HomeMy WebLinkAbout2002-10-15; City Council; 16934; AUTHORIZING AND DIRECTING THE CONDEMNATION OF CERTAIN REAL PROPERTY INTERESTS FOR THE CANNON ROAD EXTENSION PROJECT - CT 00-02I CITY OF CARLSBAD -AGENDA BILL
TITLE: AUTHORIZING AND DIRECTING THE
CONDEMNATION OF CERTAIN REAL
PROPERTY INTERESTS FOR THE CANNON
ROAD EXTENSION PROJECT, CT 00-02
CITY *TTY.[,&L
RECOMMENDED ACTION:
Adopt Resolution No. 2002-306 authorizing and directing the condemnation of certain real property interests in the City of Carlsbad, State of California, for the Cannon Road Extension Project
and declaring the public necessity thereof.
ITEM EXPLANATION:
As a condition to the approval of the Calavera Hills Phase II Master Tentative Map, Calavera Hills II LLC, a California Limited Liability Company (the "Developer"), is required to construct portions of Cannon Road and College Boulevard extending from El Camino Real to Carlsbad Village Drive. In Resolution No. 51 17, the Planning Commission acknowledged that said road construction was required for the development of the residential project known and designated as Calavera Hills Phase II Master Tentative Map, CT 00-02.
In an effort to secure the off-site rights-of-way for Cannon Road and College Boulevard, the Developer purchased fee title to those portions of the roads lying within the adjacent Robertson Ranch property. Although the roads were purchased in fee title, the Developer is not able to dedicate the required road easements to the City free and clear of all liens and encumbrances as required by City policy. A small portion of the property purchased by the Developer lies within a pre- existing leasehold interest. The leasehold interest is held by Parkway Nursery, Inc. and impacts approximately 2.66 acres of the proposed Cannon Road right-of-way near its intersection with El Camino Real.
The Developer, and more recently the City, have been in negotiations with the owner/representative of Parkway Nursery, Inc. for the past six months. The parties have been unable to agree on a price for said easements. By letter dated August 8, 2002, the City offered Parkway Nursery, Inc. an amount equal to the appraised value of the property to purchase their interests in the proposed right- of-way. In addition, the City disclosed that Parkway Nursery may also be entitled to additional compensation under the Relocation Assistance Act and further provided the leasehold owner an information statement explaining the Relocation Assistance Act. By letter dated August 30, 2002, the City's offer was rejected by the leasehold owner and a counter offer was made. Due to the significant disparity between the offer and counteroffer, staff believes further negotiations would not result in agreement and that an impasse has been reached.
In addition to the above letter and in accordance with State law, on September 20, 2002, the City gave notice of today's hearing to the owner of the subject leasehold by regular and certified mail.
Pursuant to State law, to proceed with a condemnation action the City Council must adopt a Resolution of Necessity. In this regard, the City Council must engage in a good faith and judicious consideration of the pros and cons of the issue. Any decision to acquire the subject property rights must be supported by substantial evidence of the existence of the three basic requirements set forth in Code of Civil Procedure section 1240.030. These are:
1. The public interest and necessity require the project.
2. The project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury.
3. The property sought to be acquired is necessary for the project.
Page 2 of Agenda Bill No. 16rg3*
Adoption of the attached Resolution of Necessity requires a two-thirds (Z3) vote of the full Council.
By law, the City is not required to consider the request of any person to be heard who did not make
a written request to be heard on or before October 15, 2002, nor the request of any person not an
owner of an interest in the property being condemned. However, it is recommended that an inquiry
be made if any property and/or leasehold owners affected by the project are present at the hearing
and allow them an opportunity to be heard on the adoption of the Resolution.
ENVIRONMENTAL IMPACT:
On January 15, 2002, the City Council adopted Resolution No. 2002-016 certifying Environmental
Impact Report 98-02 for the Calavera Hills II, Bridge and Thoroughfare District No.4 (Cannon Road
and College Boulevard) and Master Drainage Plan Basins BJ and BJB projects.
FISCAL IMPACT:
No costs to the City. As required by City ordinance, the developer of Calavera Hills Phase II Master
Tentative Map, CT 00-02, will pay all costs associated with the acquisitions.
EXHIBITS:
1. Location Map
2. Notice of Public Hearing to Condemn Real Property interest in the City of Carlsbad,
California directed to Parkway Nursery, Inc., dated September 20, 2002.
3. Resolution No. 2002-306 authorizing and directing the condemnation of certain
real property interests in the City of Carlsbad, State of California, and declaring the public
necessity thereof.
4. Offer of Just Compensation directed to Parkway Nursery, Inc, dated August 8, 2002.
LOCATION MAP
PARKWAY/ NURSERY LEASEHOLD
CONDEMNATION SITE
NAME CANNON ROAD CONDEMNATlON PROJECT
NUMBER
EXHIBIT
PARKWAY NURSERY LEASEHOLD ~~00-02 1
\W BY: SCOT7 EVANS, CARLSBAO ENUNEERING OPT. 9/20/02 C: \PREsENlAn~S\HAu~R\C~-02.0~ 3
.
ROSCOE D. KEAGY
RICHARD R. FREELAND
STEVEN A. MCKINLEY.
*ALSO ADMITTED IN NEVADA
- ATTORNEYS AT LAW
FOURTH FLOOR
3170 FOURTH AVENUE
SAN DIEGO. CALIFORNIA 92103
TELEPHONE 16191 297-3170
FACSIMILE 1619) 299-4258
NOTiCE OF PUBLIC HEARING TO
ADOPT A RESOLUTION OF NECESSITY
September 20,2002
Mr. Mike Jensen, President
Parkway Nursery, Inc.
