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Resolution Number 09-01-20-02 RESOLUTION NO. 09-01-20-02 A RESOLUTION OF THE CITY COUNCIL OF SAN JUAN CAPISTRANO, CALIFORNIA AUTHORIZING AND DIRECTING THE CONDEMNATION OF CERTAIN .REAL PROPERTY (APN No. 649-082-020) LOCATED IN THE CITY OF SAN JUAN CAPISTRANO, COUNTY OF ORANGE, STATE OF CALIFORNIA, AND DECLARING THE PUBLIC NECESSITY THEREFORE. (STEVEN P. AND CARINA M. HATHAWAY) (CIP 102) WHEREAS, the City of San Juan Capistrano ("City") is a public body, corporate and politic of the State of California, organized and operating pursuant to the laws of the State of California, and is authorized as specified herein to take real property by condemnation and to hold, use and enjoy such property as necessary to fully exercise its powers; and WHEREAS, the Public Works Department, on an on-going basis, considers, investigates and engages in the acquisition of properties for the purpose of constructing capital improvement projects with the intent of securing all essential properties needed to implement the General Plan Circulation Element, Arterial Highway System, and in this case by constructing CIP 102- Del Obispo Street Widening 300' south of Calle Aspero to 400' North of Calle Aspero and. CIP 121- Del Obispo Street Widening 400' North of Calle Aspero to Aguacate (the "Project"); and WHEREAS, the City and through it's Public Works Department has determined that the acquisition of that certain real property, approximately 341 square feet located at the Southwest Quarter of the Southwest Quarter of Section 1, Township 8 South, Range 8 West, San Bernardino Base and Meridian and identified as Assessor's Parcel Number 649-082-020 and as further described in Exhibit 2 of Exhibit B attached hereto (the "Property"), represents a necessary and essential component of the City's successful completion of the Project; and WHEREAS, more specifically, the City has determined that the Property's ultimate use upon widening the street is an essential component in relieving traffic congestion by accommodating the ultimate General Plan Circulation Element street geometry consisting of 4 travel lanes, 2 bike lanes, and a painted median; and WHEREAS, the City has determined that pursuant to Title 14 of the California Code of Regulations, Section 16301 (Minor Alterations to Existing Facilities), the City's acquisition of the Site in furtherance of the Project is categorically exempt from review under the California Environmental Quality Act as the project constitutes public improvements to "existing highways and streets, Page 1 of 6 sidewalks, gutters, bicycle and pedestrian trails, and similar facilities (this includes road grading for the purpose of public safety"; and WHEREAS, the City is authorized to acquire the Property by condemnation pursuant to the provisions of California State law, including, but not limited to, Article 1, Section 19 of the California Constitution and California Health & Safety Code §33037, in order to carry out the business of the City, such power being exercised pursuant to the provisions of Section 1230.010 et seq. of the California Code of Civil Procedure; and WHEREAS, on September 16th, 2008 the purported owners of the Property were mailed an offer to purchase the Property, Assessor's Parcel No.: 649-082-020, meeting the requirements of California Government Code section 7267.2 (the "Offer Letter"), a true and correct copy of the Offer Letter being attached hereto, inclusive of its various exhibits, and incorporated herein by this reference as Exhibit A; and WHEREAS, on December 18, 2008, the City mailed the owners a legal notice of the intent to adopt a resolution of necessity to acquire the Property in fee simple by eminent domain pursuant to and in compliance with the requirements of California Code of Civil Procedure section 1245.235 (the "Notice Letter"), a true and correct copy of the Notice Letter being attached hereto, inclusive of its various exhibits, and incorporated herein by this reference as Exhibit B; and WHEREAS the Property is legally described on the first page of Exhibit 2 to Exhibit B attached hereto and graphically reflected on the second page of Exhibit 2 to Exhibit B, an assessor's map showing the Site as shaded in red; and WHEREAS, the Notice letter advised the owners of a public hearing in this matter before the Council on January 20, 2009, and the City Council held a public hearing on this date (the "Hearing"), at which the matters set forth in California Code of Civil Procedure section 1240.030 were discussed, including the following: a) Whether the public interest and necessity require the proposed Project; b) Whether the proposed Project is planned and locates( in the manner that would