BOARD AGENDA MEMORANDUM
Government Code § 84308 Applies: Yes ☒ No ☐
(If “YES” Complete Attachment A - Gov. Code § 84308)
SUBJECT: Title
Conduct a Public Hearing to Consider Adopting a Resolution of Necessity Relating to the Acquisition of Real Property Interests from San Jose Unified School District, Necessary to Complete the Coyote Creek Flood Protection Project, Project No. 26174043, APNs 472-33-007 and 472-33-010, Real Estate File Nos. 4021-354 and 4021-467 (San Jose, District 2).
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RECOMMENDATION: Recommendation
A. Open and conduct a Public Hearing to consider adoption of a Resolution of Necessity relating to the acquisition of real property interests from San Jose Unified School District, necessary to complete the Coyote Creek Flood Protection Project, Project No. 26174043;
B. Close the Public Hearing; and
C. Adopt the Resolution DETERMINING AND DECLARING THE PUBLIC NECESSITY FOR THE ACQUISITION OF CERTAIN REAL PROPERTY OR INTERESTS IN REAL PROPERTY BY EMINENT DOMAIN FOR THE COYOTE CREEK FLOOD PROTECTION PROJECT (PROJECT NO. 26174043) (CODE OF CIVIL PROCEDURE SECTIONS 1245.220, et seq.), by a two-thirds vote.
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SUMMARY:
The Santa Clara Valley Water District (Valley Water) is undertaking the Coyote Creek Flood Protection Project (CCFPP or Project) to provide flood protection against a flood event equivalent to the February 2017 flood or approximately a 20-year flood event. The CCFPP is approximately nine (9) miles long and located within the City of San Jose. The Project is part of the Safe, Clean Water and Natural Flood Program that voters renewed in November 2020.
To implement the flood protection elements of the CCFPP, Valley Water must acquire both permanent easements and temporary construction easements (Property Interests) over portions of the following properties owned by San Jose Unified School District (School District): APNs 472-33-007 and 472-33-010 in San Jose, California (the School District Property), which properties are on the grounds of Selma Olinder Elementary School.
Valley Water staff recommends proceeding with the acquisition of the Property Interests through eminent domain to meet the Project objectives and schedule. However, staff will continue to negotiate a purchase of the Property Interests during these proceedings.
BACKGROUND
The CCFPP’s primary objective is to provide protection from floods up to the level that occurred on February 21, 2017, equivalent to a flood level with a 5% risk of occurring in any given year (also referred to as a 20-year event), along Coyote Creek, between Montague Expressway and Tully Road, in San Jose. The CCFPP involves construction of multiple floodwalls, passive barriers and earthen berms along a nine (9) mile stretch of Coyote Creek.
Following a February 2020 order from the Federal Energy Regulatory Commission (FERC) regarding Anderson Dam, the original Coyote Creek Flood Protection Project was split into two projects to accommodate construction of a new outlet tunnel at Anderson Dam. As a result, Valley Water accelerated the design and construction of an initial project, the Coyote Creek Flood Management Measures Project (CCFMMP), representing 40% of the original Coyote Creek Flood Protection Project, so the creek can handle the potential release of higher flows from the larger outlet tunnel from the Anderson Dam Tunnel Project. The Valley Water Board of Directors (Board) awarded the CCFMMP construction contract in May 2023 and accepted the work as completed in June 2025.
Construction of the remaining components of the original CCFPP, the current CCFPP, is planned for completion before the Anderson Dam Seismic Retrofit Project (ADSRP) Stage 2 Diversion is operational (estimated in 2028). In total, the Project includes constructing approximately 17,060 feet of improvements along the 9-mile stretch of Coyote Creek from Montague Expressway to Tully Road. The Project will result in flood risk reduction benefits to homes, businesses, schools, and transportation infrastructure, including disadvantaged communities along Coyote Creek.
