HomeMy WebLinkAboutRes2010-025 Sponsored by: Oates
CITY OF SEWARD, ALASKA
RESOLUTION 2010 -025
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD,
ALASKA, AUTHORIZING EMINENT DOMAIN PROCEEDINGS TO
ACQUIRE PROPERTY RIGHTS NECESSARY FOR CONSTRUCTION OF
THE NORTH FOREST ACRES LEVEE/ROAD PROJECT ACROSS TRACT
B, DIECKGRAEFF - GILLESPIE REPLAT
WHEREAS the administration has engaged in negotiations regarding the acquisition of
property rights for the North Forest Acres Levee/Road (the "Project "); and
WHEREAS, successful negotiations have been completed with owners of 20 of the 21
parcels needed to construct the Project; and
WHEREAS, the City has made every reasonable effort to acquire Tract B, Dieckgraeff-
Gillespie Replat by negotiated agreement in accordance with applicable law; and
WHEREAS, the City offered to obtain a driveway permit from the Alaska Department of
Transportation and Public Facilities and to relocate the existing unpermitted driveway, despite
acknowledging that the Project will not touch the existing driveway (estimated value, approximately
$8,500.00); and
WHEREAS, further delay as a result of continued non - productive negotiations
would have a detrimental effect upon the cost and scheduling of the Project; and
WHEREAS, the Decisional Document presented at this meeting fairly summarizes the
attempts to reach a negotiated settlement and the situation now faced by the City, supporting use of
the City's power of eminent domain in this instance.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF SEWARD, ALASKA that:
Section 1. The decisional document in the form presented at this meeting has been reviewed
and accepted by the City Council and is approved for use in filing a declaration of taking for the
property described at Tract B, Dieckgraeff - Gillespie Replat.
Section 2. It is hereby determined that a public use easement is to be acquired across Tract
B, Dieckgraeff - Gillespie Replat as further described in the attached decisional document. This
acquisition is hereby determined to provide the greatest public good for the least private injury.
Section 3. The City Manager and City Attorney are authorized to institute eminent domain
proceedings including the use of a declaration of taking against Tract B, Dieckgraeff- Gillespie Replat
to proceed with the construction of the North Forest Acres Levee/Road Project.
CITY OF SEWARD, ALASKA
RESOLUTION 2010 -025
Section 4. The City is willing to pay to the owners (Ray Gillespie, Tom Gillespie, and
Catherine Weiford) fair market value for the public use easement and in addition, an amount equal to
fair market fee value for damages for the area north of the easement area. Fair market easement
value and fair market fee value for the north remnant after the exercise of eminent domain is $46,
300, based on the appraisal report dated April 6, 2009 by MacSwain Associates, LLC, or as
determined by a second appraisal to be obtained by the City, whichever is higher.
Section 5. The amount of $51,000, constituting the appraised fair market value plus
approximately 10 %, is hereby appropriated from fund balance account no. 666- 6664 -3050 to account
no. 666- 6664 -5790 for the purposes stated above.
Section 6. This resolution shall take affect 30 days from adoption and posting.
PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 22 day of
March, 2010.
THE CITY IF SEWARD, ALASKA
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W illard E. Dunham, Mayor
AYES: Valdatta, Bardarson, Keil, Shafer, Dunham
NOES: None
ABSENT: Smith
ABSTAIN: None
ATTEST:
J ean Lewis, CMC � ,, . a ,S
City Clerk 40 a"
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(City Seal)
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COUNCIL AGENDA STATEMENT
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Meeting Date: March 22, 2010 . ; ;;
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From: Phillip Oates, City Manager
Agenda Item: Resolution 2010 -025, authorization to proceed with
eminent domain for Tract B, Dieckgraeff - Gillespie Replat.
BACKGROUND & JUSTIFICATION:
For more than ten years, the City of Seward has been working with state and
federal agencies to finalize permitting for construction of the North Forest Acres
levee /road project. This project resulted from a flood mitigation task force developed at
the request of FEMA, following major flood events in Seward during the past twenty
years. The task force was comprised of many local, state, and federal agencies which all
shared the goal of reducing future flooding impacts to public and private property. The
agencies included FEMA, State of Alaska DOT, the City of Seward, Kenai Peninsula
Borough, the State floodplain manager, the Alaska Railroad, and other agencies charged
with providing for public safety and health. This task force identified a number of major
infrastructure projects which would mitigate future flooding, protecting life and property.
