HomeMy WebLinkAbout27 - Jamboree Road Bridge Widening Over SR-73 - Eminent Domain for 3601 Jamboree RoadCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 27
June 8, 2010
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Public Works Department
Andy Tran, Senior Civil Engineer
949 - 644 -3315 or atran @newportbeachca.gov
SUBJECT: Jamboree Road Bridge Widening Over State Route 73 — Adoption of
a Resolution of Necessity to Acquire a Portion of Real Property
Located at 3601 Jamboree Road by Eminent Domain
ISSUE:
Should the City use its power of eminent domain to acquire a portion of real property
located at 3601 Jamboree Road in the City of Newport Beach ( "City ") for the purposes
of constructing the Jamboree Road Bridge Widening Over State Route 73 Project
( "Project')?
RECOMMENDATION:
Adopt Resolution No. 2010- establishing the need for the City to acquire a portion
of real property located at 3601 Jamboree Road in the City of Newport Beach for the
purposes of constructing the Project.
BACKGROUND:
The Project involves widening the west side of the Jamboree Road Bridge overcrossing
State Route 73 to accommodate one additional thru lane in each travel direction. The
roadway leading to the bridge will also need to be widened in order to transition to the
proposed lane configuration across the bridge. Therefore, additional public right -of -way
will need to be acquired from the following three properties:
1. SK Hart Bayview, LLC (Former Downey Savings and Loans)
2. 3901 MacArthur Blvd., LLC (Newport Lexus)
3. Back Bay Court Property Co.
The attached exhibit shows the location of the proposed additional public right -of -way
required to construct the Project. This Project will only require a portion of real property
from each of the three affected properties.
Jamboree Rd Bridge Widening — Adoption of Resolution of Necessity
June 8, 2010
Page 2
This proposed roadway widening is needed to address projected traffic flow deficiencies
at the intersection of Jamboree Road and Bristol Street North. According to the
Caltrans Project Study Report/Project Report, the existing intersection will operate at a
Level of Service D by Year 2030. The proposed widening will improve the traffic
operations to a Level of Service A in Year 2030.
DISCUSSION:
On August 11, 2009, City Council authorized Staff to proceed with making initial offers
for the three affected properties. Since then, appraisals have been completed and
initial offers have been presented to each of the three property owners. Negotiations
with SK Hart Bayview, LLC are proceeding very well. Staff has been working with a
right -of -way consultant, Overland, Pacific and Cutler, Inc. (OPC), and has reached a
Settlement Agreement with SK Hart Bayview, LLC. A separate City Council Staff
Report has been prepared to address the approval of this Settlement Agreement.
Negotiations with 3901 MacArthur Blvd., LLC are also going well and Staff believes that
a Settlement Agreement will also be reached with this property owner shortly.
With regards to the third property, the initial offer was presented to the Back Bay Court
Property Co. on January 25, 2010. The property owner expressed his unhappiness
with the initial offer which reflects the just compensation value as identified in the
January 2009 appraisal. After several conversations with this property owner, it was
apparent that a Settlement Agreement will not be reached at this time.
On March 23, 2010, City Council authorized Staff to continue with negotiations while
proceeding with the eminent domain process. Pursuant to the California Code of Civil
Procedures, a Notice of Hearing Regarding Adoption of a Resolution of Necessity
( "Notice ") was sent to the property owner on May 10, 2010. A copy of this Notice is
attached. In addition, the California Code of Civil Procedures also requires the City to
adopt a Resolution of Necessity prior to exercising eminent domain. Therefore, Staff is
recommending the adoption of Resolution No. 2010- to establish the need for the
City to acquire a portion of real property located at 3601 Jamboree Road in the City of
Newport Beach (APN 427 - 241 -09). Per City Council direction, Staff will continue to
pursue a Settlement Agreement even if the resolution is adopted.
Environmental Review
Adoption of a resolution is administrative in nature and is not subject to the California
Environmental Quality Act (CEQA) requirements. The construction of the Jamboree
Road Bridge Widening Over State Route 73 Project was determined to be exempt
pursuant to Section 15301 of the CEQA Implementing Guidelines.
Public Notice:
A notice of public hearing regarding the adoption of this resolution of necessity was
advertised in the City's official publication.
Jamboree Rd Bridge Widening — Adoption of Resolution of Necessity
June 8, 2010
Page 3
Funding Availability:
The appraised value for the portion of real property to be acquired, including the
temporary construction easement, is $452,000.00. There are sufficient funds available
in the follow account:
Account Description
Measure M Turnback
Prepared by:
I
Andy Tr &i, P.E.
Senior Civil Engineer
Account Number
7281- C5100784
Total:
Submitted
Amount
$ 452,000.00
$ 452,000.00
G. Badum
orks Director
Attachments: Right -of -Way Exhibit
Notice of Hearing Regarding Adoption of a Resolution of Necessity
Resolution of Necessity
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RESOLUTION NO.
A RESOLUTION OF THE CITY OF NEWPORT BEACH, CALIFORNIA
FINDING AND DETERMINING THAT THE PUBLIC INTEREST AND
NECESSITY REQUIRE THE ACQUISITION BY EMINENT DOMAIN OF
CERTAIN REAL PROPERTY AND AN INTEREST IN CERTAIN REAL
PROPERTY FOR PUBLIC USE AND AUTHORIZING AND DIRECTING
CONDEMNATION OF A PORTION OF APN 427 - 241 -09.
