BILL NUMBER: SB 1622 CHAPTERED
BILL TEXT
CHAPTER 542
FILED WITH SECRETARY OF STATE SEPTEMBER 15, 2004
APPROVED BY GOVERNOR SEPTEMBER 15, 2004
PASSED THE SENATE AUGUST 23, 2004
PASSED THE ASSEMBLY AUGUST 17, 2004
AMENDED IN ASSEMBLY AUGUST 9, 2004
AMENDED IN ASSEMBLY JUNE 24, 2004
AMENDED IN ASSEMBLY JUNE 7, 2004
AMENDED IN SENATE APRIL 1, 2004
INTRODUCED BY Senator Perata
FEBRUARY 20, 2004
An act relating to the Oakland Estuary.
LEGISLATIVE COUNSEL'S DIGEST
SB 1622, Perata. Oak Street to 9th Avenue District Exchange Act.
Through a series of grants, the City of Oakland acquired certain
tidelands and submerged lands as public trust lands. Existing law
authorizes the City of Oakland to use that property in conformance
with those grants and the public trust.
This bill would enact the Oak Street to 9th Avenue District
Exchange Act to authorize and establish conditions for an exchange of
certain tidelands and submerged lands granted to the City of Oakland
for other lands not now subject to the public trust.
The bill would declare that, due to the unique circumstances
pertaining to the trust lands described in the bill, a general
statute within the meaning of specified provisions of the California
Constitution cannot be made applicable and a special statute is
necessary.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. This act shall be known, and may be cited, as the Oak
Street to 9th Avenue District Exchange Act.
SEC. 2. For purposes of this act, the following definitions apply
unless the context requires otherwise.
(a) "1911 grant" means Chapter 654 of the Statutes of 1911, as
amended by Chapter 146 of the Statutes of 1939, Chapter 1737 of the
Statutes of 1965, and Chapter 1016 of the Statutes of 1981.
(b) "1960 grant" means Chapter 15 of the Statutes of 1960, First
Extraordinary Session.
(c) "After-acquired trust lands" means all or any portion of the
Oak Street to 9th Avenue property that is not historic tide and
submerged lands, whose title is not derived from the legislative
grants and that was acquired with public trust funds derived from
port operations.
(d) "Area of the estuary plan" means those lands encompassed
within that area between Adeline Street on the west, Interstate 880
on the north, the south bank of Damon Slough on the east, and the
estuary shoreline on the south.
(e) "BCDC" means the San Francisco Bay Conservation and
Development Commission.
(f) "Charter" means the Charter of the City of Oakland, as
amended.
(g) "City" means the City of Oakland or the Town of Oakland, as
applicable.
(h) "Commission" means the State Lands Commission.
(i) "Estuary" means that arm of San Francisco Bay being a body of
tidal water lying between the city on the east and north, the City of
Alameda on the west and south and including both the Middle and
Outer Harbor of the port encompassed within the legislative grants.
(j) "Estuary plan" means the estuary policy plan of the city and
the port, accepted by the Board of Port Commissioners on February 10,
1999, and adopted by the city on June 8, 1999, including any
subsequent amendment.
(k) "Final trust lands" means those lands within the Oak Street to
9th Avenue property that will be confirmed as subject to the public
trust and to the Oak Street to 9th Avenue legislative grants upon the
completion of the sale and exchange authorized by this act and are
generally depicted in the diagram referenced in Section 12.
(l) "Granted lands" means the portion of the Oak Street to 9th
Avenue property that is historic tide and submerged lands held by the
city pursuant to the Oak Street to 9th Avenue legislative grants and
that is managed or controlled by the port pursuant to the charter.
(m) "Implementation measures" means protective measures intended
to ensure the completion of investigation and remediation of
hazardous materials at, on, or under the Oak Street to 9th Avenue
property pursuant to the remedial plan. Implementation measures may
include, without limitation, letters of credit, surety bonds, or
other guaranteed funds, set-aside letters issued by financial
institutions, or insurance policies.
(n) "Legislative grants" means those certain grants of salt marsh,
tidelands, and submerged lands by the Legislature to the city for
public trust purposes. The Oak Street to 9th Avenue legislative
grants are such grants.
(o) "Liability measures" means protective measures intended to
protect the commission, the state, and public trust funds from
increased responsibility or liability associated with hazardous
materials at, on, or under the Oak Street to 9th Avenue property.
Liability measures may include, without limitation, the commission's
right to approve the remedial plan, applicable indemnities, or
insurance policies.
(p) "Middle Harbor" means those lands lying south and west of
Middle Harbor Road and consisting of berths 55 through 63, inclusive,
as well as those lands encompassed within berths 67 and 68 that are
part of what is currently known as the Inner Harbor.
(q) "Oak Street to 9th Avenue exchange lands" means those portions
of the granted lands that are, subject to the findings of the
commission required by this act, no longer needed or required for the
promotion of the public trust or the purposes set forth in the Oak
Street to 9th Avenue legislative grants.