Acquisition of Property Interests
To construct the flood protection features of the CCFPP, Valley Water must acquire the Property Interests as more particularly described and depicted in Attachment 1 to the proposed Resolution of Necessity (RON), Exhibits A and B, which consist of a permanent easement and temporary construction easements.
Beginning in 2019 and throughout the planning phase of the Project, outreach and community engagement activities were organized, including 10 public meetings, to gather input from the community and stakeholders and to incorporate their input and comments into the development of the Project. Valley Water analyzed numerous Project alternatives in accordance with its Natural Flood Protection guidelines, a decision-making framework that balances public safety with environmental stewardship and community benefits. Additionally, during the Project design phase, Valley Water staff organized more than 20 public meetings to keep the community and stakeholders appraised of the project elements and progress.
Staff met in person or virtually with the School District on March 13, April 18, May 1, and October 2, 2024, to discuss specific design details of the Project. In response to feedback from School District, the part of the proposed floodwall protecting the Selma Olinder Elementary School was modified to be a passive barrier (a type of floodwall that raises automatically as water rises but is otherwise flush with the ground) to minimize impacts to school operations and enhance safety. All flood protection elements are located so that they do not impact the School District’s existing structures/uses and allow for access and use of the existing school facilities post-construction. School District staff and students will continue to have access to the ball field during recess and other recreational purposes, except for a small portion of it being used as a staging area, during construction. However, there will be no impacts to any other school facilities, including buildings.
Valley Water has made good faith attempts to negotiate a voluntary acquisition from the School District. An offer was made to School District on June 16, 2025, by certified mail, for the Property Interests and School District confirmed receipt of the offer. Valley Water and School District communicated by email on August 11, 2025, to discuss their expected response to the Valley Water offer. On August 21, 2025, the School District provided a new draft purchase agreement containing numerous conditions and terms that required discussion.
Over the next 30 days, staff attempted to communicate with the School District by phone (September 3, 2025) and e-mail (September 16, 2025) requesting an update regarding the offer and to discuss issues surrounding the School District’s revisions to a draft version of the purchase agreement. Receiving no response from the School District, and in order, to keep the Project on schedule, on September 11, 2025, Valley Water initiated the preliminary steps necessary before commencing eminent domain proceedings. Resolution of Necessity hearings were scheduled for October 14, 2025 and then November 25, 2025, however, each was deferred by the Board of Directors to facilitate further negotiations with the School District. On October 30, 2025 and November 13, 2025, staff met virtually with the School District to address concerns related to the construction, operation and maintenance of the CCFPP flood protection features, and on November 14, 2025, staff provided requested technical information regarding the Project’s hydraulic analysis. Communication continued via email, and on December 17, staff provided written terms responding to the School District’s concerns and met in person with the School District on December 18, 2025, to continue negotiations to acquire the Property Interests necessary for the Project.
To date, Valley Water staff have been unable to acquire the necessary Property Interests from the School District through a negotiated purchase.
In conformance with California Code of Civil Procedure Section 1245.235, Valley Water sent a Notice of Intent (Attachment 2) to hold a hearing to consider adoption of a RON (Attachment 1) by certified mail to the School District on December 16, 2025, to provide them with a reasonable opportunity to be heard by the Board.
The Hearing by the Board and the adoption of the RON are legal preconditions to the exercise of Valley Water’s power of eminent domain. This statutory requirement is designed to ensure that public entities verify and confirm the validity of their intended use of the power of eminent domain. A RON must contain a general statement of the intended public use for which the property is taken, a reference to the authorizing statutes, a description of the property, and a declaration stating that the Board has found and determined each of the following underlined findings to be true:
1. The public’s interest and necessity require the Project. Here, the Project is necessary, and in the public interest to provide flood protection within the City of San Jose to protect against a flood event equivalent to the February 2017 flood or approximately a 20-year flood event.
