AGENDA STAFF REPORT

Agenda Item AGENDA STAFF REPORT ASR Control 20-000769
MEETING DATE:	10/06/20
legal entity taking action:	Orange County Flood Control District
board of supervisors district(s):	All Districts
SUBMITTING Agency/Department:	County Counsel (Approved)
Department contact person(s):	Leon J. Page (714) 834-3300
	Benjamin L. Bernard (714) 834-2650

Subject: Condemnation Action, San Bernardino County, Prado Dam Project

ceo CONCUR

County Counsel Review

Clerk of the Board

Concur

Approved Resolution to Form

Public Hearing

2/3 Vote

Budgeted: Yes

Current Year Cost: $9,610,000

Annual Cost: N/A

Staffing Impact:

# of Positions:

Sole Source: N/A

Current Fiscal Year Revenue: N/A

Funding Source: Fund 404: 100%	County Audit in last 3 years: No

Prior Board Action: 01/28/2003 #40, 12/07/1999 #49

RECOMMENDED ACTION(S):

Acting as the governing board of the Orange County Flood Control District:

1.	Conduct public hearing.
2.	At the conclusion of the hearing, make the following findings:
	a)	Final Environmental Impact Report No. 583 was previously certified on November 28, 1989, and reflects the independent judgment of the Orange County Flood Control District as Lead Agency. Final Supplemental Environmental Impact Statement No. 583 was previously certified on December 19, 2001, and reflects the independent judgment of the Orange County Planning Commission as Lead Agency. Final Environmental Impact Report No. 583 and Final Environmental Impact Statement No. 583 adequately addressed and fully analyzed project environmental impacts for the Santa Ana River Mainstem Project, as well as the Prado Dam Project, which is a necessary and contemplated element of the Santa Ana River Mainstem Project. Both the Environmental Impact Report and the Environmental Impact Statement are complete and adequately satisfy the requirements of CEQA for the Santa Ana River Mainstem Project, which includes the Prado Dam Project.
	b)	The circumstances of the Project are substantially the same as when Final Environmental Impact Report No. 583 and Final Environmental Impact Statement No. 583 were adopted, and Final Environmental Impact Report No. 583 and Final Environmental Impact Statement No. 583 adequately addressed the effects of the proposed project. No substantial changes have been made in the project, no substantial changes have occurred in the circumstances under which the project is being undertaken and no new information of substantial importance to the project that was not known or could not have been known when the prior Environmental Impact Report No. 583 and Environmental Impact Statement No. 583 were certified has become known in relation to this proposed condemnation action. Thus, no further CEQA review is required.
	c)	Final Environmental Impact Report No. 583 and Final Environmental Impact Statement No. 583 are adequate to satisfy the requirements of CEQA for the proposed condemnation action.
	d)	All mitigation measures are fully enforceable pursuant to CEQA Public Resources Code Section 21081.6(b) and have either been adopted as conditions, incorporated as part of the project design or included in the procedures of project implementation.
3.	At the conclusion of the hearing, adopt the Resolution of Necessity attached as Attachment A to this Agenda Staff Report, which includes the above-described CEQA findings and also the findings required by the California Eminent Domain Law for adoption of a Resolution of Necessity, and which directs and authorizes County Counsel and/or outside eminent domain counsel, the firm of Murphy and Evertz, pursuant to its existing contract with the Orange County Flood Control District, to initiate condemnation proceedings to condemn the following interests in real property: Permanent easement interest in real property referred to by the District as Project Parcel Nos. 46-018, which covers San Bernardino County Assessor’s Parcel Nos. 1056-251-01, 1056-251-02, 1056-261-02 and to make one or more deposits of estimated compensation with the state Treasurer’s condemnation deposits fund in a total amount up to $9,610,000.
4.	At the conclusion of the hearing, direct and authorize the Auditor-Controller, upon request by County Counsel, to encumber funds and issue one or more checks payable to the state Treasurer’s Condemnation Deposits Fund, in amounts to be specified by County Counsel, in a total amount up to $9,610,000, to be paid from Fund 404-080-404-LS14-4100, Job No. ESP2105, for one or more deposits of estimated compensation in the condemnation proceedings; 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 Orange County Flood Control District.

SUMMARY:

Conducting a public hearing and considering adoption of a Resolution of Necessity that allows the Orange County Flood Control District to acquire property for the Santa Ana River Mainstem/Prado Dam Project will provide protection to the public from flood and storm waters from the potential effects of a 190-year flood/storm event.

