BILL ANALYSIS                                                                                                                                                                                                    Ó





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          |                                                                 |
          |         SENATE COMMITTEE ON NATURAL RESOURCES AND WATER         |
          |                   Senator Fran Pavley, Chair                    |
          |                    2011-2012 Regular Session                    |
          |                                                                 |
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          BILL NO: AB 418                    HEARING DATE: June 28, 2011  
          AUTHOR: Ammiano                    URGENCY: No  
          VERSION: June 23, 2011             CONSULTANT: Marie Liu  
          DUAL REFERRAL: No                  FISCAL: Yes  
          SUBJECT: Tidelands and submerged lands: City and County of San 
          Francisco: Pier 70.  
          
          BACKGROUND AND EXISTING LAW
          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 private 
          parties unless the Legislature finds that these tidelands are 
          not used or necessary for navigation. The Legislature may impose 
          conditions on these sales and grants to protect the public 
          interest. 

          Chapter 1333 of the Statutes of 1968, otherwise known as the 
          Burton Act, allowed the granting of the Port of San Francisco 
          from the state to the City and County of San Francisco. The Act 
          allows San Francisco to operate, manage, regulate, and improve 
          the granted lands in a manner consistent with the public trust. 
          Allowable activities include: activities for the promotion and 
          accommodation of commerce and navigation; and the construction, 
          maintenance, and operation of public buildings, parks, and 
          public educational and recreational facilities. The Burton Act 
          also allows San Francisco to lease portions of the granted lands 
          for periods up to 66 years for uses that are consistent with the 
          public trust and the state's commerce and navigation needs. 
          Revenues from the leases and other uses of the granted lands are 
          deposited into the Harbor Trust Fund (Harbor Fund) and may only 
          be used for the management of San Francisco's granted trust 
          lands.

          PROPOSED LAW
          This bill removes and impresses the public trust on several 
          parcels within San Francisco's granted lands that are managed by 
          the Port of San Francisco (Port). This bill is divided into two 
          main sections - Pier 70 and Seawall Lot 330.
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           Regarding Pier 70, this bill would:
           Authorize the State Lands Commission (Commission) to approve 
            an exchange of trust lands within Pier 70 to allow for the 
            development of the area, subject to multiple conditions, 
            including:
             o    The lands being exchanged out of the public trust and 
               Burton Act trusts are filled so that they are no longer 
               tidelands or navigable waterways;
             o    The lands being impressed with the trust have a monetary 
               value equal to or greater than the monetary value of the 
               lands being exchanged out of the trust;
             o    The lands being impressed with the trust will provide a 
               significant benefit to the trust;
             o    There is public access to the trust lands and streets, 
               and other transportation facilities will provide access to 
               shoreline improvements; and 
             o    The exchange is in the best interests of the statewide 
               public.
           Allow the Port to continue to hold title to lands that are 
            released from the public trust (e.g. trust termination lands) 
            so long as they are managed as assets of the public trust. Any 
            revenues generated from these trust termination lands must be 
            deposited into the Harbor Fund. The Harbor Fund may be used by 
            the Port for the management of the trust termination lands 
            subject to certain conditions.
           Allow historic buildings on the trust lands to be leased for 
            non-trust purposes so long as the buildings are rehabilitated 
            to federal restoration standards, the leases allow for public 
            access to view the historic architectural amenities of the 
            buildings, and the Executive Officer of the Commission finds 
            that the leases are part of an overall program that furthers 
            trust purposes.
           Make numerous findings and declarations regarding the history 
            of Pier 70, the future plans for the area, and the need for a 
            trust exchange.

          Regarding Seawall Lot 330, this bill would:
           Terminate the public trust on Seawall Lot 330 in perpetuity.
           Allow the Port to convey the title and interest of Seawall Lot 
            330 to any person so long as the Port receives at least fair 
            market value. Revenues or considerations from the sale must be 
            used for trust purposes. Considerations may be in the form of 
            improvements to other trust lands within the Port's 
            jurisdiction.
           Require the Commission to review the appraisals used to 
            determine the fair market value of the lot.
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           Require the Port, as a condition of selling the fee title to 
            Seawall Lot 330, to impress new lands with the public trust. 
            The new lands must be within or adjacent to the San Francisco 
            Bay, have a total area equal to or greater than the area of 
            Seawall Lot 330, and be useful for trust purposes as 
            determined by the Commission.
           Make numerous findings and declarations regarding extensive 
            needed capital improvements along the waterfront, the 
            insufficient revenues from the trust lands to fund such 
            improvements, the host agreement for the 34th America's Cup, 
            the economic impacts of hosting the 34th America's Cup, and 
            the current underutilization of Seawall Lot 330.

