HomeMy WebLinkAboutResolution No. 08-C061RESOLUTION NO. 08-C61
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA
CONSENTING TO THE USE OF EMINENT DOMAIN, PURSUANT TO
CALIFORNIA CODE OF CIVIL PROCEDURE, SECTION 1245.310 ET SEQ.,
BY COVINA IRRIGATING COMPANY TO ACQUIRE A PERMANENT
10 -FOOT WIDE EASEMENT AND RIGHT OF WAY FOR INGRESS AND
EGRESS, AND TO CONSTRUCT, INSTALL, USE, INSPECT, LOCATE,
MAINTAIN, OPERATE, ALTER, ADD TO, REPAIR, REPLACE, REMOVE
AND/OR RELOCATE PIPELINES AND RELATED FACILITIES AND
CONNECTIONS, INCLUDING THE RIGHT TO CONSTRUCT, INSTALL,
MAINTAIN, AND OPERATE A 42" PIPELINE, AND THE RIGHT TO
REMOVE, REPLACE, AND/OR RELOCATE ANY ABOVE -SURFACE AND
SUB -SURFACE PIPELINES, IMPROVEMENTS, STRUCTURES, TREES,
SHRUBS, AND ANY OTHER GROWTH THEREON, NECESSARY OR
CONVENIENT FOR COVINA IRRIGATING COMPANY'S, OR ITS
SUCCESSORS AND ASSIGNS, USE OF THE EASEMENT FOR WATER
TRANSPORTATION AND FOR ANY AND ALL OTHER USES AND PURPOSES
OF COVINA IRRIGATING COMPANY AND OF ITS SUCCESSORS AND
ASSIGNS, AS WELL AS A TEMPORARY 25 -FOOT WIDE CONSTRUCTION
AND INSTALLATION EASEMENT AND RIGHT OF WAY FOR INGRESS AND
EGRESS TO CONSTRUCT, INSTALL, USE, INSPECT, LOCATE, MAINTAIN,
OPERATE, ALTER, ADD TO, REPAII , REPLACE, REMOVE AND/OR
RELOCATE SUCH PIPELINE OR PIPELINES AND FACILITIES AND
CONNECTIONS, INCLUDING THE RIGHT TO OPERATE NECESSARY
EQUIPMENT THEREON, THE RIGHT TO CONSTRUCT, INSTALL,
MAINTAIN, AND OPERATE A 42" PIPELINE, AND THE RIGHT TO
REMOVE, REPLACE, AND/OR RELOCATE ANY ABOVE -SURFACE AND
SUB -SURFACE PIPELINES, IMPROVEMENTS, STRUCTURES, TREES,
SHRUBS, AND ANY OTHER GROWTH THEREON, IN, UNDER, UPON, OVER,
ACROSS AND THROUGH (SHADY OAK COURT AND PARKING LOT)
PROPERTY OWNED BY THE CRYSTAL CANYON DEVELOPMENT
HOMEOWNERS AND/OR CRYSTAL CANYON DEVELOPMENT HOME
OWNERS ASSOCIATION AS DEPICTED ON THE DIAGRAM ATTACHED
HERETO AS EXHIBIT "1"
WHEREAS, there is an open water canal in the City of Azusa ("City) that traverses the City in a
southeasterly direction; and
WHEREAS, the canal has been operated by the Covina Irrigating Company ("CIC") for over
100 years and conveys supplemental potable water on a wholesale basis to a population estimated to be
in excess of 100,000 consumers throughout the eastern portion of the San Gabriel Valley; and
WHEREAS, CIC receives its water from the San Gabriel River which is transported through the
open canal that traverses the City in a southeasterly direction from a power facility owned and operated
by the City of Pasadena (the "Pasadena Powerhouse"), which is located directly across Ranch Road from
a narrow private road (called Shady Oak Court) and a parking area located on the Crystal Canyon
Condominium property; and
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WHEREAS, CIC is in the midst of modernizing and improving its transmission delivery system,
which includes the elimination of the open canal in the City; and
WHEREAS, the northern section of the open canal has been a long standing health hazard in the
City and poses significant health hazards and safety risks to the residents, families, and children of the
community, as well as to the general public, and, as part of its modernization efforts, CIC now wishes to
replace the open canal with an underground pipeline; and
WHEREAS, the open canal is vulnerable to contamination from a variety of sources including
wildlife, windblown trash and debris, and urban runoff, and
WHEREAS, state and federal regulations and guidance have been placing increasing emphasis
on source water protection as a means of ensuring the safety of drinking water, and
WHEREAS, the California Department of Public Health supports CIC's plans to transport its
water through an underground pipeline since the Department of Public Health finds that the replacement
of the open canal with an underground pipeline will help protect public health by significantly reducing
potential contamination sources; and
WHEREAS, due to the open nature of the canal, the City has long been concerned with the
safety risks associated with the operation of an open canal within the City's limits, especially where
children are concerned; and
WHEREAS, the northern section of the open canal is lined with rock, mortar, and concrete, and
as a result of its age and exposure to the elements, the condition of this section of the canal has
deteriorated significantly over the years resulting in water leakage in certain areas of the northern section
of the open canal; and
WHEREAS, as a result of urbanization of the area over the past 100 years, the northern section
of the open canal is also surrounded by residential properties and other structures, making it very
difficult to access this section to bring in the necessary equipment and materials required to properly
maintain and repair the canal in a cost-effective and safe manner; and
WHEREAS, due to the lack of access to the northern section of the open canal, enclosing this
section of the open canal is technically infeasible and economically cost -prohibitive since it would be
very difficult to access this section and bring in the necessary equipment and materials required to
enclose the canal, and, even if enclosing the canal was feasible, such enclosure would not address the
maintenance, repair, and leakage issues that currently exist in connection with the maintenance and
operation of the open canal; and
WHEREAS, constructing and installing a pipeline where the northern section of the open canal
is situated is technically and economically infeasible for the same reason it is infeasible to enclose the
open canal including lack of access; and
WHEREAS, the homeowners whose homes either abut the northern section of the open canal or
are located in close proximity to that segment of the canal would experience significant disruption and
inconvenience for months resulting from any attempts to enclose the open canal or construct a pipeline in
the current canal route, since the only way to access certain portions of the northern segment of the canal
is through the backyards and side yards of these residential properties; and
WHEREAS, southern portions of the open canal in the City have been re-routed as part of the
implementation of the Rosedale Development Project, a master planned residential development, which
has affected the routing of southern segments of the canal and changed the hydraulic requirements of
CIC's transmission delivery system, and an underground pipeline has been installed to eliminate the
southern portion of the open canal; and
WHEREAS, the closest public road located near the northern starting point of the open canal,
which begins at the Pasadena Powerhouse, is Ranch Road, formerly referred to as Azusa and San Gabriel
Canyon Road; and
WHEREAS, because CIC's proposed pipeline is a gravity -flow based system (a system that does
not utilize pressure pumps to transport water through the line), it is not feasible to construct and install a
42" water pipeline from the Pasadena Powerhouse to Ranch Road proceeding north to intersect with San
Gabriel Canyon Road since such an alignment would not achieve the necessary gravity flow required to
transport water to the south; and
WHEREAS, Ranch Road is a narrow street and congested with existing underground utilities
including numerous pipelines and conduits for water, gas, electricity and sewer service, making it
technically and economically infeasible for CIC to install in Ranch Road the 42" water pipeline needed
to convey water to the south; and
WHEREAS, the City's existing 8" sewer line in Ranch Road is located approximately near the
centerline of Ranch Road proceeding in a southerly direction; and
WHEREAS, the California Department of Public Health regulates the separation of water lines
and sewer pipes, and in order to ensure that the City's sewer line is maintained and operated in a safe
manner, the Department of Public Health requires, among other things, that ten horizontal feet of
separation exist between the City's sewer line and other water pipelines located in Ranch Road; and
WHEREAS, as a result of the current location and alignment of the City's sewer line in Ranch
Road, it is technically infeasible and cost -prohibitive for CIC to construct and install a 42" pipeline in
Ranch Road because CIC would have to remove and relocate existing utility pipelines and conduits
located in Ranch Road and identify an alignment for its pipeline that would satisfy, if at all possible, all
of the Department of Public Health's separation criteria and other requirements; and
WHEREAS, Ranch Road is a two lane roadway and there are housing developments on both
sides of the street, the residents of which would suffer substantial hardship and utility and access
disruption for many months if CIC is forced to construct its pipeline in Ranch Road, resulting from the
removal and relocation of existing utilities in that street; and
WHEREAS, even if the underground pipeline could be installed safely in Ranch Road, it would
necessitate the shutdown of the entire street for many months from either Sierra Madre Avenue or North
San Gabriel Canyon Road, which would significantly impact and inconvenience residents of that area, as
well as the general public, that use this street to travel between Sierra Madre Avenue and North San
Gabriel Canyon Road; and
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WHEREAS, it is not recommended that the proposed pipeline be constructed in the parkway
located along Ranch Road because any such alignment would require, among other things, the removal
and replacement of mature trees and other landscaping along the parkway, and the proposed pipeline
cannot be located in an area where it would be exposed to growing tree roots since such exposure would
affect CIC 's ability to properly maintain and operate its pipeline in the future; and
WHEREAS, the difficulties in constructing a pipeline in Ranch Road as stated herein are the key
reasons the City acquired an easement for a similar pipeline alignment from the Canyon View
Homeowners located just north of the Crystal Canyon Condominium property, and the City plans to
construct and install a pipeline through the Canyon View Homeowners property to connect to the City's
pipeline in San Gabriel Canyon Road heading south; and
WHEREAS, CIC has put forth a plan to eliminate the northern segment of the open canal and
route the water underground through a 42" pipeline that will connect with the southern segment of
underground pipeline, which will accomplish the City's goal of eliminating any health hazards and safety
risks associated with the continued operation of the northern section of the open canal; and
WHEREAS, CIC has tried to obtain a permanent easement in, under, upon, over, across and
through a private street (Shady Oak Court) and parking area located on the Crystal Canyon
Condominium property in order to construct and install a 42" pipeline from the Pasadena Powerhouse
across Ranch Road and through Shady Oak Court and parking area, which would connect to a pipeline to
be located in San Gabriel Canyon Road so that it may use this four lane road to construct and install the
underground pipeline that can be routed south and maintain the necessary gravity flow to transport water
to the south; and
WHEREAS, the Crystal Canyon Homeowners Association and CIC have been unable to reach
agreement whereby CIC would be granted an easement to use the Association's and/or Crystal Canyon
Homeowners' private property to connect proposed pipelines between the Pasadena Powerhouse and San
Gabriel Canyon Road to allow for replacement of the canal with the underground pipeline; and
WHEREAS, the permanent easement to be acquired by eminent domain by CIC in, under, upon,
over, across, and through Shady Oak Court and parking area located on the Crystal Canyon
