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Agenda Item
ASR
Control 20-000934 |
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MEETING DATE: |
11/17/20 |
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legal entity taking action: |
Orange County Flood Control District |
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board of supervisors
district(s): |
All Districts |
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SUBMITTING
Agency/Department: |
County Executive Office (Approved) |
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Department contact
person(s): |
Thomas A. Miller 714 834-6014 |
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James Treadaway 714 667-9700 |
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Subject: Condemnation Action,
Riverside & San Bernardino Counties, Prado Dam Project
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ceo CONCUR |
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Clerk of the Board |
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Concur |
Approved Resolution to Form |
Public Hearing |
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2/3 Vote |
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Budgeted: Yes |
Current Year Cost:
$5,718,000 |
Annual Cost:
N/A |
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Staffing Impact: |
No |
# of Positions:
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Sole Source:
N/A |
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Current Fiscal Year Revenue: N/A
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Prior Board Action: 01/28/2003
#40, 12/07/1999 #49 |
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RECOMMENDED ACTION(S):
Acting as the governing board of the Orange County Flood Control District:
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1. |
Conduct public hearing. |
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2. |
At the conclusion of the hearing, make the following findings: |
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a. |
Final Environmental Impact Report No. 583 was previously certified by the Board of Supervisors on November 28, 1989, and reflects the independent judgment of the Orange County Flood Control District as Lead Agency. Final Supplemental Environmental Impact Statement/Environmental Impact Report No. 583 was previously certified by the Orange County Planning Commission 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 Supplemental Environmental Impact Statement/Environmental Impact Report 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 Final Environmental Impact Report No. 583 and the Final Supplemental Environmental Impact Report/ Environmental Impact Statement No. 583 are complete and adequately satisfy the requirements of CEQA for the Santa Ana River Mainstem Project, which includes the Prado Dam Project. |
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b. |
The circumstances of the Project are substantially the same as when Final Environmental Impact Report No. 583 and Final Supplemental Environmental Impact Statement/Environmental Impact Report No. 583 were certified, and Final Environmental Impact Report No. 583 and Final Supplemental Environmental Impact Statement/Environmental Impact Report 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 Final Environmental Impact Report No. 583 and Final Supplemental Environmental Impact Statement/Environmental Impact Report No. 583 were certified has become known in relation to these proposed condemnation actions. Thus, no further CEQA review is required. |
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c. |
Final Environmental Impact Report No. 583 and Final Supplemental Environmental Impact Statement /Environmental Impact Report No. 583 are adequate to satisfy the requirements of CEQA for the proposed condemnation actions. |
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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. |
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3. |
At the conclusion of the hearing, adopt the Resolutions of Necessity attached as Attachments A and B to this Agenda Staff Report, which include 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 direct and authorize County Counsel and/or outside eminent domain counsel, the firms of Burke, Williams & Sorensen and Murphy and Evertz, pursuant to their existing contracts with the Orange County Flood Control District, to initiate condemnation proceedings to condemn the following interests in real property: |
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a |
Fee simple title to real property referred to by the Orange County Flood Control District as Project Parcel No. E01PD-46-996, which covers San Bernardino County Assessor’s Parcel No[s]. 1056-271-01 & 1056-271-02, and to make one or more deposits of estimated compensation with the state Treasurer’s Condemnation Deposits Fund in a total amount up to $5,090,000. |
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b. |
Permanent flowage easement interest in real property referred to by the Orange County Flood Control District as Project Parcel No. E01PD-46-023, which covers portions of San Bernardino County Assessor’s Parcel Nos. 1057-031-01 and 1057-031-03, and to make one or more deposits of estimated compensation with the state Treasurer’s Condemnation Deposits Fund in a total amount up to $628,000. |
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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: $5,090,000, Job No ESP2107; to be paid from Fund 404-080-404-LS16-4100 $628,000, Job No ESP2111; to be paid from Fund 404-080-404- LS20-4100 To be made as 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 (as defined below) by the Orange County Flood Control District. |
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SUMMARY:
Conducting a public hearing and considering adoption of Resolutions of Necessity that allow 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, the 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 Resolutions of Necessity (Resolutions), would find and declare it to be necessary to institute eminent domain proceedings to acquire the real property interests described below, which are located in the Counties of Riverside and San Bernardino, for the District’s Santa Ana River Mainstem/Prado Dam Project (Project), which will raise the Prado Dam flood basin and expand the potential inundation area up to 566 feet above sea level, 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 fee simple title in Project Parcel No. E01PD-46-996, a permanent flowage easement in Project Parcel No.E01PD-46-023 and two leasehold interests in Project Parcel Nos. E01PD-46-996, E01PD-46-023 (Subject Property Interests), in order to meet the deadline of the United States Army Corps of Engineers (Corps) to award the contract for 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 and because the area of the Subject Property Interests will be exposed to greater risk or frequency of inundation as a result of the Prado Dam’s increased reservoir capacity once the spillway is increased in height.
