HomeMy Public PortalAbout19860115 - Agendas Packet - Board of Directors (BOD) - 86-02 Meeting 86-02
i MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
375 DISTEL CIRCLE,SUITE D-1,LOS ALTOS,CALIFORNIA 94022
(415)965-4717
SPECIAL MEETING
7 : 30 P .M. BOARD OF DIRECTORS City of Menlo Park
Wednesday Council Chambers
January 15 , 1986 701 Laurel Street
Menlo Park, CA 94025
A G E N D A
ROLL CALL
BOARD BUSINESS
Consideration of Draft Policies and Alternatives Regarding Use of the
Power of Eminent Domain
1. Presentation by Committee
2 . Public Comment
3 . Board Discussion and Probable Tentative Adoption of Policies
ADJOURNMENT
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`-85-55
(Meeting 85-32
Dec. 11 , 1985)
Date:2 December 1985
To: Board of Directors
Midpenisula Regional Open Space District
From:Eminent Domain Committee(Hanko,Bishop,Wendin)
Subject: Scheduling of Board Reviev
Your Eminent Domain Committee has completed its%roork on the initial draft of the Eminent Domain
portion of the Land Aquisition Polices(Version 7 attached). We ask that you schedule a Board
meeting for public discussion and tentative adoption of this portion of the polcies. �Ve are not
recommending discussion of the polcies at this time. Instead,they are presented nov to give you and
the public adequate time for reviev before they are next considered
We also ask that you consider when and hov you wish to consider the remaining policies(Broom
Act,Aquisition of land outside the Distirct and Annexation). The committee has additional work to
do on these-the have not been considere
d since the last Board dis
cussion�scussion in August.
The draft document has been rearranged to give each of the subjects its ovn se
ction.ectton. The g 1 preamble,
however,eras left Frith only minor clarifying changes. It is useful to read the Definitions(Section
10)first because many of the policy statements depend on the wording of the definitions.
The committee attempted to draft language which implemented the response to the questionaire. Only
in two was were there majorities of less than five to tiro,and in a third no consensus eras stated in
earlier meetings.
1. Non-subdividable unimproved property. No two Board members had the same
approach. The committee is proposing further study in this area by Staff,Frith working
guidelines to be in effect during the study period. Staff has estimated that this^Mould
take about one year,requiring revision of our Master Plan.
2. Special treatment of institutional or commercial entities. There was no clear consensus to
treat these owners the same as others on the issue of threat of development. The draft
implements the majority(4-3)position,namely giving the same treatment,but the
committee felt that the subject had received little attention by the Board during the public
hearings. Alternate language is included.
3. Eminent Domain Exemption Contracts. In vier of outside counsel's expressed doubts
about the enforcibility of these Contracts,this subject requires further discussion.
Staff gill be presenting its ideas on publicity for the policies at the 18 Dec 85 meeting. The goal of
Section 8 on I lublicit
be considered. y is to reach all land ovmers. Hovever,a more pragmatic standard may need to
T AN A::,'QuJQTYQfl PQJJCx]g�'
Ver3ion !ry
4 Dec 85
It is the desire of the District to acquire open space from grilling sellers. Eminent domain may be used only
within the planning areas designated in the District's Master Plan in those instances where all reasonable
attempts at voluntary negotiations fail and the property in question is necessary to the open space program of
the District;and where there are no feasible current or prospective alternate acquisitions that would achieve the
District's objectives.
Properties within the District's sphere of influence outside the District's boundaries shalt be treated as being in
the planning area designated in the District's Master Plan. This provision shall remain in effect until the
District's Master Plan has been amended to include or exclude such properties from such planning areas.
In negotiations or discussions with landowners,the Distict staff shall not threaten eminent domain but gill
explain relevant law and District policy. The Board shall approve a brochure which shall explain this policy,
include information on the use of arbitration,open space easements and contracts,and life estates,for
example,and gill encourage eminent domain exemption contracts where applicable(see attached)and private
open space preservation.
In establishing routes for trails,the District shall plan in consultation with and respect the privacy of
developed communities.