BACKGROUND INFORMATION:

On December 7, 1999, the Board of Supervisors (Board) for the Orange County Flood Control District (District) authorized the initiation of the Prado Dam Project Real Property Acquisition Program. On January 28, 2003, your Board authorized the execution of a Project Cooperation Agreement and Second Modification to the Local Cooperation Agreement for the Santa Ana River Mainstem Project, which requires the local sponsors of the Santa Ana River Mainstem Project, including the District, to acquire real property interests and perform relocation/protection of utilities, streets and highways as necessary for construction and related revised flood control operations.

The recommended action, adoption of the proposed Resolution of Necessity (Resolution), would find and declare it to be necessary to institute eminent domain proceedings to acquire the property interests described below, which are located in the County of San Bernardino, for the District’s Santa Ana River Mainstem/Prado Dam Project (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 190-year flood/storm event. In particular, the recommended action would find and declare that it is necessary for the District to acquire a permanent easement interest in Project Parcel Nos. E01PD-46-018 (Subject Property Interests), in order to meet the deadline of the United States Army Corps of Engineers (Corps) to award the construction of the Project’s spillway in 2021. If the Corps’ schedule is not met, vital Project funding may be lost or delayed, thus exposing the citizens of Orange County to a prolonged risk of property damage and personal injury from a major storm event. The Subject Property Interests are necessary for the Project, in order to provide sufficient protection from storm events and flooding to those downstream from the Prado Dam.

A more detailed description of the intended public use of, and necessity for, these acquisitions is contained in the accompanying Staff Report, attached hereto as Attachment B, which is incorporated herein by this reference and that provides substantial information supporting the requested findings contained in the proposed Resolution. The information presented in this Agenda Staff Report and in that Staff Report are legally sufficient to show that the public interest and necessity require the Project for the purposes specified by the Orange County Flood Control Act (California uncodified Water Code, Act 5682, section 2, also referred to as Water Code App. sections 36-1 et seq.) (Act), including, but not limited to, the control of flood and storm waters. The District is authorized to acquire the Subject Property Interests and to exercise the power of eminent domain for the public uses described herein and in the accompanying Staff Report under the California Constitution and the California Eminent Domain Law (Code of Civil Procedure Sections 1230.010 et seq., and 1240.010 et seq., including without limitation Section 1240.110), Government Code Section 25350.5 and the Act.

Accordingly, County Counsel and OC Public Works/Flood Division request your Board, acting in its capacity as the governing Board of the District, to adopt the proposed Resolution to authorize and direct County Counsel and/or outside eminent domain counsel, the law firm of Murphy and Evertz, pursuant to its existing contract with the District, to file and pursue proceedings to condemn and acquire the Subject Property Interests, which are owned as a matter of record title by JRJ Ranch, a California Limited Partnership, as to a 50 percent interest, Richard S. Price and Gale M. Price, Trustees of the Price Family Trust dated November 20, 1995, as to a 5 percent interest, and Hoby Brenner and Franklin J. Brenner, as their interest appear of record as to the remainder, and which are described as follows:

Permanent easement in real property that is legally described and depicted by Exhibits A and B attached to the proposed Resolution, which easement area of approximately 16.765 acres is referred to by the District as Project Parcel No. 46-018, and which covers San Bernardino County Assessor’s Parcel Nos. 1056-251-01, 1056-251-02 and 1056-261-02.

FINANCIAL IMPACT:

Appropriations are included in the Flood Fund 404 FY 2020-21 Budget for issuance of a one-time cost of $9,610,000 as 404-080-404-LS14-4100-ESP2105 to be made upon Board approval of the proposed recommended actions. Additional presently unknown costs may also include payments for title fees and other costs 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. Any unknown costs will be absorbed within the existing appropriation of Flood Fund 404.

STAFFING IMPACT:

N/A

REVIEWING AGENCIES:

OC Public Works

ATTACHMENT(S):

Attachment A - Proposed Resolution of Necessity
Attachment B - August 18, 2020, Real Estate Memorandum
Attachment C - September 1, 2020, Clerk of the Board Notice of Hearing
Attachment D - August 25, 2020, OC Public Works Memorandum
Attachment E - OC Flood Control Act Provisions
Attachment F - Code of Civil Procedure Provisions
Attachment G - Government Code Provisions