BILL ANALYSIS Ó AB 1273 Page 1 Date of Hearing: April 15, 2013 ASSEMBLY COMMITTEE ON NATURAL RESOURCES Wesley Chesbro, Chair AB 1273 (Ting) - As Amended: March 21, 2013 SUBJECT : Tidelands and submerged lands: City and County of San Francisco: Pier 30-32: multipurpose venue SUMMARY : Authorizes the San Francisco Port Commission (Port) to approve a multi-use development on public trust lands (Pier 30-32) that includes a multipurpose venues (for Golden State Warriors basketball games, at least three public trust consistent events a year, and other events), if the Port finds that certain specified conditions are met. EXISTING LAW : 1)Protects, pursuant to the common law doctrine of the public trust (Public Trust Doctrine), the public's right to use California's waterways for commerce, navigation, fishing, boating, natural habitat protection, and other water oriented activities. The public trust doctrine provides that filled and unfilled tide and submerged lands and the beds of lakes, streams, and other navigable waterways (i.e. public trust lands) are to be held in trust by the state for the benefit of the people of California. 2)Requires the State Lands Commission (Commission) to be the steward and manager of the state's public trust lands. The Commission has direct administrative control over the state's public trust lands and oversight authority over public trust lands granted by the Legislature to local public agencies. 3)Grants, in trust, state public trust lands to over 80 local public agencies to be managed for the benefit of all the people of the state and pursuant to the Public Trust Doctrine and terms of the applicable granting statutes. 4)Pursuant to the Burton Act, grants to the Port, in trust, the public trust lands in the harbor of San Francisco for purposes of commerce, navigation, and fisheries and subject to other terms and conditions specified in the act. 5)Pursuant to Chapter 489 of the Statutes of 2001 (AB 1389, AB 1273 Page 2 Shelley) and Chapter 68 of the Statutes of 2003 (AB 605, Yee), authorizes the Port to approve a cruise ship terminal development on the San Francisco waterfront at Pier 30-32, which would include general office and retail use. 6)Pursuant to Chapter 477 of the Statutes of 2011(AB 418, Ammiano), frees the public trust restrictions from Seawall Lot 330 (which is across the Embarcadero from Pier 30-32) and authorizes the transfer of the property to a private party subject to specified conditions. 7)Pursuant to the McAteer-Petris Act, establishes the jurisdiction of the San Francisco Bay Conservation and Development Commission (BCDC) to include, among other things, the San Francisco Bay and a shoreline band consisting of all territory located between the shoreline of San Francisco Bay and a line 100 feet landward of and parallel with that line. THIS BILL : 1)Makes several findings and declarations. 2)Amends Chapter 489 of the Statutes of 2001 and Chapter 68 of the Statutes of 2003 to delete the provisions related to the cruise terminal (which was never developed at the Pier 30-32 site) and authorize the Port to approve a development on the San Francisco waterfront at Pier 30-32, that includes a multipurpose venues (i.e. the Golden State Warriors' basketball arena), if the Port finds that all of the following conditions are met: a) The venue facility is designed to provide vantage points offering views of the Bay Bridge, the San Francisco Bay, or both, from concourses on the south and east sides of the venue, and from certain seating areas, and, consistent with programming needs of events, the venue facility shall provide free public access to patrons and nonpatrons alike to portions of the building on the east side of the venue, from which the public can view the San Francisco Bay, subject to reasonable limitations based on security. b) The development includes a public access component that meets the requirements of a plan adopted by the Port and BCDC and the San Francisco Bay Plan, provides new public vantage points on the north, east, and south sides of Pier AB 1273 Page 3 30-32 from which to view San Francisco Bay, and provides continuous public access around the entire perimeter of Pier 30-32 (configured as necessary to accommodate use by the fire boat station, berths, or other maritime uses on the pier edge, to the extent each of those uses is incorporated into the development) and between Pier 30-32 and the Brannan Street Wharf. c) The Brannan Street Wharf project, as described in the Special Area Plan, shall be substantially complete and open to the public prior to approval of the Pier 30-32 development. d) The development includes a significant maritime program that provides for maritime uses along the north and east edges of Pier 30-32, which uses may include, without limitation: i) A city fire station and berthing facilities for city fire boats. ii) Facilities for berthing at the east end of Pier 30-32, including facilities that can accommodate periodic use by cruise or other deep draft vessels. iii) Direct public access to the water in the form of a launch for human-powered vessels, subject to feasibility and public safety considerations. iv) Guest berths that accommodate private vessels for day use. v) Water-based transit