USE OF EMINENT DOMAIN
1_ Improved property, not snbdividable
Eminent domain shall not be used to acquire all or any part of an improved property that is not susceptible
to further subdivision,except as provided in Section 5(Trails)below.
2_ Unimproved propertg, not subdividable
Eminent domain shall not be used to acquire all or any part of an unimproved property that is not
susceptible to further subdivision if the property is in a clearly defined developed community,except as
provided in Section 5(Trails)below. Further,until such time as the District has completed a revision of
its Master Plan and established a standard or standards which identify such properties or categories of
property that will not be subject to eminent domain,all other unimproved property not susceptible to
further subdivision shall be subject to eminent domain only when the Board has determined at a public
hearing that the property is clearly threatened by development or degradation of natural resources,except
as provided in Section 5(Trails)below. These exceptions to the use of eminent domain shall not apply to
properties wherein more than 50%of the fee interest is held by insitutional or commercial entities.
3. Improved, subdividabbe proper y
Except as provided in Section 5(Trails)below,eminent domain may be used to acquire all or any part of
an improved property which is susceptible to further subdivision only when the Board has determined at a
public hearing that the property is clearly threatened by development or degradation of natural resources.
Only the unimproved portion of the property may be acquired,provided that:
a. the improvements and appurtenant structures,and surrounding lands of no less than minimum lot size
under the existing zoning district,shall be exempt,and
b. the owner shall be entitled to retain such easements as are needed for reasonable access and use of the
property.
OPTIONAL LANGUAGE FOR {a): if 50%or less of the fee interest of the property is
held by iwitutional or commercial entities the im rovements and a rtenant
p 1!Pu
structures, and surrounding lands of no less than minimum lot size under the existing .
zonin district shall be exempt, and
i
4. Unimproved, subdividable pxoperty_
Except as provided in Section 5('Trails)below,eminent domain may be used to acquire all or any part of
an unimproved property which is susceptible to further subdivision only when the Board has determined
at a public hearing that the property is clearly threatened by development or degradation of natural
resources.
OPTIONAL ADDITION: , or if more than 50%of the fee interest of the puroperty is held
by insitational or commercial entities
5. Trails
If a portion of a property is required to connect two or more publicly owned park or open space parcels,
eminent domain may be used,subject to legal requirements and the following conditions:
a. the District Board finds it necessary to provide a trail connection between the parcels,and
b. the District has been unable by voluntary means to acquire land to connect the parcels with a safe and
useful trail,including significantly longer and less convenient trail routes,and
c. the land for the connecting trail shall not exceed 50 feet in width,and shall be as far from any existing
structure and as close to the property line as practicable,and
d. the owner shall have the opportunity to designate any additional portions of hisrher land which may
be included by the District in the acquisition,and
e. the ovmr shall be entitled to retain an easement over the land acquired by the District,where
necessary,for access to the land retained by the owner.
6. Road access for patrol purposes
i
Notwithstanding any other provision of this policy,the District may consider the use of eminent domain to
perfect rights in an existing road for um for patrol purposes.
7. Consent of owners
Notwithstanding any other provision of this policy,the District may consider use of eminent domain when the
owners of more than 50%of the fee interest in the property request or consent to such we.
8. Publicity
Policies and proposed changes purusant to restraint of eminent domain shall be adopted by ordinance,legally
noticed and freely publicized(before and after any changes)in a manner designed to reach the attention of all
property owners within the District's planning areas.
9. Eminent Domain Exemption Contracts
Owners of all of the fee interest in a property exempted from eminent domain under these policies may require
the District to enter into an Eminent Domain Exemption Contract in the form attached.
OPTIONAL LANGUAGE: in a form to be adopted by Al Board.
