HomeMy WebLinkAboutCA-PW Hearing on Resolution of Necessity Initiating Eminent Doman Proces to Acquire a Portion of 700-740 Francisco Blvd West____________________________________________________________________________________
FOR CITY CLERK ONLY
Council Meeting: August 1, 2022
Disposition: Resolution 15115
Agenda Item No: 6.c
Meeting Date: August 1, 2022
SAN RAFAEL CITY COUNCIL AGENDA REPORT
Department: City Attorney and Public Works
Prepared by:
Genevieve Coyle, Assistant City Attorney
April Miller, Director of Public Works
City Manager Approval: ______________
TOPIC: HEARING ON RESOLUTION OF NECESSITY INITIATING EMINENT DOMAIN
PROCESS TO ACQUIRE A PORTION OF 700/740 FRANCISCO BOULEVARD WEST,
SAN RAFAEL, CALIFORNIA IN CONNECTION WITH PHASE 1 OF THE FRANCISCO
BOULEVARD WEST MULTI-USE PATHWAY PROJECT
SUBJECT: RESOLUTION TO DETERMINE THE NECESSITY TO ACQUIRE A PORTION OF
PROPERTY BY EMINENT DOMAIN IN CONNECTION WITH PHASE 1 OF THE
FRANCISCO BOULEVARD WEST MULTI-USE PATHWAY PROJECT; TO
AUTHORIZE COMMENCEMENT OF LITIGATION TO ACQUIRE PROPERTY BY
EMINENT DOMAIN; AND TO SEEK AN ORDER OF POSSESSION (CODE OF CIVIL
PROCEDURE SECTION 1245.220)
RECOMMENDATION:
Staff recommends that the City Council open the hearing on the Resolution of Necessity, take
testimony, close the hearing and consider adopting the Resolution of Necessity authorizing the
acquisition of property by eminent domain in connection with Phase 1 of the Francisco Boulevard West
Multi-Use Pathway project.
BACKGROUND:
In 2018, the City began construction of Phase 1 of the Francisco Boulevard West Multi-Use Pathway
project (“Project”), which includes the construction of a bicycle and pedestrian pathway between
Andersen Drive and Rice Drive in San Rafael. The multi-use pathway project was separated into two
phases due to fiscal constraints. Phase 1 involved the installation of a class 1 multi-use path from
Andersen drive to Rice Drive, which parallels SMART’s rail system. Phase 2 was completed in spring
2021 and involved installation of a Class IV two directional bicycle facility from Rice Drive to Second
Street.
The Project included an asphalt pathway, fencing to separate the pathway from the SMART tracks,
retaining walls, lighting, striping, a pedestrian crosswalk signal, and other supporting items. Phase 1
was completed in 2019.
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 2
Part of the Project was constructed on an approximately 18,398 square foot portion of privately owned
property (“Property”) located at 700/740 Francisco Boulevard West, San Rafael, California (APNs 018-
014-66 and 018-014-67). That Property is owned by Francisco Boulevard Investors, LLC and improved
with an auto dealership. On August 23, 2021, Francisco Boulevard Investors, LLC filed a complaint for
inverse condemnation against the City for building a portion of the Project on its Property (“Inverse
Action”). Before the Inverse Action was filed, the City made numerous efforts to reach an agreement
with Francisco Boulevard Investors, LLC to purchase the Property that was necessary for the Project.
After the Inverse Action was filed, the City met and conferred with Francisco Boulevard Investors, LLC’s
attorney, who urged the City to file a complaint in eminent domain to acquire the Property. The Parties
entered a stipulation providing that if the City Council, in its sole and absolute discretion, decides to
consider and adopt a Resolution of Necessity to acquire the Property, Francisco Boulevard Investors,
LLC will waive its right to challenge the City’s right to acquire the Property via eminent domain. The
proposed Resolution of Necessity is attached as Attachment 1. A copy of the Stipulation is attached as
Attachment 2.