facilities, including water taxi and ferry landings. vi) Use of the south edge of Pier 30-32 by recreational craft or other maritime uses or for public access or public water-oriented recreational uses facing the Brannan Street Wharf open water basin. vii) Any nonmaritime office space provided on Pier 30-32 is for use by the primary tenants of the multipurpose venue, or is ancillary to the use of the multipurpose venue, the retail uses on Pier 30-32, the operation and management of the open space, and other public facilities AB 1273 Page 4 on Pier 30-32. viii) At least half of all retail on Pier 30-32 is trust retail (i.e. visitor serving public trust retail and restaurant use). ix) Any parking included on Pier 30-32 is located under active uses on Pier 30-32, substantially screened from public view, and designed to avoid material interference with pedestrian and bicycle traffic along Herb Caen Way and the public's access to and use of the open space on the surface of the pier. 3)Provides a 60 day statute of limitations to challenge the validity of an approval, deed, patent, agreement, or other instrument executed in furtherance of this act. FISCAL EFFECT : Unknown COMMENTS : 1)Purpose of the Bill. The primary purpose of this bill is to have the Legislature authorize a mix-use development project, which, among other things, includes a multipurpose venue (i.e. the Golden State Warriors' basketball arena) and on a pier built on tide and submerged lands (i.e. public trust lands) located in San Francisco. The bill asserts that the project is consistent with the common law public trust. The challenge with this assertion is that the common law Public Trust Doctrine, as interpreted by the U.S. Supreme Court, places limitations on the Legislature's authority to use trust lands for nontrust purposes. A basketball arena, which is a major feature of the project, is not a traditional public trust use-it does not involve water related commerce, navigation, or fishing. However, there are examples of nontrust uses on public trust lands that have been deemed legitimate by the courts because they are incidental to and accommodate other trust uses. Additionally, the courts have recognized that the public trust doctrine is flexible to address changing public needs related to public trust lands. This analysis explains (1) the history and nuances of public trust doctrine, (2) the details of the basketball arena and Pier 30-32 project, and (3) suggested amendments that will help support the claim that the project is valid under the Public Trust Doctrine. AB 1273 Page 5 2)The Public Trust Doctrine and Trust Uses. As stated above, the Public Trust Doctrine in California is a common law doctrine that protects the public's right to use the state's waterways for commerce, navigation, fishing, boating, natural habitat protection, and other water oriented activities. This doctrine applies to filled and unfilled tide and submerged lands and the beds of lakes, streams, and other navigable waterways, otherwise known as public trust lands. The origins of the Public Trust Doctrine are in ancient Roman law, which held that "by the law of nature these things are common to mankind - the air, running water, the sea and consequently the shores of the sea." From this, the English common law evolved the concept of the public trust, under which the king, in his sovereign capacity, owns all of the navigable waterways and the lands lying beneath them "as trustee of a public trust for the benefit of the people." According to the U.S. Supreme Court in 1842, "[w]hen the American Revolution took place, the people of each state became themselves sovereign; and in that character held the absolute right to all their navigable waters, and the soils under them, for their own common use..." Under the equal footing doctrine of the U.S. Constitution, states admitted to the Union after the Revolution were entitled to the lands beneath their navigable waters subject to the same trust, irrespective of the ownership of the adjacent lands. As such, when California joined the Union on September 9, 1850, it acquired in trust for the benefit of the people of California, all tide and submerged lands and the beds of lakes, streams, and other navigable waterways located within its boundaries. As articulated by the U.S. Supreme Court in 1892, public trust lands are held "in trust for the people of the state, [so] that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein, freed from the obstruction or interference of private parties." (These uses are commonly referred to as "traditional public trust uses.") Subsequent state court cases held that theses traditional public trust uses include the right to fish, hunt, bathe, swim, to use for boating and general recreation purposes the navigable waters of the state, and to use the bottom of navigable waters for anchoring, standing, or other purposes. As public needs related to the waterways changed, so did the AB 1273 Page 6 court's interpretation of valid public trust uses. This was made clear in 1971, when the Supreme Court of California held that "[t]he public uses to which tidelands are subject are sufficiently flexible to encompass changing public needs. In administering the trust the state is