Resolution 2638
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RESOLUTION NO. 2638
RESOLUTION OF NECESSITY OF BOARD OF DIRECTORS
OF THE SOUTH TAHOE PUBLIC UTILITY DISTRICT
TO CONDEMN PROPERTY WITH REGARD
TO THE OPERATION OF AND ACCESS TO THE
HARVEY PLACE RESERVOIR AND RELATED FACILITIES
ON THE MATTER OF INSTITUTING
PROCEEDINGS AND MAKING A
FINDING OF PUBLIC NECESSITY FOR
THE ACQUISITION OF CERTAIN
PROPERTY IN ALPINE COUNTY
OWNER: Melvin H. Schwake, Jr. and
The West Fork Trust Agreement
WHEREAS, a certain parcel of property located in Alpine County and designated as
Assessor's Parcel Number 002-230-030, more particularly located and described on the attached
Exhibit "A," which is incorporated by this reference (" Schwake Property"), is necessary for
continued access to the South Tahoe Public Utility District's ("District") Harvey Place Reservoir and
related facilities operations ("Access"); and
WHEREAS, certain stockpiled material from existing rock piles and unengineered fill
material on the District's property in Alpine County ("Rock"), more particularly located and
described on the attached Exhibit "B," stored by Melvin H. Schwake, Jr. ("Schwake") pursuant to
a prior agreement between Schwake and the District dated May 25, 1990 which is attached as
Exhibit "C" and incorporated by this reference, is necessary for existing operations of the Harvey
Place Reservoir and related facilities operations ("Operations") (Access and Operations are collec-
tively referred to as "Project"); and
WHEREAS, the District has been unable to negotiate the acquisition of the Schwake
Property and the Rock; and
WHEREAS, the District has given reasonable written personal notice and a reasonable
opportunity to appear and be heard this date on the matters referred to in Section 1240.030 of the
California Code of Civil Procedure, in accordance with Code of Civil Procedure section 1245.235;
and
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WHEREAS, on October 17, 1996, the Board of Directors of the District ("Board of
Directors") conducted a hearing on whether to adopt a Resolution of Necessity to condemn property
pursuant to Code of Civil Procedure section 1245.220 m.~. with regard to the Schwake Property
and the Rock; and
WHEREAS, the Schwake Property and the Rock are to be acquired by eminent domain
pursuant to Public Utilities Code section 15501 m ~. and Code of Civil Procedure section
1230.010 m. seq.; and
WHEREAS, the acquisition of the Schwake Property and the Rock is exempt from
further environmental review under the California Environmental Quality Act as it involves
continued access to and operations of existing facilities and is therefore subject to the Class 1
categorical exemption under Title 14, section 15301 of the California Code of Regulations, and is
further exempt from such review under Title 14, section 15061 of the California Code of Regulations
as there is no possibility that the acquisition of the Schwake Property and the Rock may have a
significant effect on the environment.
NOW, THEREFORE, BE IT FOUND, DETERMINED AND RESOLVED AS
FOLLOWS:
RESOLUTION
A. Proper and timely notice by first class mail was sent to the record owner of the
Schwake Property and the Rock, Melvin H. Schwake, Jr. and The West Fork Trust Agreement,
Melvin H. Schwake, Jr., Trustee ("Owner"), prior to the date of this hearing in accordance and
compliance with Code of Civil Procedure section 1245.235.
B. The Owner did _ did not --K- file a timely written request to appear and be
heard by the Board of Directors.
C. The Board of Directors heard, weighed and considered all oral statements, writings
(Evid. Code, ~ 250) and other information submitted by those having a right to appear and be heard
and from the District staff and counsel.
D. The District seeks to acquire the Schwake Property and the Rock for the uses and
purposes of access to and operation, construction, maintenance, inspection and repair of the Harvey
Place Reservoir and related facilities as part of the District's wastewater export system project. The
Schwake Property and the Rock are being taken for public purposes under the authority of:
1.
2.
Article I, Section XIX of the California Constitution;
California Code of Civil Procedure section 1240.010, 1240.110, 1240.120,
1240.510, 1240.610; and
California Public Utilities Code section 16404.
3.
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E. The Rock and a portion of the Schwake Property are located within the District's
jurisdictional limits and are located in Alpine County, California. The portion of the Schwake
Property outside the territorial limits of the District is being acquired for sewer related purposes, and
the District is authorized to acquire property by eminent domain for such purposes.