ANALYSIS:
A hearing on the Resolution of Necessity must be held and the resolution approved by a four-fifths (4/5)
vote of the City Council prior to the City moving forward with the eminent domain process. Adoption of
the Resolution of Necessity authorizes the City to acquire the Property by eminent domain, deposit the
probable amount of just compensation with the State Treasury, and obtain an order for prejudgment
possession of the Property. The purpose of the hearing on the Resolution of Necessity is to provide the
property owner with an opportunity to address the City Council on this matter relating to the City’s
necessity acquiring the Property for the Project. However, the amount of compensation owed for the
acquisition will be decided through continued negotiations or by a court of law, and thus, compensation
is not a proper matter to be discussed at the hearing.
State law requires the City Council make certain findings with respect to the adoption of the Resolution
of Necessity. The findings for the adoption of the Resolution of Necessity at the hearing of the City
Council must include the following information:
1) The Public Interest and Necessity Require the Project
First, the City Council must find that the public interest and necessity require the Project. Here, the
Property is necessary for a Project that provides residents, commuters, and students safe and
accessible access to the Downtown San Rafael SMART Station, the Bettini Transit Center, and the
Ferry. The Project is a component of a larger north-south non-motorized transportation network in
Marin. The Project encourages increased cycling and walking trips and reduces the number of vehicle
miles traveled in the City. The Project is for a public use and would not have been possible if the City
could not acquire the Property.
2) The Interests Sought to be Acquired are Necessary for the Project
Second, the City Council must find that the interests sought to be acquired are necessary for the
Project. As previously described, the Property sought to be acquired by eminent domain is necessary
for the Project.
3) The Project is Located in such a Manner as to Offer the Greatest Public Benefit with the Least
Private Detriment
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 3
Third, the City Council must find that the Project is located in such a manner as to offer the greatest
public benefit with the least private detriment. Prior to the Project’s construction, staff and City
consultants evaluated a variety of options and determined that Project use of the Property, which was
an undevelopable seasonal wetland/drainage swale/ditch that was separated from the auto dealership
that occupies the remainder of 700/740 Francisco Boulevard West by a fence, and does not impact the
operations of the car dealership(s), would result in the least private injury. Accordingly, the Project was
designed to afford the greatest public benefit with the least possible burden on the affected property
owner.
4) A Government Code Offer Has Been Extended To Each Property Owner
Fourth, the City Council must find that the City has extended an offer pursuant to Government Code
section 7267.2 to each property owner. On July 6, 2022, the City sent a purchase offer in conformance
with Government Code section 7267.2(a) to the owners of record. Since sending the offer, the City has
reached out to the property owner’s attorney to ascertain whether a negotiated purchase would be
possible. To date, these efforts have been unsuccessful. On July 14, 2022, the City mailed the
property owner a Notice of Intention to consider adoption of a Resolution of Necessity to acquire the
Property by eminent domain at its regular meeting of Monday, August 1, 2022. A copy of the notice
provided to the owner is attached as Exhibit B to the Resolution of Necessity.
ENVIONMENTAL REVIEW:
The City has fully complied with the California Environmental Quality Act, Public Resources Code
Section 21000 et seq., for acquiring the Property described herein when on December 4, 2017, the City
adopted a Mitigated Negative Declaration for the Project in Resolution No. 14428.
PUBLIC OUTREACH AND NOTICING:
The posting of the City Council agenda serves as the notice to the general public. Notice of the public
hearing was mailed to the property owners and business tenants at least 15 days in advance of the
hearing, as required by state law.
FISCAL IMPACT:
The amount of compensation owed for the acquisition will be decided through continued negotiations or
by a court of law. While it is unknown as to what the ultimate cost will be for the acquisition of the
Property, the City obtained an appraisal of the Property in June 2022 that appraised it for $368,000.
OPTIONS:
1. Adopt Resolution as presented.
2. Adopt Resolution with modifications.
3. Direct staff to return with more information.
RECOMMENDED ACTION:
Conduct a Hearing and Consider Adopting the Resolution.
