Loading...
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 (s ( NATIVITY i Cp `° SCHOOL ST 3 2 BRIGHT sr e Parking EA LE 4 Mf U.S..GEOLOGICAL u v Council SURVEY SP STAT/O q< �, Chambers °( P S IRR Y lN/ST MENLO O F y p O MUNVI PAL r q( 7 IVIC CENTER :':�: T, SERVICE MEDICAL CLINIC oN o N,q( � •' CENTER p �v (N N N �Gl,S, R T P rJ �. < C F9y A���.�,_7�/.F`�;�:;:'::�:;• 'T`, NITARY �ti � � � 4'H/ qC� (�"•-..�Tf.'N•. GYM.: : TRICT _'�_, ;/p► 0 3 v �:°BURGfS.SP.ARK•'� ,o .c a�' N �Ll T.7L£cEAG (O MENLO PARK ( SP �:f!FLD.j'• ,RSiI EXTENDED C R r CENTER oQ p sp o \J r �Gqr q'c��iC, o I Q [Yy S �� { PL R CZAR i Sr ,� N � R s� LITTLE OUST` �`� 1:'•i1.f •`'���1 r,:'oi�°j' 90 'rT cpF f:NEALONI QAR `O `-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.