Summary
Staff recommends that the Board adopt the Resolution of Necessity to authorize acquisition by eminent domain of the 18.047+/- acre Property for the Bryte Landfill Remediation Project (Project) to be implemented by the Sacramento Area Flood Control Agency (SAFCA). The Old Bryte Landfill (Landfill) has long been a potential source of environmental contamination and a potential liability to the County. As part of the Project, SAFCA will relocate contaminated waste from the Landfill and a drainage canal north of the Landfill to a Corrective Action Management Unit (CAMU) site on the Property, where the waste will be safely contained. SAFCA will reimburse Yolo County for all costs of acquiring the Property by eminent domain, including attorneys’ fees.
Project History
The Landfill is a large mound occupying a 16.69-acre property in Yolo County at 50035 County Road 126, off Old River Road, 1 mile north of the City of West Sacramento, California. The Landfill property was used as a burn dump from approximately 1940 through 1974 and possibly as late as 1981. Materials disposed of in the Landfill included mostly municipal solid waste and construction debris collected from surrounding cities including Bryte, Broderick, and West Sacramento.
In November 1987, the Yolo County Health Department deemed the Landfill a public nuisance and ordered its cleanup. A burn plan was issued and the site was cleaned up to the satisfaction of the Central Valley Regional Water Quality Control Board (RWQCB) and the Yolo County Health Department. Since then, various State and local agencies have continued to require and monitor additional clean-up efforts, largely due to the possible presence of heavy metals, lead, PCBs, and other toxic materials. In 2005, the then-owner of the Landfill site, Andco Farms, Inc. (Andco), filed suit against the County, as well as other agencies, for contribution, indemnification, and other legal theories for clean-up costs due to the County’s past ownership of the Landfill. The County settled with Andco in 2008, whereby Andco assumed responsibility for remediation and containment activities of the Landfill. In the years that followed, Andco faced a number of enforcement actions by Yolo County Environmental Health, and the site remained a source of potential contamination. Recently, SAFCA acquired the Landfill site for remediation.
The Bryte Landfill Remediation Project (Project) is sponsored by SAFCA under an agreement between SAFCA and the California Department of Toxic Substances Control (DTSC). The Project will involve the relocation of waste material from the Landfill to a CAMU site on the Property, where it will be safely contained.
The Property proposed for acquisition to host the CAMU consists of the fee simple interest in approximately 18.047+/- acres of land, part of Assessor’s Parcel Number (APN) 042-340-004. The Property is located east of County Road 124 and north of County Road 126, in an unincorporated area of Yolo County to the northwest of West Sacramento. The Property is contiguous to the Landfill, which is located to the south of the Property. A map showing the Property and a legal description of the Property are attached to this staff report as Attachments A and B, respectively. The Property is part of a 1,326-acre parcel of land owned by Lexington Ranch, LLC that is currently in agricultural use. The acquisition of the Property would not interfere with the continued use of the remainder of the larger parcel for agriculture.
Yolo County has joined in implementing the current Project to remediate the Landfill and because SAFCA lacks the power to acquire property by eminent domain in Yolo County, which is outside SAFCA’s jurisdiction. The Project, however, will affect waters in the Yolo and Sacramento Bypasses that connect with the Sacramento River, which is within SAFCA’s jurisdiction. Pursuant to a cost-sharing agreement between Yolo County and SAFCA, dated June 6, 2017, as amended April 23, 2018 (Attachment D), SAFCA has paid the fees of the County’s attorneys, appraisers, and consultants incurred to date in this acquisition process and would also pay the costs of eminent domain, including the fees of the County’s appraiser and attorneys. Accordingly, Yolo County will not be responsible for any of the costs of acquiring the Property.
Because the Property is within Yolo County, the County is authorized to acquire it by eminent domain under California Government Code section 25350.5 and California Code of Civil Procedure sections 1240.010, 1240.040, and 1240.610. These statutes authorize the Board of Supervisors to acquire by eminent domain any property necessary to carry out any of the powers or functions of the County, including protection of human health and the environment. Yolo County would transfer title to SAFCA in the eminent domain action.
Appraisal and Negotiations to Acquire the Property
The only issue before the Board for this item is whether to adopt the Resolution of Necessity to acquire the Property. If the Board adopts the Resolution, the value of the Property will be determined at a trial in the eminent domain action. Accordingly, this discussion of the valuation of the Property is for informational purposes only.
