BOARD AGENDA MEMORANDUM
Government Code Section 84308 Applies: Yes ☒ No ☐
(If “YES” Complete Attachment A)
SUBJECT:
Title
Conduct a Public Hearing to Consider Adopting a Resolution of Necessity Relating to Acquisition of a Real Property Interest from an Unknown Owner, Necessary to Construct the Coyote Creek Flood Management Measures Project (Project No. 91864007), Valley Water File 4021-305 (San Jose, District 3).
End
RECOMMENDATION:
Recommendation
A. Open and conduct the Public Hearing to consider adoption of a Resolution of Necessity (RON) relating to the acquisition of a real property interest from Unknown Owner, necessary to complete the Coyote Creek Flood Management Measures Project;
B. Close the Public Hearing; and
C. Adopt the Resolution DETERMINING AND DECLARING THE PUBLIC NECESSITY FOR THE ACQUISITION OF CERTAIN REAL PROPERTY OR INTEREST IN REAL PROPERTY BY EMINENT DOMAIN FOR THE COYOTE CREEK FLOOD MANAGEMENT MEASURES PROJECT, PROJECT NO. 91864007, by two-thirds vote (5 out of 7).
Body
SUMMARY:
Santa Clara Valley Water District (Valley Water) staff recommends acquisition of real property located off of Berryessa Road, in San Jose, California owned by an unknown owner. This property is shown on the plat and description of Easement Deed No. 4021-305 (Attachment 1). Acquisition of this real property interest is necessary to implement flood risk reduction elements of the Coyote Creek Flood Management Measures Project (CCFMMP).
Project Background
Valley Water is undertaking the Anderson Dam Federal Energy Regulatory Commission (FERC) Order Compliance Project (FOCP) as a result of the February 20, 2020, directive from FERC to implement interim risk reduction measures at Anderson Dam to protect the public from risk of dam failure due to seismic activity. The approved FOCP includes four categories of actions including reservoir drawdown, construction of the Anderson Dam Tunnel Project (ADTP) (anticipated to be completed in 2024), operation and maintenance following ADTP construction, and avoidance and minimization measures (AMMs) necessary to reduce environmental and water supply impacts during implementation of FOCP. To address the higher flows from operation of the tunnel after its completion, flood management measures, identified and to be implemented under CCFMMP, were included in the FOCP to reduce flood risks within urbanized areas of San José. Specifically, the FOCP’s flood management measures include potentially acquiring properties, elevation of structures, or construction of floodwall or levees. The construction of CCFMMP is also anticipated to be completed in 2024. The overall flood risk reduction objective of CCFMMP is protecting areas of Coyote Creek against a flood event approximately equivalent to the February 2017 flood event.
The property in question does not have an APN associated with it and is an assumed portion of an abandoned railroad right-of-way being used by adjacent properties for shared access. The ownership of the property could not be identified after completion of a title search and is therefore unknown.
The acquisition from the unknown owner includes two portions of a parcel as a Permanent Easement (PE), totaling 1,085 square feet.
Valley Water obtained an appraisal for the PE from Associated Right of Way Services, Inc. (AR/WS) dated October 2022, which provided a fair market value of the property interest at $6,000.
Acquisition of the Property Interest
The hearing by the Board and the adoption of the Resolution of Necessity (RON) are legal preconditions to the exercise of Valley Water’s power of eminent domain. Code of Civil Procedure Section 1245.230 requires that the Board make the following findings and that each be included in the RON:
1. The public interest and necessity require the project. In order to provide flood protection to properties in the Project area, Valley Water must acquire the property right for the parcel described and depicted in the plat map and legal description in Exhibit A of the RON (Attachment 2) to construct flood protection improvements.
2. The project is located in a manner that will be most compatible with the greatest public good and the least private injury. The CFMMP design impacts the fewest private properties to the least extent possible while providing the protection necessary to reduce flood risk from an approximately 20-year flood event. The property rights to be acquired are located where essential project features (e.g. floodwall, maintenance access roads and ramps, construction staging area, and vegetative planting) are planned. Furthermore, the property rights to be acquired will not impact private structures or access to private structures.