WHEREAS, the City of Newport Beach (City) is undertaking a project to acquire a
portion of the property located at 3601 Jamboree Road, Newport Beach, California, by eminent
domain for the Jamboree Road Bridge Widening over State Route 73 Project, a right -of -way for
public purposes, including for public street, highway and all public uses appurtenant thereto (the
"Project "); and
WHEREAS, the Project is intended to improve traffic flow by widening the west side of
Jamboree Road Bridge overcrossing of State Route 73 to accommodate one additional through
lane in each travel direction; and
WHEREAS, proposed Project requires the acquisition of property interests from private
parties adjacent to the roadway. A Categorical Exemption was filed on February 10, 2006 in
accordance with the California Environmental Quality Act, for the Project.; and
WHEREAS, the Project will be a transportation improvement project serving the public
interest; and
WHEREAS, Article I, section 19 of the California Constitution, and California
Government Code Sections 37350.5 and 39792, authorize the City to exercise the power of
eminent domain to acquire these property interests for public use by condemnation; and
WHEREAS, on August 11, 2009, the City Council of the City of Newport Beach
authorized the City to acquire property interests for the Project; and
WHEREAS, the hereinafter described real property required for the Project includes a
fee interest and a temporary construction easement as legally described and portrayed in
Attachment "A" and `B ". The subject property is located in the City of Newport Beach ; and
WHEREAS, in accordance with section 1245.235 of the California Code of Civil
Procedure, on May 7, 2010, there was mailed a Notice of Hearing on the Intent of the City to
adopt a Resolution of Necessity for acquisition by eminent domain of the real property described
and portrayed in Attachments "A" and `B" herein, which Notice of Hearing is attached hereto as
Attachment "C" and is incorporated herein by this reference. The Notice of Hearing was mailed
to all persons whose names appear on the last equalized county assessment roll notice as having
an interest in the property described and portrayed in Attachments "A" and `B" and to the
address appearing on said roll; and
Page 1 of 4
683383.1
WHEREAS, the Project, including all amendments thereto, together with the staff
reports, environmental documents and all other evidence presented to the City Council of the
City of Newport Beach at the time the Project and the amendments thereto were adopted, are
incorporated herein by this reference and made a part hereof as though fully set forth herein; and
WHEREAS, pursuant to section 1245.235 of the California Code of Civil Procedure, the
City scheduled a hearing for June 8, 2010 at 7:00 p.m. at 3300 Newport Boulevard, Newport
Beach, CA 92663 and gave to each person whose property is to be acquired notice and a
reasonable opportunity to appear at said hearing and to 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 Council of the City of Newport
Beach and each person whose property is to be acquired by eminent domain was afforded an
opportunity to be heard on those matters specified in the City's notice of intention to conduct a
hearing on whether to adopt a Resolution of Necessity and referred to in section 1240.030 of the
California Code of Civil Procedure; and
WHEREAS, the City may adopt a Resolution of Necessity pursuant to section 1240.040
of the California Code of Civil Procedure.
NOW, THEREFORE, the City of Newport Beach does hereby find, determine, resolve
and order as follows:
Section 1. Incorporation of Findings and Recitals. The above findings and recitals
are true and correct and are incorporated herein in full by this reference.
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 which the property and the interest in the
property are to be acquired is for the construction and future maintenance of the Project, a public
transportation improvement, as more fully described hereinabove. Article I, section 19 of the
California Constitution, and California Government Code Sections 37350.5 and 39792,
authorize the City to acquire by eminent domain property and interest in property necessary for
such purpose and for all uses incidental or convenient thereto.
Section 4. Necessity.
(a) The property interests to be acquired are necessary for the proposed Project which
is expected to improve current and anticipated increases in traffic.
(b) The public interest and necessity require the acquisition by eminent domain
proceedings a fee interest and a temporary construction easement in the real property described
and portrayed in Attachments "A" and `B" to this Resolution of Necessity.
Page 2 of 4
683383.1
Section 5. Description of Property Interests.
(a) The property interest to be acquired is more particularly described in Attachments
"A" and "B" attached hereto and incorporated herein by reference together with a map thereof.
(b) Also included in Attachments "A" and "B" are the legal description and plat of
the real property interest to be acquired as well as other interest(s) in real property to be acquired
by the City, which describes the general location and extent of the property interest with
sufficient detail for reasonable identification.
Section 6. Findings. The City hereby finds, determines and declares 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 above - described property interests, as described in Attachments "A" and "B"
are necessary for the proposed Project;
(d) The offer required by section 7267.2 of the California Government Code has been
made to the owner or owners of record; and
(e) All conditions and statutory requirements necessary to exercise the power of
eminent domain ( "the right to take ") to acquire the property described herein have been complied
with by the City.
Section 7. Use Not Unreasonably Interfering With Existing Public Use(s). To the
extent any of the real property to be acquired is subject to easements and rights -of -way
appropriated to existing public uses that are not owned by a public body, 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. As such, Special Counsel
( "Counsel ") is authorized to acquire the real property subject to such existing public use(s)
pursuant to section 1240.510 of the California Code of Civil Procedure. To the extent any of the
real property to be acquired is subject to easements and rights -of -way appropriated to existing
public uses that are owned by a public body, 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. As such, Counsel is authorized to acquire the real
property subject to such existing public use(s) pursuant to section 1240.510 of the California
Code of Civil Procedure.
Section 8. Authority to Exercise Eminent Domain. The City is hereby authorized
and empowered to acquire fee title and a temporary construction easement in the real property
described and portrayed in Attachments "A" and "B ", including the improvements thereon, if
any, by eminent domain for the proposed Project in accordance with the applicable provisions of
Page 3 of 4
683383.1
the California Code of Civil Procedure, the California Public Utilities Code and the Constitution
of California relating to eminent domain.
