BILL NUMBER: SB 815 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Migden
FEBRUARY 23, 2007
An act relating to tidelands and submerged lands.
LEGISLATIVE COUNSEL'S DIGEST
SB 815, as introduced, Migden. Tidelands and submerged lands: City
and County of San Francisco: central waterfront.
Existing law grants to the City and County of San Francisco the
right, title, and interest of the State of California in and to
certain tidelands and submerged lands in trust for certain purposes.
Under existing law, the Burton Act, and the Burton Act transfer
agreement, the interest of the state in and to the Harbor of San
Francisco was transferred in trust to the City and County of San
Francisco. The State Lands Commission has jurisdiction over tidelands
and submerged lands of the state.
This bill would authorize the City and County of San Francisco to
lease, sell, or otherwise transfer all or any portion of certain
tidelands and submerged lands constituting "paper streets" on the
central waterfront in the City and County of San Francisco to any
private person, partnership, or corporation, or to any governmental
entity, free of the public trust and of any additional restrictions
on use or transfer created by the Burton Act or Burton Act transfer
agreement upon a finding and declaration of specified conditions by
the State Lands Commission.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. As used in this act:
(a) "Burton Act" means Chapter 1333 of the Statutes of 1968, as
amended.
(b) "Burton Act lands" means those tidelands granted to the city
by the Burton Act.
(c) "Burton Act Map" means that certain map entitled "MAP OF LANDS
TRANSFERRED IN TRUST TO THE CITY AND COUNTY OF SAN FRANCISCO,
recorded in Book W of Maps, Page 66, of the City and County of San
Francisco Recorder's Office.
(d) "Burton Act transfer agreement" means that certain agreement
dated January 24, 1969, between the state and the city, relating to
the transfer of the Port of San Francisco from the state to the city,
and any amendments to that agreement in accordance with its terms.
(e) "City" means the City and County of San Francisco, a charter
city and county.
(f) "Commission" means the State Lands Commission.
(g) "Paper street" or "paper streets" means any or all of those
areas of real property, located in the City and County of San
Francisco, consisting of certain portions of lands designated as
streets on the Burton Act Map, and more particularly described as
follows:
(1) That portion of Daggett Street lying between the easterly
prolongation of the northerly line of Sixteenth Street and the
southwesterly line of Seventh Street.
(2) That portion of Texas Street lying between the easterly
prolongation of the southerly line of Sixteenth Street and the Pueblo
Line of 1883, as shown on Sheet 4 of the Burton Act Map.
(3) That portion of Custer Avenue lying southerly of a line
parallel with, and distant 100 feet landward, from the mean High
Water Line of San Francisco Bay.
(4) That portion of Evans Avenue lying easterly and northerly of
the Line of Ordinary High Tide of 1868-1869 as shown on Sheet 6 of
the Burton Act Map, and westerly of a line parallel with, and distant
100 feet landward, from the mean High Water Line of San Francisco
Bay.
(5) That portion of Davidson Avenue lying easterly of the Line of
Ordinary High Tide of 1868-1869 as shown on Sheet 6 of the Burton Act
Map, and westerly of a line parallel with, and distant 100 feet
landward, from the mean High Water Line of San Francisco Bay.
(6) That portion of Ingalls Street lying southerly of the westerly
prolongation of the southerly line of Custer Avenue, northeasterly
of the Ordinary High Tide Line of 1869, and southeasterly of a line
parallel with, and distant 100 feet landward, from the mean High
Water Line of San Francisco Bay.
(7) Subject to approval by the commission, any portion of former
Arthur Avenue lying southwesterly of the southwesterly line of Cargo
Way, as dedicated on November 10, 1978, by Resolution Number 834-78
of the Board of Supervisors of the city, and as shown on Map T-27-85
on file in the office of the County Surveyor of the city, lying
easterly of the easterly line of Third Street, abutting Assessor
Parcel Numbers 5203-023, 5203-025, 5203-038, 5203-046, 5203-047,
5203-048, 5203-049, 5203-050, 5203-051, 5203-052, 5203-053, 5203-054,
5203-055, 5203-056, and 5203-057, inclusive, and Assessor Parcel
Number 4570-019, excepting therefrom that portion thereof lying
between the northeasterly prolongations of the northwesterly and
southeasterly lines of Mendell Avenue; the foregoing shall include,
without limitation, any portion of Arthur Avenue shown as lying
outside of Parcel "A" as depicted on the Burton Act Map, provided
that the commission finds and declares that there is uncertainty as
to the nature or extent of the state's sovereign interest in these
lands and that the public interest would be served by the resolution
of that uncertainty by a settlement.