These projects included elevation of the Seward Highway, reconstruction of the railroad
trestles to eliminate build -up of debris, and construction of a levee, to name a few.
In efforts to obtain permits to construct the North Forest Acres levee /road, the
City fought to construct the levee as far to the north as possible, in order to minimize the
impact on property owners and provide as much protection of property as possible. The
agencies preferred the levee to be further south, in order to minimize the impact on
wetlands and fish habitat. This conflict resulted in a decade -long effort to determine the
exact alignment of the levee /road that would gain acceptance from all agencies involved
in the project. Given the protracted debate over alignment, it is clear that this final piece
of property is key to proceeding with the project.
This final piece of property is key to the project for a number of reasons. First,
agencies debated for more than a decade before finally agreeing to the alignment which
includes this parcel. Second, its location adjacent to the Seward Highway makes it
subject to State of Alaska Department of Transportation and Public Facilities regulations,
which maintains minimum distance requirements for siting a road south of the existing
bridges. And third, its location to the extreme east of the project makes it critical due to
the need to channel water as far to the north as possible, in order to prevent the same
flood challenges experienced in the past (over- topping the highway, damage to the
railroad, airport, etc.).
After obtaining final permits for the project in 2009, the City began negotiating
with property owners to purchase the property needed for the project. To date, the City
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CITY OF SEWARD
RESOLUTION 2010 -025
Council has approved all necessary property purchases for this property, with the
exception of this final piece of property. City representatives have been in discussions
with the current property owners for more than six months, with the aim of reaching a
negotiated settlement to purchase the property. After numerous offers to the owners
based on a peer- reviewed fair market value appraisal, it is clear that a negotiated
settlement is not possible. This forms the basis for recommending to the City Council,
that the City exercise eminent domain authority in order to obtain a critical piece of
property necessary for this major public project. Further delay of this project will not
only impact the cost and scheduling of the project, but could result in the City losing the
remaining federal funding to construct the project, due to the length of time it has already
taken to finalize the project.
CONSISTENCY CHECKLIST:
Where applicable, this resolution is consistent with the Seward City Code, Charter,
Comprehensive Plans, Land Use Plans, Strategic Plan and City Council Rules of
Procedures.
INTENT:
This resolution requests that Council grant the City Manager and City Attorney authority
to pursue taking Tract B, Dieckgraeff - Gillespie Replat, using the City's power of eminent
domain and paying the owners fair market value.
ATTORNEY REVIEW: Yes
FISCAL NOTE:
The City will obtain another third -party appraisal in order to obtain updated appraisal
information and will then proceed with eminent domain authority. Costs for the appraisal
and the purchase of property at fair market value will be borne by the project.
Approved by Finance Department .2t
RECOMMENDATION:
Approve Resolution 2010 -025 authorizing the City Manager and City Attorney to pursue
use of eminent domain authority to acquire Tract B, Dieckgraeff - Gillespie Replat.
Decisional Document
North Forest Acres Levee /Road
Part 2. Decision Making Process
Prepared for:
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CP '1 E s t
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City of Seward
P.O. Box 167
Seward, AK 99664
Prepared by:
HDR Alaska
2525 C Street, Suite 305
Anchorage, AK 99503 -2832
March 2010
1 4 '
Table of Contents
Decisional Document Part 2. Property Owner Negotiations Summary
Gillespie /Weiford Property 1
Definition of Terms:
FEE Total acquisition of property
PUE Public Use Easement, City of Seward pays 100% of fair market value per foot
for the easement. City has perpetual right to use or develop the PUE area for
public streets, highway, levee, walkway, trails, utilities. Owner retains
underlying fee ownership of easement area.
Appendix A. Parcel Map of Proposed Public Use Easement
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Tract B, Dieckgraeff- Gillespie Replat: Gillespie and Weiford
Tract B, Dieckgraeff - Gillespie Replat is a 2.35 acre, undeveloped property located along
the west side of the Seward Highway south of the Resurrection River and is owned by
Raymond A. Gillespie, Tom Gillespie, and Catherine A. Weiford. The owners also own
the adjacent 4.6 acre unsubdivided parcel south of Tract B. The City of Seward (City) is
requesting eminent domain authority to acquire a 13,927 square foot public use
easement (PUE) on Tract B. The PUE is required for construction of the Forest Acres
Levee and Access Road Project.
On September 9, 2009 the City offered to purchase an 11,927 square foot (sf) PUE on
this property. Alternatively, because the owners stated they did not wish to retain
ownership of the remnant area north of the project area, the City offered to purchase the
entire Tract B in fee. The City's offer was based on independent fee appraisals and
independent fee appraisal reviews procured by the City of Seward. The City also offered
to process a Department of Transportation (DOT) driveway access permit.