be most compatible with the greatest public good and the least private injury; c) Whether the property sought to be acquired (which is described herein) is necessary for the proposed Project; and d) Whether the offer required by section 7267.2 of the California Government Code has been made to the owner or owners of record; and WHEREAS, the City, via the Notice Letter, has provided all persons whose names appear on the last equalized County Assessment Roll as having Page 2 of 6 an interest in the Property with a reasonable opportunity to appear and be heard on those matters referred to in section 1240.030 of the California Code of Civil Procedure; and WHEREAS, at the Hearing, Staff presented a written report to the Board, supplemented by oral information, regarding the proposed Project and the matters set forth herein; and NOW, THEREFORE, BE IT RESOLVED, the City Council, by vote of two- thirds or more of its members, hereby declares, finds, and determines as follows; 1. The recitals above are true and correct and incorporated herein by reference. 2. The public interest and necessity require the acquisition of the of the Property, to wit that certain real property described and reflected in the first page of Exhibit 2 to Exhibit B attached hereto (heretofore referred to as the "Property"). The City Council finds that the acquisition of the Property is necessary to widen Del Obispo Street to accommodate the ultimate geometry of the General Plan Circulation Element, Arterial Highway System. 3. The public interest and necessity require the acquisition and taking of a fee simple interest in the Property in order for the proposed Project to proceed, the proposed Project being a public use authorized by law and the California Constitution and California Health & Safety Code §33037, among other provisions of the statutes of the State of California, permit and empower this acquisition by the City through its exercise of the power of eminent domain for the stated public use. 4. The Property sought to be condemned in this matter is legally described on the first page of Exhibit 2 to Exhibit B attached hereto attached to and incorporated into this Resolution of Necessity. 5. The public interest and necessity require the proposed Project. 6. The proposed Project is planned and located in the manner that will be most compatible with the greatest public good and the least private injury. 7. The Property sought to be acquired, is necessary for the proposed Project. 8. The offer required by Government Code section 7267.2, subdivision (a), together with the accompanying statement of and summary of the basis for the amount established as just compensation, was made to the owner or owners of record, which offer and accompanying statement/summary were in a form and contained all of the factual disclosures provided by Government Code section 7267.2, Subdivision (a). 9. The City has complied with all conditions and statutory requirements necessary to exercise the power of eminent domain to acquire the Property. 10. The law firm of Woodruff, Spradlin & Smart, is hereby authorized, empowered and directed to prepare, commence and prosecute an eminent domain action or actions in the Superior Court of the State of Page 3 of 6 California in the name and on behalf of the City against all owners and. persons and entities claiming or having interests in the Properly for the purpose of performing and carrying out all proceedings and steps 'incident to the condemnation and the acquisition of the Property, including obtaining warrants for deposit of funds, orders for pre-judgment possession, and other steps necessary to acquire fee simple title to the Property, unless a lesser estate has been specified herein, by and for the City of San .Juan Capistrano. PASSED, APPROVED, AND ADOPTED this 20th day_ of January 2009. -~ MARIA NIELSEN, MAYOR A i fIEST1 MAR A . T MON AN, ITY ' RK STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF SAN JUAN CAPISTRANO ) I, MARGARET R. MONAHAN, appointed City Clerk of the City of San Juan Capistrano, do hereby certify that the foregoing Resolution No.09-01-20-02 was duly adopted by the City Council of the City of San Juan Capistrano at a Regular meeting thereof, held the 20th day of January 2009, by the following vote: AYES: COUNCIL MEMBERS: Allevato, Freese, Hribar, Uso and Mayor Nielsen NOES: COUNCIL MEMBER: None ABSENT: COU Cllr MBER: None MAR ET R. MONAHAN, City Clerk m7 Page 4 of 6 EXHIBIT A [Statutory'Offer Letter] Resolution of Necessity,Public Works'Department APN#649-082-020 Page 5 of 6 azaotr PASEO ADELANT0 ,�i MEMBERS qF THE cITY COUNCIL SAN JUAN CAPISTRANO,CA 92675 ii 14l (949)493-1171 lad SAMALLEVATO S . (949)493-1053 PA7C � • rr;ausK[c 4 � THOMAS W.HRIB11R MARK