Item 12-A
Council Meeting: October 13, 1998 Santa Monica, California
TO: Mayor and City Council
FROM: City Staff
SUBJECT: Recommendation to Consider the Adoption of a Resolution of Necessity to Acquire Real Property Located at 1602 Ocean Avenue By Eminent Domain
Introduction
This report recommends that the City Council consider the adoption of a Resolution of Necessity to acquire real property located at 1602 Ocean Avenue, Santa Monica by eminent domain.
Background
The real property at 1602 Ocean Avenue ("Property") is a prime location for a strategic expansion of Palisades Park. The use of the Property as additional park and open space would serve as a dramatic greenbelt gateway to the Santa Monica Pier. The Property would also serve as an important view corridor from Ocean Avenue to the Santa Monica Pier and the oceanfront. City purchase and dedication of the Property as open space would also be consistent with the Civic Center Specific Plan which calls for a view corridor in this area. Such City purchase and dedication would also be consistent with the City's newly updated Open Space Element and the Park and Recreation Master Plan which prioritize City acquisition of strategically located open space.
In or about August of 1994, the former owners of 1602 Ocean Avenue entered into a Development Agreement with the City to build a new retail/restaurant/office project on the site. However, the former owners did not proceed with the approved project. In or about December of 1996, the former owners sold the Property to the current ownership group, "The Lobster LLC" ("Owner"). The Owner sought and obtained new development permits to build a 3,960 square foot restaurant. Project entitlements include a Variance, Administrative Approval, Conditional Use Permit for alcohol service, and a Building Permit. The various permits and entitlements were approved in early 1998, culminating in the issuance of a Building Permit on May 7, 1998.
In response to City Council interest in the potential City acquisition of the Property, City staff retained a duly certified appraiser who rendered an opinion of the fair market value of the Property. The City staff notified the Owner's representative on July 7, 1998 that the City was exploring the potential purchase of the Property and was seeking an appraisal of the Property. The City made a written purchase offer to the Owner by letter dated August 17, 1998 for Two Million Six Hundred Thousand Dollars ($2,600,000), the full amount of the appraisal. The Owner has not accepted the City's offer. Repeated attempts by City staff to meet with the Owner were rebuffed or postponed by the Owner's representative until finally, City staff met with Owner's representatives on September 24, 1998. However, discussions were inconclusive. The Owner's representatives cited difficulties in reaching all of the partners, some of whom were traveling abroad, and constraints in their efforts to complete their own appraisal of the value of the Property. Despite the passage of two months since the City's offer, the Owner's representative stated that they were not yet ready to provide a written counter-offer. As required by law, the City sent a notice to the Owner of the Property on September 28, 1998, a date 15 days prior to this hearing on the adoption of the Resolution of Necessity, informing the Owner that the City Council would consider the Resolution of Necessity at its October 13, 1998 meeting. The Owner remains actively engaged in construction of the restaurant on the Property.
Acquisition of the Property through eminent domain proceedings will assure the purchase of the site without undue delay. Staff, however, will continue to attempt to negotiate in good faith with the Owner.
Discussion
California Code of Civil Procedure Sections 1240.030 and 1245.230 allow a city to acquire private property for public purposes if the following criteria are established:
The findings required for the City to acquire property by eminent domain must be contained in a Resolution of Necessity which must be adopted by two-thirds of the members of the City Council after a public hearing. After consideration of the comments of Owner and members of the public, which are to be directed to the criteria referenced above rather than to the value of the Property at issue, the City Council may adopt a Resolution of Necessity applicable to the parcel(s) to be acquired.
The requisite findings are set forth below. For the purposes of these findings, the term "project" is defined as the City's acquisition of the real property located at 1602 Ocean Avenue and dedication of the Property as park or open space, available for the general use and enjoyment of the public.
Finding No. 1: "The public interest and necessity require the proposed project." (California Code of Civil Procedure Sections 1240.030(a) and 1245.230(c)(1).)
