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Town Council Resolution No. 13-2021 05/05/2021
RESOLUTION NO. 13-2021
A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TIBURON, STATE OF CALIFORNIA, TO DETERMINE THE NECESSITY TO ACQUIRE PROPERTY BY EMINENT DOMAIN FOR THE HAWTHORNE UTILITY UNDERGROUNDING DISTRICT PROJECT TO RELOCATE EXISTING OVERHEAD UTILITIES UNDERGROUND; TO AUTHORIZE COMMENCEMENT
OF LITIGATION TO ACQUIRE PROPERTY BY EMINENT DOMAIN; AND TO SEEK AN ORDER OF POSSESSION (CODE OF CIVIL PROCEDURE SECTION 1245.220) (FREDERICK C. WINSTON AND LISA B. WINSTON, APN 055-171-13) _______________________________________________________________________
WHEREAS, the City Council has determined that the Town of Tiburon (“Town”) needs to
acquire a portion of property located at 650 Tiburon Boulevard, Tiburon, California, Assessor Parcel Number 055-171-13 (“Subject Property”), in order to construct the Hawthorne Utility Undergrounding District Project (“Project”); and
WHEREAS, the Project involves relocating existing overhead utilities underground by
trenching and installing conduit and utility box(s) within a proposed permanent nonexclusive easement (“the “Property”). During the construction period of approximately one month, utility poles and overhead lines may be removed. The Project will not affect structures or landscaping, and will result in the removal of utility lines from view of the Subject Property; and
WHEREAS, the Subject Property is within the area of the Project, and acquisition of the Subject Property is necessary for the completion of the Project; and WHEREAS, the Town Council has considered all information related to this matter, as
presented at the public meetings of the Town Council identified herein, including any supporting
reports by Town Staff, and any information provided during public meetings. NOW, THEREFORE, BE IT RESOLVED, by the Town Council of the Town of Tiburon, as follows:
1. The Town Council hereby finds that the facts set forth in the recitals to this Resolution are true and correct, and establish the factual basis for the Town Council’s adoption of this Resolution.
2. The Town intends to advance the Hawthorne Utility Undergrounding District Project
(“Project”), which will relocate existing overhead utilities underground at various locations in Town, including at the Subject Property. The Project is for a public use. 3. To complete construction on the Project, the Town desires to acquire a portion of the
Subject Property located at 650 Tiburon Boulevard, Tiburon, California, Assessor
Parcel No. 055-171-13, as a permanent nonexclusive easement (the “Property”). The Property is necessary to the completion of the Project. 4. The Property consists of approximately 5,655 square feet, as a permanent non-
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Town Council Resolution No. 13-2021 05/05/2021
exclusive easement, as well as the associated improvements, including relocating existing overhead utilities underground by trenching and installing conduit and utility
box(s) within the easement. During the construction period of approximately one
month, utility poles and overhead lines may be removed. The Property is more particularly described and shown on Exhibit A attached to this Resolution and incorporated herein.
5. The Town is authorized to acquire the Property by eminent domain for the public use
set forth herein in accordance with the California Constitution, Article 1, Section 19; the California Eminent Domain Law, Code of Civil Procedure Section 1230.010 et seq., including, but not limited to, sections 1240.010 through 1240.050 inclusive, and sections 1240.110, 1240.120, 1240.220, 1240.350, 1240.410, 1240.510, 1240.610,
1240.650; Government Code Sections 37350.5, 38730, Streets & Highway Code
Section 10102, and other provisions of law. 6. On April 16, 2021, the Town mailed a Notice of Intention to Adopt a Resolution of Necessity for acquisition by eminent domain of the Property, which notice is attached
hereto as Exhibit B, and incorporated herein. The Notice of Intention to Adopt a
Resolution of Necessity was mailed to all persons whose name(s) appear on the last Equalized County Assessment Roll as having an interest in the Property, and to the addresses appearing on the Roll. The Notice of Intention to Adopt a Resolution of Necessity advised the persons of their right to be heard on the matters referred to in
the Notice on the date and at the time and place stated.
7. The hearing referenced in the Notice of Intention to Adopt a Resolution of Necessity was held on May 5, 2021, at the time and place stated in the Notice. All interested parties were given an opportunity to be heard. The hearing was then closed.