ATTACHMENTS:
1. Resolution, including:
Exhibit A – Legal Description and Plat Map
Exhibit B – Notice of Intention to Adopt Resolution of Necessity
2. Stipulation
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OAK #4861-7702-7625 v1
RESOLUTION NO. 15115
A RESOLUTION TO DETERMINE THE NECESSITY TO ACQUIRE A PORTION OF
PROPERTY BY EMINENT DOMAIN IN CONNECTION WITH PHASE 1 OF THE
FRANCISCO BOULEVARD WEST MULTI-USE PATHWAY PROJECT; TO
AUTHORIZE COMMENCEMENT OF LITIGATION TO ACQUIRE PROPERTY BY
EMINENT DOMAIN; AND TO SEEK AN ORDER OF POSSESSION (CODE OF CIVIL
PROCEDURE SECTION 1245.220)
Property: Approximately 18,398 square foot Portion of
700/740 Francisco Blvd. West, San Rafael, California
(APNs 018-014-66 and 018-014-67)
WHEREAS, the City Council has determined that the City of San Rafael (“City”)
needs to acquire certain property interests in connection with Phase 1 of the Francisco
Boulevard West Multi-Use Pathway project.
NOW, THEREFORE BE IT RESOLVED, that the City Council of the City, by vote
of four-fifths or more of its members, FINDS, DETERMINES, DECLARES, AND
RESOLVES the following:
1. The City has constructed Phase 1 of Francisco Boulevard West Multi-Use
Pathway project (“Project”), which includes the construction of a bicycle and pedestrian
pathway between Andersen Drive and Rice Drive in San Rafael. The Project included,
but is not limited to, an asphalt pathway, fencing to separate the pathway from the
SMART tracks, retaining walls, lighting, striping, a pedestrian crosswalk signal, and
other supporting items. The Project is for a public use.
2. In connection with the Project, the City needs to acquire approximately
18,398 square feet of that certain privately owned property known as 700/740 Francisco
Boulevard West, San Rafael, California (APNs 018-014-66 and 018-014-67) and more
particularly described and depicted on Exhibit A attached to this Resolution and
incorporated herein (“Property”). The Property is necessary for the Project.
3. The City is authorized to acquire the Property by eminent domain for the
public use set forth herein in accordance with the California Constitution, Article 1,
Section 19; the California Eminent Domain Law, Code of Civil Procedure Section
1230.010 et seq., including, but not limited to, sections 1240.010 through 1240.050
inclusive, and sections 1240.110, 1240.120, 1240.150, 1240.220, 1240.320, 1240.330,
1240.350, 1240.410, 1240.510, 1240.610, 1240.650, and 1240.660; Government Code
sections 37350.5 and 38730; Streets & Highway Code Section 10102; and other
provisions of law.
4. On July 15, 2022, the City mailed a Notice of Intention to Adopt a
Resolution of Necessity (“Notice of Intention”) for acquisition by eminent domain of the
Property, which notice is attached hereto as Exhibit B, and incorporated herein. The
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OAK #4861-7702-7625 v1
Notice of Intention was mailed to all persons whose name(s) appear on the last
Equalized County Assessment Roll as having an interest in the Property, and to the
addresses appearing on the Roll. The Notice of Hearing advised the persons of their
right to be heard on the matters referred to in the Notice of Hearing on the date and at
the time and place stated.
5. The hearing referenced in the Notice of Intention was held on August 1,
2022, at the time and place stated in said notice, and all interested parties were given
an opportunity to be heard. The hearing was then closed.
6. Based upon the evidence presented at the hearing, the City Council of the
City of San Rafael finds, determines, declares, and resolves each of the following:
A. The public interest and necessity require the proposed Project;
B. The interests in the Property sought to be acquired by eminent
domain are necessary for the Project;
C. The Project is planned or located in the manner that will be most
compatible with the greatest public good and the least private
injury;
D. The City has complied with all conditions and statutory
requirements necessary to exercise the power of eminent domain
to acquire the Property described herein, as well as any other
matter regarding the right to take said Property by eminent domain,
including but not limited to, making the offer required by
Government Code Section 7267.2(a); and
E. The City has fully complied with the California Environmental
Quality Act, Public Resources Code Section 21000 et seq., for
acquiring the Property described herein when on December 4,
2017, the City adopted a Mitigated Negative Declaration for the
Project in Resolution No. 14428.