(r) "Oak Street to 9th Avenue legislative grants" means the 1911
grant and the 1960 grant to the city by the Legislature of salt
marsh, tidelands, and submerged lands for public trust purposes and
encompassing all or a part of the Oak Street to 9th Avenue property.
(s) "Oak Street to 9th Avenue property" or the "property" is
generally shown in the diagram in Section 12, and includes that
certain land lying in the city whose perimeter description follows:
BEGINNING at the intersection of the northwesterly line of
Homewood Suites Lease Boundary as said boundary is described in that
certain lease between the Port of Oakland and JBN Lodging, a
California limited liability company, recorded on January 2, 1997, as
Document Number 97000487, Alameda County Recorder, and the southerly
boundary of the Embarcadero; thence along the northwesterly boundary
of said lease and the southwesterly prolongation thereof, South
65*32'30 West, 365.14 feet; thence South 26*30'11 West, 208.87 feet
to a point on a line perpendicular to the southerly line of the
Oakland city limits; thence southerly along said line, South 24*28'12
East, 316.71 feet more or less to a point on the southerly line of
the Oakland city limits; thence southwesterly along said city limits
line to a point on the southeasterly prolongation of the easterly
1960 Grant Line, Chapter 15, Statutes of 1960; thence northwesterly
along said southeasterly prolongation along said line, and along the
northwesterly prolongation of said line, to a point on the
southwesterly prolongation of the southeasterly line of Tract 4391,
as said tract is shown on that certain map entitled "Tract 4391 FOR
CONDOMINIUM PURPOSES", filed for record on October 30, 1980, in Book
122 of Maps at pages 60 and 61; thence northeasterly along said
southwesterly prolongation and said southeasterly line, to a point on
the southerly line of the Embarcadero; thence easterly and
southeasterly along the southerly line of the Embarcadero to the TRUE
POINT OF BEGINNING.
EXCEPTING THEREFROM:
All of the lands of Silveira, as said lands are described in that
certain Grant Deed recorded on November 3, 1967, in Reel 2068 at
image 141, Alameda County Records.
EXCEPTING THEREFROM:
All of the lands of Schultz, as said lands are described in that
certain Grant Deed filed for record on December 13, 1979, as Document
Number 79-252704, Alameda County Records.
The Bearing South 65*21'44 East between the two found Monuments
"SHIP", as said monument is shown on that certain Record of Survey
No. 990 filed for record on July 19, 1994, in Book 18 of Survey at
pages 50 through 60, inclusive in the Office of the Recorder of
Alameda County and Monument "H130", as said monument and said
monument "SHIP" are shown on that certain unrecorded Record of
Survey, entitled "Monument and Plan lines of the Embarcadero between
5th and 19th Avenue, an undedicated Street within the Port Area of
the City of Oakland, California", was taken as the basis of bearings
for this description.
All bearings in this description are based upon the North American
Datum of 1983, California Coordinate System of 1983 (CCS83), Zone
III. All distances are ground distances, to obtain grid distances,
multiply ground distances by 0.9999293.
(t) "Outer Harbor" means the lands encompassing berths 8 through
38, inclusive, the former Oakland Army Base, and lands adjacent
thereto.
(u) "Oversight agency" means the state, regional, or local agency
exercising primary jurisdiction over the investigation and
remediation of hazardous materials at, on, or under the Oak Street to
9th Avenue property.
(v) "Port" means, as the context requires, the port department of
the city, or all of the lands granted to the city by the legislative
grants and all after-acquired trust lands, together with the
improvements to those lands.
(w) "Port improvement plans" means those capital projects or plans
adopted or implemented by the Board of Port Commissioners of the
port that are in furtherance of the legislative grants or the public
trust and will be located within or adjacent to the Middle Harbor or
Outer Harbor.
(x) "Public trust" or "trust" means the public trust for commerce,
navigation, and fisheries.
(y) "Remedial plan" means the written plan approved by the
oversight agency for investigation and remediation of hazardous
materials at, on, or under the Oak Street to 9th Avenue property,
including the establishment of screening and remediation goals
therefor.
(z) "Trust exchange parcel" means a parcel or parcels of land
selected by the port and approved by the commission that meet the
criteria set forth in subdivision (b) of Section 4.