not burdened with an outmoded classification favoring one mode of utilization over another. There is a growing public recognition that one of the most important public uses of tidelands - a use encompassed within the tidelands trust - is the preservation of those lands in their natural state, so that they may serve as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life, and which favorably affect scenery and climate of the area." In addition to recognizing the flexibility of the Public Trust Doctrine, the courts have upheld projects devoted to purposes unrelated to the trust when such purposes were incidental to and accommodated actual trust uses. These projects include (1) a convention and banquet building on Port of Oakland lands that gives trade, shipping, and commercial associations a place to meet or hold conventions and exhibitions, (2) a Y.M.C.A. for the use of "seaman, naval officers and enlisted men, and other persons engaged in and about the harbor and commerce, fishery, and navigation," and (3) a restaurant, bar, motel, swimming pool, shops, and a parking area catering to, and serving, yachtsmen, boat owners and others using the waters adjacent thereto. In another line of cases, the courts have struck down legislative actions that authorized the use of public trust assets for municipal purposes. The courts have held that since public trust assets are held in trust for the benefit of the people of the state, it is not appropriate to dedicate these assets to municipal purposes unconnected with the general purposes of the trust. Considering the land use restrictions of the Public Trust Doctrine and the limitations the courts have placed on the Legislature regarding this issue, the committee should seriously consider the details of the basketball arena and Pier 30-32 project to determine if it is a legal use of public trust lands. Without such consideration, the Legislature could be authorizing a project that will be struck down by a court. AB 1273 Page 7 3)Details of the Project. The project proposed in this bill includes two related components on separate Port parcels: Piers 30-32 and Sewall Lot 330. These parcels are located along the San Francisco waterfront between the Bay Bridge and AT&T Park. Pier 30-32 consists of an approximately 553,778-square foot (about 13 acres) pile-supported structure along The Embarcadero roadway. The Pier 30-32 platform consists of obsolete, pile-supported pier structures that are physically no longer capable of serving most trust-related purposes without substantial modification and repair. Preserving the pier requires a substantial capital investment to improve the piles and decking to modern seismic standards. According to a feasibility study prepared for the City and County of San Francisco, the proposed project will involve the Golden State Warriors rehabilitating Piers 30-32 and constructing a new privately financed, state-of-the art multi-purpose venue with seating for 17,000 to 19,000 persons, capable of being used as an event venue and for other public assembly uses, including conventions, Warriors' home games, performing arts, and other purposes, along with public open space (at least 50 percent of Piers 30-32), waterfront access improvements, parking facilities (630 parking spaces), visitor-serving retail and restaurants (105,000 square feet), maritime access, and other related uses. The Golden State Warriors also plan to build a team practice facility (21,000 square feet), plus a community room (10,000 square feet) and event management and team operations space (40,000 square feet) on Piers 30-32. The Warriors will finance and build these improvements under a fair market rent ground lease from the Port, and complete them by the fall 2017. In addition, the bill imposes conditions on the project, which require all of the following features: Views of the Bay Bridge, the San Francisco Bay, or both, from concourses located in various areas of the multi-purpose venue and from certain seating areas; Free public access to patrons and nonpatrons to portions of the venue from which the public can view the AB 1273 Page 8 San Francisco Bay; A public access component for the pier that meets BCDC's requirements; New public vantage points on various locations of the pier from which to view the San Francisco Bay; Continuous public access around the entire perimeter of the pier (configured as necessary to accommodate use by the fire boat station, berths, or other maritime uses on the pier edge, to the extent each of those uses is incorporated into the development); Continuous public access between the pier and the Brannan Street Wharf, which will be a new 57,000 square foot public park over the water and parallel to the Embarcadero Promenade between Pier 30-32 and Pier 38; A significant maritime program that provides for maritime uses along the north and east edges of Pier 30-32, which uses may include the following: o A city fire station and berthing facilities for city fire boats; o Berthing facilities, including facilities that can accommodate periodic use by cruise or other deep draft vessels; o Direct public access to the water in the form of a launch for human-powered vessels, subject to feasibility and public safety considerations; o