N1Et,sEN . utivwsanjuancapistrano.org 1776 JOE saga AOk DR,LONDRES USO September 16, 2008 Steven P. and Carina M. Hathaway 32011 Del Obispo Street Sart Juan Capistrano, CA 92675 RE: CIP 102 and 121- Del Obispo Street Widening; 300' South of Calle Aspero to Aguacate'Road. Dear Mr. and Mrs. Hathaway: The City of San Juan Capistrano is engaged in a project to acquire land to widen Del Obispo Street from 300' South of Calle Aspero to. Aguacate Road. As part of this widening project the City desires to acquire property located on the west side of Del Obispo Street. A preliminary title report indicates that APN 649.082-20,' of which the City wishes to' acquire 341 square feet CParcel°); is vested with Steven P. and Carina M. Hathaway. This correspondence is being sent to you as Government Code section 7257.1 provides that a public entity shall mako every reasonable effort to expeditiously acquire real property by negotiation rather than by litigation in the form of condemnation action. California Government Code section 7267.2 (a) provides that before initiating negotiations for the acquisition of real property the City shall: Make an offer to the owners of record to acquire the property for the full amount that the public entity has established as just compensation; . • Make an offer that is not less than,the ppblic entity's appraisal of th& fair market value of the property; Provide the owner(s) with a written statement and summary basis for the amount that the Agency has established as just compensation; and ■ Provide the owner(s) with a general statement of information regarding the acquisition of property by a public entity In order to initiate negotiations regarding the proposed acquisition of the Parcel (341 square feet of your entire property),.the. City has enclosed (1),an Offer to Purchase and.(2) a Statement and Summary of-the Basis.for Appraisal- and Amount of Just Compensation CSummary Appraisal Statement"). The purchase offer is for the full San Juan Capistrano: Preserving the Past to.Enhance the Future {.. Primed on 100%mvded oaner Page 2 Steven P. and Carina M. Hathaway amount the City believes to be just-compensation for the Parcel and is not less than the approved.appraisal of the Parcel's fair market value:The basis for the City's offer is explained in the.attached Summary Appraisal Statement. If you are concerned about the propriety.if,the City's valuation'of the Parcel, you may wish to obtain an appraisal of the Parcel. Under Code of the Civil Procedure section 9263.025, the City is obligated to offer to pay for the reasonable costs, not to exceed five thousand dollars ($5000); of an independent appraisal ordered by the owners of the Parcel. The independent appraisal must be conducted by an appraiser licensed by the Office of Real Estate Appraisers: After you have had an opportunity to consider the Offer to Purchase and Summary Appraisal Statement we will be contacting you to discuss the acquisition of the Parcel. We have enclosed a "Statement of Information Relating to Acquisition Procedures for Purchase of Real Property ar an Interest Therein" by a public entity that may or may not be applicable to this proposed acquisition. We thank you for your time and look forward to negotiaiting an agreeable settlement for the acquisition of this Parcel. If you have any.questions regarding the Agency's proposal, please contact Nisha Patel at (949)443-6350. Sincerely, Dave Adams City Manager Attachments C: Omar Sandoval Nasser Abbaszadeh OFFER TO PURCHASE (Government Code sections 7267o1.(a)and 7267.2(a)). The City of San Juan Capistrano CCity") is.proposing to widen Del Obispo Street from 300'South.of Calle Aspero to Aguacate Road and seeks to acquire property located an the side of Del Obispo Street, including 341 square feet of real prpperty known as APN: 6497-082-20 (the 341 square feet is referred to as.the "Parcel").A preliminary,title report. -indicates that (1)APN 649-082-20 is vested with Steven P. and'Cadna M. Hathaway. The City has established through an appraisal that the fair market value and amount it believes to be just compensation for the Parcel is Six Thousand Dollars($6000.00) The City, therefore,,proposes and makes a formal offer to acquire the entirety of the Parcel udder the following.terms and conditions: The City, therefore, proposes and makes a formal offer to acquire the-entirety of the Parcel under the following terms and conditions: 1. Purchase P6ce: The City offers to pay as compensation for the acquisition of the Parcel the cash sum of Six Thousand Dollars and Zero Cents ($8000.00). 2. Title: The City mast receive title to.the Parcel in fee simple form free of any encumbrances not agreed to, in writing, by the City. . 