HomeMy WebLinkAboutCC AG PKT 2009-09-14 #RAGENDA REPORT
DATE: September 14, 2009
TO: Honorable Mayor and City Council
THRU: David Carmany, City Manager
FROM: Lee Whittenberg, Director of Development Services
SUBJECT: CONSIDERATION OF ADOPTION OF RESOLUTION
OF NECESSITY FOR THE ACQUISITION IN EMINENT
DOMAIN OF CERTAIN REAL PROPERTY FOR PUBLIC
PURPOSES IN CONNECTION WITH THE ACCESS
AND MAINTENANCE PROJECT AT FIRST STREET
AND OCEAN AVENUE
SUMMARY OF REQUEST:
That the City Council:
1. Open and Conduct a hearing on the adoption of the proposed Resolution
of Necessity, receive from staff the evidence stated and referred to in this
Agenda Report ( "Report "), take testimony from any person wishing to be
heard on findings A, B, C, and D below with respect to the proposed
Resolution, and consider all evidence to determine whether to adopt the
proposed Resolution of Necessity.
2. Adopt proposed Resolution No. 5291, A Resolution of Necessity of the
City of Seal Beach Declaring Certain Real Property Necessary for Public
Purposes and Authorizing the Acquisition Thereof in Connection with the
Access and Maintenance Project at First Street and Ocean Avenue.
(Adoption requires a 4 /5ths vote of the entire Council)
3. Authorize Richards, Watson & Gershon to file eminent domain
proceedings to acquire the identified real property interests.
4. Authorize Richards, Watson & Gershon and City staff to file eminent
domain proceedings and to take all necessary steps to deposit with the
Court the amount of probable compensation required by law for issuance
of an Order for Prejudgment Possession.
5. Authorize the City Manager to execute all necessary documents.
Agenda Item R
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BACKGROUND:
The City Council has before it a proposed Resolution of Necessity for the
acquisition by eminent domain of two separate fee interests in the real property
located at First Street and Ocean Avenue in the City of Seal Beach, and
identified as Orange County Assessor's Parcel Numbers 043 - 171 -02 and 043-
172-13 (referred to below as "Subject Property ") in connection with the Access
and Maintenance Project at First Street and Ocean Avenue ( "proposed Project ").
The City seeks to acquire the Subject Property Interests for a public use, namely
to:
(1) maintain public access to the public beach, the Pacific Ocean,
Windsurfer Park, the 1st Street parking lot and the River's End Cafe,
and
(2) to maintain an existing city sewer line, and all uses necessary or
convenient thereto.
The City has the authority to acquire the Subject Property Interests for the
proposed Project pursuant to the authority conferred upon the City of Seal Beach
to acquire real property by eminent domain by California Constitution, Article I,
Section 19, California Government Code Sections 37350, 37350.5, 37351,
40401, 40404, California Code of Civil Procedure Section 1230.010 et seq.
(Eminent Domain Law), including, but not limited to Sections 1240.010,
1240.020, 1240.110, 1240.120, 1240.510, 1240.610, 1240.650, 1245.250, and
other provisions of law.
The proposed Project would transfer the ownership of a private roadway located
on the Subject Property to the City to be used as a public roadway ( "Access
Road ") to maintain access to the public beach, the Pacific Ocean, Windsurfer
Park, the River's End Cafe, and the 1st Street parking lot which are used by
people visiting the aforementioned locations and facilities. The proposed Project
would also allow the City to acquire a parcel adjacent to the Access Road so that
the City may maintain an existing city sewer line ( "Sewer Maintenance Parcel ").
The Subject Property is bordered to the north by Marina Drive, a thoroughfare
that connects the City with the City of Long Beach. To the south of the Subject
Property is the Pacific Ocean. The Subject Property is bordered to the east by
1 st Street, a local road that connects Pacific Coast Highway to the beach. To the
west is the San Gabriel River.
Access Road
The Subject Property was previously owned by the Los Angeles Department of
Water and Power ( "DWP "). On November 16, 1955, DWP and the City entered
into a license agreement whereby DWP gave the City permission to construct
and maintain a roadway over and across DWP's property. The license period
commenced on December 1, 1955 and was set to last for an "indefinite period."
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Soon thereafter the City constructed the roadway and parking lot. The roadway
that was constructed is the Access Road that the City now seeks to acquire.
On June 22, 1967, the State of California and the City entered into a Tidelands
Lease Agreement ( "Tidelands Lease ") whereby the State leased land .to the City
situated along the ocean front of the Pacific Ocean for a period of forty -nine
years, commencing on June 22, 1967 and terminating on June 22, 2016. The
land governed by the Tidelands Lease is adjacent to the Subject Property. The
Tidelands Lease specified that the leased premises was to be used for beaches,
marine parks, marinas, small boat harbors, bulkheads, piers, marine
transportation facilities, public utilities, earthfills, buildings, structures, recreational
facilities, landscaping, parking lots, streets and roadways for public access to the
leased premises, and related facilities for the benefit of the people of State of
California. The Tidelands Lease could only be terminated by the mutual consent
of both parties. The City is currently in the process of negotiating an extension to
the Tidelands Lease.
On or about April 22, 1996, the City and Michael E. Balchin entered into a lease
agreement whereby the City leased to Mr. Balchin the concession building
located in the City's First Street Beach Complex for the operation of the River's
End Cafe. On March 10, 2008, the City and Mr. Balchin executed another lease
allowing for the continued operation of the River's End Cafe on the City premises
until April 30, 2012. Along with the construction of the River's End Cafe, the City
constructed public bathrooms and developed Windsurfer Park.
The Tidelands Lease covers land upon which the 1st Street parking lot, River's
End Cafe, Windsurfer Park, and public bathrooms are located. The 1st Street
parking lot is primarily used by visitors to the public beach and also provides
parking for the River's End Cafe. The parking lot was constructed in the mid -
1950s, and for many years, vehicular traffic has accessed this parking lot through
an extension of 1 st Street that is located on the Subject Property. The only
feasible way to access the portion of the beach between 1 st Street and Ocean,
and the Pacific Ocean, the 1st Street parking lot, River's End Cafe, public
restrooms and Windsurfer Park is by way of the Access Road.
The 1st Street parking lot is currently owned by the State of California and is
operated by the City. The parking lot has 113 spaces, including handicapped
parking spaces as required by law. Although the number of visitors to the 1st
Street parking lot is unknown, the City estimates that approximately 1.5 to 2
million people visit the City beaches in a single year.
In 2003, Bay City Partners, LLC purchased the Subject Property from DWP. On
August 15, 2007, Bay City Partners, LLC executed a Notice of Permissive Public
Use whereby it granted to the public for public access and recreational purposes,
permission to use portions of their property, including the Access Road. The
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Notice of Permissive Public Use may be revoked at any time. Thus far, the City
has been unable to negotiate a purchase of the Access Road.
Sewer Maintenance Parcel
The City provides sewer services for approximately 5,000 customers in the
northeast and southwest sections of the City and at the Sunset Aquatic Park.
There currently exists an 8 -inch sewer line that runs underneath a portion of the
Subject Property. The sewer was originally constructed by the City around 1915
and has been operating ever since. The City staff, however, has not found
evidence that an easement has been recorded as to the sewer line. The City
must have access to the sewer line in order to perform routine and regular
maintenance of the sewer line. The sewer line serves approximately 45 houses
in addition to the River's End Cafe, public restrooms, and the City's Beach
Maintenance Building in the 1 st Street parking lot. If the City were denied access
to the sewer line, it could jeopardize the public health and safety because a
sewage leak or spill that could have been prevented may occur. Moreover, if the
City is denied emergency access and there is a sewage leak or spill, there is the
risk that raw sewage could seep into the groundwater, under adjacent residential
property and into San Gabriel River or the Pacific Ocean. Thus far, the City has
been unable to negotiate a purchase of the rights pertaining to the sewer.
Consistency with General Plan
The proposed Project is consistent with the City's General Plan goals, objective
and policies. The Land Use Element of the General Plan discusses how the
City's coastal setting distinguishes it from adjacent communities. The General
Plan specifically states that "[t]he shoreline, one of the City's most valuable
assets, shall be maintained and improved to provide maximum benefits to
residents and visitors." (See LU -36). The Open Space /Recreation /Conservation
Element of the General Plan further acknowledges that "[t]he shoreline of Seal
Beach is considered to be of regional significance." (See OS -6). Therefore,
maintaining access to the shoreline is critical, which is precisely what the
acquisition of the Access Road will ensure.
The proposed Project is located in the Los Angeles Department of Water and
Power ( "DWP ") Specific Plan area. The General Plan identifies that one of the
purposes of the DWP Specific Plan area is to "designate the southern portion of
the site for open space uses such as public parks, greenbelts, bike, and nature
trails, and other passive recreational uses." (See LU -40). The purpose of the
DWP Specific Plan area cannot be realized if the general public is denied access
to the public beach, Windsurfer Park, and the Pacific Ocean because these land
uses allow residents and visitors to engage in active and passive recreational
uses.
The proposed Project is also consistent with the Circulation Element of the City's
General Plan. The Circulation Element identifies that one of the City's goals is to
"provide and maintain a comprehensive circulation system that facilitates the
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efficient movement of people and goods throughout the City and near open
space habitats for wildlife, while minimizing environmental impacts (including air,
light, and noise pollution." (See C -48). The General Plan identifies a number of
objectives to meet this goal including providing adequate capacity for the City's
circulation needs. (See C -49). It's policy to meet that objective includes
"develop[ing] a circulation system that enhances environmental amenities and
scenic areas." (See C -49). Here, the proposed Project would meet the
Circulation Element's goal, policy and objective because it would ensure that
visitors and residents maintain access to the City's public beach, Windsurfer
Park, and the Pacific Ocean.
The proposed Project is also consistent with the Circulation Element's goal of
"provid[ing] a circulation system that supports existing, approved, and planned
land uses throughout the City while maintaining a desired Level of Service on all
streets and at all intersections." (See C -50). Acquiring the Access Road will
permit the City to continue to support the existing land uses such as the public
beach, Windsurfer Park, and the River's End Cafe.
The General Plan and DWP Specific Plan are incorporated herein by this
reference.
Findings
In order to adopt the proposed Resolution of Necessity with respect to the
Subject Property Interests, the City Council must find and determine that:
A. The public interest and necessity require the proposed Project;
B. 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;
C. The Subject Property Interests described in the Resolution of Necessity
are necessary for the proposed Project; and
D. The City has made an offer as required by Government Code Section
7267.2 to each of the owners of record of the Subject Property.
The amount of just compensation is not an issue before the City Council at this
hearing. This hearing relates to Findings A, B, C and D above.
DISCUSSION:
1. Property Description
The Access Road and Sewer Maintenance Parcel are located on a portion of the
Subject Property which has a total site area of 408,731 square feet. The Subject
Property is located in the DWP Specific Plan area. The DWP Specific Plan was
adopted in April 1982 and was revised on March 11, 1996 pursuant to Resolution
Number 4444. The two principal land use categories within the Specific Plan area
include visitor - serving land uses and open -space uses. The visitor - serving land
uses include a hotel and the necessary ancillary support uses, including, but not
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limited to, restaurants, retail uses, service uses, meeting/conference rooms and
banquet facilities. The open space uses are defined as public parks, green belts,
bike trails, nature trails, hiking trails and any passive recreational uses normally
located in parks or open spaces. No building or active recreation facilities may be
located within the open space area. The Subject Property is divided by the DWP
Specific Plan into a northerly buildable area and a southerly open space area. The
northerly buildable area is comprised of 122,619 square feet and the southerly
open space area is comprised of 286,112 square feet. The property that is
described in the legal description attached to the resolution of necessity is entirely
within the southerly area designated in the Specific Plan as open space.
Until 1967, there was a multi -story power plant owned and operated by the DWP
located at the site. In about 1959, the portion of Ocean Avenue west of the west
line of First Street was vacated and included in the DWP ownership. The power
plant was demolished in 1967, and between that time and the present, the
Subject Property has stood unused and vacant. In 2003, the current owner Bay
City Partners, LLC, purchased the Subject Property.
The Subject Property is bordered to the north by Marina Drive, a thoroughfare that
connects the City with the City of Long Beach. To the south of the Subject Property
is the Pacific Ocean. The Subject Property is bordered to the east by 1 st Street, a
local road that connects Pacific Coast Highway to the beach. To the west is the
San Gabriel River.