SEC. 3. The Legislature finds and declares all of the following:
(a) The purpose of this act is to authorize reconfiguration of
certain public trust lands within one area of the estuary plan,
specifically the Oak Street to 9th Avenue district. The
authorization will effectuate the principles and objectives contained
in regional and local land use plans, especially the estuary plan,
the San Francisco Bay Plan and the San Francisco Bay Area Seaport
Plan (both adopted by BCDC), and the port improvement plans, to the
extent that they are consistent with the public trust. The
completion of the reconfiguration of public trust lands will further
the purposes of the public trust and the Oak Street to 9th Avenue
legislative grants, and, if the trust exchange parcels lie outside of
the lands encompassed within the Oak Street to 9th Avenue
legislative grants or the area of the estuary plan, the legislative
grants. To achieve these purposes, this act approves and authorizes
the port to carry out and the commission to approve and to effectuate
a sale and an exchange of lands, provided that the commission makes
the necessary findings supporting the sale and exchange. Through the
sale and exchange, certain lands within the Oak Street to 9th Avenue
property presently subject to the public trust and the Oak Street to
9th Avenue legislative grants and no longer useful for public trust
purposes will be freed from public trust ownership and use
restrictions. Through a sale, significant funds will be generated
for the port to apply to public trust purposes. Through an exchange,
the trust exchange parcel will be brought into public trust
ownership and made subject to the public trust and the Oak Street to
9th Avenue legislative grants or the legislative grants, as
applicable, and the title to the final trust lands will be confirmed.
(b) Commencing in 1852, the city received a series of grants of
public trust lands from the Legislature.
(c) Certain of the legislative grants, including the Oak Street to
9th Avenue legislative grants, purport to encompass the entirety of
the Oak Street to 9th Avenue property. In addition, some or all of
the Oak Street to 9th Avenue property was included within the
perimeter description of Tideland Survey No. 22, which may have been
invalid. Other parts of the property may have been included within
Rancho San Antonio, parts of which were confirmed and patented to
Antonio Maria Peralta in June 1874, and other parts of which were
confirmed and patented to Domingo and Vincente Peralta in February
1877. Because of these and possibly other factors related to the
land title history of portions of the Oak Street to 9th Avenue
property, there is uncertainty as to land titles within the property
and the actual location of the boundaries of the granted lands and
the after-acquired trust lands.
(d) The Oak Street to 9th Avenue property abuts the estuary on
either side of the arm of the estuary which continues on to Lake
Merritt. It has historically been used for industrial purposes,
including shipping. The Oak Street to 9th Avenue property includes
both granted lands and after-acquired trust lands. The title to, and
boundary between, the granted lands and the after-acquired trust
lands are uncertain, and will be settled by the port and the
commission in connection with the exchange authorized by this act.
(e) In connection with a highly beneficial program of harbor
development, the majority of the Oak Street to 9th Avenue property
has been filled and reclaimed. As described below, the Oak Street to
9th Avenue exchange lands are, subject to the findings of the
commission required by this act, no longer needed or required for the
promotion of the public trust or any of the purposes set forth in
the Oak Street to 9th Avenue legislative grants. Other portions of
the property, the final trust lands, not now available for certain
public trust uses, are or will be made or improved to be useful for
other public trust purposes that may include, but are not limited to,
open space, public access, water-related recreation, such as a
marina and boat launch, commercial services to visitors as necessary,
such as food service, plant and animal habitat, such as wetlands,
circulation to and along the waterfront, or similar uses. In
addition, through the settlement and exchange authorized by this act,
any uncertain title within the final trust lands thereof will be
settled as sovereign lands subject to the public trust and the Oak
Street to 9th Avenue legislative grants.
(f) In 1927, the port was established by amendment to the charter.
According to the charter, the purpose of the port is to promote and
ensure the comprehensive and adequate development of the Port of
Oakland through continuity of control, management, and operation,
including the lands held by the city pursuant to the legislative
grants. The Board of Port Commissioners, in whom the charter vests
control of the port, has the complete and exclusive power, and the
duty, on behalf of the city, to manage the port, including the Oak
Street to 9th Avenue property. The port controls and manages more
than 17,000 acres of land on which it operates, among other public
trust functions, marine cargo terminals, and an international
airport.
(g) In response to, among other matters, regional and local
environmental concerns, the increasing size of container vessels and
containers, and need for greater efficiency in moving containers to
their destinations with the least relative environmental impact, the
port is in the process of consolidating, reconfiguring, or expanding
its existing marine terminals pursuant to port improvement plans.
Port improvement plans are intended to result in port maritime
terminal facilities that will allow the port to achieve the year 2020
cargo throughput demand forecasts set forth in the BCDC's San
Francisco Bay Area Seaport Plan.
(h) BCDC's San Francisco Bay Area Seaport Plan projected cargo
handling requirements within the Oak Street to 9th Avenue property
are supported by an analysis of cargo needs and facilities throughout
the San Francisco Bay area. Prior to 2003, BCDC's San Francisco Bay
Area Seaport Plan designated certain areas of the port for port
priority use, including a portion of the Oak Street to 9th Avenue
property, the 9th Avenue Terminal, which was used to handle break
bulk cargo. In 2003, BCDC removed the port priority use designation
from the 9th Avenue Terminal, finding that the regional demand for
handling break bulk cargo was adequately met by the remaining
regionwide capacity. In addition, in recognition of the improved
efficiencies and increased maritime cargo capability proposed in port
improvement plans and to ensure the availability of adequate land
for port ancillary uses, BCDC amended the San Francisco Bay Plan and
the San Francisco Bay Area Seaport Plan in 2001 to add certain lands
to its designated port priority use area, retain the port priority
use designation over other areas of the port, and remove the
designation from other port lands.