3. Closing: Within sixty (60) days of the opening of escrow(or sooner as the parties may agree after title is cleared). 4. Closing Costs„and Escrow.Fees: City to pay closing costs and escrow fees, 5. Due Dilicienoe Period: The City will have reasonable access to the Parcel and sufficient time to conduct its due diligence, including environmental assessment, at the City's cost, and review and approve title. 6. Definitiv Purhase Agreement; The parties will execute a definitive Purchase and Sal Agreement(the'Purchase.Agreement") in a form satisfactory to both parties. The Purchase Agreement will set forth'all the terms and conditions associated with the purchase transaction. 7. Taxes.,_Dens and Encumbrances:Prior to'the close of escrow,owners shall pay all current and past due taxes, liens, outstanding debts, and special assessments. City shall pay recording fees, transfer taxes, and pro rata portion of real property taxes or special assessments that are allocable to any period after the close of escrow. The owners shall otherwise convey title free and clear of any encumbrances. 8. Caonerati©n between the Parties: The parties agree to cooperate in the _ execution of all necessary essary documents. 9. Broker Involvement: If this transaction involves a broker, sellers shall be so_ley responsible for paying any real estate commissions or other fees. i For your information, when property is sold to the City,there is the same obligation as in a private transaction for the owner(s)to pay through escrow the amounts needed to-remove liens and encumbrances. If you elect to accept this offer, you will be asked to sign a format in n ten Purchase Agreement and grant deed conveying the Parcel to the City, which trust then.be ratified and wproved by City Council,If you have any questions regarding the City's Proposal, please contact Ms. Nisha Patel (949)443-5350. Statement of Information Relating to Acquisition Procedures for Purchase of Real Property or an Interest Therein Real property acquisition and relocation guidelines. provide that each owner from whom the City of San .Juan Capistrano ("City") purchases, real property or an interest therein;, or each tenant owning' improvements on said property; be provided the following information that may or may not be 'applicable to your property 'and the proposed acquisition. 1. You are entitled to receive full payment prior to vacating.the real,property being purchased .unless you waive such entitlement, You are not required to pay recording fees, transfer taxes, or the'pro-rata portion of real property taxes that are allcicable to any period subsequent to the passage of title or possession. 2. The City will offer to purchase any remnant(s) considered by the City to be uneconomic units that are owned by you or, If.applicable, occupied by you as a tenant and that are contiguous to the land being conveyed. 3. All buildings, structures, and other improvements affixed to the land,described in the, referenced document(s)' covering this transaction and owned by the grantor(s) herein or, if applicable, owned by you as a tenant are being conveyed unless other disposition of these improvements has been made. The interest acquired is the entire fee as described in the enclosed.offer. 4. The amount determined to be just compensation was determined after consideration of.an appraisal of the fair market value of the property. The basis for the amount determined to be just compensation is summarized on the attached, Statement and Summary of the Basis for the Amount Established as Just Compensation. The amount of the offers a.. Represents the full-amount that the.City established as the amount that it believes to be just compensation; b. Is no less than the full amount of the City's approved. appraisal of fair market value for the property to be purchased; C. Disregards any decrease or increase in the fair market value of the real :property proposed to be acquired prior to the date of valuation caused by.the public improvement for which. the property is to be acquired or the likelihood that the property would -be acquired for such public improvement, other than due to physical deterioration within the reasonable control of the owner or occupant; d Does not reflect any consideration of or allowance for any relocation assistance and payments or other benefits the owner, is entitled to receive under an agreement with the City; and e. Considers any •diminution in value to the, remainder of the parcel caused by a partial taking of'the entire parcel. 