CALIFORNIA EMINENT DOMAIN LAW BLOG

Giving up on one site, the Hart district is eyeing other possible high school locations

By Tammy Marashlian

It’s back to the drawing board again as the William S. Hart Union High School District has decided not to pursue the Sterling-Gateway location as a future site for a Castaic high school.

“Realistically, I don’t really think we have much choice but to move on,” Superintendent Jaime Castellanos said in a phone interview last week. “I don’t think we’re going to get the Valencia Commerce Center on board. They’re asking us to not put the school there.”

The issues stem from land-use restrictions, which prevent a public or private high school from being built on the Sterling-Gateway property. The land borders the Valencia Commerce Center.

Castellanos does not think the restriction will be waived by officials with The Newhall Land and Farming Company given the opposition from business owners and property owners in the Valencia Commerce Center.

Businesses are concerned that a high school built in the industrial area would create too much traffic and student safety hazards.
Business owners were pleased with the district’s decision.

Jerry Gonzalez, president of Maria Elena’s Authentic Latino Inc., located on Avenue Sherman, said he applauded the district for doing the right thing.

“It just didn’t make sense to put a high school within such close proximity,” he said.

Others were critical of the Hart district for taking Sterling-Gateway off the list of potential high school sites.

Tony Bouza, who represents Hunt Williams, the owner of the Sterling-Gateway location, was surprised that the Hart district is not considering the location anymore.

Any concerns or issues with the location of the high school could have been resolved, he said.

“This really is the right location for a school and there is no reason for it not to be there,” he said.

Castaic has been waiting for a high school for some nine years.

Besides the advantages to the community of Castaic, the high school is needed to relieve overcrowding at West Ranch and Valencia high schools, to which Castaic residents drive their students daily.

“It’s unbelievably disappointing,” said Renee Sabol, chair of the land-use committee for the Castaic Area Town Council, which has long fought for a high school in Castaic.

She said more should have been done to meet the needs of the business owners in the Valencia Commerce Center, rather than giving up on the Sterling-Gateway site.

“I don’t think that anyone formed any sort of committee to listen to any of their concerns and mitigate them,” she said.

Hart district officials have met with Newhall Land and Farming, which issued the land-use restrictions, and the association of business owners in the Valencia Commerce Center to mitigate the concerns, Castellanos said.

For Sabol, it’s the Castaic community that’s ultimately hurt.

“This community has been jerked around on this subject for too many years,” she said.

Sabol favored the Sterling-Gateway site because it had adequate access to roads and utilities and wasn’t in the middle of a residential area.

“All of us went into this with the best of intentions,” she said. “All of us really did think that we had found the right site and that this is the right place to go.”

Whatever the next site will be, the Hart district would like to get the support of the Castaic Area Town Council, Castellanos said.

The council, an elected advisory body representing Castaic and Val Verde, previously endorsed the Sterling-Gateway site.

The district is again looking at properties that were previously discussed for a high school site, including the Hasley Sloan site, which is owned by the Santa Clarita Valley Facilities Foundation.

The foundation is a non-profit organization that assists the Hart district with purchasing and developing school sites.

Other sites include Romero Canyon, school board member Gloria Mercado-Fortine said during a Democratic Alliance for Action meeting Thursday.

“I am confident that we will come to some agreement,” she said.

The Hart district also plans to open discussions with Hunt Williams about land near a residential community just south of Del Valle Road, Castellanos said.

When asked about the possibility of initiating eminent domain for the Sterling-Gateway site, Mercado-Fortine said, “That would be difficult. We’d be faced with lawsuits.”

While everybody seems to want a high school for Castaic, “Nobody wants a high school in their backyard,” Mercado-Fortine said. “That’s the bottom line.”

By considering another site, the Hart district is able to keep to its timeline to have a high school for the Castaic community by 2013, Castellanos said.

“I don’t want to keep putting our hopes on the commerce property,” Castellanos said. “The longer we wait, the longer it makes the high school wait.”

The Signal: http://www.the-signal.com

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By Xochitl Peña

The city plans to use eminent domain to acquire the final property needed to begin major road renovations along Monroe Street from Avenue 49 to Avenue 52.

