BILL NUMBER: SB 551 CHAPTERED
BILL TEXT
CHAPTER 422
FILED WITH SECRETARY OF STATE OCTOBER 2, 2011
APPROVED BY GOVERNOR OCTOBER 2, 2011
PASSED THE SENATE SEPTEMBER 8, 2011
PASSED THE ASSEMBLY SEPTEMBER 7, 2011
AMENDED IN ASSEMBLY SEPTEMBER 2, 2011
AMENDED IN SENATE MAY 31, 2011
AMENDED IN SENATE APRIL 7, 2011
INTRODUCED BY Senator DeSaulnier
FEBRUARY 17, 2011
An act to repeal Article 4 (commencing with Section 6361) of
Chapter 4 of Part 1 of Division 6 of the Public Resources Code,
relating to tidelands, and making an appropriation therefor.
LEGISLATIVE COUNSEL'S DIGEST
SB 551, DeSaulnier. State property: tidelands transfer: City of
Pittsburg.
(1) Existing law grants tidelands and submerged lands to the City
of Pittsburg, subject to specified conditions, for purposes of
commerce, navigation, and fisheries, and for other public trust
purposes. The Kapiloff Land Bank Act creates the Land Bank Fund and
continuously appropriates moneys in the fund, subject to a statutory
trust, to the State Lands Commission, acting as the Land Bank
Trustee, to acquire real property or any interest in real property
for the purposes of public trust title settlements.
This bill would repeal the existing codified legislative grant to
the City of Pittsburg and would enact a new uncodified grant of
tidelands and submerged lands, as described, to the City of
Pittsburg. The bill would require the trust lands to be held by the
City of Pittsburg, as trustee, for the benefit of all the people of
the state for purposes consistent with the public trust doctrine,
including the protection of maritime or water dependent commerce,
navigation, and fisheries, and the preservation of the lands in their
natural state for scientific study, open space, wildlife habitat,
and water-oriented recreation.
The bill would require, on June 30, 2012, and at the end of every
fiscal year thereafter, that 20% of all gross revenues generated from
the trust lands be transmitted to the commission, for allocation by
the Treasurer, of which 80% would be deposited in the General Fund
and 20% in the Kapiloff Land Bank Fund, thereby making an
appropriation.
The bill would require the commission, by January 1, 2014, to
survey, monument, and record a plat and a metes and bounds
description of the trust lands subject to the bill.
The bill would impose a state-mandated local program by requiring,
among other things, that the City of Pittsburg submit to the
commission for its approval a trust lands use plan, as prescribed.
The bill would require the city to file a report with the commission
by September 30, 2022, and every 5 years thereafter, on its uses of
the trust lands, and to annually file a detailed statement of trust
revenues and expenditures.
(2) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Appropriation: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Article 4 (commencing with Section 6361) of Chapter 4
of Part 1 of Division 6 of the Public Resources Code is repealed.
SEC. 2. (a) For the purposes of this act, the following
definitions shall apply:
(1) "Act" means Sections 2 to 10, inclusive, of the act enacting
this section.
(2) "Commission" means the State Lands Commission.
(3) "Public trust doctrine" means the common law doctrine, as
enunciated by the court in National Audubon Society v. Superior Court
(1983) 33 Cal.3d 419, and other relevant judicial decisions,
specifying the state's authority as sovereign to exercise a
continuous supervision and control over the navigable waters of the
state, the lands underlying those waters, and nonnavigable
tributaries to navigable waters, including the maritime or water
dependent commerce, navigation, and fisheries, and the preservation
of lands in their natural state for scientific study, open space,
wildlife habitat, and water-oriented recreation.
(4) "State" means the State of California.
(5) "Trustee" means the City of Pittsburg, a municipal
corporation.
(6) "Trust lands" means all tidelands and submerged lands, whether
filled or unfilled, situated within the boundaries of the City of
Pittsburg including those lands annexed to the City of Pittsburg
pursuant to Section 56740 of the Government Code on December 31,
2009, as surveyed, monumented, and recorded pursuant to Section 10 of
this act, except as provided in Section 9 of this act.
(7) "Trust revenues" means all revenues received from trust lands
and trust assets.
(8) "Trust lands use plan" or "plan" means the trust use land plan
required to be submitted by the trustee to the commission pursuant
to Section 4 of this act.
(9) "Trust lands use report" means the trust lands use report of
its utilization of the trust lands required to be submitted by the
trustee pursuant to Section 5 of this act.
