AGENDA STAFF REPORT

Agenda Item AGENDA STAFF REPORT ASR Control 09-002147
MEETING DATE:	01/12/10
legal entity taking action:	Orange County Flood Control District
board of supervisors district(s):	2
SUBMITTING Agency/Department:	County Counsel (Approved)
Department contact person(s):	Laurie A. Shade, Senior Dep. Co. Counsel, 834-6297
	Ron Gaut, OC Public Works/Flood, 834-2790

Subject: Edinger Channel Project Property Condemnation

ceo Concur	County Counsel Review		Clerk of the Board
Concur	Approved Resolution to Form		Public Hearing
			2/3 Vote

Budgeted: Yes		Current Year Cost: $96,500		Annual Cost: N/A

Staffing Impact: No		# of Positions:		Sole Source: N/A
Current Fiscal Year Revenue: N/A
Funding Source: Flood ACO Fund 400-080-400-L001-0000-4100, Job No. EF03426

Prior Board Action: Minute Order dated July 14, 2009, Item #20

RECOMMENDED ACTION(S):

Conduct public hearing.

At the conclusion of the public hearing, adopt Resolution of Necessity for condemnation and acquisition of real property (Huntington Beach) necessary for the control of flood & storm waters, Edinger Channel Project; making California Environmental Quality Act and other findings; authorizing County Counsel to institute eminent domain proceedings; and authorize Auditor-Controller to make necessary payments.

SUMMARY:

At the conclusion of the public hearing, adopt the Resolution of Necessity to condemn and acquire the real property interests described below, including required findings.

BACKGROUND INFORMATION:

The recommended action – adoption of the proposed Resolution of Necessity – would find and declare it to be necessary to institute eminent domain proceedings to acquire the real property interests described below (the “Subject Property Interests”) for the Orange County Flood Control District’s (“District”) Edinger Channel Project (the “Project”), and find and declare that the public interest and necessity require the Project for the purpose of controlling flood and storm waters in order to protect the safety, health and welfare of residents and properties within the County of Orange from the potentially devastating effects of a 100-year flood/storm event. In particular, the recommended action would find and declare that it is necessary for the District to acquire a temporary construction easement in, over, under and across a parcel of real property located in the City of Huntington Beach in order to provide additional hydraulic capacity by tunneling a reinforced concrete pipe under the San Diego Freeway (I-405), replacing the existing trapezoidal channel with a larger capacity rectangular channel and constructing a reinforced concrete box under Edinger Avenue.

Accordingly, County Counsel and OC Public Works/Flood Division request your Board of Supervisors, acting in its capacity as the governing Board of the District, to adopt the proposed Resolution of Necessity to authorize and direct County Counsel to file and pursue proceedings to condemn and acquire the Subject Property Interests, which are owned as a matter of record title by F-B Huntington, LLC and Huntington Coastal, LLC, and which are described as follows:

Project Parcel No. C05S05-103, a temporary construction easement in, over, under and across Orange County Assessor’s Parcel No. 107-220-66, and which is legally described by Addendum A-1 to the proposed Resolution.

SUBJECT PROPERTY INTERESTS SIZE AND LOCATION

The Subject Property Interests consist of approximately 7,200 square feet located in the City of Huntington Beach. The easement interest is over a larger parcel of real property located at 8400 Edinger Avenue and containing an apartment complex thereon. The portion of the parcel to be condemned is currently used for tenant parking.

NOTIFICATION TO AFFECTED PROPERTY OWNERS

All owners of the Subject Property Interests must be, and have been, sent notice of the County’s intention to consider adopting the Resolution determining the necessity for acquiring the Subject Property Interests through Eminent Domain proceedings and of their right to appear and to be heard at a public hearing before your Board on the following matters: (a) whether the public interest and necessity require the Project; (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 Subject Property Interests sought to be acquired are necessary for the Project; and (d) whether the offer required by section 7267.2 of the Government Code has been made to the owners of record.

RESOLUTION OF NECESSITY FOR CONDEMNATION

If at the conclusion of the public hearing, the Board finds the answers to (a), (b), (c), and (d) above to be in the affirmative, and if the Board desires to authorize the filing of a condemnation action as to the Subject Property Interests, in order for the District to proceed with a condemnation action, the Board must adopt an appropriate Resolution of Necessity covering the Subject Property Interests where those findings have been made, by at least a two-thirds’ vote of the Board membership (4 votes) pursuant to Code of Civil Procedure Section 1245.240. The County Counsel’s office has prepared and attached hereto a proposed Resolution of Necessity.