Condominium development will be ten (10) feet in width and approximately four hundred (400) feet in
length, as depicted on the diagram attached hereto as Exhibit "1" and legally described on the document
attached hereto as Exhibit "2" (the "Permanent Easement Area"); and
WHEREAS, the permanent easement to be acquired will provide CIC with, at any time, the right
to construct, install, use, inspect, locate, maintain, operate, alter, add to, repair, replace, remove, and/or
relocate pipelines and related facilities and connections necessary or convenient for CIC's, and its
successors and assigns, use of the easement for water transportation and for any and all other uses and
purposes of CIC and of its successors and assigns, including, but not limited to, the right to remove,
replace, and/or relocate any above -surface and sub -surface pipelines, improvements, structures, trees,
shrubs, and any other growth thereon; and;
. WHEREAS, in order to access the Permanent Easement Area to exercise its rights under the
permanent easement, CIC must also be granted a permanent right of way for ingress and egress through
the Crystal Canyon Condominium property; and
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WHEREAS, in order to properly construct and install the proposed pipeline, it is also necessary
for CIC to obtain a 25 -foot wide temporary construction and installation easement, with a temporary
right of way for ingress and egress, to construct, install, use, inspect, locate, maintain, operate, alter, add
to, repair, replace, remove, and/or relocate such pipeline or pipelines and facilities and*connections,
including, but not limited to, the right to operate necessary equipment thereon, the right to construct,
install, maintain and operate a 42" pipeline, and the right to remove, replace, and/or relocate any above -
surface and sub -surface pipelines, improvements, structures, trees, shrubs, and any other growth thereon,
in, under, upon, over, across and through Shady Oak Court and the parking area located on the Crystal
Canyon Condominium property; and
WHEREAS, the temporary easement to be acquired by. eminent domain by CIC will be
approximately twenty-five (25) feet in width and approximately four hundred (400) feet in length, as
depicted on the diagram attached hereto as Exhibit "1" and legally described on the document attached
hereto as Exhibit "3"; and
WHEREAS, the temporary easement will not be a permanent encumbrance against the Crystal
Canyon Condominium property and shall expire upon completion of the construction and installation of
the proposed pipeline and improvements; and
WHEREAS, construction and installation of the 42" pipeline through Shady Oak Court and the
parking area can be completed much sooner and with much less difficulty than (i) any proposed
enclosure of the northern section of the open canal, (ii) any proposed construction of a pipeline in that
segment of the open canal, or (iii) any proposed pipeline alignment in Ranch Road, resulting in less
hardship to the affected Crystal Canyon residents and homeowners than to CIC or to the other residents
residing in the homes located on both sides of Ranch Road and the general public if the permanent and
temporary easement acquisitions over the subject property by CIC via eminent domain are not permitted;
and
WHEREAS, CIC is a mutual water company and quasi -public entity authorized under Section
2729 of the California Public Utilities Code and California Code of Civil Procedure Sections 1245.310
et seq., to acquire permanent and temporary easements over the proposed area by eminent domain; and
WHEREAS, Section 1245.360 of the California Code of Civil Procedure requires this resolution
to be adopted by a two-thirds (2/3) vote of the City Council members, or, alternatively, by at least a 4-1
vote; and
WHEREAS, the adoption of this Resolution is statutorily exempt from the requirements of the
California Environmental Quality Act (CEQA) pursuant to Section 15282(k) of the CEQA Guidelines
and Section 21080.21 of the California Public Resources Code; and
WHEREAS, Proposition 99 was a proposed amendment to the California Constitution that
appeared on the June 3, 2008 statewide ballot; and
WHEREAS, Proposition 99 amends Section 19 of Article I of the California Constitution,
adding section 19(b) prohibiting State and local governments from "acquiring by eminent domain an
owner -occupied residence for the purpose of conveying it to a private person," and also adding section
19(c) which states that section 19(b) does not apply when State or local government exercises the power
of eminent domain for the purpose of, among other things, protecting public health and safety; and
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WHEREAS, Proposition 99 is not applicable to the adoption of this resolution by the City
Council since such adoption does not result in the acquisition by eminent domain of an owner -occupied
residence "for the purpose of conveying it to a private person"; rather, the adoption of this resolution
only authorizes CIC to file an eminent domain action to acquire the subject easements should it become
necessary for CIC to do so, and
WHEREAS, CIC is not a "private person" under Proposition 99 but instead is a California non-
profit mutual water company that is considered a quasi -public entity under Code of Civil Procedure
section 1245.310 et seq. and has the authority to exercise powers of eminent domain after obtaining the
requisite consent by the City Council; and
WHEREAS, even if Proposition 99 is applicable, the adoption of this resolution would be
excluded under section 19(c) of Article I of the California Constitution since the proposed easement
acquisitions are necessary for CIC's proposed pipeline project, which is designed to protect public health
and safety.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA,
DOES HEREBY FIND AND RESOLVE AS FOLLOWS:
SECTION 1. Findings.
The City Council finds that the recitals contained in this Resolution are true and
correct and hereby adopts them as findings as if fully set forth herein.
2. The City Council finds that the public use for which the property is to be acquired is
to accommodate the construction and installation of a water pipeline to eliminate an
open water canal and the potential health hazards and safety risks inherent in
operating an open water canal.
3. The general location of the proposed permanent easement acquisition is shown on the
attached Exhibit "1" and legally described in the attached Exhibit "2" and consists of
a ten (10) foot wide, four -hundred (400) foot long easement traversing over a narrow
portion of one private road (Shady Oak Court) and parking area located on the
Crystal Canyon Condominium development.
4. The general location of the proposed temporary easement acquisition is shown on the
attached Exhibit "1" and legally described in the attached Exhibit "3" and consists of
a twenty-five (25) foot wide, four -hundred (400) foot long easement traversing over a
narrow portion of one private road (Shady Oak Court) and parking area located on the
Crystal Canyon Condominium development.
5. The City Council finds that the public interest and necessity require the proposed
pipeline project and the acquisition of the permanent and temporary easements so that
the northern segment of CIC's open canal can be routed underground and connected
with the southern segment of underground pipeline in the Rosedale Development for
the reasons set forth in this Resolution.
6. The City Council finds that CIC's proposed pipeline project is planned/located in a
manner that is most compatible with the greatest good and least private injury.
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7. The City Council finds that the property described on Exhibits "2' and "3" attached to
this Resolution is necessary for CIC's proposed pipeline project.
8. The City Council finds that the permanent and temporary easements through the
Crystal Canyon Homeowners and/or Crystal Canyon Home Owners Association's
private street named Shady Oak Court and open parking lot property as further
described herein is necessary for CIC's proposed pipeline project.
9. The City Council finds that the rights of way for ingress and egress through the
Crystal Canyon Condominium property described herein are necessary for CIC's
proposed pipeline project and necessary for CIC to be able to properly exercise its
rights under the permanent and temporary easements as described herein.
10. The City Council finds that the hardship to CIC (and to the public generally) of not
acquiring the permanent and temporary easements over the property described herein
by eminent domain outweighs any hardship that will be experienced by the affected
property owners and/or homeowners association of the Crystal Canyon Condominium
development.
11. The City Council of the City of Azusa hereby consents to CIC's use of eminent
domain power in order to secure a permanent 10 -foot wide easement and right of way
for ingress and egress, and at any time and from time to time, to construct, install,
use, inspect, locate, maintain, operate, alter, add to, repair, replace, remove and/or
relocate pipelines and related facilities and connections, including, but not limited to,
the right to construct, install, maintain, and operate a 42" pipeline, and the right to
remove, replace, and/or relocate any above -surface and sub -surface pipelines,
improvements, structures, trees, shrubs, and any other growth thereon, necessary or
convenient for CIC's, and its successors and assigns, use of the easement for water
transportation and for any and all other uses and purposes of CIC and of its
successors and assigns, in, under, upon, over, across and through Shady Oak Court
and the parking lot owned by the Crystal Canyon Development Homeowners and/or
Crystal Canyon Development Home Owners Association as shown on the attached
Exhibit "1" and as described in the attached Exhibit "2".
12. The City Council of the City of Azusa hereby consents to CIC's use of eminent
domain power in order to secure a temporary 25 -foot wide construction and
installation easement and right of way for ingress and egress, to construct, install, use,
inspect, locate, maintain, operate, alter, add to, repair, replace, remove, and/or
relocate such pipeline or pipelines and facilities and connections, including, but not
limited to, the right to operate necessary equipment thereon, the right to construct,
install, maintain, and operate a 42" pipelirie, and the right to remove, replace, and/or
relocate any above -surface and sub -surface pipelines, improvements, structures, trees,
shrubs, and any other growth thereon, in, under, upon, over, across, and through
Shady Oak Court and the parking lot owned by the Crystal Canyon Development
Homeowners and/or Crystal Canyon Development Home Owners Association as
shown on the attached Exhibit "1" and as described in the attached Exhibit "Y', and
which shall be temporary in nature and not a permanent encumbrance against the
Crystal Canyon Condominium property and shall expire upon completion of the
construction and installation of the 42" pipeline and facilities and connections.
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SECTION 2. California Environmental Quality Act. The City Council finds that the adoption
of this Resolution is exempt from the requirements of the California Environmental Quality Act
(CEQA) pursuant to Section 15282(k) of the CEQA Guidelines and Section 21080.21 of the
California Public Resources Code. The proposed easements are designed to accommodate the
construction, installation, maintenance, and operation of a water pipeline not exceeding one -
mile in length. Staff is directed to file a Notice of Exemption with the Los Angeles County
Clerk's office within five (5) days of the adoption of this Resolution.