SAFCA acquired title to the Landfill in early 2018 via a voluntary purchase from Andco. On February 22, 2018, SAFCA and Yolo County sent Lexington Ranch, LLC, the owner of the Property (“property owner”), a Notice of Decision to Appraise the Property (Attachment E). The Notice of Decision to Appraise was accompanied by a brochure explaining property acquisition procedures (Attachment F). Prior to this time, the County and SAFCA also obtained a preliminary title report describing the Property (Attachment G).
The County and SAFCA retained Brent Blaesi, MAI, to appraise the Property. Mr. Blaesi is a highly reputable appraiser based in Sacramento with extensive experience appraising agricultural properties in the Sacramento area. Mr. Blaesi completed his appraisal on June 29, 2018. The Summary of Basis for Appraisal is Attachment H. The appraisal concluded that the highest and best use for the Property, which is currently planted with row crops, is development for a pistachio orchard. Given this highest and best use, and based on a comparison of similar, nearby properties that sold within a reasonable time of the valuation, Mr. Blaesi determined that the value of the Property is $13,000 per acre.
The appraisal assessed three different acquisition alternatives, consisting of different configurations of land to be acquired, to provide the County, SAFCA, and the owner with flexibility. “Alternative 1,” the acquisition of 18.047+/- acres of land, is the smallest land area of the three alternatives and consists of only the land needed to accommodate the CAMU and complete the Project. Alternative 1 is, therefore, the most efficient and economical of the alternatives. Accordingly, the County and SAFCA offered to purchase the Property – the land designated in Alternative 1.
Based on the proposed acquisition area, Mr. Blaesi also considered whether the County’s acquisition of the Property would cause severance damages to the remainder of the owner’s land. Severance damage is the amount of damage to the remainder due to the public agency’s acquisition of a part of a larger parcel, reduced by the amount of the benefit to the remainder as a result of the proposed project. The appraisal noted that a portion of the remainder would become un-farmable, while the farmable area of a different portion of the remainder would be increased by the acquisition. Mr. Blaesi concluded that the net severance damages is $19,318. Adding the net severance damages to the value of the Property, Mr. Blaesi concluded that the total just compensation for the Property is $252,000 ($13,000 per acre x approximately 18.047 acres (including minor adjustments for the value of certain easements) + $19,318 severance damages, rounded to the nearest thousand dollars).
Government Code Section 7267.2 requires that a public agency seeking to acquire property by eminent domain must offer the property owner the full amount of the agency’s appraisal of the fair market value of the property before commencing eminent domain. On August 1, 2018, the County and SAFCA offered to purchase the Property for $252,000, the full appraised value of the Property. This offer is Attachment I. The County and SAFCA then proceeded to negotiate with the property owner to attempt to reach a negotiated purchase of the Property. A log of the contacts between the property owner and the right of way consultant retained by the County and SAFCA to negotiate with the owner, Overland, Pacific, and Cutler (OPC), is Attachment J.
On October 11, 2018, the property owner made a counter-offer for $18,090 per acre, based on an appraisal that valued Lexington’s larger parcel at $27,860 per acre.
The property owner’s appraisal, along with another appraisal provided by the property owner, are Attachments M and N. In investigating the appraisals provided by the property owner, the County and SAFCA identified numerous flaws. First, they determined that the appraisals disregarded Lexington’s purchase of the subject property itself in July 2015 for $11,266 per acre. The appraiser indicated that he disregarded the sale because he concluded that the seller was under duress. But the County and SAFCA determined that the seller was a sophisticated entity with considerable experience buying and selling agricultural land in the market area of the Property. There was no evidence that the seller was under any urgency to sell, had any unusual motivation, or was influenced by atypical market factors. Additionally, the property owner’s appraiser indicated that no adjustments for time between the sale of the subject property in 2015 and March of 2017 would be warranted. Finally, most of the comparable sales used by the property owner’s appraisal were located outside of Yolo County and were not relevant.
