MEETING DATE:
April 9, 2024
SUBJECT:
Title
RESOLUTION NO. 2024-9278 - DECLARING THE PUBLIC INTEREST AND NECESSITY TO ACQUIRE PROPERTY BY EMINENT DOMAIN FOR THE IMPLEMENTATION OF THE UNIVERSITY DISTRICT SPECIFIC PLAN, NORTH CITY DRIVE, AND STREET “A” RIGHT-OF-WAY AND RELATED PUBLIC IMPROVEMENTS PROJECT FOR CERTAIN REAL PROPERTY ADDRESSED AS 0 SHUBIN LANE (ASSESSOR’S PARCEL NUMBER 221-100-09-00)
Body
Recommendation
Recommendation
CONDUCT the public hearing and ADOPT Resolution of Necessity authorizing and directing the commencement of eminent domain proceedings and associated actions to acquire and obtain possession of private real property in connection with road and other public improvements within the University District Specific Plan Area.
Body
Board or Commission Action
Not Applicable
Relevant Council Strategic Theme
Good Governance
Planning for the Future
Relevant Department Goal
Not Applicable
Executive Summary
City of San Marcos intends to implement the University District Specific Plan, North City Drive and Street “A” Right-Of-Way and Related Public Improvements Project, including incidental, appurtenant, and related works or facilities, consistent with the University District Specific Plan (UDSP). The Project proposes to construct public streets and infrastructure including North City Drive from Discovery Street to Twin Oaks Valley Road and Street A from Discovery Street to North City Drive consistent with the approved UDSP (Vicinity Map: Attachment 2). A roundabout is proposed at the intersection of North City Drive and Street A.
The improvements required for the Project necessitate the acquisition of real property known as APN 221-100-09-00 located at 0 Shubin Lane (the Property). The Property is described and depicted in Exhibits A and B to the adopting resolution in Attachment 1. City records reflect ownership interest as “A C One Land Trust 03-14-21” and “A C Two Land Trust 03-14-21”, each with a fractional interest of 50%. The City of San Marcos has an urgent and overriding need for possession of the Property for the construction of Project public improvements. Efforts to negotiate acquisition of the Property have been unsuccessful, which has resulted in this duly noticed proceeding.
Discussion
Property
The Property is a rectangular parcel of unimproved land approximately one acre in size. The sole access to the Property is via the Shubin Lane access easement from Twin Oaks Valley Road. The Property is designated as SPA (Specific Plan Area) in the General Plan and Zoning Code. The site is subject to the Heart of the City Specific Plan and the University District Specific Plan (“UDSP”). Additional property details are provided in Attachment 3.
Findings
If the City Council determines to proceed with acquisition of the Property, it must make the findings referenced below and included in the attached Resolution.
A. Public Interest and Necessity. The public interest and necessity require the Project to provide the public streets and facilities as depicted in the UDSP to achieve City transportation network and circulation needs. In the current UDSP as amended, improvements proposed on the Property include the North City Drive/Street A roundabout and a portion of Street A. In addition, slopes would be constructed within the public right-of-way to transition from the proposed public street grades to adjacent private property grades, which would further impact the Property. A water quality basin for treatment of public stormwater and a portion of the pedestrian paseo from Twin Oaks Valley Road are depicted on the Property (see Attachment 3). The public good and interest necessitates that the street, drainage, utility, and pedestrian infrastructure be constructed as proposed.
B. Project Compatible with Greatest Public Good and Least Private Injury. The Project is planned or located in a manner that will be the most compatible with the greatest public good and the least private injury. The design of the Project has taken into consideration whether other alternatives would provide a better result for the public and would reduce any private injury. Staff has determined that the Project has been designed in a way that provides the greatest public good and least private injury. As discussed in Attachment 3, very few adjustments can be made to the location of North City Drive in the vicinity of the Property, as the street must necessarily align with the existing segment of North City Drive east of Twin Oaks Valley Road and the portion of North City Drive constructed to the west at Discovery Street. Similarly, Street A must connect to Discovery Street to align with the entry into the Campus Marketplace, avoid impacting Knoll Park to the west, and connect at its northerly end with a roundabout at North City Drive.
C. Interest in Property sought to be acquired is necessary for the Project. Each iteration of the University District Specific Plan, from the original 2009 document to the 2014 and 2022 amendments, has depicted public improvements on the Property. Construction of the public improvements with incidental, appurtenant, and related works in the UDSP will utilize the vast majority of the Property for right-of-way and ultimately render the remaining portions of the Property inaccessible. Access cannot be maintained from the current Shubin Lane private driveway because its connection to the Property will be severed on the west end and its connection to Twin Oaks Valley Road will be severed on the east. The engineering memorandum in Attachment 3 discusses the lack of future access to the remaining portions of the Property in detail and concludes that acquisition of the entire Property is necessary for the proposed public improvements. Therefore, staff’s recommendation is to acquire fee simple interest in the entire Property, including the Shubin Lane access easement.
D. Acquisition in Conformity with the General Plan. The acquisition of the Property to construct the proposed improvements is in conformity with both the specific plan and the General Plan. The UDSP has consistently depicted public road and related improvements on the Property, and acquisition of the Property remains necessary for the proposed public improvements to serve existing and future circulation needs.