(h) "Port of San Francisco" or "port" means the city acting by and
through the San Francisco Port Commission.
(i) "Public trust" or "trust" means the public trust for commerce,
navigation, and fisheries, and, as applicable, includes any
statutory trust created by the Burton Act.
(j) "State" means the State of California.
(k) "Tidelands" means the area lying below the elevation of
ordinary high water, whether filled or unfilled, and includes
submerged lands.
SEC. 2. The Legislature finds and declares all of the following:
(a) Upon its admission to the United States of America on
September 9, 1850, the state, by virtue of its sovereignty, received
in trust for the purposes of commerce, navigation, and fisheries, all
right, title, and interest in ungranted tidelands and beds of
navigable waterways within its borders. The landward boundary of such
waterways is the ordinary high water mark.
(b) Under Section 3 of Article X of the California Constitution,
the state may sell tidelands within two miles of any incorporated
city, city and county, or town in the state, and fronting on the
water of any harbor, estuary, bay, or inlet that were reserved to the
state solely for street purposes, to any town, city, county, city
and county, municipal corporations, private persons, partnerships, or
corporations, subject to such conditions as the Legislature
determines are necessary to be imposed in connection with the sales
in order to protect the public interest, if the Legislature finds and
declares that the tidelands are not used for navigation purposes and
are not necessary for those purposes.
(c) Pursuant to several statutes, including, but not limited to,
Chapter 41 of the Statutes of 1851, as amended, and Chapter 543 of
the Statutes of 1867-68, as amended by Chapter 388 of the Statutes of
1869-70, the state sold certain tidelands in the city into private
ownership. However, some of the tidelands in the city, including all
of the paper streets, were withheld from sale and reserved to the
state solely for street purposes.
(d) In 1969, pursuant to the Burton Act, the state conveyed its
sovereign right, title, and interest in the Burton Act lands,
including the paper streets, to the city in trust for purposes of
commerce, navigation, and fisheries. The Burton Act lands are subject
to the public trust and are held by the Port of San Francisco as
trustee. The Burton Act requires that the moneys derived from the use
of the Burton Act lands be used solely for the furtherance of the
purposes set forth in the Burton Act.
(e) Presently, none of the paper streets is used, suitable, or
necessary for navigation or any other public trust purpose, other
than revenue generation. The paper streets are fragments that have
been cut off from direct access to the waters of San Francisco Bay by
past filling of intervening property and do not provide and are not
needed for public access to the waterfront. The lands adjoining the
paper streets have been freed of the trust and have been or are
proposed to be developed for nontrust uses. Certain of the paper
streets, including those comprising portions of Texas, Custer,
Ingalls, and Davidson Streets, as shown on the Burton Act Map, were
either never constructed as streets or have ceased to be used for
street purposes and are presently developed with structures,
including warehouse facilities and the recently closed Hunters Point
powerplant.
(f) Pursuant to the San Francisco Administrative Code, the port
has developed a capital plan identifying projects necessary and
convenient to the improvement, operation, and conduct of the city's
waterfront. Implementation of the port's capital plan is a matter of
statewide importance and is essential to furthering the purposes of
the public trust. Projects in the capital plan include, but not
limited to, all of the following:
(1) Seismic and life-safety improvements to existing buildings and
other structures.
(2) Rehabilitation, restoration, and preservation of certain
structures.
(3) Structural repairs and improvements to piers, seawalls, and
wharves.
(4) Remediation of hazardous materials.
(5) Stormwater management facilities.
(6) Other utility infrastructures.
(7) Public access improvements.
(g) The estimated cost to implement the port's capital plan is
approximately 1.1 billion dollars ($1,100,000,00). This substantially
exceeds the projected revenues that can be generated from the use,
lease, or operation of the city's waterfront under present
circumstances, in part due to the port's inability to make optimal
use of the paper streets.
(h) It is therefore the intent of the Legislature, subject to the
terms and conditions set forth in this act, to terminate the public
trust over the paper streets, to authorize the city to sell or
otherwise dispose of those lands free from the trust, and to require
that the revenues derived from the use, administration, or transfer
of those lands be used in furtherance of trust purposes. The
Legislature recognizes and acknowledges that the port's revenue
needs, as reflected in part in its capital plan, will remain
considerable even after obtaining additional revenues from the sale
of the paper streets.