5050 El Camino Real
Carlsbad, CA 92008
Re: Cannon Road,Exiension Project
Dear Mr. Jensen:
ENGINEERING
DEPARTMENT
We have apparently reached an impasse in the negotiations relative to the acquisition of a
portion of your property interests for the above-entitled project. It is necessary to resolve this matter
as quickly as possible in the manner which is fair and equitable to both parties. The Superior Court
of the County of San Diego provides an impartial forum to hear both sides of a controversy and to
render decisions to resolve our differences which, in this case, involve an opinion of value. The
procedure is called “condemnation” or “the power of eminent domain.” It is the recommendation
of our firm that condemnation proceedings be instituted to settle our controversy.
The City of Carlsbad will hold a public hearing on October 15,2002, at 6:OO p.m. or as soon
thereafter as the matter may be heard at the City Council Chambers located at 1200 Carlsbad Village
Drive, Carlsbad, California. It is the intent of the City of Carlsbad to consider at that time the
adoption of a Resolution of Necessity to authorize the condemnation of a portion of your property
interests for the Cannon Road Extension Project.
G:\kmk\CARLSBAD\B&T-Calavcra\Parlrway-RSO-Nlc.,”~d 9/18/02 405 Plrl
4
Page 2
September 20,2002
Pursuant to California Code of Civil Procedure Section 1245.235, each person whose
property interests are to be acquired by eminent domain has the right to appear and be heard at the
hearing. The City of Carlsbad will determine whether (a) the public interest and necessity require
the project; (b) the project is planned or located in the manner that will be the most compatible with
the greatest public good and the least private injury; and (c) the property sought to be acquired is
necessary for the project.
If you wish to speak either for or against the issues which are outlined above, you must file
a written request within fifteen (15) days from the date of this letter. Failure to file a written request
to appear and be heard in the office of the City Clerk of the City of Carlsbad within fifteen (1 5) days
after the date this Notice is mailed will result in waiver of the right to appear and be heard at the
aforementioned hearing.
Your written request should be addressed to the following:
City Clerk
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
RE: Cannon Road Extension Project
October 15,2002 Hearing Date
Please feel free to call us should you have any questions.
-s
Very truly yours,
ASARO, KEAGY, FREELAND & MCKINLEY n
Richard R. Freeland
RRF:kmk
cc: Ronald Ball, Esq.
David Hauser, Esq.
David Bright, Esq.
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L"jN IT ."i 2
RESOLUTION NO. 2002-306
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, AUTHORIZING AND DIRECTING THE
CONDEMNATION OF CERTAIN REAL PROPERTY INTERESTS
IN THE CITY OF CARLSBAD, STATE OF CALIFORNIA, FOR THE
CANNON ROAD EXTENSION PROJECT AND DECLARING THE
PUBLIC NECESSITY THEREOF.
WHEREAS, the City of Carlsbad, County of San Diego, State of California, proposes to
construct the extension of Cannon Road easterly fom El Camino Real, hereinafter referred to as
"the Project"; and,
WHEREAS, the Project requires the acquisition of certain real property and real property
interests, including, but not limited to, road right-of-way, drainage easements, temporary
construction easements and access easements; and,
WHEREAS, the City of Carlsbad may exercise the right of eminent domain for the
acquisition of real property or interests therein for street and other purposes pursuant to California
Government Code Sections 37350 and 37350.5; and 37353; and,
WHEREAS, the real property or interest therein sought to be acquired for the Project are
located within the territorial limits of the City of Carlsbad; and
WHEREAS, the real property or interests therein sought to be acquired are necessary for
the Project; and
WHEREAS, the plans for the Project are on file with the City Engineer of the City of
Carlsbad, California; and,
WHEREAS, the Project is planned and located in a manner which will be most compatible
with the greatest public good and the least private injury; and,
WHEREAS, the City of Carlsbad has established the amounts which it believes to be just
compensation for the hereinafter described real property or interests therein sought to be
acquired; and,
WHEREAS, pursuant to Government Code Section 7267.2, the City of Carlsbad has
offered to the owner of said real property or interests therein the full amount established as just
compensation for said real property or interest therein sought to be acquired; and,
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WHEREAS, the City of Carlsbad, California, has provided said owner of said real property
or interests therein a written statement of and summary of the basis for the amount established as
just compensation for the real property or interests sought to be acquired; and
WHEREAS, a reasonable length of time has expired since the date of the offer to the
owner of the real property or interests therein sought to be acquired, and the owner has failed to
favorably respond to the offer of the amount established by the City of Carlsbad as just
compensation; and,
WHEREAS, some or portions of the property and interests therein hereinafter described
are being acquired as a “remnant” pursuant to California Code of Civil Procedure Section
1240.410; and,
WHEREAS, some or portions of the property and interests therein hereinafter described is
being acquired for a compatible joint use pursuant to California Code of Civil Procedure Section
1240.510; and,
WHEREAS, the property and interest therein hereinafter described is being acquired for a
more necessary public use pursuant to California Code of Civil Procedure Section 1240.610; and,
WHEREAS, on January 2, 2002, pursuant to Planning Commission Resolution No. 5117,
the Planning Commission of the City of Carlsbad, pursuant to the provisions of the California
Government Code, Section 65402, found that the proposed location, purpose and extent of the
project is consistent with the City of Carlsbad General Plan; and,
WHEREAS, on January 15, 2002, pursuant to California Public Resource Code, Section
21000 and following, the City Council of the City of Carlsbad, California, certified EIR 98-02 for the
project; and,
WHEREAS, pursuant to the provisions of California Code of Civil Procedure,
Section 1245.235, the owner of the real property of the interest therein sought to be acquired
whose names and addresses appear on the current equalized County Assessment Roll, have
been sent a Notice of Intention to Adopt a Condemnation Resolution, and have been provided
with an opportunity to appear and be heard on the matters referred to in the California Code of
Civil Procedure, Section 1240.030.