Encumbrance and Deposits of Estimated Compensation and Other Amounts

The proposed Resolution also authorizes and directs the Auditor-Controller to encumber required funds (from Flood ACO Fund 400-080-400-L001-0000-4100, Job No. EF03426), and to issue a check, as necessary, and if requested by County Counsel, to be made payable to the State Treasury condemnation deposits fund, in the amount of $96,500, which is the total estimated fair market value of the Subject Property Interests as of the date of value of the appraisal which was the basis of the purchase offer made to the owners of the Subject Property Interests; and to encumber such additional funds, and issue such additional checks as may be requested by County Counsel, as and if necessary to satisfy any court orders for higher deposits or payment of greater compensation, or as necessary to pay for title insurance and other fees and costs in connection with the acquisition of the Subject Property Interests by the District. The proposed Resolution also authorizes Counsel to make a deposit of estimated compensation with the State Treasury’s condemnation deposits fund in the amount of $96,500.

Order for Prejudgment Possession

County Counsel also requests your Board to provide authorization to Counsel, and has included such authorization in the proposed Resolution, to seek and obtain an order for prejudgment possession of the Subject Property Interests at such time as Counsel deems it to be necessary and appropriate.

ACQUISITION PROCEDURES

In conformance with Sections 7267.1 and 7267.2 of the California Government Code and Board of Supervisors Resolution 67-612, an appraisal has been prepared covering the Subject Property Interests. An offer, based on said appraisal, has been made to the owners of the Subject Property Interests, and a written statement, showing the appraised value of the Subject Property Interests and summarizing the basis of the value, has been delivered to those owners.

Efforts were made by District staff to negotiate a voluntary sale over the last few months. However, those efforts did not lead to any progress. District staff will continue to make efforts to negotiate a voluntary purchase and sale even if the Board authorizes the filing of an eminent domain proceeding.

In order to proceed with orderly acquisition for the Project and to meet the Project construction schedule, it is necessary to seek Board authority to institute eminent domain proceedings at this time. As the construction schedule now stands, the District will require actual possession in July 2010. With recent changes in the eminent domain law, the period for notice of a motion for possession has been lengthened and any action must be filed in the near future in order to obtain possession and acquisition of the property interests in a timely manner. Nevertheless, despite the need to file this action, it is the District staff’s intention to continue negotiating with the owners of the Subject Property Interests toward mutually acceptable terms of a voluntary purchase and sale.

RELOCATION ASSISTANCE

No relocation assistance is required because there will be no displacement of any occupants in connection with the Project.

LEGAL REQUIREMENTS

Compliance with CEQA:

Environmental review for the Edinger Channel Project was completed in Negative Declaration No. IP 09-070, adopted on July 14, 2009, which reflects the independent judgment of the lead agency, Orange County Flood Control District, and satisfies the requirements of CEQA.

General Plan Conformity: (Government Code Section 65402):

Pursuant to Government Code Section 65402, the Project and the recommended action are in conformity with the General Plan of the cities of Huntington Beach and Westminster.

Compliance with Hazardous Materials Assessment (HMA) Policy:

A Hazardous Materials Assessment was completed for the Subject Property Interests on July 23, 2009, which found no significant issues of concern with regard to hazardous materials.

FINANCIAL IMPACT:

One-time cost to Flood ACO Fund 400-080-400-L001-0000-4100, Job No. EF03426 of $96,500. Additional presently unknown costs may also include payments for title fees upon recordation, as well as the potential for other required payments that a court may order be deposited and/or paid in the condemnation action.

STAFFING IMPACT:

N/A

REVIEWING AGENCIES:

OC Public Works Department

ATTACHMENT(S):

A – OC Public Works letter to County Counsel dated 11/5/09 and Agenda Staff Report Information Sheet (without other attachments)
B – Proposed Resolution of Necessity
C – Notice of public hearing/notice of intention to consider Resolution of Necessity
D - Staff Report from OCPW dated 12/23/09