Preview
Scott E. Jenny, Esq. — State Bar No. 166111
JENNY & JENNY, LLP
736 Ferry Street
Martinez, California 94553
Telephone: (925) 228-1265
Facsimile: (925) 228-2841
Attorney for Defendant
D.E. II RESTAURANTS, INC.
IN THE SUPERIOR COURT OF THE STATE CALIFORNIA.
IN AND FOR THE COUNTY OF SANTA CLARA
UNLIMITED JURISDICTION
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CITY OF SANTA CLARA, a California Case No.: 19CV340508
12 Charter City
DECLARATION OF SCOTT E. JENNY IN
13 Plaintiff, SUPPORT OF DEFENDANT’S
vs. OPPOSITION TO PLAINTIFF’S
14 MOTION FOR PREJUDGMENT
POSSESSION
15 D.E. IT RESTAURANTS, INC., a California
corporation; and DOES 1-50, Hon. Peter H. Kirwan
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Defendants.
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19 D.E. II RESTAURANTS, INC. Date: October 31, 2019
20 Time: 9:00 a.m.
Cross-Complainant, Dept.: 19
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VS.
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CITY OF SANTA CLARA, a California
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Charter City and ROES 1 through 10,
24 inclusive,
25 Cross-Defendants.
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DECLARATION OF SCOTT E. JENNY IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S
MOTION FOR PREJUDGMENT POSSESSION
I, Scott E. Jenny, declare:
1 lam an attorney duly licensed to practice law in the State of California and am the
attorney for defendant and cross-complainant D.E.II RESTAURANTS, INC., herein.
2 On August 4, 2019 I emailed Gale Connor, attorney for plaintiff City of Santa
Clara, asking if he would be agreeable to a two week extension on my time to file an opposition
to plaintiff's Motion for Prejudgment Possession. On August 5, 2019 Mr. Connor emailed a
response stating that “since you granted me a 2 week extension, I have no problem doing the
same for you. Opposition due by September 13". A true and correct copy of my email and Mr.
Connor’s response is attached hereto as Exhibit A.
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3 At the December 11, 2018 public hearing on the Resolution of Necessity held by
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the City (which formed the basis of the City’s complaint in eminent domain), D.E. II
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RESTAURANTS, INC. lodged numerous objections to the taking of her property on the record.
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4 Attached hereto as Exhibit B is a true and correct copy of a resolution of necessity]
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objection letter lodged by D.E. II Restaurants, Inc.
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5 Attached hereto as Exhibit C is a true and correct copy of the Agenda Report with
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“Approval of an Exclusive Negotiating Rights Agreement with Related Santa Clara LLC for the
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development of approximately 230 acres of City-owned land in the North of Bayshore area.”
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From the April 9, 2013 City Council Meeting.
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6 Attached hereto as Exhibit D is a true and correct copy of a City slide show called
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“Exclusive Negotiating Rights Agreement with Related Santa Clara LLC” from the City’s April
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9, 2013 public meeting.
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Attached hereto as Exhibit E are true and correct copies of Pages 48 and 49 of the
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deposition transcript of Ruth Shikada.
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8 Attached hereto as Exhibit F is a true and correct copy of Page 20 of the
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deposition transcript of Ruth Shikada.
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9 Attached hereto as Exhibit G is a true and correct copy of Page 24 of the
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deposition transcript of Ruth Shikada.
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23s
DECLARATION OF SCOTT E. JENNY IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S
MOTION FOR PREJUDGMENT POSSESSION
1 10. Attached hereto as Exhibit H are true and correct copies of Pages 37 and 38 of the
deposition transcript of Ruth Shikada.
ill Attached hereto as Exhibit I is a true and correct copy of Page 19 of the
deposition transcript of Ruth Shikada.
12. Attached hereto as Exhibit J are true and correct copies of Pages 21 and 22 of the
deposition transcript of Ruth Shikada.
13. Attached hereto as Exhibit K are true and correct copies of Pages 29 through 31
of the deposition transcript of Ruth Shikada.
14. Attached hereto as Exhibit L are true and correct copies of Pages 31 and 32 of the
10 deposition transcript of Ruth Shikada.
1 15. Attached hereto as Exhibit M are true and correct copies of Pages 39 and 40 of the
12 deposition transcript of Ruth Shikada.
13 16. Attached hereto as Exhibit N is a true and correct copy of Page 46 of the
14 deposition transcript of Ruth Shikada.
15 17. Attached hereto as Exhibit O is a true and correct copy of Page 48 of the
16 deposition transcript of Ruth Shikada.
17 18. Attached hereto as Exhibit P are true and correct copies of Pages 39 and 40 of the
18 deposition transcript of Ruth Shikada.
19 19. Attached hereto as Exhibit Q is a true and correct copy of Page 67 of the
20 deposition transcript of Rosalyn Zeigler.
21 20. Attached hereto as Exhibit R are true and correct copies of Pages 17 and 18 of the
22 deposition transcript of Rosalyn Zeigler.
23 21. Attached hereto as Exhibit S is a true and correct copy of Page 25 of the
24 deposition transcript of Rosalyn Zeigler.
25 22. Attached hereto as Exhibit T is a true and correct copy of Page 44 of the
26 deposition transcript of Rosalyn Zeigler.
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3s
DECLARATION OF SCOTT E. JENNY IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S
MOTION FOR PREJUDGMENT POSSESSION
23. Attached hereto as Exhibit U are true and correct copies of Pages 32 and 33 of the
deposition transcript of Rosalyn Zeigler.
24. Attached hereto as Exhibit V is a true and correct copy of Page 43 of the
deposition transcript of Rosalyn Zeigler.
25. Attached hereto as Exhibit W is a true and correct copy of Page 54 of the
deposition transcript of Rosalyn Zeigler.
26. Attached hereto as Exhibit X are true and correct copies of Pages 47 and 48 of the
deposition transcript of Rosalyn Zeigler.
27. Attached hereto as Exhibit Y is a true and correct copy of Page 67 of the
10 deposition transcript of Rosalyn Zeigler.
11 28. Attached hereto as Exhibit Z is a true and correct copy of Page 75 of the
12 deposition transcript of Rosalyn Zeigler.
13 I declare under penalty of perjury under the laws of the State of California that the
14 foregoing is true and correct and if called as a witness I could competently testify to the truth of
15 the matters asserted therein. Executed this \O. day of September, 2019 in Martinez, California.
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4.
DECLARATION OF SCOTT E. JENNY IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S
MOTION FOR PREJUDGMENT POSSESSION
EXHIBIT A
RE: City of Santa Clara v. D.E. Il Restaurants, Inc. [IWOV-iManage.FID661484]
Gale Connor
Mon 8/5/2019 9:44 AM
To: ‘Scott E. Jenny’ ; richardkjenny@hotmail.com
Cc: Amy Zeller
Hello Scott, please see my responses in red below.
Thanks
Gale
F. Gale Connor | Miller Starr Regalia
351 California Street, Suite 1110
San Francisco, CA 94104.
t: 415.638.4809 | f: 415.371.1012 | gale.connor@msrlegal.com | www.msrlegal.co.
From: Scott E. Jenny [mailto:sejlawoffice@cs.com]
Sent: Sunday, August 04, 2019 6:05 PM
To: Gale Connor; richardkjenny@hotmail.com
Subject: Re: City of Santa Clara v. D.E. IT Restaurants, Inc. [IWOV-iManage.FID661484]
Gale,
1. Let's confirm Ruth's deposition only once on the 14th. Confirmed
2. Would you be agreeable to a two-week extension on our opposition to the motion for possession, | think | get
jammed for time with the depositions so late in August. Since you granted me a 2 week extension, | have no
problem doing the same for you. Opposition due by September 43th
3. | can take Ruth's deposition somewhere in Santa Clara. Thank you. Do you want to take it at your court
reporter's office or at City Hall?
4. | believe we send the documents out on Friday but Richard can confirm. We received documents today, but |
haven't had a chance to review them yet.
Scott E. Jenny, Esq.
Jenny & Jenny, LLP
JennyandJenny.com
736 Ferry Street
Martinez, Cal. 94553
(925) 228-1265
-----Original Message-----
From: Gale Connor
To: ‘Scott E. Jenny’ ; 'richardkjenny@hotmail.com’
Sent: Fri, Aug 2, 2019 4:55 pm
Subject: RE: City of Santa Clara v. D.E. || Restaurants, Inc. [|WOV-iManage.FID661484]
Hello Scott, If the concept of having Ruth testify only once, but in both capacities, is agreeable, then let's
proceed on the 14‘
EXHIBIT B
JENNY & JENNY, Lip
Attorneys
736 Ferry Street
Scott E. Jenny, Esq. Martinez, California 94553 Eminent Domain
Richard K. Jenny, Esq. Telephone: (925) 228-1265 Inverse Condemnation
Facsimile: (925) 228-2841 Real Estate Law
JennyandJenny.com
December 11, 2018
City of Santa Clara
City Council
c/o Deanna J. Santana, City Manager
manager@santaclaraca.gov
c/o Nadine Nader, Acting City Clerk
clerk@santaclaraca.gov
c/o Nora Pimentel, Assistant City Clerk
clerk@santaclaraca.gov
City of Santa Clara
1500 Warburton Ave.
Santa Clara, CA 95050
Re: Realignment of Stars & Stripes Drive Project
D.E. I] Restaurants, Inc. dba David’s Banquet and Conference
APN: 104-30-36
Dear City of Santa Clara City Council,
This office represents David Ebrahimi and D.E. II Restaurants, Inc. dba David’s Banquet
and Conference located at 5131 Stars & Stripes Drive in the City of Santa Clara. This letter is in
response to the CITY OF SANTA CLARA NOTICE OF INTENTION TO ADOPT
RESOLUTION OF NECESSITY TO ACQUIRE REAL PROPERTY INTEREST FOR
RELOCATION OF STARS AND STRIPES DRIVE scheduled to be held on December 11, 2018
at 7:00 p.m. The following are our objections to the adoption of this Resolution of Necessity and
to the taking of this business.