Guest berths that accommodate private vessels for day use; o Water-based transit facilities, including water taxi and ferry landings; and/or o Use by recreational craft or other maritime uses or for public access or public water-oriented recreational uses facing the Brannan Street Wharf open water basin. AB 1273 Page 9 Any nonmaritime office space provided on Pier 30-32 is for use by the primary tenants of the multipurpose venue, or is ancillary to the use of the multipurpose venue, the retail uses on Pier 30-32, the operation and management of the open space, and other public facilities on Pier 30-32; At least half of all retail on Pier 30-32 is trust retail (i.e. visitor serving public trust retail and restaurant use); and Any parking included on Pier 30-32 is located under active uses on Pier 30-32, substantially screened from public view, and designed to avoid material interference with pedestrian and bicycle traffic along Herb Caen Way and the public's access to and use of the open space on the surface of the pier. Sewall Lot 330, which is across the Embarcadero roadway from Piers 30-32, is approximately 101,330 square feet (about 2.3 acres) of filled tidelands. In 2011, AB 418 (Ammiano) terminated the public trust use restrictions from Seawall Lot 330, declaring that the parcel is not necessary for public trust purposes. As part of the project, the Golden State Warriors will construct improvements on the undeveloped portion of Seawall Lot 330. The Port will convey fee title to Seawall Lot 330 to the Warriors for fair market value consideration if certain conditions are met; otherwise, the Port will enter into a 75 year ground lease with the Warriors for the appraised fair market rent consideration for that site. The Warriors' preliminary plans for this parcel include retail (33,000 to 34,000 square feet), parking (200 to 300 spaces), residential units (100 to 130 units), and a hotel (200 to 250 rooms). 1)Suggested Amendments. The Port, the City and County of San Francisco, the Golden State Warriors, the Commission's staff, BCDC's staff, and, most recently, committee staff, have spent countless hours negotiating the terms of this bill. Special attention has been placed on making this project consistent with the Public Trust Doctrine and to maximize public access to and public views of the San Francisco waterfront and the Bay. In addition to technical , clean up amendments, the author and the committee may wish to consider the following AB 1273 Page 10 amendments, which will help support the claim that the project is valid under the Public Trust Doctrine and maximizes public access and public views: Conditions on the Project. Amend "Section 6" of the bill to state the following: The Legislature, in the exercise of its retained power as trustee of the public trust and in view of the unique circumstances existing at Pier 30-32 on the San Francisco waterfront and the considerable statewide public benefit and promotion of the public trust that will be brought about by the preservation, improvement and modernization of the pier, construction of a new multipurpose venue for events and public assembly, establishment of maritime uses, improved public access, public use and enjoyment of the site, establishment of venue-supporting or trust retail uses on the site, and additional public trust benefits, hereby authorizes the Port to approve a mixed-use development on the San Francisco waterfront at Pier 30-32 that includes a multipurpose venue for events and public assembly if the Port finds that the following conditions are met: (a) The mixed-use development is designed to attract people to the waterfront, increase public enjoyment of the San Francisco Bay, encourage public trust activities and enhance public use of trust assets and resources on the waterfront. (b) The mixed-use development is designed to provide multiple significant views of the Bay Bridge and the San Francisco Bay from a variety of elevations and vantage points, including significant views of the Bay Bridge and the San Francisco Bay from the interior concourses of the multipurpose venue and views of the Bay Bridge from certain seating areas within the multipurpose venue. The multipurpose venue facility is located to minimize interference with public views of San Francisco Bay to the extent feasible. The multipurpose venue facility shall provide free public access to patrons and nonpatrons alike to exterior portions of the building from which the public can view the San Francisco Bay, subject to reasonable limitations based on security. In addition, to encourage the public to come to the bay's edge, the design of the AB 1273 Page 11 multipurpose venue shall provide significant free public views of the inside of the multipurpose venue from the outside , and the operator of the multipurpose venue shall be required to allow the public to view the inside of the multipurpose venue from the outside during events whenever feasible. (c) The mixed-use development is designed to achieve and enhance maximum feasible public access to and minimum fill in the bay in a manner that is consistent, as determined by BCDC in its separate permit process, with the Special Area Plan, the McAteer-Petris Act, and the Bay Plan. (d) The