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HomeMy WebLinkAbout081-90RESOLUTION'NO. 81-90 A I~SOLUTION OF NECESSITY FOR THE EXTINGUISI'IMENT BY EMINENT DOl~IN OF AN EASEMENT OVER REAL PROPERTY LOCATED IN THE TOWN OF D~ILLE ~-ND AUTHORIZING CONDE~ATION PROCEEDINGS WHEREAS, the Town Council on October 5, 1987, approved Final Development Plan PUD 85-5 and Tentative Map 7058 (hereinafter "Subdivision") providing for the construction of necessary homesites, streets and other improvements within the Town of Danville; and WHEREAS, a portion of the Subdivision property was and is burdened by an easement over the property, as more particularly described in Exhibit "A", attached hereto and incorporated herein, which begins on property owned by the adjacent landowner ("Dominant Tenement"), runs over the Subdivision property, and leads to the end of Still Creek Road, a residential street; and WHEREAS, the Town Council has authority to manage and control traffic, and to protect the health, safety and welfare of the public; the Town Planning Commission and Town Council recognized concerns about public safety and welfare, and about increased traffic on Still Creek Road, which would result from the Subdivision and, as a result, the Town Council did not extend Still Creek Road into the Subdivision as a public right of way except for emergency vehicle and pedestrian access; and WHEREAS, the continued existence of the easement is incompatible with the termination of Still Creek Road at the point at which Still Creek Road meets the boundary of the Subdivision property and the subject easement; and WHEREAS, the Town has authority and power to protect health and safety by guarding against water and geologic hazards; and the Town has required the placemerit of a detention basin on the Subdivision property to catch water and to prevent erosion and landslides; and the Town, acting on the advice of the Contra Costa County Flood Control District, has determined that such detention basin is most effectively placed in the vicinity of the subject easement; and WHEREAS, the continued existence of the easement is incompatible with the detention basin, in that flooding of the basin would prevent use of the easement; and WHEREAS, the Town has the authority to provide for recreation areas and parks, and to prevent unnecessary degradation or destruction of the open space as a result of easements or road construction; and part of the property subject to th~ easement will be conveyed / to the East Bay Regiona~ Park District or to the Town for open space use; and WHEREAS, the continued existence of the easement would be incompatible with public use of the open space area in that it would result in a private road running through that open space area; and WHEREAS, the Town has the authority to regulate subdivision design and improvements, including traffic circulation, placement of the detention basin, and placement of lots; and WHEREAS, the Town has the authority under Code of Civil Procedure, Section 1240.410 to extinguish any "remnant" of the subject easement remaining after extinguishment for the purposes set forth herein; and WHEREAS, the acquisition and extinguishment of any portion of the easement would make the remaining portions uneconomic remnants in that the remaining portions would not connect to any other roads or means of access; and WHEREAS, the Town has determined that it is not in the public interest to allow the easement to access the public roads created by the Subdivision and that it is the public interest to extinguish the easement for the reasons set forth in this Resolution; and WHEREAS, it is necessary for the Town to acquire and extinguish the subject easement to accomplish the purposes and to achieve the objectives as set forth in this Resolution; and WHEREAS, the Town has authority to exercise the right of eminent domain to accomplish the objectives herein pursuant to Government Code, Section 37350.5, and related statutes, and local law, and pursuant to the Constitutions of the United States and of the State of California; and WHEREAS, on Tuesday, March 6, 1990, after timely notice, the Town Council, by Resolution No. 43-90, approved its Intent to Adopt Resolution of Necessity for extinguishment of the subject easement, and gave timely notice of its intent to adopt this Resolution of Necessity. NOW, THEREFORE, BE IT RESOLVED that the Town Council finds and determines and hereby declares the following: 0 The description of the easement to be taken and its general location are attached hereto and incorporated herein in Exhibit "A". The easement was created by "Easement Deed" recorded on November 26, 1980 at Book 10107, Page 58, of the Official Records of Contra Costa County and is appurtenant to the Dominant Tenement. 2 · · · . 1 . · The extinguishment of the easement as shown on Exhibit "A" is for the public use: to ensure public traffic control and safety; to protect the public against water and geological hazards; to ensure the preservation of open space for public use; and to properly regulate design and improvements· Traffic control and safety considerations require that Still Creek Road not be extended as a public right of way into the subdivision, except for emergency vehicle and pedestrian use. Existing houses and driveways front directly on Still Creek Road, and pedestrians and children run, walk and play in the area. Increased circulation on Still Creek Road would endanger existing and future residents· The public has an interest in ensuring, through elimination of the easement, that no future road leads to Still Creek Road and increases traffic circulation on such road. The detention basin will protect the public from water and geologic hazards· The proper location of the detention basin is within the easement area. The location of the detention basin in the area of the easement requires that the easement be extinguished to ensure continued integrity of the detention basin, and unrestricted access thereto for maintenance· Pursuant to the Conditions of Approval for PUD 85-5 and Tentative Map 7058, at Condition B.6, a portion of the property over which the easement runs will be dedicated as open space· The public has an interest in ensuring free and unrestricted access over such open space· The Town planning staff, Planning Commission, and Town Council have participated in and approved the subdivision design and improvements, including the traffic circulation system, the location of homesites, the proposed grading, and the saving of trees. The public interest necessitates extinguishing the easement to implement and preserve such design and improvements· It is not in the public interest to allow the existing easement to access the public roads created by the Subdivision, because the creation of a public road from the Subdivision to the Dominant Tenement would require extensive grading, and because the Town desires that the Subdivision traffic exit through the main entrance at the Diablo Road/Hidden Oaks intersection, which is planned for signalization. The Town has authority to exercise the right of eminent domain to accomplish the objectives herein pursuant to Government Code Section 37350.5, and related statutes, and local law, and pursuant to the Constitutions of the United States and of the . 