HomeMy WebLinkAbout2024-11-21 Item 2AFrom:Miguel Guevara
To:City Clerk
Subject:Public comment on item 2.A for Council meeting on Nov 21/024
Date:Thursday, November 21, 2024 11:16:49 AM
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unless you are sure the content is safe.
Dear Public Clerk:
I write to the Council in the matter of the "RESOLUTION OF NECESSITY OF THE CITY
COUNCIL OF THE CITY OF PALM SPRINGS FOR THE ACQUISITION BY EMINENT
DOMAIN OF A PERMANENT NON-EXCLUSIVE EASEMENT INTEREST IN A
PORTION OF CERTAIN REAL PROPERTY LOCATED IN PALM SPRINGS, COUNTY
OF RIVERSIDE, CALIFORNIA AND MORE PARTICULARLY DESCRIBED AS
ASSESSOR PARCEL NO. 513-144-012 FOR THE PLAZA THEATRE RESTORATION
PROJECT"
After reading the City Staff report on the matter [link], I am compelled to share the following
points:
1. City Staff failed to provide a comprehensive list of alternatives considered. I was
surprised to find the report written in a manner that had a conclusion in mind (mostly to
acquire the property in question), rather than a thorough research of different
possibilities
2. The public interest of those affected by making the decision of declaring eminent
domain were not considered. As a patron of Kalura and a regular user of the patio, my
perspective, and that of others, failed to make it to the report. I recommend a full
discussion on the public interest of all parties.
Therefore, I urge the council to not vote in favor of this motion, as more research is needed to
fully consider all alternatives, and the impact of this proposal.
11/21/2024
Public Comment
Item 2A
From:Llubi Rios
To:City Clerk
Cc:Scott Stiles; Cindy Cairns
Subject:FW: Resolution of Necessity
Date:Thursday, November 21, 2024 9:01:04 AM
Please see public comment below-
From: Anthony Duggan <anthony@lawrencemooreassociates.com>
Sent: Wednesday, November 20, 2024 11:03 PM
To: CityManager <CityManager@palmspringsca.gov>
Subject: Resolution of Necessity
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attachments unless you are sure the content is safe.
Dear Scott Stiles and Council Members,
I am writing this email to oppose the motion of resolution of necessity. This is an abuse
of eminent domain defiantly not a public necessity.
Kalura Trattoria has been a pillar of the Palm Springs community for 22 years. They are a
family-owned business and have served not only all the tourists that bring much needed
income to Palm Springs, but the locals and families that have celebrated momentous
occasions at Kalura Trattoria for many years as well.
This resolution prioritizes private interests NOT Public. If passed, it will cause major
financial losses to Kalura Trattoria and most importantly please keep in consideration
that this will devastate the livelihoods of the 18 families who have worked there for
years.
Please vote no on this resolution of necessity and save Kalura Trattoria and their
employees’ livelihoods.
Yours Sincerely,
Anthony Duggan
11/21/2024
Public Comment
Item 2A
From:Felix, Lupe
To:City Clerk
Cc:Whittaker, Vincent; Chaidez, Emily S.
Subject:AMENDED Request to Appear and Be Heard at November 21, 2024 City Council Meeting [IMAN-BN.FID5256218]
Date:Wednesday, November 13, 2024 9:30:36 AM
Attachments:2024.11.13 AMENDED Grit Development Request to Appear.pdf
Importance:High
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unless you are sure the content is safe.
Good Morning Ms. Pree,
Attached please find Grit Development’s AMENDED Request to Appear
for your review. The prior email sent to you today, please disregard. It was sent
in error on my behalf.
If you have any questions or concerns please let us know.
Buchalter
Lupe Felix she/her/hers
Legal Assistant
T (619) 219-6327
lfelix@buchalter.com
655 W. Broadway, Suite 1600
San Diego, CA 92101
www.buchalter.com
Notice To Recipient: This e-mail is meant for only the intended recipient of the transmission, and may be a
communication privileged by law. If you received this e-mail in error, any review, use, dissemination,
distribution, or copying of this e-mail is strictly prohibited. Please notify us immediately of the error by return
e-mail and please delete this message and any and all duplicates of this message from your system. Thank
you in advance for your cooperation. For additional policies governing this e-mail, please see
http://www.buchalter.com/about/firm-policies/.