5. The owner of a business conducted on a property to be acquired, or conducted on the remaining property which will be affected by the purchase of the required property, may be entitled to compensation for the loss of goodwill. Entitlement is contingent upon the business ,owner's ability to prove such lass in accordance with the provisions of Sections 9263.510 and 1263.520 of the Code of Civil Procedure: 6. "Fair Market Value" as used'in the offer and by the-appraiser is "the highest price on the date of valuation that would be agreed by a seller, being willing to sell but under no particular .or urgent necessity for doing so, nor obligated to sell, add a buyer, being ready, willing and able to buy but under no particular. necessity for so doing, each dealing-with the full knowledge of all the uses and purposes for which. the property is reasonably adaptable and available." (Code of Civil Procedure section 1263.320) If you ultimately elect to reject the offer of the City-for your property, you are entitled to have the amount of compensation .determined, by a court 'of law in accordance with the laws of the State of California.. Statement of and Summary of the Basis for Appraisal Code of Civil Procedures.§ 1255.010(b) The Amount Established as Just Compensation Government Code § 7267.2(a) The following is a StatemeWof and Summary of the Basis for the Appraisal and the Amount that the City of San Juan Capistrano Established as Just Compensation ("Summary") required by the California Eminent Domain Law. The appraisal on which this summary is Based was made in conn ection with establishing the amount of compensation as required.by Code of Civil Procedure section 1255.010. The appraisal on which this summary is based was made in accordance.with accepted appraisal principles, consistent-with California valuation law. The statement and summary describes.the basis for the appraisal from which the City of San Juan Capistrano established compensation.There follows the.Statement of and Summary of the Basis for the Appraisal and the Amount Established as Just Compensation ("Summary'): APPRAISAL SUMMARY Fair Market Value of the Area Proposed for Acquisition:. $ 4,263 Value of Existing Site Improvements: $ 1,705 Severance Damages to the'Remaining Property: $ -0- Offsetting Benefits. $ 0- TOTAL: $ 5,968 ROUNDED T0: $ 6,000 SUMMARY OF BASIS (A) Property Identification Owner of Record: Steven P. and Carina M. Hathaway Assessor's Parcel,Number: 649-08220 Property Address.' 3201.1 Del Obispo Street SanJuan Capistrano,California 92675 Recorded Date of Acquisition: September 8, 2000 If acquisition date within 5 years: N/A IRS Stamps: N/A Purchase price, if kndwn: $685;000 General Character of Interest Being Appraised: Fee take The Proposed Acquisition: The proposed acquisition is a part of the entire ownership.. ..._ Size.of Proposed Acquisition: 341 square foot fee take Improvements Pertaining to Realty Topography: Upslope to the west with level pad Shape: Irregular Access: Access is provided off of Del Obispo Street Utilities: Adequate utilities are provided to the. site Environmental Conditions: This valuation is premised on the assumption that the property is free and clear.of contamination. Date of.Report: August 12, 2008 Date of Valuation: August $, 20.08 Highest and Best Use: Highest and Best Use is defined as the reasonably probable and legal use ofland that is legally permissible,physically possible,and financially feasible that results in the highest value. Highest and best use analysis is.used in the appraisal process to identify comparable properties, and where applicable, to determine whether the existing improvements should be retained,renovated'or demolished. The current zoning and the subject's physical characteristics indicate its potential is for residential use-as detailed in the zoning regulations. It appears that under current market conditions, the highest and best use ofthe larger parcel,as if vacant,would be to hold or develop the site under its existing zoning. Present Use:. Same as highest and best use Applicable Zoning; Single'I~amily-20,000 District (RSE-20,000) (B) The Principal Transactions Used in the Sales Comparison Approach The three accepted approaches to value are the sales comparison approach, the income approach (capitalization analysis) and. the cost approach (reproduction or replacement cost analysis). The sales comparison approach was used as the best indication;of market value. The sales comparison approach is one of the three accepted approaches to value, The income and cost approach were not considered applicable to this appraisal problem because the area to be taken is land only. There are no structpral improvements within the acquisition areas. The sales comparison approach is used to derive a value indication by comparing the property .being appraised to similar properties that have sold recently, applying appropriate units of comparison and making adjustments to the