10. Definitions
a. improvement---legal residences,excluding trailers and temporary str meeting the applicable
Uniform Homing Code. To qualify a mobile home must have a permit as a
permanent residence.
b. improved---containing at least one improvement.
c. property---one or more contiguous assessors parcels under one ownership.
d. stoceplible to further subdivision---divided or dividable iulo M or more legal building sits under
applicable zoning regulations(including pre-existing legal but non-
conforming building sits).
e. institutional or commercial ownership---including,but not limited to,private or public agencies or
schools(except public schools),churches,investment partnerships and
corporations,excepting individual or immediate family ownership through a
family trust,partnership or corporation whose purposes are not primarily
dedicated to land speculation andlor development investment).
f. clearly threatened by development--- activities which may be.considered by the Board in wAdng its
determination may include,but not be limited to,filing of a subdivision
application,prelbninary concept plan or other document relating to
subdivision of property,or filing a division of ovrler3hip,or filing an
application for zoning change for increased density.
g. clearly threatened by degradation of natural resources---activities which have or could came
significant degradation of natural resources,including but not limited to any
commercial removal of vegetation,firewood,timber,minerals,soil,rock,
gravel or videlife;the partial or total destruction of any unique biological or
botanic habitat andlor geological formation,the personal exploitation of the
property by clearing of vegetation and natural cover of an area larger than
One(1)acre,or the removal or moving of dirt andlor rock in excess of 100
cubic yards,or the annual removal of firewood in excess of five(5)cords
or the removal of any heritage tree(24"in diameter or larger at breast
height);however,generally excluding such activities required for public
health and safety.
I L Decisions of the Board.
These policies are intended solely for the guidance of the Board of Directors of in the exercise of its discretion
and are not intended to give rise to private rights or causes of action in individuals or other persons. The
Board of Directors shall be the final arbiter as to any question of interpretation of these policies.
3
LAW OFFICES OF
.TOFi1 �3. TALLETT
All BOREL AVENUE,SUITE 303
P.O.BOX 474
SAN MATEO.CALIFOR-NIA 04402
14151 341-3471
November 15, 1985
Stanley R. Norton, Esq.
Mid-peninsula Regional Open Space District
375 Distel Circle, Suite D-1
Los Altos, CA 94022
Re: Midpeninsula Regional Open Space District - Proposed
Contract for Restraint or Exemption on Exercise of the
Power of Eminent Domain
Dear Mr. Norton:
You recently forwarded to me a draft contract on the above
subject that was being considered by the District for use in
connection with its Open Space Program. You asked for my legal
opinion and comments on the validity of such agreements. The
initial and most important question raised by the proposed
form of Agreement is,- obviously, whether or not a Public Entity
has the power to waive or contract away its power of eminent
_domain_. Based upon past experience, before I actually received
the agreement, I advised you by phone that I did not believe that
the sovereign power of condemnation could be made the subject
of a binding contract providing for the abrogation of the power,
termporarily or permanently. Subsequent to our telephone dis-
cussion and on receipt of the proposed form of contract, our
research .of the case law confirmed this opinion. There are two
cases directly on point.
In the case of Contributors to Pennsylvania Hospital vs. City
of Philladelphia, 38 Supreme Court 35, 245 U.S. 20, the United
States Supreme Court held that a legislative agreement not to
condemn the property of a hospital was without authority and
ineffective. In that case the hospital authorities had secured
legislation under which the hospital was required to make certain
payments and set aside part of its grounds for public streets for
the city on the express condition that any opening of further
streets could not be done without the consent of the hospital.
The Supreme Court held, despite this agreement, that the bringing
of an action in condemnation by the city to acquire property from
the Hospital was proper and there was not authority or power by
anyone to contract away the right to assert the governmental
power to condemn. Its opinion would apply to all similar govern-
mental powers. The Court said "There can be now, in view of the
many decisions of this court on the subject, no room for chal-
lenging the general proposition that the states cannot by virtue -
of the contract clause be held to have divested themselves by con-
tract of the right to exert their governmental authority in
Stan'_::. Esc . November 15, 1985
_:keqio_T1a , -open
S-= :�4
Page
matters :.:hick from their very nature so concern that authority
that to restrain its exercise by contract would be a renunciation of
power to legislate for the preservation of society or to secure the
perform,, ance of essential governmental duties. " Based upon the
reasonina of the Supreme Court decision, it would be my opinion that
the proposed agreement would only be an illusory agreement and could
also be considered to be against the general public policy as expressed
by the Supreme Court against waiving sovereign powers.