11/21/2024
Public Comment
Item 2A
November 13, 2024
VIA E-MAIL (CITYCLERK@PALMSPRINGSCA.GOV) AND REGULAR MAIL
Brenda Pree, MMC, CERA
City Clerk
City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, California 92262
Re: Request to Appear and Be Heard at November 21, 2024 City Council Meeting
Ms. Pree:
We represent Grit Development, LLC. We are in receipt of the Notice of Hearing to
Property Owner wherein the City of Palm Springs expresses its intent to consider adopting a
Resolution of Necessity at a regular meeting to be held on Thursday, November 21, 2024 at 5:30
p.m. More specifically, the City will consider adopting a Resolution that it is necessary to expand
the width of an existing easement on Assessor Parcel Number 513-144-012, owned by Grit
Development, LLC, for purposes of the City’s Plaza Theatre Restoration Project.
In accordance with the Notice and Code of Civil Procedure section 1245.235, Grit
Development, LLC hereby requests to appear live at the City Council meeting on November 21,
2024 and to be heard regarding adoption of the aforementioned Resolution of Necessity.
As a preliminary matter, we note that the legal description of the property to be taken is
deficient in that it provides no specificity as to the size, precise location, or metes and bounds of
the proposed permanent easement. Moreover, it is not clear that the Plaza Theatre Restoration
Project is indeed a City project or that this property is in fact necessary for any such project.
Rather, the proposed easement appears to be for the benefit of the Palm Springs Plaza Theatre
Foundation, which is not a public entity but a private non-profit organization. If a resolution has
been passed by the City Council conferring upon a quasi-public-entity the authority to exercise
the City’s power of eminent domain, it has not been provided to our client and we would request
an immediate copy for review.
11/21/2024
Public Comment
Item 2A
In light of the foregoing, we strongly urge the City to consider re-noticing the hearing on
the Resolution of Necessity to correct the legal description of the property and clarify that this is
indeed a public, rather than a private project which necessitates the condemnation of our client’s
property.
We look forward to your anticipated cooperation and prompt response in this matter.
Very truly yours,
BUCHALTER
A Professional Corporation
Vincent Whittaker
VW:lf
11/21/2024
Public Comment
Item 2A
From:jeffjt410@aol.com
To:Jeffrey Bernstein; Grace Garner; Ron deHarte; Christy Holstege; Lisa Middleton; Alyssa Chavez; Scott Stiles; City
Clerk
Subject:Kalura Trattoria
Date:Wednesday, November 20, 2024 9:36:01 PM
NOTICE: This message originated outside of The City of Palm Springs -- DO NOT CLICK on links or open attachments
unless you are sure the content is safe.
Honorable Mayor Bernstein and city council members -
I am writing to express strong opposition to the Resolution of Necessity for eminent
domain to acquire Kalura Trattoria's patio for the Plaza Theatre project. This
resolution is NOT public necessity and prioritizes private business interests
threatening the livelihoods of 18 families that work at Kalura, and could also put
Kalura out of business. The employees have become like family members to all of us
in the community.
For 22 years, Kalura Trattoria has thrived alongside the Follies Theatre without ANY
issues, demonstrating that the coexistence is feasible and beneficial to the
community. I have been a resident of Palm Springs since 2011 and have been a
patron of both The Follies and Kalura for many years before that. Never once was
there an issue with the plaza outside the entrance. I feel it has actually been the
opposite, it has been wonderful to leave the show at the theater and exit to a beautiful
lively courtyard with patrons dining. Devastating Kalura Trattoria would eliminate a
beloved institution and landmark. As a patron, we value their presence, and I am
currently one of 600 signed petitions within just one week, showcasing public
opposition to the use of eminent domain. Anytime I have out of town visitors, they
request I take them to Kalura, it has been one of the few places to enjoy an amazing
meal while enjoying the beautiful Palm Springs evenings on the patio with a view of
the mountains.
As a resident, I urge you to reject the Resolution of Necessity, protecting Kalura
Trattoria and our community's character. I know the owners will be willing to work with
the city to find alternative solutions that benefit everyone.