comparables based on the'elements of comparison.This is the preferred method of valuation when comparable ._.. ..._._..sales_data._aie._available ..:.A-number.....of-sales were examined..The_principal-transactions.... . .. relied upon are summarized in the attached table. (C) Severance Damages Benefits Analysis In addition to determining the market value of the parcel sought to be acquired, an analysis of severance damages, if any, was made. The basis for this determination is whether or not the. remainder would be diminished in value by reason of the proposed acquisition and/or by the construction of the improvement in the manner proposed. Where severance damages are found,then whether or not there are offsetting benefits is determined. Benefits are any increases in value of the remainder by reason of the construction of the improvement in fhe manner proposed. If there are no severance damages,whether or not benefits are determined,there will be no benefits since they can only be offset against severance damages by, reason of California eminent domain valuation law, Severance Damages: No severance damages were found, as the land will retain its market value price after the improvements are completed. Special Benefits: Since no severance damages were found, there can be no offsetting benefits. The above is a summary of my appraisal prepared at the request of, and to be used by,the City of San Juan Capistrano to comply with Code of Civil Procedure section 1255.010. My appraisal, that is the Basis for this summary, was made in accordance with accepted appraisal principles, consistent with California Valuation Law. BY.- .-&. 7�4 DATED: Elizabe .'lGley,.MAI Certified General Appraiser Certificate No.AG005391 Expiration Date:April 13, 2010 Pacrp "I i COMPARABLE LAND SALES SUMMARY August 2008 • ;�����t �� �� �.7 � x ' : ' , ^ ; � tea,.� a� ,�: 5�dt'✓ � 3z6:rt � t.f+,a h, y �.i f y 'k-., �sv"�'�'. - { arr +v�ir :Ar r < �L��xr �. .. ... .,,. •.:; ...:yam.,. .,.:. ..r ._... _ Subject Property 32411 Del Obispo Street. N/A 24,300 N/A RSL'--24,.000 Subject property,good San Juan Capistrano,CA NX . 0.56 N/A location and good view 649-082-20 Land Sale No. 1 31801 Peppeetree Send $1.,062,500 47.916 $22.17 ltSE-40,400 Generally similar to the San Juan Capistrano,CA 12J2007 1..10 649-3.42-09 subject property,similar view Land Sale.No.2, 8 Mar Del Rey $709,400 15,940 $44.48 RI Superior view and gated San Clemente,CA 5/2007 4.37 community,steep 675-174-50 topography Land Sale No.3 4 Via Cancha $800,400 13,600 $58.82 R1 Generally similar to the San Clemente,CA 512007 0.31 subject property in all 675-�72-13 respects,very superior ocean view and gated.community Land Sale No.4 606 E Avenida San Juan $875,000 13,680 $63.96 Residential Superior ocean view San Clemente, CA 3/2007 0.31. 588-201-1.5 G 7Supplementailo. 1 n Juan $699,0flfl 13,b80 $51.10 Residential Re-listing of closed Sale No.4 A Listing 0.31 EXHIBIT B [Notice of Hearing setter on Resolution of Necessity, which.attaches Exhibit l (copy of Government Code section 7267.2) and Exhibit 2 (legal description and site map)] Resolution of Necessity,Public Works Department APN #649-082-020 Page 6 of 6 32400 PASEO ADELANTO '� MEMBERS OF THE CITY COUMOIL SAN JUAN CAPISTRANO,CA 92675 SAM ALLEVATCI (849)483^1171 lRitlAptlARTEtl LAURA FREESE (949)493-1053 FAX • 01AIM D � ��� THOMAS W.HROAR yvwu sa�juanCa islrano.�rg 1776 MARKMELSFN + + DR.LONDRES USC? NOTICE OF HEARING REGARDING INTENT TO ADOPT RESOLUTION OF NECESSITY TO ACQUIRE REAL PROPERTY BY EMINENT DOMAIN, ASSESSOR'S PARCEL NUMBER 649-082-20 (California Code of Civil Procedure Section 1245.235) December 18, 2008 To: Steven P. and Carina M. Hathaway 32011 Del Obispo Street San Juan Capistrano, CA 92675 From: City Council for the City of San Juan Capistrano Dear Steve P. and Carina M. Hathaway: 1. Notice of Intent of the San Juan Capistrano City Council to Adapt a Resolution of Necessity. The City Council intends to consider the adoption of a Resolution. of Necessity on January 20, 2009, that if adopted, will authorize the City of San Juan Capistrano ("City") to acquire the property described herein by eminent tFl .GIP 902 ,_©eI_Wfl:hispo street_Widening-.300'..Sauth_of..,Calle-Aspera.,,to.;400':..-.-,,.,.;.._ North of Calle Aspero and CIP 121- Del Obispo Widening — 400` North of Calle Aspero to Aguacate Road projects (the "Project"). A description of the property being considered for acquisition accompanies the proposed Resolution of Necessity, which is attached hereto and incorporated herein to this Notice hereinafter the ("Property") You are being provided, notice as your name appears on the title and/ or last equalized County of Orange assessment roll. The statutes that authorize the City to acquire the property by eminent domain, includes, but are not limited to, for this proposed project are Streets and Highways Code Section 10102 (street right of way); Government Code Section 54031 (parking), Government Code Section 38730 (water facilities); Streets and Highways Code Section 5100 at seq. (Street Improvement Act acquisitions). 