A more detailed description of the intended public use of, and necessity for, these acquisitions is contained in the accompanying OC Public Works Memoranda, attached hereto as Attachment C, which is incorporated herein by this reference and that provides substantial information supporting the requested findings contained in the proposed Resolutions. The information presented in this Agenda Staff Report and in that Memoranda 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 OC Public Works Memoranda 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 Resolutions to authorize and direct County Counsel and/or outside eminent domain counsel, the law firms of Burke, Williams & Sorensen and Murphy and Evertz, pursuant to their existing contracts with the District, to file and pursue proceedings to condemn and acquire the Subject Property Interests, which are more particularly described in the proposed Resolutions of Necessity and as follows:
a) Fee simple title to real property that is legally described and depicted by Exhibits A and B attached to the proposed Resolution attached as Attachment A, which fee simple area is referred to by the District as Project Parcel No. E01PD-46-996, and which covers San Bernardino County Assessor’s Parcel No[s]. (APN) 1056-271-01 & 1056-271-02, which APN[s] are owned as a matter of record title by Frank Jude Lizarraga, Jr., an unmarried man, as to undivided 50 percent interest and Charles Thomas Braden, a Widower, as to undivided 50 percent interest, as tenant in common.
b) A permanent flowage easement in real property that is legally described and depicted by Exhibits A and B attached to the proposed Resolution attached as Attachment B, which easement area of approximately 4.54 acres is referred to by the District as Project Parcel No. E01PD-46-023, and which covers portions of San Bernardino County Assessor’s Parcel Nos. 1057-031-01 and 1057-031-03, which APNs are owned as a matter of record title by 7360 Pine Avenue LLC.
Although the Subject Property Interests are located in the County San Bernardino, they are within the reach of the District’s extraterritorial power of eminent domain pursuant to Sections 2 and l6 of the Act.
To the extent the Subject Property Interests are already devoted to a public use, the use of the Subject Property Interests for the District’s Project is a compatible use that will not unreasonably interfere with or impair the continuance of the public use as it presently exists or may reasonably be expected to exist in the future (California Code of Civil Procedure Section 1240.510), or the use of the Subject Property Interests for the District’s Project is a more necessary public use than is the presently existing public use (California Code of Civil Procedure Section 1240.610).
Compliance with CEQA: The acquisition of property is a necessarily included element of the project considered in Final Environmental Impact Report(EIR) No. 583, certified by the Board of Supervisors on November 28, 1989, and Final Supplemental Environmental Impact Statement (EIS)/EIR No. 583, certified by the Orange County Planning Commission on December 19, 2001, which 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 Final EIR No. 583 and Final Supplemental EIS/EIR No. 583 were certified has become known; therefore, no further environmental review is required.
FINANCIAL IMPACT:
Appropriations are included in the Flood Fund 404 FY 2020-21 Budget for issuance of a one-time cost of $5,718,000 via the following account codes:
- 404-080-404-LS14-4100- ESP2107 in the amount of $5,090,000
- 404-080-404-LS16-4100- ESP2111 in the amount of $ 628,000
to be made upon Board approval of the proposed recommended actions. Additional presently unknown costs may also include payments for title, escrow and other fees and costs in connection with the acquisition of the Subject Property Interests, as well as the potential for other required payments that a court may order be deposited and/or paid in the condemnation actions. 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- Resolution of Necessity (Project Parcel No.
E01PD-46-996 Pine Sterling LLC-Lizarraga/Braden)
Attachment B- Resolution of Necessity (E01PD-46-023 7360 Pine Ave. LLC)
Attachment C- OC Public Works Memorandums
Attachment D- Notice of Intent to Consider Adoption of a Resolution of
Necessity (Project Parcel No. E01PD-46-996 Pine Sterling LLC- Lizarraga/Braden)
Attachment E- Notice of Intent to Consider Adoption of a Resolution of
Necessity (E01PD-46-023 7360 Pine Ave. LLC)
Attachment F- Code Provisions
Attachment G- Final Supplemental Environmental Impact Statement and Report No.
583
Attachment H- Real Estate Acquisition Questionnaire