Thank you for considering our concerns.
Best-
Jeff Thomas
JEFFTHOMAS
Executive Producer I NZK PRODUCTIONS | ABC's The Bachelor, The Bachelorette | MOBILE 818.389.3476
11/21/2024
Public Comment
Item 2A
From:Llubi Rios
To:Scott Stiles
Cc:City Clerk; Cindy Cairns
Subject:Public comment
Date:Wednesday, November 20, 2024 4:34:15 PM
Attachments:Scanned from a Xerox Multifunction Printer.pdf
Scott, please see attached a letter regarding Kalura Trattoria.
Thank you,
LLUBI RIOS | EXECUTIVE SERVICES ADMINISTRATOR
City of Palm Springs | Office of the City Manager
3200 E. Tahquitz Canyon Way, Palm Springs, CA 92262
t: 760.322.8362 | f: 760.323.8207 | Llubi.rios@palmspringsca.gov
11/21/2024
Public Comment
Item 2A
11/21/2024
Public Comment
Item 2A
From:kaluratrattoria
To:Jeff Ballinger
Cc:Scott Stiles; Teresa Gallavan; ibattaglia@aol.com; Jeffrey Bernstein; Grace Garner; Lisa Middleton; Ron deHarte;
City Clerk; Alyssa Chavez; Christy Holstege
Subject:RE: FW: Subject: Communication Protocol and Transparency Request
Date:Wednesday, November 20, 2024 7:41:37 AM
NOTICE: This message originated outside of The City of Palm Springs -- DO NOT CLICK on links or open attachments
unless you are sure the content is safe.
Dear Mr. Bellinger,
We are writing to express our deep concern regarding the lack of transparency exhibited by
your firm representing the City of Palm Springs in the eminent domain proceedings involving
Kalura Trattoria.
As you are aware, Kalura Trattoria cannot accept any offer that is not supported by relevant
documentation. We urge you to provide our establishment with the assessor's detailed report,
essential for evaluating the proposed offer. The absence of this documentation undermines the
transparency and fairness of these proceedings.
On July 24, 2024, we had a two-hour meeting with City-appointed assessor Madeline,
providing all requested information necessary for the assessment. Despite this, we have yet to
receive the required documentation.
- Provide the assessor's detailed report.
- Ensure transparency throughout the eminent domain proceedings.
Ignazio &Joseph
Kalura Trattoria
-------- Original message --------
From: Jeff Ballinger <Jeff.Ballinger@bbklaw.com>
Date: 11/19/24 10:11 AM (GMT-08:00)
To: kaluratrattoria <kaluratrattoria@aol.com>
Cc: Scott Stiles <Scott.Stiles@palmspringsca.gov>, "Teresa Gallavan
(Teresa.Gallavan@palmspringsca.gov)" <Teresa.Gallavan@palmspringsca.gov>,
ibattaglia@aol.com
Subject: RE: FW: Subject: Communication Protocol and Transparency Request
Dear Pino and Ignacio:
11/21/2024
Public Comment
Item 2A
Thank you for your email. The City is always willing to discuss these issues. While we
appreciate your interpretation of Code of Civil Procedure section 1263.520, please note that
this section (along with the entire Article 6, [CCP 1263.510-1263.530]) deals with
compensation for loss of goodwill and there is really no other statute that would provide for
compensation for lost profits, increases costs, etc. that are separate and apart from a claim for
loss of goodwill. With that said, a goodwill analysis takes into account all such claimed
damages as the City’s goodwill expert has done in this case.
As it relates to relocation benefits, the California Relocation Assistance Law, Government
Code sections 7260 et seq., is separate and apart from these claims for lost goodwill. If Kalura
is relocating, the City will provide relocation counseling assistance. Attached is an
informational pamphlet on the eminent domain process, and it also discusses these concepts.
Not all of this information is applicable to Kalura, but it may help answer some questions.
