Loading...
HomeMy WebLinkAbout4 Assessment Engineer Report Agenda Item # 4 TRUCKEE DONNER Public Utility r Memorandum To: Board of Directors From: Peter Holzmeister Date: April 27, 2001 Assessment Engineer report Kristin Lowell and I have been working diligently to finalize the Donner Lake Water System Assessment District Engineer's Report. We are close, but not yet there. I expect to have the final report on Monday and will distribute it to you as soon as possible. Publicfi TRUCKEE DONNER A" Resolution No. 2001-08 Authorizing the provision of notice of intent to consider adoption of a resolution of necessity in connection with the acquisition of certain properties, being the water system of the Donner Lake Water Company, and authorizing the scheduling of a public hearing WHEREAS, as lead agency this District approved a Negative Declaration pursuant to the provisions of the California Environmental Quality Act for the Donner lake Water System Acquisition and Rehabilitation project on February 12, 2001, and filed Notices of Determination with the County Clerk of the County of Nevada and with the Office of Planning and Research of the State of California, finding that the project will not have a significant effect on the environment; and WHEREAS,the condition of the water system of the Donner lake Water Company is such that,the owner thereof has publicly described it, in the company's Complaint for Declaratory and Injunctive Relief filed in the Superior Court of California, County of Nevada, in Case Number T00/0367C,on December 18, 2000, as creating a clear and increasing threat to public health;and WHEREAS, Code of Civil Procedure section 1245.235 provides in part that before a governing body of a public entity may adopt a resolution of necessity it must have given each person whose property is to be acquired by eminent domain a reasonable opportunity to appear and be heard on the matters referred to in section 1240.030 of the Code of Civil Procedure, if such person makes a written request to appear and be heard within 15 days after the notice is mailed;and WHEREAS, the right to be heard on the matters referred to in Code of Civil Procedure section 1240.030 includes the right to be heard on the questions of whether. (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 public good and the least private injury. (3) The property described in the resolution is necessary for the proposed project; and WHEREAS, as provided in Government Code sections 7267.1 and 7267.2,certain interests in property of the Donner lake Water Company have been appraised before the initiation of negotiations, the owner has been invited to meet the appraiser employed by the District at the location of the appraised property,the Board of Directors has established an amount believed to be just compensation, based on the approved appraisal of the fair market value of such interests in the property, and has made an offer to the owner by letter dated February 23, 2001, to acquire the property for the full amount so established,and the District has provided the owner a complete copy of the appraisal on which the offer of just compensation was based, and has begun negotiations with the owner, and seeks further negotiations; and WHEREAS, pursuant to Code of Civil Procedure section 1240.610 any person authorized to acquire property for a particular use by eminent domain may exercise the power of eminent domain to acquire for that use property appropriated to public use if the use for which the property is sought to be taken is a more necessary public use than the use to which the property is appropriated; and WHEREAS, pursuant to subdivision (a) of section 1240.650 of the Code of Civil Procedure, where property has been appropriated to public use by any person other than a public entity, the use thereof by a public entity for the same use or any other public use is a more necessary use than the use to which such property has already been appropriated; and WHEREAS, if the District were to acquire the property of Donner Lake Water Company by purchase or eminent domain, the Districts use would be more necessary, not only because of the preference in the Eminent Domain Law for the perpetuation of ownership in the public over private ownership, but also by reason of the facts that this District is more proximately located and more capable of operating, rehabilitating, rebuilding, and maintaining the water system for the greater public benefit, without the need to return profits to shareholders, and by the proximity of the Districts location, and because of the depth, skills, and expertise of its water service and management personnel, the District is able to effect the more necessary public use of taking into and perpetuating the properties in public ownership for the benefit of those persons the properties should serve,and eliminating the discomfort, inconvenience, and threat to public health that currently exists; and WHEREAS, the District is authorized by section 16404 of the Public Utilities Code and the provisions of the Eminent Domain Law, commencing at section 1230.010 of the