On September 29, 2009 the owners' attorney questioned the need for the 2000 sf
"dogleg" portion of the PUE south of the project corridor (parallel to the Seward Highway),
pointing out that the City had not requested a corresponding "dogleg" portion of the PUE
north of the project corridor. On October 1, 2009 the City responded explaining that
because the owners stated they did not wish to retain ownership of the area north of the
road /levee the City offered to purchase all of Tract B. The City further explained that if
the owners retained ownership of the area north of the levee /road a "dogleg" easement
would also be required north of the levee /road to support the new levee /road in that area.
On December 15, 2009 the property owners presented a counter -offer substantially
higher than the City's offer. The City did not accept the counter -offer and on December
28, 2009 offered to purchase the PUE project corridor area and the remnant property
north of the PUE area as easement area or in fee. The City of Seward's revised offer
was not accepted by the owners.
On January 28, 2010 the City made a settlement offer for an increased purchase price for
easement or fee property rights and offered to decrease the size of the PUE or to acquire
a portion of the PUE as a slope easement. This offer was rejected by the owners
February 17, 2010.
The City made a substantially increased final settlement offer February 22, 2010. This
offer was rejected by the owners February 28, 2010 who presented a higher counter -offer
that was rejected by the City.
The City of Seward has made a diligent, conscientious effort to acquire the required
property rights through good faith negotiations. The City remains amenable to reaching a
mutually satisfactory settlement with the owners in lieu of litigation. Because no
agreement has been reached on acquiring the remnant area north of the corridor area in
easement or fee, it is necessary to acquire an additional 2,000 sf of PUE area north of
the project corridor. The City is willing to pay the owners full fee value for the PUE area
required, and in addition, full fee value for the north remnant area while allowing the
owners to retain ownership of that area. The City is also continuing processing the DOT
driveway permit and plans to relocate the existing driveway when the City has the right to
begin construction on the property.
In summary, failure to acquire this requested property would prohibit the necessary
construction of the project. On the balance, this design, including the PUE acquisition of
11,997 sf and an additional 2,000 sf north of the project corridor as shown on the
attached parcel map, is judged to best serve the greatest public good with the least
private harm. The owners have stated they are willing to sell the required property rights
for a fair price. The City and the owners have reached a negotiations impasse as of the
writing of this document and this property is necessary for this project. This acquisition
can be resolved in a fair and equitable manner through eminent domain proceedings.
2
E 1 /16 527 _ / /
534 TR A
Line Data /
LINE BEARING DISTANCE o -
L 1 N61 29'57"W 20.00' osi o
L2 N28'51 ' 12 E 100.00' . 52 342'
42 / / / O
L3 N6129'57"W 51.68'
L4 N29'06'04 "E 100.01' s10.°° CkL.
L5 S61'29 57 E 20.00' / / (6 71 /
L6 S29'06'0414 112.96'
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• �, Wm. Nicholas Cline �= Tract LJ ` � � /
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FOREST ACRES ' : , 9 r r, / /
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SUBDI VISION �< / • /
251 �P /,), L 0 T 4 /
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563 '41 ' ..L ; 4
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S P . ® Found Rebar & Pl. Cap LS 7328
SR 2, ,9 i South Remainder O, 010 Found Monument 610 -S, 1964
1� 0.709 Acres ,� 0. / y C:1- h $ry 4 9 • PARCEL MAP
�'r 65. 0 '� / PUBLIC USE EASEMENT
• Un s u b d i vi d e d TRACT B
/ DIECKGRAEFF- GILLESPIE REPLAT
440 CITY OF SEWARD
/ O , NORTH FOREST ACRES LEVEE PROJECT
� ° ,0 0 PARCEL NUMBER RES 017
i 0, within Section 34, T1N, R1W, S.M., Ak.
NOTES y CLINE & ASSOCIATES
1. Boundary Location for Tract B is per Plat
P.O. BOX 2703
Number 94 -12, Seward Recording District SEWARD, ALASKA 99664
2. Basis of Bearing is per Record of Survey 907 224 - 7324
Number 2008 - 22, Seward Recording District.
3. Driveway locations provided by Nelson FIELD BOOK: 08 - DATE :03 /12/10
and Associates. DWG:08 -34PAR 17PUE2 SCALE: 1 " =100'
APPENDIX A
1 0