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 No. 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 of Necessity 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 (the Property Interests) over portions of the following properties owned by San Jose Unified School District (Owner): APNs 472-33-007 and 472-33-010 in San Jose, California (the “Property”).
Valley Water staff recommends proceeding with the acquisition of the Property Interests through eminent domain to meet the Project objectives and schedule.
Project 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 in operation (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 the 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.
Valley Water began communicating with Owner concerning the Project in March 2024. Since the Property Interests impact the site of Selma Olinder Elementary School, Valley Water staff was especially attentive to Owner’s questions and concerns regarding the Project. Valley Water staff addressed these concerns in several ways, including the Project design. For example, the floodwalls and passive barriers of the Project have been designed and located so that they do not impact the Owner’s existing structures and uses, and allow for access and use of the existing school facilities.
Valley Water made good faith attempts to negotiate a voluntary acquisition from the Owner. An offer was made to Owner on June 16, 2025, by certified mail, for the Property Interests and Owner confirmed receipt of the offer. Valley Water staff spoke with the Owner many times by phone, via e-mail and in-person to discuss the Project and answer questions. Valley Water staff responded to all the Owner’s questions and corresponded with the Owner to discuss outstanding issues and concerns. To date, Valley Water staff have been unable to acquire the Property Interests through a negotiated purchase.
In conformance with Code of Civil Procedure Section 1245.235, Valley Water sent a Notice of Intent (Attachment 2) giving notice of its intent to hold a Hearing to consider adoption of a RON (Attachment 1) by certified mail to the Owner, to provide them 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 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. The Project is necessary to provide flood protection in the City of San Jose.
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 impacts the fewest private properties to the least extent possible while providing the conveyance capacity necessary to protect against a flood event equivalent to the February 2017 flood or approximately a 20-year flood event.
3. The Property Interests are necessary for the Project. The Project cannot be executed without the Property Interests.
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 Owner 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. The proposed Project use of the Property by Valley Water will not unreasonably interfere with or impair the continuance of the public use to which the Property is currently appropriated, as it now exists, or may reasonably be expected to exist in the future, consistent with the requirements of Cal. Code of Civ. Proc. 1240.510.
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 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 right-of-way at Selma Olinder Elementary School 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
UNCLASSIFIED MANAGER: Manager
Bhavani Yerrapotu, 408-630-2735