The use of the Property as additional park and open space would extend Palisades Park by creating a dramatic southern terminus to the park and a striking greenbelt gateway to the Santa Monica Pier. The Property would also serve as an important view corridor from City Hall and Ocean Avenue to the Santa Monica Pier and the oceanfront. City purchase and dedication of the Property as open space would also be consistent with the Civic Center Specific Plan which calls for a view corridor in this area. (See generally Civic Center Specific Plan, Land Use and Community Design Element Section.) Such City purchase and dedication would also be consistent with the City's newly updated Open Space Element and the Park and Recreation Master Plan which prioritize City acquisition of strategically located open space. (See generally Open Space Element, Objectives and Policies Section; see Open Space Element, Policy Nos. 1.3, 5.1, 6.4 and 7.4; see generally Parks and Recreation Master Plan, Trends and Community Preferences Section, and Master Plan Strategies - Parks and Open Space Section.) It is necessary to acquire the Property in order to dedicate the Property as open space available for the use and enjoyment of the public at large. The Pier, the Beach and Palisades Park are among the City's most used parks and open spaces for all age groups as set forth in the Open Space Element and Parks and Recreation Master Plan.
Finding No. 2: "The proposed project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury." (California Code of Civil Procedure Sections 1240.030(b) and 1245.230(c)(2).)
The proposed acquisition of the Property for additional park and open space clearly constitutes an acquisition for public use, as the park and open space would serve the Santa Monica community and the general public at large. The project will serve the public interest described above. Due to the unique location of the Property, there is no feasible method for achieving such permanent open space dedication except by acquisition of the Property. The acquisition of the Property for this purpose will result in the least private injury in that the purchase of only one privately-owned property is necessary to achieve the public goal. The City is proposing to purchase only that property absolutely necessary for the project.
Finding No. 3: "The property sought to be acquired is necessary for the proposed project." (California Code of Civil Procedure Sections 1240.030(c) and 1245.230(c)(3).)
The Property is uniquely situated as the southerly portion of a potential greenbelt gateway to the Santa Monica Pier. No other property can provide a contiguous southerly connection to Palisades Park or serve as the necessary gateway. (See generally Open Space Element, Objectives and Policies Section; and Parks and Recreation Master Plan, Trends and Community Preferences Section, and Master Plan Strategies - Parks and Open Space Section.) This Property has dramatic views which would serve as a visual connection from City Hall to the Santa Monica Pier, Palisades Park and the Oceanfront. (See generally Civic Center Specific Plan, Land Use and Community Design Element Section.) The completion of the visual corridor cannot be achieved without City acquisition of this Property. The map attached as Exhibit B indicates the Property to be acquired by the City.
Finding No. 4: "An offer for the full amount of the City's appraisal has been made to the owner of record." (California Code of Civil Procedure Section 1245.230(c)(4).)
In a letter signed by the City Manager, dated August 17, 1998, the City made an offer to the Owner for Two Million Six Hundred Thousand Dollars ($2,600,000), the full amount of the appraised value of the Property. Adoption of the Resolution of Necessity will allow the City to proceed with eminent domain proceedings if for any reason a negotiated purchase is not achieved.
Planning staff has reviewed the potential purchase of this Property. Should City Council proceed with the eminent domain action, Planning staff will prepare the appropriate environmental documentation. It is anticipated that there will be no intensification of use. The commencement of eminent domain proceedings will be contingent upon compliance with the requirements of California Environmental Quality Act ("CEQA").
Budget/Financial Impact
Acquisition of these properties will be financed from funds budgeted from Account No. 01-710-202-20098-8900-99990.
Recommendation
It is respectfully recommended that the City Council consider the adoption of the attached Resolution of Necessity to acquire real property located at 1602 Ocean Avenue by eminent domain.