The Subject Property is also adjacent to the 1 st Street parking lot, Windsurfer Park,
and the River's End Cafe. The 1 st Street parking lot is used primarily by people
visiting the public beach, Windsurfer Park, and the Pacific Ocean, although patrons
of the River's End Cafe use the lot the lot as well.
2. Project Description
The proposed Project would transfer the ownership of a forty -foot wide private
roadway to the City to be used as a public roadway ( "Access Road "). The
Access Road is located perpendicular to Marina Drive and Ocean Avenue, and
extends approximately 240 feet southerly of the intersection of Ocean Avenue
and 1 st Street, which are public streets. The Access Road traverses property
owned by Bay City Partners, LLC. The Access Road is the only feasible means
to access the public beach, the Pacific Ocean, 1st Street parking lot, the public
restrooms, Windsurfer Park and River's End Cafe. Therefore, it is necessary for
the City to acquire the Access Road in order to ensure that the general public
continues to have access to the aforementioned locations.
The proposed Project would also allow the City to acquire a parcel adjacent to
the Access Road so that the City may maintain an existing City sewer line. The
sewer line is owned and operated by the City and serves approximately 46
houses in addition to the River's End Cafe, public restrooms, and the City's
Beach Maintenance Building in the 1 st street parking lot. It is necessary for the
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City to acquire the parcel adjacent to the Access Road in order to ensure that the
sewer facilities are accessible for both routine maintenance and emergency
maintenance.
3. Environmental Analysis
The City considered the potential environmental effects of the proposed Project
pursuant to the requirements of the California Environmental Quality Act
( "CEQA "), Public Resources Code Section 21000 et seq., and the CEQA
Guidelines, 14 Cal. Code Regs Section 15000 et seq. The City determined that
the proposed Project was Categorically Exempt pursuant to 12 Cal. Code of
Regs Sections 15301 and 15061(b)(3) because it merely transfers ownership of
interest in land to the City and because it has no possibility of a physical impact.
On April 13, 2009, the City recorded a Notice of Exemption with the Orange
County Recorder's Office. The Notice of Exemption is incorporated herein by
this reference, and a copy is provided as Attachment B.
4. City's Actions Pursuant to Government Code Section 7260 et seq.
Pursuant to California Government Code Section 7262 et seq., the City of Seal
Beach obtained a fair market value appraisal of the Subject Property Interests
that used a date of value of December 18, 2008. The City set just compensation
in accordance with the fair market value and extended a written offer on March
17, 2009, to the owner of record, Bay City Partners, LLC, to purchase the Subject
Property Interests pursuant to Government Code Section 7267.2. Please refer to
Attachment C to review the March 17, 2009 letter.
The City utilized the services of Roger Cunningham of SECLAND to attempt to
negotiate a purchase with Bay City; however, as of September 14, 2009, the
parties had not reached an agreement for the City's acquisition of the Subject
Property Interests and it is therefore necessary for the City Council to consider
the adoption of the proposed Resolution of Necessity authorizing the acquisition
of the Subject Property Interests by eminent domain at this time. On August 24,
2009 the City provided written notice to the record owner of the City Council's
intent to consider the adoption of the proposed Resolution of Necessity at its
September 14, 2009 meeting as required by Code of Civil Procedure Section
1245.235. Please refer to Attachment D to review the August 24, 2009 letter.
EVIDENCE IN SUPPORT OF FINDINGS
A. The Public Interest and Necessity Require the Proposed Project
1. Access Road
The public interest and necessity require the acquisition of the Access
Road because it is the only way to ensure that the City residents and
visitors maintain access to the Access Road. The Access Road is the
only feasible means to access the public beach, the Pacific Ocean, the 1 st
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Street parking lot, the public restrooms, Windsurfer Park, and the River's
End Cafe. If the Access Road were closed to public use, the City's
residents and tourists would not have any access to the public beach, the
Pacific Ocean, the 1 st Street parking lot, the public restrooms, Windsurfer
Park, and River's End Cafe. Therefore, it is necessary for the City to
acquire the Access Road in order to ensure that the general public
continues to have access to the aforementioned locations.
The beach is one of the main tourist attractions in the City and is one of
the City's most valuable resources, as recognized by the General Plan.
As noted in the Open Space /Recreation /Conservation Element of the
General Plan "[t]he shoreline of Seal Beach is considered to be of regional
significance." (See OS -6). Therefore, maintaining access to the shoreline
is critical, because it serves the recreational needs of the City residents
and visitors.
Moreover, it is necessary to acquire the Access Road in order to realize
the goals identified in the Land Use Element of the General Plan. The
General Plan identifies that one of the purposes of the DWP Specific Plan
area is to "designate the southern portion of the site for open space uses
such as public parks, greenbelts, bike, and nature trails, and other passive
recreational uses." (See LU- 40). The purpose of the DWP Specific Plan
area cannot be realized if the general public is denied access to the public
beach, and Windsurfer Park. The only way to ensure that access is
maintained is for the City to acquire the Access Road.
The proposed Project is also consistent with the Circulation Element of the
City's General Plan. The Circulation Element identifies that one of the
City's goals is to "provide and maintain a comprehensive circulation
system that facilitates the efficient movement of people and goods
throughout the City and near open space habitats for wildlife, while
minimizing environmental impacts (including air, light, and noise pollution."
(See C -48). The General Plan identifies a number of objectives to meet
this goal including providing adequate capacity for the City's circulation
needs. (See C -49). It's policy to meet that objective includes
"develop[ing] a circulation system that enhances environmental amenities
and scenic areas." (See C -49). Here, the proposed Project would meet
the Circulation Element's goal, policy and objective because it would
ensure that visitors and residents maintain access to the City's public
beach, Windsurfer Park, and the Pacific Ocean.
The proposed Project is also consistent with the Circulation Element's
goal of "provid[ing] a circulation system that supports existing, approved,
and planned land uses throughout the City while maintaining a desired
Level of Service on all streets and at all intersections." (See C -50).
Acquiring the Access Road will permit the City to continue to support the
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existing land uses such as the public beach, Windsurfer Park, and the
River's End Cafe. Thus, the public interest and necessity require the
acquisition of the Access Road.
2. Sewer Maintenance Parcel
The public interest and necessity also require the acquisition of the Sewer
Maintenance Parcel. An 8 -inch sewer line currently runs underneath the
Subject Property. The sewer was originally constructed by City around
1915 and has been operating ever since. The City staff, however, has not
found evidence that an easement has been recorded as to the sewer line.
The City must have access to the sewer line in order to perform routine
and regular maintenance of the sewer line, as well as for emergency
maintenance of the sewer line. The City needs access from the roadway
because of the large equipment that is needed to maintain and repair a
sewer line.
The sewer line serves approximately 45 houses in addition to the River's
End Cafe, public restrooms, and the City's Beach Maintenance Building in
the 1 st Street parking lot. If the City were denied access to the sewer line,
it could jeopardize the public health and safety because a sewage leak or
spill that could have been prevented may occur. Moreover, if the City is
denied emergency access and there is a sewer leak or seepage, there is
the risk that raw sewage could seep into the groundwater, under adjacent
residential property and into the Pacific Ocean. Therefore, the public
interest and necessity require the acquisition of the Sewer Maintenance
Parcel.
B. The Proposed Project is Located in the Manner that will be Most
Compatible with the Greatest Public Good and the Least Private
Injury
1. Access Road
The proposed Project is located in a manner that will be most compatible
with the greatest public good because the City needs to maintain public
access to the Access Road. The Access Road is the only feasible means
to access the public beach, the Pacific Ocean, Windsurfer Park, the 1st
Street parking lot, and River's End Cafe. If the Access Road were closed
to public use, the City's residents and tourists would not have any access
to Windsurfer Park and the portion of the public beach that is located
adjacent to the DWP site.
The beach is one of the main tourist attractions in the City and is one of
the City's most valuable resources, as recognized by the General Plan.
As noted in the Open Space /Recreation /Conservation Element of the
General Plan "[t]he shoreline of Seal Beach is considered to be of regional
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significance." (See OS -6). Therefore, maintaining access to the shoreline
is critical, because it serves the recreational needs of the City residents
and visitors. The acquisition of the Access Road is also necessary to
achieve the goals and objectives set forth in the Land Use Element and
Circulation Element of the General Plan.
The acquisition of the Access Road will result in the least private injury
because the City is only acquiring the property interests that are necessary
for the Proposed Project, which is the existing road. The City is not seeking
to acquire additional land to expand the road. Instead, it seeks to transfer
the legal title to the Access Road, which is currently used by the tgeneral
public, to ensure that the public continues to have the right to use the road.
The City balanced the public benefit and the private injury before concluding
that the acquisition of the Access Road is most compatible with the greatest
public good and the least private injury. As noted above, the access road
has existed at its present location for over 50 years. Not only is it the most
direct route to the parking lot, but also it is the most environmentally sound.
The property owner has suggested "relocating the gate" presumably
easterly, but there simply is not enough space to relocate the alignment of
the existing road. Just east of the existing configuration of the road is the
sliver of property needed for access to the City's sewer line and, further east,
private property containing a single - family residence within 3 -6 feet of the
current road. The sliver of property is encumbered by a sewer line, a gas
line and structures housing petroleum facilities associated with off -shore
drilling operations at Platform Esther. In addition, there are several mature
palm trees in this area that would require removal. Even if it were possible
to remove the trees and relocate any of the above - mentioned facilities,
relocating the current road easterly might allow the property owner to
maintain ownership of, at best a couple of additional feet in width.
The City considered the only other possible points of access: (1) An
extension and widening of Second Street and construction of a new road
from such extension to the First Street parking lot (Alternative 1); and (2)
The installation of a new road on the beach approximately 2100 feet in
length starting at the existing Main Street beach parking lot and spanning 45
private properties before reaching the First Street parking lot (Alternative 2).
In each case, the new access would travel through an environmentally
sensitive habitat area (ESHA) consisting of a series of natural sand dunes
and several palm trees. With respect to both alternatives, the ESHA would
be significantly impacted and the palm trees would have to be removed.
These alternatives adversely impact the environment, precious coastal
resources, public access to the beach and private properties. As a threshold
issue, it is extremely doubtful the Coastal Commission would approve the
relocation of the access to the First Street lot to a location that removes
precious coastal resources. Indeed, the distance from the Main Street
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parking lot to the First Street Lot is approximately 2100 feet in length, and
spans the back of approximately 45 private properties. Under City
standards, any new road would need to be 40 feet wide. Removing a 40
foot wide swath of beach habitat 2100 feet long (or even 80 feet long, to
connect 2 nd Street to the parking lot) is patently inconsistent with the Coastal
Act's goals of preserving and maintaining public access to the shore. Any
beach frontage road parallel to Ocean Avenue would adversely affect
access to the beach, both from the homes adjacent to the beach and from
the general public. With the construction of a road separating the beach
from the private properties adjacent to the beach, the owners of such private
properties would no longer have beachfront property, and their property
values would decrease due to the traffic, noise and pollution generated by
traffic on the new street. Extending Second Street would likewise injure
private property because, in its current condition, the existing alley is only 25
feet wide and would have to be widened to accommodate two -way beach
traffic. Private property might have to be used for such widening. In that the
existing properties adjacent to the alley have 3 -5 feet setbacks from the
alley, any widening (even if possible) is likely to make such developed
properties non - conforming.
In addition to these long -term adverse impacts, construction of a new road
would have short -term effects during construction. Access to the beach
would be curtailed for City residents and tourists, and those residents who
live on Ocean Avenue would be disturbed by noise, dirt and other
construction features. Upon balancing the public good and private injury, it
is clear that a new road would create a far greater injury to the public and
adjacent private properties than keeping the road where it has been located
for at least 50 years.
The City also considered the alternative of not acquiring the Access Road.
This alternative is not compatible with the greatest public good because
there is no guarantee that the public can continue to use the access road.
As noted above, Bay City Partners, LLC has the right to revoke access to
the road at any time. If the Access Road were closed down to public use,
the City's residents and tourists would not have any access to the public
beach, the Pacific Ocean, Windsurfer Park, the 1st Street parking lot, and
River's End Cafe.
2. Sewer Maintenance Parcel
The proposed Project is also located in a manner that will be most
compatible with the greatest public good because the City needs to maintain
access to the existing sewer system. The City's sewer line serves
approximately 46 houses in addition to the River's End Cafe, public
restrooms, and the City's Beach Maintenance Building in the 1 st street
parking lot. If the City were denied access to the sewer line, it could
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jeopardize the public health and safety because a sewage leak or spill that
could have been prevented by routine maintenance could occur. Moreover,
if the City is denied emergency access and there is a sewer leak or
seepage, there is the risk that raw sewage could seep into the groundwater,
under adjacent residential property and into the Pacific Ocean or the San
Gabriel River.
