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 from an Unknown Owner(s), Necessary to Complete the Coyote Creek Flood Protection Project, Project No. 26174043, Real Estate File No. 4021-527 (San Jose, District 2).
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RECOMMENDATION: Recommendation
A. Open and conduct the Public Hearing to consider adoption of a Resolution of Necessity relating to the acquisition of real property from an unknown owner(s), 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 a property that lacks an APN or address, but lies between parcels numbered APN 467-13-055 and 467-13-056 (the "Property") in City of San Jose.
Valley Water staff recommends proceeding with the acquisition of the Property 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 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
To construct the flood protection features of the CCFPP, Valley Water must acquire fee title to the entirety of the Property as more particularly described and depicted in Attachment 1 Resolution of Necessity (RON), Exhibit A.
The ownership of the Property remains unknown. Valley Water completed a title search and could neither identify nor locate an owner of the Property. The Property does not appear on the assessor’s roll nor does it have an APN. Under Government Code Section 7267.2, Valley Water is not required to make an offer to purchase the Property since the owner could not be located despite a diligent search. Similarly, Valley Water could not mail the Notice of Intention to Adopt a RON pursuant to California Code of Civil Procedure Section 1245.235 since no owners appear on the assessor’s roll. Valley Water, however, posted a courtesy Notice of Intention (Attachment 2) to Consider Adoption of a RON to Acquire Property by Eminent Domain on the Property on September 11, 2025.
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 is necessary for the Project. The Project cannot be executed without the Property. The Project design and route are dictated by the location and flow of Coyote Creek.
4. Valley Water did not make the offer pursuant to California Government Code Section 7267.2 because the owner could not be located with reasonable diligence.
5. The use for which Valley Water seeks to take the Property is a more necessary public use than any public use to which the Property may currently be appropriated, if any, 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 by eminent domain.
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 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’s (FY) 2026-30 Five-Year Plan and in the FY 2025-26 Adopted Budget. The statutory offer of compensation for the Property is $500 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 approving the CCFPP.
The CCFPP Final EIR describes the acquisition of fee title and easements for project construction and maintenance, and identifies environmental impacts associated with specific project construction and maintenance activities. Activities that will be occurring on the Property 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