E. Compliance Government Code § 7267.2. Government Code § 7267.2 generally requires that a public agency first make attempts to establish the “just compensation” or dollar value of the private property right being acquired for a public project, and that this amount be offered to the property owner before a Resolution of Necessity is adopted and an action in eminent domain is filed. The property owner is entitled to receive information on how the just compensation valuation was reached and their other rights under the law.
The City of San Marcos has complied with the requirements of Government Code § 7267.2. The City obtained an independent appraisal of the Property prepared by Kenneth A. Keagy, MAI, which concluded that the appraised value of a fee simple absolute interest in the Property is $1,967,000 as of May 15, 2023.
On September 21, 2023, a written offer with attached summary statement of appraisal data was sent by certified mail and first-class mail to the Property owner, Lin Sulu Pastrana, at the address shown on recorded property documents obtained through a title report. (See Offer Letter in Attachment 4) The offer letter contained the required written appraisal summary statement, factual disclosures, and all other information required by Government Code Section 7267.2.
Subsequent letters, phone calls, and email communications between City staff and the Property owner took place between October 2023 and January 2024, requesting a response to the offer and a meeting to discuss the acquisition and commence negotiations. However, despite multiple efforts, City was unable to obtain the Property owner’s consent to meet and negotiate or otherwise discuss acquisition terms for the site.
F. Urgent and Overriding Need for Possession of the Property. The Eminent Domain Law provides a procedure for making a motion for a court order for pre-judgment possession of a property subject to acquisition by condemnation. The motion requires the public agency to demonstrate an urgent need for pre-judgment possession which is overriding to the property owner’s needs. The property owner has a right to object to the court motion and an opportunity to explain what specific needs the owner believes they may have to retain possession. The court then weighs any competing needs for possession and determines whether to grant the motion.
Here, the subject Property is vacant and unimproved. The entire surrounding area, known as North City West, is being rough graded under a mass grading permit (GP19-00008), consistent with the approved UDSP. Progress of surrounding development activity is now ready for construction of the public road improvements necessary for the proposed Project. Delaying construction of the Project improvements until completion of acquisition of the Property by negotiation or through an eminent domain court proceeding is inefficient and risks potential additional costs and other delays to the delivery of road improvements to accommodate transportation circulation needs of ongoing development. Therefore, it is recommended that the City Council make a finding of urgent and overriding need for pre-judgment possession of the Property.
Noticing Requirements
The City is required to provide formal notice at least 15 days in advance of the public hearing of the City Council's intent to consider adoption of a resolution of necessity. The notice must be sent to each person whose property may be acquired by eminent domain, and whose name and address appear on the last equalized county assessment roll. It must also inform the property owner that they have 15 days in which to file a written request to appear and be heard at the hearing.
On March 22, 2024, by certified mail and first-class mail, City sent the Property owner a letter providing notice of the hearing on consideration of adoption of the Resolution of Necessity, and the right to be heard at the hearing (Attachment 5).
Resolution of Necessity
The attached resolution authorizes the City Attorney and staff, through outside counsel, to proceed with condemnation proceedings necessary to acquire the subject Property parcel in its entirety in fee simple interest absolute, including to deposit the probable amount of compensation, based on the appraisal, and to apply to said court for an order permitting the City of San Marcos to take pre-judgment possession and use of said Property for said public uses and purposes.
At the conclusion of the public hearing, the City Council may consider the adoption of the Resolution of Necessity. The Resolution must be adopted by a two-thirds vote. Adoption of a Resolution of Necessity is a necessary step toward the commencement of eminent domain proceedings in court but does not preclude further discussions between the property owner and the City for the negotiated purchase of property.
Environmental Review
In compliance with the California Environmental Quality Act, the City Council previously adopted and certified programmatic Final Environmental Impact Report (FEIR) for the University District Specific Plan and the 2022 Addendum to said FEIR (State Clearinghouse No. 2008101083) prepared for the Project pursuant to the California Environmental Quality Act (CEQA).
Fiscal Impact
The amount of compensation to be paid is not part of this proceeding; rather, the inquiry is limited to the findings set forth above. The appraised value of the Property is $1,967,000 as of May 15, 2023.
The Project public road and related improvements are being funded and constructed by the developer of the adjacent residential housing and mixed-use development as a condition to development approvals. The developer has posted the necessary acquisition funds and related fees and expenses with City sufficient for payment of just compensation for the Property.
If the City and Property owner cannot reach agreement on a purchase price, the Eminent Domain Law would permit a jury to ascertain "just compensation" for the necessary Property. To complete the acquisition, the City would be req uired to pay that price. In addition, if the City Council adopts this resolution and proceeds to acquire the necessary Property through exercise of the power of eminent domain, the City will incur attorney fees and possibly additional appraisal expenses, among other litigation costs.
Attachment(s)
Attachment 1: Resolution of Necessity
Attachment 2: Vicinity Map
Attachment 3: Engineering Evaluation: Property Analysis
Attachment 4: September 21, 2023 Offer Letter for Property Purchase
Attachment 5: Notice of Intent to Adopt Resolution of Necessity
Attachment 6: Letter - Public Comment
Prepared by: Stephanie Kellar, Deputy City Engineer
Reviewed by: Isaac Etchamendy, City Engineer/Development Services Director
Reviewed by: Helen Holmes Peak, City Attorney
Approved by: Michelle Bender, City Manager