The acquisition of the Sewer Maintenance Parcel will result in the least
private injury because the City will be acquiring the entire parcel in fee and
therefore will be compensating the property owner for the entire area. The
City currently has a sewer line that runs underneath the Sewer Maintenance
Parcel that was built around 1915. However, there is no evidence that an
easement has been recorded to document the City's right to maintain the
sewer line. Arguably, the City has obtained an easement by prescription
that permits it to have the sewer line on the Sewer Maintenance Parcel as
well as maintain it. However, as a sign of good faith, the City has offered the
property owner compensation for the property interest.
There are no feasible alternatives to acquiring the Sewer Maintenance
Parcel. The sewer line has had the same configuration since 1915, aligned
with the right of way for Seal Way. The existing manhole is located in a
sliver of unoccupied, undeveloped land unobtrusively nestled between the
existing road and private property. It is cost prohibitive (and potentially
disruptive to all the City residents hooked into the current sewer system) to
excavate the existing sewer system and to relocate it to another location.
The City also considered the alternative of not acquiring the Sewer
Maintenance Parcel. This alternative is not compatible with the greatest
public good because there is no guarantee that the City can access the
sewer line for emergency repair or routine maintenance.
C. The Subject Property Interest Described in the Resolution of
Necessity Are Necessary for the Proposed Project
The Subject Property Interests described in the resolution of necessity are
necessary for the proposed Project because the City is seeking to acquire
precisely the area of the Access Road and the Sewer Maintenance Parcel.
The City is not taking any more property than is necessary to maintain
access to the Access Road and to ensure it's ability to maintain the City's
existing sewer line. Without the acquisition of the Access Road the City
would be unable to guarantee that the City's residents and visitors
continue to have access to the public beach, the Pacific Ocean,
Windsurfer Park, the 1st Street parking lot, and the River's End Cafe. In
addition, without the acquisition of the Sewer Maintenance Parcel, the City
would be unable to maintain the existing sewer line that services
approximately 46 houses in addition to the River's End Cafe, public
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restrooms, and the City's Beach Maintenance Building in the 1st Street
parking lot. This could place the public health and safety in jeopardy
because a sewage leak or spill that could have been prevented by routine
maintenance could occur.
D. The City Has Made The Offer Required by Section 7267.2 of the
Government Code to the Owner of Record of the Real Property
Interests the City Seeks to Acquire
Pursuant to California Government Code Section 7262 et seq., the City of
Seal Beach obtained a fair market value appraisal of the Subject Property
Interests that used a date of value of December 18, 2008. The City set
just compensation in accordance with the fair market value and extended
a written offer on March 17, 2009 to the owner of record, Bay City
Partners, LLC, to purchase the Subject Property Interests pursuant to
Government Code Section 7267.2.
The City's offer letter included a copy of an information pamphlet providing
an overview of the eminent domain process and of the property owners'
rights as required by Government Code Section 7267.2. The City's offer
letter also informed the property owner that because the City's public use
of the Subject Property Interests is scheduled to begin as soon as the City
acquires the necessary property interests for the proposed Project, the
City would not offer a leaseback agreement for the Subject Property
Interests pursuant to Code of Civil Procedure Section 1263.615. Further,
the City offered to pay the property owner its reasonable costs, up to
$5,000, for an independent appraisal of the Subject Property as required
by Code of Civil Procedure Section 1263.025. It informed the owner that
an appraiser licensed by the Office of Real Estate Appraisers must
prepare the independent appraisal. As of September 14, 2009, the City
has not received either a copy of an invoice from an appraiser or
declaration from the owners indicating that they have obtained an
independent appraisal of the Subject Property Interests. A true and
correct copy of the offer letter is on file with the City and is incorporated in
this Report by this reference.
FISCAL IMPACT:
The acquisitions will be funded by City Sewer Capital Funds.
RECOMMENDATION:
That the City Council:
1. Open and Conduct a hearing on the adoption of the proposed Resolution
of Necessity, receive from staff the evidence stated and referred to in this
Agenda Report ( "Report "), take testimony from any person wishing to be
Page 14
heard on findings A, B, C, and D with respect to the proposed Resolution,
and consider all evidence to determine whether to adopt the proposed
Resolution of Necessity.
2. If the City Council finds, based upon the evidence contained and referred
to in this Report, the testimony and comments received at this hearing,
and all written testimony submitted to the City Council, that the evidence
warrants the necessary findings with respect to the proposed Resolution
of Necessity, then staff recommends that the City Council, in the exercise
of its discretion, adopt proposed Resolution No. 5291, A Resolution of
Necessity of the City of Seal Beach Declaring Certain Real Property
Necessary for Public Purposes and Authorizing the Acquisition Thereof in
Connection with the Access and Maintenance Project at First Street and
Ocean Avenue (requires a 4 /5ths vote of the entire Council).
3. Authorize Richards, Watson & Gershon to file eminent domain
proceedings to acquire the following real property interests from the real
property located at First Street and Ocean Avenue in the City of Seal
Beach, and identified as Orange County Assessor's Parcel Numbers 043-
171 -02 and 043 - 172 -13:
❑ The acquisition in fee of approximately 10,768 square feet for an
access road and all uses necessary or convenient thereto; and
❑ The acquisition in fee of approximately 10,233 square feet for the
maintenance of a sewer line and all uses necessary or convenient
thereto.
4. The 10,768 square feet fee interest for an access road is legally described
in Exhibit 1 A" and depicted in Exhibit "1 B" to the Resolution of Necessity.
The 10,233 square feet fee interest for the maintenance of a sewer line is
legally described in Exhibit "2A" and depicted in Exhibit "213" to the
Resolution of Necessity. Said Resolution and its Exhibits "1A," "1B," "2A,"
and "213" are attached hereto and incorporated in this Report by this
reference. The aforementioned property interests will be referred to
collectively as Subject Property Interests.
5. Authorize Richards, Watson & Gershon and City staff to file eminent
domain proceedings and to take all necessary steps to deposit with the
Court the amount of probable compensation required by law for issuance
of an Order for Prejudgment Possession.
6. Authorize the City Manager to execute all necessary documents
SUBMITTED BY: NOTED AND APPROVED:
� A'le I /)
G � ` ��
e Whittenberg D avid Carmally
Director of Development Services City Manager
Page 15
Attachments: (5)
Attachment A: Resolution No. 5291
Attachment B: Notice of Exemption dated April 13, 2009
Attachment C: Offer to Purchase letter to Bay Cities Partner's LLC, dated March
17, 2009
Attachment D: Notice Pursuant to Code of Civil Procedure Section 1245.235,
dated August 24, 2009
Attachment E: Exhibits 1 A, 1 B, 2A and 2B
Attachment F: Notice of Intent to Appear Before the City of Seal Beach
Page 16
ATTACHMENT A
RESOLUTION NUMBER 5291
RESOLUTION NUMBER 5921
A RESOLUTION OF NECESSITY OF THE CITY OF SEAL
BEACH DECLARING CERTAIN REAL PROPERTY INTERESTS
NECESSARY FOR PUBLIC PURPOSES AND AUTHORIZING
THE ACQUISITION THEREOF, IN CONNECTION WITH THE
ACCESS AND MAINTENANCE PROJECT AT FIRST STREET
AND OCEAN AVENUE
THE CITY OF SEAL BEACH DOES HEREBY RESOLVE, FIND, DETERMINE
AND ORDER AS FOLLOWS:
Section 1. The City of Seal Beach is a Charter City, in the County of
Orange, State of California.
Section 2. The real property interests described in Section 3 of this
Resolution are to be taken for a public use, namely to (1) maintain public access
to the public beach, the Pacific Ocean, Windsurfer Park, the 1st Street parking lot
and the River's End Caf6, and (2) to maintain an existing city sewer line, and all
uses necessary or convenient thereto. The real property interests will be taken
from property located at First Street and Ocean Avenue in the City of Seal
Beach, and identified as Orange County Assessor's Parcel Numbers 043 - 171 -02
and 043 - 172 -13 (referred to below as "Subject Property") in connection with the
Access and Maintenance Project at First Street and Ocean Avenue ( "proposed
Project "). The City has the authority to acquire the property interests for the
proposed Project pursuant to the authority conferred upon the City of Seal Beach
to acquire real property by eminent domain by California Constitution, Article I,
Section 19, California Government Code Sections 37350, 37350.5, 37351,
40401, 40404, California Code of Civil Procedure Section 1230.010 et seq.
(Eminent Domain Law), including, but not limited to Sections 1240.010,
1240.020, 1240.110, 1240.120, 1240.510, 1240.610, 1240.650, 1245.250, and
other provisions of law.
Section 3. The City seeks to acquire the following property interests
from the Subject Property:
❑ The acquisition in fee of approximately 10,768 square feet for an access
road and all uses necessary or convenient thereto; and
❑ The acquisition in fee of approximately 10,233 square feet for the
maintenance of a sewer line and all uses necessary or convenient thereto.
The 10,768 square feet fee interest for an access road is legally described
in Exhibit 1 A" and depicted in Exhibit 1 B" to this Resolution of Necessity. The
10,233 square feet fee interest for the maintenance of a sewer line is legally
described in Exhibit "2A" and depicted in Exhibit "213" to this Resolution of
Necessity. The aforementioned property interests will be referred to collectively
as Subject Property Interests.
Section 4. The proposed Project would transfer the ownership of a
private roadway located on the Subject Property to the City to be used as a
public roadway ( "Access Road "). The proposed Project would also allow the City
to acquire a parcel adjacent to the Access Road so that the City may maintain an
existing city sewer line ( "Sewer Maintenance Parcel ").
The acquisition of the Access Road is needed because it is the only way
to ensure that City residents and visitors maintain access to the Access Road.
The Access Road is the only feasible means to access the public beach, the
Pacific Ocean, Windsurfer Park, the 1st Street parking lot, and River's End Cafe.
If the Access Road were closed to public use, the City's residents and tourists
would not have any access to the public beach, the Pacific Ocean, Windsurfer
Park, the 1st Street parking lot, and River's End Cafe. Therefore, it is necessary -
Resolution Number 5921
for the City to acquire the Access Road in order to ensure that the general public
continues to have access to the aforementioned locations.
The acquisition of the Access Road would further the goals, objectives
and policies set forth in the City's General Plan. The beach is one of the main
tourist attractions in the City and is one of the City's most valuable resources, as
recognized by the General Plan. As noted in the Open
Space /Recreation /Conservation Element of the General Plan "[t]he shoreline of
Seal Beach is considered to be of regional significance." (See OS -6). Therefore,
maintaining access to the shoreline is critical, because it serves the recreational
needs of the City residents and visitors.
Moreover, it is necessary to acquire the Access Road in order to realize
the goals identified in the Land Use Element of the General Plan. The General
Plan identifies that one of the purposes of the DWP Specific Plan area is to
"designate the southern portion of the site for open space uses such as public
parks, greenbelts, bike, and nature trails, and other passive recreational uses."
(See LU- 40). The purpose of the DWP Specific Plan area cannot be realized if
the general public is denied access to the public beach, and Windsurfer Park.
The only way to ensure that access is maintained is for the City to acquire the
Access Road.
The proposed Project is also consistent with the Circulation Element of the
City's General Plan. The Circulation Element identifies that one of the City's
goals is to "provide and maintain a comprehensive circulation system that
facilitates the efficient movement of people and goods throughout the City and
near open space habitats for wildlife, while minimizing environmental impacts
(including air, light, and noise pollution." (See C -48). The General Plan identifies
a number of objectives to meet this goal including providing adequate capacity
for the City's circulation needs. (See C -49). Its policy to meet that objective
includes "develop[ing] a circulation system that enhances environmental
amenities and scenic areas." (See C -49). Here, the proposed Project would
meet the Circulation Element's goal, policy and objective because it would
ensure that visitors and residents maintain access to the City's public beach,
Windsurfer Park, and the Pacific Ocean.
The proposed Project is also consistent with the Circulation Element's
goal of "provid[ing] a circulation system that supports existing, approved, and
planned land uses throughout the City while maintaining a desired Level of
Service on all streets and at all intersections." (See C -50). Acquiring the Access
Road will permit the City to continue to support the existing land uses such as the
public beach, Windsurfer Park, and the River's End Caf6. Thus, the public
interest and necessity require the acquisition of the Access Road.
