BILL ANALYSIS
AB 694
Page 1
Date of Hearing: April 13, 2009
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Nancy Skinner, Chair
AB 694 (Saldana) - As Introduced: February 26, 2009
SUBJECT : Tidelands and submerged lands: City of San Diego.
SUMMARY : Repeals Chapter 642 of the Statutes of 1929 which
removed the "tidelands" designation on all land shoreward of the
bulkhead in City of San Diego and declared them to be free from
all public trusts and restrictions.
EXISTING LAW :
1)Section 3 of Article X of the California Constitution
prohibits all tidelands within two miles of any incorporated
city, city and county, or town from being granted or sold to a
private party; section 4 of Article X prohibits anyone from
excluding the right of access to or navigation of tidelands
whenever it is required for any public purpose.
2)Chapter 700, Statutes of 1911 conveyed certain tideland
parcels to the City of San Diego to be held in public trust,
without the right to grant or convey such tidelands, on the
condition that it make certain harbor improvements.
3)Chapter 250, Statutes of 1913 authorized any municipality to
which tidelands have been granted by the Legislature to grant
portions of such lands to the United States for the "public
purposes of the United States" if approved by a majority of
electors.
4)Chapter 642 of the Statutes of 1929 removed the "tidelands"
designation on all land shoreward of the bulkhead in City of
San Diego and declared them to be free from all public trusts
and restrictions except that the city shall not grant or
convey these lands to anyone for any purpose. The city is
permitted, however, to lease or rent these lands for a period
not to exceed 50 years. The city may also use, lease or rent
all land lying seaward of the bulkhead line to any person or
corporation for a maximum of 50 years provided that the use or
lease does not interfere with public trust purposes such as
navigation, commerce or fisheries.
AB 694
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THIS BILL :
1)Repeals Chapter 642 of the Statutes of 1929. All former
tidelands shoreward of the bulkhead, with the exception of the
parcels conveyed to the United States by the City of San Diego
within the Navy Broadway Complex, and tidelands or submerged
lands seaward of the bulkhead would therefore be subject to
public trust restrictions.
2)States that the repeal of Chapter 642 may not be construed to
overturn or otherwise nullify the decision in United States of
America v. 15.320 Acres of Land, U.S. Dist. Lexis 21875 or any
title settlement agreement entered into by the State of
California acting by and through the State Lands Commission.
3)Requires the State Lands Commission (Commission) to represent
the state and cooperate with the state's local trustees and
the United States in resolving their respective title and
boundary issues involving tidelands and submerged lands,
including, but not limited to, those involved in the 1993
federal Base Closure and Realignment Law.
FISCAL EFFECT : Unknown
COMMENTS :
1)Background
This bill responds to a federal district court decision in 1991
upholding the Navy's assertion that
about 15 acres of downtown waterfront land, former tidelands
granted to it by the City of San
Diego for exclusive use of the Navy (known as the Navy Broadway
Complex), are free from the public trust and associated use
restrictions. The U.S. brought this case in order to "quiet
title" or settle all claims to the property in order to develop
it. In defense, the state argued that Chapter 642 did not
terminate the public trust on the property but simply lifted
certain use restrictions and the absolute prohibition, contained
in the original 1911 grant to the city, against its transfer
(especially when read with Chapter 808, passed by the
Legislature in the same year as Chapter 642, which defined to
whom and for what purpose tidelands could be granted).
Moreover, the state argued that even if the Legislature intended
to lift the public trust from the property, it did not have the
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power to do so because such action would conflict with common
law precedent upholding the public's unalienable interest in
tidelands.
The court rejected the state's position and ruled in favor of
the U.S. citing, in part, the plain, unambiguous language of
Chapter 642 and the fact that neither the Legislature nor a
court of law has taken any action to invalidate it.
Accordingly, and pursuant to federal authorization, the Navy
entered into a long-term lease in December 2006 with a private
developer in exchange for a new Navy Administration building on
the 15 acre property. The developer is proposing 1.7 million
square feet of office use, 1.2 million square feet of hotels,
lesser amounts for retail and "public attraction" space, and a
1.9 acre public park. The Navy has entered into a memorandum of
understanding with the City of San Diego to develop the
property.
2)The Legislature takes action .
This bill only pertains to the remaining tidelands or submerged
lands, both filled and unfilled, subject to Chapter 642 and
outside of the Navy Broadway Complex. While the author has no
intention of overturning the federal court decision, the intent
is to clarify that the remaining tidelands in the City of San
Diego are subject to the public trust and associated use
restrictions. In fact, according to the State Lands Commission,
the court's decision is final, no longer subject to appeal, and
irrespective of this bill, cannot be re-tried with respect to
the subject tidelands. The author's office is concerned that
without this bill, the Navy could assert a similar right to
lease or dispose of other tidelands for non-military or
non-trust uses.
3)History and current use of Chapter 642 tidelands .
Chapter 250, Statutes of 1913 authorized any municipality to
which tidelands have been granted by the Legislature to grant
portions of such lands to the United States for the "public
purposes of the United States" if approved by a majority of
electors. Between 1919 and 1940, the City of San Diego granted
to the United States government several parcels of land,
including the Navy Broadway Complex. All of the grants, though
some obviously in vain, restricted use of the parcels to the
"purposes" of the U.S. Navy. In 1962, the Legislature created
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the Port of San Diego and transferred most of the remaining
tidelands subject to Chapter 642 to the Port. On behalf of the
state, the Port holds in trust about 3415 acres of filled
tidelands and 3402 acres of submerged tidelands. According to
the Port, these lands are all used to promote the public trust
(e.g., ship building, marinas; visitor-serving hotels and
restaurants; berths, ship channels; parks, open space).
4)Previous legislation
This bill is similar to AB 1832 (Salda?a), which the Governor
vetoed last year because it eliminated the authority of local
governments, upon voter approval, to grant tidelands and
submerged lands to the federal government for "public" or
"governmental" purposes. This bill retains this authority.
5)Dual-referral
This bill has been dual-referred to the Assembly Local
Government Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
None on file
Analysis Prepared by : Dan Chia / NAT. RES. / (916) 319-2092