F. The Schwake Property and the Rock are located and described in the attached
Exhibits" A" and "B," which are incorporated by this reference.
G. The proposed acquisition of the Schwake Property and the Rock is exempt from
County building and zoning ordinances pursuant to California Government Code section 53091.
H. The Board of Directors finds that a good faith offer in the amount established as
just compensation by the District's appraiser and engineer was timely made to the Owner of the
Schwake Property and the Rock and that the District has engaged in good faith negotiations with the
Owner, all in full compliance with the letter and spirit of California Government Code sections 7267
~seq.
I. The Project falls within the existing facilities categorical exemption under CEQA
Guidelines section 15301 and 15061.
IT IS FURTHER FOUND, DETERMINED AND RESOLVED THAT:
a.
The public interest and necessity require the proposed Project.
b. The proposed Project is planned and located in the manner that will be most
compatible with the greatest public good and the least private injury.
c. The property described in this resolution is necessary for the proposed Project.
IT IS FURTHER FOUND, DETERMINED AND RESOLVED THAT: the
Schwake Property and the Rock as shown or described on Exhibits "A" and "B" be condemned in
the name of South Tahoe Public Utility District for said public purposes, as specified above and the
law firm of HATCH and PARENT, Counsel for the District, together with Robert G. Baer, General
Manager, is hereby authorized, empowered, and directed to prepare and prosecute in the name of
South Tahoe Public Utility District such proceeding or proceedings in the proper court having
jurisdiction thereof as are necessary for such acquisition.
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43017.1 :7627.1
'" WE, the undersigned, being the duly qualified and acting President of the
Board and Secretary, respectively, of the Board of Directors of the South Tahoe Public Utility
District, do hereby certify that the above and foregoing Resolution was duly and regularly adopted
and passed with a vote exceeding two thirds (2/3) of the Voting Percentages of the members of the
Board of Directors of the South Tahoe Public Utility District, at a regular meeting held on the 17th
day of October, 1996, by the following roll vote of the Board of Directors:
AYES, Directors: Wallace. Strohm, Mason, Mosbacher
NOES, Directors: Jones
ABSENT, Directors: None
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Christopher H. Strohm, President
South Tahoe Public Utility District
ATTEST:
Clerk of the B
Executive ecretary
South Tahoe Public Utility District
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APPROVED AS TO FORM:
HATCH and PARENT
By ~.-~;, /' ~ .______-
K-eviDJ. Nees0eneral Counsel
Attachments
Exhibit" A" Site Map of Schwake Property
Exhibit "B" Site Map of Rock Locations
Exhibit "C" May 25, 1990 Agreement Between Schwake and the District
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AGREEMENT
It is hereby irrevocably agreed by and between Melvin
Schwake, Jr. (hereinafter ~Schwake~) and South Tahoe Public
Utility District (hereinafter "STPUD") as follows:
1. STPUD and Schwake agree to stipulate to entry of
judgment in the case of South Tahoe Public Utility District v.
. Schwake, et ~l., No. Civ. S-'87~0039 R)..R, United States District
Court for the Eastern District or Ca1ifo=nia in the form of
Exhibit A attached hereto.
2. Schwake will sell and STPUD will buy th~ ~roperty
described in Exhibit B, attached he=.eto, with all ~ppurtenant
water rights, in fee. For said property and water rights, STPUD
shall pay $71,710.00 into Escrow Account No. ~~P2365, Inter-
County Title Company, F. O. Box 1048, Placerville, California
95667, on or before May 31, 1990, and, thereafter, five annual
payments of $115,691.60, to Schwake on July 1st, of each ye~r,
commencing on July 1, 1991.
3. The $71,710.00, and the $128~290.00 provided for
in the Judgment in the case of South Tahoe Public Utility
District v. Melvin Schwake, Jr., et al., No. Civ. S-87-0039 FAR,
United States District Court for the Eastern District of
California, both sums to be deposited by STPUD in Escrow Account
No. ALP2365,shal1 be first used to satisfy in full all liens and
encumbrances of record on the property described in Exhibit B,
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7265-1-A042690-3S1
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including the deed of trust to secure an indebtedness of
~ $180,000.00 dated February 7, 1974 and recorded March 5, 1984 in
Book 461 page 445 of Official Records of Alpine County,
California. The remainder, if any, shall be paid to Schwake.
