DATE:
September 17, 2024
TO:
Mayor and City Council Members
FROM:
Rachel Molina, City Manager
BY:
Nathan R. Freeman, Director of Development Services
SUBJECT:
Consider Adoption of a Resolution of Necessity to Acquire Real Property located North of Yucca Terrace Drive abutting the California Aqueduct, Assessor Parcel No. 3064-461-03
RECOMMENDED ACTION
It is recommended that the City Council hold a public hearing on the proposed Resolution of Necessity (Resolution 2024-45) and adopt the Resolution of Necessity authorizing the commencement of eminent domain action to acquire the real property located north of Yucca Terrace Drive abutting the California Aqueduct (Assessor Parcel No. 3064-461-03).
BACKGROUND
The subject property is vacant and unimproved, located just north of Yucca Terrace Drive and Cataba Road. Due to the subject property’s location in a wash area, and adjacent to the California Aqueduct, the City seeks to create a water retention basin, to be constructed on the subject property, to attenuate surface runoff during rainfall events (the “Project”).
The City had previously sought to acquire the subject property for the Project over two years ago. After several unsuccessful attempts to contact the then property owners, on December 20, 2022, the City Council adopted a Resolution of Necessity to commence eminent domain proceedings. Shortly thereafter, the City was informed by a third-party real estate broker that the then property owners had been located and wanted to sell the subject property to the City. Thus, no eminent domain proceedings commenced.
While the subject property was in escrow for the City to purchase, the San Bernardino County Tax Collector sold the subject property at a tax sale, due to delinquent property taxes owed on the subject property. No notice was provided to either the City or the then property owners.
Upon learning that the subject property had changed ownership, the City immediately began contacting the new, current property owners.
Also, the City conducted a new third-party appraisal of the subject property and on June 18, 2024, the City made a written offer, in compliance with Government Code Section 7267.2, to purchase the subject property from the property owners: Gustavo Valdez and Fernando Valdez (Property Owners). Real property negotiations then commenced and the Property Owners agreed to sell the subject property to the City.
However, due to the County tax sale and a recorded deed of trust by the prior property owners that was not reconveyed, there is an existing cloud on title that cannot be extinguished through a normal purchase and sale agreement transaction. As such, the City is required to commence eminent domain proceedings and have clean title declared by a court. The City has informed the Property Owners of the cloud on title issue and the eminent domain process that will clear title for both parties.
On August 30, 2024, in accordance with 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 subject property via 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 subject property is necessary for the Project.
Whether the offer required by Section 7267.2 of the Government Code has been made to the owners(s) of record.
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 by regular mail to the Property Owners. No published notice is required.
The affirmative vote of two-thirds of all 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 facilities and drainage purposes is authorized by Section 19 of Article 1 of the California Constitution, California Government Code of Civil Procedures 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 is established:
The public interest and necessity require the project.
The project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury.
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 the construction and development of a water retention basin, to address water runoff and climate-related issues. Moreover, the Project is planned in the greatest public good and the least private injury. The subject property is currently vacant and undeveloped. The current topography of the subject property, with its significant downward slope on part of the land, and surrounding area, make it ideal for a water retention basin. Additionally, the subject property will further minimize adverse impacts by being built on undeveloped land rather than on existing residential uses. Other potential locations for the Project are technically infeasible or have greater adverse impacts.
Acquisition of the subject property is necessary for the Project, as the location of the subject property makes it an ideal location to construct a water retention basin. As previously noted, other potential locations for the Project are technically infeasible or have greater adverse impacts. In other words, without the subject property, the Project cannot be constructed.
Lastly, the City made a purchase offer, pursuant to Government Code Section 7267.2, to the Property Owners on or about June 18, 2024, and the Property Owners have agreed to sell the subject property to the City, but understand that the real property transaction cannot be completed without a court declaring clean title on the subject property. Accordingly, staff recommend proceeding with the Resolution of Necessity to minimize delay in being able to proceed with the Project.
After the City Council receives testimony and evidence from all interested parties, the City Council must make a determination as to whether to acquire the subject property by eminent domain and adopt the proposed Resolution of Necessity (Attachment 2). The City Council must make the above findings based upon all evidence and existence of the above stated conditions.
If this action is approved by the City Council, the City Attorney’s Office will be instructed to take all steps necessary to commence legal proceedings in a court of competent jurisdiction to acquire the subject property via eminent domain. The City Attorney’s Office 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 the eminent domain proceedings are pending in the court.
CITY GOAL SUPPORTED BY THIS ITEM
Capital Improvement: Continually evaluate capital improvement priorities.
FISCAL IMPACT
The cost of the acquisition of the subject property will be taken from Account No. 504-29-700-7901-8400.
ALTERNATIVE(S)
Provide alternative direction to staff.
ATTACHMENT(S)
Resolution 2024-45
Legal Description and Plat Map
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
Resolution of Necessity APN 3064-461-03
September 17, 2024