2. Notice of Your Right to Appear and be Heard. Please take notice that the City Council of City, at a regular meeting to be held on January 20,-2009, at 6:30 p.m., or as soon thereafter as the matter may be heard, at 32400 Paseo Adelanto, Sara,Tuan Capistrano: Preserving the Past to Enhance the Future- w� Prlmed or.100%reryc€ad paper Page 2. Steven P. and Canna M. Hathaway Council Chamber, San Juan taapisrano, California, wiEl hold a hearing on whether such a Resolution of Necessity should be adopted, as required by California Cade of Civil Procedure section 4245.220 for the commencement of an eminent domain proceeding to acquire real property. You have a right to appear and be heard before the,City Council at the above scheduled hearing on the following matters and issues, and to have the City Council give judicious consideration to your testimony prior to deciding whether or not to adopt the proposed Resolution of Necessity: a. Whether the public interest and necessity require the proposed 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 property sought to be acquired by eminent domain and described in the Resolution of Necessity is necessary for the proposed project; d. Whether the. offer required by Government Code section 72617.2, subdivisions (a), (b), and. (c), together with the accompanying statement and summary of the basis for the. amount established as just compensation, was actually made to you and whether said offer and statement/ summary were in a form and contained all of the factual information required by Government Code section 7267,2, subdivisions (a), (b), and (c), a copy of which is attached hereto; e. Whether the City has. complied with all conditions and statutory requirements necessary to exercise the power of eminent domain (the "right to take") to acquire the property described herein, as well as any .. .___.. ther_matteregardirtg,:th. -:night Vie.talo.xsaicf..prnpety:.:by_emn.ent.:dorain, ::- and f. Whether the City has the statutory authority to acquire the property by eminent domain. 3. Failure to Filo a Written Request to Be Heard within Fifteen (IS) Days After the Notice was Mailed will Result in Waiver of the Right to Appear and be Heard. If you desire to,be heard, please be advised that you must file a written request with the City Clerk within fifteen,.(45) days after this Notice was mailed. You must file your request to be heard at the San Juan Capistrano City Hall, 32400 Paseo Adelento, San Juan Capistrano, California 92675, Should you elect to mail your request to the City Clerk, it must actually be received by the City Clerk for filing within (45) days after this Notice was mailed. The date the mailing appears at the end of this Notice, California Code of Civil.Procedure section 4245.235(b)(3) provides that "Failure to file a written request to appear and be beard Within fifteen (15) days after the Notice Page 3 Steven P. and Carina..M. Hathaway was mailed will result in waiver of the riga to appear and be heard" on the above matters and issues that are the subject of the hearing. If you elect not to appear and be heard in regard to compensation, your nonappearance will not be a waiver of your right to claim greater compensation in a court of law. The amount to be paid for the property will not be considered by the City Council at this hearing. If you elect not to appear and not be heard, your failure to appear rr+rill be a waiver of your right to later challenge the right of the City to take property by eminent domain." The Notice is not intended to foreclose future negotiations between you and the representatives of the Gity on the amount of compensation to be paid for your.property. If the City Council elects to adopt the Resolution of Necessity, then within sic (6) months of the adoption of .Resolution, the City will commence eminent domain proceedings in Superior Court. In that proceeding, the Court will determine the amount of compensation to which you are entitled. Dated and mailed on December 18, 2008. Dave Adams, City Manager Attachments Copy of Government Code section 7267.2, subdivisions (a), (b), (c) Proposed Resolution of Necessity C: Omar Sandoval Nasser Abbaszadeh Government Code Section 7267.2, subdivisions (a), (b), and (c) (a) Prior to adapting a resolution of necessity pursuant to Section 1245.230 of the Code of Civil Procedure and initiating negotiations for the acquisition