Section 9. Further Activities. The City Attorney is hereby authorized and
empowered to retain Special Counsel to acquire the hereinabove described interests in real
property in the name of and on behalf of the City by eminent domain, and Special Counsel is
authorized to institute and prosecute such legal proceedings as may be required in connection
therewith. 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 real property at the earliest possible time. Counsel is further
authorized to correct any errors in this Resolution of Necessity or to make or agree to non-
material changes in the legal descriptions of the real property that are deemed necessary for the
conduct of the eminent domain action or other proceedings or transactions required to acquire the
subject real property. Counsel is further authorized to reduce 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 of the Project for which the
real property is being acquired.
Section 10. Effective Date. This Resolution shall take effect upon adoption.
PASSED, APPROVED and adopted on this day of 2010.
Page 4 of 4
6833831
Attachment A
EXHIBIT "A"
LEGAL DESCRIPTION
RIGHT -OF -WAY
That certain parcel of land situated in the City of Newport Beach, County of Orange, State of
California, being that portion of Lot 2 of Tract No. 7694 as shown on a map thereof filed in
Book 294, Pages 27 through 29 of Miscellaneous Maps in the Office of the County Recorder of
said Orange County, described as follows:
BEGINNING at the most easterly corner of said Lot 2 of Tract No. 7694; thence along the
northeasterly line of said lot North 49 022'06" West 10.10 feet to a point on a non - tangent curve
concave northwesterly and having a radius of 240.08 feet, a radial line of said curve from said
point bears North 40°31'41" West; thence along said curve southwesterly 6.02 feet through a
central angle of 01 *26'11'; thence tangent from said curve South 50 °54'30" West 53.28 feet to
the beginning of a tangent curve concave southeasterly and having a radius of 224.23 feet, the
southwesterly terminus of said curve being tangent with a line parallel with and 22.00 feet
northwesterly of the northwesterly right -of -way of Jamboree Road as shown on said tract; thence
along said curve southwesterly 35.09 feet through a central angle of 08 158'03" to said parallel
line; thence tangent from said curve and along said parallel line South 4l °56'27" West 159.16
feet; thence South 84 °15'08" West 40.22 feet to the southwesterly line of said lot; thence along
said southwesterly line South 49 °21'51" East 22.64 feet to an angle point therein, said angle
point also being a point in said northwesterly right -of -way of Jamboree Road; thence along said
northwesterly right -of -way North 86 °16'55" East 37.84 feet; thence continuing along said
northwesterly right -of -way North 41 °56'27" East 255.09 feet to the POINT OF BEGINNING.
CONTAINING: 0.133 Acres, more or less.
EXHIBIT "B" attached and by this reference made a part hereof.
Kurt R. Troxell, PLS 7854 Date
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PARCEL 1 N40 '31'41"W ____,
L,L.A, NO. LA 2005 -008 (RAD)
INST, NO, 2006000060410 O,R.
NE'LY LINE LOT 2
LOT 2
TRACT NO. 7694
M,M, 294 / 27 -29
DATA TABLE
OBRNG /DELTA RADIUS LENGTH
1
N49 °22'06 "W --
10.10'
2
01 °26'11" 240.08'
6.02'
3
S50 °54'30 "W --
53.28'
4
08 °58'03" 224.23'
35.09'
5
S84 °15'08 "W --
40,22'
6
549 °21'51 "E --
22.64'
Attachment A
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MOST EASTERLY CORNER LOT 2
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UNLESS OTHERWISE NOTED, ALL BEARINGS AND m
DISTANCES IN THIS DESCRIPTION ARE GRID
BASED ON THE CALIFORNIA COORDINATE N 66
SYSTEM, (CCS83) ZONE VI 1983 NAD 22'
(1991.35 EPOCH GPS ADJUSTMENT). TO
OBTAIN GROUND DISTANCES DIVIDE DISTANCES =i
SHOWN BY 0.99997352. z
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+� SW'LY LINE LOT 2—�
EXHIBIT °B°
SKETCH T0A 11NYA
JAMBOREE I SR-73
RKiH -"AY
(A.P.N.427- 241-08)
CONTAINING: 0.133 ACRES t
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Attachment B
EXHIBIT "A"
LEGAL DESCRIPTION
TEMPORARY CONS'T'RUCTION EASEMENT
That certain parcel of land situated in the City of Newport Beach, County of Orange, State of
California, being that portion of Lot 2 of Tract No. 7694 as shown on a map thereof filed in
Book 294, Pages 27 through 29 of Miscellaneous Maps in the Office of the County Recorder of
said Orange County, described as follows:
BEGINNING at a point in the northeasterly line of said Lot 2 of Tract No. 7694, distant thereon
North 49 °22'06" West 10.10 feet from the most easterly corner thereof, said point being on a
non - tangent curve concave northwesterly and having a radius of 240.08 feet, a radial line of said
curve from said point bears North 40 °31'41" West; thence along said curve southwesterly 6.02
feet through a central angle of 01 °26'11'; thence tangent from said curve South 50 054'30" West
53.28 feet to the beginning of a tangent curve concave southeasterly and having a radius of
224.23 feet, the southwesterly terminus of said curve being tangent with a line parallel with and
22.00 feet northwesterly of the northwesterly right -of -way of Jamboree Road as shown on said
tract; thence along said curve southwesterly 35.09 feet through a central angle of 08 058'03" to
said parallel line; thence tangent from said curve and along said parallel line
South 41 °56'27" West 159.16 feet; thence South 84 °15'08" West 40.22 feet to the southwesterly
line of said Lot 2; thence along said southwesterly line North 49 °21'51" West 13.81 feet; thence
North 84'15'08" East 26.57 feet; thence North 41'56'27" East 166.38 feet; thence
North 77 °05'07" East 26.15 feet; thence North 40 °40'13" East 69.54 feet; thence
North 63 °09'17" East 5.76 feet to said northeasterly line of said Lot 2; thence along said
northeasterly line South 49 °22'06" East 19.32 feet to the POINT OF BEGINNING.