I FACTUAL STATEMENT.
David Ebrahimi and D.E. II Restaurants, Inc. dba David’s Banquet and Conference
entered into a lease with the City of Santa Clara in June of 1999, The lease was for a 20-year
term which would expire on 2019. The lease contains two 5-year options which would continue
the lease unti] 2029.
In Section 19, the lease provides the only means for the City to terminate the lease. It
states that the City can terminate this agreement for non-payment of rent (which has not
occurred); if David’s has failed to perform any covenant or condition (which has not occurred);
City of Santa Clara
City Counsel
December 11, 2018
Page 2
upon the happening of an act or omission which terminates the operation of the business (which
has not occurred); if David’s transfers the lease to another without the City’s consent (which has
not occurred); if there is a levy of attachment or execution (which has not occurred); if David’s
declares bankruptcy (which has not occurred); if David’s abandons the premises (which has not
occurred); or if there is an emergency or catastrophe beyond the control of David’s. None of
these events has occurred and therefore the City is in breach of this written lease if it proceeds
with this eminent domain action. This RON hearing is a violation of due process in that it is
seeking to dissolve an active lease where the City is a party.
I. THE PROJECT FAILS TO SATISFY THE STATUTORY REQUIREMENT
OF PROVIDING FOR THE GREATEST PUBLIC GOOD WITH THE
LEAST PRIVATE INJURY.
California Code of Civil Procedure section 1240.030 states that the power of eminent
domain may only be used if the following conditions are satisfied:
1 The public interest and necessity require the project;
2 The project is planned or located in the manner that will be the most compatible with
the greatest public good and the least private injury; and
3 The property sought to be acquired is necessary for the project.
The project as described fails to satisfy any of the three tests, and all three must be satisfied
for the project to continue.
As for the first prong, that the public interest and necessity require the project, the project
as planned fails to meet these criteria. David’s would easily be able to operate within the new
development Project and not be relocated. David’s would be able to operate on Parcels 5A or 5B
as shown in the Master Plan. The future land use of the current location of David’s is for City
Center Mixed-Use which would permit David’s to continue to operate.
Furthermore the Project will not be completed until 2035 and there is no evidence that this
first phase needs to occur today. Finally, the Project is not for public use but for private use. The
properties will be transferred to private entities and developers which is a violation of both the state
and federal constitutions. The attempt by the City to classify this as a road project is a classic
eminent domain pretextual taking prohibited by law. Thus, neither the public interest nor necessity
require the project as planned.
As for the second prong, that the project is planned or located in the manner that will be the
most compatible with the greatest public good and the least private injury, this test fails as well.
Again, David’s would easily be able to operate within the new development Project and not be
relocated, and the Project will not be completed until 2035. The balancing falls in favor of not
relocating David’s ever, and certainly not at this early point in the Project. This Project plan is
City of Santa Clara
City Counsel
December 11, 2018
Page 3
clearly not planned to cause the “least private injury” but is planned to inflict the greatest possible
damage to David’s.
And finally, the project fails the third prong, that the property sought to be acquired is
necessary for the project. David’s would easily be able to operate within the new development
Project and not be relocated. There is no reason to relocate David’s at this time or ever.
Therefore, the Project as currently plans fails to satisfy the statutory, mandatory conditions
of California Code of Civil Procedure section 1240.030, and cannot withstand the judicial scrutiny
that lies ahead.
Tl. THE PROJECT IS NOT EVEN IN FINAL DESIGN YET, AND
THEREFORE THE RESOLUTION IS FATALLY DEFECTIVE AS VAGUE.
The City is proposing to exercise one of the most tremendous and formidable powers the
government can take against one of its own citizens. The City is proposing to sue David’s and take
and relocate the business by force. David’s has already been forced to hire an attorney and to spend
time on this project during the holiday season. If the City continues, David’s will be named in a
lawsuit in the superior court.
The Master Community Plan of April 5, 2017 indicates throughout that every design is
preliminary. To date there is no final play for the development. It is premature to condemn and
relocate David’s until and unless such time as a final plan is approved and adopted by the City.
Iv. THE PROJECT WILL NOT BE COMPLETED WITHIN SEVEN YEARS
OF THE TAKING.
California Code of Civil Procedure section 1240.220 requires that the condemning
agency use the property within seven years from the date the complaint is filed:
(a) Any person authorized to acquire property for a particular use by eminent domain
may exercise the power of eminent domain to acquire property to be used in the future for
that use, but property may be taken for future use only if there is a reasonable probability
that its date of use will be within seven years from the date the complaint is filed or
within such longer period as is reasonable.
(b) Unless the plaintiff plans that the date of use of property taken will be within seven
years from the date the complaint is filed, the complaint, and the resolution of necessity if
one is required, shall refer specifically to this section and shall state the estimated date of
use.
In this case, the Master Community Plan of April 5, 2017 states that there are seven
phases to this project with a completion date in 2035. Taking David’s property rights now is a
City of Santa Clara
City Counsel
December 11, 2018
Page 4
violation of the seven-year requirement. The Notice of the Resolution of Necessity fails to even
allege that the property will be used within seven years, and is therefore fatally flawed.
Vv. THE “PROJECT” DESCRIBED IN THE RESOLUTION OF NECESSITY
IS PRETEXTUAL, IS NOT CONSISTENT WITH THE
ENVIRONMENTAL DOCUMENTS, HAS NOT BEEN
ENVIRONMENTALLY STUDIED, FAILS A CEQA ANALYSIS, AND
THUS ANY ACTION TAKEN IS VOID.
The map which is at the heart of this RON Hearing is not even consistent with the Master
Community Plan of April 5, 2017. Exhibit 3-1 to the Master Community Plan is not consistent
with the construction drawings submitted to David’s in support of the RON Hearing. The roads
are not aligned the same way. Thus, the RON Hearing drawing has not been vetted through any
environmental review process and has not been approved by this Council. Given the current
layout of the road as shown in the RON, there is no public necessity for this project at this time
because it does not assist in transportation in any way as designed for this RON.
The Master Community Plan’s environmental review was approved at the REGULAR
CONCURRENT MEETING OF THE CITY OF SANTA CLARA CITY COUNCIL SANTA
CLARA STADIUM AUTHORITY SPORTS AND OPEN SPACE AUTHORITY CITY OF
SANTA CLARA HOUSING AUTHORITY TUESDAY, JUNE 28, 2016. The agenda item was
for the CityPlace Santa Clara Project located at 5155 Stars and Stripes Drive, et. al., on an
approximately 240 acre site. (APNs: 104-03-036, 104-03-037, 104-03-038, 104-03-039, 104-
001-102, 097-01-039 and 097-01-073)[PLN2014-10554, CEQ2014-01180,
SCH#2014072078]. The Council adopted Resolution No. 16-8337 entitled “A RESOLUTION
OF THE CITY OF SANTA CLARA, CALIFORNIA APPROVING AND CERTIFYING A
FINAL ENVIRONMENTAL IMPACT REPORT, ADOPTING CEQA FINDINGS WITH
RESPECT THERETO, AND ADOPTING A STATEMENT OF OVERRIDING
CONSIDERATIONS AND A MITIGATION MONITORING AND REPORTING PROGRAM
FOR THE CITY PLACE SANTA CLARA PROJECT LOCATED AT 5155 STARS AND
STRIPES DRIVE, ET AL, SANTA CLARA” approving and certifying an Environmental Impact
Report and adopting California Environmental Quality Act (CEQA) Findings, a Statement of
Overriding Considerations (SOC) and the Mitigation Monitoring and Reporting Program
(MMRP) with an amendment to paragraph 7 indicating that Exhibit 1 to the Resolution, the
MMRP, shall be amended to reflect that the Montague/Zanker intersection lies within the City of
San Jose jurisdiction rather than the County of Santa Clara jurisdiction with the corresponding
fair share funds being reallocated to the City of San Jose thus increasing the City of San Jose
share and decreasing the County of Santa Clara share of the fair share fee.
Thus, the only environmental approval was for the entire 240-acre Plan. Among the
significant effects on the environment would be the elimination of buildings and services and the
re-routing of traffic in the area during construction and thereafter. These effects need to be
City of Santa Clara
City Counsel
December 11, 2018
Page 5
evaluated under CEQA. There has not been any CEQA review of a smaller project such as the
one shown on the RON construction plan. Thus, the RON action is flawed and void if adopted.
Furthermore, the City is not able to break up this Master Plan into smaller phases and
avoid the fact that this is one Master Plan. The scope of a project is defined by the
environmental documents. California law defined the “project” by the specific plans and
environmental documents. In City of National City v. State of California (1983) 140 Cal. App.