Thanks,
Jeffrey Ballinger
(He/Him)
Partner
jeff.ballinger@bbklaw.com
T: (619) 525-1343 | C: (909) 528-9400
bbklaw.com |
From: kaluratrattoria <kaluratrattoria@aol.com>
Sent: Monday, November 18, 2024 2:59 PM
To: Jeff Ballinger <Jeff.Ballinger@bbklaw.com>
Cc: Scott Stiles <Scott.Stiles@palmspringsca.gov>; Teresa Gallavan
(Teresa.Gallavan@palmspringsca.gov) <Teresa.Gallavan@palmspringsca.gov>; ibattaglia@aol.com
Subject: RE: FW: Subject: Communication Protocol and Transparency Request
CAUTION - EXTERNAL SENDER.
11/21/2024
Public Comment
Item 2A
Dear Jeffrey Bellinger
Re: Eminent Domain Proceedings for Kalura Trattoria
Thank you for your letter clarifying the City's position on goodwill and economic damages.
We appreciate your willingness to discuss further.
However, we disagree with your assertion that Kalura Trattoria is only entitled to lost
goodwill. Under California Code of Civil Procedure § 1263.520, we are entitled to seek
economic damages beyond goodwill.
Our economic damages include:
- Business interruption damages
- Lost profits
- Damage to reputation
- Increased costs of operation
- Relocation costs
We request:
1. Recognition of our right to seek economic damages under § 1263.520.
2. Please provide a response to the previously requested detailed information of assessor
report.
*Relocation Assistance*
Under California law, businesses displaced by eminent domain are entitled to relocation
assistance.
*Eligible Relocation Expenses*
1. Moving costs
2. Lease or rental payments
3. Equipment installation
4. Employee retraining
5. Advertising and signage
*Statutes*
1. California Code of Civil Procedure § 1263.510 (relocation benefits)
2. Government Code § 7262 (relocation assistance)
We also request relocation assistance, as outlined in California Code of Civil Procedure §
1263.510 and Government Code § 7262, to cover:
11/21/2024
Public Comment
Item 2A
- Moving costs
- Lease or rental payments
- Equipment installation
- Employee retraining
- Advertising and signage
Thank you.
-------- Original message --------
From: Jeff Ballinger <Jeff.Ballinger@bbklaw.com>
Date: 11/18/24 11:44 AM (GMT-08:00)
To: kaluratrattoria@aol.com
Cc: Scott Stiles <Scott.Stiles@palmspringsca.gov>, "Teresa Gallavan
(Teresa.Gallavan@palmspringsca.gov)" <Teresa.Gallavan@palmspringsca.gov>
Subject: FW: Subject: Communication Protocol and Transparency Request
Pino and Ignacio,
I wanted to follow up from our last meeting on October 29. I think there might be some
confusion about the City’s offer to pay for loss of Kalura’s “goodwill”. The City and it’s
goodwill appraiser are certainly available to sit down with you, either in person or by Zoom,
and go over your questions. However, I think it is important that we are all on the same page
as to what “goodwill” is, and what it isn’t.
Goodwill is defined under California’s Eminent Domain Law as “the benefits that accrue to a
business as a result of its location, reputation for dependability, skill or quality, and any other
circumstances resulting in probable retention of old or acquisition of new patronage.” (Cal.
Code of Civ. Proc., section 1263.510.)
Goodwill is different from “economic damages”, which is what you appear to be seeking.
Increased costs of wine, increased employee costs, new POS equipment – all of those are
considered economic damages that you are alleging will be suffered.
11/21/2024
Public Comment
Item 2A
While these potential economic damages are factored into “goodwill”, they are not the same
thing. And, under California’s Eminent Domain Law, a business such as yours is not entitled
to economic damages. It is only entitled to lost goodwill.
I hope this is a sufficiently clear explanation, but if you’d like to discuss more, we are
certainly willing to do that. If you’d like to set up a time, just let us know.
Thanks.