CONTAINING: 0.126 Acres, more or less.
The duration of the Temporary Construction Easement shall be
3 months.
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Kurt R. Troxell, PLS 7854 ISate
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KURT R.
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PARCEL 1 N40 °31'41 "W
L.L,A, NO. LA 2005 -008 (RAD)
INST, NO, 2006000060410, O.R.
NE'LY LINE LOT 2
LOT 2
TRACT NO. 7694
M.M. 294 / 27 -29
N77 °05'07 "I
26.15
DATA TABLE
N0.
BRNG /DELTA RADIUS
LENGTH
1
N49 °22'06 "W --
10.10'
2
01 926'11" 240.08'
6.02'
3
S50 °54'30 "W --
53.28'
4
08 °58'03" 224.23'
35.09'
5
S84 015'08 "W --
40.22'
6
S49 °21'51 "E --
22.64'
7
N49 °21'51 "W --
13.81'
8
N63 °09'17 "E --
5.76'
9
S49 °22'06 "E --
19.32'
UNLESS OTHERWISE NOTED, ALL BEARINGS AND
DISTANCES IN THIS DESCRIPTION ARE GRID
BASED ON THE CALIFORNIA COORDINATE
SYSTEM, (CCS83) ZONE VI 1983 NAD
(1991.35 EPOCH GPS ADJUSTMENT). TO
OBTAIN GROUND DISTANCES DIVIDE DISTANCES
SHOWN BY 0.99997352.
23' �I 22'
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EXHIBIT "AA
SKETCH70ACOOMPAWA
LES&OEMP71)N FOR
JAMBOREE 1 SR -73 OVERCROSSING
TEMPORARY CONSTRUCTION EASEMENT
(A.P.N.427- 24149)
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Attachment B
MOST EASTERLY CORNER LOT 2
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REVISED JANUARY 2% 2008
JIA.Y 19, 2008
Attachment C
CITY OF NEWPORT BEACH
OFFICE OF THE CITY CLERK
<IFOR�P Leilani 1. Broom, MMC
Re: NOTICE OF HEARING REGARDING ADOPTION OF A RESOLUTION OF
NECESSITY TO ACQUIRE PROPERTY BY EMINENT DOMAIN [CALIFORNIA
CODE OF CIVIL PROCEDURE 1245.235]
Dear Property Owner:
I am the City Clerk for the City of Newport Beach, and am authorized to provide you
with this notice.
1. Notice of the Intent of the Newport Beach City Council to Adopt a
Resolution of Necessity. The City Council intends to consider the adoption of a
Resolution of Necessity on June 8, 2010 that, if adopted, will authorize the City of
Newport Beach ( "City ") to acquire a portion of the property located at 3601 Jamboree
Road, Newport Beach, California, by eminent domain for the Jamboree Road Bridge
Widening over State Route 73 Project ('Project') a right -of -way for public purposes,
including for public street, highway and all public uses appurtenant thereto for the
Project.
A description of the property being considered for acquisition is attached to the
proposed Resolution of Necessity, which accompanies this Notice, as Exhibit A (which
property shall be referred to hereinafter as the Property).
2. Notice of Your Right to Appear and be Heard. Please take notice that
the City Council of the City of Newport Beach, at a regular meeting to be held on June
8, 2010 or as soon thereafter as the matter may be heard at Council Chambers, 3300
Newport Boulevard, Newport Beach, California, will hold a hearing on whether such a
Resolution of Necessity should be adopted, as required by California Code of Civil
Procedure section 1245.220 for the commencement of an eminent domain proceeding
to acquire real property.
You have a right to appear and be heard and /or submit written testimony before
the City Council at the above scheduled hearing on the following matters and issues,
and to have the City Council give judicious consideration to your testimony prior to
deciding whether or not to adopt the proposed Resolution of Necessity.
a. Whether the public interest and necessity require the proposed project;
3300 Newport Boulevard • Post Office Box 1768 • Newport Beach, California 92658 -8915
Telephone: (949) 644 -3005 • Fax: (949) 644 -3039 • www.city.newport- beach.ca.us
Attachment C
b. Whether the proposed project is planned or located in the manner that will
be most compatible with the greatest public good and the least private
injury;
C. Whether the property sought to be acquired by eminent domain and
described in the Resolution of Necessity is necessary for the proposed
project.
d. Whether the offer required by Government Code section 7267.2,
subdivisions (a), (b), and (c), together with the accompanying statement
and summary of the basis for the amount established as just
compensation, was actually made to you and whether said offer and
statement/summary were in a form and contained all of the factual
information required by Government Code section 7267.2, subdivisions
(a), (b), and (c), a copy of which is attached hereto.
e. Whether the City has complied with all conditions and statutory
requirements necessary to exercise the power of eminent domain (the
"right to take ") to acquire the property described herein, as well as any
other matter regarding the right to take said property by eminent domain;
and
f. Whether the City has statutory authority to acquire the property by
eminent domain.
The statutes that authorize the City to acquire the property by eminent domain for
this proposed project are Streets and Highways Code Section 10102 (street right of
way); and Streets and Highways Code Section 5100 et seq. (Street Improvement Act
acquisitions).
3. Failure to File a Written Request to Be Heard within Fifteen (15) Days
After this Notice Is Mailed Will Result in Waiver of the Right to Appear and Be
Heard. If you desire to be heard, please be advised that you must file a written request
with the City Clerk within fifteen (15) days after this Notice was mailed. You must file
your request to be heard at 3300 Newport Boulevard, Newport Beach, California.