8. Based upon the evidence presented at the hearing, the Town Council of the Town of Tiburon finds, determines, declares, and resolves each of the following: A. The public interest and necessity require the proposed Project;
B. 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; C. The interests in the Property sought to be acquired by eminent domain are
necessary for the proposed Project;
D. The Town has complied with all conditions and statutory requirements necessary to exercise the power of eminent domain to acquire the Property described herein, as well as any other matter regarding the right to take said
property by eminent domain, including but not limited to, making the offer
required by Government Code Section 7267.2(a); and E. The Town has fully complied with the California Environmental Quality Act, Public Resources Code Section 21000 et seq., for acquiring the Property
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Town Council Resolution No. 13-2021 05/05/2021
described herein when the Town adopted a mitigated negative declaration for the Project on November 15, 2017.
BE IT FURTHER RESOLVED by the Town Council of the Town of Tiburon, that the Town Attorney is hereby authorized to acquire in the name of the Town the Property described in this Resolution in accordance with the provisions of California Eminent Domain Law, to commence an action in eminent domain, to deposit the probable amount of compensation with the State
Treasury, to apply to the Superior Court for an order permitting the Town to take immediate
possession and make immediate use of the Property for the Project, and to take all necessary steps to acquire the Property under the law. PASSED, APPROVED, AND ADOPTED by the Town Council of the Town of Tiburon
at a regular meeting held this 5th day of May, 2021 by the following vote:
AYES: COUNCILMEMBERS: Fredericks, Kulik, Thier, Welner NOES: COUNCILMEMBERS: None
RECUSED: COUNCILMEMBERS: Ryan
HOLLI P. THIER, Mayor
ATTEST:
LEA STEFANI Town Clerk
List of Exhibits: A. Property Description
B. Notice to Property Owners
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Distribution Easement (Rev.02/2020) RECORDING REQUESTED BY AND RETURN TO: PACIFIC GAS AND ELECTRIC COMPANY 245 Market Street, N10A, Room 1015 P.O. Box 770000
San Francisco, California 94177
Location: City/Uninc______________________ Recording Fee $_____________________________ Document Transfer Tax $ __________ [ ] This is a conveyance where the consideration and
Value is less than $100.00 (R&T 11911). [ ] Computed on Full Value of Property Conveyed, or
[ ] Computed on Full Value Less Liens & Encumbrances Remaining at Time of Sale [ ] Exempt from the fee per GC 27388.1 (a) (2); This document is subject to Documentary Transfer Tax
Signature of declarant or agent determining tax
(SPACE ABOVE FOR RECORDER'S USE ONLY)
LD# 2401-06- EASEMENT DEED
PM# 31320249
FREDRICK C. WINSTON and LISA B. WINSTON, as trustees of the Fredrick C. Winston and Lisa B. Winston 2008 Revocable Living Trust dated 10-30-08, hereinafter called Grantor, hereby grants to PACIFIC GAS AND ELECTRIC COMPANY, a California corporation, hereinafter called Grantee, the right from time to time to excavate for, construct,
reconstruct, install, replace (of initial or any other size), remove, maintain, inspect and use facilities of the type hereinafter specified, together with a right of way therefor, within the easement area as hereinafter set forth, and also ingress thereto and egress therefrom, over and across the lands of Grantor situated in the Town of Tiburon, County of Marin, State of California, described as follows:
(APN 055-171-13)
LANDS OF LOMAS as shown upon the Record of Survey Map filed for record December 30, 1991 in Book 29 of Maps at page 83, Marin County Records.
The facilities and easement area are described as follows:
Such underground conduits, pipes, manholes, service boxes, wires, cables, and electrical conductors;
aboveground marker posts, risers, and service pedestals; underground and aboveground switches, fuses, terminals, and transformers with associated concrete pads; and fixtures and appurtenances necessary to any and all thereof, as Grantee deems necessary for the distribution of electric energy and communication purposes located within the strip of land described as follows:
ROADWAY & UTILITY EASEMENT as shown upon said Record of Survey.
Grantor further grants to Grantee the right, from time to time, to trim or to cut down, without Grantee paying compensation, any and all trees and brush now or hereafter within said easement area, and shall have the further right, from time to time, to trim and cut down trees and brush along each side of said easement area which now or hereafter in the opinion of Grantee may interfere with or be a hazard to the facilities installed hereunder, or as Grantee deems necessary to comply with applicable state or federal
regulations.