          ARGUMENTS IN SUPPORT
          According to the Port of San Francisco, in support of the bill, 
          "A trust realignment will make both trust and non-trust parcels 
          more valuable by enabling major economic development and 
          waterfront restoration and providing for the preservation of 
          ongoing ship repair and historic resources, while creating a 
          vibrant and authentic historic district that will activate new 
          waterfront open spaces and development?Market potential and 
          community consensus suggest that cultural, institutional, 
          office, biotech, other commercial, and perhaps a limited amount 
          of residential uses, most of which are not consistent with the 
          public trust, should be developed at Pier 70 in areas that are 
          least suitable for public trust uses, as reflected in the Master 
          Plan. Higher land value uses are essential to generating the 
          revenues needed to realize Pier 70's potential and the Port's 
          overarching goals. Realigning the land use regulations is 
          imperative to realizing the vision of a revitalized Pier 70."

          ARGUMENTS IN OPPOSITION
          None received.

          COMMENTS 
           Development plans for Pier 70:  Pier 70 is a 69-acre brownfields 
          site on San Francisco's Central Waterfront that has been used 
          for ship building and repair for over 150 years. In April 2010, 
          the Port published its Master Plan for the Pier 70 area to 
          create a "vibrant and authentic historic district." Plans 
          include preserving and integrating ongoing ship repair 
          operations; providing sites for office, research, light 
          industry, commercial, and recreational uses; remediating past 
          environmental contamination; and extending the San Francisco Bay 
          Trail and Blue Greenway. 

          The Pier 70 area is comprised of parcels acquired from the 
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          state, the federal government, and private parties. The result 
          is a patchwork of sites subject to public trust restrictions. 
          According to the author, the purpose of this bill is to allow a 
          public trust swap that will consolidate trust properties along 
          the water's edge to promote maritime uses and public access. In 
          exchange, upland portions of the area will be exchanged out of 
          the public trust for development.

           Trust termination lands at Pier 70 - Expanded uses- and 
          revenues- for the Harbor Fund:  The Committee may wish to find 
          that the authorization for the Pier 70 trust exchange is 
          generally consistent with past exchanges approved by the 
          Legislature. One notable unique aspect of this authorization, 
          however, is the allowance for the Port to remain in control of 
          some of the non-trust lands, or trust termination lands, and use 
          the Harbor Fund for some management costs. Under the bill, the 
          Port would manage these lands as an investment of sorts - 
          revenues generated from the trust termination lands will be 
          deposited in the Harbor Fund. The Port would, in exchange, have 
          a limited ability to use the Harbor Fund to manage and 
          administer the non-trust lands, which is a new use of the Harbor 
          Fund. 

          According to the Port, it is their belief that more revenues 
          will be generated on the trust termination lands than will be 
          needed to administer the lands - thereby ensuring a net benefit 
          for the Harbor Fund. The committee should note that the author 
          intends to work with the Commission to draft a future amendment 
          to this bill that would add a reporting requirement in 
          approximately 35 years to assure that the Harbor Fund was held 
          whole under this authorization and potentially require the Port 
          to make the Harbor Fund whole, if necessary.

           Seawall Lot 330 and America's Cup:  On December 31, 2010, San 
          Francisco was chosen as the host location for the 34th America's 
          Cup in 2013. A host and venue agreement between San Francisco 
          and the America's Cup Event Authority (Authority). This 
          agreement, however, is contingent on California Environmental 
          Quality Act compliance; improvements to and use of specific 
          facilities; and city, state, and federal approvals. These are 
          all currently underway.