of real property, the public entry shall establish an amount which it believes to be just compensation therefore, and shall male an offer to the owner. or owners of record to acquire the property for the full amount so established, unless the owner cannot be located with reasonable diligence. The offer may be conditioned upon the legislative. body's ratification of the offer by.execution of a contract of acquisition or adoption of a resolution of necessity or both. In no event shall the amount be less than the public entity's approved appraisal of the fair market value of the property. Any decrease or increase in the fair market value of real property to be acquired prior to the date of valuation caused by the public improvement for which the property is acquired, or by the likelihood that the property would be acquired for the improvement, other than that due to physical 'deterioration within the reasonable control of the owner or occupant, shall be disregarded in determining the compensation for the property. (b) The public entity shall provide the owner of real property to be acquired with. a written statement of, and summary of the basis for, the amount it established as just compensation. The written statement and summary shall contain detail sufficient to indicate clearly the basis for the offer, including, bort not limited to, all of the fallowing information: (t) The date of valuation, highest and best use, and applicable zoning property.. ( ) The principal transactions, reproduction or replacement cost analysis, or capitalization analysis, supporting the determination of value. (3) Where appropriate, the just compensation for the real property acquired and for damages. to remaining real property shall be separately stated and shall include the calculations and narrative explanation supporting the compensation, including any offsetting benefits. (c) Where the property involved is owner occupied residential property and contains no more than four residential units, the homeowner shall, upon request, be allowed to review a copy of the appraisal upon which the offer is"based. The public entity may, but is not required to, satisfy the written statement, summary, and review requirements of this section by providing the owner a copy of the appraisal on which the offer is based. EXHIBIT 1 EXHIBIT "N' LEGAL DESCRIPTION FOR DEL OBISPO STREET RIGHT OF WAY APN 649-082-20 , THE LAND REFERRED TO HEREIN IS SITUATED IN THE CITY OF SAN JUAN CAPISTRANO, COUNTY OF ORANGE, STATE OF CALIFORNIA. BEING A PORTION OF THE SOUTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 1,TOWNSHIP 8 SOUTH, RANGE 8 WEST", SAN BERNARDINO BASE AND MERIDIAN,AND A PORTION OF LOT 17 IN BLOCK 2 OF SAN JUAN CAPISTRANO, AS PER MAI"' RECORDED IN BOOK 3, PAGE 120 OF MISCELLANEOUS RECORDS OF LOS ANGELES,CALIFORNIA,AND ALSO A PORTION OF PARCEL 72 AS SHOWN ON SHEET- NO. 7 OF SAN JUAN CAPISTRANO AND VICINITY MAP FILED JUNE 9, 1920 IN BOOK 2, PAGE 37 OF RECORDS OF SURVEYS, ORANGE COUNTY, CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE CENTERLINE INTERSECTION'OF CALLE ASPERO AND DEL. OBISPO STREET, AS SHOWN ON A MAP FILED IN BOOK 83, PAGE 42 OF PARCEL MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA; THENCE ALONG THE CENTERLINE OF SAID DEL OBISPO STREET NORTH 34°04'00" EAST A DISTANCE OF 381.43 FEET TO A POINT, SAID POINT BEING THE NORTHEASTERLY CORNER OF PARCEL ? OF SAID PARCEL MAP FILED IN BOOK 83, PAGE 42 OF PARCEL. MAPS; THENCE DEPARTING SAID CENTERLINE AND ALONG THE NORTHEASTERLY LINE OF\SAID PARCEL 2 NORTH 66016'00"WEST A DISTANCE OF 40.66 FEET TO THE NORTHWESTERLY RIGHT-OF-WAY LINE OF DEL OBISPO STREET (FORMERLY Mc KINLEY AVENUE 80 FEET WIDE)AS DESCRIBED IN EASEMENT DEED TO THE CITY OF SAN JUAN CAPISTRANO RECORDED JANUARY 27, 1972 IN BOOK 9980, PAGE 310 OF OFFICIAL. RECORDS AND THE TRUE POINT OF BEGINNING; THENCE CONTINUING ALONG THE NORTHEASTERLY LINE OF SAID PARCEL 2, NORTH 66016'00" WEST A DISTANCE OF 3.05 FEET; THENCE DEPARTING SAID LINE AND ALONG A LINE LYING 3.00 FEET NORTHWESTERLY AND PARALLEL TO ABOVE [DESCRIBED NORTHWESTERLY RIGHT-OF-WAY LINE OF DEL OBISPO STREET, FORTH 34°04'00" EAST A DISTANCE OF 114.06 FEET; THENCE DEPARTING SAID LINE SOUTH 560.16'00" EAST A DISTANCE OF 3,00 .FEET TO .T'HE.ABOVE DESCRIBED NORTHWESTERLY RIGHT•OF-WAY LINE OF DEI, OBISPO STREET; `THENCE ALONG SAID RIGHT OF WAY LINE SOUTH 34°04'00°WEST A DISTANCE OF 113.53 FEET TO THE TRUE POINT OF BEGINNING. CONTAINING AN.AREA OF 341 SQUARE FEET MORE OR LESS ALL AS SHOWN ON EXHIBIT `B' ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF. O ���IaS31a� RAMI? L. STREET R, .C.E. 25083 EXIT S 12-31-09 * CIY Qt's EXHIBIT 2 f/'yyhTC''pp V011 & ,£ g � CJ �r �f Uandov MWO Proposed Easement Location Kiley Company Page 23