(i) With respect to the Oak Street to 9th Avenue property, a
portion of the property was a break bulk cargo terminal until the
terminal ceased operation in about 1998. There are dredging depth
limits beginning to the west of the property as a result of the Posey
and Webster Tubes which provide vehicular access to the City of
Alameda. The dredging depth limits the size of break bulk or
container carriers that can access any terminal lying within the
property. Further, the break bulk terminal that had existed would
have required extensive repairs and remediation of pollution if it
were to continue to accept cargo. The port concluded that break bulk
cargo deliveries would not generate sufficient revenue to support
costs of remediation and renovation of the terminal. Other regional
ports with less container capability have absorbed the shipments that
previously took place at the terminal on the property.
(j) The only currently operating industrial facility within the
Oak Street to 9th Avenue property is a sand and gravel operation,
which the port has leased to the sand and gravel operator through
2015. The continued operation of this facility beyond its current
lease term is incompatible with contemplated public uses set forth in
the estuary plan, including visitor access and shoreline improvement
and circulation within the Oak Street to 9th Avenue property.
(k) When the break bulk and other industrial uses were active
within the Oak Street to 9th Avenue property, they cut off or
prevented public access, closed or narrowed view corridors, and
prohibited or made impossible open-space amenities that would draw
and permit the public to use and enjoy the estuary. The public,
local and regional agencies, and national groups voiced significant
concerns about the condition, use of, and access to the estuary and
its shoreline. These concerns instigated public examination and
reconsideration of land uses and facility operations along the
estuary and made concrete the regional desire to revive the estuary
waterfront. The estuary plan was the result and sets forth standards
regarding protection and promotion of public uses along the estuary
within and beyond the Oak Street to 9th Avenue property.
(l) The estuary plan recognizes that the estuary is a public
resource of city, regional, and statewide significance. The estuary
plan is intended to promote and strengthen a sense of community, to
bring people to the waterfront to revitalize the estuary shoreline
and to make it an inviting and vibrant part of the bay area. That
this is a shared regional goal is evidenced by the adoption of City
Measure DD, a nearly $200,000,000 bond issue to, among other matters,
restore and help provide access to the estuary.
(m) The estuary plan also recognizes that continued siting of new
heavy industrial facilities using, handling, storing, or generating
pollutants next to a sensitive, publicly visible waterway is no
longer appropriate for certain portions of the estuary shoreline,
including the shoreline of the Oak Street to 9th Avenue property.
(n) The Oak Street to 9th Avenue property, as currently configured
and in its present state, is constrained by conditions that make it
difficult for redevelopment and require either a public or private
entity to assume the considerable costs necessary to make any
redevelopment possible. These present constraints include poor
freeway and public transportation access, site contamination,
unstable soils, and relatively poor infrastructure.
(o) While significant changes in container vessels, container
shipping and processing, and land use plans have made portions of the
Oak Street to 9th Avenue property no longer useful for shipping
purposes, other portions of the property, the final trust lands,
remain valuable to the public trust for, among other matters, open
space, public access, water-related recreation, such as a marina and
boat launch, commercial services to visitors as necessary, such as
food service, plant and animal habitat, such as wetlands, circulation
to and along the waterfront, or similar uses. These portions of the
property are not now accessible to the public and require
improvement and remediation.
(p) There are other public trust uses for which the Oak Street to
9th Avenue property is not currently needed or useful: oil and gas
development; airports; vehicular bridges and other water-dependent or
water-related commercial transportation facilities (other than
possible ferry service or boat landings); warehousing and storage of
commercial goods related to port and airport use (because of the
distance from existing large rail and container storage and movement
yards at the port and inadequate truck access to I-880); maritime
offices (because there is no market for new maritime office space
within the property due to the existence of existing or planned
maritime office space closer to downtown Oakland and to existing
maritime and airport facilities); and hotels (because of the location
of the property between other port sites with substantial numbers of
hotel rooms and plans for future expansion).
(q) The port has encouraged development of significant public
access and open space along the Oak Street to 9th Avenue property
shoreline by removing defunct and dilapidated industrial uses, and
then soliciting proposals for redevelopment that would include access
and open-space opportunities. A mixed-use development has been
proposed for the property. That improvement is part of the port's
efforts to redevelop and to transform the shoreline in the Oak Street
to 9th Avenue property area by converting the property into a vital
waterfront district. The redevelopment of the property will
revitalize, remediate, renew, and make accessible a now inaccessible
and decayed waterfront area. This development will create trails,
paths, view corridors, and significant public spaces enhancing public
trust lands remaining following a sale and exchange, and will
provide new public access and circulation to an area long cut off
from the region.