SECTION 3. Proposition 99. The City Council finds that Proposition 99 is not applicable to
the adoption of this resolution since such adoption does not result in the acquisition of the
subject easements by CIC via eminent domain. Instead, the adoption of this resolution
authorizes CIC to file an eminent domain action to acquire the subject easements should it
choose to do so. Furthermore, even if Proposition 99 were applicable, the City Council finds
that the adoption of this resolution would be excluded under section 19(c) of Article I of the
California Constitution since the proposed easement acquisitions are necessary for CIC's
proposed pipeline project, which is designed to protect public health and safety.
SECTION 4. Effective Date. This Resolution shall be effective immediately upon (1)
approval by the City Council; and (2) the execution of an indemnification agreement between
the City of Azusa and the Covina Irrigating Company indemnifying the City for its adoption of
this resolution.
PASSED, APPROVED AND ADOPTED this 21 st day of July, 2008.
/(?/"/)
oseph R. Rocha, Mayor
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APPROVED AS TO FORM:
Sonia R. Carvalho, City Attorney, BBK Law LLC
ATTEST:
Vera Mendoza, City Clerk
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) ss.
CITY OF AZUSA )
I, Vera Mendoza, City Clerk of the City of Azusa, do hereby certify that the foregoing
Resolution No. 08-C61, was duly introduced and adopted at a regular meeting of the Azusa City Council
on this 21" day of July, 2008, by the following vote, to wit:
AYES: COUNCILMEMBERS: GONZALES, CARRILLO, MACIS, HANKS, ROCHA
NOES: COUNCILMEMBERS: NONE
ABSENT: COUNCILMEMBERS: NONE
Vera Mendoza, City Cler
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EXHIBIT "2"
(Page l.of -2)
THAT PORTION OF LOT 3 OF TRACT NO. 44104, IN THE CITY OF AZUSA, COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA, AS SHOWN ON MAP FILED IN BOOK
1053, PAGES 97 AND 98, OF MAPS, TN THE OFFICE.OF THE RECORDER OF SAID
COUNTY WITHIN A STRIP OF LAND OF I0.00 FEET WIDE, LYING 5.00 FEET ON
EACH SIDE OF THE FOLLOWING DESCRIBED CENTER LINE:
BEGINNING AT A POINT IN THE EASTERLY LINE OF SAID LOT 3 DISTANT
THEREON SOU?H 18" 07'34" EAST 84.67 FEET FROM THE MOST EASTERLY
NORTHEAST CORNER OF SAID LOT 3, SAID EASTERLY LINE ALSO BEING THE
WESTERLY LINE OF AZUSA AND SAN GABRIEL CANYON ROAD, 50.00 FEET WIDE,
AS SHOWN ON MAP OF SAID TRACT; THENCE SOUTH 710 52'260 WEST 135.82 FEET;
THENCE SOUTH SI ` 54'59" WEST 261.09 FEET TO THE EASTERLY LINE OF SAN
G.9BMBL CANYON ROAD, '00.00 FEET WIDE AS SHOWN ON MAP OF SAID TRACT.
THE SIDELINES OF THE ABOVE DESCRIBED STRIA OF LAND SHALL BE
PROLONGED OF SHORTENED AT THE BEGINNING AND END THEREOF SO AS TO
TERRUNATE IN THE EASTERLY LINE OF SAID AZ[1SA AND SAN GABRIEL CANYON
ROAD AND THE WESTERLY LINE OF SAID SAN GABRIEL CANYON ROAD
RESPECTIVELY,
CohWring 3,969 Y Sq. R
NOTE. AZL'SA AND SAN GABRIEL CANYON ROAD HAS BEEN RE-NARANCH
ROAD_
79oa y=
9l£OF CA's``<�� .
EXHIBIT "2"
(Page 2 of 2)
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MOST E':Y NE.
CORNER OF I.OT 3, u1
TR, k0. 4t) 04,
M.9. 7033-97-98
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PORTION OF LOT 3, �
BEGINt`NI1 G
TR. N0. 44104. ;
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EXHIBIT "3"
(Page 1 of 2)
THAT PORTEON OF L(1T3 Oi° T72ACTNO:441.A immtYTYOr AmA,.COUNTY
OFLos AwGEI.ES; STATT?6P.CAI:EYTRNIAyAs SITCYWN'ON'wp FTLia mBOOK
1053, MOBS 97 AND 9&, OT MAPS, IN TO-OFPICE OF T73$7tFiCORO73t OP SAID
COUNTY wrluN A 6"f$IP Or LAM OF 2s. 00 FBBT www, tYB10 t2.5B FEe'T ON
EACH SM OFTHE FOLl OVlNGd;>ESCRTBBD CBNfER7 M-
BIiG*RMga. AT APOW IN THEEASTEDLYMEROPSAID x.(71' 3 DISTAM
TMREONSOTYMIVO7"L4 L=SWFMFADMTHR;MSTEASTTiRLY
NORTHEAST CORNER OV WD WT 3, 8iiM A=tLYLM AF SO,BSINQ TM
W63TMY LM OF AZUSA AM SAN OABl216k;CANYON ROAD: "MTBET WIDE,
AS SHOP/N ON MP OF'S;0[ IRACr MWCB$OTIMn? S2 W WEST 133.82 PEST;
TMNCEUMM.m*SA!.SS°R'F.S 2M,09FEi"fl'TQTIAEASTMLYLWP,OFSAN
OASML CANYON WAD, 100,00 Mf WMP A3 SHOWN Old MAP OF SATDTRACT.
T41E SiDELU MS Of IM MOVE DESCMW SMP OF LAND SMALL BE
PROLONGED OF SRORTMMD AT TM MANNING AND M4D TII ZEOP SO AS TO
TTin1MINA71I IN THE BAS MLY LVIM ORSAID AZUSA AND.SAN QABRML CANYON
ROAD AND THE WBSML.VLM OF SAM fiW OABL{i .CANYQN ROAD
RESPECTEVBLY,
Coaw4ft 9923 ± 4 fl
NOTE: AZUSA AND SAN CvSSVM CANYONROAD ELAS 0HWF5-NAAMD RANCR
ROAD.
EXHIBIT 4'3"
(Page 2 of 2)
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MARK B NORTON, MD, MSPH
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April 2, 2008
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EXHIBIT "C"
0
State of Californi"ealth and Human Services Agency
California Department of Public Health
Mr. David De Jesus
General Manager
Covina Irrigating Company
146 East College Street
.Covina; CA 91723
Dear Mr. De Jesus:
SYSTEM NO. 19101.28 — EASTSIDE CANAL REPLACEMENT PROJECT
ARNOLD$CHWARZENEGGER
Owe=
The purpose of this letter is to document the support of the Callfomia Department of
Public Health (Department) for the Covina irrigating Company's (Company's) plan to
replace the Eastside Canal with a buried 42 -inch pipeline. The'Eastside Canal is a 1.4 -
mile open conduit that conveys raw surface water from the San Gabriel River diversion
facilities on its way to the Company's William B. Temple Treatment Plant. As discussed
in the San Gabdal Watershed Sanitary Surveys (1995-2005) and previous reports from
this Department, the canal is vulnerable to contamination from a variety of sources,
suchas wildlife, windblown trash and. debris, and urban runoff. These contamination
sources may be linked to the levels of total and fecal coliform that have been observed
at the treatment plant inlet. Although the Company provides adequate surface water
treatment; state and federal regulations and guidance have been placing increasing
emphasis on source water protection as a means of ensuring the safety of drinking
water. Therefore,the Department finds that replacement- of the Eastside Canal with a
buried pipeline should protect public healthby – significantly reducing potential
contamination sources and strongly supports. the Company's goals for this project. If
you have. any questions, please contact.Susan Early at (213) 560-5785.
.Sincerely,
Jeff O'Keefe, P.E.
District Engineer
Metropolitan District.
Southem Callfomla prinking Water Field 0perallons Branch, Southern Caflfornia Section
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Report Exhibit E -- CIC's Request to City of Azusa
Exhibd E. pdf
Report Exhibit F — Letter from HOA's Attorney
May 14 Ur HOA
Attny. pdf
Report Exhibit G — CIC's Response to HOA Attomey Comments
CIC Resp Ur. pdf
-Report Exhibit H — Letter from CIC regard Mayor's Concerns
Exhibft H. Assurance
Ur. pdf
E
Page I I of I I
• RECEIVE#
OCT 18 M7
AZE1.5A LIGHT & WATER
COVINA IRRIGATING COMPANY
VIA RAND DELIVERY
Joseph R. Rocha, Mayor
City of Azusa
Administration Department
213 E. Foothill Blvd.
Azusa, CA 91702
Angel Carrillo, Council Member
City of Azusa
Administration Department
213 E. Foothill Blvd.
Azusa, CA 91702
Robert Gonzales, Council. Member
City of Azusa
Administration Department
213 E. Foothill Blvd.
Azusa, CA 91702
October 10, 2007
Keith Hanks, Mayor Pro -tem
City of Azusa
Administration Department
213 E. Foothill Blvd.
Azusa, CA 91702
Uriel E. Macias, Council Member
City of Azusa
Administration Department
213 E. Foothill Blvd.
Azusa, CA 91702
Re: Crystal Canyon homeowners Association/Covina Irrigating Company
Request for Use of Eminent Domain Powers Pursuant to California
Government Code, Section 1245.310.et seq.
Honorable Mayor and Council Members:
Covina Irrigating Company ("CIC') is a non-profit mutual water company, and, pursuant
to Code of Civ. Proc. sections 1245.310 et seq., requests by this letter that the City Council adopt
a resolution consenting to CIC's acquisition of a I0 -foot wide underground pipeline easement by
eminent domain across a small portion of the parking area located on real property more
commonly known as. the Crystal Canyon condominium complex ("Crystal Canyon"), located in
between Rancho Road and San Gabriel Canyon Road. This letter shall describe the easement to
be acquired; summarize CIC's attempts to acquire the subject easement from the Crystal Canyon
Home Owners Association (the "HOA") since April 2006; CIC's statutory authority for
acquiring easements by eminent domain; the benefits to the City for supporting CIC's eminent
domain action; and the feasibility of other alternative routes for CIO's proposed pipeline project.