After about a year of negotiations, the property owner, Muriel Weiner, and the city have not been able to agree on a purchase price.

The Indio City Council last week approved the use of eminent domain, which allows a city to take private property for public use.

Mark Wasserman, assistant to the Indio city manager, said the improving Monroe Street is a priority for the city.

These particular improvements from Avenues 49 to 52 run from the La Quinta border, past the Empire Polo Club to the south side of Indian Palms Country Club.

“Obviously with the two music festivals (Coachella Valley Music and Arts Festival and the Stagecoach Country Music Festival) right there it’s very important to get people in and out of the festival quickly and safely,” Wasserman said.

The improvement plan is to eventually transform that rural stretch of road into a five-lane street with two lanes each way, a turning lane, Americans with Disabilities Act-approved sidewalks, gutters and a multi-use trail that runs alongside the polo fields.

Jim Collins, chief executive officer of Include Me, Inc., a nonprofit agency that provides services for persons with disabilities, appreciates the construction of sidewalks in that area.

“You have no pedestrian path of travel between Avenue 50 and Avenue 52 at this point,” said Collins, who uses a motorized wheelchair to get around. “There’s no way for anyone to get to any of the events at the polo (fields). I’d have to roll in Monroe Street with cars going by at 35 to 50 mph.”

Michael S. Kahn, attorney for the owner, said his client supports the public use of the land, but does not think the city is offering a fair price.

“We belive it’s worth more than the $32,000 they are now offering,” he said.

His client had an independent appraisal conducted that came in at slightly more than $100,000, Kahn said.

The city in October offered Weiner $62,500 for her two parcels — one is 7,980 square feet and the other is 152 square feet — based on appraisals conducted in late 2007 and August 2008.

Then on March 11, the city rescinded that offer based on updated appraisals taken and reduced its offer to $32,182.

City officials say the changes in the real estate market prompted the city to re-appraise the parcels.

Wasserman said the improvements to that area will be done in two phases. The first phase is estimated to cost $1.5 million and will include drainage improvements and the undergrounding of utilities.

He said the goal is to have those completed in time for the concerts this coming in the spring.

The second phase is estimated to cost $1.7 million and would include the road widening, sidewalks, landscaping and the trail, and would be complete by spring 2011.

Funding for the improvements will come from the state gas tax and voter approved Measure A funds.

“The council said four years ago roads were their top priority. We’ve continued to use those as our guiding principals,” Wasserman said.

 The Desert Sun: http://www.mydesert.com

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By Scott Mobley

Two property owners have sued Redding for inverse condemnation, saying Cypress Avenue Bridge construction robbed them of income from a pair of office buildings just east of the span.

The suit, filed in Shasta County Superior Court late last month, seeks unspecified compensation for taking the property and other damages.

Richard Downs, a real estate agent in Redding, and W. Jaxon Baker, a developer, own 100 and 150 Cypress Ave. The dark brick and glass buildings once housed Placer Title, but these days are leased by Cypress bridge contractor Kiewit Pacific and PB Americas, the consultant the city hired to manage construction at the bridge and Stillwater Business Park.

In their complaint, Downs and Baker claim the city “entered onto, physically invaded, damaged and took possession” of their property without permission, judicial authorization or just compensation, mainly by blocking access.

Bridge construction has devalued the property and deprived the owners of investment income, according to the complaint.

The suit also accuses the city of causing more than $100,000 in physical damage to the property.

Finally, the suit claims city dickering over whether to take the property by eminent domain cost Downs and Baker rental income.

Redding must answer the suit by June 8 and has yet to file a response, said Lynette Frediani, the assistant city attorney handling the case.

But the city will deny all three allegations, Frediani said.

“None of the construction activities undertaken by the city on the Cypress bridge project has blocked, restricted, or impaired access to the plaintiffs’ property,” Frediani said. “In fact, the access to their property is via Hemsted Drive, not Cypress Avenue where the project work is being conducted.”