The more recent case, on the point is a California Appellate Court
decision Alexander vs. Mitchell, 119 Cal .Ap. 2d 816 , which came to
the same conclusion as expressed in the above cited U. S. Supreme
Court opinion. In this later case, involving the City of Palo Alto
which is a Charter City, an attempt was made to put on the ballot
"An Ordinance to Protect Referendum Rights and Prohibit Eminent Domain
in Parking Lot Proceedings. " The proposed ordinance to be presented
to the voters would provide that there was no public necessity to
exercise the right of eminent domain for off street parking and also
provided that any lands required for that purpose were to be obtained
by negotiations without the use of the "drastic power of condemnation. "
Although the Court of Appeal Opinion is lengthy it very concisely
states on this point that neither the city counsel nor the people of
a particular community, by initiative or referendum, can waive the
power of eminent domain. The Court states, on page 821, (1)
nevertheless the right of eminent domain is a matter of statewide
concern and being such cannot be abrogated by the people of a muni-
cipality. " and at (2) "Those members could not do away with the power .
of eminent domain; neither can the peopleof a particular community. "
It should be noted that a petition for hearing in the Supreme Court
was filed and denied.
There are additional cases in related subjects but not as
directly in point as the two cases cited above. Also a good number
of later Federal and State cases rely upon these cases as authority
for the proposition that government powers cannot be contracted away.
For example: Federal Cases - Home Building & Loan Association vs.
Blaisdell, (1933) 290 U.S. 398-54 S. Ct. 231. United States Trust
Company of New York vs. New Jersey, (1977) 431 U.S. 1, 97 S. Ct. 1505;
California cases - Sloane vs. Hammond, (1927) , 81 Cal .Ap. 592; People
vs. City of Los Angeles (1960) , 179 Cal . Ap. 2d 562; Timont Land Company
vs. Truckee Sanitary District (1983) , 145 Cal . Ap. 3d 330, 193, Cal.
Rptr. 568.
From our research there are no cases overturning or even in
conflict with the law as stated by the U.S. Supreme Court in
Contributors to Pennsylvania Hospital vs. City of Philadelphia.
Stanle4'
Midpeni-S-» _ regiona; pVe ,
5pac __ __ ___ct
Wage I==== November 15, 1985
In a`•:'1ition to the above authorities, which would make the
contract unenforceable, I believe there are other possible objections
to the contract from an entirely different point of view. I 'm
sure you are aware of the numerous cases that have come up in
recent years concerning the improper use of the power of condemna-
tion in the alleged blighting of property by a mere threat or the
possibility that the power of condemnation would be exercised. My
examination of the terms of the agreement indicates that the inherent
purpose o the agreement is to prevent an owner from further develop-
ing his property. Under the blight cases it could be argued that
the solicitation of this agreement, and even securing the agreement,
is evid
ence,,_ce that the property owner was beingprevented from using
his property fo
r its r '
P P y Highest and best use and form the basis of an
inverse condemnation action. This may appear speculative; however,
having been involved in a number of cases in the trial courts where
the claim of blight has been made, I would not rule out the possibility
of this type of claim occurring if these agreements were used on
any large scale.
If you wish to discuss this matter further with me, .please do
not hesitate to get in touch with me.
Very truly yours,
JOHN H. TALLETT
JHT.pb
I
COMMITTEE FOR GREEN FOOTHILLS
Peninsula Conservation Center
2253 Park Blvd., Palo Alto,California 94306
Phone: 327-5906
January 14 , 1986
HONORARY PRESIDENT
Wallace Stegner
Board of Directors
PRESIDENT Midpeninsula Regional Open Space District
Hans Morawitz 375 D i s t e l Circle
VICE-PRESIDENTS Los Altos , CA 94022
David Bomberger
Kit Dove Terry Lobdell Dear Members of the Board ,
Ciddy Wordell
SECRETARY The District was created by a significant
Betsy Crowder majority of the voters in order to preserve public
open space . The Board of Directors has a respon-
TREASURER si bi 1 i ty to honor this mandate by insuring that
Barbara Behling the interests of that majority are protected .
