Agenda Item   

AGENDA STAFF REPORT

 

                                                                                                                        ASR Control  19-000928

 

MEETING DATE:

09/10/19

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 

 

 

Rebecca S. Leeds (714) 834-3906

 

 

Subject:  Condemnation Action, Riverside County, Prado Dam Project

 

      ceo CONCUR

County Counsel Review

Clerk of the Board

Concur

Approved Resolution to Form

Public Hearing

 

 

4/5 Vote

 

 

 

    Budgeted: Yes

Current Year Cost: $9,105,000

Annual Cost: N/A

 

 

 

    Staffing Impact:

No

# 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/Report 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 Supplemental Environmental Impact Statement/Report No. 583, which were prepared and satisfy the requirements of CEQA for the Santa Ana River Mainstem Project, as well as the Prado Dam Project, respectively, adequately addressed and fully analyzed the condemnation action proposed herein, which is a necessarily included element contemplated as part of the whole Project. 

 

 

b)

The circumstances of the Project are substantially the same as when Final Environmental Impact Report No. 583 and Final Supplemental Environmental Impact Statement/Report No. 583 were adopted, and Final Environmental Impact Report No. 583 and Final Supplemental Environmental Impact Statement/Report No. 583 adequately addressed the effects of the proposed condemnation action. 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 which was not known or could not have been known when the prior Environmental Impact Report No. 583 and Supplemental Environmental Impact Statement/Report 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 Supplemental Environmental Impact Statement/Report 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 & 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: Fee simple title to real property in Project Parcel No. 46-995, which covers San Bernardino County Assessor’s Parcel Nos. 1056-281-02, 1056-281-03 and 1056-281-04, and to make one or more deposits of estimated compensation with the State Treasurer’s condemnation deposits fund in a total amount of $9,105,000.

 

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 $9,105,000, to be paid from Fund 404-080-404-LS07-4100, Job No. ESP2063, 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:

 

Conduct a public hearing and consider adoption of a Resolution of Necessity, which will include required findings under CEQA and under the California Eminent Domain Law, to condemn and acquire real property interests located in the County of San Bernardino, which are required by the Orange County Flood Control District for the Santa Ana River Mainstem/Prado Dam Project, and direct and authorize Orange County Flood Control District’s Counsel and the Auditor-Controller to take steps to initiate and facilitate condemnation proceedings.

 

 

BACKGROUND INFORMATION:

 

In December 1999, the Board of Supervisors 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 of Supervisors (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 and/or 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 real 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 and/or storm event.  In particular, the recommended action would find and declare that it is necessary for the District to acquire fee title to Project Parcel No. 46-995 (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 provides substantial information supporting the requested findings contained in the proposed Resolution. The information presented in this Agenda Staff Report and in Attachment B 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 Attachment B 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 & 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 John Bos and Andi Bos, Trustees of the Bos Grandchildren’s Trust dated May 31, 2002, and Bos Legacy Limited Partnership, a California limited partnership, which real property is located at 16305 & 16395 Euclid Avenue in Chino, CA 91708, and which Subject Property Interests are described as follows:

 

Fee simple title to real property that is legally described and depicted by Exhibits A and B attached to the proposed Resolution, which fee simple area is referred to by the District as Project Parcel No. 46-995, and which covers San Bernardino County Assessor’s Parcel No. 1056-281-02, 1056-281-03 and 1056-281-04.

 

 

 

 

 

FINANCIAL IMPACT:

 

Appropriations and Revenue are included in FY 2019-20 Budget for one-time cost to Fund 404-080-404-LS07-4100, Job No. ESP2063, of $9,105,000.  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 Fund 404.

 

 

 

STAFFING IMPACT:

 

N/A

 

REVIEWING AGENCIES:

 

OC Public Works

 

ATTACHMENT(S):

 

Attachment A - Proposed Resolution of Necessity
Attachment B - Memorandum from OC Public Works
Attachment C - Clerk of the Board’s Declaration of Mailing/Notice of Hearing
Attachment D - OC Public Works Memorandum to County Counsel
Attachment E - OC Flood Control Act Provisions
Attachment F - Code of Civil Procedure Provisions
Attachment G - Government Code Provisions