM:
Nils Bentsen, City Manager
BY:
Pam Lee, City Attorney
SUBJECT:
Consider Adoption of Resolution of Necessity to Acquire Property located at Buckthorn Avenue, north of the Hesperia Country Club and Golf Course in Hesperia, California, Assessor Parcel Number 0398-251-30-0000
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 at Buckthorn Avenue, north of the Hesperia Country Club and Golf Course in Hesperia, California, APN 0398-251-30-0000 (“Property”) (plat map attached as Attachment 1).
BACKGROUND/DISCUSSION
For over the past ten years, the City of Hesperia has leased and used the vacant Property as a driving range for the benefit of the public. The Property is adjacent to the Hesperia Country Club and Golf Course, which is open to the public. The owner of the Property, Mega Factors Ltd. (“Property Owner”), has indicated that it does not want to renew the lease of the Property with the City. The City seeks to continue using the Property as a driving range for public use, in addition to facilitating and expanding City park facilities (“Project”).
On or about December 24, 2021, the City of Hesperia made a written offer to purchase the Property from the Property Owner, pursuant to Government Code Section 7267.2. The Property Owner did not accept the City’s offer.
On December 1, 2022, in accordance with California Government Code Section 1245.235, the City gave notice to the Property Owner that the City Council would consider a Resolution of Necessity authorizing the acquisition of the Property by eminent domain. The notice informed the Property Owner of its 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 owner. 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, drainage, and open space 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, which consists of a public driving range to be used as part of the Hesperia Country Club and Golf Course. The Hesperia Country Club and Golf Course is owned by the City and open to the public for its use and enjoyment. Furthermore, the Project will include the expansion and preservation of open space for City park facilities, such as walking paths.
The Project is planned in the greatest public good and the least private injury. The Property currently exists as part of the public driving range, so no additional private property located elsewhere is required for said driving range. Additionally, the Project further minimizes adverse impacts on public views, public access, and recreation by being built on vacant, 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 public driving range cannot exist without the Property and will promote and facilitate golf recreation for public benefit. 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 Owner on or about December 24, 2021. The Property Owner’s representative did not accept the City’s offer, but indicated that they are obtaining an appraisal in order to provide the City with a counteroffer. The City remains interested in negotiating with the Property Owner, and neither adoption of the Resolution of Necessity, nor the filing of an eminent domain case following adoption of the Resolution, will interfere with such negotiations. Acordingly, City staff recommends proceeding with the Resolution of Necessity to minimize delay in being able to proceed with the Project while remaining open to further negotiations.
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.
COMPLIANCE WITH CEQA
The City has determined the Project for which the Property is being acquired is exempt from the California Environmental Quality Act.
FISCAL IMPACT
The cost of acquisition of the Property will be funded by use of General Fund Reserves. A budget amendment will be presented to the City Council during the quarterly budget review.
ATTACHMENTS
Plat Map
Resolution 2022-85 Resolution of Necessity for APN 0398-251-30-0000 ATTACHMENT 1
Plat Map
01071.0017/814559.2
Staff Report to the City Council
December 20, 2022
City of Hesperia STAFF REPORT
City of Hesperia STAFF REPORT
City of Hesperia
STAFF REPORT
City of Hesperia
STAFF REPORT