Should you elect to mail your request to the City Clerk, it must be actually received by
the City Clerk for filing within fifteen (15) days after this Notice was mailed. The date of
mailing appears at the end of this Notice.
California Code of Civil Procedure section 1245.235(b)(3) provides that "failure to file a
written request to appear and be heard within fifteen (15) days after the Notice was
mailed will result in waiver of the right to appear and be heard" on the above matters
and issues that are the subject of the hearing.
Attachment C
If you elect not to appear and be heard in regard to compensation, your
nonappearance will not be a waiver of your right to claim greater compensation in
a court of law. The amount to be paid for the property will not be considered by
the City Council at this hearing.
The amount of the compensation to be paid for the acquisition of the
property is not a matter or issue being heard by the City Council at this
time. Your nonappearance at this noticed hearing will not prevent you from
claiming greater compensation, in and as determined by a court of law in
accordance with the laws of the State of California. This Notice is not
intended to foreclose future negotiations between you and the
representatives of the City on the amount of compensation to be paid for
your property.
If you elect not to appear and not to be heard, your failure to appear will be a
waiver of your right to later challenge the right of the City to take property by
eminent domain.
If you elect not to appear and not to be heard, you will only be foreclosed
from raising in a court of law the issues that are the subject of this noticed
hearing and that are concerned with the right to take the property by
eminent domain.
If the City Council elects to adopt the Resolution of Necessity, then within six months of
the adoption of the Resolution, the City will commence eminent domain proceedings in
Superior Court. In that proceeding, the Court will determine the amount of
compensation to which you are entitled.
Dated and Mailed on May 10, 2010.
Sincerely,
aA� ,
Leilani Brown, City Clerk
Attachments:
Copy of Government Code section 7267.2, subdivisions (a), (b), and (c)
Proof of Service by Mail Form
Proposed Resolution of Necessity
California Government Code § 7267.2 Just compensation; property offered for sale by owner
(a)(1) Prior to adopting a resolution of necessity pursuant to Section 1245.230 of the Code of Civil Procedure and
initiating negotiations for the acquisition of real property, the public entity shall establish an amount that it believes
to be just compensation therefor, and shall make an offer to the owner or owners of record to acquire the property
for the full amount so established, unless the owner cannot be located with reasonable diligence. The offer may be
conditioned upon the legislative bodys ratification of the offer by execution of a contract of acquisition or adoption
of a resolution of necessity or both. The amount shall not be less than the public entity's approved appraisal of the
fair market value of the property. A decrease or increase in the fair market value of real property to be acquired prior
to the date of valuation caused by the public improvement for which the property is acquired, or by the likelihood
that the property would be acquired for the improvement, other than that due to physical deterioration within the
reasonable control of the owner or occupant, shall be disregarded in determining the compensation for the property.
(2) At the time of making the offer described in paragraph (1), the public entity shall provide the property owner
with an informational pamphlet detailing the process of eminent domain and the property owner's rights under the
Eminent Domain law.
(b) The public entity shall provide the owner of real property to be acquired with a written statement of, and sum-
mary of the basis for, the amount it established as just compensation. The written statement and summary shall con-
tain detail sufficient to indicate clearly the basis for the offer, including, but not limited to, all of the following in-
formation:
(1) The date of valuation, highest and best use, and applicable zoning of property
(2) The principal transactions, reproduction or replacement cost analysis, or capitalization analysis, supporting the
determination of value.
(3) if appropriate, the just compensation for the real property acquired and for damages to remaining real property
shall be separately stated and shall include the calculations and narrative explanation supporting the compensation,
including any offsetting benefits.
(c) Where the property involved is owner - occupied residential property and contains no more than four residential
units, the homeowner shall, upon request, be allowed to review a copy of the appraisal upon which the offer is
based. The public entity may, but is not required to, satisfy the written statement, summary, and review requirements
of this section by providing the owner a copy of the appraisal on which the offer is based
(d) Notwithstanding subdivision (a), a public entity may make an offer to the owner or owners of record to acquire
real property for less than an amount that it believes to be just compensation therefor if (1) the real property is of-
fered for sale by the owner at a specified price less than the amount the public entity believes to be just compensa-
tion therefor, (2) the public entity offers a price that is equal to the specified price for which the property is being
offered by the landowner, and (3) no federal funds are involved in the acquisition, construction, or project develop-
ment.
(e) As used in subdivision (d), "offered for sale" means any of the following:
(1) Directly offered by the landowner to the public entity for a specified price in advance of negotiations by the pub-
lic entity,
(2) Offered for sale to the general public at an advertised or published specified price, set no more than six months
prior to, and still available at, the time the public entity initiates contact with the landowner regarding the public
entity's possible acquisition of the property.
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Leilani I. Brown
City Clerk
Office of the City Clerk
P.O. Box 1768
Newport Beach, CA 92658
Re: Obiections To Adoption of Resolution of Necessity To Acquire Portions of Real
Property by Eminent Domain (APN 427 - 241 -09)
Dear Ms. Brown:
Please be advised that this office represents Back Bay Court Property Co. (the "Owner "),
owner of real property located at 3601 Jamboree Road, Newport Beach (the "Property "). The
City of Newport Beach (the "City ") is seeking to acquire the Property for purposes of the
Jamboree Road Bridge Widening over State Route 73 Project (the "Project').
We have received notice that the City intends to adopt a Resolution of Necessity (the
"Resolution ") authorizing the taking of a portion of the Property, as well as a temporary
construction easement. The hearing on the Resolution is presently scheduled for June 8, 2010 at
7:00 p.m. The purpose of this letter is to provide our written objections on behalf of the Owner
to the notice and adoption of the Resolution. We request that this letter be included as part of the
formal record on this agenda item.