The acquisition of the Sewer Maintenance Parcel is needed because an 8-
inch sewer line currently runs underneath a portion of the Subject Property. The
sewer was originally constructed by the City around 1915 and has been
operating ever since. City staff could find no evidence that an easement has
been recorded as to the sewer line. The City must have access to the sewer line
in order to perform routine and regular maintenance of the sewer line, as well as
for emergency maintenance of the sewer line. The City needs access from the
roadway because of the large equipment that is needed to maintain and repair a
sewer line.
The sewer line serves approximately 46 houses in addition to the River's
End Cafe, public restrooms, and the City's Beach Maintenance Building in the 1st
Street parking lot. If the City were denied access to the sewer line, it could
jeopardize the public health and safety because a sewage leak or spill that could
have been prevented may occur. Moreover, if the City is denied emergency
access and there is a sewer leak or seepage, there is the risk that raw sewage
could seep into the groundwater, under adjacent residential property and into the
San Gabriel River and the Pacific Ocean.
Resolution Number 5921
Section 5. The City considered the potential environmental effects of
the proposed Project pursuant to the requirements of the California
Environmental Quality Act ( "CEQA "), Public Resources Code Section 21000 et
seq., and the CEQA Guidelines, 14 Cal. Code Regs Section 15000 et seq. The
City determined that the proposed Project was Categorically Exempt pursuant to
12 Cal. Code of Regs Sections 15301 and 15061(b)(3) because it merely
transfers ownership of interest in land to the City and because it has no
possibility of a physical impact. On April 13, 2009, the City recorded a Notice of
Exemption with the Orange County Recorder's Office. The Notice of Exemption
is incorporated herein by this reference.
Section 6. Pursuant to California Government Code Section 7262 et
seq., the City obtained a fair market value appraisal of the Subject Property
Interests that used a date of value of December 18, 2008. The City set just
compensation in accordance with the fair market value and extended a written
offer on March 17, 2009, to the owner of record to purchase the Subject Property
Interests pursuant to Government Code Section 7267.2. The City's offer letter
also included an informational pamphlet describing the eminent domain process
and the owner's rights. The City further offered to pay the property owner the
reasonable costs, up to $5,000.00, for an independent appraisal of the Subject
Property Interests pursuant to Code of Civil Procedure Section 1263.025.
Section 7. On August 24, 2009 the City provided written notice to the
record owner of the City Council's intent to consider the adoption of the proposed
Resolution of Necessity at its September 14, 2009 meeting as required by Code
of Civil Procedure Section 1245.235.
Section 8. The City Council of the City of Seal Beach hereby finds and
determines that:
A. The public interest and necessity require the proposed Project;
B. The proposed Project is planned and located in the manner that will
be most compatible with the greatest public good and least private
injury;
C. The property interests described in Exhibits "1A" and "2A" hereto
and depicted on Exhibits 1 B" and "213" hereto are necessary for the
proposed Project; and
D. The City made the offer required by section 7267.2 of the
Government Code to the owner of record.
Section 9. The findings and declarations contained in this Resolution
are based upon the record before the City Council on September 14, 2009,
including the Agenda Report dated September 14, 2009 and all documents
referenced therein, all of which are incorporated herein by this reference. These
documents include the Notice of Exemption, the General Plan, and the DWP
Specific Plan. The findings and declarations in this Resolution are also based
upon any testimony, records and documents produced at the hearing, all of
which are incorporated herein by this reference.
Section 10. The City Council of the City of Seal Beach hereby authorizes
and directs the law firm of Richards, Watson & Gershon, to take all steps
necessary to commence and prosecute legal proceedings in a court of
competent jurisdiction to acquire by eminent domain the Subject Property
Interests legally described in Exhibits "1A" and "2A" and depicted on Exhibits
"1 B" and "26" to this Resolution.
Section 11. The City Council of the City of Seal Beach hereby authorizes
the City Manager to execute all necessary documents in connection with the
eminent domain proceeding.
Resolution Number 5921
Section 12. This Resolution shall take effect upon adoption.
PASSED, APPROVED AND ADOPTED by the City Council of Seal Beach, at a
meeting hereof held on the 14th day of September . 2009 by the following
vote:
AYES: COUNCILMEMBERS
NOES: COUNCILMEMBERS
ABSENT: COUNCILMEMBERS
ABSTAIN: COUNCILMEMBERS
Mayor
ATTEST:
City Clerk
STATE OF CALIFORNIA }
COUNTY OF ORANGE } SS
CITY OF SEAL BEACH }
I, Linda Devine, City Clerk of the City of Seal Beach, California, do hereby certify
that the foregoing resolution is the original copy of Resolution Number 5921 on
file in the office of the City Clerk, passed, approved, and adopted by the City
Council of the City of Seal Beach, at a regular meeting held on the 14th day of
September , 2009.
City Clerk
Exhibit 1 A - Legal Description of Access Roadway Area
Exhibit 1 B - Diagram of Access Roadway Area
Exhibit 2A - Legal Description of Sewer Maintenance Area
Exhibit 2B - Diagram of Sewer Maintenance Area
ATTACHMENT 1A- LEGAL DESCRIPTION OF ACCESS ROADWAY AREA
Acctw Roadway Parcel
(10,768)
IT A
L n4T POR.T'Oi N OF BLOCK 8 OF SAY CrIY, LN TIM CRY OF SR`y BEACH, COU1`TY
OF ORANGE STATE OF CAL70PUNLA, PER MAP RECORDED LY BOOK S, PAGE t9 OF
S MC_ IIAINMOUS L,IAPS 17% THE OFFICE OF IME COLAT'i RECORDER OF SAID
COUNTY, DESC'RIBM- AS FOLLOWS:
BEOL*7NM AT n-M POINT OF I\iEF.SECTK)N OF 7:: EX7ENSION OF 71 -0
SOLELY : HIE. OF FIILST STREET AND = SOUTHWEST= - LY LINE OF
OCEAN AVM4UE r:'i SAID S7RF.HtS ARE SHOWN ON TIM MAP OF SAD BAY CRY;
TH 4C_- NORTH 54 WEST, M" FEET ALONG THE SOUFT" 'EST LLNE
OF OCEAN AV?�sr LT:, AS SHOWN ON RECORD OF SURLY NO. 2002 -10 FILE AS
_ - %=U+4ENT No. 2W3400 IN BOOK 193, PAGE; 47 OF RECORDS OF 5'.M rY IN
THE OFFICE OF Y'dE COLTSITY RECORDER OF ORANGE CO'J -VM STATE OF
CALIFORNIA TO A POINT ALSO BEING TH'E IINTcRSECTION OF A CURVE CONCAVE
i=TH WFSTEFtLY AND PAVING A RADIUS OF 500.04 FEEL "*TL A RADt?.L TO
SAID CURVE AT SAID POINT BEAR 4G NORTH 5rl5'19" REST; THMNCE,
SOL rHWESIERLY, (06.15 FEE ALONG SAID CURVE THROUGH A CENTRAL ANGLE
O? 1_ TO A POIIvT OF COMPOUND CURVE WrrH A CURVE CONCAVE
NORTHWESTERLY EAVING A RADIUS OF 200.00 FEET, A RADL%L THROUGH S.AM
POWs OF COMPOUND CURVE BEAR NG NORTH 46 R EST; THENCE,
SOUTHWESTERLY, 22.35 FErC ALONG SAID 200.00 -r"OOT RADVS CURVE THROUGH
_ A CENTRAL .4tiGLE OF 6'z4 'OT' TO A POIITT O? TANGM4CY WrM A LINE BF--'6P-VG
SOU 50'18'3' V1 EST; THENCE. SO= 50 WEST ALONG SAID T.N(iF KI
L24E 42.77 FEET TO A POINT OF TA24GENCY ViTrH A CURVE C04CAV
NORTH - WESTERLY KAI A RADIUS OF 90.00 FEET; :PEN SOLTH%
1 799 F ALONG SAID CURVE TEROLIGA A CENTRAL ANG Z. OF 1 Y25'5Z" TO A
POINT OF P VE;tSE CURVE Will A CURVE CONCAVE SOUTFMFSTERLY HA�MJG A
F DRJS OF 400.00 FE-_C, A RADLAL 71MOUGH SAID POINT OF RENSRSE CURV
_ BEARM SOU-.- i 2S'i4 "s1" F1 ST; TFI .CE SOLTiiWEST LY, 7824 FTC ALC >"'G
SAID 400.00 -FOOT FADES CURVE TEaWUGH A CENTRAL ANGLE OF 1:'IZ'25" TO
THE SOUTEM - ES E)tLY UUM_ OF S-AkTJ RECOF.D OF "V--Y NO 2002-1090:7.1=3 CE
ALONG Trrz SOLTEw ES j'EP.LY ANI) SM -r cr -M Y LINES OF SAM RECORD OF
SURVEY T� FOLU)WING COURSES AND DLSTANCES:
I SOJTd Zt'50 EAST, 3224 FEET;
2 SOUS 57 EAST, 5532 FEEL;
3. NORTH 327'25" EAST. 273.93 FEET TO THE POEvT OF SEGLti.T
CO: TAII- D-G 10,76E SWARE F MORE OR LESS.
ALL AS MORE- PA$.T tCULAKLY SHOWN ON EG4Mt i S ATTACHED HERETO AID
.`-`AD'e A PART KiMr -,OF
ATTACHMENT IB- DIAGRAM OF ACCESS ROADWAY AREA
EXHIBIT B
Access Roadway Parcel
' (10,769)
1
SCALE: t' SQ'
�S 4�.
4(R
.MAP OF' BAY CITY POR. O= BLOCK B M.M. 3 / 19
..
D I S T NNCE
1 S50' 19' 37' V
52e 14'.S1'E
2 N21 W 35'V
41. 79'
3 N50. 18' 37' E
RAD 6 — Kr� , ,
r
40-08
5 554' 44. 12' E
13. 93'
N37'48'1 YW
(RAD)
-
N 9
'W
(RAO)
O
DELTA
RADIUS LENGTH
1
12' D9' 49'
50D. 00' 106. 15'
-
2
6` 24
20M 00' 22. 35'
3
11'25 52'
90. CO' 17, 98'
4
1 t' 12' 2S'
400. MY 79. 24'
5
9' 33' 4 1'
440, p0' 73. •3'
`
5
1 1' 26' 52'
50-00 9.99
7
6'24
15p. 00' 17. 88'
t
1 t' 29 13'
460. 00' 100. la
0
❑ BEAR LNG
D I S T NNCE
1 S50' 19' 37' V
42. 77'
2 N21 W 35'V
41. 79'
3 N50. 18' 37' E
42. 77'
4 S34'44' W
40-08
5 554' 44. 12' E
13. 93'
i
/ � I
r—�
N,
2.�.
i
ATTACHMENT 2A —LEGAL DESCRIPTION OF SEWER MAINTENANCE AREA
Easterly Remnant Parcel
(10.233)
Ex -join A
A STRIP OF LAND 40.00 FEET WIDE IN BLOCK B OF BAY CITY, IN THE CITY OF SEAL
BEACH, COUP,TY OF ORANGE, STATE OF CALIFORNIA, PER bIAP RECORDED IN
BOOK 3, PAGE 19 OF MISCELLANEOUS MAPS IN THE OFFICE OF THE COUNTY
RECORDER OF SAD COUNTY, THE SOUTIi1:ASTERLY Lm OF SL NCH STRIP OF
- LAND IS DESCRIBED AS FOLLOWS.