Code of Civil Procedure, to exercise the right of eminent domain to acquire for the purposes of owning, constructing, operating and maintaining a public water works within or without or partly within and partly without the District; now NOW,THEREFORE, BE IT HEREBY RESOLVED by the Board of Directors of the Truckee Donner Public Utility District that the General Manager, in consultation with counsel,shall schedule a public hearing,and give written notice to the owner of the Donner Lake Water Company that the Board of Directors will consider for adoption a resolution of necessity to acquire by eminent domain, if not acquired by negotiation, the interests in the water system of Donner Lake Water Company, and entertain at the hearing evidence and comments to fulfill all of the obligations under the Eminent Domain Law, particularly the provisions of Code of Civil Procedure section 1245.235, and invite the owner to appear and be heard on the matters referred to in section 1240.030, discussed in the recitals above, at the earliest possible time,and BE IT FURTHER RESOLVED that a courtesy copy of this resolution be mailed to the owner of the Donner Lake Water Company,and the California Public Utilities Commission, for the purpose of giving the owner and the Cardomia Public Utilities Commission advance notice of the possibility that this Board may consider a resolution of necessity as provided herein. PASSED AND ADOPTED by the Board of Directors of the Truckee Donner Public Utility District at a meeting duly called and held within the District on the 0 day of April 2001 by the following roll call vote: AYES: Aguera, Hemig, Sutton, Van Gundy and Maass. NOES: None. ABSENT: None. TRUCKEE DONNEERR PUBLIC UTILITY DISTRICT By James . Maass, President ATTEST: a, Peter L. Holzmeister, Clerk of the Board KRON IC K �MTOSKOVITZ TIEDo MRD.N RECT PCE"C FREDERICK G.GIRARD April 17, 2001 VIA FACSIMILE AND U.S.MAIL Peter L. Holzmeister General Manager Truckee Donner Public Utility District Post Office Box 309 Truckee, CA 96160 Re: Donner Lake Water Company's Request to be Heard on Proposed Adoption of Resolution of Necessity Dear Mr. Holzmeister: We represent the Donner Lake Water Company and on its behalf request the opportunity to appear and be heard in opposition to the adoption of the Resolution of Necessity, which would authorize the initiation of eminent domain proceedings to acquire the water system of the Donner Lake Water Company. This matter is to be considered by the Board of Directors of the Truckee Donner Public Utility District at its meeting on May 2, 2001 at 7:00 p.m. Donner Lake Water Company denies 1)that public interest and necessity require the acquisition of its water system by the Truckee Donner Public Utility District; 2)that the District's Project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury; 3) that the property sought to be acquired is necessary for the Project; and 4) that such acquisition by the Truckee Donner Public Utility District is a more necessary public use than the use to which that water system is appropriated by Donner Lake Water Company. Donner Lake Water Company also objects to the adoption of the Resolution of Necessity on the ground that in this case the adoption of a Negative Declaration was not sufficient, and did not comply with the California Environmental Quality Act. Substantial environmental impacts resulting from the acquisition and the use of the water system in the manner proposed by the Truckee Donner Public Utility District were not considered at all, but in fact ignored. These impacts were set forth in the Donner Lake Water Company's recently filed Verified Petition For Writ Of Mandate and Complaint For Injunctive Relief And Attorney's Fee (see Donner Lake Water Company v. Truckee Donner Public Utility District,Nevada County Superior Court Case No. T0110543C). These environmental impacts must be considered before the District commits to its Project. Donner Lake Water Company requests that the proposed Resolution of Necessity not be considered until the above-referenced mandate action is resolved. ATTORNEYS AT LAW 400 CAPITOL MALL,2T"FLOOR SACRAMENTO,CALIFORNIA 95814-4417 TELEPHONE(916)321-4500 FAX(916)321,4555 Peter L. Holzmeister 370.12 April 17, 2001 Page 2 Donner Lake Water Company also objects to the adoption of the Resolution of Necessity in that Truckee Donner Public Utility District has not complied with Government Code section 7267.2 for its January 31, 2001 appraisal of the fair market value of the Donner Lake Water Company water system at$500,000 was based on a 1999 rate case and not on a current rate base, and is therefore patently inadequate and deficient and the offer of the Truckee Donner Public Utility District of that appraised amount of$500,000 was not just compensation as a matter of fact or law. Very truly yours, KRONICK,MOSKOVITZ, TIEDEMANN &GIRARD A Professional Corporation Frederick G. Girard Attorneys for Donner Lake Water Company FGG/cd cc: Dennis W. De Cuir(via Facsimile) 652426.1 MOSKoviTZ IFDEMANN IXGIRARD..... 4�OClf:'O' .UALL, FLC,R SACRAMENTO,CA ' 4 41] 916 i'Lt(9I E�3t i-#iQl