7. The City Attorney is hereby authorized to acquire in the name of the City
the Property described in this Resolution in accordance with the provisions of California
Eminent Domain Law, to commence an action in eminent domain, to deposit the
probable amount of compensation with the California State Treasury, to apply to the
Superior Court for an order permitting the City to take immediate possession and make
immediate use of the Property for the Project, and to take all necessary steps to acquire
the Property under the law.
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OAK #4861-7702-7625 v1
I, Lindsay Lara, Clerk of the City of San Rafael, hereby certify that the foregoing
Resolution was duly and regularly introduced and adopted at a regular meeting of the
City Council of the City of San Rafael, held on Monday, the 1st day of August 2022 by
the following vote, to wit:
AYES: Councilmembers: Bushey, Hill, Kertz & Mayor Kate
NOES: Councilmembers: None
ABSENT: Councilmembers: Llorens Gulati
Lindsay Lara, City Clerk
– – – – – – – – – – –
List of Exhibits:
A. Legal Description and Plat Map of the Property
B. Notice of Intention to Adopt a Resolution of Necessity
May 29 , 2019
Exhibit A
LEGAL DESCRIPTION FOR RIGHT OF WAY (RW) TAKE
APN 018-014-67 AND 018 -014-66
A portion or Real Property situated in the City of San Rafael, County of Marin , State of
California, more particularly being a portion of the Lands of Francisco Boulevard
Investors, LLC as described in that certain Grand Deed Recorded in Series 2004-
0052865 in the Office of the County Recorder of said Marin County in addition to a
portion of the Lands of Francisco Boulevard Investo rs, LLC as described in that certain
Grand Deed Recorded in Series 2011 -0052704 in the Office of the County Recorder of
said Marin County; said portions being more particularly described as follows :
Beginning at the most easterly corner of said Lands of Francisco Boulevard Investors,
LLC as described in that certain Grand Deed Recorded in Series 2011 -0052704 ; thence
along the boundary of said Lands South 49 °38'54" West 17 .00 feet; thence continuing
along the boundary of said Lands North 49 °10'05" West 381.01 feet to the northeasterly
Right of Way Line of the Lands of the Sonoma-Marin Area Rail Transit (SMART) District;
thence along said northeasterly Right of Way Line North 40 °20'55" West 102.25 feet to
the most southerly corner of said Lands of Francisco Boulevard Investors, LLC as
described in that certain Grand Deed Recorded in Series 2004-0052865 ; thence along
said northeasterly Right of Way Line and the southwest line of said Lands of Francisco
Boulevard Investors , LLC North 40 °20'55" West 90 .39 feet; thence into said Lands of
Francisco Boulevard Investors, LLC North 49 °39'05" East 24 .60 feet; thence South
40 °20'55 " East 90.39 feet to a point on the easterly line of said Lands of Francisco
Boulevard Investors , LLC, said point also being on the westerly line of aforesaid Lands
of Francisco Boulevard Investors, LLC as described in that certain Grand Deed
Recorded in Series 2011-0052704 ; thence into said Lands South 40 °20 '55" East 172.11
feet; thence North 46 °51 '05" East 40 .86 feet; thence South 51 '45'27 " East 50.51 feet to
a point on the boundary line of said Francisco Boulevard Investors, LLC; thence along
said boundary line South 40 °21 '08" East 259 .13 feet to the Point of Beginning.
Contains 18 ,398 sq . ft. (0.422 acres) more or less
Bearings based upon the California Coordinate System (CCS 83, Zone 3)
All distances are in feet and decima ls thereof.
1 of 1
NOTE:
RW TAKE AREA IN APN 018-014-67
=2,223 SQ . FT. (0.051 AC) more or less
RW TAKE AREA IN APN 018-014-66
=16, 175 SQ. FT. (0.371 AC) more or less
EXHI BIT B
LINE TABLE
LINE LENGTH BEARING
L1 17,00
L2 24.60
L3 40,86
L4 50,51
TOTAL AREA TAKE
18,398 Sq Ft
0.422 Ac .
S49 °38'54'\./
N49 °39'05'E
N46 °51'05'E
S51 • 45'27'E
SAN RAFAEL SANITATION DISTRICT
2001-11916
GRAPHIC SCALE
100 0 50 100
~-••• I I ( IN FEET )
1 inch = 100 ft.