COMUSNCING AT 115 POINT OF INTMECTIO14 OF THE EXTENSION OF THE
.. SOLITEIE S ERLY L X OF FIRST STREET AND THE SOUTHWESTERLY LENS OF
OCEAPF AVLNUE AS SAM STREETS ARE SHOWN ON THE MAP OF SAID BAY CITY;
T;MNCE, NORTH 5- 44'12" WEST, 13.95 FEET ALONG THE SOUTHWESTERLY LINE
OF OC:FAN AVENUE: AS SHOWY ON RECORD OF SURVEY NO. Z002• t090 FILED AS
LmSTREMMNT N0.2•)03000516214 IN SOON 193. I'AGT; 47 OF RMCORDS OF SURVEY IN
THE OFFICEE OF THE COUNTY RECORDER OF ORANGE COUNTY, STATE OF
CALIPORNIA. TO T.3E TRUE POWT OF BEGR4194MM, SAID POINT ALSO 9EWG AT
THE INI'ERSECTIO11 OF A CURVE CONCAVE NORTHWESTERLY AND 14AVING A
RADIUS OF 500.00 FLT WITH A RADLAL TO SAID CURVE AT SAID POW BEARING
NORM 58'IS'19 WEST; THENCE, SOUTHWESTERLY, 106.15 FEEL ALONG SAID
CURVE THROUGH A CENTRAL ANGLE OF 12 1 09 1 49" TO A POINT OF CON94OUND
CURVE WITH A CURVE CONCAVE NORTHWESTERLY AN,1) miLVENCs A RADIUS OF
200.00 FEET, A RADIAL THROUGH SAID KW4T OF COINIPOUND CURVE BEAP24G
v'ORTU 46'05'30" \WEST; TH& ICE, SOtITfi♦Y>;'sTMY, 2235 FEEL' ALONG SAID
200.00 -FOOT SAD= CURVE THROUGH A CENTRAL ANGLE OF 6" TO A POIrr
OF TA14GENCY WATT A LINE BEARING SOUTIE W1 8'3T' WEST, TEM14 , SOUTH
50'19'37" WEST ALONG SAID TANGENT LINE 42.77 FEET TO A POINT OF TANGENCY
WITH A CURVE CC'NCAVE WRTHWESTERLY HAVDIG A RADIUS OF 90.00 FEET;
THENCE, SOUTHWESTERLY, 17.98 FEET ALONG SAN CURVE THROUGH A
CENTRAL ANGLE OF 11'26'52" TO A POINT OF REVERSE CURVE WITH A CURVE
CONCAVE SOUTHEASTERLY AND I3Avn4o A RADIUS OF 400.00 FEET. A RADIAL
THROUGH SAID N)DVrr OF REVERSE CURVE $FARING SOUTH 28 1 14 . 31" EAST:
THENCE. SOUTFiWFSTBRLY. 7314 FEET ALONG SAID 400.00 -FOOT RADIUS CURVE
THROUGH A CENTMI ANGLE OF tt °12 TO THE SOUTHWESTERLY LINE OF
SAID RECORD OF SURVEY NO.2002 -1090.
TI[G NORTSEWESI7,RLY LINE OF SAID 40.00-FOOT-WIDE STRIP SHALL BE
LENGTHEZ OR SHORTENED TO TERMINATE SOUTHWESTERLY TN "M
SOUTHWESTERLY LINE OF SAID RECORD OF SURVEY AND NORTHEASTERLY IN
THE SOUTHWES TFF',LY LINE OF SAID OCEAN AVENUE.
CONTAMNO 10,2.13 SQUARE FEET, ,TORE OR LESS.
ALL AS MORE PARTICULARLY 530WN ON Fy -WHIT L3 ATTACHED HERETO AND
%iADE A P.A_RT KMEiOF.
ATTACHMENT 2B- DI ACRA *vt OF SEWER MAINTENANCE AREA
i EXHIBIT B
V Easterly Remnuat Parcel
r�
SCALE: t' — 50'
(10,233)
�g0
�1
2 oa�'
O r,E RADIUS LENGTH ❑ REAR IHG DI
i 1 L• 12' 25' 4m 00' 70. 24' 1 S32' 17' 25' V 273. 93'
2 L L' 26' 52' 90. 0(y 17. 93' 2 YJ57' S3' 35' V 55, 32'
3 6 07' 200. ow 22. 35' 3 N21' 30' 35' V 32 04'
4 12' 03' 49' 300. 00' 106. t 5' a NSW I S 37' E 42.7 7'
5 S54'44' t2'E 13. 45'
�� 3Q.
Page 17
ATTACHMENT B
NOTICE OF EXEMPTION DATED APRIL 13, 2009
POSTED FILED
APR 2009 APR 13 2009
TOM DALY, CLERK - RECORDER TOM DALY. CLERK - RECORDER
BY 45 ` DEPUTY B
City of Seal Beach, 211 8 Street
Seal Beach, CA 90740
®® 562- 431 -2527
NOTICE OF EXEMPTION
TO:
Clerk- Recorder, County of Orange
12 Civic Center Plaza, Room 106
Santa Ana, CA 92701
First Str eet Beach Public Access Acquisition Pro
Project Title
Between the intersection of First Street/Ocean Avenue and the First Street Beach
Public Parking Lot
Project Location - Specific
Citv of Seal Beach County of Orange _
Project Location — City
Project Location — County
Acquisition of existing roadway ( "Access Road ") to maintain public access to a publi
beach -front parking lot, the public beach and the Pacific Ocean and acquisition c
adjacent parcel to maintain an existing city sewer line ( "Sewer Maintenance Parcel'
and related public purposes, and all uses necessary and convenient thereto at Fir:
Street and Ocean Avenue. Recorded in Official Records, Orang
Description of Nature, Purpose, and Beneficiaries of Project Tom Daly, Clerk- Recorder
Cit of Seal Beach Cit Council 1111111111111111111111111111111111111111111111111111111111111111111111 NO
Name of Public Agency Approving Project 200985000328 08:06am 04113)
David Carmany, City Manager, City of Seal Beach so 140 zoo
Name of Person or Agency Carrying Out Project o.00 0.00 0.00 0.00 0.00 0.00 0.00
The project is exempt from CEQA under the following authority: (Check One)
Ministerial (14 Cal. Code of Regs. §15268)
Declared Emergency (14 Cal. Code of Regs. §15269(a))
Emergency Project (14 Cal. Code of Regs. §15269(b), (c), (d) & (e)). State
subsection letter.
Statutory Exemption. (14 Cal. Code of Regs. § §15260 et seq.) State
statutory number:
X Categorical Exemption. (14 Cal. Code of Regs. § §15300 et seq.) State cla:
and section number: Section 15301, Existing Facilities; and Section 1532
Transfers of Ownership of Interest in Land to Preserve Existing Natur
Conditions and Historical Resources, item (f).
X No possibility of physical impact. (14 Cal. Code of Regs. §15061(b)(3))
County
E
0.00.
\ \SBNAS \Users \LWhittenberg \My Documents \CEWExemption Notice.First Street Public Access Acquisition.04- 01- 09.doc
City of Seal Beach — Notice of Exemption
First Street Beach Public Access Acquisition Project
The project consists of transferring ownership to the City to maintain public access to a
public parking lot on the public beach and to maintain an existing city sewer line. The
City has no plans to change the existing access road or the existing city sewer line.
Reasons why project is exempt
Lee Whittenberg (562) 431 -2527 #1313
Contact Person Area Code Telephone Extension
Address: 211 Eighth Street, Seal Beach, CA 90740
Date Received for Filing:
i
nature
Director of Development Services
Title
APR 13 2009
TOM D DER
BY DEPUTY
_ DEPUYY
W - 1
APR 13 2009
TOM DALY, CLERK - RECORDER
2
Exemption Notice.First Street Public Access Acquisition.04 -01 -09
Page 18
ATTACHMENT C
OFFER TO PURCHASE LETTER TO BAY
CITIES PARTNER'S LLC, DATED MARCH
17, 2009
March 17,'2009
Bay Cities Partners, LLC
2999 Westminster Avenue, Suite 211
Seal Beach, California 90740
Regarding: Offer to Purchase Certain Property Interests from the Real Property Identified as
Orange County Assessor's Parcel Numbers: 043 - 171 -02 and 043 - 172 -13
Dear Property Owner:
This letter constitutes the City of Seal Beach's ( "City ") offer to purchase certain property
interests from your real property located at First Street and Ocean Avenue in the City of Seal
Beach, and identified as Orange County Assessor's Parcel Numbers: 043 - 171 -02 and 043 -172-
13 ( "Subject Property "), subject to and upon the conditions set forth below.
1. OFFER TO PURCHASE The City offers to purchase the real property
interests, for a public use, namely to maintain public access to the First Street parking lot, beach
and Pacific Ocean ("Access Road ") and create access to maintain a City sewer ( "Sewer
Maintenance Parcel "), and related purposes, and all uses necessary and convenient thereto in
connection with the Access and Maintenance Project at First Street and Ocean Avenue
( "Proposed Project ").
The Proposed Project requires the acquisition in fee of approximately 10,768 square feet
for the Access Road and approximately 10,233 square feet for the Sewer Maintenance Parcel.
The Access Road is described in Exhibit "lA" and depicted on Exhibit "1B" to this letter. The
Sewer Maintenance Parcel is described in Exhibit "2A" and depicted on Exhibit "2B" to this
letter. The approximate 10,768 square feet for the Access Road and the approximate 10,233
square feet for the Sewer Maintenance Parcel are collectively referred to as "Subject Property
Interests ".
It is the policy of the City to acquire property that is in private ownership only when it is
necessary to do so, and through voluntary purchase if possible. In accordance with the
applicable law, the City has obtained, and has reviewed and approved, an appraisal for the fair
market cash value of the Subject Property Interests. Pursuant to Government Code Section
7267.2, the City has enclosed for your reference to this letter an informational pamphlet
providing an overview of the eminent domain process and of your rights. We hope this is
helpful. Further, because the City's public use of the Subject Property Interests is scheduled to
begin as soon as the City acquires the necessary property interests needed for the Proposed
Project, the City does not offer a leaseback agreement for the Subject Property Interests pursuant
to California Code of Civil Procedure 1263.615.
2. PURCHASE PRICE The fair market cash value price offered for the above -
stated Subject Property Interests is $48,400. This amount represents at least the full amount
which the City believes to be just compensation for the acquisition of the Subject Property
Interests as of December 18, 2008. It is not less than the approved appraisal of the fair market
value of the Subject Property Interests on the date of value of December 18, 2008 and it does not
include any increase. or decrease in value of the Subject Property Interests caused by the
Proposed Project for which the Subject Property Interests are sought to be acquired. This
amount also does not reflect any relocation assistance, benefits or payments, if any, which you
may be entitled to receive.
3. BASIS FOR OFFER The appraisal of the Subject Property and the Subject
Property Interests takes into consideration the highest and best use of the Subject Property, the
zoning, the location, the size, the condition, the December 18, 2008 date of value, and other
factors that affect fair market value.
The Subject Property is located within the DWP Specific Plan Area, which places certain
limits on the development of the property. Specifically, 30% of the Subject Property can be
developed as hotel and ancillary services, and 70% of the Subject Property must remain as -open
space. The independent appraiser identified the 3 0% portion as the northerly portion, which
consists of 122,619 square feet, and the 70% portion as the southerly portion, which consists of
286,112 square feet.
In his analysis of the northerly portion, the appraiser concluded that the highest and best
use of the northerly portion was to hold the property for future residential development. The
appraiser reasoned that residential development may be an alternative to hotel development, and
residential development is consistent with the surrounding area. The appraiser utilized the sales
comparison approach, and relied upon four residential sales to value the northerly parcel. The
comparable sales ranged from $64 to $165 a square foot. The appraiser made adjustments for
size, shape, location and entitlements to conclude that the northerly portion was valued at $80.00
a square foot or $9,810,000 total.
In his analysis of the southerly portion, the appraiser concluded that the highest and best
use of the southerly portion was as open space. The appraiser utilized the sales comparison
approach, and relied upon six open space sales. The price per acre ranged from $24,000 to
$133,000. After making adjustments to the market data, the City's appraiser concluded that the
southerly portion was valued at approximately $2.30 a square foot or $658,000 total.
The City's appraiser combined the values of both portions to conclude that the larger
parcel was valued at $10,470,000.
The Subject Property Interests are located in the southerly portion of the Subject
Property. As such, in valuing the Subject Property Interests, the appraiser used
comparable sales of open space. The appraiser determination of the fair market value of
the Access Road and Sewer Maintenance Parcel is broken down as follows:
Access Road
10,768 square feet x $2.30 /per square foot = $ 24,800
Sewer Maintenance Parcel
10,233 square feet x $2.30 /per square foot = $ 23,600
Severance Damages
$ 0
Total Fair Market Value $ 48,400
The independent appraiser opined that the City's proposed acquisition of the Subject
Property Interests would not change the highest and best use of the real property, nor would the
reduction in size affect the site utility. Thus the appraiser determined that there were no
severance damages as a result of the proposed acquisition of the Subject Property Interests.
A complete copy of the appraiser's market data summary is attached hereto as Exhibit
«
4. CONDITIONS OF OFFER This offer is subject to and conditioned upon the
following:
(a) The City's approval, in its sole and absolute discretion, of the results of such soils
geological, toxic waste, hazardous-substance, and/or any other kind of tests- and analyses, as the
City, or its representative, may perform pri or to the opening of escrow, or, in the City's sole and
absolute discretion, after the opening of escrow;
(b) The willingness to issue, and subsequent issuance as of the close of escrow, by a
title insurance company of the City's choice, of a CLTA title insurance policy for the amount of
the purchase price showing fee title to be vested in the City, subject only to such conditions,
covenants, restrictions, and utility easements of record as are approved by the City in its sole and
absolute discretion; and
(c) The timely acceptance of this offer by each owner in accordance with paragraph
7, below.