3d 598, the court defined a project. In footnote 2 on page 603, the National City court stated:
In determining what is a project within CEQA, California Administrative Code,
title 14, section 15378 provides:
(a) Project means the whole of an action, which has a potential for resulting in a
physical change in the environment, directly or ultimately, that is any of the
following:
(1) An activity directly undertaken by any public agency including but not limited
to public works construction and related activities, ...'
More specifically, subdivision (c) states:
The term ‘project! refers to the activity which is being approved and which may be
subject to several discretionary approvals by governmental agencies. The term
‘project’ does not mean each separate governmental approval." (Emphasis added &
some internal quotes omitted)
Although the National City case was decided within the context of an unsuccessful
attempt by the city to compel the State of California to go forward with the project as defined, its
rule concerning the description of the project has been applied since in a condemnation case. In
Burbank-Glendale-Pasadena Airport Authority v. Hensler (1991) 233 Cal. App. 3d 577 the court
considered an order by the trial court dismissing the condemnation action because the plaintiff's
EIR did not properly describe the project so as to include the defendant's real property. The trial
court's order was affirmed. The Henson court stated (p. 592, emphasis added):
CEQA mandates that environmental considerations not_become submerged by
chopping a large project into many little ones, each with a potential impact on the
environment, which cumulatively may have disastrous consequences. (City of
Santee v. County of San Diego (1989) 214 Cal.App.3d 1438, 1452 [263 Cal.Rptr.
340].) CEQA attempts to avoid this result by defining the term "project" broadly.
(Ibid.) A project under CEQA is the whole of an action which has a potential for
resulting in a physical change in the environment, directly or ultimately, and
includes the activity which is being approved and which may be subject to several
discretionary approvals by governmental agencies. (McQueen v. Board of
Directors (1988) 202 Cal.App.3d 1136, 1143 [249 Cal.Rptr. 439].)" (Emphasis
City of Santa Clara
City Counsel
December 11, 2018
Page 6
added.)
The Henson court continued (p. 592, emphasis added):
An accurate, stable and finite project description is the sine qua non of an
informative and legally sufficient EIR; the defined project and not some different
project must be the EIR's bona fide subject. (Mira Monte Homeowners Assn. v.
County of Ventura (1985) 165 Cal.App.3d 357, 365 [212 Cal-Rptr. 127].) 'CEQA
compels an interactive process of assessment of environmental impacts and
responsive project modification which must be genuine. It must be open to the
public, premised upon a full and meaningful disclosure of the scope, purposes
and effect of a consistently described project, with flexibility to respond to
unforeseen insights that emerge from the process." (Id., at p. 366, internal
quotation marks omitted.)
After concluding that the project description in the EIR did not correctly describe the
project so as to include the Henson's property which was being condemned, the court stated (p.
594):
Accordingly, the procedure followed by appellant violated section 15004,
subdivision (b)(1) of title 14 of the California Code of Regulations (hereinafter
referred to as Guidelines), which provides that "With public projects, at the earliest
feasible time, project sponsors shall incorporate environmental considerations into
project conceptualization, design, and planning. CEQA compliance should be
completed prior to acquisition of a site for a public project.
Thus, the “project” is defined by the specific plan and environmental documents, and
cannot “become submerged by chopping a large project into smaller ones, each with a potential
impact on the environment, which cumulatively may have disastrous consequences.”
In fact, The City of Santa Clara responded to David's request for public records
concerning the proposed road by referring to the June 28, 2016 Council agenda (item 14) on the
subject of the Master Development Plan. The November 5, 2018 letter from the City Manager
regarding the December 11 meeting states in its first paragraph that the City is "considering
constructing a road." Thus, no final decision to construct the road has been made. Such action
would require environmental review which has not occurred. Furthermore, the law does not
permit the local legislative body to approve a road under an agenda item that only refers to the
matter of taking away the Banquet Hall.
Here, this means that the RON Notice referring to this Project as a mere road relocation
project is again pretextual and is in fact a part of the Master Plan discussed herein. Neither the
Master Plan nor the realigned road have been finalized or vetted through the environmental
process. The real Project is not to be completed within seven years of this action by the City.
City of Santa Clara
City Counsel
December 11, 2018
Page 7
This is further proven by the following section. Therefore, the Notice and the RON are
false, pretextual, misleading, flawed and void.
VI. THE ENVIRONMENTAL DOCUMENTS DO NOT ADDRESS, ANALYZE
OR PERMIT THE USE OF EMINENT DOMAIN.
No environmental document has addressed the use of eminent domain as against any
property rights and therefore no action can be taken regarding same. The only reference is in the
Master Community Plan of April 5, 2017 which states:
The acquisition process approved by this Council is addressed in Chapter 8,
Infrastructure Overview. Section 8.1 includes a section entitled “Property Acquisition,
Dedication & Easements Concept” and states that the majority of the infrastructure shall be
constructed within the public right-of-way or dedicated easements. There is no mention of the
use of eminent domain to take private property rights from any business or individual. This
section also again states that the project layout is merely proposed and not final by stating “[t]he
eventual project layout within the project boundaries will ultimately determine the entity that
owns, operates and maintains each infrastructure element.”
In the Preliminary Infrastructure Master Plan dated August 5, 2016, Section 1.2 states:
1.2 Property Acquisition, Dedication and Easements
The Mapping, property acquisition, dedication and acceptance of streets and other
infrastructure improvements will occur through the Subdivision Map process in
accordance with the City’s Subdivision Code and Regulations. Except as
otherwise noted, all infrastructure described in this Plan shall be constructed
within the public right-of-way or dedicated easements to provide for access and
maintenance of infrastructure facilities. The eventual project layout within the
Project boundaries will ultimately determine the entity that owns, operates and
maintains each infrastructure element. City Resolutions to address the private
infrastructure elements and specific public utility easements will be allowed
within the Project as may be necessary to service the development. Utilities in
these areas will be installed in accordance with the standards in this Plan and
applicable City Regulations for public acquisition and acceptance within public
utility easement areas, including provisions for maintenance access.
Nowhere in the document does it then go on to specifically note any property acquisition.
David’s has a property right in its lease which is not discussed in any environmental document.
Therefore, there has been no environmental review of the actions this Council is
threatening to take and therefore the actions would be void as a matter of law.
City of Santa Clara
City Counsel
December 11, 2018
Page 8
VII. GOVERNMENT CODE SECTION 7267.2 HAS NOT BEEN SATISFIED.
As set forth in City of San Jose v. Great Oaks Water Co. (1987) 192 Cal.App3d 1005 at
1013, “[t]he provisions of Government Code Section 7267.2 are not merely discretionary
guidelines, but mandatory requirements which must be observed by any public entity planning to
initiate eminent domain proceedings through a resolution of necessity.” The precondemnation
offer fails to meet those mandatory requirements. California Government Code section 7267.2
states:
(a) (1) Prior to adopting a resolution of necessity pursuant to Section
1245.230 of the Code of Civil Procedure and initiating negotiations for the
acquisition of real property, the public entity shall establish an amount that it
believes to be just compensation therefore, and shall make an offer to the
owner or owners of record to acquire the property for the full amount so
established, unless the owner cannot be located with reasonable diligence.
The offer may be conditioned upon the legislative body’s ratification of the
offer by execution of a contract of acquisition or adoption of a resolution of
necessity or both. The amount shall not be less than the public entity’s
approved appraisal of the fair market value of the property. A decrease or
increase in the fair market value of real property to be acquired prior to the
date of valuation caused by the public improvement for which the property is
acquired, or by the likelihood that the property would be acquired for the
improvement, other than that due to physical deterioration within the
reasonable contro! of the owner or occupant, shall be disregarded in
determining the compensation for the property.
(2) At the time of making the offer described in paragraph (1), the public
entity shall provide the property owner with an informational pamphlet
detailing the process of eminent domain and the property owner’s rights
under the Eminent Domain Law.
(b) The public entity shall provide the owner of real property to be
acquired with a written statement of, and summary of the basis for, the
amount it established as just compensation. The written statement and
summary shall contain detail sufficient to indicate clearly the basis for the
offer, including, but not limited to, all of the following information:
(1) The date of valuation, highest and best use, and applicable zoning of
property.
(2) The principal transactions, reproduction or replacement cost analysis,
or capitalization analysis, supporting the determination of value.
(3) If appropriate, the just compensation for the real property acquired and
for damages to remaining real property shall be separately stated and shall
City of Santa Clara
City Counsel
December 11, 2018
Page 9
include the calculations and narrative explanation supporting the
compensation, including any offsetting benefits.
(c) Where the property involved is owner-occupied residential property
and contains no more than four residential units, the homeowner shall, upon
request, be allowed to review a copy of the appraisal upon which the offer is
based. The public entity may, but is not required to, satisfy the written
statement, summary, and review requirements of this section by providing
the owner a copy of the appraisal on which the offer is based.
(d) Notwithstanding subdivision (a), a public entity may make an offer to
the owner or owners of record to acquire real property for less than an
amount that it believes to be just compensation therefor if (1) the real
property is offered for sale by the owner at a specified price less than the
amount the public entity believes to be just compensation therefor, (2) the
public entity offers a price that is equal to the specified price for which the
property is being offered by the landowner, and (3) no federal funds are
jnvolved in the acquisition, construction, or project development.