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Distribution Easement Rev. (02/2020) Grantor also grants to Grantee the right to use such portion of said lands contiguous to said easement area as may be reasonably necessary in connection with the excavation, construction, reconstruction, replacement, removal, maintenance and inspection of said facilities.
Grantor hereby covenants and agrees not to place or construct, nor allow a third party to place or construct, any building or other structure, or store flammable substances, or drill or operate any well, or construct any reservoir or other obstruction within said easement area, or diminish or substantially add to the ground level within said easement area, or construct any fences that will interfere with the maintenance and operation of said facilities.
Grantor further grants to Grantee the right to apportion to another public utility (as defined in Section 216 of the California Public Utilities Code) the right to construct, reconstruct, replace, remove, maintain, inspect, and use the communications facilities within said easement area including ingress thereto and egress therefrom. The legal description herein, or the map attached hereto, defining the location of this utility distribution easement, was prepared by Grantee pursuant to Section 8730 (c) of the Business and Professions Code.
This document may be executed in multiple counterparts, each of which shall be deemed an original,
but all of which, together, shall constitute one and the same instrument. The provisions hereof shall inure to the benefit of and bind the successors and assigns of the respective parties hereto, and all covenants shall apply to and run with the land.
Dated: __________________, _______.
FREDRICK C. WINSTON and LISA B. WINSTON, as trustees of the Fredrick C. Winston and Lisa B. Winston 2008 Revocable Living Trust dated 10-30-08
_________________________________ Fredrick C. Winston, Trustee _________________________________ Lisa B. Winston, Trustee
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Distribution Easement Rev. (02/2020)
State of California County of ) On __________________________, before me, Notary Public, Insert name
personally appeared
,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that
by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed
the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and
correct.
WITNESS my hand and official seal.
(Seal)
Signature of Notary Public
CAPACITY CLAIMED BY SIGNER [ ] Individual(s) signing for oneself/themselves
[ ] Corporate Officer(s) of the above named corporation(s)
[ ] Trustee(s) of the above named Trust(s) [ ] Partner(s) of the above named Partnership(s)
[ ] Attorney(s)-in-Fact of the above named Principal(s)
[ ] Other
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of
that document.
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Applicant:
SECTION TOWNSHIP RANGE
PLAT MAP
REFERENCES
MERIDIAN
DATESCALE
CITY OF:
DRAWING NO.AUTHORIZDIVISIONPG&E
COUNTY OF:
F.B.: DR.BY: CH.BY: KXJM DAK8
31320249VV-3401
(36)
1"=40'
(1N)(6W)(MDBM)
MARIN TIBURON
NORTH BAY 31320249D
(NW of NW)
RANCHO CORTE MADERA DEL PRESIDIO
UNLESS OTHERWISE SHOWN ALL COURSES EXTEND TO OR ALONG BOUNDARIES OR LINES
5/1/2020
055-171-11
A.P.N.
6 M 674
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(CA
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ROADWAY & UTILITY EASEMENT
(AREA= 5655±SQFT)
PG&E EASEMENT
29 OS 83
APN: 055-171-13
Marin County Records
Doc. No. 2011-0064203
Deed Dated December 6, 2011
WINSTON, as trustees
FREDRICK C. WINSTON and LISA B.
055-171-12
A.P.N.
055-201-01
A.P.N.
