City of Goleta v. Southern California Gas Company, et al
City of Goleta v. Southern California Gas Company, et al
Case Number
23CV03430
Case Type
Hearing Date / Time
Wed, 11/08/2023 - 10:00
Nature of Proceedings
Plaintiff City of Goleta’s Motion for Order for Prejudgment Possession
Tentative Ruling
For Plaintiff City of Goleta: Scott Ditfurth; Jeffrey Wilson; Sergio F. Benedett
For Defendants County of Santa Barbara, Santa Barbara Flood Control and Southern California
Gas Company: No appearance
RULING
For the reasons set forth herein Plaintiff City of Goleta’s motion for order for prejudgment possession is granted. The Court will sign the proposed order submitted by City of Goleta.
Background
Plaintiff City of Goleta (“City”) filed its complaint in eminent domain on August 8, 2023, against Defendants County of Santa Barbara, Santa Barbara Flood Control and Southern California Gas Company.
As alleged in the complaint:
“City seeks to acquire, by eminent domain, a Permanent Easement for public recreational trail purposes and an associated Temporary Construction Easement interests over portions of certain real property adjacent to the San Jose Creek in Goleta, California, in the County of Santa Barbara, California, more particularly described as Assessor Parcel Number 071-200-011, for construction of the City of Goleta’s San Jose Creek Multipurpose Path (‘Project’).” (Complaint, ¶ 2.)
“Pursuant to Code of Civil Procedure § 1245.235, City provided notice of a public hearing to all persons whose names appear on the last equalized Santa Barbara County Assessment Roll for properties affected by the Project, held said public hearing on June 20, 2023, at City Hall, 130 Cremona Drive #B, Goleta, California 93117, and gave each person a reasonable opportunity to appear and be heard on the matters referenced in Code of Civil Procedure
§ 1240.030.” (Complaint, ¶ 3.) “The purpose of the Project is to close the multipurpose path gap in the regional active transportation network. When complete, the Project will provide a direct and continuous route for bicyclists and pedestrians from north of Calle Real to commercial and residential areas within Goleta Old Town and to the existing Class I Atascadero Creek Bikeway, providing access to Goleta Beach Park, the University of California Santa Barbara (UCSB) and to the City of Santa Barbara.” (Complaint, ¶ 5.)
Southern California Gas Company is the record owner of the property. (Complaint, ¶ 10.) Santa Barbara Flood Control and County of Santa Barbara have right of way easements on the property. (Ibid.)
“On June 20, 2023, after a noticed hearing, and by at least a two-thirds vote of all members of its City Council, City adopted Resolution No. 2023-37, authorizing City to acquire a Permanent Easement and a Temporary Construction Easement in the Property by eminent domain.” (Complaint, ¶ 13.)
City filed the present motion for order of prejudgment possession on August 10, 2023, and timely served it on Defendants. The motion is unopposed.
Analysis
“(a) At the time of filing the complaint or at any time after filing the complaint and prior to entry of judgment, the Plaintiff may move the Court for an order for possession under this article, demonstrating that the Plaintiff is entitled to take the property by eminent domain and has deposited pursuant to Article 1 (commencing with Section 1255.010) an amount that satisfies the requirements of that article.
“The motion shall describe the property of which the Plaintiff is seeking to take possession, which description may be by reference to the complaint, and shall state the date after which the Plaintiff is seeking to take possession of the property. The motion shall include a statement substantially in the following form: “You have the right to oppose this motion for an order of possession of your property. If you oppose this motion you must serve the Plaintiff and file with the Court a written opposition to the motion within 30 days from the date you were served with this motion.” If the written opposition asserts a hardship, it shall be supported by a declaration signed under penalty of perjury stating facts supporting the hardship.
“(b) The Plaintiff shall serve a copy of the motion on the record owner of the property and on the occupants, if any. The Plaintiff shall set the Court hearing on the motion not less than 60 days after service of the notice of motion on the record owner of unoccupied property. If the property is lawfully occupied by a person dwelling thereon or by a farm or business operation, service of the notice of motion shall be made not less than 90 days prior to the hearing on the motion.
“(c) Not later than 30 days after service of the Plaintiff's motion seeking to take possession of the property, any Defendant or occupant of the property may oppose the motion in writing by serving the Plaintiff and filing with the Court the opposition. If the written opposition asserts a hardship, it shall be supported by a declaration signed under penalty of perjury stating facts supporting the hardship. The Plaintiff shall serve and file any reply to the opposition not less than 15 days before the hearing.
“(d)(1) If the motion is not opposed within 30 days of service on each Defendant and occupant of the property, the Court shall make an order for possession of the property if the Court finds each of the following:
“(A) The Plaintiff is entitled to take the property by eminent domain.
“(B) The Plaintiff has deposited pursuant to Article 1 (commencing with Section 1255.010) an amount that satisfies the requirements of that article.
“(2) If the motion is opposed by a Defendant or occupant within 30 days of service, the Court may make an order for possession of the property upon consideration of the relevant facts and any opposition, and upon completion of a hearing on the motion, if the Court finds each of the following:
“(A) The Plaintiff is entitled to take the property by eminent domain.
“(B) The Plaintiff has deposited pursuant to Article 1 (commencing with Section 1255.010) an amount that satisfies the requirements of that article.