Frediani will argue Downs and Baker have no inverse condemnation case against the city, noting courts have denied compensation to property owners with land abutting streets widened for better traffic flow.

Courts have maintained even restricted access because of construction doesn’t amount to a taking of property - especially if the restriction is temporary, Frediani said.

Frediani also denied the city waffled on eminent domain at 100 and 150 Cypress Ave.

Redding did try, and failed, to negotiate for the property before groundbreaking in 2007. And the city also started the eminent domain process for the property, Frediani said.

But Redding officials wound up redesigning bridge construction so the land would not be needed, Frediani said. The city never held an initial eminent domain hearing.

Downs and Baker don’t have a solid foundation for claiming costs from any delay between the city’s initial intention to start eminent domain and abandoning it, Frediani said.

A California court once found a 15-year delay between an agency’s tentative decision to take land for a freeway and its actual seizure of that land through eminent domain “reasonable,” given the lengthy required environmental studies, she said.

Kiewit started work on the $76 million Cypress bridge replacement in April 2007 and must finish by December 2010 under its contract with the city.

Redding Record Searchlight: http://www.redding.com

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By Aaron Claverie

 TEMECULA —- The city has filed two lawsuits against a landowner to acquire about 3 acres of land near Temecula Creek, parcels the city wants to convert into riparian habitat and wetlands.

The city is required to provide the habitat and wetlands to replace the federally protected land that is being paved over to widen Pechanga Parkway, a $26 million project to alleviate traffic congestion in the southern section of the city.

John Heffernan, manager of Borchard-Temecula LP, said that he expects the city and his Newport Beach land-holding company will broker a settlement that has the city paying about $36,000 for the land, about 20 percent more than the land had been appraised for.

“We don’t want to go to trial,” Heffernan said.

The city this year is expected to finish widening the parkway, a heavily trafficked corridor that carries Redhawk and Pechanga Resort & Casino traffic, from four to six lanes, three lanes in each direction from the bridge at Temecula Parkway to Wolf Valley Road.

The widening project, which started last year, is being paid for with about $18 million in fees from the Wolf Creek residential development, which is located on the east side of the parkway —- plus $4.4 million from the Pechanga tribe, a $4 million federal grant and reimbursements from various other agencies.

The city filed two separate lawsuits against Borchard-Temecula in February to condemn two parcels of land through the eminent domain process after an agreement couldn’t be reached on a price.

Heffernan said his company’s position was that the land the city was looking to buy should be the same price as the acreage that was taken by the city when Borchard-Temecula was developing a shopping center near the intersection of the Avenida de Missiones and Temecula Parkway.

“That’s the real number,” he said, dismissing the appraised value of the parcels that was submitted to the courts by a Simi Valley-based real estate appraiser.

City officials declined to comment on the suits.

The sequence of events that led to the city filing multiple lawsuits to create a relatively small patch of open space has its beginning in the sometimes convoluted process of building a road that cuts through a waterway, in this case Temecula Creek.

According to the narrative detailed in the text of the lawsuit, the city built storm drain facilities as it worked to widen Pechanga Parkway.

Building those facilities resulted in “permanent impacts” to one-tenth of an acre and temporary impacts to two-tenths of an acre of wetland waters regulated by the U.S. Army Corps of Engineers and the Regional Water Quality Control Board.

It also caused permanent impacts to about an acre of riparian habitat, which is river bank vegetation that is regulated by the California Department of Fish and Game.

When a public entity does anything that affects protected wetlands, it is required to compensate for that action.

In the small print of the suit, the city is proposing maintaining the wetlands for 5 1/2 years and then offering the land back to Borchard-Temecula.

Heffernan said it makes more sense for the city to keep the land and he said it could be converted into a linear park or a trail for horses.

North County Times: http://www.northcountytimes.com

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 By Sue Doyle

A $1 billion plan to widen the San Diego Freeway through the Sepulveda Pass is the latest victim of the state’s financial crisis, with a $730 million shortfall threatening to delay - or even cancel - a car-pool lane that could ease commutes for San Fernando Valley motorists.