BOARD OF DIRECTORS
Marilyn Bauriedel The Committee for Green Foothills supports
Len EBIUkIS
rickson your efforts to clarify Your policies regarding
BarbaraGreen the use of eminent domain . The Committee has
Georgia Perkins reviewed the draft document before you and has found
Jerry Perkins
Cindy Rubin that it reflects the Committee ' s concerns . We support
Lynn Torin it in its present form . We appreciate that this
Jim Wheeler clarification was necessary to allay the fears of
ADVISORY COUNCIL homeowners along Skyline .
Donald Aitken
Pat Barrentine In evaluating the exercise of eminent domain ,
Betsy Bechtel we encourage you to retain the policies necessary
Chris Berka g y p y
Robert Brown to protect larger parcels from development .
Mary Davey
Walter Droste Barbara Eastman Additionally , we urge you to maintain the
John Gilliland flexibility required to complete the trail systems
Bob Girard which are vital to the recreational resources of
Nonette Hanko
Lois Hogle t h i s area .
Ellie Huggins
Thomas Jordan, Jr. Si n c e r e l y ,
Bill Leland
Sidney Liebes
Bob Mark /
Richard Merk � D�Ze�G��!
Diana Miller
Hans Moravi
Alan Newlands
tz (J
Nils Nilsson President
George Norton
Bob Reese
Jean Rusmore
Isabel Sewell
Jon Silver
Frances Spangle
John Stoddard
Ruth Troetschler
Howard Wilshire
LEGISLATIVE ADVOCATES
Linda Elkind
Lennie Roberts
COORDINATOR
Donna Kirsacko A REGIONAL GROUP WORKING FOR ENVIRONMENTAL QUALITY
i
s� L
�1
'Amnlwlk
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
TO: Board of Directors
FROM: H. Grench, General Manager
SUBJECT: F.Y.I.
DATE: January 15, 1986
him d&'Ur
0�en-space pro . ise
N order to make peace with Santa Cruz only about 850 acres a year to its stock.But to
Mountains residents who want to be left ease those fears district directors should for-
alone, literally, directors of the Midpenin- mally approve the new condemnation policy
sula Regional Open Space District should at Wednesday's meeting. -
adopt a go-easy policy on condemnations. It provides that owners who make no
A formal go-easy policy reaffirms the dis- attempt to subdivide their property will be
trict's right to preserve a fast-diminishing left alone, and it promises that no home will
resource — open space for the enjoyment of be condemned if the lot is so small that the
everybody _ while assuring mountain dwell- owner can't build a new dwelling on it.
ers that they won't be forced off their land. The district reserves the right to condemn
Not that the district has been quick to use property owned by real estate developers and
its powers of eminent domain. Since 1972, it to buy portions of developed lots to connect
has bought up about 19,000 acres of bayside . hiking or bicycling trails.
marshland and undeveloped mountaintops, That's a trade-off that benefits everyone
but has filed only 10 condemnation suits in except land speculators. In effect, the policy
those 14 years. All 10 were settled before asks mountain dwellers to accept the possible
reaching a jury, and most involved willing inconvenience of weekend hikers in their back
sellers; only the price was in dispute. yard in exchange for a guarantee that a
The district is financed mainly from prop- subdivision won't go up next door.
erty taxes and spends about $4.6 million a As industrial and residential development
year buying up undeveloped land and another gobbles up the last remaining space on the
$1.4 million maintaining it for public use. floor of the Santa Clara Valley,preserving the
Mountain residents from Los Gatos to San hillsides and wetlands to protect the environ-
Carlos mobilized last spring to fight being went and for public recreational use becomes
bought out after the district published a list of imperative.
695 parcels it wanted to acquire ultimately. Adoption of this condemnation policy by the
The mountain folk had little to fear, actu- Mid la Regional Open Space District
ally, because the district can afford to add will help do both.