Page 2 of 4
Resolution No. 2002-306
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NOW, THEREFORE, BE IT RESOLVED by the City Council of Carlsbad, California, which
finds, determines and hereby declares that:
1. The above recitations are true.
2. The public interest and necessity require the proposed project.
3. The proposed project is planned and located in a manner which will be most
compatible with the greatest public good and the least private injury.
4. The real property or interests therein, hereinafter described in this Resolution, are
necessary for the proposed project.
5. The proposed project is a matter of public necessity.
6. The use of all and each and every part of said hereinafter described real property or
interests therein for the use and purposes of the proposed project is a public use and
a use authorized by law.
7. The public interest and necessity require that the real property or interests therein,
hereinafter described in this Resolution, be taken.
BE IT FURTHER RESOLVED by the City Council of Carlsbad, California, that:
1, The law firm of Asaro, Keagy, Freeland 81 McKinley, hereinafter referred to as 'Special
Counsel', be and is, authorized, empowered, and directed, in the name of the City of
Carlsbad, to acquire by donation, purchase, or condemnation, in accordance with the
provisions of the Code of Civil Procedure of the State of California relating to eminent
domain, the hereinafter described interest in real property.
2. To prepare and prosecute in the name of the City of Carlsbad such suit or suits in the
proper court having jurisdiction thereof as are necessary to condemn, take, and
acquire said hereinafter described real property, or any part thereof, for the Project.
3. To make an application to said court for an order determining the amounts of money to
be deposited as security for the payment of the just compensation which will be made
for the taking of the real property or any part thereof, or interests therein necessary for
the proposed project and any damage incident thereto, and to make application to
said court for an order permitting the City of Carlsbad to take immediate possession
Page 3 of 4
Resolution No. 2002-306
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of and to use said real property and part thereof, or interest therein, sought to be
condemned for the Project.
4. The real property and interest therein referred to in this Resolution is situated in the
City of Carlsbad, County of San Diego, State of California, and is more particularly
described in the three parcel descriptions attached hereto and each one marked
Exhibit “A.
PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council
held on the 15 th day of OCTOBER , 2002 by the following vote, to wit:
AYES: Council Members Lewis, Kulchin, Nygaard, Hall
I ATTEST I
(SEAL)
SEPTEMBER 20, 2002
J.N.: 981020
PAGE 1 OF 1
EXHIBIT A
RIGHT-OF-WAY ACQUISITION
A PORTION OF PARCEL 3 OF CERTIFICATE OF COMPLIANCE CE 01-
56, RECORDED NOVEMBER 28, 2001 AS FILE NO. 2001-0865066, IN
THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST WESTERLY CORNER OF SAID PARCEL 3, A
POINT ON THE NORTHEASTERLY RIGHT-OF-WAY OF EL CAMINO REAL
AND SHOWN ON SAID CERTIFICATE OF COMPLIANCE AS POINT 83,
SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE ALONG
THE NORTHERLY BOUNDARY OF SAID PARCEL 3 NORTH 32'44'07" EAST
16.78 FEET; THENCE SOUTH 82'48'22" EAST 72.17 FEET; THENCE
NORTH 23'31'32" EAST 109.80 FEET; THENCE NORTH 25O38'31"
EAST 100.08 FEET; THENCE NORTH 29'07' 38" EAST 77.37 FEET;
THENCE NORTH 31O48'12" EAST 60.19 FEET; THENCE NORTH
42O27'17" EAST 23.56 FEET; THENCE NORTH 37'46'23" EAST
139.56 FEET; THENCE NORTH 24'02' 16" EAST 40.09 FEET; THENCE
NORTH 46'32' 58" EAST 205.27 FEET; THENCE LEAVING SAID
NORTHERLY BOUNDARY SOUTH 25'09'03" EAST 249.22 FEET TO A
POINT ON THE SOUTHERLY BOUNDARY OF SAID PARCEL 3; THENCE
ALONG SAID SOUTHERLY BOUNDARY SOUTH 39O37'39" WEST 339.77
FEET; THENCE SOUTH 30'38' 52" WEST 266.73 FEET; THENCE NORTH
66O42'10" WEST 13.53 FEET; THENCE SOUTH 23'17'50'' WEST 18.00
FEET TO THE BEGINNING OF A NON-TANGENT 6855.31-FOOT RADIUS
CURVE CONCAVE NORTHEASTERLY, A RADIAL LINE TO WHICH BEARS
SOUTH 23'17'50'' WEST; THENCE NORTHWESTERLY ALONG THE ARC OF
SAID CURVE THROUGH A CENTRAL ANGLE OF 2'10'51" AN ARC
DISTANCE OF 260.93 FEET TO THE POINT OF BEGINNING.
W:\MSOFFICE\WINWORD\981020\R.OW Acquisltlon.lql.doc
i I
i APPLICANT: / EXHIBIT "B" SHEET 1 OF 3 SHEETS
CALAWh MUS 4 KC
ffAPm& ox CA 9?!?a
(619) 3S4573
APPROVED BY:
UOW B. #&I5 OAK
A.P.N. 1 1 .I RCE 2Z2" Eyp.3/3f/# RCE 2B €X+? 12/31/05
G:\JOBS\011014\0114Z40.DWG 9-23-2002 7:40:16 an EST XREFS: 01 14MAP
SHEET 2 OF 3 SHEETS
XREFS: 01 I4MAP i 9,.