The 10-mile car-pool lane project on the northbound 405 between the Santa Monica (10) and Ventura (101) freeways was supposed to begin in mid-May, largely paid for with bond revenue awarded two years ago. However, that money was temporarily rescinded in December as the Legislature struggled to close a $42 billion deficit.

Transportation officials are now scrambling to identify other sources of revenue to keep the project on schedule. Adding to the sense of urgency is the potential loss of $200 million in federal stimulus money if the project is delayed.

“It’s unfortunate,” said Krishniah Murthy, Metro deputy chief capital management officer for the Metropolitan Transportation Authority. “But that’s where we are today.”

The Metro board meets Thursday, when it’s scheduled to consider awarding the construction contract for the five-year project. Members could opt to award the contract in the hope of somehow finding more money; decide to build the project in phases; or postpone the improvements and risk losing the funding to other freeway projects.

State officials have said they believe the bond revenue for the freeway lane could be reinstated in the next fiscal year.
Right now, the freeway project has about $378 million - including the $200 million in stimulus money - enough to continue the project for 15 months, Murthy said.

About $13 million in local money and $48 million from a state traffic relief program are secured for the lane.

The federal government has kicked in $117 million, separate from the stimulus money, contingent on construction starting in 2009.

Murthy said federal leaders are aware of the state’s predicament, so they are unlikely to withdraw the $117 million allocation.

In 2007, when Caltrans introduced several proposals for widening the freeway, some residents were outraged by one plan to build car-pool lanes on the north- and southbound sides of the freeway. That project would have required the razing of 37 homes, two commercial properties and a landmark Lutheran church in Brentwood.

State officials bowed to community pressure and agreed on a scaled-back plan to build only the northbound lane. Six homes near the freeway’s Valley Vista Boulevard exit will be taken through eminent domain proceedings.

Three of those homes are now in escrow, one has a signed contract and the two others will most likely accept the state’s offer, said Judy Gish, a spokeswoman for the state Department of Transportation.

If the Metro board decides to proceed with the project, even in phases, officials would first have to complete design and engineering work. This includes relocating utility lines and creating a traffic management plan that would also be created to handle the flow of vehicles during construction.

Even if the project gets under way, Murthy said, it could be suspended if their financing plans crumble - although terminating the contract could cost as much as $30 million.

“If we don’t have the money to finish it, we would have to demobilize the contract and that would be very expensive,” Murthy said.

“We will be very cautious as to what items will go full speed.”

If the freeway expansion plans do collapse, it would bring an unexpected dead end to a story that took off with incredible force.

A delegation of Los Angeles and Metro officials lobbied hard for a car-pool lane, persuading the California Transportation Commission to allocate $730 million. The Sepulveda Pass project was the largest recipient of the money, which came from Proposition 1B, a $19.9 billion transportation bond approved by voters in 2006.

The victory for Los Angeles enraged San Gabriel Valley officials, who wanted money for their own car-pool lane on the eastbound 10 Freeway between West Covina and Pomona.

The Daily News: http://www.dailynews.com

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By Dennis Wyatt

Driving Louise Avenue — one of the heaviest traveled streets in Manteca and Lathrop — will get a lot easier by this time in 2010. That’s when work is expected to be completed on two projects to widen narrow segments of Louise Avenue from two lanes to four lanes.

One project involves Manteca widening Louise Avenue to four lanes where it crosses the Union Pacific tracks between Airport Way and Union Road. The biggest delay had been obtaining routine California Public Utilities Commission approval to have PG&E relocate a natural gas line valve that is in the right-of-way needed for an eastbound lane on the southeast corner of the crossing.

The council Tuesday is expected to go ahead with eminent domain proceedings to acquire the PG&E property needed for the widening.

The railroad extended the concrete sections for vehicles between the tracks to accommodate the widening during closures for maintenance in 2008.

Lathrop has scheduled work for this year to widen Louise Avenue from Fifth Street to the point where Lathrop’s city limits meet with Manteca at the Union Pacific Railroad track. The completion date is this summer. The cost of Lathrop’s Louise Avenue improvements is estimated at $2.1 million. Once the railroad crossing is widened, Louise Avenue will have only three segments that are still two lanes between Cottage Avenue in Manteca and McKee Boulevard west of Interstate 5.