Attachments: Exhibit A, Resolution
Exhibit B, Map
Prepared by: Jeff Mathieu, Director of Resource Management
Howard Robinson, Economic Development Manager
EXHIBIT A
M:\RESOURCE\SHARE\HOWARDSH\LOBSTER\LOBSTER5.RPT
City Council Meeting 10-13-98 Santa Monica, California
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA
FINDING AND DETERMINING THE PUBLIC INTEREST AND NECESSITY
FOR ACQUIRING AND AUTHORIZING CONDEMNATION OF CERTAIN
REAL PROPERTY LOCATED AT 1602 OCEAN AVENUE
The City of Santa Monica (the "City"), by vote of not less than two-thirds of its members, does hereby resolve and determine as follows:
SECTION 1. The real property is located at 1602 Ocean Avenue, Santa Monica, California (the "Property") and is described more fully as follows:
LOT 1 AND LOTS A AND B OF THE MOSS TRACT, IN THE CITY OF SANTA MONICA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 36 PAGES 64 AND 65 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THEREFROM THAT PORTION OF SAID LOT B GRANTED TO STATE OF CALIFORNIA IN DEED RECORDED AS DOCUMENT NO. 740 ON DECEMBER 21,
1940 IN BOOK 18040, PAGE 249, OF OFFICIAL RECORDS, DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST WESTERLY CORNER OF SAID LOT; THENCE NORTH 45 40' 20" EAST ALONG THE NORTHWESTERLY LINE OF SAID LOT, 35.01 FEET; THENCE SOUTHERLY ALONG A CURVE CONCAVE EASTERLY HAVING A RADIUS OF 31 FEET AND TANGENT TO SAID NORTHWESTERLY LINE, THROUGH AN ANGLE OF 100 37' 43" AN ARC DISTANCE OF 54.45 FEET TO A POINT OF COMPOUND CURVE; THENCE SOUTHEASTERLY ALONG A CURVE CONCAVE NORTHEASTERLY HAVING A RADIUS OF 337 FEET, THROUGH AN ANGLE OF 6 42' 25" AN ARC DISTANCE OF 39.45 FEET TO A POINT IN THE SOUTHEASTERLY LINE OF SAID LOT, DISTANT THEREON NORTH 45 40' 49" EAST 66.83 FEET FROM THE MOST SOUTHERLY CORNER OF SAID LOT; THENCE SOUTH 45 40' 49" WEST 66.83 FEET TO MOST SOUTHERLY CORNER; THENCE NORTHERLY ALONG THE WESTERLY LINE OF SAID LOT TO POINT OF BEGINNING.
SECTION 2. The Property is to be acquired for park and open space uses, specifically for the purpose of the creation of a view corridor of the Santa Monica Pier and oceanfront from the upper section of the 1600 block of Ocean Avenue. The City is authorized to acquire the hereinafter described real property pursuant to the Government Code of the State of California, Sections 37350.5 and 37361, the Public Resources Code of the State of California, Sections 5301 through 5303, inclusive, and the Eminent Domain Law of the State of California (Code of Civil Procedure, Title 7, Chapters 1-12, including, without limitation, Sections 1240.010-1240.700).
SECTION 3. On the basis of the information contained in that certain staff report to the Mayor and Members of the City Council dated October 13, 1998, which is incorporated herein by this reference, and all other written and oral information, evidence and testimony presented to the City Council, the City Council declares, finds and determines:
(a) That the public interest and necessity require the proposed project;
(b) 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;
(c) That the property is necessary for the proposed project; and
(d) That the offer required by Section 7267.2 of the Government Code has been made to the owner or owners of record.
SECTION 4. The City is hereby authorized and empowered to acquire by condemnation the fee title to the hereinafter described real property, unless a lesser estate is expressly described, excepting and reserving to the owner thereof all oil, gas and mineral substances, together with the right to explore for and extract such substances, provided that the surface opening of any well, hole, shaft or other means of exploring for, reaching or extracting such substances shall not be located within the Property and shall not penetrate any part or portion of the Property within 500 feet of the surface thereof.
SECTION 5. The law firm of Kane, Ballmer & Berkman, acting as special counsel for the City is hereby authorized to prepare and prosecute in the name of the City, such proceeding or proceedings in the proper court having jurisdiction thereof, as are necessary for such acquisition, and to prepare and file all pleadings, documents, briefs, and other instruments, and to make such arguments and to take such actions as may be necessary in their opinion to acquire the real property. The City's special counsel is specifically authorized to take whatever steps and/or procedures are available to it under the Eminent Domain Law of the State of California (Code of Civil Procedure, Title I, Chapters 1-12, Sections 1230.010-1273.050).
SECTION 6. The Director of Finance is authorized and directed to draw such warrants as may be required by the Superior Court for deposit of probable compensation in accordance with California Code of Civil Procedure Section 1255.010.
SECTION 7. The City Clerk shall certify to the adoption of this Resolution once, thenceforth and thereafter the same shall be in full force and effect.
SECTION 8. The commencement of an eminent domain action with respect to the Property is contingent on compliance with the requirements of the California Environmental Quality Act ("CEQA").
APPROVED AS TO FORM:
__________________________
MARSHA JONES MOUTRIE
City Attorney