C HA UDHARY
& ASSOCIATES. INC~
ENG INEERS SURVEYORS IN SPECTORS ------------211 Gateway Road West, Suite 204
NAPA, CALIFORNIA 94558
Tel : (707) 255-2729 FAX. (707) 255-5021
WWW.CHAUDHARY .COM
LEGEND
APN ASSESSOR'S PARCEL NUMBER
M.C.R. MARIN COUNTY RECORDS
P.0.8. POINT OF BEGINNING
RW RIGHT OF WAY
(T) TOTAL DISTANCE
RIGHT OF WAY TAKE OVER A PORTION OF THE
LANDS OF THE FRANCISCO BLVD. INVESTORS, LLC
AS RECORDED IN SERIES 2004-0052865 AND
2011-0052704 FILED IN MARIN
COUNTY RECORDERS OFFICE
MAY 29, 2019 STATE OF CALIFORNIA SHEET 1 OF 1
Q:\2015\15-12-050 Kimley Horn\Closures\RW-Take-Area.txt
Created on 5/29/2019 11:00:00 AM
Created by H. Korstick , PLS
Parcel name: RW-Take-Area
North: 2178526 .9697 East : 5981655. 7144
Line Course: s 49-38-54 w Length: 17 .00
North: 2178515 . 9626 East : 5981642 .7589
Line Course : N 49 -10-05 w Length: 381 .01
North: 2178765 .0832 East : 5981354.4751
Line Course: N 40 -20 -55 W Length: 192. 64
North: 2178911. 8978 East 5981229 .7529
Line Course: N 49-39-05 E Length: 24 .60
North: 2178927 .8151 East 5981248.5093
Line Course : s 40-20-55 E Length : 2 62 . 4 9
North: 2178727.7740 East 5981418 .4485
Line Course : N 46-51-05 E Length : 40 .86
North: 2178755 .7179 East 5981448 .2592
Line Course: s 51-45-27 E Length : 50 .51
North : 2178724.4526 East 5981487. 9296
Line Course: s 40 -21-08 E Length: 259.13
North: 2178526 .9752 East : 5981655 .7123
Perimeter: 1228 .24 Area : 18,398 Sq Ft 0.422 Ac .
Mapcheck Closure -(Uses
Error Closure: 0.0058
Error North: 0.00546
Precision 1: 211 ,763.79
listed courses , radii , and deltas)
Course : N 20-23 -21 W
East : -0 .00203
1 Benjamin L. Stock (SBN 208774)
E-mail: bstock@bwslaw.com
2 Nicholas J. Muscolino (SBN 273900)
E-mail: nmuscolino@bwslaw.com
3 BURKE, WILLIAMS & SORENSEN, LLP
181 Third Street, Suite 200
4 San Rafael, CA 94901-6587
Tel: 415.755.2600 Fax: 415.482.7542
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Attorneys for Defendant
6 CITY OF SAN RAFAEL
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FILING FEE EXEMPT PURSUANT TO
GOVERNMENT CODE § 6103
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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11 FRANCISCO BOULEY ARD
INVESTORS, LLC,
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Plaintiff,
v.
CITY OF SAN RAFAEL, et al.,
Defendant.
SR #4894-6234-83 I I v I
COUNTY OF MARIN
Case No. CIV-2102789
STIPULATION BETWEEN PLAINTIFF
FRANCISCO BOULEVARD INVESTORS,
LLC AND DEFENDANT CITY OF SAN
RAFAEL
JFAP: Honorable A. Sweet; Dept. E
Complaint Filed: 8/23/2021
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BURKE, WILLIAMS &
SORENSEN, LLP
ATTORNEYS AT LAW
SAN RAFAEL
STIPULATION BETWEEN PLAINTIFF FRANCISCO BOULEY ARD INVESTORS, LLC AND DEFENDANT
CITY OF SAN RAFAEL
1 Plaintiff Francisco Boulevard Investors, LLC ("Francisco") and Defendant City of San
2 Rafael ("City" and, together with Francisco, the "Parties"), by and through their counsel of
3 record, hereby stipulate as follows:
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RECITALS
1. On or about June 18, 2019, the City sent Francisco a letter pursuant to Government
Code section 7267.2 offering to purchase an approximately 18,398 square foot portion of that
certain real property located at 700/740 Francisco Boulevard West, San Francisco (APN 018-014-
66 and 018-014-67) ("Subject Property") to facilitate the SMART Larkspur extension project and
the City of San Rafael multi-use path project ("Project"). Francisco did not accept the City's
offer.