(r) Although a substantial portion of the Oak Street to 9th Avenue
property is now no longer needed or required for the promotion of
the public trust, other portions of the property, the final trust
lands, are of value to the public trust, and are needed and required
for public trust uses, such as open space, public access,
water-related recreation, such as a marina and boat launch,
commercial services to visitors as necessary, such as food service,
plant and animal habitat, such as wetlands, circulation to and along
the waterfront, or similar uses. Absent a trust exchange and sale,
certain interior lands not useful for trust purposes would be
restricted to trust-consistent uses and could not be used for
residential or other nontrust uses as a part of a mixed-use project
that establishes, promotes, and maintains public trust uses on the
waterfront and near-shoreline portions of the property and
facilitates public trust purposes and goals including those set forth
in the estuary plan, other applicable land use plans, to the extent
they are consistent with the public trust, and the legislative
grants, including the Oak Street to 9th Avenue legislative grants.
(s) A trust exchange of the Oak Street to 9th Avenue exchange
lands and sale of after-acquired trust lands resulting in the
geographic configuration and extent of the final trust lands
substantially as shown on the diagram contained in Section 12
maximizes the overall benefits to the trust, without interfering with
trust uses or purposes. Following an exchange and sale, all lands
within the Oak Street to 9th Avenue property adjacent to the
waterfront, as well as interior lands determined by the port and the
commission to retain public trust value, will remain subject to the
public trust. The lands that will be removed from the trust pursuant
to the exchange and sale, subject to approval of the commission, are
landward of navigable waters and are no longer needed or required
for the promotion of the public trust. The Oak Street to 9th Avenue
exchange lands to be freed of the public trust constitute a
relatively small portion of the lands granted to the city by the
legislative grants. This act requires that the commission ensure
that the trust exchange parcel added to the trust pursuant to the
exchange is of equal or greater value than the Oak Street to 9th
Avenue exchange lands taken out of the trust. The trust exchange
parcel shall be selected by the port, subject to commission approval.
The trust exchange parcel shall be owned as a public trust asset
and be subject to the public trust and to either the legislative
grants, including the Oak Street to 9th Avenue legislative grants, or
to the legislative grants applicable to the remainder of the port,
according to the location of the trust exchange parcel.
(t) The completion of the sale and exchange authorized by this act
will have numerous benefits to the public trust. These benefits
include, but are not limited to, all of the following:
(1) The repair and enhancement of the shoreline within the Oak
Street to 9th Avenue property through the creation or improvement of
a wide variety of open-space areas, bike trails, walking and jogging
paths, marinas, an aquatic/sailing center, a maritime museum,
restaurants, and small-scale, visitor-serving retail.
(2) Access to more than a mile of now inaccessible shoreline
across the entirety of the waterfront of the property.
(3) In conjunction with the redevelopment of the property,
remediation of soil contamination to improve water quality in the
estuary.
(4) A significant deposit of money to the port fund, generated
from the sale of the after-acquired trust lands, to be used for
public trust purposes.
(5) Acquisition of the trust exchange parcel useful to, in support
of, and consistent with the public trust and the purposes or
objectives of the estuary plan, or the port improvement plans, as
applicable, to the extent they are consistent with the public trust.
(6) Settlement of title issues.
(u) The completion of the authorized exchange and acquisition of
the trust exchange parcel and the sale of after-acquired trust lands
will produce or support revenue generation by the port for port
operations by, among other means, increasing visitor activities
within the port and by assisting remediation of the Oak Street to 9th
Avenue property.
(v) It is, therefore, the intent of the Legislature, on and
subject to the terms and conditions set forth in this act, to
authorize, ratify, and confirm any agreement between the commission
and the port to enter into and effectuate an exchange of lands within
the Oak Street to 9th Avenue property and a sale of after-acquired
trust lands, as the port may propose and the commission may approve
pursuant to this act and to terminate the public trust and the Oak
Street to 9th Avenue legislative grants over the Oak Street to
9th Avenue exchange
lands consistent with the findings and declarations stated in this
act.
(w) The Legislature reaffirms and adopts those findings contained
in Section 8602 of the Public Resources Code.
(x) The findings made in this act are applicable only to the
transactions authorized and approved by Section 4.
SEC. 4. The Legislature hereby approves the following transactions
within the Oak Street to 9th Avenue property: a land exchange of
the Oak Street to 9th Avenue exchange lands and a sale for fair
market value of after-acquired trust lands. Through the exchange and
sale, certain lands within the property that meet the criteria set
forth in this act and therefore are not now useful for public trust
purposes will be freed from the public trust and may be conveyed into
private ownership, certain other lands that are useful for public
trust purposes and are not now subject to the public trust or the
legislative grants will be made subject to the public trust and to
the Oak Street to 9th Avenue legislative grants or to the legislative
grants, as applicable, and the title to the final trust lands will
be confirmed as being subject to the public trust and to the Oak
Street to 9th Avenue legislative grants provided all of the following
conditions are met, including approval by the commission:
(a) The lands or interests in lands to be exchanged or sold by the
port and over which the public trust and the Oak Street to 9th
Avenue legislative grants are to be terminated have been filled and
reclaimed and consist entirely of dry lands lying landward of the
present line of mean high water which are no longer needed or
required for the purposes of the public trust or the Oak Street to
9th Avenue legislative grants.