BOUNDARY DATA
SEPTEMBER 20, 2002
J.N.: 981020
PAGE 1 OF 1
EXHIBIT A
DRAINAGE EASEMENT
A PORTION OF PARCEL 2 OF CERTIFICATE OF COMPLIANCE CE 01-
55, RECORDED NOVEMBER 28, 2001 AS FILE NO. 2001-0865065, IN
THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, SAID PORTION BEING MORE PARTICULARLY DESCRIBED
AS FOLLOWS:
BEGINNING AT THE MOST SOUTHERLY CORNER OF SAID PARCEL 2, A
POINT ON THE NORTHEASTERLY RIGHT-OF-WAY OF EL CAMINO REAL
AND SHOWN ON SAID CERTIFICATE OF COMPLIANCE AS POINT 83;
THENCE ALONG THE SOUTHERLY BOUNDARY OF SAID PARCEL 2 NORTH
32'44'07" EAST 16.78 FEET; THENCE SOUTH 82O48'22" EAST 72.17
FEET; THENCE NORTH 23O31'32" EAST 27.46 FEET TO THE TRUE
POINT OF BEGINNING; THENCE LEAVING SAID SOUTHERLY BOUNDARY
NORTH 76O12'43" WEST 18.24 FEET; THENCE NORTH 13'47'17" EAST
41.00 FEET; THENCE SOUTH 76O12'43" EAST 25.28 FEET TO A
POINT ON SAID SOUTHERLY BOUNDARY; THENCE ALONG SAID BOUNDARY
SOUTH 23"31'32" WEST 41.60 FEET TO THE TRUE POINT OF
BEGINNING.
W:\MSOFFICE\WINWORD\98102O\Drainage Easernent.lgl.doc
r
8
8 i
SCALE 1' = 200'
1
CONSULTWNTS
APPLICANT: 1
LOT UN€
SHEET 2 OF 3 SHEETS
EXHIBIT "B"
G:\JOBS\011014\011424O.DWG 9-20-2002 9:09:06 om EST
XRFFS, nll4MAP ti.
BOUNDARY DATA
@ DELTA/BEARING RADIUS LENGTH &&I N 32'11D7-E - 16.78' " .
1-2 s W#22'E 72 17' 2-3 N 2T3KXZ'E - 2Z46'
J-4 N 7672'13 W - 1&24'
4-5 N 1r4777-E - 41.m'
-
I SHEET 3 OF 3 SHEETS
OCTOBER 1, 2002
J.N. : 981020
PAGE 1 OF 1
EXHIBIT A
TEMPORARY CONSTRUCTION EASEMENT FOR THE PURPOSE OF CANNON
ROAD, SLOPES FOR CANNON ROAD, DRAINAGE FACILITIES, THE
ACCESS TO THE PARKWAY NURSERY AND THE ROBERTSON RANCH
HOUSE. SAID EASEMENT WILL BE RELINQUISHED TWO (2) YEARS
AFTER THE COMPLETION OF THE IMPROVEMENTS OF CANNON ROAD OR
AUGUST 12, 2006, WHICHEVER IS LATER.
THAT PORTION OF PARCEL 2 OF CERTIFICATE OF COMPLIANCE CE
01-55, RECORDED NOVEMBER 28, 2001 AS FILE NO. 2001-0865065,
IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, LYING WITHIN THE FOLLOWING DESCRIBED PARCEL:
BEGINNING AT THE MOST SOUTHERLY CORNER OF SAID PARCEL 2, A
POINT ON THE NORTHEASTERLY RIGHT-OF-WAY OF EL CAMINO REAL
AND SHOWN ON SAID CERTIFICATE OF COMPLIANCE AS POINT 83;
THENCE ALONG THE SOUTHERLY BOUNDARY OF SAID PARCEL 2 NORTH
32'44'07'' EAST 16.78 FEET TO THE TRUE POINT OF BEGINNING;
THENCE LEAVING SAID BOUNDARY NORTH 07'13'00'' EAST 5.00 FEET;
THENCE SOUTH 82'48'22'' EAST 68.42 FEET; THENCE NORTH
23'31'32'' EAST 106.15 FEET; THENCE NORTH 25'38'31'' EAST
100.33 FEET; THENCE NORTH 29'07'38'' EAST 77.64 FEET; THENCE
NORTH 31'48'12'' EAST 35.85 FEET; THENCE NORTH 52'59'29" WEST
69.98 FEET; THENCE SOUTH 71'41'18'' EAST 35.00 FEET; THENCE
NORTH 70'32' 13" EAST 31.50 FEET; THENCE NORTH 20'28' 42" EAST
62.00 FEET; THENCE NORTH 31'32'25'' EAST 63.50 FEET; THENCE
NORTH 08'33' 59" EAST 120.00 FEET; THENCE NORTH 43'51'27"
EAST 86.50 FEET; THENCE SOUTH 87'29'45" EAST 99.00 FEET;
THENCE SOUTH 42'30'23'' EAST 36.11 FEET TO A POINT ON SAID
SOUTHERLY BOUNDARY; THENCE ALONG SAID BOUNDARY SOUTH
46'32'58'' WEST 176.60 FEET; THENCE SOUTH 24'02'16" WEST
40.09 FEET; THENCE SOUTH 37'46'23'' WEST 139.56 FEET; THENCE
SOUTH 42'27'17'' WEST 23.56 FEET; THENCE SOUTH 31'48'12" WEST
60.19 FEET; THENCE SOUTH 29'07' 38" WEST 77.37 FEET; THENCE
SOUTH 25'38'31'' WEST 100.08 FEET; THENCE SOUTH 23'31'32''
WEST 109.80 FEET; THENCE NORTH 82'48'22" WEST 72.17 FEET TO
THE TRUE POINT OF BEGINNING.
w:\MS0FFICE\WINW0~m\981020\Ternp Construct. Easement.lg1.doc
BOUNDARY DA TA
ROSCOE D. KEAGY
STEVEN A. MCKINLEY’
RICHARD R. FREELANO
.ALSO ADMITTED IN NEVADA
ASARO, KEAGY, FREELAND & MCKINLEY
ATTORNEYS AT LAW
FOURTH FLOOR
3170 FOURTH AVENUE
SAN DIEGO. CALIFORNIA 98103
TELEPHONE 16191 297-3170
FACSIMILE 16191 299-4268
August 8,2002
Mr. Mike Jensen, President
Parkway Nursery, Inc.