The Owner objects to the adoption of the Resolution on each of the following grounds:
The City Has Failed to Provide Documents Necessary for the Owner to Fully Assess the
Proposed Resolution — The Hearing Should Therefore be Continued.
After receiving the notice of the hearing on the Resolution, my office submitted a public
records request to the City. The records request was faxed to the City on May 14, 2010, and also
sent by certified mail. A copy of the records request is attached hereto. Not until May 29, 2010,
did the City untimely mail its response to the request purporting to continue its time to respond
until June 10, 2010, two days after the Resolution hearing. The letter and envelope showing
when the response was mailed is also attached hereto.
895 DOVE STREET 1 1277 TREAT BLVD.
5TH FLOOR
SUITE 599
NEWPORT BEACH, CA 92660
WALNUT CREEK, CA 94597
T 949 854 7000
T 925 988 3200
F 949 854 7099
F 925 988 3290
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CHARLES S. KROLIKOW$KI
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June 4, 2010
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BY PERSONAL DELIVERY AND FACSIMILE
Leilani I. Brown
City Clerk
Office of the City Clerk
P.O. Box 1768
Newport Beach, CA 92658
Re: Obiections To Adoption of Resolution of Necessity To Acquire Portions of Real
Property by Eminent Domain (APN 427 - 241 -09)
Dear Ms. Brown:
Please be advised that this office represents Back Bay Court Property Co. (the "Owner "),
owner of real property located at 3601 Jamboree Road, Newport Beach (the "Property "). The
City of Newport Beach (the "City ") is seeking to acquire the Property for purposes of the
Jamboree Road Bridge Widening over State Route 73 Project (the "Project').
We have received notice that the City intends to adopt a Resolution of Necessity (the
"Resolution ") authorizing the taking of a portion of the Property, as well as a temporary
construction easement. The hearing on the Resolution is presently scheduled for June 8, 2010 at
7:00 p.m. The purpose of this letter is to provide our written objections on behalf of the Owner
to the notice and adoption of the Resolution. We request that this letter be included as part of the
formal record on this agenda item.
The Owner objects to the adoption of the Resolution on each of the following grounds:
The City Has Failed to Provide Documents Necessary for the Owner to Fully Assess the
Proposed Resolution — The Hearing Should Therefore be Continued.
After receiving the notice of the hearing on the Resolution, my office submitted a public
records request to the City. The records request was faxed to the City on May 14, 2010, and also
sent by certified mail. A copy of the records request is attached hereto. Not until May 29, 2010,
did the City untimely mail its response to the request purporting to continue its time to respond
until June 10, 2010, two days after the Resolution hearing. The letter and envelope showing
when the response was mailed is also attached hereto.
895 DOVE STREET 1 1277 TREAT BLVD.
5TH FLOOR
SUITE 599
NEWPORT BEACH, CA 92660
WALNUT CREEK, CA 94597
T 949 854 7000
T 925 988 3200
F 949 854 7099
F 925 988 3290
Leilani I. Brown
June 4, 2010
Page 2
The City's belated response and failure to produce documents has severely prejudiced the
Owner's ability to adequately respond and object to the Resolution. The Owner therefore
requests that the Resolution hearing be continued until such time as the documents are produced
and the Owner has had an opportunity to review the same.
The City Failed to Notify the Numerous Tenants of the Property of the Resolution Hearing and
Their Rights with Respect to the Taking and the Potential Impacts to their Businesses.
It appears that the City did not provide notice of the Resolution hearing to the numerous
tenants at the Property. As their business interests may be impacted by the takings and /or the
construction and /or use of the Project in the manner proposed, the City's failure to provide notice
of the Resolution hearing to the tenants is grounds for dismissal of any subsequently -filed
eminent domain action.
An Offer Sufficient to Comply with Government Code & 7267.2 has Not Been Made to the
Owner.
Government Code section 7267.2 requires the City to make a legitimate offer of
compensation pursuant to an approved appraisal before initiating eminent domain proceedings.
The appraisal report, upon which the City has premised its purported precondemnation offer, is
inadequate. Among other things, the City has failed to adequately consider the severance
damages to the remainder. The takings and /or the construction and /or use of the Project in the
manner proposed by the City will cause a significant diminution in the Property's fair market
value.
In addition, several of the comparable sales listed in the City's appraisal are stale and do
not reflect the fair market value of the larger parcel, the property to be acquired, or the temporary
construction easement. Of the seven comparable sales, the two lowest sales in terms of price per
square foot closed in 2004 and 2005, while the highest sales price per square foot (more than
double the lowest) closed in 2008. The City's reliance on comparable sales more than six years
old and half the sales price as more recent comparable sales is unreasonable. It appears that the
City's appraiser artificially lowered the fair market value of the Property by utilizing outdated
comparable sales.
The Project is Not Planned or Located in a Manner that will be Most Compatible with the
Greatest Public Good and the Least Private Injury.
The Project is not compatible with the greatest public good because it will negatively
impact, among other things: (1) the income of the Owner and the Owner's tenants; and (2) access
to the Property, improvements, and landscaping. Specifically, the Project will result in the
construction of a retaining wall along the entire area to be condemned and the removal of two
monument signs fronting Jamboree Road. The construction of the wall and the removal of the
signs will cause significantly less visibility to the retail tenants at the Property.
Leilani I. Brown
June 4, 2010
Page 3
The City Failed to Make Reasonable Efforts to Acquire the Property Without the Need for
Litigation.
Government Code section 7267.1 requires the City to make reasonable efforts to acquire
real property expeditiously through negotiation, not condemnation. To date, the City has failed
to make reasonable efforts to negotiate with Owner to acquire its interests in the Property. The
City has been ill- prepared to discuss the offer and has not budged from its position concerning
the Project and/or the offer of compensation. This inflexibility with respect to the offer of
compensation is akin to unreasonable precondemnation conduct.