146 E. COLLEGE STREET - POST OFFICE 60X 30S - COVIMA, CA 91723
(626) 332-1502 - FAX (626) 967-5942
0
City of Azusa City Council
October 10, 2007
Page 2
I. Easement to he Acquired and CIC's Proposed Pipeline Proieet
For over 100 years, CIC, along with other members of the San Gabriel River Water
Committee more commonly known as the Cornu ittee of Nine, which includes the Azusa
Agricultural Water Company and the Azusa Valley Water Company, has operated and
maintained an open canal which runs throughout the northeastern portion of the City of Azusa
(the "City") transporting water from the San Gabriel River to the eastern portion of the San
Gabriel Valley. The water from this canal is treated and provides potable water on a wholesale
basis to a population in. excess of 100,000 consumers. Because of the potential dangers
associated with an open canal and liability risks associated with the continued operation of this
canal, the City has long supported CIC's desire to replace the canal with underground pipelines.
As you know, the City has approved entitlements, including a Specific Plan (Monrovia
Nursery Specific Plan) and Development Agreement authorizing development of the former
Monrovia Nursery site ("Rosedale Project") located on real property formerly owned by the
Monrovia Nursery between East Sierra Madre Avenue and East Foothill Blvd., and situated in
close proximity to the Crystal Canyon complex. As part of the approved Rosedale Project
entitlements, the Rosedale developer has requested, and CIC has tentatively agreed, to relinquish
a portion of its interests in the canal in exchange for the City and developer's agreement to
construct an underground pipeline for CIC's benefit. This plan calls for the developer to design
and construct an underground pipeline to replace that portion of the open canal presently located
within the Rosedale development project, and which will be located in a portion of East Sierra
Madre Avenue just east of San Gabriel Canyon Road. In connection with the Rosedale project,
the City and CIC have negotiated a license (which has not yet been signed) to permit the
construction of an underground pipeline going south on San Gabriel Canyon Road and then east
on East Sierra Madre Avenue within public streets, where it is to connect with the pipeline
constructed by the Rosedale Project developer. A copy of a map depicting the location of the
open canal system and the route of the proposed underground pipeline is attached hereto as
Exhibit "A" for your review.
The water received from the San Gabriel River by CIC is transported through the open
canal to a power facility owned and operated by the City of Pasadena, which is located directly
across Rancho Road from one of Crystal Canyon's parking areas. Unfortunately, there is no
feasible alternative route for CIC to transport the water from this facility to the new pipeline in
San. Gabriel Canyon Road other than across one of Crystal Canyon's parking areas. CIC
proposes to construct an underground pipeline from the Pasadena facility through the parking
area, where it will connect with the proposed pipeline in San Gabriel Canyon Road. The 10 -foot.
wide easement area would run approximately 400 feet for a total easement area of approximately
4,000 square feet. The only other potential route would be to install. the pipeline in Rancho Road
0 0
City of Azusa City Council
October 10, 2007
Page 3
from the power facility down to the intersection with San Gabriel Canyon Road. However, due
to the high number of existing utility pipelines and facilities currently Located in Rancho Road,
installation of CIC's pipeline in this street, if even possible, would be very costly and would
necessitate the shut down of Rancho Road and cause temporary utility outages during the period
of construction to many homes in the area. This will result in a significant inconvenience to not
only the many residents that use this street for road access to their homes, but also to the general
public as well for an extremely extended period of time. Bottom line, the only feasible route is
to go through Crystal Canyon's parking area.
II. CIC's Prior Negotiations with the HOA.
CIC and the HOA, through its previous attorney, Kris Geiger, Esq., worked together for
almost one year on the terms of an agreement that would grant CIC an easement over the Crystal
Canyon parking area, and the parties reached agreement on all but three issues before the HOA
terminated all discussions. The HOA subsequently hired Michael H. Leifer, Esq., of Palmieri,
Tyler, Wiener, Wilhelm & Waldron LLP as its new counsel, and we have been unable to revive
or finalize those negotiations. The agreed terms are summarized as follows,.
I. CIC will pay to the HOA $20,160.00 as consideration for a 10 -foot wide
underground utility easement over a small portion of Crystal Canyon's parking
area.
2. CIC, at its sole expense, will keep and maintain the pipeline in good condition and
repair.
3. Except in the event of an emergency, CIC will provide the HOA with seventy-two
(72) hour notice prior to entering the property.
4. CIC will indemnify, defend and hold the HOA harmless from any claims,
damages, and costs including reasonable attorneys' fees, arising from (i) CIC's
performance of the construction and installation. of the pipeline and (ii) CIO's use
of the easement, except to the extent such claims arise from the negligence or
willful misconduct of the HOA and related entities.
5. All work performed in connection with the construction and installation of the
..pipeline will be performed pursuant to plans, drawings and specifications
prepared by Civiltec Engineering, Inc. ("Civiltec"), and at CIC's sole cost and
expense. CIC will also hire and contract with a fully bonded and licensed
contractor to perform the work
6. HOA can place surface improvements on the easement area so long as such
improvements do not unreasonably interfere with CIC's use of the easement.
City of Azusa City Council
October 10,2007
Page 4
7. CIC is responsible, at its sole expense, for repairing any damage to the easement
area, the property, and any and all improvements thereon arising from CIC's
performance of the work, and restoring same to the condition existing
immediately before the performance of the work to the extent reasonably
practicable.
K CIC is responsible, at its sole expense, for the prompt correction of any
interference with existing utilities located in and around the easement area and
property arising from CIC's performance of the work.
9. CIC's performance of the work will not interfere with emergency service
vehicles' access to the property.
10. Should the residents of Crystal Canyon be forced to evacuate the property
pursuant to a court order or any other governmental agency order as a result of a
hazardous condition created or caused by CIC's performance of the work, CIC
will reimburse the residents for all reasonable costs and expenses incurred by any
such order requiring overnight lodging at a local hotel for such residents up to a
maximum stay of seven (7) days.
11. CTG shall be,responsible for all survey and survey -related costs and expenses
connected with the project.
12. During the performance of the work, CIC will obtain and continuously maintain:
a. Comprehensive general liability insurance insuring the HOA, as an additional
insured, against any liability arising from CIO's performance of the work on
account of bodily injury or death to one person in the amount of One Million
Dollars ($1,000,000.00); on account of bodily injury to or the death of more
than one person in the amount of One Million Dollars ($1.,000,000.00); and on
account of damage to or destruction of any property in the amount of One
Million Dollars ($1,000,000.00) for each accident and Three Million Dollars
($3,000,000.00) aggregate;
b_ Commercial automobile liability insurance in the amount of One Million
Dollars ($1,000,000.00); and
c. Workers compensation insurance in statutory form
13. The Construction and Installation .Agreement will. specify that CIC's
indemnification obligation will survive termination or expiration of the
agreement .
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City of Azusa City Council
October 10, 2007
Page 5
14. In the event CIC no longer uses the pipeline, CIC agrees to cap and abandon the
pipeline at its sole cost and expense.
The parties were unable to reach agreement on the following issues:
1. The effective date on which CIC's obligation for payment of delay damages will
begin.
2. The amount of the HOA's attorneys' fees to be funded by CIC.
3. The need for a second engineer at CIC's sole cost and expense to review
Civiltec's plans and drawings and to oversee construction and installation of the
pipeline.
Despite the HOA's refusal to continue discussions, CIC was determined to resolve this
dispute by way of agreement and therefore avoid having to seek the City's assistance to pursue
condemnation proceedings. For example, by letter dated May 13, 2007, CTC expressed its
interest in reviving negotiations between the parties but to no avail. By letter dated June 14,
2007, CIC again attempted to reach out to the HOA by suggesting a meeting between the parties
to discuss the proposed project and easement, as well as to answer any questions the HOA may
have concerning the proposed project. Unfortunately, the HOA rejected CIC's invitation.
CIG made one final attempt in early September to reach an agreement with the HOA by
increasing its initial offer of $20,160.00 to $50,000.00, as well as other concessions. In support
of its offer, CIC included a copy of an appraisal dated February 2, 2006 prepared in connection
With CIC's acquisition of an underground pipeline easement over that portion of land adjacent to
Pasadena's power facility which is directly across Rancho Road from Crystal Canyon's parking
area A copy of the appraisal is attached hereto as Exhibit °B" far your review. That easement
area consisted of approximately 3,607 square feet of land located on a small portion of an eight
acre parcel owned by Pasadena. In contrast, CIC's proposed easement over a portion of Crystal
Canyon's parking area will consist of approximately 4,000 square feet of land. The date of
valuation used for the appraisal was January 31, 2007, and the appraiser determined a fair market
value for that easement calculated at $20,000.00, or $5.545 per square foot. CIC's revised offer
of $50,000.00, or $12.50 per square foot, is more than 2 times the market value per square foot
of the easement area that is the subject of the appraisal. Unfortunately, the HOA has.chosen not
even to respond to CIC's most recent offer. CIC was also willing to assume an obligation for
delay damages in the amount of $500.00 per day should the project not be completed within 20
business days after breaking of ground, which was one of the three remaining issues not agreed
on by the parties during their initial discussions.
0 0
City of Azusa City Council
October 10, 2007
Page 6
It is clear that CIC's attempts to negotiate in good faith with the HOA have fallen on deaf
ears. The HOA appears to have no desire to resolve this issue with CIC and would like, for
whatever reason, for all parties involved, including the City, to incur the significant expense,
energy, and hardship connected with a condemnation action. Therefore, CIC has no choice but
to seek the City's help in pursuing such an action.
M. CIC's Statutory Authority for Acquiring Easements by Eminent Domain.
Under California law, CIC, as a mutual water company, has the authority to acquire an
easement over Crystal Canyon's parking area by eminent domain. Under Code of Civ. Proc.
§1245.330, a quasi -public entity may not commence an eminent domain proceeding to acquire
any property until the legislative body of each city, within whose boundaries property sought to
be taken by the quasi -public entity by eminent domain is located (Code of Civ. Proc.
§12454.310(a)), has adopted a resolution consenting. to the acquisition of such property by
eminent domain. A "quasi -public entity' includes a mutual water company that seeks to take
property by eminent domain under Pub. Util. Code §2729. Code of Civ. Proc. §1245.320(f).