5. OFFER TO PAY REASONABLE COSTS OF AN INDEPENDENT
APPRAISAL PURSUANT TO CODE OF CIVEL PROCEDURE SECTION 1263.025
Pursuant to Code of Civil Procedure Section 1263.025, the City hereby offers to pay your
reasonable costs, up to $5,000.00 (Five Thousand Dollars), for an independent appraisal of the
Subject Property. By law, an appraiser licensed by the Office of Real Estate Appraisers must
prepare the independent appraisal. Although you are not required to obtain an appraisal at this
time or at all, if you believe such an appraisal will assist you in evaluating this offer, it is in your
interest to obtain the independent appraisal as expeditiously as possible. Please let us know by
April 3, 2009 whether you wish to have the City issue this money to you for this purpose. If you
choose to have the City issue a check to your attention towards the reasonable costs of an
independent appraisal of the Subject Property, please forward to the City an invoice from your
appraiser identifying the property that is the subject of the appraisal and the fee charged for the
appraisal. Alternatively, you can submit a declaration providing the relevant information under
penalty of perjury in the form attached as Exhibit "B" hereto.
6. RIGHT OF ENTRY By accepting this offer, you hereby grant to the City and
its representatives, a right of entry at reasonable times for the purpose of conducting
investigations and tests. Such investigations shall be at the City's expense.
7. ACCEPTANCE AND POSSESSION If the above offer is acceptable, please
date and sign the enclosed copy of this letter in the space provided and return it to me in the self -
addressed, postage prepaid, envelope provided, by May 29, 2009. Following receipt of your
acceptance, the City will prepare the necessary documents and forward them for your immediate
execution.
8. ADMISSIBILITY OF OFFER If for any reason you should reject this offer,
please be advised that this letter and the offer made herein are tendered under the provisions of
Evidence Code Section 1152, and shall not be admissible to prove the City's liability and may
not be used as an admission of value in any eminent domain or other proceeding.
9. EXPIRATION OF OFFER This offer will expire at 5:00 p.m. on May 29, ..
2009 unless your written acceptance is received at this office prior to that date and time
If you have any questions or would like to discuss this offer, please do not hesitate to
contact Roger Cunningham of Security Land and Right of Way Services, Inc. at 1440 South
State College Boulevard, Suite 3D, Anaheim, California, (714) 635 -3380.
Sincerely,
(5,;V C---1
David N. Carmany
City Manager
City of Seal Beach
Enclosures
I hereby accept the above offer of the City of Seal Beach.
Bay Cities Partners, LLC
Dated: By:
Page 19
ATTACHMENT D
NOTICE PURSUANT TO CODE OF CIVIL
PROCEDURE SECTION 1245.235, DATED
AUGUST 24, 2009
CITY OF SEAL BEACH
NOTICE OF PROPOSED EMINENT DOMAIN PROCEEDING
AND OF OPPORTUNITY TO BE HEARD ,
(Code of Civil Procedure Section 1245.235)
SEPTEMBER 14, 2009 AT 7:00 P.M.
ACQUISITION OF REAL PROPERTY INTERESTS, CONSISTING OF AN APPROXIMATE
10,768 SQUARE FEET IN FEE FOR A PUBLIC USE, NAMELY FOR AN ACCESS ROAD TO
THE PACIFIC OCEAN, AND AN APPROXIMATE 10,233 SQUARE FEET IN FEE FOR A
PUBLIC USE, NAMELY FOR MAINTENANCE OF A CITY SEWER FACILITY, FROM
ASSESSOR'S PARCEL NUMBERS 043 - 171 -02 AND 043 - 172 -13 AS PART OF THE ACCESS
AND MAINTENANCE PROJECT AT FIRST STREET AND OCEAN AVENUE, AND ALL
USES NECESSARY AND CONVENIENT THERETO
To: Bay City Partners, LLC
PLEASE TAKE NOTICE that the City Council of the City of Seal Beach intends to
consider the adoption of a resolution of necessity pursuant to the provisions of the
Eminent Domain Law, and in particular Article 2 of Chapter 4 of Title 7 of the Code of
Civil Procedure (C.C.P. Section 1245.210 et seq.), for the acquisition by eminent
domain of certain real property interests, consisting of an approximate 10,768 square
feet in fee and an approximate 10,233 square feet in fee from the real property
located in the City of Seal Beach, County of Orange, California, and identified as
Orange County Assessor's Parcel Number 043 - 171 -02 and 043 - 172 -13 ( "Subject
Property ") for access and maintenance at First Street and Ocean Avenue. ( "Project "). -
The approximate 10,768 square feet to be acquired in fee from the Subject
Property is legally described in Exhibit "1A" and depicted on Exhibit 1B." The
approximate 10,233 square feet to be acquired from Assessor's Parcel Number 043-
171-02 and 043 - 172 -13 is legally described on Exhibit "2A" and depicted on Exhibit
"2B." Exhibits 1A, 1 B, 2A and 213" are incorporated herein by this reference.
You have the right to appear before the City Council of the City of Seal Beach
and to be heard on the following matters pertaining to the above - stated acquisition:
(a) Whether the public interest and necessity require the Project;
ZAMy Documents \Ocean Place \Notice of Eminent Domain Proceeding - Bay City.DOC \08 -24 -09
- -'3
�- ,�-rZ
City of Seal Beach Notice to Bay City Partners LLC
of Proposed Eminent Domain Proceeding
and of Opportunity to be Heard
August 24, 2009
(b) Whether the Project is planned or located in the manner that will be most
compatible with greatest public good and the least private injury;
(c) Whether the property interests sought to be acquired are 'necessary for
the Project; and
(d) Whether the offer required by Section 7267.2 of the Government Code
has been made to the owners of record.
If you wish to appear and be heard, you should file a written request to be heard
within 15 days after this notice is mailed. You should file your request at the City of Seal
Beach, 211 Eight Street, Seal Beach, CA 90740 -6305. Attention: Linda Devine, City
Clerk.
FAILURE TO FILE A WRITTEN REQUEST TO APPEAR AND BE
HEARD WITHIN 15 DAYS AFTER THE DATE THIS NOTICE IS MAILED
WILL RESULT IN A WAIVER OF THE RIGHT TO APPEAR AND BE
HEARD.
It is the intention of the City Council of the City of Seal Beach to hold a hearing
on September 14, 2009, at 7:00 p.m. at the City of Seal Beach City Hall, 211 Eighth
Street, Seal Beach, CA 90740 -6305.
Dated: August 24, 2009 By ` I - n/ /L4, ..
Linda Devine, City Clerk
Attachments: (4)
Exhibit "1A ": Legal Description of the Fee Simple Interest to be Acquired
Exhibit "1 b ": Map Depicting the Fee Simple Interest to be Acquired
Exhibit "2a ": Legal Description of the Fee Simple Interest to be Acquired
Exhibit "2b ": Map Depicting the Fee Simple Interest to be Acquired
Notice of Eminent Domain Proceeding - Bay City 2
A TTACHMENT IA- LEGAL DESCRIPTION OF ACCESS ROADWAY AREA
access Roadway Parcel
(10,7(.4}
EXHIBIT A
_ THAT PORTION Orr BLOCK S OF BAY CITY, LY TIM GM OF Sf-AL BEACH, COUNTY
OF ORANGE, STAT1 OF CALlpORNIA, FER MAP RECORDED U BOOK 3, PAGE I9 OF
b, j3CELL A , ;EGUS mApS IN THE OFFICE OF THE COUNTY R ECORDER OF SAID
COUNTY, DESCREIM AS FOLLOWS:
B 024NIltC3 %T THE POINT OF 12v"THR$F�C' ow OF TFIS EXTENSION OF THE
r"
SOUTHEAS IMLY LII b OF FTIM STREET AND THz SOUT1iWEST - cALY L1NB OF
OCEAN F :MAX A:i SAID STRFPM ARE SHO WN ON TIFr. MAP O SAI BAY CITY
OFF OCEAN A
� AS SHOWN ON RECORD r ALONG THE SoUr LINE
OF SURVEY NO 22002-1090. "MILLED AS
iNS1RUMEN NO. 2003004516244 IN BOOR 193, PAGH t7 OF RECORDS OF SURVEY IN
THE OFFICE OF THE COlUNTY RECORDER OF ORAIx*E COUNTY, STATE OF
CALWOF. NIA. TO A POINT ALSO BED* TIM DnSRS9CTION OF A CURVE CONCAVE
NORTHWESTERLY AND HAVING A RADIUS OF 500.00 FEEL WrM A RA DL TO
' SAID CURVE AT SAID POINT BEAR24G NORTH 58 19° WEST, TH�lCE,
SOUPI I IES ERLY, 106.15 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE
OF 12'Og•49" IU P.. POu7r OF CCApOUND CURYI: w1TFI A CURVES CONCAVE
NORTHWESTMLY HAVING A RADIUS OF 200.00 FEET, A RA.DLXL THROUGH SLID
POINT OF COMPOUND CURVE SEARING NORTH M rOS'30^ VEST: 1"HENCE.
SOLTTSWFS"TERLY, 2735 FEET ALONG SAID 200 00-FOOT RADIUS CURVE THROUGH
A CMITRAL ANGLE OF 6°7.3'07" TO A POINT OF TANGLNCY WMI A LINE BEARING
SOUTH 50'18'37" WEST: THENCE, SOUTH 50'18'37" WEST ALONG SAID TANUP-11 '
LM 42.77 FEET TO A POINT OF TANGENCY WI'iH A CURVE CONCAVE
NORTHWESTERLY RANG 4 RADIUS OF 90.00 FEET: THENCE. SOUTHWTM - ZRLY,
17.98 FEET ALONId SAID CURVE THROUGH A Cf'TRAL ANGLE OF 11'26'52^ TO A
POITT OF REVERSE CURVE WCTH A CURVE CONCAVE SOUTHEASTERLY HA A
RADIUS OF 400.00 FEET, A RADLLL THROUGH SAID POINT OF R"FYr'�E CURVES
BEARING SOUTH 2E'I4'31" EAST; THEHM SOUTHWESTERLY, 78.24 FEE< ALONG
SAID 400.00 -F007 RADIUS CURVE THROUGH A CE+NT'RAL ANGLE OF 1 i °12'25° TO
THE SOUTHWESTERLY LINE OF SAID RECORD OF SUR °ITiY 5i0 2002- 109(1: i'afENCE
ALONG THE SOUTE[W"dSTERLY AND SOUTHEASTERLY LINES OF SAM RECORD OF
SURVEY T�fi FOLLOWING COURSES AND DISTANCES:
1 SOUTH 2050'35" EAST, 37-84 FEET;
" 3 SOUTH 57 EAST. $532 FEET:
3. NORTH 32'17'25" EAST. 273.93 FEET TO THE PONT OF SPGT'
CON TAI INKS 10,76E SQUARE FEET. MOPE OR LESS.
AEI AS MORE pA2MCULARLY SHOWN O�`I DCI'IISHT 11 ATTACFHED HERETO AX
INIADE A PART HER.?OF
ATTACHNIEN'T 1B— DIAGRAM OF ACCESS ROADWAY AREA
EXHIB B
I Access Roadway Parcel
t (10,765)
SCALE: 1' 50'
� I
MAP OF* BAY C ITY
POR. 0 BLOCK B (RAD)
M.M. 3 / 1 9 je�
O
n
0
j
i
I
❑ BEARING
O 0-t A
RADIUS
LENGTH
2 N21' 50' 35'V
1
12' 09' 49'
500. 80'
105. 15'
40. 0Et'
2
6
200. 00'
22. 35'
3
it • 26' 52'
90. 00'
17. 99'
4
1 1 12' 25'
400. 00'
78. 24'
5
9 4 t'
440. CO'
73. •3'
6
l 1' 26' $2
So. Go'
9 94'
7
6' Z4'07*
150 00'
17. 99'
1
t 2' 29' 13'
450. 00'
too 12'
j
i
I
❑ BEARING
DISTA''CC
1 550' 18 3
A 2. 77'
2 N21' 50' 35'V
41. 79'
3 N50' 19' 37'E
42. 77'
4 354' 44' 1 Z' -
40. 0Et'
5 554'44' 12' E.