The County and SAFCA also investigated an October 19, 2018, sale by Russell Miller of agricultural land adjacent to the Property for $13,643 per acre. Information related to this sale can be found in Attachments O, P, and Q. The Miller property had comparable or superior soils compared to the Property, comparable access, and the buyer planned to plant orchards. Additionally, the Miller property sold in an arms-length, fair market sale. Based on this comparable sale and the analysis of the appraisals described above, on November 5, 2018, the County and SAFCA made a second offer to the property owners of $13,643 per acre. The second offer letter is Attachment K. The Property owner responded with a verbal counteroffer of $15,800 per acre for 68 acres of the Property (corresponding to Alternative 2 in the appraisal conducted by Mr. Blaesi). The County and SAFCA did not accept the counteroffer because the owner provided no market data to support a value of $15,800 per acre, and the sale of the subject property in 2015 and the Miller sale are strong evidence that the value of the Property is no greater than $13,643 per acre.
Because these negotiations failed to achieve a settlement, and the Project schedule requires that the County and SAFCA take possession of the Property in the Spring of 2019 to allow sufficient time to relocate the Bryte Landfill, it is necessary to commence acquisition of the Property by eminent domain at this time. On November 21, 2018, the County sent the property owner a Notice of Hearing on Resolution of Necessity to Condemn Real Property for the Bryte Landfill Remediation Project (Attachment L).
County and SAFCA staff have made every effort to negotiate a voluntary purchase of the Property. Although these efforts have not succeeded to date, the parties are free to continue negotiations following the filing of an eminent domain action.
The Resolution of Necessity
The adoption of a Resolution of Necessity is a necessary step in the process of acquiring property by eminent domain. See Code of Civil Procedure § 1245.220. The Resolution of Necessity contains the Board’s findings that:
- The public interest and necessity require the Project.
- The Project is planned and located in the manner that will be most compatible with the greatest public good and the least private injury.
- The property sought to be acquired is necessary for the Project.
- The offer required by Section 7267.2 of the California Government Code has been made to the owner of record.
To pass, the Resolution of Necessity requires a vote of two-thirds of all the members of the governing body, or 4 of 5 Supervisors. Id. § 1245.240.
The amount of compensation the County ultimately pays to acquire the Property is not at issue in the Resolution of Necessity, only whether the County approves the filing of an eminent domain action to acquire the Property. The amount of compensation will be determined in a court trial following the adoption of the Resolution of Necessity. SAFCA will ultimately reimburse Yolo County for all County expenses to acquire the property.
Here, the Project and the proposed acquisition of the Property satisfy all of the conditions required for the Board to make the necessary findings described above.
The public interest and necessity require acquisition of the Property for the Project. The purpose of the Project is to remediate the Landfill to protect human health and the environment. The Property is required for the construction of a CAMU, designed consistent with Title 27 and Title 22 section 66264.552 of the California Code of Regulations and DTSC’s Proven Technologies and Remedies Guidance for Remediation of Metals in Soil. The Property is contiguous to the Landfill. The CAMU will contain all waste material removed from the Landfill, impacted sediment within the drainage canal on the north side of the Landfill, and impacted native soil underlying the Landfill. Moving the hazardous waste currently contained in the Landfill and the drainage canal north of the Landfill to the CAMU site, rather than remediation of the Landfill in place, is reasonable and necessary because (a) the CAMU would include design features that would better protect the environment, such as a membrane lining the bottom of the CAMU that would prevent hazardous materials from leaching into groundwater; (b) hazardous waste in the drainage canal must be removed and relocated, and cannot be placed in the Landfill; (c) the proximity of the drainage canal to the Landfill creates the risk that water flooding the drainage canal could inundate the Landfill and spread hazardous materials to waterways and land beyond the Landfill; and (d) relocating the Landfill to a CAMU is estimated to be less expensive than remediating the Landfill in place. An analysis comparing remediation in place and relocation to a CAMU is attached as Attachment R. Finally, relocating the Landfill mitigates risks to the levees adjacent to the Landfill site. An analysis discussing the risks to the levees of capping the Landfill is attached as Attachment S.
The Project will be most compatible with the greatest public good and the least private injury because it will provide maximum benefits to public health and the environment related to the safe containment of waste materials while simultaneously (a) minimizing the amount of private land that will be acquired and (b) complying with the requirements of 22 California Code of Regulations section 66264.552 for remediation of toxic substances. The Project incorporates community input and advice, technical and safety considerations, and multiple agency reviews. Additionally, to avoid any disruption to the remainder of the larger parcel owned by Lexington, of which the Property is a small part, the proposed acquisition would reserve to Lexington an access easement for a farm road and an irrigation pipeline easement to allow continued farming of the remainder.