Linder Pub. Util. Code §2725, a "mutual water company" means any private corporation or
association organized for the purposes of delivering water to its stockholders and members at
cost, including use of works for conserving, treating and reclaiming wager. A mutual water
company may exercise the power of eminent domain for water, water rights, canals, ditches,
dams, poundings, flumes, aqueducts, and pipes for irrigation of lands famished with water by
such company. Pub. Util. Code §2729. CTC is a mutual water company under the Public Utilities
Code.
Code of Civ. Proc. §1245.340 requires that the resolution to be adopted by the City .
Council contain all of the following information:
(a) A general statement of the public use for which the
property is to be taken and a reference to the statute that
authorizes the quasi -public entity to acquire the property
by eminent domain.
(b) A description of the general location and extent of the
property to be taken, with sufficient detail for reasonable
identification_
(c) A declaration that the legislative body has found and
determined each of the following:
(1) The public interest and necessity require the
proposed project.
(2) The proposed project is planned or located in. the
manner that will be most compatible with the
greatest good and least private injury.
City of Azusa. City Council
October 10, 2007
Page 7
(3) The property described in the resolution is
necessary for the proposed project.
(4) The hardship to the quasi -public entity if the
acquisition of the property by eminent domain is
not permitted outweighs any hardship to the
owners of such property.
CFC has had numerous conversations over the past several months with City staff and the
City Attorney's office concerning CIC's proposed project_ We understand that City staff is
prepared to recominend the adoption of a Resolution pursuant to the authority cited above since
the only feasible route for CIC to connect to the pipeline in San Gabriel Canyon Road is through
Crystal Canyon's parking area. They have also expressed their willingness to answer any
questions the City Council may have concerning CIC's proposed project.
IV. Benefits to the City Resulting front CIC's Proposed Protect.
If CIC is able to install its pipeline in Crystal Canyon's parking area it will result in
significant benefits to the City. These include:
1. Public Health & Safety Benefits from Conversion of Open Canal to
Underground Pipeline. As previously explained, CIC will be able to transport water from the
San Gabriel River through the proposed underground pipeline instead of the open canal which
will result in increased public safety and significantly reduce the exposure to liability in
connection with the open canal. In addition, CIC's proposed pipeline project is critical to the
success of the City's overall implementation of the Monrovia Nursery Specific Plan and
Rosedale Project The City, CIC, and the developer of the Rosedale project have spent a
significant amount of time, energy, and money negotiating the terms of the new underground
pipeline within the Rosedale Project site. CI.0 would be severely prejudiced if it were forced to
use an alternative route to attempt to connect to the pipeline in San Gabriel Canyon Road.
Z. Implementation of the Monrovia Nursery Specific Plan. The City also has a
long standing relationship with CIC. The City has a vested interest in ensuring that CIC is able
to connect to the pipeline in San Gabriel Canyon Road and therefore complete a critical
component to the City's master planning efforts as described in the Monrovia Nursery Specific
Plan.
3. Minimize Service Disruptions to Area Residents & Service Providers. Finally,
allowing CIC access through Crystal Canyon's parking area will reduce the burden and
inconvenience placed on City residents living in that area in connection with CIC's proposed
project. As noted previously, the only other possible route would be to install the pipeline in
Rancho Road from the power facility down to the intersection with San Gabriel Canyon Road.
0 0
City of Azusa City Council
October 10, 2007
Page 8
However, due to the high number of existing utility pipelines and facilities currently located in
Rancho Road, installation of CIC's pipeline in this street would be very costly and would.
necessitate the shut down of Rancho Road and cause temporary utility outages during the period
of construction to many homes in the area. This will result in a significant inconvenience to not
only the many residents that use this street for road access to their homes, but also to the general
public as well.
V. Conclusion.
CTC has done everything within its power to try and settle this issue with the HOA
without having to get the City involved. Unfortunately, the HOA has no desire to settle this
issue despite CIC's willingness to be more than conciliatory in reaching an agreement_
Therefore, CTC has no choice but to request that the City adopt a resolution consenting to CIC's
acquisition of a utility easement over a portion of Crystal Canyon's parking area. Public interest
and necessity require the proposed project since it will be most compatible with the greatest good
and least private injury. Finally, the risk and expense to the City in adopting the resolution
described herein would be minimal since CIC is prepared to reimburse the City for its costs and
indemnify the City for all costs, expenses, and claims arising out of its action to approve -such a
resolution. The City and CIC are currently working on the terms of an Indemnification
Agreement that will memorialize CIC's indemnification obligations,
ery truly yours,
David De Jesus, PrespentlGM
Covina Irrigating Co parry
Enclosures
cc: Fran Delach, City Manager, City of Azusa
Sonia R. Carvalho, City Attorney
Marco A. Martinez, Assistant City Attorney
Joe Hsu, Director of Utilities, Azusa Light and Water Department, City of Azusa
Timothy J. Gosney, Lagerlof, Senecal, Gosney & Kruse LLP
LAW OFFICES
PALMIERI. TYLER. WIENER, WILHELM -G WALDRON LL$ _
h LIMITED LLLBM1RY PARTNERSNIP INCLUDING PROFEWIONAL CORPORATIONS
2603 MAIN STREET
ANGELO J PALMIERI 11926-1998) EAST TOWER - SUITE 13oo AZUSA CITY CLERK P O GO% I9TIE
ROBERT F. WALDRON 11927-190HI IRVINE, CALIFORNIA 92614.4261 IRV INE. CP 92823-9112
ALAN N WIENER`
DONNA L SNOW
ROBE" C INRKV
RYAN N EASTER
19491 651-9400
JAMES C WIUHLLM'
ELSE L ENOMOTO -
www F,tyJWw.COT
DENNIS G TTLEW
HEATHER C WN9NOR£
MICHAEL J GREENE'
ELIZABETH vALADLZ
DEMME W G.—
NEL19A R. PEREZ
DAVID O. PARR'
ANISH J BANNER
MICHAELCHARLES
May 14, 2008
PATRICK A HENNESSEY
ROBERT GARRETSON
DON FISHER
JASON E BURNETT
GREGORY N WEILER
WAN M PRAGER
WARREN A WILLIAMS
JOSEPH W NANCY IN
JOHN R LSTER
JULIA A. GOWIN
CYNTHIA M WOLCOTT
CHADWICH C BUNCH
GARY C. WEISBERG
ANNIE C CHU
MICHAEL H LEIFER
JERAD BELTZ
SCOTT a CARPENTER
HEATHER N WHITEHEAO
RICHARD A SALUB
£PIN OALSARA
NORM.W J ROOK.
BRETT L HORVATH
'
RONALD M. COLE
DEREK M. OE..E
MICHAEL L D'ANOELO
F JULIAN FREEMAN HI
STEPHEN A SCHECK
EPICA M SOROSITY
VIA BAND DELIVERY, FACSIMILE AND EMAIL
Members of the City Council
City of Azusa
213 E. Foothill Blvd.
Azusa, CA 91702
1008 11AY I u P 5: 19 YJRITER-S DIRECT
Of AL LAUNDER
(949) 551-7204
mleiferQptwww.cam
FPC6IMILE 10991 851-1684
19991 851-3844
ID401 26f-ID86
REFER TO FILE NO
36276-000
Re: Notice of Public Hearing Re Adoption of Resolution to Consent to the
Use of Eminent Domain to Acquire Property Owned by the Crystal
Canyon Homeowners Association
Honorable Members of the City Council:
As you are likely aware, this firm has been retained to represent Crystal Canyon
Homeowners Association ("Association") in connection with the proposed taking of a
portion of the developed and occupied Crystal Canyon development (the "Subject
Property") by Covina Irrigating Company ("CIC") in connection with a water pipeline
Project (the "Project").
We have received a notice that the City of Azusa will consider the adoption of a
resolution consenting to the use of eminent domain by CIC to take a portion of the
Subject Property. Based upon this notice, the hearing by the City Council on the
resolution is set for May 14, 2008 at 7:30 p.m. '
The purpose of this letter is to provide the Association's written objections to the
resolution. We request that this letter and its enclosures, as well as the Association's
prior objection letter dated February 4`h, 2008 and its enclosures, be included as part of
the formal administrative record on this agenda item.
0
Members of the City Council
May 14, 2008
Page 2
is
CIC claims it is a mutual water company authorized under Section 2729 of the
California Public Utilities Code to acquire an easement over the Subject Property by
eminent domain. Code of Civil Procedure sections 1245.310 et seq, applies to the use of
eminent domain by a quasi -public entity, such as a mutual water company. A resolution
consenting to the acquisition of property by eminent domain by the legislative body must
comply with the requirements of Code of Civil Procedure section 1245.340. Moreover,
pursuant to Code of Civil Procedure section 1245.380, the quasi -public entity must
comply with the requirements of Code of Civil Procedure section 1240.030 as well as any
other requirements imposed by law.
The Association renews its prior objections raised in its letter to the City Council
dated February 4, 2008, a copy of which is attached hereto as Exhibit "A" (excluding the
enclosures). Those objections include, but are not limited to, the following:
CIC failed to make a legitimate precondemnation offer based upon an
appraisal of the fair market value of the property as required by
Government Code section 7267.2.
The Association's due process rights have been violated by CIC's failure to
comply with Code of Civil Procedure section 1263.025.
Additionally, the Association further objects to the adoption of the proposed
resolution on each of the following grounds enumerated below:
1. The advancement of this hearing is in violation of Government Code section
7267.5.
Government Code section 7267.5 provides, "In no event shall the public entity
either advance the time of condemnation, or defer negotiations or condemnation and the
deposit of funds in court for the use of the owner, or take any other action coercive in
nature, in order to compel an agreement on the price to be paid for the property."
Pursuant to the City Council's direction, the parties engaged in an information
meeting, followed by a brief mediation on April 14, 2008. Much of the time on April 14,
2008 was spent gathering the information that the Association had been requesting for
years from CIC. It was through this meeting that the true scope of the Project across the
Subject Property was discovered.
0
Members of the City Council
May 14, 2008
Page 3
E
On April 17, 2008, my office received a letter from Chris Chan, CIO's counsel,
stating that the resolution authorizing CI.0 to condemn the Subject Property "has been
continued indefinitely." Upon this representation, the parties agreed to move forward
towards a second mediation.
Despite this representation, the May 14, 2008 hearing has been noticed. This
hearing is the result of either CIC or the City. CIC claims that it was not the driving force
for the calendaring of this hearing. Such a claim is baseless considering the extreme
modifications and amendments made to the notice and proposed resolution. Such
information could only come from CIC. Moreover, the City has steadfastly maintained
that it has no interest in this Project, and that it is not the City's Project — the City is only
"consenting."