3. These property interests are necessary for the project. The Project cannot be completed without the property right as shown on Attachment 2 and described and depicted in the plat map and legal description in Exhibit A of the RON (Attachment 2).
4. A Courtesy Notice of Intention to Consider Adoption of a Resolution of Necessity to Acquire Property by Eminent Domain was mailed to the adjacent property owners on December 22, 2022.
Since an owner has not been identified to present an offer package to, courtesy notices were sent to the adjacent property owners, consisting of the City of San Jose, Berryessa FM Development LLC and Terreno Berryessa LLC via certified mail with return receipt on December 22, 2022. The letter sent to City of San Jose was confirmed delivered on December 28, 2022. The letter sent to Berryessa FM Development LLC was confirmed delivered on December 28, 2022. Staff did not receive the return receipt of the letter sent to Terrano Berryessa LLC as of January 4, 2023. However, United States Postal Service tracker shows that the letter was delivered on December 27, 2022. Staff reached out to Terrano Berryessa LLC through email and voicemail but did not receive a response as of January 4, 2023.
The RON includes direction from the Board authorizing acquisition of the subject property interest described therein by eminent domain. If the RON is adopted, Valley Water will pursue acquisition of this property interest by eminent domain.
ENVIRONMENTAL JUSTICE IMPACT:
The CCFMMP will have beneficial Environmental Justice impacts. The intent of CCFMMP is to protect the public from dangers associated with flooding similar to the flooding event that occurred in February 2017 in the Project area. Acquisition of the right-of-way is required to achieve flood protection for all in the surrounding community. The property is in the SB 535 designated Disadvantaged Communities. The SB 535 map utilizes California Communities Environmental Health Screening Tool (CalEnviroScreen) which is a screening methodology that can be used to help identify California communities that are disproportionately burdened by multiple sources of pollution. The location of the property has a CalEnviroScreen 4.0 score of 80.1. Areas of concern have scores between 70 and 100.
During the planning phase, Valley Water staff evaluated multiple flood protection alternatives and implementation sites, met with the community numerous times, and determined that the preferred alternatives presented to the community in June 2020 would best serve the area. The completed Project will directly benefit the adjacent disadvantaged communities along the full stretch of Coyote Creek between Montague Expressway and Tully Road.
Additionally, Valley Water’s design team continues to coordinate with the community and key stakeholders as the Project advances, by holding public meetings and soliciting community feedback.
FINANCIAL IMPACT:
The Coyote Creek Flood Management Measures Project, Project No. 91864007, is included in the Capital Improvement Program (CIP) Fiscal Year (FY) 2023-27 Five-Year Plan and in the FY 2022-23 Adopted Budget. The acquisition price of the right-of-way for this Resolution of Necessity is $6,000 and there is adequate funding in the Project’s Fiscal Year 2022-23 budget to encumber this purchase. The Project is funded by Water Utility Enterprise Fund (Fund 61), with 81.9% of the costs allocated to Zone W-2, 7.9% to Zone W-5, and 10.3% to Zone W-7.
CEQA:
The FOCP was determined to be exempt from CEQA review pursuant to the statutory exemption for specific actions necessary to prevent or mitigate an emergency under CEQA Guidelines §15269(c) and Public Resources Code §21080(b)(4). Valley Water filed a Notice of Exemption for FOCP with Santa Clara County Clerk-Recorder Office on June 29, 2020. This acquisition is considered part of the CCFMMP, which is included in the FOCP and continues to be exempt from CEQA pursuant to the above-cited provisions.
ATTACHMENTS:
Attachment A: Government Code Section 84308
Attachment 1: Easement Deed No. 4021-305
Attachment 2: Resolution
Attachment 3: Courtesy Notices
UNCLASSIFIED MANAGER:
Manager
Bhavani Yerrapotu, 408-630-2735