2. On August 23, 2021, Francisco filed a Complaint for Inverse Condemnation and
Injunctive Relief against the City that alleges in relevant part that "[b ]eginning on or about
February 26, 2018, and without permission of or from plaintiff, and without payment of any
compensation, defendant City caused [a portion of the Project] to be constructed ... on plaintiffs
Properties."
3. The Parties have met and conferred and, in the event that the City Council
determines, in its sole and absolute discretion, to adopt a Resolution of Necessity and file a direct
condemnation action to acquire the Subject Property from Francisco, hereby agree as follows:
STIPULATIONS
1. In the event that the City Council, in its sole and absolute discretion, decides to
22 consider and adopt a Resolution of Necessity pursuant to Code of Civil Procedure sections
23 1245.220 et seq. to acquire the Subject Property by eminent domain, Francisco hereby agrees to
24 waive its right to challenge the City's right to take the Subject Property for the Project by eminent
25 domain. This waiver shall be deemed to have the same legal effect as a withdrawal of a deposit
26 of probable compensation pursuant to Code of Civil Procedure section 1255.260.
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BURKE, WILLIAMS &
SORENSEN, LLP
ATTORNEYS AT LAW
SAN RAFAEL
2. In the event that (a) the City Council, in its sole and absolute discretion, decides to
consider and adopt a Resolution of Necessity pursuant to Code of Civil Procedure sections
SR #4894-6234-8311 v I -2 -
STIPULATION BETWEEN PLAINTIFF FRANCISCO BOULEY ARD INVESTORS, LLC AND DEFENDANT
CITY OF SAN RAFAEL
18
1 1245.220 et seq. to acquire the Subject Property by eminent domain, and (b) the City makes a
2 deposit of probable just compensation pursuant to Code of Civil Procedure sections 1255.010 and
3 1255.410, and (c) the City files a complaint in eminent domain to acquire the Subject Property,
4 then the City will stipulate to Francisco's immediate withdrawal of the deposit of probable just
5 compensation from the State's Condemnation Fund and Francisco will stipulate to the City taking
6 immediate prejudgment possession of the Subject Property.
7 3. In the event that the City Council, in its sole and absolute discretion, decides to
8 consider and adopt a Resolution of Necessity pursuant to Code of Civil Procedure sections
9 1245.220 et seq. to acquire the Subject Property by eminent domain, and the City files a
10 complaint in eminent domain to acquire the Subject Property, then City and Francisco both
11 stipulate that said eminent domain action may be consolidated with the above-referenced action,
12 Marin County Superior Court, Action No. CIV-2102789.
13 4. The Parties agree to execute and deliver such further stipulations and/or documents
14 as may be reasonably necessary or appropriate to effectuate the intent of this Stipulation.
15 IT IS SO STIPULATED.
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BURKE, WILL!A)dS &
SORENSEN, LLP
ATTORNEYS AT LAW
SAN RA FAEL
Dated: May _, 2022
Dated: May / ~, 2022
SR #4894-6234-8311 v 1
BURKE, WILLIAMS & SORENSEN, LLP
By: M ?10
NicholaY.Muscoiino
Attorneys for Defendant CITY OF SAN
RAFAEL
LAMPHERE LAW OFFICES
By:~d.~d
Michael 0. Lamphere
Attorneys for Plaintiff FRANCISCO
BOULEY ARD INVESTORS, LLC
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STIPULATION BETWEEN PLAINTIFF FRANCISCO BOULEY ARD INVESTORS, LLC AND DEFENDANT
CITY OF SAN RAFAEL