(e) As used in subdivision (d), “offered for sale” means any of the
following:
(1) Directly offered by the landowner to the public entity for a specified
price in advance of negotiations by the public entity.
(2) Offered for sale to the general public at an advertised or published
specified price, set no more than six months prior to, and still available at, the
time the public entity initiates contact with the landowner regarding the
public entity’s possible acquisition of the property.
Thus, prior to adopting this Resolution of Necessity, the City has an affirmative obligation
to provide a written statement and summary “which shall contain detail sufficient to indicate clearly
the basis for the offer.” The City’s offer has failed to meet this requirement.
The “offer” states that it is an offer to purchase the leasehold interest of David’s “i
conjunction with this public improvement project.” As noted above, the Project is not properly
identified and thus the offer fails in the first paragraph. The offer is for a mere $5,000.00.
The California Relocation Assistance and Real Property Acquisition Guidelines require
that David’s be paid full payment (just compensation) for David’s interest prior to vacating the
real property unless David's waive such requirement. By this letter, David’s clearly states that it
does not waive this requirement and demands that it be paid just compensation prior to vacating
the real property. The “offer” letter correctly states that if David’s rejects the City’s offer.
David’s is entitled to have the amount of compensation determined by a court of law in
accordance with the laws of the State of California. By this letter, David’s demands that a court
City of Santa Clara
City Counsel
December 11, 2018
Page 10
of law (by way of a jury trial) determines the amount of compensation prior to being forced to
vacate the property.
The $5,000.00 offer is an unconscionably low amount and fails to satisfy this statutory
requirement. First, the “offer” uses a date of value of July 5, 2018. This appraisal is therefore
over five months stale. The economy has changed in David’s favor since then. To be a valid
appraisal, the date of value must be at the date of the Resolution of Necessity hearing. David’s
requests a new appraisal be performed with a more recent date of value.
David’s is entitled to the fair market value of the property being taken. California Code of Civil
Procedure section 1263.310 states:
Compensation shall be awarded for the property taken. The measure of
this compensation is the fair market value of the property taken.
The statutory definition of fair market value is found in California Code of Civil Procedure
section 1263.320 (a):
The fair market value of the property taken is the highest price on the date
of valuation that would be agreed to by a seller being willing to sell but
under no particular or urgent necessity for doing so, nor obliged to sell, and
the buyer being ready, willing, and able to buy but under no particular
necessity for so doing, each dealing with the other with full knowledge of
all the uses and purposes for which the property is reasonably adaptable
and available. (Bolding added.)
Therefore, David’s is entitled to the “highest price” for the property being taken. Not the
average price, or the most reasonable price, but the “highest price.” The property is to be valued under
its “highest and best use.” This means the most advantageous and profitable use to which the property is
adaptable, considering the present and future business conditions of the surrounding market.
The “offer” appraiser initially correctly states that the appraisal is based upon the standard of the
“highest price” (in the BASIS OF VALUATION) section. However, the appraisal then switches back to
the definition of “most probable price” by citing the Dictionary of Real Estate Appraisal, 4" Edition. By
using the definition and standard of “most probable price” rather than “highest price,” the appraisal is in
violation of the statutory scheme and state constitution. It is therefore fatally flawed and invalid.
David’s requests that a proper appraisal be performed using only the proper definition of “highest price.”
Finally, and perhaps most importantly, the appraisal is not even signed by an appraiser. The
offer and appraisal is only signed by the City Manager. The appraisal is therefore void. It cannot form
the basis of a proper appraisal as required by law when it is not signed by an appraiser.
Based upon the above, the City has failed to provide a proper appraisal as required by law.
City of Santa Clara
City Counsel
December 11, 2018
Page 11
VII. THE CITY HAS FAILED TO PROVIDE ANY LOCATION FOR DAVID’S
TO RELOCATE.
The California Relocation Assistance and Real Property Acquisition Guidelines require
When a government agency takes property using eminent domain and a business is operating in
the property, the agency has certain relocation requirements and obligations to the business owner.
Below is a list of relocation requirements that the defendants’ believe the City in this case has failed to
comply with.
25 CCR 6000. 6006. Regulations
(@) Each public entity before undertaking or participating in activity,
which will result in the displacement of persons shall adopt rules and
regulations that implement the requirements of the Act, are in accordance
with the provisions of the Guidelines, and prescribe additional procedures
and requirements that are appropriate to the particular activities of the
public entity and not inconsistent with the Act or Guidelines.
§ 6010. Prior Determinations
(a) Displacement. No public entity may proceed with any phase of a
project or other activity, which will result in the displacement of any
person, business or farm until it makes the following determinations:
(1) Fair and reasonable relocation payments will be provided to eligible
persons as required by Article 3 (Relocation Payments) of the Guidelines.
(2) A relocation assistance program offering the services described in
Article 2 (Relocation Advisory Services) of the Guidelines will be
established.
(3) Eligible persons will be adequately informed of the assistance,
benefits, policies, practices and procedures, including grievance
procedures, provided for in these Guidelines.
(6) A relocation plan meeting the requirements of section 6038 has been
prepared.
§ 6032. Relocation Assistance Advisory Program
Such program shall be administered so as to provide advisory services
which offer maximum assistance to minimize the hardship of
displacement and to ensure that (a) all persons displaced from their
City of Santa Clara
City Counsel
December 11, 2018
Page 12
dwellings are relocated into housing meeting the criteria for comparable
replacement housing, and (b) all persons displaced from their places of
business or farm operations are assisted in reestablishing with a minimum
of delay and loss of earnings.
§ 6040. Minimum Requirements of Relocation Assistance Advisory
Program
(a) Each relocation assistance advisory program undertaken pursuant to
this Article shall include, at a minimum, such measures, facilities or
services as may be necessary or appropriate in order to:
(1) Fully inform eligible persons under this Article within 60 days
following the initiation of negotiations but not later than the close of
escrow on the property, for a parcel as to the availability of relocation
benefits and assistance and the eligibility requirements therefor, as well as
the procedures for obtaining such benefits and assistance, in accordance
with the requirements of section 6046. For projects by private parties with
an agreement with a public entity, the "initiation of negotiations" shall be
the later of the date of acquisition or the date of the written agreement
between the private entity and the public entity for purposes of acquiring
or developing the property for the project.
(2) Determine the extent of the need of each such eligible person for
relocation assistance in accordance with the requirements of section 6048.
(4) Provide current and continuing information on the availability, prices,
and rentals of comparable sales and rental housing, and of comparable
commercial properties and locations, and as to security deposits, closing
costs, typical down payments, interest rates, and terms for residential
property in the area.
(5) Assist each eligible person to complete applications for payments and
benefits.
(7) Assist each eligible person displaced from his business or farm
operation in obtaining and becoming established in a suitable replacement
location.
(9) Supply to such eligible persons information concerning federal and
state housing programs, disaster loan and other programs administered by
the Small Business Administration, and other federal or state programs,
offering assistance to displaced persons.
City of Santa Clara
City Counsel
December 11, 2018
Page 13
@ If the public entity has not fulfilled or is not substantially fulfilling
its relocation responsibilities, it shall cease displacement until such time as
its responsibilities are fulfilled. When appropriate project implementation
shall be suspended or terminated.
While the City has been working with David’s regarding relocation, the assistance has been and
is incomplete. The City has failed to comply with the above California Code of Regulations sections,
including but not limited to:
e Failing to provide David’s with fair and reasonable relocation payments;
Failing to adequately provide the business with required advisory services;
Failing to adequately and effectively inform the business of relocation requirements;
Failing to provide adequate advisory services to the business resulting in hardship;
Failing to inform and provide the business with the availability of relocation benefits and
assistance;
Failing to adequately survey and analyze the business’ relocation needs;
Failing to adequately provide the business with continuous and current information on the
availability of suitable replacement sites;
Failing to assist the business in applying for relocation payments; and
° Failing to assist the business in obtaining a suitable replacement site.
David’s should be granted the relief under CCR 25 CCR §6000, §6006 entitled Remedies
“Tf the public entity has not fulfilled or is not substantially fulfilling its relocation
responsibilities, it shall cease displacement until such time as its responsibilities are fulfilled.
When appropriate project implementation shall be suspended or terminated (emphasis added).
David’s is entitled to these remedies and that until the City has fulfilled or substantially
fulfilled its relocation obligations, displacement shall cease.
Additionally, the City has failed to comply with the portions of California Government
Code Section 7260.5, et seq. as follows.
City of Santa Clara
City Counsel
December 11, 2018
Page 14
7261. (a) Programs or projects undertaken by a public entity shall
be planned in a manner that (1) recognizes, at an early stage in the
planning of the programs or projects and before the commencement of any actions which
will cause displacements, the problems associated with the displacement of individuals,
families, businesses, and farm operations, and (2) provides for the resolution of these
problems in order to minimize adverse impacts on displaced persons and to expedite
program or project advancement and completion.
(c) This advisory assistance shall include those measures,
facilities, or services which are necessary or appropriate to do all
of the following:
(1) Determine and make timely recommendations on the needs and
preferences, if any, of displaced persons for relocation assistance.