Either way, whether provoked by CIC or not, CIC is clearly backing and helping
to drive this hearing on the resolution of consent. CIC and the City are improperly
advancing this hearing in an effort to gain a significant advantage in the negotiation
process in order to compel an agreement from the- Association. Such an action is
improper and is in violation of the Government Code.
2. There are Proiect alternatives that have not been analyzed. Thus, the
requirements of Code of Civil Procedure section 1245.340, subdivision (c)
cannot be met.
Code of Civil Procedure section 1245.340, subdivision (c) requires that the
legislative body must find.and determine each of the following before it can consent to
the use of eminent domain by a quasi -public entity: (1) the public interest and necessity
require the proposed Project; (2) the proposed Project is planned or located in the manner
that will be most compatible with the greatest good and least private injury; (3) the
property described in the resolution is necessary for the proposed Project; and (4) the
hardship to the quasi -pubic entity if the acquisition of the property by eminent domain is
not permitted outweighs any hardship to the owners of such property. Isere, none of
these findings can be made because Project alternatives exist that have not been analyzed
by CIC.
Utilities of this size and nature should be placed in public streets. In fact, the rest
of the Project's proposed pipeline is or will be in public streets except for the section that
cuts through the Subject Property. CIC has not and cannot adequately explain why the
water pipeline cannot be placed elsewhere, such as southerly along Ranch Road — a
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Members of the City Council
May 14, 2008
Page 4
0
public right of way. In fact, CIC cannot provide an explanation because CIC has not
analyzed the Ranch Road alternative.
CIC's bare assertion that Ranch Road is already "congested" with utilities is
unsupported. In fact, after the Association finally received plans and other information it
requested from CIC, it was evident that the 42 -inch water pipeline could be placed
in/under Ranch Road. (A true and correct copy of the plans obtained from CIC are
attached hereto as Exhibit `B".) By moving a current 2 -inch street light conduit, CIC
could successfully place the pipeline in the parkway of Ranch Road. (See Exhibit `B".)
Such a Project alternative has not even been considered by CIC. Because such a Project
alternative exists, one which would not require the use of eminent domain to take private
property, the City Council must find that (1) the planning and design prong cannot be
met; (2) the least private injury prong (Code Civ. Proc., § 1245.340, subd. (c)(2)) cannot
be met; (3) the property is not necessary for the Project; and (4) CIC will not suffer any
hardship if the acquisition of the property by eminent domain is not permitted.
3. The takine of the Subiect Property is a predetermined outcome.
As a condition precedent to the exercise of the power of eminent domain, a public
entity must hold a public hearing to determine whether a particular taking meets the
public interest and necessity criteria articulated in Code of Civil Procedure section
1240.030. (Code Civ. Proc., § 1245.235.) If, after such public hearing, the public entity
determines that the proposed taking meets that criteria, then it must adopt a resolution of
necessity before proceeding to condemn the property. (Code Civ. Proc., §§ 1240.040,
1245.220.) Implicit in this requirement of a hearing and the adoption of a resolution of
necessity is the concept that, in arriving at its decision to take, the public entity engages
in a good faith and judicious consideration of the pros and cons of the issue and that the
decision to take be buttressed by substantial evidence of the existence of the three basic
requirements set forth in Code of Civil Procedure section 1240.030. (Redevelopment
Agency v. Norm's Slauson (1985). 173 Cal.App.3d 1121, 1125-1126.) In the absence of a
fair and impartial hearing, the resolution of necessity is void.
Here, the City has apparently already predetermined the outcome of the hearing
well before it was set (see, Exhibit A, p. 12), and CIC also predetermined the outcome.
As discussed above, there were no alternative alignments even considered. CIC already
has the end part of the raw, untreated water pipeline constructed. According to CIC, it
must build according to this alignment for flow reasons — the downstream pipe was
situated so that the flow from the missing upstream section would solely come from this
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Members of the City Council
May 14, 2008
Page 5
alignment. CIC stated that it is financially committed to this alignment and studied no
other. In fact, the proposed alignment over the Subject Property was the preferred
alignment, and the only alignment analyzed. The proposed alignment has been in place
since the early development of Rosedale — approximately 4-5 years ago. Since that time,
CIC has committed itself to the Project going across the Subject Property.
The reason no alternatives were studied or considered is because CIC has already
pre -committed to the alignment over the Subject Property. The City is in danger of
making the same mistake.
4. As the Association only recently learned. CYC has not fully disclosed the full.
scope of the Proiect to the Association or to the City. Again, the planning and
design prong cannot be met.
As discussed above, the planning and design prong cannot be met because Project
alternatives exist that have not been analyzed or even considered. Even more, CIC has
failed to disclose to the City (and until recently to the Association), the true scope of the
Project, as currently planned. First, CIC has not even completed its Project design.
Accordingly, the scope of this Project is unsettled and could change.
Moreover, unlike CIC's representations at the February 4'h, 2008 hearing before
the City Council, this Project involves much more than the installation of a 42 -inch water
pipeline. First, CIC sought a 10 -foot water pipeline easement. When confronted with the
inadequacy of the 10 -foot water pipeline easement, CIC changed its position. Now, it is a
10 -foot easement with a 25 -foot temporary construction easement ("TCE").
CIC cannot construct, and will not limit its physical use of the Subject Property, to
the width of the sought -for taking and TCE. CIC cannot remediate the damage it will do
to portions of the remainder of the Subject Property because of the width limitations of
the proposed taking and TCE. CIC cannot do all the necessary work, use, parking, entry,
etc. inside a TCE of this size.
Such insufficient taking results in physical occupancy greater than that authorized
by the proposed taking and TCE. The insufficient taking either results in an attempt to
cause the property owner to forfeit compensation or to be forced to file an inverse
condemnation proceeding to recover compensation. This is an improper attempt to
burden the property owner and minimize compensation. When CIC exceeds the scope of
the permitted use, the property owner will be forced to defend itself by bringing an
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Members of the City Council
May 14, 2008
Page 6
inverse condemnation cross-complaint. Causing the owner to bring such an action by
purposefully under -sizing the scope of the taking is improper. Such conduct is prohibited
by Government Code section 7267 et seq., and particularly Government Code section
7267.5.
Moreover, unlike CIC's prior misrepresentations, this Project is not limited to the
installation of a 42 -inch water pipeline. Rather, as the Association only recently
discovered, the actual scope of the Project involves boring on the Subject Property and
the relocation of the community's existing waterlines and sewer lines to make way for the
CIC water pipeline. (See Exhibit "B".)
The actual scope of the Project will admittedly have substantial impacts on the
Association community. It will impact the community's utilities. It will impact units. It
will impact parking. It will impact access. It will impact services. It will impact
occupancy. It will require utility relocations. It will impact other common area
improvements.
Moreover, CIC has not shown how the Association community is protected from a
chronic or catastrophic failure on a physical or financial basis in the near term or the long
term. Neither the City nor CIC have imposed binding conditions or obligations on the
Project to monitor and protect the Association for the construction periods or for the long
term. It is not enough for CIC to give "lip service" to its obligations. Moreover, by
participating in and facilitating the Project over the Subject Property, the City is primarily
responsible because, but for the City's condemnation approval, the Project could not go
forward over the Subject Property.
5. The Proposed Project is not planned or located in a manner that will be most
compatible with the least private injury requirement.
One of the necessity components that must be analyzed and satisfied is whether
the proposed Project for which the property is sought to be taken is planned or located in
a manner that is most compatible with the greatest public good and causes the least
private injury. (Code Civ. Proc., §§1240.030, subd. (b), 1245.340, subd. (c)(2).) In this
situation, where there can be no substantial evidence supporting the determination as to
the planning and location of the proposed Project, the resolution is invalid.
Again, as discussed above, CIC's location of the proposed Project violates the
"least private injury" requirements. CIC could accomplish the same intended result
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Members of the City Council
May 14, 2008
Page 7
without acquiring any interest in the Subject Property or impacting it by placing the water
pipeline where it belongs — in the public right of way (such as Ranch Road).
As discussed above, there are other more suitable locations for the proposed
Project than the Subject Property. Such other locations would allow for the construction
of the same type of Project for a "lesser private injury" than the present location being
proposed. However, CIC has failed to analyze or consider any other alternatives.
6. The property sought to be acquired is not necessary for the Project.
One of the other mandatory components to the necessity determination is that the
property sought to be acquired must be necessary for the Project. (Code Civ. Proc.,
§ 1240,030, subd. (c), 1245.340, subd. (c)(3).) In the absence of substantial evidence
supporting such a determination, the resolution is not valid.
As discussed in detail above, CIC has not established that the Subject Property is
necessary for the Project. Again, there are alternate alignments for the water pipeline that
do not involve going across the Subject Property, such as placing it in the parkway of
Ranch Road. CIC has not provided any evidence of necessity.
7. The hardship to CIC if the acquisition of the property by eminent domain is
not permitted does not outweigh the hardship to the owners of such property.
The resolution consenting to the acquisition of property by eminent domain by a
quasi -public agency must provide that the hardship to the quasi -public entity if the
acquisition of the property by eminent domain is not permitted, outweighs any hardship
to the owners of such property. (Code Civ. Proc., § 1245.340, subd. (c)(4).)
CIC has made no showing of any hardship whatsoever. Again, as discussed
above, CIC cannot make a showing of hardship. CIC can place the water pipeline in the
parkway of Ranch Road by relocating a 2 -inch street light conduit. Compare this with
the Project as proposed where CIC has to relocate the Association's existing water lines
and sewer lines to make way for the 42 -inch pipe. If the acquisition of the property by
eminent domain is not permitted, CIC will not suffer any hardship.
To the extent that an asserted increased cost constitutes a "hardship," CIC has
failed and refused to demonstrate any financial analysis whatsoever concerning any other
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Members of the City Council
May 14, 2008
Page 8
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alignment. It has not demonstrated any analysis of the Ranch Road alignment versus
cutting through the Crystal Canyon community.