          The host agreement includes approximately $55 M in improvements 
          to the waterfront (mostly pier improvements and public viewing 
          facilities), which will be made by the Authority with private 
          funds. In exchange, the Port will grant the Authority long-term 
          leases, probably for two sites, one of which is Seawall Lot 330. 
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          The Authority will receive rent credits equal the capital 
          improvements that the Authority actually makes to the 
          waterfront. 

          Seawall Lot 330 currently serves as a surface parking lot. The 
          Legislature has previously found that Seawall Lot 330 was no 
          longer useful to the trust (SB 815 (Migden, 2007)) and allowed 
          the Port to use the property for non-trust purposes on a 
          temporary but long-term basis (up to 75 years) so long as the 
          revenues from the lot continue to be used for specific trust 
          purposes. This bill proposes to permanently release the lot from 
          the public trust and further allow the Port to sell the property 
          for fair market value, consistent with the host agreement. The 
          author estimates that the property is worth approximately $25 M. 
          The proceeds from this sale will essentially decrease the amount 
          of rent credits the Authority will receive from the Port. 
          Presumably the Authority will develop the property for its 
          highest and best use, residential development.

          Under the host agreement, if the Legislature does not allow the 
          property sale and permanent lifting of the public trust, the 
          Port will grant the Authority a 75-year lease on Seawall Lot 
          330, which would preclude residential development. Thus the Port 
          will have to offer the Authority significantly more rent 
          credits. 

           Authority to sell trust lands to a private entity outside of an 
          equal-value trust exchange is unprecedented  : In the past, the 
          Legislature has approved the sale and lifting of the public 
          trust on trust lands, but only as part of an exchange so that 
          the state receives trust land that is equal in value, as 
          required by §6307 of the Public Resources Code. For example, the 
          Legislature has previously allowed the sale of a small portion 
          of Seawall Lot 330 (0.52 acres) for the construction of a 
          22-store condominium tower. Replacement lands of equal value 
          were placed in trust and the Port additionally agreed to use $9M 
          of the sale proceeds to construct the Brannan Street Wharf 
          (Chapter 310, Statutes of 1987). The requirement that the 
          exchange is equal in value assures that the statewide public's 
          interest is kept whole in the sale.

          This bill would obligate the Port, as a condition of selling 
          Seawall Lot 330, to impress the public trust on new lands in the 
          San Francisco Bay that are at least equal in area of Seawall Lot 
          330, but not equal in value, thereby arguably not necessarily 
          keeping the statewide public interest whole. The Committee may 
          wish to consider whether it is in the best interest of the state 
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          to receive less revenue or land value than normal in these land 
          exchanges, in exchange for the Authority making upfront 
          investments to the waterfront that the Port otherwise does not 
          have the cash flow to do.

           Permits are required by the San Francisco Bay Conservation and 
          Development Commission (BCDC)  : This bill contains language that 
          specifies how San Francisco will satisfy BCDC's regulatory 
          requirements in order to receive a development permit. BCDC's 
          standard practice is to only issue a permit after the local 
          agency has given final approval for the project. As recently 
          amended, this bill would require BCDC to issue a permit before 
          the local government's final approval, which means BCDC might 
          have to revise its permits if the local government makes any 
          changes before final approval. The author contends that BCDC's 
          standard process does not work well for large projects that are 
          built in phases over time. The committee may wish to delete the 
          recent amendments to this section of the bill to allow BCDC and 
          the Port to continue conversations on how best to address the 
          permit and approval sequencing for the Pier 70 project.

          SUGGESTED AMENDMENTS 
               AMENDMENT 1  
               Beginning on page 18, line 40, delete "that is consistent 
          with an approved financial and land use plan for the Pier 70 
          area as permitted under charter section B7.310" and insert "and 
          city final approval of all necessary amendments to the city's 
          general plan, planning code, and zoning maps."

          SUPPORT
          City and County of San Francisco
          Dogpatch Neighborhood Association
          GreenTrustSF- Central Waterfront
          Neighborhood Parks Council
          Northern California District Council of the International 
          Longshore and Warehouse Union
          Port of San Francisco
          Potrero Boosters Neighborhood Association
          San Francisco Architectural Heritage
          San Francisco Building and Construction Trades Council
          San Francisco Chamber of Commerce
          San Francisco Planning and Urban Research Association

          OPPOSITION
          None Received


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