BILL ANALYSIS
AB 694
Page 1
GOVERNOR'S VETO
AB 694 (Saldana)
As Introduced February 26, 2009
2/3 vote
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|ASSEMBLY: |48-30|(May 28, 2009) |SENATE: |24-15|(September 3, |
| | | | | |2009) |
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Original Committee Reference: NAT. RES.
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. Specifically, 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.
EXISTING LAW :
1)Section 3 of Article X of the California Constitution
prohibits all tidelands within two miles of any incorporated
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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.
FISCAL EFFECT : None
COMMENTS : 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,
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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 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.
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 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.
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
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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
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).
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.
GOVERNOR'S VETO MESSAGE :
This bill would shift authority over a portion of
land from the City of San Diego to the State Lands
Commission, effectively removing the ability of the
city to cooperate with the United States government
in the protection and public use of these tidelands
and submerged lands.
Last year, I vetoed a similar measure, AB 1832
(Saldana), which would have applied to tidelands and
submerged lands throughout California. I recognize
that the author has limited the scope of this bill
to tidelands already granted within the City of San
Diego. Unfortunately, this measure suffers the same
fatal flaw: it imposes trust restrictions on certain
tidelands parcels which could significantly
undermine the authority of local officials to
administer trust resources.
Once again, I believe that local governments have an
inherent interest in creating partnerships with the
federal government and others in utilizing water
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front lands for the benefit of the people of
California. I remain firm in my belief that they
can do so in a way that balances both our
environmental and economic interests.
Analysis Prepared by : Dan Chia / NAT. RES. / (916) 319-2092
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