2. The Project is planned or located in a manner that will be most compatible with the greatest public good and the least private injury. The Project design as a whole impacts the fewest private properties to the least extent possible while providing the conveyance capacity necessary to afford the desired level of flood protection. The Project’s use of the School District Property was located, planned and designed in a manner compatible with the greatest public good and the least private injury to the School District.
3. The Property Interests are necessary for the Project. The Project cannot be executed without the Property Interests because the configuration of the creek dictates the project alignment; without this property there would be a gap in the flood protection structures, thereby eliminating their ability to provide the planned level of flood protection to this property and downstream properties.
4. The Government Code Section 7267.2(a) offer has been made to the owner or owners of record. On June 16, 2025, Valley Water sent via certified mail a final written offer to the School District to acquire the Property Interests, and Valley Water received confirmation of the offer being received on June 18, 2025. Valley Water’s offer complies with California Government Code Section 7267.2.
5. Because the use of the Property Interests for the Project will not unreasonably interfere with or impair any public use as it now exists or may reasonably be expected to exist in the future and, therefore, is compatible with any other public uses the property is sought to be acquired pursuant to California Code of Civil Procedure Section 1240.510; and, to the extent they are not compatible, the use for which the property is sought to be taken is a more necessary public use than the use to which the property is appropriated, and accordingly the property is sought to be acquired pursuant to California Code of Civil Procedure Section 1240.610.
Attached for the Board’s consideration is the proposed RON (Attachment 1). The RON includes authorization to acquire the Property Interests described therein by eminent domain.
As stated above, Valley Water has attempted to acquire the Property Interests through a negotiated purchase and has reached an impasse; therefore, adoption of the RON should be considered to timely meet the Project objectives and schedule. If the RON is adopted, Valley Water will continue efforts to negotiate and achieve a mutual settlement.
ENVIRONMENTAL JUSTICE IMPACT:
The CCFPP will have beneficial Environmental Justice impacts. The intent of CCFPP is to protect the public from dangers associated with flooding similar to the flooding event that occurred in February 2017. Acquisition of the Property Interests is required to achieve flood protection for all in the surrounding community.
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 in the community meetings would best serve the area. The completion of the Project will directly benefit the adjacent disadvantaged communities along the full stretch of Coyote Creek between Montague Expressway and Tully Road.
Additionally, the Valley Water 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 CCFPP, Project No. 26174043, is included in the Capital Improvement Program (CIP) Fiscal Year (FY) 2026-30 Five-Year Plan and in the FY 2025-26 Adopted Budget. The statutory offer of compensation for the right-of-way for this Resolution of Necessity is $428,000 and does not change the overall Total Project Cost reflected in the CIP FY 2026-30 Five-Year Plan. There are adequate funds in the Project’s FY 2025-26 Adopted Budget to encumber funds for the right-of-way purchase.
CEQA:
Valley Water is the lead agency under the CEQA for the implementation of the Project. On March 11, 2025, the Board adopted a Resolution (Resolution No. 2025-16) certifying the Final Environmental Impact Report (EIR), adopting the Mitigation Monitoring and Reporting Program and approved the CCFPP.
The CCFPP Final EIR describes the acquisition of temporary and permanent easements for project construction and maintenance, and identifies environmental impacts associated with specific project construction and maintenance activities. Activities that will be occurring within the permanent easements and the temporary construction easements are wholly consistent with the activities described in the Final EIR. Appropriate best management practices (BMPs), mitigation measures, and Santa Clara Valley Habitat Plan (VHP) conditions and avoidance and minimization measures (AMMs) will be implemented as required to reduce impacts from these activities to the extent feasible.
ATTACHMENTS:
Attachment A: Gov. Code § 84308
Attachment 1: Resolution
Attachment 2: Notice of Intent
Attachment 3: PowerPoint
Handout 3.6-A: Letter from SJUSD
UNCLASSIFIED MANAGER: Manager
Bhavani Yerrapotu, 408-630-2735