(2) Provide current and continuing information on the
availability, sales prices, and rentals of comparable replacement
dwellings for displaced homeowners and tenants, and suitable
locations for businesses and farm operations.
(3) Assure that, within a reasonable time period prior to
displacement, to the extent that it can be reasonably accomplished,
there will be available in areas not generally less desirable in
regard to public utilities and public and commercial facilities, and
at rents or prices within the financial means of displaced families
and individuals, decent, safe, and sanitary dwellings, sufficient in
number to meet the needs of, and available to, those displaced
persons requiring those dwellings and reasonably accessible to their
places of employment, except that, in the case of a federally funded
project, a waiver may be obtained from the federal governmen
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Scott E. Jenny, Esq. — State Bar No. 166111 JENNY & JENNY, LLP 736 Ferry Street Martinez, California 94553 Telephone: (925) 228-1265 Facsimile: (925) 228-2841 Attorney for Defendant D.E. II RESTAURANTS, INC. IN THE SUPERIOR COURT OF THE STATE CALIFORNIA. IN AND FOR THE COUNTY OF SANTA CLARA UNLIMITED JURISDICTION 10 11 CITY OF SANTA CLARA, a California Case No.: 19CV340508 12 Charter City DECLARATION OF SCOTT E. JENNY IN 13 Plaintiff, SUPPORT OF DEFENDANT’S vs. OPPOSITION TO PLAINTIFF’S 14 MOTION FOR PREJUDGMENT POSSESSION 15 D.E. IT RESTAURANTS, INC., a California corporation; and DOES 1-50, Hon. Peter H. Kirwan 16 Defendants. 17 18 19 D.E. II RESTAURANTS, INC. Date: October 31, 2019 20 Time: 9:00 a.m. Cross-Complainant, Dept.: 19 21 VS. 22 CITY OF SANTA CLARA, a California 23 Charter City and ROES 1 through 10, 24 inclusive, 25 Cross-Defendants. 26 27 28 ele DECLARATION OF SCOTT E. JENNY IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR PREJUDGMENT POSSESSION I, Scott E. Jenny, declare: 1 lam an attorney duly licensed to practice law in the State of California and am the attorney for defendant and cross-complainant D.E.II RESTAURANTS, INC., herein. 2 On August 4, 2019 I emailed Gale Connor, attorney for plaintiff City of Santa Clara, asking if he would be agreeable to a two week extension on my time to file an opposition to plaintiff's Motion for Prejudgment Possession. On August 5, 2019 Mr. Connor emailed a response stating that “since you granted me a 2 week extension, I have no problem doing the same for you. Opposition due by September 13". A true and correct copy of my email and Mr. Connor’s response is attached hereto as Exhibit A. 10 3 At the December 11, 2018 public hearing on the Resolution of Necessity held by 11 the City (which formed the basis of the City’s complaint in eminent domain), D.E. II 12 RESTAURANTS, INC. lodged numerous objections to the taking of her property on the record. 13 4 Attached hereto as Exhibit B is a true and correct copy of a resolution of necessity] 14 objection letter lodged by D.E. II Restaurants, Inc. 15 5 Attached hereto as Exhibit C is a true and correct copy of the Agenda Report with 16 “Approval of an Exclusive Negotiating Rights Agreement with Related Santa Clara LLC for the 17 development of approximately 230 acres of City-owned land in the North of Bayshore area.” 18 From the April 9, 2013 City Council Meeting. 19 6 Attached hereto as Exhibit D is a true and correct copy of a City slide show called 20 “Exclusive Negotiating Rights Agreement with Related Santa Clara LLC” from the City’s April 21 9, 2013 public meeting. 22 7 Attached hereto as Exhibit E are true and correct copies of Pages 48 and 49 of the 23 deposition transcript of Ruth Shikada. 24 8 Attached hereto as Exhibit F is a true and correct copy of Page 20 of the 25 deposition transcript of Ruth Shikada. 26 9 Attached hereto as Exhibit G is a true and correct copy of Page 24 of the 27 deposition transcript of Ruth Shikada. 28 23s DECLARATION OF SCOTT E. JENNY IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR PREJUDGMENT POSSESSION 1 10. Attached hereto as Exhibit H are true and correct copies of Pages 37 and 38 of the deposition transcript of Ruth Shikada. ill Attached hereto as Exhibit I is a true and correct copy of Page 19 of the deposition transcript of Ruth Shikada. 12. Attached hereto as Exhibit J are true and correct copies of Pages 21 and 22 of the deposition transcript of Ruth Shikada. 13. Attached hereto as Exhibit K are true and correct copies of Pages 29 through 31 of the deposition transcript of Ruth Shikada. 14. Attached hereto as Exhibit L are true and correct copies of Pages 31 and 32 of the 10 deposition transcript of Ruth Shikada. 1 15. Attached hereto as Exhibit M are true and correct copies of Pages 39 and 40 of the 12 deposition transcript of Ruth Shikada. 13 16. Attached hereto as Exhibit N is a true and correct copy of Page 46 of the 14 deposition transcript of Ruth Shikada. 15 17. Attached hereto as Exhibit O is a true and correct copy of Page 48 of the 16 deposition transcript of Ruth Shikada. 17 18. Attached hereto as Exhibit P are true and correct copies of Pages 39 and 40 of the 18 deposition transcript of Ruth Shikada. 19 19. Attached hereto as Exhibit Q is a true and correct copy of Page 67 of the 20 deposition transcript of Rosalyn Zeigler. 21 20. Attached hereto as Exhibit R are true and correct copies of Pages 17 and 18 of the 22 deposition transcript of Rosalyn Zeigler. 23 21. Attached hereto as Exhibit S is a true and correct copy of Page 25 of the 24 deposition transcript of Rosalyn Zeigler. 25 22. Attached hereto as Exhibit T is a true and correct copy of Page 44 of the 26 deposition transcript of Rosalyn Zeigler. 27 28 3s DECLARATION OF SCOTT E. JENNY IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR PREJUDGMENT POSSESSION 23. Attached hereto as Exhibit U are true and correct copies of Pages 32 and 33 of the deposition transcript of Rosalyn Zeigler. 24. Attached hereto as Exhibit V is a true and correct copy of Page 43 of the deposition transcript of Rosalyn Zeigler. 25. Attached hereto as Exhibit W is a true and correct copy of Page 54 of the deposition transcript of Rosalyn Zeigler. 26. Attached hereto as Exhibit X are true and correct copies of Pages 47 and 48 of the deposition transcript of Rosalyn Zeigler. 27. Attached hereto as Exhibit Y is a true and correct copy of Page 67 of the 10 deposition transcript of Rosalyn Zeigler. 11 28. Attached hereto as Exhibit Z is a true and correct copy of Page 75 of the 12 deposition transcript of Rosalyn Zeigler. 13 I declare under penalty of perjury under the laws of the State of California that the 14 foregoing is true and correct and if called as a witness I could competently testify to the truth of 15 the matters asserted therein. Executed this \O. day of September, 2019 in Martinez, California. 16 SS 17 Ss eeei 18 cott E 19 20 21 22 23 24 25 26 27 28 4. DECLARATION OF SCOTT E. JENNY IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR PREJUDGMENT POSSESSION EXHIBIT A RE: City of Santa Clara v. D.E. Il Restaurants, Inc. [IWOV-iManage.FID661484] Gale Connor Mon 8/5/2019 9:44 AM To: ‘Scott E. Jenny’ ; richardkjenny@hotmail.com Cc: Amy Zeller Hello Scott, please see my responses in red below. Thanks Gale F. Gale Connor | Miller Starr Regalia 351 California Street, Suite 1110 San Francisco, CA 94104. t: 415.638.4809 | f: 415.371.1012 | gale.connor@msrlegal.com | www.msrlegal.co. From: Scott E. Jenny [mailto:sejlawoffice@cs.com] Sent: Sunday, August 04, 2019 6:05 PM To: Gale Connor; richardkjenny@hotmail.com Subject: Re: City of Santa Clara v. D.E. IT Restaurants, Inc. [IWOV-iManage.FID661484] Gale, 1. Let's confirm Ruth's deposition only once on the 14th. Confirmed 2. Would you be agreeable to a two-week extension on our opposition to the motion for possession, | think | get jammed for time with the depositions so late in August. Since you granted me a 2 week extension, | have no problem doing the same for you. Opposition due by September 43th 3. | can take Ruth's deposition somewhere in Santa Clara. Thank you. Do you want to take it at your court reporter's office or at City Hall? 4. | believe we send the documents out on Friday but Richard can confirm. We received documents today, but | haven't had a chance to review them yet. Scott E. Jenny, Esq. Jenny & Jenny, LLP JennyandJenny.com 736 Ferry Street Martinez, Cal. 94553 (925) 228-1265 -----Original Message----- From: Gale Connor To: ‘Scott E. Jenny’ ; 'richardkjenny@hotmail.com’ Sent: Fri, Aug 2, 2019 4:55 pm Subject: RE: City of Santa Clara v. D.E. || Restaurants, Inc. [|WOV-iManage.FID661484] Hello Scott, If the concept of having Ruth testify only once, but in both capacities, is agreeable, then let's proceed on the 14‘ EXHIBIT B JENNY & JENNY, Lip Attorneys 736 Ferry Street Scott E. Jenny, Esq. Martinez, California 94553 Eminent Domain Richard K. Jenny, Esq. Telephone: (925) 228-1265 Inverse Condemnation Facsimile: (925) 228-2841 Real Estate Law JennyandJenny.com December 11, 2018 City of Santa Clara City Council c/o Deanna J. Santana, City Manager manager@santaclaraca.gov c/o Nadine Nader, Acting City Clerk clerk@santaclaraca.gov c/o Nora Pimentel, Assistant City Clerk clerk@santaclaraca.gov City of Santa Clara 1500 Warburton Ave. Santa Clara, CA 95050 Re: Realignment of Stars & Stripes Drive Project D.E. I] Restaurants, Inc. dba David’s Banquet and Conference APN: 104-30-36 Dear City of Santa Clara City Council, This office represents David Ebrahimi and D.E. II Restaurants, Inc. dba David’s Banquet and Conference located at 5131 Stars & Stripes Drive in the City of Santa Clara. This letter is in response to the CITY OF SANTA CLARA NOTICE OF INTENTION TO ADOPT RESOLUTION OF NECESSITY TO ACQUIRE REAL PROPERTY INTEREST FOR RELOCATION OF STARS AND STRIPES DRIVE scheduled to be held on December 11, 2018 at 7:00 p.m. The following are our objections to the adoption of this Resolution of Necessity and to the taking of this business. I FACTUAL STATEMENT. David Ebrahimi and D.E. II Restaurants, Inc. dba David’s Banquet and Conference entered into a lease with the City of Santa Clara in June of 1999, The lease was for a 20-year term which would expire on 2019. The lease contains two 5-year options which would continue the lease unti] 2029. In Section 19, the lease provides the only means for the City to terminate the lease. It states that the City can terminate this agreement for non-payment of rent (which has not occurred); if David’s has failed to perform any covenant or condition (which has not occurred); City of Santa Clara City Counsel December 11, 2018 Page 2 upon the happening of an act or omission which terminates the operation of the business (which has not occurred); if David’s transfers the lease to another without the City’s consent (which has not occurred); if there is a levy of attachment or execution (which has not occurred); if David’s declares bankruptcy (which has not occurred); if David’s abandons the premises (which has not occurred); or if there is an emergency or catastrophe beyond the control of David’s. None of these events has occurred and therefore the City is in breach of this written lease if it proceeds with this eminent domain action. This RON hearing is a violation of due process in that it is seeking to dissolve an active lease where the City is a party. I. THE PROJECT FAILS TO SATISFY THE STATUTORY REQUIREMENT OF PROVIDING FOR THE GREATEST PUBLIC GOOD WITH THE LEAST PRIVATE INJURY. California Code of Civil Procedure section 1240.030 states that the power of eminent domain may only be used if the following conditions are satisfied: 1 The public interest and necessity require the project; 2 The project is planned or located in the manner that will be the most compatible with the greatest public good and the least private injury; and 3 The property sought to be acquired is necessary for the project. The project as described fails to satisfy any of the three tests, and all three must be satisfied for the project to continue. As for the first prong, that the public interest and necessity require the project, the project as planned fails to meet these criteria. David’s would easily be able to operate within the new development Project and not be relocated. David’s would be able to operate on Parcels 5A or 5B as shown in the Master Plan. The future land use of the current location of David’s is for City Center Mixed-Use which would permit David’s to continue to operate. Furthermore the Project will not be completed until 2035 and there is no evidence that this first phase needs to occur today. Finally, the Project is not for public use but for private use. The properties will be transferred to private entities and developers which is a violation of both the state and federal constitutions. The attempt by the City to classify this as a road project is a classic eminent domain pretextual taking prohibited by law. Thus, neither the public interest nor necessity require the project as planned. As for the second prong, that the project is planned or located in the manner that will be the most compatible with the greatest public good and the least private injury, this test fails as well. Again, David’s would easily be able to operate within the new development Project and not be relocated, and the Project will not be completed until 2035. The balancing falls in favor of not relocating David’s ever, and certainly not at this early point in the Project. This Project plan is City of Santa Clara City Counsel December 11, 2018 Page 3 clearly not planned to cause the “least private injury” but is planned to inflict the greatest possible damage to David’s. And finally, the project fails the third prong, that the property sought to be acquired is necessary for the project. David’s would easily be able to operate within the new development Project and not be relocated. There is no reason to relocate David’s at this time or ever. Therefore, the Project as currently plans fails to satisfy the statutory, mandatory conditions of California Code of Civil Procedure section 1240.030, and cannot withstand the judicial scrutiny that lies ahead. Tl. THE PROJECT IS NOT EVEN IN FINAL DESIGN YET, AND THEREFORE THE RESOLUTION IS FATALLY DEFECTIVE AS VAGUE. The City is proposing to exercise one of the most tremendous and formidable powers the government can take against one of its own citizens. The City is proposing to sue David’s and take and relocate the business by force. David’s has already been forced to hire an attorney and to spend time on this project during the holiday season. If the City continues, David’s will be named in a lawsuit in the superior court. The Master Community Plan of April 5, 2017 indicates throughout that every design is preliminary. To date there is no final play for the development. It is premature to condemn and relocate David’s until and unless such time as a final plan is approved and adopted by the City. Iv. THE PROJECT WILL NOT BE COMPLETED WITHIN SEVEN YEARS OF THE TAKING. California Code of Civil Procedure section 1240.220 requires that the condemning agency use the property within seven years from the date the complaint is filed: (a) Any person authorized to acquire property for a particular use by eminent domain may exercise the power of eminent domain to acquire property to be used in the future for that use, but property may be taken for future use only if there is a reasonable probability that its date of use will be within seven years from the date the complaint is filed or within such longer period as is reasonable. (b) Unless the plaintiff plans that the date of use of property taken will be within seven years from the date the complaint is filed, the complaint, and the resolution of necessity if one is required, shall refer specifically to this section and shall state the estimated date of use. In this case, the Master Community Plan of April 5, 2017 states that there are seven phases to this project with a completion date in 2035. Taking David’s property rights now is a City of Santa Clara City Counsel December 11, 2018 Page 4 violation of the seven-year requirement. The Notice of the Resolution of Necessity fails to even allege that the property will be used within seven years, and is therefore fatally flawed. Vv. THE “PROJECT” DESCRIBED IN THE RESOLUTION OF NECESSITY IS PRETEXTUAL, IS NOT CONSISTENT WITH THE ENVIRONMENTAL DOCUMENTS, HAS NOT BEEN ENVIRONMENTALLY STUDIED, FAILS A CEQA ANALYSIS, AND THUS ANY ACTION TAKEN IS VOID. The map which is at the heart of this RON Hearing is not even consistent with the Master Community Plan of April 5, 2017. Exhibit 3-1 to the Master Community Plan is not consistent with the construction drawings submitted to David’s in support of the RON Hearing. The roads are not aligned the same way. Thus, the RON Hearing drawing has not been vetted through any environmental review process and has not been approved by this Council. Given the current layout of the road as shown in the RON, there is no public necessity for this project at this time because it does not assist in transportation in any way as designed for this RON. The Master Community Plan’s environmental review was approved at the REGULAR CONCURRENT MEETING OF THE CITY OF SANTA CLARA CITY COUNCIL SANTA CLARA STADIUM AUTHORITY SPORTS AND OPEN SPACE AUTHORITY CITY OF SANTA CLARA HOUSING AUTHORITY TUESDAY, JUNE 28, 2016. The agenda item was for the CityPlace Santa Clara Project located at 5155 Stars and Stripes Drive, et. al., on an approximately 240 acre site. (APNs: 104-03-036, 104-03-037, 104-03-038, 104-03-039, 104- 001-102, 097-01-039 and 097-01-073)[PLN2014-10554, CEQ2014-01180, SCH#2014072078]. The Council adopted Resolution No. 16-8337 entitled “A RESOLUTION OF THE CITY OF SANTA CLARA, CALIFORNIA APPROVING AND CERTIFYING A FINAL ENVIRONMENTAL IMPACT REPORT, ADOPTING CEQA FINDINGS WITH RESPECT THERETO, AND ADOPTING A STATEMENT OF OVERRIDING CONSIDERATIONS AND A MITIGATION MONITORING AND REPORTING PROGRAM FOR THE CITY PLACE SANTA CLARA PROJECT LOCATED AT 5155 STARS AND STRIPES DRIVE, ET AL, SANTA CLARA” approving and certifying an Environmental Impact Report and adopting California Environmental Quality Act (CEQA) Findings, a Statement of Overriding Considerations (SOC) and the Mitigation Monitoring and Reporting Program (MMRP) with an amendment to paragraph 7 indicating that Exhibit 1 to the Resolution, the MMRP, shall be amended to reflect that the Montague/Zanker intersection lies within the City of San Jose jurisdiction rather than the County of Santa Clara jurisdiction with the corresponding fair share funds being reallocated to the City of San Jose thus increasing the City of San Jose share and decreasing the County of Santa Clara share of the fair share fee. Thus, the only environmental approval was for the entire 240-acre Plan. Among the significant effects on the environment would be the elimination of buildings and services and the re-routing of traffic in the area during construction and thereafter. These effects need to be City of Santa Clara City Counsel December 11, 2018 Page 5 evaluated under CEQA. There has not been any CEQA review of a smaller project such as the one shown on the RON construction plan. Thus, the RON action is flawed and void if adopted. Furthermore, the City is not able to break up this Master Plan into smaller phases and avoid the fact that this is one Master Plan. The scope of a project is defined by the environmental documents. California law defined the “project” by the specific plans and environmental documents. In City of National City v. State of California (1983) 140 Cal. App. 3d 598, the court defined a project. In footnote 2 on page 603, the National City court stated: In determining what is a project within CEQA, California Administrative Code, title 14, section 15378 provides: (a) Project means the whole of an action, which has a potential for resulting in a physical change in the environment, directly or ultimately, that is any of the following: (1) An activity directly undertaken by any public agency including but not limited to public works construction and related activities, ...' More specifically, subdivision (c) states: The term ‘project! refers to the activity which is being approved and which may be subject to several discretionary approvals by governmental agencies. The term ‘project’ does not mean each separate governmental approval." (Emphasis added & some internal quotes omitted) Although the National City case was decided within the context of an unsuccessful attempt by the city to compel the State of California to go forward with the project as defined, its rule concerning the description of the project has been applied since in a condemnation case. In Burbank-Glendale-Pasadena Airport Authority v. Hensler (1991) 233 Cal. App. 3d 577 the court considered an order by the trial court dismissing the condemnation action because the plaintiff's EIR did not properly describe the project so as to include the defendant's real property. The trial court's order was affirmed. The Henson court stated (p. 592, emphasis added): CEQA mandates that environmental considerations not_become submerged by chopping a large project into many little ones, each with a potential impact on the environment, which cumulatively may have disastrous consequences. (City of Santee v. County of San Diego (1989) 214 Cal.App.3d 1438, 1452 [263 Cal.Rptr. 340].) CEQA attempts to avoid this result by defining the term "project" broadly. (Ibid.) A project under CEQA is the whole of an action which has a potential for resulting in a physical change in the environment, directly or ultimately, and includes the activity which is being approved and which may be subject to several discretionary approvals by governmental agencies. (McQueen v. Board of Directors (1988) 202 Cal.App.3d 1136, 1143 [249 Cal.Rptr. 439].)" (Emphasis City of Santa Clara City Counsel December 11, 2018 Page 6 added.) The Henson court continued (p. 592, emphasis added): An accurate, stable and finite project description is the sine qua non of an informative and legally sufficient EIR; the defined project and not some different project must be the EIR's bona fide subject. (Mira Monte Homeowners Assn. v. County of Ventura (1985) 165 Cal.App.3d 357, 365 [212 Cal-Rptr. 127].) 