650 TIBURON BLVD., TIBURON
6 M 67; 29 OS 83
(29 OS 83)
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Distribution Easement Rev. (02/2020) Attach to LD: 2401-06- Area, Region or Location: 7 Land Service Office: Santa Rosa
Line of Business: Electric Distribution (43) Business Doc Type: Easements MTRSQ: (24.01.06.36.44) Rancho: Corte Madera Del Presidio FERC License Number: N/A
PG&E Drawing Number: 31320249D Plat No.: VV-3401 LD of Affected Documents: N/A LD of Cross Referenced Documents: N/A Type of interest: Communication Easements (6), Electric Underground Easements (4)
SBE Parcel: N/A % Being Quitclaimed: N/A Order or PM: 31320249 JCN: N/A
County: Marin
Utility Notice Number: N/A 851 Approval Application No: N/A ;Decision: N/A Prepared By: KXJM Checked By: DAK8 _____
Approved By:
Revised by: Y:\GenlSvcs\Land\R_W 2018\Marin\31320249_Hawthorne Rule 20B, Tiburon\Working Files\31320249D.docx
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Fredrick C. Winston Lisa B. Winston
650 Tiburon Boulevard
Tiburon, CA 94920 NOTICE OF INTENTION TO ADOPT A RESOLUTION OF NECESSITY TO ACQUIRE AN EASEMENT ACROSS A PORTION OF PROPERTY BY
EMINENT DOMAIN; AUTHORIZING COMMENCEMENT OF LITIGATION TO ACQUIRE EASEMENT AND FOR ORDER OF POSSESSION TOWN OF TIBURON
Re: Notice of Hearing Regarding Adoption of a Resolution of Necessity to Acquire an
Easement by Eminent Domain [California Code of Civil Procedure section 1245.235]. 1. Notice of the Intent of the Town of Tiburon to adopt a Resolution of Necessity and Hearing. The Town Council of the Town of Tiburon (“Town Council”)
intends to hold a hearing to consider whether a Resolution of Necessity should be
adopted which, if adopted, will authorize the Town of Tiburon (“Town”) to acquire the real property described herein by eminent domain for the purpose of undergrounding existing overhead utilities as part of the Hawthorne Utility Undergrounding District Project (“Project”). Attached hereto as Exhibit A is a legal description and plat map
depicting the property which is required for the Project. You are being sent this notice
as your name appears on the last equalized Marin County Assessment Roll for this property.
DATE OF HEARING: May 5, 2021
TIME OF HEARING: 5:00 p.m., or as soon as the matter may be heard
PLACE OF HEARING: Consistent with the California Governor’s
Executive Order N-29-20 promoting social distancing, there will be no physical or in-person meeting location available to the public. Instead, the meeting will be conducted by videoconference.
The meeting will be accessible to the property
owners and/or their representative to attend and give public comment via zoom. More information on how to participate in the hearing will be posted on the Town’s agenda 72 hours prior to the
hearing date.
2. Notice of Your Right to Appear and Be Heard. You have the right to appear and be heard before the Town Council at the above scheduled hearing on the following matters and issues, and to have the Town Council give consideration to your
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testimony prior to deciding whether or not to adopt the proposed Resolution of Necessity:
(a) Whether the public interest and necessity require the Project;
(b) Whether the Project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury;
(c) Whether the easement sought to be acquired is necessary for the Project;
(d) Whether the Town has complied with all conditions and statutory
requirements necessary to exercise the power of eminent domain to acquire the property,
as well as any other matter regarding the right to take said easement by eminent domain, including but not limited to, making the offer required by Government Code Section 7267.2(a);
(e) The Town has fully complied with the California Environmental Quality
Act, Public Resources Code section 21000 et seq.
The statutes which authorize the Town to acquire the easement by eminent domain for the Project include, but are not limited to, Article 1, Section 19 of the Constitution of the State of California, and Section 37350.5 of the Government Code, and Section 1230.010 et seq. of the Code of Civil Procedure.
3. Failure to File a Written Request to Be Heard Within Fifteen (15) Days After the Notice was Mailed Will Result in Waiver of the Right to Appear and Be Heard. If you desire to be heard or to present information to the Town on this resolution, you are required by law to file a written request with the Town Clerk no later than fifteen (15) days from the date that this notice was mailed. You must file your
request to be heard at the Office of the Town Clerk, Town of Tiburon, Town Hall, 1505
Tiburon Boulevard, Tiburon, CA 94920.
If you mail a request to be heard, please keep in mind that it must be actually received by the Town Clerk no later than fifteen (15) days after the date this notice is mailed. See Code of Civil Procedure section 1245.235(b)(3).
If you elect not to appear and be heard at this hearing, your decision not to appear and be heard will constitute a waiver of your right to challenge the right of the Town to acquire the property by eminent domain. Thus, the matters described in the Resolution of Necessity will be deemed to be established.
4. You Will Not Waive the Right to Claim Greater Compensation if
You Do Not Appear at the Hearing. The amount of compensation to be paid for the
property will not be decided or heard at this hearing. Your nonappearance at this noticed hearing will not prevent you from claiming compensation in an amount to be determined by a court of law under the laws of the State of California. This notice is
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not intended to foreclose further ongoing negotiations between you and the representatives of the Town on the amount of compensation to be paid to you for your
property. At this hearing, the Town Council will not make any determination about the
amount of money to be paid for your property or to be offered to you.
TOWN OF TIBURON
By:
Steven Palmer, PE Director of Public Works Dated and mailed on: April 16, 2021
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