“(D) The hardship that the Plaintiff will suffer if possession is denied or limited outweighs any hardship on the Defendant or occupant that would be caused by the granting of the order of possession.
“(e)(1) Notwithstanding the time limits for notice prescribed by this section and Section 1255.450, a Court may issue an order of possession upon an ex parte application by a water, wastewater, gas, electric, or telephone utility, as the Court deems appropriate under the circumstances of the case, if the Court finds each of the following:
“(A) An emergency exists and as a consequence the utility has an urgent need for possession of the property. For purposes of this section, an emergency is defined to include, but is not limited to, a utility's urgent need to protect the public's health and safety or the reliability of utility service.
“(B) An emergency order of possession will not displace or unreasonably affect any person in actual and lawful possession of the property to be taken or the larger parcel of which it is a part.
“(2) Not later than 30 days after service of the order authorizing the Plaintiff to take possession of the property, any Defendant or occupant of the property may move for relief from an emergency order of possession that has been issued under this subdivision. The Court may modify, stay, or vacate the order upon consideration of the relevant facts and any objections raised, and upon completion of a hearing if requested.” (Code Civ. Proc., § 1255.410.)
Pursuant to the proofs of service filed on August 22, 2023, Southern California Gas Company was served with the amended motion on August 15, 2023. The County of Santa Barbara and Santa Barbara Flood Control were served on August 17, 2023. No opposition has been filed.
City supports its motion with the declaration of the Senior Project Manager for the City of Goleta Teresa Lopes.
Lopes declares: “The City’s population is currently underserved by park and open spaces. The Project will construct a public recreational trail along San Jose Creek to connect residential areas, businesses, education, shopping, and services north of highway 101 to residential areas and commercial areas south of the freeway in Old Town Goleta, as well as UC Santa Barbara. Once complete, the Project will benefit City by providing citizens with a safe path that connects to parks, open spaces, businesses, services, and schools. It will also enable the residents of Goleta a safe place to exercise and come together.” (Lopes Dec., ¶ 3.) “Acquisition of the Property interests mentioned above are needed for the construction of the Project and will benefit the community by providing enhanced traffic flow safety for both vehicular and pedestrian traffic. The immediate need for the Project is to acquire the Property so that the Project may proceed to construction. City has retained Hamner, Jewell & Associates, an acquisition and relocation firm, to send Right of Way acquisition offers to the Property owners seeking the requested easements.” (Lopes Dec., ¶ 4.) “City conducted a thorough analysis and determined that the Property uniquely satisfies any engineering, public health and environmental issues and is the most compatible with the public good (and with the least private injury).” (Lopes Dec., ¶ 5.) The property was appraised and an offer of just compensation was made to the property owners. (Lopes Dec., ¶ 7.)
“The City has an immediate and overriding need for possession of the Property prior to judgment. The City’s acquisition of a Permanent Easement and Temporary Construction Easement in the Property related to the Project is necessary to meet federal funding requirements and to provide for an unencumbered public multipurpose path within the City of Goleta, as well as to avoid interruption of the construction of the Project. The Project will benefit City and its residents by providing job creation, workforce development, and the creation of enhanced traffic flow and vehicular and pedestrian safety. The viability of the Project depends on development costs, which rely on materials, timing and market conditions. These conditions dictate whether City can finance this particular project. Presently, the market conditions are ideal for City to pursue the Project. City requires prejudgment possession of the Property before market conditions change. Without prejudgment possession of the Property, City will lose precious months of predevelopment work relating to environmental testing, zoning and entitlements, architecture, and engineering. As City’s development schedule begins to slide, construction costs will increase beyond that which can be anticipated in the proposed Project scope, which could ultimately undermine the entire Project. Such delay could result in a loss of significant resources, therefore creating a substantial hardship to City in terms of both time and money.” (Lopes Dec., ¶ 10.)
“The Project will impact 13 parcels that are not owned by City, including the subject Property. A Permanent Easement and Temporary Construction Easement are required from this Property to construct the Project. No one will need to be displaced from the Property if a Permanent Easement and a Temporary Construction Easement in the Property are acquired by the City. The Property is needed for the construction of the Project and will benefit the public by providing enhanced traffic flow for vehicles, bicyclists, and pedestrians.” (Lopes Dec., ¶ 15.)
City filed a Notice of Deposit on August 8, 2023, which reflects a deposit of $14,300.00 to the State Treasurer’s office for deposit in the State of California Condemnation Deposits fund as probable just compensation for the real property sought to be acquired. The appraisal by John Gobbell, Jr., MAI reflects a fair market value for probable just compensation for the permanent easement and temporary construction easement in the amount of $14,300.00.
As City has shown that it is entitled to take the property by eminent domain and that they have deposited adequate funds. As stated above, the motion is unopposed. The Court finds that there is an overriding need for City to possess the property prior to the issuance of final judgment in the case, and City will suffer a substantial hardship if the application for possession is denied or limited. The Court further finds that the hardship that City will suffer if possession is denied or limited outweighs any hardship on the Defendants that would be caused by the granting of the order of possession.
As such, the motion will be granted. The Court has reviewed the proposed order, submitted by City, and finds that it meets all the requirements of Code of Civil Procedure section 1255.460.