4. Schwake will not object to any water right
transfers by STPUD involving Claim Numbers 45, 46, 47, 48, 453,
454, 4551 456, 457 and 458 as designated in the Final Decree
entered in the case of 'U.. S' :p........- ~.:. AfDine Land and ReservoIr
Company, et al., Civil No. 0-183 BRT, United States District
Court for the District of Nevada.
5. Except as provided fo~ in paragraphs 6 and 7
. .~:
below, Schwake shall remove all personal property not affixed to
the land, including the machinery loading rampl by July 1, 1990.
6. For a period of five years after the date of this
~ Agreement, Schwake shall have the right to remove stock piled
material from the existing rock piles on that portion of the
property described in Exhibit B, situated in the w ~ and
E ~ of Lot 4 of Section 5, the E ~ of Lot 15, all in ~ownship
ION, Range 20E, M.D.B. and M., solely for use on Schwake family-
owned prope=ty. Tne=e is to be no coa~ercial sale of said rock
by Schwake and Schwake shall accomplish the removal of the~cK-'
pursuant to agreed upon schedules with STPUD, and said removal
shall not compromise project operations or project facilities.
Schwake's access to remove said rock shall not be unreasonably
impeded by STPUD.
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7265-1-A042690-351
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7. For a period of one year after the date of the
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Agreement, Schwake shall have the right to remove decomposed
granite from the existing pit on the portion of the property
described in Exhibit B situated in the E ~ of Lot 16 of
Section 5, Township ION, Range 20E, M.D.B. & M., solely for use
on Schwake family-owned property, not to exceed a total of 200
cubic yards. There shall be no commercial sale of said
decomposed granite by Schwake and there shall be no pits or holes
left on the property with a wall slope in excess of one to one.
Schwake's access to remove said decomposed granite shall not be
unreasonably impeded by STPUD.
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8. Schwake agrees to effectuate the agreed settlement
of Aipine County Superior Court Action No. 963; Nadine Barthoff,
et al. vs. Melvin Schwake, Jr. to the extent that boundary line
~ adjustment documents will be recorded, including a Record of
Survey.
DATED: May 25, 1990.
SOU~H T~~OE FUBLIC UTILITY DISTRICT
By:
gQu,.j- n1oA~
"~~.-I~ /I S~/!<-~_.4 /r.
Melvin Schwake, Jr. /
Approved as to form:
KRONICK, MOSKOVITZ, TIEDEMANN & GI~~D
BY:ct~~
Frederick G. Girard, Bar No. 025033
Attorneys for Plaintiff
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7265-1-A042690-351
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WOODBURN, WEDGE & JEPPSON
By: 0.~
G. David Rober n, Esq.
Attorneys for Defendants
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4 7265-1-A042690-351
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BARP-AI r '~IUl!:~
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TO:. Alpine County Clerk
P.O. Box 158
Markleeville, Ca. 96120
C.~T 2 3 1996
BY~~
FROM: So. Tahoe Public Utility District
1275 Meadow Crest Drive
South Lake Tahoe, CA 96150
NOTICE OF EXEMPTION
Project Title:
Schwake Property and Rock Acquisition
Project Location - Specific:
Located in Alpine County. 16.23 acres
Lot 17, Section 5, T10N, R20~, MDB&M,
(Adjacent to Diamond Valley School.)
Project Location - City:
identified as a portion of
Parcel 4, APN 002-230-030.
Project Location - County:
Wood fords A!pine County
Description of nature, purpose, and beneficiaries of project:
Acquisition of this property is necessary for existing access to
and operation of the Harvey Place Reservoir and related district
facilities. Beneficiaries are district ratepayers.
Name of public agency approving projec~: South Tahoe Public Utility District
Name of person or agency carrying out project: South Tahoe Public Utility District
Exempt Status:
Exempt status under CEQA Guidelines, Sections 15061 and 15301(b).
Reasons why project is exempt:
The acquisition is necessary for the continued access to and
opertion of an existing facility.
Contact person:
Area Code/Telephone/Extension
Robert Baer
(916) 544-6474
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General Manager
Title
Signature