mixed-use development includes significant public plazas open to the public on a substantially permanent basis that can be accessed via public pedestrian promenades at the site that encourage public use of the site and provide a variety of views of the San Francisco Bay and the San Francisco cityscape. (e) The mixed-use development includes continuous public access around the perimeter of Pier 30-32 open to the public year round, with limited exceptions for temporary safety-, security- and maritime-based interruptions, and includes an interpretive program to enhance the public's enjoyment of the site. (f) The mixed-use development includes a significant and appropriate maritime program, which shall be consistent with the Special Area Plan and shall include, but is not limited to: (1) A city fire station and berthing facilities for city fire boats or, in lieu thereof, one or more other maritime uses on the north side of Pier 30-32; (2) Facilities for berthing at the east end of Pier 30-32, including facilities that can accommodate periodic use by cruise or other deep draft vessels, or other facilities that promote the deep water berth at Pier 30-32; (3) Facilities to enable direct public access to the water by human-powered vessels or swimmers, if feasible, on the south side of Pier 30-32, or AB 1273 Page 12 water-oriented recreational uses facing the Brannan Street Wharf open water basin; and (4) Water- transit docking or berthing facilities, for water taxis and/or ferries. (g) Any non-maritime office space on Pier 30-32 is limited to 70,000 square feet, and any non-maritime office space provided on Pier 30-32 is for use only by the primary tenants of the multipurpose venue for events and public assembly, the venue-supporting or trust retail uses on Pier 30-32, and the operation and management of the open space and other public facilities on Pier 30-32. (h) All retail venues on Pier 30-32 are limited to venue-supporting or trust retail uses. (i) Any parking included on Pier 30-32 is limited to 500 spaces, located under active uses on Pier 30-32, substantially screened from public view, and designed so that ingress and egress avoids material interference with pedestrian, wheelchair, and bicycle traffic along Herb Caen Way and material interference with the public's access to and use of the open space on the surface of the pier. Parking shall be designed to accommodate visitors to the site and shall not be reserved for residential use. (j) Public trust consistent events, uses and programming are offered regularly at the site of the mixed-use development. There shall be at least thirteen such events offered per year. These events shall include free and low-cost visitor-serving events. The operator of the multipurpose venue shall be required to make available the multipurpose venue for such events on at least three days per year. (k) A public community room is available at the site for free or low cost use by members of the public statewide, without preference to local residents or organizations. (l) The development of the site is required to be consistent with a plan to address anticipated sea-level rise through year 2050, which will include enforceable strategies incorporating an adaptive management approach to sea-level rise for the duration of the ground lease term. AB 1273 Page 13 (m) The development approved for Seawall Lot 330 includes a hotel or other substantial visitor-serving uses that the Port finds is beneficial to accommodate and enhance public trust uses on Pier 30-32 and the San Francisco waterfront. State Lands Commission Oversight. Add a new section to the bill that states the following: (a) If a multipurpose venue for events and public assembly is approved and constructed on Pier 30-32, the Port shall submit and present at a properly noticed public Commission meeting a trust program report to the Commission on the fifth anniversary of the opening of the multipurpose venue, and every five years after through the term of the ground lease for the multipurpose venue, that contains all of the following information: (1) A list and description of the trust-related events and programming that have occurred at the site of the mixed-use development and in the multipurpose venue over the preceding five-year period, including the dates on which the events occurred or the multipurpose venue was made available for such events, and identifying any free and low-cost visitor serving events. (2) A description of the efforts made by the Port, its tenant, and subtenants to publicize the availability of Pier 30-32 including the multipurpose venue for trust-related events and other efforts undertaken to solicit such events. (3) A description of the maritime program on those portions of Pier 30-32 within the purview of the Port or the City, including a list of the facilities constructed, identification of any tenants, licensees or other operators of the maritime facilities, and a description of the nature and frequency of the maritime use. (4) A description of the tenants and use of the non-maritime office and the use of the public community room on Pier 30-32. (5) Any other information specifically requested by AB 1273 Page 14 the State Lands Commission that pertains to the City