The City is Incapable of Conducting a Fair, Legal, and Impartial Hearing on the Resolution.
Due to its involvement in designing and ultimately constructing the Project, the City has
already committed itself to the Project, and the adoption of the Resolution here would be a
predetermined result. As such, any hearing by the City to allegedly "consider" the issues
pertaining to the adoption of the Resolution would be a sham and thus, voidable by the court.
The Public Interest and Necessity do Not Require the Proposed Project.
The proposed improvements for the Project are not necessary since the current street
configurations are sufficient to accommodate existing and future traffic needs in the area. As
such, the acquisition is not for a "public" purpose.
The City has Failed to Complete the Necessary Environmental Review for the Project.
It appears that the City approved a categorical exemption for the Project over fours years
ago. This was done without notice to the Owner. This exemption is stale, and a further initial
study must be conducted to assess whether the Project may have an impact on the environment.
Without conducting a further initial study with respect to the Project (which may have changed
since 2006), the Resolution is void for failing to comply with CEQA.
From just a preliminary review of the Project, there appears to be evidence to support a
fair argument that the Project may have impacts to traffic, circulation, noise, dust, aesthetics, air
quality, etc.
Based upon the foregoing, the Owner respectfully requests that the City refuse to adopt
the Resolution. At a minimum, the City should continue the hearing on this item until such time
as the Owner can review and assess the documents that should have been produced by the City.
Nothing in this letter should be construed as a waiver of any of the Owner's rights with
respect to assessing any additional documentation that should have been produced by the City for
purposed of objecting to the Resolution. Such rights are expressly reserved.
Leilani I. Brown
June 4, 2010
Page 4
If you have any questions or comments concerning the matters addressed in this letter,
please contact me directly.
Very truly yours,
Charles S. Krolikowski
CSK
w /encl.
cc: Back Bay Court Property Co.
Craig Farrington, Esq. (via e -mail)
2126805.1
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CHARLES S. KROLIKOWSKI FIN No.:
Charles.Krolikowski ®n0lf.com 2251.101(
May 14, 2010
BY FACSIMILE AND CERTIFIED MAIL
RETURN RECEIPT REQUESTED
l,eilani Brown, City Clerk
Office of the City Clerk
3300 Newport Blvd,
P.O. Box 1768
Newport Beach, CA 92658
Re:
Dear Ms. Brown:
Please be advised that this office represents Back Bay Court Property Co., owner of real
property located at 3601 Jamboree Road, Newport Beach (the "Property "). The City of Newport
Beach (the "City ") is seeking to acquire the Property for purposes of the Jamboree Road Bridge
Widening over State Route 73 Project (the "Project'). Please direct all further correspondence
and communications regarding the Property and/or the Project to my attention,
Pursuant to the California Public Records Act (Government Code sections 6250, et seq.),
we hereby request that copies of the following documents be provided to our office within the
statutory time frame. We are prepared to pay the applicable copying charges for the requested
documents upon demand. The documents requested are all "public records" as defined in
Government Code section 6252, subdivision (e), within the following described categories:
1. All environmental review documents related to the Project, including but not
limited to initial studies, environmental impact reports /statements, negative or mitigated negative
declarations, etc.
2. All agreements between the City and any other public or private entity related to
the Project.
3. All documents related to the purchase or sale of property by the City for the
Project within the last five (5) years.
885 DOVE STREET
1277'rNEAT ELM
5TH FLOOR
SUITE 000
NEWPORT BEACH, CA 92580
WALNUT CREEK. 0n easel
T 949 854 7000
T 92e Sae 2200
F 049 864 7009
r 925 268 3290
L.eilani Brown
May 14, 2010
Page 2
4. All documents reflecting any negotiations, contracts, or other dealings between
the City and any other property owner(s) within the Project area within the last five (5) years.
5. All documents showing budget and funding sources for the Project.
6. All appraisal documents prepared for the City, or its acquisition staff or right of
way consultants, for the Property, and all other properties within the Project area within the last
five (5) years.
7. All pictures, maps, plats, diagrams, surveys, videos, etc. of the Property.
& All documents related to all communications with any of the tenants of the
Property within the last five (5) years related to the Project,
9. All correspondence, memoranda, notes, notices, etc. authored by or copied to the
City and /or its employees and staff concerning the Property within the last five (5) years.
10. All correspondence, memoranda, notes, notices, etc, authored by or copied to the
City and /or its employees and staff concerning the Project within the last five (5) years,
11. All draft, preliminary and final design and construction plans for the Project.
12. All documents supporting the City's proposed Resolution of Necessity related to
the Project.
Please notify this office when the above - described documents have been copied so that
we can pick them up. If you have any questions or comments concerning the above, do not
hesitate to contact me.
Very truly yours,
Charles S. Krolikowski
CSK
cc: Back Bay Court Property Co.