5050 El Camino Real
Carlsbad, CA 92005
RE: Cannon Road Project (Calavera Hi&)
Assessor Parcel Nos. 168-050-17 and 208-010-32
Dear Mr. Jensen:
Our firm represents the City of Carlsbad regarding the acquisition of property interests from
Parkway Nursery, Inc. for the construction of Cannon Road easterly fiom Palomar Airport Road.
The property interests sought to be acquired are depicted on the plat attached hereto as Exhibit A.
The purpose of this letter is to present a written offer from the City of Carlsbad to purchase
interests in 2.66 acres of Parkway Nursery’s leasehold, subject to the approval of the City Counsel
of the City of Carlsbad.
The purchase price offered is $24,000.00 which is based upon an independent appraisal of
the property made by a qualified appraiser in San Diego County.
The appraisal was based upon the fair market value of the property for its highest and best
use. Attached hereto as Exhibit B is an Appraisal Summary Statement setting forth the rights to be
acquired and the value thereof as determined by the appraiser.
In addition to approval of the City Council of the City of Carlsbad, the proposed acquisition
would also be subject to obtaining title free and clear of all liens and encumbrances. If this offer is
acceptable to you, please communicate with our office and we will make arrangements to open &
escrow with First American Title Insurance Company to handle this transaction.
The City of Carlsbad has made every effort to establish a fair price for the required property
and property interests. The appraiser’s figures are the appraiser’s opinion of fair market value which
was determined after a personal inspection of your property. The appraisal takes into consideration
the location of your property, its highest and best use, considering required dedications and
improvements, and other indicators of value.
LAW OFFICES OF
ASARO, KEAGY, FREELAND 8 McKlNLEY
Mr. Mike Jensen, President
August 8,2002
Page 2
Parkway Nursery, Inc. also may be entitled to compensation under the Relocation Assistance
Act. An information statement explaining the Relocation Assistance Act is attached hereto as
Exhibit C. In addition, Mr. Vince McCaw of Pacific Relocation Consultants (619-688-7980) will
be contacting you in the near future to further explain your rights under the Relocation Assistance
Act.
We would appreciate it if you would review the enclosed information and Offer to Purchase,
and communicate with our office no later than 10 days from today's date. Should you require
additional time in which to consider our offer, or if you desire to schedule a meeting to discuss this
matter, please contact our ofice.
Thank you for your cooperation.
Very truly yours,
ASARO, KEAGY, FREELAND & MCKINLEY n
Richard R. Freeland
RRF:kmk
Enclosure
cc: Ronald Ball, Esq.
David Bright, Esq.
Mr. David Hauser
Mr. Vince McCaw
,
G:\kmk\CARLSBAD\B&T-CalaveraUensen-Offer.wpci 616102 303 PM
Introduction
Please read this information as it will be helpful to you in determining your eligibiJity and the amount of your
relocation benefits under the federal andlor state law. We suggest you save this informational statement
for reference.
This is not a notice to move. It is important that you do not move before you learn what you must do to receive relocation payments and other assistance to which you may be entitled. The Agency has retained the services of Pacific Relocation Consultants (PRC), a qualified professional relocation firm, to assist
YOU. The firm is available to explain the program and benefits. Their address and telephone number is:
Pacific Relocation Consultants
3225 4"' Avenue
San Diego, California 92103 Telephone: (619) 688-7980
Summary of Relocation Assistance
As an eligible displaced person, YOU will be offered appropriate financial and advisory assistance to help
you relocate, including:
A. Payment for your moving expenses. You will receive either: . A Payment for Actual Reasonabie Moving and Related Expenses, or A Fixed Payment In Lieu of a Payment for Actual Moving and Related Expenses ,
B. Referrals to suitable replacement locations.
C. Other help to reestablish your business and minimize the impact of the move inctuding help in
preparing ctaim forms to request relocation payments.
If you disagree with the Agency's decision as to your right to a relocation payment, or the amount of the
Payment, you may appeal that decision.
EXHIBIT
SOME GENERAL QUESTIONS
How will I know I am eligible for relocation assistance?
You should receive a written notice explaining that you are eligible for relocation assistance. Ordinarily, eligibility begins on the date the owner of the propem receives the Agency's initial written offer to purchase it. Therefore, you should
not move before that date. If you do, you may not be eligible for relocation assistance.
How Will the Agency Know How Much Help I Need?
You will be contacted at an early date and personally interviewed by a representative Of the Agency to determine your
needs and preferences for a replacement location and other services. The interviewer will ask questions about such
matters as your space requirements. It is to your advantage to provide the information SO that the Agency can assist
you in moving with a minimum of hardship. The information you give will be kept in confidence.
How Soon Will I Have to Move?
Every reasonable effort will be made to provide you with sufficient time to find and reestablish your business in a
suitable replacement location. if possible, a mutually agreeable date for the move will be worked out. Unless there
is an urgent need for the property (e.g., your occupancy would present a health or safety emergency), you will not be
required to move without at least go days advance written notice. It is important, however, that you keep in close
contact with the Agency so &at you are amre of the time schedule for carrying out the project and the approximate
date by which you will have to move.
I Own The Property, Will I Be Paid For It Before I Have TO Move?