Jeffrey Ballinger
(He/Him)
Partner
jeff.ballinger@bbklaw.com
T: (619) 525-1343 | C: (909) 528-9400
bbklaw.com |
From: kaluratrattoria <kaluratrattoria@aol.com>
Sent: Friday, November 8, 2024 1:54:22 AM
To: Jeff Ballinger-C <Jeff.Ballinger-C@palmspringsca.gov>; Teresa Gallavan
<Teresa.Gallavan@palmspringsca.gov>
Cc: Jeffrey Bernstein <Jeffrey.Bernstein@palmspringsca.gov>; Lisa Middleton
<Lisa.Middleton@palmspringsca.gov>; Grace Garner <Grace.Garner@palmspringsca.gov>; Ron
deHarte <Ron.deHarte@palmspringsca.gov>; Christy Holstege
<Christy.Holstege@palmspringsca.gov>; Alyssa Chavez <Alyssa.Chavez@palmspringsca.gov>;
Michael Braun <Michael@gritps.com>; Octavio Fernandez <Octavio@gritps.com>;
ibattaglia@aol.com <ibattaglia@aol.com>
Subject: Subject: Communication Protocol and Transparency Request
NOTICE: This message originated outside of The City of Palm Springs -- DO NOT CLICK on links or open
attachments unless you are sure the content is safe.
11/21/2024
Public Comment
Item 2A
Kalura Trattoria
Jeffrey Bellinger, City Attorney
Teresa Gallavan, City assistant Manager
City of Palm Springs.
Dear Mr. Bellinger and Ms. Gallavan,
We are writing to establish a clear communication protocol and reiterate our requests for
transparency regarding the Plaza Theater redevelopment project and proposed sidewalk patio.
*Communication Protocol*
From this date forward, all communication between Kalura Trattoria and the City of Palm
Springs will be in writing. This ensures accuracy, clarity, and a paper trail for future reference.
*Business Operations*
As business owners, we must prioritize Kalura Trattoria's daily operations. Verbal discussions
and meetings have disrupted our workflow for the past ten months. Written communication
will streamline interactions.
*Transparency Requirements*
All future offers, proposals, or communications regarding the project must:
1. Be in writing.
2. Include supporting documents.
3. Provide clear explanations.
4. Be publicly accessible.
*Draft Assessment Report*
We reiterate our request for the draft assessment report prepared by Madeleine, which took
four months to complete. The verbal offer of $95,000 lacks transparency and substantiation.
*Petition Process*
We have initiated a petition to gather community support, demonstrating opposition to the
project's handling and city intention and threats to use eminent domain.
*Action Items*
1. Provide the draft assessment report.
2. Submit written offers with supporting documents.
3. Ensure transparency and public accessibility.
Thank you for your understanding.
11/21/2024
Public Comment
Item 2A
Sincerely,
Ignazio Battaglia
Joseph Amodeo
Kalura Trattoria
11/21/2024
Public Comment
Item 2A
From:Jeffrey Bernstein
To:City Clerk
Subject:Fwd: Opposition to Misleading Representation
Date:Sunday, November 17, 2024 6:39:15 PM
Thank you!
Jeffrey
Jeffrey Bernstein
Mayor
City of Palm Springs
442-305-9942
Jeffrey.Bernstein@palmspringsca.gov
Begin forwarded message:
From: kaluratrattoria <kaluratrattoria@aol.com>
Subject: Opposition to Misleading Representation
Date: November 12, 2024 at 3:26:52 PM PST
To: Jeffrey.Bernstein@palmspringsca.gov, Lisa.Middleton@palmspringsca.gov, Grace.Garner@palmspringsca.gov, Ron.deHarte@palmspringsca.gov,
Christy.Holstege@palmspringsca.gov, alyssa.chavez@palmspringsca.gov, Jeff.Ballinger-C@palmspringsca.gov, Scott.Stiles@palmspringsca.gov, Michael Braun
<Michael@gritps.com>, Octavio Fernandez <Octavio@gritps.com>
Cc: kaluratrattoria@aol.com, ibattaglia@aol.com
NOTICE: This message originated outside of The City of Palm Springs -- DO NOT CLICK on links or open attachments unless you are sure the content is safe.
To the Honorable Mayor and City Council Members,
We ignazio Battaglia, Joseph Amodeo leaseholder of Kalura Trattoria, write to express strong opposition to the city's misleading representation of the proposed theatre project.
