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 S&A Investment Holdings, LLC, Necessary to Complete the Coyote Creek Flood Management Measures Project, Project No. 91864007 (San Jose, District 3). (PREVIOUSLY LISTED AS ITEM 2.8)
End
RECOMMENDATION:
Recommendation
A. Open and conduct the Public Hearing to consider adopting a Resolution of Necessity relating to the acquisition of real property or Interests from S&A Investment Holdings, LLC necessary to complete the Coyote Creek Flood Management Measures Project, Project No. 91864007;
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 MANAGEMENT MEASURES PROJECT (PROJECT NO. 91864007) (CODE OF CIVIL PROCEDURE SECTIONS1245.220, et seq.), by a two-thirds vote (5 out of 7).
Body
SUMMARY:
The Santa Clara Valley Water District (Valley Water) is undertaking the Coyote Creek Flood Management Measures Project (CCFMMP) and Coyote Creek Flood Protection Project (CCFPP) to provide flood protection against a flood event equivalent to the February 2017 flood or approximately a 20-year flood event. The CCFMMP is approximately four (4) miles long and located within the City of San Jose.
Acquisition of permanent and temporary construction easements on the property located at 11740 Berryessa Road, in San Jose, California, owned by S&A Investment Holdings, LLC, is necessary to implement flood protection elements of the CCFMMP.
Project Background
Valley Water Board committed to prioritize and accelerate a portion of the Coyote Creek Flood Protection Project to implement flood improvements along Coyote Creek to protect against a flood event equivalent to the February 2017 flood or approximately a 20-year flood event. The CCFPP limits comprise approximately nine (9) miles of Coyote Creek, between Montague Expressway and Tully Road, within the City of San Jose.
The Federal Energy Regulatory Commission (FERC) has jurisdiction over Anderson Dam, located in Morgan Hill, and its associated safety measures for drainage into Coyote Creek through the proposed dam tunnel outlet. Pursuant to FERC’s authority, for public health and safety reasons, on February 20, 2020, Valley Water received an Order from FERC to further reduce risks to public safety by implementing certain risk reduction measures for dam operation and design. These measures include the construction of the Anderson Dam Tunnel Project (ADTP), which is anticipated to be completed in 2024. As a result of the water releases from the tunnel after its completion, flood management measures, including the elements identified by the CCFMMP are necessary to prevent flooding within urbanized areas of San Jose. Valley Water identified the CCFMMP, which is approximately 40-percent of the CCFPP, in response to the FERC Order.
Acquisition of the Property Interests
To construct a portion of the floodwall for the Project, Valley Water must acquire permanent and temporary construction easements over a portion of this property (APN 254-17-043) as described and depicted in Exhibits A and B attached to the Resolution of Necessity (RON) (Attachment 2).
Valley Water made good faith attempts to negotiate a settlement with the property owner. An offer was made to the Owner on October 19, 2022 and the Owner confirmed receipt of the offer. Valley Water staff and Associated Right of Way Services, Inc., the real estate consultant assisting Valley Water staff, have responded to all the Owner’s questions and requests, including staking of the easements. Associated Right of Way Services, Inc. met with the property manager on site, per the Owner’s request, to view the staking and answer any questions, but a negotiated purchase has not been reached.
In conformance with Code of Civil Procedure Section 1245.235, Valley Water sent a notice of intent (Attachment 3) of the hearing to adopt a RON by certified mail to the person or persons whose name and address appears on the last equalized county assessment roll for APN 254-17-043, 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 the 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 properties are necessary for the Project. The Project cannot be executed without the portions of APN 254-17-043, as described and depicted in Exhibits A and B attached to the RON (Attachment 2).
4. The Government Code Section 7267.2(a) offer has been made to the owner or owners of record. On October 19, 2022, Valley Water sent via certified mail a final written offer to the owner of APN 254-17-043 to acquire the property interests, and Valley Water has received confirmation of the owner’s receipt. Valley Water’s offer complies with California Government Code Section 7267.2.
Attached for the Board’s consideration is the proposed RON (Attachment 2). The RON includes authorization to acquire the subject property interests described therein by eminent domain.
As stated above, Valley Water has attempted to acquire the necessary property interests through a negotiated purchase, and has reached an impasse; therefore, adoption of the RON should be considered to meet the Project schedule. If the RON is adopted, Valley Water will continue efforts to negotiate and achieve a mutual settlement prior to any court action.
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. Acquisition of right-of-way at 11740 Berryessa Road is required to achieve flood protection for all in the surrounding community. The property is in the SB 535 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 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 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 $350,000 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 81.8% of the costs allocated to Zone W-2, 7.9% to Zone W-5, and 10.3% to Zone W-7.
CEQA:
The Federal Energy Regulatory Commission Order Compliance Project (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: Gov Code 84308
Attachment 1: Easement Deeds No. 4021-304 and 4021-385
Attachment 2: Resolution
Attachment 3: Notice of Intent
Attachment 4: PowerPoint
UNCLASSIFIED MANAGER:
Manager
Bhavani Yerrapotu, 408-630-2735