(b) There is hereby granted in trust to the City of Pittsburg, and
to its successors, all of the rights, title, and interest of the
state, held by the state by virtue of its sovereignty in and to all
tide and submerged lands, whether filled or unfilled, situated in the
City of Pittsburg, County of Contra Costa, including those lands
annexed to the City of Pittsburg pursuant to Section 56740 of the
Government Code on December 31, 2009, as surveyed, monumented, and
recorded pursuant to Section 10 of this act, except as provided in
Section 9 of this act.
SEC. 3. The trust grant specified in Section 2 of this act is
subject to all of the following express conditions:
(a) The trust lands shall be held by the trustee in trust for the
benefit of all the people of the state for purposes consistent with
the public trust doctrine, including, but not limited to, maritime or
water dependent commerce, navigation, and fisheries, preservation of
the lands in their natural state for scientific study, open space,
wildlife habitat, and water-oriented recreation.
(b) On and after January 1, 2017, the use of the trust lands shall
conform to an approved trust lands use plan, as required by
subdivision (e) of Section 4 of this act.
(c) The trustee shall not, at any time, grant, convey, give, or
otherwise alienate or hypothecate the trust lands, or any part of the
trust lands, to any person, firm, entity, or corporation for any
purposes whatsoever.
(d) The trustee may lease the trust lands, or any part of the
trust lands, for limited periods, not exceeding 49 years, for
purposes consistent with the trust upon which those lands are held,
as specified in subdivision (a). The trustee may collect and retain
rents and other trust revenues from those leases, under rules and
regulations adopted in accordance with Section 7 of this act, and in
accordance with all of the following requirements:
(1) On and after January 1, 2017, all leases or agreements
proposed or entered into by the trustee shall be consistent with the
trust lands use plan approved by the commission, as required by
subdivision (e) of Section 4 of this act. Any leases entered into
prior to January 1, 2017, shall be consistent with the public trust
doctrine and the terms of subdivision (a).
(2) The lease rental rates shall be for a fair annual rent.
(3) The lease shall be in the best interest of the state.
(e) When managing, conducting, operating, or controlling the trust
lands or an improvement, betterment, or structure on the trust
lands, the trustee or his or her successor shall not discriminate in
rates, tolls, or charges for any use or service in connection with
those actions and shall not discriminate against or unlawfully
segregate any person or group of persons because of sex, race, color,
creed, national origin, ancestry, or physical disability for any use
or service in connection with those actions.
(f) The state shall have the right to use without charge, a
transportation, landing, or storage improvement, betterment, or
structure constructed upon the trust lands for a vessel or other
watercraft or railroad owned or operated by, or under contract to,
the state.
(g) The trust lands are subject to the express reservation and
condition that the state may, at any time in the future, use those
lands, or any portion of those lands, for highway purposes without
compensation to the City of Pittsburg or a person, firm, or public or
private corporation claiming a right to those lands, except if the
improvements have been placed with legal authority upon the property
taken by the state for highway purposes, compensation shall be made
to the person entitled to the value of the interest in the
improvements taken or the damages to that interest.
(h) There is reserved to the people of the state the right to fish
in the waters over the trust lands, with the right of convenient
access to those waters over the trust lands for this purpose.
(i) There is excepted and reserved to the state all remains or
artifacts of archaelogical or historical significance and all
deposits of minerals, including, but not limited to, all substances
specified in Section 6407 of the Public Resources Code in the trust
lands, and the right to prospect for, mine, and remove those deposits
from the lands.
(j) The trustee shall not authorize a capital outlay project,
lease, or agreement for port industrial facilities, including, but
not limited to, a marine terminal, pipeline, or other related energy
facility, on the trust lands without first requesting and receiving
the approval of the commission. Prior to approving a capital outlay
project, lease, or agreement, the commission shall consult with other
governmental agencies, and the commission shall not approve the
project, lease, or agreement, unless the commission determines that
the project is in, and for, the best interest of the people of the
state and consistent with applicable provisions of law.
(k) The trustee shall reimburse the commission for all expenses
incurred in the administration of this act, including periodic audits
or investigations.
SEC. 4. (a) On or before January 1, 2017, the trustee shall submit
to the commission a trust lands use plan describing any proposed
development, preservation, or other use of the trust lands. The
trustee shall thereafter submit to the commission for approval all
changes of, amendments to, or extensions of, the trust lands use
plan.