'CEQA compels an interactive process of assessment of environmental impacts and responsive project modification which must be genuine. It must be open to the public, premised upon a full and meaningful disclosure of the scope, purposes and effect of a consistently described project, with flexibility to respond to unforeseen insights that emerge from the process." (Id., at p. 366, internal quotation marks omitted.) After concluding that the project description in the EIR did not correctly describe the project so as to include the Henson's property which was being condemned, the court stated (p. 594): Accordingly, the procedure followed by appellant violated section 15004, subdivision (b)(1) of title 14 of the California Code of Regulations (hereinafter referred to as Guidelines), which provides that "With public projects, at the earliest feasible time, project sponsors shall incorporate environmental considerations into project conceptualization, design, and planning. CEQA compliance should be completed prior to acquisition of a site for a public project. Thus, the “project” is defined by the specific plan and environmental documents, and cannot “become submerged by chopping a large project into smaller ones, each with a potential impact on the environment, which cumulatively may have disastrous consequences.” In fact, The City of Santa Clara responded to David's request for public records concerning the proposed road by referring to the June 28, 2016 Council agenda (item 14) on the subject of the Master Development Plan. The November 5, 2018 letter from the City Manager regarding the December 11 meeting states in its first paragraph that the City is "considering constructing a road." Thus, no final decision to construct the road has been made. Such action would require environmental review which has not occurred. Furthermore, the law does not permit the local legislative body to approve a road under an agenda item that only refers to the matter of taking away the Banquet Hall. Here, this means that the RON Notice referring to this Project as a mere road relocation project is again pretextual and is in fact a part of the Master Plan discussed herein. Neither the Master Plan nor the realigned road have been finalized or vetted through the environmental process. The real Project is not to be completed within seven years of this action by the City. City of Santa Clara City Counsel December 11, 2018 Page 7 This is further proven by the following section. Therefore, the Notice and the RON are false, pretextual, misleading, flawed and void. VI. THE ENVIRONMENTAL DOCUMENTS DO NOT ADDRESS, ANALYZE OR PERMIT THE USE OF EMINENT DOMAIN. No environmental document has addressed the use of eminent domain as against any property rights and therefore no action can be taken regarding same. The only reference is in the Master Community Plan of April 5, 2017 which states: The acquisition process approved by this Council is addressed in Chapter 8, Infrastructure Overview. Section 8.1 includes a section entitled “Property Acquisition, Dedication & Easements Concept” and states that the majority of the infrastructure shall be constructed within the public right-of-way or dedicated easements. There is no mention of the use of eminent domain to take private property rights from any business or individual. This section also again states that the project layout is merely proposed and not final by stating “[t]he eventual project layout within the project boundaries will ultimately determine the entity that owns, operates and maintains each infrastructure element.” In the Preliminary Infrastructure Master Plan dated August 5, 2016, Section 1.2 states: 1.2 Property Acquisition, Dedication and Easements The Mapping, property acquisition, dedication and acceptance of streets and other infrastructure improvements will occur through the Subdivision Map process in accordance with the City’s Subdivision Code and Regulations. Except as otherwise noted, all infrastructure described in this Plan shall be constructed within the public right-of-way or dedicated easements to provide for access and maintenance of infrastructure facilities. The eventual project layout within the Project boundaries will ultimately determine the entity that owns, operates and maintains each infrastructure element. City Resolutions to address the private infrastructure elements and specific public utility easements will be allowed within the Project as may be necessary to service the development. Utilities in these areas will be installed in accordance with the standards in this Plan and applicable City Regulations for public acquisition and acceptance within public utility easement areas, including provisions for maintenance access. Nowhere in the document does it then go on to specifically note any property acquisition. David’s has a property right in its lease which is not discussed in any environmental document. Therefore, there has been no environmental review of the actions this Council is threatening to take and therefore the actions would be void as a matter of law. City of Santa Clara City Counsel December 11, 2018 Page 8 VII. GOVERNMENT CODE SECTION 7267.2 HAS NOT BEEN SATISFIED. As set forth in City of San Jose v. Great Oaks Water Co. (1987) 192 Cal.App3d 1005 at 1013, “[t]he provisions of Government Code Section 7267.2 are not merely discretionary guidelines, but mandatory requirements which must be observed by any public entity planning to initiate eminent domain proceedings through a resolution of necessity.” The precondemnation offer fails to meet those mandatory requirements. California Government Code section 7267.2 states: (a) (1) Prior to adopting a resolution of necessity pursuant to Section 1245.230 of the Code of Civil Procedure and initiating negotiations for the acquisition of real property, the public entity shall establish an amount that it believes to be just compensation therefore, and shall make an offer to the owner or owners of record to acquire the property for the full amount so established, unless the owner cannot be located with reasonable diligence. The offer may be conditioned upon the legislative body’s ratification of the offer by execution of a contract of acquisition or adoption of a resolution of necessity or both. The amount shall not be less than the public entity’s approved appraisal of the fair market value of the property. A decrease or increase in the fair market value of real property to be acquired prior to the date of valuation caused by the public improvement for which the property is acquired, or by the likelihood that the property would be acquired for the improvement, other than that due to physical deterioration within the reasonable contro! of the owner or occupant, shall be disregarded in determining the compensation for the property. (2) At the time of making the offer described in paragraph (1), the public entity shall provide the property owner with an informational pamphlet detailing the process of eminent domain and the property owner’s rights under the Eminent Domain Law. (b) The public entity shall provide the owner of real property to be acquired with a written statement of, and summary of the basis for, the amount it established as just compensation. The written statement and summary shall contain detail sufficient to indicate clearly the basis for the offer, including, but not limited to, all of the following information: (1) The date of valuation, highest and best use, and applicable zoning of property. (2) The principal transactions, reproduction or replacement cost analysis, or capitalization analysis, supporting the determination of value. (3) If appropriate, the just compensation for the real property acquired and for damages to remaining real property shall be separately stated and shall City of Santa Clara City Counsel December 11, 2018 Page 9 include the calculations and narrative explanation supporting the compensation, including any offsetting benefits. (c) Where the property involved is owner-occupied residential property and contains no more than four residential units, the homeowner shall, upon request, be allowed to review a copy of the appraisal upon which the offer is based. The public entity may, but is not required to, satisfy the written statement, summary, and review requirements of this section by providing the owner a copy of the appraisal on which the offer is based. (d) Notwithstanding subdivision (a), a public entity may make an offer to the owner or owners of record to acquire real property for less than an amount that it believes to be just compensation therefor if (1) the real property is offered for sale by the owner at a specified price less than the amount the public entity believes to be just compensation therefor, (2) the public entity offers a price that is equal to the specified price for which the property is being offered by the landowner, and (3) no federal funds are jnvolved in the acquisition, construction, or project development. (e) As used in subdivision (d), “offered for sale” means any of the following: (1) Directly offered by the landowner to the public entity for a specified price in advance of negotiations by the public entity. (2) Offered for sale to the general public at an advertised or published specified price, set no more than six months prior to, and still available at, the time the public entity initiates contact with the landowner regarding the public entity’s possible acquisition of the property. Thus, prior to adopting this Resolution of Necessity, the City has an affirmative obligation to provide a written statement and summary “which shall contain detail sufficient to indicate clearly the basis for the offer.” The City’s offer has failed to meet this requirement. The “offer” states that it is an offer to purchase the leasehold interest of David’s “i conjunction with this public improvement project.” As noted above, the Project is not properly identified and thus the offer fails in the first paragraph. The offer is for a mere $5,000.00. The California Relocation Assistance and Real Property Acquisition Guidelines require that David’s be paid full payment (just compensation) for David’s interest prior to vacating the real property unless David's waive such requirement. By this letter, David’s clearly states that it does not waive this requirement and demands that it be paid just compensation prior to vacating the real property. The “offer” letter correctly states that if David’s rejects the City’s offer. David’s is entitled to have the amount of compensation determined by