*Misrepresentation*
1. Posted pictures exclude Kalura Trattoria's patio, misrepresenting the project's impact.
2. Omitting Kalura Trattoria from visuals, ignoring community concerns.
3. Falsely implying Kalura Trattoria's relocation or demolition.
*Damages to Business*
1. Loss of revenue due to uncertainty.
2. Damage to reputation.
3. Emotional distress.
4. Decreased property value.
*Lack of Agreement*
No agreement has been reached regarding:
1. Fair compensation.
2. Relocation terms.
3. Alternative solutions.
*Intent to Seek Damages*
Our attorney will file for damages under applicable laws:
1. California Civil Code § 1708.5 (Tortious Interference).
2. 42 U.S.C. § 1983 (Civil Rights).
3. California Code of Civil Procedure § 425.16 (Strategic Lawsuit Against Public Participation).
*Request*
1. Correct misleading representations.
2. Provide accurate information.
3. Engage in meaningful negotiations.
4. Immediately remove the Plaza Theatre poster that falsely depicts the area without Kalura Trattoria's patio.
5. Issue a public clarification statement.
*Supporting Documents*
1. City's posted pictures.
2. Community Impact.
Best Regards
Ignazio Battaglia
Joseph Amodeo
Kalura Trattoria
11/21/2024
Public Comment
Item 2A
Kalura Trattoria
11/21/2024
Public Comment
Item 2A
11/21/2024
Public Comment
Item 2A
11/21/2024
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Public Hearing Comment Outline -Resolution of Necessity Hearing
City of Palm Springs v. Grit Development, LLC
11/21/2024
We are in favor of the Plaza Theatre Restoration Project, but want to ensure it is
done correctly. Here, the City's pre-condemnation offer and hearing staff report do
not satisfy the requirements for the City to approve an eminent domain action, for
the following reasons:
"Tl -I :c '"
(')
(')
I.The Required Findings Are Not Supported by the Staff Report:
% C> < "' -
C>
1)Pursuant to CCP § 1245.230, a resolution of necessity shall contain:
:D "'
(') "' < "' C
a)A general statement of the public use for which the property is
to be taken with a reference to the statute that authorizes the
public entity to acquire the property by eminent domain;
b)A description of the general location and extent of the property
to be taken, with sufficient detail for reasonable identification;
c)A declaration that the governing body of the public entity has
found and determined each of the following:
1.The public interest and necessity require the proposed
project.
2.The proposed project is planned or located in the manner
that will be most compatible with the greatest public
good and the least private injury.
3.The property described in the resolution is necessary for
the proposed project.
4.That the offer required by Section 7267.2 of the Gov.
Code has been made to the owner or owners of record.
2)Here, all three elements (i.e., subsections A, B, and C) are lacking in
sufficient detail to enable the City Council to meaningfully consider
Page I of II
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Item 2A
and adopt the resolution without fatally compromising the ensuing
eminent domain litigation:
3)Subdivision (a) PUBLIC USE1.The description of the Project is not a sufficient description
from a public use standpoint.
1.Is this truly the only alternative? I will address that
shortly.
2.No other details other than that it will widen the existing
easement "to meet current California building code safety
standards."
3.The "public use" identified in the appraisal and offer was
for "gathering, staging, holding events, hosting VIP
reception areas, conducting special events, and any other
related or accessory uses that may be deemed by the City
to be necessary or convenient by the City together with
all necessary rights ... " This is NOT the same and is NOT
a public use.
a.What is the "necessary" use now? Can't reserve
for future uses:
b."The principles of Vester apply here, where the
city council essentially proclaimed: "We are
authorized to take this land for a public use. We do
not yet know what use that is. Therefore, the
proposed project consists of any of the possible
uses that are authorized by statute." A hopelessly
obscure description of the project in a resolution of
necessity cannot be justified simply because the
Page 2 of 11
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Item 2A
governing body has incanted every statutorily
authorized purpose. A statement that the property
is being taken for any or all of the authorized
purposes listed in the Government Code or Code
of Civil Procedure amounts to a failure to disclose
the purpose of the taking." City of Stockton v.
Marina Towers, LLC, 171 Cal.App.4th 93, 113
(2009). 11.Gov. Code § 37350.5 states: "A city may acquire by eminent
domain any property necessary to carry out any of its powers or
functions." This is the statute cited by the City as to its power to
condemn by eminent domain.
a.Their citation to the government code does not
include a nexus to how a privately operated theater
is a government power or function.