If you reach a voluntary agreement to sell your property to the Agency, you will not be required to move before you
receive the agreed purchase price. If the property is acquired through an eminent domain proceeding, you cannot be
required to move before the estimated fair market value of the property has been deposited with the court. (You
should be able to withdraw this amount immediately, less any amounts necessary to pay off any mortgage or other liens on the property and to resolve any special ownership problems. Withdrawal of your share of the money will not
affect your right to seek additional compensation for your prOPeW).
Will I Have To Pay Rent To The Agency Before I Move?
YOU may be required to pay a fair rent to the Agency for the period between the acquisition of your property and the date that you move. The rent will not exceed that charged for the use Of similar properties in similar areas, however,
rent is generally the same as in the prior arrangement.
HOW Will I Find A Replacement Location?
The Agencywill provide you with current and continuing information on available replacement locations that meet your
needs. The Agency may also provide YOU with the names of real estate agents and brokers who can assist you in
finding the type of replacement location YOU need. While the Agency will assist you in obtaining a suitable replacement
location, you should take an active role in finding and relocating to a location of your choice. No one knows your needs
better than you. You .will want a facility that provides sufficient space for your planned activities. You will also,want
to assure that there are no zoning or other requirements which will unduly restrict your planned operations. Ask/ the
Agency to explain which kind of moving costs are eligible for repayment and which are not eligible. That will enable you to carry out your move in the most advantageous manner.
What Other Assistance Will be Available To Help Me?
In addition to help in finding a suitable replacement location, other assistance, as necessary, will be provided by the
Agency. This includes infomation on Federal, State, and local programs that may be of help in reestablishing a
business. For example, the Small Business Administration (SBA) provides managerial and technical assistance to
some businesses. There may also be a government grant or loan program which can help you reestablish your
business. The Agency 'Nil1 assist you in applying for help availabie from government agencies. The range of services
I Plan TO Discontinue My Business Rather Than Move. What Should I DO?
If you have decided to discontinue your business rather than reestablish, you may still be eligible to receive a payment. Contact the Agency and discuss your decision to discontinue your business. You will be informed of the payment, if
any, for which you may be eligible, the requirements to be met, and how to obtain your payment.
What Payment For Moving Expenses will I receive?
Every business is entitled to a rdocation payment to cover the reasonable cost of moving. You may choose either:
A. A Payment For Actual Reasonable Moving and Related Expenses, or
B. A Fixed Payment In Lieu of Moving and Related Expenses (if you meet the eligibility requirements).
What is Payment For Actual Reasonable Moving And Related Expenses?
If you choose a Payment For Actual Reasonable Moving And Related Expenses, you may claim the cost of:
A. Transportation of personal property from your present location to the replacement location. (Generally, transportation costs are limited to a distance of 50 miles. If you plan to move beyond 50 miles, discuss your planned move with the Agency.)
8. Packing, crating, uncrating, and unpacking personal property.
C. Disconnecting, dismantling, removing, reassembling, and installing relocated and substitute machinery, equipment and other persona1 property. This includes connection to utilities available nearby and modifications necessary to adapt such property to the replacement ShCtUre Or to the Utilities or to adapt the utilities to the personal property. This includes alter&ions to the replacement Structure required to reinstall machinety,
equipment or other personal property
D. Storage of personal propem for a reasonable period of time, if required.
E. Insurance of personal property in connection with the move and required storage. And the replacement value
of property lost, stolen, or damaged in the process of moving where insurance is not readily available.
F. Any license, permit or certification required by the displaced business, to the extent that the cost is (1) necessary to its reestablishment at me replacement location and (2) does not exceed the cost for the remaining useful life
of the existing license, permit, or certification. ',
G. Reasonable and preauthorized professional services, including architect's, attorney's, and engineer's fees, and consultant's charges, necessary for (1) planning the move of the personal property, (2) moving the personal property, or (3) installing the relocated personal property at :he replacement location.
H. Relettering signs, printing replacement stationerf made obsolete by the move and customer notifications.
1. The reasonable cost incurred in attempting to sell an item that is not relocated.
J. . Actual direct loss of personal property. This payment provides compensation for property that is neither moved nor promptly replaced with a "substitute item" at the replacement location. Payment is limited to the lesser of:
(1) the estimated cost of moving the property or (2) the fair market value of the property for its continued use at the old location, less any proceeds from its sale. To be eligible, you must make a good faith effort to sell the property, unless the Agency determines that such effort is not necessary.
K. Purchase and installation of substitute personal property. Payment will be limited to the lesser of: (1) the estimated cost to move the item to the replacement location, or (2) the actual cost of the substitute item delivered and installed at the replacement location, less any proceeds from its sale or its trade-in value. It is important to
discuss your plans with the Agency before you proceed.
L. Searching for a replacement location. This payment may not exceed $1,000.00 and may cover costs for:
Transportation expenses Time spent searching for a replacement location, based on a reasonable salary or earnings Reasonable fees paid to reat estate agents or brokers to find a replacement location (not fees related to
Meals and lodging away from home the purchase of a site)
The Agency representativewill explain all eligible moving costs, as well as, those which are not eligible. You must be able to account for all costs that you incur; so keep all your receipts. The Agency will inform you of the documentation needed to support your claim.
You may minimize the amount of documentation needed to support your claim, if you elect to "self-move" your property. Payment for self-move is based on the amount of an acceptable low bid or estimate obtained by the Agency.
If you self-move, you may move your personal property using your own employees and equipment or a commercial mover. If you and the Agency cannot agree on an acceptable amount to cover the cost of the "self-move," you will have to submit full documentation in support of your claim.
You may elect to pay your.moving costs yourself and be repaid by the Agency or, if you prefer, you may have the Agency pay the mover. In either case, let the Agency know before you move. Select your mover with care. The Agency representative can help YOU select a reliable and reputable mover.
