City proceeds with plans for new assessment district
By Kara Chalmers
Construction is set to begin in May, for the Vessing Road Assessment District improvements, even though one Quito Road resident who lives on the border says the district is not legal.
The city formed the assessment district in April 1999, to finance changing private Vessing Road to a public road. According to acting public works director John Cherbone, some Vessing Road homeowners wanted their private road improved and maintained by the city. But all public roads in Saratoga must be 22 feet wide, and Vessing Road is only 17.
Lester Hinz owns 6,511 square feet of property bordering Vessing Road the city says it needs to acquire to widen the road. The city filed a lawsuit in September 1999 against Hinz, since he would not voluntarily give up the property. The city received an appraised value of $1,000 for the property.
Hinz said he liked the private nature of Vessing Road, and he did not want the city to pave over the trees and shrubs which effectively screen his home from the street. He also said the city is not taking the land for a public use, which is one of the requirements of claiming eminent domain. Unless they live on Vessing Road or Vessing Court, the public would have no reason to use the road, Hinz said.
The condemnation trial was drawn out till February, since a judge granted Hinz a stay in September on the city's prejudgment order of possession. The stay halted plans for any construction work. In February, during the first phase of the trial, another judge found that the city was authorized in taking over Hinz's land and lifted the stay. In the second phase of the trial, which is tentatively set to begin in September, a judge will decide how much to compensate Hinz.
The city's order of possession will take effect on April 17, city attorney Richard Taylor said. The order would have come through earlier if Hinz hadn't been granted the stay.
The city awarded a construction contract to Duran and Venables Inc., of Milpitas on April 5, so the project can begin. The city is planning improvements, including new water lines, for the district. According to Taylor, eminent domain law holds that the city can start the project even before Hinz is compensated.
Hinz's attorney, Paul Pelosi, said that while the city claims it can have possession on April 17, he thinks the date should actually be 60 days later on June 17. According to Pelosi, this is a gray area of law. Also, he said he wants to make sure that Hinz will be able to appeal the February court ruling next fall. Hinz can't appeal anything until the second and final portion of the trial is over, Pelosi said.
"We're in discussions with the city's attorneys to come to a resolution so that the city can have the property to do the project, but that Hinz will still have his right to appeal," Pelosi said.
Hinz says he will appeal on the basis that the assessment district was not legal in the first place.
"It was illegally formed," he said. "It was formed for the benefit of private properties, there is no public use." Additionally, Hinz said that he was illegally removed from the district so that he would not have the voting power to challenge the district's formation.
In the first phase of the trial in February, Hinz attempted to challenge the district's legality but the judge would not allow it, saying Hinz should have challenged the district within 30 days of its formation.
According to Hinz, the fact that the district was not challenged in its first 30 days does not make it right, and the fact that the public didn't challenge it does not mean there is a public necessity for it.
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Saratoga, California Since 1955