SEC. 3. (a) The Legislature hereby finds in accordance with
Section 3 of Article X of the California Constitution that the
interest of the state in the paper streets was reserved to the state
solely for street purposes, and that the paper streets are no longer
used or necessary for navigation purposes.
(b) The city may, pursuant to Section 3 of Article X of the
California Constitution, lease, sell, or otherwise transfer all or
any portion of the paper streets, or any interest therein, to any
private person, partnership, or corporation, or to any governmental
entity, free of the public trust and of any additional restrictions
on use or alienability created by the Burton Act or Burton Act
transfer agreement. A lease, sale, or other transfer made pursuant to
this section shall not be effective unless and until the commission,
at a regular open meeting with the proposed transaction as a
properly scheduled agenda item, does or has done both of the
following:
(1) Finds, or has found, that the consideration for lease, sale,
or other transfer of the paper streets or interest therein shall be
the fair market value of the land or interest sold.
(2) Adopts, or has adopted, a resolution approving the lease,
sale, or other transfer that finds and declares that the paper street
or streets to be transferred have been filled and reclaimed, are cut
off from access to the waters of San Francisco Bay, and are no
longer needed or required for the promotion of the public trust, and
that no substantial interference with the public trust uses and
purposes will ensue by virtue of the transfer. The resolution shall
also declare that the transfer is consistent with the findings and
declarations in Section 2 of this act and is in the best interests of
the state. Upon adoption of the resolution, or at a time that is
specified in the resolution, and the recordation of lease, transfer,
or sale documents, the street shall thereupon be free from the public
trust and any additional restrictions on use or alienability created
by the Burton Act or Burton Act transfer agreement.
(c) All revenues derived from the lease, sale, or other transfer
of the paper streets pursuant to this section shall be deposited in a
separate account and shall be expended solely for purposes of
implementing the port's capital plan, consistent with the Burton Act
and the public trust.
(d) To effectuate the lease, sale, or other transfer of the paper
streets authorized by this section, the commission may convey to the
city by patent all of the right, title, and interest in the paper
streets held by the state by virtue of its sovereignty, including any
public trust interest or Burton Act reservation not previously
conveyed, free of the public trust and subject to any reservations
the commission determines appropriate.
(e) The Legislature hereby finds that the conditions set forth in
this section will protect the public interest in accordance with
Section 3 of Article X of the California Constitution.
SEC. 4. In the case where the state conveys tidelands or any
interest therein pursuant to this act, 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 grant or Section 6401 of the Public Resources
Code, any 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:
(a) Enter upon, use, or damage the surface of the lands or
interfere with the use of the surface by the city or by the city's
successors or assignees.
(b) Conduct mining activities of any nature whatsoever above a
plane located 500 feet below the surface of the lands without the
prior written permission of the city or the city's successors or
assignees.
SEC. 5. Any agreement or any deed, patent, or other instrument
executed or entered into pursuant to this act, shall be conclusively
presumed to be valid unless held to be invalid in an appropriate
proceeding to determine its validity in a court of competent
jurisdiction commenced within 60 days after the recording of the
agreement or instrument.
SEC. 6. (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 to establish title to any lands conveyed pursuant to this
act, or by the parties to an agreement entered into pursuant to this
act to confirm the validity of the agreement. Notwithstanding 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 as to whether the conveyance or 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, an 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. 7. The city may modify any description and plat prepared and
recorded under Section 2 of the Burton Act and Section 11 of the
Burton Act transfer agreement to reflect the disposition of any
property pursuant to this act, and may record the modified
description and plat in the Official Records of the City and County
of San Francisco.
SEC. 8. Any conveyance, sale, exchange, boundary settlement,
confirmation of title, or agreed ordinary high water mark made,
established, or accomplished pursuant to this act is hereby found to
be of statewide significance, and, therefore, an ordinance, charter
provision, or other provision of local law inconsistent with this act
shall not be applicable thereto.
SEC. 9. The Legislature finds and declares that, because of the
unique circumstances applicable only to the lands within the cental
waterfront of the City and County of San Francisco 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.
SEC. 10. If any provision of this act, or its application to any
person, property, or circumstance, is held invalid by any court, the
invalidity or inapplicability of such provision shall not affect any
other provision of this act or the application of that provision to
any other person, property, or circumstance, and the remaining
portions of this act shall continue in full force and effect, unless
enforcement of this act as so modified by and in response to that
invalidation would be grossly inequitable under all of the
circumstances, or would frustrate the fundamental purposes of this
act.