13. 93'
l
ATTACHINIENT 2A — LEGAL DESCRIPTION OF SEWER MAINTENANCE AREA
Easterly Remnant Parcel
1 10.2 33)
r.VilSlr A
A STRIP OF LAND 40.00 FEET WIDE W BLOCK 3 OF BAY CITY, IN TIME CITY OF SEAL
BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, PER MAP RECORDED IN
BOOK 3, PAGE 19 OF �4SCELLAN'EOUS MAYS TN THE OFFICE OF THE COUNTY
RECORDER OF SAO COUNTY, THE SOUrlfr - -A iERLY LINE OF WHICH STRIP OF
LAND IS DESCRIBED AS FOLLOWS.
COMNMENCING AT THE POINT OF INTERSECTION OF ZITS EXTENSION OF TAE
SOUTHEASTERLY LLUE OF FIRST STREET AND THE 3MTrrI` ES'T5RLY LINE OF
OCEAN AVENUE AS SAID STREETS ARE SHOWN ON THE M" OF SAID BAY CITY;
71924CE, NORTH W44'12" WEST, 13.95 r"EET ALONG 'LIME SOU17HIMES17ERLY LINE
OF OCEAN AVENUE AS SHOWN ON RECORD OF SURVEY NO 2002 -tO" FILED AS
1.45TRUR+IENT NO 290 IN BOOK 193. PAGL• 47 OF RLCORDS OF SURVEY rN
THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY. STATE OF
CALIFORNIA. TO MHE TRUE POINT OF BEGINNWO, SAID POINT ALSO BEING AT
THE INTFRSECTIO?L OF A CURVE CONCAIVT NORTHWESTERLY AND HAVING A
ReAIDEUS OF 300.00 FEET WTr2 A RADL4L TO SAID CURVE AT SAID POD4T DEARMNG
NORTH SS'1S'19 WEST; THENCE, SOUTHWESTERLY, 106.13 FEET ALONG SAID
CURVE TEIROUGH A CENTRAL. ANGLE OF 12'09 TO A POINT OF CONeOUND
CURVE WITH A CURVE? CONCAVE F1ORTFrNESTERLY AND HAVING A RADIUS OF
200.00 FEET, A RADIAL THROUGH SAID POINT OF COMPOUND CURVE BEARING
NORTLI 46'05'30 (VEST; TY.EYCE, SOUTHWESTERLY, 22.35 FEET ALONG SAID
200.00 -FOOT RADIUS CURVE THROUGH A CENTRAL ANGLE OF 6'2:4'07" TO A POINT
OF TANGENCY WATT A LINE BEARING SOUTH 50'18'37^ WEST; THENCE, SOUTH
50' 18' 37" WEST ALONG SAID TANGENT LLNE ;277 FEEr'TO A POh i OF TA`GENCY
wrrH A CURVE CONCAVE NORTHWESTERLY HAVING A RADIUS OF 90.00 FEE1;
THENCE, SOUTHWESTERLY, 1798 FEET ALONG SAID CURVE THROUGH A
CENTRAL ANGLE OF I1'26 TO A PO0gr OF REVERSE CURVE WITH A CM01M
_ CONCAVE SOUTHEASTERLY AND HAV 40 A RADIUS OF :00.00 FEET, A RADIAL
THROUGH SAID pO T OF REVERSE C BEARING SOUTB 28 EAST;
THENCE, SOUrHWTS'TFRI.Y. 78.24 FEET ALONG SAID 400.00400T RADIUS CURVE
THROUGH A CENT?-4J- ANGLE OF 11'12'25-1`0 114E SOGTEiWESTERLY LINE OF
SAID RECORD OF SURVEY NO. 2002-1090.
TITG NORTIIWES M- LY LINE OF SAID 40.00-FOOT-WIDE STRIP SHALL BE
LENGTHE:F.'ETJ OR SHORTENED TO TERMINATE SOUTH'vVESTFRLY ID '
SOU'T`H`WES'TERLY LINE OF SAID RECORD OF SURVEY Aa`+'D NORTHEASTERLY IN
THE SOUTHI VFSTE LY LVE OF SAID OCEAN AVENUE.
` CONTADM40 10,233 SQUARE FEET, .MORE OR LESS.
ALL AS MORE PARTICULARLY SHOWN ON F- XHIBIT B ATTACHED HERSTO *ol)
MADF A PART HEMEOF.
ATTACHMENT 2B— DIAGRAM OF SEWER MAINTENANCE AREA
_
N
_ KALE: 1' 50'
I
i
_
I
N S97.S'
(RAC
EXHIBIT B
Easterly Reinnunt Parcel
110,233)
X90 '
5
MAP OF BAY CITY
POR. OF BLOCK B
M.M. 3 / 19
0 .
J DELTA RADIUS LENGTH
12' 25' 4110. 00' 78. 2
2 t t' 26' 5r 7 0. 00' 17. 99'
3 6 07' 202 0C' 22. 35'
l2' C4' d9' 500. OG' 106. t 5'
t o •
ID
ED
0 9CAR]MG 31S -AINCE
t S l7' 25' V _73. is'
2 :157 5$. 32'
3 N21'50' 35'V 32. 9E'
a N30 19' 37• E 42. 77'
5 S54'44' t2'E 13 45'
.3
w
l
Page 20
ATTACHMENT E
EXHIBITS 1 A, 1 B, 2A AND 2B
ATTACHMENT IA— LEGAL DESCRIPTION OF ACCESS ROADWAY AREA
Accrss Roadway Parcel
11a,76s>
M{HIBI'T A
THAT PORTION OF BLOCK B OF BAY CTl LN TILE CTPY OF SEAL B=_ACH, COUNTY
OF ORANGE, STATE OF CALIFORNIA, PER MAP RECORDED 24 BOOK 3, PAGE 1 9 OF
- k=MRlAy"EOUS ✓PAPS IN THE O OF THE COLITY RECORDER OF SAID
COUNTY, DESCRIBM AS FOLLOWS:
BEGBoMiG AT TljE POBtiT OF NTERSECTION OF Tr1E =E rE +'SION OF THE
SONY OF FIRST STREET AND THEE SOL•TMWE- STIERLY LINE OF
OCFkX AVMX A.': SAID SLRF .TS ARE SHOWN ON TIM MAP OF SAID BAY CITY:
THENCE, NORTH S4 *44 WEST, 13.95 FEE- ALONG THE SOU - 172" - ESTE LY LIjN'E
OF OCEAN AVENUE, AS SHOWN ON RECORD OF SURVEY NO. 2007-i M. FILED AS
_ r3%TT lr4fENT 140 20430005"16243 IN B(XMC 193, PAGE 47 OF RECORDS OF SGRv=-Y Uf
THE OFFICE OF THE COUNMY RECORDER OF ORA40E COUNTY, STATE OF
CALIFORNIA, TO A POINT ALSO BEING THE INTERSECTION OF A CLRV E CONCAVE
,4ORTHWESTERLY AND F.AVING A RADIUS OF 500.00 FEET JVii Fi A RADIAL TO
SAID CUICr'E AT SAID POINT BS.ARING NORTH 58'1519" WEST: TRENCE.
SOUTHWESTERLY, 106.15 FEEL ALONG SAID CURVE THROUGH A CENTRAL ANGLE
07 12'09 TO P_ POL% - r OF CON9OUND CURVE WrrH A CURVE CONCAVE
NORTAW'rSTERLY HAVIIvG A RADIUS OF 200.00 FEET, A RADIAL TFIROUGH SAM
POINT OF COMPOUND CURVE BEARING NORTH 46 VEST: THM4CE.
SOUTHWESTERLY, 22.35 FEET ALONG? SAID 200.00 -FOOT RADIOS CURVE THROUGH
_ A CEWIRAL ANGLE OF 6 TO A POO" OF TANGD4CY wiles A 1..24E BBAPING
SOUTH 50'18 REST; THENCE, SOUTH 5P18'37" WEST ALONG SAID TANUtKl'
LINE 42.77 FEET TO A POINT OF TANGENCY WITH A CURVE CONCAVE
NORT'n'Wr"S. TERLf HAVING A RADIUS OF 90.00 FEET: THENCE, SOUTHw ESTERLY.
1798 F ALONG SAID CURVE THROUGH A CENTRAL A.'rK L-= OF 11'26'52" TO A
POINT OF F.EYERSE CURVE WTCH A CURVE CVNCAV y SOUITM - TrRLY HAl'MJG A
RADIUS OF 400.00 FEET. A RADIAL TFROUGH SAID POW Of R ,t - rY CURVE
SEARING SOUTIi 28'14'3!" EAST. TF=4CE SOU17HWESTERLY, 78.24 FTC ALONG
SAID 400.00 -FOOT I'.ADIUS CURVE THROUGH A CENTRAL ANGLE OF 1 "12'25" TO
T SOUTAiiVFSI"aRLY L24E OF SAID RECORD OF SURVPY NO 2002 -1090: T rIE1YCE.
ALO YG Tag SOLTf1WF.SIERLY AND SOUrAEASTERLY 1-04ES OF SAID R. CORD OF
SLR NW TIM FOLLi)WING COURSES AND DISTANCES'
1 SOUTH 2l °50'35" EAST, 37-34 FEET:
2 SOLTH 57'53'35" EAST, 5532 FEEL;
3. NORTH 32':7'25" EAST. 273.93 FEET TO THE POINT OF B9GL\
_ CO TAII-ZtiG 10, SQUARE FEET, MORE OR LESS.
ALL AS :TORS i?A'rTICUlARLY SHOW ON M(HIBIT B Ai LACHED 14MLETO AND
W.D'a A PART HULAF
ATTACHMENT I B — DIAGRAM OF ACCESS ROADWAY AREA
- E XHIBI T 3
Access Roadway Parcel
I I 110,768}
I 1��
i - r-ALE: 1' = 50'
1Q
MAP OF' BAY CITY
N
I POR. 0= BLOCK B cRAc
M.M. 3 / 19
Ell
M
I] BEAR f e1C,
0
i S50' I3' 37'v
42. 77'
2 N21'50' 35'v
4 t. 73'
3 N50' 16' 37' E
DELTA
R46iU3
UW.TH
—
1
12' 09' 49'
500. =
506. 15'
2
6' 24. 07'
20x1 00'
22. 35'
3
It 26' 52'
90. D0'
17, 99'
4
11' 12' 25'
400. 00'
79. 24'
5
9' 33' 41'
440. C0'
73. • 3'
5
11' 26' 52'
20. 00•
9. 99•
7
6' 24'07'
150 00'
17-88
1
I
12 29' 13'
460. 00'
i 00. 12'
I] BEAR f e1C,
D 1 STn�NxE
i S50' I3' 37'v
42. 77'
2 N21'50' 35'v
4 t. 73'
3 N50' 16' 37' E
42. 77'
4 534'4-9' i?' -
40. 06'
5 554'44'12'
13. 95'
i
3p_
��\
ATTACHMENT 2A — LEGAL DESCRIPTION OF SEWER MAINTENANCE AREA
Fasterly Remnant Parcel
(10.233)
EXHLBIL' A
A STRIP OF LAND 40.00 FEET WIRE IN BLOCK 3 OF BAY CITY, IN THE CITY OF SEAL
6EACA, COUNTY OF ORANGE, STATE OF CA - MORNL44 PER bLAP RECORDED IN
BOOK 3, PAGE 19 OF WSCELLANEOUS MAPS IN THE OFFICE OF THE COLP
RECORDER OF SAD CO'U'NT.Y, THE SOtrrHE4SIEKLY LINE OF WHICH STRIP OF
LA'KD IS DESCRIBED AS FOLLOWS.