(b) The commission shall review with reasonable promptness the
trust lands use plan submitted by the trustee and any changes or
amendments to determine whether they are consistent with the public
trust and the requirements of this act. Based upon its review, the
commission shall either approve or disapprove the plan. If the
commission disapproves the plan the commission shall notify the
trustee and the trustee shall submit a revised plan to the commission
no later than 180 days after the date of notice of disapproval. If
the commission determines the revised plan is inconsistent with the
common law public trust doctrine and the requirements of this act,
all rights, title, and interest of the trustee in and to the trust
lands and improvements on the trust lands shall revert to the state.
(c) The trust lands use plan shall consist of a plan, program, or
other document that includes all of the following:
(1) A general description of the type of uses planned or proposed
for the trust lands. The location of these land uses shall be shown
on a map or aerial photograph.
(2) The projected statewide benefit to be derived from the planned
or proposed uses of the trust lands, including, but not limited to,
financial benefit.
(3) The proposed method of financing the planned or proposed uses
of the trust lands, including estimated capital costs, annual
operating costs, and anticipated annual trust revenues.
(4) An estimated timetable for implementation of the trust land
use plan or any phase of the plan.
(5) A description of how the trustee proposes to protect and
preserve natural and manmade resources and facilities located on
trust lands and operated in connection with the use of the trust
lands, including, but not limited to, addressing impacts from sea
level rise.
(d) The governing body of the trustee shall also submit to the
commission, as part of the trust lands use plan, for its approval,
procedures, rules, and regulations to govern the use of or
development of the trust lands. These rules and regulations shall
include, but are not limited to, lease rates, the basis upon which
the rates are established, lease terms and conditions, provisions for
renegotiation of rates and terms and assignments, and any other
information as may be required by the commission.
(e) Any use of the trust lands, including, but not limited to, all
leases or agreements proposed, or entered into, by the trustee after
January 1, 2017, shall be consistent with the trust lands use plan
submitted by the trustee and approved by the commission.
(f) Upon request, the trustee shall submit to the commission a
copy of all leases and agreements entered into, renewed, or
renegotiated.
SEC. 5. (a) On or before September 30, 2022, and on or before
September 30 of every succeeding fifth year, the trustee shall submit
a report of its utilization of the trust lands for each immediately
preceding five-calendar-year period ending with June 30 of the
calendar year in which the report is required to be submitted.
(b) The report required by this section shall include all of the
following:
(1) A general description of the uses to which the trust lands
have been placed during the period covered by the report.
(2) A list of the holders of leases or permits that have been
granted or issued by the trustee, which list shall specify all of the
following, as to each holder:
(A) The use to which the trust lands have been placed by the owner
or holder.
(B) The consideration provided for in each lease or permit, and
the consideration actually received by the trustee for the lease or
permit granted or issued.
(C) An enumeration of the restrictions that the trustee has placed
on the use of the trust lands, and each area of the trust lands, for
the period covered by the report.
SEC. 6. (a) The trustee shall demonstrate good faith in carrying
out the provisions of its trust land use plan and amending it when
necessary in accordance with Section 3 of this act.
(b) If the commission determines that the trustee substantially
failed to improve, restore, preserve, or maintain the trust lands, as
required by the trust land use plan, or has unreasonably delayed
implementation of their trust use plan, all rights, title, and
interest of the trustee in and to the trust lands and improvements on
the trust lands shall revert to the state.
SEC. 7. (a) (1) The trustee shall establish and maintain
accounting procedures, in accordance with generally accepted
accounting principles, providing accurate records of all revenues
received from the trust lands and trust assets and of all
expenditures of those revenues.
(2) All trust revenues received from trust lands and trust assets
shall be expended only for those uses and purposes consistent with
this act. The trustee shall provide for the segregation of funds
derived from the use of the trust lands by the trustee from other
city municipal funds, so as to ensure that trust revenues are only
expended to enhance or maintain the trust lands in accordance with
the uses and purposes for which the trust lands are held.
(3) Trust revenues may be expended to acquire appropriate upland
properties to benefit and enhance the trust, subject to a
determination by the commission that this acquisition is consistent
with this act and in the best interests of the state. Property
acquired with these trust revenues shall be considered an asset of
the trust and subject to the terms and conditions of this act.