When a payment for "actual direct loss of personal property" or "substitute personal property" is made for an item, the estimated cost of moving the item may be based on the lowest acceptable bid or estimate obtained by the Agency. If not sold or traded-in, the item must remain at the old location and ownership of the item must be transferred to the Agency before you may receive the payment.
What are Reestablishment Expenses?
As part of Payment For Actual Reasonable Moving And Related Expenses, a Small business, farm or non-profit organization may be eligible to receive a papent of up to $1 0,000 for expenses actually incurred in relocating and reestablishing such operation at a replacement site.
Eiigible expenses must be reasonabie and necessary, as determined by the Agency. They may include but are not limited to the following:
A. Repairs or improvements to ae replacement real property as required by federal, state or local law, code 6r ordinance.
8. Modifications to the replacement property to accommodate the business operation or make replacement StrUCkIreS suitable for conducting the business.
C. Construction and Installation costs for exterior signage to advertise the business.
D. Provision of utilities from right-of-way to improvements on the replacement site.
E.
F.
G.
H.
1.
J.
K.
L.
Redecoration or replacement of soiled or worn surfaces at the replacement site, such as Paint, paneling or carpeting.
Licenses, fees, and permits where not paid as part of moving expenses.
Feasibility surveys, soil testing and marketing studies.
Advertising of replacement location.
Professional services in connection with the purchase or lease of a replacement Site.
Estimated increased costs of operation during the first 2 years at the replacement site, for such items as:
1. Lease or rental changes
2. Personal or real property taxes
3. Insurance premiums, and
4. Utility charges(excluding Impact fees)
Impact fees or onetime assessments for anticipated heavy utility usage.
Other items that the Agency considers essential to the reestablishment Of the business.
What Expenses Are Ineligible for Reestablishment Payment?
A. Purchase of capital assets, such as, office furniture, filing cabinets, machinery or trade fixtures.
D. Interest costs associated with any relocation expense or the purchase of replacement property.
E. Payment to a part-time business in #e home which does not contribute materially to the household income.
What is Fixed Payment In Lieu Of A Payment For Actual Reasonable Moving And Related Expenses?
A Fixed Payment In Lieu Of A Payment For Actual Reasonable Moving And Related Expenses to a business or farm
operation is based on the average annual net earnings of the business or farm operation. The payment to an eligible business or farm operation may not be less than 51,000.00, nor more than $20,000.00. The nonprofit orsanization
may be eligible for a payment from $1,000.00 to $20,000.00 subject to the following:
Adisplaced nonprofit organization may choose afixed payment as stated above if the Agency determines that it cannot
be relocated without a substar;tkd loss of existing patronage (membership or clientele.) A nonprofit organization is
assumed to meet this test, unless the Agency demonstrates otherwise. Any payment in excess of $1,000.00, must be supported with financial statements for the two 12 month periods prior to displacement The amount to be used for the payment is the average ofthe last two (2) years annual net earnings. Documentation required may be income
tax returns, certified financial statements and accounting records or other similar evidence acceptable to the Agency. To qualify for an In-Lieu payment:
A. A displaced business:
I i I
3. must not be part of a commercial enterprise having more than one other entity which is not being acquired by the Agency, and which are under the same ownership and engaged in the same or similar business activities.
6. A displaced nonprofit organization (1) must be unable to relocate without a substantial loss of its existing
patronage, and (2) must not be part of an enterprise having another establishment which is not being acquired
by the Agency.
C. A displaced farm operation must meet certain minimum income requirements.
The average annual net earnings of a business farm operation are one-half of its net earnings before Federal, State, or local income taxes during the two (2) taxable years immediately prior to the taxable year in which it was displaced.
If not in business for a full two years prior to displacement, the net earnings shall be based on the actual period of
operation at the acquired site projected to an annual rate. Average net earnings may be based on a different period
of time when the Agency determines it to be more equitable. Net earnings include any compensation paid to the
owners of the business, a spouse or dependents. The displaced person shall fumish the Agency proof of net earnings
through income tax returns, certified financial statements, or other reasonableevidencewhich the Agency determines is satisfactory.
The Agency will inform you as to your eligibility for this payment and the documentation you must submit to support
your claim. Remember. when YOU elect to take this pavment YOU are not entitled to reimbursement for anv other
{actual) movinq expenses.
1 Own An Outdoor Advertising Display. What Relocation Payment Will 1 Receive?
As the owner of an outdoor advertising display, you are eligible for a Relocation Payment For Actual Reasonable
Moving And Related Expenses. YOU are not eligible to receive a Payment In Lieu Of A Payment For Actual
Reasonable Moving And Related Expenses.
If you choose not to relocate or repiace the sign, the payment for "direct loss of personal property" would be the lesser of: (1 ) the depreciated reproduciion cost of the sign, as estimated by the Agency, less the proceeds from its sale, or
(2) the estimated cost of moving the sign without temporary storage. The Agency will inform you as to the exact costs that may be reimbursed.
HOW do I File A Claim For A Rejocatjon Payment?
You must file a claim for a relocatjon payment, The Agency will provide YOU with the required claim forms, assist YOU
in completing them, and explain the type of documentation that you must submit in order to receive your relocation payments. If you must pay any relocation expenses before you move (e.g., because you must provide security deposit
if you lease your new location), discuss your financial needs with the Agency. You may be zble to obtain an advance
payment. An advance payment may be placed in "escrow" to ensure that the move will be completed on a timely
basis.
2
If yau are a tenant, you must file your claim within 18 months after the date you move. If you own.the property, you
' must file within 18 months after the date YOU move, or the date you receive the final acquisition payment, whichever is later. However, it is to your advantage to file as soon as possible after you move. The sooner you submit your claim,
the sooner it can be processed and paid. If you are unable to file your claim within 18 months, the Agency may extend this period.