CIC has not analyzed, expressed, or quantified the hardship to the Crystal Canyon
community. As discussed above, the community will be impacted and suffer substantial
hardship. The construction of a pipeline that bisects the Subject Property will have short
term and long term affects on the Crystal Canyon community. The Project will impact
the community's utilities, the units, parking, access, services, occupancy, other common
area improvements and it will require utility relocations. The Project will also impact the
community over the long-term. Again, as discussed above, CIC has not shown how the
Association community is protected from a chronic or catastrophic failure on a physical
or financial basis in the near term or the long term.
8. CIC has failed to comply with the California Environmental Quality Act
CE A .
CIC has failed to analyze the environmental impacts of the proposed Project in
violation of CEQA. While CEQA is complicated, the underlying concept is to inform the
public and the decision maker of environmental impacts.
The proposed project is part of a larger project. CIC is piecemealing the larger
project in an attempt to avoid the applicability of CEQA. Such piecemealing is
inappropriate. CEQA guidelines define "project" to mean "the whole of an action."
(CEQA Guidelines, §15378, subd. (a).) "`Project' is given a broad interpretation in order
to maximize protection of the environment." (McQueen v. Board of Directors of the
Mod -peninsula Regional Open Space District (60 Dist. 1988) 202 Cal.App.3d 1136,
1143.) An agency should not "piecemeal" or "segment" a project by splitting it into two
or more segments. The piecemeal approach can have disastrous environmental
consequences. (See Burbank -Glendale -Pasadena Airport Authority v. Hensler (2d Dist.
1991) 233 Ca1.App.3d 577, 592.)
In 1975, the California Supreme Court declared generally that CEQA mandates
"that environmental considerations do not become submerged by chopping a larger
project into many little ones — each with minimal potential impact on the environment
— which cumulatively may have disastrous consequences." (Bozung v. Local Agency
Formation Commission (1975) 13 Cal.3d 263, 283-284; see McQueen v. Board of
Directors of the Mod peninsula Regional Open Space District, supra, 202 Cal.App.3d at
p. 1143 ["[a) narrow view of a project could result in the fallacy of division ... that is,
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Members of the City Council
May.14, 2008
Page 9
Is
overlooking its cumulative impact by separately focusing on isolated parts of the
whole".)
CIC's attempt to circumvent CEQA by piecemealing the larger project into
smaller sections is improper. CIC's failure to comply with CEQA fails requirements
under the Eminent Domain Law.
9. The Association's due process rights have been violated by the defective
notice of public hearing and proposed resolution.
The notice of public hearing as well as the proposed resolution are defective. The
notice does not provide adequate information regarding the scope of the project or the
true extent of the taking. The proposed resolution is also defective as it does not deal
with the scope or true extent of the taking. Moreover, the proposed legal description of
the taking is provided in Exhibit 2 to the proposed resolution. The legal description does
not limit the taking to an easement.
Based on the foregoing objections, the Association requests that the City not adopt
the resolution.
letrot yours,
Michael H. Leifer
mal
cc: Vera Mendoza, City Clerk, City of Azusa (via hand delivery)
Fran Delach, City Manager, City of Azusa (via hand delivery)
Marco Martinez, Esq. (via email w/o exhibits and via mail)
Christopher Chan, Esq. (via email w/o exhibits and via mail)
Client
0
VIA E-MAIL AND U.S. MAIL
Mr. Cary Kalscheuer
Azusa Light & Water
Post Office Box 9500
Azusa, CA 91702-9500
0
Lagerlof
seneoal
GosW&Kruse
LLP
July 8, 2008
301 North Lake Avenue
loth Floor
Pasadena, CA 91101-4106
Phone: 626.793 9400
Fax: 626.793.5900
www.lagerlofcom
Established 19o8
Re: Covina Irrigating Company Response to Crystal Canyon HOA
Objections
Dear Mr. Kalscheuer:
As you know, the attorneys for the Crystal Canyon Home Owners Association
(the "HOA' provided the City Council with written objections to the past two public
hearings on the adoption of the resolution of consent by written correspondence dated
February 4, 2008 and May 14, 2008. Most of these objections assert that the City of
Azusa City Council cannot make the four findings necessary for adoption of the
resolution required under California Code of Civil Procedure Section 1245.340.
However, as you know, these objections are addressed in significant detail in the City of
Azusa's May 14, 2008 staff report and are also included in the July 21, 2008 staff report.
This letter responds to some of the other objections raised by the HOA and its attorneys
as well as addresses the issue of Proposition 99:
Pree,ondemnation Offer
The HOA asserts that CIC has failed to make a precondemnation offer based upon
an appraisal of the fair market value of theeasement to be acquired as required under
California Government Code Section 7267.2. Government Code Section 7267.2(a)(1)
requires that prior to the adoption of a resolution of necessity pursuant to Code of Civil
Procedure Section 1245.230 and the initiation of negotiations for the acquisition of real
property, the public entity shall establish an amount that it believes to be just
compensation, and shall make an offer to the owner to acquire the property for the full
amount established.
Government Code Section 7267.2 is inapplicable to the current situation for at
least two reasons. First, the City Council is not being asked to adopt a resolution of
necessity pursuant to Code of Civil Procedure Section 1245.230. Instead, the City
r
Mr. Cary Kalscheuer
Azusa Light & Water
July 8, 2008
Page 2
•
Council is being asked to adopt a resolution of consent pursuant to Code of Civil
Procedure Section 1245.310'et'seq. In addition, Govertunent Code Section 7267 states
that section 7267.2 does not apply "to the acquisition of any easement, right of way,
covenant, or other nonpossessory interest in real property to be acquired for the
construction, reconstruction, alteration, enlargement, maintenance, renewal, repair, or
replacement of subsurface sewers, waterlines or appurtenances, drains, septic tanks, or
storm water drains." Therefore, section 7267.2 is not applicable to CIC's proposed
easement acquisitions.
While Government Code section 7267.2 is inapplicable to CIC's proposed
easement acquisitions, it is important to note that CIC has already made several monetary
offers over the last two years in trying to reach agreement with the HOA. CIC's latest
offer was made May 13'h and the HOA has elected not to respond.
In addition, as stated by City Attorney Carvalho at the May 14s' public hearing,
the City Council is being asked only to consider whether to adopt the resolution
consenting to CIC's acquisition of an easement by eminent domain. If the City Council
votes in favor of the adoption of the resolution by at least a two -third's (2/3) vote, such
adoption does not result in the actual acquisition by CIC of the subject easements by
eminent domain. Instead, adoption of the resolution only provides CIC with the authority
to file a condemnation action if it is unable to successfully negotiate the acquisition of the
subject easements with the HOA. As further stated by the City Attorney, CIC would still
be required to comply with all requirements under the law prior to the filing of any
eminent domain action should it become necessary for CIC to do so.
Due Process
The HOA further asserts that its due process rights have been violated by (1)
CIC's alleged failure to comply with Code of Civil Procedure Section 1263.025, which
requires the public entity to pay the reasonable costs, not to exceed $5,000, of an
independent appraisal ordered by the property owner and (2) the alleged defects of the
notice of public hearing and proposed resolution,
As stated previously, if the resolution is adopted, CIC will be authorized to file a
condemnation action should it choose to do so. Prior to the filing of such action, CIC
would be required to comply with all requirements under the law including the obligation
to offer to pay the reasonable costs, not to exceed $5,000, of an independent appraisal
ordered by the property owner.
i
Mr. Cary Kalseheuer
Azusa Light & Water
July 8, 2008
Page 3
i
The HOA asserts that the notice of public hearing and proposed resolution are
defective because they do not provide adequate information regarding the scope of the
project or the ince extent of the taking. The notice and resolution advises the property
owner that CIC requests the City Council to adopt a resolution consenting to CIC's
acquisition of a permanent 10 -foot wide easement and 25 -foot wide construction
easement to construct, install, use, inspect, locate, maintain, operate, alter, add to, repair,
replace, remove and/or relocate pipelines and related facilities and connections, including
the right to construct, install, maintain and operate a 42" pipeline, and the right to
remove, replace, and/or relocate any above -surface and sub -surface pipelines,
improvements, structures, trees, shrubs, and any other growth thereon, necessary or
convenient for CIC's use of the easement for water transportation and for any and all
other uses and purposes, in, under, upon, over, across and through Shady Oak Court and
parking lot located on the Crystal Canyon property. The notice and resolution provides
adequate information regarding the scope of the project.
CIC Has Studied Alternative Alignments
The HOA also asserts that CIC has not studied any alternative alignments other
than the proposed alignment through the Crystal Canyon property. CIC's engineers have
studied other alternative alignments, and concluded that they are technically and
economically infeasible for the reasons set forth in the May 14'b and July 21" City staff
reports. It should also be noted that the City's own staff and engineers have studied a
possible Ranch Road alignment for its pipeline and determined that such an alignment
was not feasible. As you know, this is the key reason the City negotiated an easement
with the Canyon View Homeowners Association located just north of the Crystal Canyon
Condominium property, which the City plans to construct and install a pipeline through
the Canyon View property to connect to the City's pipeline located in San Gabriel
Canyon Road heading south.
The Taking of the SubJect Property is not a Predetermined Outcome
The HOA asserts that the City cannot engage in a fair and impartial hearing since
the City has already predetermined the outcome of the hearing. The HOA asserts that no
alternatives have been studied in support of its assertion. As discussed previously, as
well as throughout the May 10 and July 21" City staff reports, CIC has studied
alternative alignments, all of which are technically and economically infeasible and
would cause a substantial hardship to CIC and other affected property owners if it were
0 0
Mr. Cary Kalscheuer
Azusa Light & Water
July 8, 2008
Page 4
forced to proceed through an alternative route. The City Council has required that all
information concerning the scope of the project including the designs, maps, and
drawings of the proposed pipeline be provided to the HOA, which CIC has already done.
The City Council listened to public comments made by CIC and the HOA at both the
February 4a' and May 140' public hearings, and also had the opportunity to ask numerous
questions of both parties at those hearings concerning the scope of the project and the
impact to both parties.