2126112.1
NEWMEYER. V DII.,LION r.r.P
ATi DRA9YS AT LAW
FACSIMILE TRANSMISSION
DATE: May 14, 2010
To:
895 Dove Street 1277 Treat Blvd.
5t" Floor SuIe 800
Walnut Creek, CA 94597
Newport Beach, CA 92660 T 925 988 3200
T 949 854 7000 F 925 988 92W
F 949 854 7099
FILE NUMBER: 2251.101
NAME: FAX NO.: PHONE NO.:
Leilani Brown, City Clerk (949) 644 -3039 (949) 644 -3005
City of Newport Beach
FROM: Charles S. Krolikowski PHONE: (949) 854 -7000
3601 Jamboree Road, Newport Beach, CA
RE: Jamboree Road Bridge Widening over State Route 73 Project
NUMBER OF PAGES WITH COVER PAGE: 3 ORIGINALS WILL FOLLOW BY CERTIFIED
MAIL
CAUTION — CONFIDENTIAL THE INFORMATION CONTAINED IN THIS FAX MESSAGE IS INTENDED. ONLY FOR THE PERSONAL AND
CONFIDENTIAL USE OF THE DESIGNATED RECIPIENTS) NAMED ABOVE. THIS MESSAGE MAY BE AN ATTORNEY-CLIENT COMMUNICATION AND, AS SUCH, IS
PRIVILEGED AND CONFIDENTIAL. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT OR AN AGENT RESPONSIBLE FOR DELIVERING IT TO THE
INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT YOU HAVE RECEIVED THIS DOCUMENT IN ERROR, AND THAT ANY REVIEW, DISSEMINATION, DISTRIBUTION
OR COPYING OF THIS MESSAGE IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY
TELEPHONE AND RETURN THE ORIGINAL MESSAGE TO US BY MAIL. THANKYOU.,
IF YOU DO NOT RECEIVE ALL OF THE PAGES,
PLEASE CALL EVELYN GOMEZ AT (949) 271 -7255 AS SOON AS POSSIBLE
2127445.1
Transmit Confirmation Report
P.1 May 14 2010 12:42pm
Line Number:1
NE9WMEYER OILLION
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NEWMEYER & DFLLiO\ LL.
FACSIMILE TRANSMISSION 896 Dove Simet "'�'ryp1 BAtl
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Newport Beach, CA 92880 TMeea..w
T 949 864 7000 v esseae
F 949 884 7099
DATE: May l4, 2010 FILE NUMBER: 2251.101
To: _
LL NAME: FAx No.: PHONE No
Leib ani Brown, City Clezk (949) 644 -3039 (949) 644 -3005
City of Newport Beach
FROM: Charles S, Krolikowski PHONE; (949) 854 -7000 -
3601 Jamboree Road, Newport Beach, CA
RE: Jamboree Road Bridge Widening over State Route 73 Project
NUMBER OF PAGES WITH COVER PAGE: 3 I ORIGINAL$ WILL FOLLOW BY CERTIFIED
MAIL
Please see attached correspondence of today's date. -
— GONFIDENTIAL THE wmwP T,n eONTNNW M iX,, PNI W$,Aae IS W—Deo ONLY FOR TNe PER60Nk µD
IF YOU DO NOT RECEIVE ALL OF THE PAGES,
PLEASE CALL EVELYN GOMEZ AT (Me) 271.7256 AS SOON AS POSSIBLE.
212FA45.1
Name /Fax No.
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Start
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7002 #2251 #101 #6443039#
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FACSIMILE TRANSMISSION 896 Dove Simet "'�'ryp1 BAtl
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T 949 864 7000 v esseae
F 949 884 7099
DATE: May l4, 2010 FILE NUMBER: 2251.101
To: _
LL NAME: FAx No.: PHONE No
Leib ani Brown, City Clezk (949) 644 -3039 (949) 644 -3005
City of Newport Beach
FROM: Charles S, Krolikowski PHONE; (949) 854 -7000 -
3601 Jamboree Road, Newport Beach, CA
RE: Jamboree Road Bridge Widening over State Route 73 Project
NUMBER OF PAGES WITH COVER PAGE: 3 I ORIGINAL$ WILL FOLLOW BY CERTIFIED
MAIL
Please see attached correspondence of today's date. -
— GONFIDENTIAL THE wmwP T,n eONTNNW M iX,, PNI W$,Aae IS W—Deo ONLY FOR TNe PER60Nk µD
IF YOU DO NOT RECEIVE ALL OF THE PAGES,
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CITY OF NEWPORT BEACH
� n
r OFFICE OF THE CITY ATTORNEY
cq�iFORN`P David R. Hunt, City Attorney
May 27, 2010
Charles S. Krolikowski
Newmeyer & Dillion LLP
895 Dove St., 5th Floor
Newport Beach, CA 92660
RE: CALIFORNIA PUBLIC RECORDS ACT REQUEST
NOTICE OF EXTENSION (CAL. GOV. CODE §6253(C))
Dear Mr. Krolikowski:
The City Clerk for the City of Newport Beach received your California Public Records Act
Request dated May 14, 2010 on May 17, 2010. This office has been authorized by the
City Council to respond to Public Record Act Requests on behalf of the City.
Pursuant to California Government Code section 6253(c), the City is typically required to
respond to Public Records Act Requests within ten (10) days. However, if "unusual
circumstances" exist, the ten (10) day time limit in Section 6253(c) may be extended up to
fourteen (14) days. In this case, unusual circumstances exist that require the City to take
additional time to determine whether the request, in whole or in part, seeks copies of
disclosable public records in the possession of the City. Specifically, the City needs
additional time to search for, collect, and appropriately examine a voluminous amount of
separate and distinct records that are demanded in your request (Cal. Gov. Code §
6253(c)(2)).
Based thereon, the City will respond on or before June 10, 2010 with the notice of
determination ft to whether the request, in whole or in part, seeks the production of non -
exempt, non- priviieged records in the possession of the City, pursuant to the California
Public Records Act (Cal. Gov. Code § §6250 et seq.). Please do not hesitate to contact
me if you have any questions.
Sincerely,
OFFICE OF THE CITY ATTORNEY
risK f
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Paralegal
Telephone: (949) 644 -3131 • Fax: (949) 644 -3139
City Hall - 3300 Newport Boulevard - Post Office Box 1768
Newport Beach California 92658 -8915 - www.city.newport- beach.ca.us