You will be paid promptly after you file an acceptable claim. If there is any question regarding your right to a relocation payment or the amount of the payment, you will be notified, in writing, of the problem and the action you may take to resolve the matter.
Appeals
If you disagree with the Agency's decision as to your right to a relocation payment or the amount of payment, you may appeal the decision to the Agency. The Agency will inform you of its appeal procedures. At a minimum, you will have 18 months to file your appeal with the Agency. Your appeal must be in writing. However, if you need help, the Agency
will assist you in preparing your appeal. If you are not satisfied with the final appeal decision, you may seek review of
the matter by the courts.
Tax Status of Relocation Benefits
Relocation benefit payments are not considered as income for the purpose of the Internal Revenue Code of 1986 or the Personal Income Tax Law, Part 10 (commencing with Section 17001 ) of Division 2 of the Revenue and Taxation
Code, or the Bank and Corporation Tax law, Part 11 (commencing with Section 23001) of Division 2 of the Revenue and Taxation Code.
Lawful Presence Requirement
Pursuant to the Public Law 105-117 of 11-21-97, in order to be eligible to receive non-residential relocation benefits in federally-funded relocation projects, the owner of a sole proprietorship and all owners of a partnership must provide information regarding their lawful presence in the United States, and a for-profit or a non-profit corporation must certify
that it is authorized to conduct business in the United States. Sole proprietorships or partnerships with owners who are not lawfully present in the United States or who decline to provide this information, may be denied relocation benefits. Relocation benefits will be prorated to reflect the number Of Owners with certified lawful presence in the US.
Additional information
If you have further questions after reading this brochure, contact Pacific Relocation Consultants and discuss your concerns with your relocation representative. You may wish to read the California Relocation Assistance Act
regulations which describes &e relocation process in more detail.
PRC * Apr 2000
3:uiness infbnnarionai Statement P;igr
BRUCE H. WHITE DAVID S. BRIGHT RANDOLPH W. ORTLIEB MICHAEL A. FRIEDRICHS
LAURA B. BRIGHT LEWIS M. WOLENSKY
JODI C. SCHNOEBELEN
HEATHER T. FLYNN
WHITE AND BRIGHT
A PROFESSIONAL CORPORATION ATTORNEYS AT LAW
970 CANTERBURY PLACE
ESCONDIDO, CA 92025
(760) 747-3200
(619) 224-3200 FAX (760) 747-5574
October 15,2002
Ip?
HAND-DELIVERED
Marilyn Strong
City Clerk City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Re: Objections to Adoption of Resolution of Necessity re Acquisition of
Real Property for Cannon Road Project (Calavera Hills), San
Diego County, City of Carlsbad
Dear Ms. Strong:
Please be advised that this firm represents Parkway Nursery, Inc., a California
corporation ("Parkway Nursery") the owner of a wholesale and retail nursery located at 5050
El Camino Real, within the City of Carlsbad, County of San Diego (the "subject property").
We have received notice that the City of Carlsbad ("City") intends to adopt a Resolution of
Necessity ("Resolution") to acquire a portion or portions of the subject property for a public
project.
This letter will serve to provide notice to the City that our office requests to appear
and be heard at the Resolution hearing on behalf of Parkway Nursery. In lieu of personally
appearing at the Resolution hearing, we hereby submit the following written objections to
the adoption of the Resolution. Please inform us immediately as to whether the City will
receive and attach, as part of the permanent record, the following written objections to the
Resolution, or whether it is necessary for a representative of our office to attend the hearing
on the Resolution, currently set for October 15,2002.
To the extent the City will receive these objections on behalf of Parkway Nursery, it
objects to the adoption of the Resolution on each of the following grounds:
- 1. The Public Interest and Necessitv Do Not Reauire the Proposed Proiect.
The proposed improvements related to the permanent street easement are not
necessary and are for the benefit of private development not a public use.
Page Two
Ms. Marilyn Strong
October 15,2002
- 2. The ProDosed Proiect is Not Planned or Located in a Manner That Will
Be Most Compatible with the Greatest Public Good and the Least Private
Iniury.
The subject property, currently improved with a palm tree nursery, is particularly
suited for nursery use. The taking of a portion of the nursery's leasehold interest for a street
extension intended to benefit a private development will cause irreparable damage to the real
property remainder and its available and adaptable uses and the business located thereon.
3. The Acauisition of a Portion of the Subject ProDerty is Not Necessarv for
the Proposed Proiect.
As described above, the City does not need to acquire a permanent street easement as
it is not necessary for the private development, nor is it planned for the greatest public good
when compared to the irreparable damage it will cause to the subject property and the
business located thereon.
&. The Citv is IncaDable of ConductinP a Fair, Lepal and ImDartial Hearing
on the Resolution.
Due to its involvement in permitting private development in the area, the City has
already committed itself to the project, and the adoption of the Resolution here would be a
predetermined result. As such, any hearing by the City to allegedly "consider" the issues
pertaining to the adoption of the Resolution would be sham and therefore voidable by a court
of competent jurisdiction.
- 5. The Citv Failed to Extend a LePitimate Precondemnation Offer.
California Government Code section 7267.2 establishes the important public policy
that the City make a legitimate offer of compensation pursuant to an approved appraisal
before initiating eminent domain proceedings. The City has not made an adequate and
appropriate offer to Parkway Nursery.
..
Page Three
Ms. Marilyn Strong
October 15,2002
Based on the foregoing objections, Parkway Nursery requests that the City not adopt
the Resolution. If there are any questions or comments concerning these objections to the
Resolution, feel free to contact the undersigned at (760) 747-3200.
Very truly yours,
DSB/vam
cc: Michael Jensen