The Property is necessary for the Project because the Property is contiguous with the Landfill, as required by 22 California Code of Regulations sections 66264.552. The CAMU cannot be placed within the adjacent Yolo Bypass or the Sacramento Bypass because these bypasses are flooded during winter storm events and such flooding could result in an environmental hazard due to potential inundation of the relocated landfill waste by the flood waters.
The Eminent Domain Process
Should the Board decide to adopt the Resolution of Necessity, the County’s attorneys would file a complaint in eminent domain in Yolo Superior Court and serve a summons and complaint on all persons having an interest in the Property. See Code of Civil Procedure §§ 1250.110, 1250.120. To avoid any delay in implementing the Project, the County would file a motion for immediate possession of the Property soon after filing and serving the complaint – called a “quick take” procedure – to allow the County to take possession of the Property for transfer to SAFCA and start the Project prior to resolving the amount of just compensation required for the Property. Id. § 1255.410. Ninety days after the motion for immediate possession is filed, the court would hold a hearing to determine whether to grant the order of possession. Id. § 1255.410. Prior to filing the motion for immediate possession, the County would need to deposit the full amount of the County’s appraisal with the Treasurer of the State of California. See id. § 1255.010. If the Superior Court grants the County’s motion for the quick take, the Property owner could withdraw the amount of the County’s deposit.
Following resolution of the quick take motion, the case would be set for trial. Prior to the trial, the parties would depose each other’s appraisal witnesses to learn what evidence each party intends to present at the trial. The Court would then hold a final settlement conference. If the parties are unable to reach a settlement, there would be a trial to determine the amount of just compensation for the Property. However, as stated above, the parties could agree on a negotiated sale of the Property at any point in this process.
Environmental Review
As a responsible agency, the County may use the environmental review conducted by the lead agency for CEQA purposes. The findings required by the County are contained in Attachment U.
SAFCA completed the environmental review for the Project required under the California Environmental Quality Act (“CEQA”). In August 2017, SAFCA issued a draft initial study and proposed mitigated negative declaration (Attachment C-1), followed by a final mitigated negative declaration in September 2017, (Attachment C-2), and a Mitigation and Monitoring Reporting Program (“MMRP”) (Attachment C-3). SAFCA adopted the final MND on September 21, 2017, by Resolution No. 2017-078 (Attachment C-4). In that resolution, the SAFCA Board of Directors found that the IS/MND was prepared, published, circulated, and considered in accordance with the requirements of CEQA and the CEQA Guidelines; that it constituted an adequate, accurate, objective, and complete MND in accordance with the requirements of CEQA and the State CEQA Guidelines; that it reflected the independent judgment and analysis of the Board of Directors; and that there was no substantial evidence that the Project will have a significant effect on the environment.
On May 17, 2018, the SAFCA Board of Directors adopted Addendum No. 1 to the Final MND (Attachment C-5), and a revised MMRP (Attachment C-6). The Addendum addressed revisions to the design of the CAMU. In Resolution No. 2018-026 (Attachment C-7), the Board of Directors found that Addendum No. 1 to the Final MND and the Revised MMRP were prepared and considered in accordance with the requirements of CEQA and the CEQA Guidelines; that they constituted an adequate, accurate, objective, and complete addendum to an MND and an MMRP in accordance with the requirements of CEQA and the State CEQA Guidelines; that they reflected the independent judgment and analysis of the Board of Directors; and that, on the basis of the whole record before it, there was no substantial evidence that the Project will have a significant effect on the environment.
The California Department of Water Resources (DWR) has circulated a draft Environmental Impact Statement/Environmental Impact Report for the Lower Elkhorn Basin Levee Setback (LEBLS) Project. The LEBLS project would involve, among other things, expanding the Yolo and Sacramento Bypasses adjacent to the existing Landfill. The Bryte Landfill Remediation Project is not part of the LEBLS project.
Fiscal Information
The amount of just compensation is not at issue at this time. Additionally, SAFCA will reimburse Yolo County for the costs of acquiring the Property, including an eminent domain action. |