The three segments are all in Manteca. The stretch from Airport Way to Lathrop’s city limits in front of the Manteca Unified School District headquarters complex will be widened in part when Villa Ticino East is built on the south side of Louise Avenue. Manteca does not currently require developers to put improvements on major streets that do not front their property. That means the city needs to find a way to fund part of the widening.

There is also a short segment just east of Main Street that involves taking property from a half dozen homes to widen the street. There is no development that can be put on the hook for the widening of the segment and there is no game plan in place by the city to proceed although the second Measure K approval cycle is one source of funds being sought to get the project moving.

The other segment is the Highway 99 overcrossing. City leaders had hoped the Caltrans widening project would include widening the bridge deck but so far the state has indicated that is not the case as Highway 99 can be widened to six lanes starting in 2011 with the existing bridges in place at Cottage and Louise avenues.

The Manteca Bulletin: http://www.mantecabulletin.com

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By Craig Tenbroeck

A thirst for more local water may prompt the city to start eminent domain proceedings on a slice of land near Highway 76.

Oceanside has drilled two wells in north Oceanside that tap into the Mission Basin. It wants to acquire an easement on a vacant piece of private land to run underground water lines that would connect the wells to the city’s purification plant.

As of Tuesday, however, negotiations with the property owner — Goli Enterprises Inc. — were at a stalemate, said William Marquis, Oceanside’s senior property agent.

The City Council will decide Wednesday whether acquiring the property rights through eminent domain is in the public interest. Approval would require four or five council votes.

Goli Enterprises’ attorney, John Credell, did not return calls for comment this week. In a letter to the city a few months ago, he said the company was looking to develop a hotel on the property at Highway 76 and Foussat Street.

“The acquisition by eminent domain may block the project in its entirety, change the nature of the project, change the size of the project, make the project less profitable, (and) decrease revenues to the city of Oceanside and surrounding businesses,” Credell wrote.

Marquis said Oceanside’s interest is only in the narrowest and “least usable portion of the property.” The owner could still use it for parking, he said.

Oceanside built the Mission Basin Groundwater Purification Facility in 1994 to turn groundwater into potable water and bolster its local supply. Five wells in the city are producing, but three “are not performing as well as expected,” a city report states.

Councilman Jerry Kern, a water policy wonk, called them “dry holes.”

The new wells, near Fire Station No. 7 on Mission Avenue, look to be “real good producers,” Water Utilities Director Lonnie Thibodeaux said Tuesday. Each should produce more than a million gallons a day.

Local water has become a prized commodity, as California is experiencing a harsh drought. Gov. Arnold Schwarzenegger declared it a state of emergency last week.

Oceanside has offered Goli Enterprises $26,301 in exchange for the 1,968 square feet of permanent easement and temporary  use of 11,547 square feet of land for construction. Thibodeaux said alternative routes for the water lines would pose difficult construction issues, raising the cost of the project substantially.

North County Times: http://www.nctimes.com

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By April Charlton

San Luis Obispo County might invoke its eminent-domain powers so that the first phase of the Willow Road interchange project in Nipomo can begin as scheduled this summer.

There are 20 parcels between Pomeroy and Hetrick roads that the county needs to secure so construction on the project’s first phase can begin in June.

That work includes extending Willow Road just west of Pomeroy Road through mostly undeveloped property out to Hetrick.

Seventeen of the 20 parcels have been acquired, and negotiations with the three remaining property owners are continuing, said Dave Flynn, county traffic engineer.

All of the properties were appraised last year by an independent consultant hired by the county. The issue with the three remaining properties is those appraisals.

“It really gets into what is the appropriate value of the property,” Flynn told the county Board of Supervisors Tuesday, when the body unanimously adopted a resolution of necessity.

That resolution is the first step in eminent-domain proceedings, which allow the government to obtain private property for public use, and is mostly used when the property can’t be purchased from the owner voluntarily.