(b) The consideration for exchange of the Oak Street to 9th Avenue
exchange lands shall be the conveyance into public trust ownership
of the trust exchange parcel which shall become public trust land
subject to the legislative grants, including the Oak Street to 9th
Avenue legislative grants or to the legislative grants, applicable to
the remainder of the port, as appropriate, and shall meet all of the
following criteria:
(1) The value of the trust exchange parcel shall be equal to or in
excess of the value of the Oak Street to 9th Avenue exchange lands
in which the public trust and the Oak Street to 9th Avenue
legislative grants are terminated.
(2) The trust exchange parcel shall be selected by the port and
approved by the commission according to the following criteria and
order of priority:
(A) First priority shall be for land that lies within the area of
the estuary plan.
(B) Second priority shall be for land contiguous to the area of
the estuary plan.
(C) Third priority shall be for land that lies within or adjacent
to the Middle Harbor.
(D) Fourth priority shall be for land that lies within or adjacent
to the Outer Harbor provided, however, that any first or second
priority land acquired in accordance with this section shall support
or relate to the purposes or objectives of the estuary plan to the
extent these purposes or objectives are consistent with the public
trust. If the only land available within the first priority has been
designated in the estuary plan for a use that is not consistent with
the public trust, then that land may be acquired by the port, but
its acquisition shall support or relate to the purposes or objectives
of the public trust and the legislative grants. It is further
provided that any third or fourth priority land acquired in
accordance with this section shall be for land that supports the
purposes or objectives of the port improvement plans to the extent
that their purposes and objectives are consistent with the public
trust and the legislative grants.
(c) The port shall demonstrate to the commission that the trust
exchange parcel selected by the port complies with the criteria of
this section. If the commission, when considering an exchange, does
not approve the trust exchange parcel and the commission determines
that the port has made all reasonable efforts to locate a trust
exchange parcel, an exchange agreement entered into consistent with
Section 7 may provide that the port may deposit and the commission
accept on behalf of the port the funds to be used to acquire a trust
exchange parcel and sequester those funds in the Land Bank Fund
established pursuant to Section 8610 of the Public Resources Code to
be held solely for acquisition of a trust exchange parcel on which
the port and the commission both agree according to the priorities in
this section.
(d) All moneys resulting from the sale of after-acquired trust
lands authorized in this act shall be retained by the port, and shall
be used only for purposes consistent with the public trust and the
legislative grants and this act, and shall be accounted for in
compliance with Section 6306 of the Public Resources Code.
(e) Any sale of after-acquired trust lands shall occur only in
conjunction with an exchange of the state's sovereign title in the
Oak Street to 9th Avenue exchange lands pursuant to Section 7.
(f) Upon the completion of any sale of after-acquired trust lands
authorized in this act by the recording of a deed from the port to a
private party for the after-acquired trust lands authorized to be
sold, any right, title, or interests sold therein shall be free from
the public trust.
(g) Following the exchange and sale, the final trust lands shall
be preserved, improved, or enhanced for public trust uses, such as
open space, public access, water-related recreation, such as a marina
and boat launch, commercial services to visitors as necessary, such
as food service, plant and animal habitat, such as wetlands,
circulation to and along the waterfront, or similar uses.
(h) The final trust lands will provide vertical access from public
streets to the shoreline and continuous lateral public access
consistent with policies OAK-9, OAK-10, OAK-11, and OAK-12 of the
estuary plan in effect on June 1, 2004, for the Oak Street to 9th
Avenue property to the water along the entirety of the Oak Street to
9th Avenue property.
(i) The Oak Street to 9th Avenue exchange lands exchanged into
private ownership and over which the public trust and the Oak Street
to 9th Avenue legislative grants will be terminated constitute a
relatively small parcel of granted tide and submerged lands within
the city.
(j) Upon completion of the exchange and sale contemplated by this
section, the final trust lands shall meet all of the following
criteria:
(1) The geographic configuration and extent of the final trust
lands shall substantially conform to the geographic configuration and
extent of the trust lands shown in the diagram in Section 12;
provided that in no event shall the geographic configuration and
extent, including depth as measured perpendicularly from the
shoreline, length as measured laterally along the shoreline, and
total square footage, of these lands be less than the geographic
configuration and extent of these lands shown in the diagram in
Section 12. However, the port, subject to the approval of the
commission, may make minor changes in the geographic configuration
and extent of final trust lands if the port and the commission both
find that this change would better further public trust purposes.