2.No citation in the Resolution to CA Building Code
a.If this is really an easement of necessity why isn't
the code section requiring this cited in the
resolution of necessity?
4)Subdivision (b)-DESCRIPTION OF LOCATION AND
EXTENT OF PROPERTY
1.This is a particularly alarming omission: the Resolution
attached to the Staff Report was updated on Tuesday night
(11/19) to include Exhibit A, which is the first time the property
owner has been provided with the "legal definition, legal
description, and depiction of the Property sought to be
acquired."
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11.While this approach is technically permitted for special
meetings under the Brown Act ( only requires 24 hours' advance
posting), it is far from a transparent process and it renders the
offer questionable, because it did not describe the property to be
acquired.
5)Subdivision (c)-FINDING & DETERMINATION THAT:1.PUBLIC INTEREST/NECESSITY OF PROJECT
1.This ties into the first argument that the public use is not
appropriately identified
2.The City has identified a "Public Project" but has still not
explained the nexus between the private operator
beneficiary of the Project and the City's involvement
aside from funding and exercising the drastic power of
eminent domain.
3.Contrasting public interests/necessity:
a.Council has to make its own independent
FINDING that there is a public interest and
necessity for this project, not just rubber stamp
what staff has said.
1.Staff Report: "necessary to allow safe access
to and from the City-owned historic Plaza
Theatre"
11.Appraisal: At4lt aisat "for the purpose of
providing safe, code-compliant ingress and
egress to and from the adjacent
property ... including the right to use the
Permanent Easement area for gathering,
Page 4 of IJ
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staging, holding events, hosting VIP
reception areas, conducting special events,
and any other related or accessory uses that
may be deemed by the City to be necessary
or convenient for the operation or use of the
Benefited Parcel and other public uses, as
determined necessary or convenient by the
City" 111."In Norm's Slauson a redevelopment agency
contracted with a developer and issued
revenue bonds to finance a project before
holding any hearings on public necessity.
Thus, the agency had "irrevocably
committed itself to take the property in
question, regardless of any evidence that
might be presented at that hearing. (Norm's
Slauson, supra, at p. 1127, 219 Cal.Rptr.
365.)" Inglewood Redevelopment Agency v.
Aklilu, 153 Cal. App. 4th 1095, (2007), as
modified (Aug. 20, 2007)
1v. "In summary, an agency that would take
private property for an alleged public
purpose, must, as a prelude to determining
that there exists the necessary requisites for
taking under Code of Civil Procedure
section 1240.030, conduct a fair hearing and
make its determination on the basis of
Page 5 of 11
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evidence presented in a judicious and non
arbitrary fashion. If it fails to so conduct
itself, it will find itself, as here, having the
burden of proving its case in court with the
court being the final determiner of whether
the taking satisfies Code of Civil Procedure
section 1240.030. The governmental agency
in such a situation cannot act arbitrarily and
then seek the benefit of having its decision
afforded the deference to which it might
otherwise be entitled." Redevelownent J.
Agency v. Norm's Slauson, 173 Cal. App. 3_g
1121, 1129 (19852
v.Here, the City irrevocably committed to this
Project on January 27, 2022 when it
approved the Memorandum of
Understanding with the Palm Springs
Theatre foundation and committed funds to
the Project without having first passed a
resolution of necessity. This is not
permissible under Norm's.
b.Given the inconsistencies between the appraisal
and the staff report, there is not conclusive
evidence that there is in fact a public necessity or
interest here-rather, it is for the use of a private
operator to hold VIP functions.
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c.The City can't just say there is some use that we
will use it for in the future that is public, as
described earlier.
d."The principles of Vester apply here, where the
city council essentially proclaimed: "We are
authorized to take this land for a public use. We do
not yet know what use that is. Therefore, the
proposed project consists of any of the possible
uses that are authorized by statute." A hopelessly
obscure description of the project in a resolution of
necessity cannot be justified simply because the
governing body has incanted every statutorily
authorized purpose. A statement that the property
is being taken for any or all of the authorized
purposes listed in the Government Code or Code
of Civil Procedure amounts to a failure to disclose
the purpose of the taking." City of Stockton v.