CIC Has Disclosed the Full Scope of the Proiect to the HOA and the City
The HOA also asserts that CIC has not disclosed the full scope of the project to
the HOA and the City. CIC has previously produced hundreds of pages of documents to
the HOA pursuant to the HOA's document production request including plans, designs,
and drawings concerning the design and detail of the proposed pipeline. In addition, at
the April 14a' mediation between the parties, CIC and the HOA participated in a joint
informational session wherein the HOA and its attorneys asked CIC and its engineer
numerous questions concerning the scope, design, and detail of the proposed pipeline
project and easements. CIC and its engineer, as well as Chet Anderson of Azusa Light
and Water, also explained to the HOA and its attorneys why alternative routes are
infeasible.
On May 29, 2008, CIC organized another meeting with the Crystal Canyon
homeowners and HOA board members, the purpose of which was to further educate the
homeowners and HOA board members about the necessity and scope of the pipeline
project and to address any concerns the homeowners and HOA .board members had
concerning the proposed project. Several homeowners, the HOA, and its attorneys were
in attendance and again asked CIC and its engineers questions concerning the scope of
the project. In addition, it is our understanding that City staff has previously reviewed
and analyzed CIC's plans, designs, and drawings concerning the scope of the proposed
pipeline project.
CIC's Proposed Pipeline Proiect is Exemt under the California Environmental Quality
Act (CEOA)
The HOA asserts that CIC's proposed pipeline project is part of a larger project
and therefore CIC is "piecemealing the larger project in an attempt to avoid the
applicability of CEQA." The adoption of the resolution of consent is statutorily exempt
M
Mr. Cary Kalscheuer
Azusa Light & Water
July 8, 2008
Page 5
from the requirements of CEQA pursuant to Section 15282(k) of the CEQA Guidelines
and Public Resources Code section 21080.21. Public Resources Code section 21080.21
states that CEQA "does not apply to any project less than one mile in length within a
public street or highway or any other public right-of-way for the installation of a new
pipeline or the maintenance, repair, restoration, reconditioning, relocation, replacement,
removal, or demolition of an existing pipeline."
The proposed pipeline project being considered by the City Council in connection
with the adoption of the resolution would begin at a power facility owned and operated
by the City of Pasadena just east of Ranch. Road directly across from a private road
(tailed Shady Oak Court) and parking lot located on the Crystal Canyon Condominium
complex. The pipeline would cross Ranch Road and traverse Shady Oak Court. The
distance of the proposed pipeline under consideration by the City Council is less than one
mile in length and therefore exempt from the CEQA requirements. Once the proposed
pipeline is constructed and installed in Shady Oak Court, it will extend underground
south on San Gabriel Canyon Road and then east on Sierra Madre Avenue where it will
connect with the Rosedale pipeline just east of Dalton Avenue. It is anticipated that the
City will grant CIC a license to construct, install, maintain and operate this portion of the
pipeline in the City streets. The distance from the starting point in San Gabriel Canyon
Road to the connection point in Sierra Madre Avenue is also less than one mile in length.
It is important to note that the distance from the Pasadena power facility to the
connection point is also less than one mile in length.
Proposition 99
California Proposition 99 was a proposed amendment to the California
Constitution that appeared on the June 3, 2008 statewide ballot Approximately 62.5% of
the voters endorsed Proposition 99. Proposition 99 amends Section 19 of Article I of the
California Constitution, adding section 19(b) which prohibits State and local
governments from "acquiring by eminent domain an owner -occupied residence for the
purpose of conveying it to a private person." Under Section 19(e)(6), the "State" means
the State of California and any of its agencies or departments, and under Section 19(e)(2),
"local government" means any city, including a charter city, county, city and county,
school district, special district, authority, regional entity, redevelopment agency, or any
other political subdivision within the State.
Proposition 99 is not applicable here for several reasons. First, the adoption of the
resolution of consent by the City Council, if it elects to do so, does not actually result in
Mr. Cary Kalseheuer
Azusa -Light & Water
July 8, 2008
Page 6
the acquisition by eminent domain of an owner -occupied residence by the State or by
local government. The adoption of the resolution of consent does not result in the City of
Azusa acquiring the subject easements by eminent domain; rather, such adoption only
gives CIC the authority to file an eminent domain action to acquire the subject easements
should it become necessary for CIC to do so, and, if CIC does so, the HOA will receive
just compensation for creation of the easement.
In addition, CIC is a California non-profit mutual water company that is
considered a quasi -public entity under Cad64 Cival Proset7ur section 1245.310 et seq.
As a mutual water company and a quasi -public entity, CIC has the authority to exercise
powers of eminent domain after obtaining the consent by the legislative body of the city
or county within whose boundaries the subject property is Iocated.
Proposition 99 also adds section 19(c) which states that section 19(b) "does not
apply when State or local government exercises the power of eminent domain for the
purpose of protecting public health and safety; preventing serious, repeated criminal
activity, responding to an emergency; or remedying environmental contamination that
poses a threat to public health and safety." Assuming arguendo that Proposition 99 is
applicable to the proposed acquisition, the exclusion tinder section 19(c) of Article I of
the California Constitution would govern since the easements are necessary for CIC's
proposed pipeline project, which is designed to protect public health and safety as further
explained in the staff reports.
Very truly yours,
U,,.J; cc—
Christopher B. Chan
CBC/fcl
cc: David De Jesus, President/General Manager, Covera Irrigating Company
Sonia R. Carvalho, Esq., Best, Best, & Krieger, LLP
GSCovinaTrystal Canyon Fa cnm WR Ischeua.Rcsp.Obj.LAT07080H.dix
Lagier�f
Seheall
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0
•
COVING IRRIGATING CO"PANY
July 10, 2008
Joseph R. Rocha, Mayor
Keith Hanks, Mayor
Pro -tem
City of Azusa
City of Azusa
Administration Department
Administration
epartment
213 E. Foothill Blvd.
213 E. Foothill Blvd.
Azusa, CA 91702
Azusa, CA 9170
Angel Carrillo,; Council Member Uriel E. Macias,
City of Azusa City of Azusa
Administration Department Administration 1
213 E. Foothill Blvd. 213 E. Foothill I
Azusa, CA 91702 Azusa, CA 9171
Robert Gonzales, Council Member
City of Azusa
Administration Department
2I3 E. Foothill Blvd,
Azusa, CA 9I702
Re: Crystal Canyon Homeowners Associ
Request for Use of Eminent Domain
Dear Mayor and Council Members:
As you know, the City Council held a public hearing 1
Irrigating Company's ("CIC'7 request that the City Counc
CIC's use of eminent domain to acquire a permanent wa
constructioneasement) that would traverse private propel
Homeowners and/or Crystal Canyon Home Owners Associl
Ranch Road and San Gabriel Canyon Road north of Sierra )
.City Council voted in favor of adopting the resolution b
resolution did not pass since it was not adopted by at least
Council members as required under Code of Civil Procedure
Member
Irrigating Company
May 14, 2008 to consider Covina
adopt a resolution consenting to
-line easement (and a temporary
owned by the Crystal Canyon
on (the "HOA"1 located between
dre Avenue. At that hearing, the
a 3-2 vote. Unfortunately, the
two-thirds (213) vote of the City
:tion 1245.360.
At that hearing, Mayor Rocha expressed concern that t ie resolution did not identify rights
the Crystal Canyon homeowners and/or HOA had in the ev nt of damages resulting from the
failure of the proposed pipeline or, alternatively, damage resi Iting from CIC's continued use of
the permanent easement. As stated by CIC's attorney at th hearing, CIC and the HOA have
been attempting to negotiate the terms of a settlement agreei ient that would provide CIC with
146 E. COLLEGE STREET • POST OFFICE BOX 006 •OV1NA, CA B17=
(626) 332.1802 •FAX LHSH) 867.33A2
City of Azusa City Council
July 9, 2008
Page 2
the requested easements in exchange for the HOA receiving nonetaxy compensation and other
concessions including CIC's obligation to indemnify the horqeowners and HOA in connection
with any such damage. Unfortunately, the parties have been able to reach such an agreement.
However, even if the parties are ultimately unable to rc 3.ch an agreement, as explained by
City Attorney Carvalho at the May 14`° hearing, the law requi s that CIC be responsible for any
damagd caused to the Crystal Canyon property, the homeo vners, residents, HOA, and third
parties as a result of (1) CIC's construction and installation o the proposed pipeline and (2) the
continued operation of the pipeline by CIC thereafter. Further ore, the City Attorney also stated
that after the pipeline has been installed in the subject property CIC would be responsible for the
continued maintenance and operation of the pipeline at its sole expense.
Under the law, the Crystal Canyon homeowners or HOA, as the owners of the
servient tenement, have no obligation to maintain or repair the easement unless the parties enter
into an agreement providing otherwise; they would, how ver, have an obligation not to
unreasonably interfere with CIC's use of the easement. 6 lyfilit r & Starr Cal. Real Estate (3rd ed.
2006) Easements, §15:67, p. 15-223; see also Civ. Code sect on 845; Rose v. Peters (1943) 59
Cal. App. 2d 833, 835. The owner of an easement is liable foi any damages caused to the owner
of the servient tenement by the easement owner's wrongful or unreasonable acts. Miller & Starr,
supra, §15:66 at p, 15-222. The owner of an easem t may improve it, or construct
improvements on it, such as grading or paving, if the improvements are reasonably necessary to
make use of the easement safe and convenient. But in doin so, the casement owner may not
increase the burden on, or unreasonably interfere with, the use of the servient tenement by its
owner. Id., § 15:67 at p. 15-225.
Furthermore, CTC, as the owner of the easement, not i inly has the obligation to maintain
and repair the easement, but CIC also has the duty to keep fie easement in a safe condition to
prevent injury to innocent third persons. If anyone is injured E s a result of a dangerous condition
of CIC's underground pipeline easement, as the owner of the asement, CIC would be liable for
the resulting damages, with the possible exception, however of those engaged in wrongful or
criminal conduct. Id., §15:68 at pp. 15-228 — 15-229. There are, CIC would like to assure the
City Council that if any damage results to an innocent third pE rty, the homeowners, and/or HOA
as a result of'CIC's use of the easement and continued r0airytenance and operation of the
proposed pipeline, CIC is prepared to live up to its legal obligqdons as discussed above.
Very truly yours,
Covina
City of Azusa City Council
July 9, 2008
Page 3
cc: Christopher B. Chan, Esq., Lagerlof, Seneca], Gosney 1
Fran Delach, City Manager, City of Azusa
Sonia R. Carvalbo, Esq., Best, Best & Krieger, LLP
� Kruse, LLP