Any increase in the geographic configuration and extent of the final
trust lands shall be as required by the commission, considering needs
for public uses in walkways, parks, marinas and boat launch, habitat
areas, and visitor-serving commercial facilities including, but not
limited to, food service; provided, however, that in determining
whether any increase in geographic configuration and extent of the
final trust lands is required, the commission shall take into account
the determinations of the port and the city to meet reasonable needs
for the above-described public trust uses as reflected in local
entitlements for any development on the Oak Street to 9th Avenue
property.
(2) No uses shall be allowed on the final trust lands other than
open space, public access, water-related recreation, such as a marina
and boat launch, commercial services to visitors as necessary, such
as food service, plant and animal habitat, such as wetlands,
circulation to and along the waterfront, or similar uses, as the port
and the commission determine may be required to support the
activities and goals of the estuary plan or the Oak Street to 9th
Avenue legislative grants.
(3) Streets and other transportation facilities located on public
trust lands shall be designed to be compatible with the public trust,
and to serve primarily public trust purposes of access to shoreline
improvements and shoreline circulation rather than serving nontrust
purposes.
(4) Any surveys or legal descriptions required for the parcels in
conjunction with the exchange and sale shall be approved by the
commission.
SEC. 5. Any exchange or sale made or accomplished pursuant to this
act is hereby found to be of statewide significance, and, therefore,
any ordinance, charter provision, or other provision of local law
inconsistent with this act shall not be applicable to the exchange or
sale.
SEC. 6. Any lands or interests in lands exchanged or confirmed in
public trust ownership following an exchange and sale, including the
trust exchange parcel and the final trust lands, shall be held by the
city as sovereign lands of the state and subject to the public trust
and to either the Oak Street to 9th Avenue legislative grants, or to
the legislative grants applicable to the remainder of the port
according to the location of the lands or interests in lands.
SEC. 7. (a) The commission may approve an exchange of public trust
lands that meets the requirements of this act and enter into an
exchange agreement. Pursuant to this authority, the commission shall
establish appropriate procedures for effectuating the exchange
including, but not limited to, the following:
(1) Procedures for ensuring that lands or interests in lands are
not exchanged or confirmed into the trust until all remedial action
necessary to protect human health and the environment with respect to
hazardous substances has been completed as determined by the
oversight agency. However, the commission may approve an exchange
and sale that calls for lands to be exchanged or confirmed into the
trust prior to the completion of remedial action if the commission
finds that sufficient liability measures and implementation measures
will be in place upon the completion of the exchange. With respect
to the commission's right to approve the remedial plan, the
Legislature recognizes that the remedial plan shall first be approved
by the oversight agency and that the oversight agency has special
expertise in evaluating and supervising the investigation and
remediation of hazardous materials. Therefore, the commission shall
consider and give reasonable weight to the oversight agency's
approval of the remedial plan, including any supplements or
amendments thereto. The commission may delegate to the executive
officer of the commission the authority to approve or disapprove
supplements or amendments to the remedial plan, subject to such terms
and conditions as the commission may deem appropriate.
(2) Procedures for reviewing the port's selection of the trust
exchange parcel and for ensuring that all reasonable efforts have
been made to locate a trust exchange parcel.
(b) The commission may not approve the exchange and sale of any
trust lands unless it finds all of the following:
(1) The configuration of trust lands within the Oak Street to 9th
Avenue property upon completion of the exchange and sale meets the
requirements of subdivision (j) of Section 4 and includes all lands
within the Oak Street to 9th Avenue property that are presently
waterward of the mean high water line.
(2) The final layout of streets in the property will provide
access to the public trust lands and be consistent with the
beneficial use of the remaining public trust lands.
(3) The trust exchange parcel will promote the purposes or
objectives of the estuary plan, legislative grants, or the port
improvement plans, as applicable, to the extent these purposes or
objectives are consistent with the public trust.
(4) The trust exchange parcel has been selected according to the
criteria in paragraph (2) of subdivision (b) of Section 4.
(5) With respect to the exchange as finally configured, the value
of the trust exchange parcel to be exchanged into the trust is equal
to or greater than the value of the Oak Street to 9th Avenue exchange
lands.
(6) The Oak Street to 9th Avenue exchange lands over which the
public trust will be terminated have been filled and reclaimed, those
parcels consisting entirely of dry land lying landward of the
present line of mean high water, and are no longer needed or required
for the purposes of the public trust and constitute a relatively
small portion of the lands originally granted to the city, and that
the exchange will not result in substantial interference with public
trust uses and purposes, nor with the Oak Street to 9th Avenue
legislative grants.
(7) The proposed exchange is consistent with this act.
(8) Vertical access from public streets to the shoreline and
continuous lateral public access to the water along the entirety of
the Oak Street to 9th Avenue property consistent with policies OAK-9,
OAK-10, OAK-11, and OAK-12 of the estuary plan in effect on June 1,
2004, for the Oak Street to 9th Avenue property will be provided.
(9) The trust exchange parcel and final trust lands shall be held
subject to the public trust and the terms of this act.