(b) On or before October 1 of each year, the trustee shall file
with the commission a detailed statement of all trust revenues and
expenditures relating to its trust lands and trust assets, including
obligations incurred but not yet paid, covering the fiscal year
preceding submission of the statement. The commission may specify the
form and content of this statement. The statement shall meet both of
the following requirements:
(1) The statement shall be prepared according to generally
accepted accounting principles.
(2) The statement shall be specific to the trust lands and trust
assets and shall not include city municipal financial or accounting
information unrelated to the trust lands and trust assets.
(c) (1) Before expending trust revenues for any single capital
improvement on the trust lands involving an amount in excess of two
hundred fifty thousand dollars ($250,000) in the aggregate, the
trustee shall file with the commission a detailed description of the
capital improvement not less than 120 days prior to the time of any
disbursement of trust revenues for, or in connection with, that
capital improvement.
(2) Within 120 days after the time of a filing specified in
paragraph (1), the commission shall determine whether the capital
improvement is in the statewide interest and benefit and, if the
filing is made on or before December 1, 2016, whether it is
consistent with subdivision (a) of Section 3 of this act or, if the
filing is made on or after January 1, 2017, whether it is consistent
with the trust use plan. The commission may request the opinion of
the Attorney General on the matter, and if the commission makes this
request, the Attorney General shall deliver a copy of the opinion to
the trustee with the notice of its determination.
(3) If the commission notifies the trustee that the capital
improvement is not authorized, the trustee shall not disburse any
trust revenues for, or in connection with, the capital improvement,
unless it is determined to be authorized by a final order or judgment
of a court of competent jurisdiction.
(4) The trustee may bring suit against the state for the purpose
of securing an order or judgment for purposes of paragraph (3), which
suit shall have priority over all other civil matters. Service shall
be made upon the executive officer of the commission and the
Attorney General, and the Attorney General shall defend the state in
that suit. If judgment is given against the state in the suit, no
costs may be recovered.
(d) On June 30, 2012, and at the end of every fiscal year
thereafter, 20 percent of all gross revenue generated from the trust
lands shall be transmitted to the commission. Of this amount
transmitted, the commission shall allocate 80 percent to the
Treasurer, for deposit in the General Fund, and 20 percent to the
Treasurer, for deposit in the Kapiloff Land Bank Fund for expenditure
pursuant to Division 7 (commencing with Section 8600) of the Public
Resources Code for management of the commission's granted lands
program.
(e) The commission may, from time to time, institute a formal
inquiry to determine that the terms and conditions of this act, and
amendments to this act, have been complied with, and that all other
applicable provisions of law concerning the trust lands are being
complied with in good faith.
(f) The commission shall approve in advance of expenditure any
reimbursement for expenditures of nontrust revenues for improvements
made to the trust or, if not approved, those expenditures shall be
deemed a gift to the trust.
SEC. 8. (a) If the commission finds that the trustee has violated
or is about to violate the terms of its trust grant or any other
principle of law relating to its obligation under the public trust
doctrine or under this act, the commission shall notify the trustee
of the violation.
(b) The trustee shall have 30 days from receipt of a notice of
violation to conform to the terms of its grant and the principles and
laws under the public trust doctrine. If the trustee fails or
refuses to take those actions, the commission may bring an action to
enforce the rights of the state and people as settlor beneficiary of
the public trust doctrine.
(c) The Attorney General shall represent the state and people in
all actions or proceedings taken pursuant to this section. If the
judgment is given against the state in the action or proceeding, no
costs shall be recovered from the state and people.
SEC. 9. The lands identified as Browns Island, Commission Lease
Number PRC 4966 CPN Pipeline, and Commission Lease Number PRC 8736
Trans Bay Cable LLC are not included as trust lands for purposes of
this act.
SEC. 10. (a) On or before January 1, 2014, the commission shall
survey, monument, and record a plat and a metes and bounds
description of the trust lands in the office of the county recorder
in the county or counties in which the lands are located. Upon
recordation, the survey, monuments, plat, and metes and bounds
description shall be binding upon the state, the grantee, and their
successors in interest.
(b) The cost of the survey and recordation shall be paid by the
trustee.
(c) The requirements of Section 6359 of the Public Resources Code
do not apply to the trust lands granted pursuant to this act.
SEC. 11. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because a
local agency or school district has the authority to levy service
charges, fees, or assessments sufficient to pay for the program or
level of service mandated by this act, within the meaning of Section
17556 of the Government Code.