Marina Towers, LLC, 171 Cal.App.4th 93, 113
(2009).
11.GREATEST PUBLIC GOOD /LEAST PRIVATE INJURY
1.The City makes no effort to put forth any evidence on
this point. The Staff Report is totally DEVOID of any
other alternatives.
2.The Staff Report only refers to the existing easement and
the fact that it needs to acquire an additional easement.
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3.The City has not shown that it considered any
alternatives, let alone those to ensure the least private
Injury
4.The public entity must engage in a "good faith and
judicious consideration of all of the pros and cons of the
condemnation issues," and its findings of necessity must
be supported by substantial evidence adduced at the
hearing. (11 Miller & Starr, Cal. Real Estate, supra, §
30A:14, p. 20.) If the governing body does not have
before it a definable project for which the property is
sought to be taken, any discussion of the pros and cons of
the condemnation would be an empty gesture and the
necessity findings rendered at the conclusion of the
hearing would be devoid of real meaning. City of
Stockton v. Marina Towers LLC, 171 Cal. App. 4th 93,
109 (2009)
5.This will impose significant private injury-the
restaurant will not be able to operate with the loss of so
much seating could potentially make this an uneconomic
remnant and the owner may lose its tenant early as a
result. These are one-of-a kind locations.111.PROPERTY NECESSARY FOR PROJECT
1.Again, the City does not make any effort to demonstrate
whether it commissioned or considered alternative
designs that may obviate the "necessity" of this property
2.Even the Building Code section cited has alternatives-if
there are numerous exits in the venue, the exits may be
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spread throughout the property to be compliant with the
code.
3.This isn't a matter of speculation; though it may be-the
City should have exhausted all such speculation by
demonstrating that they considered all alternatives. The
fact that none were even considered or mentioned calls
into question whether the required finding of necessity
can be made.
4.For example: From 2022 to early January 2024, the City
hosted City Council events at the theatre and allowed
third-party operators to hold events there, utilizing a
fourth emergency exit provided by the property owner
through Plaza Las Flores. The Follies operated under
these same conditions from 1990s until May 2014-what
has changed in the last 10 years?
5.There's nothing in the staff report that even considers
alternative options, and that is a requirement.
6."the willingness to resort to eminent domain to complete
a project demands that the other alternatives made
possible by eminent domain must also be considered ...
0v Moreover, as the California Supreme Court has held, the
� '> '1 � .JI':)
exercise of eminent domain power for a project meanst,� � � O �-,I'> that a public agency errs insofar as it fails to consider
{_f)\} -t'Y �· other alternatives that may be possible with the same 1Jii!:> \J • / 5�o
\��b eminent domain power. ( Goleta Valley, supra, 52 Cal.3d
at pp. 574-575.) Here, the environmentally superior route
was excluded through selective omission of eminent
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domain as an option." Tull v. Yuba Cnty., No. C068607,
2013 WL 137106, at *9-10 (Cal. Ct. App. Jan. 11, 2013),
as modified on denial of reh'g (Feb. 7, 2013)
7.Without that, how can the Council say they've engaged
in a "good faith and judicious consideration of all of the
pros and cons of the condemnation issues," as required
by Stockton. City of Stockton v. Marina Towers LLC, 171
Cal. App. 4th 93, 109 (2009)IV.OFFERMADE
1.The appraisal is lacking a legal description and is
therefore of questionable validity
2.The public use cited in the offer does not match the
public use cited in the Staff Report and resolution
3.Less than a transparent process Cl,'\c:lleV1� \V'\�
II.The Pro ·ect Lacks Trans and Erodes
forced relocation of a long-term tenant after 20 years, talcing the
property in such a way that the remainder represents an uneconomic
remnant, rendering the building potentially unmarketable, and
exposing the City to litigation risks, and the potential for additional
substantial damages.
b.This is not a transparent project. The property owner is not adverse to
the City revitalizing this theatre or preserving the historic cultural
aspects of this area, but it needs to be done correctly, and this isn't it.
The City needs to revise the offer to include the legal description and
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needs to explore alterative ingress/egress options to satisfy the
standards for a resolution of necessity, at which point the property
owner is happy to continue to engage in meaningful discussions
compliant with the requirements of the law.
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