or Port program of trust uses for Pier 30-32 and that is reasonably obtainable by the City or Port. (b) If, following receipt of a trust program report required in subdivision (a), the executive officer of the State Lands Commission determines (1) that Pier 30-32 is not being used for at least thirteen trust-related events annually at that site as a whole or fewer than three such trust related events annually at the multipurpose venue as provided in section 5(j) of this chapter, or that the City or the Port has not implemented the maritime program for Pier 30-32 for its intended purposes as provided in Section 5(f) of this chapter, and (2) that the City or the Port, as applicable, has not taken effective action to achieve the objectives specified in the preceding clause (1), then the executive officer shall provide written notice of that determination to the City and the Port, including the basis for its determination, and the Port and, if applicable, the City, shall work cooperatively with State Lands Commission executive officer to jointly develop an implementation plan to ensure the objectives of clause (1) are met for the next five year reporting period, provided that such plan must be consistent with the terms and conditions set forth in governmental approvals for development of the project and in then existing leases and other contracts affecting use of the site, including rights of leasehold mortgagees under those contracts. Subject to the foregoing, the implementation plan may include, without limitation, a plan for improving outreach, publicity, or marketing efforts for trust events or to attract maritime operators or users. (c) In conjunction with the Port's report required in subdivision (a), the tenant of the multipurpose venue shall submit and if requested by State Lands Commission's executive officer present at a properly noticed public Commission meeting an informational report to the State Lands Commission describing how the event program at the multipurpose venue is meeting the objectives for use of that venue set forth in subdivision (b) of Section 6 of this act. Further Clarifying and Strengthening BCDC's Authority. Amend "Section 7" of the bill to state the following: AB 1273 Page 15 Any legislative or regulatory requirement for findings of consistency with the public trust doctrine or the Burton Act trust under the Special Area Plan, the Bay Plan, or any other applicable statute, regulation, or plan shall be deemed satisfied if the Port has made a finding that the Pier 30-32 development is consistent with the requirements of Section 5 of this act. Except with respect to a finding of consistency with the public trust doctrine, nothing in this act is intended to limit the authority and discretion of BCDC to approve or deny permits for the multi-use development on Pier 30-32 generally described in this act in a manner consistent with the McAteer-Petris Act, the Bay Plan, and the Special Area Plan, including the authority and discretion of BCDC to impose conditions on the permits for the project. This act shall not limit the authority and discretion of BCDC to enforce permits issued for the projects described in this act. Sunset Provision. Add a new section to the bill to state the following: If a mixed-use development at Pier 30-32 that includes a multipurpose venue for events and public assembly meeting the conditions of Section 5 hereof has not been approved within ten (10) years from the effective date of this act, the provisions of Section 5 and Section 7 hereof shall become inoperable as of the date that is ten (10) years from the effective date of this act. REGISTERED SUPPORT / OPPOSITION : Support City and County of San Francisco (sponsor) A Philip Randolph Institute, San Francisco A Philip Randolph Institute, Western Region Asbestos, Lead and Old Laborers, Local Union No. 67 Boys and Girls Clubs of San Francisco Bricklayers and Allied Craftworkers Local 3, California Brightline Defense Project Building Owners and Managers Association of San Francisco California Labor Federation California State Association of Electrical Workers California State Council of Laborers California State Pipe Trades Council AB 1273 Page 16 CAL Insurance & Associates, Inc. Charity Cultural Services Center Golden State Warriors Hotel Council of San Francisco International Brotherhood of Electrical Workers, Local Union 6 International Union of Operating Engineers, Local Union No. 3 Laborers' International Union of North America, Local Union No. 261 Mission Hiring Hall San Francisco Chamber of Commerce San Francisco Citizens Initiative for Technology & Innovation San Francisco Deputy Sheriff's Foundation San Francisco Fire Department San Francisco Travel Association Sign Display and Allied Crafts, Local Union No, 510 State Building and Construction Trades Council of California Sustainable Futures United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry United Brotherhood of Carpenters and Joiners of America, Local Union 22 Western States Council of Sheet Metal Workers Young Community Developers, Inc. 7 Individuals Opposition San Francisco BayKeeper San Francisco Tomorrow Save the Bay Sierra Club California Analysis Prepared by : Mario DeBernardo / NAT. RES. / (916) 319-2092