COMMENCING AT THE POINT OF IrTERSECTION OF TEE W(TEINSION OF THE
SOUTHEASTERLY LINE OF FIRST STREET AND THE SOUT9WESTERLY LINE OF
OCEA.nr AV --%UE AS SAID STREETS ARE SHOWN ON THE MAP OF SAID RAY CITY;
LHENCE, NORTH SL'44'I2" WEST, I3.95 FEET ALONG THE SOUTEM ESTE,RLY LJ NE
OF OCEAN AVENUE AS SHOWN ON F.ECORD OF SURVEY 1 40 2002.1090 FMED AS
INSTRUMENT NO. 29030005162" W BOOK 193, PAGE 4 %OF RL•WRDS OF SURVEY IN
T'I.+E OFFI- OF THE COUNTY RECORDER OF ORANGE COUNTY. STATE OF
CALIPORNUL TO TM TRUE POINT OF BEGINNINO. SAID POINT ALSO BELtiG AT
THE INTERSECTION OF A CURVE CONCAVE NORTHWESTERLY AND HAVING A
RADIUS OF 500.00 FEET WITH A RADLAL TO SAID CURVE AT SAID POINT BEARING
NORTH SS1S'19 VrBST; THENCE, SOUTHWESTERLY, 106.15 FEET ALONG SAID
CURVE T'W=GH A CENTRAL ANGLE OF 12'09'49" TO A POINT OF CONRbOUTND
CURVE WITH A CURVE CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF
20000 FEET, A RADIAL THROUGH SAID POINT OF COMPOUND CURVE BEARING
NORTH 46 \VEST; THENCE, SOUTHWESTERLY, 2235 FEET ALONG SAID
200.00 -FOOT RADIUS CURVE THROUGH A CENTRAL ANGLE OF 624'07 TO A POINT
OF TANCENCY VVIM A LWEE BEARING SOiTITI 50 1 18' 37' WEST; TE= — NCE, SOUTH
50' 18'37- WEST ALONG SAID TANGENT LINE 42.77 FEET TO A POINT OF TANGWi ICY
W, A CURVE CONCAVE NORTHWES ERLY HAVIr1G A RADIUS OF 90.00 FEET;
THENCP, SOUTHWESTERLY. 1798 FEET ALONG SAID CURVE THROUGIi A
CENTRAL ANGLE OF 11'26'52" TO A POINT OF REVERSE CURVE WTIH A CURVE
CONCAVE SOUTHEASTERLY AND SAYING A RADIUS OP 4W 00 FEE"'[, A RADIAL
THROUGH SAID POINT OF REVERSE CURVE BEARAIG SOUTH 28'14.31° EA-- T;
THo4m SOLIII wrsTti Y. 7834 FEEL' ALOI'1G SAID 400.K-FoOrf &ADTUS C'UKV'E
THMOUal A C!Mkrj'RAI. ANGLE OF 11 °12 TO THE SOUTETWrESTELLY LINE OF
SAID RECORD OF SURVEY MO. 2002-IM.
THE N-ORTIIWESTr3ULY LINE OF SAI? 40.00- FOOT-W - IDE STRIP SHALL BE
LENGTHENED OR SHORTENED TO TERkIINATE SOUTHWESTERLY DJ THE
SOL*ITTW'ESL'ERI.Y LINE OF SAID RECORD OF SURVEY AND NORTSEAST E-RLY IN
THE SO.T MVESTF3;LY LINE OF SAID OCEAN AVENUE.
CONTAL-1L'10 10333 SQUARE FEET. MORE OR LESS.
ALL AS MORE PARTICULARLY SHOWN ON E};KMIT B ATTACHED HERETO .AND
\LAD'e A P.ART HERE".
ATTACHMENT 2B — DIA GRAM OF SEWER MAINTENANCE AREA
BXHIBI T B
Easterly Remnant Parcel
tf (ltl; ,.t3j
SCALE 1 " = 50'
MAP OF BAY CITY
POR. OF BLOCK B
M.M. 3 / 19
T7.
O DE;.rn Ravl LENGTH
1 1 12' 25' 400. 00' 79. 2
2 I t 26' 52' 9m 00' 17. 93'
3 5' 24' 071 200. 00' 22. 35'
12' 09' 49' 500. 00' 10& t $'
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ED
m
Cl BEAR 1 %NG 71S7ANCE
I a "32' 17' c5' Y 273-97
2 N17 3X 35 51 32'
3 N21' 50' 35' V 30 BA'
4 N50' 19' 37' E 42. 77'
5 S5 +' 4 4' 1 2' E : 3. 45'
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Page 21
ATTACHMENT F
NOTICE OF INTENT TO APPEAR BEFORE THE CITY.
OF SEAL BEACH REGARDING THE PROPOSED
RESOLUTION OF NECESSITY FOR PORTIONS OF
APN'S 043 - 171 -02 & 043 - 172 -13 FOR ACCESS AND
SEINER MAINTENANCE PROJECTS
ATTORNEYS AT LAW • FOUNDED 1873
LUCE, FORWARD, HAMILTON & SCRIPPS LLP
EMILY L. MADUENo, ASSOCIATE
DIRECT DIAL NUMBER 949.732.3709
DIRECT FAx NUMBER 949.251.5829
EMAIL ADDRESS emadueno@luce.com
September 8, 2009
VIA MESSENGER
Ms. Linda Devine
City Clerk, City of Seal Beach
City Hall
211 Eighth Street
Seal Beach, California 90740
2050 Main Street
Suite 600
Irvine, CA 92614
949.732.3700
www.luce.com
Re: Notice of Intent to Appear Before the City of Seal Beach Regarding The Proposed
Resolution of Necessity For Portions of APNs 043 - 171 -02 & 043 - 172 -13 for
Access and Sewer Maintenance Projects
Dear Ms. Devine:
Please deliver copies of the enclosed September 8, 2009 letter from Bay City Partners,
LLC, to each Council Member and the City Attorney as soon as reasonable practicable.
Bay City requests that the enclosed September 8, 2009 letter be entered in the record of
the proceedings held by the City of Seal Beach, on September 14, 2009, regarding adoption of
the resolution of necessity.
Very truly yours,
r
(j) - lad.jbiza ,
Emily L. Madueno
for
LUCE, FORWARD, HAMILTON & SCRIPPS LLP
ELM/
501014139.1
SAN DIEGO SAN FRANCISCO LOS ANGELES CARMEL VALLEY /DEL MAR ORANGE COUNTY • RANCHO SANTA FE
LUCE FORWARD 2050 Main Street
Suite 600
ATTORNEYS AT LAW • FOUNDED 1873 Irvine, CA 92614
LUCE, FORWARD, HAMILTON & SCRIPPS LLP 949.732.3700
www.luce.com
JOHN C. MURPHY, PARTNER
DIRECT DIAL NUMBER 949.732.3736
DIRECT FAx NUMBER 949.251.5820
EMAIL ADDRESS jmurphy @luce.com
September 8, 2009
VIA MESSENGER
Ms. Linda Devine
City Clerk, City of Seal Beach
City Hall
211 Eighth Street
Seal Beach, California 90740
Re: Notice of Intent to Appear Before the City of Seal Beach Regarding The Proposed
Resolution of Necessity For Portions of APNs 043 - 171 -02 & 043 - 172 -13 for
Access and Sewer Maintenance Projects
Dear Ms. Devine:
This firm represents Bay City Partners, LLC ( "Bay City "). Bay City owns property
located at the intersection of First Street and Ocean Avenue in the City of Seal Beach
( "Property ").
At the upcoming, September 14, 2009, meeting of the City Council of the City of Seal
Beach ( "City "), the Council is scheduled to consider adoption of a resolution of necessity
authorizing condemnation of portions of Bay City's Property - - portions of APNs 043 - 171 -02
and 043 - 172 -13. In the City's August 24, 2009 letter, you stated that this acquisition is "for
access and maintenance at First Street and Ocean Avenue" (the "Project ").
Intention To Appear And Be Heard
Bay City objects to the City's adoption of a resolution of necessity authorizing the City to
condemn portions of the Property. Bay City intends to appear at the City's September 14th
hearing on that resolution. We submit this letter to itemize some of the main legal and factual
flaws in the City's plan to condemn. Additional points may be presented at the hearing to the
extent the Council permits.
Inadequate Offer
"Prior to adopting a resolution of necessity pursuant to Section 1245.230 of the Code of
Civil Procedure," a condemnor is required to make the owner an offer to purchase the property
for the full amount of just compensation. (Govt. Code, § 7267.2; see also Code Civ. Proc.,
§ 1245.230, subd. (c)(4).)
501014075.1
SAN DIEGO • SAN FRANCISCO LOS ANGELES CARMEL VALLEY /DEL MAR ORANGE COUNTY RANCHO SANTA FE
LuCE lF®RWMW
ATTORNEYS AT LAW • FOUNDED 1873
LUCE, FORWARD, HAMILTON & SCRIPPS LLP
Ms. Linda Devine
September 8, 2009
Page 2
The City failed to make an adequate offer to compensate Bay City for the City's
acquisition of a portion of the Property. In particular, the offer ignores Bay City's pending
development application and the reasonably probable prospect of future profitable use of the
Property. '
The offer also fails to consider the diminution in value to the remainder in that the offer
does not provide for severance damages as required by Code of Civil Procedure section
1263.410 et seq.
The City's extremely low offer of $48,400 is substantially below market value and is
tantamount to no offer at all.
The Pro iect Is Not Planned In A Manner That Is The Most Compatible With
The Greatest Public Good And The Least Private Iniury And
The Property Is Not Necessary For The Proiect
Bay City further objects to the City's adoption of a resolution of necessity because the
City cannot determine that the Project is "planned or located in the manner that will be most
compatible with the greatest public good and the least private injury." (Code Civ. Proc.,
§ 1245.230, subd. (c)(2).) The City also cannot determine that the "property described in the
resolution is necessary for the proposed project." (Code Civ. Proc., § 1245.230, subd. (c)(3).)
The City did not engage in a real fair - minded balancing of the public benefit and private
injury from the Project. It has not considered several less intrusive alternatives, including
moving the location of the gate and other alternatives to decrease the scope of the take. For these
reasons, among others, the City cannot determine that the Project is compatible with the "least
private injury" or that the Property is necessary for the Project.
Uneconomic Remnant
Government Code section 7267.7 requires condemnors to condemn an entire property if
the contemplated taking will leave an "uneconomic remnant." (Govt. Code, § 7267.7; see also
Code Civ. Proc., § 1240.410, subd. (a).) The take as currently conceived will create a land-
locked parcel. Parcel 4, which is now a stand -alone parcel suitable for development, will be
completely land - locked in the after - condition. The City must condemn the entire Property as it
would otherwise leave an uneconomic remnant.
If the City fails to acquire the uneconomic remnants, it cannot pass a resolution of
necessity that meets the conditions of Code of Civil Procedure section 1240.030 that "[t]he
501014075.1
ILUCE FORWARD
ATTORNEYS AT LAW • FOUNDED 1873
LUCE, FORWARD, HAMILTON & SCRIPPS LLP
Ms. Linda Devine
September 8, 2009
Page 3
project is planned or located in the manner that will be most compatible with ... the least private
injury." (Code Civ. Proc., § 1240.030, subd. (b).)
Appraisal Reimbursement Remains Unpaid
In Bay City's May 29, 2009 letter to the City Manager of the City of Seal Beach, Bay
City requested $5,000 to obtain an independent appraisal of the Property. Bay City's request
was made pursuant to Code of Civil Procedure section 1263.025. The City has failed to pay the
$5,000 to Bay City.
No Public Necessity
Bay City further objects to the City's adoption of a resolution of necessity because the
City has not given Bay City enough time to analyze and respond to the City's offer in light of
Bay City's own appraisal information.
Significantly, the City faces no urgency to acquire the Property. Bay City has not barred
the public from access across certain portions of the Property. For this reason, among others, the
City cannot determine that the "public interest and necessity require the proposed project."
(Code Civ. Proc., § 1245.230, subd. (c)(1).)
Other Obiections
The City has also failed to honor its other obligations under the pertinent state and federal
statutes. and regulations. (Code Civ. Proc., §§ 1230.010- 1273.050; Govt. Code, § 7260 et seq.;
42 U.S.C. § 4601 et seq.; Cal. Code Regs., tit 25, § 6000 et seq.) Some examples:
a) The City has failed to engage in good faith negotiations (Govt. Code, § 7267.1,
subd. (a); Cal. Code Regs., tit 25, § 6182(a); 42 U.S.C. § 4651(1); 49 C.F.R.
§ 24.102(a)); and
b) The City has otherwise ignored its obligations under the pertinent statutes and
regulations (Code Civ. Proc., §§ 1230.010- 1273.040; Govt. Code, § 7260 et seq.;
42 U.S.C. § 4601 et seq.; Cal. Code Regs., tit 25, § 6000 et seq.).
501014075.1
ATTORNEYS AT LAW • FOUNDED 1873
LUCE, FORWARD, HAMILTON & SCRIPPS LLP
Ms. Linda Devine
September 8, 2009
Page 4
In sum, Bay City is willing to discuss all outstanding issues, including the existing
development application and the future use of the entire ownership. Bay City respectfully
requests that the resolution of necessity be deferred so that such global discussions may occur.
Very y ,
John C. Murphy
of
LUCE, FORWARD, HAMILTON & SCRIPPS LLP
JCM/
cc: Honorable Mayor and Councilmembers, City of Seal Beach
Quinn M. Barrow, City Attorney
501014075.1