10. 11. 12. 13. State of California, and the Town has authority under Code of Civil Procedure Section 1240.410 to extinguish any remnant of the subject easement remaining after extinguishment for the purposes set forth hereunder. The public interest and necessity require the extinguishment of the subject easement. The referenced traffic control measures, detention basin location, open space preservation, and control over design and grading, all require extinguishment of the easement. The extinguishment of the easement is planned or located in the manner that will be most compatible with the greatest public good and the least private injury. The public interest and public good is evident for the traffic, detention basin, open space preservation and design control reasons stated herein; the location of the traffic control measures, detention basin, open space and design control measures maximizes the public benefit with the least possible private injury. The closure of Still Creek Road has already eliminated effective use of the easement for the Dominant Tenement property owner. Further, the Dominant Tenement property owner currently has other access for ingress and egress from the Dominant Tenement. One such access, to Diablo/Blackhawk Road, lies over a parcel of land just east of San Andreas Drive identified as Assessor's Parcel Number 215-040-02. This parcel directly adjoins the Dominant Tenement property, and is very close to the subject easement. Private injury resulting from the extinguishment of the easement is thus minimal, if any. The development potential of the Dominant Tenement will be determined by factors such as General Plan policies, topography, hillside restrictions and environmental constraints. The easement as described in Exhibit "A" is necessary for the proposed project, i.e., the extinguishment of such easement is necessary for the implementation of the referenced traffic control measures, detention basin, open space, and design control measures. The closure of Still Creek Road, and the location of the detention basin within the easement, are further inconsistent with the use of the easement for pedestrian and animal ingress and egress purposes. With regard to pedestrians, foot traffic in and around the detention basin should be minimized for health and safety reasons. With regard to animal traffic, the closure of Still Creek Road and the location of the detention basin make animal traffic to Still Creek Road unfeasible and unsafe for current and future residents of the area. The closure of Still Creek Road, the location of the detention basin within the easement area, and the proposed traffic circulation plan within the Subdivision property further is inconsistent with placement of public utilities, storm and sanitary sewers, pipelines, water, gas, oil, and street services, together with the necessary poles and conduits, within the easement area. Many of such utilities and services are usually placed underneath, above, or adjacent to a constructed roadway; and here the proposed traffic circulation plan and closure of Still Creek Road do not provide or allows for a roadway to be built along the easement area; further, the owner of the Dominant Tenement has adequate alternative ingress and egress for such services. 14. The Town Council incorporates by reference into this Resolution the following to support the findings made in this Resolution: the administrative records for all Planning Commission and Town Council public hearings for Development Plan PUD 85-5 and Subdivision Map 7058, including the Conditions of Approval for such project; all documents, including the staff report, oral and written testimony submitted for the public hearing on this Resolution, as well as the administrative record for this hearing; all letters written to and received by the owner of the easement regarding the easement and the proposed condemnation; and all documents of public record in the Town of Danville offices and in other state or local offices, or otherwise of public record, with regard to Development Plan PUD 85-5, Subdivision Map 7058, the referenced easement, and the referenced detention basin. 15. The offer required under Government Code, Section 7267.2 has been made to the owner(s) if record of said property. BE IT FURTHER RESOLVED that the City Attorney for the Town of Danville is hereby authorized and directed to do the following: . To extinguish the easement as described in Exhibit "A" in accordance with the provisions for eminent domain in the Code of Civil Procedure (Section 1230.010, et seq.) and the Constitution of the State of California. · To prepare and prosecute such proceedings in the proper courts as are necessary for such acquisition. · To deposit, or cause to be deposited, the probable amount of compensation, based on an appraisal, and to apply to said court for an order permitting the Town to take immediate possession and use said property for said public uses and purposes. BE IT FURTHER RESOLVED that all other officers of the Town and other authorized personnel are hereby authorized to perform such duties as may be required for the successful completion of said condemnation proceedings. 5 ADOPTED by the Town of Danville at a Regular Meeting on April 17, 1990, by the following vote: AYES: NOES: ABSENT: ABSTAIN: GREENBERG, LANE, RITCHEY, SCHLENDORF, SHIMANSKY NONE NONE NONE ATTEST: APPROVED AS TO FORM: 6