(10) No substantial interference with public trust uses and
purposes shall ensue by virtue of the proposed exchange.
(11) The exchange is in the best interests of the statewide
public.
(12) The port has approved the exchange after holding at least one
public hearing.
(c) For purposes of effectuating the exchange authorized by this
act, the commission may do all of the following:
(1) Receive and accept on behalf of the state the trust exchange
parcel to be brought into the public trust as an exchange parcel in
exchange for the Oak Street to 9th Avenue exchange lands in which the
public trust and the Oak Street to 9th Avenue legislative grants are
terminated.
(2) Receive and accept on behalf of the state a conveyance from
the port of interests held by virtue of the Oak Street to 9th Avenue
legislative grants or as after-acquired trust lands as part of an
exchange or sale of public trust lands as approved, including the
final trust lands.
(3) Convey to the port or to its designee by patent all of the
right, title, and interest of the state in lands that are to be free
of the public trust and the Oak Street to 9th Avenue legislative
grants upon completion of the exchange of the Oak Street to 9th
Avenue exchange lands as authorized by this act and as approved by
the commission.
(4) Convey to the city or port by patent all of the right, title,
and interest of the state in sovereign lands subject to the public
trust and the terms of this act and the Oak Street to 9th Avenue
legislative grants or the legislative grants, as applicable, upon
completion of the exchange and sale of lands authorized by this act
and as approved by the commission, subject to the terms, conditions,
and reservations as the commission may determine are necessary to
meet the requirements of this act.
(5) Determine or settle through an exchange the title to, or
location of, the boundaries of the granted or after-acquired trust
lands or any other boundary lines that the commission deems necessary
to effectuate the exchange or the purposes of this act.
(d) In any case where the state, pursuant to this act, conveys
filled tidelands and submerged lands transferred to the port or the
city pursuant to the Oak Street to 9th Avenue legislative grants, the
state shall reserve all minerals and all mineral rights in the lands
of every kind and character now known to exist or hereafter
discovered, including, but not limited to, oil and gas and rights
thereto, together with the sole, exclusive, and perpetual right to
explore for, remove, and dispose of those minerals by any means or
methods suitable to the state or to its successors and assignees,
except that, notwithstanding the legislative grants, or Section 6401
of the Public Resources Code, any such reservation shall not include
the right of the state or its successors or assignees in connection
with any mineral exploration, removal, or disposal activity, to do
either of the following:
(1) Enter upon, use, or damage the surface of the lands or
interfere with the use of the surface by any grantee or by the
grantee's successors or assignees.
(2) Conduct any mining activities of any nature whatsoever above a
plane located 500 feet below the surface of the lands without the
prior written permission of any grantee of the lands or the grantee's
successors or assignees.
(e) The requirement to reserve minerals and mineral rights
described in subdivision (d) shall not apply if the state receives
and retains minerals and mineral rights in the trust exchange parcel.
SEC. 8. In any case where the state, pursuant to this act, conveys
filled tidelands and submerged lands transferred to the city
pursuant to the 1911 grant or the 1960 grant, the state shall reserve
the right to fish in the waters on which these lands may front with
right of convenient access to the waters over these lands for that
purpose.
SEC. 9. The commission and the port shall work expeditiously
toward completing the exchange authorized by this act.
SEC. 10. Any agreement for the exchange of, or trust termination
over, granted tidelands, or to establish boundary lines, entered into
pursuant to this act, shall be conclusively presumed to be valid
unless held to be invalid in an appropriate proceeding in a court of
competent jurisdiction to determine the validity of the agreement
commenced within 60 days after the recording of the agreement.
SEC. 11. (a) An action may be brought under Chapter 4 (commencing
with Section 760.010) of Title 10 of Part 2 of the Code of Civil
Procedure by the parties to any agreement entered into pursuant to
this act to confirm the validity of the agreement. Notwithstanding
any provision of Section 764.080 of the Code of Civil Procedure, the
statement of decision in the action shall include a recitation of the
underlying facts and a determination whether the agreement meets the
requirements of this act, Sections 3 and 4 of Article X of the
California Constitution, and any other law applicable to the validity
of the agreement.
(b) For purposes of Section 764.080 of the Code of Civil Procedure
and unless otherwise agreed in writing, any settlement or exchange
agreement entered into pursuant to this act shall be deemed to be
entered into on the date it is executed by the executive officer of
the commission, who shall be the last of the parties to sign prior to
the signature of the Governor. The effective date of the agreement
shall be deemed to be the date on which it is executed by the
Governor pursuant to Section 6107 of the Public Resources Code.
SEC. 12. The following diagram is a part of this act:
SEC. 13. The Legislature finds and declares that, because of the
unique circumstances applicable only to the lands within the port
described in this act, a statute of general applicability cannot be
enacted within the meaning of subdivision (b) of Section 16 of
Article IV of the California Constitution. Therefore, this special
statute is necessary.