“We do need to establish the need for acquisition of these parcels,” Flynn said.

Eminent-domain laws changed several years ago, allowing affected property owners to obtain counter-appraisals, which are paid for by the governmental entity looking to acquire the property, Flynn added.

He said the three property owners could request counter-appraisals of their parcels, and that the county would have to pay — up to $5,000 for each one — for the service.

The county needs to acquire less than a half-acre of the 2-acre undeveloped Knotts parcel near Pomeroy that will provide direct access to an extended Willow Road, as well as 1.2 acres of a 5-acre parcel along Hetrick.

Additionally, the county needs to secure 2 acres of a 40-acre undeveloped parcel that’s almost in the middle of the proposed extension. The acquisition will split the parcel in half, Flynn said.

The three property owners did not attend Tuesday’s hearing.

The second phase of the project includes extending Willow from Hetrick to Highway 101, and then on to Thompson Road, where a full interchange with onramps and offramps is planned. Construction on that portion of the project isn’t expected to begin until 2011.

Santa Maria Times: http://www.santamariatimes.com

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By Stephen Baxter

A plan to bring California’s 800-mile, $45 billion high-speed rail project through San Jose left dozens of local residents wondering about the fate of their homes.

Rail leaders are proposing to bring the new rail through several San Jose neighborhoods next to the Caltrain line, which would mean adding two sets of tracks and widening the corridor from 64 feet to 102 feet.

Willow Glen resident Leslie Roberts, who lives near Fuller and Bird avenues close to the Caltrain tracks, said she fears she could lose her home if the corridor needs to be widened.

“I just spent $120,000 updating that house, so I’m heartbroken,” said Roberts during a community meeting with high-speed rail authority leaders at the Gardner Community Center on Feb. 25 that drew more than 60 people.

Some neighbors near the Caltrain tracks asked whether their homes would be sold by the rail authority or taken by eminent domain, rail leaders said taking the property would be the last resort.

“Caltrain is the preferred corridor, but it’s not the only possible way,” said Gary Kennerly, the rail authority regional manager for the San Jose to Merced section. “If there’s fatal flaws, it could change.”

State voters approved the sale of bonds for the high-speed rail project in November 2008, which will run trains from Sacramento to San Diego at a top speed of 220 mph. Its first phase will connect San Francisco and Los Angeles through San Jose’s Diridon station near the arena. Planners expect 86 high-speed trains and 15,000 passengers arriving at Diridon station daily.

The project is billed as a cheaper and more environmentally conscious alternative to expanding airports and freeways as the state’s population grows.

In San Jose, the proposed route runs parallet to the Caltrain tracks, which basically run from the south along State Route 87, turning near Fuller Avenue in Willow Glen to cross Interstate 280 to Diridon train station. The route would continue north near Stockton Avenue up to San Francisco.

The entire line would have a dedicated right of way and walls or bridges to keep out people and wildlife. Dave Mansen, a Parsons Corp. consultant and regional team project manager for the California High-Speed Rail Authority, said the route being explored is the authority’s preferred option, but the Union Pacific Railroad Co. told the authority not to assume it could use the Caltrain tracks. Union Pacific has traffic rights to the tracks, which are owned by the Peninsula Corridor Joint Powers Board.

Two separate environmental reviews will take place for San Jose’s portion of the project, from Diridon station north to San Francisco and from Diridon south to Merced. For the Diridon to Merced portion, an open house will be held on March 25 to pose questions to the rail authority for the environmental impact report. The open house will take place from 3 to 7 p.m. at the Roosevelt Community Center, 901 E. Santa Clara St.

The deadline for submitting questions for the environmental impact to Merced is April 10, and the deadline for the line from Diridon to San Francisco section is April 6.

Comments and questions also can be e-mailed to Dan Leavitt at comments@hsr.ca.gov with the subject line “San Jose to Merced HST.” For comments on the line from Diridon to San Francisco, the subject line should be “San Francisco to San Jose HST.”

For more information on the project, visit www.cahighspeedrail.ca.gov.

Mercury News: http://www.mercurynews.com

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