a court of law in accordance with the laws of the State of California. By this letter, David’s demands that a court City of Santa Clara City Counsel December 11, 2018 Page 10 of law (by way of a jury trial) determines the amount of compensation prior to being forced to vacate the property. The $5,000.00 offer is an unconscionably low amount and fails to satisfy this statutory requirement. First, the “offer” uses a date of value of July 5, 2018. This appraisal is therefore over five months stale. The economy has changed in David’s favor since then. To be a valid appraisal, the date of value must be at the date of the Resolution of Necessity hearing. David’s requests a new appraisal be performed with a more recent date of value. David’s is entitled to the fair market value of the property being taken. California Code of Civil Procedure section 1263.310 states: Compensation shall be awarded for the property taken. The measure of this compensation is the fair market value of the property taken. The statutory definition of fair market value is found in California Code of Civil Procedure section 1263.320 (a): The fair market value of the property taken is the highest price on the date of valuation that would be agreed to by a seller being willing to sell but under no particular or urgent necessity for doing so, nor obliged to sell, and the buyer being ready, willing, and able to buy but under no particular necessity for so doing, each dealing with the other with full knowledge of all the uses and purposes for which the property is reasonably adaptable and available. (Bolding added.) Therefore, David’s is entitled to the “highest price” for the property being taken. Not the average price, or the most reasonable price, but the “highest price.” The property is to be valued under its “highest and best use.” This means the most advantageous and profitable use to which the property is adaptable, considering the present and future business conditions of the surrounding market. The “offer” appraiser initially correctly states that the appraisal is based upon the standard of the “highest price” (in the BASIS OF VALUATION) section. However, the appraisal then switches back to the definition of “most probable price” by citing the Dictionary of Real Estate Appraisal, 4" Edition. By using the definition and standard of “most probable price” rather than “highest price,” the appraisal is in violation of the statutory scheme and state constitution. It is therefore fatally flawed and invalid. David’s requests that a proper appraisal be performed using only the proper definition of “highest price.” Finally, and perhaps most importantly, the appraisal is not even signed by an appraiser. The offer and appraisal is only signed by the City Manager. The appraisal is therefore void. It cannot form the basis of a proper appraisal as required by law when it is not signed by an appraiser. Based upon the above, the City has failed to provide a proper appraisal as required by law. City of Santa Clara City Counsel December 11, 2018 Page 11 VII. THE CITY HAS FAILED TO PROVIDE ANY LOCATION FOR DAVID’S TO RELOCATE. The California Relocation Assistance and Real Property Acquisition Guidelines require When a government agency takes property using eminent domain and a business is operating in the property, the agency has certain relocation requirements and obligations to the business owner. Below is a list of relocation requirements that the defendants’ believe the City in this case has failed to comply with. 25 CCR 6000. 6006. Regulations (@) Each public entity before undertaking or participating in activity, which will result in the displacement of persons shall adopt rules and regulations that implement the requirements of the Act, are in accordance with the provisions of the Guidelines, and prescribe additional procedures and requirements that are appropriate to the particular activities of the public entity and not inconsistent with the Act or Guidelines. § 6010. Prior Determinations (a) Displacement. No public entity may proceed with any phase of a project or other activity, which will result in the displacement of any person, business or farm until it makes the following determinations: (1) Fair and reasonable relocation payments will be provided to eligible persons as required by Article 3 (Relocation Payments) of the Guidelines. (2) A relocation assistance program offering the services described in Article 2 (Relocation Advisory Services) of the Guidelines will be established. (3) Eligible persons will be adequately informed of the assistance, benefits, policies, practices and procedures, including grievance procedures, provided for in these Guidelines. (6) A relocation plan meeting the requirements of section 6038 has been prepared. § 6032. Relocation Assistance Advisory Program Such program shall be administered so as to provide advisory services which offer maximum assistance to minimize the hardship of displacement and to ensure that (a) all persons displaced from their City of Santa Clara City Counsel December 11, 2018 Page 12 dwellings are relocated into housing meeting the criteria for comparable replacement housing, and (b) all persons displaced from their places of business or farm operations are assisted in reestablishing with a minimum of delay and loss of earnings. § 6040. Minimum Requirements of Relocation Assistance Advisory Program (a) Each relocation assistance advisory program undertaken pursuant to this Article shall include, at a minimum, such measures, facilities or services as may be necessary or appropriate in order to: (1) Fully inform eligible persons under this Article within 60 days following the initiation of negotiations but not later than the close of escrow on the property, for a parcel as to the availability of relocation benefits and assistance and the eligibility requirements therefor, as well as the procedures for obtaining such benefits and assistance, in accordance with the requirements of section 6046. For projects by private parties with an agreement with a public entity, the "initiation of negotiations" shall be the later of the date of acquisition or the date of the written agreement between the private entity and the public entity for purposes of acquiring or developing the property for the project. (2) Determine the extent of the need of each such eligible person for relocation assistance in accordance with the requirements of section 6048. (4) Provide current and continuing information on the availability, prices, and rentals of comparable sales and rental housing, and of comparable commercial properties and locations, and as to security deposits, closing costs, typical down payments, interest rates, and terms for residential property in the area. (5) Assist each eligible person to complete applications for payments and benefits. (7) Assist each eligible person displaced from his business or farm operation in obtaining and becoming established in a suitable replacement location. (9) Supply to such eligible persons information concerning federal and state housing programs, disaster loan and other programs administered by the Small Business Administration, and other federal or state programs, offering assistance to displaced persons. City of Santa Clara City Counsel December 11, 2018 Page 13 @ If the public entity has not fulfilled or is not substantially fulfilling its relocation responsibilities, it shall cease displacement until such time as its responsibilities are fulfilled. When appropriate project implementation shall be suspended or terminated. While the City has been working with David’s regarding relocation, the assistance has been and is incomplete. The City has failed to comply with the above California Code of Regulations sections, including but not limited to: e Failing to provide David’s with fair and reasonable relocation payments; Failing to adequately provide the business with required advisory services; Failing to adequately and effectively inform the business of relocation requirements; Failing to provide adequate advisory services to the business resulting in hardship; Failing to inform and provide the business with the availability of relocation benefits and assistance; Failing to adequately survey and analyze the business’ relocation needs; Failing to adequately provide the business with continuous and current information on the availability of suitable replacement sites; Failing to assist the business in applying for relocation payments; and ° Failing to assist the business in obtaining a suitable replacement site. David’s should be granted the relief under CCR 25 CCR §6000, §6006 entitled Remedies “Tf the public entity has not fulfilled or is not substantially fulfilling its relocation responsibilities, it shall cease displacement until such time as its responsibilities are fulfilled. When appropriate project implementation shall be suspended or terminated (emphasis added). David’s is entitled to these remedies and that until the City has fulfilled or substantially fulfilled its relocation obligations, displacement shall cease. Additionally, the City has failed to comply with the portions of California Government Code Section 7260.5, et seq. as follows. City of Santa Clara City Counsel December 11, 2018 Page 14 7261. (a) Programs or projects undertaken by a public entity shall be planned in a manner that (1) recognizes, at an early stage in the planning of the programs or projects and before the commencement of any actions which will cause displacements, the problems associated with the displacement of individuals, families, businesses, and farm operations, and (2) provides for the resolution of these problems in order to minimize adverse impacts on displaced persons and to expedite program or project advancement and completion. (c) This advisory assistance shall include those measures, facilities, or services which are necessary or appropriate to do all of the following: (1) Determine and make timely recommendations on the needs and preferences, if any, of displaced persons for relocation assistance. (2) Provide current and continuing information on the availability, sales prices, and rentals of comparable replacement dwellings for displaced homeowners and tenants, and suitable locations for businesses and farm operations. (3) Assure that, within a reasonable time period prior to displacement, to the extent that it can be reasonably accomplished, there will be available in areas not generally less desirable in regard to public utilities and public and commercial facilities, and at rents or prices within the financial means of displaced families and individuals, decent, safe, and sanitary dwellings, sufficient in number to meet the needs of, and available to, those displaced persons requiring those dwellings and reasonably accessible to their places of employment, except that, in the case of a federally funded project, a waiver may be obtained from the federal governmen